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United States District Court

For the Northern District of California

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

WAITHIRA NJENGA,

Plaintiff,

 v.

SAN MATEO COUNTY 

SUPERINTENDENT OF SCHOOLS, et al.,

Defendants. /

No. C-08-04019 EDL

ORDER RE: DEFENDANTS’

EVIDENTIARY OBJECTIONS

In connection with the parties’ summary judgment motions, Defendants filed Objections to

Evidence Submitted by Plaintiff. Plaintiff filed responses to those objections. This Order addresses

the evidentiary objections that were not addressed in the Court’s March 30, 2010 Order. 

Plaintiff argues generally in opposition to many of Defendants’ evidentiary objections that

otherwise inadmissible evidence is admissible on summary judgment because the nonmoving party

need not present evidence in a form that wold be admissible at trial, and the evidence will be

admissible at trial later. See, e.g., Fed. Deposit Ins. Co. v. N.H. Ins. Co., 953 F.2d 478, 485 (9th Cir.

1991). However, the Ninth Circuit has stated plainly that: “A trial court can only consider

admissible evidence in ruling on a motion for summary judgment.” Orr v. Bank of America, 285

F.3d 764, 773 (9th Cir. 2002) (“Authentication is a “condition precedent to admissibility,” and this

condition is satisfied by “evidence sufficient to support a finding that the matter in question is what

its proponent claims.” We have repeatedly held that unauthenticated documents cannot be

considered in a motion for summary judgment.”) (internal citations omitted). Plaintiff’s argument is

not well-taken. 

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Declaration of Attorney Fania Davis 

1. Paragraphs 12-14, 16 and Exhibit I: Plaintiff’s counsel recounts conversations she had with

witness Cecil Reeves, former Human Resources Director and Chief Negotiator for Defendant

San Mateo County Superintendent of Schools, all purporting to authenticate Reeves’

unsigned declaration (Exhibit I). The fact that the declaration is unsigned makes it

inadmissible to establish Reeves’ testimony. To the extent counsel’s declaration and Exhibit

I contain hearsay that is offered for the truth, Defendants’ hearsay objection is sustained. 

In her declaration, Plaintiff’s counsel included a request for further discovery based on

Federal Rule of Civil Procedure 56(f), arguing that if the Court is inclined to grant

Defendant’s motion, Plaintiff would like the opportunity to subpoena Reeves. Plaintiff has

not met her burden under Rule 56(f), which requires an affidavit setting out specific reasons

why a party cannot present facts that are essential to justify her opposition. Counsel has

stated that she could not obtain Reeves’ statement in time, but does not demonstrate how it

contains facts essential to her opposition. Further, there is no explanation for why Plaintiff

did not subpoena Reeves sooner, since she knew he was difficult to reach. 

2. Paragraph 23 and Exhibit K: Paragraph 23 purports to authenticate Exhibit K, which is a

June 28, 2007 letter from the management of Mayfield Apartments, where Plaintiff lived,

regarding police breaking down her door on March 6, 2007 because she was reported

missing. Exhibit K is not a sworn statement, and is not addressed to counsel. Plaintiff

argues that Exhibit K is authenticated by the letterhead, and signature, but cites no authority

in which this was enough for authentication in the absence of any declaration showing

personal knowledge of the letter. Therefore, Exhibit K is inadmissible. 

3. Paragraph 24 and Exhibit L: Paragraph 24 purports to authenticate Reeves’ investigative

findings which are contained in Exhibit L. Exhibit L has no identifying marks on it and is

not signed by Reeves. Plaintiff argues that this document has indicia of authenticity because

Defendants produced it in discovery and it has their Bates stamp on it. But Plaintiff has cited

no authority in which a Bates-stamp satisfied any of the authentication methods in Federal

Rule of Evidence 901, especially where the pages of unsigned and undated notes are not

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otherwise identified on their face. Because Exhibit L is not properly authenticated, it is

excluded. 

Declaration of Plaintiff Waithira Njenga 

1. Page 3:4 - " . . . when I was terminated." Defendants object that this statement is

argumentative and a legal conclusion without adequate foundation. These objections go to

the weight of Plaintiff’s statement, and therefore, the objection is overruled.

2. Page 4:16 - "I would be scrutinized and viewed with suspicion." Defendants object to this

statement on the grounds that it lacks foundation and is speculative. Defendants’ objections

are overruled. Plaintiff’s perception of how she was viewed goes to the weight of the

evidence. 

