YVONNE GONZALEZ ROGERS, District Judge.
At the beginning of every month, defendant Home Depot U.S.A., Inc. ("Home Depot") requires its employees to watch an online employee training video and then complete a short quiz. In 2012, Home Depot terminated the employment of plaintiffs Teresita Tomada, Wilhelmina de Leon, and Gloria Santiago, who then worked in cashier positions at a Home Depot Pro store in Colma, California. The terminations followed plaintiffs' admissions that other employees had taken the quizzes for them. Home Depot also terminated the persons who admitted to taking quizzes on another's behalf. Plaintiffs are Filipina and, at the time of their termination, each was in her sixties and had been employed by Home Depot for at least seven years. Plaintiffs' theory of suit, in essence, is that Home Depot's termination of their employment (1) discriminated against them on the bases of age, national origin, and race, and (2) breached their alleged implied-in-fact employment contract, which, plaintiffs argue, required good cause for any termination. In a complaint filed in state court and removed to this federal court, each plaintiff asserts the following eight claims:
(Dkt. No. 1.)
Now before the Court is Home Depot's motion for summary judgment as to all eight claims. (Dkt. No. 36 ("Motion").) The Motion is fully briefed. (Dkt. Nos. 50 ("Opp'n"), 59 ("Reply").) Having considered the parties' papers and arguments, and the admissible evidence, and having had the benefit of oral argument on April 29, 2014, the Court
The facts detailed herein are undisputed unless otherwise noted. Because of the number of people involved in the events underlying this case, the Court begins by briefly introducing the key players. The Court then recounts the facts of the case, drawn from the evidence viewed in the light most favorable to plaintiffs.
During the relevant period, plaintiffs Tomada and Santiago worked at Home Depot's Colma Pro store as head cashiers, sometimes referred to as line managers, and de Leon worked at the same store as a cashier. Tomada was 61 years old and had worked for Home Depot for seven years; Santiago was 68 and had worked there for eighteen years; and de Leon was 66 and had worked there for seven years. All three plaintiffs articulate their protected classes as Asian (race), Filipino (national origin), and over 40 (age).
The manager of the Colma Pro store was Jeff Coite, a white man in his late forties whom, as discussed in further detail below, plaintiffs assert to be the root of the discriminatory animus that allegedly led to their termination. Coite conducted the initial investigation into alleged quiz-taking conduct and ultimately terminated plaintiffs. Two assistant store managers also figure prominently. The first is David Duran, a person of mixed Middle Eastern and Hispanic heritage in his early thirties. The second is Chris Worth, a white person in his late forties. Worth is the person who first received word from a store associate that employees were taking each other's quizzes.
In addition to the management of the Colma Pro store, several associates play a role in the telling of this case. Giulio Di Francia, a white person in his mid-twenties, and a cashier, was the person who reported to Worth that employees were taking each other's quizzes. He later admitted to having taken a quiz for plaintiff Tomada and Home Depot ultimately terminated him. Rosemarie Exconde (Filipina, mid-fifties) worked as a cashier, admitted to taking a quiz for plaintiff Santiago, and ultimately was terminated by Home Depot. Angela Leung (mixed Spanish and Chinese heritage, mid-twenties) worked as a cashier, admitted to taking a quiz for plaintiff de Leon and ultimately was terminated by Home Depot. Brendan Herger (white, mid-twenties) worked as a cashier, and, though implicated by plaintiffs in the quiz-taking conduct, denied any involvement. Home Depot did not terminate Herger.
The record reflects that Home Depot follows the common practice of organizing its stores into districts and its districts into regions. (See Villanueva Decl., Ex. 20 at 18:14-19:6, Ex. 21.) At the district level, human resource manager Carrie Fitzpatrick (white, late-thirties) opined on the notion of terminating plaintiffs, stating that "serious noise" might ensue from firing them as "long term employees." At the regional level, Dana Woodard, an associate relations manager, also consulted regarding the termination proposal.
Home Depot maintains, at its corporate headquarters in Atlanta, a team referred to as the Associate Advice and Counsel Group ("AACG"). One member of the AACG was Lynette McLeod (white, fifties), who conducted the AACG's initial investigation into the quiz-taking conduct after store manager Coite initially recommended terminating plaintiffs. Another is Pamela Castillo (white, fifties), who was involved in discussions of the appropriate response to the quiz-taking conduct at the Colma Pro store. McLeod's manager in the AACG was Joyce Riggs, an African-American. Riggs gave McLeod direction about how to correct deficiencies in her original investigation, and ultimately communicated the AACG's recommendation of termination to Coite.
On September 11, 2012, Home Depot terminated plaintiffs and three other associates also implicated in the quiz-taking conduct. Two shared with plaintiffs some protected characteristics and one did not: Angela Leung is of mixed Spanish and Chinese descent and was in her late twenties (Dkt. No. 36-6 ("Cartwright Decl."), Ex. 28 at 14:8-11); Rosemarie Exconde is Filipina and was in her mid-fifties; and Giulio Di Francia is white and was in his mid-twenties.
During the relevant time period, Home Depot maintained a Code of Conduct which prohibited its associates from, among other things, allowing other associates to access confidential associate information. (Dkt. No. 36-2 ("Coite Decl."), Ex. 2 ("Code of Conduct") at HD000362-63.) The Code of Conduct is distributed to employees during their initial orientation after hiring. (Dkt. No. 36-3 ("Fitzpatrick Decl.") ¶ 14.) Home Depot also required its employees to watch, at the beginning of each month, an employee training video called "InFocus" and then take a quiz covering the information in the video. (Fitzpatrick Decl. ¶ 7; Cartwright Decl., Ex. 16 at 30:20-31:3; Dkt. No. 36-5 ("Riggs Decl.") ¶ 9; see also Coite. Decl. ¶¶ 10, 11, Ex. 1 (screenshots of InFocus quiz).) Employees accessed both the videos and quizzes through the company's private intranet, in an online application called "myApron." (Fitzpatrick Decl. ¶ 8; Coite Decl. ¶ 11.) An employee would log in to myApron using a personalized user name and password and, from there, navigate to the InFocus video and quiz. (Id.) While logged in to myApron, it is possible to access other information besides InFocus, including information confidential to the logged-in employee. (Cartwright Decl., Ex. 30 at 110:22-112:25; Riggs Decl. ¶ 11.)
