2012-00121616-CU-OE

Regina Brink vs. Sacramento Society for the Blind

Nature of Proceeding: Motion for Summary Judgment and/or Adjudication

Filed By: Bishop, Michael A.

Defendants Sacramento Society for the Blind (“Society”), Heather Frank (“Frank”) and
Penny Riley’s (“Riley”) motion for summary judgment, or in the alternative summary
adjudication is denied.

Defendants’ request for judicial notice of Plaintiff’s complaint is granted.

While Defendants are correct that Plaintiff’s separate statement in opposition to the
motion does not comply with CRC, Rule 3.1350, the Court declines their request to
grant the motion on this purely procedural ground.

In this employment action, Plaintiff Regina Brink, who is blind, alleges that she was
terminated from her Volunteer Coordinator position with the Society based on her
complaints of discrimination and her disability. Plaintiff alleges causes of action for
FEHA retaliation, FEHA discrimination, defamation, and FEHA failure to prevent retaliation and discrimination.

Defendants’ separate statement includes the following. Plaintiff was hired as a
volunteer coordinator for the Society in 2004 by Riley and worked in that position until
she was terminated on April 1, 2011. Kathleen Shelvin (“Shelvin”) was Plaintiff’s direct
supervisor at the time she was terminated and Frank was the Executive Director.

On March 31, 2011, Frank received a phone call from Margie Donovan, a member of
the Blind Advisory Council who works closely with the Department of Rehabilitation (a
source of funding for Society), indicating that she received two emails from Plaintiff’s
Society email account, one containing vulgar language and sexual content and the
other containing political content regarding abortion. Ms. Donovan was offended by
the emails. Frank reviewed the emails and determined that they violated numerous
Society policies and exposed Society to withdrawal of funding and/or tax exempt
status. As a 501(c)(3) non-profit, Society is prohibited from “carrying on propaganda,
or otherwise attempting, to influence legislation” and from participating in “(including
the publishing or distributing of statements), any political campaign on behalf of (or in
opposition to) any candidate for public office.”

Frank considered a lesser punishment, but due to Plaintiff’s prior behaviors decided
termination was the only option. Frank shared the emails with Human Resources
Consultant e-VentExe which agreed that termination was appropriate. On April 1,
2011, Frank met with Shelvin to discuss the emails. Shelvin agreed that termination
was appropriate. Frank drafted a termination letter but did not provide it as Plaintiff
ultimately chose to resign. Frank and Shelvin met with Plaintiff later in the day to
inform her that she was being terminated for sending the emails. Plaintiff asked if she
could resign and was told that she could. Plaintiff met with Cherry Flanagan at Human
Resources to receive exit paperwork and confirmed her resignation. She then took her
personal belongings and left. On April 4, 2011, when Flanagan followed up with
Plaintiff regarding her resignation, she indicated that she would not be resigning.

First Cause of Action (FEHA Retaliation)

Defendants move for summary adjudication on the first cause of action for retaliation
on the basis that “Plaintiff cannot establish a prima facie case of retaliation because
Plaintiff cannot show that her disability was a substantial motivating factor for the
Society for the Blind’s decision to terminate Plaintiff.” (Not. 2:11-14.) Defendants’
memorandum of points and authorities presents no specific argument on the retaliation
claim, or for that matter the fourth cause of action for failure to prevent
discrimination/harassment. The Court notes, however, that Defendants rely upon the
identical facts for this portion of the motion as they do with respect to the motion
directed to the second cause of action for disability discrimination and the fourth cause
of action for failure to prevent, and thus the arguments with respect to these three
causes of action are essentially identical; specifically that Plaintiff cannot establish a
claim for discrimination and/or retaliation because she was terminated for legitimate,
non-discriminatory/retaliatory reasons.

In order to establish a prima facie claim for retaliation under FEHA, Plaintiff must show
that (1) she engaged in protected activity; (2) Society subjected her to adverse
employment action; and (3) there is a causal link between the adverse action and the
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protected activity. (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4 1028, 1042.) As
set forth above, Defendants’ evidence shows that Plaintiff was terminated as a result
of emails sent from Plaintiff’s work email account that violated Society policies.
Society was alerted to the emails as a result of a complaint from Margie Donovan.
The evidence is sufficient to show that Plaintiff was not terminated as a result of any
protected activity and instead was terminated for legitimate, non-retaliatory reasons.
The evidence is sufficient to shift to Plaintiff the burden of demonstrating a triable issue
of material fact.

