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1 Michael C. Wenzel, State Bar No. 215388
Mika J. Frisk, State Bar No. 305139
2 BERTRAND, FOX, ELLIOT, OSMAN & WENZEL
2749 Hyde Street
3
San Francisco, California 94109
4 Telephone: (415) 353-0999
Facsimile: (415) 353-0990
5 Email: mwenzel@bfesf.com
mfrisk@bfesf.com
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7 Attorneys for Defendants Exempt from all Court Filing Fees
JEFFERSON ELEMENTARY SCHOOL DISTRICT Pursuant to Government Code §6103
8 and ELIZABETH GOUGH
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SUPERIOR COURT OF CALIFORNIA
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COUNTY OF SAN MATEO
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JENNIFER RAMBERG, Case No. 21-CIV-03136
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Plaintiff, DEFENDANTS JEFFERSON ELEMENTARY
13 SCHOOL DISTRICT AND ELIZABETH
v. GOUGH’S MEMORANDUM OF POINTS AND
14 AUTHORITIES IN SUPPORT OF MOTION FOR
15 JEFFERSON ELEMENTARY SCHOOL SUMMARY JUDGMENT, OR
DISTRICT, a public entity; ELIZABETH ALTERNATIVELY, SUMMARY
16 GOUGH and DOES 1 through 100, inclusive, ADJUDICATION OF ISSUES
17 Defendants,
Date: June 13, 2024
18 Time: 2:00 p.m.
Location: Department 3
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Courtroom 2B
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21 Hon. Susan L. Greenberg
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DEFENDANTS’ MPA IN SUPPORT OF MSJ/SUMMARY ADJUDICATION OF ISSUES
1 TABLE OF CONTENTS
2 I. INTRODUCTION AND SUMMARY OF ARGUMENT ..........................................................1
3 II. STATEMENT OF FACTS ............................................................................................................1
4 1. Background ..............................................................................................................1
5 2. Plaintiff’s Performance At M.P. Brown ..................................................................3
6 3. Discrimination Claims ...........................................................................................11
7 4. Post Plaintiff’s Employment ..................................................................................12
8 III. LEGAL ARGUMENT ...................................................................................................................13
9 A. Summary Judgment in Favor of Defendants Is Proper in This Case .................................13
10 B. Plaintiff’s Discrimination Claim Is Meritless ....................................................................13
11 1. Plaintiff’s Age Discrimination Claim Is Unsupportable........................................14
12 2. Plaintiff’s Claim for Discrimination Based on Advocacy is Meritless..................16
13 C. Plaintiff’s FEHA Harassment Claim Is Meritless ..............................................................17
14 D. Plaintiff’s Retaliation Claim Under Govt. Code 12940(h) Is Meritless ............................18
15 E. Plaintiff’s Claims For Failure to Prevent Discrimination and Harassment are
Meritless .............................................................................................................................19
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F. Plaintiff’s Retaliation Claim Under Labor Code §1102.5 Is Meritless .............................20
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IV. CONCLUSION ..............................................................................................................................20
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DEFENDANTS’ MPA IN SUPPORT OF MSJ, OR ALTERNATIVELY, SUMMARY ADJUDICATION OF ISSUES
1 TABLE OF AUTHORITIES
2 Cases
3 Aguilar v. Atlantic Richfield
(2001) 25 Cal.4th 826 ........................................................................................................................ 13
4
Bradley v. Harcourt, Brace and Co.
5 (9th Cir.1996) 104 F.3d 267 .............................................................................................................. 16
6 Brown v. Ransweiler
(2009) 171 Cal.App.4th 516 .............................................................................................................. 13
7
Brundage v. Hahn
8 57 Cal. App. 4th 228 (1997) .............................................................................................................. 14
9 Cozzi v. Cty. of Marin
787 F. Supp. 2d 1047, 1065 (N.D. Cal. 2011) ................................................................................... 17
10
Glynn v. Superior Court
11 (2019) 42 Cal.App.5th 47 .................................................................................................................. 20
12 Horn v. Cushman & Wakefield
(1999) 72 Cal.App.4th 798 ................................................................................................................ 16
13
Janken v. GM Hughes Elec.
14 (1996) 46 Cal.App.4th 55 ................................................................................................................... 18
15 King v. United Parcel Service
(2007) 152 Cal.App.4th 426 .............................................................................................................. 13
16
Lawson v. PPG Architectural Finishes, Inc.
17 (2022) 12 Cal.5th 703 ....................................................................................................................... 21
18 Lyle v. Warner Bros. Television Productions
(2006) 38 Cal.4th 264 ......................................................................................................................... 18
19
McDonnell Douglas Corp. v. Green
20 411 U.S. 792 (1973) ........................................................................................................................... 14
21 Proud v. Stone
(4th Cir.1991) 945 F.2d 796 .............................................................................................................. 16
22
Ramirez v. Dependable Hwy. Express., Inc.
23 (2016) 2 Cal.App.5th 1028 ................................................................................................................ 20
24 Reeves v. Safeway Stores, Inc.
(2004) 121 Cal.App.4th 95 ................................................................................................................ 20
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Salas v. California Dept. of Transp.
26 (2011) 198 Cal.App.4th 1058 ............................................................................................................ 13
27 Sandell v. Taylor-Listug, Inc.
(2010) 188 Cal.App.4th 297 .............................................................................................................. 14
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1 Soldinger v. Northwest Airlines, Inc.
(1996) 1 Cal.App.4th 345 .................................................................................................................. 19
2
Trujillo v. North Cnty. Transit Dist.
3 (1998) 63 Cal.App.4th 280 ................................................................................................................ 21
4 Statutes
5 California Code of Civil Procedure §437(p)(2) ....................................................................................... 13
6 California Code of Civil Procedure §437c(o) .......................................................................................... 13
7 California Government Code §12940, et seq. ............................................................................................ 4
8 California Code of Civil Procedure §437c(o)(2) ..................................................................................... 13
9 Government Code Section 12940(k) .......................................................................................................19
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DEFENDANTS’ MPA IN SUPPORT OF MSJ, OR ALTERNATIVELY, SUMMARY ADJUDICATION OF ISSUES
1 I. INTRODUCTION AND SUMMARY OF ARGUMENT
2 Plaintiff Jennifer Ramberg (“Plaintiff”) brings this action against the Jefferson Elementary School
3 District (“District”) and Beth Gough (“Gough”) (collectively “Defendants”) for discrimination,
4 harassment and retaliation under Cal. Govt. Code §12940, et seq. (“FEHA”) and retaliation under the
5 Labor Code arising out of her one-year temporary employment as a school counselor with the District.
6 There is no evidence of any animus, bias, discrimination, or retaliation against her based on Plaintiff’s
7 age and/or association with and advocacy for minority students, or for engaging in any protected activity.
8 The evidence establishes that each employment action was based on legitimate, non-discriminatory and
9 non-retaliatory reasons, including the decision to release Plaintiff from her employment. Her speculation
10 and conjecture that acts were motivated by her age or advocacy for students of color, or retaliatory, are
11 baseless and inadequate. Summary judgment, or alternatively, summary adjudication, should be granted.
12 II. STATEMENT OF FACTS
13 1. Background
14 Plaintiff was employed with the District as a temporary employee in the role of counselor for the
15 2018-2019 school year, from August 2018 through June 2019. (Defendants’ Separate Statement of
16 Undisputed Material Facts (“UMF”) 1.) Plaintiff was 56 years old during her employment with the
17 District. (UMF 2.) Defendant Gough has been the principal at M.P. Brown since 2015. Gough was 52
18 years old when Plaintiff started her employment with the District. (UMF 3.) Gough is responsible for
19 taking care of the entire school, including all students, staff, facilities and anything related to running the
20 school. (UMF 4.) All employees regularly assigned to work at M.P. Brown report to Gough. (UMF 5.)
21 Stephanie Martinez (“Martinez”) has been the District’s Program Director of Student Services
22 since 2015. (UMF 6.) She oversees all District school counselors and provides professional development
23 and helps implement counseling services. A school counselor’s direct supervisor is the principal of the
24 school site where they are assigned. (UMF 7.) James Adams, Psy.D. (“Adams”) has been the Director of
25 Special Education for the District since 2013. Adams oversees all special education programming,
26 planning and budgeting. (UMF 8.) Educationally related mental health services (“ERMHS”) is a service
27 provided through special ed services as part of a qualified counselor’s responsibilities to meet students’
28 Independent Education Plans (IEP). ERMHS is not a dedicated position in the District. (UMF 9.)
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DEFENDANTS’ MPA IN SUPPORT OF MSJ/SUMMARY ADJUDICATION OF ISSUES
1 Brent Marquez-Valenti (“Valenti”) has been the District’s Assistant Superintendent of Human
2 Resources since 2015. (UMF 10.) Valenti’s duties include supervising the human resources department
3 and school principals. (UMF 11.) Valenti is also involved in posting counselor positions and overseeing
4 interview and hiring protocols, but is not involved in the interview or hiring process for school
5 counselors, which is usually handled by Martinez and site administrators like school principals. (UMF
6 12.) Valenti does not directly supervise counselors. He relies on site administrators and supervisors of
7 temporary or probationary employees to evaluate employees and recommend retention, which he then
8 brings to the board, and subsequently notifies employees about board decisions. (UMF 13.)
9 The M.P. Brown school counselor’s duties include providing social-emotional classroom lessons
10 to all students using a specific curriculum, social media and technology lessons for 4th and 5th grades,
11 conflict resolution, restorative justice and community circle moments, small group work and individual
12 counseling. (UMF 14.) The counselor position is fairly autonomous, and Gough and Martinez’s role is
13 limited to ensuring the curriculum is being taught and teachers’ needs are being met. (UMF 15.)
14 On about April 20, 2018, the District posted the opening for the school counselor job at M.P.
15 Brown for the 2018-19 year. (UMF 16.) The position was a temporary position funded from two budgets;
16 Adams’ Special Education Department funding .4 of the position, and Martinez’s Student Services
17 Department budget funding .6 of the position. (UMF 17.) No qualified candidates were found, and the
18 job was again posted on May 24, 2018. (UMF 18.) Following the second posting and interview process,
19 an offer was extended to Elyse Casey Samuels, however, credentialing issues prevented her employment
20 in the counseling position. (UMF 19.) The job was then posted a third time on August 20, 2018. (UMF
21 20.) Plaintiff was working as an art instructor at a summer camp in Maine when she applied for the
22 position. (UMF 21.) Plaintiff had never previously worked as a school counselor. (UMF 22.)
