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PATTERSON v. APPLE COMPUTER

September 19, 2005.

SHAUNE PATTERSON, Plaintiff,
v.
APPLE COMPUTER, INC., et al., Defendants.



The opinion of the court was delivered by: PHYLLIS HAMILTON, District Judge

ORDER GRANTING MOTIONS FOR SUMMARY JUDGMENT AND GRANTING MOTION FOR SANCTIONS
Defendants' motions for summary judgment and motion for sanctions came on for hearing before this court on July 20, 2005. Plaintiff appeared by her counsel Rachel Orejana, and defendants appeared by their counsel Lynne Hermle. Having read the parties' papers and carefully considered their arguments and the relevant legal authority, and good cause appearing, the court hereby GRANTS the motions as follows.

INTRODUCTION

  This is an employment discrimination case. Plaintiff Shaune Patterson is an African-American lesbian who was formerly employed by defendant Apple Computer, Inc. ("Apple"). Also named as defendants are Apple employees Dan Walker ("Walker"), Sheri Parker ("Parker"), and Steve Burmeister ("Burmeister").

  Plaintiff asserts 14 causes of action in the fifth amended complaint ("5thAC") — racial discrimination under 42 U.S.C. § 1981, against Apple; racial discrimination in violation of Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000e, et seq. ("Title VII"), against Apple; racial discrimination, in violation of the Fair Employment and Housing Act ("FEHA"), California Government Code § 12900, et seq., against Apple; violation of the California Equal Pay Act, California Labor Code § 1197.5, against Apple; harassment, in violation of FEHA, against Apple, Walker, and Parker; retaliation, in violation of FEHA, against Apple, Walker, Parker, and Burmeister; failure to take reasonable steps to prevent discrimination from occurring, in violation of FEHA, against Apple; failure to maintain environment free from harassment, in violation of FEHA, against Apple; defamation (slander), against Apple, Walker, and Parker; defamation (libel), against Apple, Walker, and Parker; invasion of privacy, against Apple, Walker, and Parker; wrongful termination in violation of public policy, against Apple; sexual orientation discrimination, in violation of FEHA, against Apple; and genetic characteristic discrimination, in violation of FEHA, against Apple.

  The four defendants now move for summary judgment as to all claims asserted against them. Plaintiff opposes the motions as to all claims, with the exception of the fourth cause of action for violation of the Equal Pay Act, which she concedes. Apple and Walker also move for sanctions pursuant to Federal Rule of Civil Procedure 11, arguing that the claims alleged against Walker are unwarranted by law and unsupported by any facts.

  BACKGROUND

  In 1996, plaintiff's brother Byron Patterson, a long-time friend of defendant Steve Burmeister, asked Burmeister to interview plaintiff for a position at Burmeister's then-employer, PacifiCare. Burmeister interviewed and hired plaintiff, at an annual salary of $37,000. Burmeister and plaintiff worked well together at PacifiCare, and Burmeister gave her a salary increase. According to plaintiff, she and Burmeister shared interests and background, and discussed many personal issues. Burmeister also socialized with plaintiff's family. Burmeister is gay, and he knew plaintiff was a lesbian before he hired her. Burmeister subsequently left PacifiCare for Rand, where he again recruited and hired plaintiff, at an annual salary of $55,000.

  Plaintiff eventually left Rand, because she had determined to become an options trader. However, she remained in contact with Burmeister. When she told him her trading career was not a success, Burmeister told her there might be an opening at Apple, where he was then working. Plaintiff applied for a position, giving Burmeister as a reference. She flew in from Southern California for the interview, and Burmeister picked her up at the airport and drove her to the interview. In May 2001, Apple hired plaintiff as a Compensation Consultant in the Human Resources ("HR") Compensation Group, at a starting salary of $88,000. According to Burmeister, he pushed for her salary to be larger than initially planned because he was aware that a salary freeze made it difficult to get pay increases at Apple.

  As a Compensation Consultant, plaintiff was expected to provide different types of employee compensation support services and information to various Apple clients. Compensation employees worked frequently with colleagues from a variety of Apple organizations, and were required to have good interpersonal and communication skills.

