1 WILLIAM R. TAMAYO - #084965 (CA) JONATHAN T. PECK -- #12303 (VA)
2 EVANGELINA FIERRO HERNANDEZ -- #168879 (CA) EQUAL EMPLOYMENT OPPORTUNITY
3 COMMISSION San Francisco District Office
4 350 The Embarcadero, Suite 500 San Francisco, California 94105
5 Telephone: (415) 625-5622 FacSimile: (415) 625-5657
6 Attorneys for Plaintiff Equal Employment Opportunity Commission
7

8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10

11 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
12 Plaintiff,
13 v.
14 CALIFORNIA PSYCHIATRIC
15 TRANSITIONS, INC.,
16 Defendant.
17

Civil Action No.
COMPLAINT Civil Rights - Employment Discrimmation
DEMAND FOR JURY TRIAL

18

NATURE OF THE ACTION

19

This action is brought pursuant to Title VII of the Civil Rights Act of 1964 ("Title

20 VII") and Title I of the Civil Rights Act of 1991 to correct unlawful employment

21 practices on the basis of sex and retaliation and to provide appropriate relief to

22 Charging Party Mariel Somera ("Charging Party Somera"), Charging Party Valeria

23 Soares ("Charging Party Soares") (collectively "Charging Parties") and other similarly

24 situated female employees who were adversely affected by such practices. Defendant

25 California Psychiatric Transitions, Inc., ("CPT" or "Defendant") subjected the Charging

26 Parties and similarly situated female employees to unlawful harassment based on their

27 sex, created a hostile work environment based on their sex, and discharged Charging

28 Party Soares in retaliation for engaging in protected activity under Title VII.

COMPLAINT FOR DISCRIMINATION

Pagel

1

JURISDICTION AND VENUE

2

1. Jurisdiction of this Court is invoked pursuant to 28 U.s.c. §§451, 1331,

3 1337,1343 and 1345. This action is authorized and instituted pursuant to §706(f)(1) and

4 (3) of Title VII of the Civil Rights Act of 1964, as amended, 42 U.s.c. §2000e-5(f)(1) and

5 (3) ("Title VII") and §102 of the Civil Rights Act of 1991, 42 U.s.c. §1981a.

6

2. The employment practices alleged to be unlawful were and are now being

7 committed within the jurisdiction of the United States District Court for the Eastern

8 District of California.

9

INTRADISTRICT ASSIGNMENT

10

3. This action is appropriate for assignment to Fresno because the unlawful

11 employment practices alleged were and are being committed within Merced County,

12 the employment record relevant to the unlawful practices are located in Merced

13 County, and because Defendant's principal place of business is in Merced County.

14

PARTIES

15

4. Plaintiff, the Equal Employment Opportunity Commission

16 ("Commission") is the agency of the United States of America charged with the

17 administration, interpretation and enforcement of Title VII, and is expressly authorized

18 to bring this action by §706(f)(1) and (3) of Title VII, §2000-e(f)(I) and (3).

19

5. Defendant CPT is a California company, doing business in the State of

20 California, in the County of Merced, and has continuously had at least 15 employees.

21

6. At all relevant times, Defendant CPT has continuously been an employer

22 engaged in an industry affecting commerce, within the meaning of Section 701(b), (g)

23 and (h) of Title VII, 42 U.s.c. §2000-e(b), (g) and (h).

24

7. At all relevant times, Defendant CPT was the sole employer of the

25 Charging Parties and similarly situated female employees for purposes of Title VII 26
liability. 27
28 / /

COMPLAINT FOR DISCRIMINATION

Page 2

1

STATEMENT OF CLAIMS

CLAIM FOR RELIEF 2

3 Violation of Title VII of Civil Rights Act: Sex Discrimination, Sexual Harassment

4

8. More than thirty days prior to the institution of this lawsuit, the Charging

5 Parties filed their respective charges with Plaintiff Commission alleging violations of

6 Title VII by Defendant. All conditions precedent to the institution of this lawsuit have

7 been fulfilled.

8

9. Since at least October 2002, Defendant has engaged in unlawful practices

9 of sex discrimination in violation §703(a) of Title VII, 42 U.s.c. §2000e-2(a) by subjecting

10 the Charging Party Soares and similarly situated female employees to a sexually hostile,

11 abusive, intimidating and offensive work environment which culminated in tangible

12 employment actions. Since at least February 2003 Defendant has engaged in unlawful

13 practices of sex discrimination in violation §703(a) of Title VII, 42 U.s.c. §2000e-2(a) by

14 subjecting CP Somera to a sexually hostile, abusive, intimidating and offensive work

15 environment, leading to her constructive discharge.

16

10. The effect of the actions complained of in Paragraph 9 above has been to

17 deprive the Charging Parties and similarly situated female employees of equal

18 employment opportunities and otherwise adversely affect their status as employees

19 because of their sex.

20

11. The unlawful employment practices complained of in Paragraph 9 above

21 were intentional.

22

12. The unlawful employment practices complained of in Paragraph 9 above

23 were done with malice or with reckless indifference to the federally protected rights of

24 the Charging Parties and similarly situated female employees.

25

Violation of Title VII of Civil Rights Act: Retaliation

26

13. More than thirty days prior to the institution of this lawsuit, Charging

27 Party Soares filed her charge with Plaintiff Commission, alleging violations of Title VII

28 by Defendant. All conditions precedent to the institution of this lawsuit have been

COMPLAINT FOR DISCRIMINATION

Page 3

1 fulfilled.

2

14. Since at least April 2003 Defendant has engagedin unlawful practices of

3 retaliation, in violation §704(a) of Title VII, 42 U.s.c. §2000e-3(a), by subjecting

4 Charging Party Soares to adverse actions for engaging in protected activity, including

5 wrongfully discharging her in retaliation for complaining about unlawful sexual

6 harassment.

7

15. The effect of the actions complained of in Paragraph 14 above has been to

8 deprive the Charging Party Soares of equal employment opportunities and has

9 otherwise adversely affected her status as an employee because of her protected

10 activity.

11

16. The unlawful employment practices complained of in Paragraph 14 above

12 were intentional.

13

17. The unlawful employment practices complained of in Paragraph 14 above

14 were done with malice or with reckless indifference to the federally protected rights of

15 the Charging Party Soares.

16

PRAYER FOR RELIEF

17

Wherefore, the Commission respectfully requests that this Court:

18

A. Grant a permanent injunction enjoining Defendant, its officers, successors,

19 assigns, and all persons acting in concert or participation with Defendant, from

20 engaging in discrimination against its employees including harassment based on sex

21 and retaliation.

22

B. Order Defendant to institute and carry out policies, practices, and

23 programs which prohibit harassment based on sex and retaliation and which eradicate

24 the effects of its unlawful employment practices.

25

C. Order Defendant to make whole Charging Parties and similarly situated

26 female employees by prOViding appropriate back pay and benefits with prejudgment

27 interest, and other affirmative relief necessary to eradicate the effects of its unlawful

28 employment practices, including but not limited to reinstatement and! or front pay and

COMPLAINT FOR DISCRIMINATION

Page 4

1 other appropriate relief to be determined at trial.

2

D. Order Defendant to make whole Charging Parties and similarly situated

3 female employees harmed by providing compensation for past and future pecuniary

4 losses resulting from the unlawful employment practices complained of above,

5 including but not limited to such out-of-pocket expenses as medical care necessitated by

6 Defendant's unlawful conduct, in amounts to be determined at trial.

7

E. Order Defendant to make whole Charging Parties and similarly situated

8 female employees harmed by providing compensation for past and future

9 nonpecuniary losses resulting from the unlawful practices complained of above

10 including, but not limited to emotional pain and suffering, inconvenience, loss of

11 enjoyment of life and humiliation, in amounts to be determined at trial.

12

F. Order Defendant to pay Charging Parties and similarly situated female

13 employees harmed by providing punitive damages for the malicious and reckless

14 conduct described above, in amounts to be determined at trial.

15

G. Grant such further relief as the Court may deem just and proper in the

16 public interest.

17

H. Award the Commission its costs of this action.

18

DEMAND FOR JURY TRIAL

19

Pursuant to the provisions of Federal Rule of Civil Procedure 38(b), Plaintiff

20 hereby demands a jury trial.

Ronald S. Cooper General Counsel

Gwendolyn Young Reams Associate General Counsel

,2006

Equal Employment Opportunity Commission 1801 L Street, N.w. Washington, DC 20507
/.

COMPLAINT FOR DISCRIMINATION

Page 5

1 2 3
Date: 4 5 6 7 Date: 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
COMPLAINT FOR DISCRIMINATION

EVANGELINAFIE RO Senior Trial Attorney Equal Employment Opportunity CommissIOn San Francisco District Office 350 The Embarcadero, Suite 500 San Francisco, California 94105
Page 6

 
 1

2

3 UNITED STATES DISTRICT COURT
4 EASTERN DISTRICT OF CALIFORNIA
5

6

7

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

8

9

Plaintiff,

10

v.

11

12

CALIFORNIA PSYCHIATRIC TRANSITIONS, INC.,

13

14

Defendant.

1:06-CV-01251-OWW-GSA
MEMORANDUM DECISION RE PLAINTIFF EEOC’S MOTION FOR SUMMARY ADJUDICATION (Doc. 37) AND DEFENDANT CALIFORNIA PSYCHIATRIC TRANSITIONS, INC.’S MOTION FOR SUMMARY ADJUDICATION (Doc. 40.)

15 This case involves allegations of sexual harassment,

16 retaliation, and constructive discharge at California Psychiatric

17 Transitions, Inc (“CPT”). Plaintiff Equal Employment Opportunity

18 Commission (“EEOC”) alleges that CPT subjected a number of its

19 female employees to a hostile environment created by sexual and

20 gender harassment which culminated in adverse employment actions in

21 violation of Title VII of the Civil Rights Act of 1964 (“Title

22 VII”).

Plaintiff seeks to correct these alleged unlawful

23 employment practices and obtain relief for Mareil Somera (“Somera”)

24 and Valeria Soares (“Soares”), the charging parties.

25 Plaintiff EEOC seeks summary adjudication on the statutory

26 prerequisites for bringing a suit under Title VII. CPT cross-moves

27 for summary adjudication, arguing that the EEOC has not satisfied

28

1

1 Title VII’s statutory prerequisites as to charging party Somera and

2 those “women similarly situated.” CPT also seeks summary

3 adjudication on Somera’s constructive discharge claim, Soares’

4 retaliation and hostile work environment claims, and the EEOC’s

5 requests for punitive damages.

6

EEOC’s motion for summary adjudication, filed on May 4, 2009,

7 addresses whether it satisfied Title VII’s statutory prerequisites

8 to commence litigation on behalf of Soares, Somera, and similarly

9 situated women. (Doc. 37.) The EEOC seeks summary adjudication

10 that a prima facie case is established for: (1) Soares’ hostile

11 work environment and retaliation claims; (2) Somera’s hostile work

12 environment and constructive discharge claims; and (3) the

13 aggrieved parties’ hostile work environment claim.

14

CPT moved for summary adjudication on May 4, 2009. (Doc. 40.)

15 As to Somera, CPT argues that the EEOC’s constructive discharge

16 claim is barred on three grounds: 1) her EEOC charge was untimely;

17 2) the EEOC failed to provide notice and opportunity to conciliate

18 on the discharge claim; and 3) Somera sought to be rehired after

19 quitting and, therefore, was not constructively discharged.

20

As to Soares, CPT seeks to summarily adjudicate the following

21 claims: 1) her sexual harassment claim fails as the harassing

22 events she experienced did not rise to an actionable level; and 2)

23 her retaliation claim fails because Soares did not engage in

24 protected activity and the EEOC cannot demonstrate a pretextual

25 dismissal. CPT does not challenge that Somera meets Title VII’s

26 jurisdictional prerequisites.

27

CPT also moves to dismiss the EEOC’s claims for punitive

28 damages on behalf of Somera and Soares.

2

1

II. FACTUAL BACKGROUND.

2 A. The Parties

3

The EEOC is an independent federal agency created by Congress

4 in 1964 to eliminate discrimination in workplaces across the United

5 States.

The EEOC is charged with the administration,

6 interpretation and enforcement of Title VII of the Civil Rights Act

7 of 1964, and is expressly authorized to bring this action on behalf

8 of Soares and Somera pursuant to §§ 706(f)(1) and (3).

9

Charging party Soares is a female employed by Defendant CPT

10 from October 2003 to April 2004. Soares was hired by CPT as a

11 mental health worker (“MHW”). Her duties included counseling

12 residents, daily charting, and monitoring symptoms for medical and

13 behavioral changes. Soares primarily worked the evening shift at

14 the re-entry facility and was supervised by Larry Fuentes and

15 Barbara Kelly.

16 Charging party Somera is a female employed by Defendant CPT
17 from February 2003 to December 2003. Somera was hired by CPT as a
18 dietary aid and primarily prepared meals for CPT’s residents.
19 Soares was one of five dietary aids supervised by Sherry Wall.
20
CPT operates a mental health rehabilitation facility in Delhi, 21
California. CPT contracts with the State of California and various 22
other agencies to provide patients with residential mental health 23
rehabilitation, treatment, and long term care. At all relevant 24
times herein, CPT’s President and Medical Director was John T. 25
Hackett, M.D. and its Facilities Director was James T. Drayton. At 26
all relevant times, CPT employed between 25 and 85 persons. (Doc. 27
40, 2:12-2:13.) 28

3

1

CPT also employed Larry Fuentes, the focus of Soares and

2 Somera’s allegations. Fuentes was CPT’s lead MHW and worked the

3 day shift in 2003 and 2004. Fuentes was supervised by Barbara

4 Kelly and remained employed at CPT throughout the tenures of Soares

5 and Somera.

6

1. CPT’s Employee Manual

7 In 2001, CPT issued a comprehensive Employee Manual which
8 remained in effect until revised in 2005. (Drayton Dec. ¶7; Ex. B
9 (“CPT Emp. Manual”) at CPT 0314-0317.) The Employee Manual is
10 provided to all employees for review during the initial orientation
11 period. (Id.) Copies are maintained at CPT and immediately
12 accessible to all employees upon request. (Id.) The Employee
13 Manual includes a policy statement regarding harassment in the
14 workplace and the duties and responsibilities of CPT employees.
15 (Id.) In addition, all employees receive sexual harassment
16 training during orientation. (Id.) In-service training is
17 provided on a regular and recurring basis. (Id.)
18

19 20 B. Events Leading up to Somera’s EEOC Charge

21

Somera began working at CPT as a dietary aide on about

22 February 6, 2003. (Plaintiff’s Statement of Disputed Facts

23 (hereinafter “DF”) 1).1) As part of Somera’s orientation, Fuentes

24 gave Somera a tour of the kitchen. (DF 2.) He showed her around

25

26

1 Reference to the document as a “Statement of Disputed

Facts” is not entirely accurate. CPT does not dispute the bulk

27 of the “disputed facts.” To the extent they do, their objections

are overruled, immaterial to the ultimate facts of the case, or

28 discussed separately in Part III(A), infra.

4

1 the kitchen and to the walk-in refrigerator/freezer. (DF 2.)

2 After showing Somera the freezer, Fuentes stopped in the exit door

3 and told her to stay there because he wanted to see her nipples get

4 hard. (DF 2.) He laughed and then proceeded to show her the rest

5 of the kitchen. (DF 2.)

6

Over the course of Somera’s employment, she alleges that

7 Fuentes engaged in a pattern of “obnoxious sexual behavior.”

8 Somera states that Fuentes would stand behind her and thrust his

9 hips in a way suggestive of sexual intercourse. (DF 3.) This

10 behavior began about two or three weeks after Somera started at

11 CPT. (DF 3.) Fuentes also frequently grabbed his crotch in front

12 of CPT employees, including Somera.2 (DF 4.)

13 Somera complained to her supervisor, Sherry Wall, about
14 Fuentes’ behavior during her orientation, and also about him
15 grabbing his crotch in front of her and others. (DF 5.) This was
16 consistent with CPT’s policy, which directed employees to complain
17 to their direct supervisors. (DF 6.) Wall responded that Somera
18 should not worry, and that Wall would talk to CPT’s Business
19 Manager, Donna McGowan, about it. (DF 7.) Between one and three
20 months after her first complaint, Wall told Somera that she had
21 told Donna McGowan about Somera’s complaint, and asked Somera if
22 Fuentes had said or done anything else. (DF 8.) Somera responded
23 that Fuentes had come up from behind and thrust his hips simulating
24 sex. (DF 8.) Wall responded that she would talk either to McGowan
25 or Dr. Hackett. (DF 8).
26

27 2 Somera states that the crotch grabbing occurred more than
28 10 times, four of which she caught Fuentes in the act. (DF 3.)

5

1

Somera maintains that Fuentes’ harassment escalated during her

2 employment. According to Somera, Fuentes began bragging that he

3 had sex in the kitchen with another employee and that this

4 individual “gave good head” and “was a good lay.” (DF 9.) Fuentes

5 also touched Somera’s hips and asked her if she was wearing thong

6 underwear and, also, the color of her underwear. (DF 10.) Fuentes

7 also looked down her blouse when she bent over. (DF 11.) Wall

8 observed one such episode, and Wall assured Somera that she would

9 report it. (DF 12.) Wall reported the episode to McGowan. (DF 13).

10

Fuentes also started wiggling his pierced tongue and remarked

11 that he could satisfy Somera’s sexual desires. (DF 15.) Somera

12 states she told him, “That’s nasty,” to which he would respond,

13 “Just kidding, girl, come on. You [are] just such a pussy.” Somera

14 witnessed Fuentes engage in the same behavior with other female

15 workers and patients. (DF 15.) She never saw him wiggling his

16 tongue to men. (DF 15.)

17 In late 2003, Somera received more responsibility in the
18 kitchen, including scheduling the staff and creating nametags for
19 the patients, both of which required her to use the computers
20 located on the second floor. (DF 16.) Fuentes left six or seven
21 love letters to her on the computer. (DF 16.) Fuentes also tried
22 to look down her blouse when she was seated at the computer, and
23 commented something to the effect of, “Shit, babe, you got nice
24 boobs,” or “Girl, you have nice tits.” (DF 17.)
25
In September 2003, Somera complained to Wall that Fuentes was 26
touching her buttocks and asking her and other women if they were 27
wearing thong underwear. (DF 18.) In November 2003, Somera asked 28

6

1 Wall what was happening with her complaint about Fuentes. (DF 21.)

2 Wall later told her that she had brought Somera’s complaints to the

3 Director of Nurses, Barbara Kelly. (DF 20.) Around this same

4 time, Donna McGowan or Kelly conveyed Somera’s complaint about

5 Fuentes to Drayton. (DF 21.)

6

As a result, Kelly interviewed Fuentes, informed him of the

7 complaint, and admonished him to stay away from the kitchen.

8 (Defendant’s Statement of Undisputed Facts (hereinafter “DSUF”)

9 58.) Kelly also followed up with Somera. (Id.; DF 22.) According

10 to CPT, Kelly offered Somera alternative work arrangements, but

11 Somera declined the offer. (DSUF 50.) The EEOC disputes that

12 Fuentes was disciplined as a result of Somera’s complaints and that

13 Kelly offered Somera an alternative work arrangement. (DF 24.)

14 As a further result of the reported harassment, Drayton
15 arranged for an in-service training on the subject of sexual
16 harassment. (DSUF 60.) The sexual harassment training took place
17 on November 20, 2003. (DF 23; DSUF 8.) The entire staff was at
18 the training, including Fuentes. (DF 23.)
19
According to Somera, Fuentes was on the telephone instead of 20
paying attention to the presentation. (DF 24). CPT disputes this. 21
However, the parties agree that, following the in-service training, 22
there were no further incidents of unwelcome sexual harassment by 23
Fuentes toward Somera.3 (DF 25; DSUF 23.) 24

25

26

3 Although Fuentes’ unwelcome comments to Somera ceased, the

record indicates that Fuentes’ illicit behavior continued.

27 Somera stated in her deposition that a few days after the in-

service, Fuentes went behind a female employee and began

28 thrusting his hips. (Somera Dep. 144:-145:17.) Several CPT

7

1

Thereafter, according to CPT, Somera told Mr. Drayton that she

2 was quitting, but he convinced her to remain at CPT for two

3 additional weeks. (DSUF 14.) In the meantime, Ms. Wall called and

4 spoke with Ms. Somera and convinced her not to quit. Shortly

5 thereafter, Ms. Wall resigned and CPT appointed Latrice Wills, a

6 more senior employee, to supervise the kitchen. Somera resigned a

7 few days later.4

8

CPT maintains, and the EEOC does not dispute, that Somera was

9 overwhelmed by the additional responsibilities she assumed when Ms.

10 Wall went on vacation. (DSUF 11.) CPT claims this led to her

11 resignation. CPT also asserts that Somera believed that her co-

12 workers were jealous that she was appointed to a temporary

13 supervisory position. (DSUF 12.) CPT states that her resignation

14 involved in-fighting in the kitchen, CPT’s decision to appoint

15 another employee to kitchen supervisor, and continuing rumors that

16 she and Mr. Fuentes had sex. (DSUF 13, 15.)

17 The dispute over Somera’s departure appears limited to Wall’s
18 involvement. Somera claims that she resigned after learning that
19 Wall, whom she viewed as a protector, quit after a dispute over her
20 sexual harassment allegations. (DF 28.) CPT denies this, stating
21 that Wall’s resignation was not related to Somera, and stemmed from
22

23

24 employees witnessed the incident. (Id.) Somera stated that
25 “[h]e still does the same things, all those things that he did to 26 me.” (Id.)

27

4 Somera testified that “[t]he day that Sherry quit, I

decided to quit. I wanted to quit with them.” (Somera Dep. at

28 168:9-169:17.)

8

1 reasons set forth above.5 (DSUF 11-15.)

2

3 C.
4
5

Events Leading up to Soares’ EEOC Charge 1. Background

6

Soares began working at CPT as a mental health worker in

7 October 2003. (DF 30; DSUF 28.) During orientation, Fuentes showed

8 Soares the facilities and introduced her to the staff and patients.

9 Fuentes, in Soares’ presence, asked a male psychiatric patient, “I

10 bet you would like [Soares] to wash you in the shower, right?” (DF

11 31; DSUF 28.) Fuentes then asked the patient, “you like her ass,

12 don’t you?” (DF 31; DSUF 28.)

13

According to Soares, Fuentes repeatedly referenced his

14 decorative piercing and its use for the sexual satisfaction of his

15 partners. (DF 32.) Fuentes stated that it was “to please the

16 woman” and it made “women feel good.” (Soares Dep. 39:12-39:19.)

17 Fellow CPT employees also heard Fuentes’ comments concerning his 18 tongue ring. (Id.) According to Soares, she relayed Fuentes’ 19 comments to the nurses to whom she reported, Della McClendon and 20 Janice Monges. (DF 33.) CPT disputes this and argues that 21 McClendon and Monges were nurses and not in Soares’s chain of 22 command. CPT maintains that Soares did not report Fuentes’ 23 orientation comments to CPT management. (DSUF 30.) 24
At unspecified points in time throughout her employment, 25

26

27

5 The parties do not dispute that roughly a month later,

Somera called CPT asking if she could return to her job. (DSUF

28 17.)

9

1 Soares heard of Fuentes’ sexual comments toward other CPT emloyees.

2 One employee told Soares that “she had squatted down [and] Fuentes

3 want to know, you know, what it looked like.” (Soares Dep. 73:15-

4 73:19.) Charging Party Somera also told Soares of her experiences

5 with Fuentes and his sexually-charged behavior. Specifically,

6 Somera told Soares of the freezer incident which occurred during

7 her orientation.6

8

Soares testified in her deposition that Fuentes constantly

9 used the word “pussy” to describe female employees. (DF 36.) CPT

10 argues that the record identifies only two instances when Fuentes

11 used the word to refer to someone in particular. (Doc. 56, Exh. G

12 162:13-163:21.) First, in reference to a male employee, Bob Rice

13 (“Don’t be a pussy”) and, second, following the shower incident, he

14 referred to Soares as a “pussy” to a fellow employee. Soares did

15 not discover the latter incident until after her departure from

16 CPT.

17 At some point in time during her employment, Fuentes displayed
18 a calendar of near-naked women on his desk. (DF 37.) Fuentes asked
19 Soares, “that doesn’t offend you, does it?” (Soares Dep. 66:19-
20 66:24.) The parties agree that there was no further discussion
21 between the two regarding the calendar.
22
According to Soares, the calendar was approximately 5x5 inches 23
and was prominently displayed on his desk. Fuentes’ desk was 24
located directly adjacent to the room where CPT held employee 25

26 6 The statements made by CPT employees to Soares are not
27 offered to prove the truth of the matter asserted; rather the comments are admissible for their effect on the listener - here,
28 Soares. (See Fed R. Evid. §§ 801-802.)

10

1 meetings. (Soares Dep. 67:3-67:12.) Soares observed Fuentes’

2 calendar every shift, either on the way to staff meetings or to

3 work at the meeting table. (Soares Dep. 67:10-67:12.)

