United States District Court, N.D. California
April 18, 2005.
LUZVIMINDA UNGSON-SENAS, Plaintiff,
U.S. BANK, JACK CATTON and DONNA NULLMEYER, Defendants.
The opinion of the court was delivered by: CLAUDIA WILKEN, District Judge
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
Defendants U.S. Bank, Jack Catton and Donna Nullmeyer
(collectively, Defendants) move for summary adjudication, or in
the alternative partial summary adjudication, of Plaintiff
Luzviminda Ungson-Senas' claims against them for (1) wrongful
termination in violation of public policy; (2) breach of the
implied covenant of good faith and fair dealing; (3)
discrimination based on race and national origin; (4) sexual
harassment; and (5) illegal retaliation in response to
complaints. Plaintiff, appearing pro se, opposes the motion.
The Court finds Defendants' motion for summary judgment
appropriate for decision without oral argument as permitted by
Civil Local Rule 7-1(b) and Federal Rule of Civil Procedure 78.
See Partridge v. Reich, 141 F.3d 920, 926 (9th Cir. 1998), (noting that district court may decide summary judgment issues
without oral argument if parties have opportunity to submit
written materials) (citing Lake at Las Vegas Investors Group,
Inc. v. Pacific Malibu Dev. Corp., 933 F.2d 724, 729 (9th Cir.
1991) cert. denied, 503 U.S. 920 (1992)). Having considered all
the papers filed by the parties, the Court grants Defendants'
motion for summary judgment.
Except where otherwise noted, the facts below are not subject
to conflicting evidence. On April 1, 2002, Plaintiff was hired by
Defendant U.S. Bank as a Sales and Service Coordinator at its
branch location at 1414 Webster Avenue in Alameda, California
(the Webster Branch). U.S. Bank's human resources representative
offered Plaintiff the job in a letter, stating in part, "Your
employment in this position will be at will," and offering her an
annual salary of $34,000. Hochschild Decl., Ex. A, Ungson-Senas
Dep., Ex. 15, March 21 Letter to Luzviminda Ungson-Senas. As
Sales and Service Coordinator, Plaintiff was responsible for
supporting the then-Branch Manager, Michele Andrada-Lee, in the
administration of major branch activities, including "delivering
strong customer sales and service [and] insuring compliance with
operational policies and procedures." Catton Decl., Ex. A, Sales
and Service Coordinator Job Description.
According to Defendant Jack Catton, then the East Bay District
Manager responsible for supervision of the Webster Branch, Ms.
Andrada-Lee informed him that she was concerned about Plaintiff's
poor interpersonal skills, including rudeness to customers. Catton Decl. ¶ 6. Plaintiff admits that she was
reprimanded by Ms. Andrada-Lee, including for an incident in
which Plaintiff refused to set up a teller drawer for a trainee
teller. Ungson-Senas Dep. 117:2-118:12; Ungson-Senas Dep., Ex.
18, August 23, 2002 Memo from Michele Lee to Luz Senas Re:
Insubordination (August 23, 2002 Memo). In a written memo, Ms.
Andrada-Lee warned Plaintiff that her refusal to set up the
drawer was argumentative and insubordinate, and that further such
unprofessional conduct "may result in further disciplinary action
up to and including the termination of your employment with U.S.
Bank." August 23, 2002 Memo. Mr. Catton complained to Ms.
Andrada-Lee that Plaintiff repeatedly refused to identify herself
by first name when answering the phone, despite his express
request that she do so as a matter of courtesy to customers.
Catton Decl., Ex. B, August 21, 2002 Email from Jack Catton to
Michele Andrada-Lee; see also Ungson-Senas Dep. 120:1-123:15
(describing Catton's instruction as an "illegal detention"
because Catton was interfering with Plaintiff's performance at
Ms. Andrada-Lee was transferred to another location in
September, 2002. The Branch Manager position remained vacant,
while Plaintiff continued in her role as coordinator of the
Webster Branch without an on-site supervisor. Plaintiff was not
interviewed for the position as Branch Manager after Ms.
Andrada-Lee's departure. Ungson-Senas Dep. 170:12-18. However,
Plaintiff never filled out an application for the job, and at her
deposition was unable to remember whether she ever indicated to
bank management that she wished to be considered. Id. at 171:3-9.
