1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 CATHERINE GODDARD, No. 2:18-cv-02659-TLN-CKD 12 Plaintiff, 13 v. ORDER 14 EL DORADO COUNTY, 15 Defendant. 16 17 This matter is before the Court on Defendant El Dorado County’s (“Defendant” or 18 “County”) Motion for Summary Judgment. (ECF No. 37.) Plaintiff Catherine Goddard 19 (“Plaintiff”) filed an opposition. (ECF No. 51.) Defendant filed a reply. (ECF No. 54.) For the 20 reasons set forth below, the Court GRANTS in part and DENIES in part Defendant’s motion. 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 1 I. FACTUAL AND PROCEDURAL BACKGROUND1 2 Plaintiff was hired as Executive Secretary to the El Dorado County Chief Public 3 Defender, Teri Monterosso (“Monterosso”), on March 21, 2017. (ECF No. 52 at 2.) Plaintiff was 4 57 years old at the time of hire. (Id.) Plaintiff’s job duties included assistance with departmental 5 human resource functions, invoice processing, first-level review of employee timesheets, facilities 6 administration, organization and documentation of office meetings, management of filing 7 systems, and directing and overseeing the work of the clerical employees. (Id.) Under County 8 policy, Plaintiff was required to serve a one-year probationary period in her position before she 9 would acquire civil service, job-protected status. (Id. at 3.) As a probationary employee, 10 Plaintiff’s employment was at-will, meaning she could be released at any time for any reason that 11 was not unlawful. (Id.) Under County policy, Plaintiff was not entitled to any forewarning or 12 process before being released on probation, nor was she entitled to any statement of reasons. (Id.) 13 Monterosso terminated Plaintiff on November 30, 2017, approximately 8 months after her hire 14 date. (Id. at 4.) 15 Plaintiff filed the operative First Amended Complaint (“FAC”) on November 22, 2018, 16 alleging the following claims: (1) age discrimination under the Age Discrimination in 17 Employment Act (“ADEA”), 29 U.S.C. § 621; (2) age discrimination under the California Fair 18 Employment and Housing Act (“FEHA”), California Government Code § 12940(a); (3) a Monell 19 claim under 42 U.S.C. § 1983 (“§ 1983”); (4) retaliation under FEHA, California Government 20 Code § 12940(h); and (5) failure to prevent discrimination and retaliation under FEHA, California 21 Government Code § 12940(k). (Id.) Defendant filed the instant motion for summary judgment 22 on May 14, 2020. (ECF No. 37.) 23 II. STANDARD OF LAW 24 Summary judgment is appropriate when the moving party demonstrates no genuine issue 25 of any material fact exists and the moving party is entitled to judgment as a matter of law. Fed. 26

27 1 The following recitation of facts is undisputed unless otherwise noted. The disputed facts will be addressed in more detail in relation to the parties’ arguments. The Court will only address 28 objections to evidence upon which the Court relies in its ruling. 1 R. Civ. P. 56(a); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). Under summary 2 judgment practice, the moving party always bears the initial responsibility of informing the 3 district court of the basis of its motion, and identifying those portions of “the pleadings, 4 depositions, answers to interrogatories, and admissions on file together with affidavits, if any,” 5 which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. 6 Catrett, 477 U.S. 317, 323 (1986). “[W]here the nonmoving party will bear the burden of proof 7 at trial on a dispositive issue, a summary judgment motion may properly be made in reliance 8 solely on the pleadings, depositions, answers to interrogatories, and admissions on file.” Id. at 9 324 (internal quotation marks omitted). Indeed, summary judgment should be entered against a 10 party who does not make a showing sufficient to establish the existence of an element essential to 11 that party’s case, and on which that party will bear the burden of proof at trial. 12 If the moving party meets its initial responsibility, the burden then shifts to the opposing 13 party to establish that a genuine issue as to any material fact does exist. Matsushita Elec. Indus. 