4

According to CPT, the calendar was a “Sports Illustrated

5 Swimsuit Calendar,” and Soares viewed the swimsuit calendar on only

6 one occasion in March 2004. (Doc. 56, Exh. G, 69:15-71:3) CPT

7 also argues that Soares did not complain to Drayton about the

8 calendar. (DSUF 26.)

9 In March 2004, Soares was charting when a male patient named
10 Kevin approached her and asked if she would accompany him outside
11 so that he could have a cigarette. (DF 40; DSUF 33.) The patient
12 did not like to shower as a general matter, and Soares told him
13 that she would take him out for a cigarette if he agreed to shower
14 first. (Id.) He agreed and she gave him his shower toiletries,
15 which were kept under locks when not in use. He returned to Soares
16 when he finished showering, and asked if she would take him outside
17 for the cigarette. (Id.) According to Soares, Fuentes yelled from
18 his position on the second floor words to the effect, “Kevin, you
19 didn’t take no shower.” Soares replied, “He did, Larry. I gave him
20 everything and he took a shower.” Fuentes said, “You liar, you did
21 not.” Then Fuentes responded, “[w]ell, have Valerie smell your
22 balls to see if you took a shower.” Kevin responded, “That’s
23 messed up.” Soares and Kevin then proceeded outside. (Id.)
24
The next day, Soares complained about the episode to 25
McClendon, a nurse whom she considered to be one of her 26
supervisors. (DF 42.) She explained that she had been offended by 27
Fuentes’ remark and also told McClendon that Fuentes’ behavior 28

11

1 posed a threat to her: “If he says things like that to me in front

2 of the male patients when I’m going in their rooms at night,

3 sometimes by myself, they’re not going to take me seriously and I

4 could get hurt.” (DF 42.)

5

CPT states that McClendon was a day shift nurse and not

6 Soares’ supervisor. (Soares Dep. 38:16-38:25.) At that point, Mr.

7 Fuentes was her immediate supervisor. (Id.) Soares did not report

8 the shower incident to Ms. Kelly, Ms. Steele, Dr. Hackett, or Mr.

9 Drayton.7 (DF 41.)

10 Soares also spoke with the charge nurse on the graveyard or
11 “NOC” shift, David Baker, who had witnessed the episode. (DF 43.)
12 According to Soares, she raised concerns that Fuentes’ behavior was
13 putting her at personal risk, saying words to the effect that “if
14 he makes me out to be a sexual thing with me and the male
15 residents, at any one time going in their rooms, you know during
16 the night, they may see me as that and do something, you know, be
17 behind a door or what not if he keeps egging them on.” (Id; Soares
18 Dep., 57:20-59:2.) Although Baker thought it was a violation of
19 CPT’s sexual harassment policy, he did not report the incident to
20 management. (Baker Dep. 48:2-48:25, 50:1-50:5.) However, Baker
21 told Soares that he would corroborate the incident if and when
22 there was an investigation. (Baker Dep. 50:17-50:24.)
23
CPT’s sexual harassment policy at the time directed employees 24
to report episodes of potential harassment to their immediate 25

26

27

7 The next day Fuentes apologized to Soares for his

inappropriate comments. He did not report the incident to

28 management.

12

1 supervisor or designated management representative. Additionally,

2 any employees who witnessed or learned of harassment were obligated

3 to report the incident to their supervisor or manager. (DF 45.)

4 Baker never reported the episode to anyone else in CPT management

5 or human resources. (DF 44.) CPT argues that Baker’s supervisory

6 duties were limited to conveying information regarding patient

7 status during shift exchanges.

8

9 2. Complaints to the Department of Mental Health
10 The California Department of Mental Health received an
11 anonymous report of the shower incident involving Soares, Fuentes,
12 and the male patient. (DF 47.) The Department of Mental Health
13 contacted CPT regarding the complaint and Drayton investigated it
14 as a potential patient abuse episode. (DF 47.) He spoke to the
15 male psychiatric patient, Kevin, about the episode. Kevin
16 corroborated that it took place. Drayton also spoke with Fuentes
17 about it and Fuentes told Drayton that he had apologized to Soares
18 and she was fine with it. Drayton did not, however, speak with
19 Soares about the incident. (DF 47.)
20

21

According to the EEOC, the Department of Mental Health

22 received several anonymous complaints about Fuentes prior to the

23 shower episode. (DF 46.) This is supported by Drayton’s

24 deposition testimony where he confirmed that Mr. Omoregie - the

25 Department of Mental Health’s representative - requested a

26 “chronology” of sexual harassment complaints involving Larry

27 Fuentes. (Drayton Dep. 444:7-444:19.) Mr. Omoregie told Drayton

28 that the Department had received several complaints about Fuentes

13

1 on their hotline, some of a sexual nature, some of them involving

2 patient care.8 (Id.)

3

4 3. Soares’ Attempts to Contact Drayton
5 According to Soares, she made several attempts to talk to
6 Drayton following the shower incident. (DF 48.) Soares says she
7 called and left messages for him with the secretary twice and
8 slipped a note under his door informing him that she needed to see
9 him. (DF 48.) It is undisputed that Soares never made contact
10 with Drayton.
11

12

13

4. Events of April 9, 2004

14 In early April, Soares was transferred to the re-entry
15 building. (DF 49.) At the time, the re-entry program was just
16 being implemented, and there were only a few patients residing in
17 the new building. (DF 49.) On the evening of April 9, 2004, CPT
18 Systems Analyst Julie Steele visited the re-entry building. (DF
19 49; DSUF 20). The parties dispute what happened next.
20 According to CPT, Steele discovered Soares asleep on the
21 evening of April 9, 2004. (DSUF 37.) Around 11:00 p.m., Steele
22 called Mr. Drayton and reported that she had discovered Ms. Soares
23 asleep on the job working alone in the re-entry building with 22
24 patients. (DSUF 37.) According to Ms. Steele, she observed Ms.
25

26

27

8 CPT responded to the Department’s requests. According to

the EEOC, Drayton’s response was incomplete; CPT did not disclose

28 the orientation incident involving Somera and Fuentes.

14

1 Soares on the living room couch in the re-entry building, covered

2 with a blanket and snoring. Ms. Steele reported that Ms. Soares

3 then resisted her attempts to discuss the situation and offer

4 suggestions. (Drayton Dep. at 34:6-37:17.) Sleeping on the job is

5 a critical patient safety issue, a strict violation of CPT policy

6 and a condition of its State licensing. (Doc. 41, Ex. A at

7 CPT0321.) Ms. Soares was aware of the policy. (DSUF 36.) Upon

8 receiving this information Mr. Drayton made the decision to

9 terminate Ms. Soares based on the gravity of the violation and

10 rejection of Ms. Steele’s suggestions. (DSUF 38.) At the end of

11 her shift, the following morning, Ms. Soares was discharged. (DSUF

12 39.)

13

According to Soares, Steele did not discover her sleeping on

14 the night of April 9th. (DF 49.) Soares states that Steele entered

15 the re-entry building about 15 minutes after her shift started.

16 (DF 49.) Soares was sitting on a couch reading a magazine. (DF

17 49.) The television was on and the few patients in that building

18 were asleep. (DF 49.) Steele entered from a door down the hallway,

19 and the slamming of the door startled Soares. (DF 49.) Steele

20 walked quickly down the hall to the nurses’ “cage.” (DF 49.)

21 Soares, who had never seen Steele at the facility at night before,

22 assumed Steele was picking up some patient charts. (DF 49.)

23 Steele came back out and they had a brief discussion in which

24 Soares expressed that she was a little bored in the new building,

25 then Steele left. (DF 49.) The next day, Fuentes told Soares she

26 was terminated. (DF 49).

27 The record reflects considerable dispute over whether CPT
28

15

1 uniformly enforced its sleeping policy. (DF 60.) According to

2 David Baker, a CPT nurse, he often slept during his shift and

3 observed other employees sleeping during their shifts, including

4 Soares. (Baker Dep. 65:2-67:25.) Baker was unaware of any

5 occasion where a shift employee was discovered sleeping by a

6 supervisor. (Baker Dep. 54:22-54:25.)

7

Further, the record indicates that Jamie, a former CPT

8 employee, was not fired after he was caught sleeping during his

9 shift. (DF 61.) Jamie was given several chances to improve his

10 sleeping patterns before he resigned. (DF 61.)

11 According to Soares, the only other employee fired for
12 sleeping on the job was Johnny Montalvo. (DF 62.) According to
13 Montavlo, CPT employees, including Fuentes, discovered Montalvo
14 sleeping during his shift on a number of occasions. (Montalvo Dep.
15 21:22-22:2.) Montalvo was not disciplined for sleeping until the
16 final incident, which occurred in August 2008. (Montalvo Dep.
17 31:19-45:17.) The last Montalvo sleeping incident resulted in a
18 resident escaping the facility. (Id.)
19

20

21

5. Soares’ Sexual Harassment Complaints

22

Although she complained of Fuentes’ comments to fellow CPT

23 employees, it is undisputed that Soares did not file a harassment

24 complaint or report any harassment to CPT management during her

25 employment. (DSUF 40, 45.) This includes the orientation

26 incident, Fuentes’ references to “pussy”, and the Sports

27 Illustrated calendar. (DSUF 42-43.)

28

16

1

It is similarly undisputed that Soares did not report the

2 shower incident to Ms. Kelly, Ms. Steele, Dr. Hackett, or Mr.

3 Drayton. (DSUF 41, 46.) However, Soares did report the incident to

4 Nurse McClendon, Nurse Baker, and spoke with Fuentes, her direct

5 supervisor, about his comments.

6 7 D. EEOC Involvement and Investigation

8

1. Ms. Soares

9

In April 2004, Ms. Soares filed a discrimination charge with

10 the EEOC against CPT. (Plaintiff’s Statement of Undisputed Facts

11 (“PSUF”) 2.) Soares alleged that she and other women were sexually

12 harassed by Larry Fuentes during her employment at CPT. (PSUF

13 2.) Soares also stated that she was fired in retaliation for

14 opposing the sexual harassment. (PSUF 2.)

15 On May 4, 2004, the EEOC provided CPT with notice of Soares’
16 discrimination charge. (PSUF 3.) The notice was sent to Dr. John
17 Hackett, Owner, California Psychiatric Services, and indicated the
18 discrimination charge was based on “sex” and “retaliation.” (Exh.
19 2) The letter stated that “there is reasonable cause to believe
20 that [CPT] discriminated against [Soares] and a class of similarly
21 situated female employees based on their sex [...] and there is
22 reasonable cause to believe [CPT] retaliated against [Soares].”
23 The letter did not mention any other female employee and did not
24 include specific evidence supporting the conclusion. (PSUF 14-15.)
25

26

27

2. Ms. Somera

28

On September 27, 2004, Somera filed a charge of discrimination

17

1 with the EEOC against CPT. (PSUF 4.) Somera alleged that she and 2 other women were sexually harassed by Larry Fuentes, the harassment 3 was “verbal and physical,” and continued throughout her tenure at 4 CPT. (PSUF 4.) Soares also stated that she complained about 5 Fuentes to her supervisor Sherry Wall, but no action was taken and 6 the harassment continued. Somera did not allege retaliation or 7 constructive discharge in her EEOC charge. (PSUF 10.)

8

On October 14, 2004, the EEOC provided CPT with notice of the

9 Somera’s discrimination charge. (PSUF 5.) The notice was sent to

10 Dr. John Hackett, Owner, California Psychiatric Services, and

11 indicated “sex” as the basis for the discrimination charge. (Exh.

12 4.) The letter stated that “the evidence demonstrates that

13 [Somera] and other similarly situated females were harassed,” but

14 did not include specific evidence supporting the conclusion. (PSUF

15 12.) The letter also did not mention any other female employee and

16 did not include allegations of retaliation or constructive

17 discharge. (PSUF 11, 13.)

18

19 3. EEOC’s Investigation and Correspondence
20 Following notice of the charges, the EEOC investigated Soares’
21 and Somera’s discrimination claims. (PSUF 6.) As part of the
22 investigation, the EEOC requested from CPT statements of position
23 and copies of all documentation supporting its position. (PSUF 6.)
24 The EEOC also conducted interviews with current and former CPT
25 employees. (PSUF 6.)
26

27

On September 1, 2005, the EEOC sent correspondence referencing

28

18

1 “Ms. Valerie Shaw”9 to CPT in Delhi, California.

The

2 correspondence included EEOC's determination letter that Ms. Shaw

3 and a class of females were subjected to harassment based on their

4 sex and that the Charging Party was terminated for protected

5 activity. The determination letter noted that EEOC "will contact

6 you in the near future to begin the conciliation process."

7

The EEOC sent additional correspondence to CPT on September 1,

8 2005. The second letter referenced “Ms. Mariel Somera” and

9 included EEOC's determination that Ms. Somera and a class of

10 females were subjected to harassment based on their sex. The

11 determination letter noted that EEOC "will contact you in the near

12 future to begin the conciliation process."

13

Following the September 1, 2005 letters, the EEOC and CPT

14 attempted to settle the discrimination claims made by Ms. Soares

15 and Ms. Somera. (PSUF 8.) According to CPT, the EEOC offered to

16 resolve the matter for $75,000. (PSUF 8.) CPT offered $15,000.

17 (PSUF 8.)

18

On January 31, 2006 and February 22, 2006, the EEOC sent

19 letters to CPT’s legal counsel regarding Ms. Soares and Ms.

20 Somera’s claims. (PSUF 9.) The EEOC stated that “efforts to

21 conciliate this charge as required by our procedures and policies

22 have been unsuccessful” and it was forwarding the matter to its

23 regional attorney for litigation review. (PSUF 9.) This case

24 followed.

25

26

27

28

9 Aka, Valerie Soares.

19

1 III. PROCEDURAL BACKGROUND.
2

3

This action was filed on September 13, 2006, by Plaintiff

4 Equal Employment Opportunity Commission. The complaint contained

5 several causes of action related to CPT’s alleged discrimination,

6 harassment, and adverse employment actions.

(Doc. 1.)

7 Specifically, the complaint raised hostile work environment causes

8 of action on behalf of Mareil Somera, Valeria Soares, and similarly

9 aggrieved women. The EEOC also raised a retaliation claim on

10 behalf of charging party Soares and a constructive discharge claim

11 on behalf of Somera. The EEOC requested punitive damages.

12

On December 11, 2006, Defendant CPT filed an answer to the

13 complaint. (Doc. 6.)

14

On May 4, 2009, the EEOC filed a motion for summary

15 adjudication on whether it satisfied Title VII’s statutory

16 prerequisites to commence litigation on behalf of Soares, Somera,

17 and “similarly aggrieved parties.” (Doc. 37.)

18

CPT moved for summary adjudication on May 4, 2009. (Doc. 40.)

19 As to Somera, CPT argues that the EEOC’s constructive discharge

20 claim is barred on three grounds: 1) her EEOC charge was untimely;

21 2) the EEOC failed to provide notice and opportunity to conciliate

22 on the discharge claim; and 3) Somera sought to be rehired after

23 quitting and, therefore, was not constructively discharged.

24

As to Soares, CPT seeks summary adjudication on the following

25 claims: 1) her sexual harassment claim because the harassing events

26 she experienced did not rise to an actionable level; and 2) her

27 retaliation claim fails because Soares did not engage in protected

28 activity and the EEOC cannot demonstrate a pretextual dismissal. As

20

1 to Soares, CPT only challenges the merits of her claims; CPT does

2 not challenge Somera’s satisfaction of Title VII’s jurisdictional

3 prerequisites.

4

Defendants also move to dismiss the EEOC’s claims for punitive

5 damages on behalf of Somera and Soares.

6

On June 12, 2009, the EEOC opposed CPT’s motion for summary

7 adjudication. (Docs. 54-57.) On June 15, 2009, CPT opposed the

8 EEOC’s motion for summary adjudication. (Doc. 59.)

9

10 A. Evidentiary Objections

11

Defendant objects to the Declarations of John Hackett, David

12 Baker and Mariel Somera, submitted in support of the instant Motion

13 for Summary Adjudication, on the ground that these witnesses lack

14 personal knowledge, the cited testimony constitutes inadmissible

15 hearsay and lacks foundation. (Docs. 61, 68.)

16

Rule 56(e) of the Federal Rules of Civil Procedure requires

17 that affidavits supporting and opposing a motion for summary

18 judgment “shall be made on personal knowledge, shall set forth such

19 facts as would be admissible in evidence, and shall show

20 affirmatively that the affiant is competent to testify to the

21 matters therein.”

22

Hearsay is a statement, other than one made by the declarant,

23 offered in evidence to prove the truth of the matter asserted. Fed

24 R. Evid. 801(c). Hearsay is not admissible except as provided by

25 the Federal Rules of Evidence, or other rules prescribed by the

26 Supreme Court. Fed R. Evid. 802.

27

CPT’s objections are, in the majority, sustained. In order to

28 enforce the standards set forth in Federal Rules of Civil Procedure

21

1 and the Federal Rules of Evidence, the Court will simply disregard

2 any portion of the testimony containing inadmissible hearsay,

3 conjecture, speculation, or not made on the basis of his personal

4 knowledge. Any assertions made by Hackett, Baker or Somera that

5 are not supported by the record, by a demonstration of personal

6 knowledge or by corroborating evidence, are insufficient to

7 establish a genuine issue of material fact.

8

To the extent that the statements are offered to prove the

9 truth of the matter asserted, they are inadmissible. See Fed R.

10 Evid. §§ 801-802 (“Hearsay is not admissible except as provided by

11 the Federal Rules of Evidence [...]”).

12 IV. LEGAL STANDARDS.
13

14 A. Summary Judgment/Adjudication

15

Summary judgment, or summary adjudication, is appropriate when

16 "the pleadings, the discovery and disclosure materials on file, and

17 any affidavits show that there is no genuine issue as to any

18 material fact and that the movant is entitled to judgment as a

19 matter of law." Fed. R. Civ. P. 56(c). The movant "always bears

20 the initial responsibility of informing the district court of the

21 basis for its motion, and identifying those portions of the

22 pleadings, depositions, answers to interrogatories, and admissions

23 on file, together with the affidavits, if any, which it believes

24 demonstrate the absence of a genuine issue of material fact."

25 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal

26 quotation marks omitted).

27

Where the movant will have the burden of proof on an issue at

28 trial, it must "affirmatively demonstrate that no reasonable trier

22

1 of fact could find other than for the moving party." Soremekun v.

2 Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir.2007). With

3 respect to an issue as to which the non-moving party will have the

4 burden of proof, the movant "can prevail merely by pointing out

5 that there is an absence of evidence to support the nonmoving

6 party's case." Soremekun, 509 F.3d at 984.

7

When a motion for summary judgment is properly made and

8 supported, the non-movant cannot defeat the motion by resting upon

9 the allegations or denials of its own pleading, rather the

10 “non-moving party must set forth, by affidavit or as otherwise

11 provided in Rule 56, ‘specific facts showing that there is a

12 genuine issue for trial.’” Soremekun, 509 F.3d at 984. (quoting

13 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986)). “A

14 non-movant's bald assertions or a mere scintilla of evidence in his

15 favor are both insufficient to withstand summary judgment.” FTC v.

16 Stefanchik, 559 F.3d 924, 929 (9th Cir. 2009). “[A] non-movant

17 must show a genuine issue of material fact by presenting

18 affirmative evidence from which a jury could find in his favor.”

19 Id. (emphasis in original). "[S]ummary judgment will not lie if [a]

20 dispute about a material fact is ‘genuine,’ that is, if the

21 evidence is such that a reasonable jury could return a verdict for

22 the nonmoving party." Anderson, 477 U.S. at 248. In determining

23 whether a genuine dispute exists, a district court does not make

24 credibility determinations; rather, the "evidence of the non-movant

25 is to be believed, and all justifiable inferences are to be drawn

26 in his favor." Id. at 255.

27

28

23

1 B. Title VII

2

Title VII of the Civil Rights Act makes it unlawful for

3 employers to discriminate on the basis of sex with respect to the

4 terms and conditions of employment. 42 U.S.C. 2000e-2(a)(1). The

5 courts have held that discriminatory conduct includes harassment

6 (see e.g., Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986)) when

7 that harassment occurs because of sex. See Oncale v. Sundowner

8 Offshore Services, 523 U.S. 75, 80-81 (1998) (stating that Title

9 VII only prohibits harassment which occurs because of sex,

10 regardless of whether the harasser is the same sex as or opposite

11 sex from the victim).

12

Courts have recognized two legal theories on which plaintiffs

13 may base sexual harassment claims. The first is quid pro quo

14 harassment, or harassment in which a supervisor requires an

15 employee to engage in sexual activity and threatens tangible

16 employment actions, such as demotion, denial of promotion, or

17 discharge, if the employee does not comply with the harasser's

18 demands. The second is hostile work environment harassment. This

19 harassment can be perpetrated by a supervisor or coworker. The

20 hallmark of hostile work environment harassment is that there is no

21 tangible employment action which results from the harassment. See

22 Burlington v. Ellerth, 524 U.S. 742, 751-753 (noting that the terms

23 "quid pro quo" and "hostile work environment" have been used in the

24 courts to refer to sexual harassment and describe respectively,

25 harassment that is accompanied by specific harm to the victim's job

26 and harassment that harms an employee's job more generally, by

27 creating a hostile work environment).

28

To survive a defendant's motion for summary judgment, as a

24

1 threshold matter, a plaintiff must show that the harassment

2 occurred because of sex. See Oncale v. Sundowner Offshore

3 Services, 523 U.S. 75, 80-81 (1998). In addition to this

4 requirement, to state a prima facie case of hostile work

5 environment sexual harassment a plaintiff must show that she has

6 experienced (1) conduct of a sexual nature (2) that is so severe or

7 pervasive as to alter the terms and conditions of her working

8 environment and (3) that the conduct is unwelcome. Harris v.

9 Forklift Systems, 510 U.S. 17 (1993); Brooks v. City of San Mateo,

10 229 F.3d 917, 924 (9th Cir. 2000); Ellison v. Brady 924 F.2d 872,

11 875 (9th Cir. 1991). The plaintiff's belief that she has been

12 subjected to a hostile and abusive work environment must be both

13 subjectively held and objectively reasonable. Ellison, 924 F.2d

14 872, 879 (9th Cir. 1991).

15 V. DISCUSSION.
16

17

To determine the scope of the actions that may be considered

18 as part of the EEOC’s case, the first inquiry addresses the

19 administrative filing requirements of Title VII.

20

21 A. Conditions Precedent

22

Title VII allows the EEOC to commence civil suits in its own

23 name. 42 U.S.C. § 2000e-5(f)(1). There are four conditions

24 precedent, before the agency brings suit. First, a charge of

25 discrimination must be filed. The EEOC must then inform the

26 alleged wrongdoer of the charge, conduct an investigation, and

27 determine whether reasonable cause exists to believe that the

28 charges are true. If reasonable cause is found, the agency must

25

1 engage in conciliation efforts. EEOC v. Pierce Packing Co., 669

2 F.2d 605, 607 (9th Cir. 1982).

3

The EEOC argues that it has met all jurisdictional

4 requirements to file this action on behalf of Soares, Somera, and

5 the class of similarly situated women. CPT disagrees, in part.

6 CPT argues that the EEOC has not fulfilled Title VII’s statutory

7 prerequisites as to: (1) the timeliness of Somera’s administrative

8 charge; (2) the notice and conciliatory regarding Somera’s

9 constructive discharge claim; and (3) the notice and conciliatory

10 requirements regarding the class claim.

11

12

1. Charging Party Soares

13

The EEOC moves for summary adjudication as to whether it

14 satisfied the jurisdictional prerequisites to bring suit on behalf

15 of charging party Soares. CPT does not oppose the motion. Here,

16 Soares filed her EEOC Charge on April 26, 2004 and the EEOC

17 provided CPT with notice of the Soares Charge in May 2006. The

18 Soares Charge states that Soares was sexually harassed by her

19 supervisor, Larry Fuentes, from the time of her hire on about

20 October 16, 2003 (192 days before she filed her charge) until her

21 termination on about April 10, 2004. Because the entire period of

22 Soares’ employment falls within the 300 day limitations period,

23 there can be no dispute that her charge was timely.

24

The record also reflects that the EEOC investigated Soares’

25 claims and attempted to settle the matter prior to bringing suit.

26 The EEOC’s efforts satisfy Title VII.

27

The EEOC’s motion for summary adjudication as to whether it

28 satisfied the conditions precedent to bring suit on behalf of

26

1 charging party Soares is GRANTED.

2

3

2. Charging Party Somera

4

a. Untimely Administrative Charge

5

CPT argues that Somera’s claim is untimely because the last

6 discriminatory act against her took place more than 300 days from

7 the date on which Somera filed her charge of discrimination.

8

A plaintiff must file a timely charge of discrimination with

9 the EEOC as a prerequisite to bringing suit under Title VII. 42

10 U.S.C. § 2000e-5(e). Title VII requires that a complainant file a

11 charge with the EEOC within 180 days after the last act of alleged

12 discrimination, unless the alleged violation occurred in a

13 jurisdiction that has a “work-sharing” agreement. Id. California

14 is a “work-sharing” state with a state agency capable of affording

15 relief, that is, the California Department of Fair Employment and

16 Housing, thus the period for filing a charge of employment

17 discrimination with the EEOC can be 300 days. Santa Maria v.

