Anderson v. City of San Francisco (169 F. Supp. 3d 995, 2016)

ORDER GRANTING IN PART DEFENDANT’S MOTION FOR SUMMARY JUDGMENT; DENYING PLAINTIFF’S MOTION TO AMEND; DENYING MOTION TO SEAL

Re: Dkt. Nos. 44, 67, 77

Donna M. Ryu, United States Magistrate Judge

This action is an employment dispute between Plaintiff Lawanda Anderson and her employer, Defendant City and County of San Francisco (“CCSF”). Plaintiff asserts five claims for relief: federal and state claims for race discrimination and retaliation pursuant to Title VII and the California Fair Employment and Housing Act, (“FEHA”), and a FEHA claim for failure to prevent discrimination. Before the court is Defendant’s motion for summary judgment or partial summary judgment. [“MSJ,” Docket No. 44.] The court held a hearing on December 10, 2015. For the reasons stated below, the MSJ is granted in part.

On December 21, 2015, Plaintiff filed a motion for leave to file a second amended complaint. [Docket 77.] This matter is suitable for determination without oral argument. Civil L.R. 7-l(b). For the reasons stated below, this motion is denied.

Plaintiffs motion to file under seal the Declaration of Kevin Brunner and all attached exhibits [Docket No. 67] is denied for the reasons stated below.

I. FACTS

The following facts are undisputed unless otherwise stated.

A. Background Regarding Plaintiffs Employment

Plaintiff currently works as a paramedic for the San Francisco Fire Department (“SFFD” or “Department”), where she was hired in March 2006. For most of her employment, Plaintiff was assigned to Station 49, where all SFFD paramedics and Emergency Medical Technicians (EMTs) are stationed. Plaintiff is one of several African Americans, and the only African American female out of the approximately 110 paramedics and EMTs at Station 49.

The parties did not provide a basic description of the Department’s organizational structure, nor did they identify the supervisors who have had decision-making authority regarding issues affecting Plaintiff. The court was able to glean the following incomplete picture through its review of the record. Since 2010, Station 49 has been commanded by Assistant Deputy Chief in charge of Emergency Medical Services (EMS) Jeff Myers. Myers reports to Deputy Chief of Operations Mark Gonzales, who in turn reports to SFFD Chief Joanne Hayes-White. Myers states that as EMS Chief, he is not involved in recommending, carrying out or putting forward discipline for Station 49 members. Plaintiff disputes this, but does not point to any contradicting evidence. Hayes-White is the final decision maker for discipline of up to a ten-day suspension. In the event that Hayes-White imposes such discipline, the member can appeal the decision to the San Francisco Fire Commission (“Fire Commission”). For discipline exceeding a ten-day suspension, including termination, the Fire Commission is the final decision maker. In such instances, Hayes-White makes a recommendation to the Fire Commission, which holds a hearing to decide whether to impose the discipline.

The San Francisco Department of Human Resources (“DHR”) handles charges of discrimination against the SFFD, including charges filed with the Equal Employment Opportunity Commission (“EEOC”) and the California Department of Fair Employment and Housing (“DFEH”). SFFD Departmental Personnel Officer Jesusa Bushong receives and reviews Equal Employment Opportunity (“EEO”) complaints and sends them to DHR. DHR determines whether the complaint should be investigated and whether the incident should be referred to Hayes-White’s office for possible disciplinary review. Deputy Chief of Administration Guzman supervises Bushong. He also oversees the Investigative Services Bureau (ISB), which currently includes Captain Andy Za-noff and Acting Captain Sheila Hunter.

B. Key Incidents

In her lawsuit, Plaintiff challenges a number of incidents which the court now describes in chronological order.

July 2006: Complaints about Moulton

In July 2006, Plaintiffs partner John Moulton, a white male paramedic, used the word “nigger” while talking on the phone. Plaintiff was offended and asked Moulton not to use the word in her presence. Plaintiff verbally complained about Moulton’s treatment of patients and participated in several investigations of Moulton’s conduct towards patients. SFFD terminated Moul-ton in 2007 during his probationary period. Plaintiff claims that after Moulton’s termination, his Mend Scott Hellesto told people at Station 49 that he blamed Plaintiff for Moulton’s termination, and planned to “make her life miserable” for it. Anderson Decl. ¶ 8.

October 2007: Anonymous Note

On October 12, 2007, Plaintiff received an anonymous note in her locker that stated: “What the fuck is wrong with you? Why don’t you understand about our lieutenants [sic] order us not to park in the middle? Why must you flaunt every rule? Why you think you’re exempt? You’ve got to fuck it up for everyone else don’t you?” Plaintiff understood the note to be a complaint that she had parked a vehicle in an inappropriate location.

Plaintiff reported the incident to her supervisor, Lieutenant Norm Caba, and gave him the note. Caba forwarded it up the chain of command. Assistant Deputy Chief Pete Howes conducted an investigation in which he questioned women with access to the women’s locker room and reviewed Patient Care Reports from the same shift to try to match the handwriting on the note. Howes was not able to determine who wrote the note, and no one admitted to writing it. According to Plaintiff, SFFD could have determined who wrote the note if it had devoted more resources to the investigation. Plaintiff believed that the note was based on her race because she was the only African American female, at Station 49, and four of her coworkers were also parked in the center aisle of the parking lot that evening.

November 2007: Parking Reprimand

On November 22, 2007, Caba wrote a General Form reprimanding Plaintiff for non-compliance with parking practices. Plaintiff submitted her own General Form to Hayes-White explaining her side of the story. Caba’s written reprimand was removed from her file and no disciplinary action was taken against her. Defendant did not investigate Plaintiffs complaint to the Hayes-White that Caba had made a false report by reprimanding her.

July 2009: Verbal Altercation with Hellesto

On July 21, 2009, Plaintiff asked her partner, Scott Hellesto, if he needed anything. He replied, “Nope, you just sit yourself right there,” pointing to the driver’s seat, “put on your bow tie and say ’yes sir, no sir’ and drive.” Anderson Decl. ¶ 19. Plaintiff believed that Hellesto’s statement was inappropriate and racist.

On July 23, 2009, Plaintiffs partner had not arrived at Station 49 when her shift was about to begin. Plaintiff went into the kitchen to talk to watch supervisor Lieutenant Paul O’Kane. Hellesto was in the kitchen with two other paramedics. Plaintiff asked O’Kane about the whereabouts of her partner. Hellesto loudly commented that Plaintiff was snitching on her partner for being late. Plaintiff left the kitchen, then returned and confronted Hellesto, resulting in a verbal altercation. Hellesto called Plaintiff a “fucking manhole” and a “snitch bitch” and taunted her. Hellesto acted as if he were going to hit her until he was held back. O’Kane intervened and broke up the fight. Both Hellesto and Plaintiff used expletives during the confrontation.

