Motion for Summary Judgment in DORA BARNES VS. CITY AND COUNTY OF SAN FRANCISCO ET AL| Trellis.Law

On March 08, 2018 a Motion-Secondary was filed involving a dispute between Barnes, Dora, and City And County Of San Francisco, Does 1 To 10, Inclusive, for civil in the District Court of San Francisco County.

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1 DENNIS J. HERRERA, State Bar #139669
City Attorney
2 KATHARINE HOBIN PORTER, State Bar #173180 ELECTRONICALLY
Chief Labor Attorney F I L E D
3 KATE G. KIMBERLIN, State Bar #261017 Superior Court of California,
County of San Francisco
Deputy City Attorney
4 AMY D. SUPER, State Bar #274617 08/01/2019
Deputy City Attorney Clerk of the Court
5 Fox Plaza BY: RONNIE OTERO
Deputy Clerk
1390 Market Street, Fifth Floor
6 San Francisco, California 94102-5408
Telephone: (415) 554-3931
7 Facsimile: (415) 554-4248
E-Mail: amy.super@sfcityatty.org
8
Attorneys for Defendant
9 CITY AND COUNTY OF SAN FRANCISCO

10
SUPERIOR COURT OF THE STATE OF CALIFORNIA
11
COUNTY OF SAN FRANCISCO
12
UNLIMITED JURISDICTION
13
DORA BARNES, an individual, Case No. CGC 18-564888
14
Plaintiff, DEFENDANT’S MEMORANDUM OF POINTS
15 AND AUTHORITIES IN SUPPORT OF
vs. MOTION FOR SUMMARY JUDGMENT, OR
16 IN THE ALTERNATIVE, SUMMARY
CITY AND COUNTY OF ADJUDICATION
17 SAN FRANCISCO; and DOES 1-10,
inclusive, Reservation No.: 05291015-15
18
Defendants. Hearing Date: October 15, 2019
19 Hearing Judge: Hon. Ethan P. Schulman
Time: 9:30 a.m.
20 Place: Department 302

21
Date Action Filed: March 8, 2018
22 Trial Date: November 18, 2019

23 Attached Documents:
Memorandum of Points and Authorities In Support
24 of MSJ; Separate Statement of Undisputed Facts In
Support of MSJ; Declaration of Amy D. Super; and
25 [Proposed] Order Granting MSJ

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1 TABLE OF CONTENTS

2 INTRODUCTION ...........................................................................................................................6
STATEMENT OF FACTS ..............................................................................................................6
3
I. PLAINTIFF’S EMPLOYMENT WITH THE CITY ...............................................6
4
II. PLAINTIFF’S DISCIPLINE AT HSA ....................................................................7
5 III. PLAINTIFF’S APPLICATIONS FOR PROMOTIONS .........................................8
6 IV. PLAINTIFF’S COMPLAINTS ...............................................................................9

7 ARGUMENT .................................................................................................................................10
I. The City is Entitled to Summary Judgment Because the Majority of Plaintiff’s
8 Allegations are Barred as a Matter of Law ............................................................10
9 A. Plaintiff is Barred From Re-Asserting Several of Her Failure to Promote
Claims ........................................................................................................10
10
1. This Court is Bound by the Findings of the CSC ..........................10
11
2. As Applied, Plaintiff Cannot Rely on Several of Her Failure to
12 Promote Allegations to Support Any of Her Causes of Action .....11
B. The City’s Investigative Efforts Are Privileged ........................................12
13
C. Most of Plaintiff’s Allegations Are Time-Barred ......................................13
14
1. Plaintiff is Limited to Claims Arising on or After September 20,
15 2015................................................................................................13
2. The Continuing Violations Doctrine Does Not Apply to
16
Plaintiff’s Earlier Allegations ........................................................13
17 D. Plaintiff’s Remaining Allegations Are Insufficient to Support Her
Claims ........................................................................................................15
18
II. PLAINTIFF CANNOT PROVE HER GENDER DISCRIMINATION CLAIM .16
19
III. PLAINTIFF CANNOT PROVE HER RACE DISCRIMINATION CLAIM .......21
20 IV. PLAINTIFF CANNOT PROVE HER CLAIM FOR RETALIATION ................22
21 C. THE CITY HAD LEGITIMATE, NON-RETALIATORY REASONS
FOR ITS ACTIONS AND PLAINTIFF CANNOT PROVE PRETEXT .25
22
CONCLUSION ..............................................................................................................................25
23

