Cozzi v. County of Marin

• Decision Date: 18 April 2011
• Docket Number: No. C 08–3633 PJH.,C 08–3633 PJH.
• Citation: 787 F.Supp.2d 1047
• Parties: Maria COZZI, et al., Plaintiffs,v.COUNTY OF MARIN, et al., Defendants.
• Court: U.S. District Court — Northern District of California

787 F.Supp.2d 1047

Maria COZZI, et al., Plaintiffs,

v.COUNTY OF MARIN, et al., Defendants.

No. C 08–3633 PJH.

United States District Court, N.D. California.

April 18, 2011.

David M. Poore, Kahn Brown & Poore LLP, Petaluma, CA, Scott A. Brown, Kahn Brown & Poore LLP, Emeryville, CA, for Plaintiffs.Stephen Robert Raab, Patrick Key Faulkner, San Rafael, CA, for Defendants.

ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

PHYLLIS J. HAMILTON, District Judge.

Defendants' motion for summary judgment as to the claims asserted by plaintiff MaryBeth Pascale came on for hearing before this court on February 9, 2011. Plaintiff appeared by her counsel David M. Poore, and defendants appeared by their counsel Sheila Shah Lichtblau. Having read the parties' papers and carefully considered their arguments, and good cause appearing, the court hereby GRANTS defendants' motion.

INTRODUCTION

This is a case asserting age-related discrimination in employment, originally filed in July 2008 by nine plaintiffs. At the time of the events alleged in the complaint, the plaintiffs were employed by defendant County of Marin, and were supervised by defendants Mario Zamudio (“Zamudio”) and Gretchen Melendy (“Melendy”). Since the filing of the complaint, the court has granted summary judgment as to the claims asserted by plaintiff Martha Grigsby (“Grigsby”), and the parties have stipulated to the dismissal of claims asserted by six other plaintiffs. Remaining in the case are plaintiffs Maria Cozzi and MaryBeth Pascale.

Plaintiffs assert causes of action for (1) age discrimination, in violation of the California Fair Employment and Housing Act (“FEHA”), Cal. Gov't Code § 12900, et seq., and the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621, et seq.; (2) association discrimination, in violation of FEHA, Title VII of the 1964 Civil Rights Act (“Title VII”), 42 U.S.C. § 2000e, et seq., and the ADEA; (3) retaliation, in violation of FEHA, Title VII, and the ADEA; (4) harassment, in violation of FEHA, Title VII, and the ADEA; (5) failure to prevent harassment and discrimination, in violation of FEHA and Title VII; violation of federal anti-discrimination statutes and the First and Fourteenth Amendments to the United States Constitution, under 42 U.S.C. §§ 1983 and 1985; and violations of Article 1, sec. 7 of the California Constitution.

Plaintiffs have withdrawn the constitutional claims, with the exception of the First Amendment claim. Now before the court is the motion for summary judgment as to the claims asserted by MaryBeth Pascale (“Pascale”).

BACKGROUND ¹

Pascale has been employed by the County of Marin since 2001, in the Administrative Services Division of the Marin County Probation Department (“the Department”). In July 2003, Pascale was given a special merit pay increase. In March 2004, she was promoted over another candidate to the position of Senior Word Processing Operator. She has received every promotion she has applied for, and every scheduled pay increase, and her requests for training have always been granted. She has never received a written negative performance evaluation during her tenure with the Department. Her written performance evaluations have always reflected a rating of “meets” or “exceeds” standards.

Melendy was promoted to supervisor in 2006. Melendy and Pascale were on friendly terms the first few months after Melendy's promotion. However, their relationship began to sour in June 2006 when Pascale went to Melendy's office to complain about one of her co-workers, Beverly Hodges (“Hodges”). Pascale asked Melendy to transfer Hodges out of the unit because Hodges' work productivity was low. Pascale testified in her deposition that she also considered that Hodges had “negative energy.” Pascale felt there was “a lot of adversity” in their work relationship and that her job was becoming “difficult because of the personal tension in the environment.”

Pascale testified that because she believed there was “no basis for the negative energy,” she told Melendy that she considered Hodges to be a “troublemaker.” According to Pascale, when she called Hodges a “troublemaker,” Melendy responded by slapping her hands on the desk, jumping up from her chair, opening the door, and telling Pascale she would not have “that kind of talk” in her office. Melendy then waited for Pascale to leave, and slammed the door behind her.

