JENNIFER L. THURSTON, Magistrate Judge.
In this action, Plaintiff claims that he was fired in retaliation for complaining about sexual harassment suffered by another employee and because he complained that the other employee's firing was unlawful. Defendants seek summary judgment, or in the alternative summary adjudication and argue that they had legitimate business reasons for the firing. For the following reasons, Defendant's motion for summary judgment is
Plaintiff was hired by Hilton Worldwide in 1998. (JUDF 1) Plaintiff was transferred to the Bakersfield Doubletree Hotel in June 2006. (JUDF 2) At the Bakersfield hotel, Plaintiff was the Director of Finance. (JUDF 4)
In December 2006—six months after Plaintiff's transfer to Bakersfield though only four months after he began working full-time in Bakersfield (Doc. 39-2 at 14)—the results of an audit of the finances of the Bakersfield hotel were determined to be unacceptable to Plaintiff's superiors. (DUDF 23-25) Plaintiff was asked to take immediate corrective action. (DUDF 25) He was denied a merit raise in February 2007 but was told this would be reevaluated in the second quarter of 2007, "based upon progress on financial audits and with team . . ." (DUDF 23-27) However, Plaintiff received a good performance review for 2006 and had been awarded a raise when he was transferred to Bakersfield in mid-2006. (Doc. 39-2 at 14)
Likewise, the performance review for 2007 yielded an "Overall Leadership Evaluation Rating" of a "3" which meant he was "SKILLED, Fully meets the standards, 75-88% competency, overall good work, some room for improvement. (Doc. 41-5 at 16) Plaintiff asserts he received a similarly good evaluation 2008 also. (Doc. 39-2 at 14)
In September 2009, it was discovered that a payroll clerk, Julio Cumpa, had failed to check his e-mail for five days and, as a result, he failed to have prepared for Bill Murray, the Bakersfield hotel's General Manager, a final paycheck for an employee who was being terminated. (DUDF 28-29) Murray alerted Plaintiff of this failure and instructed him to discuss this issue with Cumpa.
In October 2009, a subordinate of Plaintiff's, Dora Medrano, complained to him that she was being sexually harassed. (DUDF 51) The alleged harasser was the hotel's Human Resource Director, Michael Howard. (Doc. 41-1 at 12) Medrano complained that the harassment entailed Howard making suggestive comments and touching Medrano inappropriately.
Once again, the 2009 review again yielded a "3" rating. (Doc. 41-5 at 41) Moreover, Plaintiff was only one of two employees who received a merit raise that year. (Doc. 39-2 at 14)
On January 7, 2010, Plaintiff was asked to sign an acknowledgement detailing Hilton's rest and meal break policy. (DUDF 13) The policy sets forth the number of rest breaks allowed and when they should be taken.
In February 2010, the company's 800-hotline number received an anonymous complaint that Medrano was taking longer than 10 minutes for her breaks. (DUDF 56) An investigation was undertaken by Howard (Doc. 41-7 at 39; DUDF 57) who concluded that Medrano was frequently taking longer than 10-minute rest breaks. (DUDF 57) As a result, Medrano was suspended for two days. (DUDF 59) In response to the written statement clarifying to her why she was being disciplined, she explained the longer breaks were taken, "With permission of my supervisor (Dir of Finance) John Goold. Wasn't done intentionally. Will from now on follow and take care of my breaks as needed." (Doc. 37-6 at 90; DUDF 61-62)
Plaintiff was unaware of any complaint made about Medrano and was surprised by the investigation. (Doc. 41-1 at 12) He confronted John Sommer, the Regional Director of Human Resources, and questioned why the matter could not be resolved with a counseling session rather than suspension.
On February 26, 2010, Bill Murray documented that Plaintiff's department failed to properly administer the meal and break policy. (DUDF 30-35) Murray noted that Plaintiff failed to ensure meal breaks waivers were properly maintained and failed to provide adequate supervision of the employee responsible for this action, Julio Cumpa.