14 Co. v. Zenith Radio Corp., 475 U.S. 574, 585–87 (1986); First Nat’l Bank of Ariz. v. Cities Serv. 15 Co., 391 U.S. 253, 288–89 (1968). In attempting to establish the existence of this factual dispute, 16 the opposing party may not rely upon the denials of its pleadings, but is required to tender 17 evidence of specific facts in the form of affidavits, and/or admissible discovery material, in 18 support of its contention that the dispute exists. Fed. R. Civ. P. 56(c). The opposing party must 19 demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the 20 suit under the governing law, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986), and that 21 the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for 22 the nonmoving party. Id. at 251–52. 23 In the endeavor to establish the existence of a factual dispute, the opposing party need not 24 establish a material issue of fact conclusively in its favor. It is sufficient that “the claimed factual 25 dispute be shown to require a jury or judge to resolve the parties’ differing versions of the truth at 26 trial.” First Nat’l Bank of Ariz., 391 U.S. at 288–89. Thus, the “purpose of summary judgment is 27 to ‘pierce the pleadings and to assess the proof in order to see whether there is a genuine need for 28 trial.’” Matsushita Elec. Indus. Co., 475 U.S. at 587. 1 In resolving the summary judgment motion, the court examines the pleadings, depositions, 2 answers to interrogatories, and admissions on file, together with any applicable affidavits. Fed. 3 R. Civ. P. 56(c); SEC v. Seaboard Corp., 677 F.2d 1301, 1305–06 (9th Cir. 1982). The evidence 4 of the opposing party is to be believed and all reasonable inferences that may be drawn from the 5 facts pleaded before the court must be drawn in favor of the opposing party. Anderson, 477 U.S. 6 at 255. Nevertheless, inferences are not drawn out of the air, and it is the opposing party’s 7 obligation to produce a factual predicate from which the inference may be drawn. Richards v. 8 Nielsen Freight Lines, 602 F. Supp. 1224, 1244–45 (E.D. Cal. 1985), aff’d, 810 F.2d 898 (9th Cir. 9 1987). Finally, to demonstrate a genuine issue that necessitates a jury trial, the opposing party 10 “must do more than simply show that there is some metaphysical doubt as to the material facts.” 11 Matsushita Elec. Indus. Co., 475 U.S. at 586. “Where the record taken as a whole could not lead 12 a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.’” Id. 13 III. ANALYSIS 14 Defendant moves for summary judgment as to all of Plaintiff’s claims. (ECF No. 37-1.) 15 The Court will address each claim in turn. 16 A. Age Discrimination under ADEA (Claim One) and FEHA (Claim Two) 17 The ADEA makes it unlawful for an employer to take adverse action against an employee 18 “because of such individual’s age.” 29 U.S.C. § 623(a). FEHA contains a similar provision. Cal. 19 Gov’t Code § 12940(a). An ADEA and FEHA plaintiff alleging age discrimination may proceed 20 on a disparate treatment or disparate impact theory. Palmer v. United States, 794 F.2d 534, 536– 21 37 (9th Cir. 1986). As Plaintiff argues intentional discrimination, she proceeds on a disparate 22 treatment theory. (ECF No. 51 at 13–14.) 23 Unless a plaintiff presents direct evidence of a discriminatory motive, a court will 24 generally apply the McDonnell Douglas burden-shifting analysis in an age discrimination case. 25 France v. Johnson, 795 F.3d 1170, 1173 (9th Cir. 2015), as amended on reh’g (Oct. 14, 2015). 26 “Under the McDonnell Douglas framework, a plaintiff must carry the initial burden to establish a 27 prima facie case that creates an inference of discrimination.” Id. (citing McDonnell Douglas 28 Corp. v. Green, 411 U.S. 792, 802 (1973)). “If the employee establishes a prima facie case, an 1 inference of discrimination arises and the burden shifts to the employer to produce a legitimate, 2 nondiscriminatory reason for its employment action.” Id. “If the employer does so, the burden 3 shifts back to the employee to prove that the employer’s explanation is a pretext for 4 discrimination.” Id. Because Plaintiff does not argue there is direct evidence of discriminatory 5 motive, the Court will address her claim under the McDonnell Douglas framework. 6 i. Prima Facie Case 7 To establish a prima facie case of age discrimination under the disparate treatment theory, 8 Plaintiff must show she: (1) was a member of a protected class; (2) was performing her job in a 9 satisfactory manner; (3) experienced an adverse employment action; (4) was replaced by a 10 substantially younger employee with equal or inferior qualifications. Diaz v. Eagle Produce Ltd. 11 P’ship, 521 F.3d 1201, 1209 (9th Cir. 2008). The fourth element can also be expressed as “some 12 other circumstance suggesting a discriminatory motive.” Krylova v. Genentech Inc., 37 F. Supp. 13 3d 1156, 1163 (N.D. Cal. 2014). 