Smith et al v. County of Santa Clara et al, No. 5:2011cv05643 - Document 87 (N.D. Cal. 2016)

Court Description: ORDER granting in part and denying in part 49 Motion for Summary Judgment. Signed by Judge Edward J. Davila on 8/1/2016. (ejdlc1S, COURT STAFF) (Filed on 8/1/2016)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 GINA SMITH, et al., 8 Case No. 5:11-cv-05643-EJD Plaintiffs, 9 ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT v. 10 COUNTY OF SANTA CLARA, et al., 11 Re: Dkt. No. 49 United States District Court Northern District of California Defendants. 12 Plaintiffs Gina Smith, Laurey Shumaker, and Dagmar Chambers (collectively, 13 14 “Plaintiffs”),1 bring this action against the County of Santa Clara (“the County”), and three County 15 employees, Alfonso Banuelos, M.D., Barbara Traw, and Anna Hughes (collectively, 16 “Defendants”), alleging violations of Title VII of the Civil Rights Act of 1964 (“Title VII”), the 17 California Fair Employment and Housing Act (“FEHA”), 42 U.S.C. § 1983, and other related 18 violations. Presently before the court is Defendants’ Motion for Summary Judgment (“Mot.”). Dkt. 19 20 No. 49. Having now carefully reviewed the parties’ papers and arguments in conjunction with the 21 record, the court has determined that Defendants are entitled to summary judgment on some, but 22 not all, of Plaintiffs’ claims. Thus, Defendants’ Motion will be granted in part and denied in part 23 for the reasons explained below. 24 25 26 27 28 1 Aida Oliva was also a plaintiff to this action when it was filed. However, Oliva’s claims were severed by the court on June 25, 2013. Dkt. No. 36. 1 Case No.: 5:11-cv-05643-EJD ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT I. 1 BACKGROUND Plaintiffs allege, and Defendants do not dispute, that they are employed as Registered 2 3 Nurses (“RN”) by the County of Santa Clara. First Am. Compl. (“FAC”) ¶ 26, Dkt. No. 5. 4 Plaintiffs work at the Santa Clara Valley Medical Center (“SCVMC”) in the Division of 5 Maternity, specializing in the field of Mother Infant Care at the Mother Infant Care Center 6 (“MICC”). Id. 7 A. The MICC is a postpartum care unit of the SCVMC offering medical treatment to infants 8 9 The Mother Infant Care Center (“MICC”) 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 11 United States District Court Northern District of California 10 undergarments, performing and assisting with breastfeeding techniques, and cleaning the mother’s 12 genital area of blood and other bodily fluids – a technique known as perinatal care. Decl. of 13 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 14 15 Professional Association (“RNPA”). Id. ¶ 4. Like other nurses at SCVMC, MICC nurses are 16 categorized as “per diem,” “extra help,” or “coded” nurses. Decl. of Joanne Cox (“Cox Decl.”) 17 ¶ 5, Dkt. No. 52. “Per diem” and “extra help” nurses fill staffing shortages caused by vacations, 18 leaves of absence, and patient fluctuations, and are generally considered at-will employees. Id. 19 In contrast, “coded” nurses work a minimum set number of hours each pay period, depending on 20 their code,2 and are entitled to the rights set forth in the RNPA’s Agreement with the County. Id. 21 ¶ 6, Ex. A. Barbara Traw is the Nurse Manager of the MICC. Decl. of Karl Sandoval (“Sandoval 22 23 Decl.”) at Ex. A, 71:5-7, Dkt. No. 51; see FAC ¶ 60. In her capacity as Nurse Manager, Traw 24 25 26 27 28 2 For example, a 1.0 code is considered a full-time position, working 80 hours per two-week pay period. Cox Dec. ¶ 6. There are five codes in total, including “.90” (72 hours per pay period); “.80” (64 hours per pay period); “.60” (48 hours per pay period); and “.50” (20 hours per pay period). Id. 2 Case No.: 5:11-cv-05643-EJD ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 1 oversees the day-to-day operations of the MICC, assists in the hiring of new staff, handles patient 2 and staff complaints, and participates in disciplinary proceedings. Id. at Ex. A, 71:7-21. Nurses in 3 the MICC report to Assistant Nurse Managers, who in turn report directly to Traw. See id. at Ex. 4 A, 105:3-6. During the time period relevant to this action, there were three Assistant Nurse 5 Managers for the MICC: Krystal Kajoica during the day, Annabelle Ablan in the evening, and 6 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 7 shift also had a designated “charge nurse” who was responsible for overseeing the “workflow” of 8 the shift, including ensuring that nurses take breaks, assigning nurses to newly admitted patients, 9 and setting the assignments for the incoming nurses on the next shift. Sandoval Decl. at Ex. F, 38:3-39:22. 11 United States District Court Northern District of California 10 B. 12 Personnel Changes and Hiring Male Nurses in the MICC Between 2009 and 2011, the MICC went through at least two rounds of “layoffs,” resulting 13 in the transfer of nurses to other positions outside of the MICC or the elimination of their position 14 all together. See id. at Ex. B, 127:16-128:18. When Traw became the Nurse Manager of the 15 MICC in 2010, the SCVMC did not employ any male nurses in the MICC, although there were 16 male student nurses who would rotate through the unit. See id. at Ex. A, 78:24-79:3; Ex. F 146:4- 17 147:7. According to Plaintiffs, male nursing students typically did not perform the more intimate 18 aspects of care in the MICC, such as checking for vaginal bleeding or conducting breast 19 examinations. Decl. of Gina Smith (“Smith Decl.) ¶ 7-8, Dkt. No 61; Decl. Dagmar Chambers 20 (“Chambers Decl.”) ¶¶ 9-10, Dkt. No. 60. 21 In February 2011, Traw and the Assistant Nurse Managers – Kajoica, Ablan, and Guiang – 22 began interviewing applicants for three “extra help” nursing positions in the MICC. Id. at Ex. A, 23 82:2-83:24; 94:16-95:8. With Traw’s agreement, the Assistant Nurse Managers extended offers of 24 employment to three male candidates, all of whom were licensed to practice in California by the 25 Board of Registered Nursing. Id. at Ex. F, 452:3-9; Req. for Judicial Notice (“RJN”), Dkt. No. 50, 26 27 28 3 Case No.: 5:11-cv-05643-EJD ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 1 at Exs. B, C, D.3 One of the new male hires was Trent Mikami (“Mikami”), who had previously 2 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 3 4 male nurses in the MICC, and specifically regarding the hiring of Mikami. C. Bonner Decl. at Ex. 5 1, 99:7-104:17. 6 C. Plaintiff Gina Smith Smith is an African-American female who is, and at all times relevant to this action was, 7 8 employed by the County as a registered nurse. Smith is a 0.5 “coded” employee and works the 9 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. 11 United States District Court Northern District of California 10 Smith Decl. ¶ 2. 12 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 13 14 Health Division, “what his thoughts were regarding the prospect of male nurses working in the 15 MICC unit as direct caregivers for mothers and babies.” Smith Decl. ¶ 10. According to Smith, 16 several female patients had conveyed to her that they felt uncomfortable and potentially unsafe 17 with male nurses performing their care. Sandoval Decl. at Ex. F, 195:15-196:2. Three days after 18 the conversation, Dr. Byrne wrote an email to the hospital administration stating: “MICC RN Gina 19 Smith asked me what I thought of the prospect of male RN’s [sic] being assigned to MICC. She 20 stated that she was opposed and thought it was wrong to have male RN’s [sic] present on her 21 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 22 23 comments to Dr. Byrne opposing the hiring of male nurses. Id. at Ex. A, 157:18-158:2, Ex. 5. 24 The Report stated that that Smith’s conduct violated the County’s policy against gender 25 discrimination. Id. at Ex. A, 157:18-158:2; 359:13-19; 378:5-379:11. As part of the disciplinary 26 3 27 28 Defendants’ RJNs are GRANTED to the extent referenced in this Order. See Fed. R. Evid. 201. 4 Case No.: 5:11-cv-05643-EJD ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 1 action in response to this Report, Traw also required Smith to attend a Sexual Harassment and 2 Discrimination training. Id. at Ex. A at 168:169-4. 3 4 5 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 6 Johnson, claiming that she had been denied breaks on January 20, 2011 by Chau Luu, the charge 7 nurse on duty. C. Bonner Decl. at Ex. 2, 396:24-399:12. Smith further informed Traw and 8 Johnson that Luu had instructed the MICC nurses “to relieve each other,” which she argues 9 “would have resulted in each nurse doubling her patient count” and improper patient to nurse 10 United States District Court Northern District of California 11 ratios. Smith Decl. ¶ 28(b), Ex. 6. On April 4, 2011, Smith sent an email to Traw and Johnson accusing Ablan of racial 12 favoritism. See Sandoval Decl. at Ex. F, 318:8-12. Specifically, Smith testified that Ablan gave 13 “special assignments and treatment” to Filipino nurses who were her friends. Id. at Ex. F, 318:8- 14 12; 324:22-325:2. About a week later, on April 11, 2011, Smith sent another email to Traw and 15 Johnson complaining of favoritism and racism by Raquel Bautista, the charge nurse on duty the 16 previous day. Sandoval Decl. at Ex. F, 342:2-19, Ex. 8. And on May 17, 2011, Smith spoke with 17 Traw about a patient assignment she considered unsafe and claimed that the assignment was 18 racially discriminatory. Smith Decl. ¶ 28(c). Specifically, Smith voiced her concern that she had 19 been assigned to six patients, three of whom were classified as “acuity level 3,” while other nurses 20 had only “acuity level 2” patients. Sandoval Decl. at Ex. F, 354:21-355:14. Traw acknowledged 21 that Smith’s complaint regarding this assignment raised issues of patient care and safety. 22 C. Bonner Decl. at Ex. 2, 400:6-401:12. Traw also stated she received a complaint from the 23 charge nurse on duty that day alleging that Smith had been disruptive and unprofessional. Traw 24 Decl. ¶ 4, Ex. B, Dkt. No. 53. 25 26 27 28 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 5 Case No.: 5:11-cv-05643-EJD ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 1 Decl. at Ex. 2, 421:1-18; Smith Decl., Ex. 7, Dkt No. 61-7; Sandoval Decl. at Ex. A, Ex. 40; Traw 2 Decl. ¶ 4, Ex. B. The Written Counseling alleged that Smith was disruptive, repeatedly 3 interrupted the charge nurse, attempted to change patient assignments without supervisor 4 authorization, refused to take breaks at the scheduled time, and failed to use proper 5 communication with her colleagues. Smith Decl. Ex. 7; Traw Decl. Ex. B. 6 On July 21, 2011, Smith was reviewing the schedule with Chambers, and believed that 7 Filipino nurses were “more frequently scheduled to relief, resource and charge nurses than nurses 8 of other national origins.” Smith Decl. ¶ 28(d). Smith raised this concern about the schedule to 9 Ablan, who was in charge of assigning the schedules, and accused her of discrimination. Id. 10 United States District Court Northern District of California 11 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 12 Counseling” regarding her alleged conduct on July 21st and her failure to improve her behavior 13 generally since the June 8th write-up. See C. Bonner Decl. at Ex. 2, 421:1-18, Ex. 42. The 14 Written Counseling accused Smith of continuing to compare scheduling assignments, exhibiting 15 “inappropriate behavior” toward her charge nurse, and failing to take breaks at the scheduled time, 16 among other allegations. Id.; Smith Decl. ¶ 28(c), Ex. 8, Dkt. Nos. 61-8, 61-9. The write-up 17 initially included a paragraph accusing Smith of failing to perform routine duties regarding a “C- 18 section” patient, but Traw later deleted this paragraph after she “went back re-talked to the nurse 19 who had made these statements,” and the nurse was “no longer willing to back them up.” 20 C. Bonner Decl. at Ex. 2, 421:1-18, 423:17-426:12, Exs. 41, 42; Sandoval Decl. at Ex. A, 421:1- 21 18, 425:14-426:12, Ex. 41. Traw testified that the Written Counseling was not a formal write-up, 22 but rather was a “plan of correction,” intended only as a talking point for improving Smith’s 23 allegedly inappropriate behavior. Sandoval Decl. at Ex. A, 422:3-423:13. The write-up was kept 24 as part of Traw’s file on Smith. Id. 25 26 27 28 iii. Smith is Accused of Committing a HIPAA Violation On or about August 18, 2011, Smith made a complaint of discrimination to Vernon 6 Case No.: 5:11-cv-05643-EJD ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 1 Crawley, a representative of the Equal Opportunity Division (“EOD”), regarding the allegedly 2 unsafe patient staffing in the MICC. Sandoval Decl. at Ex. I, 17:13-18, Dkt. No. 51-9. In support 3 of her concerns, Smith took an assignment sheet identifying the acuity level of patients in the 4 MICC and showed the document to Crawley. Id. at Ex. I, 17:13-18:21. In September 2011, Traw 5 reported this disclosure as a potential HIPAA violation to Hughes, the Compliance and Privacy 6 Officer for the County’s Health and Hospital System. Id. at Ex. A, 429:1-430:20; Ex. D, 201:4- 7 202:8, Dkt. No. 51-4. Hughes investigated and concluded that Smith’s actions violated HIPAA on 8 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”) 9 on August 19, 2011 and the Department of Fair Employment and Housing (“DFEH”) on 11 United States District Court Northern District of California 10 November 9, 2011. Id. at Ex. F, 434:12-24, Exs. 11, 21. 12 13 14 15 16 17 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 18 to the hospital budget and “inviting employee input.” Chambers Decl. ¶ 3, Ex. 1. Chambers 19 responded to the email, stating that she believed there to be “corruption” and mismanagement of 20 taxpayer money occurring in the MICC. Id.; Sandoval Decl. at Ex. H, 307:2-4, Ex. 11. 21 Specifically, Chambers claimed that Traw hired Mikami as an “extra help” clerk without properly 22 posting the position and sent him to a paid two-day breastfeeding class, which she thought was a 23 misuse of public grant money. Sandoval Decl. at Ex. H, 307:5-308:10, Ex. 11. Johnson indicated 24 that she would look into the process through which Mikami was hired to “ensure everything is 25 done fairly…and that he is not getting special treatment,” but that it was “not a problem” for an 26 employee to attend a paid breastfeeding class.” Sandoval Decl. at Ex. E, 52:7-53:9. Johnson also 27 28 7 Case No.: 5:11-cv-05643-EJD ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 1 testified that she did not share further information with Chambers because it was confidential 2 employment information. Id. 3 In mid-February 2011, Chambers was involved in a conversation with other MICC nurses 4 regarding the implications of hiring male nurses in the MICC. Chambers Decl. ¶¶ 13-15. Among 5 the concerns was the impact on patient care and safety. Id. Thereafter, Guiang reported Chambers 6 for allegedly saying that she would not help male nurses if they were hired. Sandoval Decl. at Ex. 7 A, 112:7-11, Ex. 1; 125:14-17; 143:8-20, Ex. 4. Chambers disputes having made this comment. 8 Id. at Ex. A, 112:7-11, Ex. 1; Chambers Decl. ¶¶ 17-19. On March 2, 2011, Chambers states that 9 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 11 United States District Court Northern District of California 10 “that is sexual harassment, sex discrimination…stop…stop!” Chambers Decl. ¶ 15. Chambers 12 asserts that Johnson repeated this several times when other MICC nurses brought up the topic. Id. 13 On March 8, 2011, Traw issued Chambers an “Unfavorable Report” based on the comments she 14 allegedly made regarding the male nurses, stating that Chambers had engaged in gender 15 discrimination and sexual harassment. Sandoval Decl. at Ex. A, 112:7-11, Ex. 1; Chambers Decl. 16 ¶ 18. Traw instructed Chambers not to discuss the write-up with anyone. Chambers Decl. ¶ 18. 17 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 19 privacy violation. On or around October 24-26, 2011 County employee Sylvia Gallegos stayed in 20 the MICC where she was adopting a newborn baby. Chambers Decl. ¶ 30. To accommodate 21 Gallegos, another patient was moved out of a private room. C. Bonner Decl. Ex 1, 180:1-181:8. 22 Some MICC nurses were upset about this and expressed concern that a County executive was 23 being given special treatment at the expense of other patients and taxpayers. Id. at Ex. 1, 180:1- 24 187:5; Sandoval Decl. at Ex. D, 117:2-118:5. 25 On October 26, 2011, the County received an email from a San Jose Mercury News 26 reporter requesting a comment regarding a “tip” that Sylvia Gallegos was adopting a baby and was 27 28 8 Case No.: 5:11-cv-05643-EJD ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 1 being given special treatment by way of a multi-night stay in a private room at taxpayers’ expense. 2 Sandoval Decl. at Ex. D, 57:13-60:9, Ex. 3. The reporter included dates of hospitalization and 3 reference to the specific room number. Id. at Ex. D, 57:13-24, Ex. 3. The reporter subsequently 4 published an article disclosing that information. See id. at Ex. A, 201:11-12; Chambers Decl. 5 ¶ 34, Ex. 3A. Consequently, Hughes initiated an investigation into the disclosure. Hughes’ investigation included interviewing fourteen MICC employees who had 6 7 potentially come into contact with Gallegos, including Chambers. Sandoval Decl. at Ex. D, 8 116:17-117:1; 119:15-16. One nurse purportedly claimed that Chambers told her she had 9 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 11 United States District Court Northern District of California 10 that she did not believe Chambers based on the testimony of other nurses and Chambers’ 12 statements during her interview. Id. at Ex. D, 168:25-169:6; 171:1- 21; 178:14-179:16. 