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1 XAVIER BECERRA (;(037*297 &2'(
Attorney General of California
2 WILLIAM T. DARDEN
Supervising Deputy Attorney General Electronically Filed
3 KELSEY E. PAPST 11/25/2020 2:20 PM
Deputy Attorney General Superior Court of California
4 State Bar No. 270547 County of Stanislaus
1300 I Street, Suite 125 Clerk of the Court
5 P.O. Box 944255
Sacramento, CA 94244-2550 By: Kimberly Mean, Deputy
6 Telephone: (916) 210-7675
Fax: (916) 324-5567
7 E-mail: Kelsey.Papst@doj.ca.gov
Attorneys for Defendants
8 Employment Development Department
and Mary Ruiz
9
SUPERIOR COURT OF THE STATE OF CALIFORNIA
10
COUNTY OF STANISLAUS
11
MODESTO DIVISION
12
13
LYNETTE HOLLINSHED, Case No. CV-9000647
14
Plaintiff, DEFENDANTS’ REPLY TO
15 PLAINTIFF’S RESPONSE TO
v. DEFENDANTS’ SEPARATE
16 STATEMENT OF UNDISPUTED
MATERIAL FACTS; AND
17 EMPLOYMENT DEVELOPMENT DEFENDANTS’ RESPONSE TO
DEPARTMENT; MARY RUIZ, as an PLAINTIFF’S SEPARATE STATEMENT
18 individual; DIANE FERRARI, as an OF UNDISPUTED MATERIAL FACTS
individual; and DOES 1 through 10,
19 inclusive, Date: December 1, 2020
Time: 8:30 a.m.
20 Defendants. Dept: 22
Judge: Honorable Stacy P. Speiller
21
22 Trial Date: TBD
Action Filed: November 9, 2017
23
24
25
26
27
28
1
DEFENDANTS’ REPLY TO PLAINTIFF’S RESPONSE TO DEFENDANTS’ SEPARATE STATEMENT;
DEFENDANTS’ RESPONSE TO PLAINTIFF’S SEPARATE STATEMENT(Case No. CV-9000647)
1 Defendants Employment Development Department (“EDD”) and Mary Ruiz (collectively,
2 “Defendants”) hereby submit the following Reply to Plaintiff Lynette Hollinshed’s (“Plaintiff”)
3 Response to Defendants’ Separate Statement of Undisputed Material Facts in support of their
4 Motion for Summary Judgment or, in the Alternative, Summary Adjudication; and Response to
5 Plaintiff’s Separate Statement of Undisputed Material Facts in Support of Her Opposition to
6 Defendants’ Motion for Summary Judgment or, in the Alternative, Summary Adjudication.
7 DEFENDANTS’ REPLY TO PLAINTIFF’S RESPONSE TO DEFENDANTS’
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS
8
9
EDD’S UNDISPUTED PLAINTIFF’S RESPONSE EDD’S REPLY TO
10 MATERIAL FACTS AND AND SUPPORTING PLAINTIFF’S
SUPPORTING EVIDENCE EVIDENCE RESPONSE
11
ISSUE NO. 1: Plaintiff’s first cause of action for harassment should be dismissed, because
12
Plaintiff has released all claims arising from events that occurred prior to January 2016,
13 and she has insufficient evidence to establish harassment as a matter of law as to events
that occurred after January 2016.
14
1. In 2009, Plaintiff transferred 1. Undisputed
15 to one of EDD’s field offices
in Modesto to become an
16 Employment Program
17 Representative.
18 Compendium of Evidence
(“Comp.”), Exh. A,
19 Deposition of Lynette
Hollinshed, Vol. I
20 (“Hollinshed Depo. I) at 19:4-
21 20, 22:15-22, 24:19-25:3 &
Exhs. 1-2 (Comp. Exhs. C-D).
22
2. As an Employment Program 2. Undisputed
23 Representative, Plaintiff’s job
duties included: assisting
24 unemployed customers with
25 using CalJobs (the State’s
website for unemployed job
26 seekers), answering questions
and providing paperwork to
27 customers at the front counter,
and presenting workshops on
28
2
DEFENDANTS’ REPLY TO PLAINTIFF’S RESPONSE TO DEFENDANTS’ SEPARATE STATEMENT;
DEFENDANTS’ RESPONSE TO PLAINTIFF’S SEPARATE STATEMENT(Case No. CV-9000647)
1
EDD’S UNDISPUTED PLAINTIFF’S RESPONSE EDD’S REPLY TO
2 MATERIAL FACTS AND AND SUPPORTING PLAINTIFF’S
SUPPORTING EVIDENCE EVIDENCE RESPONSE
3
various federal and state
4 programs.
5 Comp., Exh. A, Hollinshed
Depo. I at 24:19-25:12, 29:18-
6 30:24, 31:6-34:5, 35:2-15,
7 169:19-170:15 & Exh. 2
(Comp. Exh. D); Declaration
8 of MeShan Rachal (“Rachal
Decl.”), ¶¶ 3-5, 8-9; Comp.,
9 Exhs. EE-FF.
10 3. During 2013 and 2014, 3. Undisputed
Plaintiff was supervised by
11
Employment Program
12 Manager (“EPM”) I Sheron
Best.
13
Comp., Exh. A, Hollinshed
14 Depo. I at 25:25-26:2; Comp.,
15 Exh. GG, Declaration of Luis
Zapien (“Zapien Decl.”) at ¶
16 4.
17 4. Plaintiff and Ms. Best are both 4. Undisputed
African-American.
18
Comp., Exh. A, Hollinshed
19
Depo. I at 68:21-25, 90:12-13.
20
5. From January to July 2015, 5. Undisputed
21 Plaintiff was supervised by
EPM I was Erlinda Towler.
22
Comp., Exh. A, Hollinshed
23
Depo. I at 247:24-248:16;
24 Comp., Exh. GG, Zapien
Decl. at ¶ 4.
25
6. From 2013 through mid-2015, 6. Undisputed
26 Ms. Best and Ms. Towler
were supervised by EPM II
27
Eva Rios, who oversaw the
28 “Modesto cluster” and was
3
DEFENDANTS’ REPLY TO PLAINTIFF’S RESPONSE TO DEFENDANTS’ SEPARATE STATEMENT;
DEFENDANTS’ RESPONSE TO PLAINTIFF’S SEPARATE STATEMENT(Case No. CV-9000647)
1
EDD’S UNDISPUTED PLAINTIFF’S RESPONSE EDD’S REPLY TO
2 MATERIAL FACTS AND AND SUPPORTING PLAINTIFF’S
SUPPORTING EVIDENCE EVIDENCE RESPONSE
3
Plaintiff’s second-line
4 manager.
5 Comp., Exh. A, Hollinshed
Depo. I at 62:12-63:9; Comp.,
6 Exh. GG, Zapien Decl. at ¶ 5.
7
7. Ms. Rios was in turn 7. Undisputed
8 supervised by Deputy
Division Chief Mary Ruiz,
9 Plaintiff’s third-level
manager.
10
Comp., Exh. A, Hollinshed
11
Depo. I at 62:12-63:9, 89:5-
12 15.
13 8. Ms. Ruiz’s personal office 8. Undisputed
was located in the Modesto
14 field office.
