ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
This matter came before the Court on August 9, 2010, on the motion for summary judgment filed by Defendant City and County of San Francisco, Department of Public Health (“City”). For the reasons set forth below, the City’s motion is GRANTED IN PART and DENIED IN PART.
FACTUAL BACKGROUND
In April 2002, Plaintiff Sherry Lynn Means (“Means”) began working as a certified nursing assistant at Laguna Honda Hospital and Rehabilitation Center (“Laguna Honda” or “Hospital”), a licensed acute-care hospital and skilled nursing facility operated by the City. She was terminated on September 17, 2008, after a period of unpaid administrative leave fоllowing allegations that Means used vulgar language with patients, initiated an unauthorized investigation of sexual assault at the Hospital, lied to supervisors investigating the incident, attempted to break in to her supervisor’s office, and threatened coworkers with violence. Means challenges these allegations, and in a Complaint filed March 4, 2009, Means claims that she was unlawfully discriminated against, retaliated against, and harassed in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”) as well as California’s Fair Employment and Housing Aсt (“FEHA”). Means also alleges that the City discriminated against her in the making and enforcement of contracts under 42 U.S.C. section 1981 (“section 1981”), and that the City’s actions disqualified her from her profession on the basis of race in violation of Article I, section 8, of the California Constitution. The City moved for summary judgment on August 9, 2010; Means opposed the motion.
In October 2001, nearly seven years before the City terminated Means, Means applied for a certified nursing assistant position at Laguna Honda. When the City did not hire Means, she filed a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”), claiming that Laguna Honda denied her employment because of her race. The EEOC issued a right-to-sue notice, but instead of filing a lawsuit, Means entered into a settlement agreement with the City in March 2002. As a result of the settlement agreement, the City offered Means a position as a certified nursing assistant at Laguna Honda, and Means released the City from all “past, present or future” claims relating to Means’s denial of employment with the City. Bond Deck, Ex. H, at 3.
Mеans began working at Laguna Honda in April 2002. She alleges that during her employment she was “subjected to a continuing pattern of unlawful discriminatory employment practices.” Means Deck ¶ 5. For example, Means alleges that she was
Means also alleges that she was (1) given “the most difficult, undesirable!,] and onerous” assignments while non-black coworkers got easier assignments; (2) criticized without justification while non-black employees, whose work was unsatisfactory, were not criticized; (3) “addressed in an insulting manner” by supervisors and non-black coworkers, while non-black employees were treated with respect; (4) “humiliated and ridiculed” by supervisors and non-black coworkers; (5) subjected to scrutiny without justification while non-black employees whose work was unsatisfactory were not scrutinized; and (6) harassed by supervisors and non-black coworkers. Means Decl. ¶ 5.
The events that led to Means’s termination began on or around May 23, 2008, when Means learned that the Hospital was conducting an investigation into allegations that a resident in Unit G3 had been sexually assaulted. The patients in Unit G3 are women with serious psychological problems, including paranoia and schizophrenia. After learning about the sexual assault investigation, Means asked at least one patient in Unit G3 whether she had been sexually assaulted. 1 Two residents became frightened and upset as a result of Means’s comments, and they complained to Dilag, the nurse in charge of Unit G3. Dilag informed Nursing Supervisor Monica Maguire of the complaints, and Maguire met with Means and her union representative the same day. At that mеeting, Means denied speaking to patients about sexual assault. She had visited Unit G3 to get cups, she said. This was not true, but Means was trying to protect Registered Nurse Cristina Santo Domingo (“Santo Domingo”), who Means said told her to go to Unit G3 and find out about the sexual assault allegations. Santo Domingo also told Means to lie about why she was in Unit G3, according to Means. Santo Domingo is one of Means’s superiors, but Means admits that Santo Domingo did not send her to Unit G3 on an assignment, but to “get the gossip.” Means Depo. 112:21-25.
Maguire told Teresitа Baluyut (“Baluyut”), Means’s supervisor, about the incident, and Baluyut conducted an investigation. Baluyut and Senior Personnel Analyst Willie Ramirez (“Ramirez”) met with Means and her union representative on May 29, 2008. Means again said that she had gone to Unit G3 to get cups. At this meeting, Means submitted a letter denying that she had made any “inappropriate” comments to residents, and claimed that Dilag, who had reported the incident, said otherwise because she was homophobic and “intolerant of Afro-Americans.” Ramirez Decl. ¶ 7 & Ex. B.
Means’s supervisors proposed a five-day suspension for Means, and they held a meeting on July 7, 2008, to give Means an opportunity to respond. At this meeting, Means accused Baluyut of being racist and attributed her suspension to the fact that she was African American. In a deelara
Baluyut discovered that someone had attempted to break into her office on Monday, July 21, 2008. Baluyut met with Devasconcellos and Ramirez about the incident, and through an investigation they learned that Santo Domingo had observed Means tampering with Baluyut’s door on Friday, July 18, 2008. Santo Domingо also said that she heard Means call Baluyut a “devil” and a “demon,” and that Means said she was going to “piss on [Baluyut’s] face” and “let blood drip on [Baluyut].” Means denies damaging the door to Baluyut’s office. However, she admits that on other occasions she joined discussions with colleagues, including San-to Domingo, in which they spoke “in a disparaging fashion” about Baluyut’s actions and behavior. Means Decl. ¶ 65. Means admits calling Baluyut a “devil” and a “demon,” but says these comments were no different from those made by her coworkers. Id. at ¶ 97; Means Depo. 229:14-15.
