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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

TEASHA ROGERS,

Plaintiff,

v.

DENISE JOHNSON, et al.,

Defendants.

NO. C08-4395 TEH

ORDER GRANTING IN PART

AND DENYING IN PART

DEFENDANTS’ MOTION FOR

SUMMARY JUDGMENT

This matter is before the court on Defendants’ motion for summary judgment. 

Plaintiff Teasha Rogers (“Rogers” or “Plaintiff”) brings federal and state claims for

discrimination and sexual harassment arising from her employment with the Lake County

Animal Care and Control Department (“Animal Control”). Defendants Denise Johnson

(“Johnson”), Morgan Hermann (“Hermann”), and Lake County (collectively, “Defendants”)

move for summary judgment on all claims. After carefully considering the parties’ written

arguments, the Court found oral argument to be unnecessary and vacated the hearing that had

been scheduled for April 26, 2010. For the reasons set forth below, Defendants’ motion is

GRANTED IN PART and DENIED IN PART.

FACTUAL BACKGROUND

Rogers was hired as an Animal Control Officer I for Lake County on September 21,

2006, for a probationary period intended to last one year. She was terminated nearly 11

months later, on August 6, 2007. Rogers had applied for the officer position while working

part-time as a kennel assistant with Animal Control, a position she held since February 2006. 

She had previously volunteered with Animal Control as a teenager.

Johnson, the director of Animal Control, was Rogers’ supervisor. Rogers trained

primarily with Hermann, an Animal Control Officer III. Plaintiff is a lesbian woman and

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 Defendants raise evidentiary objections to more than half of the passages in

Plaintiff’s statement of facts. To the extent that the Court relies on evidence to which

Defendants object, those objections are overruled. Defendants’ dozens of hearsay objections

are largely without merit: Plaintiff cites out-of-court statements not for the truth of the

matters asserted, but for the fact that the statements were made. With respect to Defendants’

relevancy objections, the Court relies only on evidence that it concludes is relevant.

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was in a relationship with another woman, Kelly Kostka, during her employment with

Animal Control. Rogers claims that both Hermann and Johnson subjected her to sexual

harassment.1

I. Episodes of Alleged Harassment

It is undisputed that Hermann shared stories with Rogers about sexual encounters,

although the parties disagree about the content and frequency of those conversations. 

Hermann invited Rogers to go skydiving after telling Rogers that her husband had watched

her have sex with another woman on a skydiving trip – which Rogers construed as a

proposition. Rogers believes that Hermann told her such stories on at least five occasions. 

Although Hermann recalls mentioning the sexual encounters and extending the skydiving

invitation, she denies doing so in the same conversation, and claims that she invites

“everybody” to accompany her skydiving. Hermann told Rogers about having sex with a

woman in a hot tub while skydiving, and described being unable to have sex one weekend

because her period was too heavy. Hermann also made comments about “jumping into . . .

bed naked” with Johnson and her partner. She acknowledges telling Rogers that she “likes

girls,” and does not recall ever telling colleagues other than Rogers about her sexual

relations.

Hermann also admits that she showed Rogers a sexually suggestive photograph. 

Hermann posed nude – with props strategically placed to obscure private areas – for a fundraising calendar to benefit the Clear Lake Animal Welfare Society, or C.L.A.W.S. Hermann

and another employee who appeared in the calendar, Katherine Bennett, submitted the

pictures for review by Johnson, who divided the photographs into appropriate and

inappropriate piles, requesting that only the “appropriate” pictures be considered for

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publication. When Rogers was upset about a fight with her girlfriend, Hermann showed her

one of the nude photos, asking, “Does this make you feel better?” Rogers replied that it did

not, prompting Hermann to put the picture away. Rogers construed this as a sexual advance. 

Although Johnson was aware that Rogers had shown some of her photographs to other

employees, she assumed only the “appropriate” pictures were shared. It is unclear which

category of photograph was shown to Rogers.