18 Pacific Bell, 202 F.3d 1170, 1176 (9th Cir. 2000).

19

In a Title VII suit, a charge filed after the period has run

20 is untimely and cannot be the basis of a suit. Roberts v. Gadsden

21 Memorial Hosp., 835 F.2d 793, 799 (11th Cir. 1988). Failure to

22 file an EEOC charge within the prescribed 300-day period is not a

23 jurisdictional bar, but it is treated as a violation of a statute

24 of limitations, complete with whatever defenses are available to

25 such a violation, such as equitable tolling and estoppel.

26 Valenzuela v. Kraft, Inc., 801 F.2d 1170, 1174 (9th Cir. 1986).

27

The timing - or lack thereof - of Somera’s claim is not in

28 dispute. Somera, a CPT employee from February 2003 until December

27

1 2003, stated in her deposition that the last act of alleged

2 discrimination against her took place on November 20, 2003. The

3 300-day time limit thus commenced on that day and expired on

4 September 15, 2004. It is undisputed that Somera did not file a

5 charge with the EEOC until September 27, 2004, more than the 300

6 days after last act of alleged discrimination.

7

While the EEOC does not contest the untimeliness of Somera’s

8 charge, it argues that Somera is entitled to rely on the earlier

9 EEOC charge filed by Soares to satisfy the 300-day statutory

10 prerequisite.10 The EEOC contends that because Soares’ charge was

11 timely and brought on behalf of “Soares and any other similarly

12 situated women,” it provided the EEOC with a sufficient

13 jurisdictional foundation to bring a suit on Somera’s behalf. This

14 is known as the “single filing” rule or “piggybacking.” Holowecki

15 v. Fed. Express Corp., 440 F.3d 558, 564 (10th Cir. 2006).

16

Although the Ninth Circuit has not specifically addressed the

17 issue,11 the single filing rule has been applied under various

18

19

10 It is undisputed that Soares’ administrative charge was

timely. (PSUF 1-14.)

20

11 There is some indication that the Ninth Circuit has 21 declined to adopt the rule. See Inda v. United Air Lines, 565

22 F.2d 554, 559 (9th Cir. 1977) ("if one brings suit on his own behalf, or as a named plaintiff on behalf of a class, he must

23 have secured a right to sue by timely following the procedures set forth in Title VII."). However, to the extent such language

24 in Inda is not dicta, it has been restricted to its facts where a

plaintiff sought to rely on an administrative charge of an 25 individual employee in a separate action, and where the EEOC

26 charge did not give sufficient notice that other similarly-situated persons would also be affected. See Dukes v.

27 Wal-Mart Stores Inc., 2002 WL 32769185, at *5 (N.D. Cal. Sept. 9,

2002) (limiting Inda's application); see also White v. BFI Waste

28 Services, LLC, 375 F.3d 288, 293-94 (4th Cir. 2004) (observing

28

1 circumstances by the Second, Fifth, Sixth, Seventh, Eighth, Tenth,

2 and Eleventh Circuits. See Anson v. Univ. of Tex. Health Science

3 Center, 962 F.2d 539, 541 (5th Cir. 1992) (The single filing rule

4 is "universally [held]."); Foster v. Ruhrpumpen, Inc., 365 F.3d at

5 1197 (10th Cir. 2004); Anderson v. Unisys Corp., 47 F.3d 302, 308

6 (8th Cir. 1995). Most courts have adopted a test requiring only

7 that the timely exhausted claims and the non-exhausted claims arise

8 out of the same circumstances and occur within the same general

9 time frame. See e.g., Stone v. First Union Corp., 371 F.3d 1305,

10 1311 (11th Cir. 2004).

11

A charge will be adequate to support piggybacking under the

12 single filing rule if it contains sufficient information to notify

13 prospective defendants of their potential liability and permit the

14 EEOC to attempt informal conciliation of the claims before a

15 lawsuit is filed. Howlett v. Holiday Inns, Inc., 49 F.3d 189, 195

16 (6th Cir. 1995). To determine the adequacy of a charge for use in

17 piggybacking subsequent plaintiffs, courts often look to the size

18 and type of the work unit involved. Id. "[M]ere similarity of the

19 grievances within the same general time frame suffices to permit

20 the ‘single filing rule’" when the complaints "arise in a work unit

21 of modest size." Id. (quoting Tolliver v. Xerox Corp., 918 F.2d

22 1052, 1058 (2d Cir. 1990)).

23

CPT argues that Somera is not “similarly situated” to Soares,

24

25 that the single-filing rule allows plaintiffs who have not 26 exhausted administrative filing requirements to join in a lawsuit
with other plaintiff, as opposed to bringing a separate suit on 27 their own behalf). Because Soares’ EEOC charge gave notice of
other similarly situated individuals, Inda would not prevent 28 application of the single-filing rule.

29

1 to prevent the single filing rule from relieving the tardiness of

2 Soares’ complaint. CPT asserts that Somera’s claims differ from

3 Soares’ claims in that they focus on complaints to supervisors

4 while Soares’ claims focus on complaints to co-workers. Further,

5 CPT argues that Somera and Soares held different jobs, worked

6 different shifts, and had different supervisors. CPT contends this

7 creates a genuine issue of material fact as to the charging parties

8 relatedness and supports a denial of the EEOC’s motion for summary

9 adjudication.

10

CPT’s arguments are unpersuasive. The EEOC has adequately

11 shown that the individual claims of charging parties arose out of

12 similar alleged sexually harassing treatment by the same

13 individual, who allegedly created a constant environment of

14 sexually offensive conditions for female employees, during the same

15 timeframe.12 Somera and Soares both assert that they were

16 discriminated against on the basis of their sex by Larry Fuentes,

17 a fellow CPT employee, from 2003-2004.13 The parties’ claims need

18 not be factually identical to those timely filed, but instead need

19 to be sufficient similarity as to prevent frustration of Title VII

20 policies. See Trbovich v. Ritz-Carlton Hotel Co., 920 F. Supp.

21 1030 (E.D. Mo. 1995).

22

The relatedness of the Soares and Somera’s claims is best

23 illustrated by their EEOC charges, filed by Somera on September 27,

24 2004 and Soares on April 26, 2004, respectively. Like Soares’

25

26

12 The relevant timeframe is February 2003 to April 2004.

See Part II(A), “Parties”, discussed supra.

27 13 Relatedness is magnified based on CPT’s size: it is a
28 mid-size company employing 25-85 people. (Doc. 40, 2:12-2:13.)

30

1 charge, Somera’s charge described in detail the allegedly harassing

2 conduct, such as Larry Fuentes’ sexually explicit comments, his

3 sexual epithets, and his inappropriate touching. Soares’ charge

4 also described the nature of the harassment and notice that Larry

5 Fuentes was harassing other CPT employees. Soares’ charge

6 provided, for instance, that “I and other women were subjected to

7 sexual harassment by Supervisor Larry Fuentes [...] he was

8 constantly making gross sexual statements." (Doc. 37, Exh. 1.)

9 Moreover, Somera’s charge stated that "Manager Larry Fuentes

10 sexually harassed me and other female employees. The harassment

11 was of a verbal and physical nature, and was constant.” (Doc. 37,

12 Exh. 3.)

13

CPT relies on Arrieta v. Yellow Transp., Inc., 2008 U.S. Dist.

14 LEXIS 101502 (N.D. Tex. 2008), to assert that the parties are not

15 similarly situated. Arrieta is factually distinguishable. Unhlike

16 this case, the charging party in Arrieta did not provide any

17 evidence supporting relatedness. Arrieta found:

18

[Plaintiff’s] argument consists primarily of the

19

conclusory statements that he is similarly

situated to the other plaintiffs and that their

20

charges provided some notice to YTI of the

collective nature of their charges. He does not

21

offer any explanation or argument to show how he

is similarly situated to the other plaintiffs or

22

how their charges provided the requisite notice

to YTI. Given the purpose of the exhaustion

23

requirement and the limited nature of the

piggybacking exception, a plaintiff may not

24

simply assume that his independent, non-exhausted

claims can be supported by the independent claims

25

of others.

26 Arrieta at *79-*80.

27

CPT’s reliance on Arrieta misses the mark. Because of the

28 similarity of Soares’ and Somera’s EEOC charges, CPT had notice

31

1 regarding the relatedness of their sexual harassment allegations

2 against the same individual, which were ignored by CPT’s

3 management. Arrieta is distinguishable.

4

Here, the requirements of the single filing rule are met.

5 CPT’s unsupported assertions that the parties are not “similarly

6 situated” are not enough to create a genuine issue of material

7 fact. Although Somera’s charge was untimely, the EEOC has met its

8 Rule 56 burden and demonstrated, as a matter of law, that the

9 individual claims of the charging parties arose out of similar

10 alleged harassing treatment to enable use of the “single filing”

11 exception.

12

CPT does not oppose presence of the remaining jurisdictional

13 prerequisites regarding the EEOC’s ability to bring a hostile work

14 environment claim on Somera’s behalf. Somera can “piggyback” on

15 Soares’ earlier EEOC charge, making her charge timely. The record

16 reflects that the EEOC investigated Somera’s claims, provided CPT

17 with a letter of determination, and attempted to settle the matter

18 prior to bringing suit. The EEOC’s efforts satisfy Title VII.

19

The EEOC motion as to whether it satisfied the conditions

20 precedent to bring a hostile work environment claim on behalf of

21 charging party Somera is GRANTED. CPT’s contrary motion for

22 summary adjudication is DENIED.

23

24

B. Somera’s Constructive Discharge Claim

25

26

CPT contends that Somera’s constructive discharge claim was

27 not within the scope of her EEOC charge and is not actionable. CPT

28 states that the EEOC “never provided notice to CPT” and “never

32

1 considered or investigated Ms. Somera’s voluntary resignation as a

2 constructive discharge flowing from allegations of sexual

3 harassment.” The EEOC counters that the claim of “constructive

4 discharge constitutes an additional consequence of the conduct

5 alleged in the charge” and is permissible. Both parties move for

6 summary adjudication on the issue.

7

Analysis of this issue begins with an examination of the

8 prerequisites to suit by the EEOC and the scope of claims the EEOC

9 is empowered to assert. In EEOC v. Shell Oil Co., 466 U.S. 54, 80

10 L. Ed. 2d 41, 104 S. Ct. 1621 (1984), the Supreme Court explained

11 the EEOC's enforcement procedure as follows:

12

In its current form, Title VII sets forth "an

integrated, multistep enforcement procedure" that

13

enables the Commission to detect and remedy

instances of discrimination. See Occidental Life

14

Insurance Co. v. EEOC, 432 U.S. 355, 359, 97 S.

Ct. 2447, 2450, 53 L. Ed. 2d 402 (1977). The

15

process begins with the filing of a charge with

the EEOC alleging that a given employer has

16

engaged in an unlawful employment practice [....]

17

[The statute] require[s] the Commission to

"serve a notice of the charge (including the

18

date, place and circumstances of the alleged

unlawful employment practice) on [the] employer

19

. . . within ten days" of the filing of the

charge. 42 U.S.C. § 2000e-5(b).

20

After a charge has been filed, the EEOC

21

conducts an investigation of the allegations

contained therein. . . . If, after completing its

22

investigation, the EEOC determines that there is

"reasonable cause to believe that the charge is

23

true," it must "endeavor to eliminate [the]

alleged unlawful employment practice by informal

24

methods of conference, conciliation, and

persuasion." § 2000e-5(b). If those methods prove

25

ineffectual, the Commission is empowered to bring

a civil action against the employer. §

26

2000e-5(f)(1).

27

In the course of this procedure, a "reasonable cause"

28 determination by the EEOC is critical:

33

1

The statute directs the EEOC to notify the

respondent of the charge within 10 days, to

2

investigate the charge, and to determine "as

promptly as possible and, so far as practicable,

3

not later than one hundred and twenty days from

the filing of the charge" whether there is

4

reasonable cause to believe that the charge is

true. 42 U.S.C. § 2000e-5(b). If the EEOC finds

5

no reasonable cause, then it must dismiss the

charge. See id. If it finds reasonable cause,

6

then it must attempt to resolve the dispute "by

informal methods of conference, conciliation, and

7

persuasion." Id. "If within thirty days after a

charge is filed . . . the Commission has been

8

unable to secure from the respondent a

conciliation agreement acceptable to the

9

Commission, the Commission may bring a civil

action against any [non-governmental] respondent.

10

. . ." Id. § 2000e-5(f)(1).

11 Martini v. Federal Nat'l Mortgage Ass'n, 178 F.3d 1336, 1340 (D.C.

12 Cir. 1999). Thus, following investigation, a determination that

13 "reasonable cause" is lacking ends the EEOC's procedures, while a

14 determination that there is "reasonable cause" initiates the

15 conciliation process, and also opens the door to suit by the EEOC,

16 if conciliation fails. EEOC v. Occidental Life Ins. Co., 535 F.2d

17 533, 541-542 (9th Cir. 1976).

18

The Ninth Circuit adopted the reasoning of other courts on the

19 importance of a reasonable cause determination and conciliation as

20 prerequisites to suit by the EEOC. Id.; see also EEOC v. Pierce

21 Packing Co., 669 F.2d 605, 608 (9th Cir. 1982) (“Genuine

22 investigation, reasonable cause determination and conciliation are

23 jurisdictional conditions precedent to suit by the EEOC.”)

24

Turning to the scope of the claims the EEOC may assert,

25 admittedly, once the EEOC decides to sue in its own name, it is not

26 limited to the facts presented in the charge. EEOC v. Farmer

27 Bros., 31 F.3d 891, 899 (9th Cir. 1994). Rather, the EEOC may sue

28 based on any violations that fall within the scope of the EEOC’s

34

1 actual investigation, or are “like or reasonably related to” the

2 allegations made before the EEOC, such that they would have been

3 included within the scope of an EEOC investigation. Id.; see also

4 Sosa v. Hiraoka, 920 F.2d 1451, 1456 (9th Cir. 1990) ("The

5 jurisdictional scope of a Title VII claimant's court action depends

6 upon the scope of both the EEOC charge and the EEOC

7 investigation."). However, as this statement indicates, the EEOC's

8 power to sue depends upon ascertainment of a violation, in other

9 words, upon a "reasonable cause" determination that a violation has

10 occurred.

11

In EEOC v. Hearst Corp., Seattle Post-Intelligencer Div., 553

12 F.2d 579 (9th Cir. 1976), a gender discrimination case, the Ninth

13 Circuit explained:

14

[S]o long as discovery of the new

discrimination arises out of the reasonable

15

investigation of the charge filed, it can be

the subject of an EEOC ‘reasonable cause’

16

determination to be followed by an EEOC offer

of conciliation and, if conciliation fails, by

17

a civil suit - without the filing by EEOC of a

separate charge on the new claim.

18

In other words, the original charge is

19

sufficient to support EEOC administrative

action, as well as an EEOC civil suit, for any

20

discrimination stated in the charge itself or

discovered in the course of a reasonable

21

investigation of that charge, provided such

additional discrimination was included in the

22

EEOC ‘reasonable cause’ determination and was

followed by compliance with the conciliation

23

procedures of the Act.

24 Hearst at 580-581.14)

25

26

14 In Hearst Corp., the Ninth Circuit noted that it was not

departing from its decision in Oubichon v. North American, 482

27 F.2d 569 (9th Cir. 1973) - a private Title VII suit, holding that

when an employee seeks judicial relief for incidents not listed

28 in his original EEOC charge, the judicial complaint may encompass

35

1

2

Here, the original charge by Somera alleged that she and other

3 women were sexually harassed by Larry Fuentes, the harassment was

4 “verbal and physical,” and continued throughout her tenure at CPT.

5 Somera’s charge did not allege constructive discharge, retaliation,

6 or otherwise mention her exit from CPT. Thereafter, the EEOC

7 commenced its investigation into Somera’s claims, which included

8 interviewing witnesses and requesting documents.

9

The EEOC issued a letter of determination regarding Somera’s

10 claims on September 1, 2005. The letter stated that “[b]ased on

11 the evidence of record, there is reasonable cause to believe that

12 Respondent discriminated against Charging Party and a class of

13 similarly situated female employees based on their sex, female, in

14 violation of the statute.” The letter mentions only Somera’s

15 gender discrimination claims; it did not mention Somera’s departure

16 from CPT and did not find that there is reasonable cause to believe

17 that CPT constructively discharged Somera.15

18

The EEOC argues that the base charge of sexual harassment puts

19 CPT on notice of the constructive discharge claim, and that “as

20 long as the EEOC’s finding of harassment is clear, the notice need

21 not detail every consequence of the harassment.” (Pl.’s reply, pg.

22

23
any discrimination "like or reasonably related to the allegations 24 of the EEOC charge ...."

25

15 The particularity of Somera’s letter stands in contrast

26 to Soares’ letter. Soares’ letter states that “Charging Party also alleges that she was retaliated against for engaging in

27 protected activity” and “there is reasonable cause to believe

Respondent retaliated against Charging Party, in violation of

28 statute.” (Doc. 56, Exh. M, EEOC 00003.)

36

1 8.) The EEOC cites EEOC v. Newton Inn Assoc., 647 F. Supp. 957

2 (E.D. Va. 1986)., in support of its argument. However, Newton is

3 distinguishable.

4

In Newton, the charging parties filed charges with the EEOC

5 alleging gender discrimination.

The EEOC conducted an

6 investigation and issued letters of determination stating it found

7 reasonable cause to believe the charging parties were subjected to

8 sexual harassment and retaliation. Following failed conciliation

9 efforts, the EEOC filed a lawsuit alleging, among other things,

10 sexual harassment, retaliation, and constructive discharge.

11 Defendant moved to dismiss the constructive discharge claim arguing

12 that it is outside the scope of the original administrative charge

13 and subsequent EEOC investigation. The court held that the

14 constructive discharge claim “logically flowed” from the substance

15 of the initial administrative charge because the EEOC had

16 determined that the charging parties and at least six other female

17 associates were reassigned to a less desirable shift. The court

18 found that the constructive discharge claims - tacked onto the same

19 charging parties’ retaliation claims - broadened the scope “only

20 minimally.”

21

Here, unlike Newton, the EEOC’s complaint does not refer to an

22 earlier retaliation claim made by the charging party. In fact,

23 Somera did not allege constructive discharge or include any facts

24 relating to her resignation. In Newton, the EEOC also notified the

25 employer - during conciliation discussions - that compliance would

26 require “reinstatement and back wages for five additional

27 individuals allegedly constructively discharged [...]”. There is

28 no such notice by the EEOC to the employer in this case.

37

1

The EEOC states that specific notice of the constructive

2 discharge claim is not required because “a constructive discharge

3 predicated upon harassment does not provide a new theory of

4 discrimination.” (Pl.’s Rep. 7:24-7:28.) This is not accurate.

5 See Herron v. DaimlerChrysler Corp., 388 F.3d 293, 303 (7th Cir.

6 2004)(finding that Plaintiff could not sustain his Title VII

7 constructive discharge claim because it was not “like or reasonably

8 related” to the original EEOC charge, which described only racial

9 discrimination and harassment.); Zartman v.Coffey County Hospital,

10 2004 WL 877667 (D. Kan. 2004) (finding that Plaintiffs were not

11 entitled to pursue a constructive discharge claim because it was

12 not “similarly situated” to claims of hostile work environment and

13 retaliation.); Tupua v. Hawaii, Dept. of Health, WL 1561578 (D.

14 Haw. 2009) (finding that treatment on the job and constructive

15 discharge are separate and distinct discriminatory events.);

16 Harvill v. Westward Communications, LLC, 311 F. Supp. 2d 573 (E.D.

17 Tex. 2004)(stating that “[c]onstructive discharge, however, does

18 not grow out of harassment allegations.”).

19

Harvill is instructive. In Harvill, Defendants moved for

20 summary judgment on Plaintiff’s constructive discharge claim

21 because Plaintiff’s EEOC charge did not include a claim for

22 constructive discharge. Plaintiff first introduced a claim for

23 constructive discharge in her complaint. The Defendants argued it

24 fell outside the scope of her EEOC charge. In granting Defendant’s

25 motion, the Harvill court stated:

26

It is undisputed that Harvill did not assert

constructive discharge in her charge. The charge

27

only contains harassment allegations regarding

the terms and conditions of Harvill's employment.

28

Constructive discharge, however, does not grow

38

1

out of harassment allegations.

2 Harvill at 585.
3

4 Without more, allegations of sexual harassment do not provide
5 a foundation for constructive discharge claims. Constructive
6 discharge ends the employer/employee relationship and requires the
7 plaintiff to demonstrate that “a reasonable person in the
8 plaintiff’s position would have felt he or she was forced to quit
9 because of intolerable or discriminatory work conditions.” Wallace
10 v. City of San Diego, 479 F.3d 616, 626 (9th Cir 2007). This
11 differs dramatically from sexual harassment’s posture and required
12 elements.16
13 The EEOC presents no evidence that they considered or
14 investigated Somera’s resignation as a constructive discharge
15 flowing from her sexual harassment allegations. If the EEOC was
16 squarely presented with the issue of constructive discharge - which
17 allegedly occurred ten months prior to Somera’s EEOC charge and two
18 years prior to the EEOC’s LOD -, why did they limit a reasonable
19 cause determination to Somera’s allegation of gender
20 discrimination? Whatever the reason, we arrive at the same point:
21

22 16 29 C.F.R. § 1604.11 states: “Unwelcome sexual advances,
23 requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when (1)
24 submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment, (2)
25 submission to or rejection of such conduct by an individual is 26 used as the basis for employment decisions affecting such
individual, or (3) such conduct has the purpose or effect of 27 unreasonably interfering with an individual's work performance or
creating an intimidating, hostile, or offensive working 28 environment.”

39

1 the EEOC did not find reasonable cause to include allegations of

2 constructive discharge.17

3

While mindful of enforcing “form over substance,” the EEOC’s

4 lack of a reasonable cause finding is conspicuous. It provides a

5 basis for conciliation and, if those efforts fail, permits the EEOC

6 to initiate litigation.18 By failing to provide any notice to CPT

7 of the constructive discharge claim - whether in the form of the

8 EEOC charge, factual findings, or the LOD - the EEOC circumvents

9 its “investigatory and conciliatory role, as well as deprive[s] the

10 charged party of notice of the charge.” B.K.B. v. Maui Police

11 Dept., 276 F.3d 1091, 1099 (9th Cir. 2002)(quoting Babrocky v.

12 Jewel Food Co., 773 F.2d 857, 863 (7th Cir.1985)). Consistent with

13

14

17 EEOC v. Hearst Corp., supra, addresses an original charge

that alleged only discrimination against males. The subsequent

15 EEOC findings, based on evidence revealed during its

investigation, included discrimination, not only as to males, but 16 also as to females and members of minority groups. The EEOC

formally notified the employer of these findings and the EEOC 17 issued its “Determination of Reasonable Cause,” which included

18 the additional claims of discrimination. The parties proceeded to conciliation efforts on all the issues. Conciliation

19 eventually failed and the EEOC initiated litigation. On appeal,

the Ninth Circuit ruled that because “defendant has received 20 adequate notice of the new charge during the administrative

proceedings,” the EEOC’s allegations of gender and race 21 discrimination were proper. Here, the EEOC never notified CPT of

22 the constructive discharge claim, thus distinguishing it from the typical situation where “the complaint may encompass [...] new

23 acts occurring during the pendency of the charge before the

EEOC.” Gen. Tel. Co. Of the N.W. v. EEOC, 446 U.S. 318, 331 24 (1980).

25

18 In Seymore v. Shawver & Sons, Inc., 11 F.3d 794, 799 (10th

26 Cir. 1997), the Tenth Circuit stated: “[W]here a retaliatory act occurs prior to the filing of a charge and the employee fails to

27 allege the retaliatory act of a retaliation claim in the

subsequent charge, the retaliatory act ordinarily will not

28 reasonably relate to the charge.”

40

1 case law and the purposes of Title VII, notice to CPT regarding the

2 constructive discharge claim was required to maintain such a claim

3 on Somera’s behalf.

4

In this case, the EEOC’s lack of a reasonable cause finding is

5 fatal to EEOC’s pursuit of a constructive discharge claim on

6 Somera’s behalf. Even if the constructive discharge claim is

7 factually related to the substance of the sexual harassment claim,

8 Somera did not include the constructive discharge claim in her EEOC

9 charge and the EEOC did not include the allegations of constructive

10 discharge in its reasonable cause determination. Title VII’s

11 jurisdictional standards preclude a constructive discharge claim in

12 this case.

13

Summary adjudication is GRANTED in favor of CPT regarding the

14 EEOC’s ability to bring a constructive discharge claim on Somera’s

15 behalf. The EEOC’s cross-motion in this regard is DENIED.

16

Given this ruling on Somera’s constructive discharge claim, it

17 is unnecessary to decide the motions regarding conciliation on

18 constructive discharge. The EEOC’s and CPT’s motions on this issue

19 are DENIED as MOOT.

