Zhang v. Cnty. of Monterey

Decision Date24 April 2018
Docket NumberCase No. 17-CV-00007-LHK
PartiesJACQUELINE ZHANG, Plaintiff, v. COUNTY OF MONTEREY, et al., Defendants.
CourtU.S. District Court — Northern District of California
Re: Dkt. No. 51

Plaintiff Jacqueline Zhang ("Plaintiff") sues Defendant County of Monterey1 (the "County") for causes of action arising out of the County's termination of Plaintiff's employment with the County. Before the Court is the County's motion for summary judgment. ECF No. 51 ("Mot."). Having considered the parties' briefing, the relevant law, and the record in this case, the Court GRANTS the County's motion for summary judgment as to all but one of Plaintiff's causesof action, and DISMISSES Plaintiff's remaining cause of action without prejudice.

A. Factual Background

Plaintiff is an Asian woman "whose national origin is Chinese." ECF No. 1 ("Compl.") ¶ 7. Plaintiff "is a native of China" and immigrated to the United States from China in 1996. Id.; ECF No. 52-1, ¶ 2. English is Plaintiff's second language, and thus Plaintiff speaks English with an accent. ECF No. 52-1 ¶ 2. However, Plaintiff states that her "understanding of English is excellent." Id.

Plaintiff has been a licensed California Certified Public Accountant since 2011. Id. ¶ 3. Before working for the County, Plaintiff had at least ten years of experience in accounting and finance. Id. ¶ 4. However, Plaintiff had never worked a government accounting job before working for the County. ECF No. 52, Exh. 21 at 25 (deposition testimony of Plaintiff confirming that "[t]he first government accounting job that [Plaintiff] worked was with the County"). On September 9, 2015, Plaintiff signed a letter confirming that the County's Parks Department had made a "conditional offer" of employment to Plaintiff and that Plaintiff had accepted the conditional offer. ECF No. 52, Exh. 1. Specifically, the letter confirmed that Plaintiff had been extended a conditional offer to work in "the Finance Manager I position in the Parks Department with a tentative start date of Monday, October 5, 2015." Id. The letter also indicated that the person to whom Plaintiff would "report" would be "Mark Mariscal, Director of Parks," and that Plaintiff's "hours of work" would "typically" be "Monday through Friday, 8:00 a.m. to 5:00 p.m." Id. Finally, the letter stated that Plaintiff would have to serve "a probationary period of twelve (12) months." Id. This was in line with the version of the County's Personnel Policies and Practices Resolution ("Personnel Policies") that was in effect at all times relevant to the instant case. Specifically, under the Personnel Policies, employees like Plaintiff were required to serve an initial "probationary period" before being appointed "to a permanent or seasonal position." ECF No. 52, Exh. 17 at D00006. Further, the Personnel Policies provided that (1) "[u]nless a shorter initial probationary period is set forth in the applicable memorandum of understanding, this[probationary] test period shall be a minimum of twelve (12) months"; and (2) during a County employee's "initial probationary period," the employee "serves at the pleasure of the appointing authority" of the County and "shall have no right to appeal from" any "adverse action" taken by the County against the employee. Id.

On September 29, 2015, Mark Mariscal sent an email to Plaintiff to "extend an invitation to" Plaintiff to attend a Parks Commission meeting on Thursday, October 1, 2015. ECF No. 52, Exh. 2. In the email, Mr. Mariscal stated that Plaintiff "may want to spend 30-60 minutes just sitting and listening to the meeting" in order to get a "'flavor' of some of the work" that the Parks Department did. Id. However, Mr. Mariscal also wrote that "[i]f you cannot make it, do not worry about it." Id. Plaintiff accepted Mr. Mariscal's invitation and attended the Parks Commission meeting on October 1, 2015. See id.

Next, on the morning of Monday, October 5, 2015, Plaintiff started her first day in the Parks Department office and spent part of the morning in the County's human resources office completing certain "initial preemployment or employment documents." ECF No. 52, Exh. 21 at 53-55. Among those documents was an "Emergency Contact Form" and "a whole set of [other] documents" and "paperwork," some of which required Plaintiff to "provide [her] social security number." Id.

