Roush v. San Joaquin Valley Coll.

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JENNIFER ROUSH, Plaintiff, v. SAN JOAQUIN VALLEY COLLEGE and KEN GUERRERO, Defendants.

Civil Action No. H-21-556

United States District Court, E.D. California

August 12, 2024

MEMORANDUM AND OPINION

Lee H Rosenthal United States District Judge

Jennifer Roush was pregnant and about to take maternity leave when she was terminated from her employment at San Joaquin Valley College. Around the same time, Roush and some of her coworkers had been subpoenaed to testify before a grand jury about an on-campus assault perpetrated on Roush by her ex-boyfriend. According to the College, Roush was fired because she directed a coworker not to tell her supervisors that she would be missing work to testify. Roush maintains in contrast, that the College fired her either because she was pregnant and about to take leave, or because she had been a victim of crime.

The College has moved for summary judgment on Roush's employment discrimination, retaliation, and tort claims. Summary judgment is granted in part and denied in part. The reasons are set out below.

I. Background

A. The Assault Investigation

In 2010, Jennifer Roush began working as a career services advisor at the Visalia, California campus of San Joaquin Valley College. (Docket Entry No. 35-4 at 98). In 2019, Roush's ex-boyfriend, Richard Ramirez, assaulted Roush in her office at the College. (Docket Entry No. 45-3 at 165). At least three of Roush's co-workers witnessed Ramirez come onto campus and enter Roush's office the day of the assault: Timberly Ferris, Bianca Leal, and Stacey Elenes. (Id. at 43-44).

In 2019, the Tulare County District Attorney's Office began investigating Ramirez in connection with the assault. (Docket Entry No. 45-5 at 18). The D.A.'s Office informed Roush that: (1) some of her co-workers would be subpoenaed in March 2020 to testify about the assault before a grand jury, (Docket Entry No. 45-3 at 31); (2) the co-workers could choose when and where they wanted to be served with the subpoenas, (id. at 31, 45); and (3) the grand jury proceeding was “highly confidential” and should not be discussed “with anybody,” (id. at 79).

Roush informed two of her supervisors that College employees would be served with subpoenas and would have to miss work to testify before the grand jury. (Docket Entry No. 45-3 at 46-47; Docket Entry No. 35-6 at 2). The supervisors were Kenneth Guerrero, president of the Visalia campus; and Brandi Hammons, director of graduate services. (Docket Entry No. 45-3 at 46-47).

Roush also told Ms. Hammons what the D.A.'s Office had told her: the grand jury proceeding was confidential and could be jeopardized if the case or the subpoenas were not kept secret. (Docket Entry No. 45-3 at 79). Despite her concern for secrecy, Roush asked Ms. Hammons if she could give Ms. Elenes notice that she would be served with a subpoena and would have to miss work on March 17. (Id. at 81). Ms. Hammons gave Roush permission to talk to Ms. Elenes and gave Ms. Elenes approval to miss work to testify before the grand jury. (Id.). Ms. Hammons told Roush that Ms. Elenes would not be doing a “no call/no show” because her absence was approved. (Id.). Roush then texted Ms. Elenes that her absence had been approved by Ms. Hammons and said that it would be “okay to no call/no show.” (Id.). Roush also told Ms. Elenes not to talk to anyone about the case, including Patricia Hruby, the president of the Fresno campus where Ms. Elenes worked. (Id. at 84).

On the morning of March 10, 2020, an investigator from the D.A.'s Office came to the president's office at the Visalia campus. (Id. at 119). The president, Mr. Guerrero, told the investigator that it was “against our policy” to allow the subpoenas to be served on campus. (Id. at 131). The investigator left but returned to campus that afternoon and successfully served the subpoenas on Ms. Elenes, Ms. Ferris, and the campus registrar, Alan Pearce. (Id. at 131-32).

After being served with the subpoena, Ms. Elenes notified Ms. Hammons that Roush had told her “to do a no call/no show.” (Docket Entry No. 35-6 at 3). Ms. Elenes expressed concern because she knew “that not calling out is unprofessional and [] was unsure of how to handle th[e] situation.” (Id.). At Ms. Hammons's suggestion, Ms. Elenes called the D.A.'s Office, which “confirmed that she can inform her employer.” (Id.).

