Brown v. Dep't of Corr. & Rehab.

JADA BROWN, Plaintiff and Appellant, v. DEPARTMENT OF CORRECTIONS AND REHABILITATION et al., Defendants and Respondents.

A158715

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION THREE

June 1, 2021

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Marin County Super. Ct. No. CIV1702421)

This is an appeal from judgment after the trial court granted the motion for summary judgment filed by defendant California Department of Corrections and Rehabilitation (CDCR) in a wrongful termination lawsuit brought by its former employee, plaintiff Jada Brown. On appeal, plaintiff challenges the trial court's findings on summary judgment that she failed to make a prima facie case of retaliation or race discrimination. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On March 15, 2010, plaintiff was hired as a recreation therapist at San Quentin State Prison (San Quentin). Plaintiff was assigned to work on the recidivism team with a mental health unit at San Quentin. In this capacity, plaintiff arranged therapeutic recreation activities for inmates on death row or in administrative segregation. Her supervisor was Dr. Christopher Roach.

In 2011, plaintiff was transferred to the crisis treatment center (CTC), a new medical unit at San Quentin, which was in need of a therapist to provide recreational therapy to some of the prison's most mentally ill inmates. Plaintiff's new supervisor was chief medical officer Dr. Elena Tootell.

In October 2011, plaintiff made a complaint to Sheila D., a union representative, regarding work-related issues. Specifically, she complained about not having proper supervision or basic supplies to perform her duties, including computer access, paper, markers, or therapeutic holding cages for meeting with her inmate patients.

Sometime in 2012, plaintiff made a complaint to T.F., a labor relations officer, regarding an incident with a CTC staff member, Angel L., who allegedly yelled at plaintiff, called her insubordinate, and "forced her to violate HIPPA [sic] laws" by sliding inmate files under the office door of a colleague.¹

Also in September 2012, plaintiff made a complaint to Barbara Brown, an employee relations officer. Plaintiff again complained about her lack of proper supervision and inadequate supplies. In addition, plaintiff claimed that she had been improperly transferred to CTC without being given a new job description, had her Internet access removed, and was denied a raise.

On October 9, 2012, several correctional officers and prison staff members witnessed plaintiff allowing an inmate (Inmate 1) to speak to his attorney and mother on a state-owned speaker phone in violation of CDCR policies. Plaintiff admitted placing a call to Inmate 1's attorney on his behalfthat lasted about 10 minutes and a call to his mother that lasted about 15 minutes. Officer Stragalinos came into the room and overheard the call. Officer Stragalinos then left the room and asked Officer Edwards whether plaintiff obtained authorization for the calls. Officer Edwards said she did not. When Officer Edwards returned to the room, plaintiff falsely stated that she received authorization from a CTC supervisor. Plaintiff then repeated this false statement to Dr. Tootell and others. When later questioned about this incident, the CTC supervisor confirmed that she did not authorize plaintiff to allow Inmate 1 to make the calls and that she previously instructed plaintiff not to allow Inmate 1 telephone calls.

The next day, October 10, 2012, plaintiff was reprimanded by Dr. Pratt that the calls with Inmate 1 were inappropriate. Dr. Pratt also warned plaintiff that she would be removed from her normal duties and reassigned to the dental division pending an investigation into the incident.

On November 5, 2012, Dr. Tootell reported to the employment relations office additional information regarding plaintiff. This report stated: "Jada Brown had a verbal altercation with a clerical person in the CTC. Upon questioning both Jada and the other employee, it was found that Jada had approached the CTC inmate porter, and told the inmate that the porter was 'hot' and the clerical employee had a 'crush on him.' After the ensuing altercation, I verbally counseled Jada on appropriate conversations with inmates and maintaining a level of professionalism. At that time, I urged Jada to 'refrain from speaking with the inmate workers in the CTC unless it involves cleaning. This conversation occurred on July 27th, 2012. [¶] . . . [¶] Jada was placed on administrative duties in October of 2012. After Jada had cleaned out her desk, Standards and Compliance Coordinator [Diana M.] found a large stack of papers with patient protective identifiers."

