Bradley v. County of Sacramento Dept. of Human Assistance

[7] 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA [10] 11 RUBY BRADLEY, No. 2:19-cv-02419-DAD-CKD 12 Plaintiff, 13 v. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 14 COUNTY OF SACRAMENTO DEPARTMENT OF HUMAN (Doc. No. 41) 15 ASSISTANCE, 16 Defendant. [17] 18 This matter is before the court on the motion for summary judgment filed on behalf of 19 defendant on March 21, 2022. (Doc. No. 41.) The pending motion was taken under submission 20 by the previously assigned district judge on April 18, 2022.1 (Doc. No. 44.) For the reasons 21 explained below, defendant’s motion for summary judgment will be granted. 22 FACTUAL BACKGROUND2 23 In this employment action, plaintiff alleges that her employer of twenty years, defendant 24 County of Sacramento Department of Human Assistance (“defendant” or “the County”), 25 1 On August 25, 2022, this case was reassigned to the undersigned. (Doc. No. 51.) [26] 2 The relevant facts that follow are undisputed unless otherwise noted and are derived from the 27 undisputed facts as stated by defendant and responded to by plaintiff (Doc. No. 45-2 (“DUF”)), as well as the purportedly disputed facts as stated by plaintiff and responded to by defendant (Doc. 28 No. 48-2 (“PUF”)). 1 discriminated against her because of her race by rejecting her applications for promotions and 2 also retaliated against her by increasing her workload, all in violation of Title VII of the Civil 3 Rights Act of 1964 (“Title VII”) and California’s Fair Employment and Housing Act (“FEHA”). 4 (Doc. No. 36.) Plaintiff identifies as an African American woman. (PUF ¶ 1; DUF ¶ 20.) 5 A. Plaintiff’s Employment with the County 6 Plaintiff has been employed with the County as a Human Services Specialist in the 7 Department of Human Assistance since 2000. (PUF ¶¶ 2–3; DUF ¶ 21.) Plaintiff has remained 8 in that position throughout her employment with the County. (PUF ¶ 3; DUF ¶ 22.) The 9 County’s class specification for the Human Services Specialist position describes the duties and 10 responsibilities as follows: 11 Under general supervision, performs duties in the provisions of public assistance benefits and/or basic employment services to 12 customers and facilitates referrals to available resources, and/or applies regulations and procedures to determine eligibility for one 13 or more public assistance programs. Interfaces and coordinates with other department staff to provide customer services or to 14 provide or clarify information. 15 (DUF ¶ 23.) Human Services Specialists do not have duties and responsibilities related to 16 program coordination, planning, development, and/or evaluation. (DUF ¶ 59.) A primary duty of 17 a Human Services Specialist is to conduct intake interviews of individuals seeking to obtain 18 public assistance. (DUF ¶ 24.) Typically, a full-time Human Services Specialist conducts 4–5 19 intake interviews per day, and this rate has remained consistent since 2016. (DUF ¶ 24.) The 20 position of Human Services Specialist does not entail supervisory responsibilities. (DUF ¶ 41.) 21 A Human Services Specialist does not have the authority to hire, transfer, suspend, layoff, recall, 22 promote, or discharge other employees, or to recommend such action. (DUF ¶ 42.) 23 B. The County’s Employment Policies for Hiring and Promoting Employees 24 The County’s employment process is governed by the Civil Service Rules set by the Civil 25 Service Commission, a public commission providing policy direction and oversight of the system 26 of selecting and promoting civil service employees. (DUF ¶ 1.) Under these rules, the County 27 assures that employment is based upon merit principles and that determination of qualifications 28 be based upon a competitive examination for each position. (DUF ¶ 2.) 1 To apply for employment with the County, an applicant must submit an application 2 package consisting of two parts: (1) the application itself, and (2) the civil service exam. (DUF 3 ¶ 3.) In the first part, the application includes an applicant’s personal and contact information, 4 employment preferences and references, educational background, work experience, and a 5 description of job duties related to each job listed, certificates and licenses, and skills. (DUF ¶¶ 4, 6 5.) In the second part, the civil service exam consists of a supplemental questionnaire that seeks 7 from the applicant a more detailed explanation regarding how their training and experience make 8 them uniquely qualified to perform the job duties required by the position for which they are 9 applying. (DUF ¶ 6.) The first question on the civil service exam notifies the applicant that the 10 application (first part) and supplemental questionnaire (second part) are administered as two 11 separate documents, with the application being used only to determine if the applicant meets the 12 minimum qualifications for the position, and the supplemental questionnaire being used to 13 determine the applicant’s exam score. (DUF ¶ 7.) An applicant is required to acknowledge this 14 notification/instruction in order to proceed with the civil service exam. (DUF ¶ 8.) 15 Once an applicant submits their application package, a technician in the Employment 16 Services Division reviews the application portion to determine whether the applicant meets the 17 minimum qualifications stated in the job announcement. (DUF ¶ 9.) The technician does not 18 review the answers provided by the applicant in the civil service exam. (DUF ¶ 10.) If the 19 applicant meets the minimum qualifications stated in the job announcement, the applicant 20 advances to the exam phase, during which the applicant’s answers on the questionnaire are 21 reviewed and the applicant is issued a score and rank. (DUF ¶¶ 11, 12.) The applicant is then 22 placed on a list of eligible candidates for the position. (DUF ¶ 13.) If an applicant fails to meet 23 the minimum qualifications, then the technician will notify the applicant in writing by email that 24 their application package was not accepted.3 (DUF ¶ 14.) The emailed letter notifies the 25 applicant that they do not meet the minimum qualifications, and it provides two avenues of [26] 3 Plaintiff does not dispute that the County’s policy provides that an applicant’s application 27 package will not be accepted if the applicant fails to meet the minimum qualifications, but plaintiff argues that the County does not consistently apply this policy. (DUF ¶ 14.) Plaintiff’s 28 argument in this regard will be addressed in the analysis section of this order below. 