The SFFD investigated the incident. Chief Robert Serrano interviewed Plaintiff. She told him that she felt that Helles-to singled her out because she was a Black female. Serrano referred Plaintiffs EEO complaint to Jesusa Bushong, as well as Linda Simon in DHR. They determined that the incident should be investigated as a disciplinary matter, and dismissed the EEO complaint on July 29, 2009.

On December 18, 2009, the Department notified Plaintiff that it intended to impose a two-day suspension based on two violations: 1) improper, unprofessional and disrespectful conduct and 2) use of unacceptable language. After a Skellyheaxiag, and at the recommendation of Hearing Officer, then-Deputy Chief of Administration Gary Massetani, Hayes-White reduced the discipline and imposed a one-day suspension on March 5, 2010, because Plaintiff had not been the initial aggressor. Plaintiff did not appeal her one-day suspension. Hellesto received a two-day suspension because he had initiated the conflict.

July 2009: Early Departure from Shift

On July 24, 2009 Plaintiff and her partner returned to Station 49, restocked and cleaned the ambulance, and then left approximately fifteen minutes before their shift ended. Plaintiff states that it is common daily practice at Station 49 for crews to leave prior to the shift end if they have completed their duties. Lieutenant O’Kane called Plaintiff and asked why she left early. Plaintiff asserts that O’Kane initiated disciplinary action against her, but does not offer evidence of any action taken.

September 2009: Incident at Riordan High School

On September 11, 2009, Plaintiff and her partner, Brian Washington, responded to a medical call at Riordan High School where a fifteen year-old football player had dislocated his shoulder during a game. When they reached the scene, the patient’s father asked what had taken the ambulance so long to arrive. As Plaintiff treated the patient, the father became increasingly upset and tension escalated. Plaintiff cut off the patient’s football jersey, exposing his upper body. Noticing that some onlookers were taking out cameras, Plaintiff told the observers to put the cameras away. The father responded that one of the observers was the patient’s mother, and that she could take pictures. Plaintiff stated that they would take the patient to San Francisco General Hospital; the father disagreed and wanted him taken to UCSF.

After removing the patient’s jersey and football padding, Plaintiff loaded him into the ambulance and started to splint his shoulder. Plaintiff states that the father became more and more agitated as she treated the patient. Plaintiff states that she felt unsafe, and that the father became irate and began screaming and yelling and shaking the ambulance. The patient began to cry. In response, Plaintiff locked the ambulance door. Washington was outside the ambulance when Plaintiff locked the door. Defendant claims that locking the door escalated, rather than diffused, the father’s anger.

Plaintiff called for backup, and the Department dispatched a fire engine. While Plaintiff was in the locked ambulance, Washington spoke with the father, who continued to yell. One of the responding firefighters told Plaintiff that the father did not want Plaintiff touching his son, so she stopped treating the patient. According to Plaintiff, she asked Washington to take over the call and to continue treatment, but he said that he did not want to be involved. Washington disputed this, as described below. Approximately an hour after the ambulance had arrived, the father called 911 and complained about the handling of the call. The father complained that the paramedics were taking too long to treat his son and that they had not yet transported him to the hospital.

Plaintiff filed a General Form documenting the incident, and complained to Captain Ali about Washington’s lack of support. In January 2010, Deputy Chief Patrick Gardner commenced an investigation into the incident. The investigator, Captain Andy Zanoff, interviewed the mother, father, Washington, and other witnesses. According to Zanoffs report, Washington stated that the father started banging on the side of the ambulance after Plaintiff locked the ambulance door. Washington stated that he stood on the bumper and tried to speak to Plaintiff through the window to tell her to unlock the door, and that the patient’s mother also tried to speak to Plaintiff through the window. Washington also stated that Plaintiff ignored him the entire time, did not respond to his treatment suggestions. He reported that when he asked Plaintiff if she wanted him to take over the call, she ignored him. He stated that Plaintiff never asked him to take over the call for her.

Zanoff found that Plaintiffs conduct violated several departmental rules and regulations. Citing to the Zanoff declaration, Plaintiff claims that Zanoff recommended that she be disciplined for her conduct. However, the Zanoff declaration does not state that he recommended discipline; to the contrary, in the deposition testimony attached to his declaration, he testified that he did not dictate or recommend discipline, and his investigation report has no disciplinary recommendation.

Hayes-White reviewed the investigative report and in February 2010, notified Plaintiff of her intention to impose a four-day suspension for violating the following Department Rules and Regulations: 1) Section 8907-Safety Rules; 2) Section 3909-False Reports; 3) Section 3918 — Altercation; 4) Section 3919 — Proper Behavior; 5) Section 3921 — Inattention to Duty; 6) Section 3923 — Acts Detrimental to the Welfare of the Department; 7) San Francisco Emergency Medical Services Agency Extremity Trauma — Protocol P-033; and 8) SFEMSA Pain Control — Protocol P-019.

On April 19, 2010, Hearing Officer Mas-setani held a Shelly hearing. He recommended withdrawing the first two charges. He concurred with the proposed four-day suspension of Plaintiff. He also recommended that Washington be coached on the Patient Care Report review procedures.

On May 11, 2010, Hayes-White notified Plaintiff that she intended to impose a four-day suspension for the six remaining charges. Hayes-White believed that Plaintiffs action of locking the father out of the ambulance escalated the confrontation between her and the patient’s father, and was not appropriate under the circumstances. Hayes-White did not find credible Plaintiffs claim that she was in physical danger, as the incident occurred during the afternoon at a crowded high school football game.

Plaintiff appealed her suspension to the Fire Commission. The Fire Commission held a hearing on September 27, 2010, where it heard testimony and reviewed other evidence. Fire Commissioners Naka-jo, Evans, Lau, and Hardeman unanimously sustained three of the six charges against Plaintiff: 1) Section 3918 — Altercation; 2) Section 3919 — Proper Behavior; and 3) Section 3923 — Acts Detrimental to the Welfare of the Department. The Commission voted three to one to affirm Hayes-White’s decision to impose a four-day suspension.

Early 2011: Request for Shift Change

In early 2011 Plaintiff requested to change from night to day shift for personal reasons. On April 11, 2011, Plaintiffs request was denied. Plaintiff claims that Chief Myers denied her request. Defendant states that Chief Myers did not make the decision, but instead referred Plaintiffs request to the Assignment Office for review and decision.