Defendant Donna Nullmeyer, who is white, was hired as Branch
Manager in February, 2003. Nullmeyer Decl. ¶ 1. Ms. Nullmeyer was
informed by Mr. Catton that he had serious concerns about
Plaintiff's job performance, but that he had not terminated
Plaintiff because the Branch was short-staffed. Id. ¶ 2. Ms.
Nullmeyer states in her declaration that she concluded that,
while Plaintiff had the necessary accounting skills, she lacked
"interpersonal skills" needed for her position and was rude and
uncooperative. Id. ¶ 3. In a March 18, 2003 memo to Plaintiff,
Ms. Nullmeyer described as "problematic" certain activities for
which Plaintiff was responsible, such as customer service,
answering the phone, wearing the employee name badge, sales and
communication with the Branch Manager. Id. Ex. A, March 18,
2003 Memo from Donna Nullmeyer to Luz Senas. The memo concluded,
"It is my hope to work with you to improve these areas and to
show positive results in a quick period of time." At her
deposition, Plaintiff acknowledged that she received the memo and
that Ms. Nullmeyer emphasized the need for prompt improvement in
all of these areas. Ungson-Senas Dep. 132:5-12.
According to Ms. Nullmeyer, on March 26, 2003, after observing
Plaintiff fail to respond to a customer's request for assistance,
she concluded that it was appropriate to terminate Plaintiff's
employment. Nullmeyer Decl. ¶ 4-5. Ms. Nullmeyer and Mr. Catton
agreed that he would inform Plaintiff of the decision
immediately. That day, Ms. Nullmeyer asked to speak with
Plaintiff. In response, Plaintiff asked to take her lunch break. The parties agree that although Plaintiff was allowed to
take her lunch break, Mr. Catton commented, "You already ate your
lunch when you had your first break" and Ms. Nullmeyer told
Plaintiff, "[T]his is your last lunch." See Complaint ¶ K, L.
When Plaintiff returned from her break, Mr. Catton informed her
that she was being terminated. According to a letter dated that
same day, Plaintiff was involuntarily terminated due to
"insubordination and lack of professionalism." Catton Decl., Ex.
D, March 26, 2003 Letter from Jack Catton to Luzviminda Senas.
While Plaintiff provides no evidence that would refute the
preceding sequence of events, she maintains that the stated
reasons for her termination were pretextual. First, Plaintiff
claims that she was terminated in violation of public policy for
reporting that other Webster Branch employees were engaged in
"illegal and fraudulent activities," specifically with regard to
a "$50 Million credit that keeps on hopping from one account to
another that had finally settled on the dummy account of one of
the employees of the bank." Complaint ¶ 15. Acting on an email
instructing employees to notify U.S. Bank's corporate security
office upon identification of the $50 million credit, Plaintiff
contacted corporate security by phone and provided them with the
account number of a Webster Branch co-worker. This incident
occurred "months or weeks" prior to her termination. Ungson-Senas
Dep. 141:10. Ms. Nullmeyer states, and Plaintiff does not
dispute, that she was unaware of the alleged report of illegal or
fraudulent activity by bank employees when she made the decision
to fire Plaintiff. Nullmeyer Decl. ¶ 8. Plaintiff provides no evidence that Mr. Catton was aware of her report.
Plaintiff also claims that Defendants breached the implied
covenant of good faith and fair dealing in several ways. The
contract Plaintiff identified governing her employment is her
offer letter. Ungson-Senas Dep. 92:8-20. That letter explicitly
stated that her employment was at-will, at an annual salary of
$34,000. Nevertheless, Plaintiff claims that she had an implied
contract prohibiting termination except for good cause. She bases
her claim solely on U.S. Bank's progressive discipline policy,
which pertains to employees who open new accounts which incur
loss within six months.*fn1 Pl.'s Opp., Ex. 8.
Plaintiff's other claims for violation of the implied covenant
relate to the terms and conditions of her employment. Plaintiff
did not receive commission payments for accounts opened. Her
request to attend banker training was denied. Plaintiff also
claims that her request for leave to study for the Certified
Public Accountant (CPA) examination was denied, although she
admits that Ms. Nullmeyer did not reject the request outright,
but said she would "study" the request. Ungson-Senas Dep.
164:4-11. Plaintiff further contends that her level of compensation was unfair; she performed significantly more work
for her salary than a male employee who was paid almost as much,
and almost as much work as the female Branch Managers, whose
salaries were much higher. Plaintiff conceded in her deposition
that Defendants made no written or oral promise that she was, or
would become, entitled to commissions, banker training, leave to
prepare for the CPA exam or a higher salary.
