This case comes before the Court on Defendants’ motion for summary judgment or, in the alternative, motion for summary adjudication. Plaintiff Lashawn Barefield (“Barefield”), an African American female, has sued her employer and various individuals alleging racial discrimination under federal and state law, retaliation, and intentional infliction of emotional distress relating to the university’s failure to promote her to a position as director of student activities. Defendants are The Board of Trustees of the California State University, Bakersfield (“CSUB”); James H. George (sued as “Jim George”) (“George”), Diane Hendrickson (“Hendrickson”), and Mark Murie (“Murie”). This Court denies in part and grants in part Defendants’ motion for summary judgment.
FACTUAL HISTORY
The following facts are presented in the light most favorable to Plaintiff, the non-moving party.
Plaintiff has been employed with CSUB since January 2001 as a tenure-track counselor in the university’s counseling center. On August 19, 2003, CSUB posted an opening for the position of director of student activities, Position 891. Barefield, who holds a master’s degree and chaired a university committee related to students and substance abuse, applied for the position. Plaintiff received the support of her supervisor Diane Hendrickson, who told her she was a “shoe in” for the position and that she was certain to get an interview because Barefield was “more than qualified.” After Plaintiff submitted her application, Hendrickson approached Plaintiff after a managers’ committee meeting where the director of student activities position was discussed, and told Plaintiff that she would be one of the candidates for an interview and that she should get ready for her interview.
Plaintiff, however, was not given an interview. Mark Murie, an employee in CSUB’s human resources department, initially reviewed the applications for Position 891 and recommended an applicant pool of the applicants he determined were the five most qualified candidates to be interviewed. These candidates were invited to interview. Joseph Lowder (“Lowder”), CSUB’s first choice candidate and a non-African American, received a second interview. On December 4, 2003, CSUB sent a letter to Lowder informing him that due to the current budget situation the university was postponing filling the position, but that he would be placed on an eligibility list as the top candidate. On December 9, 2003, Barefield received a letter informing her she was not being considered for Position 891. When Plaintiff was not considered for an interview, she spoke with Brian McNamara, the representative of the California Faculty Association regarding filing a discrimination grievance. Plaintiff claims to have filed a grievance in January 2004, and then a second grievance in February 2004.
In June 2004, CSUB hired an existing CSUB employee, Marina Avalos-Kegley (“Kegley”), a non-African American female who was in the process of obtaining her master’s degree, as interim director of student activities. Although the university claimed that Position 891 was cancelled due to lack of funding, it hired Kegley as interim director of student activities before it cancelled recruitment for Position 891. According to Plaintiff, CSUB improperly
Plaintiff also claims that CSUB and the individual defendants retaliated against her after she filed her discrimination grievances, a discrimination complaint with the Equal Employment Opportunity Commission in November 2004 and her Complaint filed in May 2005 instituting this action. Plaintiff claims Kegley’s reclassification was retaliatory. A holiday credit was withheld from Plaintiffs paycheck. When the permanent director of student activities position was posted as Position 1010, Plaintiff claims that Murie changed the qualification requirements to exclude Plaintiff, even though there were no substantive changes in duties between Position 891 and Position 1010. Plaintiff also maintains that James H. George, CSUB provost and vice president for academic affairs, gave her a negative performance evaluation during her annual review. According to Plaintiff, she had received positive evaluations before her discrimination complaints. Finally, Plaintiff claims that Hendrickson excluded her from a department meeting where Hendrickson informed the counseling department that they were required to attend a ball to celebrate CSUB’s 35th Anniversary and to inaugurate CSUB’s new president. By the time Plaintiff found out that her colleagues in the counseling department were attending as a department, Plaintiff was unable to purchase a ticket. As a result of the denial of the promotion and the retaliatory acts, Barefield alleges she has suffered emotional and physical harm for which she is receiving medical care.
PROCEDURAL HISTORY
Plaintiff filed her complaint against CSUB on May 10, 2005. The complaint was addressed to the Superior Court of California, County of Kern but was filed in the United States District Court in Fresno. The complaint alleged violations of 42 U.S.C. § 1981, the California Fair Employment and Housing Act, California Government Code § 12940,
et seq.
(“FEHA”), breach of contract, breach of the covenant of good faith and fair dealing, and intentional infliction of emotional distress. Plaintiff filed a First Amended Complaint (“FAC”) on July 21, 2005 that was identical to her initial complaint, only addressed to the United States District Court. Defendant filed a motion to dismiss Bare-field’s § 1981 claims and contract claims for failure to state a claim upon which relief can be granted under Fed. R. Civ. Proc. 12(b)(6). Defendant also sought dismissal of the entire suit for lack of federal subject matter jurisdiction under Fed. R. Civ. Proc. 12(b)(1) on the assumption that the § 1981 claims would be dismissed. Alternatively, the motion sought to strike Barefield’s request for punitive damages under Fed. R. Civ. Proc. 12(f). Barefield opposed the motion in its entirety. While the matter was under submission, Bare-field filed a motion to amend the FAC
Barefield filed a second amended complaint (“SAC”) on November 17, 2005, which added a claim for violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. (“Title VII”). The SAC mooted Defendant’s Rule 12(b)(1) motion since federal subject matter jurisdiction would remain regardless of dismissal of Barefield’s § 1981 claim. Defendant moved again to dismiss various claims in the SAC and to strike Barefield’s punitive damages claims. This Court granted Defendant’s motion and dismissed with prejudice Plaintiffs § 1981 claims and contract claims, as well as Plaintiffs prayer for punitive damages. The remaining causes of action were discrimination under FEHA and Title VII, and intentional infliction of emotional distress.
Plaintiff filed a third amended complaint (“TAC”) on June 5, 2006, adding a claim for retaliation under FEHA, California Government Code § 12900, et seq. The TAC also added individual defendants James H. George, Diane Hendrickson, and Mark Murie. The TAC is the operative complaint.