On August 1, 2012, Tomada was working in the Colma store. Pursuant to her duties as line manager, Tomada was called away to assist another employee and asked a nearby cashier, Di Francia, to complete her InFocus quiz for her. Di Francia agreed, Tomada left, and Di Francia took the quiz. (Cartwright Decl., Ex. 10 at 39:2-25.)
Later, Tomada asked Di Francia to go to the tool rental department and assist associates there. Di Francia refused, and Tomada told him she would report him to store management. She apparently did so. (Cartwright Decl., Ex. 10 at 41:25-42:19, Ex. 16 at 50:14-17, Ex. 20 at 37:10-38:9.) Assistant store manager Chris Worth went to talk to Di Francia about Tomada's report and Di Francia complained that employees in the "front end"
Worth told store manager Jeff Coite that he had heard of employees completing each other's InFocus quizzes. (Id.) Coite is white, U.S.-born, and, during the relevant period, was in his late 40s. (See Dkt. No. 41 ("Villanueva Decl."), Ex. 24 at 5:14-22.) After speaking to Worth, Coite began to investigate by interviewing Di Francia and another associate who witnessed the conversation between Di Francia and Worth, and then interviewing the three plaintiffs and Exconde. Coite determined that the three plaintiffs, Di Francia, and Exconde had all been either taking quizzes for someone else or asking someone else to take theirs. At Coite's behest, all five wrote statements. In the statements, all five, including plaintiffs, admitted to participating in the conduct. Specifically, Tomada admitted to having Di Francia take her quiz;
(Cartwright Decl., Ex. 7 at HD000347-48.)
Coite discussed the situation with the human resources manager for his store's district, Carrie Fitzpatrick. Fitzpatrick is white, from the U.S., and was in her late thirties. (Villanueva Decl., Ex. 20 at 5:14-6:2.) On or about August 9, 2012, Coite escalated the investigation to Lynnette McLeod, an Atlanta-based corporate-level manager in the AACG. McLeod created a "ticket," or case, to track the investigation. McLeod interviewed the three plaintiffs by telephone, as well as Exconde and Di Francia. McLeod did not at that time interview Leung or Herger, notwithstanding their having been named in de Leon's statement. (See Cartwright Decl., Ex. 23 at 29:12-18 (McLeod deposition testimony acknowledging that she did not interview Leung or Herger before September 1, 2012, though eventually she did interview them); see also id. at 30:4-11 (McLeod testifying that she missed Leung and Herger's names in de Leon's statement).) Ultimately, McLeod concluded that the appropriate action was terminating the three plaintiffs and giving Exconde and Di Francia "final counseling," which, in Home Depot's system of progressive discipline, is the step just before dismissal. (Id., Ex. 22 at 78:3-21; id., Ex. 23 at 11:2-10.) McLeod did not know plaintiffs' age, race, or national origin when she was conducting her investigation. (Dkt. No. 40 at 5-6, Fact 19.)
On August 15, 2012, McLeod wrote to Coite, stating she had had the chance to review the statements, that Coite had indicated he was "considering termination and final [counseling] for the associates involved," that she was scheduling interviews, and that she was required to conduct interviews before giving "termination and final recommendations." (Villanueva Decl., Ex. 9 at HD000926; see also id., Ex. 8 at 14:9-15:1.)
On August 20 and 21, McLeod interviewed the three plaintiffs, as well as Exconde and Di Francia, by telephone. (See Villanueva Decl., Ex. 3, at 29:22-23; id., Exs. 6, 9.)
On August 21, McLeod sent Coite her recommendation regarding the plaintiffs, Di Francia, and Exconde. (Villanueva Decl., Ex. 23 at HD000933-34.) She recommended terminating plaintiffs, who, she noted, had "asked other associates to complete their quizzes for them," and recommended giving final counseling to Di Francia and Exconde, who "took the quizzes." (Id.) She characterized the associates' acts as a "major violation of the COC — Integrity Policy" in that they had "falisf[ied] a company document or a document relied upon by the company," and represented that she had interviewed "all involved associates." (Id.) In fact, she had not interviewed Leung or Herger.
On August 22, Fitzpatrick, the district human resources manager, emailed two regional human resources managers:
(Villanueva Decl., Ex. 23, at HD000933.)
In the course of the next day, Fitzpatrick's email was forwarded to Pamela Castillo in Atlanta. (See Villanueva Decl., Ex. 18.) Castillo emailed senior AACG manager Riggs, stating the results of her review of the case, which included one associate's statement that the quiz-taking conducted was "not limited to the front end" but also involved "service desk associates"; her finding that service desk associates had not been interviewed; and her impression that the recommendation to terminate plaintiffs and give final warnings to Di Francia and Exconde "[s]eem[ed] harsh for the infraction." (Id., at HD001015-16.) On August 23, after receiving Castillo's email, Riggs sent Castillo, regional human resources manager Dana Woodard, and others an email response commenting that the investigation did not "sound like it [was] completed" and recommending "hold[ing] off on delivering discipline until the investigation [had] been thoroughly reviewed by" a team lead or senior manager. (Id. at HD001015.)
Riggs later reviewed the ticket herself. (Villanueva Decl., Ex. 11.) Following her review, on September 1, she emailed McLeod, stating that "[t]he field and I have gone back and forth and finally settled on termination for all the associates involved." (Id.) The "field" referred to Woodard. (Id., Ex. 13, at 101:5-14.) Riggs also directed McLeod to interview two associates, Leung and Herger, who had been implicated but not interviewed as part of McLeod's initial investigation. (Id., Ex. 11, at HD001003-04.)