1 redress should the applicant be dissatisfied with the technician’s decision. (DUF ¶ 15.) 2 Specifically, the emailed letter advises the applicant that they can contact the technician within 3 five days from the date of the email to contest the decision, and they can file an appeal with the 4 Civil Service Commission within 30 days. (DUF ¶¶ 16–19.) If an applicant contacts the 5 technician to contest the decision, the applicant is provided the opportunity to supply additional 6 information, including additional work experience or education originally omitted from their 7 application. (DUF ¶ 17.) The technician will then consider the new information to determine 8 whether the applicant meets the minimum qualifications for the position. (DUF ¶ 18.) 9 C. Plaintiff’s Applications for a Lateral Transfer and Promotions4 10 On September 26, 2018, plaintiff applied for an interclass transfer to the position of Civil 11 Service Specialist in the Civil Service Commission Office. (DUF ¶ 28.) The County’s policy 12 requires that in order to qualify for a transfer, “the top step of the employee’s current class must 13 be within five (5) percent of the top step of the highest range of the class requested for interclass 14 transfer.” (DUF ¶¶ 29–30.) At the time plaintiff applied for the transfer, the top step in the salary 15 of a Civil Service Specialist exceeded five percent of the top step in salary of a Human Services 16 Specialist (plaintiff’s current position). (DUF ¶ 31.) Thus, Plaintiff did not qualify for this 17 interclass transfer. (DUF ¶ 32.) On September 27, 2018, the Employment Services Division 18 notified plaintiff by email that her transfer application was denied because the “salary difference 19 exceeds maximum allowance of less than 5%.” (DUF ¶ 33.) That email stated, “[i]f you have 20 any questions, please reply to this email or call the Employment Services Division Certifications 21 Unit.” (DUF ¶ 34.) Plaintiff did not contact the Employment Services Division regarding the 22 denial of her application for that interclass transfer. (DUF ¶ 35.) [23] 4 Despite plaintiff’s allegation in her operative second amended complaint that “[i]n or about 24 September of 2017, Plaintiff applied for the Human Services Supervisor position that was available,” (Doc. No. 36 at ¶ 16), the parties do not dispute that plaintiff did not actually apply for [25] employment as a Human Services Supervisor in 2017. (DUF ¶ 70.) To the extent plaintiff predicated her discrimination claims in this action on any allegedly unlawful rejection of an [26] employment application she submitted in 2017, those claims are dismissed. Thus, plaintiff’s 27 employment discrimination claims brought in this action proceed only as to the allegedly unlawful rejections by the County of the three applications that plaintiff submitted in 2018 and 28 2019. 1 On December 12, 2018, plaintiff applied for a promotion from her position of Human 2 Services Specialist to the position of Human Services Program Manager. (DUF ¶¶ 36–37, 40.) 3 The class specification for the Human Services Program Manager position identifies the 4 minimum qualifications, including that the applicant must have at least “two (2) years of 5 supervisory experience in healthcare, mental health, financial assistance, community or social 6 services work.” (DUF ¶ 38.) The County defines “supervisory experience” as “having authority 7 to hire, transfer, suspend, layoff, recall, promote[,] or discharge other employees, or to effectively 8 recommend such action.” (DUF ¶ 39.) In her application, plaintiff disclosed her employment 9 only as a Human Services Specialist, a position that does not have supervisory experience, and 10 thus, her experience as a Human Services Specialist alone did not qualify her for the position of 11 Human Services Program Manager. (DUF ¶¶ 43–44.) In her application, plaintiff did not claim 12 to possess supervisory experience, and she did not disclose any additional work experience. 13 (DUF ¶¶ 45–46.) In response to the first question on the civil service exam, plaintiff responded 14 that she “read and understood the above instructions,” which explained that the application alone 15 is used to determine whether an applicant meets minimum qualifications. (DUF ¶ 47.) Plaintiff 16 admitted in the civil service exam that she had “less than two (2) years” of supervisory and/or 17 management experience. (DUF ¶ 48.) On December 26, 2018, the Employment Services 18 Division notified plaintiff by email that her application package was not accepted because she did 19 not “meet the minimum qualifications as stated in the job announcement.” (DUF ¶ 49.) The 20 email advised that plaintiff could contact Jaycee Kaiser in the Employment Services Division for 21 “further consideration of [her] application” within five (5) calendar days. (DUF ¶ 50.) The letter 22 further advised that if plaintiff wished to appeal the employment decision, she could file a written 23 appeal to the Civil Service Commission within 30 days. (DUF ¶ 51.) Plaintiff neither contacted 24 Ms. Kaiser nor filed an appeal with the Civil Service Commission. (DUF ¶ 52.) Of the 155 25 applications that the County received between November 13, 2018 and December 21, 2018 for 26 the Human Services Program Manager position, 33 applications were rejected on the basis that 27 the applicant failed to meet the minimum qualifications. (DUF ¶¶ 53–54.) Of the accepted 28 ///// 1 applications, four applicants were hired into the Human Services Program Manager position, one 2 of whom identifies as African American. (DUF ¶ 55.) 