3. Paragraphs 21-29: These paragraphs describe an incident in 1997 in which Plaintiff alleges

that another employee used the “N” word in her presence to describe a student. Defendants

object on the grounds that evidence about this incident is irrelevant because it occurred in ten

years before Plaintiff’s 2008 EEOC charge at issue in this case and involved persons other

than Defendants here. Although the relevance of this statement is slight, to the extent it will

be used as part of a hostile work environment claim, it may be considered for purposes of

liability if a similar incident occurred during the limitations period. See National R.R. Corp.

v. Morgan, 536 U.S. 101, 117 (2002) ("Provided that an act contributing to the claim occurs

within the filing period, the entire time period of the hostile environment may be considered

by a court for the purposes of determining liability."). Defendants’ objections are overruled. 

4. Page 6:25-26: "I understand they did not interview Chris or his family, only co-workers." 

Defendants object on the grounds that the statement is speculative and lacks foundation. 

Because there is no showing as to how Plaintiff knows who was interviewed, the objection is

sustained. 

5. Paragraphs 30-32: These paragraphs describe an incident in 2000 in which Plaintiff believed

that a white female support staff treated her in an antagonistic manner. Defendants object on

the grounds that this occurred in 2000, more than eight years before her 2008 EEOC

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complaint that is the subject of his lawsuit. Although the relevance of this statement is

slight, it may be considered for purposes of liability under Morgan. Defendants’ objections

are overruled. 

6. Page 7:2-8: "She resisted my legitimate requests for administrative support . . . prevailed

upon Elaine to behave in this antagonistic manner toward me." Defendants object on the

grounds that this statement is speculative and lacks foundation. To the extent that Plaintiff

states in this paragraph that there was a hostile work environment at San Mateo County

Office of Education (SMCOE), that is an impermissible legal conclusion. To the extent that

the last sentence contains hearsay that is offered for the truth of the statement, that sentence

is stricken. To the extent that the paragraph is speculative, Defendants’ objection is

sustained. 

7. Page 7:18-22: "Eventually, I learned from each of them [secretaries] that . . . difficult to

perform my work." Defendants object on the ground that the sentence is double hearsay with

no exception, and that the assertion that others were encouraged by someone else is

speculative. The hearsay objection is sustained unless the statement is not offered for the

truth. 

8. Page 7:26-8:2: "It was not unusual to be excluded from meetings . . . attendance at

professional conferences and so on." Defendants object because Plaintiff contradicts this

statement in her deposition where she stated that she attended those meetings and sought to

reverse decisions at those meetings (see Shupe Decl. Ex. C at 303-311; 402-03), and in

paragraph 36 of her declaration. The question is whether Plaintiff’s declaration clearly and

unambiguously contradicts her prior deposition testimony, was prepared specifically in

opposition to a summary judgment motion, and the contradiction has not been explained,

such that the Court may consider it a “sham” and refuse to consider it. See Kennedy v.

Allied Mutual Ins. Co., 952 F.2d 262, 266-67 (9th Cir. 1991). In Van Asdale v. International

Game Technology, 577 F.3d 989, 998-999 (9th Cir. 2009), the Ninth Circuit explained that

the doctrine should be “applied with caution,” but is required because, “if a party who has

been examined at length on deposition could raise an issue of fact simply by submitting an

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affidavit contradicting his own prior testimony, this would greatly diminish the utility of

summary judgment as a procedure for screening out sham issues of fact.” Id. The Ninth

Circuit has imposed two limitations on a district court's discretion to invoke the sham

affidavit rule: (1) “the district court must make a factual determination that the contradiction

was actually a ‘sham;” and (2) “the inconsistency between a party's deposition testimony and

subsequent affidavit must be clear and unambiguous to justify striking the affidavit.” Id. at

999. The Court does not conclude that the declaration clearly and unambiguously

contradicts Plaintiff’s prior deposition testimony, so that it may be disregarded as a “sham.” 

Specifically, the sentence is not exactly contradicted by further paragraphs in the declaration,

which say that when Plaintiff did attend the meetings, she was ignored, and that the schedule

of the meetings was monthly. Neither of these paragraphs contradicts Plaintiff's statement

that she was excluded from meetings. Further, the deposition testimony is not contradictory. 

Plaintiff stated that she was excluded from some but not all meetings, and that she was

routinely excluded from extra meetings that affected her work. Defendant's objection is

overruled. 

9. Page 8:18-21: "Ms. Pex [Defendant] would frequently ask me antagonistic, belittling and

condescending questions. . . . would continue her conversations with them." Defendants

object that the statements lack foundation, and that Plaintiff failed to provide any examples

of the types of questions Plaintiff references. Defendants also object that Plaintiff's

knowledge about conversations outside of her earshot lack personal knowledge and are

speculative. Defendants' objection based on the lack of examples of questions is overruled

because they have cited no authority which requires Plaintiff to cite examples. Defendants’

objections are overruled except the objections are sustained as to the last phrase of this

sentence: “where she would continue her conversations with them” for lack of foundation. 