Rogers alleges that Johnson, while less overtly sexual in her conduct than Hermann,

also subjected her to harassment. Although Johnson never explicitly asked Rogers to have a

sexual relationship with her or threatened her job for refusing to do so, Rogers repeatedly

inferred that Johnson was propositioning her. Johnson asked Rogers about her relationship

with Kostka the first time they rode together in a county vehicle, in response to which Rogers

explained that she and her girlfriend were monogamous. Johnson told her that she cheats on

her partner, and advised Rogers that cheating is “fine” as long as one’s partner does not find

out. On a few occasions, Johnson asked Rogers why she was still with her girlfriend, told

her that she should be with someone else, and invited Rogers over to her house to talk. 

Johnson commented that Rogers should be with someone who treats her better, which Rogers

construed as an insinuation that Rogers and Johnson should enter a relationship. Finally,

Rogers claims that Johnson told her she “dresses really good” when she was applying for the

officer position, which made her uncomfortable.

Johnson denies many of Rogers’ allegations, and contends that Rogers misconstrued

those episodes that did occur. The invitation to her house had no sexual overtones because

Johnson tells all of her staff that they are welcome at her home anytime. Johnson asserts that

she never broached the topic of Rogers’ girlfriend herself, but would only ask about the

relationship when Rogers was upset about an argument with Kostka. Johnson denies ever

cheating on her partner or advising Rogers about the propriety of doing so.

On only one occasion does Rogers allege Johnson made any physical advances. One

night Rogers had attended a concert with Kostka, who left her stranded at the venue after

they fought. Rogers, having no transportation home, began walking along the road and

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called Johnson, who had attended the same concert with her family. Johnson picked her up

from the side of the road, and Rogers got into the back seat with Johnson’s adult daughter

and other family members. Johnson drove Rogers to the home she shared with Kostka,

where Rogers retrieved some belongings and placed them in her Animal Control truck, which

was parked there. Johnson’s family left in their car, and Johnson drove the truck with Rogers

in the passenger seat. Rogers claims that she asked Johnson to take her to her mother’s

home, but that Johnson refused and would only take Rogers to her house. According to

Johnson, she offered to take Rogers to her mother’s house, but Rogers said she did not want

her mother to know what had happened; Johnson then offered to let Rogers stay with her, and

Rogers agreed.

Rogers alleges that, in the truck, Johnson asked her what had happened and told

Rogers that she should not be with Kostka. Johnson also touched Rogers’ leg and caressed

her shoulder for about 20 seconds. Rogers, in response, told her she was uncomfortable and

moved over. Johnson denies this, claiming that she was on the phone with her partner – and

that Rogers was crying hysterically – during the entire ride. Once at her home, Johnson

claims her 25-year-old daughter took care of Rogers, and Johnson did not see her again.

Rogers complained about the alleged harassment to her mother (Allison Garrett),

Bennett, and Dolores Lackey, an Animal Control Officer III. According to Garrett, Rogers

would call her while agitated and crying about invitations she had received from Johnson. 

Rogers told Bennett that certain encounters with Johnson and Hermann had made her

uncomfortable. Lackey recalled that Rogers, before her termination, expressed concern that

she would lose her job because she would not have a relationship with Johnson or Hermann. 

Johnson learned in June 2007 that Rogers and Kostka had resumed their relationship after

having earlier broken up, and Rogers claims that Johnson’s demeanor towards her

immediately changed, becoming rude and stern.

In early 2007, Rogers’ girlfriend Kostka held a “Passion Party,” the purpose of which

is to purchase sex toys. Rogers posted the invitation to the party on a bulletin board at

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Animal Control, and extended an open invitation for her colleagues to attend the party. None

of her colleagues attended.

II. Rogers’ Performance on the Job

Although the standard training period for a probationary employee is four months,

Rogers completed her training in less than two, which Hermann noted was faster than she

had seen any other individual do so. Rogers received a positive evaluation of her first six

months of service, from September 2006 through March 2007. Out of five categories of

performance, she was rated “satisfactory” in three and “above average” in two. The

commentary on her evaluation noted that her workload was larger than normal, that she

executed her tasks with the skills of a seasoned officer, and that staff and the public

frequently complimented her work. In the employee comments section of the evaluation,

Rogers wrote, “Working here is a joy and I love and appreciate my job very much.” Lackey,

who was responsible for reviewing Rogers’ work, said that Rogers was considered a good

officer: “She was compassionate. She listened. She knew the laws. And so she knew how

to enforce them.”