In March 2010, Murray prepared a memo which identified Plaintiff's performance failures. (DUDF 63-64) Specifically, the memo addressed the meal and rest break policy and documented that accounting staff members were required to comply with them and that Plaintiff was obligated to review and approve the time sheets of his staff.
In June 2011, Wes Thornell, documented a number of shortcomings in Plaintiff's performance. (DUDF 36-41) The memo ended by stating, "This level of job performance cannot occur in the future. We have talked previously on these issues in greater detail and I am confident that you already understand the accounting issues that had to be dealt with and your performance that contributed to this. Going forward, similar job performance that falls to this level below expectation will result in further disciplinary action up to and including termination."
In February 2012, another anonymous complaint was received by the 800-hotline number again complaining that Medrano was taking longer than 10 minutes for her rest break. (DUDF 56) The complaint noted that Plaintiff, Bill Murray and the current HR Director, Javier Pimental, were aware of her actions. (Doc. 37-6 at 61-62; DUDF 66)
John Sommer instructed Javier Pimental via e-mail to conduct an investigation into the complaint. (DUDF 67) Pimental studied the videotapes maintained by the hotel which reflected employees taking their breaks. (DUDF 68-69) The videos showed Medrano and Plaintiff leaving for the "smokers' area," which was near the loading dock, and returning later.
On March 21, 2012, Plaintiff's department underwent an audit. (Doc. 41-6 at 2) His Department received a "Total Score" of "92.00%" out of a total of 100%.
On April 19, 2012, Medrano was fired because she took breaks that were longer than that permitted by hotel policy and because Medrano had been disciplined for the same infraction two years before. (DUDF 71-72) During Pimental's investigation, he discovered also that Plaintiff's subordinates were consistently late to work and that Plaintiff failed to take action to address this tardiness. (DUDF 90)
Becoming concerned that Medrano's firing could implicate the security of his own job, on April 20, 2012, Goold inquired of Murray whether his job was at risk. Murray denied that it was. (Doc. 41-1 at 14) Later, on April 26, 2012, Goold expressed to Murray that he felt that Medrano's firing was unfair and should be reversed.
The day before, on April 25, 2012, Plaintiff expressed to Pimental that Medrano's firing was wrong, that she was a good worker and that he wanted her to be re-hired. (Doc. 41-1 at 14; DUDF 84) Plaintiff explained that they used the "smoking area as a meeting place as well" in explanation for why it appeared that Medrano's breaks were too long. (Doc. 41-1 at 14) Plaintiff told Pimental that based upon the firing, he believed Medrano "had a very legitimate reason to sue us and I would not lie for the Company and [would] back up her claim." (
On May 2, 2012, Plaintiff reported to work after having been out sick for two days. (Doc. 41-1 at 15) When he did so, he was asked to meet with Murray, Sommer and Pimental.
The "purpose of summary judgment is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Matsuhita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation omitted). Summary judgment is appropriate when there is "no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). Accordingly, summary judgment should be entered "after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
A party seeking summary judgment bears the "initial responsibility" of demonstrating the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. An issue of fact is genuine only if there is sufficient evidence for a reasonable fact finder to find for the non-moving party, while a fact is material if it "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Wool v. Tandem Computers, Inc., 818 F.2d 1422, 1436 (9th Cir. 1987). The moving party demonstrates summary adjudication is appropriate by "informing the district court of the basis of its motion, and identifying those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any,' which it believes demonstrates the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323 (quoting Fed. R. Civ. P. 56(c)).
If the moving party meets its initial burden, the burden then shifts to the opposing party to present specific facts that show there is a genuine issue of a material fact. Fed R. Civ. P. 56(e); Matsuhita, 475 U.S. at 586. An opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts." Id. at 587. The party is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that a factual dispute exits. Id. at 586, n.11; Fed. R. Civ. P. 56(c). Further, the opposing party is not required to establish a material issue of fact conclusively in its favor; it is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." T.W. Electrical Serv., Inc. v. Pacific Elec. Contractors Assoc., 809 F.2d 626, 630 (9th Cir. 1987). However, "failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex, 477 U.S. at 322.