  In February 2002, plaintiff's first supervisor at Apple, Karen Kaufman ("Kaufman"), rated plaintiff as a "solid contributor," which is in the middle rank of Apple's performance evaluations. Kaufman noted that plaintiff had a number of interpersonal difficulties — she needed to work on being more communicative, to participate more in team meetings, and to be more forthcoming with her knowledge. Kaufman also noted comments by plaintiff's colleagues that plaintiff was not flexible or willing to jump in when others needed help.

  In November 2002, Burmeister became plaintiff's supervisor. According to Burmeister, plaintiff continued to discuss her personal issues with him, including her sexual orientation, weight problems, and medical issues. According to plaintiff, she experienced a lessening of the stress she had felt under prior supervisors.

  Burmeister offered plaintiff an opportunity to support the Apple Hardware Engineering organization, believing that this opportunity would give her a chance to showcase her skills and build a base of support for her clients. Plaintiff was expected to provide support through market comparisons, to respond to questions about compensation, to complete bonus presentations, and to attend staff meetings. This assignment was not successful. Plaintiff's engineering clients, including Cheryl Smith ("Smith"), an African-American HR Senior Director, found plaintiff to be unresponsive, unhelpful, and rude. Smith believed plaintiff had minimal interpersonal skills. According to Smith, plaintiff frequently responded, "No," or "That's not my job," when Smith sought her assistance. Plaintiff was also resistant to providing data on bonuses, stating that the task was hard. Smith received complaints from her HR team about plaintiff's attitude and refusal to perform work. These problems caused Smith ultimately to limit her interaction with Smith, and to seek intervention from Burmeister.

  Judy Goodson ("Goodson"), another African-American HR Director, found plaintiff to be often unavailable, rude, disrespectful, and negative. To create an opportunity for plaintiff, Goodson invited her to make a presentation to a Senior Vice President and his staff. However, plaintiff declined. Plaintiff also refused to attend Goodson's staff meetings, despite frequent requests from Goodson that she attend. Goodson informed Burmeister of these problems. Despite plaintiff's flaws, Burmeister states that he did not want to terminate her. Instead, he moved her back to her prior compensation duties, which involved mainly analysis and infrequent personal interaction.

  According to plaintiff's colleague Deborah House ("House"), plaintiff was frequently absent from department staff meetings and quarterly HR Department meetings. According to Burmeister, plaintiff was rude to her colleagues in the Compensation Group, prompting Burmeister to counsel her repeatedly about her inappropriate tone, demeanor, and ability to work with others and be a team player.

  Plaintiff's work day was also interrupted by ongoing personal appointments and activities. She maintained a standing weekly hair appointment during working hours. Starting in February 2002, she commenced weekly sessions with a psychologist whose office was in Oakland, approximately 60 miles from Apple's Cupertino offices. She also spent up to and hour and a half a day trading her personal stock portfolio, and at other times played video games and did crossword puzzles on her computer.

  Plaintiff believed she was entitled to yearly merit increases and promotions. However, Apple had a salary freeze in effect from the time plaintiff was hired until late 2003. Thus, the first opportunity for plaintiff to receive a merit increase was in connection with the review cycle in November 2003. When plaintiff learned that she was not receiving a merit increase, she accessed two Apple databases during work hours to obtain confidential salary and tenure information regarding certain of her colleagues.

  On November 12, 2003, plaintiff sent an e-mail to defendant Dan Walker, Apple's Chief Talent Officer, requesting that he provide her with a promotion and/or merit increase ("the November 12th e-mail"). The e-mail contained the confidential salary and tenure information that plaintiff had accessed from the Apple databases, and she copied the e-mail (or the information) to her brother, her psychologist, and an attorney she had consulted (but not retained). She did not block out any of the confidential information, such as her colleagues' names and salaries before sending the e-mail.

  Plaintiff subsequently testified in her deposition that the November 12th e-mail was not a complaint of discrimination, and that she was not implying that she intended to make a claim or initiate a lawsuit. Nevertheless, upon Walker's receipt of the e-mail, Apple became concerned about plaintiff's possible misuse of the information.

  According to Walker and Burmeister, plaintiff's November 12th e-mail generated concern at Apple because it was apparent that plaintiff had accessed salary and other confidential information regarding her manager and co-workers, and that this information had been accessed for personal purposes, not business purposes. It also appeared that plaintiff had disclosed the confidential information to third parties. Plaintiff was permitted to use her personal laptop computer for business purposes, and, as a result, her laptop contained an extensive compilation of confidential Apple employee information. Thus, Apple became concerned about plaintiff's possible misuse of this confidential information. This concern was heightened when Burmeister entered plaintiff's work area on November 12 to retrieve some documents, and discovered that plaintiff had left sensitive employee data unsecured on a table in her office next to what appeared to be a list of non-Apple personnel.

