Lynch v. City & County of San Francisco

[3] 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA [6] 7 KIM LYNCH, Case No. 21-cv-02932-EMC 8 Plaintiff, ORDER GRANTING DEFENDANT’S 9 v. MOTION FOR SUMMARY JUDGMENT 10 CITY & COUNTY OF SAN FRANCISCO, Docket No. 30 11 Defendant. [13] 14 Plaintiff Kim C. Lynch filed suit against Defendant City and County of San Francisco 15 (“the City”) for various claims related to her employment with the City. Docket No. 3 (“FAC”). 16 Now pending before the Court is the City’s motion for summary judgment and request for judicial 17 notice in support of its motion for summary judgment. Docket No. 30 (“MSJ”); Docket No. 31 18 (“RJN”). 19 For the following reasons, the Court GRANTS the City’s motion for summary judgment 20 and GRANTS the City’s request for judicial notice. 21 I. FACTUAL AND PROCEDURAL BACKGROUND 22 A. Factual Background 23 Ms. Lynch is an African American woman hired by the City as a substance abuse 24 counselor in 2006. Docket No. 30-2 (Declaration of Conor Dale (“Dale Decl.”) Exh. 1 25 (Deposition of Kim C. Lynch (“Lynch Dep.”)) at 46:2–46:11. Ms. Lynch worked as part of the 26 Office Based Opiate Treatment (“OBOT”) Program, which is a substance abuse and addiction 27 medicine treatment program operated by the City and the University of California, San Francisco 1 In 2013, Ms. Lynch was transferred to the Tom Waddell Urban Health Clinic (“the 2 Clinic”) at 230 Golden Gate Avenue, San Francisco, CA 94102. Lynch Dep. at 48:15–49:9. The 3 Clinic primarily provides medical care to adults experiencing homelessness, residents of 4 supportive housing, and other members of the City’s Tenderloin neighborhood community. Pace 5 Decl. ¶ 3. In her substance abuse counselor role, Ms. Lynch had a caseload of 40 to 67 homeless 6 patients. Lynch Dep. at 91:22–25, 92:12–93:3. She provided substance abuse counseling services 7 to patients, including collecting urine samples, ensuring patients were taking their medication, 8 referring patients to appropriate healthcare providers, coordinating with doctors and social 9 workers, and completing paperwork for treatment plans and counseling documentations. Lynch 10 Dep. at 89:17–90:25. She worked with nurses, psychologists, social workers, and doctors within 11 and outside the City. Lynch Dep. at 90:8–11. 12 While in the OBOT Program, Ms. Lynch was supervised by UCSF personnel. Docket No. 13 30-1 (Declaration of Natalie Bradley (“Bradley Decl.”)) ¶ 3. Ms. Lynch worked from 7:00AM to 14 4:00PM, Monday through Friday. Lynch Dep. at 63:4–9. She did not work overtime. Lynch 15 Dep. at 104:15–17. Ms. Lynch worked alongside City nurse Margaret Farny from 2006 to 2019. 16 Lynch Dep. at 65:17–14. After Farny retired, Ms. Lynch worked with City nurse Sheryl Castro. 17 Lynch Dep. at 65:12–19. Ms. Lynch was not required “to perform duties that [she] believed were 18 beyond her job description.” Lynch Dep. at 103:25–104:6. She was not “required to perform job 19 duties that [she] felt were menial or below [her] job duties.” Lynch Dep. at 104:7–10. Ms. Lynch 20 was never “disciplined for any reason.” Lynch Dep. at 111:21–23. She did not “ever receive a 21 negative performance appraisal.” Lynch Dep. at 115:13–15. 22 In response to the pandemic, UCSF management implemented remote and in-person 23 determinations for those in the OBOT program. Natalie Bradley, Ms. Lynch’s UCSF clinical 24 supervisor, determined that Ms. Lynch should be able to perform remote work on a part-time basis 25 during the pandemic. Bradley Decl. ¶¶ 7–8. However, Ms. Lynch was specifically responsible for 26 maintaining the confidentiality of patient substance abuse records under “local, state and federal [27] 1 confidentiality regulations,” including 42 C.F.R. Part 2.1 Docket No. 30-2 Exh. 2 (DPH Job 2 Description for Substance Abuse Counselors). Accordingly, her remote work determination was 3 not immediately implemented because “there was not a laptop computer immediately available . . . 4 that could safely and securely store confidential substance abuse patient records . . . to provide to 5 Ms. Lynch to perform remote work and [Bradley] needed to coordinate with, and inform, City of 6 San Francisco representatives regarding [her] decision to offer Ms. Lynch the opportunity to 7 perform remote work.” Bradley Decl. ¶ 9. Bradley also explains that “[i]n order to limit Ms. 8 Lynch’s exposure to the coronavirus, many of Ms. Lynch’s clinical responsibilities were modified 9 during periods of the coronavirus pandemic, such as Ms. Lynch not having to have face to face 10 meetings with patients and not taking and processing patient urine samples.” Bradley Decl. ¶ 13. 11 After an appropriate laptop was procured a few months later, Ms. Lynch was offered the 12 opportunity to perform remote work on a part-time schedule. Lynch Dep. at 213:3–15. Ms. 13 Lynch declined: “But by this time, I said, ‘Forget it. I’ll stay here and work on the front lines.’” 14 Lynch Dep. at 213:3–15. City nurse Sheryl Castro also performed in-person throughout the 15 pandemic. Bradley Decl. ¶ 15. During the pandemic, Ms. Castro was deployed to other homeless 16 housing sites, thus increasing Ms. Lynch’s workload for reasons that Ms. Lynch asserted did not 17 have “anything to do with race.” Lynch Dep. at 99:12–102:10, 102:25–103:18. Other than that 18 period, Ms. Lynch testified that her job duties did not change. Lynch Dep. at 103:19–23. 19 Ms. Lynch also participated in racial and equity groups for labor management that met 20 about five times between 2016 and 2019. Lynch Dep. at 116:18–117:12. At one point, an 21 employee group was set up to discuss “institutional structural racism, about discriminatory 22 practices, about not having any Black doctors, no Black nurses, no Black psychiatrists, no Black 23 social workers.” Lynch Dep. at 68:17–19. The group consisted of employees of different races. 