According to Plaintiff, shortly after she submitted her request, an unnamed white female with less seniority was given the earlier shift. Defendant disputes this.

April 2011: Comment by Dr. Sporer

On April 15, 2011, Plaintiff was at San Francisco General Hospital. Dr. Carl Sporer, who at the time was SFFD’s EMS Medical Director, made an offensive racist comment to her. Dr. Sporer mistook Plaintiff for another African American paramedic, and when he realized his mistake, he said, “I get you dark girls mixed up.” Dr. Sporer did not make any other offensive comments to Plaintiff. Plaintiff reported the comment to Bushong, who reported the comment to DHR. Because Dr. Sporer was employed by UCSF and not CCSF, DHR referred the matter to the UCSF human resources department.

Bushong also consulted with DHR regarding the substance of Plaintiffs complaint. Bushong and DHR concluded that because Dr. Sporer’s comment was a onetime occurrence, it did not rise to the level of workplace hostile environment harassment or disparate treatment. Bushong sent Plaintiff a letter explaining this finding on April 18, 2011.

July 2011: Captain Calls Plaintiff Regarding Missing Laptop

On July 6, 2011, Captain Raymond Crawford called Plaintiff after she finished her shift and told her that the crew could not find the laptop that was supposed to be in her ambulance. Crawford ordered her to return to work and prepare a General Form, which she did. After turning in the General Form, Plaintiff was told that the crew had found the laptop in the ambulance.

July 2011: First EEOC Complaint

On July 28, 2011, Plaintiff filed a complaint of face and gender discrimination and retaliation with the U.S. Equal Employment Opportunity Commission (EEOC). Plaintiffs EEOC charge included her discipline resulting from the 2009 Riordan High School incident, Dr. Sporer’s comment, her altercation with Hellesto, the anonymous note left in her locker, and the incident in which her supervisor asked her to locate the laptop. Hayes-White was notified of Plaintiffs complaint on about August 4, 2011. SFFD submitted a response to the EEOC Charge on September 30, 2011.

August 2011: Coaching By Captains Salan and Filiss

In August 2011, Supervising Captains Fred Salan and Elizabeth Filiss coached Plaintiff about two separate incidents. On August 18, 2011, Plaintiff asked Salan if she could partner with Michael Fields, another paramedic, and said, “I don’t know if anything is going on, I don’t know if they (Fields and his current partner) can work together, I don’t know.” Anderson Decl. ¶ 37. Salan took Plaintiffs comment to mean that Fields and his partner might not be able to work together. Salan talked to Fields and his partner and found that there was no reason that they could not work together. He then consulted his supervisor, Myers, who instructed him to talk to Plaintiff. During Plaintiffs counseling session, Salan acknowledged that there may have been a misunderstanding about Plaintiffs comments. Plaintiff filed a complaint with Hayes-White about the Salan counseling, claiming that she was being singled out for discriminatory and retaliatory treatment. Hayes-White chose not to investigate the matter and determined that there were no rule violations.

On August 23, 2011, Plaintiff left her shift several minutes early. Rescue Captain Elizabeth Filiss called Plaintiff and counseled her for leaving her shift early and leaving her partner to clean up the ambulance. Plaintiff explained that she had cleaned the ambulance before she left. Fil-iss informed Plaintiff that there was other work to be done and that Plaintiff should not have left early. Plaintiff filed a complaint with Hayes-White claiming that Fil-iss’s counseling was unjust, that she was the victim of discrimination and retaliation, and that Defendant should have investigated what Plaintiff considered to be aggressive and unnecessary counselings.

There is no indication that either of these counseling sessions was documented in Plaintiffs employment record.

October 2011: EMT Overtime Shift

Plaintiff worked an EMT overtime shift. Lieutenant Neuneker of the Assignment Office initially was going to pay Plaintiff for the shift at the EMT rate instead of the correct paramedic rate. Plaintiff complained and was then paid overtime for the shift at the paramedic rate.

March 2012: Second EEOC Complaint

On March 27, 2012, Plaintiff filed a second EEOC charge. It claimed race and gender discrimination and retaliation based on the counseling she received in August 2011 from Filiss and Salan, and an investigation of alleged misconduct regarding Plaintiffs demeanor toward a patient in custody at the police station. SFFD was notified of the second complaint on March 30, 2012, Hayes-White was notified of the charge on April 3, 2012, and the Department submitted a response on May 23, 2012.

September 2012: Accident in Station 49 Parking Lot

On September 24, 2012, Plaintiff was driving an ambulance and hit a parked car in the Station 49 parking lot. Plaintiff did not report the incident because there was no damage to the parked ear. A Station 49 employee submitted an anonymous General Form to the Deputy Chief of Operations documenting the incident.

On February 1, 2013, following an investigation and a Shelly hearing, Hayes-White imposed a two-day suspension for violation of the Department’s Vehicle Operations Manual Accident Procedures. Plaintiff appealed the suspension to the Fire Commission, which held a hearing. On May 31, 2013, Fire Commissioners Hardeman, Evans, Covington, and Carmignani unanimously found Plaintiff guilty of violating the Department Rules and Regulations, but reduced the two-day suspension to a written reprimand.

October 2012: Plaintiff Misses WDO Shift

On October 19, 2012, Plaintiff did not report for a mandatory overtime shift or ‘WDO”. Under Department policy, the Assignment Office posts a list of paramedics hired for a WDO on the day before the scheduled WDO. It is the paramedic’s duty to check the list to see whether the paramedic was scheduled to work a WDO the next day. On October 18, 2012, the Assignment Office posted the WDO list for October 19, 2012 around 12:10 pm, which was before the end of Anderson’s shift, but after the time that the list was normally posted. Plaintiff checked the list earlier in the day and did not see her name. She did not check the list at the end of her shift.

Plaintiff did not show up to work her WDO on October 19, 2012. The captain on duty called Plaintiff. She informed him that she was not aware that she had been scheduled for a WDO but that she could come in. At that point, Plaintiff was already more than thirty minutes late for her shift, and was therefore considered AWOL. The Department imposed a one-day suspension, which Plaintiff served on October 19, 2012, the day she had been assigned to work the WDO.

December 2012: Captain Schorr Reviews Plaintiffs Patient Care Reports

Captain Justin Schorr oversaw the paramedics’ Patient Care Reports. Plaintiff claims that in December 2012, Schorr began to review all of Plaintiffs charts, looking for mistakes and critiquing her for minor ones. Defendant contends that Schorr’s job was to review patient care reports for quality control. Defendant asserts that Schorr critiqued other paramedics regarding deficient patient care reports, and did not single out Plaintiff. There is no evidence that Schorr’s critiques were documented in Plaintiffs employment file.

