KIMBERLY MUELLER, District Judge.
This matter comes before the court upon defendant's motion for summary judgment. (ECF 15.) Hearing on this motion took place on August 31, 2011; Kara Keister and Sean Gavin appeared for plaintiff and William Murphy and Joe Creason appeared for defendant. For the following reasons, defendant's motion is hereby GRANTED.
Plaintiff filed her complaint in Placer County Superior Court on May 11, 2010 alleging eight causes of action: 1) age discrimination in violation of Cal. Gov't Code §§ 12900, et seq., and 12940, et seq.; 2) gender discrimination in violation of Cal. Gov't Code §§ 12900, et seq., and 12940, et seq.; 3) wrongful termination in violation of Cal. Gov't Code §§ 12900, et seq., and 12940, et seq.; 4) retaliation in violation of Cal. Gov't Code §§ 12900, et seq., and 12940, et seq.; 5) breach of employment contract; 6) breach of the implied covenant of good faith and fair dealing; 7) negligent hiring and retention;
Defendant filed the present motion for summary judgment on July 20, 2011. (ECF 15.) Plaintiff filed her opposition on August 17, 2011. (ECF 34.) Defendant filed its reply on August 24, 2011. (ECF 46.)
Plaintiff filed a request to seal documents on August 22, 2011 (ECF 43), which was denied on August 30, 2011 (ECF 49). The court struck paragraph 5 of the protective order (ECF 11), found that there was no good cause for granting plaintiff's request, and instructed plaintiff that the termination list underlying the request would not be considered in connection with the pending motion for summary judgment unless and until it was properly filed in compliance with the Local Rules and paragraph 7 of the protective order. (ECF 49.) Instead of properly filing the termination list, on August 30, 2011, plaintiff refiled the same request to seal documents the court had rejected earlier that day. (ECF 50.) Accordingly, plaintiff's renewed request to seal documents is DENIED. The termination list has not been considered by the court in connection with the present motion.
On April 15, 2009, plaintiff adjusted the price of a bottle of vodka to half the original price for a customer. (Def.'s Statement of Undisputed Material Facts ¶¶ 5-7, ECF 17 (hereinafter "ECF 17"); Pl.'s Opp'n to Def.'s Statement of Undisputed Material Facts ¶¶ 5-7, ECF 27 (hereinafter "ECF 27").) The customer's purchase was rung up by Diane Bragg, who reported the fact that the price had been marked down to Jason Kellogg, the Store Manager, after the customer had left. (ECF 17 ¶¶ 8-9; ECF 27 ¶¶ 8-9.
Kellogg suspended plaintiff from her employment as Liquor Department Manager at Safeway store 1592 on April 15, 2009, and reported the incident to John Gummert, the Loss Prevention Investigator. (ECF 17 ¶ 16; ECF 27 ¶ 16.) Gummert determined that plaintiff had violated store rules and reported his findings to Terry Friedman, the District Manager. (ECF 17 ¶¶ 21-22; ECF 27 ¶¶ 21-22.) Friedman ultimately terminated plaintiff's employment on May 21, 2009. (Def.'s Br. at 10; ECF 17 ¶ 24; ECF 27 ¶ 24.
In a letter dated July 14, 2009, plaintiff's union advised her that "the Company did in fact have just cause to terminate you. Therefore, your grievance was denied." (Creason Decl., Ex. A, Ex. 9 to the Mazalin Dep., ECF 19 at 72.)
Defendant's store rules
A court will 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 "threshold inquiry" is whether "there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).
The moving party bears the initial burden of showing the district court "that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). The burden then shifts to the nonmoving party, which "must establish that there is a genuine issue of material fact . . . ." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585 (1986). In carrying their burdens, both parties must "[cite] to particular parts of materials in the record [or show] that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support that fact." FED. R. CIV. P. 56(c)(1); see also Matsushita, 475 U.S. at 586 ("[the nonmoving party] must do more than simply show that there is some metaphysical doubt as to the material facts"). Moreover, "the requirement is that there be no genuine issue of material fact . . . . Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 247-48.
In deciding a motion for summary judgment, the court draws all inferences and views all evidence in the light most favorable to the nonmoving party. Matsushita, 475 U.S. at 587-88; Whitman v. Mineta, 541 F.3d 929, 931 (9th Cir. 2008). "Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no `genuine issue for trial.'" Matsushita, 475 U.S. at 587 (quoting First Nat'l Bank of Arizona v. Cities Serv. Co., 391 U.S. 253, 289 (1968)).
