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April 27, 1999


The opinion of the court was delivered by: Gonzalez, District Judge.



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 termination.

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. Applicable Law

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 summary judgment.

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 ...

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