  Walker asked defendant Sheri Parker, Apple's Director of Employee Relations, to investigate the e-mail and make an appropriate response. This was consistent with Parker's job duties and responsibilities. Parker then met with Burmeister and discussed the possibility of suspending plaintiff during the investigation, as was common in such situations. Burmeister shared with Parker his concerns about how plaintiff might respond to such a suspension, telling her that Patterson had told him she had "guns," and had also stated on more than one occasions that if she was ever walked out of the company she would go out in a "blaze of glory." Parker was concerned, and telephoned David Hull ("Hull"), then an Apple Security Manager, to assess security concerns.

  During that call, Parker and Hull asked Burmeister to share with them what he knew about plaintiff, including information about plaintiff's family and personal situation, so they could determine whether plaintiff might be a danger to herself or others. In response, Burmeister discussed how plaintiff might react to being informed that she was being suspended, and answered questions about plaintiff's state of mind. He mentioned that plaintiff was unhappy for several reasons, and had been taking anti-depressant medication. When asked, Burmeister provided a physical description of plaintiff, stating that she was Black and obese. He also said that she was a lesbian. According to Parker, this information about plaintiff was not shared with anyone other than Parker or Hull.

  Subsequently, as part of the investigation, plaintiff met with Parker and Hull. Plaintiff confirmed that she had accessed and reviewed her manager's and co-workers' salaries and confidential information independent of any business reason. She considered it appropriate to access the information, and admitted that she had distributed the information to her attorney and therapist. She also confirmed that she had chosen to use a personal laptop for her work at Apple, and therefore possessed confidential Apple information on that laptop. At the conclusion of the meeting, Parker told plaintiff she was suspended with pay pending the outcome of the investigation.*fn1 Parker asked plaintiff whether Apple could inspect her laptop, and plaintiff consented.

  On November 18, 2003, plaintiff filed a charge of discrimination with the EEOC (charge No. 377-2004-00145), alleging discrimination on the basis of race, and retaliation for engaging in protected activities. She claimed that Walker had suspended her. She requested immediate closure, and on November 20, 2003, the EEOC issued plaintiff a right-to-sue letter

  Apple hired independent investigator Rebecca Speer ("Speer") to investigate the compensation and promotion issues plaintiff had raised. Speer is an attorney who consults with companies about employment-related issues. In her initial interview with Speer, plaintiff complained that the failure to promote her or increase her salary was inequitable because she believed it "didn't make sense" for her not to receive a raise or promotion. She reiterated the position she had taken in the November 12th e-mail, which was that she could think of no rational reason for her not to receive a promotion, in view of the fact that her responsibilities had grown and that three different managers had promised her she would receive a promotion. She then told Speer that the only difference between her and those who had received promotions was "race." In addition to interviewing plaintiff, Speer also interviewed Walker, Burmeister, Kaufman, Valerie Williams ("Williams" — a former Compensation Director), Smith, Goodson, and Denise Young Smith (a former Director of Employee Relations).

  In the course of the ongoing internal Apple investigation, Parker met with Burmeister and several Compensation Group employees regarding department policy. She did not reveal to them (except possibly Burmeister) that she was investigating plaintiff's conduct. According to Parker, her investigation revealed that employees in the Compensation Group understood that it was not appropriate for them to access the confidential salary information of co-workers for non-business-related purposes (although there was apparently no explicit written policy in effect). Parker concluded that plaintiff's conduct had been improper and that she had exhibited poor judgment. Nevertheless, she says she gave plaintiff the benefit of the doubt, and recommended that she not be disciplined. Burmeister accepted this recommendation and did not discipline plaintiff, and plaintiff returned to work after four weeks of (paid) suspension.

  Speer sent a copy of the report of her investigation to Apple on January 8, 2004. The report reflects that plaintiff's claim that "three different managers" had promised her a promotion was not accurate. The report indicates that in July or August 2001 (i.e., two or three months after plaintiff was hired at Apple), Williams and Kaufman had asked plaintiff to assume responsibility for additional client groups, prompting plaintiff to ask how that would affect her salary and title. According to plaintiff, both said in independent conversations, "We'll see."