24 Lynch Dep. at 69:19–74:3. Medical Director Joseph Pace “regularly met with Ms. Lynch and 25 other employees in the Clinic employee group [] to discuss and attempt to address their concerns [27] 1 Under 42 C.F.R. Part 2, a healthcare provider must maintain “restrictions upon the disclosure and 1 regarding employee diversity and employee retention.” Pace Decl. ¶ 10. The group disbanded 2 before the pandemic because “it wasn’t going in the right direction,” because “the suggestions that 3 [the employees] came up with, Dr. Pace never followed through,” and because the members “got 4 frustrated and . . . start[ed] dropping off the group.” Lynch Dep. at 74:9–77:14. 5 While working at the Clinic, eight African American patients complained to Ms. Lynch 6 that they had been denied medical care. Lynch Dep. at 178:10–193:16. Ms. Lynch and other 7 caregivers met with Alice Chen and Roland Pickens, representatives of the Department of Public 8 Health’s San Francisco Health Clinic—which encompasses the Clinic within its network. Lynch 9 Dep. at 205:7–206:6; Docket No. 30-5 (Declaration of Roland Pickens (“Pickens Decl.”)) ¶ 2. In 10 2018, the City launched a two-month investigation into the complaints, interviewing caregivers at 11 the Clinic, evaluated its caregiving records of services to African American patients, and found 12 “no indication of racial bias in restrictions or denials of services to African American patients.” 13 Pickens Decl. ¶ 4. Pickens assisted in the investigation. Pickens Decl. ¶ 4. 14 Ms. Lynch also participated in several hiring panels for Clinic positions. Lynch Dep. at 15 117:17–19. She testified that she agreed with all the hiring panels’ selections, including the 16 selections of nurse Sheryl Castro and Dr. Royce Lin. Lynch Dep. at 117:12–120:19; 162:16–20. 17 However, Ms. Lynch “disagree[d] with it” in that there were “no Black applicants.” Lynch Dep. 18 at 162:19–20. Ms. Lynch testified that she did not know “whether any Black applicants applied 19 for the job in the first place” but repeatedly asked the question “Where are the Black applicants?” 20 to the panel members. Lynch Dep. 163:7–166:3. She also testified that a “Black psychiatrist . . . 21 came back there after his internship and told [Lynch]” that he applied for a job with the Clinic and 22 was not hired. Lynch Dep. 166:4–23. Ms. Lynch testified that during the interview of Dr. Justin 23 Morgan, an African American man, panel member Rebecca Silverman, a white manager, said, “I 24 am scared of him.” Lynch Dep. at 174, 178:1–9. 25 Ms. Lynch also makes reference to several other separate incidents related to her 26 employment at the Clinic: 27 During the December 2017 Clinic workplace holiday party, Donna James attempted to 1 James “James Dep.”) at 309:5–16. Ms. James testified that as she “walked through the door, 2 security guard grabbed my arm and said to somebody else, ‘Is she an employee here,’ with my 3 City badge on and would not let me in. And Dr. Morgan was right on side of me. And he denied 4 entry, so we left.” James Dep. at 310:3–8. Ms. James testified that she does not know whether the 5 security guard was a City employee. James Dep. at 311:20–22. Ms. James testified that she told 6 Clinic Manager Rebecca Silverman about the incident immediately afterwards but did not receive 7 any follow-up response. James Dep. at 316:18–317:5. 8 Ms. Lynch also asserts that a reoccurring problem at the Clinic was that African Americans 9 were hired but quickly dismissed while on probation. For instance, Charles Jones was put on 10 probation for not “doing the work properly” and was released during probation. Lynch Dep. at 11 120:20–122:23. Jawdean Bean was also discharged from her job as a social worker during 12 probation. Lynch Dep. at 120:20–121:18, 133:14–18; Docket No. 32-2 (Declaration of Kim 13 Lynch (“Lynch Decl.”)) ¶ 6. Ms. Lynch also testified that two doctors—Maishia Davis and 14 Lamercie Lamire—departed City employment in 2019. Lynch Dep. at 169:21–171:8. 15 Additionally, Ms. Lynch asserts that she learned of an incident of “an emotional outburst 16 and confrontation” between Jones and another employee Steven Tam. Lynch Dep. at 112:3–25; 17 Lynch Decl. ¶ 7. Ms. Lynch did not witness the incident. Lynch Dep. at 112:21–25. Ms. Lynch 18 later witnessed Mr. Tam “behaving bizarrely, screaming and yelling [and] locking himself in his 19 office.” Lynch Decl. ¶ 7. 20 Lastly, Ms. Lynch asserts that she and two other African American employees Brenda 21 Barros and Cheryl Thornton met with the Director of the Department of Public Health Dr. Grant 22 Colfax on November 10, 2019. Lynch Decl. ¶ 8. They expressed concerns about Black and 23 African American employees passed over for career opportunities, silenced or overlooked, failed 24 to be recruited and retained, and have unaddressed health disparities. Lynch Decl. ¶ 8. Ms. Lynch 25 asserts that a few months later, on January 10, 2020, she again confronted Dr. Colfax on his visit 26 to the Clinic about the dismissal of African American employees during probation. Lynch Decl. ¶ 27 9. 1 September 30, 2021. Lynch Dep. at 46:21–47:5. After retirement, she worked “with UCSF, but 2 in the same clinic.” Lynch Dep. at 46:20–21. 3 B. Procedural History 4 Ms. Lynch filed her original complaint on April 20, 2021. Docket No. 1. She then filed an 5 amended complaint, alleging (1) race-based hostile work environment in violation of the Fair 6 Employment and Housing Act (“FEHA”) and 42 U.S.C. § 1983 (“§ 1983”), (2) disparate 7 treatment discrimination under FEHA and § 1983, (3) retaliation under FEHA, § 1983, and 8 California Health and Safety Code § 1278.5, (4) disparate impact discrimination under § 1983, and 9 (5) failure to prevent discrimination and harassment from occurring under FEHA. FAC ¶¶ 47– 10 133. 11 The City filed a motion for summary judgment on October 6, 2022. Docket No. 30 12 (“MSJ”). The City also filed a request for judicial notice the same day. Docket No. 31 (“RJN”). 13 Ms. Lynch filed an opposition. Docket No. 32 (“Opp.”). The Court now considers these motions. 14 II. LEGAL STANDARD 15 A. Motion for Summary Judgment (Rule 56) 16 Federal Rule of Civil Procedure 56 provides that a “court shall grant summary judgment 17 [to a moving party] if the movant shows that there is no genuine dispute as to any material fact and 18 the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). An issue of fact is 19 genuine only if there is sufficient evidence for a reasonable jury to find for the nonmoving party. 