13 Chambers was then placed on paid administrative leave from November 2011 to May 2012 14 pending completion of Hughes’ investigation. Id. at Ex. H, 257:19-258:16, Ex. 9; Chambers Decl. 15 ¶¶ 36-38; C. Bonner Decl. at Ex 1, 205:12-206:19. During that time, Chambers was ineligible for 16 transfers or promotions. Chambers Decl. ¶¶ 36-38, Ex 4. Hughes later concluded that Chambers 17 was the source of disclosure and Chambers was issued a formal “Employee Written Counseling” 18 on May 23, 2012 and given a “bad Evaluation” by Traw. Sandoval Decl. at Ex. D, 304:20-306:16; 19 Ex. H, 117:6 - 118:21, Ex. 3; Chambers Decl. ¶¶ 38, 40, Ex. 5. 20 iii. Chambers’ Requested Schedule Modification Is Denied 21 Just before being placed on administrative leave in November 2011, Chambers requested a 22 modification to her regular schedule that would allow her to work an extra day during the week of 23 November 14, 2011, and then take an additional day off on Thursday November 17, 2011 for the 24 Thanksgiving holiday. Chambers Decl. ¶ 48. This request was approved and Chambers was 25 scheduled to work nine days, beginning Tuesday November 8, 2011 through November 16, 2011. 26 Id. 27 28 9 Case No.: 5:11-cv-05643-EJD ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT However, on November 11, 2011, Ablan told Chambers that Traw denied the request, and 1 2 Chambers was no longer permitted to work that Monday because it would require her to work 3 eight days in a row. Id. Traw states that she denied the request because she “believed it to be 4 unsafe for nurses to work more than eight days in a row.” Traw Decl. ¶ 6. But Chambers asserts 5 that she had previously worked more than eight days on a regular basis, including the prior month 6 wherein she had worked ten days in a row between August 30, 2011 and September 8, 2011. 7 Chambers Decl. ¶ 49. Chambers also contends that she has continued to work for as many as ten 8 days in a row since that time. Id. Chambers filed complaints with the DFEH alleging discrimination, retaliation, and 10 harassment on the basis of race and gender on November 17, 2011 and December 2, 2011. 11 United States District Court Northern District of California 9 Sandoval Decl. at Ex. H, 453:24-454:12, Ex. 17; 466:10-466:25, Ex. 18. 12 13 E. Plaintiff Laurey Shumaker Like Smith and Chambers, Shumaker is, and at all times relevant to this action was, 14 employed by the County as a registered nurse. Declaration of Laurey Shumaker (“Shumaker 15 Decl.”) ¶ 2, Dkt. No. 62; Sandoval Depo. at Ex. B, 15:14-17; 16:3-4; FAC ¶ 57. Shumaker 16 worked the evening shift as a “0.5 coded” nurse and was assigned to the MICC from September, 17 2001, when she became a county employee, through February 2011, when she left on extended 18 disability leave. Sandoval Depo. at Ex. B, 16:12-21; 26:7-17; 31:21-32:7; Shumaker Decl. ¶ 13. 19 20 21 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 22 Decl. ¶ 3; Sandoval Decl. at Ex. B, 122:6-7. In that position, Shumaker was a vocal advocate for 23 other nurses and, in 2010, actively opposed the transfers and layoffs occurring in the MICC. 24 Shumaker Decl. ¶ 4; Sandoval Decl. at Ex. B, 123:5-124:14;127:16-128:18. Specifically, 25 Shumaker believed that the proposed personnel changes would have left SCVMC out of 26 compliance with state mandated nurse-to-patient ratios. Shumaker Decl. ¶ 4; Sandoval Decl. at 27 28 10 Case No.: 5:11-cv-05643-EJD ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 1 Ex. B, 123:5-124:14;127:16-128:18. To that end, Shumaker organized and encouraged other 2 nurses to fill out forms regarding the non-compliant ratios for the RNPA union, which the RNPA 3 in turn presented to the County Board of Supervisors at a meeting in or about January, 2011. 4 Shumaker Decl. ¶¶ 4-6; Sandoval Decl. at Ex. B, 123:5-124:14; 127:16-128:18. 5 In January 2011, the Board decided to eliminate the equivalent of 2.6 full-time positions 6 from the MICC. Cox Decl. ¶ 7. Pursuant to the RNPA Agreement’s provisions governing layoffs, 7 the 2.6 positions to be eliminated were those positions held by the nurses with the least seniority. 8 Id., Ex. A, section 5.4-5.5. Shumaker was not one of the nurses laid off. Id.; Sandoval Decl. at 9 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 11 United States District Court Northern District of California 10 (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; 12 Sandoval Decl. at Ex. B, 141:15-142:3, Ex. 5. Traw testified that this transfer was necessary 13 because the layoffs left the night shift understaffed. Sandoval Decl. at Ex. B, 534:20-537:11, Ex. 14 67; 538:2-539:7, Ex. 68; 540:12-18, Ex. 69. And because Shumaker occupied the lowest code 15 (0.5) and had the least seniority on the evening shift, she was administratively transferred to the 16 night shift. Id. 17 18 ii. Shumaker’s Medical Disability and Request for Accommodation Upon receiving the notice of transfer letter, Shumaker contacted Johnson and Traw 19 expressing her concern to that, unlike other coded employees who were administratively 20 transferred, she had not been provided with sufficient notice of this change. Shumaker Decl. ¶ 8; 21 Sandoval Decl. at Ex. B, at 154:6-25. In response, Johnson and Traw agreed to provide her with 22 an additional ten days before her transfer went into effect. Sandoval Decl. at Ex. B, 154:6-25; Ex. 23 A, 487:3-488:18. 24 However, on February 22, 2011, Shumaker was placed on medical disability by her 25 primary care doctor due to a diagnosed sleep disorder that prevented her from being able to work 26 the night shift. Shumaker Decl. ¶¶ 10, 11, 18, Exs. 9, 10, 15, 17, 18. On March 31, 2011, 27 28 11 Case No.: 5:11-cv-05643-EJD ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 1 Shumaker made a reasonable accommodation request to transfer to evening or dayshift anywhere 2 in the Santa Clara County system, however, the County indicated that there were no positions 3 available to accommodate her. 4 Id. at ¶¶ 11-12. Shumaker contends that other nurses of a 4 different race and gender from her were assigned to the evening shift following her 5 accommodation requests, which she argues undermines Defendants’ letter stating that no 6 accommodation existed. FAC ¶ 61. Shumaker remained on medical leave from February 23, 7 2011 until January 14, 2013, when the County was able to accommodate her and she began work 8 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 9 discrimination, retaliation, and harassment on the basis of race, gender, age, and disability. 11 United States District Court Northern District of California 10 Sandoval Decl., Exs. L, M. 12 II. LEGAL STANDARD 13 A motion for summary judgment or partial summary judgment should be granted if “there 14 is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of 15 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 16 17 and identifying the portions of the pleadings, depositions, answers to interrogatories, admissions, 18 or affidavits that demonstrate the absence of a triable issue of material fact. Celotex Corp. v. 19 Catrett, 477 U.S. 317, 323 (1986). If the issue is one on which the nonmoving party must bear the 20 burden of proof at trial, the moving party need only point out an absence of evidence supporting 21 the claim; it does not need to disprove its opponent’s claim. Id. at 325. If the moving party meets 22 the initial burden, the burden then shifts to the non-moving party to go beyond the pleadings and 23 designate specific materials in the record to show that there is a genuinely disputed fact. Fed. R. 24 4 25 26 27 28 In an April 22, 2011 email from Traw regarding Shumaker’s request for accommodation, Traw wrote: “Laurey Shumaker’s code was an administrative transfer from PM shift to night shift due to the budget reduction/layoffs in February of 2011. MICC does not have a vacant 0.5 code on the PM shift. The 0.5 positions and code were transferred to night shift due to budget reductions.” Sandoval Decl. at Ex. B, 534:20-537:11, Ex. 67; 538:2-539:7, Ex. 68; 540:12-18, Ex. 69. 12 Case No.: 5:11-cv-05643-EJD ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 1 2 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 3 reasonable jury, viewing the evidence in the light most favorable to that party, could resolve the 4 material issue in his or her favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). 5 The court must draw all reasonable inferences in favor of the party against whom summary 6 judgment is sought. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). 7 However, the mere suggestion that there are facts in controversy, as well as conclusory or 8 speculative testimony in affidavits and moving papers, is not sufficient to defeat summary 9 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.”); 11 United States District Court Northern District of California 10 Thornhill Publ’g Co. v. GTE Corp., 594 F.2d 730, 738 (9th Cir. 1979). Instead, the non-moving 12 party must come forward with admissible evidence to satisfy the burden. Fed. R. Civ. P. 56(c). 13 The principles of summary judgment apply equally in discrimination cases. Steckl v. 14 Motorola, Inc., 703 F.2d 392, 393 (9th Cir. 1983). General assertions that a defendant had a 15 discriminatory motive or intent in taking an adverse action are insufficient to defeat summary 16 judgment unless supported by substantial factual evidence. Id. Adetuyi v. City & Cty. of San 17 Francisco, 63 F. Supp. 3d 1073, 1080 (N.D. Cal. 2014) (“A party cannot defeat a motion for 18 summary judgment by offering ‘purely conclusory allegations of alleged discrimination, absent 19 concrete particulars ..., for to do so would necessitate a trial in all Title VII cases.”) (citing 20 Candelore v. Clark Cnty. Sanitation Dist., 975 F.2d 588, 591 (9th Cir. 1992)). 21 “If the nonmoving party fails to produce enough evidence to create a genuine issue of 22 material fact, the moving party wins the motion for summary judgment.” Nissan Fire & Marine 23 Ins. Co. v. Fritz Cos., Inc., 210 F.3d 1099, 1103 (9th Cir. 2000). “But if the nonmoving party 24 produces enough evidence to create a genuine issue of material fact, the nonmoving party defeats 25 the motion.” Id. 26 27 28 13 Case No.: 5:11-cv-05643-EJD ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 1 2 3 4 III. DISCUSSION 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. 5 Under Rule 56, “[a] party may object that the material cited to support or dispute a fact 6 cannot be presented in a form that would be admissible in evidence.” Fed. R. Civ. P. 56(c)(2). 7 Consequently, the focus of an objection at the summary judgment stage is not “the admissibility of 8 the evidence’s form” but on the “admissibility of its contents.” Fraser v. Goodale, 342 F.3d 1032, 9 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 11 United States District Court Northern District of California 10 legal conclusion are all duplicative of the summary judgment standard itself” and are unnecessary. 12 Burch v. Regents of the Univ. of Cal., 433 F. Supp. 2d 1110, 1119 (E.D. Cal. June 5, 2006). So 13 too are objections based on the best evidence rule, or which assert that a declarant’s statement was 14 made without personal knowledge, “lacks foundation,” or is given in the form of a legal 15 conclusion. Alvarez v. T-Mobile USA, Inc., No. CIV. 2:10-2373 WBS, 2011 WL 6702424, at *3- 16 4 (E.D. Cal. Dec. 21, 2011). “Instead of challenging the admissibility of this evidence, lawyers 17 should challenge its sufficiency.” Id. Defendants objections made on any of these ground are 18 overruled. 19 Defendants have also objected to certain statements as contradictory of deposition 20 testimony, and have objected to certain declarations as either untimely under Civil Local Rule 5- 21 1(e)(4) or as offered by witnesses who were not disclosed by Plaintiffs according to Federal Rule 22 of Civil Procedure 26. These objections are not evidentiary in nature despite the label Defendants 23 have applied to them and are overruled on that basis. 24 What remains are objections based on hearsay. Because the court will not rely on the 25 particular evidence objected to by Defendants, the hearsay objections are overruled as moot. 26 27 28 14 Case No.: 5:11-cv-05643-EJD ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 1 2 B. Exhaustion of Administrative Remedies for Age Discrimination Claims As an initial matter, Defendants contend that Smith and Chambers failed to include 3 allegations of age discrimination in their EEOC and DFEH complaints, and consequently are 4 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 6 exhaust his or her administrative remedies prior to bringing a civil action in court by filing a 7 timely charge with the appropriate administrative agency. Lyons v. England, 307 F.3d 1092, 1104 8 (9th Cir. 2002) (“To establish federal subject matter jurisdiction, a plaintiff is required to exhaust 9 his or her administrative remedies before seeking adjudication of a Title VII claim.”); Okoli v. 10 Lockheed Tech. Operations Co., 36 Cal. App. 4th 1607, 1613 (1995) (“[I]n the context of the 11 United States District Court Northern District of California 5 FEHA, exhaustion of the administrative remedy is a jurisdictional prerequisite to resort to the 12 courts.”). For Title VII claims, this means that an employee must first file a complaint with the 13 EEOC, and for FEHA claims, it means an employee must first file a complaint with the DFEH. 14 Lelaind v. City & Cty. of San Francisco, 576 F. Supp. 2d 1079, 1090 (N.D. Cal. 2008). The scope 15 of a subsequent civil action is confined by the scope of the administrative complaint. 16 Accordingly, “unlawful conduct not included in an administrative complaint is not considered by a 17 court unless the conduct is like or reasonably related to the allegations in the administrative 18 complaint, or can reasonably be expected to grow out of an administrative investigation.” Id. 19 Here, Smith and Chambers allege that the County violated Title VII and FEHA by 20 discriminating against them on the basis of age in their First, Fourth, Fifth, and Eighth causes of 21 action. FAC ¶¶ 78-81; 90-93; 94-98; 111-116. Smith and Chambers admit that they failed to 22 expressly include age discrimination in their respective administrative complaints, but argue their 23 claims are not precluded on exhaustion grounds for two reasons. First, they contend that pursuant 24 to the Ninth Circuit’s decision in Bak v. Postal Serv., (U.S.), 52 F.3d 241, 244 (9th Cir. 1995), a 25 claimant is no longer required to exhaust his or her administrative remedies prior to filing a civil 26 action for age discrimination. Opp. at 23. Alternatively, they contend that even if age 27 28 15 Case No.: 5:11-cv-05643-EJD ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT discrimination claims are not exempt from the exhaustion requirement, their age discrimination 2 claims are nevertheless “like or reasonably related” to the other allegations of discrimination 3 contained in the administrative complaints. Opp. at 24. Each argument will be addressed in turn. 4 Turning to the first argument, Smith and Chambers’ reliance on Bak is misplaced. Unlike 5 in Bak, where the plaintiff filed an age discrimination claim pursuant to the Age Discrimination in 6 Employment Act (“ADEA”), 29 U.S.C. § 621, Smith and Chambers bring their age discrimination 7 claims pursuant to Title VII and FEHA. Under the ADEA, a complainant may proceed directly to 8 federal court after giving the EEOC notice of intent to sue. 29 C.F.R. § 1614.201. This is not true 9 of claims brought under Title VII or FEHA. Indeed, the Ninth Circuit specifically distinguished 10 age discriminations brought pursuant to the ADEA from claims brought pursuant to Title VII in 11 United States District Court Northern District of California 1 Bankston v. White, explaining that “[u]nlike Title VII … the ADEA ‘contains no express 12 requirement that a federal employee complainant seek administrative relief.’” 345 F.3d 768, 770 13 (9th Cir. 2003) (quoting Stevens v. Dep’t of Treasury, 500 U.S. 1, 12, (1991) (Stevens, J., 14 concurring and dissenting). Therefore, while age discrimination claims brought under the ADEA 15 are “not subject to any administrative exhaustion requirement,” age discrimination claims brought 16 under Title VII and FEHA still are. Accordingly, the court finds that Smith and Chambers were 17 required to exhaust their administrative remedies prior to filing a civil action for age 18 discrimination in this court. 19 Because there is no dispute that Smith and Chambers failed to exhaust their age 20 discrimination claims through the appropriate administrative processes, the remaining question is 21 whether the claims nevertheless are “like or reasonably related” to the allegations contained in 22 their respective administrative complaints. See Lelaind, 576 F. Supp. 2d at 1090; Lyons v. 23 England, 307 F.3d 1092, 1104 (9th Cir. 2002) (“Incidents of discrimination not included in an 24 EEOC charge may not be considered by a federal court unless the new claims are like or 25 reasonably related to the allegations contained in the EEOC charge.” (quoting Green v. Los 26 Angeles County Superintendent of Sch., 883 F.2d 1472, 1475–76 (9th Cir. 1989). 27 28 16 Case No.: 5:11-cv-05643-EJD ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 1 Defendants argue that Smith and Chambers’ age discrimination claims “necessarily 2 involve different arguments and evidence than their retaliation and race and gender-discrimination 3 claims,” and consequently are not “like or reasonably related” to such claims. Def. Reply in 4 Support of Mot. to Dismiss (“Reply”) at 13-14, Dkt. No. 66. The court agrees that Plaintiffs have 5 failed to demonstrate why an investigation regarding discrimination on the basis of race and 6 gender would reasonably trigger an investigation into discrimination on the basis of age. See 7 Stallcop v. Kaiser Found. Hosps., 820 F.2d 1044, 1050 (9th Cir. 1987) (holding that allegations of 8 sex and age discrimination in civil complaint were not encompassed by the charge filed with the 9 DFEH alleging only national origin discrimination). 