Plaintiff also claims that Defendants discriminated against her
by failing to promote and then terminating her on the basis of
race, color and national origin; subjected her to a hostile work
environment due to her sex; and terminated her in retaliation for
her complaints about discrimination and harassment. Plaintiff is
originally from the Philippines, has a brown skin color and
speaks accented English.
According to Plaintiff, Mr. Catton told her on March 6, 2003,
"You are my mate," and threw a small piece of paper at her that
landed inside her blouse. Complaint ¶ I. Plaintiff also claims
that she "felt a human head structure that landed on her lips"
and kissed her. Id. However, Plaintiff was unable to remember
who did this, or whether the "head structure" was in fact a
person. Ungson-Senas Dep. 181-182. Although this incident
occurred while Plaintiff was engaged in conversation with Mr.
Catton, she confirmed that it was not he who kissed her. Id. at
During her employment at the Webster Branch, Plaintiff never
reported her complaints regarding discrimination or harassment to
U.S. Bank's corporate or local human relations department,
although she was aware that this was the company's reporting procedure. Ungson-Senas Dep. 210:15-22, 207:7-19. On June 16,
2003, Plaintiff wrote to the CEO of U.S. Bank, attaching a report
of discrimination and unfair treatment which she later filed with
the EEOC. Id. Ex. 10. The EEOC and California Department of
Fair Employment and Housing (DFEH) issued right-to-sue notices on
August 18, 2003. Ungson-Senas Dep. Ex. 10, 12.
On November 17, 2003, Plaintiff filed complaints in both the
Alameda County Superior Court and the Northern District of
California. Defendants removed the State complaint to federal
court. On May 11, 2004, the Court dismissed as duplicative the
original federal complaint.
Summary judgment is properly granted when no genuine and
disputed issues of material fact remain, and when, viewing the
evidence most favorably to the non-moving party, the movant is
clearly entitled to prevail as a matter of law. Fed.R.Civ.P.
56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986);
Eisenberg v. Ins. Co. of N. Am., 815 F.2d 1285, 1288-89 (9th
The moving party bears the burden of showing that there is no
material factual dispute. Therefore, the court must regard as
true the opposing party's evidence, if supported by affidavits or
other evidentiary material. Celotex, 477 U.S. at 324;
Eisenberg, 815 F.2d at 1289. The court must draw all reasonable
inferences in favor of the party against whom summary judgment is
sought. Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986); Intel Corp. v. Hartford Accident & Indem.
Co., 952 F.2d 1551, 1558 (9th Cir. 1991). Material facts which would preclude entry of summary judgment
are those which, under applicable substantive law, may affect the
outcome of the case. The substantive law will identify which
facts are material. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986).
Where the moving party does not bear the burden of proof on an
issue at trial, the moving party may discharge its burden of
showing that no genuine issue of material fact remains by
demonstrating that "there is an absence of evidence to support
the nonmoving party's case." Celotex, 477 U.S. at 325. The
moving party is not required to produce evidence showing the
absence of a material fact on such issues, nor must the moving
party support its motion with evidence negating the non-moving
party's claim. Id.; see also Lujan v. Nat'l Wildlife Fed'n,
497 U.S. 871, 885 (1990); Bhan v. NME Hosps., Inc.,
929 F.2d 1404, 1409 (9th Cir. 1991), cert. denied, 502 U.S. 994 (1991).
If the moving party shows an absence of evidence to support the
non-moving party's case, the burden then shifts to the opposing
party to produce "specific evidence, through affidavits or
admissible discovery material, to show that the dispute exists."
Bhan, 929 F.2d at 1409. A complete failure of proof concerning
an essential element of the non-moving party's case necessarily
renders all other facts immaterial. Celotex, 477 U.S. at 323.
I. Wrongful Termination in Violation of Public Policy
Defendants argue that they are entitled to summary adjudication
of Plaintiff's State law claim for wrongful termination in
violation of public policy because she cannot identify the public policy at issue or the necessary nexus
between that policy and her termination.
