Preview
Superion Court
of Califomia
County of Butte
6/26/2023
Thomas Dimitre, Attorney at Law
CSB 276924
di i itre@mind.net
nDe
PO Box 801 Deputy
Ashland, OR 97520 Electronically FILED_
Telephone: 541-890-5022
Attorney for Plaintiff
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF BUTTE
[TERESA RANDOLPH, an individual, ) Case No. 19CV01226
Plaintiff PLAINTIFF, TERESA RANDOLPH’S
SETTLEMENT CONFERENCE
10 vs. STATEMENT
11
ITRUSTEES OF THE CALIFORNIA
12 STATE UNIVERSITY, STATE OF
CALIFORNIA, CYNTHIA DALEY, AND
13 DEBRA LARSON
14
15 Defendants
16
17 I. Name and Title of those attending on behalf of Plaintiff
18
Thomas Dimitre
19 Attorney for Plaintiff
20 Teresa Randolph
Plaintiff
21
22
Il. Important Issue:
23
24
1 Plaintiff was disabled — the CSU and its workers compensation carrier had extensive
25
documentation of her restrictions.
26
2. Plaintiff blew the whistle on her supervisor Ms. Daley, due to her a) violation of
27
28 contracting rules, 2) violation of alcohol permit rules, 3) violation of budgeting rules, and
4) violation of rules requiring documentation of in kind donations. Ensuring compliance
with policies and procedures was part of Plaintiff’s
job description.
Ms. Daley pushed back against Plaintiff when she raised these concerns. For example,
Ms. Daley told Plaintiff via voice mail and email that she refused to adhere to the policy
regarding in kind donations.
Once Plaintiff raised the issue of violations of policies with Ms. Daley, she began
harassing Plaintiff, and retaliating against her.
Plaintiff told numerous CSU Chico about the violations — President Hutchinson, Dylan
10
Saake from Human Resources, and John Unruh, Dean. When Plaintiff was
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whistleblowing in a meeting with Dean Unruh regarding Ms. Daley, Ms. Daley listened
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13 at the door. !
14 The very next day, Ms. Daley wrote a scathing email about Plaintiff
and her work, asking
15
HR how to get rid of her.
16
Shortly thereafter, Plaintiff
was wrongfully accused of cancelling the CSU Chico
17
Sustainability Conference, and only days later was placed on paid administrative leave,
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19 due to allegations of deleting documents.
20 The CSU never looked to see if the “deleted documents” could be found anywhere else.
21
IT testified that it wasn’t until January 2020 (14 months after Plaintiff was placed on
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administrative leave and proposed for termination) that Plaintiff's computer was found.
23
Other computers used by Plaintiff have never been found or never searched. Most of the
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25
iCloud Box Folders used by Plaintiff, especially the Box Folder that she transferred
26 11,000 documents to, also were not searched.
27
28
1 Ms. Daley admitted this at her deposition.
9. Despite state law and Plaintiff's litigation hold letter, Defendants have admitted to
destroying the hard drive of Plaintiff's main computer. Plaintiff will seek sanctions
against Defendant for this violation of state law and violation of the litigation hold letter.
lil. Summary
Plaintiff worked at CSU Chico for over twenty years and her work was always excellent.
The University had provided Plaintiff with accommodations due to a bad back which was
exacerbated by stress, since about 2015, but when Plaintiff got a new supervisor, the
10
accommodations were ignored.
11
During mid to late 2018, Plaintiff began noticing that her supervisor, Ms. Daley was
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13 violating numerous, important CSU Chico, CSU systemwide rules and state law regarding
14 contracting (not having a contractor working under a contract, but paying him nonetheless), not
15
requiring documentation of in kind donations as required, not properly securing alcohol permits
16
for events, and not properly completing the budget. Plaintiff's
job description clearly stated that
17
part of her job was to ensure that policies were complied with. But instead of complying with the
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19 policies, Ms. Daley simply ignored them. *
20 Eventually Ms. Daley grew extremely frustrated by Plaintiff's insistence that she follow
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the rules, and that she abide by the agreed upon accommodations. Instead of complying, Ms.
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Daley began retaliating against Plaintiff. The retaliation culminated with Plaintiff being
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constructively terminated from her job.
24
25
Iv. Facts
26 Plaintiff began work at the CSU Chico on June 9, 1997, and worked as an Administrative
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Analyst Specialist. Part of her job description required that she ensure that the University was
adhering to policies and procedures. Exhibit 1.
Plaintiff
was forced to resign her position at CSU Chico on March 11, 2019 because, but
not limited to, the Defendants did not engage in the interactive process or provide reasonable
accommodations, as requested by Plaintiff and her physician, and due to being retaliated against
by Defendants for whistleblowing.
Plaintiffis considered disabled for purposes of California law due to a painful back and
because stress was creating increased back pain and negatively impacting her ability to work.
10
Plaintiff
was a qualified individual who, with, or without accommodation, could perform the
11
essential duties of her job.
12
13 On or about October 2015, Plaintiffs physician recommended that the Defendants
14 provide Plaintiff with a reasonable accommodation for her back pain. Those accommodations
15
were: not working over eight hours per day, a reduction of stress, a standing workstation, and
16
taking frequent breaks and walks.
17
Evidence from discovery has shown that 1) Plaintiff took doctor’s notes to the CSU Chico
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19 that outlined her restrictions (Plaintiff's testimony, Exhibit 2 at 19:5-14; 178:4-25;
20 179:5-8, 191:22.25.), 2) the doctor’s office faxed restrictions to the CSU Chico (doctor’s
21
testimony, Exhibit 3 at 19:14-17; 179:5-8) and 3) the doctor’s office faxed restrictions to
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the CSU Chico’s worker’s compensation carrier (doctors testimony Exhibit 4). The
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doctors’ notes were first sent in 2015 and updated frequently (Exhibit 5). All notes listed
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25
the above restrictions. The Defendants approved Plaintiff's physician’s recommended
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27 2 Ms. Daley sent Plaintiff an email and left her a voicemail that stated that she had never
documented in kind gifts and that she wasn’t going to start doing so.... even though policy
2
was Clear that all in kind gifts had to be documented.
reasonable accommodations. This was confirmed by Plaintiff's former supervisor Jim
Pushnik (Exhibit 6). 7
At first, the Defendants complied with the accommodation request and granted Plaintiff
reasonable accommodation to comply with her physician’s recommendations. Beginning in early
2018, despite multiple requests from Plaintiff, Defendants refused to continue to accommodate
Plaintiff, leading to a higher degree of disability, more pain, and increasing recommended
reasonable accommodations from Plaintiff’s physician.
In early August, 2018, Plaintiff was notified by Provost Larson, that since May 31, 2018,
10
her department had been reorganized and that she now reported to Daniel Grassian, Vice Provost
11
for Academic Programs. The Plaintiff was given no direction by Mr. Grassian, was
12
13 not given an updated job description, and was still unsure of her tasks or function within the
14 University. This caused additional undue stress and anxiety to the Plaintiff.
15
On August 24, 2018, Plaintiff
was called to a meeting with Cindy Daley, and Daniel
16
Grassian and was told that Ms. Daley was now her supervisor. Ms. Daley handed Plaintiff a
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memo, stating that she was now reporting to Ms. Daley. Plaintiff
was also handed a copy of a
18
19 new position description (“PD”). The PD did not describe any physical requirements of the new
20 position. Plaintiff was concerned regarding the workload it created and whether or not her
21
new job would fall within the restrictions recommended by her doctor. Plaintiff told both
22
Grassian and Daley that she had work restrictions, that had already been approved by the
23
University, and that they would be violated by the work required in the position description.
24
25
26
3 Defendant's claim that Plaintiff's supervisor, Ms. Daley did not know about her disability
27 is disingenuous because 1) Plaintiff testified that she told her supervisor twice, and 2)
there is ample evidence that CSU Chico knewa bout the disability. There is no requirement
28
that Plaintiff's supervisors, Ms. Daley was aware, as long as the University was aware.
Neither the Mr. Grassian or Ms. Daley offered an interactive process or a reasonable
accommodation.
Plaintiff testified at her deposition to the above (Exhibit 7 at 56:15-24, 63:5-25).
On August 27, 2018, Plaintiff
met with Ms. Daley again with the memo and the new
position description. Plaintiff again told Ms. Daley that she had work restrictions and that they
would be violated by the position description. Plaintiff then told Ms. Daley that she had already
blown out her back once because she worked to excess for the Conference, and was not going to
violate her restrictions and the agreed upon reasonable accommodations and blow out her back
10
again. Ms. Daley did not respond, except to say “You'll figure it out, I gotta go”, and left the
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meeting. Ms. Daley did not offer an interactive process or provide a reasonable accommodation
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13 to Plaintiff. +
14
15 * Besides violating California law, Defendants’ refusal to initiate the interactive process
with Plaintiff and to provide her with reasonable accommodation also violates the CSU Chico
16 “The ADA and Reasonable Accommodation For Employees with Disabilities Policy” (“CSU
Chico ADA Policy”) which states in pertinent part:
17 “Making a Request for Accommodation
The interactive process starts with an accommodation request from an employee with a
18 disability so it is important for employers to be able to recognize a request. According to
the EEOC, an individual may use "plain English" and need not mention the ADA or use
19 the phrase "reasonable accommodation" when requesting an accommodation. Therefore,
any time an employee indicates that he/she is having a problem and the problem is related
20 to a medical condition, CSU Chico should consider whether the employee is making a
request for accommodation under the ADA.”