10. Page 8:26-28: "However, all decisions were made by the group to favor other specialists . . .

my presence, questions and requests didn't make a difference at all." Defendants’ objection

that this statement is speculative goes to the weight of the evidence rather than its

admissibility. 

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11. Paragraph 41: Plaintiff describes how she was routinely assigned students with the most

severe disabilities that lived in the East Palo Alto area. Defendants argue that this paragraph

is inconsistent with Plaintiff's statement in her deposition that she requested assignments in

the East Palo Alto area. See Shupe Decl. Ex. C at 222-23; 321-24. However, any

inconsistency is not clear and unambiguous. See Van Asdale, 577 F.3d at 998-999. 

Therefore, Defendants' objection is overruled. 

12. Paragraphs 42-43: Plaintiff describes generally how job requests from Caucasian Vocational

Education Specialists were routinely accommodated, and that one Caucasian Vocational

Education Specialist was particularly hostile to Plaintiff's requests for work assignments.

Defendants object that these paragraphs contain generalizations without any factual support. 

Defendants’ objections are overruled, except as to paragraph 42. 

13. Paragraphs 45-47: Plaintiff describes how Defendant Pex allegedly instructed other

employees to monitor Plaintiff's work and to create procedural obstacles for Plaintiff. 

Defendants object on the grounds that these paragraphs contain hearsay and double hearsay

statements without exceptions, and are speculative. To the extent that these paragraphs

contain statements made by Pex, those statements are not hearsay because they are

admissions of a party-opponent. See Fed. R. Civ. P. 801(d)(2). To the extent that Pex’s

statements were repeated by a co-worker to Plaintiff, they are inadmissible hearsay if offered

for the truth. 

14. Paragraph 54: Plaintiff describes how Pex took corrective action against Burse, a custodian

at the San Mateo County Office of Education, who was allegedly harassing Plaintiff only

because Pex was somehow forced to do so. Defendants object on the grounds that the

paragraph is speculative and lacks foundation. Defendants’ objections are sustained. 

Plaintiff provides no basis for how she knows what motivated Pex to take corrective action

against Burse. 

15. Page 11:10-12: "My co-workers could order whatever they needed from the catalogs . . . The

requested items arrived promptly thereafter." Defendants object on the grounds that Plaintiff

may only speculate about the work supply order process that applied to other co-workers,

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and that she had no personal knowledge about how others ordered supplies or whether others

had to go through the ordering process described in paragraph 56. She has not shown the

basis for her knowledge. Defendants’ objections are sustained. 

16. Paragraphs 57-59. Plaintiff describes her difficulty in getting work equipment, such as a new

chair. Defendants object that this incident is time-barred because it occurred in 2003. To the

extent this is part of the hostile environment, it may be considered as background under

Morgan. Therefore, Defendants’ objection is overruled. 

17. Paragraph 62: Plaintiff states that the workplace incidents that she described in her

declaration took place from 2003 until she was “forced out” in 2007. Defendants object on

the ground that this paragraph is argument rather than testimony, and is insufficiently

specific. The objections go to the weight of the evidence, and are overruled. 

18. Page 12:16-17: "Carol freely allowed my co-workers to use theirs [student project stipend] to

purchase work materials or items for students." Defendants’ objection is sustained because

Plaintiff has not provided a foundation. 

19. Page 12:27-13:3. "I consistently notified my superiors . . . professional development

conferences." Defendants object on the grounds that Plaintiff's statement states that she

"consistently" complained, but that there was no consistent conduct. Defendants object on

the grounds that Plaintiff’s declaration is contradictory to her deposition, and therefore a

sham. The Court does not conclude that the declaration clearly and unambiguously

contradicts her prior deposition testimony, so that it may be disregarded as a “sham.” See

Van Asdale, 577 F.3d at 998-999. For example, Plaintiff testified that there was no written

complaint following her 2004 EEOC complaint until her 2008 complaint (Shupe Decl. Ex. C

at 273-74), but this testimony does not contradict the declaration, which does not state that

she complained in writing. As another example, Defendants note that Plaintiff could not

testify as to any incident involving ordering work supplies in the year before her 2008 EEOC

complaint (Id. at 280-81), but Plaintiff's declaration does not state that she consistently

complained about work supply ordering. Accordingly, Defendant’s objection is overruled. 

20. Page 13:15-25 (Paragraphs 69-71): Defendants object on the grounds that Plaintiff's

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statement that "they" believed that Plaintiff had planned the civility lecture is speculative and

that Plaintiff could not testify as to another person’s mental state. This objection is

sustained, except to the extent that a foundation is laid because Plaintiff attributes some

comments about the meeting to Kathilynn Lehmer. Further, Defendants object to these

paragraphs on the grounds that they contain hearsay. To the extent that Plaintiff heard these

statements herself, they are not hearsay for the purpose of showing that statements were

made in her presence, as opposed to being offered for the truth of the statements. This

evidence is relevant to Plaintiff’s hostile work environment claim. Defendants also object on

the ground that the paragraphs describe a time-barred event that occurred in 2002, but that

objection is overruled based on Morgan. 