Plaintiff has met her burden to show a prima facie case of retaliation and to
demonstrate pretext for Society’s stated reasons for terminating her employment.
Indeed, her evidence shows that beginning in April 2010, she made numerous
complaints to her supervisors regarding discrimination against non-sighted individuals
by sighted employees. (Brink Decl. ¶ 8; Brink Depo. 47:1-52:14.) She also
complained about being required to post a sign when she was away from her desk in
the bathroom due to her irritable bowel syndrome. (Brink Depo. 34:13-25.) Thus,
Plaintiff presented evidence raising a triable issue of fact as to whether she engaged in
a protected activity.

Further, her evidence shows she was subjected to multiple instances of adverse action
including being precluded from working with Access News volunteers and Access
News manager Joe Hamilton with whom she had worked with successfully for a
number of years (Brink Decl. ¶ 9; Hamilton Decl. ¶¶ 2-7, 12), being denied
accommodations in faxing documents and signature signing in addition to flexible
breaks to accommodate her irritable bowel syndrome (Brink Decl. ¶¶ 14-15), being
denied previously provided training and membership to the Directors of Volunteers in
Agencies that was need to fulfill her job requirements (Brink Depo. 119:6-122:15,
128:3-129:1; Brink Decl. ¶ 29) and ultimately being terminated in April 2011 after
seven years of working as a volunteer coordinator (Brink Decl. ¶¶ 1, 24-28).
“Retaliation claims are inherently fact-specific, and the impact of an employer’s action
in a particular case must be evaluated in context…[T]he determination of whether a
particular action or course of conduct rises to the level of actionable conduct should
take into account the unique circumstances of the affected employee as well as the
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workplace context of the claim.” ( Yanowitz, supra, 36 Cal.4 at 1052.) Thus there are
triable issues of fact as to whether Plaintiff suffered adverse action.

There are also triable issues of fact as to whether there was a causal connection
between any adverse action and the protected activity. In making a prima facie case
for retaliation, a plaintiff can establish a causal connection by “an inference derived
from circumstantial evidence, ‘such as the employer’s knowledge that the [employee]
engaged in protected activities and the proximity in time between the protected action
and the allegedly retaliatory employment decision.’” (Morgan v. Regents of University
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of California (2000) 88 Cal.App.4 52, 69-70.) Plaintiff’s evidence shows that she was
never subject to any type of discipline prior to making discrimination complaints in
Spring 2010 and had received positive evaluations prior to that time. (Riley Depo. 27:4
-22, 29:1-21; Shevlin Depo. 236:13-24; Brink Decl. ¶ 2.) As discussed above, after
making the complaints, she was precluded from working with Access News manager
Joe Hamilton whom she had worked with successfully for a number of years, denied
accommodations in faxing documents and signature signing in addition to flexible
breaks to accommodate her irritable bowel syndrome, denied previously provided
training and membership to the Directors of Volunteers in Agencies that was need to
fulfill her job requirements and ultimately terminated in April 2011.

Further, Plaintiff’s evidence allows for an inference that Society’s stated reason for
terminating her was pretextual. Indeed, the evidence shows that contrary to Society’s
claim, Ms. Donovan never complained to Frank about inappropriate emails that she
received from Plaintiff’s Society email account. (Donovan Decl. ¶¶ 3-7, 9, 10.) Ms.
Donovan also declares that contrary to Defendants’ claim, that she never forwarded
the allegedly inappropriate emails received from Plaintiff to Frank. (Id. ¶ 10.) Donovan
never discussed Plaintiff with Frank. (Id. ¶ 7.) Plaintiff declares that when she was
told she was terminated for sending inappropriate emails, she asked to see the emails
because she did not recall any and was told by Frank that they were not obligated to
show her the emails because she was an at-will employee and no reason had to be
given for terminating her. (Brink Decl. ¶ 25.) Plaintiff was never shown the emails or
told the name of the person who complained about receiving the emails from her. (Id.
¶¶ 25, 28, 31.) Plaintiff states that she never knowingly forwarded political or personal
emails from her Society account, except to her personal account. (Id. ¶ 41.) Further,
no other employee had ever been terminated for inappropriate use of email. (Frank
Depo. 134:23-25; Riley Depo. 101:1-102:9; 183:18-21, Shelvin Depo. 48:24-49:17.)
Evidence that Ms. Donovan, the very person Frank claimed called her to complain
about receiving inappropriate emails from Plaintiff, states that she never contacted
Frank to make such complaints, that Donovan never forwarded any emails received
from Plaintiff to Frank, that Plaintiff asked but was never shown the emails she
allegedly sent, and that Plaintiff began to be subjected to discipline only after she
began making complaints regarding discrimination is “substantial responsive evidence
that the employer’s showing was untrue or pretextual.” (Hersant v. California Dept. of
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Social Services (1997) 57 Cal.App.4 997, 1004-1005.) Plaintiff’s evidence sets “forth
specific facts demonstrating such weaknesses, implausibilties, incoherencies, or
contradictions in the employer’s proffered legitimate reasons…that a reasonable fact-
finder could rationally find them unworthy of credence.” ( Cucuzza v. City of Santa
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Clara (2002) 104 Cal.App.4 1031, 1038.) Plaintiff has adequately demonstrated that
triable issues of fact exist with respect to her first cause of action and Defendants’
motion must be denied.