Plaintiff worked under the supervision of Mr. Mariscal for approximately the next nine months. During this time, Mr. Mariscal received complaints about the abrupt tone of some of Plaintiff's email communications. ECF No. 52, Exh. 22 at 39 (deposition testimony from Mr. Mariscal stating that "other people" had reached out to Mariscal because "they felt that maybe either the way that [Plaintiff] said something to them might have been—'offensive' is a strong word, and I don't mean that. But they didn't feel, you know, they just felt that they needed to say something to me"). Nonetheless, in a July 15, 2016 performance appraisal of Plaintiff, Mr. Mariscal wrote positive remarks about Plaintiff and gave her an "overall rating" of "above standard." ECF No. 52, Exh. 4. Further, Mr. Mariscal wrote in the July 15, 2016 performance appraisal that Plaintiff "easily passes her probation." Id. However, the performance appraisal alsocontained a check box to indicate "Retention/Permanent Status," and Mr. Mariscal never checked that box. Id.; see ECF No. 52, Exh. 22 at 80-83. During his deposition, when asked about his written remark that Plaintiff "easily passes her probation," Mr. Mariscal affirmatively clarified that the remark was an error that stemmed from his incorrect belief at the time that Plaintiff was only required to serve a nine-month initial probationary period instead of a twelve-month initial probationary period, and that he realized his error the next day. See ECF No. 52, Exh. 22 at 80-83 ("Let me state I was wrong.").

In July 2016, as part of a reorganization process within the County, the County's Resource Management Agency ("RMA") began overseeing the Parks Department. See ECF No. 53 ¶ 5; ECF No. 60-2 ¶ 20. At this same time, Mr. Mariscal resigned from his position with the County and Shawn Ellerbee, the Deputy Director of Administrative Services for the RMA, became Plaintiff's new supervisor. See ECF No. 53 ¶ 3; ECF No. 60-2 ¶ 23. While Mr. Mariscal's work experience had largely been in parks and recreation and management, ECF No. 52, Exh. 22 at 19-20, Ms. Ellerbee had over 30 years of experience in accounting. ECF No. 53 ¶ 2. During her time as Plaintiff's supervisor, Ms. Ellerbee noticed several accounting mistakes by Plaintiff that appeared to stem from a lack of familiarity with governmental accounting rules. See ECF No. 53 ¶ 5. For example, Ms. Ellerbee states that on one occasion, Plaintiff tried to classify a transfer of funds as deferred revenue when, according to Ms. Ellerbee, such a classification was not possible under governmental accounting rules. Id. On another occasion, Ms. Ellerbee states that Plaintiff submitted financial statements that overstated expenditures because she used the "accrual" method of accounting instead of the "modified" method used in governmental accounting. Id. On another occasion, Plaintiff did not understand that funds owed to the County, but not received within sixty days of year-end, cannot be shown on financial statements as revenue. Id.

Additionally, shortly after Ms. Ellerbee began supervising Plaintiff, Ms. Ellerbee "noticed that [P]laintiff's emails to vendors and co-workers were sometimes disrespectful in tone" and thus met with Plaintiff to tell Plaintiff that Plaintiff's "emails were coming across as discourteous and that they needed to be softened in tone." ECF No. 53 ¶ 6. Then, on August 11, 2016, one of thevendors, California Parks Company ("CalParks")—which provided services to the Parks Department in operating recreational areas in the southern parts of the County, ECF No. 53 ¶ 7—reached out to Ms. Ellerbee to complain about Plaintiff's email communications. Specifically, Dina Del Dotto, the Finance Director of CalParks, requested a meeting with Ms. Ellerbee "to discuss [Ms. Del Dotto's] concerns with [P]laintiff's interactions with CalParks' staff." ECF No. 53 ¶ 7. Subsequently, Ms. Del Dotto and CalParks General Manager Mark Sandoval met with Ms. Ellerbee and told Ellerbee that "they thought [P]laintiff's verbal and email communications with CalParks' staff were unfair and unprofessional." Id.; accord ECF No. 55 ¶ 4. They also stated that "they did not feel comfortable having [P]laintiff communicate with" some "new financial staff members, and thus "requested that [those new staff members] work with someone other than [P]laintiff." Id.

Further, on August 22, 2016, Ms. Ellerbee observed that Plaintiff had sent an email to Parks Operations Manager Richard Riddle and Office Assistant Heather Lasley that, in Ms. Ellerbee's opinion, was "discourteous." ECF No. 53 ¶ 8; ECF No. 52, Exh. 10. Thus, Ms. Ellerbee met with Plaintiff once again to tell Plaintiff to "soften the tone of her emails so that they do not sound disrespectful." ECF No. 53 ¶ 8; ECF No. 52, Exh. 21 at 100 (deposition testimony from Plaintiff stating that "Ms. Ellerbee called me to her office" regarding "the [August 22, 2016] e-mail I sent to Richard Riddle . . . and Heather [Lasley]" and "said [Plaintiff] shouldn't use . . . any phrase to make them feel less respected").

Then, on September 27, 2016, Ms. Lasley emailed Ms. Ellerbee to request an opportunity to speak about Plaintiff's email communications. Specifically, Ms. Lasley stated that she wanted "to get a few things cleared up" because Plaintiff copied Ms. Ellerbee on all email communications and Ms. Lasley "didn't like how [Plaintiff] [was] portraying" Ms. Lasley in those emails. ECF No. 52, Exh. 19. Later that day, Ms. Lasley spoke with Ms. Ellerbee and complained that Plaint...

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