Plaintiff alleges defendant discriminated against her because of her age and gender in violation of the California Fair Employment and Housing Act ("FEHA"), California Government Code § 12940. (Compl. ¶¶ 40-54.) Section 12940(a) of FEHA provides that it is unlawful "[f]or an employer, because of . . . sex [or] age . . . to refuse to hire or employ the person or to refuse to select the person for a training program leading to employment, or to bar or to discharge the person from employment or from a training program leading to employment, or to discriminate against the person in compensation or in terms, conditions, or privileges of employment."
"California courts apply the Title VII framework to claims brought under FEHA." Metoyer v. Chassman, 504 F.3d 919, 941 (9th Cir. 2007); see also Wills v. Superior Court, 195 Cal.App.4th 143, 159 (2011) (quoting Guz v. Bechtel Nat'l, Inc., 24 Cal.4th 317, 354 (2000)). This framework is as follows:
Texas Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 804 (1973)) (internal quotation omitted). "The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff." Burdine, 450 U.S. at 253. "`The [employee] cannot simply show that the employer's decision was wrong or mistaken, since the factual dispute at issue is whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent, or competent . . . . Rather, the [employee] must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence . . . and hence infer that the employer did not act for the [asserted] non-discriminatory reasons.'" Arteaga v. Brink's, Inc., 163 Cal.App.4th 327, 343 (2008) (quoting Hersant v. Dept. of Social Servs., 57 Cal.App.4th 997, 1005 (1997)). "To survive summary judgment, plaintiffs must . . . introduce evidence sufficient to raise a genuine issue of material fact as to whether the reason the employer articulated is a pretext for discrimination." Roderiguez v. John Muir Med. Ctr., No. 09-00731 CW, 2010 U.S. Dist. LEXIS 90056, at *15 (N.D. Cal. Aug. 31, 2010). "Employees may rely on both circumstantial and direct evidence . . . ." Davis v. Team Elec. Co., 520 F.3d 1080, 1091 (9th Cir. 2008).
For purposes of this order, the court will assume that plaintiff has met her burden of establishing a prima facie case and, as defendant has offered a nondiscriminatory reason for terminating plaintiff's employment, proceed to the third part of the McDonnell Douglas analysis.
Plaintiff maintains that defendant's stated reasons for terminating her employment were pretextual. She contends that there is direct evidence of age discrimination; specifically, an email purportedly sent from Kellogg to Gummert. (Pl.'s Opp'n at 16.) Plaintiff contends that "[s]tarting fresh indicates that Kellogg wanted to hire new and younger employees and `get rid' of those employees such as Plaintiff who had many years of seniority and were over the age of 45." (Id.) Defendant disputes the admissibility of this email for lack of foundation, lack of authentication, and lack of personal knowledge. (Def.'s Obj. to Evid. at 3, ECF 44.) The court gathers from defendant's evidentiary objections that this email is introduced somewhere in the Graham Deposition around page 85, however plaintiff has only placed seven pages of the Graham Deposition on the record, and none past page 71. (Keister Decl., Ex. E, Graham Dep., ECF 30-4.) Moreover, from the portion cited by defendant where the email is introduced — "Q: Have you seen either of these e-mails before? A: No." —the email was not authenticated even with the relevant portions of the deposition. (Def.'s Obj. to Evid. at 3.) See United States v. Dibble, 429 F.2d 598, 602 (9th Cir. 1970) ("A writing is not authenticated simply by attaching it to an affidavit . . . . The foundation is laid for receiving a document in evidence by the testimony of a witness with personal knowledge of the facts who attests to the identity and due execution of the document and, where appropriate, its delivery."); see also FED. R. EVID. 901(a) (Authentication is satisfied "by evidence sufficient to support a finding that the matter in question is what its proponent claims."). This email is inadmissible and will not be considered by the court.
Plaintiff presents other, circumstantial evidence to show pretext. She contends that she never received a copy of the store rules, the violation of which formed the alleged basis for her termination from employment. (Pl.'s Opp'n at 11.) Moreover, she contends Heather Keep, Head Clerk and witness to Kellogg's suspension of plaintiff, had never heard of the store rules; no one communicated the policy to plaintiff; and the policy regarding markdowns in the liquor department may not have existed. (Id. at 14-15.)