14 In its motion, Defendant only disputes the fourth element,2 arguing Plaintiff was not 15 replaced by someone substantially younger with equal or inferior qualifications and there is no 16 other circumstance suggesting a discriminatory motive. (ECF No. 37-1 at 11.) In opposition, 17 Plaintiff argues there is sufficient circumstantial evidence of age discrimination to defeat a motion 18 for summary judgment. (ECF No. 51 at 15.) 19 The Court agrees with Defendant that Plaintiff has not shown she was replaced with 20 someone substantially younger with equal or inferior qualifications. The Ninth Circuit has held 21 that “an average age difference of ten years or more between the plaintiff and the replacement[] 22 will be presumptively substantial, whereas an age difference of less than ten years will be 23 presumptively insubstantial.” France, 795 F.3d at 1174. Plaintiff was born in May 1959 and was 24 57 years old when she was hired. (ECF No. 52 at 2.) Plaintiff’s replacement, Brenda Bailey 25

2 In its reply, Defendant argues “Plaintiff has not established she was satisfactorily 26 performing her duties.” (ECF No. 54 at 4.) To the extent Defendant is arguing that Plaintiff has 27 not met the second element of her prima facie case, the Court declines to address an argument raised for the first time in reply. Zamani v. Carnes, 491 F.3d 990, 997 (9th Cir. 2007) (“The 28 district court need not consider arguments raised for the first time in a reply brief.”). 1 (“Bailey”), was born in October 1968. (Id. at 6.) The age difference between Plaintiff and Bailey 2 is less than 10 years, which is presumptively insubstantial. France, 795 F.3d at 1174; Diaz, 521 3 F.3d at 1209 (concluding that a 9.5-year average age difference between workers hired and those 4 laid off was insufficient to establish a prima facie case of age discrimination). Moreover, Plaintiff 5 does not present evidence that Bailey had equal or inferior qualifications compared to Plaintiff. 6 (ECF No. 52 at 7.) In contrast, Defendant presents undisputed evidence that Bailey had an 7 associate degree and 20 years of County experience supporting County Supervisors and working 8 in a legal environment (probation), while Plaintiff had no County work experience, no public 9 sector experience, no legal office experience, and no advanced degree. (Id.) 10 The question of whether Plaintiff has shown “some other circumstance suggesting a 11 discriminatory motive” is a close one. It is undisputed that Monterosso never made any 12 derogatory comments about Plaintiff’s age or referenced Plaintiff’s age in any way, and Plaintiff 13 never heard Monterosso comment about anyone’s age or the abilities of older workers. (ECF No. 14 52 at 7.) In her deposition testimony, Plaintiff stated the only fact that caused her to believe she 15 was subjected to age discrimination was her belief that she is “older, smarter, and wiser” than 16 Monterosso. (ECF No. 37-8 at 24–26.) In opposition to the instant motion, Plaintiff adds that her 17 position “sat vacant for over a year” and was “absorbed by younger clerical employees” during 18 that time. (ECF No. 51 at 15.) In Plaintiff’s declaration, she vaguely refers to a “group of older 19 clerical employees” and a 26-year-old clerical employee but provides no evidence as to how 20 Plaintiff’s work was allocated among that group. (ECF No. 53 at 6, 9.) The mere presence of one 21 “younger” employee within a group of “older” employees that took on Plaintiff’s work after her 22 release does not support an inference that Defendant discriminated against Plaintiff based on her 23 age. Plaintiff further argues the fact that Defendant did not hire Bailey until after Plaintiff 24 brought the instant action suggests Defendant was “attempt[ing] to provide cover for an allegation 25 of ageism.” (Id.) This evidence is insufficient to provide an inference of age discrimination. 26 However, in a later section of her opposition, Plaintiff argues that Monterosso consulted 27 with Human Resource Director Tameka Usher (“Usher”) to decide to terminate Plaintiff’s 28 employment. (ECF No. 51 at 18.) Plaintiff also argues that Usher harbored “significant 1 discriminatory animus towards older employees” based on comments Usher made to Human 2 Resource (“HR”) liaison Christine Hendricks (“Hendricks”). (Id.) For example, Hendricks stated 3 in her declaration that Usher “made repeated comments, and made it known to the HR staff that 4 ‘older employees’ are not as ‘good’ with ‘change’ as the younger employees.” (ECF No. 53 at 5 19–20.) Plaintiff argues this is evidence that a decisionmaker acted with discriminatory motive. 