10 However, Smith presents additional evidence that she included “age” in her complaint United States District Court Northern District of California 11 because she checked the box for “age” on her EEOC intake questionnaire. Smith Decl. ¶ 31, Ex. 12 16. Accordingly, she argues that her age discrimination claim “would have been discoverable” 13 during an investigation of her claims and should not be barred for failure to exhaust. Opp. at 24. 14 Smith’s position is persuasive. In B.K.B. v. Maui Police Department, the Ninth Circuit held that if 15 the charge is deficient in recording the complainant’s theory of the case due to error of an agency 16 representative, “then the plaintiff may present her pre-complaint questionnaire as evidence that her 17 claim for relief was properly exhausted.” 276 F.3d 1091, 1102 (9th Cir. 2002); see also Cheek v. 18 W. & S. Life Ins., Co., 31 F.3d 497, 502 (7th Cir. 1994) (finding that “[a]llegations outside the 19 body of the charge may be considered when it is clear that the charging party intended the agency 20 to investigate the allegations”); Sickinger v. Mega Systems, Inc., 951 F. Supp. 153, 157-58 (N.D. 21 Ind. 1996) (holding that plaintiff could rely upon allegations made in her pre-complaint 22 questionnaire for purposes of exhaustion where the EEOC representative failed to include 23 allegations of wrongful retaliation that were presented on the questionnaire). 24 Here, Smith checked boxes on her EEOC intake questionnaire form indicating that she 25 believed that she had been subjected to discrimination based on “race,” “sex,” “age,” and “national 26 origin.” Smith Decl. ¶ 31, Ex. 16. Liberally construed, it is reasonable to interpret Smith’s EEOC 27 28 17 Case No.: 5:11-cv-05643-EJD ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 1 intake questionnaire as evidence that she intended her right to sue letter to encompass an age 2 discrimination claim. In light of this, the court concludes that Smith properly exhausted her 3 administrative remedies and is not barred from raising allegations of age discrimination in this 4 case. 5 In contrast, Chambers has not presented any evidence suggesting that she intended to 6 include age discrimination in her administrative charges. Nor has she demonstrated why her age 7 discrimination claim would be related to or encompassed by an investigation of the other 8 discrimination allegations in her EEOC or DFEH complaints. See Stallcop, 820 F.2d at 1050. 9 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 11 United States District Court Northern District of California 10 based on allegations of age discrimination by Chambers. 12 13 C. Discrimination and Retaliation Under Title VII and FEHA Title VII makes it unlawful for an employer to “discriminate against any individual with 14 respect to [her] compensation, terms, conditions, or privileges of employment, because of such 15 individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2. Similarly, FEHA 16 prohibits employment discrimination, in relevant part, on the basis of race, medical condition, 17 gender, or age. Cal. Gov’t Code § 12940(a). Title VII and FEHA also prohibit an employer from 18 retaliating against an individual because he or she has made a charge of discrimination or opposed 19 a discriminatory practice. 42 U.S.C. § 2000e–3; Cal. Gov’t Code § 12940(h). 20 To prevail on a discrimination claim under Title VII, the plaintiff bears the initial burden of 21 establishing a prima facie case of discrimination. Texas Dept. of Cmty. Affairs v. Burdine, 450 22 U.S. 248, 252-53 (1981). If the plaintiff succeeds in making a prima facie case, the burden shifts 23 to the defendant “to articulate some legitimate, nondiscriminatory reason” for the allegedly 24 discriminatory conduct. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). If the 25 defendant meets this burden, the responsibility shifts back to the plaintiff to prove that the reasons 26 offered by the defendant were pretext for discrimination. Id. at 804; Burdine, 450 U.S. at 253. 27 28 18 Case No.: 5:11-cv-05643-EJD ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT This burden-shifting analysis for Title VII discrimination claims also applies to 1 2 discrimination and retaliation claims made pursuant to FEHA. See e.g., Guz v. Bechtel Nat. Inc., 3 24 Cal.4th 317, 354 (2000) (discrimination under FEHA); Yanowitz v. L’Oreal USA, Inc., 36 Cal. 4 4th 1028, 1042 (2005) (retaliation under FEHA). Accordingly, Plaintiffs’ Title VII and FEHA 5 claims will be addressed together using the same legal framework. Metoyer v. Chassman, 504 6 F.3d 919, 941 (9th Cir. 2007); see also L.A. County Dept. v. Civil Service Comm’n, 8 Cal. App. 7 4th 273, 280 (1992) (explaining that in employment discrimination cases, California courts 8 commonly adopt the standards used in proving intentional discrimination under Title VII); Guz, 9 24 Cal. 4th at 354 (same). 10 i. All Plaintiffs claim that Defendants’ violated Title VII and FEHA by discriminating 11 United States District Court Northern District of California Prima Facie Case 12 against them on the basis of race and gender. Smith and Shumaker also claim discrimination 13 based on age. Additionally, Shumaker claims discrimination due to her medical condition. 14 Plaintiffs bring their discrimination claims under both disparate impact and disparate treatment 15 theories of liability.5 16 To establish a prima facie case of employment discrimination through disparate treatment, 17 a plaintiff must offer evidence that “give[s] rise to an inference of unlawful discrimination.” 18 Burdine, 450 U.S. at 253. This inference arises if the plaintiff can demonstrate that she 19 (1) belongs to a protected class; (2) was performing her job satisfactorily; (3) was subjected to an 20 adverse employment action; and (4) was treated less favorably than other similarly situated 21 individuals outside of her protected class. Cornwell v. Electra Central Credit Union, 439 F.3d 22 23 24 25 26 27 28 5 Employment discrimination claims may be pursued in one of two ways: “An individual may allege that [she] has been subjected to ‘disparate treatment’ because of [her] [protected status], or that [she] has been the victim of a facially neutral practice having a ‘disparate impact’ on [those sharing the same protected status].” Levy v. Regents of Univ. of California, 199 Cal. App. 3d 1334, 1343 (1988) (quoting Furnco Construction Corp. v. Waters 438 U.S. 567, 582, (1978). Disparate treatment occurs “when [a person] is singled out and treated less favorably than others similarly situated” on account of a protected characteristic. Lelaind, 576 F. Supp. 2d at 1094 (quoting Cornwell v. Electra Central Credit Union, 439 F.3d 1018, 1028 (9th Cir. 2006)). 19 Case No.: 5:11-cv-05643-EJD ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 1 2 1018, 1028 (9th Cir. 2006); McDonnell Douglas, 411 U.S. at 802; Levy, 199 Cal. App. 3d at 1343. Plaintiffs further allege that Defendants retaliated against them in violation of FEHA for 3 engaging in protected activity. To state a prima facie case of retaliation, plaintiff must show that 4 (1) she was engaged in protected activity; (2) that defendant took an adverse employment action; 5 and (3) a “causal link between the protected activity and the adverse employment action.” 6 Cornwell, 439 F.3d at 1034-35; Lelaind, 576 F. Supp. 2d at 1094. 7 Although the plaintiff generally bears the initial burden of establishing a prima facie case of discrimination or retaliation, “[w]hen an employer moves for summary judgment ... the burden 9 is reversed because the defendant who seeks summary judgment bears the initial burden.” Dep’t 10 of Fair Employment & Hous. v. Lucent Techs., Inc., 642 F.3d 728, 745 (9th Cir. 2011) (internal 11 United States District Court Northern District of California 8 quotations omitted). Therefore, to prevail on summary judgment, a defendant-employer must 12 demonstrate either that the plaintiff failed to establish a necessary element of the prima facie case, 13 or that there was a legitimate, nondiscriminatory reason for the adverse employment action. Id.; 14 Avila v. Cont’l Airlines, Inc., 165 Cal. App. 4th 1237, 1247-48 (2008). 15 Regarding the claims made under Title VII and FEHA, Defendants only challenge 16 Plaintiffs’ prima facie case as to (1) Shumaker’s claim for discrimination based on medical 17 condition, (2) Shumaker and Chambers’ FEHA retaliation claims; and (3) all Plaintiffs’ disparate 18 impact claims. With respect to the remaining allegations, Defendants proceed directly to arguing 19 that there were legitimate, nondiscriminatory reasons for Defendants’ actions. Mot. at 17-20. In 20 the interest of clarity, the court will first address Defendants’ prima facie challenges to Plaintiffs’ 21 case before moving to the remaining burden shifting analysis. 22 a. Shumaker’s Claim of Discrimination Based on Medical Condition 23 It is uncontested that Shumaker’s medical condition is a protected characteristic under 24 FEHA, that she was qualified for her position, and that she suffered an adverse employment action 25 in the form of an administrative transfer. However, Defendants allege that they are entitled to 26 summary judgment on Shumaker’s medical discrimination claim based on the undisputed fact that 27 28 20 Case No.: 5:11-cv-05643-EJD ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 1 the County had no prior knowledge of her condition when they administratively transferred her to 2 the night shift. Mot. at 12-13. Without prior knowledge, Defendants argue that they could not 3 have discriminated against Shumaker on this basis. Id. Defendants cite to Shumaker’s deposition, 4 in which she testified that she never mentioned her sleep disorder prior to receiving the 5 administrative transfer letter on January 28, 2011. Sandoval Decl. at Ex. B, 160:2-9. Although 6 Shumaker’s physician provided multiple notes to Defendants regarding her sleep disorder, the 7 notes were sent after Defendants provided notice of the administrative transfer on January 28, 8 2011. See Shumaker Decl., Ex. 9 (dated February 14, 2011); Ex. 10 (dated March 31, 2011); Ex. 9 15 (dated July 7, 2011); Ex. 17 (dated September 15, 2011); Ex. 18 (dated March 3, 2011). 10 The court agrees with Defendants that an employee cannot establish a prima facie case of United States District Court Northern District of California 11 discrimination based on medical condition under FEHA in the absence of evidence that the 12 employer knew the employee had a medical condition. Trop v. Sony Pictures Entm’t Inc., 129 13 Cal. App. 4th 1133, 1145-46 (2005) (affirming summary judgment on a claim for sex 14 discrimination based on pregnancy where there existed no credible evidence that the employer 15 knew the employee was pregnant). If a condition giving rise to a protected classification is 16 “apparent,” or where the “plaintiff alleges that she has disclosed it to the employer, then a question 17 of the employer’s knowledge would likely preclude summary judgment.” Id. at 1145 (quoting 18 Geraci v. Moody-Tottrup, Int’l, Inc., 82 F.3d 578, 581 (3d Cir. 1996)). However, “if the 19 [condition] is not apparent and the employee has not disclosed it to her employer, she must allege 20 knowledge and present, as part of her prima facie case, evidence from which a rational jury could 21 infer that the employer knew” that she had the medical condition that she alleges she was 22 discriminated based on. Id. Because Shumaker fails to show that Defendants had any knowledge 23 of her medical condition during the relevant timeframe, she cannot establish a prima facie case for 24 discrimination. Accordingly, Defendants’ motion for summary judgment is GRANTED as to 25 Shumaker’s claim of discrimination based on her medical condition. 26 27 28 21 Case No.: 5:11-cv-05643-EJD ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT b. Shumaker and Chambers’ FEHA Retaliation Claims 1 FEHA makes it an unlawful employment practice “[f]or any employer . . . to discharge, 2 3 expel, or otherwise discriminate against any person because the person has opposed any practices 4 forbidden under this part or because the person has filed a complaint, testified, or assisted in any 5 proceeding under this part.” Cal. Gov’t Code § 12940(h). As an initial matter, Defendants challenge both Shumaker and Chambers’ prima facie case 6 of retaliation by arguing that they did not engage in any protected activity under FEHA prior to 8 suffering an adverse employment action, and therefore there is no causal connection between the 9 activity and the allegedly adverse action.6 Mot. at 14; See Cornwell, 439 F.3d at 1034-35 (a prima 10 facie case of retaliation requires a plaintiff to demonstrate: (1) a protected activity; (2) an adverse 11 United States District Court Northern District of California 7 employment action; and (3) a causal link between the two). Specifically, Defendants point out as 12 to Chambers that the HIPAA investigation and the publication of the MICC nurses’ schedules, 13 which included the fact that she was attending sexual harassment training, occurred before she 14 filed her EEOC and DFEH complaints. Id. Similarly as to Shumaker, Defendants highlight that 15 Shumaker’s administrative transfer to the night shift took place before she filed her EEOC and 16 DFEH complaints. Id. While Defendants are correct in stating that these employment actions pre-date the filing of 17 18 Shumaker and Chambers’ respective administrative complaints,7 Defendants’ argument is 19 premised on the assumption that filing these complaints was the only protected activity Plaintiffs 20 21 22 23 24 25 26 27 28 6 The instant motion does not assert a prima facie challenge to Smith’s claim of retaliation. See Mot. at 13. 7 Chambers was investigated for a HIPAA violation in October 2011 and placed on administrative leave in November 2011. Sandoval Decl. at Ex. H, 257:19-258:16, Ex. 9; Chambers Decl. ¶¶ 3638; C. Bonner Decl. at Ex 1, 205:12-206:19. Traw posted the nurses’ work schedules - including information that Chambers was attending sexual harassment training - on August 22, 2011, September 19, 2011, October 17, 2011, and November 14, 2011. FAC ¶ 75. Chambers filed EEOC and DFEH complaints 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. Shumaker received notice that she would be “administratively transferred” on January 28, 2011, but did not file EEOC and DFEH complaints until October 17, 2011. Shumaker Decl. ¶ 7, Exs. L, M; Sandoval Decl. at Ex. B, 141:15-142:3, Ex. 5. 22 Case No.: 5:11-cv-05643-EJD ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 1 allege they engaged in. See id. The court disagrees with Defendants’ characterization of 2 Plaintiffs’ claims. Drawing all reasonable inferences in their favor, the court understands 3 Shumaker and Chambers’ claims as alleging retaliation based on the activities from which their 4 respective complaints arose, not simply the act filing of the complaint itself. 5 With this in mind, Plaintiffs contend they suffered retaliation from Defendants in violation 6 of FEHA for raising concerns regarding the hiring male nurses. See Opp. at 10-11. Individually, 7 Chambers also alleges that Defendants retaliated against her for exposing what she perceived to be 8 corruption, misuse of public funds, and unethical hiring practices. Opp. at 11; see also Chambers 9 Decl. ¶ 3; Sandoval Decl. at Ex. H, 307:2-308:10 4, Ex. 11. And Shumaker asserts that Defendants retaliated against her for her union activity opposing employee layoffs. See Opp. at 11 United States District Court Northern District of California 10 10-11. The court addresses these instances below. 12 13 1. Opposition to Hiring Male Nurses and Advocacy on Behalf of Patients Both Shumaker and Chambers identify their opposition to the hiring of male nurses in the 14 MICC and their “advocacy” on behalf of their patients’ preferences for female nurses as the 15 protected activity for which they contend Defendants retaliated against them. See Opp. at 10-11. 16 However, for the purposes of a FEHA retaliation claim, opposition to a particular policy or 17 practice is generally not considered protected activity unless the opposed policy or practice was 18 proscribed under FEHA. See Cal. Gov’t Code § 12940(h) (prohibiting retaliation based on an 19 employee’s opposition to “any practices forbidden under this part …”). Plaintiffs make only 20 conclusory allegations that their “zealous” advocacy on behalf of their patients constitutes 21 protected activity and fail to present any argument or evidence as to why the hiring of male nurses 22 in the MICC constitutes a “forbidden” practice under FEHA. See Opp. at 10-11. 