ORDER RE MOTIONS FOR SUMMARY JUDGMENT, JUDICIAL NOTICE, AND EVIDENTIARY OBJECTIONS

WILLIAM ALSUP, District Judge.

INTRODUCTION

In this action under Title VII of the Civil Rights Act and the California Fair Employment and Housing Act, employer moves for summary judgment. Employer also objects to improper authentication of several exhibits appended to employee's exhibits. To the extent stated, summary judgment is GRANTED.

STATEMENT

1. COVINGTON'S EMPLOYMENT.

Beginning in 2005, plaintiff Sandra Covington worked as a licensing program analyst for defendant California Department of Social Services, which operates in Alameda County, among other places. The LPA position involved licensing work and site evaluations of community care facilities for adults and children. Covington declares that from 2005 to 2008, she passed her probationary period, received no negative performance evaluations or discipline, and "was often complimented by management for [her] exemplary performance" (Covington Decl. ¶ 4).

Covington has since brought three claims against the Department, each one made under Title VII and FEHA: (1) race discrimination based on disparate treatment; (2) hostile work environment based on race; and (3) retaliation. The nub of her claims is this: starting in 2008, her managers have subjected her to unfair work scrutiny and criticisms, unjustified denials of salary adjustments and training opportunities, and other disciplinary measures — all on account of her African American race and in retaliation for her complaints of race discrimination (Amd. Compl. ¶¶ 8-19). No racial epithets or racially derogatory comments were ever made, but in Covington's view, the Department treated her non-African American co-workers more leniently. Of note, Covington was never fired and still works for the Department.

2. COVINGTON'S WORK PERFORMANCE.

In June 2008, Marie Christie, a Caucasian, was Covington's manager, evaluating Covington's work performance through a written "Individual Development Plan." This plan marked two out of nine performance factors as needing improvement to meet expected standards: "quality of work" and "meeting work commitments." In addition, the plan noted that Covington was expected to turn in her statements of facts on time, and that several of her reports contained incorrect citations for civil penalty assessments (Martin Exh. A at AGO-MSJ-003-4).

In April 2009, Covington received a second individual development plan. Like before, this plan marked two performance factors as needing improvement, while again noting problems with incorrect citations and several other issues (Martin Exh. C at AGO-MSJ-009-13). As a result, a Hispanic manager, Mary Troupe, denied Covington a 2009 "Merit Salary Adjustment," i.e., a five-percent salary increase following twelve months of satisfactory performance. Troupe then gave Covington four more individual development plans — in April 2010, September 2010, April 2011, and April 2012. All of these plans marked two to five performance factors as needing improvement — including "work habits," "taking action independently," and "analyzing situations and materials" — and recorded various work errors committed by Covington. None of the individual development plans, or any of the other work documents submitted on this record, suggest that race was a factor in identifying Covington's work performance as substandard.

Collectively, the negative feedback from these plans led to several consequences. One was the denial of subsequent Merit Salary Adjustments for Covington in 2010, 2011, and 2012 (in addition to her 2009 Merit Salary Adjustment denial). Another was the Department's two changes to Covington's "Alternate Work Week" schedule, which otherwise permitted her to work more hours on certain days (still for a total of forty hours per week) in exchange for one day-off every two weeks. Under the first change in July 2009, Covington was no longer allowed to "flex" her day-off; under the second change in June 2011, her AWW schedule was rescinded all together, with the requirement that she work a regular "8 am to 5 pm" schedule every workday. Covington also complains that she was denied training opportunities, including the 2009 and 2010 "Master Analyst Program" training for staff members who were selected "based on their demonstration of leadership qualities, analytical performance, high quality work product and possession of skills which would be enhanced by the MAP training" (Amd. Compl. ¶¶ 8-17; Covington Decl. ¶ 18; Martin Decl. ¶ 10). Furthermore, after telling Troupe that she was "an evil insecure little witch" and that she had "no respect for [Troupe] whatsoever," Covington was demoted to the role of office technician, effective January 1, 2014. At the hearing, counsel for both sides represented that Covington has since been restored to her LPA position, where she remains to date. The goal of this action is to recover the merit raises and other monetary damages.

