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CELLINI v. HARCOURT BRACE & CO.
April 27, 1999
JOHN CELLINI, PLAINTIFF,
HARCOURT BRACE & COMPANY; HARCOURT GENERAL, DEFENDANTS.
The opinion of the court was delivered by: Gonzalez, District Judge.
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
Plaintiff John Cellini, a former employee of defendant Harcourt
Brace & Company ("Harcourt Brace"), brings this action against
Harcourt Brace and Harcourt General ("Harcourt General"), the
parent Corporation of Harcourt Brace, based on allegations
surrounding his resignation from the position of telemarketing
coordinator for Harcourt Brace's professional publishing division.
Plaintiff began his employment with Harcourt Brace on January
16, 1996. Prior to commencing his employment with Harcourt Brace,
plaintiff signed an employment application, entitled "Harcourt
Brace & Company Or A Subsidiary Application for Employment,"
which stated that plaintiffs employment could be terminated by
Harcourt Brace "with or without cause" and "with or without notice
at any time." (Dow Decl., Ex. 10.) During his employment with
Harcourt Brace, plaintiff received copies of a bonus plan on
three separate occasions which stated that plaintiff was an "at
will" employee of Harcourt Brace.
On December 3, 1996, plaintiff filed a complaint with the Equal
Employment Opportunity Commission ("EEOC") alleging sexual
harassment by a female supervisor, Jenna Lake ("Lake"). In his
EEOC complaint, plaintiff alleged (1) that Lake routinely
referred to plaintiff as "gigante phallus," "giant penis," and
"GP"; (2) that Lake patted and pinched plaintiffs bottom in
mid-September, as he was leaving the office of co-worker John
Losavio ("Losavio"); and (3) that, while sitting in Losavio's
office, Lake moaned and stated "I need sperm" in plaintiffs
presence. Harcourt Brace conducted an internal investigation in
response to plaintiffs complaint, which included interviews with
plaintiff, Lake, Losavio, and co-worker Keri Sims ("Sims"). David
Scroggins ("Scroggins"), Harcourt Brace's Employment Manager,
conducted the internal investigation. Based on the results of the
investigation, on December 17, 1996 Harcourt Brace reprimanded
both plaintiff and Lake for unprofessional and inappropriate
conduct. Harcourt Brace warned both Lake and plaintiff that any
future conduct of this kind would result in their immediate
After plaintiff received this initial warning, plaintiff
confronted Losavio, accused him of making false statements, and
called him a "scum." Losavio reported this incident to the Human
Resources Department. Subsequently, Sims reported that plaintiff
had telephoned her at her home, on two separate occasions,
wishing to talk to her about his sexual harassment complaint
against Lake. Sims stated that she was uncomfortable interacting
with plaintiff at work. On December 23, 1996, Marilyn Bailin
("Bailin"), Director of Harcourt Brace's Human Resources
Department, issued a second written warning reprimanding
plaintiff for his "rude and abusive" conduct toward Sims and
Losavio. In addition, plaintiffs supervisor, Christine Lee
("Lee"), instructed plaintiff not to interact directly with
either Lake or Sims in the future.
Plaintiff contends that, after he filed his sexual harassment
complaint with the EEOC, he was subjected to adverse treatment
by his co-workers at Harcourt Brace. In addition to the
aforementioned investigation, warnings, and instructions,
plaintiff claims that Harcourt Brace employees retaliated against
him by subjecting him to unjustified criticisms of his job
performance. Plaintiff resigned from Harcourt Brace on January 15,
1997, in anticipation of a negative job performance evaluation on
his one-year anniversary.
On February 17, 1998, plaintiff filed suit against defendants
in San Diego Superior Court.*fn1 In his complaint, plaintiff
asserts the following nine state law causes of action against
defendants: (1) sexual discrimination and harassment in violation
of California's Fair Employment and Housing Act ("FEHA"), Cal.
Gov't Code § 12940; (2) failure to maintain a workplace free
from harassment in violation of FEHA; (3) retaliation in violation
of FEHA; (4) statutory discrimination in violation of California
Civil Code sections 51.5, 51.7, 51.9, 52, and 52.1; (5)
intentional infliction of emotional distress; (6) violation of
Article I, sections 1, 7, and 8 of the California Constitution;
(7) wrongful constructive termination in violation of public
policy; (8) breach of an implied-in-fact contract to only
terminate for good cause; and (9) defamation. Plaintiff dismissed
his fourth cause of action on June 2, 1998, in response to a
demurrer filed by defendants in state court.
Defendants removed plaintiffs suit to this Court on August 5,
1998, invoking the Court's jurisdiction based on the parties'
diversity of citizenship.*fn2 On March 10, 1999, the parties
stipulated to the dismissal of plaintiffs first, second, fifth,
and ninth causes of action. Now before the Court is defendants'
motion for summary judgment or, in the alternative, for partial
summary judgment on plaintiff's remaining third, sixth, seventh,
and eighth causes of action.
A federal district court sitting in diversity must apply the
substantive law of the forum state. See, e.g., American Triticale,
Inc. v. Nytco Servs., Inc., 664 F.2d 1136, 1141 (9th Cir. 1981)
("It is well settled that a federal court exercising diversity
jurisdiction must apply substantive state law.") (citing Erie R.R. Co.
v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938)). In
the present case, defendants removed plaintiffs action from the
California state court to the United States District Court for
the Southern District of California based on diversity of
citizenship. Therefore, the Court is required to apply
California's substantive law in ruling on defendant's motion for
In a diversity suit, however, federal law governs questions of
procedure. See Hanna v. Plumer, 380 U.S. 460, 470-74,
85 S.Ct. 1136, 14 L.Ed.2d 8 (1965). Because a motion for summary
judgment is a procedural device, see Fed.R.Civ.P. 56, in the
instant case, the Court applies the federal standard for summary
judgment. See, e.g., Martinez v. Asarco Inc., 918 F.2d 1467, 1470
n. 3, 1474 (9th Cir. 1990) (applying, in a diversity case, the
federal standard for summary judgment ...