23 Nevertheless, a retaliation claim can still survive summary judgment when an employee complains 24 of or opposes a practice that the she reasonably believes is unlawful, even if a court later 25 determines the conduct was not actually prohibited. See, e.g., Moyo v. Gomez, 40 F.3d 982, 984 26 (9th Cir. 1994) (“It is not necessary...that the employment practice actually be unlawful; 27 28 23 Case No.: 5:11-cv-05643-EJD ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 1 opposition clause protection will be accorded whenever the opposition is based on a ‘reasonable 2 belief’ that the employer has engaged in an unlawful employment practice.”) (quoting EEOC v. 3 Crown Zellerbach Corp., 720 F.2d 1008, 1013 (9th Cir.1983)) (emphasis in original); Miller v. 4 Dep’t of Corr., 36 Cal. 4th 446, 474 (2005) (An employee is protected against retaliation if the 5 employee reasonably and in good faith believed that what he or she was opposing constituted 6 unlawful employer conduct…”). However, Plaintiffs offer nothing to suggest that they reasonably 7 believed the practice of hiring both female and male nurses in the MICC was unlawful, and the 8 court finds no basis to support such a theory here. 9 Plaintiffs’ reliance on Misericordia Hospital Medical Center v. N.L.R.B., 623 F.2d 808 (2d Cir. 1980), for the proposition that healthcare workers’ complaints regarding patient welfare 11 United States District Court Northern District of California 10 constitute protected activity is also unavailing. In Misericordia, the Second Circuit held that 12 hospital employees’ involvement in preparing a report that raised issues regarding patient welfare 13 and employee working conditions was “protected activity” for the purposes of their retaliation 14 claims against the hospital. 623 F.2d at 813. Importantly, however, the plaintiffs in Misericordia 15 filed suit under the National Labor Relations Act (“NLRA”), 29 U.S.C. §§ 151-169, which 16 includes specific protections for the rights of employees to engage in “activities for the purpose of 17 collective bargaining or other mutual aid or protection.” Id. at 813 (citing 29 U.S.C. § 157). 18 Therefore, it was not simply the action of reporting concerns about patient welfare that was 19 determinative, but rather the court’s interpretation that the action of doing so collectively was 20 within the protections contemplated by the NLRA’s provisions. Here, in contrast, Plaintiffs bring 21 their retaliation claims under FEHA and fail to explain how the hiring of male nurses is forbidden 22 thereunder, such that their opposition to this practice would constitute protected activity. 23 Summary judgment is therefore GRANTED to the extent that Plaintiffs’ claims are based on 24 Shumaker and Chambers’ opposition to the hiring of male nurses. 25 26 27 28 2. Chambers’ “Whistleblower” Activity Individually, Chambers argues that her actions in bringing to light what she viewed as 24 Case No.: 5:11-cv-05643-EJD ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT corruption, a misuse of public funds, and improper or unethical hiring practices in the MICC was 2 also protected activity under FEHA. Opp. at 11. Although Plaintiffs again do not specify in what 3 way this practice is “forbidden” under FEHA, here Chambers presents sufficient evidence to 4 establish that she reasonably believed Defendants were engaging in unlawful conduct. See 5 Moyo, 40 F.3d at 984; Miller, 36 Cal. 4th at 473. The record indicates that on or about February 6 11, 2011, Chambers contacted Johnson and informed her of what she considered to be corruption 7 and unlawful hiring practices occurring in the MICC. Chambers Decl. ¶ 3, Ex. 1; Sandoval Decl. 8 at Ex. H, 307:2-4, Ex. 11. In her email, Chambers made reference to specific practices that she 9 perceived as improper, including that Traw hired Mikami without publicly posting the position 10 and sent him to a paid breastfeeding class with public grant funding. Sandoval Decl. at Ex. H, 11 United States District Court Northern District of California 1 307:5-308:10, Ex. 11. 12 Viewing the evidence in the light most favorable to Plaintiffs, Chambers demonstrated that 13 she had a reasonable belief Defendants’ were engaging in unlawful and unethical practices. Even 14 if Chambers’ belief was later determined to be incorrect, her retaliation claim is actionable so long 15 as her mistaken belief was made in good faith. Moyo, 40 F.3d at 984. Finding no proof of bad 16 faith in the record, the court concludes that Chambers so-called “whistleblower activity” is 17 protected under FEHA. Accordingly, Chambers has sufficiently established a prima facie case of 18 retaliation, and the burden now shifts to Defendants to articulate legitimate, nondiscriminatory 19 reasons for taking any adverse employment action against her. 20 21 3. Shumaker’s Union Activities Shumaker also alleges retaliation based on, or in relation to, her union activities – namely, 22 her “opposition to Defendants and the Board of Supervisor’s reduction in Registered Nursing 23 staff.” Opp. at 10; FAC ¶¶ 58-59. Defendants argue that Shumaker’s union activities are not a 24 protected activity under FEHA and are preempted by the NLRA. Mot. at 14. 25 Section 7 of the NLRA protects employees’ rights to self-organize, to join, form, or assist 26 labor unions, and to “engage in other concerted activities for the purpose of collective bargaining 27 28 25 Case No.: 5:11-cv-05643-EJD ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 1 or other mutual aid or protection ....” 29 U.S.C. § 157. Section 8 prohibits employers from 2 restraining or otherwise interfering with an employee’s exercise of those rights. 29 U.S.C. § 158. 3 While the NLRA contains no express preemption provision, the Supreme Court mandates that 4 both state and federal courts “must defer to the exclusive competence of the National Labor 5 Relations Board in cases in which the activity that is the subject matter of the litigation is arguably 6 subject to the protections of [section] 7 or the prohibitions of [section] 8 of the [NLRA].” Linn v. 7 Plant Guard Workers, 383 U.S. 53, 60 (1966); San Diego Bldg. Trades Council, Millmen’s Union, 8 Local 2020 v. Garmon, 359 U.S. 236, 244-45 (1959). For an action to be considered “within the 9 ambit of the NLRA, the action must be ‘concerted,’ that is, it must be taken with or on behalf of other employees, and not solely by and on behalf of the . . . employee [herself]. ” Mayes v. Kaiser 11 United States District Court Northern District of California 10 Found. Hosps., 917 F. Supp. 2d 1074, 1082 (E.D. Cal. 2013) (quoting Natl. Labor Relations Bd. v. 12 Yurosek, 53 F.3d 261, 264 (9th Cir. 1995)). 13 Here, although Shumaker argues that she was acting as a “private citizen,” her actions 14 reflect a concerted effort on behalf of the union to protect her and her fellow nurses from 15 impending layoffs. See Yurosek, 53 F.3d at 261, 266 (“concerted employee activities are 16 protected when the activities can reasonably be seen as affecting the terms or conditions of 17 employment”). Indeed, Plaintiffs’ expressly state that as part of Shumaker’s continuing work as 18 the RNPA union representative, she “was vocal in support of saving jobs for her fellow nurses,” 19 and “[a]s a union leader,” she participated in discussions with other employees about patients’ 20 preference for female nurses and conveyed their concerns to management. FAC ¶¶ 57-59 21 (emphasis added). Furthermore, Plaintiffs’ assert that these actions were, in part, the reason 22 Defendants took retaliatory action against her, and thus the basis of her FEHA retaliation claim. 23 See, e.g., Opp. at 10 (arguing that Defendants “retaliat[ed] against Shumaker for her union 24 activities”) (emphasis added); FAC ¶ 59 (alleging that “[t]he county and Defendant Barbara Traw 25 took adverse action against Ms. Shumaker because she spoke out for patients’ care and for [her] 26 union activities”) (emphasis added); see also Sandoval Decl. at Ex. B, 124:2-125:20. 27 28 26 Case No.: 5:11-cv-05643-EJD ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 1 It is apparent from the record that much of Shumaker’s union-related activity was 2 undertaken to help the organization and to protect the jobs of union nurses. Shumaker Decl. ¶¶ 4- 3 6; Sandoval Decl. at Ex. B, 123:5-124:14; 127:16-128:18. These efforts are fairly characterized 4 falling within the purview of Section 7, which protects an employee’s right to “assist labor 5 organizations” and to “engage in other concerted activities for the purpose of …mutual aid or 6 protection.” 29 U.S.C. § 157; Garmon, 359 U.S. at 244-45. And because Shumaker’s subsequent 7 transfer to the night shift could be considered an adverse employment “subject to the prohibitions 8 of Section 8,” this dispute is properly governed by the NLRA. Linn, 383 U.S. at 60; see California 9 Acrylic Indus., Inc. v. N.L.R.B, 150 F.3d 1095, 1099 (9th Cir. 1998) (stating that employer violates § 8(a)(1) by “engaging in activity that tends to chill an employee’s freedom to exercise 11 United States District Court Northern District of California 10 [her] section 7 rights”). Shumaker’s retaliation claim under FEHA is therefore preempted by the 12 NLRA to the extent that it is based on her union activities. Garmon, 359 U.S. 236, 244-45 (1959) 13 (holding that the NLRA preempts state law “[w]hen it is clear or may be fairly assumed that the 14 activities that a State purports to regulate are protected by [section] 7 ... or constitute an unfair 15 labor practice under [section] 8.”). 16 ii. Legitimate, Non-Discriminatory Reasons for Adverse Action and Pretext 17 Turning to Plaintiffs’ remaining allegations, Defendants do not challenge Plaintiffs’ prima 18 facie case, but instead assert that there were legitimate, non-discriminatory reasons for the adverse 19 employment actions identified by Plaintiffs. See Mot. at 17-20; Avila, 165 Cal. App. 4th at 1247- 20 48. Legitimate reasons are reasons that are facially unrelated to prohibited bias, which, if true, 21 preclude a finding of discrimination. Guz, 24 Cal. 4th at 358; see, e.g., McCoy v. WGN 22 Continental Broadcasting Co., 957 F.2d 368, 373 (7th Cir. 1992) (explaining that the ultimate 23 issue was whether the employer “honestly believed in the reasons it offer[ed].”). In order for 24 Defendants to meet their burden, they must “clearly set forth, through the introduction of 25 admissible evidence,’ reasons for [their] actions which, if believed by the trier of fact, would 26 support a finding that unlawful discrimination was not the cause of the employment action.” St. 27 28 27 Case No.: 5:11-cv-05643-EJD ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 1 Mary’s Honor Center v. Hicks, 509 U.S. 502, 507 (1993) (quoting Burdine, 450 U.S. at 254-55) 2 (emphasis in original); see also Guz, 24 Cal. 4th at 355-56. If Defendants satisfy this requirement, the burden shifts back to Plaintiffs to show that 4 Defendants’ proffered non-discriminatory reasons are actually pretext for discrimination. “A 5 plaintiff can show pretext directly, by showing that discrimination more likely motivated the 6 employer, or indirectly, by showing that the employer’s explanation is unworthy of credence.” 7 Vasquez v. Cty. of Los Angeles, 349 F.3d 634, 641 (9th Cir. 2003), as amended (Jan. 2, 2004). 8 When only circumstantial evidence of pretext is available, such evidence must be “specific” and 9 “substantial.” Wallis v. J.R. Simplot Co., 26 F.3d 885, 890 (9th Cir. 1994); see also Godwin v. 10 Hunt Wesson, Inc., 150 F.3d 1217, 1220 (9th Cir. 1998) (holding that a plaintiff “must produce 11 United States District Court Northern District of California 3 evidence in addition to that which was sufficient for her prima facie case in order to rebut the 12 defendant’s showing” of non-discriminatory purpose). A showing that Defendants treated other 13 similarly-situated employees outside of Plaintiffs’ class more favorably “would be probative of 14 pretext.” Vasquez, 349 F.3d at 641. 15 While it is not entirely clear which actions Plaintiffs specifically contend form the basis of 16 their respective discrimination and retaliation claims, by way of summary Plaintiffs’ allege that 17 they suffered adverse employment actions in the form of (1) discriminatory patient assignments; 18 (2) the publication of nurses’ schedules showing that Smith and Chambers were attending a sexual 19 harassment class; (3) “sham” HIPAA investigations into Smith and Chambers, (4) Shumaker’s 20 administrative transfer to the night shift (5) the denial of Chambers’ request to change her 21 scheduled day off; and (6) various write-ups, including “Unfavorable Reports,” “Written 22 Counselings,” and negative performance evaluations. Opp. at 4-6, 16, 18-20. Because the facts 23 and circumstances surrounding these actions vary, each will be addressed in turn. 24 25 26 27 28 a. Smith and Chambers’ Patient Assignments Smith and Chambers contend that Ablan created patient assignments that favored FilipinoAmerican nurses, thereby discriminating against them. FAC ¶¶ 36, 69. Defendants do not 28 Case No.: 5:11-cv-05643-EJD ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 1 challenge Plaintiffs’ prima facie case, but rather assert that there were legitimate, non- 2 discriminatory reasons that Smith and Chambers might have received difficult patient 3 assignments. Defendants submit Smith’s undisputed testimony admitting that patient assignments 4 can be complex, and describing how assignments may be based on a variety of factors, including 5 the number of patients in the MICC, the acuity level of the patients, and/or how many nurses were 6 available at a given time. Sandoval Decl. at Ex. F, 33:22-34:25; 37:5-21. Based on this evidence, 7 Defendants sufficiently establish that distinct, non-discriminatory reasons for the particular patient 8 assignments. As a result, the burden now shifts to Plaintiffs to offer “specific” and “substantial” 10 evidence that Defendants’ stated nondiscriminatory reasons are untrue or pretextual. See Hersant 11 United States District Court Northern District of California 9 v. Dep’t of Soc. Servs., 57 Cal. App. 4th 997, 1004-1005 (1997). Although Plaintiffs claim to 12 “have overwhelming evidence that the patient assignments by Ablan favor Filipino-American 13 Nurses,” the only evidence they offer that directly supports this accusation is the declaration 14 testimony of two hospital employees - Norma Cedillo and Kathy Motiei - who state that they 15 observed Ablan give unfair assignments to non-Filipino nurses. See Declaration of Norma Cedillo 16 (“Cedillo Decl.”) ¶¶ 4, 5, 9, Dkt. No. 59-1; Declaration of Kathy Motiei (“Motiei Decl.”) ¶ 13, 17 Dkt. No. 59-4. However, the only specific example offered by Cedillo is that on one occasion, she 18 witnessed Ablan give Smith a “high acuity” patient, while “another Filipino nurse had a very low 19 acuity assignment.” Cedillo Decl. ¶ 4. The remainder of Cedillo’s declaration provides only 20 general or conclusory allegations, such as “[f]avoritism and preferential treatment are common 21 practices in the MICC unit, especially practiced by ANM Anabelle Ablan.” Id. ¶ 5. Similarly, 22 Motiei’s declaration states that when she and another nurse both returned from being sick, Ablan 23 gave the “more favorable assignments to the Filipina-American nurse.” Motiei Decl. ¶ 13. Motiei 24 says that she observed Ablan “consistently giving more difficult assignments with higher acuity 25 patients to other non-Filipina nurses, including Dagmar Chambers and Gina Smith,” but provides 26 no other specific examples of such behavior. Id. 27 28 29 Case No.: 5:11-cv-05643-EJD ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 1 Plaintiffs’ evidence establishes at least two specific occasions in which a non-Filipino- 2 American nurse received a more difficult patient assignment than a Filipino-American nurse. 3 However, given that the difficulty of patient assignments varies regularly based on the 4 circumstances, it is to be expected that, on any given day, someone will end up with a “more 5 difficult” assignment that someone else. The fact that on these two instances it happened to be a 6 non-Filipino-America nurse is insufficient, without more, to show pretext. Plaintiffs offer neither 7 specific nor substantial evidence that Defendants’ proffered reasons for the patient assignments 8 were pretext for racial discrimination. See Wallis, 26 F.3d at 890; Godwin, 150 F.3d at 1220. 9 Therefore, to the extent that Smith and Chambers’ discrimination claims are based on allegedly 10 discriminatory patient assignments, Defendants’ motion for summary judgment is GRANTED. United States District Court Northern District of California 11 12 13 b. Publication of Schedules Showing Smith and Chambers’ Attendance in Sexual Harassment Training Smith and Chambers also allege that Traw discriminated and retaliated against them by 14 posting the nurses’ schedules, which included information showing that they were required to 15 attend mandatory sexual harassment trainings. Defendants do not contest Smith or Chambers’ 16 prima facie case of discrimination, or Smith’s prima facie case of retaliation. Additionally, the 17 court found that Chambers’ established a prima facie case of retaliation to the extent that the claim 18 was based on her attempt to expose corruption and unlawful hiring practices. Moving to the 19 burden shifting analysis, Defendants offer admissible evidence that Traw routinely posted the 20 schedules in this manner, including which trainings nurses were attending, to help remind the 21 nurses about the dates and times of the training they were attending. Sandoval Decl. at Ex. A, 22 172:23-173:9. Accordingly, Defendants met their burden to show a legitimate, non-discriminatory 23 reason for including Smith and Chambers’ sexual harassment training on the nurses’ posted 24 schedule and the burden shifts to Plaintiffs to show pretext. 