"The employer need only articulate, not prove a legitimate, non-discriminatory reason for deciding to terminate the plaintiff." Holtzclaw v. Certainteed Corp., 795 F.Supp.2d 996, ___, 2011 U.S. Dist. LEXIS 60896, at *21 (E.D. Cal. 2011); see Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1063 (9th Cir. 2002) ("[C]ourts only require that an employer honestly believed its reasons for its actions, even if its reason is foolish or trivial or even baseless." (internal quotations omitted)). In order to prevail, plaintiff must present "`specific and substantial'" evidence of pretext. Morgan v. Regents of the Univ. of Cal., 88 Cal.App.4th 52, 69 (2000) (quoting Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1220 (9th Cir. 1998) (internal quotation omitted)); see also Cornwell v. Electra Central Credit Union, 439 F.3d 1018, 1029 n.6 (9th Cir. 2006) ("A plaintiff may not defeat a defendant's motion for summary judgment merely by denying the credibility of the defendant's proffered reason for the challenged employment action."). As explained below, plaintiff has not met her evidentiary burden and no "`reasonable trier of fact could conclude [defendant] engaged in intentional discrimination.'" Morgan, 88 Cal. App. 4th at 75 (quoting Horn v. Cushman & Wakefield W., Inc., 72 Cal.App.4th 798, 806-07 (1999)).
Plaintiff's contentions that Heather Keep had never heard of the store rules, no one communicated the policy to plaintiff, and the policy regarding markdowns may not have existed do not establish pretext; the question of whether Heather Keep or plaintiff knew of the store rules is irrelevant; plaintiff has failed to raise a genuine issue of material fact as to the existence of the store policy where defendant has provided the court with a copy of the store rules in effect since at least 1999 (Schumacher Decl. ¶¶ 5, 1, Ex. C).
Plaintiff elsewhere contends that the person who took over as Liquor Department Manager was a male who is younger than plaintiff (ECF 27 at ¶ 21); however, this fact alone, if true, would not support an inference of pretext. Cf. Cornwell, 439 F.3d at 1032-33 (supervisor's promoting less experienced white employee to the plaintiff's position could support a reasonable jury's finding of pretext where plaintiff presented admissible evidence of this fact as well as of his exclusion from meetings and demotion); see also Lindahl v. Air France, 930 F.2d 1434, 1438-39 (9th Cir. 1991) (inquiry does not end at age and gender of replacement; court considers relative qualifications as well). Here, the "fact" is unsupported. Plaintiff cites to Kellogg's deposition and Gregory's declaration for support; however, Kellogg's deposition testimony makes clear that while Kellogg considered training a male of unspecified age to take over some of plaintiff's functions, this "was not successful" and defendant "went with something else" after "[trying] a few different people out." (Keister Decl., Ex. C, Kellogg Dep. 66:23-67:13, ECF 30-2.) Moreover, the Gregory declaration states only that a male in his mid- to late-twenties, without specifying his age or experience, was the current liquor manager at the store as of August 15, 2011, over two years after plaintiff was terminated from her employment. (Gregory Decl. ¶ 8, ECF 35.) Likewise, plaintiff's contention that Kellogg did not issue a male employee a warning for putting broken glass in the garbage but issued one to plaintiff for the same conduct does not establish pretext. (Pl.'s Opp'n at 13.) This allegation is based wholly on evidence that does not support it, and on hearsay and speculation. (See Keister Decl., Ex. A, Mazalin Dep. at 131:2-19, ECF 31 (testifying that male employee put glass in garbage but not addressing whether Kellogg knew); Gregory Decl. ¶ 7, ECF 35 (Gregory testifying as to what Kellogg was aware of).)
FEHA does not "`require the employer to have good cause for its decisions. The employer may fire an employee for a good reason, a bad reason, a reason based on erroneous facts, or for no reason at all, as long as its action is not for a discriminatory reason.'" Arteaga, 163 Cal. App. 4th at 344 (quoting Nix v. WLCY Radio/Rahall Commc'ns, 738 F.2d 1181, 1187 (11th Cir. 1984)). Plaintiff has failed to show "`that a discriminatory reason more likely motivated the employer or . . . that the employer's proffered explanation is unworthy of credence.'" Hayden v. Potter, No. 06CV0923 JAH(NLS), 2010 U.S. Dist. LEXIS 104960, at *17 (S.D. Cal. Sep. 30, 2010) (quoting E.E.O.C. v. Boeing Co., 577 F.3d 1044, 1049 (9th Cir. 2009)). Specifically, plaintiff has failed to show that defendant's proffered reason is "`internally inconsistent or otherwise not believable.'" Id. (quoting Chuang v. Univ. of Cal. Davis, Bd. of Trs., 225 F.3d 1115, 1127 (9th Cir. 2000)). Plaintiff's claims for sex and age discrimination thus fail.
