Knox v. Contra Costa Cnty.

• Decision Date: 24 June 2022
• Docket Number: 20-cv-01449-JCS
• Parties: MARY ELIZABETH KNOX, et al., Plaintiffs, v. CONTRA COSTA COUNTY, et al., Defendants.
• Court: United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California

MARY ELIZABETH KNOX, et al., Plaintiffs,
v.
CONTRA COSTA COUNTY, et al., Defendants.

No. 20-cv-01449-JCS

United States District Court, N.D. California

June 24, 2022

ORDER RE: 1) DEFENDANTS' MOTION FOR SUMMARY JUDGMENT OR, ALTERNATIVELY, PARTIAL SUMMARY JUDGMENT 2) DEFENDANTS' MOTION TO EXCLUDE OPINIONS AND TESTIMONY OF PLAINTIFFS' EXPERT DR. PETER GLICK 3) PLAINTIFFS' MOTION FOR SANCTIONS FOR VIOLATION OF THE PROTECTIVE ORDER RE: DKT. NOS. 95, 96, 101

JOSEPH C. SPERO, Chief Magistrate Judge.

I. INTRODUCTION

Plaintiffs Mary Elizabeth Knox, Rachel Piersig, Alison Chandler, Mary Blumberg and Jill Henderson, who are or were deputy district attorneys in the Contra Costa County District Attorney's Office (“DA's Office” or “Office”), bring this action against Contra Costa County and the DA's Office asserting claims of gender and age discrimination. Presently before the Court are: 1) Defendants' Motion For Summary Judgment Or, Alternatively, Partial Summary Judgment (“Summary Judgment Motion”); 2) Defendants' Motion To Exclude Opinions And Testimony Of Plaintiffs' Expert Dr. Peter Glick (“Motion to Exclude”); and 3) Plaintiffs' Motion For Sanctions For Violation Of The Protective Order (“Sanctions Motion”). A hearing on the motions was held on June 10, 2022 at 9:30 a.m.

As described in more detail below, the parties' briefing on these motions was

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disappointing. At times, Defendants have made arguments that are clearly contrary to established law or the facts in the case. On the other hand, Plaintiffs made almost no attempt in their briefing to define for the Court the parameters of their case - including the specific adverse employment actions on which they base their claims. Indeed, at the hearing, the Court was forced to use the valuable time of counsel in this case, counsel in the other cases on calendar who were waiting for their matters to be called, and the Court, to list out and confirm the specific adverse employment actions at stake in this case. Finally, it is clear from the briefing that many (but not all) of the adverse employment actions extracted by the court at oral argument may be subject to dismissal on summary judgment based on the look-back periods under FEHA or Title VII. Unfortunately, neither party grappled with that issue on an adverse employment action by adverse employment action basis. The Court, as described below, will order further briefing on that issue. However, the parties should know that, in the future, the failure to raise an issue in sufficient detail may result the court holding that the argument has been waived. The Court's rulings are set forth below.^[1]

II. BACKGROUND

This action was initiated on February 26, 2020. Plaintiffs filed the Second Amended Complaint (“SAC”), which is the operative complaint, on March 22, 2021. In the SAC, Plaintiffs assert the following claims: 1) gender discrimination in violation of California's Fair Employment and Housing Act, Cal. Gov't Code §12940 (“FEHA”) (asserted by all Plaintiffs against all Defendants); 2) age discrimination in violation of FEHA (asserted by Plaintiffs Knox, Piersig, Chandler and Henderson against all Defendants); 3) failure to take action to prevent discrimination and retaliation based on gender in violation of FEHA (asserted by all Plaintiffs against all Defendants); 4) retaliation for protected activity involving complaints about gender discrimination in violation of FEHA (asserted by all Plaintiffs against all Defendants); 5) gender discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (asserted by all Plaintiffs against all Defendants); 6) age discrimination in violation of the Age

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Discrimination in Employment Act of 1967 (as amended, 29 U.S.C. §§ 621-634) (“ADEA”) (asserted by Plaintiffs Knox, Piersig, Chandler and Henderson against all Defendants); and 7) retaliation for protected activity involving complaints about gender discrimination in violation of Title VII (asserted by all Plaintiffs against all Defendants).