The Court must apply standards consistent with Rule 56 to determine whether the moving party demonstrated there is no genuine issue of material fact and judgment is appropriate as a matter of law. Henry v. Gill Indus., Inc., 983 F.2d 943, 950 (9th Cir. 1993). In resolving a motion for summary judgment, the Court examines the evidence provided by the parties, including pleadings depositions, answer to interrogatories, and admissions on file. See Fed. R. Civ. P. 56(c).
Defendants make numerous objections to Plaintiff's evidence. For the most part, Defendants provide lengthy excerpts from various declarations and then lodge one or more objections. They do not explain the basis for their objections and fails to set forth which part of the entire excerpt is implicated by the objection(s). Thus, all objections made in this manner
Because the Court does not rely upon the Medrano declaration, the Court declines to rule on Plaintiff's evidentiary objections in this regard except as noted above.
a. Kuhn Decl., Paragraph 1 at 1:17-18:
b. Kuhn Decl., Paragraph 3 at 2:1-6:
a. Kuhn Decl., Paragraph 2 at 1:19-27:
The Court declines to rule on the other objections related to the declaration of Mr. Kuhn, except as noted above, because the Court does not rely upon this evidence in this order.
a. Rumph Decl., Paragraph 3 at 1:25-2:4:
The Court declines to rule on the other objections related to the declaration of Mr. Rumph except as noted above, because the Court does not rely upon this evidence in this order.
a. Goold Decl., Paragraph 7 at 3:19-27:
a. Goold Decl., Paragraph 8 at 3:28-4:15:
b. Goold Decl., Paragraph 8 at 4:15-22:
The Court declines to rule on the other objections related to the declaration of Mr. Goold, except as noted above, because the Court does not rely upon this evidence in this order.
Plaintiff provides an extended excerpt of testimony given by Javier Pimental at his deposition. In this order, the Court relies only upon a limited portion of this testimony. Thus, the Court considers the objections only to this limited portion.
a. Testimony as set forth at Doc. 41-7 at 54:8-23:
The Court declines to rule on the other objections related to the testimony of Mr. Pimental, except as noted above, because the Court does not rely upon this evidence in this order.
Defendants assert that all of Plaintiff's evidence should be discarded because he failed to respond to duplicate their statement of undisputed facts and respond specifically to each fact. However, though Plaintiff did not duplicate the entirety of the statement, he admitted that all of the facts were undisputed except for a few. As to these, Plaintiff did duplicate the statement and address why he disputed each fact. The Court does not find that this requires disregarding Plaintiff's evidence and, to the contrary, it greatly eased the Court's review and any other determination would, in a draconian fashion, place form over substance.
Defendants argue also that because Plaintiff disputed very few of their undisputed facts and failed to cite to evidence to support the dispute, he is precluded from offering any evidence. First, of course, a couple of the facts were disputed because Plaintiff asserted that Defendants failed to properly characterize the evidence they cited in support of the fact; this is proper. Second, as to other facts, Plaintiff did cite to evidence to support his claim of dispute. Finally, Defendants fails to cite to any authority that only evidence which is tied to an undisputed fact may be used to oppose a motion for summary judgment. The Court Local Rule 260(b) does not state this and neither does Fed. R. Civ. P. 56(c). Thus, the objection made on the basis is
Plaintiff alleges Defendants are liable for violations of FEHA. (Doc. 1 at 5-6) In particular, Plaintiff claims he was fired because he complained about sexual harassment suffered by a coworker and subsequent retaliation against her and because he made statements that her firing was unlawful and he would support her in a lawsuit against the Defendants. (Doc. 1 at 5-6) Notably, California Government Code § 12940(h) makes it unlawful,
Like claims brought under Title VII, claims for violations of FEHA involve shifting burdens as set forth in
To establish a prima facie case for retaliation, a plaintiff must demonstrate "(1) he or she engaged in a `protected activity,' (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer's action."