25
26

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1 TABLE OF AUTHORITIES
Cases
2 Akers v. Cnty. of San Diego
95 Cal.App.4th 1441 (2002) ......................................................................................................17
3

4 Beyda v. City of LA
65 Cal.App.4th 511 (1998) ........................................................................................................16
5
Briggs v. Rolling Hills Estates
6 40 Cal.App.4th 637 (1995) ........................................................................................................11

7 Brooks v. City of San Mateo
229 F.3d 917 (9th Cir. 2000) .....................................................................................................16
8
Caldwell v. Paramount Unified Sch. Dist.
9
41 Cal.App.4th 189 (1995) ..................................................................................................16, 25
10
Cohen v. Fred Meyer, Inc.
11 686 F.2d 793 (9th Cir. 1982) .....................................................................................................24

12 Cooper v. United Air Lines, Inc.
82 F.Supp.3d 1084 (N.D. Cal. 2015) .........................................................................................20
13
Cornwell v. Electra Cent. Credit Union
14 439 F.3d 1018 (9th Cir. 2006) .............................................................................................16, 22
15
Cozzi v. County of Marin
16 787 F.Supp.2d 1047 (N.D. Cal. 2011) .......................................................................................23

17 Cucuzza v. City of Santa Clara
104 Cal.App.4th 1031 (2002) ..............................................................................................14, 15
18
Dominguez-Curry v. Nev. Transp. Dep’t
19 424 F.3d 1027 (9th Cir. 2005) ...................................................................................................19
20
F.T.C. v. Publishing Clearing House, Inc.
21 104 F.3d 1168 (9th Cir. 1997) ...................................................................................................20

22 Frisk v. Merrihew
42 Cal.App.3d 319 (1974) .........................................................................................................12
23
George v. Calif. Unemployment Ins. App. Bd.
24 179 Cal.App.4th 1475 (2009) ....................................................................................................11
25 Griffin v. Potter
26 356 F.3d 824 (7th Cir. 2004) .....................................................................................................18

27 Guthrey v. State of California
63 Cal.App.4th 1108 (1998) ......................................................................................................20
28 3
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Guz v. Bechtel Nat’l, Inc.
1 24 Cal.4th 317 (2000) ....................................................................................................16, 17, 20
2
Hagberg v. Cal. Fed. Bank
3 32 Cal.4th 350 (2004) ................................................................................................................12

4 Hale Co. v. Lea
191 Cal. 202 (1923) ...................................................................................................................12
5
Hansen v. Cal. Dept. of Corr. & Rehab.
6 171 Cal.App.4th 1537 (2008) ..............................................................................................12, 13
7 Haugerud v. Amery Sch. Dist.
8 259 F.3d 678 (7th Cir. 2001) .....................................................................................................18

9 Hersant v. Dept. of Soc. Servs.
57 Cal.App.4th 997 (1997) ........................................................................................................16
10
Hicks v. KNTV Television
11 160 Cal.App.4th 994 (2008) ......................................................................................................16
12 Imig v. Ferrar
70 Cal.App.3d 48 (1977) ...........................................................................................................13
13

14 Johnson v. Cambridge Indus., Inc.
325 F.3d 892 (7th Cir. 2003) .....................................................................................................18
15
Johnson v. Loma Linda
16 24 Cal.4th 61 (2000) ...........................................................................................................10, 12
17 Malais v. L.A. City Fire Dep’t
150 Cal.App.4th 350 (2007) ......................................................................................................18
18

19 McAlindin v. City of San Diego
192 F.3d 1226 (9th Cir. 1999) ...................................................................................................22
20
McDonnell Douglas Corp. v. Green
21 411 U.S. 792 (1973) .......................................................................................................16, 19, 21