20 See Anderson v. Liberty Lobby, Inc., 477 U.S. 242 , 248–49 (1986). “The mere existence of a 21 scintilla of evidence . . . will be insufficient; there must be evidence on which the jury could 22 reasonably find for the [nonmoving party].” Id. at 252 . At the summary judgment stage, evidence 23 must be viewed in the light most favorable to the nonmoving party and all justifiable inferences 24 are to be drawn in the nonmovant’s favor. See id. at 255 . 25 Where a defendant moves for summary judgment based on a claim for which the plaintiff 26 bears the burden of proof, the defendant need only point to the plaintiff’s failure “to make a 27 showing sufficient to establish the existence of an element essential to [the plaintiff's] case.” 1 B. Request for Judicial Notice (Fed. Rule of Evidence 201(b)) 2 The Court may take judicial notice of matters that are either “generally known within the 3 trial court’s territorial jurisdiction” or “can be accurately and readily determined from sources 4 whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b). However, to the extent 5 any facts in documents subject to judicial notice are subject to reasonable dispute, the Court will 6 not take judicial notice of those facts. See Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 7 2001) (“A court may take judicial notice of ‘matters of public record’ . . . [b]ut a court may not 8 take judicial notice of a fact that is ‘subject to reasonable dispute.’”) (first quoting MGIC Indem. 9 Corp. v. Weisman, 803 F.2d 500, 504 (9th Cir. 1986); then quoting Fed. R. Evid. 201(b)), 10 overruled on other grounds by Galbraith v. Cnty. of Santa Clara, 307 F.3d 1119 (9th Cir. 2002). 11 III. DISCUSSION 12 A. Request for Judicial Notice 13 As a preliminary matter, this Court grants the City’s request for judicial notice in support 14 of the City’s motion for summary judgment. The Court may take judicial notice of a public record 15 that is not subject to reasonable dispute. Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 16 2001). The Court may also take judicial notice of government records appearing on a government 17 website when the authenticity of the site is not disputed. Daniels-Hall v. Nat’l Educ. Ass’n, 629 18 F.3d 992 , 998–99 (9th Cir. 2010). Both the Article X of the Charter of the City and County of San 19 Francisco and the City and County of San Francisco Civil Service Rule 103 are public records that 20 appear on undisputed government websites. Docket No. 31, Exh. A–B. The Court takes judicial 21 notice of both. 22 B. Ms. Lynch’s Failure to Exhaust FEHA Administrative Remedies 23 In its motion for summary judgment, the City asserts that Ms. Lynch failed to file a timely 24 administrative charge before the California Department of Fair Employment and Housing 25 (“DFEH”) before filing her action for a FEHA violation in federal court. MSJ at 20. “It is 26 fundamental that where an administrative remedy is provided by statute, relief must be sought 27 from the administrative body and this remedy exhausted before the courts will act.” Okoli v. 1 omitted). “Under California law, an employee must exhaust the administrative remedy provided 2 by the Fair Employment and Housing Act, by filing an administrative complaint with the 3 California Department of Fair Employment and Housing and obtaining DFEH’s notice of right to 4 sue before bringing suit on a cause of action under the act or seeking the relief provided therein.” 5 Id. at 1613 (citing Cal. Gov’t Code §§ 12960, 12901, 12925, 12965(b)) (cleaned up). 6 Ms. Lynch has satisfied this prerequisite. The administrative exhaustion requirement is 7 met if the FEHA claims in a judicial complaint are “like and reasonably related to” the claims in 8 the administrative complaint. Wills v. Superior Ct., 195 Cal. App. 4th 143 , 154–55 (2011) 9 (permitting claims in a judicial complaint that are “within the scope of the EEOC charge, any 10 EEOC investigation actually completed, or any investigation that might reasonably have been 11 expected to grow out of the charge”). Here, in her administrative complaint, Ms. Lynch expressly 12 alleged racial discrimination, harassment, and retaliation against the City and County of San 13 Francisco, which are like and reasonably related to the claims in her judicial complaint. Docket 14 No. 30-2 Exh. 1-11 (DFEH Complaint). 15 C. Ms. Lynch’s Harassment and Hostile Work Environment Claim 16 Ms. Lynch asserts that the City subjected her to a race-based hostile work environment in 17 violation of § 1983 and FEHA. Under FEHA, “harassment” in the workplace can take the form of 18 “discriminatory intimidation, ridicule, and insult” that is “sufficiently severe or pervasive to alter 19 the conditions of the victim’s employment and create an abusive working environment.” Rehmani 20 v. Superior Ct., 204 Cal. App. 4th 945, 951 (2012) (cleaned up). Harassing conduct takes place 21 “outside the scope of necessary job performance, conduct presumably engaged in for personal 22 gratification, because of meanness or bigotry, or for other personal motives.” Id. (citing Reno v. 23 Baird, 18 Cal. 4th 640, 646 (1998)). “Thus, harassment focuses on situations in which the social 24 environment of the workplace becomes intolerable because the harassment (whether verbal, 25 physical, or visual) communicates an offensive message to the harassed employee.” Id. (citing 26 Roby v. McKesson Corp., 47 Cal. 4th 686, 707 (2009)). 27 Ms. Lynch has not shown triable issues of fact of harassment. To establish a harassment 1 Brooks v. City of San Mateo, 229 F.3d 917, 930 (9th Cir. 2000). To establish a harassment claim 2 under FEHA, a plaintiff only needs to prove that the harassing conduct is severe or pervasive. 