3. COVINGTON'S GRIEVANCES TO HER EVALUATIONS.

Through her union's grievance process, Covington made at least five challenges in connection with her negative performance evaluations. For example, she grieved the April 2009 individual development plan, asking that her evaluation be revised to "meet expectations" for all performance factors and that she be awarded her 2009 merit salary adjustment. The Department, however, denied the grievance based on the documented examples of her work not meeting expectations in her June 2008 and April 2009 individual development plans. Covington appealed to "level two" of the review process, with the Department later finding "no evidence of reprisal" after "[t]he Labor Relations Bureau [had] conducted an investigation" (Martin Exh. C at AGO-MSJ-029-30). She then submitted four more grievances for her subsequent individual development plans, merit salary adjustment denials, and AWW schedule rescission — even appealing some grievances to "level three" of the process and filing several rebuttals of her own. But the Department denied each grievance at each stage, due to the work errors recorded in Covington's individual development plans.

In May 2010, Covington filed a charge of discrimination with the Equal Employment Opportunity Commission and the California Department of Fair Employment Housing.

Moreover, on August 5, 2010, she met with Department representatives to discuss her grievances. As one of the representatives, the Department's Adult and Senior Care Program Administrator wrote to Covington (Martin Exh. D at AGO-MSJ-058):

Later, on May 4, 2011, Covington filed an internal discrimination complaint with the Department's own Equal Employment Opportunity office, which examined each of her allegations and reported the following (Martin Exh. G at AGO-MSJ-123-32) (emphasis added):

She commenced the instant action on September 7, 2012, with trial set for May 27, 2014.

Now, the Department seeks summary judgment on all of Covington's claims. It argues that (1) Title VII and FEHA's statutes of limitations bar those claims to the extent that they are based on events from 2008 through May 19, 2009; and (2) in any event, Covington lacks evidence of race discrimination, hostile work environment, or retaliation. This order follows full briefing, supplemental responses, and oral argument.

ANALYSIS

Ordinarily, Covington's FEHA claims would be dismissed without prejudice because "the Eleventh Amendment bars [a plaintiff's] FEHA claim in federal court" against a state agency. Freeman v. Oakland Unified Sch. Dist., 179 F.3d 846, 846 (9th Cir. 1999). The Department is such an agency, but it has waived sovereign immunity after failing to raise that defense in its present motion. See Johnson v. Rancho Santiago Cmty. Coll. Dist., 623 F.3d 1011, 1022 (9th Cir. 2010).

This order therefore turns to Covington's claims, which "need only [be] assess[ed] under federal law because Title VII and FEHA operate under the same guiding principles." Brooks v. City of San Mateo, 229 F.3d 917, 923 (9th Cir. 2000). While the Department argues that Covington's claims cannot be based on certain events (in 2008 and 2009), it is unnecessary to reach that argument because Covington has not met her burden in opposing summary judgment.

1. RACE DISCRIMINATION CLAIM.

Covington claims race discrimination based on the factors from McDonnell Douglas Corporation v. Green, 411 U.S. 792, 802 (1973). Citing those factors, our court of appeals has instructed:

Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018, 1028 (9th Cir. 2006) (emphasis added). Establishing such a prima facie case creates the presumption that an employer carried out the challenged action because of the employee's race. The employer, however, can rebut the presumption by producing admissible evidence that it undertook the challenged employment action for a "legitimate, nondiscriminatory reason." Then, the employee must offer direct or circumstantial evidence showing that the employer's proffered reason is pretext for race discrimination, and thus, "unworthy of credence." Ibid.

The demotion and denial of merit raises were plainly "adverse employment actions." Covington's non-selection for the MAP training and the denial of her AWW schedule are not so clear in our context, but this order will assume that they must be regarded as "adverse employment actions" for purposes of summary judgment. This order will further assume that the MAP and AWW problems were properly pled, and that Covington has otherwise made out a prima facie case.

That said, the employer here has rebutted the presumption by producing admissible evidence that it undertook the challenged adverse employment actions for a legitimate, nondiscriminatory reason. Specifically, the Department points to Covington's below-expectation performance, relying on the various work errors documented throughout Covington's six individual development plans. Without recounting every such error (many have been recorded), this order provides a sampling from those individual development plans (see Martin Exhs. C, F, and J) (emphasis added):

This sampling is not exhaustive. The individual development plans reported a number of other problems with Covington writing incorrect citations, submitting untimely statements of facts, signing up for Department vehicles, maintaining her control book, and providing incomplete reports. It is because of the documented work errors that the Department's EEO office rejected Covington's discrimination complaint (Martin Exh. G at AGO-MSJ-123-32). In fact, Covington herself admitted to some of these errors in her rebuttals, which she submitted to the Department (see Martin Exhs. C, D, and F) (emphasis added):

The Department has also demonstrated that its decisions to adjust Covington's AWW schedule and to decline her MAP training requests were based on a legitimate, nondiscrimination reason, which, for the sake of convenience, will be addressed below (see Martin Decl. ¶ 11 at 10:16-20; Exh. F at AGO-MSJ-094).