July 2013: Plaintiffs Car is Vandalized in the Station 49 Parking Lot

On July 30, 2013, Plaintiff parked her car overnight in the Station 49 parking lot, which is locked and enclosed by a fence topped with barbed wire. The next day, Plaintiff noticed a pool of fluid under her car that appeared to be coolant. Plaintiffs car overheated and she had her car towed to her mechanic for repairs. Plaintiff filed a General Form reporting that her car had been vandalized. Plaintiff reported that her mechanic told her that there were two holes in her radiator and that the damage appeared intentional. Zanoff investigated and found insufficient evidence to charge anyone with disciplinary action. Plaintiff claims that Zanoff s investigation was inadequate. Plaintiff filed a stress claim after the incident stating that she could no longer work at Station 49 because she feared for her safety. SFFD placed her on temporary modified duty.

2013-2015 Fire Academies

1. 115th Fire Academy

Beginning in 2012, SFFD offered Station 49 paramedics the opportunity to cross train as firefighters. Starting with the 114th Fire Academy class, SFFD reserved a certain number of spots in the Academy for Station 49 members. Initially, SFFD selected members to participate in the Academy based on a combination of their seniority and their score on the eligible list for the H-2 firefighter position. Later, members became eligible based solely on seniority.

Based on her seniority, Plaintiff became eligible to participate in the 115th Academy class which took place in 2013. Hayes-White did not select Plaintiff. Plaintiff claims that this was discriminatory and retaliatory. Defendant claims that Hayes-White did not select Plaintiff because of her policy to consider a candidate’s disciplinary record over the last one to three years.

2. 117th Fire Academy

In August 2014, Plaintiff was one of fifteen members of Station 49 selected to participate in the 117th Fire Academy. The Fire Academy is a seventeen-week training on the basic skills required to be a firefighter. Station 49 members who are already EMTs do not participate in the first two weeks, which cover EMT skills. The next fifteen weeks cover fire suppression skills. Recruits learn how to perform exercises involving fire hoses, knots, hydrants, different size ladders, and other equipment. In the 117th class, thirteen instructors trained recruits in fire suppression skills and conducted weekly skills tests. Instructors used evaluation sheets listing each task that needed to be performed for a given test, and marked down any task that the recruit performed incorrectly. Recruits who did not perform well on the tests received deficiency points based on their test scores. Station 49 members who received more than sixteen deficiency points in fifteen weeks were recommended for release from the Academy. Recruits who participated in all seventeen weeks could accumulate up to twenty deficiencies, but this included up to four deficiencies during the two-week EMT training. Plaintiff failed a number of tests, received eighteen deficiency points, and was dismissed from the 117th Fire Academy.

3. 118th Fire Academy

In August 2015, Plaintiff and another paramedic who had also failed out of the 117th Fire Academy were offered positions in the 118th Fire Academy Class. Plaintiff was dismissed from the 118th Fire Academy on November 10, 2015.

II. PROCEDURAL HISTORY

Plaintiff filed an EEOC charge on July 28, 2011, which was cross-filed with the DFEH. Plaintiff filed a second related charge on March 27, 2012. The EEOC issued a Right to Sue Notice on September 6, 2013. Plaintiff filed her initial complaint on December 2, 2013. [Docket No. 1.] On January 13, 2015, Plaintiff filed an amended complaint to add allegations related to her release from the Fire Academy. First Amended Complaint (“FAC”) [Docket No. 30.] On December 21, 2015, Plaintiff filed a motion for leave to file a Second Amended Complaint to add allegations about her dismissal from the 118th Fire Academy. [Docket No. 77-1.]

III. LEGAL STANDARD

A court shall grant summary judgment “if.. .there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The burden of establishing the absence of a genuine issue of material fact lies with the moving party, see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), and the court must view the evidence in the light most favorable to the non-movant. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A genuine factual Issue exists if, taking into account the burdens of production and proof that would be required at trial, sufficient evidence favors the non-movant such that a reasonable jury could return a verdict in that party’s favor. Id. at 248, 106 S.Ct. 2505. The court may not weigh the evidence, assess the credibility of witnesses, or resolve issues of fact. See id. at 249, 106 S.Ct. 2505.

To defeat summary judgment once the moving part has met its burden, the non-moving party may not simply rely on the pleadings, but must produce significant probative evidence, by affidavit or as otherwise provided by Federal Rule of Civil Procedure 56, showing that a genuine issue of material fact exists. T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir.1987). In other words, there must exist more than “a scintilla of evidence” to support the non-moving party’s claims. Anderson, 477 U.S. at 252, 106 S.Ct. 2505. Conclusory statements without factual support are insufficient to defeat a motion for summary judgment. Surrell v. Cal. Water Serv. Co., 518 F.3d 1097, 1103 (9th Cir.2008). Similarly, “[w]hen opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts” when ruling on the motion. Scott v. Harris, 550 U.S. 372, 127 S.Ct. 1769, 1776, 167 L.Ed.2d 686 (2007).

On an issue where the nonmoving party will bear, the burden of proof at trial, the moving party can prevail merely by pointing out to the district court that there is an absence of evidence to support the nonmoving party’s case. Celotex, 477 U.S. at 324-25, 106 S.Ct. 2548; Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir.2007). If the moving party meets its initial burden, the opposing party must then set out specific facts showing a genuine issue for trial in order to defeat the motion. Anderson, 477 U.S. at 250, 106 S.Ct. 2505; Soremekun, 509 F.3d at 984; see Fed. R. Civ. P. 56(c), (e). The opposing party’s evidence must be more than “merely colorable” and must be “significantly probative.” Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505. Further, the opposing party may not rest upon mere allegations or denials of the adverse party’s evidence, but instead must produce admissible evidence showing there is a genuine dispute of material fact for trial. Nissan Fire & Marine Ins. Co. v. Fritz Cos., Inc., 210 F.3d 1099, 1102-03 (9th Cir.2000). Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment. T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir.1987).

In determining whether to grant or deny summary judgment, it is not a court’s task “to scour the record in search of a genuine issue of triable fact.” Blount v. Morgan Stanley Smith Barney LLC, 982 F.Supp.2d 1077, 1080 (N.D.Cal.2013) aff'd, No. 13-17319, 2015 WL 9259058 (9th Cir. Dec. 18, 2015)(citing Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir.1996)). Rather, a court is entitled to rely on the nonmoving party to “identify with reasonable particularity the evidence that precludes summary judgment.” Id.