23 In the school counselor interview process, interviewers must unanimously agree to hire the
24 individual before an employment offer is made. (UMF 23.) Gough, Adams and Martinez interviewed
25 Plaintiff and unanimously agreed to hire her for both the .6 and .4 positions. (UMF 24.) Plaintiff was
26 hired as a temporary employee on August 27, 2018, shortly after the school year began, and she
27 understood that her services were of a temporary nature in accordance with the Education Code. (UMF
28 25.) Her temporary employee contract stated the District would monitor its staffing and reclassification
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DEFENDANTS’ MPA IN SUPPORT OF MSJ, OR ALTERNATIVELY, SUMMARY ADJUDICATION OF ISSUES
1 of employees from temporary to probationary status “when appropriate.” (UMF 26.) Temporary
2 employees may be released at any time through the first year, although the District’s practice has been to
3 give notice of non-reelection by March 15 and to allow the employees to work the remainder of their
4 contract. (UMF 27.) Board approval is not required to release temporary employees, but the District’s
5 practice is to bring the non-reelection to the board in closed session for approval. (UMF 28.) Counselors
6 hired as first-year employees are always hired as temporary employees, and temporary employees remain
7 in that classification throughout their first year. (UMF 29.)
8 Plaintiff’s position was split between School Counselor with .6 time at M.P. Brown, and ERMHS
9 counselor with Special Education at .4 time at several other schools providing counseling for special
10 needs students who qualified through the special education department. (UMF 30.) Gough was Plaintiff’s
11 ultimate supervisor during Plaintiff’s employment with the District because most of Plaintiff’s time was
12 spent at M.P. Brown and Gough conducted Plaintiff’s review. (UMF 31.)
13 Given the timing of Plaintiff’s hire, she was not present for some training and activities. The
14 agenda and protocol were shared with her, and Gough met with her to bring her up to speed on
15 information and trainings that occurred before her hire. She was assigned to attend specific trainings and
16 connected with counselors at other schools. She was encouraged not to worry about teaching lessons, but
17 to get in and visit classrooms and absorb and learn the culture, people and connections at the school.
18 (UMF 32.) Martinez provided training for the school counselor role and support throughout the year,
19 including professional development and monthly meetings involving additional training on wellness,
20 counseling and mental health. (UMF 33.) Plaintiff also received training on her ERMHS counseling
21 services position at other schools from Gina Sunie-Lopez. (UMF 34.) Plaintiff was the only counselor at
22 M.P. Brown, and she worked with all students of every grade level in the school. (UMF 35.)
23 2. Plaintiff’s Performance At M.P. Brown
24 While at M.P. Brown, Plaintiff shared a small office space with the speech pathologist. (UMF
25 36.) M.P. Brown was maxed out for enrollment in 2018-19, every space and classroom was being used,
26 and there was little extra room. (UMF 37.) Gough found Plaintiff’s performance in her counseling role
27 off to a “rocky start.” It appeared to Gough that Plaintiff was mostly focused on setting up the shared,
28 small flex-space room, which could only comfortably fit two teacher desks and a 36-inch round table.
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DEFENDANTS’ MPA IN SUPPORT OF MSJ, OR ALTERNATIVELY, SUMMARY ADJUDICATION OF ISSUES
1 The space was used for all IEP meetings and had to accommodate six to eight adults, approximately 70
2 times in the school year. It was the only space at school available for such meetings, and had been used
3 in the same manner before Plaintiff’s arrival. The speech teacher and prior school counselors had
4 coordinated their schedules for needed space in the room, and the practice worked well in prior years.
5 (UMF 38.)
6 In September 2018, Plaintiff requested room dividers for privacy in the small, shared space. Her
7 request was made to the maintenance department through school secretary Jasmine Dolar. Plaintiff never
8 directly requested room dividers from Gough and never spoke to her about the matter beforehand. (UMF
9 39.) Plaintiff claims Gough “stormed into” her office and berated her for requesting the room dividers.
10 Plaintiff claims she apologized and was left feeling upset. (UMF 40.) Gough reminded her the room was
11 a flex space, dividers would not work because the room was needed for meetings. Gough explained the
12 room had always been used in that manner without any problems, and if Plaintiff coordinated her
13 schedule with the speech teacher, then privacy should not be an issue. (UMF 41.) The room also was too
14 small for dividers and could not accommodate simultaneous work with groups of students in the space, as
15 it would be too much talking and noise and bad for both groups. (UMF 42.) Gough felt that Plaintiff did
16 not seem to understand how the flex space was used. (UMF 43.)
17 Plaintiff again went to Ms. Dolar in September and requested locking file cabinets. (UMF 44.)
18 She did not inform or ask Gough for the cabinet. Gough only learned of the request when the Special Ed.
19 Dept. called Gough and advised her of the request and that she would have to pay for the cabinet out of
20 her site budget if one needed to be purchased. (UMF 45.) Gough explained to Plaintiff that if she had a
21 request for things, she needed to let Gough know. Gough explained they could not afford to buy a lot of
22 new furniture and pieces, as it would come out directly from their site budget, which did not have funds
23 for such things, and there were many alternatives they could work on to meet her requests. (UMF 46.)
24 Plaintiff believed Gough was angry and hostile in discussing her rejection of a locking file cabinet. (UMF
25 47.) Gough believed Plaintiff was spending more time setting up her office than interacting with students
26 or teachers as she should have been, and that Plaintiff was more concerned about her office then getting
27 to know the routines and workings of the school as Gough had asked her to do. (UMF 48.)
28 Also in September, notwithstanding the two prior instances, Plaintiff moved a third desk into the
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DEFENDANTS’ MPA IN SUPPORT OF MSJ, OR ALTERNATIVELY, SUMMARY ADJUDICATION OF ISSUES
1 small office space for the school psychologist if they needed to collaborate about a student. (UMF 49.)
2 Gough did not approve the additional desk in the small flex space and informed Plaintiff the psychologist
3 was not allowed to use the office because there was not enough space. (UMF 50.) Gough only learned
4 the desk was moved into the small room when the psychologist notified her that Plaintiff wanted her in
5 the same room. (UMF 51.) There was already an extra table in the room which could be used if Plaintiff
6 and the psychologist needed to meet or work together, and Gough said the additional desk would be
7 moved back out. (UMF 52.) Gough believed that Plaintiff’s continued actions in the room made it more
8 difficult to hold the IEP meetings and impeded the speech teacher’s ability to run her instructional groups
9 that involved kids getting up and moving around. (UMF 53.)
10 Gough felt exasperated upon learning about the desk being moved into the flex space, as the desk
11 was then the third incident involving use of the small space after Gough had explained how the space
12 was used and the need for space and flexibility in the room. (UMF 54.) Gough believed that Plaintiff
13 repeatedly went outside protocol and requested pieces of furniture through other departments without
14 Gough’s knowledge or approval, and Gough only discovered her actions when others alerted her that
15 requests were made for things that would need to come out of her budget. (UMF 55.)
16 Plaintiff claims that in November 2018, Gough demanded that Plaintiff rearrange her schedule at
17 another school to attend an online training for specialist teachers, including counselors. (UMF 56.)
18 Plaintiff found the training helpful. (UMF 57.) On or about November 28, 2018, Plaintiff spoke to Ms.
19 Dolar about wanting to hang a question-and-answer box for the school’s peacemaker program she was
20 running, but Gough overheard the conversation and, according to Plaintiff, said in a “gruff, impatient and
21 mean way” that the box should be put in the cabinet because another box already existed. (UMF 58.)
22 Plaintiff was overwhelmed trying to balance her ERMHS duties and her M.P. Brown counseling
23 duties. She was unhappy with her school counseling role at M.P. Brown, and felt it required more work
24 than she had time to do. In November 2018, she was concerned that adding four additional ERMHS
25 students to her caseload would require her to work overtime. (UMF 59.)
26 Gough’s role and responsibility as principal required her to maintain copies of everyone’s
27 schedule for safety reasons for her to know where students were at all times in case something happened.
28 (UMF 60.) Gough requested Plaintiff to provide a calendar to assist in coordinating room use and
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1 scheduling throughout the school. (UMF 61.) Gough’s request was not specific to Plaintiff, but Gough
2 requested schedules from all of her teachers as well. (UMF 62.) Plaintiff was free to make her own
3 schedule with students, taking into consideration classroom teachers’ input, subject areas missed and
4 parents’ awareness. (UMF 63.) Gough requested Plaintiff provide teachers a calendar with her schedule
5 and listing her social-emotional lessons in the classrooms and her whereabouts at the other schools so
6 teachers would know where she was and when she would be going to their classes. (UMF 64.) Plaintiff
7 felt the task was impossible given the nature of the counseling position because her calendar was
8 constantly changing as things arose. She provided printed copies of the requested monthly calendars to
9 all teachers with the caveat that things could be canceled if a crisis arose, and she shared her Google
10 calendar with everyone with no ongoing issues related to the calendar requirement. (Plaintiff’s Depo. 65.)
11 In December 2018, Plaintiff was at a Positive Behavior Instructional Strategies (“PBIS”) training
12 session, sitting at a table with others, discussing the check-in/check-out program for students as a team
13 job. Gough arrived and said they needed to stop calling it a team job and insisted it was Plaintiff’s job.
14 (UMF 66.) Plaintiff felt Gough’s conduct was “out of line” and she was upset by the interaction. (UMF
15 67.) After the training, Martinez advised Gough that Plaintiff was upset about the interaction. (UMF 68.)
