MARGARET M. MORROW, District Judge.
On October 6, 2011, Neva Day filed this action against Sears Holdings Corporation, Sears Holdings Management Corporation, Sears, Roebuck & Co., Sears Outlet Stores, LLC, and certain fictitious defendants.
Day was a regional sales director for Sears Outlet from approximately June 2009 to October 4, 2010.
On August 18, 2010, Day spoke to Rea concerning issues she had with Mark Grant, the national training manager for Sears Outlet.
After receiving Day's email, Jemo began a formal human resources investigation concerning the complaints against Grant.
On September 16, 2010, Jemo interviewed Day in person concerning the Grant investigation.
On September 1, 2010, while the Grant investigation was ongoing, Day had a conversation with Margaret Lawless, the Director of Soft-Lines for Sears Outlet.
Following this conversation, Lawless advised Brooks that Day had initiated a conversation with her regarding a human resources investigation.
Jemo subsequently opened an investigation to determine whether Day had breached defendants' policy that human resources investigations are confidential by speaking with Lawless.
On September 30, 2010, William O'Malley, director of corporate investigations, was asked to conduct independent interviews concerning whether Day had breached defendants' confidentiality policy.
A motion for summary judgment must be granted when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." FED. R.CIV.PROC. 56(c). A party seeking summary judgment bears the initial burden of informing the court of the basis for its motion and of identifying those portions of the pleadings and discovery responses that demonstrate the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ("[T]he substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.... [S]ummary judgment will not lie if the dispute about a material fact is `genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party").
Where the moving party will have the burden of proof on an issue at trial, the movant must affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party. On an issue as to which the nonmoving party will have the burden of proof, however, the movant can prevail merely by pointing out that there is an absence of evidence to support the nonmoving party's case. See Celotex Corp., 477 U.S. at 323, 106 S.Ct. 2548. If the moving party meets its initial burden, the nonmoving party must set forth, by affidavit or as otherwise provided in Rule 56, "specific facts showing that there is a genuine issue for trial." Liberty Lobby, 477 U.S. at 250, 106 S.Ct. 2505; FED.R. CIV. PROC. 56(e)(2).
Evidence presented by the parties at the summary judgment stage must be admissible. FED.R.CIV.PROC. 56(e)(1). In reviewing the record, the court does not make credibility determinations or weigh conflicting evidence. Rather, it draws all inferences in the light most favorable to the nonmoving party. See T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630-31 (9th Cir.1987). Conclusory, speculative testimony in affidavits and moving papers is insufficient to raise genuine issues of fact and defeat summary judgment. See Falls Riverway Realty, Inc. v. Niagara Falls, 754 F.2d 49, 56 (2d Cir.1985); Thornhill Pub. Co., Inc. v. GTE Corp., 594 F.2d 730, 738 (9th Cir.1979).
Defendants seek summary judgment on
FEHA prohibits employers from discriminating against employees on various bases, including gender. CAL. GOV'T CODE § 12940(a). In evaluating discrimination claims under FEHA, California courts look to federal precedent governing analogous federal discrimination laws. See Guz v. Bechtel National, Inc., 24 Cal.4th 317, 354, 100 Cal.Rptr.2d 352, 8 P.3d 1089 (2000) ("Because of the similarity between state and federal employment discrimination laws, California courts look to pertinent federal precedent when applying our own statutes.... In particular, California has adopted the three-stage burden-shifting test established by the United States Supreme Court for trying claims of discrimination... based on a theory of disparate treatment" (citations omitted)); Caldwell v. Paramount Unified School District, 41 Cal.App.4th 189, 195, 48 Cal.Rptr.2d 448 (1995); Mixon v. Fair Employment & Housing Comm., 192 Cal.App.3d 1306, 1317, 237 Cal.Rptr. 884 (1987).
Accordingly, under FEHA, a plaintiff may establish a prima facie case of discrimination either by adducing direct evidence of discriminatory intent, or by satisfying the first prong of the burden-shifting test outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).
In McDonnell Douglas Corp., the Supreme Court held that plaintiff bears the initial burden of establishing by a preponderance of the evidence a prima facie case of improper discrimination. If plaintiff succeeds in proving a prima facie case, the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the employment action. Should defendant carry this burden of production, the burden of proof shifts back to the plaintiff to demonstrate that defendant's asserted reason is pretextual. McDonnell Douglas Corp., 411 U.S. at 802, 804, 93 S.Ct. 1817. See also St. Mary's Honor Center v. Hicks, 509 U.S. 502, 511, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993); Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 252-253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981).
Thus, a plaintiff seeking to defeat summary judgment must establish a prima facie case and, once defendant has articulated a legitimate, nondiscriminatory reason for its action, raise triable issues of fact as to whether the articulated reason is pretextual. Sischo-Nownejad v. Merced Community College District, 934 F.2d 1104, 1110 (9th Cir.1991); see also Nidds v. Schindler Elevator Corp., 113 F.3d 912, 917-918 (9th Cir.1997) ("[t]o ... survive summary judgment, [plaintiff] must produce enough evidence to allow a reasonable factfinder to conclude either: (a) that the alleged reason for [plaintiff's] discharge
"To establish a prima facie case, a plaintiff must offer evidence that `give[s] rise to an inference of unlawful discrimination.'... `The prima facie case may be based either on a presumption arising from the factors such as those set forth in McDonnell Douglas ..., or by more direct evidence of discriminatory intent'" Cordova v. State Farm Ins. Cos., 124 F.3d 1145, 1148 (9th Cir.1997) (quoting Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir. 1994)). "The specific elements of a prima facie case may vary depending on the particular facts." Guz, 24 Cal.4th at 355, 100 Cal.Rptr.2d 352, 8 P.3d 1089 (citing Burdine, 450 U.S. at 253 n. 6, 101 S.Ct. 1089). "Generally, the plaintiff must provide evidence that (1) [s]he was a member of a protected class, (2) [s]he was qualified for the position [s]he sought or was performing competently in the position [s]he held, (3) [s]he suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests discriminatory motive," e.g., similarly-situated individuals outside her protected class were treated more favorably. Guz, 24 Cal.4th at 355, 100 Cal.Rptr.2d 352, 8 P.3d 1089. A plaintiff also "must prove by a preponderance of the evidence that there was a `causal connection' between [her] protected status and the adverse employment decision." Mixon v. Fair Employment & Housing Comm'n, 192 Cal.App.3d 1306, 1319, 237 Cal.Rptr. 884 (1987).
There is no doubt that Day was a member of a protected class, and that she suffered an adverse employment action. There is also no dispute that Day was performing her job adequately. Defendants argue, however, that there is no evidence of discriminatory motive and no causal connection between Day's protected status and their decision to terminate her employment.