25 26 27 28 In response, Plaintiffs assert that Smith and Chambers’ attendance in the sexual harassment training was “part of their discipline,” and contend there was “no legitimate reason for publishing 30 Case No.: 5:11-cv-05643-EJD ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT confidential personnel matters to those who do not need to know.” Opp. at 18. However, 2 Plaintiffs fail to provide any evidence showing what “confidential personnel matters” were 3 actually disclosed. See id. The only evidence Plaintiffs offer is Traw’s testimony that Smith and 4 Chambers’ attendance in the class itself was part of their discipline. Bonner Decl. at Ex. 1, 5 168:19-169:12. Whether Traw had a legitimate basis for disciplining Smith and Chambers is a 6 separate issue. But as to the publication of their attendance in training course, Smith herself 7 testified that the nurses’ schedules routinely included the name of the training and the name of any 8 nurses who were attending. Sandoval Decl. at Ex. F, 243:13-23. There is no evidence that Smith 9 and Chambers’ attendance was singled out or identified as part of a disciplinary process. Rather, 10 the undisputed testimony in the record indicates that posting this information was consistent with 11 United States District Court Northern District of California 1 the normal, routine practice in the MICC. See id.; Bonner Decl. at Ex. 1, 168:19-169:12; 12 Sandoval Decl. at Ex. A, 172:23-173:9. Plaintiffs therefore failed to show that Defendants’ stated 13 reasons for Traw’s actions were pretextual. Accordingly, to the extent that Smith and Chambers’ 14 discrimination and retaliation claims rely on the publication of the training schedules, Defendants’ 15 motion for summary judgment is GRANTED. 16 17 c. HIPAA Investigations Plaintiffs further allege that the HIPAA investigations of Smith and Chambers were 18 “shams” constituting adverse employment actions. See FAC ¶¶ 23, 24, 41, 72-77. Defendants 19 assert that in both cases, Traw and Hughes had legitimate, non-discriminatory reasons for their 20 actions. Mot. at 19. With respect to Smith, Hughes testified that the investigation was in response 21 to allegations that Smith brought copies of her work assignments containing private patient 22 information to her meeting with the EOD. Sandoval Decl. at Ex. D, 201:4-202:8; 208:12-19; 23 209:20-210:19; see also Ex. A, 429:1-430:20. With respect to Chambers, Traw testified that 24 another employee identified Chambers as the source of a “tip” to a San Jose Mercury News 25 reporter, disclosing confidential patient information regarding the adoption of a baby in the MICC. 26 Id. at Ex. A, 192:4-15; 201:16-204:17; see also Ex. D, 304:20-306:16. Based on this evidence, 27 28 31 Case No.: 5:11-cv-05643-EJD ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 1 Defendants have sufficiently set forth legitimate, non-discriminatory reasons for initiating HIPAA 2 investigations with respect to both Smith and Chambers. Plaintiffs make no argument of any kind with respect to Smith and instead focus the 3 4 entirety of their HIPAA discussion on Chambers. See Opp. at 19-22. Consequently, the court 5 finds that summary judgment is appropriate on this issue as to Smith. In contrast, Plaintiffs provide ample evidence undermining the legitimacy of Defendants’ 6 proffered basis for the HIPAA investigation of Chambers. See id. In her deposition, Hughes 8 admits that (1) Chambers never took care of the baby being adopted; (2) Chambers never met the 9 adoptive mother; (3) Chambers was not working the weekend the mother and baby were at the 10 hospital; and (4) Chambers did not know the reporter, Steve Herhold. Bonner Decl. at Ex. 7,8 11 United States District Court Northern District of California 7 151:9-25; 152:1-6. Plaintiffs also cite Hughes’ testimony that the employee who identified 12 Chambers as the source of the disclosure, Debbie Williams, made confusing and inconsistent 13 statements regarding whether Chambers actually admitted to contacting Mr. Herhold. Id. at Ex. 7, 14 145:11-146:22. Finally, Plaintiffs offer evidence that Traw admitted to threatening Williams that 15 she could be accused of being source of the disclosure herself if she did not sign a written 16 “attestation” stating that it was Chambers who contacted the reporter. Id. at Ex. 1, 205:12-206:19. Chambers has offered admissible evidence that calls into question the trustworthiness of 17 18 Defendants’ explanation for the HIPAA investigation. Accordingly, the court finds that Chambers 19 met her burden to show pretext. See Chuang v. Univ. of Cal. Davis, Bd. of Trustees, 225 F.3d 20 1115, 1127 (9th Cir. 2000) (holding that a plaintiff can prove pretext indirectly by showing that 21 the employer’s proffered explanation is “unworthy of credence” because it is internally 22 inconsistent or otherwise not believable); Vasquez, 349 F.3d at 641 (same). The court disagrees 23 with Defendants that Plaintiffs failed to sufficiently refute Hughes’ “honest belief” that Chambers 24 provided the reporter with confidential information. Reply at 11. Plaintiffs identify specific 25 8 26 27 28 Plaintiffs’ cite Hughes’ deposition testimony as Exhibit 8, which is incorrect. Hughes’ deposition testimony is actually Exhibit 7 to the C. Bonner Declaration, filed under seal (Dkt. No. 73). 32 Case No.: 5:11-cv-05643-EJD ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 1 factual discrepancies in Defendants’ evidence, as well as admissions by Hughes and Traw 2 suggesting the HIPAA investigation was suspect and the justifications offered for it unreliable. At 3 a minimum, the court finds there is a triable issue of fact as to whether the HIPAA investigation 4 into Chambers was for a legitimate reason. 5 Based on the foregoing, to the extent that the underlying discrimination and retaliation 6 claims arise from the HIPAA investigations, Defendants’ motion for summary judgment is 7 GANTED as to Smith and DENIED as to Chambers. 8 9 d. Denial of Chambers’ Schedule Change Request Individually, Chambers further asserts that on November 11, 2011, Traw denied - or revoked - her previously approved request to modify her work schedule to take an extra day of 11 United States District Court Northern District of California 10 vacation for Thanksgiving. FAC ¶ 77. Plaintiffs contend that this “was a deliberate act of 12 retaliation, designed to interfere with Mrs. Chambers’ planned vacation schedule, and was 13 designed in retaliation for the fake HIPAA investigation.” FAC ¶ 77. Defendants counter that 14 Traw denied the request because she “believed it to be unsafe for nurses to work more than eight 15 days in a row.” Traw Decl. ¶ 6. 16 Having provided a legitimate, non-discriminatory reason for the denial, the burden now 17 shifts to Plaintiffs to show evidence of pretext. The record contains admissible evidence that, 18 prior to November 2011, Chambers frequently worked more than eight days in a row. Chambers 19 Decl. ¶ 49. Specifically, Chambers proffers that in the month prior to the denial, she had worked 20 ten days in a row between August 30, 2011 and September 8, 2011, and subsequently has 21 continued to work for as many as ten days in a row. Id. Additionally, there is no evidence of an 22 official policy change in the record that would otherwise explain these differences in scheduling. 23 Plaintiffs’ evidence casts doubt on the viability and trustworthiness of Defendants’ stated reasons 24 for the denial or revocation of Chambers’ approved modification to her work schedule. See 25 Chuang, 225 F.3d at 1127; Vasquez, 349 F.3d at 641. 26 27 28 Based on the foregoing, the court finds that there is a triable issue of fact as to whether 33 Case No.: 5:11-cv-05643-EJD ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 1 Defendants’ denial of Chambers requested days off was for a legitimate, non-discriminatory 2 reason. Accordingly, to the extent that Shumaker’s claim of retaliation is based on Defendants’ 3 denial of requested schedule change, Defendants’ motion for summary judgment is DENIED. e. Shumaker’s Administrative Transfer to the Night Shift 4 Shumaker’s remaining Title VII and FEHA claims allege that she suffered disparate 6 treatment on account of her age, race, and gender when she was administratively transferred to the 7 night shift.9 Here, Defendants set forth admissible evidence that Shumaker’s transfer was 8 necessary in order to prevent the MICC from becoming understaffed following the February 2011 9 layoffs. Sandoval Decl. at Ex. B, 534:20-537:11, Ex. 67; 538:2-539:7, Ex. 68; 540:12-18, Ex. 69. 10 Defendants explain that the two nurses laid off during the process were both on the night shift. As 11 United States District Court Northern District of California 5 a result, and pursuant to the RNPA Agreement’s layoff process, the least senior 0.5 coded 12 position(s) were to be transferred to night shift in order to provide sufficient nursing coverage in 13 the unit. 10 Id. Because Shumaker occupied the lowest code 0.5 and had the least seniority on the 14 evening shift, she was transferred to the night shift. Sandoval Decl. at Ex. B, 534:20-537:11, Ex. 15 67; 538:2-539:7, Ex. 68; 540:12-18, Ex. 69. 16 Although Shumaker contends that the County could have accommodated her by giving her 17 one of the positions occupied by the younger and less senior male nurses, Defendants explain that 18 these assignments were “extra help” positions, and that the MICC did not have any vacant 0.5 19 coded positions available.11 Id. at Ex. A, 536:17-537:11. Defendants further state that the County 20 could not just create a “temporary fix” position for Shumaker in order to accommodate her until a 21 22 23 24 25 26 27 28 9 The court previously granted summary judgment as to Shumaker’s claims for (1) discrimination based on medical condition; (2) retaliation based on her opposition to hiring male nurses; and (3) retaliation based on her union activity. 10 Sections 5.4-5.5 of the RNPA Agreement govern the process through which the hospital may undertake necessary layoffs, specifying that the “order of layoff shall be based on seniority as applied to each classification.” Cox Decl. ¶ 7, Ex. A, § 5.4 at 8. 11 Traw testified that Shumaker could not replace “extra help” or “as needed” nurses because her 0.5 coded position required her to work five days a week in a two-week period, while the “extra help” nurses had no such requirement. Id. at Ex. A, 536:17-537:11. 34 Case No.: 5:11-cv-05643-EJD ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 1 coded position became available. C. Bonner Decl. at Ex. 9, 84:3-86:6, Dkt. No. 63-9. Defendants 2 also provided evidence that after Shumaker went out on medical leave and requested to be 3 transferred to either a day or evening shift, Mark Cursi, the Coordinator of Programs for the 4 Disabled for the EOD, requested that the Nurse Recruiter for the County search for any open 0.5 5 coded nurse positions anywhere in the hospital. Id. at Ex. 9, 58:2-60:9. However, Cursi testified 6 that there were no open positions and Shumaker’s request could not be accommodated at that time. 7 Id. at Ex. 9, 58:2-60:9; 87:21-88:11. Defendants’ proffered evidence sets forth legitimate, non- 8 discriminatory bases for Shumaker’s alleged adverse employment actions that are, on their face, 9 unrelated to her race, gender, or age. Accordingly, the burden now shifts to Shumaker to show 10 evidence of pretext. United States District Court Northern District of California 11 Shumaker alleges that Defendants’ stated reasons for the administrative transfer are pretext 12 for discrimination based on the following assertions: (1) Traw hired three new extra help nurses in 13 February 2011 and all were men, including Mikami; (2) the positions were not publicly posted; (3) 14 Mikami was not the most qualified person for the job; (4) there were “more than enough shifts to 15 give Shumaker a temporary position,” such as an “extra help” nurse; and (5) Defendants gave 16 Traw a temporary position accommodation when her code was eliminated. See Opp. at 23. 17 However, as discussed above, the evidence presented by Defendants highlights the 18 distinction between Shumaker’s coded position and the “extra help” positions for which the male 19 nurses were hired. Sandoval Decl. at Ex. A, 82:2-83:24; Cox Decl. ¶ 6. The record reflects that 20 Shumaker was not similarly situated to either the male “extra help” hires or the other, more senior 21 0.5 coded nurse who did not get transferred. See id.; see also Vasquez, 349 F.3d at 641. And 22 although Shumaker seems to suggest that she should have been given one of the “extra help” 23 positions filled by a male nurse as an accommodation, she testified that Mark Cursi had discussed 24 this option with her and she stated that she “did not think it was fair,” expressing an interest in 25 maintaining her coded position. Reply Declaration of Beth Arnese (“Arnese Decl.”), at Ex. E, 26 240:18-241:2. 27 28 35 Case No.: 5:11-cv-05643-EJD ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 1 Additionally, while it is true that the County created an interim assignment for Traw after 2 her position had been removed in 2007, Traw is also not similarly situated to Shumaker. See C. 3 Bonner Decl. at Ex. 1, 36:9-38:18; see also Vasquez, 349 F.3d at 641. The fact that the County 4 was able to create or place Traw in a temporary position as a Nurse Manager “for a couple 5 months” is distinct from their ability to do so for a 0.5 coded nurse like Shumaker. This is 6 insufficient to show pretext. Moreover, Shumaker makes no reference to age or race in her 7 argument, and cites no evidence to support a claim of discrimination based on these traits. 8 Shumaker’s assertions provide neither “specific” nor “substantial” evidence that 9 Defendants’ stated reasons for her administrative transfer are actually pretext for discrimination. See Wallis, 26 F.3d at 890; Godwin, 150 F.3d at 1220-21. Conversely, Defendants offer evidence 11 United States District Court Northern District of California 10 of the specific and formalized process by which Shumaker was selected for transfer and explain 12 why the County could not accommodate Shumaker with a different shift until a 0.5 code became 13 available. Accordingly, the court hereby GRANTS summary judgment in favor of Defendants as 14 to Shumaker’s discrimination claims based on age, gender and race. 15 16 f. Unfavorable Reports and Written Counseling Smith and Chambers claim retaliation based on the Employee Unfavorable Reports and 17 written counseling issued to them by Traw on various dates. Defendants argue there existed 18 legitimate, non-retaliatory reasons for the Unfavorable Reports. 19 Here, the evidence shows that Traw issued the Unfavorable Reports to Smith and 20 Chambers based on perceived violations of the anti-discrimination policy. Indeed, as noted, the 21 report issued to Smith states that her comments to Dr. Byrne were “a violation of the County of 22 Santa Clara’s Policy Against Discrimination, Harassment, and Retaliation.” Smith Decl., Ex. 2. 23 In addition, Traw testified the report was issued to Smith based on the conclusion reached by the 24 “Equal Opportunity Division” and “Labor Relations” that Smith’s comment about male nurses 25 violated the County’s anti-discrimination policy. Sandoval Decl. at Ex A, 378:35-379:11. 26 Similarly, Traw testified she issued an Employee Unfavorable Report to Chambers based on a 27 28 36 Case No.: 5:11-cv-05643-EJD ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 1 decision from the “upper administrative level” and “Labor Relations” that a statement Chambers 2 made about not helping male nurses “violates the County policy.” Id. at Ex. A, 112:7-11; 127:18- 3 128:3. The evidence also shows that Traw issued the written counseling to Smith on June 8, 2011, 4 5 based on information she received that on May 17, 2011, Smith interrupted the charge nurse three 6 times, and that Smith had contributed to an “unharmonious work environment” by comparing her 7 work assignments to other nurses, acting unprofessionally, refusing to take breaks, and raising her 8 voice to colleagues. Traw Decl. ¶ 4; Ex. B. In addition, the record contains evidence showing that Traw gave Chambers the written 9 counseling in September, 2012, based on information that Chambers mishandled the care of a 11 United States District Court Northern District of California 10 patient. The written counseling itself states that Chambers “left the floor” while a patient was 12 hemorrhaging and mislabeled a blood draw. Traw Decl., at Ex. D. Chambers also admitted that 13 she mislabeled the blood draw. Sandoval Decl. at Ex H, 348:1-349:1.12 On this record, Defendants have successfully rebutted any inference of discrimination or 14 15 retaliation with legitimate reasons for the adverse employment actions. Thus, the court finds they 16 have satisfied their burden on this level of the analysis. 17 The burden now shifts back to Plaintiffs to demonstrate a genuine issue of material fact as 18 to whether the reasons advanced by Defendants are pretext for retaliation. Brooks, 229 F.3d 917, 19 928 (9th Cir. 2000). Plaintiffs have not produced evidence on which a reasonable jury could find 20 21 22 23 24 25 26 27 28 12 In their briefing, the parties also address Chambers’ 2011 performance review in which she was given a “standard” rating. Plaintiffs, however, failed to include an allegation concerning the 2011 review in the Complaint and, while they respond to Defendants’ argument, Plaintiffs did not discuss it in their Opposition in connection with any of Chambers’ causes of action for discrimination or retaliation. Furthermore, Plaintiffs failed to cite evidence pertaining to the 2011 review anywhere in the opposition. Accordingly, the court concludes that Plaintiffs failed to meet their burden to properly raise the 2011 review as a basis for any cause of action. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1985) (holding that in response to a motion for summary judgment, the nonmoving party “must come forward with ‘specific facts showing that there is a genuine issue for trial’”); Carmen v. San Francuisco Unified Sch. Dist., 237 F.3d 1026, 1030 (9th Cir. 2001) (“[T]he district court may limit its review to the documents submitted for the purposes of summary judgment and those parts of the record specifically referenced therein.”). 