IV. DISCUSSION

Defendant moves for summary judgment on all of Plaintiffs claims. Defendant argues that: 1) many of the incidents are outside the statutory limitations period; 2) Plaintiff fails to establish a prima facie case of discrimination; 3) even if Plaintiff were to establish a prima facie case of discrimination, she has not created a genuine issue of material fact to show that the Department’s proffered legitimate, nondiscriminatory reasons are pre-textual; 4) Plaintiff cannot establish a pri-ma facie case of retaliation; and 5) even if Plaintiff were to establish a prima facie retaliation case, she cannot show that the Department’s proffered legitimate, nondiscriminatory reasons are pretextual. Defendant also objects to some of Plaintiffs evidence as improper under the Federal Rules of Evidence.

A. Statute of Limitations

Title VII requires a plaintiff to timely file an administrative charge with the EEOC or a state agency before instituting a lawsuit. B.K.B. v. Maui Police Dep’t, 276 F.3d 1091, 1099 (9th Cir.2002), as amended (Feb. 20, 2002). Under Title VII, a plaintiff must file an EEOC charge within 300 days after the alleged unlawful employment practice occurred. 42 U.S.C. § 2000e-5(e)(1). Under FEHA, a plaintiff must file a charge with the DFEH within one year after the unlawful practice occurred. Cal. Govt. Code § 12960(d).

Since Plaintiff filed her administrative complaint with the EEOC and DFEH on July 28, 2011, the period within the statute of limitations begins on July 28, 2010 for FEHA claims, and on September 31, 2010 for Title VII claims. Defendant argues that Plaintiff is time-barred from bringing claims based on incidents outside of these time periods. These incidents include: 1) Moulton’s use of the word “nigger” in Plaintiffs presence in 2006; 2) the anonymous note left in Plaintiffs locker in October 2007; 3) the November 2007 reprimand regarding parking practices; 4) the July 2009 reprimand for leaving her shift early; and 5) the one-day suspension for the verbal altercation with Hellesto in March 2010.

B. The Continuing Violation Doctrine

The continuing violation doctrine allows a court, in some instances, to consider alleged unlawful behavior that would otherwise be time-barred. Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 122, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002). Plaintiff relies on unsupported conclusory statements to argue for application of the continuing violation doctrine to her otherwise untimely claims. Opp. at 16-17.

1. Application to Title VII Discrimination and Retaliation Claims

In National Railroad Passenger Corp., the Supreme Court held that the continuing violation doctrine applies to Title VII claims of hostile work environment, but not to claims of discrimination or retaliation. Discriminatory or retaliatory acts under Title VII are “discrete acts” that start a new clock for filing administrative charges alleging that act, and are not actionable unless they occur within the statutory period. Nat'l R.R. Passenger Corp., 536 U.S. at 113-14, 122 S.Ct. 2061. For this reason, only the acts within the statute of limitations will be considered for Plaintiffs Title VII discrimination and retaliation claims.

2. Application to FEHA Discrimination and Retaliation Claims

The continuing violation doctrine may apply to FEHA discrimination and retaliation claims where a plaintiff establishes a continuing course of unlawful conduct. For purposes of state law claims under FEHA, the California Supreme Court rejected National Railroad Passenger Corp. ’s distinction between discrimination and retaliation on the one hand, and hostile work environment claims on the other. Yanowitz v. L’Oreal USA, Inc., 36 Cal.4th 1028, 1057-59, 32 Cal.Rptr.3d 436, 116 P.3d 1123 (2005); Lelaind v. City & Cty. of S.F., 576 F.Supp.2d 1079, 1093 (N.D.Cal.2008) (citing Yanowitz, 36 Cal.4th 1028, 1057-59, 32 Cal.Rptr.3d 436, 116 P.3d 1123) (“In Ya-nowitz, the California Supreme Court held that the continuing violations doctrine may be applicable not only to hostile work environment claims, but also to discrimination and retaliation claims where a plaintiff alleges a continuing course of unlawful conduct.”).

To establish a “continuing course of conduct” a plaintiff must show that the employer’s actions were “(1) sufficiently similar in kind...; (2) have occurred with reasonable frequency; and (3) have not acquired a degree of permanence.” Yanowitz, 36 Cal.4th at 1059, 32 Cal.Rptr.3d 436, 116 P.3d 1123; Richards v. CH2M Hill, Inc., 26 Cal.4th 798, 811-12, 111 Cal.Rptr.2d 87, 29 P.3d 175 (2001). “[Permanence properly should be understood to mean that an employer’s statements and actions make clear to a reasonable employee that any further efforts at informal conciliation to... end harassment will be futile.” Yanowitz, 36 Cal.4th at 1059 n. 19, 32 Cal.Rptr.3d 436, 116 P.3d 1123. Thus, continuing violation may exist where there is a company-wide policy or practice of discrimination, or a series of related acts against a single individual. Morgan v. Regents of the Univ. of Cal., 88 Cal.App.4th 52, 64, 105 Cal.Rptr.2d 652 (2000).

The continuing violation doctrine is justified on the grounds that: “[a] rule that would force employees to bring actions for ’discrete acts’ of retaliation that have not yet become ripe for adjudication, and that the employee may not yet recognize as part of a pattern of retaliation, is fundamentally incompatible with the twin policy goals of encouraging informal resolution of disputes and avoiding premature lawsuits.” Yanowitz, 36 Cal.4th at 1059, 32 Cal.Rptr.3d 436, 116 P.3d 1123.

In Yanowitz, the court found that the plaintiffs retaliation claims were not time-barred where the plaintiff, a regional sales manager, refused to fire a female sales associate in 1997 who the general manager deemed was not attractive enough. Id. Beginning in April 1998, the general manager began to solicit negative comments about the plaintiff from her subordinates, frequently criticized her management style, and refused to allow her to answer these charges during a July 1998 meeting, ultimately resulting in her departure. Id. Although the plaintiff did not file her complaint with DFEH until June 1999, the court found that the continuing violation doctrine could apply to impose liability for actions that occurred prior to June 1998 because the plaintiff alleged a course of conduct in which the defendant solicited or fabricated negative information, and then used this information to intimidate, disem-power, and punish the plaintiff. Id. The court found that a reasonable trier of fact could find that the plaintiff “was not on notice that further conciliatory efforts would be futile, until her final attempts to meet with company representatives to discuss the criticism directed at her were finally rebuffed.” Id.