Defendants assert that Brooks was responsible both for hiring and firing Day, and thus there is a strong inference that the decision to fire her was not based on her gender.
This inference can be overcome, however, if Day provides "meaningful evidence that her supervisor harbored discriminatory animus," Johnson v. Boys and Girls Clubs of South Puget Sound, 191 Fed. Appx. 541, 545 (9th Cir.2006) (Unpub. Disp.), or "evidence suggesting that [the defendants] developed a bias against [the protected class]" during the interval between the hiring and firing decisions, Coghlan, 413 F.3d at 1097.
Although she does not expressly say so, Day appears to rely on a disparate treatment theory to show that defendants acted with discriminatory intent. "Disparate treatment occurs when a plaintiff is singled out on account of her race or another protected characteristic and is treated less favorably than others similarly situated." Lelaind v. City and County of San Francisco, 576 F.Supp.2d 1079, 1091 (N.D.Cal.2008) (citing Cornwell v. Electra Central Credit Union, 439 F.3d 1018, 1028 (9th Cir.2006)); see also Twymon v. Wells Fargo & Co., 462 F.3d 925, 936 (8th Cir. 2006) ("Contrasting the treatment of similarly situated employees outside of the protected class with the employee's treatment is one way to point towards a racebased motivation"); McGuinness v. Lincoln Hall, 263 F.3d 49, 53 (2d Cir.2001) (in a race discrimination case, "[a] showing that the employer treated a similarly situated employee differently is `a common and especially effective method' of establishing a prima facie case of discrimination"); Solano v. Regents of University of California, No. S-04-0357 FCD/PAN, 2005 WL 1984473, *4 (E.D.Cal. Aug. 15, 2005) ("To establish a prima facie case of race discrimination, plaintiff must prove... the employer treated similarly situated individuals who are not in her protected class more favorably").
In employment discrimination cases, employees are similarly situated to a plaintiff if they perform similar work responsibilities or are guilty of similar misconduct. See Meaux v. Northwest Airlines, Inc., 718 F.Supp.2d 1081, 1090-91 (N.D.Cal.2010) ("Plaintiff also argues that he was treated differently than a similarly situated Caucasian flight attendant to whom the Court will refer as Doe. However, Plaintiffs and Doe's conduct are not comparable.... Doe did not threaten the passenger or write to his employer. When discussing the incident with his supervisor, Doe acknowledged fault, whereas Plaintiff
Day asserts that, during the course of the Grant investigation, male employees also breached the policy regarding the confidentiality of company investigations, but faced no adverse employment action as a result. She contends that she, by contrast, was terminated for such conduct.
Day also asserts that after she shared her concerns about Rea with Lawless, Brooks instructed Lawless to inform Rea of Day's remarks.
Moreover, even if he was not a supervisor, Brooks' purported conduct is not sufficiently similar to Day's that defendants' failure to discipline Brooks constitutes evidence of disparate treatment. Day allegedly
Ultimately, even if Brooks did violate defendants' confidentiality policy, he was not similarly situated to Day, because he was an upper level manager while Day was a regional sales director, and their conduct was not sufficiently similar. Defendants' failure to discipline him, therefore, does not give rise to a reasonable inference of gender discrimination. Ching v. Warner Bros. Studio Facilities, Inc., No. B220924, 2011 WL 2936535, *6 (Cal.App. July 20, 2011) (Unpub. Disp.) ("Ching then claims that another employee who violated the confidentiality rule was not terminated or disciplined, but he has not shown that he was similarly situated to that employee"). Accordingly, Day cannot establish a prima facie case of gender discrimination on the basis of defendants' treatment of Brooks.
Day also argues that similarly situated male employees impeded human resources investigations and lied during formal investigations.
The actions of Grant, Calderwood, and Rea are distinguishable from the conduct that led to Day's termination. Defendants
Ultimately, while Jemo and others at Sears Outlet concluded that Day had lied during her investigation, they did not find that Grant, Calderwood or Rea had been dishonest. As a consequence, it cannot be said that these employees engaged in misconduct similar to that with which Day was charged. They are not, as a result, similarly situated for the purposes of establishing a prima facie case. See Meaux, 718 F.Supp.2d at 1090-91 (employees were not similarly situated because "Plaintiff's and Doe's conduct [was] not comparable"). Rather, Day wishes to have the court compare "apples with oranges." Maniccia, 171 F.3d at 1368. Moreover, at least one male regional sales director — the same position held by Day — had earlier been terminated for similar dishonesty. See Snead v. Metropolitan Property & Cas. Ins. Co., 237 F.3d 1080, 1094 (9th Cir.2001) (concluding, in the context of determining pretext, that a showing that "at least one other similarly situated employee ... was treated in a similar manner as [plaintiff]" negated a showing of discriminatory intent).
The court notes, finally, that, even if the individual incidents Day cites in fact violated company policy or constituted wrongful conduct, she has proffered no evidence that a similarly situated employee engaged in all three forms of alleged wrongdoing — i.e., breached confidentiality, impeded an investigation, and lied during an investigation — without disciplinary action.
For the reasons stated, the court concludes that Day has not overcome the inference of nondiscrimination that arises from the fact that the same individual hired and fired her within a relatively short period. Day has adduced no evidence that causally links her termination to her protected status. Moreover, she has proffered no evidence that similarly situated employees outside her protected class were treated more favorably; there is no evidence in the record of similarly situated male employees breaching confidentiality, in the manner Day purportedly did. Additionally, the only evidence concerning other employees accused of dishonesty is Brooks' declaration that he previously terminated male employees for lying. Day adduces no evidence regarding other employees accused of impeding an investigation. Most significantly, she has proffered no evidence that a similarly situated employee outside her protected class engaged in all three forms of misconduct without being disciplined. Thus, Day has failed to establish a prima facie case of gender discrimination.
Even if the court assumes that Day's evidence is sufficient to establish a prima facie case of gender discrimination, defendants have articulated a legitimate, non-discriminatory reason for discharging her. To satisfy their burden of production on this issue, defendants "need not persuade the court that [they were] actually motivated by the proffered reasons. It is sufficient if the[ir] ... evidence raises a genuine issue of fact as to whether [they] discriminated against the plaintiff. To accomplish this, the defendant[s] must clearly set forth, through the introduction of admissible evidence, the reasons for the plaintiffs [dismissal]." Burdine, 450 U.S. at 255, 101 S.Ct. 1089.
Under FEHA, defendant's true reasons, "if nondiscriminatory, ... need not necessarily have been wise or correct ... While the objective soundness of an employer's proffered reasons supports their credibility, the ultimate issue is simply whether the employer acted with a motive to discriminate illegally. Thus, `legitimate' reasons ... in this context are reasons that are facially unrelated to prohibited bias, and which, if true, would thus prohibit a finding of discrimination." Guz, 24 Cal.4th at 358, 100 Cal.Rptr.2d 352, 8 P.3d 1089 (emphasis original).