During those interviews, Leung admitted to completing an InFocus quiz for de Leon. (Cartwright Decl., Ex. 27, at HD000884.) Leung also wrote a statement concerning what she said in the interview, stating that she had helped both de Leon and Santiago with their quizzes. (Id., Ex. 29, at HD000860.) Following McLeod's interview with Herger, Herger wrote a statement in which he denied ever hearing of another associate taking a quiz for another associate and ever having been asked to do so personally. (Id., Ex. 25, at HD000861.) McLeod recommended to Riggs that termination was warranted for Leung, because she had admitted to the misconduct, but that, because Herger had denied misconduct and there were no witnesses corroborating de Leon's implication of Herger, the allegations against Herger were unsubstantiated and that discipline therefore was not warranted. (Villanueva Decl., Ex. 15; Cartwright Decl., Ex. 23 at 37:1-16.)
After McLeod reported on the two interviews, Riggs evaluated the ticket and determined that termination was appropriate for all three plaintiffs, along with Exconde, Di Francia, and Leung. Riggs testified to having done so on the basis of falsification of company records (the quiz itself, plus a report run by Home Depot to determine who has taken the quiz), as well as giving another associate access to confidential associate information by failing to log out of myApron so that another associate could access and take the InFocus quiz. (See Cartwright Decl., Ex. 30 at 104:8-114:22.) Riggs communicated her recommendation to Coite in an email dated September 10, 2012. (Villanueva Decl., Ex. 16.)
Coite prepared final "Performance/Discipline Notices" outlining the reasons for terminating the associates. Each plaintiff's final notice of termination stated, in substantially identical terms, that the plaintiff had "intentionally allowed another associate to utilize her employment user ID, launch the In-Focus [sic] application, and complete the monthly quiz on her behalf. . . . As noted above, these actions are a major violation of the Associate Code of Conduct in falsifying company documents." (Cartwright Decl., Exs. 4 (de Leon), 9 (Santiago), and 12 (Tomada).) Above that language, in a section titled "Reason for Discussion," the Performance/Discipline Notice said:
(Id. (emphasis supplied).)
Each Performance/Discipline Notice stated, under a section reserved for stating "the improvement & action plan to address the issue": "Due to the severity of the infraction against the Code of Conduct, [plaintiff's] at-will employment with The Home Depot is hereby terminated effective today." (Id.) The Performance/Discipline Notices are signed by each respective plaintiff and Coite, and dated September 11, 2012. (Id.)
Summary judgment is appropriate when there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). A party seeking summary judgment bears the initial burden of informing the court of the basis for its motion, and of identifying those portions of the pleadings, depositions, discovery responses, and affidavits that demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Material facts are those that might affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The "mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Id. at 247-48 (dispute as to a material fact is "genuine" if there is sufficient evidence for a reasonable jury to return a verdict for the non-moving party).
On an issue where the non-moving 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 non-moving party's case. 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. Id. (quoting Anderson, 477 U.S. at 250). The opposing party's evidence must be "significantly probative," not "merely colorable." Anderson, 477 U.S. at 249-50. Further, that party may not rest upon mere allegation, speculation, or denial of the adverse party's evidence, but must produce admissible evidence showing there is a genuine issue of material fact for trial. Nissan Fire & Marine Ins. Co. v. Fritz Cos., Inc., 210 F.3d 1099, 1102-03 (9th Cir. 2000); Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 922 (9th Cir. 2001).
When deciding a summary judgment motion, a court must view the evidence in the light most favorable to the non-moving party and draw all justifiable inferences in its favor. Anderson, 477 U.S. at 255; Hunt v. City of Los Angeles, 638 F.3d 703, 709 (9th Cir. 2011). However, a court is not obligated to review the entire record in order to identify a triable issue of material fact on the non-moving party's behalf. Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996); Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. 2001); see also Fed. R. Civ. P. 56(c)(3). Rather, a court is entitled to "rely on the nonmoving party to identify with reasonable particularity the evidence that precludes summary judgment." Keenan, 91 F.3d at 1279.
Both sides raise a variety of objections to evidence and discovery conduct by the other side. Home Depot, additionally, objects to various documents filed by plaintiffs which exceed page limits established by the Court's Civil Local Rules and seeks the sanction of having those documents struck either in their entirety or to the extent they exceed the applicable page limits.
The Court also
Plaintiffs bring six discrimination-based claims, specifically, claims under FEHA for employment discrimination on the basis of (1) age, (2) national origin, and (3) race, and claims for wrongful discrimination and termination in violation of public policy based on (4) age, (5) national origin, and (6) race. The latter claims depend wholly on the former, in that the only public policy allegedly violated is FEHA. (See Compl. ¶¶ 46, 49, 52.) The Court therefore focuses solely on the FEHA claims.
Under FEHA, it is an unlawful employment practice for an "employer, because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age or sexual orientation of any person to . . . discriminate against the person in compensation or in terms, conditions or privileges of employment." CAL. GOV'T CODE § 12940(a). Because of the similarity between California and federal employment discrimination laws, courts deciding FEHA claims look to federal employment discrimination law. See Guz v. Bechtel Nat'l Inc., 24 Cal.4th 317, 354 (2000).
In a disparate treatment case such as the one at bar, the plaintiff must show that intentional discrimination was the determinative factor in the adverse employment action. Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 (1993). "The evidence proffered can be circumstantial or direct." Bodett v. CoxCom, Inc., 366 F.3d 736, 743 (9th Cir. 2004) (citing Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1221-22 (9th Cir. 1998)). Direct evidence is evidence that proves the fact of discriminatory animus without inference or presumption. Godwin, 150 F.3d at 1221. "When the plaintiff offers direct evidence of discriminatory motive, a triable issue as to the actual motivation of the employer is created even if the evidence is not substantial." Id.
Where a plaintiff relies on circumstantial evidence, courts often apply the evidentiary framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under McDonnell Douglas, the plaintiff bears an initial burden to produce evidence supporting a prima facie case of discrimination. He or she may do so by showing that: (1) the plaintiff belongs to a protected class, (2) the plaintiff was performing his or her job satisfactorily; (3) the plaintiff was subjected to an adverse employment action; and (4) similarly situated individuals outside of the plaintiff's protected class were treated more favorably. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993); McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1122 (9th Cir. 2004).