According to Johnson, however, Rogers’ performance severely declined in May 2007. 

She claims that Rogers would arrive late to work and became lax in her paperwork; Johnson

believes she spoke to Rogers about such minor deficiencies between 15 and 20 times starting

in late May. In July, Johnson asserts that Rogers seriously mishandled two calls – one to

assist an injured dog, the other to investigate a vicious dog – which precipitated the

termination of her probation.

At approximately 8:30pm on July 12, 2007, Rogers received a call at home from the

Clearlake Police Department regarding an injured dog in need of attention. Rogers called the

phone number for Julie Burrow, a City of Clearlake employee who reported the incident, but

no one answered. Upon arriving at the site about an hour later, Rogers observed a dog in the

road, which then stood quickly and ran off. Unable to relocate the dog after driving around

the vicinity, she returned home to find a message waiting from the police department. She

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returned the dispatcher’s call and was given a new number for Burrow; after explaining to

the dispatcher that she had been unable to find the dog, Rogers was told that the police

department would send someone to the scene.

The next day, Burrow emailed a complaint regarding Animal Control’s response to

the incident. The dog, she explained, had slid down the hill on a construction site and was

lodged in the back of a fence, a fact that Rogers had not known. Despite Burrow’s repeated

calls to the police department and Animal Control, an officer only arrived at 9:30am, more

than 13 hours after she first reported the incident. Johnson, after investigating Rogers’

handling of the call, concluded that she had acted inappropriately by failing to contact

Burrow or the police department before leaving the scene, and by not offering to call

Burrow’s new number or return to the scene after receiving a second call from the police.

The second incident occurred on July 27, 2007, when Rogers responded to a call

regarding two dogs that had killed 19 guinea hens. Rogers was told by dispatch that the

reporting party had requested that only a warning be issued to the owner of the dogs, which

is all Rogers did: she posted a notice of violation on a fence, but she did not enter the

property due to a locked gate. Johnson contends that Rogers handled the call improperly for

multiple reasons. Standard procedures for vicious animal reports required Rogers to perform

a “vicious abatement” – where dogs are quarantined during an investigation of an incident –

rather than simply leave a notice of violation. Rogers failed to photograph the animals killed,

did not collect the bodies for evidence, did not secure the vicious animals, never called for a

backup officer, and did not attempt to contact the dogs’ owner.

Rogers, while aware that local ordinances require the performance of an abatement

when an animal attacks another animal or livestock, claims that she could not do so because

she did not have a witness to the incident. According to both Lackey and Bennett, it is not

uncommon for officers not to take photographs in vicious dog cases when, for example, the

reporting party declines to make a witness statement. Lackey also said that, absent exigent

circumstances, officers are instructed not to enter private property without the owner’s

permission. Rogers asserts that her response was not extraordinary and did not violate

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Animal Control’s policies and procedures, as officers on numerous vicious animal calls have

failed to perform an abatement or capture an animal on the first attempt.

III. Rogers’ Termination and Sexual Harassment Complaint

On the morning of August 6, 2007, Johnson called Rogers into her office to discuss

Rogers’ handling of the two calls. Rogers perceived Johnson’s reaction to be dismissive

when she explained that her conduct was consistent with her training. Rogers, upset because

she suspected that her job was in jeopardy, met her mother for lunch, during which she

decided to submit a formal complaint about the alleged harassment. She picked up the

harassment paperwork from human resources after lunch, but decided to wait until that

evening to fill it out.

After receiving a radio call from Johnson instructing her to report to the office, Rogers

returned and had a meeting with Johnson and a representative from human resources, Dawn

Perata. Rogers was handed a piece of paper stating she had failed her probation and would

be terminated, which Johnson instructed her to sign. Johnson told her to collect her

belongings and leave. According to Johnson, she had previously consulted with human

resources about Rogers’ performance in July following the first episode with the injured dog. 