Defendants assert that Day was terminated for violating company policy that required that employees maintain the confidentiality of company investigations and for lying to investigators during an interview regarding her complaint against
To show that defendants' articulated reason for termination was not the true reason, Day "may succeed ... either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence." Burdine, 450 U.S. at 256, 101 S.Ct. 1089. See also Chuang v. University of California Davis, 225 F.3d 1115, 1127 (9th Cir.2000) ("We have stated that a plaintiff can prove pretext in two ways: (1) indirectly, by showing that the employer's proffered explanation is `unworthy of credence' because it is internally inconsistent or otherwise not believable, or (2) directly, by showing that unlawful discrimination more likely motivated the employer"); Nidds, 113 F.3d at 918 (to satisfy her burden and survive summary judgment, plaintiff "must produce enough evidence to allow a reasonable factfinder to conclude either: (a) that the alleged reason for [the] discharge was false, or (b) that the true reason for his discharge was a discriminatory one"); Warren v. City of Carlsbad, 58 F.3d 439, 443 (9th Cir.1995) (stating that plaintiff "must produce evidence of facts that either show a discriminatory motive or show that the [employer's] explanation for his rejection is not
"[C]ircumstantial evidence that tends to show that the employer's proffered motives were not the actual motives `must be "specific" and "substantial" in order to create a triable issue with respect to whether the employer intended to discriminate....'" Blue v. Widnall, 162 F.3d 541, 546 (9th Cir.1998) (quoting Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1222 (9th Cir.1998)). See also Wallis, 26 F.3d at 890 ("In response to the defendant's offer of nondiscriminatory reasons, the plaintiff must produce `specific, substantial evidence of pretext,'" quoting Steckl v. Motorola, Inc., 703 F.2d 392, 393 (9th Cir.1983)).
Stated differently, an employee offering circumstantial evidence to show pretext must proffer "substantial evidence" that "the employer's stated reason for the adverse action was untrue or pretextual, or evidence that the employer acted with a discriminatory animus, or a combination of the two, such that a reasonable trier of fact could conclude that the employer engaged in intentional discrimination." Morgan v. Regents of the University of California, 88 Cal.App.4th 52, 75, 105 Cal.Rptr.2d 652 (2000) (quoting Horn v. Cushman & Wakefield Western, Inc., 72 Cal.App.4th 798, 806-07, 85 Cal.Rptr.2d 459 (1999) (internal quotation marks omitted)). "An employee in this situation cannot simply show the employer's decision was wrong, mistaken, or unwise. 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. (quoting Horn, 72 Cal.App.4th at 807, 85 Cal.Rptr.2d 459 (internal quotation marks omitted)). Where a plaintiff presents direct evidence that the proffered explanation is a pretext for discrimination, however, "very little evidence" is required to avoid summary judgment. E.E.O.C. v. Boeing Co., 577 F.3d 1044, 1049 (9th Cir. 2009).
Day has adduced no direct evidence of gender discrimination. As noted, Day testified that she did not believe she was ever denied a promotion or benefits due to her gender;
Day's statistical evidence concerning a pool of sixteen employees is too small to constitute "substantial and specific" evidence that defendants' proffered reasons for terminating her are pretextual. See Diaz v. Eagle Produce Ltd. Partnership, 521 F.3d 1201, 1209 (9th Cir.2008) (holding that "two data sets of sixteen workers are too small to form a reliable basis for analysis"). Moreover, the fact that the number of field sales positions held by women declined from five to one is insufficient, by itself, to demonstrate pretext. See Palmer v. United States, 794 F.2d 534, 539 (9th Cir.1986) ("Plaintiffs simple proof that the age of employees declined over time is patently insufficient; he has not demonstrated any relationship between the challenged agency actions and the decline in ages with regard to the pool of employees eligible to be affected by the disputed agency actions"). Rather, statistical evidence must also "account for possible nondiscriminatory variables, such as job performance." Aragon, 292 F.3d at 663. Day has adduced insufficient evidence to show that the three female employees who were no longer employed at the time she was terminated lost their jobs due to gender discrimination. Defendants, moreover, proffer evidence that two of the other three women who left the company resigned,
Additionally, Day has not demonstrated that the pool of sixteen field sales positions is the relevant one on which to assess discriminatory motive. See Sengupta, 804 F.2d at 1075-76 ("Sengupta's ability to prove discriminatory intent based on statistical evidence depends upon selecting the proper labor pool. The issue is whether that pool is the entire Mining Group or Department 222"). The Ninth Circuit has stated that the "impact of a practice on the protected class should generally be measured against the actual pool of employees affected by that practice."
Given the unrepresentative and unnecessarily small sample size Day used, and her failure to take into account possible nondiscriminatory variables, Day's statistical evidence is not sufficient to carry her burden of adducing "specific, substantial evidence of pretext." Wallis, 26 F.3d at 890.
Day next argues that the fact that defendants changed their explanation for terminating her demonstrates pretext. Day asserts that defendants initially stated she was being terminated for breaching confidentiality, but later claimed that she had also been terminated for lying during an investigation and impeding an investigation.
Finally, Day argues that the proffered explanation for her termination is false, because she did not breach defendants' confidentiality policy, lie to investigators, or impede the Grant investigation.
For the reasons stated, defendants are entitled to summary judgment on Day's first and second causes of action.
Defendants next seek summary judgment on Day's third and fourth claims, which allege that defendants retaliated against Day for complaining about gender discrimination.
To establish a prima facie case of retaliation, a plaintiff must show that (1) she engaged in a protected activity, (2) the employer subjected her to an adverse employment action, and (3) a causal link existed between the protected activity and the employer's action. Nazir v. United Airlines, Inc., 178 Cal.App.4th 243, 287, 100 Cal.Rptr.3d 296 (2009) (citing Miller v. Department of Corrections, 36 Cal.4th 446, 472, 30 Cal.Rptr.3d 797, 115 P.3d 77 (2005)).
State and federal courts in California have found that the following are protected activities under FEHA: (1) filing an administrative complaint or grievance, see Barefield v. Board of Trustees of CA State University, Bakersfield, 500 F.Supp.2d 1244, 1253 (E.D.Cal.2007) (discrimination grievance filed with the California Faculty Association); McRae v. Department of Corrections and Rehabilitation, 142 Cal. App.4th. 377, 386, 48 Cal.Rptr.3d 313 (2006) ("It is not contested that Dr. McRae engaged in `protected activity' — the filing of DFEH claims"); (2) making informal complaints to supervisors, see Garcia v. Los Banos Unified School Dist., 418 F.Supp.2d 1194, 1224 (E.D.Cal.2006) ("Plaintiff alleged and provided evidence reasonably warranting an inference that she complained to Elliott, Heid's superior, about Heid's sexually derogatory `ass wiping' remark and his having yelled at her and raised his fist in a physically threatening way"); and (3) serving as a witness in a coworker's FEHA proceeding, see Steele v. Youthful Offender Parole Bd., 162 Cal.App.4th 1241, 1252, 76 Cal.Rptr.3d 632 (2008) ("Kaslar filed a complaint with the DFEH based, in part, on the YOPB retaliating against her for her report of the kissing incident involving Galindo and Lisa. Lisa was a `potential witness' in such proceeding. Thus, Lisa was engaged in a protected activity so as to meet the first requirement for a claim of retaliation").