16 Plaintiff felt Gough was not as collaborative as she would have liked to strategize different ideas
17 to help students, and she found Gough’s responses to emails lacking. (UMF 69.) She believed her
18 interactions with Gough were generally difficult, and she found Gough’s demeanor angry, gruff, curt and
19 unfriendly. (UMF 70.) She had difficulty communicating with Gough and felt Gough did not
20 communicate in a way Plaintiff considered was socially-expected. (UMF 71.) Plaintiff felt Gough did not
21 set expectations clearly or respectfully, made it difficult to have meetings, and only gave feedback when
22 she did something wrong. (UMF 72.) Plaintiff felt that Gough also ignored her calendar invites but
23 showed up for meetings, which Plaintiff found confusing. Plaintiff does not know whether these may
24 have been Gough’s standard practices with everyone. (UMF 73.) Gough’s personal practice was usually
25 not to respond to calendar invites, given the volume of invites she received. (UMF 74.) Gough never said
26 the school counseling role was unimportant, but Plaintiff believes Gough did not value it because she felt
27 Gough made it difficult for her to do her job. (UMF 75.)
28 Gough describes her relationship with Plaintiff during her employment as “okay,” but not great.
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1 (UMF 76.) Gough believes Plaintiff wanted a more interactive relationship with her, as she frequently
2 stopped into Gough’s office to talk and ask to meet. (UMF 77.) Gough wanted to set boundaries to
3 encourage all faculty and staff, including Plaintiff, to be more independent, help them develop
4 relationships with other staff, and not depend on Gough for the way they functioned at school. (UMF 78.)
5 Martinez scheduled a meeting with Gough and Plaintiff on December 17, 2018 to address the
6 PBIS incident and communication. (UMF 79.) Gough felt she needed to “clear the air” after denying
7 Plaintiff’s requests for furniture in the flex space and to get things on a better track with her because she
8 believed she and Plaintiff were not communicating well. (UMF 80.) At the meeting, Gough apologized
9 for her behavior at the training. (UMF 81.) Gough believed Plaintiff was taking things very personally,
10 which was not Gough’s intent, and Gough wanted to assure Plaintiff she wanted her to succeed in her
11 counselor role. (UMF 82.) As a result of the meeting, a plan was created to support Plaintiff in her
12 counselor role, and Gough and Plaintiff agreed to meet regularly every two weeks. This plan was
13 memorialized in a “Conference Summary.” (UMF 83.) The meetings were intended to occur every other
14 week, although meetings were sometimes canceled or rescheduled due to scheduling conflicts. (UMF
15 84.) After the meeting, Gough felt that her and Plaintiff were in a better place. (UMF 85.)
16 On January 7, 2019, Plaintiff emailed Ms. Sunie-Lopez to inquire about the possibility of
17 increasing her ERMHS hours because she loved the ERMHS counselor role and wanted to do that full
18 time, and she did not want to continue working at Gough’s school site. (UMF 86.)
19 On January 7, 2019, Valenti contacted Adams, Martinez and Gough to determine whether they
20 would be retaining their temporary and probationary employees. (UMF 87.) Gough responded on January
21 8 indicating that she had not yet decided whether Plaintiff would be returning. Gough’s email to Mr.
22 Valenti indicated that she had an improvement plan in place for Plaintiff and indicated that everyone else,
23 aside from Plaintiff and another teacher, seemed to “be right on track.” (UMF 88.)
24 On January 9, 2019, Plaintiff was in the lunchroom approximately 3 to 4 yards away from Gough
25 and a student, and she claims Gough grabbed the student by the shoulders, yelled at him, pushed him to a
26 spot two yards away where she wanted him to stand, grabbed the trays in his hand and said, “This is how
27 you do it. You’re going too slow.” Plaintiff claims the student was very upset and she was shocked by
28 what she saw. (UMF 89.) Gough recalls the student was trying to hand out lunch trays and doing a full
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1 360 turn in between trays, and she tried to get his attention to show him how to distribute trays because
2 the line was getting very long, with only 15 to 20 minutes for everyone to complete lunch. The student
3 did not hear her, and she walked over to him, placed her palms on the back of his shoulders, turned his
4 body part way around, told him which way to face and showed him how to move. (UMF 90.) It did not
5 appear to Gough that the student was upset by the interaction. (UMF 91.)
6 Plaintiff called the student into her office later that day to discuss the incident. (UMF 92.) She felt
7 the interaction between Gough and the student was verbal and physical abuse, and on January 11, 2019,
8 she called Martinez to discuss the incident. (UMF 93.) Martinez advised Plaintiff to talk to Gough. (UMF
9 94.) Plaintiff did not feel comfortable speaking with Gough about what she saw and she did not contact
10 Gough or discuss the incident with her. Plaintiff only reported the incident to Martinez and “left it in her
11 hands,” even though Martinez was not Gough’s supervisor. (UMF 95.)
12 Plaintiff claims the student’s parents emailed her the next day seeking an in person meeting.
13 (UMF 96.) Plaintiff consulted Martinez, who told her to inform Gough before meeting with the parents.
14 Plaintiff claims she called Gough on the phone and informed her she would meet with the student’s
15 parents about the lunchroom incident, and Gough yelled at her, prohibited her from meeting with the
16 parents and instructed her to tell the parents to contact Gough (UMF 97.)
17 According to Gough, Martinez informed her Plaintiff was upset by the interaction and had called
18 the student’s parents to tell them about it, and she suggested Gough check in with the student to get his
19 perspective. (UMF 98.) Gough had no idea what Martinez was talking about and Martinez had to explain
20 the situation. (UMF 99.) She advised Gough that Plaintiff had asked her opinion on whether she should
21 file a CPS report, and Martinez said she had to make that decision herself. (UMF 100.) Gough was
22 shocked to hear Plaintiff was considering filing a report because she did not believe the incident was at
23 all significant, and she was more concerned about the student coming to school feeling uncomfortable, as
24 her primary concern was the student feeling safe at school. (UMF 101.) Gough had no indication whether
25 or not Plaintiff would file a CPS report, she did not believe she did anything wrong and she was not
26 concerned Plaintiff might file a CPS report. She believed if a CPS report was filed they would just have
27 to go through the process and an investigation would reveal she did nothing wrong. (UMF 102.)
28 Gough met with the student to discuss what happened and assure him she did not want him to feel
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1 uncomfortable. She apologized for him feeling uncomfortable at school, and they discussed other
2 lunchroom positions available. The student said he was fine and did not need his parents called. (UMF
3 103.) Although Gough never met with the student’s parents, Plaintiff believes that on about January 15,
4 2019, Gough and the student’s parents spoke and worked things out. The student’s parents emailed
5 Plaintiff stating they did not need to meet with her. (UMF 104.) The student later told Plaintiff that he
6 and Gough both apologized for their mistakes and everything was fine. (UMF 105.)
7 In January 2019, Gough, Martinez and Adams discussed Plaintiff’s position and following the
8 discussions, there was a recommendation that Plaintiff not be reelected for the following school year.
9 UMF 106.) Gough recommended that given Plaintiff’s inexperience with elementary school, her
10 experience with middle school, and her ability to build a rapport and relationship with the older students
11 at school versus the students in second grade and younger, Plaintiff was a better candidate for a middle
12 school counseling position if she stayed with the District. (UMF 107.) Gough recognized the personality
13 conflicts between her and Plaintiff, and she felt it was a “bumpy school year” with Plaintiff and she
14 would be a better fit at another school rather than staying at MP Brown. (UMF 108.) Martinez found
15 Plaintiff had a willingness to grow, but her work performance in her counselor role was challenging, as
16 she appeared to have difficulty with her role even though Martinez felt she did everything she could to
17 support her. (UMF 109.) Martinez thought that Plaintiff appeared to struggle with communication,
18 understanding the work and her role, and learning the practices, techniques and curriculum. (UMF 110.)
19 It appeared to Martinez that Gough was supporting and guiding Plaintiff the same way she did with other
20 counselors, and Martinez did not see or believe Gough was treating Plaintiff differently. (UMF 111.)
21 It is not uncommon for District employees to be released during their first year of employment for
22 various reasons, including not being a good fit. (UMF 112.) On January 23, 2019, the District’s Board
23 acted authorizing the non-reelection of four temporary, three probationary and one administrative
24 certificated employees; Plaintiff was included among them. (UMF 113.) Gough was not present at the
25 board meeting and she had no discussions with any board member about Plaintiff. (UMF 114.)
26 On February 19, 2019, Plaintiff emailed all teachers at M.P. Brown after feedback from Gough
27 that some teachers complained Plaintiff was not following up with them about student progress like
28 previous counselors had done. Her email apologized to the teachers for her failure to follow-up with them
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DEFENDANTS’ MPA IN SUPPORT OF MSJ, OR ALTERNATIVELY, SUMMARY ADJUDICATION OF ISSUES
1 and stated she would work on the issues and do a better job of following up. (UMF 115.) On February
2 19, 2019, Plaintiff emailed a teacher, Pam Radkey, requesting a letter of recommendation. Plaintiff stated
3 she understood enrollment in the District was declining and the counseling department would likely
4 decrease her hours, and she thus was preparing for a job search. (UMF 116.) She believed the job
5 requisition that she was working under might not reappear the next year due to funding considerations,
6 and in any event, she did not want to continue working at M.P. Brown with Gough. (UMF 117.)
7 Gough had the sole decision on how to rank Plaintiff’s performance, and she did not consult with
8 anyone about Plaintiff’s evaluation or what to say in her performance review. (UMF 118.) At the time
9 she drafted Plaintiff’s performance review, Gough understood Plaintiff’s position would not be funded
10 the next year and she would not be re-elected for employment. (UMF 119.)
11 On March 8, 2019, Plaintiff and Gough met for evaluation of Plaintiff’s performance. Plaintiff
12 received a “relatively good evaluation,” and she was provided a copy of the written evaluation, which she
13 read and signed. (UMF 120.) Gough’s evaluation noted that Plaintiff met and exceeded all Standards in
14 the teaching profession Plaintiff had selected to focus on for the year, and her performance was generally
15 what was expected of a counselor at M.P. Brown. (UMF 121.) Gough did not give Plaintiff negative
16 feedback or identify areas for improvement, and nothing notable was discussed during the evaluation
17 because Plaintiff was a first-time counselor and Gough wanted her to have a positive evaluation as a
18 temporary employee and wanted Plaintiff to be successful and to be seen as successful. (UMF 122.)
19 The deadline to notify employees of non-reelection was March 15, and on March 14, Gough,
20 Valenti and union president Paul Hagan met with Plaintiff and notified her she would not be reelected for
21 employment the following year. (UMF 123.) Plaintiff did not ask the reason for her release, and no
22 explanation was given. (UMF 124.) She was given a letter informing her of the decision not to reelect
23 and that her release would be effective June 14, 2019, which she signed acknowledging her receipt.
