KENDALL J. NEWMAN, Magistrate Judge.
On April 13, 2017, this action was before the undersigned to address defendant State of California Department of Toxic Substances' ("DTSC") motion for summary judgment or, in the alternative, summary adjudication.
The undersigned has fully considered the parties' briefs, evidence, appropriate portions of the record, and oral arguments. For the reasons that follow, the court denies DTSC's motion for summary judgment.
Federal Rule of Civil Procedure 56(a) provides that "[a] party may move for summary judgment, identifying each claim or defense—or the part of each claim or defense—on which summary judgment is sought." It further provides that "[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a).
If the moving party meets its initial responsibility, the opposing party must establish that a genuine dispute as to any material fact actually exists.
In resolving a motion for summary judgment, the evidence of the opposing party is to be believed.
"A party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence." Fed. R. Civ. P. 56(c)(2). "[T]o survive summary judgment, a party does not necessarily have to produce evidence in a form that would be admissible at trial, as long as the party satisfies the requirements of Federal Rules of Civil Procedure 56."
Here, DTSC provides objections in its reply briefing to plaintiff's declaration submitted in opposition to DTSC's motion on the basis that it contains irrelevant information, contains impermissible hearsay, and demonstrates plaintiff's lack of personal knowledge. (ECF No. 31-2.) More specifically, defendant objects to four specific passages from plaintiff's declaration on these bases. (
First, the court declines to address any of DTSC's relevance objections. Because the court may rely only on relevant evidence in addressing the motion, its citation to evidence subject to a relevance objection means the objection has been overruled.
Second, DTSC argues that plaintiff's statements in the declaration regarding what others told him during the settlement proceedings before the California State Personnel Board are impermissible hearsay. However, it is clear that plaintiff introduces these statements, at least for purposes of opposing DTSC's present motion for summary judgment, for the purpose of demonstrating their effect on plaintiff, not for the truth of the matter asserted in each statement. Indeed, for each potential hearsay statement contained in plaintiff's declaration, plaintiff provides a further explanation of the effect those statements had on him as the listener. The use of the statements for such a purpose does not constitute hearsay.
Finally, DTSC objects that plaintiff's declaration lacks personal knowledge with regard to the statements made by third parties. However, plaintiff states in his declaration that he was present when such statements were made, therefore establishing his personal knowledge. Accordingly, DTSC's objections on the basis that plaintiff lacks personal knowledge are overruled.
Unless otherwise noted by the court that the parties disagree upon a particular fact, all facts referred to below are undisputed by the parties.
Plaintiff began working for defendant the State of California Department of Public Health ("CDPH"), which is not a party to the present motion, in July of 2009, as an Associate Governmental Programs Analyst ("AGPA"). (First Amended Complaint ["Am. Compl."] ¶ 4.) On June 14, 2013, plaintiff transferred to DTSC after obtaining a position in that agency as a Staff Services Manager I ("SSM-I"). (Am. Compl. ¶ 10; Deposition of Dev Patel ["Patel Depo."] 32:21-33:7.) During plaintiff's probationary period, DTSC rated plaintiff's overall performance as "improvement needed" on his two probation reports. (Patel Depo. 199:17-22, 200:4-24, 224:7-225:11, 229:17-230:17, Exhs. K, O.) Plaintiff also received over that same span of time three counseling memoranda, the first on April 28, 2014, the second on May 9, 2014, and the third on May 28, 2014. (Patel Depo. 245:19-23, 246:25-247:1, 247:7-15, 249:24-250:24, 252:17-25, Exhs. S, T, U.) At the end of plaintiff's probationary period in his role as an SSM-I, DTSC rejected plaintiff from that position, effective June 11, 2014. (Patel Depo. 33:8-11, 238:1-10, Exh. P.)
