Sutton v. DeRosia, CASE NO. 1:11-cv-01426-LJO-JLT

ELIZABETH SUTTON, Plaintiff,

v.MARK DEROSIA and CITY OF DELANO, Defendants.

CASE NO. 1:11-cv-01426-LJO-JLT

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

Dated: October 12, 2012

ORDER ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (Doc. 16)

I. INTRODUCTION

Plaintiff Elizabeth Sutton ("plaintiff") was previously employed by the City of Delano ("the City") as an Administrative Secretary for its police department and supervised by the police chief, Mark DeRosia ("Chief DeRosia"). Plaintiff commenced the instant lawsuit against the City and Chief DeRosia (collectively "defendants") for retaliation she allegedly experienced for taking medical leave and filing a complaint with California's Department of Fair Employment & Housing ("DFEH"). Now before the Court is defendants' motion for summary judgment. Defendants argue that they are entitled to summary judgment based on plaintiff's failure to exhaust her claims. Defendants also contend that plaintiff cannot show that she was retaliated against or that her position was eliminated because she took leave or filed a complaint with the DFEH. Defendants further assert that Chief DeRosia cannot be individually liable. Finally, defendants request summary judgment on their affirmative defense ofworkers' compensation preemption. Plaintiff argues that summary judgment is inappropriate because triable issues exist. Having considered the parties' arguments and submissions, defendants' motion is GRANTED in part, and DENIED in part.¹

II. BACKGROUND

A. Facts

On August 18, 2008, the City hired plaintiff to fill the Administrative Secretary position in its police department. (Doc. 16-3, ¶ 1). After plaintiff was hired, she was supervised by Chief DeRosia and worked in an office adjacent to his. (Doc. 16-3, ¶ 2).

1. Work Performance

On August 5, 2009, plaintiff received a memorandum of counseling² from Chief DeRosia for making a false complaint. (Doc. 16-5, p. 67). The memorandum provides that plaintiff told Chief DeRosia that another employee, Eddie Aguil ("Mr. Aguil"), called her a "fat ass." (Id.). When Chief DeRosia approached Mr. Aguil about the comment, he denied it and when Chief DeRosia discussed the incident with plaintiff she explained that Mr. Aguil never made the derogatory comment. (Id.). Plaintiff signed the document as required but next to her signature she stated that she was misunderstood and working under a "hostile work environment." (Id. at p. 68).

On August 24, 2009, plaintiff received her first performance evaluation by Chief DeRosia. (Doc. 17-2). Plaintiff received mostly "above average" and "outstanding" marks with only two "satisfactory" ratings in accuracy and ability to get along with fellow employees. (Doc. 17-2). She did not receive any "marginal improvement needed" or "unsatisfactory" ratings. (Doc. 17-2). The comment section of plaintiff's evaluation specifically provides that plaintiff "is professional and strives to do the best job possible . . . She is well organized and is able to manage her time in a manner that is effective and efficient, and completes most tasks before due dates or deadlines." (Doc. 17-2). The evaluationconcludes by stating that "[o]verall, [plaintiff] has performed at a satisfactory level during this rating period. She should be proud of the work she performs, and the amount of work she completes each day." (Doc. 17-2).

2. Illness and Leave

On September 11, 2009, plaintiff learned that she had cancerous cells that needed to be removed. (Doc. 18, ¶ 4). The cells were removed on November 13, 2009. (Doc. 16-3, ¶ 3). Despite plaintiff's doctor's orders to remain off work for three weeks, plaintiff returned to work on November 18, 2009. (Doc. 17-22, ¶ 7; Doc. 18, ¶ 5). On November 23, 2009, plaintiff suffered complications from the procedure. (Doc. 18, ¶ 6). Thus, the following day plaintiff called in sick (Doc. 18, ¶ 6) and made an appointment with her doctor (Sutton Depo., p. 139). The doctor informed plaintiff that she needed to take time off from work but that it was okay for her to take her pre-planned seven day vacation cruise to Mexico with her husband. (Doc. 18, ¶ 7; Sutton Depo., p. 139). The doctor also told plaintiff that she should not work until December 14, 2009. (Doc. 17-8).

3. Return to Work

Plaintiff returned to work on December 14, 2009, as directed by her doctor. (Doc. 16-3, ¶ 4). The day plaintiff returned, Chief DeRosia circulated a memo in which he explained that Robin Moniz ("Ms. Moniz") and Mr. Aguil would be moving into the office adjacent to his and that plaintiff would be moving to Ms. Moniz's former office. (Doc. 16-3, ¶ 5). The memo further provided that plaintiff would begin reporting to Liz Salim ("Ms. Salim") (Doc. 16-3, ¶ 6) and that plaintiff would be taking over payroll duties.