On April 20, 2007, Defendants moved for summary judgement or, in the alternative, for summary adjudication on all claims. Plaintiff did not file a timely opposition, but the Court granted Plaintiffs ex parte motion to amend the briefing schedule on May 22, 2007. Plaintiff filed her opposition on May 25, 2007. Defendants filed a reply on June 4, 2007. The Court took the matter under submission on June 11, 2007.
UNDISPUTED FACTS
The parties do not dispute the following facts:
1. Plaintiff applied for Position No. 891.
2. Murie initially reviewed the applications for Position 891 and recommended an applicant pool of the applicants he determined were the five most qualified candidates to be interviewed.
3. Hendrickson was not on the selection committee for Position 891.
4. George was the provost at the time Plaintiff applied for Position 891.
5. Plaintiff did not apply for Position 1010.
6. George recommended Plaintiff for another probationary year, which was awarded by the president.
7. Plaintiff went on a leave of absence ■on December 7, 2004 and returned to work on January 3, 2005.
8. In November 2005, Plaintiff brought the issue of her holiday credit to the attention of the human resources department, the issue was researched, and she was immediately given a credit. Plaintiff used her personal holiday on November 14, 2005.
9. On May 20, 2005, CSUB had a ball to celebrate it 35th Anniversary and to inaugurate its new president. Plaintiff missed the counseling department’s meeting at which her peers were instructed to attend the ball. Plaintiff did not purchase a ticket before they were sold out.
LEGAL STANDARD ON SUMMARY JUDGMENT
Summary judgment is proper if “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. Rule Civ. P. 56(e). Rule 56 “mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of
On summary judgment any inferences drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion.
See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp.,
The Ninth Circuit has set a “high standard for the granting of summary judgment in employment discrimination cases ... [W]e require very little evidence to survive summary judgment’ in a discrimination case, ‘because the ultimate question is one that can only be resolved through a ‘searching inquiry’ — one that is most appropriately conducted by the fact-finder, upon a full record.’ ”
Schnidrig v. Columbia Mach., Inc.,
In the alternative, Defendants move for summary adjudication of fourteen issues if summary judgment is not granted. Summary adjudication is proper when a court does not enter judgment upon the whole case or for all the relief requested by the moving party. See Fed.R.Civ.P. 56(b). Rule 56 requires the court to ascertain what material facts exist without substantial controversy and issue an order accordingly. See id. At trial, such facts shall be deemed established. See Fed.R.Civ.P. 56(d).
DISCUSSION
I. Evidentiary Objections
Defendants object to much of the evidence filed by Plaintiff in her opposition brief.
1
Given the resolution of certain is
Plaintiff was given two opportunities to respond to Defendants’ objections to her evidence, including Defendants’ authentication objections. The first response filed by Plaintiff only addressed Defendant’s supplemental objections and failed to respond to the authentication objections. Plaintiff was ordered to file a response to all of Defendant’s objections, including those based on authentication. Plaintiffs second response to the authentication objections merely stated the general proposition that an attorney can authenticate documents produced in discovery and cited a handful of cases discussed below. Plaintiff cited to
Maljack Prods., Inc. v. GoodTimes Home Video Corp.,
Although in
Maljack,
the Ninth Circuit stated without discussion that the district court did not err in considering documents attached to an attorney declaration when the opposing party produced the documents, many of the documents were on the opposing party’s letterhead, and the opposing party did not contest their authenticity,
see Maljack,
Here, Plaintiff offers no argument or evidence that the documents attached to the McCoy Declaration were produced by the opposing party during discovery. Plaintiff fails to identify who produced the exhibits attached to the McCoy Declaration, and CSUB has not admitted to producing the documents, except perhaps those it attached to its declarations. See Orr, 285 F.3d at 777. The Court notes that there are some indicia on the documents that under Maljack might be sufficient for authentication. For example, some of the documents are on CSUB letterhead and bear bates stamps indicating the documents were produced in discovery. There are, however, at least two different sets of bates stamps on the exhibits and when examining a document the Court can only speculate as to the source of the bates stamps because Plaintiff failed to identify which bates stamps were used by which party. 2
The Court notes that Defendants’ blanket objection to Plaintiffs exhibits unwittingly, and improperly, includes within its scope many of the same exhibits that Defendants themselves attach to their own declarations. Once evidence has been authenticated by one party, it has been authenticated with regard to all parties. 5 Weinstein
&
Berger,
Weinstein’s Federal Evidence,
§ 901.02[3] (Joseph M. McLaughlin, ed., Matthew Bender 2d ed.2007), citing
Orr,
Plaintiffs Exhibits F, K, L, M, N, S, U, V, W, X, Y, AA, BB, DD, and EE are not authenticated and therefore inadmissible. McCoy’s declaration does not lay a foundation for the exhibits. McCoy neither created the documents nor witnessed their creation, and there is nothing indicating he is familiar with any signatures contained therein.
See Orr,
II. Race Discrimination Claim Against CSUB under Title YII and FEHA 3
The parties agree that this case is governed by the burden-shifting framework established in
McDonnell Douglas Corp. v. Green,
Once plaintiff establishes a prima facie case, the prima facie case creates a rebuttable “presumption that the employer unlawfully discriminated against the employee.”
Burdine,
If the employer sustains this burden, the plaintiff must then demonstrate that the proffered nondiscriminatory reason is merely a pretext for discrimination.