A few weeks later, in late June 2006, a group of employees decided to meet at 10:30 a.m. to eat a pie that one of them had baked. Pascale, who had a previously scheduled 10:30 meeting with Melendy, went instead to the gathering to eat pie. Pascale testified that “[w]e chose to have a piece of pie at 10:30 exactly, and to not be in her office exactly at 10:30.” After the pie break, Pascale returned to her desk instead of going to the meeting. She found three e-mails from Melendy about the missed meeting and the need to reschedule.

These e-mails made Pascale upset. Pascale marched into Melendy's office and stated in a loud voice, “I cannot believe that you sent these e-mails about the pie.” Pascale testified that she began to argue with Melendy and told Melendy that “she needed to get over herself.” Pascale also told Melendy that she would not go to her in the future, even though Melendy was her supervisor.

Following this heated exchange, Melendy issued Pascale a written warning regarding her insubordination. Pascale wrote a rebuttal to the written warning. However, she also conceded the truth of many of the statements in the warning, including the fact that she had been insubordinate. Later, in her deposition, she admitted that she had been insubordinate, that she had expressed her displeasure at the e-mails in a loud voice, and that she had told Melendy she would not come to her in the future. The written warning was never placed in Pascale's personnel file.

In November and December 2006, Pascale was absent and tardy on a number of occasions. Melendy gave Pascale the option to come in at 9:30 a.m., but as Pascale admitted in her deposition, she still arrived late. Pascale had verbal discussions with Melendy regarding tardiness. During a six-week period in November and December 2006, Pascale was late five times and absent four times. In late December 2006, Melendy issued Pascale a work plan regarding her excessive absenteeism and tardiness.

The work plan provided that Pascale would relinquish her RDO (regular days off) days effective immediately; that her work hours would be from 9:30 to 5:00 with a half-hour lunch; that she must adhere to the prescribed policy for calling in sick (all absences to be approved four hours prior to the start of the shift); that she must be on time for her shift; that if she was going to be late, she must call in within fifteen minutes of the start of her shift; and that she would not be permitted to take vacation unless it had been requested and approved in advance of the desired leave date. The work plan was to remain in effect for six months, at which time the restrictions would be lifted if Pascale's use of leave had improved to a satisfactory level.

Pascale did not contest the part of the work plan related to her tardiness, but considered the work plan unfair because it characterized her sick days as “unauthorized” and required her to bring in a doctor's note for illnesses and to call in four hours before any absence, and also because it contained a warning that failure to follow the work plan would make her “subject to further disciplinary action, up to and including termination of [her] employment with the County of Marin.”

In early 2007, Pascale filed a union grievance against Melendy related to the work plan. Through union representation, the grievance was resolved to Pascale's satisfaction. Melendy agreed to shorten the work plan from six months to three months and to not require a doctor's note for absence due to illness, and agreed that Pascale would not need to call in prior to being sick, or fifteen minutes prior to her start time if she was late. Melendy also agreed to reinstate Pascale's RDO (regular days off) schedule after three months. The work plan was not placed in Pascale's personnel file. Pascale was taken off the work plan after three months.

Pascale claims that Melendy took action against her for filing the grievance about the work plan by directing her to type a manual for the Adult Unit of the Probation Department. Typing the manual was a task that was properly directed to the three-person word processing unit where Pascale worked, but she complained that Melendy had originally indicated that the job would be divided up between Pascale and her co-worker, Marina Cassimus.

Pascale conceded that Melendy praised her for typing the manual, and asked upper management to give her special recognition for doing this task. Pascale also admitted that while Ms. Cassimus worked “crazy” hours to assist Pascale with her regular workload during that time period, Pascale did not have to work any overtime as a result of having to type the manual. Although Pascale was originally asked to type two manuals, she actually typed one manual. The manual consisted of approximately 44 pages.

Also in early 2007, Melendy issued a memorandum to all administrative employees in the unit, indicating that they could not use their vacation to cover sick time. Pascale initiated another union grievance on behalf of the staff, contesting this policy on the basis that there was an established practice within the unit which allowed them to use vacation to cover sick time. The grievance was resolved when Melendy agreed to retract her memorandum.

The event that appears to have served as the impetus for the plaintiffs' claims of age discrimination occurred at a meeting on March 27, 2007. At that meeting, Melendy announced that she was appointing Margaret Steppler (“Steppler”), who was allegedly younger than the plaintiffs in this action, to temporarily perform...