15
Comp., Exh. A, Hollinshed
16 Depo. I at 61:19-62:11.
17 9. Ms. Ruiz is Latina. 9. Undisputed
18 Comp., Exh. A, Hollinshed
Depo. I at 89:16-23, 90:5-16,
19
91:9-17.
20
10. Ms. Ruiz was in turn 10. Undisputed
21 supervised by the Division
Chief over the region, Diane
22 Ferrari.
23 Comp., Exh. A, Hollinshed
24 Depo. I at 89:5-15; Comp.,
Exh. B, Hollinshed Depo. II at
25 309:24-310:1.
26 11. Between 2013 and 11. Undisputed
approximately July 2015, Ms.
27 Best and Ms. Towler issued
28 multiple counseling
4
DEFENDANTS’ REPLY TO PLAINTIFF’S RESPONSE TO DEFENDANTS’ SEPARATE STATEMENT;
DEFENDANTS’ RESPONSE TO PLAINTIFF’S SEPARATE STATEMENT(Case No. CV-9000647)
1
EDD’S UNDISPUTED PLAINTIFF’S RESPONSE EDD’S REPLY TO
2 MATERIAL FACTS AND AND SUPPORTING PLAINTIFF’S
SUPPORTING EVIDENCE EVIDENCE RESPONSE
3
memoranda to Plaintiff,
4 including letters of reprimand
and corrective action
5 memoranda.
6 Comp., Exh. A, Hollinshed
7 Depo. I at 123:9-124:8, 154:9-
23, 161:3-24, 187:1-190:8,
8 201:7-22 & Exhs. 20, 26, 28,
36, & 40 (Comp., Exhs. E, G,
9 I, J, & K); Comp., Exh. B,
Deposition of Lynette
10 Hollinshed, Vol. II
11 (“Hollinshed Depo. II”) at
331:18-332:18 & Exh. 60
12 (Comp., Exh. P).
13 12. Plaintiff never heard any 12. Undisputed
discussions between Ms. Ruiz
14 and Ms. Best, or Ms. Ruiz and
15 Ms. Towler, about the
counseling memoranda.
16
Comp., Exh. A, Hollinshed
17 Depo. I at 69:5-11, 144:15-20;
Comp., Exh. B, Hollinshed
18 Depo. II at 264:25-265:24,
19 306:10-25, 308:8-309:7,
343:4-19 & Exh. 55 at p. 2
20 (Comp., Exh. O).
21 13. Plaintiff never heard Ms. 13. Undisputed
Ruiz, or any other manager,
22 make any racist or derogatory
23 comments towards her.
24 Comp., Exh. A, Hollinshed
Depo. I at 66:15-17; Comp.,
25 Exh. B, Hollinshed Depo. II at
276:3-279:5.
26
14. In or about August 2015, Ms. 14. Undisputed
27
Ruiz requested that an
28 Adverse Action be issued to
5
DEFENDANTS’ REPLY TO PLAINTIFF’S RESPONSE TO DEFENDANTS’ SEPARATE STATEMENT;
DEFENDANTS’ RESPONSE TO PLAINTIFF’S SEPARATE STATEMENT(Case No. CV-9000647)
1
EDD’S UNDISPUTED PLAINTIFF’S RESPONSE EDD’S REPLY TO
2 MATERIAL FACTS AND AND SUPPORTING PLAINTIFF’S
SUPPORTING EVIDENCE EVIDENCE RESPONSE
3
Plaintiff.
4
Comp., Exh. B, Hollinshed
5 Depo. II at 372:24-373:14;
Comp., Exh. AA, Neitzel
6 Decl. at ¶ 9.
7
15. Pursuant to EED policy, a 15. Undisputed
8 Request for Adverse Action
must be signed and approved
9 by the Deputy Division Chief
(e.g., Ms. Ruiz), the Division
10 Chief (e.g., Diane Ferrari),
and the Deputy Director.
11
12 Comp., Exh. AA, Neitzel
Decl. at ¶ 9; Comp., Exh. GG,
13 Zapien Decl. at ¶ 10.
14 16. After EDD’s Personnel 16. Undisputed
Management Group and legal
15
counsel drafted the Notice of
16 Adverse Action, Ms. Ruiz
served it on Plaintiff on
17 September 15, 2015.
18 Comp., Exh. B, Hollinshed
Depo. II at 372:24-373:24 &
19
Exh. 70 (Comp., Exh. R);
20 Comp., Exh. AA, Neitzel
Decl. at ¶ 9.
21
17. The Adverse Action consisted 17. Undisputed
22 of a 20-day suspension
without pay, which Plaintiff
23
served out in October 2015.
24
Comp., Exh. B, Hollinshed
25 Depo. II at 372:24-373:24,
379:22-380:7 & Exh. 70
26 (Comp., Exh. R).
27
28
6
DEFENDANTS’ REPLY TO PLAINTIFF’S RESPONSE TO DEFENDANTS’ SEPARATE STATEMENT;
DEFENDANTS’ RESPONSE TO PLAINTIFF’S SEPARATE STATEMENT(Case No. CV-9000647)
1
EDD’S UNDISPUTED PLAINTIFF’S RESPONSE EDD’S REPLY TO
2 MATERIAL FACTS AND AND SUPPORTING PLAINTIFF’S
SUPPORTING EVIDENCE EVIDENCE RESPONSE
3
18. After she received the 18. Undisputed
4 Adverse Action, Plaintiff
hired a private attorney, Linh
5
Nguyen, to appeal it to the
6 State Personnel Board.
7 Comp., Exh. B, Hollinshed
Depo. II at 375:11-377:21,
8 378:1-11.
9
19. Plaintiff appealed the Adverse 19. Undisputed
10 Action on the basis that “this
action and many other actions
11 is retaliation for her previous
complaints against
12 management and their racial
harassment and
13
discrimination.”
14
Comp., Exh. B, Hollinshed
15 Depo. II at 375:11-377:21,
378:1-11 & Exh. 72 at p. 2
16 (Comp., Exh. S).
17
20. In her Pre-Hearing Settlement 20. Undisputed
18 Conference Statement,
Plaintiff listed several
19 affirmative defenses,
including: (1) that the adverse
20 action was discriminatory
based on race, ethnicity,
21
and/or national origin; (2) that
22 the adverse action was
retaliation for her previous
23 complaints against
management for racial
24 harassment and
discrimination; and (3) that
25
the adverse action was not
26 supported by the evidence.
27 Comp., Exh. B, Hollinshed
Depo. II at 378:16-379:17 &
28
7
DEFENDANTS’ REPLY TO PLAINTIFF’S RESPONSE TO DEFENDANTS’ SEPARATE STATEMENT;
DEFENDANTS’ RESPONSE TO PLAINTIFF’S SEPARATE STATEMENT(Case No. CV-9000647)
1
EDD’S UNDISPUTED PLAINTIFF’S RESPONSE EDD’S REPLY TO
2 MATERIAL FACTS AND AND SUPPORTING PLAINTIFF’S
SUPPORTING EVIDENCE EVIDENCE RESPONSE
3
Exh. 73 at pp. 1-2 (Comp.,
4 Exh. T).
5 21. At the Pre-Hearing Settlement 21. Undisputed
Conference held by the State
6 Personnel Board on January
13, 2016, Plaintiff signed a
7
settlement agreement with
8 EDD, which included a
general release of all claims.