  Speer's report further reflects that in May 2002, plaintiff again approached Williams to ask about a promotion, and Williams told her salaries were frozen and that she would review her compensation and title at the next review cycle (November 2003). In January or February 2003, however, Apple announced that a merit review would take place in March 2003. Plaintiff again raised the subject of a raise with Burmeister. According to Speer's report, plaintiff claimed that Burmeister told her the merit review would take place in November, and at that time, both she and House would receive promotions and raises. However, in his deposition, Burmeister subsequently vehemently denied having told plaintiff that either she or House would receive a raise in November 2003. Burmeister also denied plaintiff's description of her job duties (as claimed in the November 12th e-mail).

  Speer reported that Burmeister had explained that he had not granted plaintiff a raise in November 2003 because plaintiff was rated "solid contributor," not "significant contributor" or higher; and because plaintiff was already fairly compensated, as she had come in at a high level. Burmeister stated that Walker's organization (the HR-related groups) had received only a small pool of funds for merit increases, and that Walker had told Burmeister to limit raises and/or promotions to those who had made a "significant" contribution.

  Speer concluded that there was no merit to plaintiff's claim that she had been unfairly denied a salary increase and promotion. Speer looked at the other employees mentioned in plaintiff's e-mail, and found that Burmeister had applied the same criteria to those as to plaintiff. Only House had received an increase, because of her superior performance and because of her extraordinary level of responsibility. Speer also looked at the employees that plaintiff had pointed out as earning more money than she did, and set forth Burmeister's reasons for paying those employees at a higher rate.

  Plaintiff returned to work in late December 2003 or early January 2004. On January 8, 2004, she sent another e-mail to Walker, complaining of retaliation for having "fil[ed] a complaint of racial discrimination." She copied the e-mail to Burmeister, Fred Anderson (Apple's then-CFO), and her attorney, Waukeen McCoy. In the e-mail, plaintiff complained that her suspension and Parker's investigation were retaliatory, and that Parker's investigation also invaded her privacy and set her up for "public censure" as it involved a search of her office, a confiscation of her personal laptop, interviews with her peers, harassing questions by Parker, and an attempt to "freeze" out her attorney.

  Plaintiff also asserted that certain written guidelines that had been distributed at a December 15, 2003, HR staff meeting — regarding access by HR employees to confidential employee information — implicitly communicated to co-workers that plaintiff had done something wrong. Finally, she claimed that Walker and Parker had cut her responsibilities to 10% of the duties she had before her suspension, and denied her access to information she needed for her work. Apple again retained Speer to investigate plaintiff's allegations.

  On January 28, 2004, plaintiff filed a three charges of discrimination with DFEH. In the first, E200304-G-0644-00cr, plaintiff alleged that she had been harassed, denied a promotion, denied equal pay, and retaliated against by Walker, because of her race. The same day, DFEH provided plaintiff with a notice of case closure and right-to-sue letter.

  In the second charge, E200304-G-0644-01rc, plaintiff alleged that she had been harassed, denied a promotion, denied equal pay, and suspended from work on November 13, 2003, by Walker, because of her race. The same day, DFEH provided plaintiff with a notice of case closure and right-to-sue letter

  In the third charge, E200304-G-0644-02rc, plaintiff alleged that she had been harassed, denied a promotion, denied equal pay, and suspended from work by Walker and Parker, because of her race. The same day, DFEH provided plaintiff with a notice of case closure and right-to-sue letter. Plaintiff filed the present action on January 29, 2004.

  On February 9, 2004, Speer sent Apple the report of her second investigation. Speer found that the concerns stemming from plaintiff's handling of confidential employee information — and not a desire to retaliate against her — led to the decision to suspend her and conduct an investigation. Speer concluded that none of plaintiff's allegations had merit.

  In early 2004, Walker told Burmeister and other managers within HR that they had to cut several hundred thousand dollars from their budgets. Consequently, Burmeister made the decision to lay off three of the seven employees who reported to him. Plaintiff was laid off on March 5, 2004, along with two other employees who had worked at Apple longer than plaintiff had. When plaintiff was laid off, her duties were reassigned to her remaining colleagues in the Compensation Group. No one was hired to replace her. Moreover, when another Compensation Group employee left the group about a month later, that position was not filled. Like her colleagues, plaintiff was offered two months' pay as severance. Neither Walker nor Parker were involved in the decision to lay off plaintiff.