Id.
at 256,
A. Prima Facie Case
The parties dispute whether Plaintiff establishes a prima facie case of failure to promote on the basis of race. 5 Defendants concede that Plaintiff can establish that she is a member of a minority, that she applied and was qualified for Position 891, and that she was rejected, but argue that Plaintiff cannot establish the last element of the prima facie case, that the position remained open after she was rejected. According to Defendants, Plaintiff cannot make this showing because a more qualified applicant was selected and, more importantly, because the position was actually never filled because CSUB lost funding. Plaintiffs opposition brief does not directly respond to these arguments but argues that the position remained open and that it was eventually given to a non-African-American who was less qualified than Barefield.
Defendants’ argument that Barefield has failed to meet the fourth prong of
McDonnell Douglas
is without merit. The Ninth Circuit has specifically rejected the argument that a discrimination plaintiff fails to establish the fourth prong of
McDonnell Douglas
if the position is given to another candidate. In
Hagans v. Andrus,
That Position 891 was eliminated months later due to budgetary reasons also does not prevent Plaintiff from establishing a prima facie case. The “open” position requirement merely requires that
Thus, Barefield has established a prima facie case of discrimination and a rebutta-ble presumption of unlawful discrimination.
B. CSUB has Articulated Legitimate Non-Discriminatory Reasons for Rejecting Barefield
CSUB must now set forth legitimate non-discriminatory reasons for not selecting Barefield. CSUB’s burden is one of production, not persuasion, thereby involving no credibility assessment.
See Reeves v. Sanderson Plumbing Prods., Inc.,
C. Plaintiff has Presented Genuine Issue of Fact that Some of Defendants’ Non-Discriminatory Reasons are Pretextual.
Once Defendants present legitimate non-discriminatory reasons, the presumption of discrimination “drops out of the picture,” and Plaintiff has the new burden of proving that the proffered reasons were a pretext for discrimination.
See Lindsey v. SLT Los Angeles, LLC,
Relying on
Hicks
Defendants argue that Plaintiff must not merely discredit Defendants’ proffered reasons, but she must also persuade the court that the actual motive was intentional discrimination. Defendants misconstrue the applicability of
Hicks
to a motion for summary judgment. “At the summary judgment stage, a plaintiffs burden is not high.”
Pottenger v. Potlatch Corp.,
Barefield’s “burden at the summary judgment stage is not great.”
Warren,
1. Plaintiffs Qualifications for Director of Student Activities
Plaintiff offers what she argues is ample evidence that she was highly qualified for Position 891 in the form of her deposition testimony, and the statements and testimony of Hendrickson and Murie.
a. Barefield’s Deposition Testimony
According to Barefield, she was qualified for Position 891 because she had considerable experience working with the
Plaintiff argues that despite her credentials, she was denied the opportunity to interview for the position based on her race. Plaintiff testified that she felt that she was discriminated against based upon race because there was no other reason to explain why she was not interviewed for the position when she exceeded the qualifications for the position. See Bare-field Depo., p. 100-102. 11 According to Barefield, a non-black colleague who served on the alcohol and drug committee she chairs received an interview for Position 891 although this colleague did not have Barefield’s educational background or the experience. Id. at 105-106. Plaintiff also testified that she met and exceeded the qualifications for the job and that she documented that in her application. Id. at 106. She also stated that at CSUB there were only two African-Americans holding a director position on campus. Id. She also testified that she had her masters’ degree almost ten years before the individual who was given the position, Kegley, who is a non-black colleague. Id. at 106-107.
Plaintiff does not support her deposition testimony that she was discriminated on the basis of race with corroborating evidence, whether direct or circumstantial. “Mere conclusory assertions of discriminatory intent, embodied in affidavits or deposition testimony, cannot be sufficient to avert summary judgment. The court must satisfy itself that there is sufficient ‘direct or circumstantial evidence’ of intent to create a genuine issue of fact for the jury, before it can deny summary judgment....”
Lindsey v. Shalmy,
More fundamentally, Plaintiffs evidence does not address Defendants’ contention that while Plaintiff was qualified for Position 891 she was not among the most qualified. Plaintiff presents no evidence of her qualifications vis-a-vis those of the other applicants in the form of, for example, the applications or resumes of the other applicants for Position 891, including those
Barefield also testified that Hendrickson informed her that she was highly qualified for the position and that she was one of the candidates selected to interview for Position 891. Hendrickson’s statements are examined in the following section.
This Court does not find that Plaintiff was not qualified for the director of student activities position, but merely that her testimony creates no triable issue of material fact that CSUB’s reason for not interviewing her is pretextual.
b. Hendrickson’s Statements to Plaintiff
Barefield testified at her deposition that when she informed Hendrickson that she was applying for the position, Hendrickson told her that she was a “shoe in” for the position, and either that she was “extremely qualified” or “more than qualified” for the position. Barefield Depo., p. 56-57. 13 More importantly, Hen-drickson told Barefield that she was one of the five candidates selected to interview for Position 891 after Hendrickson returned from a management committee meeting where the position was discussed. According to Barefield, Hendrickson approached her while Barefield was making copies and told her “that she had returned from the management team meeting and told me that they had five candidates for the position of the Student Activities Director and informed me to get prepared for my interview.” Id. at 75. Barefield testified that Hendrickson told her “that I would be one of the five candidates to be interviewed for the position.” Id. at p. 78. Barefield asked Hendrickson if she was sure and Hendrickson responded that she was sure. Id.
At her deposition Hendrickson testified that she could not recall telling Barefield that she believed Barefield was qualified or that she was “more than qualified.” Hendrickson Deposition (“Hendrickson Depo.”), p. 31-32, Exh. D to McCoy Decl. Hendrickson characterized herself as being “supportive” of Barefield’s application and as a “cheerleader,” and agreed that she would not generally be supportive of an employee applying for a position for which she knew the employee was not qualified. Id. at p. 29-34. Hendrickson also testified that she discussed aspects of the management committee meetings relating to the position with Barefield. Id. at p. 38-39, 46-48, 50. That management committee included members of the selection committee for the director of student activities position. Id. Hendrickson admits that after one of these meetings she told Barefield that she would be interviewed, but in her deposition testified that this was based on her belief that all on-campus applicants would be interviewed. Id. at p. 47-50.