If the plaintiff establishes a prima facie case of discrimination, a presumption of discrimination arises and the burden shifts to the employer, who must present evidence sufficient to permit the factfinder to conclude that the employer had a legitimate, nondiscriminatory reason for the adverse employment action. See St. Mary's Honor Ctr., 509 U.S. at 506-07; Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000).
If the employer does so, "the McDonnell Douglas presumption of discrimination drops out of the picture." McGinest, 360 F.3d at 1123 (internal quotation marks omitted). The plaintiff must demonstrate that the employer's articulated reason is a pretext for unlawful discrimination, either directly, by persuading the court that a discriminatory reason more likely motivated the employer, or indirectly, by showing that the employer's proffered reason is unworthy of credence. Tex. Dep't of Comty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); see also Aragon v. Republic Silver State Disposal Inc., 292 F.3d 654, 658-59 (9th Cir. 2002) (en banc ). To establish pretext, very little direct evidence of discriminatory motive is required, but, if circumstantial evidence is offered, such evidence has to be "specific" and "substantial." Godwin, 150 F.3d at 1222; Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018, 1028 n.6 (9th Cir. 2006) (merely denying the credibility of defendant's proffered reason for the challenged employment action or relying solely plaintiff's subjective beliefs that the action was unnecessary are insufficient to show pretext); Wallis v. J.R. Simplot Co., 26 F.3d 885, 890 (9th Cir. 1994) (plaintiffs cannot show pretext and thus avoid summary judgment "simply by making out a prima facie case" or "denying the credibility" of defense witnesses).
"Although intermediate evidentiary burdens shift back and forth under this framework, `[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.'" Reeves, 530 U.S. at 143 (quoting Burdine, 450 U.S. at 253 (alteration in original)); see also Guz, 24 Cal. 4th at 356. Thus, "if the employer presents admissible evidence either that one or more of plaintiff's 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 Sch. Dist., 41 Cal.App.4th 189, 203 (Cal. Ct. App. 1995) (citing Burdine, 450 U.S. at 255 n.8).
Plaintiffs proffer two "facts" which, they contend, are direct evidence of discrimination. (Opp'n at 17-18.) Neither is—the first because it is not direct and the second because it is not evidence.
Plaintiffs' first proffer of purportedly direct evidence is the August 22, 2012 email sent by district human resources manager Carrie Fitzpatrick, opining that terminating plaintiffs, as "long-term employees," might create some "serious noise." (Villanueva Decl., Ex. 23.) Plaintiffs point to this email as direct evidence that Home Depot "changed its decision to cover up its true discriminatory motives." (Opp'n at 17.) Plaintiffs do not explain why they regard this evidence as direct evidence of discrimination. It is not. "Direct evidence is evidence which, if believed, proves the fact of discriminatory animus without inference or presumption." Godwin, 150 F.3d at 1221 (internal quotation marks and brackets omitted). Plaintiffs' proffered evidence depends on multiple inferences and presumptions. For example, plaintiffs infer from Fitzpatrick's observation that a cover-up is in the works. Plaintiffs also presume that Fitzpatrick's use of the phrase "serious noise" refers to something other than the sort of surprise or disruption that may occur among employees when a long-term colleague is fired. Fitzpatrick's statement is, at most, circumstantial evidence of discrimination.
Plaintiffs' second purported piece of direct evidence of discrimination is a statement by assistant store manager Duran that "he wanted to get rid of the Filipino employees." (Opp'n at 18 (citing Villanueva Decl., Ex. 2, at 22:23-24:12).) Were this admissible evidence, it would indeed be direct evidence of discriminatory intent on Duran's part. However, it is not admissible. The evidence consists of plaintiff Tomada's deposition testimony that one of her associates overheard Duran make the alleged statement at a bar; the eavesdropper then related the statement to a co-worker while they were "gossip[ing]"; the gossip, in turn, related it to plaintiff de Leon, who then related it to Tomada. (Villanueva Decl., Ex. 2, at 22:23-24:12.) The proffered evidence is obviously inadmissible hearsay—triple-hearsay, in fact.
In the absence of direct evidence, the Court turns to plaintiffs' circumstantial evidence (including the Fitzpatrick email) and the familiar McDonnell Douglas analysis. Plaintiffs here seek to establish a prima facie case of discrimination on three separate bases: race, national origin, and age. Establishing a prima facie case of discrimination requires evidence: (1) that plaintiffs belong to a protected class, (2) that plaintiffs were performing their jobs satisfactorily; (3) that plaintiffs were subjected to an adverse employment action; and (4) some other circumstance giving rise to an inference of discrimination. Bodett, 366 F.3d at 744; Guz, 24 Cal. 4th at 355; Peterson v. Hewlett-Packard Co., 358 F.3d 599, 603 (9th Cir. 2004). This fourth prong may be satisfied by showing that similarly situated persons outside plaintiff's protected class received more favorable treatment than plaintiff. Peterson, 358 F.3d at 603.
Home Depot challenges only the second and fourth prongs of plaintiffs' prima facie case. (Reply at 2.) That is, Home Depot acknowledges that each plaintiff belongs to the protected classes asserted (Asian, Filipina, and over 40) and that each plaintiff suffered termination, but disputes that plaintiffs were performing satisfactorily in their jobs or that similarly situated employees were treated differently, that plaintiffs' jobs were given to much younger employees, or that other circumstances giving rise to an inference of discrimination exist. The Court addresses the challenged prongs in turn.
Neither party disputes that the three plaintiffs were long-term employees whose employment records, aside from the conduct at issue here, generally reflect good performance. The record evidence supports that conclusion. (E.g., Villanueva Decl., Ex. 24, at 25:17-26:1 (store manager Coite answering "Yes" when asked if each of the three plaintiffs was performing satisfactorily at the time of her termination).) Home Depot, however, contends that plaintiffs were not performing satisfactorily at the time of their termination because they admittedly falsified their InFocus quizzes. (Mot. at 15-16.) Plaintiffs respond that the Court must examine the matter of satisfactory performance without reference to the conduct that purportedly gave rise to the termination. (Opp'n at 18-21.)