In order to sustain a claim for wrongful termination in
violation of public policy, Plaintiff must prove that her
dismissal violated a fundamental and substantial policy that
affects society at large and was well established at the time of
her discharge. Stevenson v. Superior Court, 16 Cal. 4th 880,
889 (1997) (citing Foley v. Interactive Data Corp.,
47 Cal. 3d 654, 669-670 (1988)). In addition, if her claim is based on
retaliation for reporting violations of a statute, Plaintiff must
establish "the required nexus between [her] reporting of alleged
statutory violations and [her] allegedly adverse treatment" by
Defendants. Turner v. Anheuser-Busch, 7 Cal. 4th 1238, 1258
Plaintiff points to both her exercise of her statutory right to
take a lunch break and her report to U.S. Bank's corporate
security office of the $50 million "scam," which report Plaintiff
claims was required by anti-money-laundering laws. Even assuming,
arguendo, that each of these public policies is sufficient to
support a claim for wrongful termination in violation of public
policy, Plaintiff has not provided evidence that raises a dispute
of material fact as to the existence of the required nexus
between these policies and her termination.
Plaintiff claims that the fact that she was terminated after
she reported the appearance of the peripatetic $50 million credit
is sufficient to establish the required "nexus." However, the
undisputed evidence shows that Ms. Nullmeyer was not aware of the
report to corporate security when she made the decision to fire Plaintiff. Plaintiff has offered no evidence to show that Mr.
Catton was aware of the report or that other U.S. Bank officials
who were aware of it participated in Ms. Nullmeyer's ultimate
decision to terminate her. In the absence of any such evidence,
there are no grounds on which to infer that Plaintiff's report of
an irregularity in response to an emailed request from U.S. Bank
corporate management caused Defendants to terminate her.
Similarly, Plaintiff has provided no evidence sufficient to
raise an disputed issue of fact as to whether her declaration
that she was entitled to a lunch break caused Defendants to
terminate her. Plaintiff does not dispute that Defendants allowed
her to take her statutory lunch break, on the day she was fired
and at other times. Indeed, Ms. Nullmeyer's statement, "this is
your last lunch," supports Defendants' contention that the
determination to fire Plaintiff was made prior to her insistence
on her statutory right to a lunch break.
For these reasons, the Court grants Defendants' motion for
summary adjudication of Plaintiff's claim of wrongful termination
in violation of public policy.
II. Breach of Implied Covenant of Good Faith and Fair Dealing
Defendants move for summary adjudication of Plaintiff's second
claim, for breach of the implied covenant of good faith and fair
dealing. A covenant of good faith and fair dealing is implied in
all contracts. Foley, 47 Cal. 3d at 682. "Since the good faith
covenant is an implied term of a contract, the existence of a
contractual relationship is thus a prerequisite for any action
for breach of the covenant." Kim v. Regents of University of
Cal., 80 Cal. App. 4th 160, 164 (2000). The implied covenant cannot "impose substantive terms and conditions
beyond those to which the contract parties actually agreed." Guz
v. Bechtel Nat'l Inc., 24 Cal. 4th 317, 349 (2000). Instead, the
covenant serves to prevent one party from frustrating the other's
"right to receive the benefits of the agreement actually made."
Defendants argue that Plaintiff has no basis for her claim for
breach of the implied covenant of good faith and fair dealing
because she seeks to enforce terms and conditions beyond those in
any actual contract, either express or implied. The Court
examines each alleged breach in turn.
A. Plaintiff's Termination
Defendants argue that Plaintiff has no basis for her claim for
breach of the covenant of good faith and fair dealing because no
contract, express or implied, protected her from termination
at-will. Plaintiff claims that she enjoyed an implied contract
protecting her from termination without just cause. An at-will
employee "cannot use the implied covenant to create a for cause
employment contract where none exists." Eisenberg v. Alameda
Newspapers, Inc., 74 Cal. App. 4th 1359, 1391 (1999) (citing
Foley, 47 Cal. 3d at 690). In the absence of a contract
limiting Defendants' right to terminate her, Plaintiff cannot
bring a claim based on the implied covenant of good faith and
fair dealing challenging her termination.
Plaintiff correctly notes that progressive discipline policies
may be relevant in determining the existence of an implied
contract not to terminate except for good cause, and thus whether
an implied covenant to that effect applies. See Wood v. Loyola Marymount Univ., 218 Cal. App. 3d 661, 668 (1990);
Foley, 47 Cal.3d at 680 (quoting Pugh v. See's Candies, Inc.,
116 Cal. App. 3d 311, 327 (1981)) (listing factors that may bear
on existence and content of implied contract limiting employer's
right to fire employee, e.g. longevity of service, assurances of
continued employment and industry practice). However, the U.S.