9
Comp., Exh. B, Hollinshed
10 Depo. II at 382:12-383:8 &
Exh. 74 (Comp., Exh. U).
11
12 22. The settlement agreement 22. Undisputed
included a waiver of Civil
13 Code section 1542, and
provided that Plaintiff
14 “acknowledges that this
release includes all claims,
15
demands, causes of action, or
16 right to attorneys’ fees and
costs that she may have
17 against [EDD].”
18 Comp., Exh. B, Hollinshed
Depo. II at 382:12-383:8 &
19
Exh. 74 at p. 2 (Comp., Exh.
20 U).
21 23. Plaintiff’s attorney approved 23. Undisputed
the settlement agreement as to
22 form, and the State Personnel
Board approved and adopted it
23
as the Board’s Decision.
24
Comp., Exh. B, Hollinshed
25 Depo. II at 382:12-383:8 &
Exh. 74 at p. 4 (Comp., Exh.
26 U).
27
28
8
DEFENDANTS’ REPLY TO PLAINTIFF’S RESPONSE TO DEFENDANTS’ SEPARATE STATEMENT;
DEFENDANTS’ RESPONSE TO PLAINTIFF’S SEPARATE STATEMENT(Case No. CV-9000647)
1
EDD’S UNDISPUTED PLAINTIFF’S RESPONSE EDD’S REPLY TO
2 MATERIAL FACTS AND AND SUPPORTING PLAINTIFF’S
SUPPORTING EVIDENCE EVIDENCE RESPONSE
3
24. Per the terms of the settlement 24. Undisputed
4 agreement, Plaintiff agreed to
dismiss her appeal in
5
exchange for a reduction of
6 her suspension from 20 days
to 10 days.
7
Comp., Exh. B, Hollinshed
8 Depo. II at 382:12-383:8,
384:2-7 & Exh. 74 at p. 2
9
(Comp., Exh. U).
10
25. Thereafter, Plaintiff was paid 25. Undisputed
11 10 days’ worth of backpay.
12 Comp., Exh. B, Hollinshed
Depo. II at 385:8-17.
13
14 26. Immediately after she served 26. Undisputed
out her suspension in October
15 2015, Plaintiff went out on a
medical leave of absence for
16 five months until March 2016.
17
Comp., Exh. B, Hollinshed
18 Depo. II at 379:22-381:2,
386:8-21, 391:4-8, 396:12-19
19 & Exhs. 76, 78, & 80 (Comp.,
Exhs. V, W, & X).
20
27. During Plaintiff’s leave of 27. Undisputed
21 absence, Ms. Rios retired in
22 October 2015, and Ms. Best
retired in November 2015.
23
Comp., Exh. GG, Zapien
24 Decl. at ¶¶ 3, 5.
25 28. After she returned in 2016, the 28. Undisputed
26 Modesto cluster’s union
representative, Preston Van
27 Camp, presented Plaintiff and
other cluster employees with a
28
9
DEFENDANTS’ REPLY TO PLAINTIFF’S RESPONSE TO DEFENDANTS’ SEPARATE STATEMENT;
DEFENDANTS’ RESPONSE TO PLAINTIFF’S SEPARATE STATEMENT(Case No. CV-9000647)
1
EDD’S UNDISPUTED PLAINTIFF’S RESPONSE EDD’S REPLY TO
2 MATERIAL FACTS AND AND SUPPORTING PLAINTIFF’S
SUPPORTING EVIDENCE EVIDENCE RESPONSE
3
Vote of No Confidence
4 regarding Mary Ruiz.
5 Comp., Exh. B, Hollinshed
Depo. II at 396:25-397:25,
6 398:19-400:7 & Exh. 81
7 (Comp., Exh. Y).
8 29. Plaintiff signed the Vote of 29. Undisputed
No Confidence in May 2016.
9
Comp., Exh. B, Hollinshed
10 Depo. II at 396:25-397:25 &
Exh. 81 (Comp., Exh. Y).
11
12 30. There were three declarations 30. Undisputed
attached to the Vote of No
13 Confidence: one by Sheron
Best, one by Eva Rios, and
14 one by another former EPM I,
Kurt Silva.
15
16 Comp., Exh. B, Hollinshed
Depo. II at 396:25-397:12,
17 403:15-404:6 & Exh. 81
(Comp., Exh. Y).
18
31. Mr. Silva had previously 31. Undisputed
19
retired from EDD in 2012.
20
Comp., Exh. GG, Zapien
21 Decl. at ¶ 7.
22 32. Among other allegations, in 32. Undisputed
their declarations, each EPM I
23 alleged that Ms. Ruiz had
24 made inappropriate, racially
based comments to them
25 about Plaintiff during their
employment with EDD.
26
Comp., Exh. B, Hollinshed
27
Depo. II at 396:25-397:12,
28
10
DEFENDANTS’ REPLY TO PLAINTIFF’S RESPONSE TO DEFENDANTS’ SEPARATE STATEMENT;
DEFENDANTS’ RESPONSE TO PLAINTIFF’S SEPARATE STATEMENT(Case No. CV-9000647)
1
EDD’S UNDISPUTED PLAINTIFF’S RESPONSE EDD’S REPLY TO
2 MATERIAL FACTS AND AND SUPPORTING PLAINTIFF’S
SUPPORTING EVIDENCE EVIDENCE RESPONSE
3
403:15-404:6 & Exh. 81
4 (Comp., Exh. Y).
5 33. Following the Vote of No 33. Undisputed
Confidence, Ms. Ruiz went
6 out on medical leave in July
2016, and did not
7
subsequently return to the
8 Modesto field office.
9 Comp., Exh. A, Hollinshed
Depo. I at 111:5-14, 164:22-
10 165:8; Comp., Exh. AA,
Declaration of Janet Neitzel
11
(“Neitzel Decl.”) at ¶ 3.
12
34. Ms. Ruiz went on a permanent 34. Disputed. Remains materially
13 leave of absence from EDD undisputed.
Ruiz Depo at 15:17-21
starting in July 2017.
14 Ms. Ruiz erroneously
Comp., Exh. GG, Zapien testified that she “retired”
15
Decl. at ¶ 6. in July 2017. Technically,
16 per Luis Zapien’s
declaration, Ms. Ruiz
17 began a permanent leave
of absence in July 2017,
18 and officially retired two
years later in 2019. But
19
the fact remains that she
20 no longer worked at EDD
effective July 2017,
21 which is the material fact.
22 35. Effective September 1, 2016, 35. Undisputed
EDD reorganized the field
23
Regions in the Central Valley,
24 and Janet Neitzel became the
Deputy Division Chief over
25 the Modesto cluster.
26 Comp., Exh. AA, Neitzel
Decl. at ¶ 3.