On November 7, 2012, Andrew W. Deems, San Quentin's chief executive officer for healthcare, was notified in a memorandum from chief nursing executive Antonio Laureano that plaintiff placed two phone calls on behalf of an inmate and with the inmate present without proper authorization. Due to the seriousness of the allegation, Deems ultimately directed that plaintiff was to be reassigned to administrative offices where she would not have regular inmate contact pending an internal investigation by the office of internal affairs (OIA). At that time, Deems had no knowledge that plaintiff had made any complaints to CDCR officials or union representatives regarding various work-related issues.

On March 1, 2013, while the OIA's investigation was ongoing, Dr. Tootell wrote a memorandum recommending that plaintiff, who was still working in the dental division, not be certified for a salary adjustment because she was under investigation for overfamiliarity and had been redirected from clinical duties to administrative duties. On March 14, 2013, plaintiff then complained about not getting a pay raise.

On October 30, 2013, plaintiff filed a union grievance stating that she was working out of her job classification without receiving a commensurate pay increase.

In March 2014, the OIA's investigation into plaintiff's alleged misconduct, ordered by Deems on November 7, 2012, finally closed. The OIA found that plaintiff violated CDCR rules, policies, or regulations as follows: (1) In or about 2012 plaintiff was overly familiar with Inmate 1 while he was housed at CTC. She placed calls to his attorney and to his mother on his behalf and allowed him to place calls to his mother without authorization in violation of San Quentin policies, and was then dishonest about having doneso.² (2) In 2012, plaintiff retained over 200 confidential inmate patient records in her work area that should have been stored in confidential files. She removed confidential inmate patient records from San Quentin, took them home, and refused an order to return all of them. (3) Finally, plaintiff was dishonest and willfully insubordinate and disobedient during the OIA's investigation when she, among other things, repeatedly failed to comply with explicit instructions not to discuss her case with anyone without authorization, except for her representative.³

On April 15, 2014, plaintiff filed a grievance with CDCR stating that she was unfairly denied her merit-based pay increase due to an improper performance evaluation.⁴

On May 22, 2014, plaintiff wrote an email to five CDCR colleagues, Nathaniel A., Adeaner M. (her supervisor), Eric M., Barbara Brown, and Rachel N., in which she raised work-related concerns such as having to perform tasks "out of class," not receiving proper supervision or training as to CTC policies, and not getting a pay raise due to a "false" performanceevaluation. Plaintiff also referenced her misconduct, claimed other employees brought "contraband" into San Quentin yet were not investigated, and complained about having been "discriminated against in so many ways."

On May 29, 2014, plaintiff complained in writing about not getting a pay raise and about "false" scrutiny of her work.

On July 1, 2014, based on the OIA's findings, Deems issued plaintiff a 56-page notice of adverse action placing her on administrative leave. Deems found particularly significant the incidents of plaintiff's dishonesty, explaining that "employees working at San Quentin State Prison who have regular interaction with inmates [must] be forthright and honest in their communications regarding occurrences at San Quentin involving inmates" and that "[d]ishonesty in this regard represent[ed] an unacceptable threat to the safety and security of prison personnel, as well as the inmates." A few weeks later, Deems terminated plaintiff's employment effective July 31, 2014. On August 28, 2014, following plaintiff's request for review, Deems upheld his decision.

In or about July 2015, plaintiff filed an employment discrimination complaint with the Department of Fair Employment and Housing (DFEH) and was issued a right-to-sue letter.

On July 5, 2017, plaintiff filed the operative complaint, asserting causes of action for retaliation in violation of the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.), whistleblower retaliation in violation of Labor Code section 1102.5, and race discrimination.⁵

On August 24, 2018, following a period of discovery, CDCR moved for summary judgment. On October 31, 2018, plaintiff filed an opposition to thismotion and objections to CDCR's evidence (including to Deems's declaration). Plaintiff's subsequent request for a continuance was granted, and both parties filed supplemental briefs as ordered by the court and additional evidentiary objections.

On August 19, 2019, following a contested hearing, the trial court granted CDCR's summary judgment motion. In doing so, the court found that CDCR met its...