Although Johnson never discussed either call with Rogers before the morning meeting on

August 6, she had communicated with Rogers about the first episode over email on July 17,

2007.

Lackey was surprised to learn that Rogers had been terminated, because she was a

“good officer.” Hermann said that she considers Rogers to be competent in handling

incidents involving vicious animals.

Rogers filed her sexual harassment complaint with human resources the day after her

termination. The county’s human resources director, Kathy Ferguson, decided the

allegations warranted investigation and hired a private investigator. Ferguson concluded,

after consulting with Johnson, that Rogers’ termination was justified. Based on the

investigator’s report, Ferguson found that Hermann had engaged in inappropriate conduct. 

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Hermann received a warning in her file and was required to re-take the county’s online

sexual harassment training. Ferguson, while deeming the allegations against Johnson to be

unreasonable, found that Johnson failed to recognize Hermann’s inappropriate conduct.

LEGAL STANDARD

Summary judgment is appropriate when there is no genuine dispute as to material

facts and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). 

Material facts are those that may affect the outcome of the case. Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is “genuine” if there is

sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. Id. The

Court may not weigh the evidence and must view the evidence in the light most favorable to

the nonmoving party. Id. at 255.

A party seeking summary judgment bears the initial burden of informing the court of

the basis for its motion, and of identifying those portions of the pleadings and discovery

responses that demonstrate the absence of a genuine issue of material fact. Celotex Corp. v.

Catrett, 477 U.S. 317, 323 (1986). Where the moving party will have the burden of proof at

trial, it must affirmatively demonstrate that no reasonable trier of fact could find other than

for the moving party. Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007).

However, on an issue for which its opponent will have the burden of proof at trial, the

moving party can prevail merely by “pointing out . . . that there is an absence of evidence to

support the nonmoving party’s case.” Celotex, 477 U.S. at 325. If the moving party meets

its initial burden, the opposing party must then “set out specific facts showing a genuine

issue for trial” to defeat the motion. Fed. R. Civ. P. 56(e)(2); Anderson, 477 U.S. at 256. 

DISCUSSION

Rogers brings four claims for discrimination and harassment under Title VII of the

Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and California’s Fair Employment and

Housing Act (“FEHA”), Cal. Gov’t Code § 12940, as well as a fifth claim for wrongful

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 By stipulation of the parties, Johnson and Hermann have been dismissed as

defendants in all causes of action except the FEHA sexual harassment claim.

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discharge in violation of public policy.2

 Title VII provides that it “shall be an unlawful

employment practice for an employer . . . to discharge any individual, or otherwise to

discriminate against any individual with respect to his compensation, terms, conditions, or

privileges of employment, because of such individual’s . . . sex.” 42 U.S.C. § 2000e-2. 

FEHA imposes a similar proscription. Cal. Gov’t Code § 12940(a) (making it an “unlawful

employment practice” to discriminate against any person “in compensation or in terms,

conditions, or privileges of employment” because of sex). Sexual harassment violates both

Title VII and FEHA. Rene v. MGM Grand Hotel, Inc., 305 F.3d 1061, 1065 (9th Cir. 2002)

(Title VII); Cal. Gov’t Code § 12940(j)(1) (FEHA). As “California courts apply the Title VII

framework to claims brought under FEHA,” Metoyer v. Chassman, 504 F.3d 919, 941 (9th

Cir. 2007), this Court will assess the federal and state causes of action together.

Rogers alleges that her termination constituted discrimination on the basis of gender,

and advances a hostile work environment theory for her harassment claims. She also brings a

claim for wrongful termination in violation of public policy. Defendants move for summary

judgment on all claims. The Court will consider each claim in turn.

I. Discrimination

The parties agree that Plaintiff’s discrimination claims are properly analyzed under the

burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). 