6 (Id.) Defendant does not address this argument in its reply.3 7 “[A]n employer is liable for the discriminatory acts of a subordinate in cases where the 8 biased subordinate is, as a practical matter, the actual decisionmaker.” Poland v. Chertoff, 494 9 F.3d 1174, 1182 (9th Cir. 2007). Similarly, a subordinate’s bias is imputed to the employer “if 10 the subordinate influenced, affected, or was involved in the adverse employment decision.” Id. at 11 1183; see also France, 795 F.3d at 1176 (“[E]ven if a subordinate employee with bias was not the 12 final decisionmaker, the plaintiff can establish a causal link by proving that the biased subordinate 13 influenced or was involved in the decision or decision-making process.”). In the absence of any 14 argument to the contrary and keeping in mind that the Plaintiff’s burden at this stage is 15 “minimal,” the Court concludes Plaintiff’s evidence that Usher may have held bias and may have 16 influenced Monterosso’s decision is sufficient to create an inference of age discrimination as 17 required for the fourth element of her prima facie case. See Wallis v. J.R. Simplot Co., 26 F.3d 18 885, 889 (9th Cir. 1994) (“The requisite degree of proof necessary to establish a prima facie case 19 for . . . ADEA claims on summary judgment is minimal and does not even need to rise to the level 20 of a preponderance of the evidence.”). 21 ii. Legitimate, Nondiscriminatory Reasons 22 If Plaintiff establishes a prima facie case, the “burden of production, but not persuasion, . . 23 . [shifts] to the employer to articulate some legitimate, nondiscriminatory reason for the 24 challenged action.” Chuang v. U.C. Davis, Bd. of Trustees, 225 F.3d 1115, 1123 (9th Cir. 2000).

25 3 Defendant objects to Hendricks’s statements about Usher as speculative, irrelevant, and lacking foundation. (ECF No. 54-1 at 38–40.) “[O]bjections to evidence on the ground that it is 26 irrelevant [or] speculative . . . are all duplicative of the summary judgment standard itself.” 27 Burch v. Regents of Univ. of Cal., 433 F. Supp. 2d 1110, 1119 (E.D. Cal. 2006). Defendant also fails to persuade the Court that the statements lack foundation. Accordingly, the Court 28 OVERRULES Defendant’s boilerplate objections. 1 “To accomplish this, the defendant must clearly set forth, through the introduction of admissible 2 evidence, the reasons for” the challenged adverse employments actions. Lyons v. England, 307 3 F.3d 1092, 1112 (9th Cir. 2002). Whether a defendant has met its burden of production involves 4 “no credibility assessment.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 509 (1993). “In other 5 words, the factfinder’s general duty to draw all reasonable inferences in favor of the nonmovant 6 does not require that the court make a credibility determination on the defendant’s evidence at the 7 summary judgment stage, even if it has reason to disbelieve that evidence.” Bodett v. CoxCom, 8 Inc., 366 F.3d 736, 742 (9th Cir. 2004). 9 In the instant case, Defendant has provided evidence that Monterosso felt Plaintiff — an 10 at-will employee — lacked sufficient job knowledge (particularly around wage-and-hour 11 requirements), made frequent errors in paperwork and procedure, and had an argumentative 12 attitude. (ECF No. 37-1 at 13; ECF No. 37-3.) This is sufficient to meet Defendant’s burden of 13 production. 14 iii. Pretext 15 If Defendant articulates legitimate, nondiscriminatory reasons for its decision, as it did 16 here, the burden shifts to Plaintiff to raise a genuine dispute of material fact as to pretext to avoid 17 summary judgment. France, 795 F.3d at 1175. “A plaintiff asserting age discrimination can 18 ‘demonstrate pretext in either of two ways: (1) directly, by showing that unlawful discrimination 19 more likely than not motivated the employer; or (2) indirectly, by showing that the employer’s 20 proffered explanation is unworthy of credence because it is internally inconsistent or otherwise 21 not believable.’” Id. (citation omitted). 