21. Paragraphs 72-74: Plaintiff describes how she complained about, among other things,

inequitable work assignments, difficulties in ordering supplies, after Reeves conducted his

investigation in 2001. Defendants object on the ground that these events are time-barred, but

this objection is overruled. Defendants’ hearsay objection is overruled because the out of

court statements were made by Princess Tucker-Jones, who was a high level employee who

can speak for the organization under Federal Rule of Evidence 801(d)(2). 

22. Page 14:13-15: "Carol did not deny Princess' charge that she was treating my differently

from the way she treated her white employees. She remained silent." Defendants object on

the ground that Plaintiff is attempting to suggest an admission from Pex through her silence. 

The Court does not construe Pex's silence as an admission, and overrules the objection. 

23. Paragraph 76: Plaintiff states that Princess Tucker-Jones did her best to take corrective

actions during the time she was a manager. Defendants’ objection that Plaintiff lacks

foundation to testify about the motives and mental state of Tucker-Jones is sustained. 

24. Page 15:5-7: "During the preceding 10 years of my employment, the Vocational

Employment Specialists blocked my attempts to attend professional development

conferences." Defendants object that Plaintiff lacks foundation to testify about what other

unnamed persons did. This objection is overruled. 

25. Page 15:14-16: "It did not help when, in early 2004, Marsha Castell-Blanch, a Vocational

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Education Specialist, told me that I was ‘lucky' that the County hired me because generally

they do not hire black people for my position." Defendants’ objection based on hearsay is

sustained to the extent that the statement is offered for the truth, but overruled as to Plaintiff

being told that. 

26. Page 15:18-20. "The hostility ramped up so much again that by May 2004, I became ill and

had to take medical leave. The medical crisis was triggered by observing how, after she

became manager, Princess too became a target of harassment." Defendants object that this is

improper medical opinion as to the cause of Plaintiff's undefined medical crisis. Defendants’

objection is overruled. 

27. Page 15:20-25: "During the first year of Princess' appointment as a manager in 2003, . . .

They seemed to take sport in disparaging Princess at every opportunity." Defendants object

to this testimony on the ground that Plaintiff lacks foundation to testify about the motivations

of others. The objection, which go to the weight of the testimony rather than its

admissibility, is overruled. 

28. Paragraph 83: Plaintiff describes how co-workers made negative comments under their

breath when Princess Tucker-Jones made presentations. Defendants object that this

paragraph is speculation. To the extent that Plaintiff actually heard statements made by coworkers, Defendants’ objection is overruled. 

29. Page 16:24-26: "Blaming me for Carol's transfer, my co-workers shunned and isolated me

even more. Trashing of my work area escalated. This included arriving at my work space

and finding that my African artifacts." Defendants object that Plaintiff cannot testify as to

the mental state of her co-workers. This objection, which goes to the weight of the testimony

rather than its admissibility, is overruled. Defendants object to the second sentence on the

ground that it lacks foundation. To the extent that Plaintiff testifies to the fact that her work

space was disturbed, Defendants’ objection based on lack of foundation is overruled. 

30. Page 16:27-28. "I understood she [Princess Tucker-Jones] left in part because of the hostility

she was subjected to in the workplace as a black female manager." Defendants object to this

sentence, arguing that Plaintiff lacks personal knowledge about why Princess Tucker-Jones

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left. Defendants note that Plaintiff testified at her deposition that Tucker-Jones was forced to

resign or was fired. See Shupe Decl. Ex. C at 71-73. Defendants also argue that Plaintiff's

statement in her declaration is a sham. However, any inconsistency between Plaintiff’s

deposition and her later declaration is not clear and unambiguous to be considered a sham

pursuant to Van Asdale. Accordingly, Defendant’s objections are overruled. 

31. Paragraph 95: Plaintiff states that her union representative told her that the hiring process for

the Lead Vocational Education Specialist violated the collective bargaining agreement and

that Plaintiff should file a grievance, but that Plaintiff did not file a grievance because the

stress was already too great. Defendants’ objection based on hearsay is sustained only to the

extent that the paragraph contains a statement made by the union representative that is

offered for the truth, not for the fact that it was made.