On December 28, 2009, plaintiff received a "Notice of Proposed Discipline - 40 hour suspension without pay" from Chief DeRosia.³ (Doc. 16-3, ¶ 7). The document provides that plaintiff failed to follow Chief DeRosia's directions prior to taking planned vacation leave, failed to perform assigned duties, and failed to follow the City's Internet Use Policy. (Doc. 17-12). The document explains that plaintiff failed to follow directions prior to taking leave by failing to: (1) mail a purchase agreement and escrow instructions to a title company; (2) properly complete payroll; (3) pay bills; (4) process completedwarrant requests; and (5) arrange for a co-worker to cover her duties while she was on vacation. (Doc. 16-6, p. 79 ¶ 6; Doc. 17-12, p. 1-2). The notice further provides that plaintiff failed to perform assigned duties by failing to mail a letter to the parole hearing board regarding the police department's objection to the release of a prisoner and for failing to perform requested research associated with the letter. (Doc. 17-12, p. 2). The notice also provides that plaintiff failed to follow the City's Internet Use Policy by excessively using the internet to access non-work related cites.⁴ (Id.).

On February 4, 2010, a written letter of reprimand was issued to plaintiff because she worked unauthorized overtime. (Doc. 16-6, p. 7). On the same day, plaintiff filed a grievance with the City against Chief DeRosia and Ms. Salim. (Doc. 16-6, p. 49). Plaintiff alleged that Chief DeRosia began harassing and discriminating against her after she informed him of her cancer diagnosis. (Doc. 16-6, p. 49; Doc. 18 ¶ 13). On April 7, 2010, plaintiff left work due to stress and did not return to work for the remainder of her employment with the City. (Doc. 16-3, ¶ 14).

4. Workers' Compensation and First DFEH claim

Plaintiff filed a workers' compensation claim on July 19, 2010, in which she alleged that she suffered "continuous trauma due to stress and stress caused from hostile environment caused injury to psyche, sleep apnea, and anxiety." (Doc. 16-6, p. 56). On January 3, 2011, plaintiff filed a complaint with the DFEH. (Doc. 16-3, ¶ 16; Doc. 16-5, p. 79). Plaintiff alleged that she was harassed for taking leave under the California Family Rights Act ("CFRA"). (Id.).

5. Position Elimination

In or around June 2011, two City Council members acting as a budget review committee met with Chief DeRosia to discuss what positions could be eliminated from the police department. (Doc. 16-6, ¶ 12). Chief DeRosia suggested the elimination of the Community Services Officer, Emergency Services Specialist, and the Administrative Secretary positions. (Id.) Chief DeRosia suggested the Administrative Secretary position because it had not been filled with a permanent employee since plaintiff left on April 7, 2010. (Id.). On July 22, 2011, the City eliminated twelve positions as part of a citywide budget cut. (Doc. 18, ¶ 15). Three of the twelve positions eliminated were with the policedepartment (id.) which included the Administrative Secretary position previously held by plaintiff (Doc. 16-3, ¶ 17).

6. Second DFEH Claim

On August 24, 2011, plaintiff commenced the instant action with this Court. (Doc. 1). After commencing the instant action, plaintiff filed an additional complaint with the DFEH on July 11, 2012. (Doc. 17-18). Plaintiff alleged that she was retaliated against by having her position eliminated after she filed her initial complaint with the DFEH. (Doc. 17-18). Plaintiff requested an immediate right to sue letter and received it. (Doc. 17-18, p. 4).

B. Procedural History

In plaintiff's complaint she alleged the following claims: (1) retaliation and position elimination in violation of the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2615 (against all defendants); (2) retaliation and position elimination in violation of the CFRA, Cal. Govt. Code § 12945.2 (against the City); (3) retaliation in violation of California's Fair Employment and Housing Act ("FEHA"), Cal. Govt. Code § 12940 (against the City); and (4) retaliation, in violation of Cal. Labor Code § 1102.5 (against the City). (Doc. 1). Subsequent to filing the complaint, plaintiff abandoned her CFRA position elimination and California Labor Code claims. (Doc. 17, p. 7).

Now before the Court is defendants' motion for summary judgment filed on July 20, 2012. (Doc. 16). Defendants argue that they are entitled to summary judgment on plaintiff's first claim for relief because plaintiff failed to exhaust her FMLA claim, Chief DeRosia cannot be individually liable under the FMLA, and plaintiff cannot show that the City retaliated against her because she took FMLA leave. With regard to plaintiff's second claim for relief, the City argues that she cannot show that the City retaliated against her for taking CFRA leave. The City further argues that it is entitled to summary judgment on plaintiff's third claim for relief because she failed to exhaust her FEHA claim and cannot show that the City eliminated her position because she filed a complaint with the DFEH. Finally, Defendants request summary judgment on their fifth affirmative defense of workers' compensation preemption...