27
28
11
DEFENDANTS’ REPLY TO PLAINTIFF’S RESPONSE TO DEFENDANTS’ SEPARATE STATEMENT;
DEFENDANTS’ RESPONSE TO PLAINTIFF’S SEPARATE STATEMENT(Case No. CV-9000647)
1
EDD’S UNDISPUTED PLAINTIFF’S RESPONSE EDD’S REPLY TO
2 MATERIAL FACTS AND AND SUPPORTING PLAINTIFF’S
SUPPORTING EVIDENCE EVIDENCE RESPONSE
3
36. From approximately August 36. Undisputed
4 2015 to October 2016,
Plaintiff’s immediate
5
supervisor was EPM I Matilde
6 Peña-Hernandez.
7 Comp., Exh. B, Hollinshed
Depo. II at 309:19-23, 370:23-
8 371:3; Comp., Exh. GG,
Zapien Decl. at ¶ 8.
9
10 37. After Plaintiff returned to 37. Undisputed
work in March 2016, Ms.
11 Peña-Hernandez did not give
Plaintiff any write-ups,
12 counseling memoranda, or
other types of corrective
13
action.
14
Comp., Exh. DD, Rachal
15 Decl. at ¶ 12; Comp., Exh.
GG, Zapien Decl. at ¶ 9(a).
16
38. On July 31, 2016, Ms. Peña- 38. Undisputed
17
Hernandez approved
18 Plaintiff’s merit salary
adjustment (raise).
19
Comp., Exh. GG, Zapien
20 Decl. at ¶ 9(b); Comp., Exh.
HH.
21
22 39. In October 2016, Plaintiff 39. Undisputed
went out on a second medical
23 leave of absence.
24 Comp., Exh. AA, Neitzel
Decl. at ¶ 8; Comp., Exh. BB
25
at p. 2; Comp., Exh. DD,
26 Rachal Decl. at ¶ 6.
27
28
12
DEFENDANTS’ REPLY TO PLAINTIFF’S RESPONSE TO DEFENDANTS’ SEPARATE STATEMENT;
DEFENDANTS’ RESPONSE TO PLAINTIFF’S SEPARATE STATEMENT(Case No. CV-9000647)
1
EDD’S UNDISPUTED PLAINTIFF’S RESPONSE EDD’S REPLY TO
2 MATERIAL FACTS AND AND SUPPORTING PLAINTIFF’S
SUPPORTING EVIDENCE EVIDENCE RESPONSE
3
40. Plaintiff alleges that Ms. 40. Undisputed
4 Peña-Hernandez asked two of
her co-workers to write letters
5
against her stating she was not
6 doing her job, but that neither
co-worker wrote a letter
7 regarding Plaintiff.
8 Comp., Exh. A, Hollinshed
Depo. I at 109:2-18, 110:4-8;
9
Comp., Exh. B, Hollinshed
10 Depo. II at 312:16-313:20,
314:2-24; Request for Judicial
11 Notice (“RJN”), Exh. 1.
12 41. Ms. Rachal transferred to the 41. Undisputed
Modesto field office in
13
February 2017.
14
Comp., Exh. DD, Rachal
15 Decl. at ¶ 2.
16 42. Plaintiff returned to work in 42. Undisputed
March 2017.
17
18 Comp., Exh. DD, Rachal
Decl. at ¶ 6.
19
43. As an EPM I, Ms. Rachal 43. Undisputed
20 supervised Plaintiff after she
returned from her leave of
21 absence in March 2017.
22
Comp., Exh. DD, Rachal
23 Decl. at ¶¶ 3, 6; Comp., Exh.
AA, Neitzel Decl. at ¶ 4..
24
44. Shortly after Plaintiff returned 44. Disputed. Remains materially
25 to work, she began refusing to undisputed.
26 present workshops, and Plaintiff continued to Ms. Harris testified that
claimed that she was too participate in the preparation Plaintiff presented a
27 anxious to present workshops and presentation of workshop “at least one
anymore in light of the workshops, even while she time.” But otherwise,
28 was suffering from depression Plaintiff only “assisted”
13
DEFENDANTS’ REPLY TO PLAINTIFF’S RESPONSE TO DEFENDANTS’ SEPARATE STATEMENT;
DEFENDANTS’ RESPONSE TO PLAINTIFF’S SEPARATE STATEMENT(Case No. CV-9000647)
1
EDD’S UNDISPUTED PLAINTIFF’S RESPONSE EDD’S REPLY TO
2 MATERIAL FACTS AND AND SUPPORTING PLAINTIFF’S
SUPPORTING EVIDENCE EVIDENCE RESPONSE
3
depression and stress she and anxiety. with workshops by
4 suffered as a result of Ms. setting up the workshop,
Ruiz’s alleged wrongful Harris Depo. I at 33:2-36:18 handing out papers and
5 pencils, collecting
conduct. paperwork, and verifying
6 IDs. The fact remains
Comp., Exh. DD, Rachal that shortly after Plaintiff
7 Decl. at ¶ 6; Comp., Exh. AA, returned to work (i.e.,
Neitzel Decl. at ¶ 4; Comp., after presenting a
8 Exh. GG, Zapien Decl. at ¶ workshop once or twice),
9(c). she began refusing to
9 present workshops
entirely, which Ms.
10 Harris admits.
Plf’s Comp., Exh. D,
11 Harris Depo. I at 34:2-10.
12 45. Plaintiff alleges that Ms. 45. Undisputed
Rachal “harassed” her by
13 asking one of Plaintiff’s co-
14 workers to attend one of
Plaintiff’s workshops and
15 report back to Ms. Rachal.
16 Comp., Exh. A, Hollinshed
Depo. I at 109:2-110:8.
17
18 46. EDD’s Reasonable 46. Undisputed
Accommodation Program
19 analyzed Plaintiff’s request to
be excused from presenting
20 workshops, but on June 13,
2017, they determined that
21 Plaintiff could not be
22 accommodated, because
workshops were an essential
23 function of the job.
24 Comp., Exh. GG, Zapien
Decl. at ¶ 9(c); Comp., Exh.
25
II; Comp., Exh. DD, Rachal
26 Decl. at ¶ 6; Comp., Exh. AA,
Neitzel Decl. at ¶ 4.
27
28
14
DEFENDANTS’ REPLY TO PLAINTIFF’S RESPONSE TO DEFENDANTS’ SEPARATE STATEMENT;
DEFENDANTS’ RESPONSE TO PLAINTIFF’S SEPARATE STATEMENT(Case No. CV-9000647)
1
EDD’S UNDISPUTED PLAINTIFF’S RESPONSE EDD’S REPLY TO
2 MATERIAL FACTS AND AND SUPPORTING PLAINTIFF’S
SUPPORTING EVIDENCE EVIDENCE RESPONSE
3
47. After the Reasonable 47. Undisputed
4 Accommodation Program
made this decision, Ms.
5
Rachal issued several
6 counseling memoranda to
Plaintiff during June, July, and
7 August 2017, primarily for
Plaintiff’s refusal to present
8 workshops.
9
Comp., Exh. DD, Rachal
10 Decl. at ¶¶ 7, 10; Comp., Exh.
AA, Neitzel Decl. at ¶ 5.
11
48. EDD sent Plaintiff for a 48. Undisputed
12 Fitness-For-Duty evaluation in
August 2017, but the
13
physician determined that
14 Plaintiff was not disabled
from performing the essential
15 functions of her job.