32. Page 17:19-28 (Paragraph 96), 18:5-8 (Paragraph 99): These paragraphs state that Pex made

derogatory references in Plaintiff's presence about Black people in 2003-2004 and

2006-2007, and that Pex stated to Plaintiff that "people in your part of the world are used to

doing hard work and so you should be used to doing hard work here too." Defendants object

because Plaintiff did not testify in her deposition about these incidents, even though she was

asked whether Pex made any derogatory statements to her. See Shupe Decl. Ex. C at 97;

158; 176-78; 474-81. To the extent that Defendant argues that Plaintiff’s declaration is a

sham, that objection is overruled. See Van Asdale, 577 F.3d 998-999. There has been no

showing that any inconsistency between Plaintiff’s declaration and her prior deposition is so

clear and unambiguous to be considered a sham, or that Plaintiff’s omission of these

incidents from her deposition was anything more than an oversight. 

33. Paragraph 98: Plaintiff stated that in the fall of 2006, she filled out a form and self-identified

as African, but that Pex changed the form to indicate African-American. Defendants object

that Plaintiff lacks foundation to make this statement. Defendant’s objection is overruled.

34. Paragraphs 103-05: Plaintiff stated that Pex made negative comments about Plaintiff and

Plaintiff’s country. Plaintiff also states that in January 2007, Linda Nieder told Plaintiff that

Pex was going to get her. Defendants object on the grounds that paragraph 103 is

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speculative because Plaintiff lacks foundation to testify about what Pex said under her

breath, but to the extent that Plaintiff heard the statements, Defendants’ objection is

overruled. Defendants object that Plaintiff lacks foundation to testify about Pex's non-verbal

conduct, but that objection goes to the weight of her testimony. Defendants’ objection as to

Nieder’s statement is sustained only insofar as the statement is offered for the truth. 

35. Page 19:20-21: "A few days later, I was in the South San Francisco WorkAbility Office and

gave a copy of the [doctor] note to one of the WorkAbility secretaries, either Essence or

Teri." Defendants object on the ground that in her deposition, Plaintiff testified that she had

no knowledge which would contradict the date stamp on the doctor's note of March 8, 2007

(See Shupe Decl. Ex. C at 244-45), which is not a "few days later." Defendants argue that

the declaration is a sham. However, in Plaintiff’s deposition, she stated that she did not have

any knowledge of when the document was received, which is not sufficiently directly

contradictory to conclude that it is a sham (as opposed to potential impeachment). See Van

Asdale, 577 F.3d at 998-999. Therefore, Defendant’s objection on that basis is overruled.

Further, this objection goes to the weight of the evidence, rather than its admissibility. 

36. Paragraphs 108-113: These paragraphs describe Plaintiff's plan to take five days off, which

she discussed with the Lead Vocational Education Specialist, to evaluate her medical

condition with regard to whether she would have hip replacement surgery in late March

2007. Plaintiff describes how she worked with her training assistant to cover her work. 

Defendants object on the grounds that the paragraphs are hearsay. To the extent that the

paragraphs contain out of court statements by the Lead Vocational Education Specialist or

Plaintiff's training assistant, those statements are hearsay to the extent they are offered for the

truth. Defendants further object on the ground that the declaration is a sham because it

contradicts Plaintiff's deposition, in which she testified that she only told a few people that

she was going to be absent. However, any inconsistency between the deposition and the

declaration is not clear and unambiguous, so Defendants’ objection based on sham is

overruled. See Van Asdale, 577 F.3d at 998-999.

37. Paragraphs 117-118: Plaintiff describes how she found that the police had broken down the

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door to her apartment, and that her apartment manager stated that the police acted because

Plaintiff's employer asked police to conduct a welfare check. Defendants object on the

grounds that these statements are hearsay. Defendants’ objection is sustained only to the

extent that the statements by the manager are offered for the truth. 

38. Ex. C: Defendants object on the grounds that exhibit C is not attached to Plaintiff’s

declaration. Plaintiff, however, subsequently provided the exhibit. Therefore, Defendants’

objection is overruled as moot. 

39. Page 21:23-24. "learning that it was Carol Pex and my employer who were responsible" for

the police breaking into Plaintiff's apartment. Defendants object on the grounds that the

statement lacks foundation. Defendants’ objection is sustained because there is no showing

of foundation except for a hearsay statement from the Palo Alto police, to support the

conclusion that Pex was involved.

40. Page 22:19-22: "I understand that she [Carol Pex] did not ask Harriet Beck, . . . Nor did she

contact any of the teachers with whom I work." Defendants object on the ground that this

statement is speculative and lacks foundation. Plaintiff's statement lacks foundation, so

Defendants’ objections are sustained. 

41. Page 23:3-4: "On or about March 8, 2007, Carol unjustifiably reprimanded me for allegedly

making false entries in my time sheet." Defendants argues that this statement is a sham

because Plaintiff testified in her deposition that the only reprimand she received at work was

for another incident involving a letter she wrote to Lisa Suruki. See Shupe Decl. Ex. C at

182-83. Plaintiff’s declaration unambiguously contradicts her earlier deposition testimony,

so that it is a sham on this point. See Van Asdale, 577 F.3d at 998-999. Therefore,

Defendant’s objection is sustained. 