21 CSU Chico ADA Policy, p. 6.
22 “Employees
An employee may request an accommodation orally or in writing from his or her
23 supervisor; another supervisor or manager in his/her immediate chain of command; an
appropriate administrator; or the campus ADA coordinator.
24 A request for accommodation does not have to include any special words, such as
"reasonable accommodation," "disability," or "Rehabilitation Act." The statements "I
25 can't move those boxes because of my back" and "I'm having trouble getting to work at
my scheduled starting time because of medical treatments I'm undergoing" both
26 constitute requests that need to be considered for reasonable accommodation. Managers
and Administrators must be attuned to recognizing these kinds of statements as possible
2 requests for reasonable accommodation.”
CSU Chico ADA Policy, p. 6.
28
“Responding to Requests for Accommodation
Plaintiff
has testified that she told Mr. Grassian and Ms. Daley (twice) about her
disability and her accommodations. All three times she was ignored, and the accommodations
that had been agreed to earlier by the University were ignored (Exhibit 8 at 61:6-12, 63:5-25,
6424-7, 65:1-5, 95:1-97:25).
The position description was never signed by either Ms. Daley or the Plaintiff, as
required. Yet, the Defendants still expected Plaintiffto do the work stated on the position
description, and demanded that she do so.
By September 2018, Plaintiff
was required to work over eight hours each and every day,
10
and without breaks or lunch breaks for most days, in order to attempt to keep up with her
11
assigned duties. She also worked from home early and late in the day, before and after regular
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13 working hours. Ms. Daley demanded that she work these hours, and Plaintiff
did so for fear of
14 losing her job, even though this work schedule violated the restriction set out by her doctor.
15
In September 2018, Plaintiff began working on the Conference. It was a very late start,
16
and she was immediately trying to catch up to the regular schedule, and accommodate the added
17
new duties and demands for Ms. Daley. Plaintiff was required to hire students, get the conference
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19 website launched, create a proposal form, create conference information pages,
20 schedule and attend meetings, coordinate room and event logistics, plan advertising, coordinate
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with other campus and community members, and much more. Ms. Daley also forced Plaintiff to
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begin working on the RAI. Additionally, as a result of this second reorganization in just four
23
months, Plaintiff was burdened with additional workload in transferring the reorganized unit to
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ADA Coordinator:
26 All requests for accommodations made by current CSU Chico employees will be
managed by the ADA Coordinator. Requests received by supervisors or other CSU Chico
27 employees shall be forwarded to the ADA Coordinator as soon as possible, but in no
more than five business days. The ADA Coordinator will notify the employee's
28 appropriate administrator promptly, that an accommodation request has been made.”
CSU Chico ADA Policy, p. 7 (Exhibit 9)
the new director and RAI program. This temporarily resulted in tripling the Plaintiff's workload.
Ms. Daley began demanding the Plaintiff attend meetings starting at 7:00 am, began
contacting the Plaintiff before and after normal work hours (at early as 4:00 am, and as late as
7:00 pm), demanding that Plaintiff work during her lunch and break hours, demanding deadlines
and pushing the added duties and workload on to the Plaintiff, requiring the Plaintiff to work in
excess of 10-hour days to fulfill Ms. Daley’s added demands. Out of fear for losing her job the
Plaintiff tried to comply with Ms. Daley’s every demand. Plaintiff reminded Ms. Daley of her
work restrictions, to no avail. Ms. Daley did not offer Plaintiff
the interactive process or
10
reasonable accommodation, nor did she notify any other CSU Chico employee regarding
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Plaintiff's need for an interactive process or reasonable accommodation.
12
13
14 Wrongdoing by Daley, Plaintiff’s Whistleblowing and Retaliation
15
By September 2018, Plaintiff realized that Ms. Daley had hired a contractor and was
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paying him, even though a contract had not been signed, violating campus and CSU system
17
tules. In addition, Plaintiff became aware that Ms. Daley did not get alcohol permits for events
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19 as, and refused to fill out in kind donation forms. All of these were important policies of the CSU
20 Chico and CSU systemwide. All were violations of state, campus and CSU policies. Plaintiff
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raised these issues with other staff who agreed that Daley was violating polices and “putting the
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campus at risk.” Plaintiff raised these issues with Ms. Daley, only to be rebuffed. Daley send
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Plaintiffan email and also left her a message stating that “I’ve never worried about getting forms
24
25
completed for donations and I’m not going to start now. I really don’t care if the University gets
26 credit for these donations. This is just a bunch of red tape and I’m not going to worry about it.”
27
Exhibit 11 at 103:11-105:7, 106:1-25.
28
There were also major issues with the budget, and when Plaintiff raised issues because
Ms. Daley wasn’t complying with the proper budgetary procedures, Daley told Plaintiff "my
budget is none of administration’s business and quite frankly, I'm getting a little VP'd out!"
In early October 2018, Plaintiff also notified Mr. Saake/Human Resources regarding the
problems being caused by Ms. Daley, including but not limited to Ms. Daley’s violation of
campus policies, and how the workload that Ms. Daley was pushing on Plaintiff greatly exceeded
her physician’s restrictions and the reasonable accommodations granted by the University to
Plaintiff. Mr. Saake did not respond to Plaintiff's concerns and did not invoke the interactive
10
process or provide Plaintiff with a reasonable accommodation. Exhibit 12 at 92:19-93:25, 143:1-
11
145:25.
12
13 On October 4, 2018, at an open public meeting, Defendant employee Carl Pittman stated
14 that the ISD department was being dissolved because there were personnel problems in the
15
department. Plaintiff
was the only employee left in the ISD department at the time of the
16
meeting, and is the only employee who Pittman could have been referring to. Pittman was
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referring to Plaintiff as being the “problem” and the reason that an entire department was being
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19 dissolved — a department that was respected nationwide for its annual sustainability conference.
20 This information had been disclosed to Mr. Pittman by Provost Larson. Plaintiff, as the only
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employee left in the ISD, and the person most responsible for the great success and the stellar
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reputation of the annual sustainability conference, was not aware of any such “personnel
23
problems.” Plaintiff
was humiliated, disrespected, embarrassed and her professional reputation
24
25
at the University was severely damaged. Defendants used these untruths, in part, to damage
26 Plaintiff's reputation, to negatively impact her health and to constructively discharge her.
27
During this time Plaintiff
was unable to stand during her work (as recommended by her
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physician), because she was instructed to sit to record and take notes during personnel
interviews, and Plaintiff
was often not allowed to take rest breaks or lunch breaks. Ms. Daley’s
unreasonable work demands along with her inefficiencies, lack of direction, and knowledge
about how to proceed continued to make Plaintiff’s stress worse and increased her back pain.
Plaintiff organized a meeting with others from CSU to address the violations. The
meeting took place in October 2018. During this meeting the Plaintiff opened the discussion
about Ms. Daley’s refusal to adhere to donations policies and processes, and the concerns with
the proposed contract for Tim LaSalle, that Mr. LaSalle was being paid without a contract in
10
place as required, as well as other processes that she had not complied with per campus policy,
11
and the resulting difficulties to the Plaintiff
and others in the meeting as a result. All of the
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13 participants at the meeting agreed with Plaintiff's assessment and told Ms. Daley that she needed
14 to correct the problems identified by Plaintiff. Following this “whistleblower” meeting Ms.
15
Daley began to be very hostile and retaliatory towards Plaintiff in her actions and behavior.
16
Plaintiff's stress, anxiety and back pain increased. Exhibit 13, at 88:22-24, 105:13-17.
17
Note that Jennifer Mays testified that Ms. Daley’s failure to follow polices and
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19 procedures could “put the University at risk”. Ms. Mays reiterated this statement in an email.
20 Exhibit 14. When asked what she meant by putting the University at risk, Ms. Mays testified that
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the University is audited and failure to follow the rules, policies and procedures could lead to
22
audit findings.
23
Ms. Daley’s behavior and attitude continued to become more hostile towards Plaintiff.
24
25
Plaintiff discussed in detail with Jennifer Mays the violations and inappropriate behavior of Ms.
26 Daley who recommended she request a meeting with Daniel Grassian. Plaintiff also told Ms.
27
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Mays that Ms. Daley’s demands were violating her physician’s restrictions. No interactive
process or reasonable accommodations were offered.
Instead, Plaintiff
was directed to John Unruh, Dean of the College of Agriculture and Ms.
Daley’s supervisor. On December 12, 2018, Plaintiff then met with the Dean to discuss Ms.
Daley’s inappropriate behavior, her continued violation of policies, its impact on the conference
and the students and to Plaintiff's stress levels. Plaintiff also discussed that she was being
worked well over the eight hour per day restrictions given to her by her doctor, that she was not
allowed rest or meal breaks, or time to take walks, that her stress levels were quickly increasing,
10
and that the University was violating the reasonable accommodations that had been agreed to.
11
Despite Plaintiff advising Mr. Unruh that he and the University would be liable for these
12
13 violations, Mr. Unruh took no action on Plaintiffs concerns regarding the Defendants’ refusal to
14 reasonable accommodate her. He did not initiate an interactive process or provide Plaintiff with a
15
reasonable accommodation, nor did he contact anyone else at the University to do so.
