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 ...