The McDonnell Douglas test, which applies when discrimination cases are based on

circumstantial evidence, sets forth “successive steps of increasingly narrow focus” that allow

“discrimination to be inferred from facts that create a reasonable likelihood of bias and are

not satisfactorily explained.” Guz v. Bechtel Nat’l, Inc., 24 Cal. 4th 317, 354 (2000). The

first step is for Plaintiff to make a prima facie showing of discrimination, by providing

evidence that (1) she was a member of a protected class, (2) she was performing

competently, (3) she suffered an adverse employment action, such as termination or

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demotion, and (4) some other circumstance suggests discriminatory motive. Id. at 355. The

prima facie case, once established, creates a presumption of discrimination, which

Defendants must rebut by presenting evidence of “a legitimate reason for the action” that is

“legally sufficient to justify a judgment for the defendant.” Tex. Dep’t of Cmty. Affairs v.

Burdine, 450 U.S. 248, 255 (1981).

The burden then shifts back to Plaintiff, who must “demonstrate that the proffered

reason was not the true reason for the employment decision” in order to sustain her “ultimate

burden of persuading the court that she has been the victim of intentional discrimination.” 

Id. at 256. “She may succeed in this either directly by persuading the court that a

discriminatory reason more likely motivated the employer or indirectly by showing that the

employer’s proffered explanation is unworthy of credence.” Id. “Where the evidence of

pretext is circumstantial, rather than direct, the plaintiff must present ‘specific’ and

‘substantial’ facts showing that there is a genuine issue for trial. However, that requirement

is tempered by our observation that, in the context of Title VII claims, the burden on

plaintiffs to raise a triable issue of fact as to pretext is ‘hardly an onerous one.’” Noyes v.

Kelly Servs., 488 F.3d 1163, 1170 (9th Cir. 2007) (internal citations omitted).

The first step is for Rogers to establish a prima facie case of discrimination. She is a

member of a protected class based on her gender, and suffered an adverse employment action

in the form of termination. Although Defendants allege that Rogers’ performance declined

during her last months of employment, Rogers has put the question of her competence in

dispute by offering evidence of her positive evaluation in March and assessments by

colleagues that she excelled compared to other probationary employees. Finally, Rogers was

on the receiving end of sexually explicit conversation, questions about her personal life, and

invitations to her supervisor’s home, which she construed as sexual advances to which she

would not accede. Such circumstances are sufficient at least to suggest a discriminatory

motive in Rogers’ firing. Construing the disputed facts in Rogers’ favor, the Court finds that

she has made out a prima facie case.

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Defendants have also sustained their burden of advancing a legitimate

nondiscriminatory reason for Rogers’ termination. Defendants have presented evidence that

Rogers seriously mishandled two calls, having failed to rescue an injured dog or to properly

investigate an attack by vicious dogs. Johnson characterized both episodes as serious

infractions, and they together appear to justify the decision to conclude that Rogers had failed

her probation.

The burden of persuasion therefore moves back to Rogers and merges with her

ultimate burden of proof. The determination at this final stage hinges on which of the

accounts – the discriminatory theory advanced by Rogers, or the legitimate rationale

presented by Defendants – more likely explains Rogers’ termination. The facts on which this

conclusion rests are heavily disputed by the parties. Johnson states that Rogers violated

Animal Control procedures in her response to the calls, while Rogers asserts that her conduct

comported with her training and the behavior of more experienced officers in the field. The

parties also disagree about the frequency, content, and context of episodes that Rogers cites

as the basis for her claim of discrimination. Rogers has raised “a triable issue of fact that the

defendant[s’] proffered reason was a pretext for unlawful discrimination.” Noyes, 488 F.3d

at 1168. Defendants’ motion for summary judgment as to the discrimination claims under

Title VII and FEHA is therefore DENIED, and Plaintiff’s first and third causes of action

survive.

II. Harassment

Rogers premises her sexual harassment claims on a hostile work environment theory.

“A ‘hostile work environment’ occurs when there is a pattern of ongoing and persistent

harassment severe enough to alter the conditions of employment.” Draper v. Coeur

Rochester, 147 F.3d 1104, 1108 (9th Cir. 1998). Claims of sex-based workplace harassment

are cognizable under Title VII even “when the harasser and the harassed employee are of the

same sex.” Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 76, 82 (1998). “California

courts have adopted the [Title VII] standard for hostile work environment sexual harassment

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claims under the FEHA.” Lyle v. Warner Bros. Television Prods., 38 Cal. 4th 264, 279

(2006).