This dispute raises the question of what the applicable standard for examining satisfactory workplace performance in the context of a prima facie discrimination claim is. The parties do not expressly acknowledge that question. Neither do they present any binding authority.
Plaintiffs' age, race, and national discrimination claims all require assertion of a prima facie case, the fourth prong of which is some "other circumstance," additional to the three previous prongs, that suggests discrimination. Though case law specifies certain kinds of "other circumstance" that can give rise to an inference of discrimination, no particular circumstance is required. See Burdine, 450 U.S. at 253 n.6 (noting that prima facie standard is flexible and responsive to "differing factual situations"). One principle reliably derived from precedent is that relatively favorable treatment of similarly situated individuals outside of plaintiffs' protected class may be sufficiently suggestive of discrimination for purposes of establishing a prima facie case. See St. Mary's Honor Ctr., 509 U.S. at 506; McGinest, 360 F.3d at 1122; Bodett, 366 F.3d at 744. "[I]ndividuals are similarly situated when they have similar jobs and display similar conduct." Vasquez, 349 F.3d at 641. When disciplinary action is involved, a "legitimate comparator" would be another employee who allegedly engaged "in problematic conduct of comparable seriousness" but was treated differently. Id.; Bodett, 366 F.3d at 744; Hawn v. Executive Jet Management, Inc., 615 F.3d 1151, 1156 (9th Cir. 2010); see also Nicholson v. Hyannis Air Serv., Inc., 580 F.3d 1116, 1125 (9th Cir. 2009) ("The employees need not be identical," but "they must be similar in all material respects." (quoting Moran v. Selig, 447 F.3d 748, 755 (9th Cir. 2006) (emphasis in Nicholson)).
Plaintiffs marshal different evidence and argument in support of, on the one hand, their race and national origin discrimination claims, and, on the other, their age discrimination claims. With respect to plaintiffs' race and national origin claims, plaintiffs seek to demonstrate favorable treatment of similarly situated persons outside plaintiffs' protected classes by pointing to Coite's failure to include Herger and Leung in his initial round of interviews. (Opp'n at 20-21.) Plaintiffs' theory is that Coite's preliminary inclination to terminate only plaintiffs and give final warnings only to quiz-takers Exconde and Di Francia, despite knowing that Leung and Herger also had been implicated as quiz-takers, suggests discriminatory intent. Plaintiffs assert that Home Depot later "changed its decision"—that is, decided to terminate Exconde, Di Francia, and Leung in addition to plaintiffs—only to cover up a discriminatory motive. (Id. (quoting Villanueva Decl., Ex. 23 (Fitzpatrick email)).)
Viewing the available evidence in the light most favorable to plaintiffs, and remaining mindful that the purpose of the first step of the McDonnell Douglas inquiry is only to weed out the most obviously unmeritorious cases, the Court determines that plaintiffs satisfy the fourth prong of their prima facie cases for race and national origin discrimination. Coite's failure to include Herger in his initial investigation, despite de Leon having directly implicated him, supports a bare inference of discrimination, in that Herger was similarly situated to other persons investigated and his exclusion from the investigation constitutes favorable treatment. The failure to include Leung also supports a determination that the fourth prong is satisfied because she, too, was not investigated and her mixed heritage, viewed in the light most favorable to plaintiffs, places her outside plaintiffs' protected categories. Accordingly, the Court finds that plaintiffs satisfy the fourth prong of the prima facie case for their race and national origin discrimination claims.
For the same reason, plaintiffs establish the fourth prong of the prima facie case for their age claim. Plaintiffs contend that their testimony establishes that "helping each other with the [InFocus] quiz is a [sic] normal and prevalent" and that defendant knew or should have known that it was "common and prevalent," but regardless "decided not [to] investigate, interview, discipline or terminate the similarly situated employees." (Opp'n at 21.) Record evidence supports that contention. De Leon testified that eighty percent of the employees at Home Depot were involved in the quiz-taking conduct. (Villanueva Decl., Ex. 1 at 76:25-77:11.)
For the foregoing reasons, plaintiffs satisfy the requirement of showing "other circumstances" suggesting race, national origin, and age discrimination.
At the second step of the McDonnell Douglas test, the burden shifts to Home Depot to articulate a legitimate, non-discriminatory reason for the adverse employment action. Here, Home Depot obviously does—the integrity violations to which all three plaintiffs admitted, violations which, the undisputed evidence shows, resulted in termination for all six employees who admitted to them, including Di Francia, a white person in his twenties, but did not result in termination for Herger, the one person whose participation was not admitted or otherwise corroborated.
Plaintiffs suggest that the violations to which they admitted were not truly serious, but what matters is whether Home Depot thought they were serious. King v. United Parcel Serv., Inc., 152 Cal.App.4th 426, 433 (Cal. Ct. App. 2007) (citing Villiarimo, 281 F.3d at 1063). On this issue, plaintiffs suggest that Home Depot did not think of the violations as truly serious because they failed to conduct a sweeping investigation following Santiago's written statement that nameless "others" engaged in the quiz-taking conduct and plaintiffs' assertion to store manager Coite that eighty percent of Home Depot employees did so as well. Further, Plaintiffs fault Coite and AACG investigator McLeod for failing to ask "open-ended questions" to seek out every person who participated in the quiz-taking conduct. (Opp'n at 9.)
The evidence does not support plaintiffs' proffered inference, i.e., that Home Depot failed to take the violations seriously or investigate the violations adequately. The record shows that Home Depot involved numerous personnel at the district, regional, and corporate levels in making the termination decisions at issue, giving the plaintiffs and others' cases multiple reviews by multiple HR professionals. One of these professionals, Castillo, commented that the proposed discipline of terminating plaintiffs seemed "harsh for the infraction." (Villanueva Decl., Ex. 18, at HD001015-16.) This comment was followed by further investigation and deliberation. Senior manager Riggs reviewed the case and determined that McLeod's initial investigation—which mirrored Coite's own—had been inadequate.