Defendants assert that Day did not engage in protected activity, and
As in Peralta, Day's complaint regarding Grant's behavior did not allege that he had engaged in an unlawful employment practice. No aspect of the complaint suggests that Day or other female employees had been treated less favorably because of their gender. In fact, Day testified that she did not believe she was ever denied a promotion or benefits due to her gender;
For this reason, Day has failed to establish a prima facie case of retaliation due to complaints of gender discrimination. Defendants' motion for summary judgment on Day's third and fourth causes of action is therefore granted.
Defendants also seek summary judgment on Day's claims that defendants retaliated against her for complaining of sexual harassment and/or a hostile work environment.
Defendants argue first that Day cannot establish a prima facie case of retaliation because she did not engage in protected activity. FEHA "recognize[s] two theories of liability for sexual harassment claims[,] ... quid pro quo harassment, where a term of employment is conditioned upon submission to unwelcome sexual advances ... [and] hostile work environment, where the harassment is sufficiently pervasive so as to alter the conditions of employment and create an abusive work environment." Hughes v. Pair, 46 Cal.4th 1035, 1043, 95 Cal.Rptr.3d 636, 209 P.3d 963 (2009) (internal quotation marks omitted). The hostile work environment form of sexual harassment is "actionable only when the harassing behavior is pervasive or severe." Id.
Defendants argue that there is insufficient evidence of harassment to create a hostile work environment because Grant's purported remarks were "occasional, isolated, sporadic, or trivial."
In Clark County School Dist. v. Breeden, 532 U.S. 268, 271, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001), the Supreme Court held that "[n]o reasonable person could have believed" that "an isolated" incident of laughter over a salacious joke met the standard for harassment under Title VII, which is analogous to that applicable under FEHA. Specifically, it held that a single isolated remark is not "so severe or pervasive as to alter the conditions of [the victim's]
Generally, whether a plaintiff's harassment complaint "was reasonable, in good faith and sincere ... is a credibility question that cannot be resolved by summary judgment." Flait v. North American Watch Corp., 3 Cal.App.4th 467, 477, 4 Cal.Rptr.2d 522 (1992). Here, a jury could reasonably conclude that Day had a good faith belief that Grant's conduct violated FEHA. The fact that several different employees purportedly observed inappropriate conduct or heard salacious remarks by Grant and/or others in the "Boys' Club," on more than one occasion, suggests that Day may reasonably have believed that the conduct was more than just a "sporadic" or "isolated" occurrences, and constituted a pervasive pattern of conduct. This supports the conclusion that Day had a reasonable, good faith belief that defendants were in violation of FEHA. See Holland v. Jefferson Nat. Life Ins. Co., 883 F.2d 1307, 1315 (7th Cir.1989) ("We also believe that Mrs. Holland could reasonably have believed she was opposing unlawful sexual harassment. Mrs. Holland complained of two sexually offensive remarks made by Schaffer, and she has put forward evidence that other employees had complained about Schaffer's use of vulgar language in the workplace.... This sort of workplace conduct is the type of activity that, under some circumstances, supports a charge of sexual harassment"); Flait, 3 Cal.App.4th at 471-72, 476-77, 4 Cal.Rptr.2d 522 (various complaints to a corporate officer about improper comments "made on at least one occasion" to a female employee constituted reasonable, good faith complaints of harassment under FEHA).
In short, in contrast to the complaint in Breeden, Day's complaints referenced multiple incidents and conversations, allegedly reported to her by multiple employees. A jury could thus conclude that she had a reasonable, good faith belief that Grant and/or others were violating FEHA. Consequently, she has adequately raised triable issues regarding the fact that she engaged in protected activity.
Defendants next argue that, even if her complaint constituted protected activity, Day has failed to adduce evidence that there was a causal link between the complaint and her termination. "Temporal proximity along with knowledge by the employer of the protected activity can satisfy the causation requirement." Brandon
The fact that Brooks participated in the decision to terminate Day, and allegedly knew she had complained of sexual harassment or a hostile work environment, suffices to raise triable issues of fact concerning defendants' knowledge of the protected activity.
As respects temporal proximity, the Ninth Circuit has held that gaps of one to three months between a plaintiff's protected activity and a defendant's adverse employment action can give rise to an inference of causation. See Hernandez v. Spacelabs Med., Inc., 343 F.3d 1107, 1111, 1113 (9th Cir.2003) (interval of less than a month between protected activity and adverse action sufficed to show causal link); Bell v. Clackamas County, 341 F.3d 858, 865-66 (9th Cir.2003) (holding that temporal proximity supported a finding of a causal link where plaintiff was placed on administrative leave approximately three weeks after complaining, was returned to duty and placed back on leave not quite three months after complaining and was ultimately terminated seven months after complaining); Yartzoff v. Thomas, 809 F.2d 1371, 1376 (9th Cir.1987) (there was sufficient evidence of causation where adverse action was taken less than three months after a complaint was filed, two weeks after the charge was first investigated, and less than two months after the investigation ended).
Day's initial email to Rea was sent in late August; her follow-up meeting with Jemo, in which she purportedly complained verbally about an uncomfortable work environment, occurred on September 20. Her email to Jemo that specifically addressed her concern regarding a hostile work environment was sent on September 30. Very shortly thereafter, on October 4, Day was terminated.
Because Day has adduced evidence that she engaged in protected activity and evidence that suggests a causal link between such activity and her termination, she has established a prima facie case of retaliation based on complaints of a hostile work environment.
The court has previously found that defendants have proffered evidence that they had a legitimate, non-discriminatory reason for terminating Day — i.e., her breach of the confidentiality. Thus, the burden shifts to Day to demonstrate that defendants' articulated reasons for termination were pretextual.
To show pretext, Day reasserts many of the same arguments she offered in support of her gender discrimination claim. She contends, for example, that defendants' proffered explanation concerning her termination was false, and that changes in defendants' explanation show it was pretextual.
Day offers additional arguments, however, as to why defendants' proffered explanation is pretextual. First, she asserts that defendants have engaged in a pattern and practice of retaliating against women who complain of sexual harassment or gender discrimination.