Bank policy Plaintiff proffers, which provides guidelines for
disciplinary action against employees who open new accounts in
which loss occurs in the first six months, is inapposite. Pl.'s
Opp., Ex. 8. She was not accused of improper authorization of
accounts. Plaintiff has provided no evidence suggesting that any
of the other Foley factors apply. Therefore, the Court finds
that Plaintiff had no implied contract that barred her
B. Denial of Sales Commissions, Leave and Training
Plaintiff also contends that Defendants violated the implied
covenant of good faith and fair dealing by denying her
opportunities to receive sales commissions, to go on leave to
study for the CPA exam and to attend banker training. All of
these claims are deficient because Plaintiff has not shown that
Defendants were obliged to provide her with these benefits
pursuant to a contract, express or implied. The only compensation
offered in Plaintiff's hiring letter is a $34,000 annual salary,
and Plaintiff admits that she was never promised commissions.
Id. at 161:17-19. She identifies no contract or promise that
would give her the right to such leave, and no bank policy
regarding training and time off that Defendants violated. Id.
164:12-21. Moreover, Plaintiff admitted that her request for leave to study for the CPA board exam was not definitively
denied. Because Plaintiff was not entitled to these benefits
based on a contract, either express or implied, Defendants' acts
cannot constitute a breach of the implied covenant of good faith
and fair dealing.
C. Level of Compensation
Plaintiff alleges in her complaint that Defendants breached the
implied covenant by assigning her "too many responsibilities and
a high volume of customer service," resulting in unpaid overtime.
Complaint ¶ 19. Assuming arguendo that Plaintiff would have
been entitled to overtime pay, Plaintiff has failed to provide
sufficient evidence to establish a dispute of material fact as to
this claim. At her deposition, Plaintiff was unable to remember
or to estimate the number of times she was required to work extra
hours, or whether overtime occurred "often." Ungson-Senas Dep.
225:11-19; 226:7-13. Plaintiff never recorded her time, and never
asked for compensation for overtime hours. Id. at 225:20-24;
221:23-222:5. She "once" told William Shields, District
Operations Manager, that she had to work past 6:00 p.m. Id. at
With her opposition to this motion, Plaintiff submits a sworn
declaration that she had too many tasks to complete and that as a
result she worked "more than 40 hours per week" without overtime
pay. Ungson-Senas Decl. ¶ 2(a). This general and conclusory
testimony does not meet her burden to produce "specific evidence"
showing that a dispute exists as to unpaid overtime. Bhan,
929 F.2d at 1409. Plaintiff proffers printed records of her
compliance curriculum training to show that she completed certain intranet courses on six Saturdays and Sundays
between May 5 and June 22, 2002. Pl.'s Opp. Ex. 9. However, these
printouts are insufficient to support Plaintiff's contention that
"there have been excess hours not paid" by Defendants. Plaintiff
submitted no evidence to show that these trainings were mandatory
or that she actually worked more than forty hours without
compensation during the time period when she completed the
training. Therefore, the Court finds that there is insufficient
evidence to raise a factual dispute as to whether Defendants
violated the implied covenant by failing to pay Plaintiff
D. Equal Pay Claim
Plaintiff claims that Defendants breached the implied covenant
by assigning her more responsibilities for proportionately less
pay than other employees and denying her request for salary
increases, in violation of Equal Pay laws. Complaint ¶ 21.
California and federal Equal Pay laws prohibit employers from
paying employees less than members of the opposite sex for "equal
work on jobs the performance of which requires equal skill,
effort, and responsibility." 29 U.S.C. § 206(d)(1); Cal. Labor
Code § 1197.5(a).
Plaintiff has not shown that she was paid less than members of
the opposite sex for equal work involving equal skill, effort and
responsibility. Plaintiff does not identify a male employee who
performed a job requiring equal skill, effort and responsibility
yet was paid more than she. Instead, Plaintiff identifies the
female Branch Managers, who were Plaintiff's supervisors and made
substantially larger salaries, and the Webster Branch's male personal banker, who had "lesser
responsibility" and made slightly less than Plaintiff.