22 Plaintiff argues Defendant’s “proffered reasons for termination are false, inconsistent, and 23 not worthy of any credence.” (ECF No. 51 at 17.) Plaintiff states that when she “was initially 24 fired, she was given no reasons for her termination” and it was not until she filed this action that 25 Defendant claimed the reasons for Plaintiff’s termination were poor performance, lack of job 26 knowledge, and having a bad attitude. (Id.) Plaintiff argues these reasons are false because 27 Monterosso gave Plaintiff consistent and glowing praise during the first six months of her 28 probation and gave Plaintiff a performance step pay increase in July 2017. (Id. (citing ECF No. 1 53 at 5).) In reply, Defendant argues Plaintiff’s evidence is irrelevant to the determination of 2 whether her performance was satisfactory at the time of her termination. (ECF No. 54 at 6.) 3 Plaintiff’s evidence is sufficient to create a triable issue of material fact as to pretext. A 4 reasonable juror could conclude that Defendant’s “proffered explanation is unworthy of 5 credence” based on Plaintiff’s evidence that she was doing well at her job during the first six 6 months of probation. France, 795 F.3d at 1175. Further, as discussed, there are also triable 7 issues as to whether Usher held discriminatory animus toward older workers and whether she 8 influenced Monterosso’s decision to terminate Plaintiff on that basis. 9 Accordingly, the Court DENIES Defendant’s motion for summary judgment as to 10 Plaintiff’s age discrimination claims. 11 B. Section 1983 Claim (Claim Three) 12 As to her § 1983 claim, Plaintiff argues Defendant has a custom, practice, and policy of 13 retaliating against employees that make complaints against the Chief Public Defender or the 14 department, in violation of the First Amendment.4 (ECF No. 51 at 22.) In moving for summary 15 judgment, Defendant argues there is no underlying constitutional violation because Plaintiff’s 16 complaint to human resource staff about her personal job dissatisfaction is not “speech on a 17 matter of public concern” that would otherwise be protected by the First Amendment and there is 18 no evidence she was terminated because of her speech. (ECF No. 37-1 at 15.) Defendant also 19 argues that even if Plaintiff had shown an underlying constitutional deprivation, there is no 20 evidence the harm was caused pursuant to Defendant’s custom or policy. (Id. at 16.) 21 Section 1983 “provides a cause of action for the ‘deprivation of any rights, privileges, or 22 immunities secured by the Constitution and laws’ of the United States.” Long v. Cnty. of Los 23 Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006). The two essential elements a plaintiff must 24 establish for a § 1983 claim are as follows: “(1) that a right secured by the Constitution or laws of 25

4 Defendant also argues Plaintiff cannot bring a § 1983 claim based on an Equal Protection 26 violation. (ECF No. 37-1 at 15.) Plaintiff does not respond to this argument or even mention the 27 Equal Protection clause in her opposition. (See ECF No. 51.) Rather, Plaintiff appears to proceed solely on a First Amendment claim. (Id. at 22.) Therefore, the Court need not and does not 28 address the Equal Protection clause herein. 1 the United States was violated[;] and (2) that the alleged violation was committed by a person 2 acting under the color of State law.” Id. A person deprives another “of a constitutional right, 3 within the meaning of [§] 1983, if he does an affirmative act, participates in another’s affirmative 4 acts, or omits to perform an act which he is legally required to do that causes the deprivation of 5 which [the plaintiff complains].” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 6 The Court agrees with Defendant that there is no evidence of a constitutional violation. 7 “The First Amendment’s guarantee of freedom of speech protects government employees from 8 termination because of their speech on matters of public concern.” Bd. of Cnty. Comm’rs v. 9 Umbehr, 518 U.S. 668, 675 (1996) (emphasis in original). The inquiry into whether a plaintiff 10 spoke on a matter of public concern is purely a question of law. Robinson v. York, 566 F.3d 817, 11 822 (9th Cir. 2009). A matter of public concern relates “to any matter of political, social, or other 12 concern to the community.” Connick v. Myers, 461 U.S. 138, 146 (1983). In contrast, speech 13 concerning “individual disputes and grievances and that would be of no relevance to the public’s 14 evaluation of the performance of government agencies, is generally not of public concern.” 15 Alpha Energy Savers, Inc. v. Hansen, 381 F.3d 917, 924 (9th Cir. 2004) (citation omitted). 