To establish a prima facie case of a hostile work environment, a plaintiff must show

that “(1) she was subjected to verbal or physical conduct of a sexual nature, (2) this conduct

was unwelcome, and (3) the conduct was sufficiently severe or pervasive to alter the

conditions of the victim’s employment and create an abusive working environment.” Craig

v. M&O Agencies, Inc., 496 F.3d 1047, 1054-55 (9th Cir. 2007). The working environment

must be considered abusive from both an objective and a subjective perspective. Harris v.

Forklift Sys., Inc., 510 U.S. 17, 21-22 (1993). Not only must the victim “subjectively

perceive the environment to be abusive,” id., but a hypothetical “reasonable person with the

same characteristics as the victim” would have to agree, in light of “the totality of the

circumstances,” Craig, 496 F.3d at 1055. “To determine whether conduct was sufficiently

severe or pervasive to violate Title VII, we look at ‘all the circumstances, including the

frequency of the discriminatory conduct; its severity; whether it is physically threatening or

humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an

employee’s work performance.’” Vasquez v. County of Los Angeles, 349 F.3d 634, 642 (9th

Cir. 2003) (quoting Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 270-71 (2001)).

The Supreme Court has counseled that the inquiry into “the objective severity of

harassment . . . requires careful consideration of the social context in which particular

behavior occurs and is experienced by its target.” Oncale, 523 U.S. at 81.

The real social impact of workplace behavior often depends on a

constellation of surrounding circumstances, expectations, and

relationships which are not fully captured by a simple recitation

of the words used or the physical acts performed. Common sense,

and an appropriate sensitivity to social context, will enable courts

and juries to distinguish between simple teasing or roughhousing

among members of the same sex, and conduct which a reasonable

person in the plaintiff’s position would find severely hostile or

abusive.

Id. at 81-82. Title VII is not “general civility code,” and its standards are designed to “filter

out complaints attacking the ordinary tribulations of the workplace, such as the sporadic use

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of abusive language, gender-related jokes, and occasional teasing.” Faragher v. City of Boca

Raton, 524 U.S. 775, 788 (1998) (internal citations omitted).

Defendants contend that Rogers’ complaints fall into the category of ordinary

workplace tribulations. Defendants acknowledge that Hermann “engaged in unwelcome

oversharing and may have lacked appropriate boundaries,” and that her photograph was

“inappropriate to show at work.” Defs.’ Reply at 5. They contend, however, that Hermann’s

actions cannot be reasonably construed as sexual advances. Defendants also admit that

Johnson encouraged Rogers to leave her girlfriend and told her she was welcome at

Johnson’s house, but argue that neither can be perceived as sexual. Defendants stress that

Johnson’s alleged physical contact with Rogers lasted only seconds, and assert that no

evidence shows the contact was anything but an attempt to comfort a distraught employee. 

Defendants also cite Rogers’ invitation of her colleagues to the “Passion Party” as evidence

that she did not subjectively perceive her working environment to be abusive.

The evidence supports Rogers’ claim that she was subjected to conduct of a sexual

nature by both Hermann and Johnson, and that it was unwelcome. Hermann explicitly

discussed her sexual activities with Rogers, invited Rogers to join her on a trip that she had

described in sexual terms, and showed off a nude photograph of herself. Although Johnson’s

conduct was less explicit, she repeatedly asked Rogers about her relationship, encouraged her

to end that relationship, invited Rogers to her home, and – on one occasion – caressed Rogers

on the leg and shoulder. Rogers found the conduct of both Hermann and Johnson

unwelcome, a sentiment she expressed to her mother and colleagues at Animal Control

before her termination.

The more difficult question is whether the severity of the conduct is sufficient to make

out a cognizable claim for sexual harassment. “[M]ere isolated incidents or offhand

comments . . . do not amount to a Title VII claim,” while “serious and pervasive harassment .