Ungson-Senas Dep. 169:14-22. Regardless of whether these
discrepancies were fair, they do not constitute a prima facie
case for violation of Equal Pay laws. See Forsberg v. Pacific
Northwest Bell Tel. Co., 840 F.2d 1409, 1414 (9th Cir. 1988)
("In order to make out a prima facie case under the EPA, a
plaintiff bears the burden of establishing that he or she did not
receive equal pay for equal work"). Therefore, there is no
evidence that Defendants breached the implied covenant by
violating Equal Pay laws with respect to Plaintiff's salary.
III. Discrimination Claims
Defendants move for summary adjudication of Plaintiff's State
and federal claims of discrimination based on race, color and
national origin. Defendants argue that Plaintiff failed to
provide sufficient evidence to meet her prima facie burden to
show discrimination or to support a rational inference that
Defendants' reasons for failing to hire her for the Branch
Manager position and for firing her were pretextual.*fn2
In McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973) and Texas Dep't of Cmty. Affairs v. Burdine,
450 U.S. 248 (1981), the Supreme Court established a burden-shifting
framework for evaluating the sufficiency of a plaintiff's
evidence in employment discrimination suits. The California
Supreme Court applied this burden-shifting analysis, in relevant
part, to State discrimination claims in Guz,
24 Cal. 4th at 354-358. Within this framework, a plaintiff may establish a
prima facie case of discrimination with circumstantial
evidence: a plaintiff must show that she is a member of a
protected class; that she was qualified for the position she held
or sought; that she was subjected to an adverse employment
decision; and that she was replaced by someone who was not a
member of the protected class or that the circumstances of the
decision otherwise raised an inference of discrimination. See
St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993)
(citing McDonnell Douglas and Burdine). Once the plaintiff
establishes a prima facie case, a presumption of discriminatory
intent arises. Id. To overcome this presumption, the defendant
must come forward with a legitimate, non-discriminatory reason
for the employment decision. Id. at 506-07. If the defendant
provides that explanation, the presumption disappears. See
id. at 511; Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th
In response to the defendant's offer of a non-discriminatory
reason, the plaintiff must produce "specific, substantial
evidence of pretext." Steckl v. Motorola, Inc., 703 F.2d 392,
393 (9th Cir. 1983). To survive summary judgment, the plaintiff
must introduce evidence sufficient to raise a genuine issue of
material fact as to whether the reason the employer articulated is a pretext for discrimination. The plaintiff may rely on the
same evidence used to establish a prima facie case or put forth
additional evidence. See Coleman v. Quaker Oats Co.,
232 F.3d 1271, 1282 (9th Cir. 2000); Wallis, 26 F.3d at 892. "[I]n
deciding whether an issue of fact has been created about the
credibility of the employer's nondiscriminatory reasons, the
district court must look at the evidence supporting the prima
facie case, as well as the other evidence offered by the
plaintiff to rebut the employer's offered reasons. And, in those
cases where the prima facie case consists of no more than the
minimum necessary to create a presumption of discrimination under
McDonnell Douglas, plaintiff has failed to raise a triable
issue of fact." Wallis, 26 F.3d at 890. "[T]he plaintiff `must
tender a genuine issue of material fact as to pretext in order to
avoid summary judgment.'" Id. (quoting Steckl,
703 F.2d at 393). Plaintiff must "produce specific facts . . . showing that
the employer's explanation is not credible," although she "need
produce very little evidence of discriminatory motive to raise a
genuine issue of fact." Lindahl v. Air France, 930 F.2d 1434,
1438 (9th Cir. 1991).
With respect to Defendants' failure to hire Plaintiff for the
Branch Manager job, Plaintiff has not provided sufficient
evidence to show that she suffered an adverse employment decision
as required for a prima facie case. Plaintiff was clearly aware
that the Branch Manager position was vacant. She did not apply
for the position and does not even remember telling anyone that
she was interested in being considered, nor has she introduced
any evidence indicating that Defendants discouraged her from applying for the job. Cf., e.g., Dews v. A.B. Dick Co.,
231 F.3d 1016, 1022 (6th Cir. 2000) (holding that plaintiff in
failure-to-promote case need not establish that he or she applied
for promotion where employer does not notify employees of the
available promotion or provide a formal mechanism for expressing
interest in promotion). Therefore, Plaintiff cannot proceed with
her claim that Defendants discriminated against her by failing to
promote her to Branch Manager.
Defendants have proffered legitimate, non-discriminatory
reasons for Plaintiff's subsequent termination, including
incidents of insubordination and lack of professionalism.