In contrast, the court in Morgan found that the continuing violation doctrine did not apply to the plaintiffs retaliation claim where the plaintiff alleged that he was laid off after filing a grievance claiming racial discrimination. Morgan, 88 Cal.App.4th at 52, 105 Cal.Rptr.2d 652. After being laid off, the plaintiff applied for thirty-two jobs with the University between 1995 and 1996, but was not hired despite having preferential rehire rights for employment on the campus. Id. at 58, 105 Cal.Rptr.2d 652. The plaintiff filed a DFEH complaint in April 1997, alleging that he was denied employment and rehire rights in retaliation for filing a grievance. Id. at 63, 105 Cal.Rptr.2d 652. The court found that the continuing violation doctrine did not apply because the unlawful acts were insufficiently similar in kind, as the plaintiff had not alleged a University-wide policy of discrimination or that the individual hiring decisions were related. Id. at 65, 105 Cal.Rptr.2d 652. Instead, the hiring decisions were isolated employment decisions “made by different decision makers in unrelated departments of the University regarding positions with varying job requirements.” Id. The court found that “each time appellant was informed he was not being hired for a position to which he had applied, he was, or should have been, aware this action might be contrary to his preferential rehire rights” and each rejection “had the degree of permanence which should trigger an employee’s awareness of and duty to assert his.. .rights.” Id. at 66-67, 105 Cal.Rptr.2d 652.

Here, Plaintiff recites the three factors to establish a “continuing course of conduct” for purposes of FEHA, but does not meaningfully discuss them. Defendant moved for summary judgment on all claims prior to the statutory periods. Plaintiff did not address, and therefore is deemed to have abandoned her continuing violation argument with respect to the July 2006 Moulton issue, the October 2007 locker note, the November 2007 parking reprimand, and the July 2009 early departure. See Opp. at 16-17 (briefing on continuing violations doctrine; no mention of these incidents). At the hearing, Plaintiffs only argument on the continuing violation doctrine amounted to an attempt to pull the otherwise untimely July 2009 altercation with Hellesto into the actionable period, based solely on its temporal proximity to the timely Riordan High School medical call events. Plaintiff fought with Hellesto on July 23, 2009 and received a one-day suspension on March 5, 2010. Plaintiff responded to the medical call at Riordan High School on September 11, 2009. Hayes-White imposed a four-day suspension for the Riordan High incident in February 2010, which the Fire Commission upheld on October 14, 2010.

Plaintiff has not established a continuing violation. The Hellesto and Riordan High School incidents are not “sufficiently similar in kind.” The former involved a profanity-laced verbal altercation with a coworker; the latter involved a medical call where, among other things, Plaintiff locked herself and the minor patient in the ambulance, and locked the patient’s father out of the ambulance, preventing him from communicating with his son. As to the “reasonable frequency” prong, Plaintiff merely points to the temporal proximity between the two incidents. This is insufficient. Finally, the imposition of a one-day suspension for the Hellesto incident “had the degree of permanence which should trigger an employee’s awareness of and duty to assert [her].. .rights.” Morgan, 88 Cal.App.4th at 66, 105 Cal.Rptr.2d 652.

In sum, in analyzing Plaintiffs FEHA claims, the court will only consider the incidents that occurred after July 28, 2010 as actionable. However, although time-barred acts may not form the basis for liability, they may nevertheless be considered as background evidence in support of a timely claim. Nat’l R.R. Passenger Corp., 536 U.S. at 113, 122 S.Ct. 2061.

C. Plaintiffs Race Discrimination Claims

Plaintiffs first and third claims are for race discrimination under Title VII and FEHA. Plaintiffs FAC and briefing did not specify which incidents she challenges as discriminatory. At the hearing, Plaintiff identified the following incidents as discriminatory: 1) discipline for the September 2009 incident as Riordan High School; 2) the 2011 denial of her request for a shift change; 3) discipline for the September 2012 accident in the Station 49 parking lot; 4) discipline for the October 2012 missed overtime shift; 5) failure to be selected for the 115th Fire Academy; and 6) dismissal from the 117th Fire Academy.

At the hearing, Plaintiff conceded that the other incidents in her FAC and briefing do not constitute actionable discrimination because they did not involve a qualifying adverse employment action.

1. Legal Framework for Discrimination Claims

The court need only assess Plaintiffs claims under federal law because Title VII and FEHA operate under the same guiding principles. Brooks v. City of San Mateo, 229 F.3d 917, 923 (9th Cir.2000); Earl v. Nielsen Media Research, Inc., 658 F.3d 1108, 1112 (9th Cir.2011) (California courts use the familiar McDonnell Douglas burden-shifting test when analyzing disparate treatment claims under FEHA); Guz v. Bechtel Nat’l, Inc., 24 Cal.4th 317, 354, 100 Cal.Rptr.2d 352, 8 P.3d 1089 (2000).

To establish a prima facie case of disparate treatment, a plaintiff must “offer evidence that ’give[s] rise to an inference of unlawful discrimination,’ either through the framework set forth in McDonnell Douglas Corp. v. Green, [411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)], or with direct or circumstantial evidence of discriminatory intent.” Vasquez v. Cty. of Los Angeles, 349 F.3d 634, 640 (9th Cir.2003), as amended (Jan. 2, 2004).

Plaintiff admits that she has no direct evidence of discriminatory intent and relies on the McDonnell Douglas burden shifting framework to oppose summary judgment on her claims for race discrimination. Under that framework, the burden of production first falls on the plaintiff to make out a prima facie cáse of race discrimination. She may do so by showing that she: (1) belongs to a protected class, (2) was qualified for the position or was performing the job satisfactorily, (3) was subjected to an adverse employment action, and (4) similarly situated individuals outside of her protected class were treated more favorably. Noyes v. Kelly Servs., 488 F.3d 1163, 1168 (9th Cir.2007); Hanson v. Lucky Stores Inc., 74 Cal.App.4th 215, 224, 87 Cal.Rptr.2d 487 (1999).

If the plaintiff establishes a prima facie case of discrimination, the burden of production shifts to the employer to present evidence sufficient to permit the factfinder to conclude that the employer had a legitimate, nondiscriminatory reason for the adverse employment action. St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 506-07, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993).

If the employer does so, the burden shifts back to plaintiff to demonstrate that the employer’s articulated reason is a pretext for unlawful discrimination. A plaintiff may demonstrate pretext in either of two ways: (1) directly, by showing that unlawful discrimination more likely than not motivated the employer; or' (2) indirectly, by showing that the employer’s proffered explanation is unworthy of ere-denee because it is internally inconsistent or otherwise not believable. Earl, 658 F.3d at 1112-13.