Home Depot has met its burden of articulating a legitimate, nondiscriminatory reason for terminating plaintiffs, namely, their violation of company policy in having others complete their InFocus quizzes for them.
To survive summary judgment, plaintiffs must produce substantial evidence showing that Home Depot acted with discriminatory animus or that its proffered explanation is unworthy of credence. Burdine, 450 U.S. at 256; Chuang v. University of Cal. Davis, 225 F.3d 1115, 1127 (9th Cir. 2000). The inquiry is not whether Home Depot's actions were "wrong, mistaken, or unwise," but rather whether a rational fact finder could reasonably reject Home Depot's explanations as false or pretextual. Morgan v. Regents of Univ. of Cal., 88 Cal.App.4th 52, 75 (Cal. Ct. App. 2000); see also Guz, 24 Cal. 4th at 362 (plaintiff cannot survive summary judgment unless record evidence places defendant's "creditable and sufficient showing of innocent motive in material dispute by raising a triable issue, i.e., a permissible inference, that, in fact, [defendant] acted for discriminatory purposes"). That is, plaintiffs are "required to demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the proffered legitimate reasons for the 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." Reeves v. MV Transp., Inc., 186 Cal.App.4th 666, 674 (Cal. Ct. App. 2010) (internal quotation marks, brackets, and citations omitted). Any circumstantial evidence of such pretext must be "specific and substantial." King, 152 Cal. App. 4th at 433 (citations omitted). Plaintiffs' "subjective beliefs in an employment discrimination case do not create a genuine issue of fact; nor do uncorroborated and self-serving declarations." Id.
Plaintiffs make five arguments regarding pretext. The Court concludes that, whether considered separately or cumulatively, none suffice to raise a triable issue of material fact.
Plaintiffs argue that Coite's failure to include Leung and Herger in his initial round of interviews demonstrates pretext. (Opp'n at 21.) Plaintiffs rely on Nazir v. United Airlines, Inc., 178 Cal.App.4th 243, 280 (2009), for the proposition that "[a]n employer's failure to interview witnesses for potentially exculpatory information evidences pretext." Though that is a valid point of law, it does not assist plaintiffs here. Home Depot ultimately did interview Herger and Leung, albeit belatedly. At most, Coite and McLeod failed to interview those persons prior to direction from Riggs to do so. Plaintiffs focus on Coite and suggest a cat's paw theory.
Plaintiffs argue that the disciplinary process undertaken by Home Depot was predisposed to confirm all charges. (Opp'n at 22-23.) Plaintiffs rely solely on Reeves v. Safeway Stores, Inc., 121 Cal.App.4th 95 (Cal. Ct. App. 2004) ("Safeway"). In Safeway, the California Court of Appeal found that a plaintiff in an employment discrimination case had raised a triable issue of material fact by adducing evidence sufficient to "support[] an inference that [an investigator's] investigation of the alleged misconduct [of workplace violence] was not truly independent, but was heavily skewed to favor the ostensibly tentative conclusions of the reporting supervisor . . . ." Id. at 119. The Court of Appeal made that determination largely on the basis of the investigator's phrasing: for instance, he referred to having a "solid case" against employees, as opposed to a "more neutral construction," to a complainant as the "victim" rather than the "accuser," and to the subject of the complaint as a "suspect" rather than the "accused." Id. at 119-20. The Court of Appeal also identified other language used by the investigator that could lead a factfinder to infer that the investigator "saw his function not as gathering objective evidence to pass to [the person with firing authority] but as lending credence to [the] report that `workplace violence' had occurred." Id. at 121. The Court of Appeal also noted that the investigator made the case against the accused appear "solid" primarily by papering over exculpating facts, and that, while the investigator expended substantial efforts probing the accused's story, he appeared to accept the accuser's story uncritically. See id. at 120-21. The Court found that the evidence before it supported "an inference that [the investigator] acted as a sort of institutionalized cat's paw to effectuate the retaliatory intentions of supervisors by substantiating their claims of misconduct and presenting the claims, thus reinforced, to upper management." Id. at 119 (internal quotation marks omitted).
In arguing that Safeway controls in this case (see Opp'n at 22-23), plaintiffs point to conduct by McLeod. First, they note the similarity between her initial recommendation of termination for plaintiffs and final warnings for Di Francia and Exconde, made, as was Coite's initial determination, without interviewing all the personnel involved, i.e., Herger and Leung. They also point to: McLeod's characterization of the conduct at issue as an "In Focus Cheating Ring" (id. at 23 (quoting Villanueva Decl., Ex. 10)); her emailed message to Coite that she was "required to interview to give termination and final recommendations," which followed Coite's indicating to her that he was considering terminating plaintiffs and giving final warnings to Exconde and Di Francia, (id. (apparently quoting Villanueva Decl., Ex. 23 at HD000934)); and her questions which, plaintiffs suggest, were framed to "specifically target" them (id. (apparently quoting Villanueva Decl., Ex. 7 at HD000884 (McLeod's post hoc notes of questions asked to Santiago during phone interview))).
Safeway does not control here, for three reasons. First, the quantum of evidence proffered by plaintiffs here is not as substantial as the evidence in Safeway. The Safeway plaintiff could point to numerous ways in which the investigation appeared biased. Here, however, plaintiffs cite only stray phrases and words used by McLeod, none of which, in the context of this case, sufficiently suggest bias. Second, neither of the AACG investigators, McLeod and Riggs, knew of plaintiffs' age, race, or national origin during their investigation. Plaintiffs admit that McLeod lacked such knowledge. (Dkt. No. 40 at 5-6, Fact 19.) As to Riggs, plaintiffs claim that she learned at least their ages during her involvement in the investigation, but no evidence supports that assertion. (See id. at 4, Fact 12.) Without knowledge of plaintiffs' ages, race, or national origin, it is unclear how McLeod or Riggs could have acted out of any discriminatory animus.