24 (UMF 125.) Valenti advised Plaintiff she had the option to submit a letter of resignation to avoid having
25 the release appear on her record. (UMF 126.) That evening, Plaintiff prepared and signed a letter of
26 resignation dated March 14, 2019. (UMF 127.) Valenti later informed Plaintiff her resignation had been
27 approved by the board, effective June 14, 2019. (UMF 128.)
28 On March 21, 2019, Plaintiff met with Mr. Hagan and summarized what she felt was torment
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DEFENDANTS’ MPA IN SUPPORT OF MSJ, OR ALTERNATIVELY, SUMMARY ADJUDICATION OF ISSUES
1 over the course of the school year with Gough. She claims Hagan told her the problems with Gough were
2 ongoing for years and her situation was not unique. (UMF 129.) Plaintiff gave Hagan a copy of the
3 journal she was keeping summarizing her conflicts with Gough, but nothing further happened. (UMF
4 130.) Plaintiff claims unidentified staff members told her that new staff were routinely subject to
5 Gough’s “bullying behavior” year after year and it was not particular to Plaintiff. (UMF 131.)
6 On or about March 29, 2019, Plaintiff claims Gough was upset with her use of color copies and
7 paper supplies, and denied her access to the paper. Plaintiff was upset because she felt Gough was yelling
8 at her and denying her paper usage. (UMF 132.) Plaintiff understood that she and the teachers at M.P.
9 Brown were not allowed to make color copies. (UMF 133.)
10 Shortly after Plaintiff started as a counselor, she was assigned with the task of calling students’
11 parents about attendance issues. Thereafter, Gough was notified of several complaints from parents
12 regarding the manner in which Plaintiff presented the information to the parents. (UMF 134.) Also in the
13 beginning of the school year, Gough asked Plaintiff to observe the students in the yard to get a feel for
14 the school and culture. Following Plaintiff’s observations, and during a discussion of interactions
15 between the students, Plaintiff asked Gough if they needed to suspend certain students. (UMF 135.)
16 Gough felt that Plaintiff’s question about suspending the elementary school students due to an interaction
17 in the yard was misguided and highlighted her lack of experience with the elementary school population.
18 (UMF 136.) Plaintiff continued to serve as a counselor for the District for the remainder of the school
19 year, and Gough continued to serve as her supervisor until the last day of school. (UMF 137.)
20 3. Discrimination Claims
21 Plaintiff claims she had “a general feeling” the decision not to reelect her was discriminatory
22 based on her age because she was a new counselor, she had previously worked as an aide for 10 to 12
23 years, she is “older and [] was entering the counseling field later in life.” (UMF 138.) She admits that no
24 one at the District, including Gough, ever made any comments to her about her age. (UMF 139.) Gough
25 never considered Plaintiff’s age in any of her dealings with Plaintiff, including when sitting on the hiring
26 panel and recommending her for hire or recommending her non-reelection. Gough never mentioned
27 Plaintiff’s age to Plaintiff or anyone else. Further, Gough did not know her age, either at the time
28 she recommended her for hire or non-reelection. (UMF 140.) Plaintiff was never given a reason for her
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DEFENDANTS’ MPA IN SUPPORT OF MSJ, OR ALTERNATIVELY, SUMMARY ADJUDICATION OF ISSUES
1 termination, no one ever said there was a problem with her age, and she has no information that she was
2 released from her employment based on her age. (UMF 141.)
3 Valenti does not know the ages of other counselors or staff members, he did not know Plaintiff’s
4 age at the time of her employment and she did not stand out to Valenti as being older than most other
5 counselors in her position. (UMF 142.) Gough does not know the age of anyone hired to fill the
6 counselor position after Plaintiff. (UMF 143.) Plaintiff speculates that her advocacy for minority students
7 may have upset people, and she believes she may have been discriminated against for her advocacy. Her
8 belief is based on the fact that “most of the students at M.P. Brown were students of color,” most of the
9 students she saw for counseling were students of color and the student involved in the incident with
10 Gough that she witnessed was a student of color with immigrant parents. (UMF 144.)
11 The majority of students enrolled at M.P. Brown are minority students. Plaintiff never came to
12 Gough to advocate on behalf of any students on account of their national origin, ethnicity or race. (UMF
13 145.) While Gough understands that Plaintiff took issue with the interaction she had with a student in the
14 lunch room on January 9, 2019, the subject incident involved Gough instructing the student how to
15 properly pass out lunch trays. Gough’s interaction with the student had nothing to do with the student’s
16 race, national origin or ethnicity. (UMF 146.) Valenti was unaware of the lunchroom incident between
17 Gough and the student until after Plaintiff was notified of her non-reelection, and well after the board
18 decided not to reelect Plaintiff. (UMF 147.)
19 4. Post Plaintiff’s Employment
20 Following Plaintiff’s departure from the District, Elyse Samuels completed the interview process
21 and was hired as the school counselor at M.P. Brown for the 2019-20 school year, and she remained in
22 that position until moving away during the next school year in November 2020. (UMF 148.) Ms.
23 Samuels was the District’s first-choice candidate and had been offered the position before Plaintiff’s hire,
24 but was unable to fulfill the position because of credentialing issues. She completed the necessary
25 credentials for the counseling job to qualify for the position after Plaintiff’s departure. (UMF 149.)
26 Adams and Martinez wrote letters of recommendation for Plaintiff to help support her in her next
27 role. (UMF 150.) Plaintiff has been happily employed as a school counselor with the San Mateo-Foster
28 City School District for the last four years. (UMF 151.)
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DEFENDANTS’ MPA IN SUPPORT OF MSJ, OR ALTERNATIVELY, SUMMARY ADJUDICATION OF ISSUES
1 III. LEGAL ARGUMENT
2 A. Summary Judgment in Favor of Defendants Is Proper in This Case
3 On summary judgment, “[a] defendant meets his burden of showing that a cause of action has no
4 merit if he shows that one or more of the elements of the cause of action cannot be established, or that
5 there is a complete defense.” (Salas v. California Dept. of Transp. (2011) 198 Cal.App.4th 1058, 1067;
6 §437c(o) and (p)(2.) “[T]he defendant need not himself conclusively negate any such element---for
7 example, himself prove not X.” (Aguilar v. Atlantic Richfield (2001) 25 Cal.4th 826, 853-854.) “Once the
8 moving party meets this initial burden, the burden then shifts to the party opposing summary judgment to
9 establish, by means of competent and admissible evidence, that a triable issue of material fact still
10 remains.” (Brown v. Ransweiler (2009) 171 Cal.App.4th 516, 525.) The party opposing summary
11 judgment cannot rely on the mere allegations or denial in his pleadings. (§437c(o)(2); Aguilar, 25 Cal.4th
12 at 850-851.) “An issue of fact can only be created by a conflict of evidence. It is not created by
13 ‘speculation, conjecture, imagination or guess work.’ … [A]n issue of fact is not raised by ‘cryptic,
14 broadly phrased, and conclusory assertions’ or mere possibilities.’” (Brown, 171 Cal.App.4th at 525-
15 526.) The court must liberally construe plaintiff’s showing and resolve any doubts about the propriety of
16 a summary judgment in plaintiff’s favor, but plaintiff’s evidence remains subject to careful scrutiny.
17 (King v. United Parcel Serv. (2007) 152 Cal.App.4th 426, 433.) The Court can find a triable issue of
18 material fact “if, and only if, the evidence would allow a reasonable trier of fact to find the underlying
19 fact in favor of the party opposing the motion in accordance with the applicable standard of proof.”
20 (Aguilar, 25 Cal.4th at 850.) “[P]laintiff’s subjective beliefs in an employment…case do not create a
21 genuine issue of fact; nor do uncorroborated and self-serving declarations…And finally, plaintiff’s
22 evidence must relate to the motivation of the decision makers to prove, by nonspeculative evidence, an
23 actual causal link between prohibited motivation and termination.” (King, 152 Cal.App.4th at 433-434.)
24 B. Plaintiff’s Discrimination Claim Is Meritless
25 Employment discrimination claims are analyzed under a burden shifting test. (McDonnell
26 Douglas Corp. v. Green (1973) 411 U.S. 792.) “‘First, it is the plaintiff’s burden to prove by a
27 preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff proves the
28 prima facie case, then the burden shifts to the defendant to articulate a legitimate nondiscriminatory
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DEFENDANTS’ MPA IN SUPPORT OF MSJ, OR ALTERNATIVELY, SUMMARY ADJUDICATION OF ISSUES
1 reason for its employment decision. Third, if the defendant offers such a reason, then the plaintiff
2 must…show by a preponderance of the evidence that the legitimate reasons offered by the defendant
3 were not its true reasons, but were a pretext for discrimination.’” (Arteaga v. Brink’s Inc. (2008) 163 Cal.