3 On February 13, 2019, plaintiff applied for a promotion to the position of Human Services 4 Program Planner. (DUF ¶ 56–57.) The class specification for the Human Services Program 5 Planner position identifies the minimum qualifications, including that the applicant must have at 6 least “three years of professional and/or supervisory experience in program coordination, 7 planning, development and/or evaluation.” (DUF ¶ 58.) In her application, plaintiff disclosed her 8 employment only as a Human Services Specialist, a position that does not have supervisory 9 experience nor duties and responsibilities related to program coordination, planning, development 10 and/or evaluation. (DUF ¶¶ 59, 61.) Thus, plaintiff’s experience as a Human Services Specialist 11 alone did not qualify her for the position of Human Services Program Planner. (DUF ¶ 60.) In 12 her application, plaintiff did not claim to possess supervisory experience or experience with 13 program coordination, planning, development, evaluation, or supervisory duties, and she did not 14 disclose any additional work experience. (DUF ¶¶ 62–63.) On March 7, 2019, plaintiff was 15 informed by email that her application package was not accepted because she did not meet the 16 minimum qualifications as stated in the job announcement. (DUF ¶ 64.) The emailed letter 17 advised plaintiff to contact Michelle Phulps in the Employment Services Division within five 18 days if she sought further consideration of her application package. (DUF ¶ 65.) The letter 19 further provided that should plaintiff wish to appeal the denial, she could file a written appeal to 20 the Civil Service Commission within 30 days. (DUF ¶ 66.) Plaintiff neither contacted Ms. 21 Phulps nor filed an appeal with the Civil Services Commission. (DUF ¶ 67.) Between May 26, 22 2019 and December 1, 2021, the County hired several individuals into the Humans Services 23 Program Planner position, four of whom identified as African American. (DUF ¶¶ 68, 69.) 24 D. Plaintiff’s Workload and Alleged Retaliation 25 Plaintiff does not recall whether she ever discussed with her supervisors that she had filed 26 a lawsuit against the County in 2013 alleging age discrimination in employment. (DUF ¶¶ 71– 27 72.) Plaintiff admitted that she did not inform her supervisors when she appealed the district 28 court’s judgment in that case to the United States Court of Appeals for the Ninth Circuit on 1 October 11, 2017. (DUF ¶¶ 73–74.) Plaintiff is not aware of whether any of her supervisors 2 knew of her appeal to the Ninth Circuit in her case. (DUF ¶ 75.) Plaintiff contends that after she 3 filed her appeal,5 the County retaliated against her by increasing her usual workload of 2–3 intake 4 interviews per day (a limited workload pursuant to an unspecified “ADA workplace proceeding”) 5 to 3–4 intake interviews per day (which is closer to the normal workload of 4–5 intakes per day). 6 (DUF ¶ 26; PUF ¶¶ 21–23.) Plaintiff admits that she does not know who was responsible for the 7 increase in her workload. (DUF ¶ 26.) When asked at her deposition whether her supervisors 8 had increased her workload, plaintiff answered with respect to each individual supervisor: “Not 9 to my knowledge.” (DUF ¶ 27; Doc. No. 41-5 at 28–30.) 10 PROCEDURAL BACKGROUND 11 On December 3, 2019, plaintiff filed the complaint initiating this action. (Doc. No. 1.) 12 After the court dismissed plaintiff’s complaint with leave to amend and dismissed plaintiff’s first 13 amended complaint with leave to amend, plaintiff filed the operative second amended complaint 14 (“SAC”) on January 17, 2021. (Doc. No. 36.) In the SAC, plaintiff brings the following five 15 claims under federal and state law against the County: (1) racial discrimination in violation of 16 Title VII, 42 U.S.C. § 2000e-5; (2) racial discrimination in violation of FEHA, California 17 Government Code § 12940, et seq.; (3) failure to prevent racial discrimination in violation of 18 FEHA, California Government Code § 12940(k); (4) retaliation in violation of Title VII, 42 19 U.S.C. § 2000e-3(a); and (5) retaliation in violation of FEHA, California Government Code 20 § 12940(h). (Id.) 21 On March 21, 2022, defendant filed the pending motion for summary judgment as to all of 22 plaintiff’s claims and concurrently filed a request for judicial notice. (Doc. Nos. 41, 41-2.) After 23 receiving an extension of time in which to do so, on April 21, 2022, plaintiff filed an opposition 24 to defendant’s motion. (Doc. No. 45.) On May 4, 2022, defendant filed a reply thereto and 25 objections to the evidence plaintiff submitted in support of her opposition. (Doc. Nos. 48, 48-1.) [26] 5 Plaintiff has been inconsistent regarding when exactly her workload increased; she alleged in 27 her operative complaint that the increase occurred in 2018 after she filed her appeal, but she testified at her deposition that she filed her appeal in 2016 and that her workload was increased in 28 either 2017 or 2018. (DUF ¶ 26; Doc. Nos. 36 at ¶ 49; 41-5 at 24–25, 26–27.) 1 LEGAL STANDARD 2 Summary judgment is appropriate when the moving party “shows that there is no genuine 3 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. 4 Civ. P. 56(a). 5 In summary judgment practice, the moving party “initially bears the burden of proving the 6 absence of a genuine issue of material fact.” In re Oracle Corp. Sec. Litig., 627 F.3d 376 , 387 7 (9th Cir. 2010) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). The moving party 8 may accomplish this by “citing to particular parts of materials in the record, including 9 depositions, documents, electronically stored information, affidavits or declarations, stipulations 10 (including those made for purposes of the motion only), admissions, interrogatory answers, or 11 other materials,” or by showing that such materials “do not establish the absence or presence of a 12 genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” 13 Fed. R. Civ. P. 56(c)(1)(A), (B). When the non-moving party bears the burden of proof at trial, 14 “the moving party need only prove that there is an absence of evidence to support the non-moving 15 party’s case.” Oracle Corp., 627 F.3d at 387 (citing Celotex, 477 U.S. at 325 ); see also Fed. R. 16 Civ. P. 56(c)(1)(B). Indeed, summary judgment should be entered, after adequate time for 17 discovery and upon motion, against a party who fails to make a showing sufficient to establish the 18 existence of an element essential to that party’s case, and on which that party will bear the burden 19 of proof at trial. See Celotex, 477 U.S. at 322 . “[A] complete failure of proof concerning an 20 essential element of the nonmoving party’s case necessarily renders all other facts immaterial.” [21] Id. at 322–23. In such a circumstance, summary judgment should be granted, “so long as 22 whatever is before the district court demonstrates that the standard for the entry of summary 23 judgment . . . is satisfied.” Id. at 323 . 