Plaintiffs argue that Home Depot has given inconsistent explanations for its actions and that these purported inconsistencies demonstrate pretext. (Opp'n at 23-24.) "In an appropriate case, an inference of dissembling may arise where the employer has given shifting, contradictory, implausible, uninformed, or factually baseless justifications for its actions." Guz, 24 Cal. 4th at 363; see also E.E.O.C. v. Ethan Allen, Inc., 44 F.3d 116, 120 (2d Cir. 1994) (where over a span of months an employer changed its story in direct response to adverse findings uncovered by a state investigation, "a reasonable juror could infer that the explanations given by [the employer] at trial were pretextual").
Here, the record does not establish that Home Depot changed its reasons for imposing discipline on plaintiffs. Rather, the evidence shows that the reason given has always been that plaintiffs committed a "major" violation of the company's Code of Conduct. Under Home Depot's Code of Conduct, a "Major Work Rule Violation is prohibited conduct that will normally result in termination of employment for a first offense. Managers should always consider whether an offense is of such a serious nature that termination for a first offense is appropriate . . . ." (Code of Conduct at HD000360; see also id. at HD000365 ("Major Work Rule Violations are so serious in nautre as to normally warrant termination for a first offense.").) The Code of Conduct includes a five-and-a-half page, single-spaced, bulleted list of Major Work Rule Violations. (Id. at HD000360-65.)
Plaintiffs' claim of inconsistent explanation rests on three bases (Opp'n at 14-16), all of which are unavailing. The first rests largely on a strained, implausible reading of the Performance/Discipline Notices given to each terminated employee. (See Dkt. No. 36-7 at 31, 70, and 103 of 108 (termination notices for plaintiffs).) Each set forth three examples of violations of the company's integrity policy. (Id. ("The following are examples.") Plaintiffs treat the example violations as if they were the violations with which plaintiffs actually were charged. (Opp'n at 14, 23-24.) No fair reading of the Performance/Discipline Notices could support plaintiffs' characterization of abstract examples of policy violations as the actual bases for termination.
The second purported basis dovetails with the first: plaintiffs point to the acknowledgement by Coite and Riggs during their depositions that one of the example reasons for termination contained in the Performance/Discipline Notices (giving another associate one's login ID) did not, in fact, apply to plaintiffs. (Opp'n at 14-15; see also Villanueva Decl., Ex. 24 (Coite deposition), at 92:4-7; id., Ex. 13, at 104:14-106:2, 114:20-22 (Riggs deposition).) The applicability, or not, of that reason is not a material fact in this case, because the purported "reasons" were merely examples of types of integrity violations, not Home Depot's articulation of its true reasons.
The third purported basis is that Riggs gave inconsistent testimony at her deposition. (Opp'n at 15.) Plaintiffs contend that, during her deposition, Riggs changed her characterization of the reasons why plaintiffs were terminated in order to ensure that they were found in violation of two major work violations. (Id., id. at 23-24.) The import of two major work violations, according to plaintiffs, is that Riggs had testified that "typically, two major work rule violations result in termination of employment." (Villanueva Decl., Ex. 13, at 104:5-7.) Reviewing the alleged inconsistency, it is apparent that the statement does not rise to the level of demonstrating that the Home Depot's stated reasons for terminating plaintiffs are unworthy of credence, let alone of proving intentional discrimination. "The ultimate question is whether the employer intentionally discriminated, and proof that the employer's proffered reason is unpersuasive, or even obviously contrived, does not necessarily establish that the plaintiff's proffered reason is correct." Reeves, 530 U.S. at 146-47 (internal quotation marks and ellipsis omitted). That is, disbelief of the employer does not relieve plaintiffs of their burden of demonstrating intentional discrimination. Id. It is true that, in a proper case, an "inference of dissembling" sufficient to create a triable issue of material fact "may arise where the employer has given shifting, contradictory, implausible, uninformed, or factually baseless justifications for its actions." Guz, 24 Cal. 4th at 363. However, this is not such a case. Riggs's deposition statements, though inartful, do not cast serious doubt on Home Depot's stated reason for terminating plaintiffs, particularly when, here as in Guz, plaintiffs have "made substantial concessions to the truth of [Home Depot's] proffered nondiscriminatory reasons." Id. (emphasis in original). Plaintiffs admitted to conduct amounting to at least one integrity violation, as they tacitly acknowledge. (Opp'n at 24 (in arguing that Home Depot's justifications have shifted, acknowledging that Home Depot "is left with one violation").) Whether plaintiffs committed one or two integrity violations is not, in the context of this case, a material question. At most, plaintiffs demonstrate some confusion by Home Depot over whether plaintiffs' admitted conduct constituted two or merely one Major Work Rule Violations under the Code of Conduct. That alone is not actionable. To avoid summary judgment, a plaintiff "can not simply show the employer's decision was wrong, mistaken, or unwise." Morgan, 88 Cal. App. 4th at 75 (internal quotation marks, citations, and other alterations omitted). "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." Id. Plaintiffs' attack on Home Depot's purportedly "shifting" justifications falls short of that standard.
Plaintiffs argue that they have adduced comparator evidence that similarly situated employees were treated more favorably. (Opp'n at 24.) Such evidence can establish pretext. See, e.g., McDonnell Douglas, 411 U.S. at 804; Damon v. Fleming Supermarkets Of Florida, Inc., 196 F.3d 1354, 1363 (11th Cir. 1999). Plaintiffs have not, however, adduced such evidence. Plaintiffs aver that if Home Depot had conducted a more probing inquiry into who else was engaging in the quiz-taking conduct, plaintiffs would have identified many of their co-workers, as they did in their depositions: "for example[,] Jamicia Henry (24-25, half black), and Bianca Henry (20's, half black), Raymond Chao (mid-20's, Asian/Chinese), Tiffany Adler (mid-20's, White), Aida (mid-50's, Spanish)." (Opp'n at 24 (citing Villanueva Decl., Ex. 1 at 77:12-18, 78:5-9, 79:6-20).) However, these persons were not similarly situated to plaintiffs at the time of Home Depot's investigation because they were not implicated by plaintiffs or others. Further, of the two implicated persons who are entirely outside plaintiffs' protected classes, Di Francia and Herger, the former admitted to participating in the prohibited conduct and was terminated while the latter denied it and was not. Nothing about that is incoherent, unconvincing, or otherwise suggestive of pretext. MV Transp., 186 Cal. App. 4th at 674.