Given the above, the Court need not consider the evidence of Plaintiff’s computer
forensic expert who inspected the emails that were allegedly sent from Plaintiff’s
Society email account and determined from the metadata that each of the three emails
alleged to have been inappropriately sent by Plaintiff were modified by Frank. (Vilfer
Decl. ¶¶ 15-19.) Plaintiff contends that Frank accessed her email account and
manipulated her emails to make it appear as if she sent inappropriate emails from her
work account. Defendants devote most of their reply arguing that this theory of
manipulation has never been presented in the case until now and in any event is pure
speculation as the expert never declares how the emails were modified, only that they
were and in any event that they were modified more than one month after Plaintiff
originally sent them in March 2011. The Court notes that the evidence above,
specifically, that the individual Defendants claim complained about receiving the
emails from Plaintiff has declared that she never made such complaints or forwarded
any emails from Plaintiff to Frank, that Plaintiff asked but was never shown the emails
she allegedly sent, and that she began to be subjected to discipline only after she
began making complaints regarding discrimination was more than sufficient on its own
to demonstrate the existence of a triable issue of material fact regarding pretext.

The Court recognizes Defendants’ argument that Plaintiff was required to present even
stronger evidence to overcome the presumption against discrimination/retaliation
because of the “same actor” inference. Defendants argue that such an inference
applies because Riley hired Plaintiff, gave her positive reviews and was part of
management when Plaintiff was terminated. The Court simply notes that the inference
is not applicable here as the decision maker with respect to Plaintiff’s termination,
Frank, was not involved in hiring Plaintiff. (Frank Depo. 12:13-19.)

As a result, the motion with respect to the first cause of action is denied.

Second and Fourth Causes of Action (FEHA Discrimination and FEHA Failure to
Prevent Discrimination/Retaliation)

Defendants move for summary adjudication as to these causes of action on essentially
the same grounds as the first cause of action. That is, they argue that Plaintiff cannot
establish she was discriminated against because they had legitimate non-
discriminatory reasons for terminating her and because she cannot establish
discrimination or retaliation, she cannot establish her failure to prevent claim.

As discussed above, in connection with the first cause of action, Defendants rely upon
the identical evidence for their motion directed to the second and fourth causes of
action. As seen above, Plaintiff has demonstrated triable issues of fact with respect to
whether Defendants’ stated reasons for terminating her were pretextual. In addition,
she offers additional evidence in connection with her opposition to this portion of the
motion. Specifically, she offers evidence that management treated blind employees
differently than sighted employees. For example, no accommodations were given to
blind employees who needed extra time to complete tasks. (Brink Decl. ¶ 4.) Under
previous management, sensitivity training was mandated and a disability compliance
committee was formed, though when Frank became the Executive Director, the
committee never met and there was no more sensitivity training. (Brink Decl. ¶¶ 3, 4.)
Defendant Riley referred to sight impaired employees as “you people” on numerous
occasions and Frank stated that she was not ready to “unleash those people to the
community”. (Hamilton Decl. ¶¶ 8-9.) Management would spy on sight impaired
employees by looking by quietly walking through the hallways and looking in at their
computers and sitting outside their offices to overhear what they were saying.
(Hamilton Decl. ¶ 10.) In addition to the evidence already discussed above in
connection with the retaliation cause of action, Plaintiff has set “forth specific facts
demonstrating such weaknesses, implauisibilties, incoherencies, or contradictions in
the employer’s proffered legitimate reasons…that a reasonable fact-finder could
rationally find them unworthy of credence.” (Cucuzza v. City of Santa Clara (2002)
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104 Cal.App.4 1031, 1038.) Given the above, Plaintiff has adequately demonstrated
that triable issues of fact exist with respect to her second and fourth causes of action
and Defendants’ motion must be denied.