24 If the moving party meets its initial responsibility, the burden then shifts to the opposing 25 party to establish that a genuine issue as to any material fact actually does exist. See Matsushita 26 Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the 27 existence of this factual dispute, the opposing party may not rely upon the allegations or denials 28 of its pleadings but is required to tender evidence of specific facts in the form of affidavits or 1 admissible discovery material in support of its contention that the dispute exists. See Fed. R. Civ. 2 P. 56 (c)(1); Matsushita, 475 U.S. at 586 n.11; Orr v. Bank of Am., NT & SA, 285 F.3d 764 , 773 3 (9th Cir. 2002) (“A trial court can only consider admissible evidence in ruling on a motion for 4 summary judgment.”). The opposing party must demonstrate that the fact in contention is 5 material, i.e., a fact that might affect the outcome of the suit under the governing law, see 6 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986), and that the dispute is genuine, i.e., 7 the evidence is such that a reasonable jury could return a verdict for the non-moving party, see id. 8 at 250; Wool v. Tandem Computs. Inc., 818 F.2d 1433, 1436 (9th Cir. 1987). 9 In the endeavor to establish the existence of a factual dispute, the opposing party need not 10 establish a material issue of fact conclusively in its favor. It is sufficient that “the claimed factual 11 dispute be shown to require a jury or judge to resolve the parties’ differing versions of the truth at 12 trial.” T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626 , 631 (9th Cir. 1987). 13 Thus, the “purpose of summary judgment is to ‘pierce the pleadings and to assess the proof in 14 order to see whether there is a genuine need for trial.’” Matsushita, 475 U.S. at 587 (citations 15 omitted). 16 “In evaluating the evidence to determine whether there is a genuine issue of fact,” the 17 court draws “all inferences supported by the evidence in favor of the non-moving party.” Walls v. 18 Cent. Contra Costa Cnty. Transit Auth., 653 F.3d 963, 966 (9th Cir. 2011). It is the opposing 19 party’s obligation to produce a factual predicate from which the inference may be drawn. See 20 Richards v. Nielsen Freight Lines, 602 F. Supp. 1224 , 1244–45 (E.D. Cal. 1985), aff’d, 810 F.2d 21 898, 902 (9th Cir. 1987). Finally, to demonstrate a genuine issue, the opposing party “must do 22 more than simply show that there is some metaphysical doubt as to the material facts. . . . Where 23 the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, 24 there is no ‘genuine issue for trial.’” Matsushita, 475 U.S. at 587 (citation omitted). 25 ANALYSIS 26 As a preliminary matter, the court will first address defendant’s evidentiary objections and 27 request for judicial notice. Then the court will turn to consideration of whether defendant is 28 entitled to summary judgment in its favor on each of plaintiff’s claims. 1 A. Defendant’s Objections to Plaintiff’s Evidence 2 In support of her opposition to the pending motion for summary judgment, plaintiff 3 submitted only two pieces of evidence: (1) a single-page photocopy of a document that is 4 attached as an exhibit to plaintiff’s counsel’s declaration and that counsel identifies as “County of 5 Sacramento Report on Program Managers without Degrees,” and (2) plaintiff’s own declaration, 6 which is dated April 21, 2022 and which does include any exhibits. (Doc. No. 45-1.) As noted, 7 defendant filed objections to plaintiff’s evidence. (Doc. No. 48-1.) Plaintiff did not file a 8 response to those objections. 9 First, defendant objects to the exhibit attached to plaintiff’s counsel’s declaration on the 10 grounds that: (1) plaintiff has not established foundation and authentication of this purported 11 report, which appears to have been altered with handwritten notations and contain inadmissible 12 hearsay; and (2) plaintiff’s counsel lacks personal knowledge of this document. (Doc. Nos. 48-1 13 at 6, 48-2 at 5.) Defendant also notes that the document is poorly photocopied, rendering it 14 unreadable. (Doc. No. 48-2 at 5.) Defendant’s objections are well taken. The photocopied 15 document is not only blurry, but there also appears to be a pie chart that may have been color16 coded in the original document and now appears completely blacked out in the photocopy. As a 17 result, this apparent pie chart and its accompanying legend cannot be read. There are also 18 handwritten numbers on the pie chart, perhaps added to clarify the information that is blacked out, 19 but it is not clear by whom, or when, such an alteration to the document was made, necessarily 20 calling into question the authenticity of the document. Moreover, plaintiff’s counsel’s declaration 21 does not supply any information regarding how counsel obtained this particular document; the 22 exhibit is merely attached to the declaration and represented to be a “true and correct copy of 23 County of Sacramento Report on Program Managers without Degrees.” (Doc. No. 45-1 at ¶ 3.) 24 It is not clear where plaintiff’s counsel derived this supposed title for the document, which itself 25 states at the top of the page: “Human Services Program Manager Data for PRA.” (Doc. No. 4526 1.) In plaintiff’s declaration and opposition to the pending motion, plaintiff states that she 27 “received documents from defendant after a public records request was submitted to determine 28 how many Program Managers had a bachelor’s degree,” and “the report provided that 8 out of 17 1 active program managers did not have a bachelor’s degree.” (Doc. Nos. 45-1 at 5, ¶¶ 14, 16; 45 2 at 3.) Plaintiff does not, however, specify who submitted the public records request or when such 3 a request was submitted. In addition, although plaintiff relies on this purported report as evidence 4 that the County hires employees who do not meet the minimum qualifications despite its stated 5 policy, plaintiff has not submitted any evidence that having a bachelor’s degree was a job 6 requirement during the years listed in the document, 1988 through 2007—over a decade before 7 plaintiff submitted the job applications at issue in this action. For this additional reason, even if 8 the document were deemed to constitute otherwise admissible evidence for the purposes of 9 summary judgment, plaintiff has not established that the information purportedly reflected in the 10 document has any relevance to her claims asserted in this action. Thus, defendant’s objection as 11 to this document is sustained. 12 Second, defendant objects to several statements made by plaintiff in her declaration as 13 vague, irrelevant, lacking foundation, and lacking personal knowledge. (Doc. No. 48-1 at 2–6.) 