Plaintiff appealed his rejection from the SSM-I position before the California State Personnel Board ("SPB"). (Patel Depo. 102:25-105:6, 191:23-193:16, 238:11-14.) Plaintiff also filed a "Whistleblower Retaliation Complaint" with the SPB on September 2, 2014, alleging, among other things, that he was "retaliated against . . . [a]s a result of having reported improper governmental activities (discrimination, harassment) . . ." (Patel Depo. 240:15-25, Exh. Q.) On April 8, 2014, plaintiff filed a charge of discrimination based on race (Asian), national origin (India), and retaliation with the Equal Employment Opportunity Commission ("EEOC") based on a claim that his supervisor issued a negative probationary report after he had informed her of discriminatory disciplinary practices he claimed he had witnessed. (Am. Compl. ¶¶ 18-21, Exh. 2.) Plaintiff filed an additional charge for retaliation with the EEOC on November 11, 2014, based on his claim that his supervisor rejected him from his position as an SSM-I in retaliation for his filing the April 8, 2014 EEOC charge. (
On November 12, 2014, plaintiff executed a Settlement Agreement with DTSC resolving his appeal before the SPB in exchange for DTSC paying him $12,500 and withdrawing the Notice of Rejection relating to DTSC's rejection of plaintiff from the SSM-I position, and all documentation supporting that rejection. (Patel Depo. 243:10-15, 244:21-25, 245:5-11, Exh. R.) The Settlement Agreement contains the following release language:
(Patel Depo. Exh. R.) The Settlement Agreement also contains a waiver of plaintiff's rights under California Civil Code section 1542, and contains an acknowledgement by plaintiff that "[plaintiff] is familiar with, has read the provisions of, or has consulted with counsel regarding California Civil Code section 1542." (
The Settlement Agreement was negotiated and signed by both plaintiff and his Labor Relations Representative, Yvonne Placsek, at a Prehearing Settlement Conference at the SPB that was presided over by an administrative law judge. (Patel Depo. 243:10-15, 244:21-25, 245:5-11, Exh. R.) The SPB approved the Settlement Agreement. (
In compliance with the terms of the Settlement Agreement, DTSC withdrew the Rejection on Probation and all supporting documentation, including the probationary reports and counseling memoranda, from plaintiff's Official Personnel File. (Declaration of Tiffany Taylor ["Taylor Decl."] ¶¶ 8-9, Exh. 1.) By April of 2015, plaintiff was reinstated in his position with the Division of Drinking Water and Environmental Management. (Patel Depo. 33:8-34:3, 38:22-24.) Plaintiff subsequently obtained right-to-sue letters from the EEOC regarding the two charges he had filed with that Commission against DTSC, and then filed the present action asserting claims based on those charges in this court on November 30, 2015. (Am. Compl. ¶ 21.)
In his operative first amended complaint, plaintiff asserts the following five claims against DTSC: (1) national origin discrimination in violation of Title VII (42 U.S.C. § 2000e-2(a)(1)); (2) national origin discrimination in violation of the California Fair Employment and Housing Act ("FEHA") (Cal. Gov. Code § 12940(a)); (3) retaliation in violation of Title VII (42 U.S.C. § 2000e-3(a)); (4) retaliation in violation of the FEHA (Cal. Gov. Code § 12940(h)); and (5) failure to take reasonable steps to prevent discrimination and harassment in violation of the FEHA (Cal. Gov. Code § 12940(k)). (Am. Compl. ¶¶ 3-40.)
DTSC argues that it is entitled to summary judgment as to all of plaintiff's claims asserted against it in this action based on the release of liability clause contained in the Settlement Agreement plaintiff executed on November 12, 2014, which was approved by the SPB. More specifically, DTSC contends that the release clause contained in that agreement clearly and unambiguously extinguished plaintiff's claims he asserts against that DTSC regardless of the fact that the release contains an exception for plaintiff's charges that were pending before the EEOC as of November 12, 2014, on which plaintiff's present claims are based. DTSC argues in the alternative that, regardless of whether the release precludes plaintiff's claims, it is still entitled to summary judgment with regard to plaintiff's claims based on theories of discrimination and retaliation because DTSC removed the Notice of Rejection and all records of employee discipline relating to the events alleged against it in this action, therefore demonstrating that DTSC, in effect, took no adverse employment action against plaintiff. The court addresses each of these contentions in turn.
First, DTSC argues that all of plaintiff's current claims against it are barred under the terms of the November 12, 2014 Settlement Agreement between plaintiff and itself that included the following clause regarding the release of liability:
(Patel Depo. Exh. R (emphasis added)). DTSC contends that this language unambiguously precludes any and all claims plaintiff may have arising from the actions and events alleged in his amended complaint with regard to DTSC, with the sole exception of plaintiff's then-existing charges filed with the EEOC. DTSC argues that the carve out for plaintiff's EEOC charges says nothing about plaintiff's ability to later pursue civil claims in court based on those charges. Accordingly, DTSC asserts, the plain language of the Settlement Agreement demonstrates that plaintiff has released all claims against DTSC, with the sole exception of his charges before the EEOC at the time that agreement was executed to the extent those charges could be asserted before that administrative tribunal. According to DTSC's interpretation of the release, plaintiff cannot further pursue those EEOC charges through the subsequent civil claims he has filed in this court.
Plaintiff responds that the exception language of the release in the Settlement Agreement lacks clarity and is ambiguous to the point that it creates a genuine issue of material fact as to whether plaintiff's acceptance of the terms of that agreement constituted a voluntary, deliberate, and informed waiver of his right to pursue the claims against DTSC at issue in this action.
"`The construction and enforcement of settlement agreements are governed by principles of local law which apply to interpretation of contracts generally.'"