16 Whether an employee’s expression may be characterized as a matter of public concern “must be 17 determined by the content, form and context of a given statement, as revealed by the whole 18 record.” Connick, 461 U.S. at 146–47. 19 In the instant case, Plaintiff’s made two HR complaints: (1) in September 2017, Plaintiff 20 states she told Hendricks that Plaintiff and several other employees were experiencing unequal 21 treatment, harassment, and a hostile work environment; and (2) in late-November 2017, Plaintiff 22 states she contacted HR analyst Mike Strella (“Strella”) to make a complaint of unequal 23 treatment, retaliation, harassment, and a hostile work environment. (ECF No. 51 at 10–11.) First, 24 the content of the speech at issue appears to deal with “personnel disputes and grievances” that 25 generally would not be a matter of public concern. Desrochers v. City of San Bernardino, 572 26 F.3d 703, 710 (9th Cir. 2009) (“[W]hen working for the government, saying one’s boss is a bully 27 does not necessarily a constitutional case make.”). Second, the form of the speech — two private 28 meetings with HR staff — weighs against finding the speech addressed a matter of public 1 concern. Id. at 715 (“Because the speech at issue took the form of internal employee grievances 2 which were not disseminated to the public, this . . . cuts against a finding of public concern.”). 3 Third, the context of Plaintiff’s speech suggests that she was reporting dissatisfaction with her 4 employment situation to further “some purely private interest” rather than “to bring to light actual 5 or protentional wrongdoing or breach of public trust.” Id. at 715. These conclusions weigh 6 against finding the speech was a matter of public concern. As such, Plaintiff has not shown her 7 First Amendment rights were violated. 8 In addition, there is insufficient evidence that Plaintiff’s termination was the result of 9 Defendant’s policy or custom as required for municipal liability. It is well-established that 10 municipalities cannot be held liable under § 1983 for unconstitutional torts of their employees 11 based solely on respondeat superior. Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 658, 12 693–94 (1978). Pursuant to Monell, a municipality is only liable under § 1983 when its own 13 illegal acts are a “moving force” in the constitutional violation. Id. A plaintiff may establish 14 municipal liability by demonstrating that (1) the constitutional tort was the result of a 15 “longstanding practice or custom which constitutes the standard operating procedure of the local 16 government entity;” (2) the tortfeasor was an official whose acts fairly represent official policy 17 such that the challenged action constituted official policy; or (3) an official with final policy- 18 making authority “delegated that authority to, or ratified the decision of, a subordinate.” Price v. 19 Sery, 513 F.3d 962, 966 (9th Cir. 2008) (quoting Ulrich v. City & Cnty. of S.F., 308 F.3d 968, 20 984-85 (9th Cir. 2002)). 21 Plaintiff argues Defendant has a “custom, pattern, practice, and policy of retaliating 22 against employees that make complaints of public concern against the Chief or the department” 23 because “the evidence shows that the older employees were targeted in the workplace, when they 24 would make complaints pertaining to overtime, wage and hour violations, meal and rest breaks, 25 and unequal treatment between the older employees and the younger clerical staff, including Ms. 26 Kent, who is approximately 26 years old.” (ECF No. 51 at 22–23.) Plaintiff seems to base this 27 assertion entirely on a discussion she had with “older clerical employees” who told Plaintiff they 28 were “seriously stressed out and felt targeted.” (ECF No. 53 at 5–6.) However, Plaintiff does not 1 cite — nor can the Court locate — evidence to suggest that Defendant had a longstanding policy 2 or custom of retaliating against employees who made HR complaints about matters of public 3 concern, or that such a policy or custom caused Plaintiff’s harm. 4 Therefore, the Court GRANTS Defendant’s motion for summary judgment as to 5 Plaintiff’s § 1983 claim. 