3 Sheffield v. Los Angeles Cnty. Dep’t of Soc. Servs., 109 Cal. App. 4th 153, 161 , 134 Cal. Rptr. 2d 4 492, 498 (2003) (“However, the harassment need not be severe and pervasive in order to impose 5 liability; either severe or pervasive will suffice.”); see also Nichols v. Azteca Rest. Enterprises, 6 Inc., 256 F.3d 864 , 872 (9th Cir. 2001) (The required level of severity or seriousness “varies 7 inversely with the pervasiveness or frequency of the conduct.”). “To fulfill the ‘severe or 8 pervasive’ prong, a plaintiff must show a ‘concerted pattern of harassment of a repeated, routine, 9 or generalized nature.’” Landucci v. State Farm Ins. Co., 65 F. Supp. 3d 694, 703 (N.D. Cal. 10 2014) (internal citation omitted). In assessing whether Ms. Lynch has made out a colorable claim 11 of hostile work environment, the Court considers the “frequency, severity and level of interference 12 with work performance among the factors particularly relevant to the inquiry.” Brooks v. City of 13 San Mateo, 229 F.3d 917, 924 (9th Cir. 2000). Ms. Lynch has not presented evidence that her 14 workplace environment was rife with severe or pervasive harassment such that a reasonable jury 15 could find in her favor, even under the more lenient FEHA standard. 16 First, Ms. Lynch alleges “[o]stracism of Black employees by their managers.” FAC ¶¶ 17 58(a), 97(a). But Ms. Lynch testified that she was very involved with Clinic employees and 18 groups: she participated in equity groups, Lynch Dep. at 116:18–117:12, 69:19–74:3; she met with 19 medical directors, Lynch Dep. at 74:9–77:14; Lynch Decl. ¶ 8; she participated in hiring panels for 20 Clinic positions, Lynch Dep. at 117:17–19. Ms. Lynch fails to provide any specific data or 21 evidence that Black employees were unfairly treated generally or ostracized on a systemic basis. 22 Regarding the allegation of non-hires, Ms. Lynch admits that she agrees with the hiring panel’s 23 hiring decisions, Lynch Dep. at 162, and admits that she doesn’t know if any Black applicants 24 applied in the first place, Lynch Dep. at 163. Regarding the allegation of discharges, Ms. Lynch 25 admits that of the two examples she cites, one discharge was because the employee “wasn’t doing 26 the work properly,” Lynch Dep. at 122, and the other she had no “firsthand information” of, 27 Lynch Dep. at 133–34. She presents no evidence of actual unlawfully discriminatory personnel 1 *18 (N.D. Cal. July 13, 2021) (citing Kelley v. The Conco Companies, 196 Cal. App. 4th 191 , 212 2 (2011) (“Mere ostracism is insufficient to support a claim for hostile work environment.”). 3 Second, Ms. Lynch alleges “[p]ublic humiliation of Black employees.” FAC ¶ 58(b), 4 97(b). Specifically, she points to the “the public humiliation of Black coworkers James and 5 Morgan outside the 2017 Holiday Party.” Opp. at 17. As a preliminary matter, Ms. Lynch has 6 presented no evidence that the security guard worked for the City rather than the restaurant or 7 event service. James Dep. at 309:17–310:1. Ms. Lynch has not presented evidence or argument 8 that the City should be held responsible for the actions of non-employees. The parties also dispute 9 whether incidents occurring outside Ms. Lynch’s presence and not targeting Ms. Lynch may be 10 considered. MSJ at 9; Opp. at 16. Ms. Lynch cites Beyda v. City of Los Angeles, 65 Cal. App. 4th 11 511, 519 (1998) for the proposition that “[t]he plaintiff’s work environment is affected not only by 12 conduct directed at herself but also by the treatment of others . . . a reasonable person may be 13 affected by knowledge that other workers are being [] harassed in the workplace, even if he or she 14 does not personally witness that conduct.” Opp. at 16. Beyda also explains that “[i]f, however, 15 the plaintiff neither witnesses the other incidents nor knows that they occurred, those incidents 16 cannot affect his or her perception of the hostility of the work environment. The objective severity 17 of harassment must be judged from the perspective of a reasonable person in plaintiff’s position.” [18] 65 Cal. App. 4th at 519 . Here, it is undisputed that Ms. Lynch did not witness Ms. James and Mr. 19 Morgan’s interaction with the security guard outside the 2017 holiday party. Although Ms. James 20 later told Ms. Lynch of the incident, hearing about this incident does not rise to the level of severe 21 or pervasive workplace harassment: a reasonable person would not find that hearing about a 22 single verbal incident that occurred outside the workplace, by a security guard who may not be 23 affiliated with the City, that she did not personally witness, would cause her own work 24 environment to become “permeated by [] harassment.” See Fisher v. San Pedro Peninsula Hosp., [25] 214 Cal. App. 3d 590, 613 (Ct. App. 1989) (“ It is not sufficient to plead that a pattern of sexual 26 harassment existed at [the workplace]. [Plaintiff] being percipient, should have been able, and 27 was properly required by the law and motion judge, to allege sufficient facts to establish that her 1 that the harassment was objectively severe or pervasive in a “concerted pattern of harassment of a 2 repeated, routine, or generalized nature.’” Landucci, 65 F. Supp. 3d at 703 . 3 Third, Ms. Lynch alleges that the City “[r]equir[ed] Black employees to perform menial 4 work below their job classifications.” FAC ¶¶ 58(c), 97(c). But in her deposition, Ms. Lynch 5 contradicts this assertion. She expressly stated that she was not “required to perform job duties 6 that [she] felt were menial or below [her] job duties.” Lynch Dep. at 104:7–104:10. She also 7 provides no evidence that other Black employees were required to do so. 8 Fourth, Ms. Lynch alleges that “[d]uring the time of the COVID-19 pandemic, [the City] 9 require[ed] Black employees to perform duties that management knew exposed them to infection.” 10 FAC ¶ 58(d), 97(d). Although she asserts that “being required to work on site during the COVID 11 lockdown, as well being ordered no to wear a mask” amounted to racial harassment, Opp. at 16, 12 she presents no evidence that masking decisions or enforcement were based on racial criteria—i.e., 13 that only Black employees were ordered not to wear a mask. Lynch Dep. at 212:11–23, FAC ¶ 36. 