  On November 10, 2004, plaintiff filed an amended administrative charge, E200304-G0-644-00cr, to amend the three charges that had originally been filed on January 28, 2004. In the amended charged, she alleged that Steve Burmeister had discriminated against her on the basis of sexual orientation and genetic characteristic, when he laid her off on March 5, 2004.

  MOTIONS FOR SUMMARY JUDGMENT

  A. Legal Standard

  Summary judgment is appropriate when there is no genuine issue as to material facts and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56. Material facts are those that might affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is "genuine" if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. Id. The court may not weigh the evidence, and is required to view the evidence in the light most favorable to the nonmoving party. Id.

  A party seeking summary judgment bears the initial burden of informing the court of the basis for its motion, and of identifying those portions of the pleadings and discovery responses that demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the moving party will have the burden of proof at trial, it must affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party. On an issue where the nonmoving party will bear the burden of proof at trial, the moving party can prevail merely by pointing out to the district court that there is an absence of evidence to support the nonmoving party's case. Id.

  Once the moving party meets its initial burden, the nonmoving party must go beyond the pleadings and, by its own affidavits or discovery, "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); Anderson, 477 U.S. at 250. "To show the existence of a `genuine' issue, . . . [a plaintiff] must produce at least some significant probative evidence tending to support the complaint." Smolen v. Deloitte, Haskins & Sells, 921 F.2d 959, 963 (9th Cir. 1990) (quotations omitted). The court must view the evidence in the light most favorable to the non-moving party. United States v. City of Tacoma, 332 F.3d 574, 578 (9th Cir. 2003). The court must not weigh the evidence or determine the truth of the matter, but only determine whether there is a genuine issue for trial. Balint v. Carson City, 180 F.3d 1047, 1054 (9th Cir. 1999).

  Deference to the non-moving party has some limits. Thus, a plaintiff cannot rest on the allegations in her pleadings to overcome a motion for summary judgment. Brinson v. Linda Rose Joint Venture, 53 F.3d 1044, 1049 (9th Cir. 1995); Ghebreselassie v. Coleman Sec. Serv., 829 F.2d 892, 898 (9th Cir. 1987). Self-serving affidavits will not establish a genuine issue of material fact if they fail to state facts based on personal knowledge or are too conclusory. Rodriquez v. Airborne Express, 265 F.3d 890, 902 (9th Cir. 2001).

  Regardless of whether plaintiff or defendant is the moving party, each party must "establish the existence of the elements essential to [its] case, and on which [it] will bear the burden of proof at trial." Celotex, 477 U.S. at 322.

  B. Defendants' Motions for Summary Judgment

  The four defendants — Apple, Walker, Parker, and Burmeister — seek summary judgment on all causes of action asserted against them.

  1. Racial discrimination

  In the first, second, and third causes of action, plaintiff alleges claims of racial discrimination against Apple under 42 U.S.C. § 1981, Title VII, and FEHA, asserting that she was denied a promotion and a salary increase because of her race. Title VII and FEHA claims are analyzed under the same legal theory. See Brooks v. City of San Mateo, 229 F.3d 917, 923 & n. 3 (9th Cir. 2000). Claims of employment discrimination under § 1981 require the same elements of proof as Title VII cases. Lowe v. City of Monrovia, 775 F.2d 998, 1010 (9th Cir. 1985); see also Maduka v. Sunrise Hosp., 375 F.3d 909, 912 (9th Cir. 2004) (same analysis applies to Title VII and § 1981 discrimination claims).

  In a disparate treatment case, the plaintiff must show that intentional discrimination was the determinative factor in the adverse employment action. Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 (1993). There are two ways of proving intentional discrimination — 1) direct evidence and 2) indirect or circumstantial evidence, invoking the McDonnell-Douglas analysis.

  Direct evidence is evidence that proves the fact of discriminatory animus without inference or presumption. Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1221 (9th Cir. 1998). In most cases, however, there is no direct evidence of discrimination by the employer, and discrimination claims must be proved indirectly (circumstantially). In such cases, discrimination claims are analyzed under an allocation of burdens of production and proof, based on the model set forth in McDonnell-Douglas Corp. v. Green, 411 U.S. 792 (1973).