6 C. Retaliation under FEHA (Claim Four) 7 Retaliation claims under FEHA are assessed using the McDonnell Douglas burden- 8 shifting framework. Moore v. Regents of Univ. of Cal., 248 Cal. App. 4th 216, 244 (2016). To 9 establish a prima facie case of retaliation, Plaintiff must point to sufficient evidence to permit a 10 reasonable factfinder to conclude that: (1) she engaged in a protected activity; (2) she suffered an 11 adverse employment action; and (3) there was a causal link between her activity and the 12 employment decision. Id. Once Plaintiff establishes her prima facie case, the burden of 13 production shifts to Defendant to present a legitimate, non-retaliatory reason for the adverse 14 employment action. Loggins v. Kaiser Permanente Internat., 151 Cal. App. 4th 1102, 1112 15 (2007). If Defendant carries this burden, Plaintiff must demonstrate a genuine issue of material 16 fact as to whether the reason advanced by the employer is pretext for retaliation. Id.; Brooks v. 17 City of San Mateo, 229 F.3d 917, 928 (9th Cir. 2000). 18 i. Prima Facie Case 19 Defendant argues Plaintiff’s prima facie case fails because she did not engage in a 20 protected activity and there is no evidence of causation. (ECF No. 37-1 at 17–18.) The Court 21 will address both disputed elements in turn. 22 a. Protected Activity 23 Defendant argues Plaintiff did not engage in a protected activity because she did not 24 complain of age discrimination during her employment. (ECF No. 37-1 at 18.) In opposition, 25 Plaintiff argues her HR complaints were sufficient to put her employer on notice that she was 26 complaining about age discrimination. (ECF No. 51 at 20.) 27 In a FEHA retaliation claim, “protected activity” includes an employee’s formal or 28 informal complaint to a supervisor regarding unlawful discrimination. Passantino v. Johnson & 1 Johnson Consumer Prod., Inc., 212 F.3d 493, 506 (9th Cir. 2000) (citing Moyo v. Gomez, 40 F.3d 2 982 (9th Cir. 1994)). However, “complaints about personal grievances or vague or conclusory 3 remarks that fail to put an employer on notice as to what conduct it should investigate will not 4 suffice to establish protected conduct.” Yanowitz v. L’Oreal USA, Inc., 36 Cal. 4th 1028, 1047 5 (2005). “The relevant question . . . is not whether a formal accusation of discrimination is made 6 but whether the employee’s communications to the employer sufficiently convey the employee’s 7 reasonable concerns that the employer has acted or is acting in an unlawful discriminatory 8 manner.” Id. (citation omitted). 9 The Court concludes Plaintiff has presented sufficient evidence to create a triable issue of 10 fact as to whether she engaged in a protected activity. Plaintiff submits a declaration asserting 11 that during her September 2017 complaint to Hendricks, she described facts that demonstrated 12 unequal treatment towards older employees. (ECF No. 53 at 6.) She further asserts that she 13 advised Hendricks that Monterosso was targeting older workers. (Id.) Plaintiff states she 14 discussed the same issue with Strella during her November 2017 complaint.5 (Id. at 8.) Plaintiff 15 was not required to use the actual term “age discrimination” in her HR complaints. Yanowitz, 36 16 Cal. 4th at 1047 (“[A]n employee is not required to use legal terms or buzzwords when opposing 17 discrimination. The court will find opposing activity if the employee’s comments, when read in 18 their totality, oppose discrimination.”). Based on the record before the Court, a reasonable juror 19 could find that Plaintiff sufficiently conveyed her reasonable concerns that Defendant was 20 engaged in age discrimination. 21 5 Defendant objects to this testimony as “sham testimony” because it contradicts Plaintiff’s 22 deposition testimony about her complaints to Hendricks and Strella. (See ECF No. 54-1 at 8, 23 23 (citing Kennedy v. Allied Mut. Ins. Co., 952 F.2d 262, 266 (9th Cir. 1999)).) Defendant argues Plaintiff stated in her deposition that she did not complain to Hendricks or Strella about age 24 discrimination. (Id.) However, there is insufficient evidence to determine that Plaintiff’s subsequent declaration is a “sham,” especially given the fact that Plaintiff was not required to 25 express her claim perfectly. Yanowitz, 36 Cal. 4th at 1047 (“Employees often do not speak with the clarity or precision of lawyers.”) (citation omitted). The Court believes the trier of fact should 26 make credibility determinations and weigh conflicting evidence under these circumstances. See 27 Sch. Dist. No. 1J, Multnomah Cnty., Or. v. ACandS, Inc., 5 F.3d 1255, 1264 (9th Cir. 1993) (stating that the sham testimony rule “should be applied with caution”). Thus, the Court 28 OVERRULES Defendant’s objection. 