Drawing all inferences in favor of Plaintiff, Hendrickson did tell Plaintiff that she was highly qualified for the position and that she would be one of the candidates receiving an interview. Hendrick-son’s assessment of Barefield’s qualifications may not be highly probative because it is undisputed that Hendrickson was not on the selection committee for Position 891
c. Murie’s Statements
Barefield also offers Mark Mu-rie’s deposition testimony as evidence that she was qualified, and Murie’s declaration as well as other statements as evidence of pretext. Murie was the member of CSUB’s human resources department who initially reviewed the 39 applications for Position 891 and recommended an applicant pool of the five most qualified candidates. Murie Declaration (“Murie Deck”), ¶ 4. At his deposition, Murie testified that Barefield met the basic qualifications for the position,
14
but that his review of Bare-field’s application indicated that “there [was] not enough information provided for a determination to be made at this pass whether this individual is either accepted or rejected as an applicant.” Murie Deposition (“Murie Depo.”), Exh. B to McCoy Deck, p. 70-73. Murie testified that his selection criteria was based on the qualifications listed in the job announcement, including the expressed preferences.
Id.
at p. 65-66. The criteria applied by Murie to screen the initial pool of applicants were “two years student life related experience with master’s degree.”
Id.
at p. 65. Mu-rie testified that no policy required him to use the job announcement preferences rather than the minimum requirements to evaluate applicants.
Id.
at p. 68-69. Although Barefield did not meet the selection criteria used by Murie, she was not rejected outright. Instead, Murie testified that he did not make a determination whether she would be accepted or rejected.
15
Id.
at p. 70-73. However, Murie
The only evidence of pretext that Plaintiff provides is that Murie stated in his declaration that he was not aware of Plaintiffs race when he reviewed her application. See Murie Decl. ¶ 4 (“When I receive the applications, the Applicant Flow form, which is the only part of the application upon which ethnic information appears, has already been removed. At the time I reviewed the applications, I was unaware of Plaintiffs ethnicity.”). See also Murie Depo. at p. 94 (“I did not know the ethnicity of the applicants.”) and at p. 97 (Q: “ ‘So is it your testimony ... that when you were accepting and/or rejecting candidates in 2003 for the Director of Student Activities position, you did not know that LaShawn Barefield was an African-American?’ A: ‘That’s correct.’ ”). Plaintiff argues that this “strains credulity” because Murie reviewed Barefield’s resume which lists classes that she has taught, including “The African American Experience.” 16 This is sufficient evidence that could allow a rational factfinder to find that Murie was aware of Plaintiffs race, notwithstanding his declaration and testimony to the contrary. Murie’s knowledge of Barefield’s race is not necessarily evidence of discrimination, but the fact that he insists that he did not know Barefield’s race notwithstanding evidence of race in the resume and application he reviewed seems internally inconsistent and, viewed in the light most favorable to Plaintiff, could give rise to an inference that the reason he denied knowing her race was to disguise his use of an impermissible motive.
Plaintiff also provides evidence that Mu-rie misrepresented to her that Dr. Bill Perry, CSUB’s assistant vice president for student life, was involved in the initial review of the applications. Murie responded to an email Barefield wrote to Kelly Garcia, the head of human resources, after she received her rejection letter. See Murie Decl. ¶ 7 and Exhibit H to Murie Decl. Murie in his response wrote that “In accordance with our campus recruitment process, the hiring department chairperson, Dr. Bill Perry, and I reviewed the approximately 40 applications for the position and determined an appropriate candidate pool based upon the qualifications as reflected in the position announcement.” See Exhibit H to Murie Decl. It is undisputed that Murie alone initially reviewed the applications for Position 891 and recommended an applicant pool of the applicants he determined were the five most qualified candidates to be interviewed. See also Murie Decl. ¶ 4; Murie Depo., p. 39. Dr. Perry does not appear to have had any role in the initial selection process. A rational factfinder could also find that Murie’s statement to the contrary that Dr. Perry participated in the initial selection process was to cover an impermissible motive.
Plaintiff has provided sufficient evidence that Defendants’ proffered reason that she was not among the most qualified may have been pretextual.
A threshold question for this Court is whether to treat Position 891 and the interim position as two different positions or whether, as Plaintiff alleges, they are really the same position. This is a central question in part because it determines the candidate against whom Plaintiff is gauged: Joseph Lowder, who was offered the director of student activities position, or Marina Avalos-Kegley, who received the interim position and subsequently the full time position as director of student activities. Defendant has offered evidence in the form of interview evaluations and an offer letter that Lowder was deemed the most qualified candidate for Position 891 and placed at the top of an eligibility list for the position in December 2003, pending resolution of budget issues. See Exhs. C, D, E, F to Murie Decl. Plaintiff argues that the budgetary rationale for not hiring Lowder was pretext to avoid giving her the position, that Kegley was reclassified into the position, and thus that Barefield must be gauged against Kegley. Plaintiff, however, offers no admissible evidence to support her argument. 17 Thus, only Lowder’s qualifications are considered.
Defendants argue that Plaintiff was minimally qualified and that Lowder, a more qualified candidate, was offered the position. Plaintiff does not offer evidence of her qualifications vis-a-vis those of the interviewees or Lowder. However, Plaintiff has already raised an issue of material fact that she may have been one of the applicants selected for an interview, based on Hendrickson’s testimony. That evidence is also sufficient to raise a factual issue that she was at least as qualified as Low-der. Lowder may well have been more qualified than Barefield, but it is not the role of this Court to determine who was the most qualified, but only to determine if there is a genuine issue of fact for trial.