37 Case No.: 5:11-cv-05643-EJD ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 1 that Defendants’ proffered reasons are pretext. In summary, Plaintiffs argue that Traw’s decisions 2 to issue the Employee Unfavorable Reports and written counseling were based on false 3 information or on statements that Smith and Chambers deny making. But this argument aside, 4 they offer no evidence outside of their own speculation that Traw did not honestly believe that the 5 conduct for which Smith and Chambers were disciplined constituted violations of County policy, 6 in light of what Traw was told by other nurses, the “Equal Opportunity Division,” “Labor 7 Relations,” and “upper administrative level.” Sandoval Decl. at Ex. A, 112:7-11; 127:18-128:3; 8 see Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1062 (9th Cir. 2002) (holding that pretext 9 is not shown if “‘an employer honestly believed its reason for its actions, even if its reason is ‘foolish or trivial or even baseless’”). And although they take issue with Traw’s investigations, 11 United States District Court Northern District of California 10 whether or not they were sufficient or flawed is irrelevant in the absence of any evidence showing 12 Traw doubted the information contained in the reports and counseling. See id.; see also Vallimont 13 v. Chevron Energy Tech. Co., 434 Fed. Appx. 597, 599 (9th Cir. 2011) (“[E]ven if Gallacher’s 14 investigation were flawed, the record is void of any indication that Hedges lacked a sincere belief 15 in her findings.”); Smith v. Gardiner, 362 Fed. Appx. 822, 823 (9th Cir. 2010) (“It is irrelevant 16 that Smith . . . states the person who reported that story to Goulet was lying, or that Goulet did not 17 conduct an investigation before firing Smith. The inquiry is whether there was evidence from 18 which a fact-finder could infer that Goulet and Par did not truly believe the proffered reason for 19 the termination.”). In the absence of sufficient evidence to establish pretext, Defendants’ motion for summary 20 21 judgment is GRANTED as to the retaliation claims of Smith and Chambers to the extent they are 22 based on the Unfavorable Reports and written counseling. 23 24 D. Disparate Impact In the fifth, seventh and eighth causes of action, Plaintiffs allege the County’s employment 25 practices had an adverse impact in violation of Title VII and FEHA. In response, Defendants 26 argue that Plaintiffs cannot support these claims with admissible evidence. 27 28 38 Case No.: 5:11-cv-05643-EJD ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 1 Disparate impact claims challenge “employment practices that are facially neutral in their 2 treatment of different groups but that in fact fall more harshly on one group than another and 3 cannot be justified by business necessity.” Raytheon Co. v. Hernandez, 540 U.S. 44, 52 (2003). 4 Because such claims are subject to the same burden-shifting framework as other discrimination 5 claims, a plaintiff must first make out a prima facie case by showing proof of (1) the occurrence of 6 certain outwardly neutral employment practices, and (2) a significantly adverse or disproportionate 7 impact on persons of a particular group produced by the employer’s facially neutral acts or 8 practices. Pottenger v. Potlatch Corp., 329 F.3d 740, 749 (9th Cir. 2003); The Comm. Concerning 9 Cmty. Improvement v. City of Modesto, 583 F.3d 690, 711 (9th Cir. 2009). “A plaintiff establishes a prima facie case of disparate impact by showing a significant disparate impact on a 11 United States District Court Northern District of California 10 protected class caused by a specific, identified, employment practice or selection criterion.” Stout 12 v. Potter, 276 F.3d 1118, 1121 (9th Cir. 2002). 13 Plaintiffs have not satisfied their initial burden to show a prima facie case of disparate 14 impact. Though they claim to have “overwhelming evidence that the patient assignments . . . 15 favor Filipino-American nurses” and that Traw and Alban “do not treat nurses in the MICC, 16 including Chambers, Smith and Shumaker and several others fairly,” the declarations they cite in 17 support of that argument do not identify a specific, facially neutral employment practice. See 18 Opp. at 25. Instead, all that is described by the declarations is the manner by which one employee, 19 Alban, is perceived to have treated nurses assigned to the MICC. See id. 20 Nor have Plaintiffs provided any evidence sufficient to show a causal relationship between 21 a qualifying employment practice and some adverse impact on a protected class. “[T]he focus in a 22 disparate impact case is ‘on statistical disparities, rather than specific incidents, and on competing 23 explanations for those disparities.’” Rose v. Wells Fargo & Co., 902 F.2d 1417, 1424 (9th Cir. 24 1990) (quoting Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 986 (1988)). Again, the 25 evidence provided by Plaintiffs is limited solely to the alleged mistreatment of certain nurses 26 rather than on an overall disproportionate impact on a particular protected class. As such, even if 27 28 39 Case No.: 5:11-cv-05643-EJD ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 1 Plaintiffs had successfully identified a specific policy, their showing is nonetheless more akin to a 2 description of “specific incidents” than a demonstration of disproportionate impact on a protected 3 group. Since Plaintiffs have failed to establish a prima facie case for their disparate impact causes 4 5 of action, Defendants’ motion for summary judgment is GRANTED as to the fifth, seventh and 6 eighth causes of action. 7 8 9 E. Negligent Hiring, Training and Supervision Plaintiffs’ Tenth Cause of Action alleges negligent hiring, training, supervision, and retention against all Defendants pursuant to 42 U.S.C. § 1983. FAC ¶¶ 126-131. State entities may not be held liable under § 1983, “unless a policy, practice, or custom of the entity can be 11 United States District Court Northern District of California 10 shown to be a moving force behind a violation of constitutional rights.” Dougherty v. City of 12 Covina, 654 F.3d 892, 900 (9th Cir. 2011). A “failure to train” or “failure to supervise” theory 13 may serve as the basis for liability under § 1983 only where the failure amounts to a policy of 14 “deliberate indifference” as to the rights of the persons with whom municipal actors come into 15 contact. City of Canton, Ohio v. Harris, 489 U.S. 378, 387-88 (1989). A practice constitutes a 16 policy of deliberate indifference when, “in light of the duties assigned to specific officers or 17 employees[,] the need for more or different training is so obvious, and the inadequacy so likely to 18 result in the violation of constitutional rights, that the policymakers of the city can reasonably be 19 said to have been deliberately indifferent to the need.” Id. at 390. 20 This means that to prevail on a failure to train claim against a municipality, a plaintiff must 21 “demonstrate a “conscious” or “deliberate” choice on the part of a municipality.” Price v. Sery, 22 513 F.3d 962, 973 (9th Cir. 2008). The same standard applies with respect to claims made against 23 municipal officers or supervisors in their individual capacity. Flores v. Cty. of Los Angeles, 758 24 F.3d 1154, 1158-59 (9th Cir. 2014); see also Bd. of Cty. Comm’rs of Bryan Cty., Okl. v. Brown, 25 520 U.S. 397, 410 (1997) (explaining that a plaintiff must offer “proof that a municipal actor 26 disregarded a known or obvious consequence of his action.”); Davis v. City of Ellensburg, 869 27 28 40 Case No.: 5:11-cv-05643-EJD ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 1 F.2d 1230, 1235 (9th Cir. 1989) (holding that the “mere negligence” of a state official is 2 insufficient to confer liability). Additionally, the inadequacy of training or supervision complained of must be causally 3 4 connected to the ultimate constitutional injury alleged. See City of Canton, 489 U.S. at 391. That 5 is, for liability to arise, a plaintiff must show (1) that she suffered a violation of her constitutional 6 rights; (2) that the alleged deficiency in training actually caused the constitutional violation at 7 issue; and (3) that the violation “would have been avoided had the employees been properly 8 trained.” Id. at 389–91. Plaintiffs argue that they have “overwhelming evidence that Traw does not have the 9 required skills to be an effective nurse or nurse manager.” Opp. at 25. In support of this, 11 United States District Court Northern District of California 10 Plaintiffs cite to Traw’s deposition testimony where she states that she had no training on what 12 due process is, what “protected activity” is, or whether public employees have the right to speak 13 out on matters of public concern.13 Id.; Bonner Decl. at Ex. 2, 227:12- 228:20; 360:6-23, 380:21- 14 385:8. Defendants do not dispute this, but rather move to dismiss on the grounds that Plaintiffs 15 fail to establish that they suffered a violation of a constitutional right, and even if they did, their 16 claim fails because Plaintiffs do not identify any policy, practice, or conscious decision that caused 17 the violation. Mot. at 14. Additionally, Defendants’ offer undisputed evidence that Traw received 18 training regarding the County’s policy on discrimination and how to investigate claims brought 19 under the policy. C. Bonner Decl. at Ex. 1, 27:20-28:14; 69:9-19. 20 As an initial matter, although Plaintiffs ostensibly bring this cause of action against all 21 defendants, they fail to present any argument, let alone evidence, indicating that defendants 22 Banuelos or Hughes were involved in the hiring, training, supervision or retention policies at the 23 SCVMC or the MICC. See Opp. at 24-26. Accordingly, the court agrees with Defendants that 24 25 26 27 28 13 Though not clearly or expressly stated, the court infers from these allegations that the purported constitutional violation Plaintiffs claim to have suffered is the discipline they received for expressing their concerns regarding the hiring of male nurses, which they contend is protected activity. See Opp. at 25. 41 Case No.: 5:11-cv-05643-EJD ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 1 summary judgment is appropriate as to Banuelos and Hughes. As to the County, Traw’s testimony that she received no training on specific issues such as 2 3 due process or what constitutes a protected activity is insufficient to establish municipal liability 4 under a failure to train theory.14 Facts showing how a particular policy could be improved or that 5 the County’s training practices may not be ideal does not rise to the level of deliberate 6 indifference. See Price, 513 F.3d at 973 (affirming the district court’s grant of summary 7 judgment, despite the city’s arguably flawed training policies, because the plaintiff could not show 8 deliberate indifference). Plaintiffs fail to offer any evidence of a “conscious” or “deliberate” 9 decision by the County that did, or was likely to, “result in the violation of [Plaintiffs’] constitutional rights.” See City of Canton, 489 U.S. at 390. Nor do Plaintiffs provide evidence of 11 United States District Court Northern District of California 10 a pattern of similar violations by other municipal employees that could show that “the need for 12 more or different training” was “so obvious” that the County’s inaction amounted to a conscious 13 failure to act. See id.; Connick v. Thompson, 563 U.S. 51, 62 (2011) (noting that “a pattern of 14 similar constitutional violations by untrained employees is ‘ordinarily necessary’ to demonstrate 15 deliberate indifference.”). Accordingly, the court finds that as a matter of law there is insufficient 16 evidence of deliberate indifference on the part of the County to establish liability. As to Traw, Plaintiffs similarly fail to establish that Traw acted with deliberate indifference 17 18 in her investigation or discipline of Plaintiffs. See Davis, 869 F.2d at 1235. The testimony 19 submitted by Plaintiffs shows, at best, that Traw lacked personal knowledge of certain legal 20 definitions or policy provisions such that she may have been mistaken or negligent in the 21 execution of her duties. See C. Bonner Decl. at Ex. 1, 27:20-28:14; 69:9-19; Ex. 2, 227:12- 22 228:20; 360:6-23, 380:21- 385:8. However, “mere negligence” is insufficient. See Davis, 869 23 F.2d at 1235. Plaintiffs neither offer admissible evidence that Traw was deliberately indifferent to 24 the need to train or supervise her subordinates, nor do they show how any purported lack of 25 26 27 28 14 Additionally, none of Plaintiffs’ claims allege the denial of due process. Therefore, evidence that Traw received no training on due process is unhelpful and generally irrelevant. 42 Case No.: 5:11-cv-05643-EJD ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 1 training or supervision caused Plaintiffs to suffer a constitutional harm. See Flores, 758 F.3d at 2 1159; Connick 563 U.S. at 58-60. Based on this evidence, the court finds that no reasonable jury 3 could determine that Traw’s actions amounted to a practice of deliberate indifference. For the foregoing reasons, Defendants motion for summary judgment on Plaintiffs’ Tenth 4 5 6 Cause of Action is GRANTED as to all Defendants. F. Retaliation Under California Labor Code § 1102.5 7 Defendants move for summary judgment on Plaintiffs’ causes of action for retaliation in 8 violation of Labor Code § 1102.5. Specifically, Defendants argue that Plaintiffs cannot produce 9 evidence of conduct falling under the relevant provision of the statute. Because it would be Plaintiffs’ burden to prove these causes of action, they must first come forward with admissible 11 United States District Court Northern District of California 10 evidence to show there is a genuine dispute for trial. Celotex Corp., 477 U.S. at 323-24. 12 “Labor Code section 1102.5 is a whistleblower statute, the purpose of which is to 13 ‘encourag[e] workplace whistle-blowers to report unlawful acts without fearing retaliation.’” 14 Soukup v. Law Offices of Herbert Hafif, 39 Cal. 4th 260, 287 (2006) (quoting Green v. Ralee 15 Eng’g Co., 19 Cal. 4th 66, 77 (1998)). Although Plaintiffs cite to more in their amended 16 complaint, they focus only on one subsection of § 1102.5 in their opposition. At the time this case 17 was filed, subsection (c) of § 1102.5 stated that “[a]n employer may not retaliate against an 18 employee for refusing to participate in an activity that would result in a violation of state or federal 19 statute, or a violation or noncompliance with a state or federal rule or regulation.” Cal. Lab. Code 20 § 1102.5(c) (effective January 1, 2004, to December 31, 2013). 21 To prove a violation of § 1102.5, “the plaintiff is required to first establish a prima facie 22 case of retaliation.” Mokler v. Cnty. of Orange, 157 Cal. App. 4th 121, 138 (2007). In doing so, 23 “a plaintiff must show that he or she was subjected to adverse employment action after engaging 24 in protected activity and that there was a causal connection between the two.” Hansen v. Dep’t of 25 Corrections & Rehabilitation, 171 Cal. App. 4th 1537, 1546 (2008). “Protected activity is the 26 disclosure of or opposition to ‘a violation of state or federal statute, or a violation or 27 28 43 Case No.: 5:11-cv-05643-EJD ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 1 noncompliance with a state or federal rule or regulation.’” Edgerly v. City of Oakland, 211 Cal. 2 App. 4th 1191, 1199 (2012). “In other words, ‘[s]ection 1102.5 of the Labor Code requires that to 3 come within its provisions, the activity disclosed by an employee must violate a federal or state 4 law, rule or regulation.’” Id. (quoting Mueller v. Cnty. of Los Angeles, 176 Cal. App. 4th 809, 5 821-22 (2009)). Here, Plaintiffs explain that their respective § 1102.5 causes of action are based on their 6 7 opposition to Defendants’ decision to employ male nurses in the post-partum unit, which they 8 claim was “founded” on their reluctance to compromise patients’ “substantive due process right to 9 bodily integrity” as well as their “personal privacy under the Fourth Amendment and sexual and gender discrimination.” But assuming the opposition to male nurses constitutes “refusing to 11 United States District Court Northern District of California 10 participate in an activity,” Plaintiffs’ reliance on general constitutional doctrines is nevertheless 12 insufficient to establish a prima face case of retaliation as required for claims under § 1102.5(c). 13 Mokler, 157 Cal. App. 4th at 138. Indeed, Plaintiffs fail to convincingly identify which state or 14 federal statute or regulation prohibited the employment of male nurses in the post-partum unit, 15 such that their opposition to the practice constituted protected activity. Edgerly, 211 Cal. App. 4th 16 at 1199. Because Plaintiffs did not state the requisite prime facie case of retaliation, they have not 17 18 met their burden to show a genuine dispute for trial. Accordingly, the court need not proceed to an 19 analysis of Defendants’ non-discriminatory reasons. The motion for summary judgment is 20 GRANTED as to the twelfth, fourteenth and fifteenth causes of action asserting violations of § 21 1102.5. 