To this, Covington counters that there is evidence of pretext, raising three examples in her opposition (Opp. 15-16). First, Covington points to the Department's changes to her AWW schedule, such that she was no longer allowed to "flex" or change her day-off, and later was removed from the AWW schedule all together. Second, she highlights the denials of her requested MAP training in 2009 and 2010. Third, she contends that she "was unjustly issued negative performance evaluations and denied her [merit salary adjustments] for alleged performance issues that did not occur as alleged, were outside her control, caused by other employees, or for which non-African American LPAs who engaged in the same behavior were not disciplined" (id. at 16). Covington, in essence, suggests that the Department treated her non-African American co-workers more leniently, despite purported mistakes with their own work.

But the record as submitted does not support Covington's arguments for pretext. In regards to the Department's changes to her AWW schedule, Covington declares (Covington Decl. ¶¶ 10, 15) (emphasis added):

This declaration falls short. In light of the documented history of Covington's substandard work performance, it is easy to see why the supervisors would prefer that she work a normal forty-hour week rather than impose upon herself extra long workdays so that she could take a day-off. Longer work hours run the risk of even more mistakes. As for her supposed comparators, she has not shown that Gasparini and Aguilar had work deficiencies as bad as her own. Her opinion on this score is inadmissible.

Another reason given by the employer is that Covington abused the AWW schedule. To that end, a second-line supervisor at the Department declares that Covington "repeatedly abused this privilege" of her flexible work week schedule (Martin Decl. ¶ 11 at 10:16-20; Exh. C at AGO-MSJ-011-15). Her AWW schedule was therefore narrowed — such that she could not "flex" or change her days-off — and later revoked all together — due to poor work performance. Indeed, the record reflects Covington's problems with her work schedule back in April 2009 (Martin Exh. C at AGO-MSJ-011-15) (emphasis added):

There is also no direct evidence of pretext, either here or elsewhere in the record. Nor does Covington's declaration provide sufficient circumstantial evidence to show pretext. On this point, our court of appeals requires circumstantial evidence of pretext to be "`specific' and `substantial' to create a genuine issue of material fact." Cornwell, 439 F.3d at 1029 (internal citations omitted). That Covington disagreed with the "meritless" reasoning to later rescind her AWW schedule is also unpersuasive, as her "subjective belief that the challenged employment action was unnecessary or unwarranted" does not create a genuine issue of material fact. Id. at 1029 n.6.

Covington also claims racial pretext for not sending her to the MAP training, and more generally, for not disciplining other non-African American LPAs who "engaged in the same behavior . . ." (Opp. 16). As to the denied training, Covington declares (Covington Decl. ¶ 18) (emphasis added):

This too is unpersuasive. Covington was not the supervisor of Gasparini, and was not in a position to opine on whether his performance was as bad as her own. Even assuming that Gasparini made "several errors" on one licensing application and had "several outstanding complaints" in 2010, as Covington declares, this pales in comparison to the numerous work mistakes documented in Covington's six individual development plans and other work documents. In other words, no reasonable jury could find from this record that Gasparini's work errors were comparable in scope to Covington's work mistakes, such that there is somehow "specific" and "substantial" evidence of pretext. Cornwell, 439 F.3d at 1029 (internal citations omitted).

Covington cited one of her exhibits during the hearing to show a list of eight untimely complaints by Gasparini (Covington Exh. 5 at SC-MSJ-101). But the earliest date on which these allegedly untimely complaints could have existed was 2011, after Gasparini had already been nominated for the MAP training in 2010. This means that at most, Covington's exhibit — on which she relies to show pretext in 2010 — only provides after-the-fact evidence of work mistakes made by Gasparini a year later.

At the hearing, the employer pointed out that all of the Gasparini records used by Covington to show that Gasparini had a lot of overdue complaints as well were after-the-fact, meaning not yet in existence and for a time period well after the decision to let him attend the MAP training in 2010. Covington's attorney replied that there were similar records for the pertinent, earlier time period. The undersigned judge then gave her an opportunity to submit those records. Covington's attorney did not submit any further records, however.