20

21

C. Conclusions Re Charging Party Somera

22

1. Hostile Work Environment Claim

23

Somera can “piggyback” on Soares’ earlier EEOC charge, making

24 her charge timely. CPT did not challenge the remaining

25 jurisdictional prerequisites to EEOC’s ability to maintain a

26 hostile work environment claim on Somera’s behalf. The record

27 reflects that the EEOC investigated Somera’s claims, provided CPT

28 with a letter of determination, and attempted to settle the matter

41

1 prior to bringing suit. The EEOC’s efforts satisfy Title VII.

2

EEOC’s motion whether it satisfied the conditions precedent to

3 bring a hostile work environment claim on behalf of charging party

4 Somera is GRANTED. CPT’s motion for summary adjudication on this

5 issue is DENIED.

6

7

2. Constructive Discharge Claim

8

The EEOC’s lack of a reasonable cause finding is fatal to the

9 EEOC’s assertion that it can pursue a constructive discharge claim

10 on Somera’s behalf. Title VII’s jurisdictional standards preclude

11 a constructive discharge claim in this case.

12

Summary adjudication is GRANTED in favor of CPT regarding the

13 EEOC’s constructive discharge claim on Somera’s behalf. The EEOC’s

14 motion in this regard is DENIED.

15

16

17

3. Similarly Aggrieved Parties

18

CPT claims that the EEOC has not satisfied the notice and

19 conciliation prerequisites to proceed with the class claims.19

20 According to CPT, it was not properly notified of the pattern-or-

21 practice allegations against it. In addition, CPT asserts it was

22 not informed of either the identity of the claimants or the facts

23 underlying their claims at any stage during the administrative

24

25

19 To remedy any confusion on this point, the term

26 "similarly situated female employees" is referred to as in the relevant part of Title VII: "allegedly aggrieved persons." See 42

27 U.S.C. § 2000e-5(f)(1) (referring to "[t]he person or persons

aggrieved" and "the person aggrieved"). "Similarly situated

28 female employees" are not referred to as “class members."

42

1 process, and was therefore denied an opportunity to engage in

2 “conciliation." (Def.’s Opp. Pg. 11.) CPT concludes, EEOC's claim

3 on behalf of similarly aggrieved persons must fail.

4

5

a. Notice

6

Title VII grants the EEOC authority "to investigate and act on

7 a charge of a pattern or practice of discrimination, whether filed

8 by or on behalf of a person claiming to be aggrieved or by a member

9 of the Commission." EEOC v. Jillian's of Indianapolis, IN, Inc.,

10 279 F. Supp. 2d 974; 42 U.S.C. § 2000e-5(f). The EEOC may

11 institute a "pattern-or-practice" case on its own initiative, i.e.,

12 by the filing of a Commissioner's charge. Such cases must "be

13 conducted in accordance with the procedures set forth in [42 U.S.C.

14 § 2000e-5]." Id.

15

As explained in Part V(1), supra, jurisdiction exists over any

16 discrimination claims "that are alike or reasonably related to the

17 allegations made in the EEOC charge[s], or that fall within the

18 ‘EEOC investigation which can reasonably be expected to grow out of

19 the charge[s] of discrimination.’” Deppe v. United Airlines, 217

20 F.3d 1262, 1267 (9th Cir. 2000); see Gen. Tel. Co. of the N.W. v.

21 EEOC, 446 U.S. 318, 331, 100 S. Ct. 1698, 64 L. Ed. 2d 319 (1980)

22 ("Any violations that the EEOC ascertains in the course of a

23 reasonable investigation of the charging party's complaint are

24 actionable."). The EEOC may, to the extent warranted by an

25 investigation reasonably related in scope to the allegations of the

26 underlying charge, seek relief on behalf of individuals beyond the

27 charging parties who are identified during the investigation."

28 United Parcel Serv., 94 F.3d at 318 (citing Cheek, 31 F.3d at 500);

43

1

The evidence in this case demonstrates the following: The two

2 original charges alleged sexual harassment by a employee at CPT’s

3 Delhi facility and retaliation by Soares. (DSUF 1-4; Doc. 37, Exh.

4 1 & 3.) Somera asserted in her charge that the “I and other women

5 were subjected to sexual harassment." (Id.) Soares stated in her

6 charge that the employee “sexually harassed me and other female

7 employees” and “constantly stared at the buttocks of female

8 employees, including my buttocks.” (Id.) The charges filed by

9 Soares and Somera mention Larry Fuentes by name, alleging that he

10 had verbally sexually harrased them and fellow CPT employees "

11 (Id.) The EEOC’s LOD letters further provided that there was

12 reasonable cause to believe that CPT discriminated against each of

13 them and a class of allegedly aggrieved persons based on their sex.

14 (Doc. 37, Exh. 6 & 7.)

15

The EEOC’s sexual harassment claim on behalf of allegedly

16 aggrieved persons is related to the allegations made in the

17 original charges and arose out of Plaintiff’s investigation of

18 those charges. The EEOC notified CPT that the allegations included

19 “similarly situated women.” While the EEOC did not specifically

20 identify those women by name in its correspondence, Defendant has

21 cited no legal authority that such specific disclosure is a

22 prerequisite to an exhaustion of the statutory prerequisites. The

23 EEOC has provided adequate notice to CPT of sexual harassment of

24 similarly situated women.

25

26

b. Conciliation

27

"The sufficiency of a conciliation effort by the EEOC does not

28 present a jurisdictional question, so long as a conciliation

44

1 attempt has been made." EEOC v. California Teachers' Ass'n, 534

2 F.Supp. 209, 213, n. 3 (N.D. Cal. 1982) (citing EEOC v. Zia Co.,

3 582 F.2d 527, 533 (10th Cir. 1978). A district court's

4 dissatisfaction with an EEOC conciliation attempt "is not the

5 appropriate standard of review. The district court should only

6 determine whether the EEOC made an attempt at conciliation. The

7 form and substance of those conciliations is within the discretion

8 of the EEOC as the agency created to administer and enforce our

9 employment discrimination laws and is beyond judicial review."

10 EEOC v. Keco Industries, Inc., 748 F.2d 1097, 1101 (6th Cir. 1984).

11 "The EEOC is under no duty to attempt further conciliation after an

12 employer rejects its offer. Before bringing suit, the EEOC must

13 make a good faith effort to conciliate the claim. However, once

14 the employer rejects the conciliation attempts, the EEOC is free to

15 file suit under Title VII." Keco Industries, 748 F.2d at 1101-1102

16 (citing EEOC v. Radiator Specialty Co., 610 F.2d 178, 183 (4th

17 Cir.1979); EEOC v. Zia Co., 582 F.2d 527 (10th Cir.1978)). Where

18 defendant "was unwilling to engage in any discussion regarding [a]

19 charge . . .[,] the EEOC could reasonably have believed that its

20 efforts to conciliate were sufficient." EEOC v. Bruno's

21 Restaurant, 13 F.3d 285, 289 (9th Cir. 1993).

22

Here, applying a deferential standard of review to the EEOC’s

23 conciliation efforts, there is substantial evidence that the EEOC

24 satisfied the statutory condition precedent of conciliation on

25 behalf of allegedly aggrieved parties. The record indicates that

26 the EEOC invited CPT to conciliate all of the claims against it,

27 which necessarily included the sexual harassment charges levied by

28 “similar aggrieved parties.” (PSUF 3.) CPT received letters from

45

1 the EEOC providing notice that it had found reasonable cause to

2 believe that similarly situated parties were subjected to sexual

3 harassment while employed at CPT; (Doc. 37, Exh. 6 &7.) as part of

4 settlement negotiations, the EEOC notified CPT that it would

5 resolve the matter for $75,000; (PSUF 8.) CPT made a counteroffer

6 of $15,000, which the EEOC rejected; (PSUF 8.) And CPT was

7 notified, on or about January 31, 2006, that the EEOC deemed

8 conciliation efforts futile. (Doc. 37, Exh. 8,9.)

9

During the conciliation, the EEOC provided more than

10 sufficient information about the class and was not required to

11 provide any additional detail. See EEOC v. Dial Corp., 156

12 F.Supp.2d 926, 942 (D. Ill. 2001) (EEOC's failure to identify class

13 members during conciliation does not render its conciliation

14 efforts inadequate). The record is clear: the EEOC complied with

15 its conciliation obligations by providing CPT with an opportunity

16 to confront the sexual harassment charges brought by the similar

17 aggrieved parties.

18

19

c. Conclusion Re Allegedly Aggrieved Persons

20

The EEOC satisfied the notice and conciliation prerequisites

21 to proceed with a Title VII suit on behalf of allegedly aggrieved

22 persons. CPT has not opposed the remaining jurisdictional

23 prerequisites regarding the EEOC’s ability to bring a hostile work

24 environment claim on Somera’s behalf. The EEOC’s efforts satisfy

25 Title VII.

26

The EEOC motion as to whether it satisfied the conditions

27 precedent to bring a hostile work environment claim on behalf of

28 similarly aggrieved persons is GRANTED. CPT’s motion for summary

46

1 adjudication in this regard is DENIED.

2

3 B. Substantive Claims

4

CPT moves for summary adjudication on each of Soares’ claims:

5 (1) Soares’ claim that she was subjected to a hostile work

6 environment; and (2) Soares’ claim that she was retaliated against

7 for participating in federally protected conduct.

8

9

1. Soares’ Hostile Work Environment Claim

10

As described in Part VI(B), supra, to establish a hostile work

11 environment based on sex, the plaintiff must prove that she was

12 subjected to verbal or physical conduct, that the conduct was

13 unwelcome, and that the conduct was sufficiently severe or

14 pervasive to alter the terms and conditions of her employment and

15 create an abusive work environment. See Rene v. MGM Grand Hotel,

16 Inc., 305 F.3d 1061, 1065 (9th Cir. 2002)(en banc). The work

17 environment "must be both objectively and subjectively offensive,

18 one that a reasonable [woman] would find hostile or abusive, and

19 one that the [plaintiff] in fact did perceive to be so." Faragher

20 v. City of Boca Raton, 524 U.S. 775, 787 (1998).

21

Whether the conduct is severe or pervasive is determined in

22 reference to the following factors: "the frequency of the

23 discriminatory conduct; its severity; whether it is physically

24 threatening or humiliating or a mere offensive utterance; and

25 whether it unreasonably interferes with an employee's work

26 performance." Kortan v. California Youth Auth., 217 F.3d 1104 (9th

27 Cir. 2000)(internal quotations and citations omitted).

The

28 required showing of severity of the harassing conduct varies

47

1 inversely with the pervasiveness or frequency of the conduct. See

2 Ellison v. Brady, 924 F.2d 872, 878 (stating “the strength of the

3 claim depends on the number of incidents and the intensity of each

4 incident.20)

5

CPT contends that Soares’ hostile work environment claim fails

6 because the harassing conduct was neither severe nor pervasive.

7 Plaintiff’s counters that the verbal comments to which she was

8 subject and the additional harassing conduct creates a triable

9 issue that she experienced severe or pervasive sexual harassment

10 that altered the conditions of her employment and created a hostile

11 working environment. Although CPT urges that improper conduct does

12 not rise to an actionable level, several Ninth Circuit cases in

13 which a hostile work environment has been found to exist are

14 reasonably similar to the circumstances of this case. At the very

15 least, the precedents create a triable issue sufficient to survive

16 summary adjudication.

17

In Anderson v. Reno, 190 F.3d 930 (9th Cir. 1999), an FBI

18 agent endured a host of sexually harassing incidents between 1986

19 and 1994, including being referred to by her supervisor as the

20 "office sex goddess," "sexy," "gorgeous," and "the good little

21 girl" instead of by name. At a presentation she was to make about

22 an arrest plan, finding an easel with a drawing of a pair of

23 breasts and the words, "Operation Cupcake," and being told by the

24 supervisor in front of the assembled group "This is your training

25

26 20 However, to be actionable, the offensive conduct need not
27 be both severe and pervasive, one or the other will do. Quantock v. Shared Mkntg. Services, Inc. 312 F.3d 899, 904 (7th Cir.
28 2002).

48

1 bra session." The agent also received various vulgar notes

2 including a cartoon depicting varieties of female breasts with her

3 initials next to an example labeled "cranberries"; and being patted

4 on the buttocks by another agent, who commented on her "putting on

5 weight down there" and informed Anderson of his observations from

6 time to time.

7

In another example, Draper v. Coeur Rochester, Inc., 147 F.3d

8 1104 (9th Cir. 1998), a female employee of a mining company alleged

9 that over a two-year period her supervisor made sexual remarks

10 about her, in and out of her presence. The supervisor frequently

11 called her "beautiful" and "gorgeous" rather than her name and told

12 her about his sexual fantasies, including his desire to have sex

13 with her as well as his wife. The supervisor also joked that the

14 answer to a riddle about what a Mexican prostitute was called is

15 "frijole" and several times remarked about Draper's "ass" and

16 commented to others that "it would be fun to get into [Draper's]

17 pants". On one occasion the supervisor used the loudspeaker to ask

18 whether Draper needed help changing clothes and said there were

19 several guys willing to help, and on another, after Draper had

20 taken off a sweatshirt, asked whether that was all she was going to

21 take off.

22

Montero v. AGCO Corp., 192 F.3d 856, 860 (9th Cir. 1999)

23 further illustrates the type of conduct that gives rise to a

24 hostile working environment. Montero was the only female employee

25 at a parts distribution center. Over a two-year period, one

26 supervisor called her a "butt-kiss," told Montero he was going to

27 spank her, rested his chin on her shoulder, grabbed her arms until

28 she said "ouch," and made crude gestures. Another supervisor

49

1 grabbed his crotch while speaking with her, placed his face on her

2 bottom, told her he had sexual dreams about her, put his hand on

3 her chair as she sat down, tried to bite her neck, and knelt in

4 front of her and tried to put his head between her knees. Another

5 employee had pulled her pants up from behind by the belt loop,

6 commented about the small size of his penis, and placed notes on

7 her desk telling Montero to dance naked on the desk or to take off

8 her clothes.

9

There is no evidence or argument in this case that Soares was

10 subject to any direct physical acts. Soares’ hostile work

11 environment claim is based on verbal comments and actions taken by

12 employees of CPT, specifically, Larry Fuentes. However, Soares

13 asserts that Fuentes’ sexually-explicit comments in front of male

14 psychiatric patients put her safety at risk. Even so, a sexual

15 harassment claim may be viable even though comprised solely of

16 verbal harassment, with or without sexual advances. Lipsett v.

17 Univ. of Puerto Rico, 864 F.2d 881, 905 (1st Cir. 1988).

18

The earliest identified comment took place during Soares’

19 orientation in October 2003. During orientation, Fuentes, Soares’

20 supervisor, showed her CPT’s facilities and introduced her to the

21 staff and patients. Fuentes, in Soares’ presence, asked a male

22 psychiatric patient, “I bet you would like [Soares] to wash you in

23 the shower, right?” (Soares Dep. 29:16-29:22.) Fuentes then asked

24 the patient, “you like her ass, don’t you?” The “like her ass”

25 comment concerned Soares’ buttocks. (Soares Dep. 29:23-30:3.)

26

On more than one occasion during her employment, Fuentes told

27 Soares about his tongue piercing. (Soares Dep. 39:7-39:24.)

28 Fuentes stated that it was “to please the woman” and it made “women

50

1 feel good.” (Soares Dep. 39:12-39:19.) Fellow CPT employees heard

2 Fuentes’ comments concerning his tongue ring. (Id.)

3

At unspecified points in time throughout her enmployment,

4 Soares heard of Fuentes’ sexual comments toward other CPT

5 emloyees.21 One employee told Soares that “she had squatted down

6 [and] Fuentes want to know, you know, what it looked like.”

7 (Soares Dep. 73:15-73:19.) Charging Party Somera also told Soares

8 of her experiences Fuentes and his sexually-charged behavior.

9 Specifically, Somera told Soares of her distress when Fuentes

10 trapped her in the facility’s freezer and stated “I want to see

11 your nipples get hard.”

12

Soares testified in her deposition that Soares constantly used

13 the word “pussy” to describe female employees. (Soares Dep. 163:1-

14 163:5.) Soares stated that “[Fuentes] said that to me in referring

15 [...] after he found that Della told him what I said about the

16 shower incident.” (Id.)

17

At some point in time during her employment, Fuentes displayed

18 a calendar of almost naked women on top of his desk. Fuentes asked

19 Soares, “that doesn’t offend you, does it?” (Soares Dep. 66:19-

20 66:24.) The pictures were approximately 5x5 and were prominently

21 displayed on his desk. Fuentes’ desk was located directly adjacent

22 to the room where CPT held employee meetings. (Soares Dep. 67:3-

23 67:12.) Soares observed Fuentes’ calendar every shift, either on

24
21 One who has been personally subject to sexual harassment 25 may introduce evidence of the harasser’s sexual misconduct toward
26 others, of which she becomes aware during her employment, even if the other acts occurred outside of the Plaintiff’s presence.
27 Hawkins v. Anheuser-Busch, Inc., 517 F.3d 321, 335 (6th Cir. 2008); Weeks v. Baker & McKenzie, 63 CA 4th 1128, 1160-1163
28 (1998).

51

1 the way to staff meetings or to work at the meeting table. (Soares

2 Dep. 67:10-67:12.)

3

There are also Fuentes’ comments to a male psychiatric patient

4 in March of 2004. Soares agreed to take a male pychiatric patient

5 on a smoke break if he took a shower. (Soares Dep. 53:7-55:12.) To

6 the best of Soares’ knowledge, the patient did so. On their way to

7 the smoking area, Fuentes challenged the patient’s shower claims

8 and stated that, “well, have [Soares] smell your balls to see if

9 you took a shower.” (Id.) The patient responded, “that’s messed

10 up.” Soares complained to the head nurse, Mr. Baker, who had

11 witnessed the episode. (Id.) Soares told Baker that Fuentes’

12 comments threatened to her physical safety, as she was often alone

13 with male patients during her evening shift.22 (UF 42.)

14

Although this case lacks the level of misconduct contained in

15 the most egregious cases, Soares experienced much more than one

16 isolated incident. Soares has identified a continuing pattern of

17 sexually unwelcome comments far exceeding the comments found in

18 Smith v. County of Humboldt, 240 F. Supp. 2d 1109 (N.D. Cal. 2003),

19 the case relied on by CPT. Overt sexual comments that females were

20 “pussies” and offers to male psychiatric patients that female

21 nurses would “wash them in the shower” and “smell their balls,”

22 were a continuing part of Plaintiff’s workplace. A reasonable

23

24

22 CPT argues that “Ms. Soares did not perceive the shower

incident as subjectively offensive by reason of sex. Instead, 25 she was concerned because the remark was made in the presence of

26 a mental patient.” CPT’s arguments miss the mark. “Rude, overbearing, loud vulgar and generally unpleasant comments by a

27 male supervisor toward female subordinates” may constitute sexual

harassment under certain circumstances. EEOC v. National Ed.

28 Ass’n , Alaska, 422 F.3d 840, 845 (9th Cir. 2005)

52

1 woman would, like Soares, find them offensive.

2

CPT also cites Sanchez v. City of Santa Ana, 936 F.3d 1027

3 (9th Cir. 1990) as an example of case where harassing conduct was

4 not enough to create a hostile work environment. Sanchez, however,

5 is not altogether helpful. The court did not specify the nature of

6 the “racially offensive slurs” or the “racially offensive”

7 “cartoon” in the case or otherwise elaborate on the nature of the

8 harassing incidents. Id. The court described the incidents in

9 generic terms and often referred to what was “alleged” or

10 “claim[ed].” Id. at 1031. The hostile work environment claim was

11 tried in a bench trial and the district court granted a motion for

12 judgment in favor of the defendant. In affirming the judgment, the

13 court did not provide an extended analysis of the hostile work

14 environment claim. The court simply stated: “We cannot say that

15 the district court's ultimate conclusion, that the plaintiffs

16 failed to prove the existence of a discriminatory atmosphere, is

17 incorrect as a matter of law.” Id. at 1037. Absent more

18 information about the nature of the incidents involved, the

19 conduct, and an articulated analysis as to why the hostile work

20 environment claim failed, the value of Sanchez is minimal and is

21 unhelpful in resolving this motion.

22

Here, Soares has provided evidence of numerous harassing and

23 offensive incidents that occurred over her seven-month employment

24 at CPT. In terms of frequency, “[w]hile a hostile work environment

25 claim may be stronger where it is based upon repeated incidents,

26 the pervasiveness of the conduct that must be shown to prevail on

27 a hostile work environment claim varies inversely with the

28 seriousness of the incidents.” Ellison v. Brady, 924 F.2d 872,

53

1 880-81 (9th Cir. 1991). And “[w]ithin the totality of

2 circumstances, there is neither a threshold ‘magic number’ of

3 harassing incidents that gives rise, without more, to liability as

4 a matter of law nor a number of incidents below which a plaintiff

5 fails as a matter of law to state a claim.” Rodgers v. Western-

6 Southern Life Ins Co., 12 F.3d 668, 674 (7th Cir. 1993).

7

CPT suggests that these acts were nothing more than a “handful

8 of minor allegations,” (Def’s Reply at pg. 9), but that is a

9 question for the jury.23 A reasonable jury considering all the

10 evidence could find that the actions and comments of Larry Fuentes

11 were offensive sexual harassment and sufficiently pervasive to be

12 actionable. See Ellison v. Brady, 924 F.2d 872, 880-81 (9th Cir.

13 1991) (“Sexual harassment is a major problem in the workplace.

14 Adopting the victim’s perspective ensures that courts will not

15 sustain ingrained notions of reasonable behavior fashioned by the

16 offenders.”) Construing the evidence in EEOC’s favor, the non-

17 moving party, there is a triable issue as to whether Soares’ work

18 environment was sufficiently hostile to violate Title VII.

19

CPT’s motion on Soares’ hostile work environment claim is

20 DENIED.

21

22

2. Soares’ Retaliation Claim

23

The EEOC claims that CPT retaliated against Somera for

24 complaining about sexual harassment by Mr. Fuentes. CPT counters

25 that the EEOC has not established a prima facie case of retaliation

26

27

23 Displays of offensive materials may contribute to a

hostile environment. Lipsett v. Univ. of Puerto Rico, 864 F.2d

28 887.

54

1 nor proffered evidence demonstrating CPT’s allegedly adverse

2 employment actions were a pretext for unlawful retaliation.

3

To make out a prima facie case of retaliation, an employee

4 must show that (1) he engaged in a protected activity; (2) his

5 employer subjected him to an adverse employment action; and (3) a

6 causal link exists between the protected activity and the adverse

7 action. See Steiner v. Showboat Operating Co., 25 F.3d 1459, 1464

8 (9th Cir. 1994). Causation "may be inferred from circumstantial

9 evidence, such as the employer's knowledge that the plaintiff

10 engaged in protected activities and the proximity in time between

11 the protected action and the allegedly retaliatory employment

12 decision." Yartzoff v. Thomas, 809 F.2d 1371, 1376 (9th Cir.

13 1987); see also Flait v. No. American Watch Corp., 3 Cal. App.4th

14 467, 478, 4 Cal. Rptr. 2d 522 (1992) (reversing judgment for

15 employer on motion for summary adjudication where circumstantial

16 evidence of causal link raised issue of fact).

17

Once plaintiff produces evidence supporting a prima facie

18 case, the burden shifts to the defendant employer to articulate a

19 legitimate, non-retaliatory reason for the adverse employment

20 action. Once the employer articulates such a reason, a plaintiff

21 bears the burden of demonstrating that the reason was merely a

22 pretext for the unlawful retaliatory motive. Stegall v. Citadel

23 Broad. Co., 350 F.3d 1061, 1066 (9th Cir. 2003). A plaintiff can

24 prove pretext with either direct or indirect evidence. If a

25 plaintiff offers direct evidence of discriminatory motive, a

26 triable issue as to the actual motivation of the employer is

27 created even if the evidence is not substantial. When direct

28 evidence is unavailable, however, and the plaintiff proffers only

55

1 circumstantial evidence that the employer's motives were different

2 from its stated motives, specific and substantial evidence of

3 pretext is required to survive summary judgment. See id. (citing

4 Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1221 (9th Cir. 1998)).

5

6

A. Prima Facie Case

7

CPT argues that the EEOC cannot establish a prima facie case

8 for retaliation fails because Somera did not engage in protected

9 activity. CPT also argues that there is no casual nexus between

10 Somera’s alleged complaints and Mr. Drayton’s decision to terminate

11 her.

12

1. Protected Activity

13

As noted above, Soares must demonstrate as part of her prima

14 facie case that she participated in a statutorily protected

15 activity. “An employee has engaged in activity protected by Title

16 VII if she has either (1) ‘opposed any practice made an unlawful

17 employment practice’ by Title VII or (2) ‘made a charge, testified,

18 assisted, or participated in any manner in an investigation,

19 proceeding, or hearing’ under Title VII.” Grimes, 102 F.3d at 140

20 (citing 42 U.S.C. § 2000e-3(a); Long, 88 F.3d at 304). For

21 example, an employee's filing of a discrimination charge with

22 external agencies has been recognized as a “protected activity.”