"[W]here a plaintiff's FEHA claim fails, a claim of wrongful discharge in violation of the public policy expressed in FEHA also fails." Holtzclaw, 2011 U.S. Dist. LEXIS 60896, at *49 (citing De Horney v. Bank of America Nat'l Trust & Sav. Assoc., 879 F.2d 459, 465 (9th Cir. 1989)). Thus, defendant is also entitled to summary judgment on plaintiff's claim for wrongful discharge.
Although the court has found plaintiff has failed to carry her burden in establishing pretext, it briefly addresses cat's paw liability as defendant argues that plaintiff's claim cannot be maintained even if it were presented as a cat's paw claim. (Def.'s Reply at 3.) See Staub v. Proctor Hosp., 562 U.S. ___, 131 S.Ct. 1186 (2011). Although plaintiff neglects to address Staub v. Proctor Hospital, she briefly argues that "[t]he fact that Friedman made the final decision does not dispose of Plaintiff's evidence of discrimination" because "Defendant cannot isolate Friedman from the others who harbored discriminatory animus." (Pl.'s Opp'n at 12.) Relying on a case preceding Staub decided by the California Court of Appeals for the Sixth District, Reeves v. Safeway Stores, Inc., 121 Cal.App.4th 95 (2004), plaintiff contends that "there are enough facts from which a reasonable jury could infer that Kellogg's discriminatory animus should also be imputed to Friedman." ( Id. at 12.) These "facts" apparently consist of the following: the written warnings plaintiff received after Kellogg became her supervisor;
Defendant contends that plaintiff's claim for retaliation fails both because the facts establish that plaintiff's employment was terminated for a "legitimate, non-discriminatory, non-retaliatory reason" and plaintiff "did not engage in any protected activity of which Safeway management was aware prior to the termination of her employment." (Def.'s Mot. at 16.) Plaintiff contends that the protected activity she engaged in was "opposing each of her written warnings." (Pl.'s Opp'n at 17.)
"Section 12940(h) makes it unlawful employment practice for an employer `to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part." Yanowitz v. L'Oreal USA, Inc., 36 Cal.4th 1028, 1035 (2005). To state a claim for retaliation, plaintiff "`must show that she engaged in protected activity, that she was thereafter subjected to adverse employment action by her employer, and that there was a causal link between the two.'" Morgan, 88 Cal. App. 4th at 69 (quoting Guthrey v. State of California, 63 Cal.App.4th 1108, 1125 (1998) (internal quotation omitted)). "It is well established that a retaliation claim may be brought by an employee who has complained of or opposed conduct that the employee reasonably believes to be discriminatory . . . ." Id. at 1043. Although the employee need not explicitly state her reasons for engaging in the activity, the antiretaliation provision is only applicable where "an employer knows that the employee's actions rest on such a basis." Id. at 1046. "[C]omplaints about personal grievances or vague or conclusory remarks that fail to put an employer on notice as to what conduct it should investigate will not suffice to establish protected conduct." Id. at 1047.
Here, plaintiff's opposition to warnings issued against her did not "`read in their totality, oppose discrimination.'" Yanowitz, 36 Cal. 4th at 1147 (quoting Wirtz v. Kansas Farm Bureau Services, Inc., 274 F.Supp.2d 1198, 1212 (D.Kan. 2003)). Plaintiff provides these various warnings and her opposition to them as exhibits, but it appears she relies in particular on one letter she wrote to Jeff Burns, a union representative, on March 8, 2009 to support her claim of retaliation. (ECF 33 at 14.) She relies on the following sentence she wrote: "I don't need or deserve this kind of harassment!" (Id.; see ECF 27 ¶ 31.) Plaintiff's responses to defendant's written warnings were made to her union and consist of complaints over being issued the warnings, not discrimination. (See Exs. 32, 36, & 40 to Mazalin Dep., ECF 32 at 29, ECF 33 at 3, & ECF 33 at 8; ECF 33 at 14.)