16
At the same meeting, Plaintiff also told Mr. Unruh that Ms. Daley was violating the
17
campus donations policy, consultant agreement/Request for Proposal policies, alcohol policies
18
19 and Alcohol Beverage Control requirements. Plaintiff provided Mr. Unruh with emails from Ms.
20 Daley that verified Plaintiffs claims. Plaintiff told Mr. Unruh that Ms. Daley was retaliating
21
against her due to her whistleblower complaints. Unruh took no action on these issues. > Exhibit
22
15 at 88:17-21, 140:1-147:25, 148:18-25.
23
Ms. Daley somehow found out about the meeting that Plaintiff was having with Mr.
24
25
Unruh, and though not invited, listened outside, at the door, during the entire meeting. When
26 Robin McCrea, Mr. Unruh’s assistant, found Ms. Daley standing at the door listening, Ms. Daley
27
5 Note that Plaintiff told Ms. Daley, Mr. Unruh, Mr. Saake (HR), Ms. Hutchinson (President)
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and others that Ms. Daley was not accommodating her disability. All to no avail.
1
quickly left. Ms. Daley was furious. Ms. Daley confirmed at her deposition that she had listened
at the door, while Plaintiff
was talking to Mr. Unruh. ° Exhibit 16.
The very next day, at 5:30 am, Ms. Daley sent an email to numerous CSU Chico
employees, excoriating Plaintiff, and her work. The email basically stated that Plaintiff had not
performed well, was not trustworthy. The email went on to state “What are my options?” This
email came only one day after Ms. Randolph’s whistleblower report to Mr. Unruh, one day after
Ms. Daley was listening at the door, and is clear retaliation for Plaintiff's whistleblower
activities. Exhibit 17.
10
The next day, on December 14, 2018 the Plaintiff returned from a dental procedure to
11
find that Ms. Daley had ordered IT to shut down the Conference website, with no notice or
12
13 warning to Plaintiff or any of the students working on the Conference. 7
14 Shortly thereafter, Ms. Daley communicated by email to Defendant employees that
15
Plaintiff was responsible for shutting down the Conference, even though it was Ms. Daley who
16
shut down the website, and therefore, the Conference.
17
Michal Hanson, lead conference student, asked Plaintiff what she could do regarding the
18
19 Conference website being shut down and decided to include the topic on the Campus
20 Sustainability Committee agenda, which she was a member of. She later told Plaintiff that when
21
she brought up the conference and asked why Ms. Daley had shut it and the conference website
22
down, Provost Larson and Ms. Daley very angrily cut her off, feigning that they didn’t know
23
24
25
6 Note that it was only one day later that Ms. Daley wrote a scathing email regarding
26 Plaintiff stating that she couldn’t be trusted, and that she “wasn’t working out”.
7 Note that Ms. Daley, at first, attempted to blame Plaintiff for taking the Conference
27 website down, but the evidence showed that Ms. Daley was the one who directed IT to do
so. IT Specialist Jose Diaz testified that it was either Larson or Daley who told him to take
28
the website down.
12
what had happened or why. Larson and Daley blamed Plaintiff and told the students that Plaintiff
had cancelled the world renowned conference. Larson and Daley both knew that this was not
true. Ms. Daley immediately texted Plaintiff and accused her of causing a “shit storm.” Again,
Plaintiff's anxiety, stress and back pain increased.
Testimony from Provost Larson was that the conference had not actually been cancelled,
and that in any case, Plaintiff did not have the authority to cancel the Conference. It then makes
one wonder why Plaintiff
was accused of “shutting down the Conference” by both Daley and
Larson. There is no evidence that Plaintiff ever shut down the Conference or that she told anyone
10
to do so. ® Exhibit 18.
11
Later on December 14, 2018, Plaintiff sent an email to HR, Dylan Saake, asking for a
12
13 transfer to Robin McCrea’s position as an accommodation for her disability. Ms. McCrea was
14 retiring at the end of the month. This was a request for a lateral transfer into the same
15
classification. Plaintiff made it clear that she was making this request due to her supervisor’s
16
unwillingness to accommodate her disability and her supervisor’s unwillingness to follow
17
policies and procedures. The request was denied with no reason given. This lack of
18
19 responsiveness from Human Resources greatly increased Plaintiff's stress, anxiety and back
20 pain. Exhibit 19.
21
On December 15, 2018, Plaintiff emailed CSU Chico President Gayle Hutchinson, told
22
her about the violations by Ms. Daley and how the Defendants were not accommodating her
23
disability. Plaintiff begged the President to intervene but received no response to her allegations
24
25
of violations. In addition, Plaintiff
did not receive a response from the President regarding the
26 Defendants’ failure to accommodate her. No interactive process was held and no reasonable
27
28
13
accommodation was made.
Shortly thereafter, Ms. Daley shared Plaintiff's medical appointments with others.
Daley’s comments only made Plaintiff's condition worse.
On December 19, 2019, Plaintiff
had a previously planned holiday lunch with her
students. Ms. Daley had previously signed off on the cash advance for the lunch at 4:00 pm, so it
was known to her. Despite this, Ms. Daley ordered Plaintiffto attend a 4:00 pm meeting with
her and knew she would be unable to do so, due to her already planned holiday lunch at the very
same time. Discovery has shown that this meeting was intended to place Plaintiffon paid
10
administrative leave. Plaintiff
was locked out of her campus email, Box folders, and the
11
buildings. Exhibit 20.
12
13 By middle to late December, Plaintiff began having heart palpitations and her blood
14 pressure was very high, she hadn’t been sleeping and her anxiety, stress and back pain had
15
severely increased, all due to the machinations of her employer.
16
On December 31, 2018, Plaintiff
saw her physician due to the stress from work, and the
17
Defendant’s lack of accommodating her disability. Due to Defendants continual violations of the
18
19 physician’s restrictions, Plaintiff's physician then immediately took Plaintiff off of work.
20 Plaintiff notified Defendants that she was out on leave per her physician, until at least January 28
21
2019. Exhibit 21.
22
Despite Plaintiff being off of work on her physician’s orders, and due to work related
23
stress, she received an email from Mr. Saake ordering her to an investigatory interview on
24
25
January 15, 2019.
26 Plaintiff responded that she could not attend based on her physician’s orders. However,
27
8 Note that no one questioned the student as to what she was told by Randolph, and no one
28
asked Randoph what she told the student. Randolph denies that she ever told the student
14
Plaintiff did send a letter to Mr. Saake pointing out that the Defendants had access to all of the
servers and other electronic information that Plaintiff
had compiled over the years. In January
2019, Plaintiff sent a spreadsheet to Defendants providing all of her passwords, etc.
Despite Plaintiffs initial response to his demand for an investigatory interview, Mr. Saake
again ordered her to the investigatory interview. Plaintiff again declined due to her physician’s
orders. Plaintiffs condition was worsening, due to the additional stress that Defendants’ were
dumping on her, despite being off on sick leave due to this stress. During discovery Saake
admitted that he had intended to wait until Plaintiff returned to work to interview her. Yet, he
10
still insisted on interviewing her while she was off of work under a doctor’s care.
11
On January 22, 2019 Plaintiff called the CSU Chico’s worker’s compensation carrier and
12
13 informed them that Defendants were not complying with her physician’s ordered restrictions, or
14 the agreed upon reasonable accommodations. Plaintiff received no response. No interactive
15
process was held and no reasonable accommodation was made.
16
On January 28, 2019, Plaintiff's physician extended her medical leave, due to the
17
continued stress.
18
19 On February 1, 2019, Defendants launched a new Conference website.
20 On February 26, 2019 Plaintiff saw her physician again. Due to the Defendants’ continual
21
failure to honor the restrictions that he had placed on Plaintiff, failure to reasonably
22
accommodate her as required, and due to the Defendants’ continual stressing of Plaintiff, he
23
recommended that she not return to work. Exhibit 22 at 178:1-25, 192:6.
24
25
On March 1, 2019, Plaintiff received a “Notice of Pending Disciplinary Action”
26 (“Notice”) from Provost Debra Larson. Exhibit 23. The “Notice” accused Plaintiff
of dishonesty,
27
unprofessionalism, insubordination, intentional sabotage and maliciousness and other failure or
28
that the Conference was cancelled.
15
refusals to perform the duties of her position. All of these allegations were knowingly false,
unsubstantiated, and part of Ms. Daley’s, and Defendants’ strategy to retaliate against Plaintiff
due to her whistleblowing against Ms. Daley’s multiple violations of campus, Chancellor’s
Office and State policies and statutes. The Notice was also retaliation for Plaintiff's attempts to
have the Defendants comply with her physician ordered reasonable accommodations. Defendants
had not engaged in the interactive process or provided reasonable accommodations to Plaintiff as
requested by her physician and by Plaintiff on numerous occasions. Instead of waiting for
Plaintiffto return to work from her physician’s ordered leave so that she could be interviewed
10
regarding these allegations, Defendants’ chose to propose discipline against her without
11
completing the investigation by hearing her side of the story.