If a plaintiff succeeds, the burden of production shifts to the defendant to present admissible evidence demonstrating a legitimate nonretaliatory reason for its actions.
An employee, who opposes in good faith his employer's discrimination, has engaged in a protected activity even if it turns out, ultimately, that the employer's perceived discriminatory conduct was not unlawful.
Here, the evidence demonstrates that Plaintiff complained about sexual harassment of Medrano in October 2009. He also complained that Medrano's suspension in February 2010 and her firing in March 2012 appeared to be related to her complaint of sexual harassment. He reported that these acts were unlawful and that he intended to assist her in litigation against Defendant if she chose to file a lawsuit. Defendants do not suggest that Plaintiff lacked a good faith belief that Defendants engaged in discrimination or retaliation when he made these statements. Likewise, they do not dispute that they were aware of the statements. Thus, each is protected by FEHA.
Although an adverse employment action must "materially affect the terms, conditions, or privileges of employment to be actionable, the determination of whether a particular action or course of conduct rises to the level of actionable conduct should take into account the unique circumstances of the affected employee as well as the workplace context of the claim" (
The parties do not specify the adverse employment actions they believe are at issue. Thus, the Court concludes Plaintiff claims the only adverse action was his termination in 2012. Defendant does not dispute that Plaintiff was fired. Thus, clearly, Plaintiff has clearly suffered an adverse employment action. See
The requisite causal link between protected activity and an adverse employment action may be "inferred from circumstantial evidence, such as the employer's knowledge that the plaintiff engaged in protected activities and the proximity in time between the protected action and the allegedly retaliatory employment decision."
The statements made in 2009 and 2010, present a more difficult-to-establish causal connection to the adverse employment action. The amount of time that passed between these statements and the adverse employment action may undermine such a claim. On the other hand, the statements made in 2012 to Pimental and Murray, do not suffer from this same infirmity.
The 2012 statements complained about what Plaintiff perceived to be unlawful treatment of Medrano. Within days of these complaints, Plaintiff was fired. Given the short period of time between the statements and the firing, a causal link may be inferred between Plaintiff's protected activity and the adverse employment action. See, e.g.,
Defendants set forth information that Plaintiff has experienced performance issues in the years leading up to his firing. (DUDF 81) They also present evidence that Plaintiff allowed Medrano to take rest breaks that far exceeded the 10 minutes permitted by hotel policy.
A plaintiff may establish pretext "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."
Here, there is no direct evidence that Defendants acted for purposes of retaliation. However, Plaintiff presents indirect evidence demonstrating that Defendants retaliated against him when they fired him.
Plaintiff has offered evidence that he was not the only one who signed time sheets onto which employees detailed their work hours and rest and meal breaks, despite lacking knowledge whether the employees' entries were accurate. Plaintiff implies that signing the time sheet was merely to ensure breaks were provided rather than as verification the employee had taken no more time than hotel policy allowed.
Review of the time sheets at issue support Plaintiff's arguments. First, there is an indication on the form requiring employees to acknowledge that they were expected to provide accurate entries. (Doc. 37-6 at 20, 21) The time sheets read, "My signature below attests that I have received all rest periods to which I am entitled to on these work days and accurately report the time I have worked."
On the time sheet form—which is constructed of a table with various headings for employees to enter their times in and out—there is a column with the heading, "Signature," under which all of the employees have signed. (Doc. 37-6 at 20, 21) Below the time sheet table is the word, "Manager" and a line next to it.
Despite this, Sommer concludes that Plaintiff's signature on these time sheets "confirm[ed] their accuracy" without any factual support for why he believes this is the case. (Doc. 37-6 at 96) Likewise, Thornell states his conclusion that Plaintiff "approved" the time sheets.