23 See United States v. New York City Transit Auth., 97 F.3d 672, 677

24 (2d Cir.1996). Likewise, picketing an employer to protest its

25 failure to provide employment opportunities for minorities is a

26 protected activity. See Payne, 654 F.2d at 1137. Similarly,

27 sending letters protesting unspecified “racism” and

28 “discrimination” by an employer also constitutes protected

56

1 activity. See EEOC v. Crown Zellerbach Corp., 720 F.2d 1008,

2 1012-13 (9th Cir.1983); Sias v. City Demonstration Agency, 588 F.2d

3 692, 695-96 (9th Cir.1978). Further, making complaints to an

4 officer of a company about discriminatory practices is a protected

5 activity. See Reed v. A.W. Lawrence & Co., Inc., 95 F.3d 1170,

6 1178 (2nd Cir.1996); accord Robinson v. Pinnacle Brands, Inc., No.

7 95-CV-689, 1997 WL 102478, at *8 (N.D.Tex. Feb.28, 1997); Harker v.

8 Utica College of Syracuse Univ., 885 F.Supp. 378, 385

9 (N.D.N.Y.1995); Arzate v. City of Topeka, 884 F.Supp. 1494, 1503

10 (D.Kan.1995). As the Second Circuit has stated:

11

In addition to protecting the filing of formal

charges of discrimination, § 704(a)'s opposition

12

clause protects as well informal protests of

discriminatory practices, including making

13

complaints to management, writing critical

letters to customers, protesting against

14

discrimination by industry or by society in

general, and expressing support of co-workers who

15

have filed formal charges.

16 Sumner v. United States Postal Serv., 899 F.2d 203, 209 (2nd Cir.
17 1990).
18 Soares claims that she engaged in protected activity in March
19 2003, which led to her eventual dismissal from CPT in April 2003.
20 Specifically, Somera claims that she reported a number of Fuentes’
21 offensive comments to Nurse McClendon and Nurse Baker in March
22 2003. Such comments included complaining about being told by
23 Fuentes to smell a patient’s private parts, something Soares
24 thought was offensive and put her in danger. Soares also asserts
25 that her unsuccessful attempts to get in touch with Mr. Drayton
26 constituted protected activity.
27 Here, Soares’ opposition was directed at sexually explicit
28

57

1 comments made by Fuentes in the presence of a patient. Soares

2 complained to a nurse, Della McClendon, whom she viewed as a

3 supervisor and someone who could potentially discuss the situation

4 with Fuentes. Soares’ deposition testimony demonstrates this

5 point:

6

7

Q. When you first told Della about Mr. Fuentes’

comment, what was her reaction, if any?

8

[...]

9

A. When I told her about this incident. She went

10

to Larry with it and told him that he offended me.

Because I felt like I was actually talking to her

11

as a supervisor. I told her, ‘If he says things

like that to me in front of male patients when I’m

12

going into their rooms at night sometimes by

myself, they’re not going to take me seriously and

13

I could get hurt.’

14

Q. Okay. And so you were talking to Della as a

15

supervisor?

16

A. As – right. I’d never been in the situation

of these things before.

17

18 (Soares Dep. 57:8-57:25.)

19 Soares also complained about Fuentes to another nurse, David
20 Baker, who witnessed the shower incident. The record demonstrates
21 that Soares’ complaints to Nurse Baker were specific and apprised
22 him of Fuentes’ comments and why she believed they were
23 discriminatory and presented safety concerns.
24 CPT does not dispute that Soares complained to Nurse McClendon
25 and Baker; rather, CPT minimizes Soares’ complaints to Nurses
26 McClendon and Baker, arguing that they do not demonstrate that
27 Soares engaged in “protected activity.” In effect, CPT states that
28

58

1 Soares’ complaints to Nurses Baker and McClendon are irrelevant

2 because they were not in her direct chain of supervision.24

3

CPT’s arguments are not controlling. Taking the evidence in

4 a light most favorable to Soares, there remains a genuine issue of

5 material fact as to whether she engaged in protected activity.

6 First, Soares’ complaint to Nurse McClendon is arguably protected

7 activity because McClendon relayed it to Fuentes - her direct

8 supervisor. Per CPT policy, this was the appropriate route to file

9 a sexual harassment complaint and Fuentes was obligated to report

10 it to management.25 Second, Soares’ formal complaint path was

11 compromised: the object of Soares’ complaint, Fuentes, was her

12 direct supervisor and had previously harassed her on CPT property.

13 The record also demonstrates that CPT management was aware of

14 Fuentes’ behavior toward women; nevertheless, Fuentes continued to

15 supervise female employees and was responsible for reporting sexual

16 harassment complaints to CPT management. According to Soares, this

17 led to an erosion of employee trust concerning their complaints

18 about Fuentes and, taking the evidence in her favor, supports her

19 reasons for complaining to supervising nurses.

20

21

24 CPT argues that Soares merely “complained to a co-worker

22 about the shower incident” and “did not report the shower incident to Mr. Drayton or Ms. Kelly.” (Doc. 40 at 11:23-12:2.)

23 25 Fuentes testified in his deposition that “I had said

24 something to Valerie in the morning. And after I said it, I knew

I hadn’t have said it. The following day I apologized to her for 25 saying it.” (Fuentes Dep. 62:8-62:12.) Aware that his comments

26 to Soares were inappropriate, Fuentes - as MHW lead supervisor had an obligation to report the incident to management. CPT’s

27 Sexual Harassment policy states: “Any incidents of harassment

must be immediately reported to a manager or management

28 representative.” (CPT Employee Manual, CPT0315.)

59

1

Further, although nurses and MHW’s treated patients together,

2 nurses were organizationally superior to MHW’s and gave them orders

3 concerning patient care.26 Nurse Baker’s deposition testimony

4 demonstrates why it was reasonable for Soares to complain about

5 Fuentes to the nursing staff, especially a nurse supervisor:

6

Q. Do you know if [Fuentes] was [Soares’] direct

7

supervisor?

8

A. He may have been at [the time of the shower

incident]

9

Q. Okay. And the protocol, according to the policy,

10

was complain first to your immediate supervisor,

and then obviously in this case she cant be

11

complaining to him. Who would be the next person

according to the protocol she should complain to?

12

A. The administrator or program director.

13

Q. Or director of nurses?

14

A. Yes.

15

Q. All right. And were you - did you tell the EEOC

16

investigator in your conversation with her that

you were shift supervisor at the time.

17

A. I was charge nurse.

18

Q. Is that the same thing?

19

A. Yeah. I would be considered a supervisor, yes.

20

[...]

21

Q. And it’s your duty to make those sorts of reports?

22

A. Yes.

23

Q. Okay. Did you consider that comment from Mr.

24

Fuentes violated sexual harassment policy?

25

26 26 Soares stated in her deposition that McClendon was
27 superior to her and, being a nurse, she could give her orders. (Soares Dep. 38:8-38:20.) Soares stated this was the case even
28 though Fuentes was her direct supervisor. (Id.)

60

1

A. Yes.

2 (Baker Dep. 49:4-50:5.)
3

4

There are sufficient facts in the record upon which a jury

5 could find that Soares’ complaints to Nurses McClendon and Baker

6 constituted protected activity. In EEOC v. Crown Zellerbach Corp.,

7 720 F.2d 1008, 1013, the Ninth Circuit stated that it must be

8 possible to discern from the context of the statement that the

9 employee opposes an unlawful employment practice. Soares satisfies

10 this standard. Her comments were specific and apprised Nurses

11 McClendon and Baker of particular practices she viewed as

12 discriminatory. Although Soares did not complain to her direct

13 supervisor - per CPT policy - she did complain to supervisory-level

14 employees with whom she “felt comfortable.”27 Soares complained to

15 two nurses - one a direct charge nurse - about Fuentes’ statements,

16 and the record supports this. Moreover, Nurse McClendon told

17 Fuentes his comments offended Soares and he did not report the

18 incident - a violation of CPT policy. CPT provides no authority

19 supporting the argument that such complaints, under the unique

20 circumstances presented, are not sufficient to create a genuine

21 issue of material fact.

22

It is also reasonable to infer that Soares’ attempts to

23 contact Drayton constituted protected opposition activity. Soares

24 provided evidence reasonably warranting an inference that she

25 complained to Drayton, CPT’s Director, about Fuentes’ sexually

26

27

27 CPT policy stated that employees “must report

[harassment] to their immediate supervisor or the designated

28 management representative with whom they feel comfortable.”

61

1 explicit “shower tirade” and his continued sexual harassment of CPT

2 employees. At the very least, Drayton had knowledge of the shower

3 incident - pursuant to an anonymous Department of Mental Health

4 Complaint - and likely inferred that Soares was the one who

5 complained to the Department of Mental Health.

6

Balancing all applicable factors, the EEOC’s evidence is

7 enough to create a genuine issue of material fact. CPT has not met

8 its Rule 56 burden and demonstrated, as a matter of law, that

9 Soares did not engage in protected activity under Title VII.

10

CPT’s motion for summary adjudication regarding Soares’ claim

11 for retaliation is DENIED.

12

13

2. Causal Connection

14

For the first time in its reply papers, CPT argues that

15 Soares’ does not establish a prima facie case for retaliation

16 because there is no “causal nexus” between CPT decision-makers and

17 Soares’ complaints about Fuentes. In its opening motion, CPT

18 argued that Soares’ did not establish a prima facie case because

19 Soares did not engage in a protected activity. CPT did not argue,

20 as it does in its reply papers, that Soares’ claim fails because

21 the CPT decision-makers did not “have actual knowledge of the

22 protected activity in order for its decisions to be retaliatory.”

23 (Def.’s Rep. 2:3-2:5.)

24

A moving party's attempt to introduce new facts or different

25 legal arguments in reply papers is improper. See Lujan v. National

26 Wildlife Federation, 497 U.S. 871, 894-895, 110 S.Ct. 3177, 3192

27 (1990) (court has discretion to disregard late-filed factual

28 matters); see also Glenn K. Jackson v. Roe, 273 F.3d 1192,

62

1 1201-1202 (9th Cir. 2001) (district court's discretion to consider

2 issue raised for first time in reply brief); Jackson, Inc. v. Roe,

3 273 F.3d 1192, 1202 (9th Cir.2001) (stating a district court “may

4 grant summary judgment on any legal ground the record supports.").

5 The “causal nexus” argument is new to CPT’s reply papers and is

6 disregarded. The argument will not be considered as part of CPT’s

7 motion for summary adjudication.28

8

9

B. Legitimate Business Reason

10

CPT has set forth ample evidence to support its proffered

11 legitimate reason for Soares’ termination: her sleeping during her

12 shift. Failure to perform in accordance with standards set by the

13 employer is sufficient to constitute a legitimate business reason

14 for termination. See Unt v. Aerospace Corp., 765 F.2d 1440, 1446

15 (9th Cir. 1985) (holding that Title VII does not protect employee

16 who violates employer's rules, disobeys orders and disrupts the

17 work environment); Mansur v. Peralta Community College Dist., 216

18 F.3d 1083 (9th Cir. 2000). The record contains direct evidence

19 that Soares slept during her April 9, 2004 shift, a violation of

20 28 To survive summary judgment, Plaintiff "must make some
21 showing sufficient for a reasonable trier of fact to infer that 22 the defendant was aware that the plaintiff had engaged in
protected activity." Raad, 323 F.3d 1185, 1197; see also Dey v. 23 Colt Const. & Dev. Co., 28 F.3d 1446, 1458 (7th Cir. 1994)
(stating, in a Title VII case, that a plaintiff "may rely on 24 circumstantial evidence to establish her employer's awareness of
protected expression" and the plaintiff must "produce evidence 25 that would support an inference that Irsay [a decision-maker] was 26 . . . aware" of the "sexual harassment complaints"). The EEOC
satisfies this burden. When construing the evidence in a light 27 most favorable to Plaintiff, a genuine issue of material fact
remains as to the causal connection between the alleged protected 28 activity and the adverse employment action.

63

1 CPT policy. (Drayton Dep. 43:6-37:17.) The record also

2 demonstrates that Soares knew of the policy prior to April 9, 2004.

3 (Soares Dep. 65:13-65:16.) CPT has met its burden of demonstrating

4 legitimate business reasons for terminating Soares’ employment.

5

6

C. Pretext

7

CPT met its burden of offering legitimate, nondiscriminatory

8 reasons for its actions. Therefore, the burden shifts back to

9 Plaintiff to prove that this reason was merely pretextual.

10 Plaintiff can do so by either showing that the articulated reason

11 is "unworthy of credence" or that a discriminatory motive more

12 likely motivated Defendant. Villiarimo v. Aloha Island Air, Inc.,

13 281 F.3d 1054, 1062 (9th Cir. 2002). A plaintiff may rely on

14 circumstantial evidence to show pretext, but the evidence must be

15 both specific and substantial. Id.

16

The EEOC offers circumstantial evidence to show that CPT’s

17 explanations for Soares’ termination are pretextual. Specifically,

18 the EEOC presents relatively strong evidence based on timing, as

19 Soares’ discharge occurred five weeks after her complaints to

20 nurses regarding the shower incident and a few weeks after her

21 repeated attempts to contact Drayton. The EEOC also demonstrates

22 CPT’s lack of consistency to follow internal policies regarding

23 CPT’s “no sleeping policy” and questions whether the sleeping

24 policy applies to MHW’s. Soares argues that she was not sleeping

25 during her shift and that Steele’s “surprise visit” was meant to

26 create a for-cause dismissal.

27

CPT, however, has offered strong evidence that Plaintiff's

28 termination was based on legitimate, nondiscriminatory factors --

64

1 namely, that Plaintiff was discharged for sleeping during her

2 shift, which occurred after the shower incident and less than 24

3 hours prior to Soares’ dismissal. The EEOC has some evidence that

4 the sleeping policy was not consistently applied. However,

5 although the question is a close one, on balance, the EEOC has

6 pointed to enough evidence of pretext in the form of the timing,

7 circumstances of the discharge, and inconsistent application of

8 internal policies to survive summary judgment.

9

The EEOC’s circumstantial evidence is sufficient to raise a

10 genuine issue of material fact because it demonstrates that an

11 illegitimate reason more likely than not motivated CPT, or was at

12 least a motivating factor in Soares’ dismissal.

13

CPT’s motion for summary adjudication as it relates to Soares’

14 claim for retaliation is DENIED.

15

16 C. Punitive Damages

17

42 U.S.C. § 1981a(b)(1) provides that punitive damages may be

18 recovered "if the complaining party demonstrates that the

19 respondent engaged in a discriminatory practice or discriminatory

20 practices with malice or with reckless indifference to the

21 federally protected rights of an aggrieved individual." The

22 Supreme Court found that the employer's behavior need not have to

23 be "egregious" to meet this standard. Kolstad v. Am. Dental

24 Assoc., 527 U.S. 526, 534-35 (1999). Instead, punitive damages

25 will be awarded in cases of intentional discrimination where an

26 employer discriminates in the face of a perceived risk that its

27 actions will violate federal law. Id. at 534. The terms "malice"

28 and "reckless" focus on the employer's state of mind, that is, its

65

1 knowledge that it may be acting in violation of federal law. Id.

2

There are some instances in which intentional discrimination

3 will not give rise to punitive damage liability. Passantino v.

4 Johnson & Johnson Consumer Products, Inc., 212 F.3d 493, 515 (9th

5 Cir. 2000). First, if the theory of discrimination advanced by the

6 plaintiff is sufficiently novel or poorly recognized, then the

7 employer could believe its action was legal. Id. Second, if the

8 employer believed it had a valid bona fide occupational

9 qualification (BFOQ) defense to its conduct. Id. Third, in some

10 situations, albeit rare, the employer could actually be unaware of

11 Title VII's prohibition against discrimination. Id.

12

In addition to meeting this standard, the plaintiff must also

13 impute liability for punitive damages to the employer. Hemmings v.

14 Tidyman's, Inc., 285 F.3d 1174, 1197 (9th Cir. 2002). This can be

15 done through traditional agency principles, e.g., "that a

16 managerial employee acted within the scope of his or her

17 employment." Id.

18

An affirmative defense to punitive damage liability exists

19 where the defendant shows its good faith efforts to comply with

20 Title VII, "if such efforts were contrary to the actions of its

21 managerial agents." Id. at 1197-98. Not only must the employer

22 show it has an antidiscrimination policy, but that it has

23 implemented the policy in good faith. Passantino v. Johnson &

24 Johnson Consumer Products, Inc., 212 F.3d 493, 517 (9th Cir. 2000).

25 The purpose of Title VII would be "undermined if those policies

26 were not implemented and were allowed instead to serve only as a

27 device to allow employers to escape punitive damages for the

28 discriminatory activities of managerial employees." Id.

66

1

1. Soares’ Punitive Damage Claim

2

CPT submits that even if Fuentes’ conduct is found to be

3 actionable, it is entitled to summary judgment on Soares’ punitive

4 damages claim because “EEOC is unable to establish that CPT ‘almost

5 certainly knew’ of Mr. Fuentes’ alleged misconduct at the time Ms.

6 Soares was terminated for sleeping on the job.” (Doc. 40, 17:22-

7 17:23.) CPT’s assertion is inconsistent with the record.

8

The record indicates that Drayton knew about Fuentes’ comments

9 to Soares during the aforementioned shower incident. Although it

10 was presented as a patient care issue, Drayton knew about Fuentes’

11 comments and interviewed Fuentes and the patient concerning the

12 incident. He did not interview Soares. Drayton testified at his

13 deposition:

14

Q: Your testimony indicated that because you learned

about this episode through the Department of Mental

15

Health, you treated it as a patient violation as

opposed to like a sexual harassment violation. Do you

16

recall that testimony?

17

A: Yes, I do

18

Q: What exactly was entailed in investigating it as a

patient violation?

19

A: I spoke to the patient involved and I asked them

20

what had happened, was he offended by it, did he feel

that he was being treated in a manner outside of the

21

standard of care. And did he want to speak with - did

he want to speak with Larry directly and did he want

22

an apology from Larry.

23

Q: Did he want an apology from Larry?

24

A: No. I do not believe it was that big of a deal.

25

[...]

26

Q: Did you do anything else in connection with

investigating this episode as a patient violation?

27

A: Yes. I made a call to the Department of Mental

28

Health and explained to them what I had found and they

67

1

had told me at the time that they did not feel that

although it was unfortunate that it had happened, that

2

it was handled to their satisfaction and did not rise

to the level of citation.

3

4 (Drayton Dep. 285:1-286:6.)

5 The EEOC argues a material dispute exists because “Drayton did
6 nothing to investigate the matter as a potential sexual harassment
7 policy violation.” (Pl.’s Opp. 30:26-30:28.) In essence, the EEOC
8 argues that CPT was on notice of the harassing event and chose to
9 look the other way, classifying the incident only as a “patient
10 safety issue.” The EEOC argues that this was not the first time
11 CPT looked the other way; that CPT continually disregarded
12 harassment complaints against Fuentes. The EEOC contends that
13 CPT’s conduct creates a genuine issue of material fact as to its
14 claim for punitive damages. This argument has merit.
15 Drayton’s deposition testimony demonstrates that he knew about
16 Fuentes’ sexually-charged comments to Soares; that he investigated
17 the incident as a patient care issue even though it involved
18 explicit sexual language and a repeat perpetrator of sexual
19 harassment - whose actions prompted sexual harassment in-service
20 training in November 2003. The record further indicates that Mr.
21 Omoregie - the Department of Mental Health’s representative -
22 contacted Drayton prior to the shower incident to provide a
23 “chronology” of sexual harassment complaints involving Larry
24 Fuentes. This context is critical to the inquiry:
25

26

A. Mr. Omoregie asked me to give him a chronology of

27

what was going on with Larry because they had

received some complaints about him and he wanted

28

me to make sure that we were doing things to

68

1

safeguard the residents. If the things that he

was being attributed of doing were true, he

2

wanted to know what our global efforts were.

3

Q. Okay. Do you know – so Mr. Omoregie had received

some complaints about Fuentes. Do you know what

4

those complaints were?

5

A. He had gotten several complaints via telephone,

their hot line that some where of a sexual

6

nature, some of them were patient care nature

[...]

7

8 (Drayton Dep. 444:7-444:19.)

9 Drawing the inferences in the EEOC’s favor, Drayton’s
10 explanation regarding the limited scope of his investigation
11 undermines CPT’s motion for summary adjudication and creates an
12 inference that CPT was inconsistent, careless, and reckless
13 concerning sexual harassment at CPT. Although the Department’s
14 jurisdiction is limited to patient and licensing issues, that does
15 not provide CPT with an unrestricted mandate to ignore a number of
16 incidents of sexual harassment, especially when they involve a
17 repeat offender.29 CPT’s conduct comes under additional scrutiny
18 given that it knew about Fuentes’ continued improper interactions
19 with female employees and Mr. Omoregie previously requested
20 Fuentes’ sexual complaint history. In sum, Drayton’s actions are
21 suspect - rather than consistent with regulatory compliance - and
22 create a genuine dispute of material fact as to whether or not
23 CPT’s conduct in this regard was malicious, recklessly indifferent
24 or oppressive by ratifying Fuentes’ continuing harassing conduct.
25

26 29 At the very least, Drayton should have interviewed Soares
27 as a percipient witness to the incident. CPT’s Sexual Harassment Policy states: “Appropriate investigation and disciplinary action
28 will be taken.” (Doc. 41, Exh. B at CPT0315.)

69

1

As explained above under “Pretext,” a rational trier of fact

2 could infer that CPT terminated Soares because she complained that

3 her rights against sexual discrimination were being violated. This

4 is sufficient for malice under Title VII. Ezell v. Edwards

5 Theatres, Inc., 2006 WL 3782698 at *20 (E.D. Cal. 2006). It is

6 true that mere evidence of an intentional violation has been held

7 insufficient, but the showing required beyond the threshold level

8 of intent required for compensatory liability is wilful and

9 egregious conduct, or conduct that displays reckless indifference

10 (and not mere negligence) to the Plaintiff's federal rights such

11 that the defendant almost certainly knew that what he was doing was

12 wrongful and subject to punishment. Ngo v. Reno Hilton Resort

13 Corp., 140 F.3d 1299, 1303-05 (9th Cir.1998), amended 156 F.3d 988,

14 988-89 (9th Cir.1998) (holding that merely negligent calculations

15 with respect to taking leave did not support punitive damages).

16 The evidence in this case is sufficient to raise an issue of fact

17 as to whether or not CPT’s conduct was malicious, recklessly

18 indifferent to known federally protected rights of Soares, and

19 oppressive.

20

CPT’s motion for summary adjudication is DENIED as to Soares’

21 claim for punitive damages.

22

23

2. Somera’s Punitive Damage Claim

24

CPT argues that punitive damages are not available in this

25 case because it made good faith efforts to comply with Title VII by

26 having a policy against sexual harassment, investigating the claims

27 of harassment, disciplining the harasser, and providing in-service

28 sexual harassment training.

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1

The EEOC submits there is substantial evidence creating a

2 genuine issue of material fact. This includes that CPT did not

3 appropriately respond to Somera’s allegations, including her

4 repeated complaints to Sherry Wall and other supervisors and

5 employees. Additionally, CPT’s managers, Wall and McGowan, had

6 knowledge of Fuentes’ serial sexual misconduct and did not respond

7 for eight months. CPT never effectively punished Fuentes for his

8 conduct, seemingly condoning his behavior. Plaintiff asserts other

9 evidence that Drayton omitted any reference to Somera’s sexual

10 harassment complaints when asked to detail episodes of Fuentes’

11 potentially inappropriate behavior.

12

An affirmative defense exists to punitive damage liability

13 when an employer has a bona fide policy against discrimination and

14 did not ignore Plaintiff's complaint. Defendant did have an

15 anti-harassment policy and Somera knew of the policy. But this is

16 not the end of the inquiry. There was testimony that sexual

17 harassment training was illusory. Specifically, according to

18 Somera, Fuentes - the individual whose harassment brought on the

19 in-training - talked on the telephone the entire time and did not

20 pay attention. (Somera Dep. 138:9138:17.) The record also

21 contains testimony that Fuentes actually conducted a portion of the

22 sexual harassment in-training. (Soares Dep. 77:19-77:24.) The

23 employer must show it implemented its policy in good faith. See

24 Passantino v. Johnson & Johnson Consumer Products, Inc., 212 F.3d

25 493, 517 (9th Cir. 2000). It must be shown that CPT made efforts

26 to implement its policy, through education of its employees and

27 active enforcement of its mandate. See Lopez v. Aramark Uniform &

28 Career Apparel, Inc., 426 F. Supp. 2d 914, 964 (N.D. Iowa 2006).

71

1

Even if an employer adduces evidence showing it maintains on

2 paper a strong non–discrimination policy and makes good faith

3 efforts to educate its employees about that policy and Title VII,

4 an employee may still recover punitive damages for sexual

5 harassment by demonstrating the employer failed to adequately

6 address Title VII violations of which it was aware. Cadena v.

7 Pacesetter Corp., 224 F.3d 1203, (10th Cir. 2000).

8

After reviewing the evidence in a light most favorable to

9 Plaintiff, there is sufficient evidence that CPT acted in the face

10 of this awareness by ignoring Somera’s complaints, not disclosing

11 Fuentes’ history of harassment, and giving Fuentes a meaningless

12 warning for his repeated use of sexually-charged language and

13 touching female employees. See Rowe v. Hussmann Corp., 381 F.3d

14 775, 784 (8th Cir. 2004) ("Recklessness and outrageousness may be

15 inferred from evidence of management’s participation in the

16 discriminatory conduct or where an employee’s repeated complaints

17 to supervisors fall on deaf ears.") (internal citations and

18 quotation marks omitted).