12
13 Two of the most serious charges against Plaintiff in the Notice is that she knowingly and
14 deliberately deleted over 11,000 files related to the Conference. Plaintiff has consistently stated
15
that she deleted these documents because they were old and that she had saved copies of all of
16
the documents on her hard drive and in cloud based Box Folders. The 11,000 files were in the
17
trash, but had not been deleted. Exhibit 24 at 162:1-165:25, 166:18-24, 168:8-22, 170:9-18,
18
19 171:10-18.
20 What discovery has shown us is the following:
21
1. At the time that the CSUprovided Plaintiff with the Notice, alleging that 11,000 files
22
were missing, it had not found or searched her main computer, had not found or
23
searched her auxiliary computers, had not found or searched her tablet, and did not
24
25
search the Box Folders where Plaintiff testified that the documents resided. This is
26 per the testimony of Scott Kodai, IT specialist at CSU Chico. Exhibit 25.
27
2. Despite a litigation hold letter from Plaintiff's attorney, received in March 2019, the
28
16
CSU Chico did not procure any of Plaintiff's electronic devices until January 2020 —
more than a year after Plaintiff
had been placed on paid administrative leave. Exhibit
26.
Ditto for Plaintiff's auxiliary computers and tablet. Some were never found. Exhibit
25.
In fact, most of her computers and the Box Folder where she had copied the 11,000
documents were not searched, according to CSU Chico’s IT expert — Scott Kodai.
Exhibit 25.
10
Lastly, despite the litigation hold letter, CSU Chico destroyed Plaintiff’s hard drive.
11
When Scott Kodai was deposed, he emphatically stated that the hard drive had been
12
13 overwritten and that there was no way to retrieve it. °’ Exhibit 25.
14 Plaintiff
has testified that all of the 11,000 plus documents were on her hard drive
15
and in Cheri Chastain’s (a co-worker’s) Box Folder. The hard drive was destroyed by
16
the CSU Chico and the Box Folder was never searched, per Kodai.
17
Both Plaintiff
and Chastain testified at their depositions that Plaintiff sent a large
18
19 volume of documents to Chastain during this time. Plaintiff testified that she
20 transferred the 11,000 documents to Chastain. Exhibit 27.
21
22
In summary, the CSU Chico wrote and provided the Notice to Plaintiff even though it
23
didn’t have any of Plaintiff's electronics in its possession, had not searched any of the
24
25
electronics, and even though it had destroyed the hard drive, in spite of the litigation hold letter
26
° Note that Plaintiff intends to file a motion against Defendants for knowingly spoiling
27 evidence - Plaintiffs hard drive. Defendant did this, despite a litigation hold letter that it
acknowledged that it received. Plaintiff will ask for a negative inference regarding the
28
spoiled hard drive.
17
1 that Plaintiff's counsel provided to the CSU Chico in March 2019.
The Notice of Pending Disciplinary Action, written by Debra Larson, was knowingly
false and defamatory as it stated the following:
. “On or about December 16, 2018 (Sunday), in a deliberate effort to disrupt the "This Way
to Sustainability Conference" (hereinafter "Conference") and the University, you deleted,
without authorization, approximately 529 University documents/files integral to the 2019
Conference that was in the process of being planned and scheduled to occur on March
28-29, 2019.
10
These were the documents on Plaintiff's hard drive, which was destroyed. Deposition
11
testimony has provided no facts to support the allegation that Plaintiff made a deliberate
12
13 effort to disrupt the Conference. !"
14
15
“4, On or about December 19, 2018 (Wednesday), your supervisor directed you to
16
prepare a comprehensive memorandum detailing various aspects of the sustainability
17
Conference given the confusion you instigated on December 17, 2018, through your
18
19 conduct described above. On or about the same day, instead of working on the memo as
20 directed, you deliberately deleted, without authorization, approximately 11,070
21
documents/files from the University server, including historical Conference and other
22
campus sustainability-related documents since approximately 2008, and other documents
23
essential to the successful planning and completion of the 2019 Conference scheduled for
24
25 March 28-29, 2019.
26
27 10 In fact, when Plaintiffs former supervisor, Jim Pushnik, testified, he laughed when asked
if he thought Plaintiff would sabotage the Conference. He said no way, as Plaintiff had put
on the Conference for the past decade and loved the Conference.
18
Plaintiff testified at her deposition that she transferred copies of these documents to
Cheri Chastain’s Box Folder (cloud based storage) prior to being placed on paid
administrative leave. Ms. Chastain confirmed that she got a large number of documents
from Plaintiff in mid December 2018. There was no need for Plaintiffto keep documents
that had been updated and copied. !'
“5,
This second instance of document deletion by you, in which you deleted
thousands of University records, illustrated a pattern of intentional disregard for CSU
10
information assets, and intentional efforts to disrupt the University, the work of its
11
employees, its operations, and its programs.”
12
13 Numerous depositions have shown that the CSU has no facts to back up this bald
14 assertion. It is only defamation of Plaintiff’s character.
15
16
“6,
Your behavior was unprofessional, dishonest, and a failure or refusal to perform
17
the normal and reasonable duties of your position, and demonstrates maliciousness
18
19 toward, and intent to sabotage, the University. Furthermore, the conduct also violated the
20 CSU's Responsible Use Policy12, California State University, Chico policy 13, and
21
California Penal Code section 502(c)(4)14.”
22
Ditto. No facts to back up this assertion. Just speculation. Plaintiff’s former supervisor,
23
Jim Pushnik, testified that Plaintiff would never sabotage the Conference.
24
25
26
27
11 Interestingly, when being deposed, Provost Larson stated that 1) she didn’t know that
none of Plaintiffs electronics had been searched when she signed the Notice, and 2)
19
. “Your document deletion was dishonest, unprofessional, and a failure or refusal to
perform the normal and reasonable duties of your position. Furthermore, the conduct also
violated the CSU's Responsible Use Policy6, California State University, Chico policy7,
and California Penal Code section 502(c)(4).”
Employees delete documents all of the time. In fact, Provost Larson admitted to deleting
documents from time to time. There is no policy prohibiting documents from being
deleted. There is no evidence that Plaintiff
did anything dishonest, unprofessional or that
she failed to perform the normal and reasonable duties of her position.
10
“Tn conjunction with your deleting the documents/files, you told a student employee that
11
the Conference had been cancelled, and instructed the student to further disseminate that
12
13 information, though it was false, and you knew it to be false.”
14 This is false. First Provost Larson admitted that the Conference had not been cancelled.
15
And the evidence shows that the student employee did not, in fact, state that the
16
Conference had been cancelled.
17
The entire Notice is a fabrication, built on hearsay, defamation, a shoddy investigation
18
19 (no electronics or Box Folders were searched), failure to secure or search Plaintiff’s electronics,
20 failure to abide by California statute in preserving evidence, failure to abide by the litigation hold
21
letter, and destroying the hard drive from Plaintiffs main computer.
22
On March 11, 2019, Plaintiff resigned her position, per her physician’s advice, due to the
23
ongoing and never ending stress. She was constructively discharged.
24
25
26
27
28
incredibly, that in her mind, it didn’t matter if there were copies of the 11,000 + documents
20
V. Claims
Plaintiff
has a variety of claims against Defendants, but they can be grouped into the
following categories:
1 Disability — Discrimination, retaliation, failure to engage in the interactive
process and failure to accommodate. Claims: 1, 3, 4, 5, 6.
California Government Code section 12940 (a) states the following:
“Tt is an unlawful employment practice, unless based upon a bona fide occupational
qualification, or, except where based upon applicable security regulations established
by the United States or the State of California:
10 (a) For an employer, because of the race, religious creed, color, national origin,
ancestry, physical disability, mental disability, medical condition, genetic
11 information, marital status, sex, gender, gender identity, gender expression, age,
sexual orientation, or military and veteran status of any person, to refuse to hire or
12
employ the person or to refuse to select the person for a training program leading
13 to employment, or to bar or to discharge the person from employment or from a
training program leading to employment, or to discriminate against the person in
14 compensation or in terms, conditions, or privileges of employment.”
15
(m) (1) For an employer or other entity covered by this part to fail to make reasonable
16 accommodation for the known physical or mental disability of an applicant or
employee. Nothing in this subdivision or in paragraph (1) or (2) of subdivision (a)
17 shall be construed to require an accommodation that is demonstrated by the
employer or other covered entity to produce undue hardship, as defined in
18
subdivision (u) of Section 12926, to its operation.”
19
20 (n) For an employer or other entity covered by this part to fail to engage in a timely,
good faith, interactive process with the employee or applicant to determine
21
effective reasonable accommodations, if any, in response to a request for
22
reasonable accommodation by an employee or applicant with a known physical or
mental disability or known medical condition.”
23
24
There is ample evidence that Defendant CSU Chico knew of Plaintiff’s disability and
25
was accommodating her until Ms. Daley came on board. Pushnik admitted to this,
26
and there is ample evidence that the CSU and its worker’s compensation carrier all
27
2
on Plaintiffs computer or on the Box Folder.
21
received the restrictions from Plaintiff's doctor. Then, the accommodations stopped.
There was no interactive process and no reasonable accommodation after that point
in time.
2. Retaliation - Claims: 2, 7,10
12940(h)
“Tt is an unlawful employment practice, unless based upon a bona fide occupational
qualification, or, except where based upon applicable security regulations established by
the United States or the State of California:
(h) For any employer, labor organization, employment agency, or person to discharge,
expel, or otherwise discriminate against any person because the person has opposed any
10 practices forbidden under this part or because the person has filed a complaint, testified,
or assisted in any proceeding under this part.”