16 Comp., Exh. GG, Zapien
Decl. at ¶ 9(d); Comp., Exh. JJ
17
at p. 1; Comp., Exh. DD,
18 Rachal Decl. at ¶ 10; Comp.,
Exh. AA, Neitzel Decl. at ¶ 6.
19
49. Plaintiff continued to refuse to 49. Disputed Remains materially
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1 XAVIER BECERRA (;(037*297 &2'( Attorney General of California 2 WILLIAM T. DARDEN Supervising Deputy Attorney General Electronically Filed 3 KELSEY E. PAPST 11/25/2020 2:20 PM Deputy Attorney General Superior Court of California 4 State Bar No. 270547 County of Stanislaus 1300 I Street, Suite 125 Clerk of the Court 5 P.O. Box 944255 Sacramento, CA 94244-2550 By: Kimberly Mean, Deputy 6 Telephone: (916) 210-7675 Fax: (916) 324-5567 7 E-mail: Kelsey.Papst@doj.ca.gov Attorneys for Defendants 8 Employment Development Department and Mary Ruiz 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 COUNTY OF STANISLAUS 11 MODESTO DIVISION 12 13 LYNETTE HOLLINSHED, Case No. CV-9000647 14 Plaintiff, DEFENDANTS’ REPLY TO 15 PLAINTIFF’S RESPONSE TO v. DEFENDANTS’ SEPARATE 16 STATEMENT OF UNDISPUTED MATERIAL FACTS; AND 17 EMPLOYMENT DEVELOPMENT DEFENDANTS’ RESPONSE TO DEPARTMENT; MARY RUIZ, as an PLAINTIFF’S SEPARATE STATEMENT 18 individual; DIANE FERRARI, as an OF UNDISPUTED MATERIAL FACTS individual; and DOES 1 through 10, 19 inclusive, Date: December 1, 2020 Time: 8:30 a.m. 20 Defendants. Dept: 22 Judge: Honorable Stacy P. Speiller 21 22 Trial Date: TBD Action Filed: November 9, 2017 23 24 25 26 27 28 1 DEFENDANTS’ REPLY TO PLAINTIFF’S RESPONSE TO DEFENDANTS’ SEPARATE STATEMENT; DEFENDANTS’ RESPONSE TO PLAINTIFF’S SEPARATE STATEMENT(Case No. CV-9000647) 1 Defendants Employment Development Department (“EDD”) and Mary Ruiz (collectively, 2 “Defendants”) hereby submit the following Reply to Plaintiff Lynette Hollinshed’s (“Plaintiff”) 3 Response to Defendants’ Separate Statement of Undisputed Material Facts in support of their 4 Motion for Summary Judgment or, in the Alternative, Summary Adjudication; and Response to 5 Plaintiff’s Separate Statement of Undisputed Material Facts in Support of Her Opposition to 6 Defendants’ Motion for Summary Judgment or, in the Alternative, Summary Adjudication. 7 DEFENDANTS’ REPLY TO PLAINTIFF’S RESPONSE TO DEFENDANTS’ SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS 8 9 EDD’S UNDISPUTED PLAINTIFF’S RESPONSE EDD’S REPLY TO 10 MATERIAL FACTS AND AND SUPPORTING PLAINTIFF’S SUPPORTING EVIDENCE EVIDENCE RESPONSE 11 ISSUE NO. 1: Plaintiff’s first cause of action for harassment should be dismissed, because 12 Plaintiff has released all claims arising from events that occurred prior to January 2016, 13 and she has insufficient evidence to establish harassment as a matter of law as to events that occurred after January 2016. 14 1. In 2009, Plaintiff transferred 1. Undisputed 15 to one of EDD’s field offices in Modesto to become an 16 Employment Program 17 Representative. 18 Compendium of Evidence (“Comp.”), Exh. A, 19 Deposition of Lynette Hollinshed, Vol. I 20 (“Hollinshed Depo. I) at 19:4- 21 20, 22:15-22, 24:19-25:3 & Exhs. 1-2 (Comp. Exhs. C-D). 22 2. As an Employment Program 2. Undisputed 23 Representative, Plaintiff’s job duties included: assisting 24 unemployed customers with 25 using CalJobs (the State’s website for unemployed job 26 seekers), answering questions and providing paperwork to 27 customers at the front counter, and presenting workshops on 28 2 DEFENDANTS’ REPLY TO PLAINTIFF’S RESPONSE TO DEFENDANTS’ SEPARATE STATEMENT; DEFENDANTS’ RESPONSE TO PLAINTIFF’S SEPARATE STATEMENT(Case No. CV-9000647) 1 EDD’S UNDISPUTED PLAINTIFF’S RESPONSE EDD’S REPLY TO 2 MATERIAL FACTS AND AND SUPPORTING PLAINTIFF’S SUPPORTING EVIDENCE EVIDENCE RESPONSE 3 various federal and state 4 programs. 5 Comp., Exh. A, Hollinshed Depo. I at 24:19-25:12, 29:18- 6 30:24, 31:6-34:5, 35:2-15, 7 169:19-170:15 & Exh. 2 (Comp. Exh. D); Declaration 8 of MeShan Rachal (“Rachal Decl.”), ¶¶ 3-5, 8-9; Comp., 9 Exhs. EE-FF. 10 3. During 2013 and 2014, 3. Undisputed Plaintiff was supervised by 11 Employment Program 12 Manager (“EPM”) I Sheron Best. 13 Comp., Exh. A, Hollinshed 14 Depo. I at 25:25-26:2; Comp., 15 Exh. GG, Declaration of Luis Zapien (“Zapien Decl.”) at ¶ 16 4. 17 4. Plaintiff and Ms. Best are both 4. Undisputed African-American. 18 Comp., Exh. A, Hollinshed 19 Depo. I at 68:21-25, 90:12-13. 20 5. From January to July 2015, 5. Undisputed 21 Plaintiff was supervised by EPM I was Erlinda Towler. 22 Comp., Exh. A, Hollinshed 23 Depo. I at 247:24-248:16; 24 Comp., Exh. GG, Zapien Decl. at ¶ 4. 25 6. From 2013 through mid-2015, 6. Undisputed 26 Ms. Best and Ms. Towler were supervised by EPM II 27 Eva Rios, who oversaw the 28 “Modesto cluster” and was 3 DEFENDANTS’ REPLY TO PLAINTIFF’S RESPONSE TO DEFENDANTS’ SEPARATE STATEMENT; DEFENDANTS’ RESPONSE TO PLAINTIFF’S SEPARATE STATEMENT(Case No. CV-9000647) 1 EDD’S UNDISPUTED PLAINTIFF’S RESPONSE EDD’S REPLY TO 2 MATERIAL FACTS AND AND SUPPORTING PLAINTIFF’S SUPPORTING EVIDENCE EVIDENCE RESPONSE 3 Plaintiff’s second-line 4 manager. 5 Comp., Exh. A, Hollinshed Depo. I at 62:12-63:9; Comp., 6 Exh. GG, Zapien Decl. at ¶ 5. 7 7. Ms. Rios was in turn 7. Undisputed 8 supervised by Deputy Division Chief Mary Ruiz, 9 Plaintiff’s third-level manager. 