22 McQuirk v. Donnelley
189 F.3d 793 (9th Cir. 1999) .....................................................................................................12
23
McRae v. Dep’t of Corr. & Rehab.
24
142 Cal.App.4th 377 (2005) ......................................................................................................18
25
Morgan v. Regents of the Univ. of Cal.
26 88 Cal.App.4th 52 (2000) ..........................................................................................................14

27 Murphy v. City of Aventura
616 F.Supp.2d 1267 (S.D. Fla. 2009) ........................................................................................24
28 4
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Nesbit v. Pepsico, Inc.
1 994 F.2d 703 (9th Cir. 1993) .....................................................................................................20
2
Phelps v. U.S. Gen. Servs. Agency
3 469 Fed. App’x 548 (9th Cir. 2012) ..........................................................................................16

4 Pinero v. Specialty Rest. Corp.
130 Cal.App.4th 635 (2005) ......................................................................................................18
5
Reeves v. Sanderson Plumbing Prods., Inc.
6 530 U.S. 133 (2000) ...................................................................................................................20
7 Richards v. CH2M Hill, Inc.
8 26 Cal.4th 798 (2001) ..........................................................................................................14, 15

9 Romano v. Rockwell Int’l, Inc.
14 Cal.4th 479 (1996) ................................................................................................................13
10
S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines) v. Walter Kidde & Co., Inc.
11 690 F.2d 1235 (9th Cir. 1982) ...................................................................................................19
12 Schuler v. Chronicle Broad. Co.
793 F.2d 1010 (9th Cir. 1986) ...................................................................................................20
13

14 Selby v. Pepsico, Inc.
784 F.Supp.750 (N.D. Cal. 1991) ..............................................................................................20
15
St. Mary’s Honor Ctr. v. Hicks
16 509 U.S. 502 (1993) ...................................................................................................................16
17 Thomas v. Dep’t. of Corr.
77 Cal.App.4th 507 (2000) ........................................................................................................17
18

19 Westlake Cmty Hosp. v. Super. Ct.
17 Cal.3d 465 (1976) .................................................................................................................10
20
Yanowitz v. L’Oreal USA, Inc.
21 36 Cal.4th 1028 (2005) ..................................................................................................11, 14, 17

22 Statutes
California Code Civil Procedure § 437 ..........................................................................................10
23
California Government Code § 12940 ...........................................................................................24
24
California Government Code § 12960 ...........................................................................................13
25
26 Civil Code §47 .........................................................................................................................10, 12

27 Government Code § 12900 ..............................................................................................................6

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1 INTRODUCTION
2 Plaintiff Dora Barnes is currently a social worker for the Human Services Agency of the City

3 and County of San Francisco (the “City”) who has consistently exhibited major performance issues,

4 including mistreatment of clients and colleagues, abysmal client services for some of the most

5 vulnerable citizens of the City, and erratic and dishonest behavior. She claims that the City’s attempts

6 to discipline her and manage these performance issues are retaliatory and discriminatory based on her

7 gender and race. She also claims that the City failed to promote her because of the same retaliatory

8 and discriminatory animus. Plaintiff sues the City alleging causes of action for (1) discrimination on

9 the basis of gender in violation of California Government Code § 12900 et seq. (the California Fair

10 Employment and Housing Act, or “FEHA”); (2) discrimination on the basis of race in violation of

11 FEHA; and (3) retaliation in violation of FEHA.

12 Plaintiff’s causes of action for discrimination fail because she cannot meet her prima facie

13 burden to suggest a discriminatory motive, i.e. that her discipline, failures to be promoted, or any

14 conduct at all were based on her race or gender. The City acted in all instances for legitimate business

15 reasons, and there is no evidence that these reasons were a pretext for discrimination.

16 Plaintiff’s cause of action for retaliation likewise fails because she can neither meet her prima

17 facie burden, nor demonstrate a causal link between her protected activity and any alleged adverse

18 employment action. Rather, the City disciplined Plaintiff for legitimate business reasons, and she has

19 not and cannot produce evidence that these reasons were a pretext for retaliation.