Santo Domingo also told Devasconeellos, Ramirez, and Baluyut that Means had offered to put a contract out on Santo Domingo’s husband for $20,000. Means admits this, but contends that she was kidding. Means Decl. ¶ 68. Santo Domingo said Means had repeatedly asked her where Baluyut parked her car, and that Means said she was friends with a former patient who was a member of the BB Notorious Gang, all of which Means denies. Finally, Santo Domingo told Devasconeellos, Ramirez, and Baluyut that Means had said that if she were firеd, she would bring a gun to work and shoot people. In her declaration, Means denies saying this, but in her deposition, she admits it and says she was joking. Means Decl. ¶ 20; Means Depo. 106:23-25,107:1-5.
Ramirez initiated an investigation of the damage to Baluyut’s door and allegations that Means had threatened violence. He spoke with Means’s coworkers, who claimed that Means had threatened Baluyut. They also said they had heard Means say she would bring a gun to work if she were fired. On July 29, 2008, Ramirez sent Means a letter telling her of the allegations thаt she had damaged City property, and asking that she participate in an investigatory interview on July 31, 2008. At the interview, Means denied tampering with Baluyut’s door, but admitted saying that she would come to work with a gun if she were fired. After the meeting, Ramirez put Means on unpaid administrative leave. On August 29, 2008, the City notified Means of its intention to dismiss her and scheduled a meeting to give Means an opportunity to respond. Means attended with her union representative and her attorney, who participated in the meeting. On September 17, 2008, the City notified Means that it had terminated her.
LEGAL STANDARD
Summary judgment is appropriate when there is no genuine dispute as to material facts and the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(c). Material facts are those that may affect the outcome of the case.
Anderson v. Liberty Lobby, Inc.,
A party seeking summary judgment bears the initial burden of informing the Court of the basis for its motion, and of identifying those portions of the pleadings and discovery responses that “demonstrate the absence of a genuine issue of material fact.”
Celotex Corp. v. Catrett,
DISCUSSION
The City asks the Court to grant summary judgment on all eight claims in Méans’s Complaint: (1) race discrimination undеr Title VII, (2) retaliation under Title VII, (3) harassment under Title VII, (4) race discrimination in the making and enforcement of contracts under section 1981, (5) race discrimination under FEHA, (6) retaliation under FEHA, (7) harassment under FEHA, and (8) disqualification from a profession on the basis of race under Article 1, section 8, of the California Constitution.
I. Title VII, Section 1981, and FEHA Race Discrimination Claims
Means brings her first, fourth, and fifth causes of action under Title VII, section 1981, and FEHA, respectively, all of which proscribe disparate treatment on the basis of race. 42 U.S.C. § 2000е-2(a); 42 U.S.C. § 1981; Cal. Gov’t Code § 12940(a). The parties agree that these discrimination claims are analyzed under the burden-shifting analysis set forth by the Supreme Court in
McDonnell Douglas Corp. v. Green,
Means contends that her five-day suspension, unpaid administrative leave, and termination were adverse employment actions taken on account of her race. Means also claims that (1) her supervisors and coworkers called her “black and ugly;” (2) she was given more difficult assignments than her non-black coworkers; (3) she was unjustly criticized for her performance while non-black coworkers whose work was less satisfactory were not criticized; (4) her work was scrutinized more closely than non-black coworkers whose work was less satisfactory; (5) supervisors and coworkers addressed her in an insulting manner, while non-black colleagues were treated with respect; (6) supervisors and coworkers humiliated and ridiculed her; and (7) her supervisors and non-black coworkers harassed her. Means has abandoned any claim of race discrimination arising out of the City’s initial refusal to hire Means in 2001. Means Opp’n 19:16— 20.
With regard to Means allegations that she was criticized and scrutinized more than non-black employeеs, and that she was given more onerous assignments than non-black colleagues, Means fails to make a
prima facie
case of race discrimination.
See Burdine,
The Court assumes without deciding that Means’s allegations make a
prima facie
case of race discrimination with regard to her five-day suspension, administrative leave, and termination.
See Burdine,
Means argues that these are not legitimate reasons for the City’s actions because they are based on allegations she contends are untrue and unworthy of belief. However, whether the underlying allegations are untrue or hard to believe is irrelevant.
See Villiarimo,
Furthermore, Means’s
prima facie
ease of discrimination does not raise an inference of pretext.
See Reeves,
Means’s prima, facie сase also includes the allegations that she was harassed, insulted, given undesirable ward assignments, criticized, scrutinized, and humiliated in a way that her non-black colleagues were not. However, these allegations contain no reference to specific events or people such that they could be weighed against the City’s legitimate reasons for taking adverse action against Means. They do not raise a genuine issue of material fact, and summary judgment is therefore GRANTED as to Means’s Title VII, section 1981, аnd FEHA claims of race discrimination.