10 Comp., Exh. A, Hollinshed 11 Depo. I at 62:12-63:9, 89:5- 12 15. 13 8. Ms. Ruiz’s personal office 8. Undisputed was located in the Modesto 14 field office. 15 Comp., Exh. A, Hollinshed 16 Depo. I at 61:19-62:11. 17 9. Ms. Ruiz is Latina. 9. Undisputed 18 Comp., Exh. A, Hollinshed Depo. I at 89:16-23, 90:5-16, 19 91:9-17. 20 10. Ms. Ruiz was in turn 10. Undisputed 21 supervised by the Division Chief over the region, Diane 22 Ferrari. 23 Comp., Exh. A, Hollinshed 24 Depo. I at 89:5-15; Comp., Exh. B, Hollinshed Depo. II at 25 309:24-310:1. 26 11. Between 2013 and 11. Undisputed approximately July 2015, Ms. 27 Best and Ms. Towler issued 28 multiple counseling 4 DEFENDANTS’ REPLY TO PLAINTIFF’S RESPONSE TO DEFENDANTS’ SEPARATE STATEMENT; DEFENDANTS’ RESPONSE TO PLAINTIFF’S SEPARATE STATEMENT(Case No. CV-9000647) 1 EDD’S UNDISPUTED PLAINTIFF’S RESPONSE EDD’S REPLY TO 2 MATERIAL FACTS AND AND SUPPORTING PLAINTIFF’S SUPPORTING EVIDENCE EVIDENCE RESPONSE 3 memoranda to Plaintiff, 4 including letters of reprimand and corrective action 5 memoranda. 6 Comp., Exh. A, Hollinshed 7 Depo. I at 123:9-124:8, 154:9- 23, 161:3-24, 187:1-190:8, 8 201:7-22 & Exhs. 20, 26, 28, 36, & 40 (Comp., Exhs. E, G, 9 I, J, & K); Comp., Exh. B, Deposition of Lynette 10 Hollinshed, Vol. II 11 (“Hollinshed Depo. II”) at 331:18-332:18 & Exh. 60 12 (Comp., Exh. P). 13 12. Plaintiff never heard any 12. Undisputed discussions between Ms. Ruiz 14 and Ms. Best, or Ms. Ruiz and 15 Ms. Towler, about the counseling memoranda. 16 Comp., Exh. A, Hollinshed 17 Depo. I at 69:5-11, 144:15-20; Comp., Exh. B, Hollinshed 18 Depo. II at 264:25-265:24, 19 306:10-25, 308:8-309:7, 343:4-19 & Exh. 55 at p. 2 20 (Comp., Exh. O). 21 13. Plaintiff never heard Ms. 13. Undisputed Ruiz, or any other manager, 22 make any racist or derogatory 23 comments towards her. 24 Comp., Exh. A, Hollinshed Depo. I at 66:15-17; Comp., 25 Exh. B, Hollinshed Depo. II at 276:3-279:5. 26 14. In or about August 2015, Ms. 14. Undisputed 27 Ruiz requested that an 28 Adverse Action be issued to 5 DEFENDANTS’ REPLY TO PLAINTIFF’S RESPONSE TO DEFENDANTS’ SEPARATE STATEMENT; DEFENDANTS’ RESPONSE TO PLAINTIFF’S SEPARATE STATEMENT(Case No. CV-9000647) 1 EDD’S UNDISPUTED PLAINTIFF’S RESPONSE EDD’S REPLY TO 2 MATERIAL FACTS AND AND SUPPORTING PLAINTIFF’S SUPPORTING EVIDENCE EVIDENCE RESPONSE 3 Plaintiff. 4 Comp., Exh. B, Hollinshed 5 Depo. II at 372:24-373:14; Comp., Exh. AA, Neitzel 6 Decl. at ¶ 9. 7 15. Pursuant to EED policy, a 15. Undisputed 8 Request for Adverse Action must be signed and approved 9 by the Deputy Division Chief (e.g., Ms. Ruiz), the Division 10 Chief (e.g., Diane Ferrari), and the Deputy Director. 11 12 Comp., Exh. AA, Neitzel Decl. at ¶ 9; Comp., Exh. GG, 13 Zapien Decl. at ¶ 10. 14 16. After EDD’s Personnel 16. Undisputed Management Group and legal 15 counsel drafted the Notice of 16 Adverse Action, Ms. Ruiz served it on Plaintiff on 17 September 15, 2015. 18 Comp., Exh. B, Hollinshed Depo. II at 372:24-373:24 & 19 Exh. 70 (Comp., Exh. R); 20 Comp., Exh. AA, Neitzel Decl. at ¶ 9. 21 17. The Adverse Action consisted 17. Undisputed 22 of a 20-day suspension without pay, which Plaintiff 23 served out in October 2015. 24 Comp., Exh. B, Hollinshed 25 Depo. II at 372:24-373:24, 379:22-380:7 & Exh. 70 26 (Comp., Exh. R). 27 28 6 DEFENDANTS’ REPLY TO PLAINTIFF’S RESPONSE TO DEFENDANTS’ SEPARATE STATEMENT; DEFENDANTS’ RESPONSE TO PLAINTIFF’S SEPARATE STATEMENT(Case No. CV-9000647) 1 EDD’S UNDISPUTED PLAINTIFF’S RESPONSE EDD’S REPLY TO 2 MATERIAL FACTS AND AND SUPPORTING PLAINTIFF’S SUPPORTING EVIDENCE EVIDENCE RESPONSE 3 18. After she received the 18. Undisputed 4 Adverse Action, Plaintiff hired a private attorney, Linh 5 Nguyen, to appeal it to the 6 State Personnel Board. 7 Comp., Exh. B, Hollinshed Depo. II at 375:11-377:21, 8 378:1-11. 9 19. Plaintiff appealed the Adverse 19. Undisputed 10 Action on the basis that “this action and many other actions 11 is retaliation for her previous complaints against 12 management and their racial harassment and 13 discrimination.” 14 Comp., Exh. B, Hollinshed 15 Depo. II at 375:11-377:21, 378:1-11 & Exh. 72 at p. 2 16 (Comp., Exh. S). 17 20. In her Pre-Hearing Settlement 20. Undisputed 18 Conference Statement, Plaintiff listed several 19 affirmative defenses, including: (1) that the adverse 20 action was discriminatory based on race, ethnicity, 21 and/or national origin; (2) that 22 the adverse action was retaliation for her previous 23 complaints against management for racial 24 harassment and discrimination; and (3) that 25 the adverse action was not 26 supported by the evidence. 27 Comp., Exh. B, Hollinshed Depo. II at 378:16-379:17 & 28 7 DEFENDANTS’ REPLY TO PLAINTIFF’S RESPONSE TO DEFENDANTS’ SEPARATE STATEMENT; DEFENDANTS’ RESPONSE TO PLAINTIFF’S SEPARATE STATEMENT(Case No. CV-9000647) 1 EDD’S UNDISPUTED PLAINTIFF’S RESPONSE EDD’S REPLY TO 2 MATERIAL FACTS AND AND SUPPORTING PLAINTIFF’S SUPPORTING EVIDENCE EVIDENCE RESPONSE 3 Exh. 73 at pp. 1-2 (Comp., 4 Exh. T). 5 21. At the Pre-Hearing Settlement 21. Undisputed Conference held by the State 6 Personnel Board on January 13, 2016, Plaintiff signed a 7 settlement agreement with 8 EDD, which included a general release of all claims. 