Covington next turns to her declaration and exhibits to demonstrate work errors purportedly committed by other non-African American colleagues. Her argument is that despite such mistakes, including missed deadlines, non-African American employees received no disciplinary action. But even when considered in the light most favorable to Covington, her declaration does not show that non-African American co-workers committed a similar scope of mistakes. For instance, Covington declares that two co-workers each missed a complaint, one by a day, and the other by nine days (Covington Decl. ¶ 17). But this is not comparable to when Covington alone took ten months to follow-up on the Brown Group Home's cited deficiencies, when the deadline to do so was only ten days (Martin Exh. J at AGO-MSJ-174). In addition, her argument that non-African American co-workers made similar work mistakes rests on unclear and voluminous exhibits (see, e.g., Covington Decl ¶ 11; Exhs. 1-6). While Covington declares that these exhibits contain true and correct copies of her co-workers' facility evaluation reports, control-book pages, and other documents, as well as Covington's e-mails to management about delayed processing of her complaints, they are not self-explanatory in showing what work errors (if any) were supposedly committed by her colleagues.* This is not the "specific" and "substantial" evidence required to show pretext. Cornwell, 439 F.3d at 1029 (internal citations omitted).

Nor has Covington provided evidence of negative performance evaluations for Gasparini or other alleged comparators. At the hearing, Covington's attorney explained that she did not obtain performance evaluations for non-African American co-workers, after the Department objected to the disclosure of such records out of privacy concerns. Covington's attorney then admitted that she ultimately did not bring a motion to compel the disclosure of those evaluations. The undersigned judge would have considered such a motion and probably allowed disclosure of some of those evaluations, so that a side-by-side comparison between Covington and her non-African American colleagues was possible. But Covington's counsel made the decision not to bring that motion. The burden now rests on her to show "specific" and "substantial" evidence of pretext. The absence of such performance evaluations thus counts against her case.

Accordingly, this order finds no triable issue of fact with race discrimination, as Covington has not met her burden in demonstrating pretext.

2. HOSTILE WORK ENVIRONMENT CLAIM.

For Covington's claim of hostile work environment based on race, both sides rely on Gregory v. Widnall, 153 F.3d 1071, 1074 (9th Cir. 1998) (internal citations omitted):

This order rests on the third element alone, specifically on insufficient evidence to sustain the third element. At most, Covington argues that the Department "communicated a hostile message" based on her race by delivering "unjustified, inaccurate" work criticisms in her individual development plans, denying her merit salary adjustments and training opportunities, conducting more performance evaluations of her work, applying stricter standards and penalties, and rescinding her AWW schedule — all of this in the view that other non-African American LPAs received fewer performance evaluations, more training opportunities, and lesser workloads under more lenient standards (Opp. 17).

But this is where the story ends. Even considering Covington's declaration and exhibits, as well as events since 2008, this order finds insufficient evidence to show that the Department's conduct was sufficiently severe or pervasive to create a hostile work environment. Vasquez v. County of Los Angeles, 349 F.3d 634, 642 (9th Cir. 2003), explained (internal citations omitted):

Our court of appeals then affirmed summary judgment for the employer there, where a supervisor's conduct was "not severe or pervasive enough to violate Title VII" after making two racially offensive remarks, yelling at the plaintiff on two occasions, and making false complaints about the plaintiff over the course of more than one year. Id. at 643. Vasquez also discussed Sanchez v. City of Santa Ana, 936 F.2d 1027, 1037 (9th Cir. 1990), in which "no reasonable jury could have found a hostile work environment despite allegations that an employer had posted a racially offensive cartoon, made racially offensive slurs, targeted Latinos when enforcing rules, provided unsafe vehicles to Latinos, did not provide adequate police backup to Latino officers, and kept illegal personnel files on plaintiffs because they were Latino." Vasquez, 439 F.3d at 643.

Much less is found here. Covington admitted in her deposition that she never heard of a racially derogatory comment from Christie or Troupe (McMahon Exh. A at 133:1-134:25). Furthermore, although Covington argues that she suffered "unjustified, inaccurate remarks on her performance evaluations," as well as merit salary adjustment denials, the record shows that Covington generally disagreed with, tried to explain away, or even admitted to her documented work errors (Opp. 17). With one error, Covington took over ten months, rather than the required ten days, to follow-up on a deficiency cited with the Brown Group Home. In her rebuttal, however, she gave no response to explain even this error (Martin Exh. J. at AGO-MSJ-174-83).