11
California Labor Code section 1102.5 (b) states the following, in pertinent part:
12
13 “(b) An employer, or any person acting on behalf of the employer, shall not retaliate
against an employee for disclosing information, or because the employer believes that the
14 employee disclosed or may disclose information, to a government or law enforcement
agency, to a person with authority over the employee or
Preview
Superion Court of Califomia County of Butte 6/26/2023 Thomas Dimitre, Attorney at Law CSB 276924 di i itre@mind.net nDe PO Box 801 Deputy Ashland, OR 97520 Electronically FILED_ Telephone: 541-890-5022 Attorney for Plaintiff IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF BUTTE [TERESA RANDOLPH, an individual, ) Case No. 19CV01226 Plaintiff PLAINTIFF, TERESA RANDOLPH’S SETTLEMENT CONFERENCE 10 vs. STATEMENT 11 ITRUSTEES OF THE CALIFORNIA 12 STATE UNIVERSITY, STATE OF CALIFORNIA, CYNTHIA DALEY, AND 13 DEBRA LARSON 14 15 Defendants 16 17 I. Name and Title of those attending on behalf of Plaintiff 18 Thomas Dimitre 19 Attorney for Plaintiff 20 Teresa Randolph Plaintiff 21 22 Il. Important Issue: 23 24 1 Plaintiff was disabled — the CSU and its workers compensation carrier had extensive 25 documentation of her restrictions. 26 2. Plaintiff blew the whistle on her supervisor Ms. Daley, due to her a) violation of 27 28 contracting rules, 2) violation of alcohol permit rules, 3) violation of budgeting rules, and 4) violation of rules requiring documentation of in kind donations. Ensuring compliance with policies and procedures was part of Plaintiff’s job description. Ms. Daley pushed back against Plaintiff when she raised these concerns. For example, Ms. Daley told Plaintiff via voice mail and email that she refused to adhere to the policy regarding in kind donations. Once Plaintiff raised the issue of violations of policies with Ms. Daley, she began harassing Plaintiff, and retaliating against her. Plaintiff told numerous CSU Chico about the violations — President Hutchinson, Dylan 10 Saake from Human Resources, and John Unruh, Dean. When Plaintiff was 11 whistleblowing in a meeting with Dean Unruh regarding Ms. Daley, Ms. Daley listened 12 13 at the door. ! 14 The very next day, Ms. Daley wrote a scathing email about Plaintiff and her work, asking 15 HR how to get rid of her. 16 Shortly thereafter, Plaintiff was wrongfully accused of cancelling the CSU Chico 17 Sustainability Conference, and only days later was placed on paid administrative leave, 18 19 due to allegations of deleting documents. 20 The CSU never looked to see if the “deleted documents” could be found anywhere else. 21 IT testified that it wasn’t until January 2020 (14 months after Plaintiff was placed on 22 administrative leave and proposed for termination) that Plaintiff's computer was found. 23 Other computers used by Plaintiff have never been found or never searched. Most of the 24 25 iCloud Box Folders used by Plaintiff, especially the Box Folder that she transferred 26 11,000 documents to, also were not searched. 27 28 1 Ms. Daley admitted this at her deposition. 9. Despite state law and Plaintiff's litigation hold letter, Defendants have admitted to destroying the hard drive of Plaintiff's main computer. Plaintiff will seek sanctions against Defendant for this violation of state law and violation of the litigation hold letter. lil. Summary Plaintiff worked at CSU Chico for over twenty years and her work was always excellent. The University had provided Plaintiff with accommodations due to a bad back which was exacerbated by stress, since about 2015, but when Plaintiff got a new supervisor, the 10 accommodations were ignored. 11 During mid to late 2018, Plaintiff began noticing that her supervisor, Ms. Daley was 12 13 violating numerous, important CSU Chico, CSU systemwide rules and state law regarding 14 contracting (not having a contractor working under a contract, but paying him nonetheless), not 15 requiring documentation of in kind donations as required, not properly securing alcohol permits 16 for events, and not properly completing the budget. Plaintiff's job description clearly stated that 17 part of her job was to ensure that policies were complied with. But instead of complying with the 18 19 policies, Ms. Daley simply ignored them. * 20 Eventually Ms. Daley grew extremely frustrated by Plaintiff's insistence that she follow 21 the rules, and that she abide by the agreed upon accommodations. Instead of complying, Ms. 22 Daley began retaliating against Plaintiff. The retaliation culminated with Plaintiff being 23 constructively terminated from her job. 24 25 Iv. Facts 26 Plaintiff began work at the CSU Chico on June 9, 1997, and worked as an Administrative 27 28 Analyst Specialist. Part of her job description required that she ensure that the University was adhering to policies and procedures. Exhibit 1. Plaintiff was forced to resign her position at CSU Chico on March 11, 2019 because, but not limited to, the Defendants did not engage in the interactive process or provide reasonable accommodations, as requested by Plaintiff and her physician, and due to being retaliated against by Defendants for whistleblowing. Plaintiffis considered disabled for purposes of California law due to a painful back and because stress was creating increased back pain and negatively impacting her ability to work. 10 Plaintiff was a qualified individual who, with, or without accommodation, could perform the 11 essential duties of her job. 12 13 On or about October 2015, Plaintiffs physician recommended that the Defendants 14 provide Plaintiff with a reasonable accommodation for her back pain. Those accommodations 15 were: not working over eight hours per day, a reduction of stress, a standing workstation, and 16 taking frequent breaks and walks. 17 Evidence from discovery has shown that 1) Plaintiff took doctor’s notes to the CSU Chico 18 19 that outlined her restrictions (Plaintiff's testimony, Exhibit 2 at 19:5-14; 178:4-25; 20 179:5-8, 191:22.25.), 2) the doctor’s office faxed restrictions to the CSU Chico (doctor’s 21 testimony, Exhibit 3 at 19:14-17; 179:5-8) and 3) the doctor’s office faxed restrictions to 22 the CSU Chico’s worker’s compensation carrier (doctors testimony Exhibit 4). The 23 doctors’ notes were first sent in 2015 and updated frequently (Exhibit 5). All notes listed 24 25 the above restrictions. The Defendants approved Plaintiff's physician’s recommended 26 27 2 Ms. Daley sent Plaintiff an email and left her a voicemail that stated that she had never documented in kind gifts and that she wasn’t going to start doing so.... even though policy 2 was Clear that all in kind gifts had to be documented. reasonable accommodations. This was confirmed by Plaintiff's former supervisor Jim Pushnik (Exhibit 6). 7 At first, the Defendants complied with the accommodation request and granted Plaintiff reasonable accommodation to comply with her physician’s recommendations. Beginning in early 2018, despite multiple requests from Plaintiff, Defendants refused to continue to accommodate Plaintiff, leading to a higher degree of disability, more pain, and increasing recommended reasonable accommodations from Plaintiff’s physician. In early August, 2018, Plaintiff was notified by Provost Larson, that since May 31, 2018, 10 her department had been reorganized and that she now reported to Daniel Grassian, Vice Provost 11 for Academic Programs. The Plaintiff was given no direction by Mr. Grassian, was 12 13 not given an updated job description, and was still unsure of her tasks or function within the 14 University. This caused additional undue stress and anxiety to the Plaintiff. 15 On August 24, 2018, Plaintiff was called to a meeting with Cindy Daley, and Daniel 16 Grassian and was told that Ms. Daley was now her supervisor. Ms. Daley handed Plaintiff a 17 memo, stating that she was now reporting to Ms. Daley. Plaintiff was also handed a copy of a 18 19 new position description (“PD”). The PD did not describe any physical requirements of the new 20 position. Plaintiff was concerned regarding the workload it created and whether or not her 21 new job would fall within the restrictions recommended by her doctor. Plaintiff told both 22 Grassian and Daley that she had work restrictions, that had already been approved by the 23 University, and that they would be violated by the work required in the position description. 24 25 26 3 Defendant's claim that Plaintiff's supervisor, Ms. Daley did not know about her disability 27 is disingenuous because 1) Plaintiff testified that she told her supervisor twice, and 2) there is ample evidence that CSU Chico knewa bout the disability. There is no requirement 28 that Plaintiff's supervisors, Ms. Daley was aware, as long as the University was aware. Neither the Mr. Grassian or Ms. Daley offered an interactive process or a reasonable accommodation. Plaintiff testified at her deposition to the above (Exhibit 7 at 56:15-24, 63:5-25). On August 27, 2018, Plaintiff met with Ms. Daley again with the memo and the new position description. Plaintiff again told Ms. Daley that she had work restrictions and that they would be violated by the position description. Plaintiff then told Ms. Daley that she had already blown out her back once because she worked to excess for the Conference, and was not going to violate her restrictions and the agreed upon reasonable accommodations and blow out her back 10 again. Ms. Daley did not respond, except to say “You'll figure it out, I gotta go”, and left the 11 meeting. Ms. Daley did not offer an interactive process or provide a reasonable accommodation 12 13 to Plaintiff. + 14 15 * Besides violating California law, Defendants’ refusal to initiate the interactive process with Plaintiff and to provide her with reasonable accommodation also violates the CSU Chico 16 “The ADA and Reasonable Accommodation For Employees with Disabilities Policy” (“CSU Chico ADA Policy”) which states in pertinent part: 17 “Making a Request for Accommodation The interactive process starts with an accommodation request from an employee with a 18 disability so it is important for employers to be able to recognize a request. According to the EEOC, an individual may use "plain English" and need not mention the ADA or use 19 the phrase "reasonable accommodation" when requesting an accommodation. Therefore, any time an employee indicates that he/she is having a problem and the problem is related 20 to a medical condition, CSU Chico should consider whether the employee is making a request for accommodation under the ADA.” 21 CSU Chico ADA Policy, p. 6. 