Moore v. Cal. Dep't of Corr. & Rehab.

Decision Date23 October 2012
Docket NumberCASE NO. CV F 10-1165 LJO SMS
CourtU.S. District Court — Eastern District of California




Defendant California Department of Corrections and Rehabilitation ("CDCR") seeks summary judgment on pro se plaintiff Candy Q. Moore's ("Ms. Moore's") Title VII1 hostile environment and retaliation claims arising during her temporary nursing stint at CDCR's Valley State Prison for Women ("VSPW"). Ms. Moore filed papers which offer no meaningful opposition to summary judgment forCDCR. This Court considered CDCR's summary judgment motion on the record2 without a hearing, pursuant to Local Rule 230(g). For the reasons discussed below, this Court GRANTS CDCR summary judgment.


Ms. Moore is black and during March 5, 2007 to January 4, 2008 performed Licensed Vocational Nursing ("LVN") services on a temporary relief basis at VSPW through Supplemental Health Care Services, Inc. ("SHC"), a nursing registry which contracted with CDCR to supply temporary nurses. Ms. Moore claims that she was subject to a hostile work environment and retaliation for filing discrimination/retaliation complaints. CDCR seeks summary judgment in the absence of facts to support Ms. Moore's claims.

Ms. Moore's SHC Employment

SHC, not CDCR, employed Ms. Moore subject to SHC's ability to provide Ms. Moore available work to satisfy requirements of SHC clients, such as CDCR. CDCR and Ms. Moore entered into no contract, and Ms. Moore was not guraranteed assignments to particular prison locations or shifts. VSPW was free to terminate the services of an SHC employee and treated temporary nurses as floaters.

August 30, 2007 Alarm Pressing Incident

On August 30, 2007, Charles Funch ("Mr. Funch"), a white CDCR-employed nurse, attempted to stop Ms. Moore's dressing change of an inmate at the VSPW B Yard medical clinic3 because Mr. Funch wanted to count narcotics. Mr. Funch told Ms. Moore if she did not have the inmate leave immediately, he would press his alarm to which correctional officers responded ("alarm incident"). Mr. Funch made no racist remarks to Ms. Moore. Ms. Moore did not tell then VSPW Director of NursingJudy Tucker ("Ms. Tucker") or Ms. Moore's supervisor Curtis Mangram ("Mr. Mangram")4 that Ms. Moore believed that Ms. Funch pressed the alarm because Ms. Moore is black and that he disliked blacks. Ms. Moore's type-written and signed statement of the alarm incident made no reference to race.

Mr. Funch was transferred from his regular B Yard post to the medical records unit where he was ineligible to volunteer for overtime during investigation of the alarm incident, which included an interview of Ms. Moore. Prior to the alarm incident, Mr. Funch frequently had volunteered for overtime. LVN Connie Struble told Ms. Moore that Mr. Funch was angry with Ms. Moore because Mr. Funch lost four to six weeks of overtime.

Mr. Funch's Return To B Yard

On October 16, 2007, Mr. Funch returned to his regular B Yard position and began to complain to Ms. Tucker and supervisors as to Ms. Moore's inadequate job performance and harassment of Mr. Funch. Ms. Moore claims that on Mr. Funch's first day back at B Yard, Mr. Funch awaited her in the dark at the beginning of their shift, and Ms. Moore was frightened because Mr. Funch did not do anything. Ms. Moore has no clue what Mr. Funch was doing in the dark before she arrived.

During the following week, Mr. Funch telephoned supervisors to complain about Ms. Moore and threatened to file a union grievance. Ms. Moore attributes Mr. Funch to have said that he is a state, union worker and "[s]he needs to leave." Ms. Moore claims that Mr. Funch called her a liar and lazy and slammed the door on her.

Ms. Moore's Reassignment Off B Yard

Mr. Mangram advised Ms. Tucker that although Mr. Funch was often rude and disrespectful, there was an unusual level of conflict between Mr. Funch and Ms. Moore that he attributed to a personality conflict. Mr. Mangram and other supervisors reported to Ms. Tucker that the conflict disrupted B Yard medical staff. On October 21, 2007, Ms. Tucker decided to separate Ms. Moore and Mr. Funch to end the B Yard disruption, and Ms. Moore was reassigned to VSPW locations other than B Yard ("reassignment off B Yard").

Ms. Moore's Shift Change

In early November 2007, Marihelen Afonso ("Ms. Afonso") became acting Scheduling Nurse and scheduled all LVN's at VSPW. On November 12, 2007, Ms. Afonso switched Ms. Moore from the second (10 a.m. to 6 p.m) shift to the third (6 p.m. to 2 a.m.) shift ("shift reassignment") because:

1. Ms. Moore was registry nurse to perform temporary relief work;
2. Staffing for the third shift was insufficient but was sufficient for the second shift;
3. Ms. Moore had experience and training, unlike newer staff, and needed less supervision, and there were fewer supervisors on the third shift than there were on the second shift.