14 The court need not rule on these objections, however, because the court does not rely on this 15 challenged evidence submitted by plaintiff in resolving the pending motion. 16 B. Defendant’s Request for Judicial Notice 17 In support of its motion for summary judgment, defendant filed a request for judicial 18 notice of two documents: (1) the notice of appeal filed in Bradley v. County of Sacramento, et al, 19 No. 2:13-cv-02420-TLN-DB, Doc. No. 80 (E.D. Cal. Oct. 11, 2017); and (2) Section 2.78.294 of 20 the Personnel Ordinance of the Sacramento County Code, which defines the term “transfer.” 21 (Doc. No. 41-2.) Plaintiff did not address defendant’s request for judicial notice in her opposition 22 to the pending motion. 23 Pursuant to Federal Rule of Evidence 201(b), a court may “judicially notice a fact that is 24 not subject to reasonable dispute because it: (1) is generally known within the trial court’s 25 territorial jurisdiction; or (2) can be accurately and readily determined from sources whose 26 accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b). Public records are properly 27 the subject of judicial notice because the contents of such documents contain facts that are not 28 subject to reasonable dispute, and the facts therein “can be accurately and readily determined 1 from sources whose accuracy cannot reasonably be questioned.” Id. Courts “may take judicial 2 notice of court filings and other matters of public record.” Reyn’s Pasta Bella, LLC v. Visa USA, 3 Inc., 442 F.3d 741 , 746 (9th Cir. 2006). Courts may also take judicial notice of county codes that 4 “can be accurately determined from other reliable sources.” Araujo v. Coachella Valley Water 5 Dist., No. 20-cv-01800-AJB-RBM, 2021 WL 5989943 , at *2 (S.D. Cal. Dec. 17, 2021). 6 Accordingly, the court will grant defendant’s unopposed request for judicial notice. 7 C. Defendant’s Motion for Summary Judgment 8 1. Plaintiff’s Discrimination Claims under Title VII and FEHA (Claims 1 and 2) 9 “Title VII prohibits employers from discriminating against an individual based on race.” 10 Surrell v. Cal. Water Serv. Co., 518 F.3d 1097, 1103 (9th Cir. 2008) (citing 42 U.S.C. § 2000e-2). 11 Similarly, under the FEHA, it is unlawful for an employer “to discriminate against [a] person in 12 compensation or in terms, conditions, or privileges of employment” because of that person’s 13 “race.” Cal. Gov’t Code § 12940(a). 14 In reviewing employees’ claims that their employers have engaged in discrimination in 15 violation of Title VII and/or FEHA, courts rely on the three-part burden-shifting framework 16 enunciated by the Supreme Court in McDonnell Douglas Corp v. Green, 411 U.S. 792 (1973). 17 See Means v. City & Cnty. of San Francisco, Dep’t of Pub. Health, 749 F. Supp. 2d 998 , 1004 18 (N.D. Cal. 2010) (noting that courts apply the same burden-shifting analysis to discrimination 19 claims brought under Title VII and FEHA); see also Surrell, 518 F.3d at 1105 (Title VII claims); 20 Guz v. Bechtel Nat. Inc., 24 Cal. 4th 317, 354 (2000) (FEHA claims). 21 To make out a prima facie case under McDonnell Douglas in the context of an employee’s 22 failure-to-promote claim, “a plaintiff must show that (1) she belongs to a protected class; (2) she 23 applied for and was qualified for the position she was denied; (3) she was rejected despite her 24 qualifications; and (4) the employer filled the position with an employee not of plaintiff’s class, 25 or continued to consider other applicants whose qualifications were comparable to plaintiff’s after 26 rejecting plaintiff.” Dominguez-Curry v. Nevada Transp. Dep’t, 424 F.3d 1027, 1037 (9th Cir. 27 2005). “At summary judgment, the degree of proof necessary to establish a prima facie case is 28 ///// 1 ‘minimal and does not even need to rise to the level of a preponderance of the evidence.’” Id. 2 (quoting Lyons v. England, 307 F.3d 1092, 1112 (9th Cir. 2002)). 3 If the plaintiff establishes the prima facie case, a rebuttable presumption arises that the 4 employer unlawfully discriminated against the plaintiff, and the “burden of production then shifts 5 to the employer to articulate a legitimate, nondiscriminatory reason for its action.” Dominguez6 Curry, 424 F.3d at 1037 . If the employer meets its burden, then the rebuttable presumption 7 “simply drops out of the picture.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993). The 8 employee must then “produce sufficient evidence to raise a genuine issue of material fact as to 9 whether the employer’s proffered nondiscriminatory reason is merely a pretext for 10 discrimination.” Dominguez-Curry, 424 F.3d at 1037 . At this final step, the employee “must do 11 more than . . . deny the credibility of the [employer’s] witnesses,” rather, she must offer “specific 12 and significantly probative evidence” that the employer’s proffered reasons are pretextual. 13 Schuler v. Chronicle Broad. Co. Inc., 793 F.2d 1010, 1011 (9th Cir. 1986). An employee can 14 establish pretext “either (1) directly by persuading the court that a discriminatory reason more 15 likely motivated the employer or (2) indirectly by showing that the employer’s proffered 16 explanation is unworthy of credence.” Texas Dep’t of Cmty. Affs. v. Burdine, 450 U.S. 248 , 256 17 (1981). “Ultimately, the plaintiff’s burden is to ‘produce some evidence suggesting that [the 18 defendant’s] failure to promote [her] was due in part or whole to discriminatory intent.’” 19 Dominguez-Curry, 424 F.3d at 1037 (quoting McGinest v. GTE Serv. Corp., 360 F.3d 1103 , 1123 20 (9th Cir. 2004)). 21 Here, defendant moves for summary judgment in its favor on plaintiff’s Title VII and 22 FEHA discrimination claims on the grounds that plaintiff cannot establish a prima facie case as to 23 any of the three job applications that she submitted to the County. (Doc. No. 41-1 at 16–20.) 