22 “Employees An employee may request an accommodation orally or in writing from his or her 23 supervisor; another supervisor or manager in his/her immediate chain of command; an appropriate administrator; or the campus ADA coordinator. 24 A request for accommodation does not have to include any special words, such as "reasonable accommodation," "disability," or "Rehabilitation Act." The statements "I 25 can't move those boxes because of my back" and "I'm having trouble getting to work at my scheduled starting time because of medical treatments I'm undergoing" both 26 constitute requests that need to be considered for reasonable accommodation. Managers and Administrators must be attuned to recognizing these kinds of statements as possible 2 requests for reasonable accommodation.” CSU Chico ADA Policy, p. 6. 28 “Responding to Requests for Accommodation Plaintiff has testified that she told Mr. Grassian and Ms. Daley (twice) about her disability and her accommodations. All three times she was ignored, and the accommodations that had been agreed to earlier by the University were ignored (Exhibit 8 at 61:6-12, 63:5-25, 6424-7, 65:1-5, 95:1-97:25). The position description was never signed by either Ms. Daley or the Plaintiff, as required. Yet, the Defendants still expected Plaintiffto do the work stated on the position description, and demanded that she do so. By September 2018, Plaintiff was required to work over eight hours each and every day, 10 and without breaks or lunch breaks for most days, in order to attempt to keep up with her 11 assigned duties. She also worked from home early and late in the day, before and after regular 12 13 working hours. Ms. Daley demanded that she work these hours, and Plaintiff did so for fear of 14 losing her job, even though this work schedule violated the restriction set out by her doctor. 15 In September 2018, Plaintiff began working on the Conference. It was a very late start, 16 and she was immediately trying to catch up to the regular schedule, and accommodate the added 17 new duties and demands for Ms. Daley. Plaintiff was required to hire students, get the conference 18 19 website launched, create a proposal form, create conference information pages, 20 schedule and attend meetings, coordinate room and event logistics, plan advertising, coordinate 21 with other campus and community members, and much more. Ms. Daley also forced Plaintiff to 22 begin working on the RAI. Additionally, as a result of this second reorganization in just four 23 months, Plaintiff was burdened with additional workload in transferring the reorganized unit to 24 25 ADA Coordinator: 26 All requests for accommodations made by current CSU Chico employees will be managed by the ADA Coordinator. Requests received by supervisors or other CSU Chico 27 employees shall be forwarded to the ADA Coordinator as soon as possible, but in no more than five business days. The ADA Coordinator will notify the employee's 28 appropriate administrator promptly, that an accommodation request has been made.” CSU Chico ADA Policy, p. 7 (Exhibit 9) the new director and RAI program. This temporarily resulted in tripling the Plaintiff's workload. Ms. Daley began demanding the Plaintiff attend meetings starting at 7:00 am, began contacting the Plaintiff before and after normal work hours (at early as 4:00 am, and as late as 7:00 pm), demanding that Plaintiff work during her lunch and break hours, demanding deadlines and pushing the added duties and workload on to the Plaintiff, requiring the Plaintiff to work in excess of 10-hour days to fulfill Ms. Daley’s added demands. Out of fear for losing her job the Plaintiff tried to comply with Ms. Daley’s every demand. Plaintiff reminded Ms. Daley of her work restrictions, to no avail. Ms. Daley did not offer Plaintiff the interactive process or 10 reasonable accommodation, nor did she notify any other CSU Chico employee regarding 11 Plaintiff's need for an interactive process or reasonable accommodation. 12 13 14 Wrongdoing by Daley, Plaintiff’s Whistleblowing and Retaliation 15 By September 2018, Plaintiff realized that Ms. Daley had hired a contractor and was 16 paying him, even though a contract had not been signed, violating campus and CSU system 17 tules. In addition, Plaintiff became aware that Ms. Daley did not get alcohol permits for events 18 19 as, and refused to fill out in kind donation forms. All of these were important policies of the CSU 20 Chico and CSU systemwide. All were violations of state, campus and CSU policies. Plaintiff 21 raised these issues with other staff who agreed that Daley was violating polices and “putting the 22 campus at risk.” Plaintiff raised these issues with Ms. Daley, only to be rebuffed. Daley send 23 Plaintiffan email and also left her a message stating that “I’ve never worried about getting forms 24 25 completed for donations and I’m not going to start now. I really don’t care if the University gets 26 credit for these donations. This is just a bunch of red tape and I’m not going to worry about it.” 27 Exhibit 11 at 103:11-105:7, 106:1-25. 28 There were also major issues with the budget, and when Plaintiff raised issues because Ms. Daley wasn’t complying with the proper budgetary procedures, Daley told Plaintiff "my budget is none of administration’s business and quite frankly, I'm getting a little VP'd out!" In early October 2018, Plaintiff also notified Mr. Saake/Human Resources regarding the problems being caused by Ms. Daley, including but not limited to Ms. Daley’s violation of campus policies, and how the workload that Ms. Daley was pushing on Plaintiff greatly exceeded her physician’s restrictions and the reasonable accommodations granted by the University to Plaintiff. Mr. Saake did not respond to Plaintiff's concerns and did not invoke the interactive 10 process or provide Plaintiff with a reasonable accommodation. Exhibit 12 at 92:19-93:25, 143:1- 11 145:25. 12 13 On October 4, 2018, at an open public meeting, Defendant employee Carl Pittman stated 14 that the ISD department was being dissolved because there were personnel problems in the 15 department. Plaintiff was the only employee left in the ISD department at the time of the 16 meeting, and is the only employee who Pittman could have been referring to. Pittman was 17 referring to Plaintiff as being the “problem” and the reason that an entire department was being 18 19 dissolved — a department that was respected nationwide for its annual sustainability conference. 20 This information had been disclosed to Mr. Pittman by Provost Larson. Plaintiff, as the only 21 employee left in the ISD, and the person most responsible for the great success and the stellar 22 reputation of the annual sustainability conference, was not aware of any such “personnel 23 problems.” Plaintiff was humiliated, disrespected, embarrassed and her professional reputation 24 25 at the University was severely damaged. Defendants used these untruths, in part, to damage 26 Plaintiff's reputation, to negatively impact her health and to constructively discharge her. 27 During this time Plaintiff was unable to stand during her work (as recommended by her 28 physician), because she was instructed to sit to record and take notes during personnel interviews, and Plaintiff was often not allowed to take rest breaks or lunch breaks. Ms. Daley’s unreasonable work demands along with her inefficiencies, lack of direction, and knowledge about how to proceed continued to make Plaintiff’s stress worse and increased her back pain. Plaintiff organized a meeting with others from CSU to address the violations. The meeting took place in October 2018. During this meeting the Plaintiff opened the discussion about Ms. Daley’s refusal to adhere to donations policies and processes, and the concerns with the proposed contract for Tim LaSalle, that Mr. LaSalle was being paid without a contract in 10 place as required, as well as other processes that she had not complied with per campus policy, 11 and the resulting difficulties to the Plaintiff and others in the meeting as a result. All of the 12 13 participants at the meeting agreed with Plaintiff's assessment and told Ms. Daley that she needed 14 to correct the problems identified by Plaintiff. Following this “whistleblower” meeting Ms. 15 Daley began to be very hostile and retaliatory towards Plaintiff in her actions and behavior. 16 Plaintiff's stress, anxiety and back pain increased. Exhibit 13, at 88:22-24, 105:13-17. 17 Note that Jennifer Mays testified that Ms. Daley’s failure to follow polices and 18 19 procedures could “put the University at risk”. Ms. Mays reiterated this statement in an email. 20 Exhibit 14. When asked what she meant by putting the University at risk, Ms. Mays testified that 21 the University is audited and failure to follow the rules, policies and procedures could lead to 22 audit findings. 23 Ms. Daley’s behavior and attitude continued to become more hostile towards Plaintiff. 24 25 Plaintiff discussed in detail with Jennifer Mays the violations and inappropriate behavior of Ms. 26 Daley who recommended she request a meeting with Daniel Grassian. Plaintiff also told Ms. 27 28 10 Mays that Ms. Daley’s demands were violating her physician’s restrictions. No interactive process or reasonable accommodations were offered. Instead, Plaintiff was directed to John Unruh, Dean of the College of Agriculture and Ms. Daley’s supervisor. On December 12, 2018, Plaintiff then met with the Dean to discuss Ms. Daley’s inappropriate behavior, her continued violation of policies, its impact on the conference and the students and to Plaintiff's stress levels. Plaintiff also discussed that she was being worked well over the eight hour per day restrictions given to her by her doctor, that she was not allowed rest or meal breaks, or time to take walks, that her stress levels were quickly increasing, 10 and that the University was violating the reasonable accommodations that had been agreed to. 11 Despite Plaintiff advising Mr. Unruh that he and the University would be liable for these 12 13 violations, Mr. Unruh took no action on Plaintiffs concerns regarding the Defendants’ refusal to 14 reasonable accommodate her. He did not initiate an interactive process or provide Plaintiff with a 15 reasonable accommodation, nor did he contact anyone else at the University to do so. 16 At the same meeting, Plaintiff also told Mr. Unruh that Ms. Daley was violating the 17 campus donations policy, consultant agreement/Request for Proposal policies, alcohol policies 18 19 and Alcohol Beverage Control requirements. Plaintiff provided Mr. Unruh with emails from Ms. 20 Daley that verified Plaintiffs claims. Plaintiff told Mr. Unruh that Ms. Daley was retaliating 21 against her due to her whistleblower complaints. Unruh took no action on these issues. > Exhibit 22 15 at 88:17-21, 140:1-147:25, 148:18-25. 