42. Paragraph 128: Plaintiff states that white Vocational Education Specialists were allowed to

work from home, and were never penalized for it. Defendants object on the ground that this

is speculation. Although Plaintiff argues that she has personal knowledge, Plaintiff made no

showing of the basis for her knowledge. Therefore, Defendants’ objection is sustained. 

43. Paragraph 129: Plaintiff states that Harriet Beck, the Lead Vocational Education Specialist,

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admitted that individuals could work from home without negative consequences. To the

extent that this statement is offered for the truth, Defendants’ hearsay objection is sustained. 

44. Page 23:23; paragraphs 135-138: Plaintiff states that Defendant Bosley was abrupt,

condescending and hostile during a meeting regarding Plaintiff's grievance. Plaintiff also

states that Bosley made harassing phone calls and also accused Plaintiff's union

representative of unprofessional conduct. Defendants object to these statements as

speculative and lacking foundation. Defendant’s objections to these statements, which

describe Plaintiff’s perception of Bosley's conduct, go to the weight of the statements, rather

than their admissibility, and are therefore overruled. 

45. Paragraph 139: Plaintiff describes how her medical condition as of November 2007 was

unchanged, and that her doctors verified her disability as a result of the hostile work

environment. Defendants’ objection that the statements of doctors are hearsay is sustained to

the extent that the statements are offered for the truth. Defendants also object to the portion

of paragraph 139 stating that Plaintiff’s disability was due to the hostile work environment as

speculative. That objection is overruled to the extent that Plaintiff provides her opinion as to

her medical condition, but sustained to the extent that the statements are offered for the truth

of the doctor’s diagnosis.

46. Page 24:17; 24:21-22; 24:27. In these three paragraphs, Plaintiff states that she was

"terminated," and that "as a result of the long-standing hostility and abuse on the job," she

has experienced emotional distress. Defendants object on the ground that these statements

are legal conclusions and speculative. Therefore, Defendants’ objections are overruled. 

Declaration of Princess Tucker-Jones - Assistant Education Services Manager for Secondary

Services Division from July 2002 through June 2003 and Director of Secondary Services

Division from July 2003 through June 2006

1. Paragraph 13: Tucker-Jones stated that she observed negative racial stereotyping in the

workplace, and described how staff insisted that only Filipino works care for severely

disabled children because of the stereotype that Filipinos are good caregivers. Defendants

object on the ground that this evidence is irrelevant. This evidence is not wholly irrelevant,

although it is of minimal probative value because it took place in a different department

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about six years before Plaintiff filed her 2008 EEOC charge. Defendants’ objection is

overruled. 

2. Paragraphs 12, 15: Tucker-Jones states that the Secondary Services Department lacked

cultural sensitivity. Defendants’ objection on the ground that Tucker-Jones testified as to

legal conclusions, rather than facts, is overruled. The objection goes to the weight of the

evidence, rather than its admissibility. 

3. Paragraph 19: Tucker-Jones states that she had heard that Plaintiff had concerns about

discrimination, but then later heard these concerns directly from Plaintiff. Defendants’

objection based on hearsay is sustained to the extent that the secondhand statements are

offered for the truth. 

4. Paragraphs 24-28: Tucker-Jones describes many statements by Plaintiff about harassment

and discrimination. Defendants’ hearsay objection is sustained to the extent that the

statements are offered for the truth. 

5. Page 7:15-17: Tucker-Jones states that Pex did nothing to help Plaintiff, yet Pex followed up

on another complaint of another Vocational Education Specialist. Defendants object on the

grounds that these statements are conclusory and lack foundation. There is no showing as to

how Tucker-Jones knows what Pex did. Therefore, Defendants’ objections are sustained. 

6. Paragraph 31: "In the meeting, Carol Pex did not deny that she had treated Waithira

differently." Defendants object on the ground that this statement attempts to suggest an

admission by silence from Pex, which is speculative. Defendants’ objection, which goes to

the weight of the evidence, is overruled. 

7. Paragraphs 23-38: Tucker-Jones describes the results of her investigation into treatment of

Plaintiff by Pex in 2002, and subsequent related meetings in 2003 and 2004. Defendants

object that these incidents took place years before the 2008 EEOC complaint at issue in this

case. However, to the extent that this evidence goes to the hostile work environment claim,

these older incidents can be used to establish liability under Morgan. Therefore, Defendants’

objection is overruled. 