22 G. 23 Retaliation Under California Health and Safety Code § 1278.5 Defendants argue that Plaintiffs cannot establish causes of action for violation of Health & 24 Safety Code § 1278.5. That statute “declares a policy of encouraging workers in a health care 25 facility, including members of a hospital’s medical staff, to report unsafe patient care.” Fahlen v. 26 Sutter Central Valley Hosps., 58 Cal. 4th 655, 660-61 (2014). Its whistleblower protections 27 28 44 Case No.: 5:11-cv-05643-EJD ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 1 “apply primarily to issues relating to the care, services, and conditions of a facility and are not 2 intended to conflict with existing provisions in state and federal law relating to employee and 3 employer relations.” Cal. Health & Safety Code § 1278.5(a) 4 Other provision of §1278.5 provide, in pertinent part: 5 No health facility shall discriminate or retaliate, in any manner, against any patient, employee, member of the medical staff, or any other health care worker of the health facility because that person has done either of the following: 6 7 (A) Presented a grievance, complaint, or report to the facility, to an entity or agency responsible for accrediting or evaluating the facility, or the medical staff of the facility, or to any other governmental entity. 8 9 10 (B) Has initiated, participated, or cooperated in an investigation or administrative proceeding related to, the quality of care, services, or conditions at the facility that is carried out by an entity or agency responsible for accrediting or evaluating the facility or its medical staff, or governmental entity. United States District Court Northern District of California 11 12 13 14 Cal. Health & Safety Code § 1278.5(b)(1). Much like § 1102.5, a plaintiff asserting a violation of § 1278.5 must establish a prima 15 facie case of retaliation. Jadwin v. Cnty. of Kern, 610 F. Supp. 2d 1129, 1144 (E.D. Cal. Apr. 8, 16 2009) (“To establish a prima facie case of retaliation under § 1278.5, a plaintiff must show that: 17 (1) he engaged in protected activity under the statute; (2) he was thereafter subjected to an adverse 18 employment action; and (3) a causal link between the two.”); Mendiondo v. Centinela Hosp. Med. 19 Ctr., 521 F.3d 1097, 1105 (9th Cir. 2008). “Thereafter, the burden of production shifts to the 20 employer to present legitimate reasons for the adverse employment action.” Brooks, 229 F.3d at 21 928. “Once the employer carries this burden, the plaintiff must demonstrate a genuine issue of 22 material fact as to whether the reason advanced by the employer was a pretext.” Id. 23 24 25 26 27 28 i. Prima Facie Case a. Male Nurses in the MICC Plaintiffs contend that Defendants subjected each of them to retaliation in violation of § 1278.5 with regard to the hiring of male nurses in the MICC. To that end, they argue in their 45 Case No.: 5:11-cv-05643-EJD ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 1 opposition brief that “Plaintiffs were informed by their patients, who having just given birth, 2 stated they did not feel safe having male nurses perform genital care for them” and that they 3 “informed the administration of their patient’s safety and care concerns.” 4 As to Smith, the record includes evidence showing that on February, 25, 2011, she asked Dr. Byrne, the chief of the Maternal Child Health Division, about his thoughts concerning the 6 prospect of male nurses providing direct care to patients in the MICC. Smith Decl., at ¶ 10. Smith 7 states she made this inquiry out of a concern “about how this would impact patient safety, care and 8 choice.” Id. at ¶ 9. She also states that Traw, in response to her conversation with Dr. Byrne, 9 issued her an “Employee Unfavorable Report” on March 15, 2011, stating that Smith’s statements 10 were a violation of the County’s policy against discrimination, harassment and retaliation. Id. at ¶ 11 United States District Court Northern District of California 5 16; Ex. 2. 12 As to Chambers, the record includes evidence showing she was involved in a conversation 13 in mid-February 2011 during which MICC nurses discussed the impact male nurses would have 14 on patient care and safety. Chambers Decl., at ¶¶ 13-15. Thereafter, on March 2, 2011, Chambers 15 and the other MICC nurses raised their safety concerns with Johnson, but Johnson was unwilling 16 to listen. Id. at ¶ 15. Chambers then received an Employee Unfavorable Report from Traw stating 17 she had engaged in sexual harassment and gender discrimination. Id. at ¶ 18, Ex. 2. 18 But as to Shumaker, the record does not show she engaged in protected activity concerning 19 male nurses working in the MICC, despite the reference to all named plaintiffs in their argument. 20 In fact, Shumaker testified she did not raise the issue with anybody in management. Sandoval 21 Decl. at Ex B, 117:24-118:3. Accordingly, the court finds on this evidence that only Smith and 22 Chambers have met their burden to demonstrate a prima facie case of retaliation on the issue of 23 male nurses. 24 25 26 27 28 b. Patient Assignments Plaintiffs argue further that Smith experienced retaliation in violation of § 1278.5 after complaining about her patient assignments. Specifically, they argue in their opposition brief that 46 Case No.: 5:11-cv-05643-EJD ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 1 Smith, “who was assigned six patients with the highest acuity levels, complained to Defendant 2 Traw that she felt such an assignment was unsafe as it entailed too many high priority patients for 3 one nurse,” but that Traw “wrote Smith up for complaining about a situation where an HSA failed 4 to respond to a patient in need.” This argument is supported by the record. Plaintiffs have produced evidence showing that 5 6 on May 17, 2011, Smith spoke with Traw about her assignment to six patients, half of which had 7 the highest acuity level. Smith Decl., at ¶ 22. Smith states she spoke to Traw because she 8 considered the assignment to be unsafe. Id. In response, Traw issued Smith a written counseling 9 letter on June 8, 2011, in which Smith was told to stop complaining about assignments. Id. at 10 United States District Court Northern District of California 11 12 13 14 15 16 ¶ 23. The court finds based on this evidence that Smith has met her burden to demonstrate a prima facie case of retaliation on the issue of patient assignments. ii. Legitimate Reasons The burden now shifts to Defendants to present legitimate reasons for the adverse employment actions taken against Smith and Chambers. Brooks, 229 F.3d at 928. Here, as already discussed, the evidence shows that Traw issued the Employee 17 Unfavorable Reports to Smith and Chambers based on perceived violations of the anti- 18 discrimination policy. Furthermore, the evidence shows that Traw issued the written counseling to 19 Smith based on information she received that Smith interrupted the charge nurse three times, and 20 that Smith had contributed to an “unharmonious work environment” by comparing her work 21 assignments to other nurses, acting unprofessionally, refusing to take breaks, and raising her voice 22 to colleagues. Traw Decl., at ¶ 4; Ex. B. 23 On this record, Defendants have successfully rebutted the inference of retaliation with 24 legitimate reasons for the adverse employment actions. Thus, the court finds they have satisfied 25 their burden on this level of the analysis. 26 27 28 47 Case No.: 5:11-cv-05643-EJD ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT iii. 1 Pretext The burden now shifts back to Plaintiffs to demonstrate a genuine issue of material fact as 2 3 to whether the reasons advanced by Defendants are pretext for retaliation. Brooks, 229 F.3d at 4 928. “Pretext may be shown either (1) directly by persuading the jury that a discriminatory 5 motive more likely than not motivated the employer or (2) indirectly by showing that the 7 employer’s proffered explanation is unworthy of credence.” Winarto v. Toshiba Am. Elecs. 8 Components, Inc., 274 F.3d 1276, 1284 (9th Cir. 2001). However, if only circumstantial evidence 9 is offered, “such evidence has to be ‘specific’ and ‘substantial.’” Id. (citing Godwin, 150 F.3d at 10 1222). Moreover, “a plaintiff at the pretext stage must produce evidence in addition to that which 11 United States District Court Northern District of California 6 was sufficient for her prima facie case in order to rebut the defendant’s showing.” Id. at 1220. 12 Here, Plaintiffs have not produced evidence on which a reasonable jury could find that 13 Defendants’ proffered reasons are pretext for retaliation under § 1278.5 because, as the court has 14 explained, nothing in the record shows that Traw did not honestly believe the information for 15 which she disciplined Smith and Chambers. In the absence of sufficient evidence to establish pretext, Defendants’ motion for summary 16 17 judgment is GRANTED as to the sixteenth and nineteenth causes of action asserting violations of 18 § 1278.5 on behalf of Smith and Chambers. The motion is also GRANTED on the eighteenth 19 cause of action asserting a violation of § 1278.5 on behalf of Shumaker because Plaintiffs did not 20 establish a prima facie case of retaliation for that claim. 21 22 H. Retaliation Based on Free Speech Plaintiffs assert in the eleventh cause of action under § 1983 that Defendants retaliated 23 against them for participating in speech protected by the First Amendment. Defendants argue that 24 Plaintiffs cannot prove their claim. Defendants are correct. 25 “It is well settled that the state may not abuse its position as employer to stifle ‘the First 26 Amendment rights [its employees] would otherwise enjoy as citizens to comment on matters of 27 28 48 Case No.: 5:11-cv-05643-EJD ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 1 public interest.’” Eng v. Cooley, 552 F.3d 1062, 1070 (9th Cir. 2009) (quoting Pickering v. Bd. of 2 Educ., 391 U.S. 563, 568 (1968)). Courts employ a “sequential five-step series of questions” 3 when examining a public employee’s First Amendment claim: 4 (1) whether the plaintiff spoke on a matter of public concern; (2) whether the plaintiff spoke as a private citizen or public employee; (3) whether the plaintiff’s protected speech was a substantial or motivating factor in the adverse employment action; (4) whether the state had an adequate justification for treating the employee differently from other members of the general public; and (5) whether the state would have taken the adverse employment action even absent the protected speech. 5 6 7 8 9 10 Id. A plaintiff’s failure to satisfy any single step ends the inquiry. Johnson v. Poway Unified United States District Court Northern District of California 11 Sch. Dist., 658 F.3d 954, 961-62 (9th Cir. 2011) (citing Huppert v. City of Pittsburg, 574 F.3d 12 696, 703 (9th Cir. 2009)). 13 i. 14 Matter of Public Concern On the first step, “the plaintiff bears the burden of showing that the speech addressed an 15 issue of public concern.” Eng, 552 F.3d at 1070. Ultimately, the question of whether a statement 16 constitutes a matter of public concern is not subject to “rigid, multi-part tests;” instead, “the 17 content, form, and context of a given statement, as revealed by the whole record” must be 18 reviewed. Clairmont v. Sound Mental Health, 632 F.3d 1091, 1103 (9th Cir. 2011). Based upon a 19 “generalized analysis of the nature of the speech,” a statement can be placed “on a continuum 20 ranging from matters of public concern to matters of purely personal concern.” Id. “Whether an 21 employee’s speech involves a matter of public concern is a question of law.” Roth v. Veteran’s 22 Admin. of Gov’t of U.S., 856 F.2d 1401, 1405-06 (9th Cir. 1988), overruled on other grounds by 23 Garcetti v. Ceballos, 547 U.S. 410, 417 (2006). 24 Plaintiffs argue that Smith’s statement to Dr. Byrne concerning the prospect of male nurses 25 working in the MICC, as well as Chambers’ statement to Johnson on that same subject, can each 26 be classified as speech on a matter of public concern because they constituted speech related to 27 28 49 Case No.: 5:11-cv-05643-EJD ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 1 patient safety rather than complaints about workplace policies. Placing these statements on the 2 continuum described by the Ninth Circuit and in consideration of the record as a whole, the court 3 agrees with Plaintiffs. See Hyland v. Wonder, 972 F.2d 1129, 1137 (9th Cir. 1992) (holding the 4 exposure of “threats to public safety” constitutes a matter of public concern); see also Roth, 856 5 F.2d at 1406 (holding that hospital employee spoke on matters of public concern when he alleged 6 administrators and staff “wasted resources, acted unethically, mismanaged personnel, and violated 7 safety regulations, thereby putting patients in jeopardy”). 8 Plaintiffs also argue that Smith and Chambers engaged in speech on a matter of public 9 concern when they spoke out about allegedly discriminatory work assignments. It is generally true that “speech alleging that the government engaged in discrimination or other civil rights 11 United States District Court Northern District of California 10 violations is on a matter of public concern,” (Clairmont, 632 F.3d at 1104), and the record shows 12 that Smith complained to both Traw and Johnson about possible discrimination by Ablan. Smith 13 Decl., at ¶ 28c; C. Bonner Decl. at Ex. B, 399:18-400:19. However, the record also shows that 14 Smith only presented these statements to individuals in her supervisory chain of command, in the 15 same way she presented prior complaints on issues other than discrimination, such as being denied 16 breaks and improper patient ratios. C. Bonner Decl. at Ex. 2, 396:24-399:12; Smith Decl. ¶ 28(b), 17 Ex. 6. This observation is important here, because “[w]hen a public employee’s contested speech 18 occurs in the context of an internal power struggle or personal employment grievance, this will 19 militate against a finding of public concern.” Clairmont, 632 F.3d at 1104. “When employee 20 speech concerning office policy arises from an employment dispute concerning the very 21 application of that policy to the speaker, additional weight must be given to the supervisor’s view 22 that the employee has threatened the authority of the employer to run the office.” Connick v. 23 Myers, 461 U.S. 138, 153 (1983). Accordingly, the court finds that Smith’s statements to Traw 24 and Johnson addressing possible discrimination in work assignments were not made on a matter of 25 public concern. Furthermore, other than evidence demonstrating that Chambers reviewed the 26 schedule with Smith on June 21, 2011, Plaintiffs have not cited to any portion of the record 27 28 50 Case No.: 5:11-cv-05643-EJD ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 1 showing that Chambers actually made a statement to anyone concerning discriminatory 2 assignments. Thus, they have not met their burden to show that Chambers engaged in speech on 3 that issue. 4 5 6 7 Based on this discussion, the court finds that Smith and Chambers only spoke on a matter of public concern regarding the employment of male nurses in the MICC. ii. Private Citizen or Public Employee Plaintiffs must also bear the burden on the second step, which requires “showing the 8 speech was spoken in the capacity of a private citizen and not a public employee.” Eng, 552 F.3d 9 at 1071. The issue is a mixed question of law and fact and involves two inquiries. Johnson, 658 F.3d at 966. “First, a factual determination must be made as to the ‘scope and content of a 11 United States District Court Northern District of California 10 plaintiff’s job responsibilities.’” Id. “Second, the ‘ultimate constitutional significance’ of those 12 facts must be determined as a matter of law.” Id. “[S]tatements are made in the speaker’s 13 capacity as citizen if the speaker ‘had no official duty’ to make the questioned statements . . . or if 14 the speech was not the product of ‘perform[ing] the tasks [the employee] was paid to perform.’” 15 Posey v. Lake Pend Oreille School Dist. No. 84, 546 F.3d 1121, 1127 n.2 (9th Cir. 2008) (quoting 16 Marable v. Nitchman, 511 F.3d 924, 932-33 (9th Cir. 2007), Freitag v. Ayers, 468 F.3d 528, 544 17 (9th Cir. 2006)); see Myers, 461 U.S. at 147 (holding there is no First Amendment protection 18 “when a public employee speaks not as a citizen upon matters of public concern, but instead as an 19 employee upon matters only of personal interest”). 20 Although they argue something different, Plaintiffs have not shown their speech 21 concerning make nurses working in the MICC, or any part it, was made by Smith and Chambers in 22 their capacities as private citizens. As to the statements about male nurses working in the MICC - 23 which Plaintiffs themselves classify as a patient safety issue - there is no dispute either in the 24 evidence or in the parties’ arguments that one of Plaintiffs’ job duties was to convey patient 25 complaints and preferences to management. Sandoval Decl. at Ex. A, 71:2-21; Ex. F, 188:21- 26 189:12. Moreover, there is no evidence to support Plaintiffs’ argument that Smith and Chambers 27 28 51 Case No.: 5:11-cv-05643-EJD ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 1 stepped outside of their professional roles and advocated for the rights of women generally. 2 Consequently, the court finds that Smith and Chambers made the statements about male nurses 3 while performing the tasks of public employees. And while it is not necessary to address the discriminatory work assignments further, it is 4 5 nonetheless notable that Plaintiffs provide no argument and cite to no evidence showing that 6 Smith was acting as a private citizen as opposed to a publicly-employed nurse when she made 7 statements on that subject to Johnson and Traw. Thus, the court finds that Smith made the 8 statements about discriminatory work assignments as a public employee and not as a private 9 citizen. Since Plaintiffs did not put forward evidence and arguments establishing they spoke as 10 United States District Court Northern District of California 11 private citizens, the court need not proceed with the remaining steps of the analysis. Johnson, 658 12 F.3d at 961-62. Defendants’ motion for summary judgment on the eleventh cause of action is 13 GRANTED because a reasonable jury could not find in their favor. Nissan Fire & Marine Ins. 14 Co., 210 F.3d at 1103. 