4 App. 4th 327, 343, citing Texas Dept. of Cnty. Affairs v. Burdine (1981) 450 U.S. 248.)
5 1. Plaintiff’s Age Discrimination Claim Is Unsupportable
6 A plaintiff claiming age discrimination under FEHA must make a prima facie showing: (1) she is
7 over the age of 40; (2) suffered an adverse employment action; (3) was performing satisfactorily at the
8 time of the adverse action; and (4) suffered the adverse action under circumstances that give rise to an
9 inference of unlawful discrimination, (Sandell v. Taylor-Listug, Inc. (2010) 188 Cal.App.4th 297.) If the
10 plaintiff meets this burden, the employer must offer a legitimate, non-discriminatory reason for the
11 adverse employment action. If the employer’s evidence justifies the adverse actions on nondiscriminatory
12 grounds, the burden shifts back to the plaintif
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1 Michael C. Wenzel, State Bar No. 215388 Mika J. Frisk, State Bar No. 305139 2 BERTRAND, FOX, ELLIOT, OSMAN & WENZEL 2749 Hyde Street 3 San Francisco, California 94109 4 Telephone: (415) 353-0999 Facsimile: (415) 353-0990 5 Email: mwenzel@bfesf.com mfrisk@bfesf.com 6 7 Attorneys for Defendants Exempt from all Court Filing Fees JEFFERSON ELEMENTARY SCHOOL DISTRICT Pursuant to Government Code §6103 8 and ELIZABETH GOUGH 9 SUPERIOR COURT OF CALIFORNIA 10 COUNTY OF SAN MATEO 11 JENNIFER RAMBERG, Case No. 21-CIV-03136 12 Plaintiff, DEFENDANTS JEFFERSON ELEMENTARY 13 SCHOOL DISTRICT AND ELIZABETH v. GOUGH’S MEMORANDUM OF POINTS AND 14 AUTHORITIES IN SUPPORT OF MOTION FOR 15 JEFFERSON ELEMENTARY SCHOOL SUMMARY JUDGMENT, OR DISTRICT, a public entity; ELIZABETH ALTERNATIVELY, SUMMARY 16 GOUGH and DOES 1 through 100, inclusive, ADJUDICATION OF ISSUES 17 Defendants, Date: June 13, 2024 18 Time: 2:00 p.m. Location: Department 3 19 Courtroom 2B 20 21 Hon. Susan L. Greenberg 22 23 24 25 26 27 28 0 DEFENDANTS’ MPA IN SUPPORT OF MSJ/SUMMARY ADJUDICATION OF ISSUES 1 TABLE OF CONTENTS 2 I. INTRODUCTION AND SUMMARY OF ARGUMENT ..........................................................1 3 II. STATEMENT OF FACTS ............................................................................................................1 4 1. Background ..............................................................................................................1 5 2. Plaintiff’s Performance At M.P. Brown ..................................................................3 6 3. Discrimination Claims ...........................................................................................11 7 4. Post Plaintiff’s Employment ..................................................................................12 8 III. LEGAL ARGUMENT ...................................................................................................................13 9 A. Summary Judgment in Favor of Defendants Is Proper in This Case .................................13 10 B. Plaintiff’s Discrimination Claim Is Meritless ....................................................................13 11 1. Plaintiff’s Age Discrimination Claim Is Unsupportable........................................14 12 2. Plaintiff’s Claim for Discrimination Based on Advocacy is Meritless..................16 13 C. Plaintiff’s FEHA Harassment Claim Is Meritless ..............................................................17 14 D. Plaintiff’s Retaliation Claim Under Govt. Code 12940(h) Is Meritless ............................18 15 E. Plaintiff’s Claims For Failure to Prevent Discrimination and Harassment are Meritless .............................................................................................................................19 16 F. Plaintiff’s Retaliation Claim Under Labor Code §1102.5 Is Meritless .............................20 17 IV. CONCLUSION ..............................................................................................................................20 18 19 20 21 22 23 24 25 26 27 28 1 DEFENDANTS’ MPA IN SUPPORT OF MSJ, OR ALTERNATIVELY, SUMMARY ADJUDICATION OF ISSUES 1 TABLE OF AUTHORITIES 2 Cases 3 Aguilar v. Atlantic Richfield (2001) 25 Cal.4th 826 ........................................................................................................................ 13 4 Bradley v. Harcourt, Brace and Co. 5 (9th Cir.1996) 104 F.3d 267 .............................................................................................................. 16 6 Brown v. Ransweiler (2009) 171 Cal.App.4th 516 .............................................................................................................. 13 7 Brundage v. Hahn 8 57 Cal. App. 4th 228 (1997) .............................................................................................................. 14 9 Cozzi v. Cty. of Marin 787 F. Supp. 2d 1047, 1065 (N.D. Cal. 2011) ................................................................................... 17 10 Glynn v. Superior Court 11 (2019) 42 Cal.App.5th 47 .................................................................................................................. 20 12 Horn v. Cushman & Wakefield (1999) 72 Cal.App.4th 798 ................................................................................................................ 16 13 Janken v. GM Hughes Elec. 14 (1996) 46 Cal.App.4th 55 ................................................................................................................... 18 15 King v. United Parcel Service (2007) 152 Cal.App.4th 426 .............................................................................................................. 13 16 Lawson v. PPG Architectural Finishes, Inc. 17 (2022) 12 Cal.5th 703 ....................................................................................................................... 21 18 Lyle v. Warner Bros. Television Productions (2006) 38 Cal.4th 264 ......................................................................................................................... 18 19 McDonnell Douglas Corp. v. Green 20 411 U.S. 792 (1973) ........................................................................................................................... 14 21 Proud v. Stone (4th Cir.1991) 945 F.2d 796 .............................................................................................................. 16 22 Ramirez v. Dependable Hwy. Express., Inc. 23 (2016) 2 Cal.App.5th 1028 ................................................................................................................ 20 24 Reeves v. Safeway Stores, Inc. (2004) 121 Cal.App.4th 95 ................................................................................................................ 20 25 Salas v. California Dept. of Transp. 26 (2011) 198 Cal.App.4th 1058 ............................................................................................................ 13 27 Sandell v. Taylor-Listug, Inc. (2010) 188 Cal.App.4th 297 .............................................................................................................. 14 28 2 DEFENDANTS’ MPA IN SUPPORT OF MSJ/SUMMARY ADJUDICATION OF ISSUES 1 Soldinger v. Northwest Airlines, Inc. (1996) 1 Cal.App.4th 345 .................................................................................................................. 19 2 Trujillo v. North Cnty. Transit Dist. 3 (1998) 63 Cal.App.4th 280 ................................................................................................................ 21 4 Statutes 5 California Code of Civil Procedure §437(p)(2) ....................................................................................... 13 6 California Code of Civil Procedure §437c(o) .......................................................................................... 13 7 California Government Code §12940, et seq. ............................................................................................ 4 8 California Code of Civil Procedure §437c(o)(2) ..................................................................................... 13 9 Government Code Section 12940(k) .......................................................................................................19 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 DEFENDANTS’ MPA IN SUPPORT OF MSJ, OR ALTERNATIVELY, SUMMARY ADJUDICATION OF ISSUES 1 I. INTRODUCTION AND SUMMARY OF ARGUMENT 2 Plaintiff Jennifer Ramberg (“Plaintiff”) brings this action against the Jefferson Elementary School 3 District (“District”) and Beth Gough (“Gough”) (collectively “Defendants”) for discrimination, 4 harassment and retaliation under Cal. Govt. Code §12940, et seq. (“FEHA”) and retaliation under the 5 Labor Code arising out of her one-year temporary employment as a school counselor with the District. 6 There is no evidence of any animus, bias, discrimination, or retaliation against her based on Plaintiff’s 7 age and/or association with and advocacy for minority students, or for engaging in any protected activity. 8 The evidence establishes that each employment action was based on legitimate, non-discriminatory and 9 non-retaliatory reasons, including the decision to release Plaintiff from her employment. Her speculation 10 and conjecture that acts were motivated by her age or advocacy for students of color, or retaliatory, are 11 baseless and inadequate. Summary judgment, or alternatively, summary adjudication, should be granted. 12 II. STATEMENT OF FACTS 13 1. Background 14 Plaintiff was employed with the District as a temporary employee in the role of counselor for the 15 2018-2019 school year, from August 2018 through June 2019. (Defendants’ Separate Statement of 16 Undisputed Material Facts (“UMF”) 1.) Plaintiff was 56 years old during her employment with the 17 District. (UMF 2.) Defendant Gough has been the principal at M.P. Brown since 2015. Gough was 52 18 years old when Plaintiff started her employment with the District. (UMF 3.) Gough is responsible for 19 taking care of the entire school, including all students, staff, facilities and anything related to running the 20 school. (UMF 4.) All employees regularly assigned to work at M.P. Brown report to Gough. (UMF 5.) 21 Stephanie Martinez (“Martinez”) has been the District’s Program Director of Student Services 22 since 2015. (UMF 6.) She oversees all District school counselors and provides professional development 23 and helps implement counseling services. A school counselor’s direct supervisor is the principal of the 24 school site where they are assigned. (UMF 7.) James Adams, Psy.D. (“Adams”) has been the Director of 25 Special Education for the District since 2013. Adams oversees all special education programming, 26 planning and budgeting. (UMF 8.) Educationally related mental health services (“ERMHS”) is a service 27 provided through special ed services as part of a qualified counselor’s responsibilities to meet students’ 28 Independent Education Plans (IEP). ERMHS is not a dedicated position in the District. (UMF 9.) 1 DEFENDANTS’ MPA IN SUPPORT OF MSJ/SUMMARY ADJUDICATION OF ISSUES 1 Brent Marquez-Valenti (“Valenti”) has been the District’s Assistant Superintendent of Human 2 Resources since 2015. (UMF 10.) Valenti’s duties include supervising the human resources department 3 and school principals. (UMF 11.) Valenti is also involved in posting counselor positions and overseeing 4 interview and hiring protocols, but is not involved in the interview or hiring process for school 5 counselors, which is usually handled by Martinez and site administrators like school principals. (UMF 6 12.) Valenti does not directly supervise counselors. He relies on site administrators and supervisors of 7 temporary or probationary employees to evaluate employees and recommend retention, which he then 8 brings to the board, and subsequently notifies employees about board decisions. (UMF 13.) 