  Under the McDonnell-Douglas framework, the burden of production first falls on the plaintiff to make out a prima facie case of discrimination. She may do so by showing that (1) she belongs to a protected class, (2) she was qualified for the position she held (or for the position to which she wished to be promoted and for which she applied), (3) she was terminated or demoted from (or denied a promotion to) that position, and (4) the job went to someone outside the protected class. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506 (1993); McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1122 (9th Cir. 2004).

  The burden of production then shifts to the employer, who must present evidence sufficient to permit the factfinder to conclude that the employer had a legitimate, nondiscriminatory reason for the adverse employment action. St. Mary's Honor Center, 509 U.S. at 506-07. If the employer does so, the plaintiff must demonstrate that the employer's articulated reason is a pretext for unlawful discrimination by either directly persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered reason is unworthy of credence. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981); see also Aragon v. Republic Silver State Disposal, Inc., 292 F.3d 654, 658-59 (2002) (en banc).

  Here, Apple seeks summary judgment on the claims of racial discrimination, arguing that plaintiff cannot establish either a prima facie case or pretext, on either the claim of failure to promote or the claim of failure to increase plaintiff's salary. Apple first argues that plaintiff cannot establish a prima facie case of failure to promote because she cannot show that she applied for a specific promotion, that she was qualified for the Senior Compensation Analyst position to which she claims she wished to be promoted, or that she applied for but did not receive the promotion in question. In addition, Apple asserts that because plaintiff fails to show that she was more qualified than House, the only person that Burmeister promoted, she cannot establish a prima facie case.

  In response, plaintiff asserts that she has established a prima facie case because she has shown that she is a member of a protected class who performed competently. She argues that has met her "competence burden" by showing that she received a rating of "solid contributor." She also notes that Burmeister indicated that she was "smart," and hired or recommended that she be hired into two positions after he had worked with her at PacifiCare. She argues that she is not required to show that she formally applied for a promotion because it was not the practice at Apple to list available positions. For example, she claims that when Burmeister needed to fill a position, he interviewed candidates who had "expressed an interest" in the position. She also asserts that House did not actually apply for the promotion that she received from Burmeister. She claims that it was common for Apple employees to take on additional responsibilities prior to being given a promotion, and argues that she herself had the right to expect promotion based on the fact that she took on extra responsibilities.

  Apple contends that even if plaintiff has made a minimally sufficient showing of the prima facie case, Apple's failure to promote her was based on legitimate, nondiscriminatory reasons that had nothing to do with plaintiff's race — specifically, that plaintiff was not qualified for the Senior Compensation Analyst position and had significant communication and leadership issues that precluded promotion. Burmeister, who was aware of plaintiff's race, hired or recommended her for three jobs in which she worked directly under him; evaluated her performance as satisfactory over time, granting her substantial salary increases at jobs prior to her employment at Apple; and had a long-term social relationship with her and her family.

  Plaintiff responds that Apple's articulated explanation is pretextual. She asserts that the fact that there was only one African-American Compensation Consultant in her work group is evidence of pretext, as is the fact that Burmeister made racially disparaging comments.

  Apple also argues that plaintiff cannot show that she was more deserving of a raise than Deborah House, the only employee in the Compensation Group who did receive a raise. Apple contends that although plaintiff may have believed she deserved a raise, the evidence shows that she did not meet the criteria for analyst skills, teamwork, communication skills, or responsiveness, as demonstrated by the criticism in her performance review and in the complaints of her co-workers. Burmeister, who made the recommendation that House receive a raise in November 2003 and that plaintiff not receive a raise, stated that House's performance was exceptional while plaintiff was ranked only "solid performer."

  In response, plaintiff does not address Apple's arguments regarding her qualifications. She reiterates that there was only one African-American Compensation Consultant it her group at Apple. She also claims that her non-African-American counterparts were paid more than she was, despite her "more extensive education" and experience.

  In reply, Apple notes that plaintiff has failed to address any of Apple's arguments with regard to the claim of failure to increase salary because of race. Specifically, Apple contends that plaintiff does not respond to the argument that she was not more qualified for a raise than Deborah House, the only employee in the Compensation Group who did receive a raise. Apple asserts that plaintiff also fails to provide competent evidence showing that House was performing comparable work to the work plaintiff was doing.