24 First, defendant argues that plaintiff cannot satisfy the second element of these discrimination 25 claims because she was not qualified for any of those positions. (Id.) As to plaintiff’s application 26 for the interclass transfer to the Civil Service Specialist position, defendant argues that the 27 undisputed facts on summary judgment establish that plaintiff’s application was denied because 28 she did not meet the County’s salary criteria and thus did not qualify for that transfer. (Doc. No. 1 41-1 at 16–17.) As to plaintiff’s application for a promotion to the Human Services Program 2 Manager position, defendant argues that the undisputed facts establish that plaintiff’s application 3 was rejected because she did not satisfy the minimum qualification of at least two years of 4 “supervisory and/or management experience.” (Doc. No. 41-1 at 17–19.) As to plaintiff’s 5 application for a promotion to the Human Services Program Planner position, defendant argues 6 that the undisputed facts establish that plaintiff’s application was rejected because she did not 7 satisfy the minimum qualification of at least “three years of professional and/or supervisory 8 experience in program coordination, planning, development and/or evaluation.” (Doc. No. 41-1 9 at 19–20; DUF ¶ 58.) In addition, defendant argues that plaintiff has not submitted any 10 competent evidence as to the fourth element of her discrimination claims—i.e., that the County 11 “filled the position with an employee not of plaintiff’s class, or continued to consider other 12 applicants whose qualifications were comparable to plaintiff’s after rejecting plaintiff.” (Doc. 13 No. 41-1 at 18); Dominguez-Curry, 424 F.3d at 1037 . Defendant emphasizes the undisputed fact 14 that the County hired individuals who identified as African American (i.e., individuals who are 15 members of plaintiff’s class) for the manager and planner positions to which plaintiff had applied. 16 (Doc. No. 41-1 at 18, 20.) Specifically, it is undisputed that the County hired four individuals to 17 fill the program manager vacancies, one of whom identified as African American, and the County 18 hired four individuals who identified as African American to fill the program planner position 19 vacancies. (Doc. No. 41-1 at 18.) 20 In her opposition, plaintiff does not contest nor dispute that she lacked the minimum 21 qualifications for these three positions. Rather, plaintiff essentially argues that, despite the 22 County’s written policies that an applicant must satisfy a position’s minimum qualifications, the 23 County does not consistently apply this policy because the County hires individuals who do not 24 satisfy the minimum qualifications. (Doc. No. 45 at 7–9.) Plaintiff does not, however, provide 25 any competent evidence to support this argument. As noted above, the court has already 26 sustained defendant’s evidentiary objections to the only documentary evidence that plaintiff has 27 submitted in support of her opposition to the pending motion for summary judgment—a 28 photocopy of a purported report reflecting that 8 out of 17 program managers hired by the County 1 between 1988 and 2007 did not have a bachelor’s degree. (Doc. No. 45-1 at 8.) Even if the court 2 were to consider this document, plaintiff has not shown that this purported report has any 3 relevance to plaintiff’s claims asserted in this case. Notably, plaintiff’s applications were 4 submitted ten years after the hiring dates listed in the purported report, and the County rejected 5 plaintiff’s applications due to her lack of certain experience, not due to her lack of having a 6 bachelor’s degree—indeed, the parties do not dispute that plaintiff has earned a bachelor’s degree. 7 (See PUF ¶ 16.) Moreover, although there is no dispute that having a bachelor’s degree was a 8 minimum qualification for the program manager position at the time plaintiff applied for it in 9 2018 (see id.), plaintiff has not proffered any evidence that the County had similarly required a 10 bachelor’s degree for the program manger position throughout the time period reflected in the 11 report—10–30 years ago. Thus, plaintiff’s reliance on this purported report is unavailing, even if 12 the court were to deem it admissible evidence. 13 Plaintiff’s reliance on her own declaration—the only other evidence that she has 14 submitted for the court’s consideration on summary judgment—is also unavailing because the 15 statements in her declaration are largely irrelevant and are insufficient to meet even the minimal 16 “degree of proof necessary to establish a prima facie case.” Dominguez-Curry, 424 F.3d at 1037 . 17 For example, plaintiff declares that she has “witnessed younger and non-black employees who 18 have considerably less experience than [her] get either promoted to supervisor or manager 19 positions or move laterally to different positions such as Social Worker.” (Doc. No. 45-1 at 5, ¶ 20 10.) However, the statement that other employees had “less experience” than plaintiff is too 21 vague to be relevant or probative here. The County’s basis for rejecting plaintiff’s applications 22 for promotion was plaintiff’s lack of a specific type of required experience: supervisory and/or 23 management experience, and professional and/or supervisory experience. As for the employees 24 that plaintiff declares she witnessed move to lateral positions, plaintiff’s statement in her 25 declaration is not relevant because the declaration is silent as to whether those employees 26 satisfied the salary criteria for their lateral transfer, which was the County’s basis for denying 27 plaintiff’s transfer application. In another example, plaintiff declares that “[s]everal years back 28 [she] became aware that employees working in manager positions did not have the minimum 1 qualifications to work as Program Managers or Program Planners.” (Doc. No. 45-1 at 5, ¶ 13.) 2 Not only is “several years back” too indefinite to be probative of the County’s actions/policies 3 when plaintiff submitted the job applications at issue in this action, but the only elaboration 4 plaintiff provides as foundation for this statement is the purported report she received from the 5 County “after a public records request was submitted to determine how many Program Managers 6 had a bachelor’s degree.” (Id. at ¶ 14.) As explained above, plaintiff has not shown how the 7 information reflected in this purported report is relevant to her claims brought in this action. 8 Finally, plaintiff declares that she applied for the Program Planner and Program Manager 9 positions, despite knowing that she lacked the stated minimum qualifications, because she 10 understood that the minimal qualifications were “optional.” (Id. at ¶ 18.) Yet, when plaintiff 11 received the emailed letters rejecting her applications based on her failure to satisfy the minimum 12 qualifications, plaintiff did not take any step to contest the rejections or seek clarification 13 regarding the County’s policy, either by contacting the specified person in the Employment 14 Services Division or by filing an appeal with the Civil Service Commission. (DUF ¶¶ 32, 52, 67.) 