20 Finally, many of Plaintiff’s claims are time-barred, barred by California’s litigation privilege,

21 or excluded because they have already been finally adjudicated by the San Francisco Civil Service

22 Commission.

23 STATEMENT OF FACTS
24 I. PLAINTIFF’S EMPLOYMENT WITH THE CITY

25 Plaintiff Dora Barnes is a Social Worker with the Human Services Agency (“HSA”), a

26 department of the City. (Defendant’s Separate Statement of Undisputed Facts in Support of

27 Defendants’ Motion for Summary Judgment, or in the Alternative Summary Judgment (“UF”) 1.) She

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1 has worked for the City in that position since 2005. (UF 2.) Plaintiff is an African American woman.

2 (UF 3.) As a social worker, Plaintiff’s job duties generally entail case management, family

3 stabilization plans, home visits, assisting with daily operations as directed, Social Security Income

4 (“SSI”) case conferences, communicating with other divisions of HSA to assist clients in receiving

5 services, and assisting drop-in clients. (UF 4.) A large part of Plaintiff’s job involves interactions

6 over a system at HSA called “Q-Flow,” which assigns clients to social workers and tracks the services

7 they receive. (UF 5.)

8 Plaintiff has had performance issues and interpersonal conflicts with various staff members, in

9 particular with her supervisors, over the duration of her career with the City. In 2015, Crystal

10 DeFrantz, the then-Acting Supervisor of the Social Work Section of Cal-Works, also an African

11 American woman, began supervising Plaintiff. (UF 7.). In 2017, DeFrantz was officially promoted to

12 the position of Social Work Manager over CalWORKs. (UF 8.) CalWORKs is a program that

13 provides temporary assistance to low-income families with or expecting children, including cash

14 assistance, food, child care, and health coverage. (UF 9.) The program also provides employment,

15 educational, and other resources to support families on an on-going basis after they leave the program.

16 (UF 10.) Plaintiff is currently supervised by Albert Hsiung, Program Support Analyst Supervisor, who

17 is in turn supervised by DeFrantz. (UF 11.)

18 II. PLAINTIFF’S DISCIPLINE AT HSA

19 On August 31, 2015, HSA issued Plaintiff a written warning for two issues: (1) failure to

20 follow Q-Flow procedures, and (2) rude and disrespectful treatment of a coworker. (UF 12.) With

21 regard to the Q-Flow procedures, although she had been well trained, Plaintiff was consistently

22 misusing the Q-Flow in a way that either caused clients to be routed to other social workers or to be

23 overlooked for services altogether. (UF 13.) At the same time, Plaintiff was written up for repeatedly

24 jumping in front of a colleague and taking his picture with her cell phone, for no apparent reason and

25 without permission or provocation. (UF 14.)

26 On October 11, 2016, HSA suspended Plaintiff for refusing to assist two clients who came to

27 the department in search of assistance. (UF 15.) Plaintiff first refused to assist a client who was deaf,

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1 stating that she could not help the client because she “could not hear or speak.” (UF 16.) Even though

2 the client had an interpreter with her, Plaintiff stated, “It doesn’t matter. She can’t hear.” (UF 17.) A

3 different social worker ultimately took over and provided services to the client. (UF 18.) In the

4 second instance, a woman who had given birth at home came to HSA inquiring as to how she could

5 obtain a birth certificate. (UF 19.) Plaintiff repeatedly refused to help the woman even when

6 instructed to do so by her supervisor, stating that it was not her job. (UF 20.) Another social worker

7 again ended up stepping in, assisting the client, and even finding the client child care while she

8 attended to the issue. (UF 21.)

9 On October 16, 2018, Hsiung and DeFrantz instructed Plaintiff to meet with them to clarify her

10 job duties and responsibilities, as she was continuing to claim that certain aspects of the job were not

11 in her purview or responsibility. (UF 22.) Plaintiff simply refused to attend this meeting, and HSA

12 therefore gave her a written warning for insubordination. Plaintiff also refused to sign the written

13 warning indicating that she had received it. (UF 23.) On October 17, 2018, Hsiung and DeFrantz

14 again attempted to hold a meeting with Plaintiff. (UF 24.) Plaintiff attended, but walked out of the

15 meeting before her job duties could be discussed. (UF 25.) HSA issued a second written warning for

16 this conduct, which Plaintiff also refused to sign. (UF 26.) Finally, on October 23, 2018, Hsiung and

17 DeFrantz met with Plaintiff and presented her with the letter of instruction clarifying her duties. (UF

18 27.) Plaintiff again refused to sign the letter to acknowledge receipt. (UF 28.)