The ultimate burden of persuasion on the issue of discrimination remains with the plaintiff. St. Mary’s Honor Center, 509 U.S. at 518, 113 S.Ct. 2742. “If the employer presents admissible evidence either that one or more of plaintiffs prima facie elements is lacking, or that the adverse employment action was based on legitimate, nondiscriminatory factors, the employer will be entitled to summary judgment unless the plaintiff produces admissible evidence which raises a triable issue of fact material to the defendant’s showing.” Caldwell v. Paramount Unified School Dist., 41 Cal.App.4th 189, 203, 48 Cal.Rptr.2d 448 (1995); see also Earl, 658 F.3d at 1113 (Where evidence of pretext is circumstantial, rather than direct, the plaintiff must produce “specific” and “substantial” facts to create a triable issue of pretext. This standard is “tempered” by the Ninth Circuit’s observation that a plaintiffs burden to raise a triable issue of pretext is “hardly an onerous one.”).

For discrimination claims, an adverse employment action “is one that ’materially affect[s] the compensation, terms, conditions, or privileges” of employment. Davis v. Team Elec. Co., 520 F.3d 1080, 1089 (9th Cir.2008) (quoting Chuang v. Univ. of Cal. Davis, Bd. of Trs., 225 F.3d 1115, 1126 (9th Cir.2000)); Horsford v. Bd. Of Trs. of Cal. State Univ., 132 Cal.App.4th 359, 373, 33 Cal.Rptr.3d 644 (2005) (changes in terms and conditions of employment must be both substantial and detrimental to be actionable; adverse treatment that is reasonably likely to impair a reasonable employee’s job performance or prospects for advancement or promotion falls within the reach of the antidiscrimination provisions of FEHA).

It is undisputed that Plaintiff is African American, and is a member of a protected racial class. Defendant argues that: 1) Plaintiff cannot establish other elements of her prima facie ease; 2) Defendant had legitimate, nondiscriminatory reasons for each of the challenged employment actions; and 3) Plaintiff has failed to put forth evidence of pretext.

2. Incidents Challenged as Discriminatory

a. September 2009 Riordan High School Incident

Plaintiff claims that the discipline she received for her actions in treating a Rior-dan High School football player was the result of race discrimination. The incident is described above in the factual recitation. In early 2010, CD2 Patrick Gardner directed Zanoff to investigate the incident. Zanoff reviewed the General Forms submitted by Plaintiff, her partner Brian Washington, and Simon Pang. Zanoff also reviewed the 911 call recording of the incident, and interviewed the patient’s father, Paramedic Captain Brett Powell, Simon Pang, Firefighter Nancy Galvin, Washington, and Plaintiff.

The record does not establish who originally recommended a four-day suspension. Hayes-White provided notice of the discipline to Plaintiff, who challenged the suspension. In early 2010 the Department held a Shelly hearing at Plaintiff’s request. Hearing Officer Massetani recommended dropping two of the charges against Plaintiff and agreed with the decision to impose a four-day suspension. Hayes-White concurred and adopted Massetani’s report.

Plaintiff then appealed the discipline to the Fire Commission. On September 27, 2010, the Fire Commission held a hearing and heard testimony from Hayes-White, Plaintiff, and other witnesses. Fire Commissioners Nakajo, Evans, Lau, and Hardeman unanimously sustained three of the six charges against Plaintiff: 1) Section 3918 — Altercation; 2) Section 3919 — Proper Behavior; and 3) Section 3923 — Acts Detrimental to the Welfare of the Department. The Commission affirmed Hayes-White’s decision to impose a four-day suspension by a three to one vote.

Plaintiff contends that the discipline she received for this incident was motivated by racial discrimination. Defendant first responds that Plaintiff cannot establish a prima facie ease because she has not demonstrated that similarly situated individuals outside of her protected class were treated more favorably. Plaintiff asserts that her partner Washington was not investigated for his involvement in the incident. Defendant argues that Washington is also African American, and is therefore an unsuitable comparator. The Ninth Circuit, however, has stated that favorable treatment of other members of the protected class does not necessarily defeat plaintiffs claims at trial, and does not entitle defendant to summary judgment. See Lam v. University of Hawaii, 40 F.3d 1551, 1561-1562 (9th Cir.1994) (in case brought by Asian woman against university alleging both race and sex bias, favorable treatment of other Asian women did not entitle defendant to summary judgment); see also Peoples v. Cty. of Contra Costa, No. C 07-00051 MHP, 2008 WL 2225671, at *8 (N.D.Cal. May 28, 2008) (finding that evidence that another African American received promotion did not entitle defendant to summary judgment on plaintiffs race discrimination claims).

Defendant next argues that Plaintiff has not shown that she was performing her job satisfactorily. Relatedly, Defendant contends that legitimate, non-discriminatory reasons existed for disciplining Plaintiff because she undisputedly locked the patient’s father out of the ambulance, separating him from his minor child, and had a significant conflict with the patient’s father.

As Defendant has articulated a legitimate non-discriminatory reason for the adverse action, Plaintiff must demonstrate that the articulated reason is a pretext for unlawful discrimination. Plaintiff concedes that she has no direct evidence of discriminatory intent, and must therefore offer “specific” and “substantial” evidence of pretext. She fails to do so. Plaintiff first argues that a reasonable jury could find that it was improper to discipline her for locking the ambulance door when she felt unsafe. Opp. at 20. This argument does not satisfy her burden. Courts “only require that an employer honestly believed its reason for its actions, even if its reason is ’foolish or trivial or even baseless.’” Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1063 (9th Cir.2002). Plaintiff has put forth no evidence that the Department did not honestly believe its proffered reasons for disciplining her. Id.; Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018, 1028-29 n. 6 (9th Cir.2006) (merely denying the credibility of defendant’s proffered reason for the challenged employment action or relying solely plaintiffs subjective beliefs that the action was unnecessary are insufficient to show pretext).

Plaintiff also challenges so-called deficiencies in Zanoffs investigation, pointing out that he did not record his interviews with the patient’s parents, or watch the mother’s video of the incident. Again, Plaintiff provides no support for her challenge to the integrity of the investigation beyond her own subjective belief. She does not offer any evidence to support an inference that Zanoff s actions violated Department policy or compromised the investigation, or that he employed investigatory techniques that were different from those • used in similar situations.

Plaintiff also contends that Washington was not investigated for the incident, even though he was involved in it. However, Plaintiff fails to show that Washington committed similarly serious misconduct that would warrant an investigation. Vasquez, 349 F.3d at 641 (to be similarly situated other employees must “display similar conduct”); Hawn v. Exec. Jet Mgmt., Inc., 615 F.3d 1151, 1157 (9th Cir.2010) (the employees need not be identical, but must be similar in material respects). Merely asserting that individuals are similarly-situated does not make them so. See Forsberg v. Pac. Nw. Bell Tel. Co., 840 F.2d 1409, 1419 (9th Cir.1988). “[T]o be deemed ’similarly-situated’, the individuals with whom the plaintiff seeks to compare his/her treatment must have dealt with the same supervisor, have been subject to the same standards[,] and have engaged in the same conduct without such differentiating or mitigating circumstances that would distinguish their conduct or the employer’s treatment of them for it.” Ferretti v. Pfizer Inc., No. 11-CV-04486, 2013 WL 140088, at *17 (N.D.Cal. Jan. 10, 2013).