Pimental testified that he did not think that Plaintiff had falsified documents at the time he conducted his investigation
Likewise, Murray testified he was not required to verify the amount of time his secretary took breaks and that he did not know whether another local manager, Eric Kuhn, who was in charge of food service, was required to verify the accuracy of the amount of time each of his subordinates took for rest break. (Doc. 41-8 at 7-8) Kuhn asserts that signing the time sheets was not a verification of the accuracy of the times reported by his employees and that he was trained specifically that his only obligation was to ensure that the each employee documented that he/she took the breaks. (Doc. 39-2 at 5-6) Thus, it appears that enforcement of the "verification" policy as it relates to time sheets was selective.
Plaintiff argues that Defendant created evidence after the firing as evidence of pretext. Plaintiff refers to a March 5, 2010 memo in which, purportedly Murray detailed to Plaintiff performance issues and, more to the point, detailed the meal and rest period policies. (Doc. 37-6 at 92) Though there is a line for Plaintiff's signature, the document is not signed by him.
Oddly, Murray fails to provide any detail about how the memo or its contents were conveyed to Plaintiff though Sommer indicates that Plaintiff was "counseled" at the time it was prepared. (Doc. 37-6 at 95-96) Sommer fails to explain whether he was present at the counseling session or how he learned of it and neither Murray nor Sommer explains why there was no note on the document indicating Plaintiff refused to sign it.
Thus, clearly, there is a question of fact as to when the document was prepared, whether it was presented to Plaintiff and whether Plaintiff was counseled about the requirements of rest breaks at that time. When the evidence is taken most favorably to Plaintiff, it appears he raises a sufficient inference that the document was prepared at some time near to Plaintiff's termination rather than when he was fired.
Plaintiff argues it is significant that all investigation conducted into his termination had been completed before he made his April 25 and 26, 2012 comments to Pimental and Murray. Pimental supports this and makes clear that he completed his investigation of the events which lead to the firing of Medrano and Plaintiff the day before Medrano was fired. (Doc. 41-7 at 40) There is no evidence that any further investigation occurred.
To the contrary, if the evidence is accepted, as it must, in the light most favorable to Plaintiff, it appears that there were no plans to fire Goold at the time Medrano was fired. A piece of evidence which supports this is that, despite Murray's full knowledge of the outcome of Pimental's investigation, Murray assured Plaintiff, at least indirectly, that his job was not at risk. (Doc. 42-3 at 41) Murray did not admit this at his deposition but the e-mail exchange between Murray and Goold on April 20, 2012, supports Plaintiff's claim.
In his e-mail to Murray, Plaintiff expressed concern that Murray had sought additional assistance for Plaintiff's department and went behind his back to do so. (Doc. 42-3 at 41) Plaintiff expressed to Murray that it was Plaintiff's obligation to seek additional help when it was needed and felt that Murray seeking this assistance indicated "something `bigger' is in the works regarding my job performance which I am unaware of."
On the other hand, Plaintiff questions that if he had performance issues that merited termination either at the time Medrano was fired or before, why he was permitted to continue to work.
Plaintiff makes much of the fact that it is unclear exactly who made the decision to terminate him. At a hearing held in state court, Murray testified that he made the determination. In response to the question, "And you made that decision to terminate Mr. Goold's employment?" (Doc. 41-2 at 6), Murray responded, "Yes, ma'am."
Then, in initial discovery responses, Defendants claim that Murray, Pimental, Sommer and Thornell made that determination. Contrary to this, Pimental testified that he was not a decision maker. (Doc. 41-7 at 41-42) Likewise, Murray asserts in his declaration that he "endorsed" the decision to fire Plaintiff (Doc. 37-6 at 83) but testified that he was "directed" to fire Plaintiff by the Area Vice President, Brad Hutton. (Doc. 41-8 at 13) Despite this, though Defendants' have added that they admit that Brad Hutton was a decision maker (Doc. 42-3 at 22), they have not retreated from the position that Murray and Pimental had this role too.