15 16 I. Retaliation Based on Free Speech Under Monell In the twenty-second cause of action asserted against all defendants, Plaintiffs allege the 17 County violated § 1983 through “a custom, practice and policy of retaliation, sham HIPAA 18 violations investigations, and sham peer reviews against medical providers and employees who 19 exercise their First Amendment Rights of Free Speech and Right to Petition the government.” 20 Defendants argue Plaintiffs cannot establish this claim with admissible evidence. 21 Under these circumstances, liability under § 1983 requires that an “action pursuant to 22 official municipal policy of some nature cause a constitutional tort.” Monell v. Dep’t of Soc. 23 Servs. of City of N.Y., 436 U.S. 658, 691 (1978). A plaintiff must “demonstrate that, through its 24 deliberate conduct, the municipality was the ‘moving force’ behind the injury alleged.” Bd. of 25 Cnty. Comm’rs of Bryan Cnty., Okl. v. Brown, 520 U.S. 397, 404 (1997). Thus, to establish a 26 claim under Monell, a plaintiff must prove either (1) a municipal employee “committed the 27 28 52 Case No.: 5:11-cv-05643-EJD ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 1 alleged constitutional violation pursuant to a formal governmental policy or a longstanding 2 practice or custom,” (2) “the individual who committed the constitutional tort was an official with 3 ‘final policy-making authority,’” or (3) “an official with final policy making authority ratified a 4 subordinate’s unconstitutional decision or action and the basis for it.” Gillette v. Delmore, 979 5 F.2d 1342, 1346-47 (9th Cir. 1992). Here, Plaintiffs plainly fail to satisfy their burden to produce evidence creating a genuine 6 issue of material fact on the Monell claim. Nissan Fire & Marine Ins. Co., 210 F.3d at 1103. 8 They merely argue that “disputed issues of material fact show that Defendants had a policy or 9 custom which was the moving force behind the harms incurred by Plaintiffs,” and cite only to 10 instances in the record they believe show that Traw and Johnson did not investigate concerns 11 United States District Court Northern District of California 7 about male nurses in the MICC due to a “policy that the issue of male nurses could not be 12 discussed.” However, they cite to no evidence establishing that Traw and Johnson were officials 13 with final policy making authority, or that the alleged policy prohibiting discussion of male nurses 14 violated their constitutional rights. In the absence of any evidence upon which a jury could find liability under Monell, 15 16 17 18 Defendants’ motion for summary judgment is GRANTED on the twenty-second cause of action. J. State Law Tort Claims Plaintiffs’ twentieth and twenty-first causes of action assert state law tort claims for 19 invasion of privacy against Traw and intentional infliction of emotional distress (“IIED”) against 20 all defendants. As an initial matter, Defendants argue that Plaintiffs cannot prove either of these 21 claims against Banuelos because they have not shown Banuelos took any action against them. 22 Given that Plaintiffs mention Banuelos only once in their opposition brief and do not cite to facts 23 in the record describing adverse actions for which he is responsible, the court finds that Plaintiffs 24 failed to produce sufficient evidence to establish either cause of action against Banuelos. 25 This leaves Traw, Hughes and the County. As to them, Defendants assert they are entitled 26 to summary judgment because Traw and Hughes are immune from individual liability pursuant to 27 28 53 Case No.: 5:11-cv-05643-EJD ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 1 California Government Code §§ 820.2 and 821.6. And if an employee is immune under §§ 820.2 2 or 821.6, the County is immune as well. Gov. Code § 815.2(b); Kemmerer v. Cty. of Fresno, 200 3 Cal. App. 3d 1426, 1435 (1988). 4 Under § 820.2, “a public employee is not liable for an injury resulting from his act or 5 omission where the act or omission was the result of the exercise of the discretion vested in him, 6 whether or not such discretion be abused.” Cal. Gov’t Code § 820.2. Whether an act or omission 7 in dispute is considered “discretionary” for immunity purposes generally turns on whether the 8 relevant decision involves “planning and policymaking,” or is simply a “ministerial” execution of 9 one’s duties. Nasrawi v. Buck Consultants LLC, 231 Cal. App. 4th 328, 341 (2014), review denied (Feb. 25, 2015); Martinez v. City of Los Angeles, 141 F.3d 1373, 1379 (9th Cir. 1998) 11 United States District Court Northern District of California 10 (“[I]mmunity protects ‘basic policy decisions,’ but does not protect ‘operational’ or ‘ministerial’ 12 decisions that merely implement a basic policy decision.”) (quoting Johnson v. State of California, 13 69 Cal. 2d 782, 796 (1968)); Caldwell v. Montoya, 10 Cal. 4th 972, 981, (1995) (explaining that 14 “there is no basis for immunizing lower-level, or ‘ministerial,’ decisions that merely implement a 15 basic policy already formulated.”). 16 Section 821.6 extends immunity to public employees for actions taken in preparation for 17 formal proceedings, including actions related to investigations. Paterson v. City of Los Angeles, 18 174 Cal. App. 4th 1393, 1405 (2009). Under § 821.6, “[a] public employee is not liable for injury 19 caused by his instituting or prosecuting any judicial or administrative proceeding within the scope 20 of his employment, even if he acts maliciously and without probable cause.” Cal. Gov’t Code § 21 821.6. California courts interpret § 821.6 broadly “in furtherance of its purpose to protect public 22 employees in the performance of their prosecutorial duties from the threat of harassment through 23 civil suits.” Gillan v. City of San Marino, 147 Cal. App.4th 1033, 1048 (2007). Consequently, 24 courts have construed § 821.6 to include actions taken in conjunction with a variety of disciplinary 25 proceedings. See, e.g., Kayfetz v. State of California, 156 Cal. App. 3d 491, 494-96 (1984) 26 (affirming the trial court’s grant of § 821.6 immunity where the plaintiff, a doctor, sued the State 27 28 54 Case No.: 5:11-cv-05643-EJD ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 1 of California and various medical entities and administrators for damages arising from the 2 publication of disciplinary actions taken against him because the publication was “an integral part” 3 of the disciplinary process); Citizens Capital Corp. v. Spohn, 133 Cal. App. 3d 887, 889 (1982) 4 (upholding the grant of § 821.6 immunity for defendants in a collection agency license revocation 5 proceeding who publicly reported the results of their official investigation); Kemmerer, 200 Cal. 6 App. 3d at 1436 (applying § 821.6 immunity to public service employees of social services 7 department for investigation and initiation of formal disciplinary proceedings); cf. Blankenhorn, 8 485 F.3d at 488 (holding that police officers were not immune for acts undertaken during the 9 arrest, rather than the investigation, of the plaintiff). 10 United States District Court Northern District of California 11 12 13 Because immunity is a fact-specific inquiry that turns on the underlying acts of the employee, it will be addressed as to each cause of action individually. i. Intentional Infliction of Emotional Distress To support a claim for IIED, a plaintiff must show the following elements: “(1) extreme 14 and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the 15 probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional 16 distress; and (3) actual and proximate causation of the emotional distress by the defendant’s 17 outrageous conduct.” Potter v. Firestone Tire & Rubber Co., 6 Cal. 4th 965, 1001 (1993) (internal 18 quotations omitted). Conduct is “outrageous” if it is “so extreme as to exceed all bounds of that 19 usually tolerated in a civilized community.” Id. 20 Here, Plaintiffs base their IIED claim on the same actions that underlie their claims for 21 retaliation. Opp. at 33 (“[I]t is the retaliation itself that rises to the level of extreme and 22 outrageous.”). But as has been explained, only Chambers’ causes of action for retaliation based on 23 the HIPAA investigation and the schedule change survive this motion. Thus, Defendants are 24 entitled to summary judgment on Smith and Shumaker’s IIED claims. 25 26 27 28 As to Chambers, the court finds that Hughes is entitled to immunity under § 821.6 for her conduct related to the HIPAA investigation. Notably, Plaintiffs do not address this statute in their 55 Case No.: 5:11-cv-05643-EJD ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 1 opposition. Traw, however, is not entitled to immunity under §§ 820.2 or 821.6 for the schedule 2 3 change because the activity of arranging employee schedules does not fall within the ambit of 4 either section. In any event, Plaintiffs have not produced sufficient evidence to sustain a finding 5 that Traw’s conduct with respect to schedule change is so extreme and outrageous “as to exceed 6 all bounds of that usually tolerated in a civilized community.” Potter, 6 Cal. 4th at 1001; see 7 Berkley v. Dowds, 152 Cal. App. 4th 518, 534 (2007) (“Whether a defendant’s conduct can 8 reasonably be found to be outrageous is a question of law that must initially be determined by the 9 court[.]”). For these reasons, Defendants’ motion for summary judgment on the twenty-first cause 10 of action is GRANTED.15 United States District Court Northern District of California 11 ii. 12 Invasion of Privacy Smith and Chambers contend that Traw invaded their privacy by publically posting the 13 nurses’ schedules, which included information showing that Smith and Chambers were required to 14 attend mandatory sexual harassment trainings. In response, Defendants assert that Traw’s action 15 in posting the schedules was routine, that Plaintiffs had no reasonable expectation of privacy in 16 their schedules, and even if they did, they failed to establish any invasion of that privacy by 17 Defendants. Mot. at 33. On the issue of immunity, and by Defendants’ own representations, the act of posting 18 19 nurses’ schedules was a routine, common practice in the MICC, rather than a discretionary policy 20 decision. See Mot. at 33; Sandoval Decl. at Ex. A, 172:23-173:9. Accordingly, the court finds 21 that Traw is not entitled to immunity under § 820.2. Martinez, 141 F.3d at 1379. 22 Turning next to the merits of the claim itself, the court finds that Plaintiffs failed to satisfy 23 their burden to show an invasion of privacy. In order to prevail on cause of action for invasion of 24 25 26 27 28 15 For similar reasons, Plaintiffs cannot sustain their request for punitive damages against Traw. Cal Civ. Code. § 3294(a) (providing that punitive damages are only awarded “where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice”). Defendants are therefore entitled to summary judgment on the request. 56 Case No.: 5:11-cv-05643-EJD ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 1 privacy, a plaintiff must establish: (1) a legally protected interest; (2) a reasonable expectation of 2 privacy; and (3) conduct by defendants constituting a serious invasion of privacy. Loder v. City of 3 Glendale, 14 Cal. 4th 846, 890-891 (1997). 4 According to Traw, the posting of the nurses’ schedules, including which nurses were 5 attending which classes, was a regular occurrence and was typically done to help remind nurses 6 about the dates and times of their trainings - not to publicize disciplinary actions. Sandoval Decl. 7 at Ex. A, 172:23-173:9. Moreover, Smith admitted that the nurses’ schedules might routinely 8 include the name of a class and as well as who was attending. Id. at Ex. F, 243:13-23. On this 9 evidence, Defendants conclude that because this behavior was consistent and routine, Plaintiffs 10 United States District Court Northern District of California 11 had no reasonable expectation of privacy. Mot. at 33. Smith and Chambers counter that the publication could be routine and still violate their 12 expectation of privacy. Opp. at 35. They argue that by publishing the fact that they were 13 attending sexual harassment training, Traw “effectively disclosed that plaintiffs were issued some 14 sort of Unfavorable Report pertaining to some discrimination policy breach,” which they contend 15 is private information “undoubtedly” included in their personnel files. Id. 16 However, while it is true that employees may have a reasonable expectation of privacy in 17 certain information contained in their personnel files, Plaintiffs offer no actual evidence 18 demonstrating what substantive information contained in their files was disclosed by the routine 19 posting of their work and training schedules. That is, even if the court were to accept Plaintiffs’ 20 theory that the mere publication of Smith and Chambers’ attendance at these trainings could be 21 construed as a reflection of disciplinary actions against them, Plaintiffs do not offer any evidence 22 showing that such information was contained in their personnel files, or any other evidence upon 23 which the court could find that Plaintiff’s had a reasonable expectation of privacy in the 24 information included in their schedules. See Opp. at 35. 25 26 27 28 Accordingly, the court finds that Plaintiffs have failed to demonstrate that they had a reasonable expectation of privacy in the information reflected in the publicized schedules or that 57 Case No.: 5:11-cv-05643-EJD ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 1 Traw “seriously invaded” this expectation when she published them. Defendants’ motion for 2 summary judgment is therefore GRANTED with respect to Smith and Chambers’ invasion of 3 privacy claim. 4 IV. 5 6 7 8 9 10 United States District Court Northern District of California 11 CONCLUSION Based on the foregoing, Defendants’ Motion for Summary Judgment (Dkt. No. 49) is GRANTED IN PART and DENIED IN PART as follows: 1. The motion is GRANTED as to the first cause of action asserting violations of Title VII and FEHA (discrimination-disparate treatment) on behalf of Smith. 2. The motion is GRANTED as to the third cause of action asserting violations of Title VII and FEHA (discrimination-disparate treatment) on behalf of Shumaker. 3. As to the fourth cause of action asserting violations of Title VII and FEHA 12 (discrimination-disparate treatment) on behalf of Chambers, the motion is DENIED to the extent it 13 is based the HIPAA investigation. The motion is GRANTED as to all other bases for the cause of 14 action. 15 16 17 18 19 20 21 4. The motion is GRANTED as to the fifth cause of action asserting violations of Title VII and FEHA (discrimination-disparate impact) on behalf of Smith. 5. The motion is GRANTED as to the seventh cause of action asserting violations of Title VII and FEHA (discrimination-disparate impact) on behalf of Shumaker. 6. The motion is GRANTED as to the eighth cause of action asserting violations of Title VII and FEHA (discrimination-disparate impact) on behalf of Chambers. 7. As to the ninth cause of action asserting retaliation in violation of FEHA, the motion is 22 DENIED as to Chambers to the extent it is based on the HIPAA investigation and the denial of her 23 schedule change request. The motion is GRANTED as to all other bases for the cause of action on 24 behalf of all Plaintiffs. 25 26 27 28 8. The motion is GRANTED as to the tenth cause of action asserting negligent hiring, supervision and retention (42 U.S.C. § 1983) on behalf of all Plaintiffs. 58 Case No.: 5:11-cv-05643-EJD ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 9. The motion is GRANTED as to the eleventh cause of action asserting retaliation for exercising free speech (42 U.S.C. § 1983) on behalf of all Plaintiffs. 10. The motion is GRANTED as to the twelfth cause of action asserting retaliation in violation of California Labor Code § 1102.5 on behalf of Smith. 11. The motion is GRANTED as to the fourteenth cause of action asserting retaliation in violation of California Labor Code § 1102.5 on behalf of Shumaker. 12. The motion is GRANTED as to the fifteenth cause of action asserting retaliation in violation of California Labor Code § 1102.5 on behalf of Chambers. 13. The motion is GRANTED as to the fourteenth cause of action asserting retaliation in violation of California Health & Safety Code § 1278.5 on behalf of Smith. 14. The motion is GRANTED as to the eighteenth cause of action asserting retaliation in violation of California Health & Safety Code § 1278.5 on behalf of Shumaker. 15. The motion is GRANTED as to the nineteenth cause of action asserting retaliation in violation of California Health & Safety Code § 1278.5 on behalf of Chambers. 16. The motion is GRANTED as to the twentieth cause of action asserting invasion of privacy on behalf of Smith and Chambers. 17. The motion is GRANTED as to the twenty-first cause of action asserting intentional infliction of emotional distress on behalf of all Plaintiffs. 18. The motion is GRANTED as to the twenty-second cause of action asserting a violation of 42 U.S.C. § 1983 (Monell) on behalf of all Plaintiffs. 19. The motion is GRANTED as to Plaintiffs’ request for punitive damages. 22 23 24 25 26 27 28 IT IS SO ORDERED. Dated: August 1, 2016 ______________________________________ EDWARD J. DAVILA United States District Judge 59 Case No.: 5:11-cv-05643-EJD ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

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