"[E]vidence of a pattern of retaliatory conduct is ... very persuasive" evidence of retaliatory motive. Hammrich v. Potlatch Corp., 937 F.2d 612, 1991 WL 126366, *2 (9th Cir. June 28, 1991) (Unpub. Disp.). Plaintiff, however, "must show a stark pattern" of retaliation to demonstrate pretext. Coleman, 232 F.3d at 1283. Day's evidence regarding complaints by other women does not demonstrate a stark pattern of retaliatory conduct.
Amy Kaufman was a former employee of Sears Outlet, who lodged a complaint in October 2009 with her supervisor, Ben Komadina, regarding sexual comments made by a co-worker.
Other than Kaufman's conclusory opinion that Brooks began criticizing her because of her complaint, there is no evidence in the record that Kaufman was a victim of retaliation. See Freund v. Sierra Pacific Resources, 319 Fed.Appx. 636, 638 (9th Cir.2009) (Unpub. Disp.) ("Freund's conclusory assertions that NPC must have had a discriminatory intent in discharging him are insufficient to avoid summary judgment"); Tarin v. County of Los Angeles, 123 F.3d 1259, 1265 (9th Cir.1997) ("Because Tarin points to nothing in the record, other than her own conclusory statements, to refute the County's explanations for its decisions, we affirm the district court's grant of summary judgment to defendants with respect to Tarin's claims of unlawful retaliation"), superseded by statute on other grounds as recognized in Leisek v. Brightwood Corp., 278 F.3d 895 (9th Cir.2002). Kaufman was not formally disciplined or terminated for making a complaint; rather, the alleged harasser was terminated. Kaufman's performance, moreover, was not criticized until months after she made her complaint. Additionally, Kaufman participated in a separate investigation regarding similarly inappropriate comments made by a different male coworker and received no discipline as a result.
Day next cites defendants' treatment of Geraldine Knapp, an associate in a Sears Outlet store who complained about an incident of sexual harassment.
Viewed in the light most favorable to Day, this evidence shows that the investigation of Knapp's complaint may not have been thoroughly or honestly conducted. It does not, however, demonstrate that defendants retaliated against Knapp for making a complaint. While Jemo allegedly stated he would get Knapp on a technicality, there is no evidence that Knapp was disciplined, terminated, or treated differently in any way after she made her complaint. Rather, the evidence shows that she resigned from her position, possibly even before the investigation of her complaint was complete.
Finally, Day cites defendants' treatment of Penny Parker, a district manager in Florida.
Ultimately, there is no evidence, aside from the opinion of Day and the three women whose treatment she cites, that they were victims of retaliation. Their opinions alone are not sufficient to raise triable issues of fact as to whether the proffered explanation for Day's termination was pretextual. See Welsh v. City of Shawnee, 182 F.3d 934, 1999 WL 345597, *8 (10th Cir. June 1, 1999) (Unpub. Disp.) ("The allegations of discrimination and retaliation against other employees similarly do not show pretext or intentional discrimination," as the evidence consisted only of opinions lacking "strong corroborative support"); Schuler, 793 F.2d at 1011 (absent corroborating evidence, "subjective personal judgments do not raise a genuine issue of material fact"). Thus, for the reasons stated, Day's evidence regarding Kaufman, Knapp, and Parker is insufficient to demonstrate a stark pattern of retaliation by defendants against employees who complain about harassing behavior.
Day also asserts that the timing of her discharge demonstrates pretext.
As noted, just over one month elapsed between Day's initial complaint and her termination. The sequence of events that unfolded during that time, however, belies her assertion that the temporal proximity of the complaint and termination raises triable issues of fact regarding pretext.
Immediately after receiving Day's August 25 email documenting her complaints, Rea forwarded the allegations to Jemo, as Rea deemed the complaint sufficiently serious to warrant the involvement of the human resources department. Jemo immediately began an investigation regarding the complaint, and interviewed thirteen individuals. He ultimately concluded that Grant had acted unprofessionally and issued a Documentation of Performance Issues warning. There is no evidence that, in the immediate aftermath of Day's complaint, defendants took any adverse action against her; rather, it was not until Lawless notified Brooks and Rea that Day had spoken to her about the complaint that defendants began to investigate Day's conduct. Thus, although Day's termination was close in time to her protected activity, there was an intervening breach of company policy. See Arteaga, 163 Cal.App.4th at 354, 77 Cal.Rptr.3d 654 ("`Employers are sometimes forced to remove employees who are performing poorly, engaging in improper work conduct, or severely disrupting the workplace.... Precedent does not prevent [an employer] from removing such an employee simply because the employee [recently] engaged in a protected work activity,'" quoting Strong v. University Healthcare System, L.L.C., 482 F.3d 802, 808 (5th Cir.2007)); see also Thompson v. Bi-State Development Agency, 463 F.3d 821, 826 (8th Cir. 2006) (holding that temporal proximity alone was insufficient to preclude summary judgment on a retaliation claim where plaintiff's return to work was the employer's "first opportunity to address the [bus]
Moreover, the investigation concerning Day's purported breach of confidentiality began in early September, as Lawless gave a written statement regarding her conversation with Day on September 9. Day's complaints regarding a hostile work environment and her discomfort with it were not made until she met with Jemo on September 20 and emailed him on September 30. Day's only complaint before the investigation of her breach of the confidentiality policy began was her August 25 email to Rea in which she complained generally about Grant's lack of professionalism.
In sum, "the circumstantial evidence of discriminatory intent in this case is weak and insufficient to carry [Day's] burden of providing `specific and substantial' evidence of pretext." Medina v. Multaler, Inc., 547 F.Supp.2d 1099, 1132 (C.D.Cal. 2007). The court therefore grants defendants' motion for summary judgment on Day's fifth and sixth causes of action for retaliation.
Day's seventh cause of action asserts a claim for wrongful termination in violation of public policy.