1 b. Causation 2 Defendant next argues there is no causal link between Plaintiff’s HR complaints and her 3 termination because there is no evidence Monterosso knew of the complaints and Monterosso was 4 already contemplating a probationary release in October 2017. (ECF No. 37-1 at 18–19.) 5 A plaintiff may establish a causal link between the alleged protected activity and the 6 alleged adverse action by circumstantial evidence, including the employer’s knowledge of the 7 protected activity and the proximity in time between the protected action and the adverse 8 employment act. Jordan v. Clark, 847 F.2d 1368, 1376 (9th Cir. 1988) (citation omitted). 9 The Court concludes Plaintiff presented sufficient evidence to create a triable issue of fact 10 as to causation. It is undisputed that Monterosso released Plaintiff from probation two months 11 after her first HR complaint and days after her second HR complaint. (ECF No. 52 at 4.) This 12 temporal proximity is sufficient to create a reasonable inference that Plaintiff’s termination was 13 related to her HR complaints. Passantino, 212 F.3d at 507 (“[W]hen adverse decisions are taken 14 within a reasonable period of time after complaints of discrimination have been made, retaliatory 15 intent may be inferred.”). Moreover, Plaintiff presents evidence that Monterosso’s behavior 16 toward Plaintiff changed for the worse after Plaintiff made her first HR complaint, which 17 provides a reasonable inference that Monterosso knew of the complaint. (ECF No. 53 at 7–8.) 18 ii. Legitimate, Nondiscriminatory Reasons and Pretext 19 As discussed in the context of Plaintiff’s discrimination claims, Defendant has provided 20 evidence that Monterosso felt Plaintiff lacked sufficient job knowledge, made frequent errors in 21 paperwork and procedure, and had an argumentative attitude. (ECF No. 37-3.) This is sufficient 22 to meet Defendant’s burden of production for Plaintiff’s retaliation claim. Similarly, as already 23 discussed, Plaintiff has provided sufficient evidence that Defendant’s “proffered explanation is 24 unworthy of credence” based on Plaintiff’s evidence that she was doing well at her job during the 25 first six months of probation and Monterosso’s attitude toward Plaintiff changed after she made 26 the initial HR complaint. France, 795 F.3d at 1175. 27 Accordingly, the Court DENIES Defendant’s motion for summary judgment as to 28 Plaintiff’s retaliation claim. 1 D. Failure to Prevent Discrimination or Retaliation under FEHA (Claim Five) 2 A plaintiff seeking to recover damages based on a claim of failure to prevent 3 | discrimination or retaliation must show three essential elements: (1) she was subjected to 4 | discrimination or retaliation; (2) the defendant failed to take all reasonable steps to prevent 5 | discrimination or retaliation; and (3) the defendant’s failure caused the plaintiff to suffer injury, 6 | damage, loss, or harm. Hatfield vy. DaVita Healthcare Partners, Inc., No. C 13-5206 SBA, 2014 7 | WL 2111237, at *5—6 (N.D. Cal. May 20, 2014). 8 Defendant argues Claim Five fails because it is derivative of Plaintiffs discrimination and 9 | retaliation claims and those claims fail as a matter of law.© (ECF No. 37-1 at 20.) Because the 10 | Court has found that Plaintiffs discrimination and retaliation claims survive summary judgment, 11 || the Court DENIES Defendant’s motion for summary judgment as to Claim Five. 12 IV. CONCLUSION 13 For the foregoing reasons, the Court hereby GRANTS in part and DENIES in part 14 | Defendant’s Motion for Summary Judgment (ECF No. 37) as follows: 15 1. The Court DENIES summary judgment as to Claims One and Two; 16 2. The Court GRANTS summary judgment as to Claim Three; 17 3. The Court DENIES summary judgment as to Claim Four; and 18 4. The Court DENIES summary judgment as to Claim Five. 19 The parties are ORDERED to file a Joint Status Report not later than thirty (30) days of 20 || the electronic filing date of this Order indicating their readiness to proceed to trial and proposing 21 | trial dates. 22 IT IS SO ORDERED. 23 | DATE: June 15, 2022 () jf /) 24 “ ! } Loca 25 Troy L. Nuhlep ] 26 United States District Judge 27 || ° In reply, Defendant adds that it “did take all reasonable steps to prevent discrimination and retaliation.” (ECF No. 54 at 11.) Defendant’s argument is improperly raised for the first 28 | time in reply, and the Court will not consider it. See Zamani, 491 F.3d at 997. 15