Ms. Moore attributes Ms. Afonso to have switched her to the third shift because prior to Ms. Afonso's becoming a scheduling nurse, Ms. Moore rejected Ms. Afonso's request to place an inmate on the telephone because medications were out.

Ms. Moore's First Internal Discrimination Charge

Ms. Moore submitted to CDCR a November 27, 2007 discrimination complaint ("November 27 charge")5 to check boxes for color, race and retaliation as the basis of her complaint. The November 27 charge references her preclusion of B Yard assignments "without notice" and that she was "constantly harrassed/slander [sic] put down to other state medical workers and supervisors on a daily basis while working on B medical."

Ms. Tucker's Telephone Call To Ms. Moore's Residence

On November 13, 2007 in Ms. Afonso's office, Ms. Moore asked Ms. Afonso why Ms. Moore was not scheduled for B Yard, and Ms. Afonso threw Ms. Tucker's October 22, 2007 note ("October 22 note"), which stated: "Please do not utilize contract LVN Moore on Facility B clinic any longer. See me to explain." (Underlining in original.) Ms. Tucker orally explained to the scheduling nurse her intent to preclude Ms. Moore and Mr. Funch to work the B Yard during the same shift.

In late November 2007, Ms. Tucker telephoned Ms. Moore's residence ("residence call") in response to Ms. Moore's request for the October 22 note. Ms. Tucker explained to Ms. Moore that she would not give a copy of the October 22 note to Ms. Moore, whom Ms. Tucker characterizes asbecoming "very upset" and hung up the telephone. Ms. Moore attributes the residence call to upset Ms. Moore.

Ms. Moore's Second Internal Discrimination Charge

Ms. Moore submitted to CDCR a November 30, 2007 discrimination complaint ("November 30 charge")6 to check boxes for color, race and retaliation as the basis of her complaint. The November 30 charge references the residence call, preclusion of B Yard assignments, and shift changes. The November 30 charge claims that Mr. Funch treated her like a slave and was a racist but does not attribute specific racist conduct to Mr. Funch.

Non-Written Response To Ms. Moore's Memorandum To Request Reassignment

Ms. Afonso received Ms. Moore's December 11, 2007 memorandum ("December 11 memorandum") to request reassignment to the second shift due to child care issues. Ms. Tucker directed Ms. Afonso not to respond to the December 11 memorandum ("non-response to December 11 memorandum") in writing because her status as a temporary registry worker did not merit a response.

Ms. Moore attributes the absence of Ms. Afonso's response to her December 11 memorandum as retaliation for submitting the November 27 charge and naming Ms. Afonso in it.

January 4, 2007 Altercation With Ms. Afonso

On January 4, 2007, Ms. Moore called Ms. Afonso from within VSPW to advise that Ms. Moore was working the second shift because she did not know to which shift she was assigned. Following Ms. Tucker's directive, Ms. Afonso instructed Ms. Moore to go home and return for her scheduled third shift.

Ms. Moore went to Ms. Afonso's office and demanded a written response to her December 11 memorandum. Ms. Afonso told Ms. Moore that Ms. Afonso would not provide a written response and attributes Ms. Moore to say in an aggressive tone: "I'm going to get you and Judy Tucker's jobs." Ms. Moore rejected Ms. Afonso's directive to leave and advanced toward Ms. Afonso, who describes herself as in her 60s and substantially older and smaller than Ms. Moore. In her declaration, Ms. Afonso states:

I felt threatened by Ms. Moore's aggressive tone of voice and behavior, as well as her refusal to leave. I was very frightened for my safety; I was really afraid for my life. Ms. Moore did not leave my office until I picked up my telephone - an action that sendsa message to correctional officers to respond to an emergency.

Ms. Afonso reported the incident with Ms. Moore ("January 4 incident") to Ms. Tucker, who arranged for review of the January 4 incident by the VSPW Threat Assessment Team ("threat team"), which comprises VSPW management and security. The threat team decided that the January 4 incident met criteria for workplace violence and to terminate Ms. Moore's services at VSPW.

SHC did not terminate the employment of Ms. Moore, who remained eligible for placement with other SHC clients.

Ms. Moore's Claims

Ms. Moore proceeds on her second amended complaint ("SAC") which is disorganized, repetitive and difficult to discern. The SAC generally alleges that Mr. Funch racially harassed Ms. Moore, that CDCR did not adequately investigate or remediate the harassment after Ms. Moore reported it, and that for filing discrimination charges, Ms. Moore was subject to retaliation, including changed work assignments and inability to continue to work at VSPW.

Summary Judgment Standards

CDCR contends that Ms. Moore is unable to substantiate the SAC's Title VII hostile environment and retaliation claims to...

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