Plaintiff bears the burden of identifying the specific statute(s) or constitutional provision(s) on which she bases her Tameny claim. Green, 19 Cal.4th at 83, 78 Cal.Rptr.2d 16, 960 P.2d 1046 ("[I]n wrongful termination cases we have rejected public policy claims that were `largely unaccompanied by citations to specific statutory or constitutional provisions.' We observed that the omission `puts [the defendant] and the court in the position of having to guess at the nature of the public policies involved, if any. This kind of showing is plainly insufficient to create an issue of material fact justifying a trial on the merits of [the plaintiff's] claims,'" quoting Turner v. Anheuser-Busch, Inc., 7 Cal.4th 1238, 1257, 32 Cal.Rptr.2d 223, 876 P.2d 1022 (1994) (affirming the entry of summary judgment on a wrongful termination claim premised on vague references to "the Alcohol, Tobacco and Firearms laws")); see also Harrison v. Comcast, No. C-04-4880 VRW, 2006 WL 2734322, *5 (N.D.Cal. Sept. 25, 2006) ("Harrison was represented by counsel when his complaint was filed. And yet his complaint does not identify any specific statutory or constitutional provision that would be undermined by his termination. Although Harrison alleges that his termination is against `the public policy prohibiting retaliatory termination for exercising an employee's legal rights,' he fails to identify what those legal rights are"); Woodall v. Asset Marketing Systems Ins. Services, LLC, No. D048578, 2008 WL 162970, *4 (Cal.App. Jan. 18, 2008) (Unpub. Disp.) ("We recognize that... Woodall's counsel periodically referenced amorphous concepts of potentially applicable public policy to support her claim, asserting, for example, that AMS's actions were `fraudulent' and could potentially have led to financial `elder abuse.' These vague assertions, however, without any citation to specific statutory, regulatory or constitutional provisions and devoid of any analysis as to how AMS's actions could be found by a `reasonable trier of fact' to violate the (unstated) provisions, are insufficient at the summary judgment stage"); Mello v. OMYA (California), Inc., No. E033951, 2004 WL 1879871, *3 (Cal. App. Aug. 24, 2004) (Unpub. Disp.)
In her complaint, Day asserts that she was discharged as a result of reporting safety concerns to her supervisors.
California Labor Code § 1102.5 provides, in relevant part:
Defendants assert there is no evidence that Day engaged in protected activity, as she has adduced no evidence that she complained about workplace safety to any government or law enforcement agency. Day, however, does not allege a direct violation of § 1102.5; rather, she identifies the statute as the predicate policy for a wrongful termination claim. It is wellestablished that Labor Code § 1102.5 evinces the Legislature's intent to protect whistleblowers as a matter of public policy. See Green, 19 Cal.4th at 76-77, 78 Cal.Rptr.2d 16, 960 P.2d 1046 ("Section 1102.5, subdivision (b), concerns employees who report to public agencies. It does not protect plaintiff, who reported his suspicions directly to his employer. Nevertheless, it does show the Legislature's interest in encouraging employees to report workplace activity that may violate important public policies that the Legislature has stated" (emphasis added)); Collier v. Superior Court, 228 Cal.App.3d 1117, 1123, 279 Cal.Rptr. 453 (1991) ("[Section 1102.5(b)], which prohibits employer retaliation against an employee who reports a reasonably suspected violation of the law to a government or law enforcement agency, reflects the broad public policy interest in encouraging workplace `whistleblowers,' who may without fear of retaliation report concerns regarding an employer's illegal conduct.... Even though the statute addresses employee reports to public agencies rather than to the employer and thus does not provide direct protection to petitioner in this case, it does evince a strong public interest in encouraging employee reports of illegal activity in the workplace" (emphasis added; citations omitted)). Accordingly, Day can rely on § 1102.5 as a statutory predicate for a Tameny claim even absent evidence that she complained to a government agency. See id. at 1127, 279 Cal.Rptr. 453 ("Retaliation by an employer when an employee seeks to further this well-established public policy by responsibly reporting suspicions of illegal conduct to the employer seriously impairs the public interest, even though the employee is not coerced to participate or restrained
In assessing a claim for wrongful termination in violation of public policy, "California courts apply the burden shifting analysis as set forth in McDonnell Douglas." Velto v. Draeger Medical, Inc., No. C06-5190RBL, 2007 WL 4376200, *3 (W.D.Wash. Dec. 13, 2007), citing Nelson v. United Technologies, 74 Cal.App.4th 597, 613, 88 Cal.Rptr.2d 239 (1999); see also Loggins v. Kaiser Permanente Intern., 151 Cal.App.4th 1102, 1108-09, 60 Cal.Rptr.3d 45 (2007) ("When a plaintiff alleges retaliatory employment termination... as a claim for wrongful employment termination in in violation of public policy, and the defendant seeks summary judgment, California follows the burden shifting analysis of McDonnell Douglas Corp."). Assuming, without deciding, that Day could prove a prima facie case of wrongful termination, she must demonstrate that defendants' proffered nondiscriminatory explanation for her termination is pretextual. Day offers no new arguments regarding pretext in support of her wrongful termination in violation of § 1102.5 claim. The court concludes, therefore, for the reasons detailed above, that she has failed to meet her burden of raising triable issues of fact regarding pretext. To the extent that it is based on the policy behind § 1102.5, therefore, defendants are entitled to summary judgment on Day's seventh cause of action for wrongful termination.
Under California Labor Code § 6403:
The termination of an employee for complaining about a violation of § 6403 will support a cause of action for wrongful termination in violation of public policy. See Khachatrian v. Stanford University, No. C 97-20833 PVT, 1998 WL 856084, *3 (N.D.Cal. Dec. 4, 1998) ("[A]n employee's complaints regarding perceived violations of Labor Code sections 6400, 6401 and 6403 constitute `protected activity.' Those Labor Code sections are statutes of `public importance' for purpose of evaluating a claim of termination in violation of public policy").
Day's only complaint regarding unsafe conditions was her complaint that Grant and Calderwood reportedly drove a rental car under the influence of alcohol during an after-work event.
Moreover, even if conduct by employees off-site and after hours could violate § 6403, Day's complaint nowhere reports safety concerns or dangerous working conditions; rather, she complains about the unprofessional nature of Grant's and Calderwood's behavior.
For the reasons stated, the court grants defendants' motion for summary judgment on Day's seventh cause of action for wrongful termination in violation of public policy.
Day's eighth and ninth causes of action assert that defendants violated California Labor Code § 232.5. Section 232.5 states, in relevant part:
As discussed, Day's only complaint regarding purported working conditions was her complaint that Grant and Calderwood drove under the influence of alcohol during an after-work event. For reasons already noted, Day's complaint regarding drunk driving does not disclose information regarding "working conditions." The parties cite no cases that interpret the term "working conditions" as it is used in § 232.5, and the court could find none. As used in other sections of the Labor Code, however, "working conditions" refers to conditions or practices at the employees' physical place of employment. See Whitehead v. Corporation of Presiding Bishop of Church of Jesus Christ of Latter-Day Saints, D059501, 2012 WL 6584301, *8 (Cal.App. Dec. 18, 2012) ("California Labor Code section 6310... prohibits discharging an employee for making an oral or written complaint about unsafe working conditions or work practices in a place of employment"); Cole, 11 Cal.App.3d at 675, 90 Cal.Rptr. 74 (holding that Labor Code § 6400 et seq. requires an employer to maintain safe working conditions at the "place of employment").