Plaintiff does not argue that Washington engaged in conduct that was similarly serious to hers, e.g., locking the minor patient’s parents out of the ambulance and having an altercation with the patient’s father. Instead, she contends without evi-dentiary support that Washington was equally responsible for transporting the patient and for the patient care report. Even if true, Plaintiff makes no effort to show that these actions alone were sufficiently serious to have warranted an investigation of Washington.

Beyond this, Plaintiff responds with a mishmash of facts which do not amount to specific or substantial evidence of pretext. She argues that she filed a General Form documenting the incident and complained to Captain Khairul Ali about her partner Washington’s lack of support. It is unclear how this establishes pretext. She also asserts that she was investigated for the incident even though the patient’s family did not file a complaint. Again, she does not attempt to explain how this constitutes evidence of pretext.

Finally, Defendant points out that Plaintiff challenged the discipline and was afforded every available level of review, including a Skelly hearing and an appeal to the Fire Commission, and that the discipline was sustained at both levels by independent decision makers. Plaintiff offers no rejoinder.

“Title VII may still be violated where the ultimate decisionmaker, lacking individual discriminatory intent, takes an adverse employment action in reliance on factors affected by another decisionmaker’s discriminatory animus,” Galdamez v. Potter, 415 F.3d 1015, 1026 n. 9 (9th Cir.2005) (citing Price Waterhouse v. Hopkins, 490 U.S. 228, 232-35, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989) (describing process by which the employer’s “Policy Board,” informed by various comments from partners, some of which demonstrated an illegal bias based on sex, took an adverse employment action)). However, if an employer’s independent investigation “results in an adverse action for reasons unrelated to the supervisor’s original biased action,” then the employer will not be liable. Staub v. Proctor Hosp., 562 U.S. 411, 421, 131 S.Ct. 1186, 179 L.Ed.2d 144 (2011).

Plaintiff does not specifically identify who she believes harbored discriminatory animus. To the extent that she claims that Hayes-White or other individuals at Station 49 were biased against her, she has made no showing that the Fire Commission’s hearing and final decision upholding the four-day suspension were not independent.

In sum, even assuming Plaintiff is able to establish a prima facie ease, she has not offered sufficient evidence of pretext to create a triable issue of fact with respect to this incident.

b. Early 2011 Denial of Shift Change Request

In early 2011, Plaintiff requested to change from night shift to day shift for personal reasons. On April 11, 2011, Plaintiffs request was denied. According to Plaintiff, Myers denied her request and shortly after, “a white female with less seniority, was given the earlier shift.” Opp. at 8; Anderson Depo. 364:13-365:12.

Defendant objects that Plaintiffs assertions lack foundation and personal knowledge, but does not identify the specific objectionable statements. The court will first address Plaintiffs statement that Chief Myers denied the request, followed by her assertion that a white woman with less seniority was given a shift change.

Plaintiff provides no foundation to establish her personal knowledge that Chief Myers denied her requested shift change. Defendant’s objection is sustained. Defendant asserts that Myers did not deny Plaintiffs request for a shift change, but instead forwarded it to the Administrative Office, and asked them to “review file for openings available and operational impact.” Myers Dep. 35:14-15; 37:8-10, Ex. 63. Myers claims that the Administrative Office denied Plaintiffs request.

With respect to Plaintiffs statement about a white comparator, Plaintiff explains that at some point she partnered with the white female who received the shift change. This could provide a basis for her personal knowledge of the fact that the shift was given to a less senior white woman. See Surrell, 518 F.3d at 1107 (district court should have considered plaintiffs testimony that she “had never seen any black people promoted to the office management positions since [she has] been in the Stockton Office” because it was based on plaintiffs personal knowledge). Defendant’s objection is overruled.

Plaintiff has presented evidence that she requested a shift change, that her request was denied, and that the requested shift was given to a less senior white woman. Although Chief Myers testified that he is “not aware” of another Station 49 employee who was moved from night to day shift around the time in question, Defendant did not otherwise put forth supporting evidence, such as a review of its own time records. Viewing the evidénce in the light most favorable to Plaintiff, a reasonable juror could infer that shift assignments are made by the Administrative Office. Plaintiff has therefore raised a genuine issue of material fact as to whether the Administrative Office’s denial of her request for a shift change in early 2011 constituted racial discrimination.

c. September 2012 Accident in Station 49 Parking Lot

On September 24, 2012, Plaintiff hit a parked car in the Station 49 parking lot while driving an ambulance. She decided not to report the accident because the car was not damaged. A Station 49 employee submitted an anonymous General Form to Deputy Chief of Operations Mark Gonzales reporting the incident. At Gonzales’s request, Captain Anthony Robinson conducted an investigation and found that Plaintiff had violated the Department’s Vehicle Operations Manual-Accident Procedure.

On November 2, 2012, Hayes-White notified Plaintiff that she intended to impose a two-day suspension for violation of the Department’s Vehicle Operations Manual Accident Procedures, which states:

Vehicle Operations Manual — Accident Procedures: An officer or any member in charge of a Department apparatus or vehicle involved in an accident is required to contact the Department of Emergency Communications which will dispatch the appropriate Accident Scene Investigator (ASI). When a Department vehicle is involved in an accident, the officer or member in charge of a vehicle must submit a General Form, addressed to the Deputy Chief, Operations, describing the Accident.

November 2, 2012 Letter from Hayes-White to Plaintiff, Hayes-White Decl., Ex. K.

On January 7, 2013, the Department held a Shelly hearing. Hearing Officer Guzman concurred with Hayes-White’s decision to impose a two-day suspension because Plaintiff admitted that she hit the car with the ambulance, did not report it, and did not provide any new evidence to support her case. On February 1, 2013, Hayes-White imposed a two-day suspension.

Plaintiff appealed the suspension to the Fire Commission, which held a hearing. On May 31, 2013, Fire Commissioners Harde-man, Evans, Covington, and Carmignani unanimously found that Plaintiff had committed the violation, but voted to reduce the two-day suspension to a written reprimand.

Plaintiff argues that her partner, Mane-ka Spidle “was not d