See Lyons,
3. Whether the Position was Closed Due to Budgetary Reasons
Barefield argues that Position 891 was not closed for budgetary reasons, but rather that CSUB’s proffered decision is pretext because the interim director of student activities position was created in its stead. Plaintiff argues that the interim position was created for and awarded to Kegley through an improper reclassification of her position.
Defendants present substantial evidence that Position 891 was not awarded due to budgetary reasons. Lowder was notified that budgetary reasons precluded CSUB from awarding him the position several days before Barefield received her rejection letter.
See
Murie Deck, Exhs. F (Letter from Kellie Garcia to Joseph Lowder, dated December 4, 2003) (informing Low-der that he was first choice candidate but
According to Plaintiff, the interim position was reclassified in violation of university policy to cover up the fact that the position was still open. Evidence that the university did not follow its established procedures may be circumstantial evidence of pretext. However, Plaintiff offers no admissible evidence that university procedures were violated. 18 Plaintiff also offers evidence that in her view demonstrates that Kegley was not qualified for and lacked the relevant experience to be awarded the director of student activities position. Even when taken in the light most favorable to Plaintiff, the fact that Kegley may be less qualified than Plaintiff is irrelevant because Plaintiff offers no admissible evidence of an improper reclassification or violation of university policy in creating the interim position or hiring Kegley to fill that position. Plaintiff does not offer any probative evidence that CSUB’s budgetary rationale is pretextual. 19
In summary, Plaintiff has provided sufficient evidence to allow a rational factfinder to determine that some of CSUB’s proffered reasons for not hiring her may be pretextual, thereby precluding summary judgment on the race discrimination claim. Plaintiff has raised a triable issue of fact that she was qualified, was selected for an interview, and that Murie may have used impermissible motives due to his insistence that he did not know Plaintiffs race and his representation that Bill Perry was involved in the selection process. Plaintiff raised no issue of fact that the budgetary rationale was pretextual. Defendants’ motion for summary adjudication is denied as to Issue No. 1 because Plaintiff has raised a material issue of fact regarding whether CSUB discriminated against her; and denied as moot as to Issue Nos. 2-4 regarding whether the individual defendants discriminated against Plaintiff, because the TAC does not indicate the individual defendants are sued for discrimination.
III. Retaliation under FEHA
At the summary judgment stage, an employee’s allegations of retaliation under FEHA are evaluated under the burden shifting analysis of
McDonnell Douglas
to determine whether there are triable issues of fact.
Yanowitz v. L’Oreal USA, Inc.
(2005)
To make a prima facie case, an employee must show that: (1) the employee engaged in a protected activity; (2) the employer subjected the employee to adverse employment action; and (3) a causal link existed between the protected activity and the employer’s action.
Id.
Protected activity includes filing a complaint or grievance.
Yanowitz,
As a threshold matter, Plaintiff relies on the Ninth Circuit’s “deterrence test,” articulated in
Ray v. Henderson,
A. Prima Facie Case
[38] According to Barefield, she engaged in protected activities on four separate occasions: January 5, 2004, when she filed a discrimination grievance with the California Faculty Association (“CFA”), Exh. S to McCoy Decl.; February 20, 2004, when she filed her second discrimination grievance, Exh. U to McCoy Deck; November 22, 2004, when she filed her complaint of discrimination with the U.S. Equal Employment Opportunity Commission (“EEOC”) (not attached); May 2005, when she filed this action.
Plaintiff, however, does not provide sufficient factual support that she engaged in the protected activities. Exhibit S and U are not inadmissible on authentication grounds; although Plaintiff appears to have written these documents, her attorney may not authenticate them on her behalf because he lacks personal knowledge.
See Orr,
Barefield argues that Defendants retaliated against her by: (1) reclassifying Keg-ley’s position at CSUB in June 2004 to appoint Kegley as director of student activities; (2) withholding holiday credit from her paycheck in January 2005; (3) changing the criteria for the director of student activities position so Barefield would not qualify in April 2005; (4) issuing Plaintiff a poor performance evaluation in May 2005; and (5) isolating her from CSUB’s May 20, 2005 inaugural ball that her non-African-American colleagues were asked to attend. The first three of these alleged retaliatory actions, however, took place before the filing of Plaintiffs Complaint. The latter two, viewing the facts in the light most favorable to Plaintiff, may have occurred after the Complaint was filed. Plaintiffs performance review is dated May 9, 2005, one day before Plaintiff filed her Complaint. At her deposition, however, Barefield testified that she received her performance review after she filed her Complaint. See id. at p. 116-119. Sufficient facts exist for a reasonable fact-finder to conclude that the review was delivered after the Complaint was filed. Additionally, the inaugural ball took place after the filing of the Complaint.
Defendants argue that Plaintiff has failed to set forth any facts that support that the acts Barefield alleges are adverse employment actions and that there is no causal connection. Under
Yanowitz,
to survive summary judgment, Plaintiff must provide sufficient facts that the alleged adverse actions materially affect the conditions of her employment, including performance or opportunity for advancement.
See Yanowitz,
Thus, Barefield has established a prima facie case of retaliation.
B. Defendants Have Articulated Legitimate Non-Retaliatory Reasons for the Adverse Employment Actions
Defendants proffer the following legitimate business reasons: (1) Plaintiff
C. Plaintiff Fails to Present Genuine Issue of Fact that Defendants’ Non-Retaliation Reasons are Pre-textual
To survive summary judgement, Plaintiff must offer sufficient evidence that CSUB’s business reasons are pretext either indirectly, by showing they are internally inconsistent or otherwise not believable, or directly by showing that they were motivated by her discrimination complaints.