II. Title VII and FEHA Retaliation Claims
The parties agree that the
McDonnell Douglas
framework also applies to claims of retaliation under Title VII and FEHA.
Surrell,
For the reason stated above, Means fails to make a
prima facie
case of retaliation with regard to her allegations of criticism, scrutiny, and onerous assignments. The Court аssumes without deciding that Means makes a
prima facie
case of retaliation with regard to her suspension, administrative leave, and termination. However, as above, Means does not provide any evidence that the City’s reasons for disciplining Means are mere pretext.
See Coons,
III. Title VII and FEHA Harassment Claims
To prevail on а racial harassment claim under Title VII and FEHA, Means must show: (1) that she was subjected to verbal or physical conduct of a racial nature; (2) that the conduct was unwelcome; and (3) that the conduct was sufficiently severe or pervasive to alter the conditions of Means’s employment and create an abusive work environment.
Vasquez v. County of Los Angeles,
In
Manatt,
the Ninth Circuit found that plaintiffs conditions of employment were not altered where coworkers ridiculed plaintiffs pronunciation and pulled their eyes back with their fingers in an attempt to mock the appearance of Asians.
Means contends that she was continuously called “black and ugly” in Tagalog during her employment as a certified nursing assistant at Laguna Honda. This is verbal conduct of a racial nature, and it is uncontested that if the cоmments were made, they were unwelcome. The question is whether the conduct was sufficiently severe or pervasive to alter the conditions of Means’s employment.
See Vasquez,
While being called “black and ugly” is comparable to the non-discriminatory racial comments in
Manatt,
unlike in
Manatt,
where only two instances of unwelcome racial conduct toward plaintiff were at issue, Means contends that the phrase, “black and ugly,” was directed at her continuously throughout her employment at Laguna Honda.
See
Means also alleges that she was given the most onerous work assignments, insulted, humiliated, and harassed because of her race. She says she was criticized and scrutinized more than her non-black colleagues. However, Means presents no evidence explaining these events, nor does she provide evidence giving rise to an inference that the events had to do with her race. Therefore, while Means’s harassment claim survives, it is limited to Means’s claim that she was continuously called “black and ugly.” Therefore, summary judgment as to Means’s Title VII and FEHA harassment claims is DENIED.
IV. Constitutional Claim
The City argues that because Means has not met her burden with respect to her Title VII, section 1981, and FEHA race discrimination claims, the Court should grant summary judgment with respect to her claim under Article I, section 8, of the California Constitution,
CONCLUSION
The City’s motion for summary judgment is GRANTED IN PART and DENIED IN PART. Summary judgment is granted to the City as to the first cause of action for violation of Title VII’s race discrimination provisions, second cause of action for violation of Title VII’s retaliation provisions, fourth cause of action for discrimination under section 1981, fifth cause of action for violation of FEHA’s race discrimination provisions, sixth cause of action for violation of FEHA’s retaliation provisions, and eighth cause of action for violation of Article I, section 8, of the California Constitution. Summary judgment is denied, however, as to Means’s third and seventh causes of action, for harassment in violation of Title VII and FEHA.
IT IS SO ORDERED.
Notes
. According to Means, she asked one patient, “[H]as anybody been playing between your legs in a way that’s not right?” Means Depo. 112:6-9. The City contends that Means spoke with at least two residents using "graphic and offensive” language. Baluyut Decl. ¶¶ 5-7.
. Means seeks to exclude a portion of Baluyut's declaration in which Baluyut says that "Ms. Means made a series of inappropriate sexual comments to patients in Unit G3 at Laguna Honda” and that residents "said Ms. Means used ‘disgusting’ words.” Means argues that Baluyut's statements are inadmissible hearsay and inadmissible opiniоn evidence, and that Baluyut lacks personal knowledge. However, this evidence is not being offered for its truth, but rather its impact upon Baluyut, the decision maker, and is therefore not hearsay.
See Haddad v. Lockheed California Corp.,
. Means seeks to exclude portions of the declarations of Baluyut, Ramirez, and Devasconcellos in which they recount being told of these events, arguing that various portions are inadmissible hearsay, inadmissible opinion, irrelevant, and lack personal knowledge. While this evidence would be hearsay if it were offered for its truth, it is being offered to show that Baluyut, Ramirez, and Devasconcellos received complаints about Means. See Haddad, 720 F.2d at 1456. Therefore, it is not hearsay. Furthermore, it is not improper opinion evidence, it is highly relevant, and Baluyut, Ramirez, and Devasconcellos have personal knowledge of what they were told. Means raises dozens of similar objections with regard to the fruits of Baluyut, Ramirez, and Devasconcellos’s investigations. They are meritless.
. One of the people that Means says called her "black and ugly” is Dilag, the nurse in charge of Unit G3, where the alleged sexual assault occurred. However, Dilag merely reported Means's statements to her superiors, and had no input into the decision to discipline Means.