19

A jury must decide whether CPT engaged in good faith efforts

20 to comply with Title VII.

21

CPT’s motion for summary adjudication is DENIED as to Soares’

22 claim for punitive damages.

23

24

VI. CONCLUSION.

25 A. Jurisdictional Prerequisites.

26

For the reasons discussed above:

27

1. The EEOC’s motion as to whether it satisfied the conditions

28 precedent to bring suit on behalf of charging party Soares is

72

1 GRANTED.

2

2. The EEOC motion as to whether it satisfied the conditions

3 precedent to bring a hostile work environment claim on behalf of

4 charging party Somera is GRANTED. CPT’s motion for summary

5 adjudication in this regard is DENIED.

6

3. Summary adjudication is GRANTED in favor of CPT regarding

7 the EEOC’s ability to bring a constructive discharge claim on

8 Somera’s behalf. The EEOC’s motion in this regard is DENIED.

9

4. Given the ruling on Somera’s constructive discharge claim,

10 it is unnecessary to decide the motions regarding whether the EEOC

11 satisfied the statutory prerequisite to conciliate. The EEOC’s and

12 CPT’s motions regarding the statutory prerequisite to conciliate

13 are DENIED as MOOT.

14

5. Summary adjudication is GRANTED in favor of the EEOC

15 regarding its ability to bring a hostile work environment claim on

16 behalf of allegedly aggrieved persons. CPT’s motion in this regard

17 is DENIED.

18

19 B. Substantive Claims.

20

For the reasons discussed above:

21

1. CPT’s motion on Soares’ hostile work environment claim is

22 DENIED. Construing the evidence in EEOC’s favor, there is a

23 triable issue as to whether Soares’ work environment was

24 sufficiently hostile to violate Title VII.

25

2. CPT’s motion for summary adjudication on Soares’

26 retaliation claim is DENIED. The EEOC established a prima facie

27 case for retaliation and CPT demonstrated a legitimate business

28 reason for Soares’ termination. However, the EEOC’s evidence is

73

1 sufficient to raise a genuine issue of material fact as it

2 demonstrates that an illegitimate reason more than likely motivated

3 CPT, or was at least a motivating factor in Soares’ dismissal.

4

3. CPT’s motion for summary adjudication as to Soares’

5 punitive damage claim is DENIED. The evidence is sufficient to

6 raise an issue of fact as to whether or not CPT’s conduct was

7 malicious, oppresive, or recklessly indifferent to known federally

8 protected rights of Soares.

9

4. CPT’s motion for summary adjudication as to Somera’s

10 punitive damage claim is DENIED. A jury must decide whether CPT

11 engaged in good faith efforts to comply with Title VII.

12

Plaintiff shall submit a form of order consistent with this

13

memorandum decision within five (5) days of electronic service.

14

IT IS SO ORDERED.

15

Dated: July 31, 2009

/s/ Oliver W. Wanger

16 9i274f

UNITED STATES DISTRICT JUDGE

17

18

19

20

21

22

23

24

25

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 1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT
9

10

FOR THE EASTERN DISTRICT OF CALIFORNIA

11

12 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

13
Plaintiff,

14

v.

15
CALIFORNIA PSYCHIATRIC 16 TRANSITIONS

17

Defendant.

Case No. 1:06-CV-01251-OWW-GSA ORDER RE THE EEOC’S MOTION FOR PARTIAL SUMMARY JUDGMENT ON CONDITIONS PRECEDENT AND CALIFORNIA PSYCHIATRIC TRANSITIONS, INC.’S MOTION FOR SUMMARY ADJUDICATION

18

19

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24

25

26

27

28
C 1:06-CV-01251-OWW-GSA [PROPOSED] ORDER ON THE EEOC AND CPT’S CROSS-MOTIONS
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1

On May 4, 2009, plaintiff U.S. Equal Employment Opportunity Commission

2 (“EEOC”) filed a motion for summary adjudication on whether it satisfied Title VII’s

3 statutory prerequisites to commence litigation on behalf of Valerie Soares (aka Shaw);

4 Mariel Somera, and similarly situated female employees. (Docket No. (“DN”) 37) On

5 May 4, 2009, defendant California Psychiatric Transitions (“CPT”) filed a motion for

6 summary adjudication asserting that (1) the EEOC’s constructive discharge claim for

7 Mariel Somera is barred; (2) there are no triable issues of facts and the EEOC’s sexual

8 harassment claim for Soares fails as a matter of law; (3) there are no triable issues of fact

9 and the EEOC’s retaliation claim for Soares fails as a matter of law; and (4) the EEOC is

10 precluded from seeking punitive damages on either Soares’s or Somera’s behalf. (DN

11 40)

12

Having considered the parties’ briefs, the exhibits submitted therewith and oral

13 argument, the Court issued its memorandum of decision on August 8, 2009

14

• GRANTING the EEOC’s motion for summary adjudication on the issue of the

15

EEOC’s satisfaction of Title VII conditions precedent to bring sexual harassment

16

claims on behalf of Soares, Somera and similarly situated women and the

17

retaliation claim on behalf of Soares;

18

• GRANTING CPT’s motion for summary adjudication on the issue of the EEOC’s

19

failure to satisfy Title VII conditions precedent to bring a constructive discharge

20

claim on behalf of Somera; and

21

• Because genuine issues of fact exist, DENYING the parties’ motions for summary

22

adjudication on all other issues raised in the motions (i.e., the EEOC’s sexual

23

harassment and retaliation claims on behalf of Soares, and punitive damages

24

claims on behalf of Soares and Somera).

25

Accordingly, the following facts are not genuinely at issue and must be treated as

26 established:

27

(1) In April 2004, the EEOC received from Valerie Soares a timely charge of

28 unlawful employment practice in which Soares alleged that she and other women were
CA 1:06-CV-01251-OWW-IJO [PROPOSED] ORDER ON THE EEOC AND CPT’S CROSS-MOTIONS
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1 sexually harassed by Larry Fuentes during her employment, and that she was fired in

2 retaliation for engaging in a protected activity;

3

(2) The EEOC provided timely notice of the Soares charge to Defendant

4 California Psychiatric Transitions, Inc.;

5

(3) The EEOC conducted a investigation into the allegations contained in the

6 Soares charge sufficient to satisfy the Title VII condition precedent requirement;

7

(4) The EEOC determined that reasonable cause exists to believe that California

8 Psychiatric Transitions, Inc. had discriminated against Soares and similarly situated

9 female employees because of their sex, female, and retaliated against Soares for

10 engaging in a protected activity;

11

(5) The EEOC complied with its conciliation obligations by attempting in good

12 faith to settle the matter prior to bringing suit; and therefore,

13

(6) The EEOC has satisfied the Title VII conditions precedent to a suit alleging a

14 hostile environment because of sex on behalf of Soares and similarly situated aggrieved

15 persons, including Somera, and has satisfied the Title VII conditions precedent to a suit

16 alleging retaliation against Soares; however

17 ///

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CA 1:06-CV-01251-OWW-IJO [PROPOSED] ORDER ON THE EEOC AND CPT’S CROSS-MOTIONS
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1

(7) The EEOC has not satisfied the Title VII conditions precedent to a suit

2 alleging that Somera was constructively discharged, and the EEOC is therefore barred

3 from proceeding on that cause of action.

4

5
Respectfully submitted, 6 Dated: August 12, 2009

Approved as to form Dated: August 12, 2009

7
EQUAL EMPLOYMENT 8 OPPORTUNITY COMMISSION
9

HEWITT & TRUSZKOWSKI

10 By:

/s/

11

Dana C. Johnson

By: /s/ (e-signature authorized 8/12/09) Henry Truszkowski

12 Attorney for Plaintiff EEOC
13

Attorney for Defendant California Psychiatric Transitions, Inc.

14
15 IT IS SO ORDERED:

16

17

18

19
Date: August 12, 2009
20
21

_/s/ OLIVER W WANGER_________ Hon. Oliver W. Wanger United States District Court Judge

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CA 1:06-CV-01251-OWW-IJO [PROPOSED] ORDER ON THE EEOC AND CPT’S CROSS-MOTIONS
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 Case 1:06-cv-01251-OWW-GSA Document 107 Filed 10/21/2009 Page 1 of 11

1 WILLIAM R. TAMAYO, SBN 084965 DAVID F. OFFEN-BROWN, SBN 063321
2 DANA C. JOHNSON, SBN 187341 RAYMOND T. CHEUNG, SBN 176086
3 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
4 San Francisco District Office 350 The Embarcadero, Suite 500
5 San Francisco, CA 94105-1260 Telephone: (415) 625-5697
6 Facsimile: (415) 625-5657 dana.johnson@eeoc.gov
7
Attorneys for Plaintiff EEOC
8
HEWITT & TRUSZKOWSKI 9 STEPHEN L. HEWITT, SBN 102729
HENRY C. TRUSZKOWSKI, SBN 169243 10 4640 Lankershim Blvd., Ste. 600
North Hollywood, CA 91602-1818 11 Telephone: (818) 509-0311
Facsimile: (818) 509-0402 12 hctruszkowski@hewittlegal.com
13 Attorneys for Defendant CALIFORNIA PSYCHIATRIC TRANSITIONS, INC.
14

15

UNITED STATES DISTRICT COURT
16

17

FOR THE EASTERN DISTRICT OF CALIFORNIA

18

19 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

20
Plaintiff,

21

v.

Case No. 1:06-CV-01251-OWW-GSA CONSENT DECREE

22
CALIFORNIA PSYCHIATRIC 23 TRANSITIONS

24

Defendant.

25

26

27

28

CA 1:06-CV-01251-OWW-GSA

1

CONSENT DECREE

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Case 1:06-cv-01251-OWW-GSA Document 107 Filed 10/21/2009 Page 2 of 11

1

Plaintiff U.S. Equal Employment Opportunity Commission (“Commission” or “EEOC”)

2 brought this lawsuit under Title VII of the Civil Rights Act of 1964 and Title I of the Civil Rights Act

3 of 1991, to correct alleged unlawful employment practices on the basis of sex harassment and

4 retaliation and to make whole Ms. Valerie Soares, Ms. Mariel Somera, and other similarly situated

5 female employees aggrieved by the alleged unlawful practices. Plaintiff EEOC alleged that defendant

6 California Psychiatric Transitions, Inc. (“CPT”or “the Company”), unlawfully subjected Ms. Soares

7 and Ms. Somera and others to a sexually hostile work environment. Defendant denied all the

8 allegations.

9

In the interest of resolving this matter and as a result of having engaged in comprehensive

10 settlement negotiations, the Commission and Defendant (hereinafter referred to as “the Parties”) have

11 agreed that the above-captioned lawsuit (the “Lawsuit”) should be finally resolved by entry of this

12 Consent Decree. This Consent Decree shall not constitute an adjudication and/or a finding on the

13 merits of the Lawsuit.

14

This Consent Decree resolves all claims arising out of EEOC Charge Nos. 370-2004-01635 and

15 370-2004-01555 and the complaint filed in the Lawsuit, and constitutes a complete resolution of all

16 claims of sex discrimination, sexual harassment, and retaliation under Title VII that were made or

17 could have been made by the Commission in this Lawsuit. This consent decree also resolves all claims

18 for attorneys fees and costs that were made or could have been made by either of the Parties in this

19 Lawsuit. This Consent Decree does not, however, resolve any future charges or charges that may be

20 pending with the EEOC other than the charges and complaints specifically referenced in this paragraph.

21

This Consent Decree comprises the full and exclusive agreement of the Parties with respect to

22 the matters discussed herein. No waiver, modification or amendment of any provision of this Consent

23 Decree shall be effective unless made and approved in writing by all the Parties to this Decree, and any

24 substantive change, modification or amendment of any provision of this Consent Decree shall also

25 require approval by the Court.

26 ///

27 ///

28 ///

CA 1:06-CV-01251-OWW-GSA

2

CONSENT DECREE

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1

The Court has reviewed this Consent Decree in light of the pleadings, the record herein, and

2 now approves this Consent Decree. THEREFORE, IT IS ORDERED, ADJUDGED AND DECREED:

3

GENERAL PROVISIONS

4

1. This Court has jurisdiction over the subject matter and the Parties to this Lawsuit. This

5 Court will retain jurisdiction over this Consent Decree for all purposes until the expiration of

6 Defendants’ obligations as set forth herein.

7

2. This Consent Decree is final and binding upon the Parties, their successors and assigns.

8

3. Each Party shall be responsible for its own costs and attorneys’ fees.

9

GENERAL INJUNCTIVE RELIEF

10

4. Sexual Harassment: Consistent with Section 703 of Title VII, 42 U.S.C. §2000e-2, the

11 Company, and its officers, agents, managers (including supervisory employees), successors and

12 assigns, shall not: (a) discriminate against persons on the basis of sex in the terms and conditions of

13 employment; (b) engage in or being a party to any action, policy or practice that is intended to, or is

14 known to them, to have the effect of harassing or intimidating any employee on the basis of sex; or (c)

15 create, facilitate or permit, to the extent known to them, the existence of a work environment hostile to

16 female employees.

17

5. Retaliation: The Company its officers, agents, managers (including supervisory

18 employees), successors and assigns, shall not engage in, implement or permit any action, policy or

19 practice with the purpose of retaliating against any current or former employee of the Company

20 because he or she has in the past, or during the term of this Consent Decree (a) opposed any practice of

21 harassment or other discriminatory acts on the basis of sex made unlawful under Title VII; (b) filed a

22 Charge of Discrimination alleging any such practice; (c) testified or participated in any manner in any

23 investigation into claims of harassment or other discriminatory acts (including, without limitation, any

24 internal investigation undertaken by the Company), proceeding or hearing in connection with this

25 Lawsuit; (d) was identified as a possible witness in this Lawsuit; (e) asserted any rights under this

26 Consent Decree; or (f) sought and/or received any monetary or non-monetary relief in accordance with

27 this Consent Decree.

28 ///

CA 1:06-CV-01251-OWW-GSA

3

CONSENT DECREE

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Case 1:06-cv-01251-OWW-GSA Document 107 Filed 10/21/2009 Page 4 of 11

1

MONETARY RELIEF

2

6. The Company agrees to pay the total, aggregate sum of $145,000.00 (One Hundred Forty-

3 Five Thousand Dollars and No Cents) (the “Settlement Amount”) as damages for emotional distress, to

4 be allocated in amounts to be determined in the sole discretion of the EEOC, to Valerie Soares, Mariel

5 Somera and other similarly situated women on whose behalf the EEOC prosecuted that above-

6 captioned action (hereinafter “Payee”). All payments of the Settlement Amount allocations shall be

7 characterized as non wage compensatory damages and will be reported on IRS form 1099. No

8 FICA/FUTA or other withholdings shall be made to the Settlement Amount or the allocations thereof.

9 Each Payee will be responsible for paying any federal, state and/or local taxes that may be due on her

10 allocation of the aforementioned Settlement Amount, if any.

11

7. Within 45 days after entry of the Consent Decree, the EEOC shall provide the Company

12 with the Settlement Amount allocation, the addresses to which the Settlement Amount checks shall be

13 mailed, and executed W-9s and executed releases in the form attached here as Exhibit A.

14

8. The Company shall pay the Settlement Amount within 60 days after entry of the

15 Consent Decree. The Company shall issue separate checks for the Payees made in their respective

16 names and in the amounts (which collectively shall not exceed $145,000.00) provided by the EEOC.

17 The Company shall make payment in the form of a business check, cashier’s check, or certified check.

18 The Company shall mail via certified mail to each Payee a check for the Settlement Amount allocation

19 amount provided to the Company by the EEOC. If the Company has not received an executed release

20 and W-9 for any Payee, it may refrain from paying the Settlement Amount allocation to that Payee

21 until it has received the executed release and W-9, but may not delay or defer paying the Settlement

22 Allocation amount to any Payee for whom it has received the executed release and W-9 in accordance

23 herewith.

24

9. At the time that the Company sends the checks to the Payees, it shall provide a copy of

25 each check to Dana C. Johnson, Senior Trial Attorney, EEOC, 350 The Embarcadero, Suite 500, San

26 Francisco, CA 94105.

27 ///

28 ///

CA 1:06-CV-01251-OWW-GSA

4

CONSENT DECREE

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1

SPECIFIC INJUNCTIVE RELIEF

2

10. Zero-Tolerance

3 The Company affirms the following Statement of Zero-Tolerance Policy and Equality Objectives:

4

“The Company is firmly committed to maintaining a zero-tolerance policy concerning

5

discriminatory harassment and retaliation against individuals who report harassment in the

6

company’s workplace; to swiftly and firmly respond to any acts of harassment and retaliation of

7

which the company becomes aware; to imposing appropriate discipline designed to strongly

8

deter future acts of harassment or retaliation; and to actively monitor its workplace in order to

9

ensure tolerance, respect and dignity for all employees.”

10 This paragraph 10 does not create any individual contractual or common law causes of action or other

11 rights that would not otherwise exist under statute.

12

11. EEO and Harassment Policies

13

The Company agrees that to the extent necessary it shall revise its EEO & harassment policies,

14 within thirty (30) days of signing the Consent Decree, such that the policies: (i) include definitions of

15 discriminatory harassment, with specific reference to harassment based on sex; (ii) include examples to

16 supplement the definitions of harassment based on sex; (iii) provide for appropriate discipline and/or

17 corrective action for incidents of discriminatory harassment designed to deter future acts of harassment;

18 (iv) include strong non-retaliation language with examples to supplement the definition of retaliation;

19 (v) provide for appropriate discipline for incidents of retaliation designed to deter future acts of

20 retaliation; (vi) provide that complaints of harassment and/or retaliation will be accepted irrespective of

21 whether they are made verbally or in writing; (vii) provide a reasonable timetable for commencing an

22 investigation after a complaint is made or received and for appropriate remedial action, if warranted, to

23 be taken upon conclusion of an investigation; and (viii) indicate that, promptly upon the conclusion of

24 the investigation of a complaint, the Company will communicate to the complaining party the results of

25 the investigation and the remedial actions taken or proposed, if any. The revised policies will be

26 submitted to the EEOC within 30 days of the signing of this Consent Decree, and shall become

27 effective 15 days later unless the EEOC requires revisions; the EEOC will require only reasonable

28 revisions which must be completed within 60 days of the signing of this Consent Decree.

CA 1:06-CV-01251-OWW-GSA

5

CONSENT DECREE

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Case 1:06-cv-01251-OWW-GSA Document 107 Filed 10/21/2009 Page 6 of 11

1

a. The Company shall effectively disseminate its revised policies and procedures to its

2 employees for review and retention for the duration of employment only as follows:

3

i. Distributing copies of the policies to all current employees within 30 days of its

4

adoption;

5

ii. Giving copies of the policies to and reviewing the policies with all new

6

employees upon the employees’ hire.

7

b. The Company will submit a copy of the revised EEO and harassment policies to EEOC

8 at the same time it submits the report on the completion of training as described below.

9

12. Complaint Procedure

10

The Company shall develop a complaint procedure designed to encourage employees to come

11 forward with complaints about violations of its harassment policy. As part of the policy, the Company

12 shall provide its employees with convenient, confidential and reliable mechanisms for reporting

13 incidents of harassment and retaliation. The Company’s complaint procedure and harassment policy

14 shall notify employees that they can lodge a complaint with their immediate supervisor, or a Company

15 Corporate Officer or designee, and shall provide the name and telephone numbers for such individuals.

16 Contact information for the Company Corporate Officer or designee shall also be continuously posted

17 in a prominent place at the Company’s business location in Delhi, California.

18

a. The Company will submit a copy of the complaint procedures to the EEOC twenty (20)

19 days before the completion of training as required below.

20

b. The Company shall undertake reasonable efforts to maintain complainant and complaint

21 confidentiality in a manner consistent with applicable law and this Consent Decree.

22

13. Posting

23

The terms of this Consent Decree shall be stated in a notice, attached hereto as Exhibit B, which

24 shall be limited to notice of the non-monetary aspects of the settlement, which shall be, and remain,

25 posted in a clearly visible location frequented by employees at the Company’s facility in Delhi,

26 California during the term of this Consent Decree.

27 ///

28 ///

CA 1:06-CV-01251-OWW-GSA

6

CONSENT DECREE

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Case 1:06-cv-01251-OWW-GSA Document 107 Filed 10/21/2009 Page 7 of 11

1

14. Distribution of Anti-Harassment Policy

2

Within sixty (60) days of the entry of this Consent Decree, the Company shall issue to all

3 employees, supervisors and managers at its Delhi location its anti-harassment policy and procedure

4 statement, and each such person shall be asked to sign an acknowledgment that they have received and

5 read the policy. The same acknowledgment shall be required of all newly hired employees at the start

6 of their employment.

7

15. Training of Employees

8

The Company shall provide and require all current and new employees to attend anti-

9 harassment training, exclusive of training given during orientation, at least once every year for a

10 cumulative total of no less than two hours throughout the duration of this Consent Decree. The

11 purpose of said training shall be to give participants an understanding of harassment issues, particularly

12 sexual harassment, including but not limited to what constitutes sexual harassment, sources of legal

13 protection for sexual harassment victims, the employees’ obligation to report sexual harassment, the

14 employer’s obligation to take preventive, investigative and remedial action with respect to harassment

15 complaints, and to review company policies (including discipline policies) and practices related to

16 sexual harassment and retaliation with Company employees.

17

16. Training Logistics

18

The content, persons providing training, method of training and size of training under Paragraph

19 15, above, is subject to approval by the Commission which approval shall not be unreasonably

20 withheld and which shall take into consideration the Company’s operational needs. The person(s)

21 providing the training shall not be person(s) regularly employed as CPT employee(s), but rather shall

22 be professionals whose main business is provision of workplace sexual harassment training. The

23 Company agrees to provide the qualifications of the trainer(s) and a description of each training

24 program to counsel for the Commission no later than twenty (20) days before the training programs are

25 scheduled to be held.

26

17. Acknowledgment of Training Attendance

27

All persons attending mandatory anti-harassment training pursuant to this Consent Decree shall

28 sign an acknowledgment of their attendance at the training, the date thereof, and their position with the

CA 1:06-CV-01251-OWW-GSA

7

CONSENT DECREE

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Case 1:06-cv-01251-OWW-GSA Document 107 Filed 10/21/2009 Page 8 of 11

1 company. The Company shall retain the originals of these acknowledgments and provide the EEOC

2 with a copy thereof each year that the Consent Decree remains in effect.

3

18. Disclosure of Information Regarding Valerie Soares, Mariel Somera and Claimants’

4

Employment

5

a. The Company shall not disclose any information or make references to any charges of

6 discrimination or this lawsuit in responding to employment reference requests for information about

7 Valerie Soares, Mariel Somera, Renee Addison, Yuliana Arzate, Amy Koons, Kathleen Mason, Diana

8 Rodriguez, Stephanie Riveira, Rosemary Vallery, or Sherry Wall.

9

b. The Company agrees to segregate in separate, confidential folders all documents related

10 to each Charging Party or claimant and the Charges of Discrimination and the Commission's lawsuit.

11 These documents shall not be part of her personnel file. Further, the Company agrees not to reference

12 any of the following to any potential employers of the Charging Parties or Claimants: the Charges of

13 Discrimination, the Commission's lawsuit, or this Consent Decree entered in the Commission's lawsuit.

14

c. From the date of entry of this Consent Decree, the Company shall not disclose any

15 information regarding its employment of the employees identified in paragraph 18a, above, except as

16 follows:

17

i. In response to a specific inquiry, the Company may disclose dates of

18

employment, position held and final rate of pay;

19

ii. The Company may report any information as required to state or federal

20

authorities; and

21

iii. The Company may disclose information as required by Court order or subpoena.

22

19. Reports to the Commission

23

a. Training Reports

24

Within thirty (30) days of completion of the training required by this Consent Decree, the

25 Company will send the EEOC verification of its completion of harassment training for its employees.

26

b. Sexual Harassment Complaint Reports

27

For the purposes of Paragraph 19, a complaint of harassment consists of any communication to

28 any CPT supervisor, manager, officer or person designated to receive complaints pursuant to the sexual

CA 1:06-CV-01251-OWW-GSA

8

CONSENT DECREE

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Case 1:06-cv-01251-OWW-GSA Document 107 Filed 10/21/2009 Page 9 of 11

1 harassment policy, from any source, about conduct that might violate the sexual harassment policy. If

2 the complaint is made in writing or reduced to writing, a copy of the writing shall be provided to the

3 EEOC. If a complaint is made orally, a written summary of the oral complaint including what was

4 alleged to have taken place, when, where, by whom, to whom, and the identities of the person(s)

5 making the complaint and any witnesses to the complained-of event(s) shall be provided to the EEOC.