See Morgan,
1. Barefield’s May 9, 2005 Evaluation
Plaintiff is unable to provide sufficient evidence to show Defendants’ business reasons for her May 2005 evaluation are pretextual. First, as evidence that George was aware of her complaints when he issued the evaluation, Plaintiff offers deposition testimony by Murie that complaints of discrimination filed by faculty members are handled by the provost’s office.
21
Plaintiff, however, has admitted she filed no formal complaints with CSUB. Plaintiff offers no evidence that her filed Complaint went to the provost’s office. Plaintiff merely argues that she was a faculty member and thus her complaints went to the provost’s office. Had Plaintiff offered such evidence, then George’s knowledge of the complaints may have been inferred. Nevertheless, inferences are not drawn out of the air, and it is the opposing party’s obligation to produce a factual predicate from which the inference may be drawn.
See Mayweathers v. Terhune,
Barefield also maintains that she was issued a poor performance evaluation in retaliation for her complaints. Plaintiffs May 9, 2005 evaluation, in a section titled “Creative Activities and Scholarship,” provides that “Ms. Barefield is not making adequate progress in this area ... ¶ She needs to develop a research agenda that can ultimately produce a peer-reviewed publication. She will need to make progress on this front during the coming year. Certainly the file should detail her research plans, and article should be in process. ¶ Ms. Barefield does not meet University expectations in this area.” Exh. C. to George Declaration (“George Deck”). This evaluation reflected critiques in reviews by two underlying committees, both of which predate the provost’s May 9 evaluation. These evaluations by the counseling department and by the university review committee contain similar remarks calling for her to publish.
See
George Deck, Exh. D (Unit RTP Evaluation, dated February 15, 2005) (“Furthermore, the Committee encouraged Ms. Barefield to develop scholarly and research agenda
Plaintiff also argues that George ignored her extensive grant writing activities even though these activities may fulfill the creative activities and scholarship requirement. 23 George testified that grant writing could be part of a process of scholarly activity, but that it itself is not considered a scholarly activity. See George Deposition (“George Depo.”), p. 46-47. Plaintiff offers Hendrickson’s deposition testimony that grant work applies toward the scholarly activity requirement, and that Barefield had met these requirements. See Hendrickson Depo., p. 80-81, 85. Assuming, as this Court must, that grant activity meets the scholarly activity requirement, Plaintiffs evidence is still insufficient to survive summary judgment because she offers insufficient evidence that the articulated non-retaliatory business reasons for her May 2005 evaluation are pretext and, more fundamentally, she offers no evidence that George knew of her Complaint.
2. Inaugural Ball
Plaintiff does not provide sufficient evidence to allow reasonable factfin-der to find she was excluded from the inaugural balk Defendants provide evi
Thus, Defendants are entitled to summary judgment on Plaintiffs retaliation claim.
IV. Intentional Infliction of Emotional Distress
Defendants argue that Barefield’s intentional infliction of emotional distress (“IIED”) claim is barred by the exclusivity of the California’s Worker’s Compensation Act and that the alleged conduct is not sufficiently extreme or outrageous. Bare-field argues that racial discrimination is not covered by the worker’s compensation act.
Discrimination claims are not “insulated from consideration in connection with the exclusive remedies provided under workers’ compensation,”
Jones v. LA. Community College Dist.
(1988)
To demonstrate intentional infliction of emotional distress, a plaintiff must show that the conduct was “extreme and outrageous.”
25
Cole,
CONCLUSION AND ORDER
The Court does not decide whether Plaintiff has proved that she was discriminated against based on race — that is an issue for a fact finder. The task for this Court is limited to determining whether Plaintiff has produced sufficient facts to allow a reasonable factfinder to find in her favor. Plaintiff has met that burden for her discrimination claim and intentional infliction of emotional distress; Plaintiff failed to meet that burden for her retaliation claim.
For the reasons stated in the above Memorandum Opinion, IT IS HEREBY ORDERED that Defendants’ motion for summary judgment is DENIED as to Plaintiffs discrimination claims under Title VII and FEHA, and intentional infliction of emotional distress; and GRANTED as to Plaintiffs retaliation claims under FEHA against all Defendants. Defendants’ motion for summary adjudication in the alternative is DENIED on the merits as to Issue Nos. 1, 5, and 6, and DENIED as moot as to Issue Nos. 2-4, and 7-14.
IT IS SO ORDERED.
Notes
. This Court also notes that Plaintiff's evidence fails to conform to the local rules relating to the filing of deposition testimony, in particular the prohibition against filing an entire deposition electronically and failing to file excerpts of the deposition with referenced exhibits. See Local Rules 56-260, 5-133(j), and 43-142. Plaintiff did not lodge a copy of her brief or supporting evidence with the Court. Plaintiff also without explanation filed errata to her exhibits two weeks after she filed her brief. The Court expects Plaintiff to be familiar with and comply with the local rules, and Plaintiff is admonished that she and her counsel must follow the local rules. Plaintiff's failure to follow this district's local rules creates an unnecessary and time-consuming burden on this Court.
. The fact that Plaintiff was given two opportunities to respond to Defendants’ objections to her documents makes her failure to authenticate her documents or identify who produced them inexcusable.
. Defendants’ briefs assume that all Defendants, including the individual defendants, are being sued for racial discrimination. Plaintiff's opposition brief did not argue that the individual defendants were accused of discrimination, but rather that they were accused of retaliation. The Court's review of Plaintiff's TAC indicates that only CSUB is sued for discrimination., See TAC ¶¶ 21-31.
. California courts have adopted
McDonnell Douglas
to determine claims under FEHA and look to federal courts' interpretation of Title VII.
Yanowitz v. L’Oreal USA, Inc.