  Apple also argues that plaintiff did not receive a salary increase for legitimate non-discriminatory reasons. Apple provides evidence showing that it had a salary freeze in effect until November 2003, at which time plaintiff did not meet the standard for a pay increase because she had received only a "solid" on her performance review and had significant communication and leadership issues. Apple contends that the salaries of other employees in the Compensation Group are irrelevant to plaintiff's claim that she did not receive a pay raise on one particular occasion. Apple also asserts that the fact that Burmeister hired plaintiff into several different jobs, over the years, with ever-increasing salaries, dispels any suggestion that he harbored discriminatory animus toward her on account of her race. And as with the claim of failure to promote, the fact that plaintiff was the only African-American in the group is irrelevant, or, at most, suggest non-discrimination, as five of the six employees who did not receive raises were non-African-Americans.

  The court finds that plaintiff has not provided sufficient evidence to show that Apple's explanation regarding the failure to promote her or the failure to increase her salary was pretextual. A plaintiff may meet the burden of showing pretext by using either direct or circumstantial evidence. See Burdine, 450 U.S. at 256. Direct evidence typically consists of clearly sexist, racist, or similarly discriminatory statements or actions by the employer. Coghlan v. American Seafoods Co. LLC, 413 F.3d 1090, 1095 (9th Cir. 2005). Because direct evidence is so probative, the plaintiff need offer "very little" direct evidence to raise a triable issue sufficient to defeat summary judgment. Id.

  Circumstantial evidence is evidence that requires an additional inferential step. It can take two forms. See id. The plaintiff can make an affirmative case that the employer is biased, based, for example, on statistical evidence that points to bias. Aragon, 292 F.3d at 663. Alternatively, the plaintiff can provide evidence that shows that the employer's proffered explanation for the adverse action is "unworthy of credence." Burdine, 450 U.S. at 256. When a plaintiff relies on circumstantial evidence — or evidence that negatively discredits the employer's stated rationale — that evidence must be "specific and substantial" in order to defeat a motion for summary judgment. Coghlan, 413 F.3d at 1095; see also Stegall v. Citadel Broadcasting Co., 350 F.3d 1061, 1066 (9th Cir. 2004).

  Here, plaintiff attempts to make her case with both direct and circumstantial evidence. As direct evidence, she provides a declaration in which she states that Burmeister made racially derogatory comments. However, she was able to recall only three such comments by Burmeister over all the years that she had known him — the statement that African-Americans "couldn't have a house party without shooting up the neighborhood;" the statement that African-Americans are somehow involved in "shooting up the screens at movie theaters;" and the statement that "every time we [presumably referring to African-Americans] were interviewed on television they always seemed to get the person who's in curlers, missing teeth." These stray remarks are not evidence of discrimination. Horn v. Cushman & Wakefield Western, Inc., 72 Cal. App. 4th 789, 810 (1999). In general, stray remarks not acted upon or communicated to a decision maker are insufficient to establish pretext. Mondero v. Salt River Project, 400 F.3d 1207, 1213 (9th Cir. 2005). There is no evidence that the comments attributed to Burmeister were directed at her or at any other Apple employee, or were uttered in any employment-related context.

  Plaintiff provided no evidence that anyone else at Apple made racially disparaging comments, or that anyone at Apple took any action based on her race. Burmeister's comments, while tasteless, are not sufficient on their own to provide specific and substantial evidence of pretext, particularly in view of the fact that plaintiff testified in her deposition that she never believed that Burmeister harbored any animus against African-Americans based on race. When she was asked in her deposition whether Burmeister's conduct toward her was in any way connected with her race, plaintiff testified that, in her view, Burmeister's conduct towards her "was because someone else was using it as a racial bias and he went along with it." Moreover, it is undisputed that it was Burmeister who hired or recommended plaintiff for three jobs in which she worked under him, who evaluated her performance as satisfactory over time, who granted her substantial salary increases at jobs prior to her employment at Apple, and who had a long-standing social relationship with her and her family. Plaintiff's effort to provide circumstantial evidence is even less effective, as she relies entirely on the assertion that she was the only African-American in her department. A statistical incident of one in a seven-person department is not significant. Statistics are probative only if they are based on a sufficiently large sample size, see Aragon, 292 F.3d at 663, which is not the case here.

  The court finds that summary judgment must be GRANTED on the claims of racial discrimination because plaintiff has failed to provide evidence showing that Apple's explanation for the failure to promote her and ...


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