Plaintiff attempts to show that Defendants' performance-related
reasons were pretextual by pointing to Defendants' "decision to
retain a non-performing employee." Pl.'s Opp. at 17. According to
Plaintiff's deposition testimony, this allegedly "non-performing"
employee was a Hispanic teller whose medical condition sometimes
required that other Webster Branch employees miss their lunch
breaks while waiting for paramedics. Ungson-Senas Dep. 172-173.
Defendants' continued employment of this teller provides no
evidence whatsoever that Defendants' reasons for firing Plaintiff
For these reasons, the Court grants Defendants' motion for
summary adjudication of Plaintiff's discrimination claims.
IV. Sexual Harassment
Defendants move for summary adjudication of Plaintiff's claim
that she was sexually harassed in violation of California
Government Code § 12940(j)(1).
The required elements of a prima facie case for sexual harassment include, "(1) plaintiff belongs to a protected group;
(2) plaintiff was subject to unwelcome sexual harassment; and (3)
the harassment complained of was based on sex; [and] (4) the
harassment complained of was sufficiently pervasive so as to
alter the conditions of employment and create an abusive working
environment." Fisher v. San Pedro Peninsula Hosp.,
214 Cal. App. 3d 590, 608 (1989). California courts look to Title VII case
law for guidance in deciding Fair Employment and Housing Act
(FEHA) claims, and the standard is accordingly the same under
FEHA as under Title VII. See Nidds v. Schindler Elevator
Corp., 113 F.3d 912, 916 (9th Cir. 1996). To demonstrate a
hostile work environment, a plaintiff must show that the work
environment is abusive from both a subjective and an objective
point of view. See Fuller v. City of Oakland, 47 F.3d 1522,
1527 (9th Cir. 1995) (citing Harris v. Forklift Systems, Inc.,
510 U.S. 17, 21-22 (1993)). In evaluating the objective hostility
of a work environment, the factors to be considered include the
"frequency of 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." Nichols v. Azteca Rest. Enters.,
256 F.3d 864, 872 (9th Cir. 2001) (citation omitted).
Plaintiff describes incidents that allegedly created an abusive
working environment and were based on sex. Given Plaintiff's
inability to remember whose "human head structure" contacted her
and whether this head belonged to an actual person, the Court
declines to infer that this incident involved an unwelcome
advance by a supervisor or co-worker, and does not consider it further. Combined, Mr. Catton's alleged statement,
"You are my mate," and throwing of a small piece of paper at
Plaintiff are not frequent, severe or threatening enough to alter
the conditions of Plaintiff's employment and create an abusive
working environment. Cf. Nichols at 870, 872 (finding that
"relentless campaign of insults, name-calling, and vulgarities"
created an objectively hostile environment).
For these reasons, the Court grants Defendants' motion for
summary adjudication of Plaintiff's sexual harassment claim.
Defendants move for summary adjudication of Plaintiff's claim
that she was terminated in retaliation for her complaints. In
order to establish a prima facie case of retaliation under
either Title VII or FEHA, Plaintiff "must show she engaged in a
protected activity, she was thereafter subjected to adverse
employment action by her employer and there was a causal link
between the two." Mathieu v. Norrell Corp.,
115 Cal. App. 4th 1174, 1185 (2004) (citing Soldinger v. Northwest Airlines,
Inc., 51 Cal. App. 4th 345, 367 (1996)); see also Brooks v.
City of San Mateo, 229 F.3d 917, 928 (9th Cir. 2000). To the
extent that Plaintiff's retaliation claim rests on her report to
corporate security regarding the $50 million credit, this claim
was addressed in Section I above, and is not cognizable under
FEHA or Title VII. To the extent that her retaliation claim rests
on the discrimination complaints filed with U.S. Bank's CEO, the
EEOC or DFEH, Plaintiff cannot show the required causal link
because these complaints were filed after her termination.
For these reasons, the Court finds that Plaintiff has failed to provide sufficient facts to establish a prima facie case of
retaliation against Defendants.
Because the Court finds that Plaintiff has not established the
existence of a dispute of material fact as to any of her claims,
it does not reach Defendants' argument that certain claims cannot
be maintained against the individual Defendants.
For the foregoing reasons, the Court GRANTS Defendants' motion
for summary judgment (Docket No. 24). Judgment shall enter
accordingly. Defendants shall recover their costs from Plaintiff.
IT IS SO ORDERED.