6

Within ninety (90) days after entry of this Consent Decree, the Company will mail to counsel

7 for the Commission a report containing the following information and documentation:

8

i. Copies of all sexual harassment complaints received by the Company after

9

October 16, 2008, and a statement regarding the result of the investigation of

10

each complaint. Additionally, the Company will identify the name, address and

11

telephone number of the complainant and identify the person who received the

12

complaint. A copy of all records, documents and other writings relevant to such

13

complaints and investigations shall be maintained by the Company during the

14

period of the Consent Decree and will be made available to the Commission

15

within ten (10) business days following a written request from the Commission.

16

ii. On the fifth day of January and June of each year during the duration of this

17

Consent Decree, the Company will mail to counsel for the Commission a report

18

containing the above documentation and information.

19

20. Policies Designed to Promote Supervisor Accountability

20

a. Communication of Potential Discipline for Engaging in Harassment

21

The Company agrees that it shall impose appropriate discipline, up to and including

22 termination, suspension without pay or demotion, upon any supervisor or manager who engages in

23 sexual harassment or knowingly permits any such conduct to occur in his or her work area or among

24 employees under his or her supervision, or who retaliates against any person who complains or

25 participates in any investigation or proceeding concerning such conduct. The Company shall

26 communicate this policy to all of its supervisors and managers.

27 ///

28 ///

CA 1:06-CV-01251-OWW-GSA

9

CONSENT DECREE

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Case 1:06-cv-01251-OWW-GSA Document 107 Filed 10/21/2009 Page 10 of 11

1

b. Communication of Duty to Actively Monitor Worksite.

2

The Company agrees that it shall continue to advise all managers and supervisors of their duty

3 to actively monitor their work areas to ensure employee compliance with the company’s anti-

4 harassment policy, and to report any incidents and/or complaints of harassment and/or retaliation of

5 which they become aware to the individuals charged with handling such complaints.

6

RETENTION OF JURISDICTION AND EXPIRATION OF CONSENT DECREE

7

21. This Consent Decree shall terminate three (3) years from the date of entry by the Court,

8 unless the Commission petitions this Court for an extension of the Consent Decree because of

9 noncompliance by the Company. If the Commission determines that the Company has not complied

10 with the Consent Decree, the Commission will provide written notification of the alleged breach to the

11 Company with copy to Henry C. Truszkowski, Esq., Hewitt & Truszkowski, 4640 Lankershim

12 Boulevard, Suite 600, North Hollywood, California 91602, and will not petition the Court for

13 enforcement sooner than thirty (30) days after providing written notification. The thirty-day period

14 following written notice shall be used by the parties for good faith efforts to resolve the issue. If the

15 Commission petitions the Court and the Court finds the Company to be in substantial violation of the

16 terms of the Consent Decree, the Court may extend this Consent Decree.

17

22. Except as provided in the preceding paragraph 21, three (3) years after the entry of this

18 Consent Decree, this lawsuit will be dismissed with prejudice, provided that the Company has

19 complied substantially with the terms of this Consent Decree. The Company will be deemed to have

20 complied substantially if the Court has not made any findings or orders during the term of this Consent

21 Decree that the Company has failed to comply with any of the terms of this Consent Decree. This

22 Consent Decree will automatically expire without further Court Order.

23

24

IT IS SO ORDERED:

25 Date:_October 19, 2009
26
27

__/s/ OLIVER W. WANGER________ Hon. Oliver W. Wanger

28

CA 1:06-CV-01251-OWW-GSA

10

CONSENT DECREE

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Case 1:06-cv-01251-OWW-GSA Document 107 Filed 10/21/2009 Page 11 of 11

1 On Behalf of Plaintiff Commission 2
Dated: October 15, 2009 3 4
_/S/ (as authorized on 10/15/09)_ 5 William R. Tamayo
Regional Attorney 6 7
__/S/_________________________ 8 Dana C. Johnson
Senior Trial Attorney 9 10 Attorneys for the EEOC 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
CA 1:06-CV-01251-OWW-GSA
CONSENT DECREE

On Behalf of Defendant: Dated: October 16, 2009 _/S/ (as authorized on 10/15/09)_________ Henry Truszkowski HEWITT & TRUSZKOWSKI Attorney for California Psychiatric Transitions
11

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Case 1:06-cv-01251-OWW-GSA Document 107-2 Filed 10/21/2009 Page 1 of 2
EXHIBIT A
EXHIBIT A
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Case 1:06-cv-01251-OWW-GSA Document 107-2 Filed 10/21/2009 Page 2 of 2
TITLE VII RELEASE
In consideration for $__,___.00 ( ___________ dollars and no cents) paid to me by California Psychiatric Transitions, Inc. for non-pecuniary emotional distress damages, in connection with the resolution of EEOC v. California Psychiatric Transitions, Inc., Case No. 1:06-cv-01251-OWW-GSA, I fully and forever release, discharge and waive my right to recover for any claims of hostile environment because of sex (or retaliation) arising under Title VII that I had against California Psychiatric Transitions, Inc., its successors and assigns, including its present and former directors, officers, employees and agents, prior to the date of this release and that were included in the claims alleged in EEOC’s complaint in EEOC v. California Psychiatric Transitions, Inc.
I agree that I will be solely and individually responsible for paying any and all taxes which may be due and owing, if any, as a result of the settlement described above. I acknowledge that I have not relied on any representations made by California Psychiatric Transitions, Inc., or the EEOC relating in any way to the tax treatment of the payments pursuant to this agreement. I have read this Release and I execute it voluntarily, without coercion or threat of reprisal.

Date: __________

Signature: ________________________ NAME

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Case 1:06-cv-01251-OWW-GSA Document 107-3 Filed 10/21/2009 Page 1 of 2 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION San Francisco District Office
350 The Embarcadero, Suite 500 San Francisco, CA 94105 (415) 625-5602 TTY (415) 625-5610 FAX (415) 625-5657 Toll Free (866) 408-8075
EXHIBIT B
EXHIBIT B
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Case 1:06-cv-01251-OWW-GSA Document 107-3 Filed 10/21/2009 Page 2 of 2

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION San Francisco District Office
350 The Embarcadero, Suite 500 San Francisco, CA 94105
(415) 625-5602 TTY (415) 625-5610 FAX (415) 625-5657
Toll Free (866) 408-8075
NOTICE OF CONSENT DECREE

The U.S. Equal Employment Opportunity Commission ("EEOC") filed a lawsuit in the United States District Court for the Eastern District of California entitled EEOC v. California Psychiatric Transitions, Inc., Case Number 1:06-cv-01251-OWW-GSA, alleging sexual harassment and retaliation. CPT denied any wrongdoing or liability. Pursuant to a Consent Decree which resolved this lawsuit, Judge Oliver W. Wanger of the U.S. District Court has ordered that this notice be posted until October 2012.

Title VII makes it unlawful for any employer with 15 or more employees to discriminate against any employee or applicant for employment because of sex. As part of its prohibition against sex discrimination, Title VII forbids an employer from subjecting its employees to sexual or gender harassment. Title VII also prohibits employers from retaliating against anyone who complains of discriminatory practices covered by Title VII, or who participates in the investigation of a complaint or the investigation of a charge of discrimination.

CPT affirms the following Statement of Zero-Tolerance Policy and Equality Objectives:

The Company is firmly committed to maintaining a zero-tolerance policy concerning discriminatory harassment and retaliation against individuals who report harassment in the company's workplace; to swiftly and firmly respond to any acts of harassment and retaliation of which the company becomes aware; to imposing appropriate discipline designed to strongly deter future acts of harassment or retaliation; and to actively monitor its workplace in order to ensure tolerance, respect and dignity for all employees.

Any CPT employee who feels that he or she has been harassed or retaliation against or has any similar work-related problem should bring it immediately to the attention of his or her immediate supervisor or Art Tharpe at (800) - . Pursuant to the requirements of the Consent Decree, CPT will report to the EEOC any harassment complaints that it receives through October 2012. Regardless of whether you complain internally to CPT, you have a right to report allegations of employment discrimination in the workplace to the EEOC which may be contacted at the address listed on the letterhead, above. In compliance with federal law, no official at CPT will retaliate against an employee who contacts the EEOC or its state counterpart, the California Department of Fair Employment and Housing.

Dated:________________

______________________________ John Hackett, M.D.

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 Case: 1:06-cv-01251-OWW-GSA As of: 05/18/2014 10:41 PM PDT 1 of 10
CIVIL,CLOSED
U.S. District Court Eastern District of California − Live System (Fresno) CIVIL DOCKET FOR CASE #: 1:06−cv−01251−OWW−GSA

Equal Employment Opportunity Commission v. California Psychiatric Transitions, Inc. Assigned to: Senior Judge Oliver W. Wanger Referred to: Magistrate Judge Gary S. Austin Cause: 28:451 Employment Discrimination
Plaintiff

Date Filed: 09/13/2006 Date Terminated: 04/01/2010 Jury Demand: Both Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Plaintiff

Equal Employment Opportunity Commission

represented by Dana C. Johnson US Equal Employment Opportunity Commission 255 East Temple Street Fourth Floor Los Angeles, CA 90012 (415) 625−5697 Fax: (415) 625−5657 Email: pat.tickler@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Evangelina Patricia Hernandez U.S. Equal Employment Opportunity Commission 350 The Embarcadero Ste 500 San Francisco, CA 94105 (415) 625−5622 Fax: (415) 625−5657 Email: Evangelina.Hernandez@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Raymond T. Cheung , GOVT United States Equal Employment Opportunity Commission Phillip Burton Federal Building, 5 West 450 Golden Gate Avenue, POB 36025 San Francisco, CA 94102 (415) 522−3157 Fax: (415) 522−3425 Email: raymond.cheung@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant California Psychiatric Transitions, Inc.

represented by Henry Charles Truszkowski Hewitt &Truszkowski 4640 Lankershim Boulevard Suite 600 North Hollywood, CA 91602 818509−0311 Fax: 818509−0402 Email: hctruszkowski@hewittlegal.com ATTORNEY TO BE NOTICED

Case: 1:06-cv-01251-OWW-GSA As of: 05/18/2014 10:41 PM PDT 2 of 10

Date Filed 09/13/2006 09/13/2006 09/13/2006 09/13/2006 11/21/2006 12/11/2006 01/23/2007 01/24/2007
01/30/2007
02/02/2007
02/27/2007 02/28/2007
03/08/2007

# Docket Text
1 COMPLAINT against California Psychiatric Transitions, Inc. by Equal Employment Opportunity Commission. Attorney Hernandez, Evangelina Patricia added.(Hernandez, Evangelina) (Entered: 09/13/2006)
2 CIVIL COVER SHEET by Equal Employment Opportunity Commission (Hernandez, Evangelina) (Entered: 09/13/2006)
3 SUMMONS ISSUED as to *California Psychiatric Transitions, Inc.* with answer to complaint due within *20* days. Attorney *Evangelina Patricia Hernandez* *U.S. Equal Employment Opportunity Commission* *350 The Embarcadero, Sutie 500* *San Francisco, CA 94105*. (Lundstrom, T) (Entered: 09/13/2006)
4 CIVIL NEW CASE DOCUMENTS ISSUED; Initial Scheduling Conference set for 1/30/2007 at 08:45 AM in Courtroom 3 (OWW) before Judge Oliver W. Wanger. (Attachments: # 1 Magistrate Standing Order # 2 Consent Forms) (Lundstrom, T) (Entered: 09/13/2006)
5 STIPULATION FOR EXTENSION OF TIME FOR FILING RESPONSIVE PLEADING by California Psychiatric Transitions, Inc.. Attorney Truszkowski, Henry Charles added. (Truszkowski, Henry) (Entered: 11/21/2006)
6 ANSWER to COMPLAINT with Jury Demand by California Psychiatric Transitions, Inc..(Truszkowski, Henry) (Entered: 12/11/2006)
7 JOINT SCHEDULING REPORT by Equal Employment Opportunity Commission. (Hernandez, Evangelina) (Entered: 01/23/2007)
8 TEXT MESSAGE ONLY: CLERK'S NOTICE addressed to Attorneys Evangelina Hernandez and Henry Truszkowski in re Joint Case Management Conference Statement and Proposed Order, document 7 − The aforementioned document references a "proposed order." The document should be filed with the event Proposed Order or Stipulation and Proposed Order. Additionally, Local Rule 5−137(b) requires that you email the proposed order in word processing format to the appropriateJudge. Please refer to "E−Mail Addresses for Proposed Orders" on our website (please disregard if you have emailed your document to the judge). (Rooney, M) (Entered: 01/24/2007)
9 MINUTES (Text Only) for proceedings held before Judge Oliver W. Wanger : SCHEDULING CONFERENCE held on 1/30/2007. Court to issue scheduling order. Plaintiffs Counsel E. Hernandez present. Defendants Counsel H. Truszkowski present. Court Reporter/CD Number: None. (Lucas, G) (Entered: 01/31/2007)
10 SCHEDULING CONFERENCE ORDER: Discovery due by 4/1/2008. Non−Dispositive Motions due by 4/15/2008. Dispositive Motion due by 4/30/2008. Settlement Conference set for 5/7/2008 at 09:00 AM in Courtroom 8 (LJO) before Magistrate Judge Lawrence J. O'Neill. Pretrial Conference set for 7/14/2008 at 11:00 AM in Courtroom 3 (OWW) before Judge Oliver W. Wanger. Jury Trial set for 8/28/2008 at 09:00 AM in Courtroom 3 (OWW) before Judge Oliver W. Wanger. signed by Judge Oliver W. Wanger on 1/31/07. (Kusamura, W) (Entered: 02/02/2007)
11 NOTICE OF TEMPORARY ASSIGNMENT notifying parties that due to the elevation of Magistrate Judge Lawrence J. O'Neill, this action is temporarily reassigned to Magistrate Judge Theresa A. Goldner. (Gil−Garcia, A) (Entered: 02/27/2007)
12 MINUTE ORDER (Text Only) as approved by Magistrate Judge Goldner: the SETTLEMENT CONFERENCE on 5/7/2008 before Judge O'Neill is VACATED. Parties are to contact Magistrate Judge Goldner's Courtroom Deputy Clerk Alan Leon−Guerrero at (661) 326−6620 for a new Settlement Conference date.(Leon Guerrero, A) (Entered: 02/28/2007)
13 MINUTE ORDER (Text Only) re 12 . A Settlement Conference in this case has been set for 8/2/2007 at 10:30 AM in Courtroom 8 (TAG) before Magistrate Judge Theresa A. Goldner. (Leon Guerrero, A) (Entered: 03/08/2007)

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10/12/2007 12/18/2007 12/19/2007 01/08/2008 01/10/2008 01/11/2008 01/21/2008 02/15/2008 02/22/2008
02/22/2008 02/26/2008 07/30/2008

14 ORDER by Chief Judge Garland E. Burrell, Jr.: This action is REASSIGNED to Magistrate Judge Gary S. Austin, and the new case number is 1:06−cv−01251 OWW GSA. (Esteves, C) (Entered: 10/12/2007)
15 MOTION to VACATE by Equal Employment Opportunity Commission.Motion Hearing set for 1/23/2009 at 09:00 AM in Courtroom 7 before Judge Oliver W. Wanger. (Attachments: # 1 Declaration Evangelina Hernandez# 2 Proposed Order)(Hernandez, Evangelina) (Entered: 12/18/2007)
16 MINUTE ORDER: ***TEXT ONLY ENTRY*** The docket indicates that you docketed a proposed order, 15 , however you failed to also send it toJudge Wangers order box so it could actually be signed. Please submit the document in Word or WordPerfect format to owworders@caed.uscourts.gov (Timken, A) (Entered: 12/19/2007)
17 NOTICE by Equal Employment Opportunity Commission re 15 MOTION to VACATE. OF HEARING ON MOTION FOR JAN. 28, 2008 (Hernandez, Evangelina) (Entered: 01/08/2008)
18 SUBSTITUTION of ATTORNEY − PROPOSED, submitted by Equal Employment Opportunity Commission. (Hernandez, Evangelina) (Entered: 01/10/2008)
19 MINUTE ORDER: ***TEXT ONLY ENTRY*** The hearing re 17 does not comply with the local rules. Please re−set this motion pursuant to Local Rule 78−230, or file a stipulation and proposed order with an agreed upon date for this motion to be heard. The hearing date of 1/28/2008 has been vacated. (Timken, A) (Entered: 01/11/2008)
20 MOTION to VACATE Scheduling Order and Reset Dates to Later Date by Equal Employment Opportunity Commission. Motion Hearing set for 2/25/2008 at 10:00 AM in Courtroom 3 (OWW) before Judge Oliver W. Wanger. (Attachments: # 1 Declaration Evangelina Hernandez, # 2 Proposed Order)(Hernandez, Evangelina) (Entered: 01/21/2008)
21 STATEMENT of NON−OPPOSITION to MOTION. to Vacate the Current Scheduling Order and Reset Deadlines to a Later Date (Truszkowski, Henry) (Entered: 02/15/2008)
22 ORDER re Plaintiff EEOC's Motion and Application to Vacate the Current Scheduling Order and Reset Deadlines to a Later Date. Non−Dispositive Motions curretnly due 4/15/2008 are now due by 10/15/2008. Non Dispositive Motion Hearing has been re−set to 11/21/2008 at 09:00 AM in Courtroom 10 (GSA) before Magistrate Judge Gary S. Austin. Dispositive Motions currently due 4/30/2008 are now due by 10/30/2008. Dispositive Motion Hearing currently set for 6/2/2008 has been re−set to 12/1/2008 at 10:00 AM in Courtroom 3 (OWW) before Judge Oliver W. Wanger. Settlement Conference currently set for 5/7/2008 has been re−set to 11/12/2008 at 09:00 AM in Courtroom 10 (GSA) before Magistrate Judge Gary S. Austin. Pretrial Conference currently set for 7/14/2008 has been re−set for 1/5/2009 at 11:00 AM in Courtroom 3 (OWW) before Judge Oliver W. Wanger. Jury Trial currently set for 8/28/2008 has been re−set to 2/18/2009 at 09:00 AM in Courtroom 3 (OWW) before Judge Oliver W. Wanger. signed by Judge Oliver W. Wanger on 2/22/2008. (Timken, A) (Entered: 02/22/2008)
23 MINUTE ORDER: ***TEXT ONLY ENTRY*** As a statement of non opposition 21 was filed regarding the motion to vacate the currently schedule 20 , and the Court has signed the order, the hearing re the motion to vacate currently set for 2/25/2008 has been vacated. (Timken, A) (Entered: 02/22/2008)
24 MINUTE ORDER (TEXT ONLY ENTRY): Settlement Conference currently set for 11/12/2008 WILL BE HEARD AT 10:30 AM (instead of 9:00 a.m. − TIME CHANGE ONLY) in Courtroom 10 (GSA) before Magistrate Judge Gary S. Austin. (Vasquez, J) (Entered: 02/26/2008)
25 STIPULATION and PROPOSED ORDER Stipulation by California Psychiatric Transitions, Inc.. (Attachments: # 1 Proposed Order)(Truszkowski, Henry) (Entered: 07/30/2008)

Case: 1:06-cv-01251-OWW-GSA As of: 05/18/2014 10:41 PM PDT 4 of 10

09/02/2008 09/22/2008 09/22/2008 10/07/2008 10/07/2008 10/09/2008
10/09/2008 11/19/2008 12/02/2008 12/03/2008 12/09/2008
02/13/2009

26 NOTICE OF ADDITION OF COUNSEL FOR PLAINTIFF EEOC by Equal Employment Opportunity Commission. Attorney Johnson, Dana C. added. (Johnson, Dana) (Entered: 09/02/2008)
27 ORDER ON STIPULATION To Modify And Reset Certain Scheduling Order Dates, Trial Date: 8/26/08, signed by Judge Oliver W. Wanger on 9/18/2008. (Expert Disclosure: 9/15/2008, Non−Expert Discovery: 11/1/2008, Supplemental Expert Disclosure: 10/15/2008) (Scrivner, E) (Entered: 09/22/2008)
SERVICE BY MAIL: 27 Stipulation and Order, Equal Employment Opportunity Commission. (Scrivner, E) (Entered: 09/22/2008)
28 NOTICE of RELATED CASE 1:08−cv−1478 by Equal Employment Opportunity Commission. (Johnson, Dana) (Entered: 10/07/2008)
29 STIPULATION and PROPOSED ORDER by Equal Employment Opportunity Commission. (Attachments: # 1 Declaration of Dana C. Johnson in Support of the Stipulation to Modify and Reset Certain Scheduling Order Dates)(Johnson, Dana) (Entered: 10/07/2008)
30 STIPULATION and ORDER to modify and reset certain Scheduling Dates signed by Judge Oliver W. Wanger on 10/8/2008. Supplemental Designation of Expert Witnesses due by 10/30/2008. Discovery due by 12/12/2008. Non−Dispositive Motions due by 12/29/2008; In Court Hearing set for 2/6/2009 at 09:00 AM in Courtroom 10 (GSA) before Magistrate Judge Gary S. Austin. Dispositive Motion due by 1/13/2009; In Court Hearing set for 2/23/2009 at 10:00 AM in Courtroom 3 (OWW) before Judge Oliver W. Wanger. Settlement Conference set for 12/3/2008 at 09:00 AM in Courtroom 10 (GSA) before Magistrate Judge Gary S. Austin. Pretrial Conference set for 3/23/2009 at 11:00 AM in Courtroom 3(OWW) before Judge Oliver W. Wanger. Jury Trial set for 4/28/2009 at 09:00 AM in Courtroom 3 (OWW) before Judge Oliver W. Wanger.(Lundstrom, T) (Entered: 10/09/2008)
SERVICE BY MAIL: 30 Stipulation and Order served on Equal Employment Opportunity Commission. (Lundstrom, T) (Entered: 10/09/2008)
31 MINUTE ORDER (TEXT ONLY): The Settlement Conference currently set for 12/3/2008 at 9:00 AM HAS BEEN CONTINUED to 12/3/2008 at 10:30 AM in Courtroom 10 (GSA) before Magistrate Judge Gary S. Austin. ***Time change ONLY.*** (Esteves, C) (Entered: 11/19/2008)
32 STIPULATION and PROPOSED ORDER for Modifying and Resetting Certain Scheduling Order Dates by Equal Employment Opportunity Commission. (Attachments: # 1 Declaration of Dana C. Johnson in Support of the Stipulation to Modify and Reset Certain Scheduling Order Dates)(Johnson, Dana) (Entered: 12/02/2008)
33 MINUTES (Text Only) for proceedings held before Magistrate Judge Gary S. Austin: SETTLEMENT CONFERENCE on 12/3/2008 − Case DID NOT settle. Plaintiffs Counsel Dana Johnson and William Tamayo present. Defendants Counsel Henry Truszkowski and Stephen Hewitt present. (Esteves, C) (Entered: 12/04/2008)
34 STIPULATION and ORDER to Modify and Reset Certain Scheduling Order Dates signed by Judge Oliver W. Wanger on 12/05/2008. Non−Expert Discovery Deadline due by 2/27/2009; Supplemental Expert Disclousre due by 3/13/2009; Expert Depositions due by 3/27/2009; Non−Dispositive Motions due by 3/20/2009; Dispositive Motion due by 5/4/2009; Hearing on Dispositive Motions set for 6/1/2009 at 10:00 AM in Courtroom 3 before Judge Oliver W. Wanger; Jury Trial set for 8/4/2009 at 09:00 AM in Courtroom 3 (OWW) before Judge Oliver W. Wanger; Hearing on Non−Dispositive Motions set for 4/17/2009 at 09:00 AM in Courtroom 10 (GSA) before Magistrate Judge Gary S. Austin; Pretrial Conference set for 6/29/2009 at 11:00 AM in Courtroom 3 (OWW) before Judge Oliver W. Wanger. (Flores, E) (Entered: 12/09/2008)
35 STIPULATION and PROPOSED ORDER for Extension of Deadlines by Equal Employment Opportunity Commission. (Attachments: # 1 [Proposed] Order, # 2 Declaration of Dana C. Johnson)(Johnson, Dana) (Entered: 02/13/2009)