Because Day's complaint regarding Grant's and Calderwood's drunk driving did not concern workplace conditions at her place of employment, but rather the activities of other employees during an after-work event, she cannot show that she "disclose[d] information about the employer's working conditions." CAL. LAB.CODE § 232.5. Defendants are therefore entitled to summary judgment on Day's claim that they violated Labor Code § 232.5 and in that manner terminated her wrongfully in violation of public policy.
Day's final claim alleges that defendants failed to prevent discrimination and failed to take action to stop unlawful harassment. Under FEHA, it is unlawful for an employer to "fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring." CAL. GOV'T CODE § 12940(k). See Cozzi v. County of Marin, 787 F.Supp.2d 1047, 1073 (N.D.Cal.2011) ("FEHA imposes an affirmative duty on employers to take all reasonable steps to prevent discrimination and harassment from occurring"). A cause of action under this section, however, is viable only if defendants have engaged in actionable discrimination. See Trujillo v. N. County Transit Dist., 63 Cal.App.4th 280, 288-89, 73 Cal.Rptr.2d 596 (1998) ("Plaintiffs are asking us to rule that defendants owed them, specifically, a legal duty of care to take all reasonable steps necessary to prevent discrimination and harassment from occurring, and that a breach of such duty should give rise to a private right of action for damages....
The fact that the court concluded above that Day had a reasonable, good faith belief that Grant and/or others had created a hostile work environment in violation of FEHA does not demonstrate that she has raised triable issues of as to whether such an environment actually existed. To be actionable, harassment must be "sufficiently pervasive ... as to alter the conditions of employment and create an abusive work environment." Hughes, 46 Cal.4th at 1043, 95 Cal.Rptr.3d 636, 209 P.3d 963. Here, the specific incidents described by Day do not rise to the level of pervasiveness required to establish the existence of a hostile work environment. Although Day sent Jemo an email stating that she, as well as other employees, felt uncomfortable with the sexual comments and conduct of Grant and others, and that she shared other employees' concerns about a hostile work environment, she has adduced no direct evidence of incidents that she herself observed or experienced. None of the details in her complaints concern sexual comments or conduct directed at Day or occurring in her presence; rather, she was a conduit who relayed the complaints of other employees to Rea and human resources. This eliminates the possibility that Day herself was subjected to "an abusive work environment." See Pereira v. Schlage Electronics, 902 F.Supp. 1095, 1102 (N.D.Cal.1995) (a plaintiff not personally subjected to offensive remarks or touching may recover only if she establishes "that she personally witnessed the harassing conduct and that it [took place] in her immediate work environment"); Lyle v. Warner Bros. Television Prod., 38 Cal.4th 264, 284, 42 Cal.Rptr.3d 2, 132 P.3d 211 (2006) ("[I]f the plaintiff does not witness the incidents involving others, those incidents cannot affect ... her perception of the hostility of the work environment" (internal quotation marks omitted)); Fisher v. San Pedro Peninsula Hospital, 214 Cal.App.3d 590, 611, 262 Cal.Rptr. 842 (1989) ("[O]ne who is not personally subjected to such remarks or touchings[] must establish that she personally witnessed the harassing conduct and that it was in her immediate work environment. For instance, it is not enough to allege that harassment occurred in the hospital; a plaintiff who is not a direct victim must also allege exactly what occurred in her presence in her immediate work environment and describe that work environment. In other words, if Ms. Fisher knew that Dr. Tischler was harassing nurses when he was in the operating room, but she did not work with him in that operating room, she would not have been exposed to a hostile work environment"); see also Jenott v. St. Alphonsus Regional Medical Center, No.
Moreover, even had Day been present during the purportedly inappropriate conversations or observed the allegedly improper conduct, the few incidents alleged do not rise to the level of pervasiveness or severity required by FEHA. Whether the conduct is severe or pervasive is determined by reference to the following factors: "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Kortan v. California Youth Auth., 217 F.3d 1104 (9th Cir.2000). To show that there was harassment under FEHA, Day must demonstrate that the purported wrongdoing was "more than a few isolated incidents." Lyle v. Warner Bros. Television Prod., 38 Cal.4th 264, 284, 42 Cal.Rptr.3d 2, 132 P.3d 211 (2006). The only evidence in the record concerning harassment is Day's complaints. The complaints contain vague reports of a handful of inappropriate remarks about women and infidelity. The few remarks documented in the complaints are not sufficiently pervasive or severe that they violate FEHA. See Bailey v. Los Angeles Unified School Dist., No. B186095, 2006 WL 3086163, *5 (Cal.App. Nov. 1, 2006) (Unpub. Disp.) ("[T]hree to five remarks" about women and sexual conduct were not "sufficiently pervasive to give rise to a hostile work environment"); Haberman v. Cengage Learning, Inc., 180 Cal.App.4th 365, 382-86, 103 Cal.Rptr.3d 19 (2009) (six comments over a thirteen-month period no sufficient to establish a hostile work environment); Muller v. Automobile Club of So. California, 61 Cal.App.4th 431, 446, 71 Cal.Rptr.2d 573 (1998) (holding that two remarks by a supervisor, and one by a coworker, did not constitute an actionable "`concerted pattern of harassment of a repeated, routine or a generalized nature'"), disapproved on other grounds in Colmenares v. Braemar Country Club, Inc., 29 Cal.4th 1019, 1031 n. 6, 130 Cal.Rptr.2d 662, 63 P.3d 220 (2003); see also Jenott, 2009 WL 5200524, at *6-7 (holding that although "[s]everal BHU employees used obscene language and discussed their dating/sexual activities," this was insufficiently
Because Day has not demonstrated that she was a victim of discrimination or harassment, or that a hostile work environment existed, she cannot prevail on a claim that defendants failed to take reasonable steps to prevent such discrimination or harassment from occurring. The court therefore grants defendants' motion for summary judgment on Day's tenth and eleventh causes of action.
For the reasons stated, the court grants defendants' motion for summary judgment.
JUDGMENT FOR DEFENDANTS
On March 13, 2013, the court entered an order granting defendants' motion for summary judgment. Accordingly,
IT IS ORDERED AND ADJUDGED
1. That plaintiff take nothing by way of her complaint; and
2. That the action be, and it hereby is, dismissed.
Under Rule 602 of the Federal Rules of Evidence, "[a] witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter." Day's declaration contains no facts indicating that she knows personally that Komadina complained to Rea. She provide no details concerning the complaint — e.g., when it was made or the form it took — that might suggest personal knowledge. Nor does she adduce evidence that Komadina or defendants informed her of the complaint. There is simply no direct or circumstantial evidence in the record that indicates Day has personal knowledge of Komadina's purported complaint to Rea. See Cuc Dang v. Sutter's Place, Inc., No. C-10-02181 RMW, 2012 WL 2977223, *4 (N.D.Cal. July 19, 2012) (excluding an unsupported statement that "`I am aware of other employees also complaining ... but nothing was done'" under Rule 602); Hill v. Southeastern Freight Lines, Inc., 877 F.Supp.2d 375, 383 (M.D.N.C.2012) (excluding an unsupported statement that "[s]ome other employees, such as Joe Hollifield and Joe McPherson, did refuse assignments, but there were no adverse consequences to them for refusing assignments" under Rule 602); Quaranta v. Management Support, 255 F.Supp.2d 1040, 1050 (D.Ariz.2003) (excluding evidence that another employee was subjected to discrimination for taking maternity leave because plaintiff "had no personal knowledge of the amount of Arnold's leave time or whether she exceeded her limit under company policy," and concluding that the other employee was not similarly situated as a result). The court therefore sustains defendants' objection to Day's testimony regarding Komadina's complaint.