9 The M.P. Brown school counselor’s duties include providing social-emotional classroom lessons 10 to all students using a specific curriculum, social media and technology lessons for 4th and 5th grades, 11 conflict resolution, restorative justice and community circle moments, small group work and individual 12 counseling. (UMF 14.) The counselor position is fairly autonomous, and Gough and Martinez’s role is 13 limited to ensuring the curriculum is being taught and teachers’ needs are being met. (UMF 15.) 14 On about April 20, 2018, the District posted the opening for the school counselor job at M.P. 15 Brown for the 2018-19 year. (UMF 16.) The position was a temporary position funded from two budgets; 16 Adams’ Special Education Department funding .4 of the position, and Martinez’s Student Services 17 Department budget funding .6 of the position. (UMF 17.) No qualified candidates were found, and the 18 job was again posted on May 24, 2018. (UMF 18.) Following the second posting and interview process, 19 an offer was extended to Elyse Casey Samuels, however, credentialing issues prevented her employment 20 in the counseling position. (UMF 19.) The job was then posted a third time on August 20, 2018. (UMF 21 20.) Plaintiff was working as an art instructor at a summer camp in Maine when she applied for the 22 position. (UMF 21.) Plaintiff had never previously worked as a school counselor. (UMF 22.) 23 In the school counselor interview process, interviewers must unanimously agree to hire the 24 individual before an employment offer is made. (UMF 23.) Gough, Adams and Martinez interviewed 25 Plaintiff and unanimously agreed to hire her for both the .6 and .4 positions. (UMF 24.) Plaintiff was 26 hired as a temporary employee on August 27, 2018, shortly after the school year began, and she 27 understood that her services were of a temporary nature in accordance with the Education Code. (UMF 28 25.) Her temporary employee contract stated the District would monitor its staffing and reclassification 2 DEFENDANTS’ MPA IN SUPPORT OF MSJ, OR ALTERNATIVELY, SUMMARY ADJUDICATION OF ISSUES 1 of employees from temporary to probationary status “when appropriate.” (UMF 26.) Temporary 2 employees may be released at any time through the first year, although the District’s practice has been to 3 give notice of non-reelection by March 15 and to allow the employees to work the remainder of their 4 contract. (UMF 27.) Board approval is not required to release temporary employees, but the District’s 5 practice is to bring the non-reelection to the board in closed session for approval. (UMF 28.) Counselors 6 hired as first-year employees are always hired as temporary employees, and temporary employees remain 7 in that classification throughout their first year. (UMF 29.) 8 Plaintiff’s position was split between School Counselor with .6 time at M.P. Brown, and ERMHS 9 counselor with Special Education at .4 time at several other schools providing counseling for special 10 needs students who qualified through the special education department. (UMF 30.) Gough was Plaintiff’s 11 ultimate supervisor during Plaintiff’s employment with the District because most of Plaintiff’s time was 12 spent at M.P. Brown and Gough conducted Plaintiff’s review. (UMF 31.) 13 Given the timing of Plaintiff’s hire, she was not present for some training and activities. The 14 agenda and protocol were shared with her, and Gough met with her to bring her up to speed on 15 information and trainings that occurred before her hire. She was assigned to attend specific trainings and 16 connected with counselors at other schools. She was encouraged not to worry about teaching lessons, but 17 to get in and visit classrooms and absorb and learn the culture, people and connections at the school. 18 (UMF 32.) Martinez provided training for the school counselor role and support throughout the year, 19 including professional development and monthly meetings involving additional training on wellness, 20 counseling and mental health. (UMF 33.) Plaintiff also received training on her ERMHS counseling 21 services position at other schools from Gina Sunie-Lopez. (UMF 34.) Plaintiff was the only counselor at 22 M.P. Brown, and she worked with all students of every grade level in the school. (UMF 35.) 23 2. Plaintiff’s Performance At M.P. Brown 24 While at M.P. Brown, Plaintiff shared a small office space with the speech pathologist. (UMF 25 36.) M.P. Brown was maxed out for enrollment in 2018-19, every space and classroom was being used, 26 and there was little extra room. (UMF 37.) Gough found Plaintiff’s performance in her counseling role 27 off to a “rocky start.” It appeared to Gough that Plaintiff was mostly focused on setting up the shared, 28 small flex-space room, which could only comfortably fit two teacher desks and a 36-inch round table. 3 DEFENDANTS’ MPA IN SUPPORT OF MSJ, OR ALTERNATIVELY, SUMMARY ADJUDICATION OF ISSUES 1 The space was used for all IEP meetings and had to accommodate six to eight adults, approximately 70 2 times in the school year. It was the only space at school available for such meetings, and had been used 3 in the same manner before Plaintiff’s arrival. The speech teacher and prior school counselors had 4 coordinated their schedules for needed space in the room, and the practice worked well in prior years. 5 (UMF 38.) 6 In September 2018, Plaintiff requested room dividers for privacy in the small, shared space. Her 7 request was made to the maintenance department through school secretary Jasmine Dolar. Plaintiff never 8 directly requested room dividers from Gough and never spoke to her about the matter beforehand. (UMF 9 39.) Plaintiff claims Gough “stormed into” her office and berated her for requesting the room dividers. 10 Plaintiff claims she apologized and was left feeling upset. (UMF 40.) Gough reminded her the room was 11 a flex space, dividers would not work because the room was needed for meetings. Gough explained the 12 room had always been used in that manner without any problems, and if Plaintiff coordinated her 13 schedule with the speech teacher, then privacy should not be an issue. (UMF 41.) The room also was too 14 small for dividers and could not accommodate simultaneous work with groups of students in the space, as 15 it would be too much talking and noise and bad for both groups. (UMF 42.) Gough felt that Plaintiff did 16 not seem to understand how the flex space was used. (UMF 43.) 17 Plaintiff again went to Ms. Dolar in September and requested locking file cabinets. (UMF 44.) 18 She did not inform or ask Gough for the cabinet. Gough only learned of the request when the Special Ed. 19 Dept. called Gough and advised her of the request and that she would have to pay for the cabinet out of 20 her site budget if one needed to be purchased. (UMF 45.) Gough explained to Plaintiff that if she had a 21 request for things, she needed to let Gough know. Gough explained they could not afford to buy a lot of 22 new furniture and pieces, as it would come out directly from their site budget, which did not have funds 23 for such things, and there were many alternatives they could work on to meet her requests. (UMF 46.) 24 Plaintiff believed Gough was angry and hostile in discussing her rejection of a locking file cabinet. (UMF 25 47.) Gough believed Plaintiff was spending more time setting up her office than interacting with students 26 or teachers as she should have been, and that Plaintiff was more concerned about her office then getting 27 to know the routines and workings of the school as Gough had asked her to do. (UMF 48.) 28 Also in September, notwithstanding the two prior instances, Plaintiff moved a third desk into the 4 DEFENDANTS’ MPA IN SUPPORT OF MSJ, OR ALTERNATIVELY, SUMMARY ADJUDICATION OF ISSUES 1 small office space for the school psychologist if they needed to collaborate about a student. (UMF 49.) 2 Gough did not approve the additional desk in the small flex space and informed Plaintiff the psychologist 3 was not allowed to use the office because there was not enough space. (UMF 50.) Gough only learned 4 the desk was moved into the small room when the psychologist notified her that Plaintiff wanted her in 5 the same room. (UMF 51.) There was already an extra table in the room which could be used if Plaintiff 6 and the psychologist needed to meet or work together, and Gough said the additional desk would be 7 moved back out. (UMF 52.) Gough believed that Plaintiff’s continued actions in the room made it more 8 difficult to hold the IEP meetings and impeded the speech teacher’s ability to run her instructional groups 9 that involved kids getting up and moving around. (UMF 53.) 10 Gough felt exasperated upon learning about the desk being moved into the flex space, as the desk 11 was then the third incident involving use of the small space after Gough had explained how the space 12 was used and the need for space and flexibility in the room. (UMF 54.) Gough believed that Plaintiff 13 repeatedly went outside protocol and requested pieces of furniture through other departments without 14 Gough’s knowledge or approval, and Gough only discovered her actions when others alerted her that 15 requests were made for things that would need to come out of her budget. (UMF 55.) 16 Plaintiff claims that in November 2018, Gough demanded that Plaintiff rearrange her schedule at 17 another school to attend an online training for specialist teachers, including counselors. (UMF 56.) 18 Plaintiff found the training helpful. (UMF 57.) On or about November 28, 2018, Plaintiff spoke to Ms. 19 Dolar about wanting to hang a question-and-answer box for the school’s peacemaker program she was 20 running, but Gough overheard the conversation and, according to Plaintiff, said in a “gruff, impatient and 21 mean way” that the box should be put in the cabinet because another box already existed. (UMF 58.) 22 Plaintiff was overwhelmed trying to balance her ERMHS duties and her M.P. Brown counseling 23 duties. She was unhappy with her school counseling role at M.P. Brown, and felt it required more work 24 than she had time to do. In November 2018, she was concerned that adding four additional ERMHS 25 students to her caseload would require her to work overtime. (UMF 59.) 26 Gough’s role and responsibility as principal required her to maintain copies of everyone’s 27 schedule for safety reasons for her to know where students were at all times in case something happened. 28 (UMF 60.) Gough requested Plaintiff to provide a calendar to assist in coordinating room use and 5 DEFENDANTS’ MPA IN SUPPORT OF MSJ, OR ALTERNATIVELY, SUMMARY ADJUDICATION OF ISSUES 1 scheduling throughout the school. (UMF 61.) Gough’s request was not specific to Plaintiff, but Gough 2 requested schedules from all of her teachers as well. (UMF 62.) Plaintiff was free to make her own 3 schedule with students, taking into consideration classroom teachers’ input, subject areas missed and 4 parents’ awareness. (UMF 63.) Gough requested Plaintiff provide teachers a calendar with her schedule 5 and listing her social-emotional lessons in the classrooms and her whereabouts at the other schools so 6 teachers would know where she was and when she would be going to their classes. (UMF 64.) Plaintiff 7 felt the task was impossible given the nature of the counseling position because her calendar was 8 constantly changing as things arose. She provided printed copies of the requested monthly calendars to 9 all teachers with the caveat that things could be canceled if a crisis arose, and she shared her Google 10 calendar with everyone with no ongoing issues related to the calendar requirement. (Plaintiff’s Depo. 65.) 