14 Fifth, Ms. Lynch has not shown that the City made remote work determinations during the 15 COVID-19 pandemic on a racially discriminatory basis. During the pandemic, remote work 16 determinations were common and necessary personnel management decisions. Here, Ms. Lynch’s 17 clinical supervisor determined that Ms. Lynch could perform remote work part-time. Bradley 18 Decl. ¶¶ 7–8. Although “[t]his was not immediately implemented because ‘there was not a laptop 19 computer immediately available . . . that could safely and securely store confidential substance 20 abuse patient records,’” Ms. Lynch has not alleged that this delay was due to race—in fact, non21 Black City nurse Ms. Castro also performed in-person throughout the pandemic. Bradley Decl. ¶ 22 15. Moreover, Ms. Lynch’s supervisor has explained that “[i]n order to limit Ms. Lynch’s 23 exposure to the coronavirus, many of Ms. Lynch’s clinical responsibilities were modified during 24 periods of the coronavirus pandemic, such as Ms. Lynch not having to have face to face meetings 25 with patients and not taking and processing patient urine samples.” Bradley Decl. ¶ 13. Ms. 26 Lynch has not alleged specific facts otherwise. “[C]ommonly necessary personnel management 27 actions such as hiring and firing, job or project assignments, . . . promotion or demotion, [and] 1 Montblanc N. Am., LLC, 704 F.3d 1235, 1244 (9th Cir. 2013). 2 Sixth, Ms. Lynch alleges that the City “disrespect[ed] and refus[ed] to serve Black patients 3 and clientele.” FAC ¶¶ 58(e), 97(e). At this point in the litigation, Ms. Lynch has “not issue[d] 4 any written discovery requests or take[n] deposition testimony regarding any specific instances of 5 a City employee denying medical care to African American patients or the reasons why such care 6 may have been denied.” Docket No. 30-2 (Declaration of Conor Dale (“Dale Decl.”)) ¶ 9. In her 7 deposition, Ms. Lynch explained that City representatives did not follow through on her 8 complaints: “Time and time again, going to all the people they tell us to go to, including Grant 9 Colfax, the board of supervisors, Michael Brown, Alice Chen, Roland Pickens, Rhonda Simmons, 10 Karen Hill, I feel that my voice don't matter. I feel like I don’t matter. It’s a hostile work 11 environment. It’s a hurtful work environment. It’s hurtful to see Black patients go through this, 12 and I’ve been doing this for years.” Lynch Dep. at 218:1–9. According to Ms. Lynch, Micki 13 Callahan “didn’t listen to us as Black employees.” Lynch Dep. at 318:10–17. Dr. Colfax “did not 14 follow through on anything.” Lynch Dep. at 219:8–14. The Board of Supervisors “did nothing.” 15 Lynch Dep. at 219:15–23. Dr. Pace “did nothing.” Lynch Dep. at 219:24–220:2. 16 But here, the City has proffered evidence that the City did investigate. Department of 17 Public Health’s San Francisco Health Clinic representative Roland Pickens launched a two-month 18 investigation into the complaints, interviewing caregivers at the Clinic, evaluated its caregiving 19 records of services to African American patients, and found “no indication of racial bias in 20 restrictions or denials of services to African American patients.” Pickens Decl. ¶ 4. Medical 21 Director Joseph Pace “regularly met with Ms. Lynch and other employees in the Clinic employee 22 group ‘TED’ to discuss and attempt to address their concerns regarding employee diversity and 23 employee retention.” Pace Decl. ¶ 10. Department of Public Health Director of Staffing Karen 24 Hill also met with Ms. Lynch and other employees to discuss their concerns. Docket No. 30-3 25 (Declaration of Karen Hill (“Hill Decl.”)) ¶¶ 7–8. Ms. Lynch does not dispute that these 26 investigations and discussions occurred. While she complains that nothing came of these efforts, 27 she has not presented any evidence that, e.g., the investigation by Mr. Pickens which did not find 1 was not told of the results, the City found “no indication of racial bias in restrictions or denial of 2 services to African American patients” and did not widely share the results of this investigation in 3 general. Pickens Decl. at 1. And Ms. Lynch “did not issue any written discovery requests or take 4 deposition testimony regarding any investigation that the City may have made in response to 5 complaints about discriminatory patient care, the outcome of that investigation, or why the results 6 of that investigation may not have been widely shared with City employees such as Ms. Lynch.” 7 Dale Decl. at 2. Thus, she has presented no specific evidence of discrimination or of the 8 inadequacy of the City’s investigation. 9 A “failure to address” claim under FEHA would apply to employers who “fail to take all 10 reasonable steps necessary to prevent discrimination and harassment from occurring.” Cal. Gov’t 11 Code § 12940(k). However, an employee’s conclusory assertions of “inequitable” scheduling and 12 assignments and “uncomfortable” interactions with her employer “do not establish a duty concern 13 the matters on which she relies” under FEHA. Id. Likewise, Ms. Lynch has not established that 14 the City has a duty of care to take all reasonable steps to prevent discrimination and harassment 15 because she provides only conclusory assertions of a “hurtful” and “hostile” environment without 16 establishing that such discrimination or harassment actually occurred. 17 Considering the working environment “in light of the totality of the circumstances,” Miller 18 v. Dep’t of Corr., 36 Cal. 4th 446, 462 (2005), Ms. Lynch has not presented sufficient non19 conclusory evidence establishing a racially hostile working environment under either Title VII or 20 FEHA. The Court grants summary judgment in favor of the City on the harassment and hostile 21 work environment claims. 22 D. Ms. Lynch’s Disparate Discrimination Claim 23 Ms. Lynch asserts that she suffered discrimination through adverse employment actions— 24 being required to work in-person at the start of the pandemic, and workload increases at the start 25 of the pandemic—on the basis of her race. FAC ¶ 88. Under the burden-shifting framework: 26 Under McDonnell Douglas, a plaintiff alleging disparate treatment under Title VII must first establish a prima facie case of 27 discrimination. Specifically, the plaintiff must show that (1) he situated individuals outside his protected class were treated more 1 favorably. The burden of production, but not persuasion, then shifts to the employer to articulate some legitimate, nondiscriminatory 2 reason for the challenged action. If the employer does so, the plaintiff must show that the articulated reason is pretextual either 3 directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the 4 employer’s proffered explanation is unworthy of credence. 