23 Ms. Daley somehow found out about the meeting that Plaintiff was having with Mr. 24 25 Unruh, and though not invited, listened outside, at the door, during the entire meeting. When 26 Robin McCrea, Mr. Unruh’s assistant, found Ms. Daley standing at the door listening, Ms. Daley 27 5 Note that Plaintiff told Ms. Daley, Mr. Unruh, Mr. Saake (HR), Ms. Hutchinson (President) 28 and others that Ms. Daley was not accommodating her disability. All to no avail. 1 quickly left. Ms. Daley was furious. Ms. Daley confirmed at her deposition that she had listened at the door, while Plaintiff was talking to Mr. Unruh. ° Exhibit 16. The very next day, at 5:30 am, Ms. Daley sent an email to numerous CSU Chico employees, excoriating Plaintiff, and her work. The email basically stated that Plaintiff had not performed well, was not trustworthy. The email went on to state “What are my options?” This email came only one day after Ms. Randolph’s whistleblower report to Mr. Unruh, one day after Ms. Daley was listening at the door, and is clear retaliation for Plaintiff's whistleblower activities. Exhibit 17. 10 The next day, on December 14, 2018 the Plaintiff returned from a dental procedure to 11 find that Ms. Daley had ordered IT to shut down the Conference website, with no notice or 12 13 warning to Plaintiff or any of the students working on the Conference. 7 14 Shortly thereafter, Ms. Daley communicated by email to Defendant employees that 15 Plaintiff was responsible for shutting down the Conference, even though it was Ms. Daley who 16 shut down the website, and therefore, the Conference. 17 Michal Hanson, lead conference student, asked Plaintiff what she could do regarding the 18 19 Conference website being shut down and decided to include the topic on the Campus 20 Sustainability Committee agenda, which she was a member of. She later told Plaintiff that when 21 she brought up the conference and asked why Ms. Daley had shut it and the conference website 22 down, Provost Larson and Ms. Daley very angrily cut her off, feigning that they didn’t know 23 24 25 6 Note that it was only one day later that Ms. Daley wrote a scathing email regarding 26 Plaintiff stating that she couldn’t be trusted, and that she “wasn’t working out”. 7 Note that Ms. Daley, at first, attempted to blame Plaintiff for taking the Conference 27 website down, but the evidence showed that Ms. Daley was the one who directed IT to do so. IT Specialist Jose Diaz testified that it was either Larson or Daley who told him to take 28 the website down. 12 what had happened or why. Larson and Daley blamed Plaintiff and told the students that Plaintiff had cancelled the world renowned conference. Larson and Daley both knew that this was not true. Ms. Daley immediately texted Plaintiff and accused her of causing a “shit storm.” Again, Plaintiff's anxiety, stress and back pain increased. Testimony from Provost Larson was that the conference had not actually been cancelled, and that in any case, Plaintiff did not have the authority to cancel the Conference. It then makes one wonder why Plaintiff was accused of “shutting down the Conference” by both Daley and Larson. There is no evidence that Plaintiff ever shut down the Conference or that she told anyone 10 to do so. ® Exhibit 18. 11 Later on December 14, 2018, Plaintiff sent an email to HR, Dylan Saake, asking for a 12 13 transfer to Robin McCrea’s position as an accommodation for her disability. Ms. McCrea was 14 retiring at the end of the month. This was a request for a lateral transfer into the same 15 classification. Plaintiff made it clear that she was making this request due to her supervisor’s 16 unwillingness to accommodate her disability and her supervisor’s unwillingness to follow 17 policies and procedures. The request was denied with no reason given. This lack of 18 19 responsiveness from Human Resources greatly increased Plaintiff's stress, anxiety and back 20 pain. Exhibit 19. 21 On December 15, 2018, Plaintiff emailed CSU Chico President Gayle Hutchinson, told 22 her about the violations by Ms. Daley and how the Defendants were not accommodating her 23 disability. Plaintiff begged the President to intervene but received no response to her allegations 24 25 of violations. In addition, Plaintiff did not receive a response from the President regarding the 26 Defendants’ failure to accommodate her. No interactive process was held and no reasonable 27 28 13 accommodation was made. Shortly thereafter, Ms. Daley shared Plaintiff's medical appointments with others. Daley’s comments only made Plaintiff's condition worse. On December 19, 2019, Plaintiff had a previously planned holiday lunch with her students. Ms. Daley had previously signed off on the cash advance for the lunch at 4:00 pm, so it was known to her. Despite this, Ms. Daley ordered Plaintiffto attend a 4:00 pm meeting with her and knew she would be unable to do so, due to her already planned holiday lunch at the very same time. Discovery has shown that this meeting was intended to place Plaintiffon paid 10 administrative leave. Plaintiff was locked out of her campus email, Box folders, and the 11 buildings. Exhibit 20. 12 13 By middle to late December, Plaintiff began having heart palpitations and her blood 14 pressure was very high, she hadn’t been sleeping and her anxiety, stress and back pain had 15 severely increased, all due to the machinations of her employer. 16 On December 31, 2018, Plaintiff saw her physician due to the stress from work, and the 17 Defendant’s lack of accommodating her disability. Due to Defendants continual violations of the 18 19 physician’s restrictions, Plaintiff's physician then immediately took Plaintiff off of work. 20 Plaintiff notified Defendants that she was out on leave per her physician, until at least January 28 21 2019. Exhibit 21. 22 Despite Plaintiff being off of work on her physician’s orders, and due to work related 23 stress, she received an email from Mr. Saake ordering her to an investigatory interview on 24 25 January 15, 2019. 26 Plaintiff responded that she could not attend based on her physician’s orders. However, 27 8 Note that no one questioned the student as to what she was told by Randolph, and no one 28 asked Randoph what she told the student. Randolph denies that she ever told the student 14 Plaintiff did send a letter to Mr. Saake pointing out that the Defendants had access to all of the servers and other electronic information that Plaintiff had compiled over the years. In January 2019, Plaintiff sent a spreadsheet to Defendants providing all of her passwords, etc. Despite Plaintiffs initial response to his demand for an investigatory interview, Mr. Saake again ordered her to the investigatory interview. Plaintiff again declined due to her physician’s orders. Plaintiffs condition was worsening, due to the additional stress that Defendants’ were dumping on her, despite being off on sick leave due to this stress. During discovery Saake admitted that he had intended to wait until Plaintiff returned to work to interview her. Yet, he 10 still insisted on interviewing her while she was off of work under a doctor’s care. 11 On January 22, 2019 Plaintiff called the CSU Chico’s worker’s compensation carrier and 12 13 informed them that Defendants were not complying with her physician’s ordered restrictions, or 14 the agreed upon reasonable accommodations. Plaintiff received no response. No interactive 15 process was held and no reasonable accommodation was made. 16 On January 28, 2019, Plaintiff's physician extended her medical leave, due to the 17 continued stress. 18 19 On February 1, 2019, Defendants launched a new Conference website. 20 On February 26, 2019 Plaintiff saw her physician again. Due to the Defendants’ continual 21 failure to honor the restrictions that he had placed on Plaintiff, failure to reasonably 22 accommodate her as required, and due to the Defendants’ continual stressing of Plaintiff, he 23 recommended that she not return to work. Exhibit 22 at 178:1-25, 192:6. 24 25 On March 1, 2019, Plaintiff received a “Notice of Pending Disciplinary Action” 26 (“Notice”) from Provost Debra Larson. Exhibit 23. The “Notice” accused Plaintiff of dishonesty, 27 unprofessionalism, insubordination, intentional sabotage and maliciousness and other failure or 28 that the Conference was cancelled. 15 refusals to perform the duties of her position. All of these allegations were knowingly false, unsubstantiated, and part of Ms. Daley’s, and Defendants’ strategy to retaliate against Plaintiff due to her whistleblowing against Ms. Daley’s multiple violations of campus, Chancellor’s Office and State policies and statutes. The Notice was also retaliation for Plaintiff's attempts to have the Defendants comply with her physician ordered reasonable accommodations. Defendants had not engaged in the interactive process or provided reasonable accommodations to Plaintiff as requested by her physician and by Plaintiff on numerous occasions. Instead of waiting for Plaintiffto return to work from her physician’s ordered leave so that she could be interviewed 10 regarding these allegations, Defendants’ chose to propose discipline against her without 11 completing the investigation by hearing her side of the story. 12 13 Two of the most serious charges against Plaintiff in the Notice is that she knowingly and 14 deliberately deleted over 11,000 files related to the Conference. Plaintiff has consistently stated 15 that she deleted these documents because they were old and that she had saved copies of all of 16 the documents on her hard drive and in cloud based Box Folders. The 11,000 files were in the 17 trash, but had not been deleted. Exhibit 24 at 162:1-165:25, 166:18-24, 168:8-22, 170:9-18, 18 19 171:10-18. 