19 III. PLAINTIFF’S APPLICATIONS FOR PROMOTIONS

20 Plaintiff has applied for six promotions during her employment with the City:

21 (1) On January 29, 2014, Plaintiff applied for the position of job classification number 2940

22 Protective Services Worker at the Adult Protective Services division. (UF 29.) She took the exam for

23 the position and was ranked number 52 on the list of applicants, making her not “reachable,” or

24 ineligible to be interviewed based on her score. (UF 30.)

25 (2) On April 1, 2016, Plaintiff applied for a new vacancy to the same position within HSA

26 (2940 Protective Services Worker at the Adult Protective Services division). (UF 31.) The minimum

27 qualifications for this position had changed on March 1, 2016 in compliance with the City’s Civil

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1 Service Rules.1 (UF 32.) Based on the new minimum educational requirements, Plaintiff was not

2 qualified and was therefore not selected. (UF 35.) Plaintiff appealed the decision to the San Francisco

3 Civil Service Commission (“CSC”). (UF 36.) The CSC thoroughly investigated and denied the

4 appeal. (UF 37.)

5 (3) On June 24, 2016, Plaintiff applied for the position of class 2916 Social Work Specialist.

6 (UF 38.) She took the exam for the position, and received a score of 33 out of 60. (UF 39.) The

7 passing score was 40, and Plaintiff was therefore not eligible to be selected for the position. (UF 40.)

8 (4) On October 27, 2016, Plaintiff again applied for the position of 2940 Protective Services

9 Worker, this time in the Public Conservator division. (UF 41.) For the same reasons outlined in

10 number (2) above, Plaintiff did not possess the qualifications for the position and was not selected.

11 (UF 42.) She again appealed the decision to the CSC, and the appeal was again denied. (UF 43.)

12 (5) On January 12, 2017, Plaintiff applied for the position of class 2913 Program Specialist.

13 (UF 44.) Plaintiff met the qualifications and was invited to take the examination for the position, but

14 she did not attend. (UF 45.) She appealed the decision to the CSC, alleging she was never notified of

15 the exam. (UF 46.) This appeal was denied based on a finding that she was, in fact, notified of the

16 exam at the email address she provided in her application. (UF 47.)

17 IV. PLAINTIFF’S COMPLAINTS

18 In April 2014 and August 2015, Plaintiff filed complaints with the EEOC alleging unlawful

19 discrimination and retaliation. However, the EEOC could not establish any violation of Plaintiff’s

20 rights, and therefore issued Plaintiff right to sue notices on December 18, 2015 and January 12, 2016,

21 respectively. (UF 49). Plaintiff did not thereafter bring suit on her claims within the statutory period,

22 and therefore, as discussed in detail below, Plaintiff’s 2014 and 2015 complaints are long time-barred.

23 Plaintiff’s only complaints relevant to the present action are: (1) an alleged April 29, 2016

24 internal complaint regarding a “retaliatory investigation” into Plaintiff’s misconduct (UF 50),2 and

25 1
Pursuant to San Francisco Civil Service Commission Rule 109.2, the City’s intent to change
the minimum qualifications for this position was publicly posted for comment or objection. (UF 33.)
26 Plaintiff did not object or comment, nor did anyone else. (UF 34.)
2
27 In response to written discovery, Plaintiff admitted that this is the only complaint she made to
the City regarding the alleged “unlawful conduct” described in her Complaint. (UF 51.)
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1 (2) Plaintiff’s September 20, 2016 DFEH complaint (UF 52). Plaintiff’s DFEH complaint was also

2 cross-filed with the EEOC. The DFEH thoroughly investigated Plaintiff’s complaint, and, on August

3 28, 2017, dismissed it for insufficient evidence and issued Plaintiff a Notice of Case Closure and Right

4 to Sue. (UF 53.) On, September 20, 2017, Plaintiff received a Dismissal and Notice of Rights from

5 the EEOC. (UF 54.)