5 Chuang v. Univ. of California Davis, Bd. of Trustees, 225 F.3d 1115 , 1123–24 (9th Cir. 2000) 6 (cleaned up); see also McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). 7 Ms. Lynch does not establish a prima facie case of discrimination. As to the first and 8 second prongs, Ms. Lynch does belong to a protected racial class and was qualified for her 9 position at the Clinic. As to the third prong, Ms. Lynch was not subject to an adverse employment 10 action. An adverse employment action must “materially affect the terms and conditions of 11 employment.” Yanowitz v. L’Oreal USA, Inc., 36 Cal. 4th 1028, 1036 (2005). Ms. Lynch’s 12 workload increased only during the start of the pandemic. Lynch Dep. at 99:12–102:10, 102:25– 13 103:18, 103:19–23. But this Court has found that a workload increase is a “mere inconvenience or 14 an alteration of job responsibilities.” Lindroos v. Bernhardt, No. 20-CV-06897-EMC, 2021 WL 15 2322367, at *7 (N.D. Cal. June 7, 2021). Indeed, the workload increase does not appear to be 16 adverse because Ms. Lynch did not work overtime, Lynch Dep. at 104:15–104:17, and did not 17 “ever receive a negative performance appraisal,” Lynch Dep. at 115:13–115:15. Even though Ms. 18 Lynch suffered a delay in being permitted to work remotely, the delay does not appear to be an 19 adverse consequence because Ms. Lynch later demonstrated that she did not assign much value to 20 the ability to work remotely when she refused the offer to work remotely once the appropriate 21 laptop was procured. Lynch Dep. at 213:3–15. In any event, as to the fourth prong, she does not 22 show that similarly situated individuals outside her protected class were treated more favorably in 23 this regard. Although she argues that some non-Black Clinic employees were permitted to work 24 from home, Opp. at 9—such as Dr. Pace, Karen Gomez, Royce Lin, and Kim Pelish—none of 25 those individuals were similarly situated because they were doctors and nurses with different 26 responsibilities. Lynch Dep. at 214:9–13; id. at 215:13–15 (“I’m not a nurse. I'm not in their 27 realm, their scope of work. So I don’t know what they were doing, but they were working from 1 seeking relief must demonstrate, at the least, that they are similarly situated to those employees in 2 all material respects”). Additionally, their remote work determinations were made by City 3 employees. Pace Decl. ¶ 13. None of those four employees were supervised by UCSF employees 4 under the OBOT program as Ms. Lynch was. Pace Decl. ¶ 13. Other similarly situated 5 individuals—such as City nurse Ms. Castro, who Ms. Lynch worked with and who was not 6 Black—also performed in-person throughout the pandemic. Bradley Decl. ¶ 15. 7 Even if Ms. Lynch presented a prima facie case of disparate treatment by the City, the City 8 articulates a legitimate, nondiscriminatory reason for the decisions. As for the remote work 9 determination, the City did determine to allow her to work remotely but delayed implementation 10 because a compliant laptop was not immediately available. That determination was based on the 11 job responsibility and availability of secure at-home equipment. Bradley Decl. ¶ 9. As for the 12 increased workload, the City has a legitimate reason for increasing Ms. Lynch’s workload because 13 the nurse that she worked with was deployed to other homeless housing sites during the start of the 14 pandemic. Lynch Dep. at 99:12–102:10. In her deposition, Ms. Lynch admits that she does not 15 believe that the deployment decision and the resulting increase in workload had “anything to do 16 with race.” Lynch Dep. at 102:25–103:18. 17 Ms. Lynch has not presented any evidence that the City’s articulated reasons for the delay 18 in remote work or the changes in her responsibilities when her nurse was deployed to homeless 19 housing sites were pretextual. 20 The Court grants summary judgment in favor of the City on the disparate discrimination 21 claims. 22 E. Ms. Lynch’s Retaliation Claim 23 Ms. Lynch asserts that the City retaliated against her in violation of § 1983, FEHA, and 24 California Health and Safety Code § 1278.5 because she “complained of unlawful employment 25 discrimination on numerous occasions by way of different means and in different forums.” FAC ¶ 26 77. Section 1278.5 “prohibits retaliation against any employee of a health facility who complains 27 to an employer or government agency about unsafe patient care.” Scheer v. Regents of the Univ. 1 under the FEHA, a plaintiff must show (1) he or she engaged in a “protected activity,” (2) the 2 employer subjected the employee to an adverse employment action, and (3) a causal link existed 3 between the protected activity and the employer’s action.” Yanowitz v. L’Oreal USA, Inc., 36 Cal. 4 4th 1028, 1042 (2005). “The statute also provides a rebuttable presumption that discriminatory 5 action was taken by the health facility, or by the entity that owns or operates that health facility if 6 responsible staff had knowledge of the employee’s complaint and the discriminatory action occurs 7 within 120 days of the filing of the grievance or complaint by the employee.” Scheer, 76 Cal. 8 App. 5th at 916 (internal quotation marks omitted). “If the employer produces a legitimate reason 9 for the adverse employment action, the presumption of retaliation drops out of the picture, and the 10 burden shifts back to the employee to prove intentional retaliation.” Yanowitz, 36 Cal. 4th at 1042 11 (internal quotation marks omitted). Courts analyze claims of retaliation using the same 12 McDonnell Douglas burden shifting analysis as described above. 