On the other hand, Murray knew that Plaintiff and Medrano frequently conducted business meeting while "on break" but did not report this information to Sommer, Thornell or Hutton. (Doc. 41-9 at 9-11) Pimental, himself, conducted business while on breaks with others who were on break. (Doc. 47-7 at 21) Likewise, neither Murray
Thus, though there is uncertainty as to those who actually decided to fire Plaintiff, only Murray and Pimental had the full information about the circumstances and but did not provide it to the others. Even still, the testimony of Murray and the Defendants' responses to discovery demonstrate that both Murray and Pimental decided to fire Plaintiff and, given they are the two to whom Plaintiff expressed his concerns over the legality of Medrano's firing, the Court must conclude that Plaintiff has met his burden of demonstrating a triable issue of fact that the firing was a pretext for retaliation.
For these reasons, the Court finds there are triable issues of fact whether Defendants' proffered reasons for Plaintiff's firing were a pretext for unlawful retaliation.
Libel is "a false and unprivileged publication by writing . . . which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation. Cal. Civ. Code § 45. Likewise, slander is "a false and unprivileged publication, orally uttered, and also communications by radio or any mechanical or other means which: [¶¶] 3. Tends directly to injure him in respect to his office, profession, trade or business, either by imputing to him general disqualification in those respects which the office or other occupation peculiarly requires, or by imputing something with reference to his office, profession, trade, . . . [¶] or 5. Which, by natural consequence, causes actual damage." Cal. Civ. Code 46. A communication may be privileged is it is made,
Cal. Civ. Code § 47. The statements made orally and in writing related to Plaintiff's falsification of time records falls within the protection of Civil Code § 47. This privilege will be lost, however, if the statements are made with actual malice.
Here, there is sufficient evidence that Murray and Pimental spoke with actual malice when they made the statements that Plaintiff falsified time records.
For his part, Pimental fully admits that he did not believe that Plaintiff had falsified the time sheets after completing his investigation despite that he confirmed that the times listed by Medrano on the time sheets—which bear Plaintiff's signature—did not correspond to those times reflected on the video. (Doc. 41-7 at 49) Given this, there is no explanation for why he or any of the speakers could have believed that the statement that Plaintiff falsified time records was true.
Similarly, as noted above, Sommer fails to explain why he believed Plaintiff falsified the time records. (Doc. 37-6 at 96) Thornell also fails to explain why he believed that Plaintiff placing his signature on the time sheet meant that he "approved" them or the time entries placed on them by the employees.
As set forth above, Plaintiff has demonstrated a prima facie case of retaliation. Likewise, though Defendants have demonstrated legitimate business reasons for Goold's termination, Plaintiff has presented sufficient evidence that these reasons were a pretext for unlawful retaliation. Moreover, because there is evidence statements related to Plaintiff falsifying time records were made with actual malice, there is a question of fact whether Defendants defamed Plaintiff.
Based upon the foregoing, the Court
1. Defendant's motion for summary judgment (Doc. 37, 43) is
IT IS SO ORDERED.
For example, the blurb claims that Plaintiff's termination was delayed due to Pimental's vacation which was taken during the investigation. (Doc. 41-2 at 27) However, Pimental's investigation was completed before Medrano was fired and can have no impact on the timing of Plaintiff's termination. (Doc. 41-7 at 32-39, 42) In fact, Sommer's declaration makes clear that the review of the time log sheets and "other supporting documentation" and the video footage all occurred before Medrano was fired. (Doc. 37-6 at 96-97) Though the Court does not doubt that the management members needed to consult on the topic, Sommer claims in his declaration that he decided Plaintiff should be fired before Medrano was fired (
Notably, the February 26, 2010 memo from Murray to Plaintiff contains further support for what appears to be a violation of Labor Code § 226.7. The memo reads, "On duty meal waivers are also required for any team member not able to be relieved of all duties for a meal period." Emphasis added. Thus, it appears that rather than relieve the employee of duties or pay the employee the extra hour of pay, Defendants required employees to submit a waiver of the meal break.