Covington's other claims of severe or pervasive conduct are also unconvincing. In her opposition, she alleges (Opp. 17):

Covington, however, received six performance evaluations over the span of three years. Moreover, the alleged "stricter standard" only appears in Covington's declaration, in which she describes how she (but not a Caucasian co-worker) was barred from using more than fifteen minutes to return phone calls or type a certain kind of supportive document while in the field (Covington Decl. ¶ 13). Her declaration also provides the following generalizations, often without specific facts: she was "penalized . . . for issues for which other LPAs were not penalized," she "had a heavier caseload" than "a Caucasian" who was nominated for a training opportunity (even though he purportedly committed work errors), and she could no longer "flex" her AWW schedule, which was ultimately rescinded (id. ¶¶ 9-18; Opp. 17). Again, it is not apparent from Covington's declaration or exhibits what work errors her colleagues reportedly committed, or how often the above conduct occurred.

This order therefore finds that Covington has not shown sufficiently severe or pervasive conduct by the Department to establish a hostile work environment claim.

3. RETALIATION CLAIM.

Finally, an employee establishes a prima facie claim of retaliation by showing that:

Ray v. Henderson, 217 F.3d 1234, 1240 (9th Cir. 2000). If such a prima facie claim is made, the employer must articulate a legitimate, non-retaliatory reason for its actions, and at that point, the employee bears "the ultimate burden" of demonstrating that the stated reason is pretext for retaliation. Ibid. This can be done by either "directly persuading the court that a discriminatory reason more likely motivated the employer[,] or indirectly [] showing that the employer's proffered explanation is unworthy of credence." Stegall v. Citadel Broad. Co., 350 F.3d 1061, 1066 (9th Cir. 2003).

Here, the decisive blow is that even if Covington can present a prima facie claim of retaliation, the Department, as before, has asserted a legitimate, non-retaliatory reason for its actions — namely, that Covington's work performance was deficient. Indeed, the record manifests a sustained pattern of work errors in her six individual development plans and other work documents.

Covington must therefore proffer "`specific' and `substantial' evidence of pretext to overcome [the Department's] summary judgment motion." Stegall, 350 F.3d at 1066. But her opposition only asserts the following (Opp. 18):

Lacking cites to facts, declarations, or other evidence for support, these are conclusory assertions that fall short of the "specific" and "substantial" evidence needed to show pretext.

Nor does Covington's own declaration help. At best, her declaration states that "shortly after" she filed a charge of discrimination with the EEOC, Christie and Troupe began to unilaterally change the terms and conditions of her employment and express a negative attitude towards her (Covington Decl. ¶ 12). Without details about "shortly after," this presents neither "specific" nor "substantial" evidence connecting the alleged changes to Covington's work to her charge of discrimination. In fact, the Department's EEO office found that "Ms. Covington's work performance issues were identified prior to the EEOC filing, and all PAS and MSA denials were completed prior to the latter two filings" (Martin Exh. G at AGO-MSJ-132) (emphasis added).

As a result, this order finds no "specific" and "substantial" evidence of pretext to save Covington's retaliation claim. Summary judgment on all three claims is thus GRANTED.

4. JUDICIAL NOTICE AND EVIDENTIARY OBJECTIONS.

The Department moves for judicial notice of the charge of discrimination that Covington filed with the DFEH and EEOC. Insofar as this order considers that charge, it does so based on declarations and other exhibits, not on the actual content of the charge itself. The motion for judicial notice is therefore DENIED AS MOOT.

In addition, both Covington and the Department object to each other's declarations and/or exhibits. Covington, for instance, challenges eleven parts of a declaration submitted by Ellen Martin, a former regional manager for the Department (Opp. 19-20). The Department objects to improper authentication of the exhibits appended to Covington's declaration. This order, however, need not reach those contested parts of the summary-judgment record, because it relies instead on undisputed portions of declarations or exhibits (compare Martin Decl. ¶ 11 at 10:16-20 with id. at 10:24-26). All evidentiary objections are accordingly DENIED AS MOOT.

CONCLUSION

To the extent stated, the Department's motion for summary judgment is GRANTED. Moreover, the Department's request for judicial notice, as well as both sides' evidentiary objections, are DENIED AS MOOT. Judgment shall be entered herewith.

IT IS SO ORDERED.