13 Ms. Lynch has not established a prima facie case of retaliation. Ms. Lynch asserts that she 14 engaged in protected activity on two primary occasions: (1) when she met with Dr. Colfax on 15 January 10, 2020, Lynch Dep. at 139:21–24, and (2) when she objected to Rebecca Silverman’s “I 16 am scared of him” comment to the hiring panel during an interview of Dr. Justin Morgan, an 17 African American man, at an unspecified date, Lynch Dep. at 178:1–178:9. These complaints 18 constitute protected conduct because Ms. Lynch reasonably believed that the City was 19 discriminating. Yanowitz, 36 Cal. 4th at 1043 (holding that an employee has engaged in protected 20 conduct when she has “complained of or opposed conduct that the employee reasonably believes 21 to be discriminatory, even when a court later determines the conduct was not actually prohibited 22 by the FEHA”). Additionally, whether the City subjected Ms. Lynch to adverse employment 23 actions by increasing her workload and deciding on a hybrid schedule is the same as in the 24 analysis as above. The Court adheres to its conclusion that Ms. Lynch suffered no adverse 25 employment action. 26 Further, Ms. Lynch has not shown a causal link between her complaints and the City’s 27 actions. When asked in her deposition about her bases for her retaliation claim, Ms. Lynch 1 Q. Okay. Are you also claiming retaliation in this lawsuit? 2 A. Yes. 3 Q. Okay. What -- what do you believe you were retaliated against for? In other words, what action did you take that you believe was 4 the basis for retaliatory acts? 5 A. Because for me, crying out and speaking about this issue for a long time, the retaliation to me, they never did anything. [6] Q. Aside from not responding to your complaints, not doing 7 anything, sweeping things under the rug, do you believe anything bad happened to you as a city employee because of your speaking 8 up and crying out, as you said? 9 A. Yeah, the hostile environment – 10 Q. Uh-huh. 11 A. the working conditions, the trauma, the biases. The not hiring Black doctors, nurses, social workers, psychiatrists. Not fulfilling 12 the needs of our Black patients. Not fulfilling the needs of having people that reflect the population you work with. [13] Q. Why do you believe that those things happened because of the 14 complaints that you made? 15 A. ’Cause I'm Black. 16 Q. Any other – 17 A. I’m Black. 18 Q. Okay. 19 A. I’m Black. I’m Black. I’m Black. I’m Black. 20 Q. Okay. 21 A. I have no other way to explain it. 22 Lynch Decl. at 220:3–221:8. These conclusory statements lack specific facts or documentation 23 and do not show causation between Ms. Lynch’s complaints and the City’s actions. 24 To be sure, Ms. Lynch may be entitled to a rebuttable presumption of retaliation. The 25 alleged adverse employment actions likely took place within 120 days of Ms. Lynch’s complaints. 26 The parties have not provided a precise date that the retaliatory conduct—her remote working 27 determination—took place, but the remote working determination at the start of the pandemic 1 (mid-January 2020). However, Ms. Lynch has not presented evidence that the responsible staff— 2 her UCSF supervisors—had knowledge of her complaints to Dr. Colfax and Ms. Silverman. Even 3 if Ms. Lynch enjoys the rebuttable presumption of retaliation, there is no basis for finding 4 causation. 5 The Court grants summary judgment in favor of the City on the retaliation claims. 6 F. Ms. Lynch’s Disparate Impact Claims 7 Ms. Lynch asserts that the City’s practices had a disparate impact on Black employees in 8 violation of FEHA. FAC ¶¶ 83–93. To establish a disparate impact claim under Title VII, a 9 plaintiff must show: “(1) the existence of outwardly neutral practices; (2) a significantly adverse or 10 disproportionate impact on persons of a particular type produced by the defendant's facially 11 neutral acts or practices; and (3) facts demonstrating a causal connection between the specific 12 challenged practice or policy and the alleged disparate impact.” Arnold v. Sessions, No. 4:18-CV13 00553-KAW, 2018 WL 6728008 , at *6 (N.D. Cal. Dec. 21, 2018). Additionally, “[t]o state a 14 claim under 42 U.S.C. § 1983 for a violation of the Equal Protection Clause of the Fourteenth 15 Amendment a plaintiff must show that the defendants acted with an intent or purpose to 16 discriminate against the plaintiff based upon membership in a protected class. Where the 17 challenged governmental policy is ‘facially neutral,’ proof of its disproportionate impact on an 18 identifiable group can satisfy the intent requirement only if it tends to show that some invidious or 19 discriminatory purpose underlies the policy.” Lee v. City of Los Angeles, 250 F.3d 668, 686 (9th 20 Cir. 2001) (internal citation omitted). 21 Regarding the Title VII claim, Ms. Lynch has no standing to assert wrongs done to others. 22 Ms. Lynch does not show that the alleged disparate impact—of fewer Black hires and shorter 23 retention—has impacted Ms. Lynch herself. She has been hired by the City and was employed 24 until she voluntarily retired. Ms. Lynch only alleges that she was denied permission to work from 25 home, given an increased workload, and required to perform hazardous work, which have been 26 addressed in the sections above. FAC ¶ 88. A plaintiff must identify a “specific employment 27 practice” that is discriminatory. Freyd v. Univ. of Oregon, 990 F.3d 1211, 1224 (9th Cir. 2021); 1 an overall decisionmaking process in the disparate impact context, but must instead identify the 2 particular element or practice within the process that causes an adverse impact.”). Ms. Lynch has 3 failed to identify any specific City employment practices or policies that cause a disparate impact. 4 Moreover, Ms. Lynch has failed to produce any evidence or data of a disparate impact caused by 5 any City practices. Although she alleges that the City hiring practices resulted in the disparate 6 impact of “not having any Black doctors, no Black nurses, no Black psychiatrists, no Black social 7 workers,” Lynch Dep. at 68:17–19, she also testified that she did not know “whether any Black 8 applicants applied for the job in the first place.” Lynch Dep. 163:7–166:3. Ms. Lynch did assert 9 that a “Black psychiatrist . . . came back there after his internship and told [Lynch]” that he 10 applied for a job with the Clinic and was not hired, but without more, this is not enough to show 11 that a “significantly adverse” impact on a protected group caused by the City hiring practices. 12 Lynch Dep. 166:4–23. 