Applying these principals to the release language in the Settlement Agreement here, it is clear that DTSC cannot prevail on summary judgment. The language of the carve out for plaintiff's then-existing EEOC claims is silent as to whether that exemption also exempts any claims plaintiff may assert in a civil action based on those charges upon plaintiff's receipt of a right-to-sue letter from the EEOC. While DTSC contends that the exemption language should be construed to mean that plaintiff could pursue his then-existing charges before the EEOC only to the extent he could within that administrative forum, plaintiff puts forward an interpretation that is at least equally as plausible as the one DTSC advances: that the carve out also permitted plaintiff to file civil claims in court based on his then-existing EEOC charges if he first exhausted his remedies with that administrative body. Furthermore, plaintiff's declaration shows that plaintiff had his union representative present during the proceeding during which the Settlement Agreement was executed; plaintiff's representative discussed the meaning of the exemption for plaintiff's then-existing EEOC charges with DTSC's attorney; and plaintiff's representative subsequently explained to plaintiff before plaintiff signed the Settlement Agreement that the release language contained in that document did not bar plaintiff from pursuing litigation based on his then-pending EEOC charges. (Declaration of Dev Patel ["Patel Decl."] ¶¶ 2-3, 8.) Such evidence of the parties' conduct, taken in conjunction with the ambiguous nature of the exemption provision within the Settlement Agreement's release clause, creates a genuine issue of material fact as to whether the parties actually intended the release to preclude plaintiff's claims at issue in this action, which are all based on the EEOC charges clearly exempted from that release.
Furthermore, the cases DTSC cites to in support of its argument that the written language of the Settlement Agreement bars plaintiff's claims are largely inapplicable to the situation presented by the evidence in this case because, unlike the release language at issue here, the language of the releases in those cases all clearly and unambiguously demonstrated that the plaintiff's claims were not covered by any exemption language.
Second, DTSC argues in the alternative that it is entitled to summary judgment with regard to plaintiff's Title VII and FEHA claims based on theories of discrimination and retaliation because the undisputed facts demonstrate that DTSC removed all adverse documentation relating to the actions and events alleged in the complaint from plaintiff's personnel file pursuant to the November 12, 2014 Settlement Agreement, and that plaintiff was able to exercise his right of return to his previous position as an AGPA, therefore showing that no actual adverse employment action was taken against plaintiff. Plaintiff contends that DTSC's contention that there was no adverse action due to those remedial actions relies on nothing more than a fiction because plaintiff was actually rejected from his probation and could not continue on in the SSM-I position at DTSC regardless of whether any mention of that rejection and the surrounding events were removed from his personnel file.
Both Title VII and the FEHA make it unlawful for an employer to "discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race. . . ." 42 U.S.C. § 2000e-2(a)(1); Cal. Gov. Code § 12940(a).
The United States Supreme Court has described adverse employment action for purposes of a Title VII discrimination claim as "a significant change in employment status, such as . . . firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits."
Title VII and the FEHA also prohibit retaliation against a person who has exercised his rights under Title VII of the Civil Rights Act of 1964 ("the Act") by claiming discrimination or seeking to enforce the Act's provisions. 42 U.S.C. § 2000e-3(a); Cal. Gov. Code § 12940(h). In order to meet his burden in a case of retaliation under Title VII and the FEHA, the plaintiff-employee must plead and prove three elements: (1) his involvement in a protected activity under Title VII proceedings; (2) his further mistreatment or discharge by the defendant-employer; and (3) the existence of a causal connection between the original Title VII action and the mistreatment or discharge.
The anti-retaliation provision of Title VII exists to prevent employer interference to the Title VII remedies.
Here, the undisputed facts, and the evidence supporting those facts, demonstrate that plaintiff was arguably subject to an adverse employment action for purposes of his discrimination claims under Title VII and the FEHA. DTSC asserts that the undisputed facts demonstrate that no adverse action was actually taken against plaintiff because DTSC removed all adverse documentation relating to the actions and events alleged in the complaint, including the documents regarding plaintiff's rejection from the SSM-I position at the end of the probationary period, from plaintiff's personnel file, and because plaintiff was able to return to his prior position as an AGPA. However, the practical effect of DTSC's rejection of plaintiff at the end of his probationary period remains regardless of whether all documentation of such an event was removed from his personnel file and whether he was able to return to his prior job status. DTSC's refusal to pass plaintiff on probation still resulted in plaintiff losing his position with DTSC as an SSM-I. In effect, DTSC's employment action amounted to either a demotion or a failure to promote, and certainly was a decision that caused a significant change in plaintiff's benefits. While plaintiff may have been a probationary employee at the time of DTSC's action, and therefore may not have had a vested right to the SSM-I job under California's civil service rules, the practical effect of DTSC's refusal to pass plaintiff on probation still had a negative material impact on the terms, conditions, or privileges of plaintiff's employment regardless of the fact that the paper trail leading to that action was removed from plaintiff's personnel file.
Similarly, with regard to plaintiff's retaliation claim against DTSC under Title VII, it is clear that there exists a material issue as to whether DTSC's actions, even in light of its subsequent removal of the Rejection on Probation and all supporting documentation, including the probationary reports and counseling memoranda, from plaintiff's personnel file, were materially adverse to a reasonable employee. It may very well be that a factfinder looking at such a claim based on the undisputed facts and the evidence DTSC presents in support of its motion could find that a reasonable worker would be dissuaded from filing a charge of discrimination when faced with the threat of not passing probation, thus ultimately resulting in his removal from the position, if he were to move forward with that charge.
Based on the foregoing, IT IS HEREBY ORDERED that DTSC's motion for summary judgment (ECF No. 26) is DENIED.