The SAC alleges that all five Plaintiffs exhausted their administrative remedies by filing complaints with the California Department of Fair Employment and Housing (“DFEH”) and receiving right-to-sue letters. SAC ¶¶ 13 (alleging Knox filed a complaint with DFEH on September 4, 2019 and received a right to sue notice on the same date); 14 (alleging Piersig filed a complaint with DFEH on August 23, 2019 and received a right-to-sue notice on the same date); 15 (alleging Chandler filed a complaint with DFEH on September 11, 2019 and received a right-to-sue notice on the same date); 16 (alleging Blumberg filed a complaint with DFEH on November 21, 2019 and received a right-to-sue notice on the same date); 17 (alleging Henderson filed a complaint with DFEH on May 14, 2020 and received a right-to-sue notice on the same date). It is undisputed that in her complaint to the DFEH, Chandler alleged discrimination on the basis of sex and retaliation but did not allege she was discriminated against on the basis of her age. See Declaration of John Fish in Support of Defendants' Motion for Summary Judgment or, Alternatively, Partial Summary Judgment (“Fish MSJ Decl.”) ¶ 2 & Ex. A.

It is also undisputed that Plaintiffs did not file complaints with the Equal Opportunity Employment Commission (“EEOC”) until November 2021, more than seven months after the operative complaint in this case was filed and twenty-one months after the action was initiated. See Fish MSJ Decl. ¶ 5 & Ex. C. In particular, Plaintiffs filed complaints with the EEOC as follows: 1) Blumberg filed a complaint for age and sex discrimination and retaliation with the EEOC on November 29, 2021; 2) Chandler filed a complaint for age and sex discrimination with the EEOC on November 23, 2021; 3) Henderson filed a complaint for age and sex discrimination and retaliation with the EEOC on November 23, 2021; 4) Knox filed a complaint for age and sex discrimination with the EEOC on November 18, 2021; and 5) Piersig filed a complaint for age and sex discrimination and retaliation with the EEOC on November 29, 2021. Id.

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III. SUMMARY JUDGMENT MOTION

A. The Parties' Contentions

1. The Motion

In their Summary Judgment Motion, Defendants contend Plaintiffs' Title VII^[2] claims must be dismissed as untimely as to most of the conduct alleged in the SAC because it falls outside of the 300-day limitations period under 42 U.S.C. § 2000e-5(e)(1), which applies to EEOC charges that were filed with the appropriate state enforcement agency. Summary Judgment Motion at 15-17. According to Defendants, because Plaintiffs filed their EEOC complaints in late November 2021, their federal claims must be based on conduct that occurred on or after late January 2021 to be timely. Id. at 16. In addition, they assert, any allegations of discriminatory conduct that occurred after the SAC was filed, in March 2021, cannot be considered because Plaintiffs did not amend their complaint to include allegations related to that conduct. Id. Thus, for example, even though Knox included allegations in her EEOC complaint about a failure to promote in the summer of 2021, that conduct is not included in the SAC and therefore cannot be considered, Defendants contend. Id. at 16 n. 11.

Defendants also assert that the Court should dismiss Chandler's FEHA claims to the extent they are based on age discrimination or retaliation for protected activity related to age discrimination because they fall outside of the scope of her FEHA complaint (which alleged only age discrimination) and therefore were not properly exhausted. Id. at 17.

Defendants argue further that they are entitled to summary judgment on Plaintiffs' claims because Plaintiffs cannot demonstrate any genuine dispute of fact as to discriminatory intent under the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Id. at 17. In particular, Defendants contend Plaintiffs cannot produce enough evidence to

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make a prima facie case of discriminatory intent and that even if they could, they cannot point to “significant, substantial evidence” that Defendants' legitimate and non-discriminatory reasons for their conduct were pretextual. Id. at 18.

According to Defendants, Plaintiffs' claims are based on four categories of conduct: “(1) complaints about lateral assignments (Level 4 to Level 4); (2) alleged exclusion from committee membership and training positions; (3) Knox's demotion from Level 5 to Level 4; and (4) an alleged failure to promote Knox, Piersig and Henderson from Level 4 to Level 5.” Id. They argue that Plaintiffs' claims fail as a matter of law as to the lateral assignments and exclusions from committee memberships and training positions because they “did not involve a demotion, reduction in pay, loss of benefits, a less distinguished title or a notable change in hours worked” and therefore, were not adverse employment actions under federal or California law, which is a required element for making a prima facie case of discrimination. Id. at 18-19.

Defendants further contend Plaintiffs' discrimination claims fail even as to the adverse employment actions that remain because there is no dispute that Defendants had legitimate, non-discriminatory reasons for their actions and Plaintiffs cannot point to specific and substantial evidence that these reasons are pretext. Id. at 19-23. In particular, Defendants concede that Knox's demotion in 2018 is an adverse employment action but argue the discrimination claims asserted on the basis of that demotion nonetheless fail as a matter of law because Defendants had a legitimate, non-discriminatory reason for the demotion, namely, that “Knox had a poor reputation when it came to trust and chain of command” and “DA Becton had been notified about several complaints by attorneys who feared retaliation by Knox and she [therefore]...