9 Comp., Exh. B, Hollinshed 10 Depo. II at 382:12-383:8 & Exh. 74 (Comp., Exh. U). 11 12 22. The settlement agreement 22. Undisputed included a waiver of Civil 13 Code section 1542, and provided that Plaintiff 14 “acknowledges that this release includes all claims, 15 demands, causes of action, or 16 right to attorneys’ fees and costs that she may have 17 against [EDD].” 18 Comp., Exh. B, Hollinshed Depo. II at 382:12-383:8 & 19 Exh. 74 at p. 2 (Comp., Exh. 20 U). 21 23. Plaintiff’s attorney approved 23. Undisputed the settlement agreement as to 22 form, and the State Personnel Board approved and adopted it 23 as the Board’s Decision. 24 Comp., Exh. B, Hollinshed 25 Depo. II at 382:12-383:8 & Exh. 74 at p. 4 (Comp., Exh. 26 U). 27 28 8 DEFENDANTS’ REPLY TO PLAINTIFF’S RESPONSE TO DEFENDANTS’ SEPARATE STATEMENT; DEFENDANTS’ RESPONSE TO PLAINTIFF’S SEPARATE STATEMENT(Case No. CV-9000647) 1 EDD’S UNDISPUTED PLAINTIFF’S RESPONSE EDD’S REPLY TO 2 MATERIAL FACTS AND AND SUPPORTING PLAINTIFF’S SUPPORTING EVIDENCE EVIDENCE RESPONSE 3 24. Per the terms of the settlement 24. Undisputed 4 agreement, Plaintiff agreed to dismiss her appeal in 5 exchange for a reduction of 6 her suspension from 20 days to 10 days. 7 Comp., Exh. B, Hollinshed 8 Depo. II at 382:12-383:8, 384:2-7 & Exh. 74 at p. 2 9 (Comp., Exh. U). 10 25. Thereafter, Plaintiff was paid 25. Undisputed 11 10 days’ worth of backpay. 12 Comp., Exh. B, Hollinshed Depo. II at 385:8-17. 13 14 26. Immediately after she served 26. Undisputed out her suspension in October 15 2015, Plaintiff went out on a medical leave of absence for 16 five months until March 2016. 17 Comp., Exh. B, Hollinshed 18 Depo. II at 379:22-381:2, 386:8-21, 391:4-8, 396:12-19 19 & Exhs. 76, 78, & 80 (Comp., Exhs. V, W, & X). 20 27. During Plaintiff’s leave of 27. Undisputed 21 absence, Ms. Rios retired in 22 October 2015, and Ms. Best retired in November 2015. 23 Comp., Exh. GG, Zapien 24 Decl. at ¶¶ 3, 5. 25 28. After she returned in 2016, the 28. Undisputed 26 Modesto cluster’s union representative, Preston Van 27 Camp, presented Plaintiff and other cluster employees with a 28 9 DEFENDANTS’ REPLY TO PLAINTIFF’S RESPONSE TO DEFENDANTS’ SEPARATE STATEMENT; DEFENDANTS’ RESPONSE TO PLAINTIFF’S SEPARATE STATEMENT(Case No. CV-9000647) 1 EDD’S UNDISPUTED PLAINTIFF’S RESPONSE EDD’S REPLY TO 2 MATERIAL FACTS AND AND SUPPORTING PLAINTIFF’S SUPPORTING EVIDENCE EVIDENCE RESPONSE 3 Vote of No Confidence 4 regarding Mary Ruiz. 5 Comp., Exh. B, Hollinshed Depo. II at 396:25-397:25, 6 398:19-400:7 & Exh. 81 7 (Comp., Exh. Y). 8 29. Plaintiff signed the Vote of 29. Undisputed No Confidence in May 2016. 9 Comp., Exh. B, Hollinshed 10 Depo. II at 396:25-397:25 & Exh. 81 (Comp., Exh. Y). 11 12 30. There were three declarations 30. Undisputed attached to the Vote of No 13 Confidence: one by Sheron Best, one by Eva Rios, and 14 one by another former EPM I, Kurt Silva. 15 16 Comp., Exh. B, Hollinshed Depo. II at 396:25-397:12, 17 403:15-404:6 & Exh. 81 (Comp., Exh. Y). 18 31. Mr. Silva had previously 31. Undisputed 19 retired from EDD in 2012. 20 Comp., Exh. GG, Zapien 21 Decl. at ¶ 7. 22 32. Among other allegations, in 32. Undisputed their declarations, each EPM I 23 alleged that Ms. Ruiz had 24 made inappropriate, racially based comments to them 25 about Plaintiff during their employment with EDD. 26 Comp., Exh. B, Hollinshed 27 Depo. II at 396:25-397:12, 28 10 DEFENDANTS’ REPLY TO PLAINTIFF’S RESPONSE TO DEFENDANTS’ SEPARATE STATEMENT; DEFENDANTS’ RESPONSE TO PLAINTIFF’S SEPARATE STATEMENT(Case No. CV-9000647) 1 EDD’S UNDISPUTED PLAINTIFF’S RESPONSE EDD’S REPLY TO 2 MATERIAL FACTS AND AND SUPPORTING PLAINTIFF’S SUPPORTING EVIDENCE EVIDENCE RESPONSE 3 403:15-404:6 & Exh. 81 4 (Comp., Exh. Y). 5 33. Following the Vote of No 33. Undisputed Confidence, Ms. Ruiz went 6 out on medical leave in July 2016, and did not 7 subsequently return to the 8 Modesto field office. 9 Comp., Exh. A, Hollinshed Depo. I at 111:5-14, 164:22- 10 165:8; Comp., Exh. AA, Declaration of Janet Neitzel 11 (“Neitzel Decl.”) at ¶ 3. 12 34. Ms. Ruiz went on a permanent 34. Disputed. Remains materially 13 leave of absence from EDD undisputed. Ruiz Depo at 15:17-21 starting in July 2017. 14 Ms. Ruiz erroneously Comp., Exh. GG, Zapien testified that she “retired” 15 Decl. at ¶ 6. in July 2017. Technically, 16 per Luis Zapien’s declaration, Ms. Ruiz 17 began a permanent leave of absence in July 2017, 18 and officially retired two years later in 2019. But 19 the fact remains that she 20 no longer worked at EDD effective July 2017, 21 which is the material fact. 22 35. Effective September 1, 2016, 35. Undisputed EDD reorganized the field 23 Regions in the Central Valley, 24 and Janet Neitzel became the Deputy Division Chief over 25 the Modesto cluster. 26 Comp., Exh. AA, Neitzel Decl. at ¶ 3. 27 28 11 DEFENDANTS’ REPLY TO PLAINTIFF’S RESPONSE TO DEFENDANTS’ SEPARATE STATEMENT; DEFENDANTS’ RESPONSE TO PLAINTIFF’S SEPARATE STATEMENT(Case No. CV-9000647) 1 EDD’S UNDISPUTED PLAINTIFF’S RESPONSE EDD’S REPLY TO 2 MATERIAL FACTS AND AND SUPPORTING PLAINTIFF’S SUPPORTING EVIDENCE EVIDENCE RESPONSE 3 36. From approximately August 36. Undisputed 4 2015 to October 2016, Plaintiff’s immediate 5 supervisor was EPM I Matilde 6 Peña-Hernandez. 