15 In light of these undisputed facts, including most importantly that plaintiff lacked the 16 requisite qualifications for each of three positions and that the County hired individuals who 17 identified as African American for the promotional positions, the court finds that plaintiff’s vague 18 and unsubstantiated statements in her declaration are insufficient to meet her burden at the first 19 step of the McDonnell Douglas burden-shifting framework. Plaintiff has failed to establish a 20 prima facie case of racial discrimination in the County’s denial of her application for a lateral 21 transfer and rejection of her two applications for a promotion.6 22 Accordingly, defendant’s motion for summary judgment as to plaintiff’s Title VII and 23 FEHA discrimination claims will be granted. 24 ////// 25 ///// [26] 6 Because the court concludes that plaintiff has failed to make a prima facie showing as to her 27 discrimination claims, the court need not analyze the second and third steps of the burden shifting framework: whether defendant had legitimate, non-discriminatory reasons for not accepting 28 plaintiff’s applications, and whether plaintiff has established pretext by specific evidence. 1 2. Plaintiff’s FEHA Claim of Failure to Prevent Discrimination (Claim 3) 2 FEHA makes it unlawful “for an employer . . . to fail to take all reasonable steps 3 necessary to prevent discrimination . . . from occurring” in the workplace. Cal. Gov’t Code 4 § 12940(k). To prevail “on a claim of failure to prevent discrimination,” a plaintiff “must show 5 three essential elements: 1) plaintiff was subjected to discrimination, . . .; 2) defendant failed to 6 take all reasonable steps to prevent discrimination, . . . ; and 3) this failure caused plaintiff to 7 suffer injury, damage, loss or harm.” Lelaind v. City and Cnty. of San Francisco, 576 F. Supp. 2d 8 1079, 1103 (N.D. Cal. 2008). “Under California law, a plaintiff cannot succeed on a cause of 9 action for failure to prevent discrimination where no discrimination occurred.” Merrick v. Hilton 10 Worldwide, Inc., No. 13-cv-1568-LAB-BGS, 2014 WL 5800272 , at *9 (S.D. Cal. Nov. 7, 11 2014), aff’d, 867 F.3d 1139 (9th Cir. 2017) (citing Trujillo v. N. Cnty. Transit Dist., 63 Cal. App. 12 4th 280, 288 (1998) (“[T]here’s no logic that says an employee who has not been discriminated 13 against can sue an employer for not preventing discrimination that didn’t happen, for not having a 14 policy to prevent discrimination when no discrimination occurred.”)). 15 Here, because the court has concluded that defendant is entitled to summary judgment on 16 plaintiff’s racial discrimination claims, plaintiff’s claim that defendant failed to prevent 17 discrimination necessarily fails as well. See Lopez v. WinCo Holdings, Inc., No. 19-cv-0572718 CRB, 2021 WL 3773619 , at *19 (N.D. Cal. Aug. 25, 2021), aff’d, No. 21-16565, 2022 WL 19 17547804 (9th Cir. Dec. 9, 2022) (granting the defendant’s motion for summary judgment on the 20 plaintiff’s failure-to-prevent claim because the plaintiff’s discrimination claim failed); Adetuyi v. 21 City & Cnty. of San Francisco, 63 F. Supp. 3d 1073, 1093 (N.D. Cal. 2014) (granting the 22 defendant’s motion for summary judgment on the plaintiff’s failure-to-prevent claim because the 23 plaintiff “failed to establish his claims of discrimination and retaliation”). 24 Accordingly, defendant’s motion for summary judgment as to plaintiff’s FEHA claim of 25 failure to prevent discrimination will also be granted. 26 3. Plaintiff’s Retaliation Claims under Title VII and FEHA (Claims 4 and 5) 27 Title VII prohibits retaliation by an employer “against an employee for making a charge 28 or otherwise participating in a Title VII proceeding.” Nilsson v. City of Mesa, 503 F.3d 947 , 953 1 (9th Cir. 2007). Under § 704 of the Civil Rights Act of 1964, it is unlawful 2 for an employer to discriminate against any of his employees . . . because [the employee] has opposed any practice made an unlawful 3 employment practice by [Title VII], or because [the employee] has made a charge, testified, assisted, or participated in any manner in 4 an investigation, proceeding, or hearing under [Title VII]. 5 42 U.S.C. § 2000e-3. Like Title VII, California law also prohibits retaliation by an employer 6 against an employee. Specifically, FEHA makes it unlawful for “[f]or any employer . . . to 7 discharge, expel, or otherwise discriminate against any person because the person has opposed 8 any practices forbidden under this part or because the person has filed a complaint, testified, or 9 assisted in any proceeding under this [Act].” Cal. Gov’t Code § 12940(h). 10 Under both Title VII and FEHA, to establish a retaliation claim “a plaintiff must prove 11 that (1) the plaintiff engaged in a protected activity, (2) the plaintiff suffered an adverse 12 employment action, and (3) there was a causal link between the plaintiff’s protected activity and 13 the adverse employment action.” Poland v. Chertoff, 494 F.3d 1174 , 1179–80 (9th Cir. 2007); 14 see also Yanowitz v. L’Oreal USA, Inc., 36 Cal. 4th 1028, 1042 (2005). 15 Similar to discrimination claims brought under Title VII and FEHA, retaliation claims 16 brought under these statutes are also analyzed using the McDonnel Douglas burden-shifting 17 framework. See Sorensen v. Nat’l R.R. Passenger Corp., 786 F. App’x 652 , 653 (9th Cir. 2019) 18 (noting that FEHA retaliation claims “are assessed under the familiar three-step McDonnell 19 Douglas burden-shifting framework”)7; McGinest, 360 F.3d at 1124 (“Like discrimination, 20 retaliation may be shown using the McDonnell Douglas burden shifting framework.”). Under this 21 framework, if the plaintiff establishes a prima facie case, “the burden of production shifts to the 22 defendant to articulate a legitimate, non-retaliatory explanation for the adverse employment 23 action.” Winarto v. Toshiba Am. Elecs. Components, Inc., 274 F.3d 1276, 1284 (9th Cir. 2001). 24 If the employer articulates a legitimate reason for its action, the plaintiff must then show that the 25 reason given is pretextual. Pottenger v. Potlatch Corp., 329 F.3d 740, 746 (9th Cir. 2003); see 26 also Yanowitz, 36 Cal. 4th at 1042 (“If the employer produces a legitimate reason for the adverse [27] 7 Citation to this unpublished Ninth Circuit opinion is appropriate pursuant to Ninth Circuit Rule 28 36-3(b). 