11 In December 2018, Plaintiff was at a Positive Behavior Instructional Strategies (“PBIS”) training 12 session, sitting at a table with others, discussing the check-in/check-out program for students as a team 13 job. Gough arrived and said they needed to stop calling it a team job and insisted it was Plaintiff’s job. 14 (UMF 66.) Plaintiff felt Gough’s conduct was “out of line” and she was upset by the interaction. (UMF 15 67.) After the training, Martinez advised Gough that Plaintiff was upset about the interaction. (UMF 68.) 16 Plaintiff felt Gough was not as collaborative as she would have liked to strategize different ideas 17 to help students, and she found Gough’s responses to emails lacking. (UMF 69.) She believed her 18 interactions with Gough were generally difficult, and she found Gough’s demeanor angry, gruff, curt and 19 unfriendly. (UMF 70.) She had difficulty communicating with Gough and felt Gough did not 20 communicate in a way Plaintiff considered was socially-expected. (UMF 71.) Plaintiff felt Gough did not 21 set expectations clearly or respectfully, made it difficult to have meetings, and only gave feedback when 22 she did something wrong. (UMF 72.) Plaintiff felt that Gough also ignored her calendar invites but 23 showed up for meetings, which Plaintiff found confusing. Plaintiff does not know whether these may 24 have been Gough’s standard practices with everyone. (UMF 73.) Gough’s personal practice was usually 25 not to respond to calendar invites, given the volume of invites she received. (UMF 74.) Gough never said 26 the school counseling role was unimportant, but Plaintiff believes Gough did not value it because she felt 27 Gough made it difficult for her to do her job. (UMF 75.) 28 Gough describes her relationship with Plaintiff during her employment as “okay,” but not great. 6 DEFENDANTS’ MPA IN SUPPORT OF MSJ, OR ALTERNATIVELY, SUMMARY ADJUDICATION OF ISSUES 1 (UMF 76.) Gough believes Plaintiff wanted a more interactive relationship with her, as she frequently 2 stopped into Gough’s office to talk and ask to meet. (UMF 77.) Gough wanted to set boundaries to 3 encourage all faculty and staff, including Plaintiff, to be more independent, help them develop 4 relationships with other staff, and not depend on Gough for the way they functioned at school. (UMF 78.) 5 Martinez scheduled a meeting with Gough and Plaintiff on December 17, 2018 to address the 6 PBIS incident and communication. (UMF 79.) Gough felt she needed to “clear the air” after denying 7 Plaintiff’s requests for furniture in the flex space and to get things on a better track with her because she 8 believed she and Plaintiff were not communicating well. (UMF 80.) At the meeting, Gough apologized 9 for her behavior at the training. (UMF 81.) Gough believed Plaintiff was taking things very personally, 10 which was not Gough’s intent, and Gough wanted to assure Plaintiff she wanted her to succeed in her 11 counselor role. (UMF 82.) As a result of the meeting, a plan was created to support Plaintiff in her 12 counselor role, and Gough and Plaintiff agreed to meet regularly every two weeks. This plan was 13 memorialized in a “Conference Summary.” (UMF 83.) The meetings were intended to occur every other 14 week, although meetings were sometimes canceled or rescheduled due to scheduling conflicts. (UMF 15 84.) After the meeting, Gough felt that her and Plaintiff were in a better place. (UMF 85.) 16 On January 7, 2019, Plaintiff emailed Ms. Sunie-Lopez to inquire about the possibility of 17 increasing her ERMHS hours because she loved the ERMHS counselor role and wanted to do that full 18 time, and she did not want to continue working at Gough’s school site. (UMF 86.) 19 On January 7, 2019, Valenti contacted Adams, Martinez and Gough to determine whether they 20 would be retaining their temporary and probationary employees. (UMF 87.) Gough responded on January 21 8 indicating that she had not yet decided whether Plaintiff would be returning. Gough’s email to Mr. 22 Valenti indicated that she had an improvement plan in place for Plaintiff and indicated that everyone else, 23 aside from Plaintiff and another teacher, seemed to “be right on track.” (UMF 88.) 24 On January 9, 2019, Plaintiff was in the lunchroom approximately 3 to 4 yards away from Gough 25 and a student, and she claims Gough grabbed the student by the shoulders, yelled at him, pushed him to a 26 spot two yards away where she wanted him to stand, grabbed the trays in his hand and said, “This is how 27 you do it. You’re going too slow.” Plaintiff claims the student was very upset and she was shocked by 28 what she saw. (UMF 89.) Gough recalls the student was trying to hand out lunch trays and doing a full 7 DEFENDANTS’ MPA IN SUPPORT OF MSJ, OR ALTERNATIVELY, SUMMARY ADJUDICATION OF ISSUES 1 360 turn in between trays, and she tried to get his attention to show him how to distribute trays because 2 the line was getting very long, with only 15 to 20 minutes for everyone to complete lunch. The student 3 did not hear her, and she walked over to him, placed her palms on the back of his shoulders, turned his 4 body part way around, told him which way to face and showed him how to move. (UMF 90.) It did not 5 appear to Gough that the student was upset by the interaction. (UMF 91.) 6 Plaintiff called the student into her office later that day to discuss the incident. (UMF 92.) She felt 7 the interaction between Gough and the student was verbal and physical abuse, and on January 11, 2019, 8 she called Martinez to discuss the incident. (UMF 93.) Martinez advised Plaintiff to talk to Gough. (UMF 9 94.) Plaintiff did not feel comfortable speaking with Gough about what she saw and she did not contact 10 Gough or discuss the incident with her. Plaintiff only reported the incident to Martinez and “left it in her 11 hands,” even though Martinez was not Gough’s supervisor. (UMF 95.) 12 Plaintiff claims the student’s parents emailed her the next day seeking an in person meeting. 13 (UMF 96.) Plaintiff consulted Martinez, who told her to inform Gough before meeting with the parents. 14 Plaintiff claims she called Gough on the phone and informed her she would meet with the student’s 15 parents about the lunchroom incident, and Gough yelled at her, prohibited her from meeting with the 16 parents and instructed her to tell the parents to contact Gough (UMF 97.) 17 According to Gough, Martinez informed her Plaintiff was upset by the interaction and had called 18 the student’s parents to tell them about it, and she suggested Gough check in with the student to get his 19 perspective. (UMF 98.) Gough had no idea what Martinez was talking about and Martinez had to explain 20 the situation. (UMF 99.) She advised Gough that Plaintiff had asked her opinion on whether she should 21 file a CPS report, and Martinez said she had to make that decision herself. (UMF 100.) Gough was 22 shocked to hear Plaintiff was considering filing a report because she did not believe the incident was at 23 all significant, and she was more concerned about the student coming to school feeling uncomfortable, as 24 her primary concern was the student feeling safe at school. (UMF 101.) Gough had no indication whether 25 or not Plaintiff would file a CPS report, she did not believe she did anything wrong and she was not 26 concerned Plaintiff might file a CPS report. She believed if a CPS report was filed they would just have 27 to go through the process and an investigation would reveal she did nothing wrong. (UMF 102.) 28 Gough met with the student to discuss what happened and assure him she did not want him to feel 8 DEFENDANTS’ MPA IN SUPPORT OF MSJ, OR ALTERNATIVELY, SUMMARY ADJUDICATION OF ISSUES 1 uncomfortable. She apologized for him feeling uncomfortable at school, and they discussed other 2 lunchroom positions available. The student said he was fine and did not need his parents called. (UMF 3 103.) Although Gough never met with the student’s parents, Plaintiff believes that on about January 15, 4 2019, Gough and the student’s parents spoke and worked things out. The student’s parents emailed 5 Plaintiff stating they did not need to meet with her. (UMF 104.) The student later told Plaintiff that he 6 and Gough both apologized for their mistakes and everything was fine. (UMF 105.) 7 In January 2019, Gough, Martinez and Adams discussed Plaintiff’s position and following the 8 discussions, there was a recommendation that Plaintiff not be reelected for the following school year. 9 UMF 106.) Gough recommended that given Plaintiff’s inexperience with elementary school, her 10 experience with middle school, and her ability to build a rapport and relationship with the older students 11 at school versus the students in second grade and younger, Plaintiff was a better candidate for a middle 12 school counseling position if she stayed with the District. (UMF 107.) Gough recognized the personality 13 conflicts between her and Plaintiff, and she felt it was a “bumpy school year” with Plaintiff and she 14 would be a better fit at another school rather than staying at MP Brown. (UMF 108.) Martinez found 15 Plaintiff had a willingness to grow, but her work performance in her counselor role was challenging, as 16 she appeared to have difficulty with her role even though Martinez felt she did everything she could to 17 support her. (UMF 109.) Martinez thought that Plaintiff appeared to struggle with communication, 18 understanding the work and her role, and learning the practices, techniques and curriculum. (UMF 110.) 19 It appeared to Martinez that Gough was supporting and guiding Plaintiff the same way she did with other 20 counselors, and Martinez did not see or believe Gough was treating Plaintiff differently. (UMF 111.) 21 It is not uncommon for District employees to be released during their first year of employment for 22 various reasons, including not being a good fit. (UMF 112.) On January 23, 2019, the District’s Board 23 acted authorizing the non-reelection of four temporary, three probationary and one administrative 24 certificated employees; Plaintiff was included among them. (UMF 113.) Gough was not present at the 25 board meeting and she had no discussions with any board member about Plaintiff. (UMF 114.) 26 On February 19, 2019, Plaintiff emailed all teachers at M.P. Brown after feedback from Gough 27 that some teachers complained Plaintiff was not following up with them about student progress like 28 previous counselors had done. Her email apologized to the teachers for her failure to follow-up with them 9 DEFENDANTS’ MPA IN SUPPORT OF MSJ, OR ALTERNATIVELY, SUMMARY ADJUDICATION OF ISSUES 1 and stated she would work on the issues and do a better job of following up. (UMF 115.) On February 2 19, 2019, Plaintiff emailed a teacher, Pam Radkey, requesting a letter of recommendation. Plaintiff stated 3 she understood enrollment in the District was declining and the counseling department would likely 4 decrease her hours, and she thus was preparing for a job search. (UMF 116.) She believed the job 5 requisition that she was working under might not reappear the next year due to funding considerations, 6 and in any event, she did not want to continue working at M.P. Brown with Gough. (UMF 117.) 