B. Roush's Termination

On March 11, 2020, Ms. Hammons reported to the human resources director, Venus Tayco, that Roush had “stated that the employees that were served are not able to tell their employers that they need to miss work, they are required to do a ‘no call/no show', If [sic] they tell their employer, it can ruin the case.” (Docket Entry No. 45-3 at 184). Ms. Hammons continued: “Jennifer telling another employee that she is required to ‘no call no show' when that was not the situation, causes Stacy [Elenes] to be at risk for not following protocol when it comes to taking a day off. How should this be addressed with Jennifer?” (Id. at 185). Ms. Tayco forwarded the email up her chain of command, stating: “The crux is that campus protocol for subpoenas and employees being served was deliberately breeched [sic] by Jennifer for her own gain, bringing personal issues into the workplace and causing disruption. We are expecting termination, pending investigation.” (Id. at 184).

The College's human resources department conducted an investigation, assisted by Mr. Guerrero. The investigation included receiving email statements from Ms. Pearce, Ms. Elenes, Mr. Guerrero, Ms. Ferris, and Ms. Diana Cote. (Id. at 114, 116, 119, 139, 147).

On March 18, 2020, a “Separation Request Form” was prepared and approved by Mr. Guerrero, vice president of administration Scott Hager, and Ms. Tayco. (Id. at 199). The Form reflected that Roush was terminated effective March 18 for “Inappropriate behavior as a leader in the organization to guide and misdirect employees to willfully violate our policy for notifying us of their absence. See attached supporting documentation.” (Id.). The supporting documentation was Ms. Elenes's email statement, in which she stated that: “I was told by my previous manager [Roush] to no call no show on Tuesday March 17th. I also shared this information with Brandi [Ms. Hammons].” (Id. at 201).

C. Roush's Discrimination Allegations

Roush contends that the College terminated her employment because: (1) she was pregnant and planning to take maternity leave in May 2020; and (2) she had been a victim of domestic violence. (Docket Entry No. 9).

Roush relies on three statements allegedly made by Mr. Guerrero to support her charge of pregnancy discrimination. First, in January 2020, Roush, Mr. Guerrero, and the college president and CEO, Mike Perry, were giving a senator a tour of the Visalia campus. (Docket Entry No. 354 at 82). According to Roush, Mr. Perry “was overly excited that I was pregnant,” which “irritat[ed]” Mr. Guerrero. (Id. at 82-83). After the tour, Mr. Guerrero allegedly told Roush:

“[O]bviously you're pretty close with Mike Perry, and you seem to know all the bigwigs here. . . . And they're sure excited about your pregnancy.” (Id. at 84).

Second, in February 2020, Mr. Guerrero allegedly told Roush that he did not want her to “have a miscarriage or anything,” but that she would be “responsible” for the College's career placement numbers while she was on maternity leave, and that if “the numbers aren't met,” she could be fired. (Docket Entry No. 45-3 at 37).

Third, when Mr. Guerrero met with Roush on March 18, 2020, to terminate her employment, Mr. Guerrero allegedly told Roush, “now you're going on [u]nemployment, not maternity leave.” (Docket Entry No. 35-4 at 92).

D. The Procedural History

In November 2020, Roush filed discrimination charges with the California Department of Fair Employment and Housing. (Id. at 118). The Department sent Roush a right to sue letter:

This letter informs you that the above-referenced complaint was filed with the Department of Fair Employment and Housing (DFEH) has been closed effective November 11, 2020 because an immediate Right to Sue notice was requested. DFEH will take no further action on the complaint.

This letter is also your Right to Sue notice. According to Government Code section 12965, subdivision (b), a civil action may be brought under the provisions of the Fair Employment and Housing Act against the person, employer, labor organization or employment agency named in the above-referenced complaint. The civil action must be filed within one year from the date of this letter.

To obtain a federal Right to Sue notice, you must contact the U.S. Equal Employment Opportunity Commission (EEOC) to file a complaint within 30 days of receipt of this DFEH Notice of Case Closure or within 300 days of the alleged discriminatory act, whichever is earlier.

(Id. at 110).

In February 2021, Roush sued the College and Mr. Guerrero in Tulare County Superior Court. (Docket Entry No. 1-2). The defendants removed based on federal question jurisdiction. (Docket Entry No. 1).

Roush's operative second amended complaint alleges the following causes of action: (1) pregnancy discrimination, in violation of the California Fair Employment and Housing Act, CAL GOV'T CODE § 12940(a); (2) sex and pregnancy discrimination, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2; (3) wrongful termination, in violation of public policy; (4) interference under the federal Family Medical Leave Act, 29 U.S.C. § 2612; (5) retaliation, in violation of the California Family Rights Act, CAL. GOV'T CODE § 12945.2, et seq.; (6) retaliation, in violation of the Family Medical Leave Act, 29 U.S.C. § 2615(a); (7) retaliation, in violation of Title VII, 42 U.S.C. §...