(2005)
. Defendants also argue that the position for which Plaintiff applied was not a promotion and that her theory of the case is flawed. According to Defendants, the director of student activities was a non-tenured staff position and Plaintiff is a tenure-track member of the faculty. Defendants also note that Position 891 paid less than Plaintiffs position as a counselor. Defendants’ arguments are inap-posite. The fact that Position 891 may be a lateral move within the university or a nontenured position does not diminish Plaintiff's claims that she was unlawfully discriminated against when she applied for Position 891, whether it was in the context of a promotion or a new hire.
. In their reply brief Defendants argue that, as to the qualification prong of
McDonnell Douglas,
Barefield has failed to meet "her burden of proving that she was more qualified tha[n] Joseph Lowder,” the candidate selected for Position 891. Plaintiff has no such burden given that Defendants conceded in their briefs that Plaintiff was qualified.
See Hagans,
.The "Qualifications” section of the job announcement for Position 891, in relevant part, provides:
Requires graduation from a four-year college or university including job related upper division or graduate course work and three years of progressively responsible professional student services work experience. A Masters degree in a directly related field is preferred and may be substituted for one year of experience. A Doctorate degree and the appropriate internship or training in counseling or guidance may be substituted for the three years of experience. Candidates possessing related practical work experience in a related program area, preferably in a higher education setting, will be given priority. Applicants should possess an understanding of the relationship of student affairs programs to the educational process; be able to initiate, develop and effectively manage a broad range of activities programs, including coordination of campus clubs and organizations; have demonstrated the ability to work independently and with a minimum of supervision; must be able to plan, organize and equitably resolve individual and student organizational issues and concerns; and possess and utilize advanced human relation skill which allow them to interact with highly visible student groups while helping them resolve their problems as they continue to function in the university environment.
See Exh. J to McCoy Decl. The job announcement also indicates that: "Only those applicants possessing experience most directly related to the immediate needs of the office will be invited to appear before a Qualifications Appraisal Board for the purpose of appraising training, experience and interest in the position.” Id.
. Plaintiff's Memorandum of Points and Authorities in Opposition to Defendants’ Motion for Summary Judgment incorrectly states that the job posting is attached as Exhibit A to the McCoy Decl.; the document is actually attached as Exhibit J. Defendants objection to this document on authentication grounds is overruled because Defendants attached the same document to the Murie Declaration.
. Defendants object to this testimony on the grounds that it was not attached as part of Exhibit A to the McCoy Decl. The Court notes that several pages of the exhibit Plaintiff cited in her opposition brief were not attached to the exhibit filed with Plaintiff's brief. Several additional pages of Barefield's and Murie's deposition were filed by Plaintiff as errata two weeks after Plaintiff had filed her opposition and, more importantly, after Defendants had already submitted their reply brief. Plaintiff did not explain her failure to file these missing pages when she filed her opposition brief, for which this Court had already granted Plaintiff an extension on an ex parte basis. Although the Court recognizes the potential for prejudice where a party submits additional evidence after briefing, this Court has discretion to consider the evidence. Defendants suffer no prejudice because Defendants were on notice as to the specific evidence Plaintiff was relying on because the opposition cited to page and line numbers.
Defendants object to this testimony on best evidence grounds. The best evidence rule requires that "[t]o prove the content of a writing ... the original is required.” Fed. R. Ev. 1002. Defendants’ objection is overruled. Plaintiff does not seek to prove the contents of the document. Additionally, the job posting is attached to the declaration of Murie and to the McCoy Decl.
. Additionally, this Court’s review of the record indicates that Barefield testified that at the time she applied she had been working at CSUB from 2001-2003 “so that had given [her] a couple years of experience working in the higher education setting.” Id. at p. 71. She also states that "if you have a degree or training in counseling, that that would be even substituted for the years of experience.” Id. Plaintiff's opposition brief does not rely on this testimony and an examination of the job posting may reveal why. Plaintiff’s work experience at CSUB had been as a counselor; it is not clear that this qualifies as the “three years of progressively responsible professional student services work experience” mentioned in the job posting although this is an issue for the factfinder. Additionally, Plaintiff seems to misread what advanced degrees may be substituted for work experience. The job posting provides that "A Doctorate degree and the appropriate internship or training in counseling or guidance may be substituted for the three years of experience” and not that a degree or training in counseling could be substituted for experience.
. Defendants’ object to this testimony on relevance, improper lay opinion, and vagueness grounds. Defendants' objections are overruled. Barefield's testimony about her qualifications is clearly relevant to the issue at hand, employment discrimination on the basis of race. The testimony is also not improper lay opinion. See Fed.R.Evid. 701 (Lay testimony in the form of opinions or inferences is proper when "(a) rationally based on the perception of the witness, (b) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge....”). As to vagueness, the Court finds that the testimony is not so vague and abstract as to prevent a rational factfinder from inferring discrimination.
. Plaintiff attaches her resume as Exhibit K, and her application for Position 891 as Exhibit L to the McCoy Declaration. Assuming Barefield’s testimony regarding her qualifications and experience is true, these exhibits would be insufficient to create a material factual issue regarding Plaintiff's qualifications for the director of student activities position. Exhibit K lists Plaintiff's educational professional experience in counseling, teaching, and running seminars and workshops. It also lists that she is chair of the alcohol and drug education committee, and a member of various other campus committees. In Exhibit L, under the “Qualifications Summary,” Plaintiff writes: “I have experience working with students on a counseling level and as an advisor for a student group on campus. My experience and training have enabled me to work effectively with students from different cultures and ethnicities. I have been able to initiate, develop, plan, and organize campus-wide educational events including OKSO-BERFEST and Safe Spring Break.” Additionally, in the “Employment History” section, Plaintiff lists her employment at CSUB as a Counselor ("Provide individual counseling to students who are experiencing personal and academic problems which interfere with their ability to succeed at the university. I also teach general studies courses.”), and her employment at a Child Guidance Clinic as a Program Therapist ("I provided family, individual, and group counseling to families with a variety of emotional and behavioral difficulties. In addition, I served as a liaison between the clinic, schools, and the community.”). Contrary to Plaintiff’s testimony, her resume and application do not document her qualifications for a director of student activities position; that is, Exhibits K and L are insufficient for a rational factfinder to conclude that she was qualified for the position because they do not convey the same broad student activities experience that Plaintiff testified to having at her deposition.