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02/18/2009
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36 ORDER ON STIPULATION TO MODIFY AND RESET CERTAIN SCHEDULING ORDER DATES, signed by Judge Oliver W. Wanger on 2/13/2009. (Deadline for expert depositions: 4/17/2009, Supplemental Expert Disclosure: 4/3/2009, Non−Expert Discovery Deadline: 4/3/2009, Non−Dispositive Motions Filing: 5/4/2009, Hearing on Non−Dispositive Motions: 5/29/2009 at 09:00 AM in Courtroom 10 (GSA) before Magistrate Judge Gary S. Austin) (Scrivner, E) (Entered: 02/18/2009)
SERVICE BY MAIL: 36 Stipulation and Order, served on Equal Employment Opportunity Commission. (Scrivner, E) (Entered: 02/18/2009)
37 MOTION for SUMMARY JUDGMENT by Equal Employment Opportunity Commission. (Attachments: # 1 Declaration of the EEOC Custodian of Records, # 2 Exhibit 1−9, # 3 Statement of Undisputed Facts, # 4 Stip to File Under Seal)(Johnson, Dana) (Entered: 05/04/2009)
38 MOTION for DISCOVERY by Equal Employment Opportunity Commission. Motion Hearing set for 5/29/2009 at 09:30 AM in Courtroom 10 (GSA) before Magistrate Judge Gary S. Austin. (Johnson, Dana) (Entered: 05/04/2009)
39 STATEMENT of Undisputed Facts (Amended) re EEOC Motion for Partial Summary Judgment on Conditions Precedent by Plaintiff Equal Employment Opportunity Commission re 37 MOTION for SUMMARY JUDGMENT. (Attachments: # 1 Exhibit 10, # 2 Declaration of Dana C. Johnson In Support of the EEOC's Motion for Partial Summary Judgment on Conditions Precedent)(Johnson, Dana) (Entered: 05/04/2009)
40 MOTION for SUMMARY JUDGMENT by California Psychiatric Transitions, Inc.. Motion Hearing set for 6/1/2009 at 10:00 AM in Courtroom 3 (OWW) before Judge Oliver W. Wanger. (Truszkowski, Henry) (Entered: 05/04/2009)
41 DECLARATION of James T. Drayton in Support of 40 MOTION for SUMMARY JUDGMENT. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Truszkowski, Henry) (Entered: 05/04/2009)
42 DECLARATION of Henry C. Truszkowski in Support of 40 MOTION for SUMMARY JUDGMENT. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I)(Truszkowski, Henry) (Entered: 05/04/2009)
43 STATEMENT by Defendant California Psychiatric Transitions, Inc. re 40 MOTION for SUMMARY JUDGMENT. (Truszkowski, Henry) (Entered: 05/04/2009)
44 MINUTE ORDER: (TEXT ENTRY ONLY) As Judge Wanger only allows six motions to be set on his civil calendar at a given time, and the civil calendar for 6/1/2009 is full, Defendant's Motion for Summary Judgment, document 40 , currently noticed to be heard on that date, has been CONTINUED to 7/20/2009 at 10:00 AM in Courtroom 3 (OWW) before Judge Oliver W. Wanger, to be heard with plaintiff's motion re same. ALSO, both counsel are reminded of Local Rule 5−133(f) which requires that when any document which has been electronically filed exceeds 25 pages, counsel must submit a courtesy copy to chambers which is properly tabbed and fastened. (Rooney, M) (Entered: 05/05/2009)
45 MINUTE ORDER: (TEXT ENTRY ONLY) In connection with the Minute Order of yesterday, docket entry 44 , moving the summary judgment motions to 7/20/2009 − PLEASE DISREGARD/CLERICAL ERROR − both parties' motions will be heard on 6/1/2009 at 10:00 AM in Courtroom 3 (OWW) before Judge Oliver W. Wanger. (Rooney, M) (Entered: 05/06/2009)
46 MINUTE ORDER: (TEXT ENTRY ONLY) To allow the Court to properly prepare for oral argument and, in the interest of judicial economy, the cross−motions for summary judgment originally set for 6/1/2009 and 7/20/2009, documents 37 40 , currently set for 6/1/2009, are again moved and will now be set for hearing on 6/29/2009 at 10:00 AM in Courtroom 3 (OWW) before Judge Oliver W. Wanger. (Rooney, M) (Entered: 05/06/2009)

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SERVICE BY MAIL: 46 44 45 Minute Order served on Equal Employment Opportunity Commission. (Rooney, M) (Entered: 05/06/2009)
47 MINUTE ORDER: (TEXT ENTRY ONLY) As the motions for summary judgment have been set for 6/29/2009, the pretrial conference currently set for the same day, has been CONTINUED to 7/6/2009 at 11:00 AM in Courtroom 3 (OWW) before Judge Oliver W. Wanger. (Rooney, M) (Entered: 05/06/2009)
SERVICE BY MAIL: 47 Minute Order served on Equal Employment Opportunity Commission. (Rooney, M) (Entered: 05/06/2009)
48 STIPULATION and PROPOSED ORDER for resetting Pre−Trial Conference and Trial Dates by Equal Employment Opportunity Commission. (Johnson, Dana) (Entered: 05/08/2009)
49 STIPULATION and ORDER GRANTING the continuance of the pretrial and trial dates as follows: Jury Trial currently set for 8/4/2009 is CONTINUED to 10/20/2009 at 09:00 AM in Courtroom 3 (OWW) before Judge Oliver W. Wanger; Pretrial Conference currently set for 7/6/2009 is CONTINUED to 8/31/2009 at 11:00 AM in Courtroom 3 (OWW) before Judge Oliver W. Wanger; order signed by Judge Oliver W. Wanger on 5/11/2009. (Rooney, M) (Entered: 05/13/2009)
SERVICE BY MAIL: 49 Stipulation and Order served on Equal Employment Opportunity Commission. (Rooney, M) (Entered: 05/13/2009)
50 STIPULATION To Continue Hearing on Discovery Disagreements; Declaration of Henry C. Truszkowski by California Psychiatric Transitions, Inc.. (Truszkowski, Henry) (Entered: 05/21/2009)
51 ORDER on Stipulation to Continue Hearing on Discovery Disagreements signed by Magistrate Judge Gary S. Austin on 5/22/2009. Motion Hearing CONTINUED TO 6/5/2009 at 09:30 AM in Courtroom 10 (GSA) before Magistrate Judge Gary S. Austin. (Esteves, C) (Entered: 05/22/2009)
52 MOTION for DISCOVERY Orders re Defendant's Financial Condition, Depositions of EEOC Investigator and 30(b)(6) Designee, and Claimant's Medical Records by Equal Employment Opportunity Commission. Motion Hearing set for 6/5/2009 at 09:00 AM before Magistrate Judge Gary S. Austin. (Attachments: # 1 Declaration of Dana Johnson for the Plaintiff EEOC, # 2 Declaration of Evangelina Hernandez in support of Plaintiff EEOC, # 3 Declaration of Malinda Tuazon in support of Plaintiff EEOC, # 4 Exhibit A of EEOC, # 5 Exhibit B of EEOC, # 6 Exhibit C of EEOC, # 7 Exhibit D of EEOC, # 8 Declaration of Henry Truszkowski in support of Defendant California Psychiatric Transitions, # 9 Exhibit A of Defendant CPT, # 10 Exhibit B of Defendant CPT, # 11 Exhibit C of Defendant CPT, # 12 Exhibit D of Defendant CPT, # 13 Exhibit E of Defendant CPT, # 14 Exhibit F of Defendant CPT, # 15 Exhibit G of Defendant CPT, # 16 Exhibit H of Defendant CPT, # 17 Exhibit I of Defendant CPT)(Johnson, Dana) (Entered: 06/02/2009)
53 MINUTES (Text Only) for proceedings held before Magistrate Judge Gary S. Austin: MOTION HEARING HELD and ARGUED on 6/5/2009 re Plaintiff's 52 Motion For Discovery. COURT TAKES MATTER UNDER ADVISEMENT. Order to follow. Plaintiffs Counsel Dana Johnson present. Defendants Counsel Henry Truszkowski present. (Esteves, C) (Entered: 06/05/2009)
54 OPPOSITION by Equal Employment Opportunity Commission to 40 MOTION for SUMMARY JUDGMENT. (Attachments: # 1 Statement of Disputed Facts, # 2 Statement of Response to Defendant's Statement of Undisputed Facts)(Johnson, Dana) (Entered: 06/12/2009)
55 OPPOSITION by Equal Employment Opportunity Commission to 40 MOTION for SUMMARY JUDGMENT. (Attachments: # 1 Exhibit A part 2, # 2 Exhibit A part 3, # 3 Exhibit A part 4, # 4 Exhibit A part 5, # 5 Exhibit A part 6, # 6 Exhibit A part 7, # 7 Declaration of the EEOC Custodian of Records, # 8 Declaration of Dana Johnson)(Johnson, Dana) (Entered: 06/12/2009)
56 EXHIBIT G part 2 through O in support of EEOC's opposition re 40 MOTION for SUMMARY JUDGMENT filed by California Psychiatric Transitions, Inc..

Case: 1:06-cv-01251-OWW-GSA As of: 05/18/2014 10:41 PM PDT 7 of 10

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(Attachments: # 1 Exhibit G part 3, # 2 Exhibit H and I, # 3 Exhibit J through N, # 4 Exhibit O)(Johnson, Dana) (Entered: 06/12/2009)
57 EXHIBIT P and Q in support of the EEOC's opposition re 40 MOTION for SUMMARY JUDGMENT filed by California Psychiatric Transitions, Inc.. (Attachments: # 1 Exhibit P part 2, # 2 Exhibit P part 3, # 3 Exhibit Q)(Johnson, Dana) (Entered: 06/12/2009)
58 NOTICE of APPEARANCE by Raymond T. Cheung, GOVT on behalf of Equal Employment Opportunity Commission. Attorney Cheung, Raymond T. added. (Cheung, Raymond) (Entered: 06/15/2009)
59 OPPOSITION by California Psychiatric Transitions, Inc.. (Truszkowski, Henry) (Entered: 06/15/2009)
60 REPLY/RESPONSE to Plaintiff EEOC's Amended Statement of Undisputed Facts in Support of Its Motion for Partial Summary Judgment on the Issue of Conditions Precedent and Additional Undisputed Material Facts by California Psychiatric Transitions, Inc. re 59 Opposition to Motion. (Truszkowski, Henry) (Entered: 06/15/2009)
61 OBJECTIONS by Defendant California Psychiatric Transitions, Inc. to 60 Reply/Response, 59 Opposition to Motion. (Truszkowski, Henry) (Entered: 06/15/2009)
62 DECLARATION of Henry C. Truszkowski re 61 Objections, 60 Reply/Response, 59 Opposition to Motion. (Attachments: # 1 Exhibit J, # 2 Exhibit K)(Truszkowski, Henry) (Entered: 06/15/2009)
63 NOTICE Errata: Table of Authorities in EEOC's Opposition by Equal Employment Opportunity Commission re 40 MOTION for SUMMARY JUDGMENT. (Johnson, Dana) (Entered: 06/17/2009)
64 ORDER Regarding Discovery Disagreements 38 52 signed by Magistrate Judge Gary S. Austin on 6/18/2009. (Esteves, C) (Entered: 06/18/2009)
65 REPLY by Equal Employment Opportunity Commission to RESPONSE to 37 MOTION for SUMMARY JUDGMENT. (Attachments: # 1 Statement by EEOC in Response to Defendant's Statement of Additional Disputed Facts)(Johnson, Dana) (Entered: 06/19/2009)
66 REPLY/RESPONSE to in support of Def. California Psychiatric Transitions, Inc.'s Motion for partial Summary Judgment/Adjudication by California Psychiatric Transitions, Inc.. (Truszkowski, Henry) (Entered: 06/22/2009)
67 REPLY/RESPONSE to of Def. California Psychiatric Transitions, Inc. to EEOC's Statement of Disputed Facts by California Psychiatric Transitions, Inc.. (Truszkowski, Henry) (Entered: 06/22/2009)
68 OBJECTIONS by Defendant California Psychiatric Transitions, Inc.. (Attachments: # 1 Exhibit L, # 2 Exhibit M)(Truszkowski, Henry) (Entered: 06/22/2009)
69 STIPULATION and PROPOSED ORDER for Protective Order re 64 Order on Motion for Discovery, by Equal Employment Opportunity Commission. (Johnson, Dana) (Entered: 06/25/2009)
70 Stipulation and PROTECTIVE ORDER signed by Magistrate Judge Gary S. Austin on 6/26/2009. (Esteves, C) (Entered: 06/26/2009)
71 MINUTES (Text Only) for proceedings held before Judge Oliver W. Wanger: Plaintiff's and Defendant's Motions for Summary Judgment hearing held on 6/29/2009, documents 37 40 − motions argued/submitted − court to issue ruling. Plaintiff's Counsel D. Johnson present. Defendant's Counsel H. Truszkowski present. Court Reporter/CD Number: ECRO. (Rooney, M) (Entered: 06/29/2009)
72 MEMORANDUM DECISION Re Plaintiff EEOC'S Motion For Summary Adjudication (Doc. 37 ) And Defendant California Psychiatric Transitions, Inc.'s Motion For Summary Adjudication (Doc. 40 ), signed by Judge Oliver W. Wanger

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on 7/31/2009. Plaintiff shall submit a form of order consistent with this memorandum decision within five (5) days of electronic service. (Filing Deadline: 8/11/2009) (Scrivner, E) (Entered: 08/04/2009)
SERVICE BY MAIL: 72 Memorandum Decision, served on Equal Employment Opportunity Commission. (Scrivner, E) (Entered: 08/04/2009)
73 PROPOSED ORDER by Equal Employment Opportunity Commission. (Johnson, Dana) (Entered: 08/12/2009)
74 ORDER Re The EEOC's Motion For Partial Summary Judgment On Conditions Precedent And California Psychiatric Transitions, Inc.'s Motion For Summary Adjudication 37 , signed by Judge Oliver W. Wanger on 8/12/2009. (Scrivner, E) (Entered: 08/13/2009)
SERVICE BY MAIL: 74 Order, served on Equal Employment Opportunity Commission. (Scrivner, E) (Entered: 08/13/2009)
75 PRETRIAL STATEMENT by Plaintiff Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit A: EEOC's list of trial exhibits, # 2 Exhibit B: CPT's list of trial exhibits)(Johnson, Dana) (Entered: 08/24/2009)
76 MINUTES (Text Only) for proceedings held before Judge Oliver W. Wanger: PRETRIAL CONFERENCE held on 8/31/2009. Motions in Limine Schedule set as follows: Motions by 9/15/2009 and Opposition due by 9/29/2009. Motion in Limine Hearing set for 10/2/2009 at 12:00 PM in Courtroom 3 (OWW) before Judge Oliver W. Wanger. Plaintiffs Counsel D. Johnson and R. Cheung present. Defendants Counsel H. Truszkowski present. (Gaumnitz, R) (Entered: 09/02/2009)
77 AMENDED DOCUMENT by Equal Employment Opportunity Commission. Amendment to 75 Pretrial Statement. (Johnson, Dana) (Entered: 09/03/2009)
78 AMENDED DOCUMENT by California Psychiatric Transitions, Inc.. Amendment to 75 Pretrial Statement. (Truszkowski, Henry) (Entered: 09/04/2009)
79 FINAL PRETRIAL ORDER signed by Judge Oliver W. Wanger on 09/04/2009. Motion Hearing set for 10/2/2009 at 12:00 PM in Courtroom 3 (OWW) before Judge Oliver W. Wanger; Jury Trial set for 10/20/2009 at 09:00 AM in Courtroom 3 (OWW) before Judge Oliver W. Wanger. (Flores, E) (Entered: 09/09/2009)
SERVICE BY MAIL: 79 Pretrial Order served on Equal Employment Opportunity Commission. (Flores, E) (Entered: 09/09/2009)
80 MOTION IN LIMINE TO BIFURCATE by California Psychiatric Transitions, Inc.. Motion Hearing set for 10/2/2009 at 12:00 PM in Courtroom 3 (OWW) before Judge Oliver W. Wanger. (Truszkowski, Henry) (Entered: 09/15/2009)
81 MOTION IN LIMINE TO EXCLUDE EVIDENCE OF SETTLEMENT DISCUSSIONS AND RELATED DOCUMENTS by California Psychiatric Transitions, Inc.. Motion Hearing set for 10/2/2009 at 12:00 PM in Courtroom 3 (OWW) before Judge Oliver W. Wanger. (Truszkowski, Henry) (Entered: 09/15/2009)
82 MOTION IN LIMINE REGARDING NET WORTH by California Psychiatric Transitions, Inc.. Motion Hearing set for 10/2/2009 at 12:00 PM in Courtroom 3 (OWW) before Judge Oliver W. Wanger. (Truszkowski, Henry) (Entered: 09/15/2009)
83 MOTION IN LIMINE TO PRECLUDE PLAINTIFF FROM RAISING OR ASSERT EVIDENCE OF OTHER CLAIM AND LAWSUITS by California Psychiatric Transitions, Inc.. Motion Hearing set for 10/2/2009 at 12:00 PM in Courtroom 3 (OWW) before Judge Oliver W. Wanger. (Truszkowski, Henry) (Entered: 09/15/2009)
84 MOTION IN LIMINE TO BAR TESTIMONY AND EVIDENCE REGARDING CLAIMAINT MARIEL SOMERA'S CHARGE OF DISCRIMINATION AND THE EEOC'S DETERMINATION OF PROBABLE CAUSE by California Psychiatric Transitions, Inc.. Motion Hearing set for 10/2/2009 at 12:00 PM in Courtroom 3 (OWW) before Judge Oliver W. Wanger. (Truszkowski, Henry) (Entered:

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09/15/2009)
85 MOTION IN LIMINE TO BAR TESTIMONY AND EVIDENCE REGARDING ROSEMARY VALLERY'S ALLEGATIONS OF MISCONDUCT AGAINST LARRY FUENTES by California Psychiatric Transitions, Inc.. Motion Hearing set for 10/2/2009 at 12:00 PM in Courtroom 3 (OWW) before Judge Oliver W. Wanger. (Attachments: # 1 Deposition Transcript of Rosemary Vallery)(Truszkowski, Henry) (Entered: 09/15/2009)
86 MOTION IN LIMINE No 1 To Exclude Expert Testimony by Equal Employment Opportunity Commission. Motion Hearing set for 10/2/2009 at 12:00 PM in Courtroom 3 (OWW) before Judge Oliver W. Wanger. (Attachments: # 1 Declaration of Dana Johnson, # 2 Proposed Order, # 3 Appendix Table of contents/authorities to MIL 1, # 4 Exhibit A, # 5 Exhibit B, # 6 Exhibit C)(Johnson, Dana) (Entered: 09/15/2009)
87 MOTION IN LIMINE TO BAR TESTIMONY AND EVIDENCE REGARDING PUTATIVE CLAIMANT AMY KOONS by California Psychiatric Transitions, Inc.. Motion Hearing set for 10/2/2009 at 12:00 PM in Courtroom 3 (OWW) before Judge Oliver W. Wanger. (Attachments: # 1 Employee Contact List, # 2 May 15, 2007 Correspondence)(Truszkowski, Henry) (Entered: 09/15/2009)
88 MOTION IN LIMINE No. 2 to exclude testimony of or statement by Ron Riveira by Equal Employment Opportunity Commission. Motion Hearing set for 10/2/2009 at 12:00 PM in Courtroom 3 (OWW) before Judge Oliver W. Wanger. (Attachments: # 1 Declaration of Dana Johnson, # 2 Exhibit A through E, # 3 Proposed Order)(Johnson, Dana) (Entered: 09/15/2009)
89 MOTION IN LIMINE No 3 to exclude evidence of the inadequacy or bias of the EEOC's administrative investigation by Equal Employment Opportunity Commission. Motion Hearing set for 10/2/2009 at 12:00 PM in Courtroom 3 (OWW) before Judge Oliver W. Wanger. (Attachments: # 1 Declaration of Dana Johnson, # 2 Exhibit A and B, # 3 Proposed Order)(Johnson, Dana) (Entered: 09/15/2009)
90 MOTION IN LIMINE No. 5 to bar mention of the statutory cap by Equal Employment Opportunity Commission. Motion Hearing set for 10/2/2009 at 12:00 PM in Courtroom 3 (OWW) before Judge Oliver W. Wanger. (Attachments: # 1 Proposed Order)(Johnson, Dana) (Entered: 09/15/2009)
91 MOTION IN LIMINE No. 6 to bar evidence of application for or receipt of unemployment or workers' comp. benefits by Equal Employment Opportunity Commission. Motion Hearing set for 10/2/2009 at 12:00 PM in Courtroom 3 (OWW) before Judge Oliver W. Wanger. (Attachments: # 1 Proposed Order)(Johnson, Dana) (Entered: 09/15/2009)
92 MOTION IN LIMINE No. 7 to bar evidence that Sherry Wall yelled at or was abusive to patients by Equal Employment Opportunity Commission. Motion Hearing set for 10/2/2009 at 12:00 PM in Courtroom 3 (OWW) before Judge Oliver W. Wanger. (Attachments: # 1 Declaration of Dana Johnson, # 2 Exhibit A and B, # 3 Proposed Order)(Johnson, Dana) (Entered: 09/15/2009)
93 MOTION IN LIMINE No. 8 to bar John Hackett's testimony that Sherry Wall lied about the purpose of a trip to New York by Equal Employment Opportunity Commission. Motion Hearing set for 10/2/2009 at 12:00 PM in Courtroom 3 (OWW) before Judge Oliver W. Wanger. (Attachments: # 1 Declaration of Dana Johnson, # 2 Exhibit A through C, # 3 Proposed Order)(Johnson, Dana) (Entered: 09/15/2009)
94 MOTION IN LIMINE No. 9 to bar use of documents not produced during the discovery phase of litigation by Equal Employment Opportunity Commission. Motion Hearing set for 10/2/2009 at 12:00 PM in Courtroom 3 (OWW) before Judge Oliver W. Wanger. (Attachments: # 1 Declaration of Dana Johnson, # 2 Proposed Order)(Johnson, Dana) (Entered: 09/15/2009)
95 MOTION IN LIMINE No. 10 to preclude evidence of employers prior and subsequent to CPT by Equal Employment Opportunity Commission. Motion

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Hearing set for 10/2/2009 at 12:00 PM in Courtroom 3 (OWW) before Judge Oliver W. Wanger. (Attachments: # 1 Proposed Order)(Johnson, Dana) (Entered: 09/15/2009)
96 MOTION IN LIMINE No. 11 to bar use of EEOC 20−22 by Equal Employment Opportunity Commission. Motion Hearing set for 10/2/2009 at 12:00 PM in Courtroom 3 (OWW) before Judge Oliver W. Wanger. (Attachments: # 1 Declaration of Evangelina Hernandez, # 2 Proposed Order)(Johnson, Dana) (Entered: 09/15/2009)
97 MOTION IN LIMINE No. 12 to bar speculative testimony of Robert Rice about Renee Addison by Equal Employment Opportunity Commission. Motion Hearing set for 10/2/2009 at 12:00 PM in Courtroom 3 (OWW) before Judge Oliver W. Wanger. (Attachments: # 1 Declaration of Dana Johnson, # 2 Exhibit A, # 3 Proposed Order)(Johnson, Dana) (Entered: 09/15/2009)
98 MOTION IN LIMINE No. 13 to bar evidence that Renee Addison withheld medication from patients by Equal Employment Opportunity Commission. Motion Hearing set for 10/2/2009 at 12:00 PM in Courtroom 3 (OWW) before Judge Oliver W. Wanger. (Attachments: # 1 Declaration of Dana Johnson, # 2 Exhibit A, # 3 Proposed Order)(Johnson, Dana) (Entered: 09/15/2009)
99 MOTION IN LIMINE No. 14 to bar evidence of Stephanie Riveira's Religious Affiliation by Equal Employment Opportunity Commission. Motion Hearing set for 10/2/2009 at 12:00 PM in Courtroom 3 (OWW) before Judge Oliver W. Wanger. (Attachments: # 1 Proposed Order)(Johnson, Dana) (Entered: 09/15/2009)
100 MOTION IN LIMINE No. 15 to bar Hackett from testifying that Valerie Soares or other claimants breached patient confidentiality by Equal Employment Opportunity Commission. Motion Hearing set for 10/2/2009 at 12:00 PM in Courtroom 3 (OWW) before Judge Oliver W. Wanger. (Attachments: # 1 Declaration of Dana Johnson, # 2 Exhibit A, # 3 Proposed Order)(Johnson, Dana) (Entered: 09/15/2009)
101 MOTION IN LIMINE No. 16 to bar evidence of Valerie Soares' supposedly agressive or abusive behavior with patients by Equal Employment Opportunity Commission. Motion Hearing set for 10/2/2009 at 12:00 PM in Courtroom 3 (OWW) before Judge Oliver W. Wanger. (Attachments: # 1 Declaration of Dana Johnson, # 2 Exhibit A, # 3 Proposed Order)(Johnson, Dana) (Entered: 09/15/2009)
102 STIPULATION and PROPOSED ORDER for to strike certain affirmative defenses and eliminate Rosemary Vallery as a claimant by Equal Employment Opportunity Commission. (Johnson, Dana) (Entered: 09/15/2009)
103 ORDER Granting Plaintiff EEOC's Ex Parte Motion to File its Motion in Limine No. 4 to Exclude Evidence of any Charging Parties' or Claimants' Past Sexual Behavior or Sexual Predisposition pursuant to F.R.E. 412 UNDER SEAL, signed by Judge Oliver W. Wanger on 9/16/09. (Verduzco, M) (Entered: 09/16/2009)
104 SEALED EVENT. (Flores, E) (Entered: 09/18/2009)
105 NOTICE of SETTLEMENT AND [PROPOSED] ORDER TO VACATE DATES AND SET DEADLINE TO FILE CONSENT DECREE by Equal Employment Opportunity Commission. Dismissal due within 20 days pursuant to LR 16−160. (Johnson, Dana) (Entered: 09/29/2009)
106 PROPOSED ORDER Consent Decree re 105 Notice of Settlement by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Johnson, Dana) (Entered: 10/16/2009)
107 CONSENT DECREE signed by Judge Oliver W. Wanger on 10/19/2009. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Kusamura, W) (Entered: 10/21/2009)