Third Cause of Action (Defamation)

Defendants move for summary adjudication on the basis that there is no evidence that
Plaintiff was defamed and that the alleged statements are protected under the
common interest privilege and the privilege afforded to statements made in the course
of quasi-judicial proceedings. In this cause of action, Plaintiff alleges that Defendants
defamed her by stating that she was a sexual harasser, poor performer and not a team
player. “The code definition of libel is very broad and has been held to include almost
any language which, upon its face, has a natural tendency to injure a person’s
reputation, either generally, or with respect to his occupation.” (Cameron v. Wernick
(1967) 251 Cal.App.2d 890, 893.) Defendants’ evidence shows that Plaintiff claims that through May 2010 until the time
she was terminated, it was regularly communicated to Shelvin, and others that Plaintiff
was not doing her job. Plaintiff claims that there was an implication about her not
doing her job through an investigation conducted by a consumer advice committee,
though that committee conducted its own independent review of each department to
determine volunteer needs was the review was not ordered by Frank and was not
related to Plaintiff’s work performance. Plaintiff also claims that there was a perception
by Access News volunteers that she was not allowed to come to Access News any
longer because she had done something wrong though the decision to change
Plaintiff’s role in Access News was based on logistical reasons not based on anything
Plaintiff did wrong. Plaintiff also claims that after she was terminated that a client told
her that the client was told that Plaintiff sent out an email regarding a right to life bill.

Plaintiff applied for unemployment benefits on or about April 3, 2011, and on April 12,
2011, pursuant to a request from the EDD, Flanagan provided documents to the EDD
related to Plaintiff’s termination, including a termination letter written by Frank which
ultimately was not given to Plaintiff based on her decision to resign. On May 3, 2011,
Frank wrote the EDD a letter requesting an appeal of its decision regarding Plaintiff’s
application for unemployment benefits but ultimately did not provide that letter to the
EDD because it decided against appealing. On June 8, 2011, the EDD held a hearing
and while Frank, Shelvin and Flanagan were present they did not contest the decision
and Plaintiff was awarded unemployment benefits. Plaintiff testified at the EDD
hearing that she believed her reputation was injured based on a letter placed in her
unemployment file stating that she should be denied unemployment because she was
guilty of sexual harassment. Plaintiff does not recall any defamatory statement made
by Defendant Riley.

Here, assuming Defendants met their initial burden, Plaintiff demonstrated triable
issues of material fact. Plaintiff’s evidence shows that in April 2010, Frank published a
letter to Flanagan, a Human Resources employee, which stated that Frank had
received numerous complaints regarding Plaintiff’s conduct in the workplace, that she
had been using work time for personal business, saying negative things about Society
to staff and outsiders, that she is unresponsive and fails to get volunteers that staff
requested, that she gets angry when people approach her with volunteer requests.
Plaintiff submits evidence that these statements were not true. (Brink Decl. ¶¶ 31-37.)
In addition, in April 2010, Frank also published a letter to Flanagan and Shevlin stating
that Plaintiff was unprofessional and disruptive, distracting and unprofessional,
socialized but did not work, and failed to respond to volunteer requests in a timely,
appropriate manner. Plaintiff again declares that these statements were not true.
(E.g., Brink Decl. ¶¶ 39-40.) Both letters were placed in her personnel file. In the April
2011 termination letter to Plaintiff which Frank wrote and never gave to Plaintiff, but
which was read by Flanagan and Shevlin and placed in Plaintiff’s personnel file, Frank
stated that she received emails forwarded from someone not affiliated with Society
which originated from Plaintiff’s email account and contained inappropriate material.
As already set forth above in connection with the other causes of action, Plaintiff has
submitted evidence that Ms. Donovan never called Frank to complain about
inappropriate emails received from Plaintiff and never forwarded any emails to Frank
that she received from Plaintiff. (Donovan Decl. ¶¶ 3-7, 9, 10; Brink Decl. ¶ 25.) At the
termination meeting on April 1, 2011, Shevlin repeated the statements that Frank had
written in the termination letter. (Brink Decl. ¶ 25.)

Plaintiff’s evidence thus creates a triable issue of fact as to whether Defendants are
liable for defamation as her evidence, if credited by a trier of fact shows that
Defendants made untrue statements which had a natural tendency to injure Plaintiff
with respect to her occupation. Further, publication of statements in inter-office
memoranda is sufficient to support liability for defamation. (Biggins v. Hanson (1967)
252 Cal.App.2d 16.)