8. Paragraphs 39, 40 (first four words): Tucker-Jones states that beginning in January 2004,

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Plaintiff experienced retaliation, and was ignored and isolated. To the extent that TuckerJones’s characterization of events states legal conclusions in paragraph 39, Defendants’

objection is sustained. The first four words of Paragraph 40 are: “I brought the acts. . . .” It

is not clear how these four words are speculation or “rank conclusion.” Defendants’

objection as to paragraph 40 is overruled. 

9. Paragraphs 41-42: Tucker-Jones describes continued negative treatment of Plaintiff by Pex

and others. Defendants’ objection on the ground that statements made by Plaintiff are

hearsay is sustained to the extent the statements are offered for the truth.

10. Paragraph 48: Tucker-Jones explains her conclusions about Plaintiff's complaints based on

information provided by Plaintiff and gathered by Tucker-Jones' assistant. Defendants’

hearsay objection is sustained insofar as the statements are offered for the truth.

11. Page 11:25-27: Tucker-Jones states that from December 2003 until she left in June 2006,

there were informal investigations of Plaintiff's complaints. Defendants object on the ground

that Tucker-Jones lacks foundation to say whether or not investigations were made. 

Defendants’ objection goes to the weight of the evidence, rather than its admissibility. 

12. Page 12:9-10; paragraph 52: Tucker Jones describes her own experiences with harassment

and discrimination in this workplace. Defendants’ objection goes to the weight of the

evidence, rather than its admissibility. 

13. Paragraphs 53-54: Tucker-Jones describes how she waged a campaign against rampant

gossip in the workplace, including an incident by Burse, who allegedly used a racial and

sexist slur against Tucker-Jones when Tucker-Jones asked Burse to move some equipment in

a timely manner. Defendants’ objection based on hearsay is sustained to the extent that the

statements are offered for the truth, but not as to whether the statements were made. 

Defendants’ objection based on the fact that these incidents are remote in time is overruled

based on Morgan. 

Declaration of Jacque Taliaferro - Special education teacher in San Mateo County

1. Paragraph 4: Taliaferro, who is an African American female, stated that she had difficulties

with Pex, which she attributes to race and differential treatment. Defendants’ objection that

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this paragraph is conclusory is overruled. 

2. Paragraphs 5-10: These paragraphs describe an incident in which Pex reprimanded

Taliaferro. Defendants object that this incident was remote in time, and is irrelevant to show

racial animus because there was no showing that the incident was racially motivated. 

Although this incident was remote in time, Defendants’ objection, which goes to the weight

of the evidence rather than its admissibility, is overruled. 

3. Paragraphs 11-16: These paragraphs describe an incident in 2003 in which Pex orally

reprimanded Taliaferro. Defendants object on the ground that this incident occurred in 2003,

well before Plaintiff filed her 2008 EEOC complaint, and that there is no racial animus

shown. Although the incident was remote in time, Defendants’ objection goes to the weight

of the evidence rather than its admissibility. Therefore, Defendants’ objection is overruled. 

4. Paragraph 17: This paragraph describes an incident in 2003 in which Taliaferro was helping

Tucker-Jones in a meeting and Pex sent two people at different times to take Taliaferro out of

the meeting to attend another meeting. Although the incident was remote in time,

Defendants’ objection goes to the weight of the evidence rather than its admissibility. 

Therefore, Defendants’ objection is overruled. 

5. Page 4:15-16: "before having Waithira reported to the police as missing with foul play

suspected resulting in the police kicking down the door of her home." Defendants’ objection

based on lack of foundation is sustained. 

6. Paragraph 20: Taliaferro conducted her own investigation into whether Pex contacted certain

individuals before Pex called the police to go to Plaintiff's home in March 2007. 

Defendants’ hearsay objection is sustained to the extent that this evidence is offered for the

truth. To that extent that this paragraph contains conclusions rather than facts, Defendants’

objection on that basis is sustained. 

7. Page 4:23: Taliaferro describes the contents of an email that purports to be attached to the

declaration, but is not attached. Plaintiff subsequently provided the email, so Defendants’

objection is overruled as moot. 

Declaration of Eric Moberg - Plaintiff’s Former Union Representative

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1. Paragraphs 6-7: Moberg describes the events of November 2003 in which Burse allegedly

made racist remarks to Plaintiff. Defendants argue that these events are too remote, but as

stated above, remote events may be used to show a hostile work environment under Morgan. 

Therefore, this objection is overruled. Defendants also object to paragraph 7 as hearsay, and

as improperly attributing an admission to Pex based on her silence. To the extent that the

paragraph includes hearsay, Defendants’ objection is sustained to the extent that the

statements are offered for the truth. Defendants’ objection based on an admission by Pex

goes to the weight of the evidence, rather than its admissibility, and is therefore overruled. 