. . clearly comes within Title VII.” Craig, 496 F.3d at 1056. Rogers’ allegations fall

somewhere between those extremes. The behavior of which she complains was too frequent

to be considered isolated or offhand. Furthermore, both Johnson’s and Hermann’s conduct

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advantage of its sexual harassment procedures. However, such a defense is not available

“when the supervisor’s harassment culminates in a tangible employment action, such as

discharge, demotion, or undesirable reassignment.” Burlington Indus. v. Ellerth, 524 U.S.

742, 765 (1998). Since Rogers was terminated, the Court does not consider Lake County’s

affirmative defense on this motion.

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must be examined in light of their positions: Johnson as Rogers’ direct supervisor, and

Hermann as her principal trainer. Where one’s harasser is her “immediate boss,” the

harasser’s actions may be even more “emotionally and psychologically threatening” than

they would otherwise be. Id. Even “[w]ell-intentioned compliments by co-workers or

supervisors can form the basis of a sexual harassment cause of action if a reasonable victim

of the same sex as the plaintiff would consider the comments sufficiently severe or pervasive

to alter a condition of employment and create an abusive working environment.” Ellison v.

Brady, 924 F.2d 872, 880 (9th Cir. 1991). In Ellison, the Ninth Circuit concluded that the

plaintiff who had received two “bizarre,” “passionate,” and “disturbing” love letters from a

colleague she barely knew had made out a prima facie case for sexual harassment. Id. at

880-81. Emphasizing that it could not “say as a matter of law that [the plaintiff’s] reaction

was idiosyncratic or hyper-sensitive,” the court concluded “that a reasonable woman could

have had a similar reaction.” Id. at 880. 

Whether a reasonable person would perceive the conduct of Johnson and Hermann to

create an abusive working environment is a question this Court cannot answer on the record

of disputed facts before it. “In close cases . . . where the severity of frequent abuse is

questionable, it is more appropriate to leave the assessment to the fact-finder than for the

court to decide the case on summary judgment.” Davis v. Team Elec. Co., 520 F.3d 1080,

1096 (9th Cir. 2008). Although it is unclear whether Rogers’ claim “will ultimately persuade

the trier of fact,” she has “alleged sufficient facts to state a prima facie case” when “viewing

the facts in the record in the light most favorable to the non-moving party.” Craig, 496 F.3d

at 1057. Her claims of harassment under Title VII and FEHA therefore survive summary

judgment, and Defendants’ motion is DENIED with respect to the second and fourth causes

of action.3

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III. Termination in Violation of Public Policy

Rogers’ fifth and final cause of action is for wrongful termination in violation of

public policy. California law allows a discharged employee to “maintain a tort action and

recover damages traditionally available in such actions” when an employer’s discharge of

that employee “violates fundamental principles of public policy.” Tameny v. Atlantic

Richfield Co., 27 Cal. 3d 167, 170 (1980). Defendants argue that Lake County – the only

defendant against whom this claim is asserted – cannot be subject to tort liability because it is

a public entity. Plaintiff does not address this argument in her opposition.

Section 815(a) of the California Government Code declares that – “[e]xcept as

otherwise provided by statute” – a “public entity is not liable for an injury, whether such

injury arises out of an act or omission of the public entity or a public employee or any other

person.” The California Supreme Court has held that “section 815 abolishes common law

tort liability for public entities,” and that it specifically “bars Tameny actions against public

entities.” Miklosy v. Regents of Univ. of Cal., 44 Cal. 4th 876, 899-900 (2008). Plaintiff

does not contest, and thus appears to concede, this point. Summary judgment is therefore

GRANTED to Defendants as to Rogers’ fifth cause of action for wrongful termination in

violation of public policy, which is DISMISSED.

CONCLUSION

For the reasons set forth above, Defendants’ motion for summary judgment is

GRANTED as to Plaintiff’s fifth cause of action, and DENIED as to the four claims for

discrimination and harassment under state and federal law.

IT IS SO ORDERED.

Dated: 4/26/10 

THELTON E. HENDERSON, JUDGE

UNITED STATES DISTRICT COURT

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