In addition, Defendants’ argument that the statements are protected by an absolute
privilege because the statements were made in the course of an unemployment
insurance benefit hearing is rejected. Civil Code § 47(b) provides that a publication is
privileged when made in “any other official proceeding authorized by law.” (Civ. Code
§ 47.) However, Plaintiff is not relying upon any statements made at her benefit
hearing with the EDD.

Defendants also argue that the statements Plaintiff relies upon were statements of
mutual interest protected by the conditional privilege in Civil Code § 47(c) which
provides a conditional privilege for publications made “without malice, to a person
interested therein, (1) by one who is also interested, or (2) by one who stands in such
a relation to the person interested as to afford a reasonable ground for supposing the
motive for the communication to be innocent, or (3) who is requested by the interested
person to give the information.” Defendants reason that the statements at issue were
“made in a spirit of cooperation and consisted simply of recitations of information
pertaining to Plaintiff’s work performance and the circumstances leading up to and
forming the basis of her termination.” However, malice overcomes the conditional
privilege and Plaintiff’s evidence is sufficient to demonstrate triable issues of material
fact in that regard. To show malice a plaintiff must demonstrate that a defamatory
publication was motivated by hatred or ill will towards the plaintiff or that the defendant
lacked reasonable grounds for belief in the truth of the publication. (Noel v. River Hills
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Wilsons, Inc. (2003) 113 Cal.App.4 1363, 1370.) Malice “may be proved directly or
indirectly, that is to say by direct evidence of the evil motive and intent, or by legitimate
inferences to be drawn from other facts and circumstances in evidence…” (Burnett v.
Nat. Enquirer, Inc. (1983) 144 Cal.App.3d 991, 1007-1008.) “Whether malice may or
may not be inferred from the intrinsic evidence which the publication affords is for the
trier of fact to say.” (Shumate v. Johnson Publishing Co. (1956) 139 Cal.App.2d 121,
136.) Here, Plaintiff’s evidence shows, for example, that while Defendants stated that
she was terminated because Ms. Donovan complained about Plaintiff sending
inappropriate emails, Ms. Donovan stated that she never made such a complaint. This
evidence could allow a reasonable trier of fact to infer that Defendants made the
statement regarding the circumstances of Plaintiff’s termination with ill will or at a
minimum, lacked reasonable grounds to believe that the statement was true. Thus,
this evidence raises a triable issue of material fact that Defendants made at least one
statement with malice.

Finally, the Court notes that while Defendants suggest that Plaintiff will be required to
prove special damages, it is enough to state for purposes of the instant motion that the
statements Plaintiff claims are defamatory, for example, that she was terminated for
sending inappropriate emails containing vulgar and sexual content from her work
email, are statements that are defamatory on their face as they naturally tend to injure
a person in their occupation. Special damages need not be shown for such
statements. “Where a libelous statement ‘is defamatory on its face, it is said to be libel
per se, and actionable without proof of special damage.’ [citation omitted].” (Burrill v.
Nair (2013) 217 Cal.App.4th 357, 382.)
However, the Court agrees that the motion should be granted as it relates to
Defendant Riley. The only evidence Plaintiff has with respect to any statement by
Riley is that Riley yelled at her in the presence of another person that “you people
need to learn your way around without bothering everybody.” (Brink Decl. ¶¶ 5, 6.)
Plaintiff fails to address how this statement could be considered defamatory.

As a result, the motion is denied as to the third cause of action except as to Defendant
Riley as to whom it is granted.

In sum, the motion for summary adjudication is denied as to the first, second, third,
and fourth causes of actions, except as to the third cause of action asserted against
Defendant Riley as to which it is granted. Having failed to obtain summary
adjudication on all causes of action in the complaint, the motion for summary judgment
is denied.

The Court notes that Defendants evidentiary objections are directed to the facts stated
in Plaintiff’s opposition to Defendants’ separate statement of material facts. Indeed, in
the entire 59 page document, every single objection is directed to a specific “fact” set
forth in Plaintiff’s opposition separate statement. The Court, however, only rules on
objections to specific evidence, not “facts” set forth in a separate statement. In any
event, even if the Court were able to parse out the specific evidence that Defendants
were attempting to object to (e.g., the evidence cited in support of the facts in Plaintiff’s
opposition separate statement), the objections would be overruled.

Plaintiff shall prepare for the Court’s signature and order pursuant to CCP § 437c(g)
and CRC Rule 3.1312.