6 ARGUMENT

7 There is no triable issue of material fact as to any of Plaintiff’s three cause of action against the

8 City, and, as explained below, the City is entitled to judgment as a matter of law. Cal. Code Civ. Proc.

9 § 437c, subd. (c).

10
I. The City is Entitled to Summary Judgment Because the Majority of Plaintiff’s
11 Allegations are Barred as a Matter of Law

12 Each of Plaintiff’s three causes of action is premised on the same set of facts which she

13 incorporates throughout her Complaint “by reference.” However, as a matter of law, nearly all of the

14 allegedly retaliatory and discriminatory conduct Plaintiff describes is not actionable. Rather,

15 Plaintiff’s allegations have either been finally resolved by the CSC, constitute privileged conduct by

16 the City under Civil Code §47, or are time-barred. Any remaining allegations are insufficient to

17 support Plaintiff’s causes of action, and the City is therefore entitled to summary judgment.

18 A. Plaintiff is Barred From Re-Asserting Several of Her Failure to Promote Claims

19 1. This Court is Bound by the Findings of the CSC

20 In 1976, the California Supreme Court held that unless a party to the quasi-judicial

21 administrative agency proceeding challenges the adverse findings resulting from that proceeding by

22 taking a writ of mandate in superior court, the findings are binding in subsequent civil actions.

23 Westlake Cmty Hosp. v. Super. Ct. (1976) 17 Cal.3d 465, 484. In 2000, the California Supreme Court

24 held that Westlake applied to an employee’s claims brought under the FEHA. Johnson v. Loma Linda

25 (Loma Linda) (2000) 24 Cal.4th 61, 65. In Loma Linda, the plaintiff investigated a claim of sex

26 harassment, determined the claim was well-founded, and recommended termination of the harassing

27 employee. Id. at 66. The following year, the plaintiff was laid off due to budgetary reasons. Id. The

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1 plaintiff filed a grievance challenging the layoff and Loma Linda’s Personnel Board rejected the

2 challenge, finding that the plaintiff had been laid off due to budgetary reasons. Id. The plaintiff then

3 sued in superior court, alleging that his discharge violated FEHA because it was in retaliation for

4 opposing discriminatory practices. Id. at 67. The Superior Court granted Loma Linda’s motion for

5 summary judgment, ruling that because the plaintiff had failed to timely challenge the administrative

6 findings made against him, the court was bound by those findings. Id. The Court of Appeal and

7 Supreme Court both affirmed, directly holding that Westlake applies in the FEHA context. Id. at 67,

8 65. The Supreme Court further held that, because the plaintiff failed to file a writ of mandate

9 challenging the Personnel Board’s findings, that decision “has achieved finality,” and that the decision

10 “has the effect of establishing the propriety” of Loma Linda’s decision. Id. at 71 (quoting Briggs v.

11 Rolling Hills Estates 40 Cal.App.4th 637, 646 (1995)). As the Court explained, “Plaintiff’s FEHA

12 claim that his discharge was for discriminatory reasons is at odds with the preceding determination by

13 the city that the termination was for economic reasons, a finding that, as we have explained, is now

14 binding.” Id. at 71.

15 Even where the finding of a quasi-judicial administrative agency is not res judicata as to an

16 entire FEHA cause of action, a plaintiff is, nevertheless, barred from relitigating any issues finally

17 decided by the agency. George v. Calif. Unemployment Ins. App. Bd. (2009) 179 Cal.App.4th 1475,

18 1486. Thus, “[w]hen the issue previously decided [by the agency] is a required element of the FEHA

19 cause of action, the prior adjudication may have a preclusive effect on the claim, even if the entire

20 claim is not barred, resulting in a dismissal of the FEHA action. “ Id. (citations, quotation marks

21 omitted).