Plaintiff cannot show that "but for" having written these oppositions to warnings she would not have been fired. See Holtzclaw, 2011 U.S. Dist. LEXIS 60896, at *46; Villiarimo, 281 F.3d at 1064 ("To establish causation [in a retaliation case, a plaintiff] must show `by a preponderance of the evidence that engaging in the protected activity was one of the reasons for [the employee's] firing and but for such activity [the employee] would not have been fired.'" (quoting Ruggles v. California Polytechnic State Univ., 797 F.2d 782, 785 (9th Cir. 1986)). Rather, as discussed at length above, defendant terminated her employment because she violated store policy.
To state a claim for IIED, plaintiff must allege "(1) extreme and outrageous conduct by [Defendants] with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct." Hughes v. Pair, 46 Cal.4th 1035, 1050 (2009) (quotations omitted). "A defendant's conduct is `outrageous' when it is so `extreme as to exceed all bounds of that usually tolerated in a civilized community' [and] the defendant's conduct must be `intended to inflict injury or engaged in with the realization that injury will result.'" Id. at 1050-51 (quoting Potter v. Firestone Tire & Rubber Co., 6 Cal.4th 965, 1001 (1993)). Liability "does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialties." Id. at 1051 (quotation omitted). However, "[b]ehavior may be considered outrageous if a defendant (1) abuses a relation or position which gives him power to damage the plaintiff's interest; (2) knows the plaintiff is susceptible to injuries through mental distress; or (3) acts intentionally or unreasonably with the recognition that the acts are likely to result in illness through mental distress." Cole v. Fair Oaks Fire Prot. Dist., 43 Cal.3d 148, 155 n.7 (1987).
Defendant contends that plaintiff's claim for IIED fails because it is preempted by the exclusivity provisions of California's workers' compensation laws.
"[W]hen the employee's [IIED] claim is based on conduct normally occurring in the workplace, it is within the exclusive jurisdiction of the Workers' Compensation Appeals Board." Cole, 43 Cal. 3d at 151; see also Lockheed Martin, Corp. v. Workers' Comp. Appeals Bd., 96 Cal.App.4th 1237, 1247 (2002). "The cases that have permitted recovery in tort for intentional misconduct causing disability have involved conduct of an employer having a `questionable' relationship to the employment, an injury which did not occur while the employee was performing service incidental to the employment and which would not be viewed as a risk of the employment, or conduct where the employer or insurer stepped out of their proper roles." Cole, 43 Cal. 3d at 161. Thus, IIED claims are preempted by the workers' compensation remedy "unless the alleged conduct violates an express statute or is a violation of fundamental public policy." Winter v. Corr. Corp. of Am., No. 008cv1718 L(LSP), 2009 U.S. Dist. LEXIS 53668, at *16 (S.D. Cal. Jun. 24, 2009) (citing Miklosky v. Regents of Univ. of Cal., 44 Cal.4th 876, 902 (2008)). IIED claims based on discrimination are not preempted. See Fretland v. County of Humboldt, 69 Cal.App.4th 1478, 1492 (1999); Accardi v. Superior Court, 17 Cal.App.4th 341, 352-53 (1993).
The court has determined that no reasonable factfinder could conclude defendant's termination of plaintiff's employment was discriminatory. Thus, defendant's conduct of suspending and terminating plaintiff's employment and issuing her written and verbal warnings regarding workplace rules was inarguably a "normal part of the employment relationship covered by the workers' compensation exclusivity provisions." Shoemaker v. Myers, 52 Cal.3d 1, 25 (1990).
For the foregoing reasons, defendant's motion is GRANTED. This case is CLOSED.
IT IS SO ORDERED.
Plaintiff elsewhere contends that discriminatory animus is evident from the fact that the report Gummert prepared of the incident cited to her age and gender. (Pl.'s Opp'n at 6.) However, it is clear from the attached report that it uses a standard form with preexisting blanks for gender and birthdate. (Keister Decl., Ex. H, ECF 30-7.)
In addition, plaintiff contends Kellogg showed discriminatory animus in asking her to walk from the back room to the front so that he could time her. (ECF 27 at ¶ 19.) Plaintiff refused to do so. (Id.) This request was made, according to plaintiff, after Grijalva had issued her a written warning for failing to respond to a call. (Keister Decl., Ex. A, Mazalin Dep. at 148:14-16.) Plaintiff would have the court find that a reasonable jury would infer from this information that Kellogg was discriminating against her for her age; however, such an inference is unsupported and would be unreasonable.