7 Comp., Exh. B, Hollinshed Depo. II at 309:19-23, 370:23- 8 371:3; Comp., Exh. GG, Zapien Decl. at ¶ 8. 9 10 37. After Plaintiff returned to 37. Undisputed work in March 2016, Ms. 11 Peña-Hernandez did not give Plaintiff any write-ups, 12 counseling memoranda, or other types of corrective 13 action. 14 Comp., Exh. DD, Rachal 15 Decl. at ¶ 12; Comp., Exh. GG, Zapien Decl. at ¶ 9(a). 16 38. On July 31, 2016, Ms. Peña- 38. Undisputed 17 Hernandez approved 18 Plaintiff’s merit salary adjustment (raise). 19 Comp., Exh. GG, Zapien 20 Decl. at ¶ 9(b); Comp., Exh. HH. 21 22 39. In October 2016, Plaintiff 39. Undisputed went out on a second medical 23 leave of absence. 24 Comp., Exh. AA, Neitzel Decl. at ¶ 8; Comp., Exh. BB 25 at p. 2; Comp., Exh. DD, 26 Rachal Decl. at ¶ 6. 27 28 12 DEFENDANTS’ REPLY TO PLAINTIFF’S RESPONSE TO DEFENDANTS’ SEPARATE STATEMENT; DEFENDANTS’ RESPONSE TO PLAINTIFF’S SEPARATE STATEMENT(Case No. CV-9000647) 1 EDD’S UNDISPUTED PLAINTIFF’S RESPONSE EDD’S REPLY TO 2 MATERIAL FACTS AND AND SUPPORTING PLAINTIFF’S SUPPORTING EVIDENCE EVIDENCE RESPONSE 3 40. Plaintiff alleges that Ms. 40. Undisputed 4 Peña-Hernandez asked two of her co-workers to write letters 5 against her stating she was not 6 doing her job, but that neither co-worker wrote a letter 7 regarding Plaintiff. 8 Comp., Exh. A, Hollinshed Depo. I at 109:2-18, 110:4-8; 9 Comp., Exh. B, Hollinshed 10 Depo. II at 312:16-313:20, 314:2-24; Request for Judicial 11 Notice (“RJN”), Exh. 1. 12 41. Ms. Rachal transferred to the 41. Undisputed Modesto field office in 13 February 2017. 14 Comp., Exh. DD, Rachal 15 Decl. at ¶ 2. 16 42. Plaintiff returned to work in 42. Undisputed March 2017. 17 18 Comp., Exh. DD, Rachal Decl. at ¶ 6. 19 43. As an EPM I, Ms. Rachal 43. Undisputed 20 supervised Plaintiff after she returned from her leave of 21 absence in March 2017. 22 Comp., Exh. DD, Rachal 23 Decl. at ¶¶ 3, 6; Comp., Exh. AA, Neitzel Decl. at ¶ 4.. 24 44. Shortly after Plaintiff returned 44. Disputed. Remains materially 25 to work, she began refusing to undisputed. 26 present workshops, and Plaintiff continued to Ms. Harris testified that claimed that she was too participate in the preparation Plaintiff presented a 27 anxious to present workshops and presentation of workshop “at least one anymore in light of the workshops, even while she time.” But otherwise, 28 was suffering from depression Plaintiff only “assisted” 13 DEFENDANTS’ REPLY TO PLAINTIFF’S RESPONSE TO DEFENDANTS’ SEPARATE STATEMENT; DEFENDANTS’ RESPONSE TO PLAINTIFF’S SEPARATE STATEMENT(Case No. CV-9000647) 1 EDD’S UNDISPUTED PLAINTIFF’S RESPONSE EDD’S REPLY TO 2 MATERIAL FACTS AND AND SUPPORTING PLAINTIFF’S SUPPORTING EVIDENCE EVIDENCE RESPONSE 3 depression and stress she and anxiety. with workshops by 4 suffered as a result of Ms. setting up the workshop, Ruiz’s alleged wrongful Harris Depo. I at 33:2-36:18 handing out papers and 5 pencils, collecting conduct. paperwork, and verifying 6 IDs. The fact remains Comp., Exh. DD, Rachal that shortly after Plaintiff 7 Decl. at ¶ 6; Comp., Exh. AA, returned to work (i.e., Neitzel Decl. at ¶ 4; Comp., after presenting a 8 Exh. GG, Zapien Decl. at ¶ workshop once or twice), 9(c). she began refusing to 9 present workshops entirely, which Ms. 10 Harris admits. Plf’s Comp., Exh. D, 11 Harris Depo. I at 34:2-10. 12 45. Plaintiff alleges that Ms. 45. Undisputed Rachal “harassed” her by 13 asking one of Plaintiff’s co- 14 workers to attend one of Plaintiff’s workshops and 15 report back to Ms. Rachal. 16 Comp., Exh. A, Hollinshed Depo. I at 109:2-110:8. 17 18 46. EDD’s Reasonable 46. Undisputed Accommodation Program 19 analyzed Plaintiff’s request to be excused from presenting 20 workshops, but on June 13, 2017, they determined that 21 Plaintiff could not be 22 accommodated, because workshops were an essential 23 function of the job. 24 Comp., Exh. GG, Zapien Decl. at ¶ 9(c); Comp., Exh. 25 II; Comp., Exh. DD, Rachal 26 Decl. at ¶ 6; Comp., Exh. AA, Neitzel Decl. at ¶ 4. 27 28 14 DEFENDANTS’ REPLY TO PLAINTIFF’S RESPONSE TO DEFENDANTS’ SEPARATE STATEMENT; DEFENDANTS’ RESPONSE TO PLAINTIFF’S SEPARATE STATEMENT(Case No. CV-9000647) 1 EDD’S UNDISPUTED PLAINTIFF’S RESPONSE EDD’S REPLY TO 2 MATERIAL FACTS AND AND SUPPORTING PLAINTIFF’S SUPPORTING EVIDENCE EVIDENCE RESPONSE 3 47. After the Reasonable 47. Undisputed 4 Accommodation Program made this decision, Ms. 5 Rachal issued several 6 counseling memoranda to Plaintiff during June, July, and 7 August 2017, primarily for Plaintiff’s refusal to present 8 workshops. 9 Comp., Exh. DD, Rachal 10 Decl. at ¶¶ 7, 10; Comp., Exh. AA, Neitzel Decl. at ¶ 5. 11 48. EDD sent Plaintiff for a 48. Undisputed 12 Fitness-For-Duty evaluation in August 2017, but the 13 physician determined that 14 Plaintiff was not disabled from performing the essential 15 functions of her job. 16 Comp., Exh. GG, Zapien Decl. at ¶ 9(d); Comp., Exh. JJ 17 at p. 1; Comp., Exh. DD, 18 Rachal Decl. at ¶ 10; Comp., Exh. AA, Neitzel Decl. at ¶ 6. 19 49. Plaintiff continued to refuse to 49. Disputed Remains materially 20