22
2. As Applied, Plaintiff Cannot Rely on Several of Her Failure to Promote
23 Allegations to Support Any of Her Causes of Action

24 In order to prove any one of her three FEHA claims for retaliation, gender discrimination, or

25 race discrimination, Plaintiff must demonstrate she was subjected to an “adverse action” by the City,

26 and that a “causal link” existed between Plaintiff’s protected activity and/or status and the allegedly

27 adverse action. Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042. Here, Plaintiff has

28 11
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1 repeatedly asserted that the City subjected her to an adverse action when it denied her promotions in

2 2014 and 2016. (Plaintiff Dora Barnes’ Complaint for Damages and Injunctive Relief, filed March 8,

3 2018 (“Complaint”), ¶¶39-44). However, Plaintiff already challenged, by way of CSC appeals, the

4 City’s decisions not to promote her applications for (a) 2940 Protective Services Worker in April

5 2016; (b) 2940 Protective Services Worker in October 2016; and (c) 2913 Program Specialist in 2017.

6 The CSC’s findings that Plaintiff was not promoted because she was not qualified is binding and

7 cannot now be challenged in this Court. Loma Linda, 24 Cal.4th at 65. Thus, Plaintiff cannot prove a

8 causal link between the City’s decision not to promote and her allegedly protected status or activities.

9 B. The City’s Investigative Efforts Are Privileged

10 In support of each of her causes of action, Plaintiff alleges that her colleague David Libunao

11 improperly filed a June 26, 2015 complaint against her, and that the City’s subsequent investigation of

12 that complaint constitutes discrimination and retaliation. (Complaint, ¶¶24-29). Plaintiff also alleges

13 that the investigation resulting in her 2016 suspension was, in and of itself, a form of discrimination

14 and/or retaliation. (Complaint, ¶¶38, 46-49). However, Plaintiff is barred under California’s litigation

15 privilege, codified by Civil Code § 47, from seeking recovery for the City’s privileged conduct, which

16 includes the investigation of complaints against its employees.

17 Civil Code § 47 provides that “[a] privileged publication or broadcast is one made … [i]n the

18 proper discharge of an official duty” or “[i]n any (1) legislative proceeding, (2) judicial proceeding,

19 [or] (3) official proceeding authorized by law[.]” Civ. Code § 47(a)-(b). The privilege is absolute.

20 Hale Co. v. Lea (1923) 191 Cal. 202, 205; Frisk v. Merrihew (1974) 42 Cal.App.3d 319, 323;

21 McQuirk v. Donnelley (9th Cir. 1999) 189 F.3d 793, 800. A government investigation is an “official

22 proceeding” under the statute and all statements made in such an investigation are therefore absolutely

23 privileged. Hansen v. Cal. Dept. of Corr. & Rehab. (2008) 171 Cal.App.4th 1537, 1546-47.

24 Here, Plaintiff complains that the City’s responses to various complaints made against her

25 constituted discrimination and/or retaliation. However, Libunao’s complaint, as well as the complaints

26 that gave rise to Plaintiff’s suspension, “prompt[ed]” official action covered by the litigation privilege.

27 Hagberg v. Cal. Fed. Bank (2004) 32 Cal.4th 350, 363-364. The City’s response—to investigate these

28 12
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1 complaints—was not done arbitrarily, but rather in conformity with its obligation under the City’s

2 Charter and CSC Rule 303. As such, the investigations were “official proceedings authorized by law”

3 and the publications made in that investigation (i.e., the investigative reports, determination letters,

4 and notifications to Plaintiff) are all absolutely privileged and cannot form the basis for liability.