20 What discovery has shown us is the following: 21 1. At the time that the CSUprovided Plaintiff with the Notice, alleging that 11,000 files 22 were missing, it had not found or searched her main computer, had not found or 23 searched her auxiliary computers, had not found or searched her tablet, and did not 24 25 search the Box Folders where Plaintiff testified that the documents resided. This is 26 per the testimony of Scott Kodai, IT specialist at CSU Chico. Exhibit 25. 27 2. Despite a litigation hold letter from Plaintiff's attorney, received in March 2019, the 28 16 CSU Chico did not procure any of Plaintiff's electronic devices until January 2020 — more than a year after Plaintiff had been placed on paid administrative leave. Exhibit 26. Ditto for Plaintiff's auxiliary computers and tablet. Some were never found. Exhibit 25. In fact, most of her computers and the Box Folder where she had copied the 11,000 documents were not searched, according to CSU Chico’s IT expert — Scott Kodai. Exhibit 25. 10 Lastly, despite the litigation hold letter, CSU Chico destroyed Plaintiff’s hard drive. 11 When Scott Kodai was deposed, he emphatically stated that the hard drive had been 12 13 overwritten and that there was no way to retrieve it. °’ Exhibit 25. 14 Plaintiff has testified that all of the 11,000 plus documents were on her hard drive 15 and in Cheri Chastain’s (a co-worker’s) Box Folder. The hard drive was destroyed by 16 the CSU Chico and the Box Folder was never searched, per Kodai. 17 Both Plaintiff and Chastain testified at their depositions that Plaintiff sent a large 18 19 volume of documents to Chastain during this time. Plaintiff testified that she 20 transferred the 11,000 documents to Chastain. Exhibit 27. 21 22 In summary, the CSU Chico wrote and provided the Notice to Plaintiff even though it 23 didn’t have any of Plaintiff's electronics in its possession, had not searched any of the 24 25 electronics, and even though it had destroyed the hard drive, in spite of the litigation hold letter 26 ° Note that Plaintiff intends to file a motion against Defendants for knowingly spoiling 27 evidence - Plaintiffs hard drive. Defendant did this, despite a litigation hold letter that it acknowledged that it received. Plaintiff will ask for a negative inference regarding the 28 spoiled hard drive. 17 1 that Plaintiff's counsel provided to the CSU Chico in March 2019. The Notice of Pending Disciplinary Action, written by Debra Larson, was knowingly false and defamatory as it stated the following: . “On or about December 16, 2018 (Sunday), in a deliberate effort to disrupt the "This Way to Sustainability Conference" (hereinafter "Conference") and the University, you deleted, without authorization, approximately 529 University documents/files integral to the 2019 Conference that was in the process of being planned and scheduled to occur on March 28-29, 2019. 10 These were the documents on Plaintiff's hard drive, which was destroyed. Deposition 11 testimony has provided no facts to support the allegation that Plaintiff made a deliberate 12 13 effort to disrupt the Conference. !" 14 15 “4, On or about December 19, 2018 (Wednesday), your supervisor directed you to 16 prepare a comprehensive memorandum detailing various aspects of the sustainability 17 Conference given the confusion you instigated on December 17, 2018, through your 18 19 conduct described above. On or about the same day, instead of working on the memo as 20 directed, you deliberately deleted, without authorization, approximately 11,070 21 documents/files from the University server, including historical Conference and other 22 campus sustainability-related documents since approximately 2008, and other documents 23 essential to the successful planning and completion of the 2019 Conference scheduled for 24 25 March 28-29, 2019. 26 27 10 In fact, when Plaintiffs former supervisor, Jim Pushnik, testified, he laughed when asked if he thought Plaintiff would sabotage the Conference. He said no way, as Plaintiff had put on the Conference for the past decade and loved the Conference. 18 Plaintiff testified at her deposition that she transferred copies of these documents to Cheri Chastain’s Box Folder (cloud based storage) prior to being placed on paid administrative leave. Ms. Chastain confirmed that she got a large number of documents from Plaintiff in mid December 2018. There was no need for Plaintiffto keep documents that had been updated and copied. !' “5, This second instance of document deletion by you, in which you deleted thousands of University records, illustrated a pattern of intentional disregard for CSU 10 information assets, and intentional efforts to disrupt the University, the work of its 11 employees, its operations, and its programs.” 12 13 Numerous depositions have shown that the CSU has no facts to back up this bald 14 assertion. It is only defamation of Plaintiff’s character. 15 16 “6, Your behavior was unprofessional, dishonest, and a failure or refusal to perform 17 the normal and reasonable duties of your position, and demonstrates maliciousness 18 19 toward, and intent to sabotage, the University. Furthermore, the conduct also violated the 20 CSU's Responsible Use Policy12, California State University, Chico policy 13, and 21 California Penal Code section 502(c)(4)14.” 22 Ditto. No facts to back up this assertion. Just speculation. Plaintiff’s former supervisor, 23 Jim Pushnik, testified that Plaintiff would never sabotage the Conference. 24 25 26 27 11 Interestingly, when being deposed, Provost Larson stated that 1) she didn’t know that none of Plaintiffs electronics had been searched when she signed the Notice, and 2) 19 . “Your document deletion was dishonest, unprofessional, and a failure or refusal to perform the normal and reasonable duties of your position. Furthermore, the conduct also violated the CSU's Responsible Use Policy6, California State University, Chico policy7, and California Penal Code section 502(c)(4).” Employees delete documents all of the time. In fact, Provost Larson admitted to deleting documents from time to time. There is no policy prohibiting documents from being deleted. There is no evidence that Plaintiff did anything dishonest, unprofessional or that she failed to perform the normal and reasonable duties of her position. 10 “Tn conjunction with your deleting the documents/files, you told a student employee that 11 the Conference had been cancelled, and instructed the student to further disseminate that 12 13 information, though it was false, and you knew it to be false.” 14 This is false. First Provost Larson admitted that the Conference had not been cancelled. 15 And the evidence shows that the student employee did not, in fact, state that the 16 Conference had been cancelled. 17 The entire Notice is a fabrication, built on hearsay, defamation, a shoddy investigation 18 19 (no electronics or Box Folders were searched), failure to secure or search Plaintiff’s electronics, 20 failure to abide by California statute in preserving evidence, failure to abide by the litigation hold 21 letter, and destroying the hard drive from Plaintiffs main computer. 22 On March 11, 2019, Plaintiff resigned her position, per her physician’s advice, due to the 23 ongoing and never ending stress. She was constructively discharged. 24 25 26 27 28 incredibly, that in her mind, it didn’t matter if there were copies of the 11,000 + documents 20 V. Claims Plaintiff has a variety of claims against Defendants, but they can be grouped into the following categories: 1 Disability — Discrimination, retaliation, failure to engage in the interactive process and failure to accommodate. Claims: 1, 3, 4, 5, 6. California Government Code section 12940 (a) states the following: “Tt is an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California: 10 (a) For an employer, because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic 11 information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of any person, to refuse to hire or 12 employ the person or to refuse to select the person for a training program leading 13 to employment, or to bar or to discharge the person from employment or from a training program leading to employment, or to discriminate against the person in 14 compensation or in terms, conditions, or privileges of employment.” 15 (m) (1) For an employer or other entity covered by this part to fail to make reasonable 16 accommodation for the known physical or mental disability of an applicant or employee. Nothing in this subdivision or in paragraph (1) or (2) of subdivision (a) 17 shall be construed to require an accommodation that is demonstrated by the employer or other covered entity to produce undue hardship, as defined in 18 subdivision (u) of Section 12926, to its operation.” 19 20 (n) For an employer or other entity covered by this part to fail to engage in a timely, good faith, interactive process with the employee or applicant to determine 21 effective reasonable accommodations, if any, in response to a request for 22 reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition.” 23 24 There is ample evidence that Defendant CSU Chico knew of Plaintiff’s disability and 25 was accommodating her until Ms. Daley came on board. Pushnik admitted to this, 26 and there is ample evidence that the CSU and its worker’s compensation carrier all 27 2 on Plaintiffs computer or on the Box Folder. 21 received the restrictions from Plaintiff's doctor. Then, the accommodations stopped. There was no interactive process and no reasonable accommodation after that point in time. 2. Retaliation - Claims: 2, 7,10 12940(h) “Tt is an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California: (h) For any employer, labor organization, employment agency, or person to discharge, expel, or otherwise discriminate against any person because the person has opposed any 10 practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part.” 11 California Labor Code section 1102.5 (b) states the following, in pertinent part: 12 13 “(b) An employer, or any person acting on behalf of the employer, shall not retaliate against an employee for disclosing information, or because the employer believes that the 14 employee disclosed or may disclose information, to a government or law enforcement agency, to a person with authority over the employee or