Plaintiffs' final argument is that they have presented direct evidence of pretext in that Home Depot supposedly changed positions regarding the decision to terminate plaintiffs after Fitzpatrick, the division's human resources liaison, warned that terminating three long-term employees could result in some "serious noise." (Opp'n at 24-25.) As previously discussed in Section IV.B.2, that evidence is circumstantial, not direct. Accordingly, plaintiffs' argument from direct evidence fails.
Assuming that plaintiffs can satisfy all the elements of prima facie cases for race, national origin, and age discrimination, Home Depot has articulated a legitimate, non-discriminatory reason for terminating plaintiffs: their admitted violation of Home Depot's Code of Conduct. Plaintiffs have not adduced direct or circumstantial evidence of pretext sufficient to raise a triable issue of material fact. All employees who admitted to violating the Code of Conduct, either by taking quizzes for others or asking others to take their quizzes for them, were terminated. Home Depot justifies its decision for declining to discipline the one implicated person who denied the prohibited conduct, Herger, on the basis that his violation of the Code of Conduct was not corroborated. That explanation is consistent with its justification for terminating plaintiffs, as well as Di Francia, Exconde, and Leung.
Accordingly, the Court
Plaintiffs bring two common-law contract-based claims. Specifically, plaintiffs bring a claim for breach of their employment contracts, which plaintiffs allege were implied-in-fact contracts imposing a for-cause termination requirement—not, as Home Depot avers, at-will contracts. Plaintiffs also assert a claim for breach of the covenant of good faith and fair dealing. Home Depot moves for summary judgment as to both claims, arguing that (1) the contracts were at-will and, (2) even if a for-cause contract existed, Home Depot had cause for terminating plaintiffs, and (3) as to the claim for breach of the covenant of good faith and fair dealing, no breach of the covenant occurred because no breach of the contract occurred. (Mot. at 20, 23.)
The Court need not resolve all these issues because, even assuming that all three plaintiffs had an implied-in-fact for-cause contract with Home Depot, the evidence establishes that good cause was present here. Because Home Depot had good cause to terminate the plaintiffs, their breach of contract claim fails. And because their breach of contract claim fails, so does their claim for breach of the covenant of good faith and fair dealing.
"Good cause, in the context of implied employment contracts, means `fair and honest reasons, regulated by good faith on the part of the employer, that are not trivial, arbitrary or capricious, unrelated to business needs or goals, or pretextual.'" King, 152 Cal. App. 4th at 438 (quoting Cotran v. Rollins Hudig Hall Int'l, Inc., 17 Cal.4th 93, 108 (1998)). Under this standard, the "question critical to [an employer's] liability is not whether plaintiff in fact violated [the employer's] integrity policy . . ., but whether [the employer], acting in good faith following an appropriate investigation, had reasonable grounds for believing plaintiff had done so." Id. Here, the evidence shows that Home Depot's reasons for terminating plaintiffs were, as discussed above, not pretextual. Further, nothing suggests they were trivial or arbitrary; on the contrary, Home Depot appears to take integrity violations seriously, and its InFocus quizzes, which contain information about safety and customer service, are rationally related to legitimate business ends. Further, Home Depot gave the plaintiffs the benefit of a reasonable investigation, during which plaintiffs admitted to the conduct charged. Home Depot had more than credible grounds for believing that plaintiffs violated the Code of Conduct; it had plaintiffs' admissions that they had. Accordingly, the Court
The Court also
Here, for plaintiffs' implied-covenant claim to survive summary judgment, plaintiffs would have to make a showing that the claim extended beyond their contract claim. This they have not done. The elements of an implied-covenant claim include the plaintiff doing "all, or substantially all of the significant things that the contract required [her] to do," unless she was excused from doing them. Judicial Council of California, CIVIL JURY INSTRUCTIONS, Instruction 325. As discussed above, however, Home Depot had good cause for terminating plaintiffs—that is, plaintiffs did not do all the things required of them. Nor is there any showing that Home Depot "unfairly interfered" with their ability to receive the benefits of their employment contract. Id. Rather, the record establishes that Home Depot provided a reasonable investigation into the circumstances surrounding plaintiffs' admitted violations of the Code of Conduct. Plaintiffs' subjective impressions of unfairness are not enough to raise a triable issue of material fact as to this claim.
The Court
For the foregoing reasons, the Court
As for plaintiffs, they rely on two Sixth Circuit authorities for the proposition that the Court must examine the matter of satisfactory performance independently from the conduct that purportedly gave rise to the termination. See Cline v. Catholic Diocese of Toledo, 206 F.3d 651, 660-61 (6th Cir. 2000) (holding that district court erred in regarding employer's non-discriminatory reason for adverse employment action, proffered at step 2 of McDonnell Douglas analysis, as evidence of failure to perform job duties satisfactorily for purposes of step 1 of analysis, thereby conflating distinct steps); Cicero v. Borg-Warner Auto., Inc., 280 F.3d 579, 585 (6th Cir. 2002) (same, citing Cline). Neither party cites a Ninth Circuit or California case adopting this rule. At least one Ninth Circuit decision applying California law appears not to follow it. Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1063 n.8 (9th Cir. 2002) (in dicta, observing that it was "not clear" whether plaintiff had established satisfactory job performance because she admitted that her employer "told her that she was fired because she did not perform her job satisfactorily" and she appeared to concede having made the mistake for which she was putatively fired).
Poland v. Chertoff, 494 F.3d 1174, 1182 (9th Cir. 2007).
In this case, plaintiffs' invocation of the cat's paw theory is inchoate and unnecessary. Plaintiffs acknowledge that Coite held final decisionmaking authority regarding plaintiffs terminations and, in plaintiffs' telling, it is from Coite that the discriminatory animus emanated. It is not clear how Coite could have improperly influenced himself, as contemplated by a cat's paw formulation.