7 Gough had the sole decision on how to rank Plaintiff’s performance, and she did not consult with 8 anyone about Plaintiff’s evaluation or what to say in her performance review. (UMF 118.) At the time 9 she drafted Plaintiff’s performance review, Gough understood Plaintiff’s position would not be funded 10 the next year and she would not be re-elected for employment. (UMF 119.) 11 On March 8, 2019, Plaintiff and Gough met for evaluation of Plaintiff’s performance. Plaintiff 12 received a “relatively good evaluation,” and she was provided a copy of the written evaluation, which she 13 read and signed. (UMF 120.) Gough’s evaluation noted that Plaintiff met and exceeded all Standards in 14 the teaching profession Plaintiff had selected to focus on for the year, and her performance was generally 15 what was expected of a counselor at M.P. Brown. (UMF 121.) Gough did not give Plaintiff negative 16 feedback or identify areas for improvement, and nothing notable was discussed during the evaluation 17 because Plaintiff was a first-time counselor and Gough wanted her to have a positive evaluation as a 18 temporary employee and wanted Plaintiff to be successful and to be seen as successful. (UMF 122.) 19 The deadline to notify employees of non-reelection was March 15, and on March 14, Gough, 20 Valenti and union president Paul Hagan met with Plaintiff and notified her she would not be reelected for 21 employment the following year. (UMF 123.) Plaintiff did not ask the reason for her release, and no 22 explanation was given. (UMF 124.) She was given a letter informing her of the decision not to reelect 23 and that her release would be effective June 14, 2019, which she signed acknowledging her receipt. 24 (UMF 125.) Valenti advised Plaintiff she had the option to submit a letter of resignation to avoid having 25 the release appear on her record. (UMF 126.) That evening, Plaintiff prepared and signed a letter of 26 resignation dated March 14, 2019. (UMF 127.) Valenti later informed Plaintiff her resignation had been 27 approved by the board, effective June 14, 2019. (UMF 128.) 28 On March 21, 2019, Plaintiff met with Mr. Hagan and summarized what she felt was torment 10 DEFENDANTS’ MPA IN SUPPORT OF MSJ, OR ALTERNATIVELY, SUMMARY ADJUDICATION OF ISSUES 1 over the course of the school year with Gough. She claims Hagan told her the problems with Gough were 2 ongoing for years and her situation was not unique. (UMF 129.) Plaintiff gave Hagan a copy of the 3 journal she was keeping summarizing her conflicts with Gough, but nothing further happened. (UMF 4 130.) Plaintiff claims unidentified staff members told her that new staff were routinely subject to 5 Gough’s “bullying behavior” year after year and it was not particular to Plaintiff. (UMF 131.) 6 On or about March 29, 2019, Plaintiff claims Gough was upset with her use of color copies and 7 paper supplies, and denied her access to the paper. Plaintiff was upset because she felt Gough was yelling 8 at her and denying her paper usage. (UMF 132.) Plaintiff understood that she and the teachers at M.P. 9 Brown were not allowed to make color copies. (UMF 133.) 10 Shortly after Plaintiff started as a counselor, she was assigned with the task of calling students’ 11 parents about attendance issues. Thereafter, Gough was notified of several complaints from parents 12 regarding the manner in which Plaintiff presented the information to the parents. (UMF 134.) Also in the 13 beginning of the school year, Gough asked Plaintiff to observe the students in the yard to get a feel for 14 the school and culture. Following Plaintiff’s observations, and during a discussion of interactions 15 between the students, Plaintiff asked Gough if they needed to suspend certain students. (UMF 135.) 16 Gough felt that Plaintiff’s question about suspending the elementary school students due to an interaction 17 in the yard was misguided and highlighted her lack of experience with the elementary school population. 18 (UMF 136.) Plaintiff continued to serve as a counselor for the District for the remainder of the school 19 year, and Gough continued to serve as her supervisor until the last day of school. (UMF 137.) 20 3. Discrimination Claims 21 Plaintiff claims she had “a general feeling” the decision not to reelect her was discriminatory 22 based on her age because she was a new counselor, she had previously worked as an aide for 10 to 12 23 years, she is “older and [] was entering the counseling field later in life.” (UMF 138.) She admits that no 24 one at the District, including Gough, ever made any comments to her about her age. (UMF 139.) Gough 25 never considered Plaintiff’s age in any of her dealings with Plaintiff, including when sitting on the hiring 26 panel and recommending her for hire or recommending her non-reelection. Gough never mentioned 27 Plaintiff’s age to Plaintiff or anyone else. Further, Gough did not know her age, either at the time 28 she recommended her for hire or non-reelection. (UMF 140.) Plaintiff was never given a reason for her 11 DEFENDANTS’ MPA IN SUPPORT OF MSJ, OR ALTERNATIVELY, SUMMARY ADJUDICATION OF ISSUES 1 termination, no one ever said there was a problem with her age, and she has no information that she was 2 released from her employment based on her age. (UMF 141.) 3 Valenti does not know the ages of other counselors or staff members, he did not know Plaintiff’s 4 age at the time of her employment and she did not stand out to Valenti as being older than most other 5 counselors in her position. (UMF 142.) Gough does not know the age of anyone hired to fill the 6 counselor position after Plaintiff. (UMF 143.) Plaintiff speculates that her advocacy for minority students 7 may have upset people, and she believes she may have been discriminated against for her advocacy. Her 8 belief is based on the fact that “most of the students at M.P. Brown were students of color,” most of the 9 students she saw for counseling were students of color and the student involved in the incident with 10 Gough that she witnessed was a student of color with immigrant parents. (UMF 144.) 11 The majority of students enrolled at M.P. Brown are minority students. Plaintiff never came to 12 Gough to advocate on behalf of any students on account of their national origin, ethnicity or race. (UMF 13 145.) While Gough understands that Plaintiff took issue with the interaction she had with a student in the 14 lunch room on January 9, 2019, the subject incident involved Gough instructing the student how to 15 properly pass out lunch trays. Gough’s interaction with the student had nothing to do with the student’s 16 race, national origin or ethnicity. (UMF 146.) Valenti was unaware of the lunchroom incident between 17 Gough and the student until after Plaintiff was notified of her non-reelection, and well after the board 18 decided not to reelect Plaintiff. (UMF 147.) 19 4. Post Plaintiff’s Employment 20 Following Plaintiff’s departure from the District, Elyse Samuels completed the interview process 21 and was hired as the school counselor at M.P. Brown for the 2019-20 school year, and she remained in 22 that position until moving away during the next school year in November 2020. (UMF 148.) Ms. 23 Samuels was the District’s first-choice candidate and had been offered the position before Plaintiff’s hire, 24 but was unable to fulfill the position because of credentialing issues. She completed the necessary 25 credentials for the counseling job to qualify for the position after Plaintiff’s departure. (UMF 149.) 26 Adams and Martinez wrote letters of recommendation for Plaintiff to help support her in her next 27 role. (UMF 150.) Plaintiff has been happily employed as a school counselor with the San Mateo-Foster 28 City School District for the last four years. (UMF 151.) 12 DEFENDANTS’ MPA IN SUPPORT OF MSJ, OR ALTERNATIVELY, SUMMARY ADJUDICATION OF ISSUES 1 III. LEGAL ARGUMENT 2 A. Summary Judgment in Favor of Defendants Is Proper in This Case 3 On summary judgment, “[a] defendant meets his burden of showing that a cause of action has no 4 merit if he shows that one or more of the elements of the cause of action cannot be established, or that 5 there is a complete defense.” (Salas v. California Dept. of Transp. (2011) 198 Cal.App.4th 1058, 1067; 6 §437c(o) and (p)(2.) “[T]he defendant need not himself conclusively negate any such element---for 7 example, himself prove not X.” (Aguilar v. Atlantic Richfield (2001) 25 Cal.4th 826, 853-854.) “Once the 8 moving party meets this initial burden, the burden then shifts to the party opposing summary judgment to 9 establish, by means of competent and admissible evidence, that a triable issue of material fact still 10 remains.” (Brown v. Ransweiler (2009) 171 Cal.App.4th 516, 525.) The party opposing summary 11 judgment cannot rely on the mere allegations or denial in his pleadings. (§437c(o)(2); Aguilar, 25 Cal.4th 12 at 850-851.) “An issue of fact can only be created by a conflict of evidence. It is not created by 13 ‘speculation, conjecture, imagination or guess work.’ … [A]n issue of fact is not raised by ‘cryptic, 14 broadly phrased, and conclusory assertions’ or mere possibilities.’” (Brown, 171 Cal.App.4th at 525- 15 526.) The court must liberally construe plaintiff’s showing and resolve any doubts about the propriety of 16 a summary judgment in plaintiff’s favor, but plaintiff’s evidence remains subject to careful scrutiny. 17 (King v. United Parcel Serv. (2007) 152 Cal.App.4th 426, 433.) The Court can find a triable issue of 18 material fact “if, and only if, the evidence would allow a reasonable trier of fact to find the underlying 19 fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” 20 (Aguilar, 25 Cal.4th at 850.) “[P]laintiff’s subjective beliefs in an employment…case do not create a 21 genuine issue of fact; nor do uncorroborated and self-serving declarations…And finally, plaintiff’s 22 evidence must relate to the motivation of the decision makers to prove, by nonspeculative evidence, an 23 actual causal link between prohibited motivation and termination.” (King, 152 Cal.App.4th at 433-434.) 24 B. Plaintiff’s Discrimination Claim Is Meritless 25 Employment discrimination claims are analyzed under a burden shifting test. (McDonnell 26 Douglas Corp. v. Green (1973) 411 U.S. 792.) “‘First, it is the plaintiff’s burden to prove by a 27 preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff proves the 28 prima facie case, then the burden shifts to the defendant to articulate a legitimate nondiscriminatory 13 DEFENDANTS’ MPA IN SUPPORT OF MSJ, OR ALTERNATIVELY, SUMMARY ADJUDICATION OF ISSUES 1 reason for its employment decision. Third, if the defendant offers such a reason, then the plaintiff 2 must…show by a preponderance of the evidence that the legitimate reasons offered by the defendant 3 were not its true reasons, but were a pretext for discrimination.’” (Arteaga v. Brink’s Inc. (2008) 163 Cal. 4 App. 4th 327, 343, citing Texas Dept. of Cnty. Affairs v. Burdine (1981) 450 U.S. 248.) 5 1. Plaintiff’s Age Discrimination Claim Is Unsupportable 6 A plaintiff claiming age discrimination under FEHA must make a prima facie showing: (1) she is 7 over the age of 40; (2) suffered an adverse employment action; (3) was performing satisfactorily at the 8 time of the adverse action; and (4) suffered the adverse action under circumstances that give rise to an 9 inference of unlawful discrimination, (Sandell v. Taylor-Listug, Inc. (2010) 188 Cal.App.4th 297.) If the 10 plaintiff meets this burden, the employer must offer a legitimate, non-discriminatory reason for the 11 adverse employment action. If the employer’s evidence justifies the adverse actions on nondiscriminatory 12 grounds, the burden shifts back to the plaintif