2. Page 2:14-18: "The purpose was to attempt to remediate the ongoing hostility to which

Waithira was being subjected . . . as well as Ms. Pex, who took no corrective action on her

own." To the extent that Moberg lacks personal knowledge of the facts in this paragraph,

Defendants’ objection on that ground is sustained. 

3. Paragraph 8: Moberg states that during the fall of 2006, Moberg learned that Plaintiff had not

received a promotion, and he believed that was in violation of the collective bargaining

agreement and established practices. Defendants’ objection based on hearsay is sustained to

the extent that the statements are offered for the truth. Further, to the extent that Moberg

lacks personal knowledge, the objection on that ground is sustained. 

4. Page 3:5-8: Moberg describes how Pex either called the police or caused them to be called to

conduct a welfare check on Plaintiff at her home. Defendants’ objection that Moberg lacks

personal knowledge is sustained. Defendants’ hearsay objection is sustained to the extent

that Moberg’s statements are offered for the truth. 

5. Page 3:12-20: Moberg describes Taliaferro’s investigation and her conclusions. Defendants’

hearsay objection is sustained to the extent that the statements are offered for the truth. 

Defendants’ objection based on improper opinion is sustained to the extent that Moberg’s

statements constitute opinion. Defendants’ objection based on speculation goes to the weight

of the evidence, rather than its admissibility, and therefore is overruled.

6. Page 3:21-26: Moberg further describes an email from Taliaferro to Dr. Jean Holbrook

stating the conclusions of Taliaferro’s investigation. Defendants’ hearsay objection is

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sustained to the extent that these statements are offered for the truth. 

7. Paragraph 12: Moberg described his argument in support of Plaintiff's grievance about the

police welfare check. Defendants object on the ground that this statement contains hearsay,

and is speculative and conclusory. To the extent it contains hearsay offered for the truth,

Defendants’ objection is sustained. Defendants’ other objections go to the weight of the

evidence rather than its admissibility, and are therefore overruled. 

8. Paragraph 13: "The grievance was ignored by Carol Pex at level 1." Defendants object on

the ground that whether Pex "ignored" the grievance is speculative and that Moberg cannot

read Pex' mind. Defendants’ objection is sustained. 

9. Page 4:14-15: "Ms. Bosley was insulting, confrontational and frequently interrupted by [sic]

presentation." Defendants’ objection that this statement is an improper characterization and

improper argument goes the weight of the evidence rather than admissibility, and is therefore

overruled. 

10. Page 4:16-21 (Paragraph 15): Moberg describes his presentation in support of Plaintiff's

grievance. Defendants object on the grounds of hearsay and that the statement is conclusory

and speculative. To the extent that this paragraph contains hearsay that is offered for the

truth, Defendants’ objection is sustained. Defendants’ objections that the statements are

speculative and conclusory go to the weight of the evidence rather than the admissibility, and

are therefore overruled. 

11. Page 4:21-22: "Jeannie Bosley was dismissive and rude to Waithira, Jacque and me." 

Defendants’ objection that this statement is improper opinion is overruled. 

12. Paragraphs 17-18: Moberg states that he filed his own grievance against Defendant Bosley

who had given him an oral reprimand for being rude to employees in the personnel

department after Plaintiff’s grievance meeting ended. To the extent that these paragraphs

contain hearsay that is offered for the truth, the hearsay objection is sustained. Defendants’s

objections that this evidence is unrelated to Plaintiff’s claims and is speculative go to the

weight of the evidence rather than the admissibility, and are therefore overruled. 

13. Paragraphs 19-20: Moberg states that he learned that Bosley had also issued an oral

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reprimand against Plaintiff, and then states that Moberg’s grievance was denied at every

level. Although Moberg’s separate grievance is only tangentially relevant, Defendants’

objection that these paragraphs are speculative and lack personal knowledge go to the weight

of the evidence rather than its admissibility, and are therefore overruled. 

14. Paragraph 21, first sentence: Moberg states that in June 2007, he told Bosley that Pex'

strategy of calling the police to go to Plaintiff's apartment was done to retaliate against

Plaintiff for engaging in protected activity. Defendants’ hearsay objection is sustained to the

extent that this statement is offered for the truth. 

15. Paragraph 21, second sentence: Moberg states that Defendant Holbrook acknowledged at a

meeting that Halbrook knew that Plaintiff believed that Pex called the police in retaliation. 

This sentence is hearsay if offered for the truth, but not as to whether Holbrook made such a

statement. 

16. Paragraphs 22-24: These paragraphs describe the resolution of Moberg's personal grievance. 

Defendant objects to these paragraphs on the grounds that they are irrelevant. The Court did

not rely on this evidence in ruling on Defendants’ motion for summary judgment, therefore,

Defendants’ objection is moot. 

IT IS SO ORDERED.

Dated: April 13, 2010 

ELIZABETH D. LAPORTE

United States Magistrate Judge

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