1 employment action, the presumption of retaliation ‘drops out of the picture’ . . . .”). 2 Here, plaintiff’s retaliation claims are solely based on her allegations that the County 3 retaliated against her by increasing her workload because she appealed from an adverse judgment 4 in another discrimination lawsuit that she had brought against the County in 2013. (Doc. No. 36 5 at 8–10.) As noted above, plaintiff has not been consistent in her accounts of when her workload 6 increased; she alleged in her SAC that she filed the appeal in 2018, but she testified at her 7 deposition that she filed her appeal in 2016 and her workload was increased in 2017 or 2018. 8 (DUF ¶ 26; Doc. Nos. 36 at ¶ 49; 41-5 at 24–25, 26–27.) However, in connection with 9 defendant’s pending motion, the parties do not dispute that plaintiff filed the appeal in her age 10 discrimination lawsuit on October 11, 2017. (DUF ¶ 73.) While the exact timing of the alleged 11 increase in plaintiff’s workload remains unclear, according to plaintiff, she had been required to 12 perform only 2–3 intake interviews per day pursuant to an (unspecified) disability 13 accommodation under the Americans with Disabilities Act (“ADA”), and the County increased 14 her workload to 3–4 intake interviews per day. (Doc. No. 45 at 10.) 15 In moving for summary judgment in its favor as to plaintiff’s retaliation claims, defendant 16 argues that plaintiff “fails to establish a prima facie case because she cannot show that she 17 suffered an adverse employment action,” and she cannot show that a causal link existed between 18 her protected activity (filing a notice of appeal in her age discrimination lawsuit) and the alleged 19 adverse employment action (increased workload). (Doc. No. 41-1 at 22.) According to 20 defendant, the alleged change in plaintiff’s workload reflects a “return to normal,” not an 21 increase, because full-time Human Services Specialists conduct 4–5 intake interviews per day. 22 (Doc. No. 41-1 at 23.) Defendant argues that such a “return to normal” cannot be deemed an 23 adverse employment action because it does not “materially affect the terms, conditions, or 24 privileges of employment.” (Doc. No. 41-1 at 22–23) (quoting Yanowitz, 36 Cal. 4th at 1051 ). 25 Plaintiff counters that because she had been on a limited workload, the other employees 26 who consistently conducted 4–5 intake interviews per day were not similarly situated to plaintiff. 27 (Doc. No. 45 at 10.) Plaintiff does not provide any detail whatsoever regarding her ADA 28 accommodation, including whether such an accommodation was still in effect when her workload 1 was increased, whether she discussed her ADA accommodation with her supervisors when her 2 workload was increased, or whether she even asked her supervisors to reinstate her limited, light3 duty workload in accordance with that ADA accommodation. Nevertheless, the court need not 4 resolve the parties’ competing characterizations of plaintiff’s alleged change in workload 5 because, even assuming that plaintiff has shown that the change constitutes an adverse 6 employment action, plaintiff has not shown a causal link between her filing of the appeal in her 7 prior federal lawsuit and the change in her workload. 8 Plaintiff’s sole argument regarding causation is that the workload increase was “the only 9 thing that has changed in [her] employment.” (Doc. No. 45 at 11.) While not explicitly stated, 10 plaintiff is essentially arguing that the proximity in time between her filing of the appeal to the 11 Ninth Circuit and the increase in her workload is sufficient to establish the existence of a causal 12 link. Plaintiff’s argument in this regard fails for two key reasons. First, plaintiff has not 13 proffered any evidence of when her workload increased, and her own accounts regarding when 14 that took place have been inconsistent. In plaintiff’s declaration (her most recent account), 15 plaintiff avoids mentioning a date altogether and instead declares that “after [she] appealed the 16 court’s decision, [she] recalls [her] workload jumping up to 3 to 4 case intakes per day.” (Doc. 17 No. 45-1 at 6, ¶ 26.) This lack of clarity and specificity regarding when plaintiff’s workload 18 allegedly increased hinders the court’s ability to draw an inference of a causal link based on 19 temporal proximity. Second, and most important, plaintiff has not made any showing that her 20 supervisors had knowledge of her engagement in protected activity. See Kasbarian v. Equinox 21 Holdings, Inc., 739 F. App’x 397 , 401 (9th Cir. 2018)8 (quoting McRae v. Dep’t of Corr. & 22 Rehab., 142 Cal. App. 4th 377, 388 (2006)) (explaining that a plaintiff can make a prima facie 23 showing of a causal link “by producing evidence of nothing more than the employer’s knowledge 24 that the employee engaged in protected activities and the proximity in time between the protected 25 action and the allegedly retaliatory employment decision”). Here, it is undisputed that plaintiff 26 does not recall whether she ever discussed her age discrimination lawsuit with her supervisors, [27] 8 Citation to this unpublished Ninth Circuit opinion is appropriate pursuant to Ninth Circuit Rule 28 36-3(b). 1 | plaintiff admitted that she did not inform her supervisors when she filed her appeal in that earlier 2 | case, and plaintiff is not aware of whether any of her supervisors even knew of her appeal. (DUF 3 | 971-75.) In light of these undisputed facts, coupled with the plaintiff's scant and 4 | unsubstantiated evidence, the court concludes that plaintiff has not established a prima facie case 5 | of retaliation. See McGinest, 360 F.3d at 1124-25 (affirming the district court’s granting of 6 | summary judgment in favor of the employer where the employee had “not presented sufficient 7 || evidence to demonstrate a causal link between his complaint and the denial of the promotion”). 8 Accordingly, defendant’s motion for summary judgment on plaintiff's Title VII and 9 | FEHA retaliation claims will also be granted. 10 CONCLUSION 11 For the reasons explained above, 12 1. Defendant’s request for judicial notice (Doc. No. 41-2) is granted; 13 2. Defendant’s motion for summary judgment (Doc. No. 41) is granted in its entirety; 14 3. Judgment shall be entered in favor of defendant; and 15 4. The Clerk of the Court is directed to close this case. 16 IT IS SO ORDERED. 'T | Dated: _ March 28, 2023 Dae A. 2, sel 18 UNITED STATES DISTRICY JUDGE