13 Regarding the Equal Protection Clause claim, Ms. Lynch likewise fails to allege standing. 14 Ms. Lynch only generally alleges that there is “a long-standing, deep-rooted policy and practice of 15 employment discrimination against its Black employees in the Department of Public Health 16 Department.” FAC ¶¶ 86–88. It is unclear what City “policy” Ms. Lynch alleged caused her 17 harm. Nor has she provided any data or evidence of “disproportionate impact” or that an 18 “invidious or discriminatory purpose underlies the policy.” Lee, 250 F.3d at 686 . Notedly, Ms. 19 Lynch has neither sought discovery on this claim nor briefed this claim in her opposition to the 20 City’s motion for summary judgment. 21 The Court grants summary judgment in favor of the City on the disparate impact claims. 22 G. Ms. Lynch’s Monell Claim Under § 1983 23 Ms. Lynch alleges that the City should be held liable under § 1983 for its policies of 24 discrimination as demonstrated in its decision that she could not work remotely following her two 25 discussions with Dr. Colfax. Under § 1983, a municipal government can be held liable if a 26 plaintiff can demonstrate that a deprivation of a federal right occurred as a result of a “policy” of 27 the local government’s legislative body or of local officials with “final policymaking authority” 1 692 (1978); St. Louis v. Praprotnik, 485 U.S. 112, 123 (1988). Municipalities, however, cannot be 2 held liable under § 1983 for constitutional torts merely on a theory of respondeat superior simply 3 as a result of employment status. Monell, 436 U.S. at 692. The Ninth Circuit has held that 4 municipal liability under Monell may be established in one of three scenarios: (1) “a city employee 5 committed the alleged constitutional violation pursuant to a formal governmental policy or a 6 longstanding practice or custom which constitutes the standard operating procedure of the local 7 governmental entity;” (2) “the individual who committed the constitutional tort was an official 8 with final policy-making authority and that the challenged action itself thus constituted an act of 9 official governmental policy;” or (3) “an official with final policy-making authority ratified a 10 subordinate’s unconstitutional decision or action and the basis for it.” Gillette v. Delmore, 979 11 F.2d 1342 , 1346–47 (9th Cir. 1992). 12 First, Ms. Lynch has not set forth evidence that a City employee committed a 13 constitutional violation according to a formal policy or longstanding custom. The Court has 14 already rejected each of Ms. Lynch’s underlying constitutional claims above. And there is no 15 evidence of any formal government policy to discriminate in its decisions about remote working 16 during the pandemic. Nor is there any specific non-conclusory evidence that the City has a 17 longstanding custom of constitutional violations “so widespread in usage as to constitute the 18 functional equivalent of an express policy.” Choate v. Cnty. of Orange, 86 Cal. App. 4th 312 , 19 328, 103 Cal. Rptr. 2d 339, 350 (2000). Ms. Lynch asserts a single instance of a purported 20 constitutional violation for her Monell claim: the decision prohibiting her from immediately 21 working remotely during the pandemic. Even assuming that this decision constituted a 22 constitutional violation, a plaintiff cannot rely solely on a single decision to infer a longstanding 23 custom of discrimination. Thomas v. City of Chattanooga, 398 F.3d 426, 433 (6th Cir. 2005). 24 Although Ms. Lynch cites to Pembaur v. City of Cincinnati, 475 U.S. 469, 480 , 106 S. Ct. 1292 , 25 1298, 89 L. Ed. 2d 452 (1986) to show that “even a single decision by such a body unquestionably 26 constitutes an act of official government policy,” Opp. at 7, upon closer examination, Pembaur 27 permits “a single decision” to prove a formal government policy, not to prove a longstanding 1 for a Monell claim under the first scenario. 2 Second, Ms. Lynch has not set forth evidence that a City official with final policy-making 3 authority acted according to official governmental policy. The “authority to exercise discretion 4 while performing certain functions does not make the official a final policymaker unless the 5 decisions are final, unreviewable, and not constrained by the official policies of supervisors.” 6 Kerr v. City & Cnty. of San Francisco, No. C 10-5733 CW, 2012 WL 3877752 , at *17 (N.D. Cal. 7 Sept. 6, 2012) (internal citations omitted). Ms. Lynch asserts that under Kerr, the Director of 8 Health of the San Francisco Department of Public Health, Dr. Grant Colfax, is a final policymaker 9 for personnel decisions. Opp. at 8. However, there is no evidence that Mr. Colfax was aware of 10 and thus finalized the decision to permit but defer the ability of Ms. Lynch to work remotely. 11 Rather, it was Ms. Bradley and UCSF management that implemented the remote and in-person 12 determinations for Ms. Lynch, including the determination that Ms. Lynch should be able to 13 perform remote work on a part-time basis during the pandemic. Bradley Decl. ¶¶ 7–8. Ms. Lynch 14 has not explained what part the City or Dr. Colfax played in the remote working decision, what 15 actual discretion Dr. Colfax had, and what other regulations and policies govern his role in that 16 decision. Thus, Ms. Lynch has not presented enough evidence for a Monell claim under the 17 second scenario. 18 Third, Ms. Lynch has not set forth evidence that a City official with final policy-making 19 authority ratified a subordinate’s unconstitutional decision. As noted above, Ms. Lynch has not 20 shown Dr. Colfax knew about and approved the delay in her remote work. 21 The Court grants the City’s motion for summary judgment on the Monell claim. 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 1 IV. CONCLUSION 2 For the foregoing reasons, the Court GRANTS the City’s motion for summary judgment 3 and GRANTS the City’s request for judicial notice. 4 This order disposes of Docket Nos. 30 and 31. The Clerk shall enter Judgment and close 5 the case. [6] 7 IT IS SO ORDERED. [8] 9 Dated: November 23, 2022 [10] 11 ______________________________________ EDWARD M. CHEN 12 United States District Judge