5 Hansen, 171 Cal.App.4th at 1546-47; Imig v. Ferrar (1977) 70 Cal.App.3d 48, 55.

6 C. Most of Plaintiff’s Allegations Are Time-Barred

7 1. Plaintiff is Limited to Claims Arising on or After September 20, 2015

8 No complaint for a violation of the FEHA may be filed with the DFEH “after the expiration of
9 one year from the date upon which the alleged unlawful practice or refusal to cooperate occurred.”
10 Romano v. Rockwell Int’l, Inc. (1996) 14 Cal.4th 479, 492 (quoting Cal. Gov. Code § 12960). In her
11 Complaint, Plaintiff alleges she exhausted her administrative remedies by filing her DFEH complaint
12 on September 20, 2016. (Complaint, ¶49). Accordingly, the statute of limitations on Plaintiff’s
13 lawsuit has run for incidents occurring prior to September 20, 2015. However, the vast majority of
14 Plaintiff’s complaints involve discrete events occurring in 2014 and early 2015. For example, Plaintiff
15 describes a promotion she was denied in April 2014 (Complaint, ¶13; Deposition of Plaintiff Dora
16 Barnes, April 4, 2019 (“Plaintiff Dep.”) at 38:23-39:13, Ex. 3),3 a dispute with her co-worker lasting
17 from January-June 2015 (Complaint, ¶¶14-21, 24-28; Plaintiff Dep. at 24:9-18), and an August 2015
18 written warning (Complaint, ¶¶31-37; Plaintiff Dep. at 121:5-10). Plaintiff cannot rely on any of these
19 events to support her causes of action because they all fall outside of the statute of limitations.
20
2. The Continuing Violations Doctrine Does Not Apply to Plaintiff’s Earlier
21 Allegations

22 To the extent Plaintiff argues that these time-barred incidents should be included in her claims
23 under the continuing violations doctrine, that doctrine is inapplicable here. For the continuing
24 violations doctrine to apply, Plaintiff must prove three things: (1) the conduct within the limitations
25 period must be “sufficiently similar in kind” to the conduct outside the period; (2) the conduct must
26
3
27 All excerpts from Plaintiff’s Deposition on April 4, 2019 are attached to the Super Dec. at
¶ 4, Ex. A.
28 13
DEFENDANT’S MPA ISO MSJ n:\labor\li2019\180343\01379771.docx
Case No. CGC 18-564888
1 “have occurred with reasonable frequency;” and (3) the unlawful conduct must “have not acquired a

2 degree of permanence.” Cucuzza v. City of Santa Clara (2002) 104 Cal.App.4th 1031, 1041 (quoting

3 Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798). The first two prongs of this test “incorporate the

4 broad issue of relatedness.” Id. Together they refer to violations that constitute a continuing course of

5 conduct. Yanowitz, 36 Cal.4th at 1059. A “course of conduct” means “to do or perform often,

6 customarily, or habitually; to make a practice of” or “[r]epeated or customary action, habitual

7 performance; a succession of acts of similar kind; custom; usage.” Richards, 26 Cal.4th at 818. The

8 third prong seeks to set an “outside limit on the length of time a course of conduct may continue

9 before it will be barred.” Cucuzza, 104 Cal.App.4th at 1041 (citing Richards). Plaintiff’s time-barred

10 claims fail as to each of these prongs.

11 First, Plaintiff cannot demonstrate that her untimely claims are “similar in kind” to her few

12 timely claims. The facts in this regard are similar to Morgan v. Regents, where the Court of Appeal

13 held that a continuing violations theory did not apply to a University’s failure to hire an employee

14 involved in a transfer search process, because the individual hiring decisions were all made by

15 “different decision makers, with no evidence the decisions were connected to each other in any way.”

16 Morgan v. Regents of the Univ. of Cal. (2000) 88 Cal.App.4th 52, 67. Here too, Plaintiff’s timely

17 allegation that she was improperly disciplined in 2016 involved decisions made by Plaintiff’s then-

18 supervisor, DeFrantz, while her earlier allegations refer to actions taken by supervisor Susan Arding

19 and co-worker Libunao. (Plaintiff Dep. at 13:3-13, 59:18-60:2, 90:21-91:10; Complaint at ¶¶15-28.)

20 These are therefore different,

Case Info

Judge

Garrett L. Wong Track Judge’s New Case

Case No.

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Document Filed Date

August 01, 2019

Case Filing Date

March 08, 2018

County

Parties

BARNES, DORA Appellant
BARNES, DORA Plaintiff
CITY AND COUNTY OF SAN FRANCISCO Defendant
DOES 1 TO 10, INCLUSIVE Defendant
KIMBERLIN, KATE Attorney for the Defendant
PATTEN, DOW W. Attorney
PATTEN, DOW W. Attorney for the Appellant
PATTEN, DOW W. Attorney for the Plaintiff
SUPER, AMY Attorney for the Defendant
Dennis Herrera Attorney
Katharine Porter Attorneys for Defendants
Jenica Maldonado Attorneys for Defendants

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Motion-Secondary: DORA BARNES VS. CITY AND COUNTY OF SAN FRANCISCO ET AL

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