. Defendants also object to this testimony on hearsay, foundational, and vagueness grounds. Barefield’s testimony regarding what Hendrickson told her is non-hearsay and admissible as an admission of a party opponent under Fed. R. Ev. 801(d). Defendants’ other objections are also overruled. See n. 11, supra.
. Defendants object to Murie's testimony regarding Plaintiffs qualifications on foundation grounds. Defendants’ objections are overruled. Murie testified that he reviewed the 39 applications, the selection criteria, and determined whom to recommend for an interview. This is sufficient foundation for Mu-rie’s testimony.
. Murie testified that Barefield received a question mark on the sheet he used to record his assessment of the applicants. A question mark indicates that "there’s not a determination whether [an applicant] will be accepted or rejected at that point.” Id. at p. 55. Applicants with question marks next to their names, such as Barefield, were not interviewed. Id. at p. 71. Plaintiff submits this sheet as Exhibit M to the McCoy Deck, but it is inadmissible because Plaintiff failed to authenticate it. Murie's testimony regarding the document is, however, admissible. The testimony regarding the sheet is not subject to attack on best evidence rule grounds. Fed. R. Ev. 1002 requires that "[t]o prove the content of a writing ... the original is required.” Here, Murie's testimony is not offered to prove the contents of Exhibit M, but rather to determine Murie’s motives as they relate to Plaintiff’s discrimination claims.
. Plaintiff also argues that Murie had access to a database listing the race of applicants and that he therefore had access to information regarding Plaintiff's race. As Defendants argue, Plaintiff's evidence requires too many inferences to be reliable. Unlike the application and resume that he testified to having reviewed firsthand, Murie would have to have access to the database, checked it, and the information on the database would have to have been accurate. Plaintiff has offered no evidence of any of these predicate facts. Also, although Exhibits K and L, Barefield's resume and application, are inadmissible, Mu-rie's testimony regarding his review of the resume may be considered.
. Plaintiff's evidence may have created a triable issue of fact that the positions were the same. Exhibit X is an email from Bill Perry to Olga Lopez of CSUB's human resources department, where Perry writes that "The duties described in the attached position description number 891, Director of Student Activities, are exactly the same duties Marina Avalos-Kegley will be fulfilling in the Interim Director of Student Activities position.” Exhibit X is inadmissible on authentication grounds. Plaintiff’s arguments regarding improper reclassification are addressed in next section, infra.
. Plaintiff offers Exhibit F, the CSUB Employee Handbook, as evidence that the proper reclassification procedures were not followed. Exhibit F may have been sufficient to create an issue of fact that CSUB did not follow its established procedures. This exhibit, however, is inadmissible on authentication grounds.
. Plaintiff also presents Exhibit Y, which indicates that Kegley received a salary increase after she was reclassified, which could lead a reasonable factfinder to find that the budgetary rationale was pretextual. This exhibit, however, is inadmissible on authentication grounds.
. The Court takes judicial notice of the filing of Plaintiff’s Complaint on May 10, 2005 for the fact that it was filed and not for the truth of anything contained in the Complaint. A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. Fed.R.Evid. 201(b).
. Defendants object to this evidence based on Murie's lack of knowledge and foundation, however even if the Court were to consider this evidence, given Plaintiff’s failure to present any evidence that her complaints actually went to the provost's office, it is unnecessary for the Court to rule on this objection.
. See George Deck, Exh. B (Barefield evaluation, dated May 7, 2004) (“Ms. Barefield has not made adequate progress in [the creative activities and scholarship] area. She has been involved in grant development and administration. However, she needs to develop a research agenda that can ultimately produce a peer-reviewed publication. V Ms. Barefield meets minimally University expectations in this area.”); Ex. D to George Deck (Unit RTP Evaluation, dated January 28, 2004) (“Finally, we encourage her developing a scholarly and research agenda to the extent compatible with her counseling duties”) and (University Review Committee, dated April 2, 2004) ("Ms. Barefield has been active in grant writing, grant management and serving on a peer-reviewed Expert Panel ... We suggest she consider publications in this area to fulfill the expectation for scholarly activities.”).
. Plaintiff cites to over 100 pages of her own deposition testimony in support of her position that grant writing may satisfy scholarly activity. The citation is to p. 11:14-119:9, and does not conform to Local Rule 56-260’s requirement that supporting evidence include "a citation to the particular portions of any pleading, affidavit, deposition ... or other document” offered in support. Furthermore, The Court is not required to examine the entire file for evidence establishing a genuine issue of material fact where the evidence is not set forth in the opposing papers with adequate references.
See Forsberg
v.
Pac. Northwest Bell Tel. Co.,
Plaintiff also offers Exh. EE to McCoy Deck, an email message from Hendrickson to Barefield, where Hendrickson states that grant activity is scholarly activity. This exhibit is inadmissible on authentication grounds, but even if the Court did consider this evidence Plaintiff's argument fails for the fundamental reason that she cannot show retaliation because she failed to offer evidence that George had knowledge of her complaints.
. Defendants object to this testimony on vagueness, hearsay, speculation, and best evidence grounds. Given resolution of this issue, it is not necessary for the Court to rule on these objections.
. A prima facie case of intentional infliction of emotional distress "requires (1) outrageous conduct by the defendant, (2) intention to cause or reckless disregard of the probability of causing emotional distress, (3) severe emotional suffering and (4) actual and proximate causation of the emotional distress.”
Cole,