Second, as noted, Day failed to make this argument regarding Komadina in her opposition. "Failure to raise issues in opposition to summary judgment functions as a waiver" of the argument. Reliance Ins. Co. v. Doctors Co., 299 F.Supp.2d 1131, 1154 (D.Haw.2003). By omitting the argument concerning Komadina, Day deprived defendants of an opportunity to respond. The court therefore declines to consider the argument, which was raised for the first time at the hearing. See Cataphora Inc. v. Parker, No. C09-5749 BZ, 2012 WL 13657, *3 n. 6 (N.D.Cal. Jan. 4, 2012) ("Inasmuch as this argument was raised for the first time during the hearing and is not mentioned in Defendants' opposition, I decline to consider it"); In re Apple Inc. Securities Litigation, No. 5:06-CV-05208-JF, 2011 WL 1877988, *5 n. 6 (N.D.Cal. May 17, 2011) ("The Court is not inclined to consider this argument given that it was not briefed but rather was raised for the first time at the end of the hearing"); White v. FedEx Corp., No. C04-00099 SI, 2006 WL 618591, *2 (N.D.Cal. Mar. 13, 2006) ("The Court will not consider any arguments or evidence raised for the first time at the hearing").
Day also argued that terminating her for having a brief conversation with Lawless was "excessive," and that excessive discipline is an indicator of pretext. Day cited no legal authority for this proposition, however. Nor did she cite evidence suggesting that the discipline imposed on her was excessive in relation to the discipline received by other employees. There is no evidence in the record, for example, that any other employee, male or female, found to have breached confidentiality, impeded an investigation, and lied during an investigation was not terminated. The only evidence regarding disciplinary measures imposed on other employees is the uncontroverted testimony of Brooks and Fowler that other employees, including a male employee, had previously been terminated for dishonesty (Brooks Decl., ¶ 7; Fowler Decl., ¶ 7), and Kaufman's testimony that she was placed on "final corrective action" for breaching confidentiality regarding an unrelated investigation and was warned she could be terminated (Exhibit List, Exhibit H ("Kaufman Depo.") at 62:21-63:9). Given the limited frame of reference provided by the record, the court cannot conclude that the discipline imposed on Day was "excessive" to the point that it renders defendants' proffered nondiscriminatory explanation unworthy of credence. As noted, it is commonplace for employers to terminate workers who violate company policies. Day's subjective opinion that termination was an excessive measure is simply insufficient to raise triable issues of fact regarding pretext. See Schuler v. Chronicle Broad. Co. Inc., 793 F.2d 1010, 1011 (9th Cir.1986) ("[S]ubjective personal judgments do not raise a genuine issue of material fact").
The Ninth Circuit addressed a similar set of facts in Gerving v. Opbiz, LLC, 324 Fed.Appx. 692, 695 (9th Cir.2009) (Unpub. Disp.). There, plaintiff complained about discriminatory remarks made by her supervisor. Id. at 694-95. When her complaint was discussed during a human resources meeting, her supervisor "became angry" and "attempted to fire her less than two weeks later." Id. at 695. The court determined that this evidence was sufficient to make out a prima facie case of retaliation. Notably, however, it did not conclude that the supervisor's reaction was direct evidence of retaliation; rather, the court engaged in a burden-shifting analysis under McDonnell Douglas. It thus appears that showing anger on one occasion in response to a protected complaint is not direct evidence sufficient, in and of itself, to raise triable issues of fact regarding retaliation. See also Massey v. Johnson, 457 F.3d 711, 719-20 (7th Cir.2006) (evidence that plaintiff's supervisor "[became] visibly angry at Ms. Mills for her [protected speech]" was sufficient to establish a prima facie case of retaliatory motive, but insufficient to raise a genuine issue of fact regarding pretext); Bower v. Covington Foods, Inc., No. 1:10-cv-00790-LJM-DKL, 2012 WL 1099733, *7 (S.D.Ind. Mar. 30, 2012) (an ADA plaintiff's subjective belief that her supervisor "appeared angry" about the manner in which she injured herself was insufficient to raise triable issues as to whether defendants' proffered explanation for her termination was pretextual). Day cites no authority, and the court could not find any, stating that a plaintiff's subjective belief that her supervisor appeared angry in response to a complaint, without more, constitutes sufficient direct evidence of retaliation to defeat summary judgment. At most, Jemo's, Fowler's, and Strand's purported reaction is sufficient to make out a prima facie case of retaliation.
Moreover, as with Day's argument that defendants treated Komadina differently than her after he complained about Grant's behavior, Day's opposition omits any argument that her interviewers' reaction to her complaint constituted direct evidence of retaliation. By failing to raise the argument in her brief, Day deprived defendants of the opportunity to respond properly. Because the argument was raised for the first time at the hearing, the court declines to consider it. See Cataphora, 2012 WL 13657 at *3; Schultz v. Ichimoto, No. 1:08-CV-526-OWW-SMS, 2010 WL 4643648, *2 (E.D.Cal. Nov. 9, 2010) ("Normally, arguments raised for the first time in a reply brief or at the hearing on a motion are disregarded").
Defendants object to Day's testimony concerning Jemo's remarks as hearsay. (Objections at 11-12). Jemo's out-of-court statements, however, qualify as party admissions, given that he was acting within the scope of his employment with defendants when the statements were made. See FED.R.EVID. 801(d)(2)(D) ("A statement is not hearsay if... [t]he statement is offered against a party and is ... a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship"). Defendants' objection is therefore overruled.
Day argues essentially that, since Jemo was involved in each of the purportedly retaliatory actions, the simple fact that he was also involved in the events leading to her termination is sufficient to raise triable issues of fact regarding pretext. Jemo is a human resources employee, however, and the fact that he was involved in a series of investigations concerning alleged employee wrongdoing is not surprising. Absent evidence that raises triable issues of fact as to whether he retaliated during each of the investigations, including Day's, his involvement is insufficient to demonstrate that defendants engaged in a pattern and practice of retaliation.
