The opinion of the court was delivered by: JEREMY FOGEL, District Judge
ORDER*fn1 GRANTING IN PART DEFENDANTS' MOTION FOR SUMMARY
JUDGMENT AND REMANDING REMAINING CLAIM TO STATE COURT
P.W. Supermarkets, Inc. ("PW"), Marta Engen ("Engen"), and
Stephanie Rivero, a.k.a. Stephanie Beltran ("Rivero")
(collectively "Defendants") move for summary judgment, or in the
alternative, partial summary judgment, pursuant to Rule 56(c) of
the Federal Rules of Civil Procedure. Plaintiff Christina Johnson
("Johnson") opposes the motion. Having considered the briefs and
the arguments of counsel at the hearing on October 7, 2005, the
Court will grant the motion in part for the reasons set forth
below. I. BACKGROUND
On or about May 28, 2000, PW hired Johnson, a Caucasian woman,
as a deli bakery courtesy clerk and assigned her to work at store
number ten in Gilroy, California. Johnson Dep. at 24-25. During
the course of her employment, Johnson was a member of the United
Food & Commercial Workers International Union, AFL-CIO, Local 428
("Union"). FAC at 1. Johnson's employment with PW therefore was
governed by a Collective Bargaining Agreement ("CBA") entered
into by the Union, PW, and PW's employees. Id. at 8. Johnson
contends that her employment also was governed by contractual
obligations solely between PW and Johnson, as evidenced by PW's
written policies, oral representations made to Johnson, and the
parties' course of conduct. Id. at 6. Defendants dispute this
contention, claiming that Johnson's deposition testimony confirms
that the CBA is the only document that governed her employment.
Def. Memorandum at 9.
Johnson alleges that on several occasions, Engen, a co-worker
and bakery clerk, made racially discriminatory and harassing
comments toward her. Johnson Dep. at 104-05. In February 2001,
Engen allegedly made comments about Johnson's family and skin
color, stating that "[Johnson's] kids' father should be with a
Hispanic woman" and that Johnson's "pussy pink color lipstick"
didn't look good on her "white colored face." Id. at 105.
Johnson further alleges that in February 2002, Engen commented on
the size of her pants, referring to them as "hoochie pants."
Id. at 95. As a result of this perceived harassment, Johnson
spoke to her supervisor, Juanna, and requested that Engen be
asked to stop making such comments. Id. at 101-02. In addition,
Johnson faxed a letter to the Union describing the incidents of
perceived harassment and corresponding dates. Id. at 102. In
response, representatives from the Union visited the store, met
with Johnson and Engen, and instructed them to "get along and go
back to work." Id. at 103. Despite this visit, Johnson
maintains that Engen continued to direct comments at her and, in
response, Johnson continued to discuss the matter with her
supervisor. Id. at 103-04. Defendants contend that Johnson did
not make further complaints about Engen or any other co-worker
after February 2002. Def. Memorandum at 2. A. Johnson's Termination
On July 2, 2002, Johnson's two children and their father, Frank
Anchondo ("Anchondo"), visited her in the bakery department.
Johnson Dep. at 37. Anchondo was concerned because one of the
children had a fever. Id. Johnson testified that she examined
the child, gave her a cup of water and a napkin, and told
Anchondo that she would be home after 8:00 p.m. to fix chicken
soup. Id. Before Anchondo and the children left the bakery
area, Rivero approached and advised Johnson that non-employees
were not permitted in the bakery work area because insurance
concerns.*fn2 Id. at 38. Johnson replied, "I understand,
no problem." Id. Johnson testified that her daughter then
reached from the shopping cart "as if she wanted to have a
cookie," but Johnson instructed her not to do so. Id. After
Anchondo and the children left the store, Rivero paged Johnson
over the intercom. Id. at 39. Rivero then "irately" accused
Johnson of allowing her daughter to steal a cookie from the
bakery. Id. Johnson told her to "forget it" and hung up the
phone. Id. A few minutes later, Rivero approached Johnson in
the bakery department and instructed her to clock out. Id.
Johnson was subsequently informed that she had been fired.
Defendants contend that Johnson's daughter reached into the
bakery display case, took a cookie, and left the store without
paying. Beltran Dec., ¶¶ 6, 8. While discussing the matter over
the telephone with Johnson, Rivero claims that Johnson began to
"argue" and informed Rivero that she "didn't know what [she] was
fucking talking about." Id., ¶ 11. After failing to reach
Johnson over the intercom following the initial telephone
conversation, Rivero walked to the bakery department, whereupon
Johnson accused her of "always trying to get her in trouble."
Id., ¶¶ 12, 13. Rivero then instructed Johnson to leave the
store because of her inappropriate conduct. Id., ¶ 14. As a
result of Johnson's alleged insubordinate and inappropriate
conduct toward Rivero, PW terminated Johnson's employment on the
same date. Stigers Dec., ¶ 2. B. Union Grievance Proceeding
Following Johnson's termination, the Union contacted Michael
Stigers, Director of Operations at PW, and requested a Board of
Adjustment grievance hearing in order to evaluate the merits of
Johnson's termination. Stigers Dec., ¶ 3, Ex. A. The hearing was
set for November 13, 2002. Johnson Dep., Ex. 3. Johnson appeared
at the grievance hearing with her attorney, Steven Springer, with
whom she initially had consulted in July 2002. Id. at 66, 70.
However, the Union informed Johnson that she would not be
permitted to enter the proceeding with an attorney, citing the
terms of the CBA. Id. at 71. Johnson decided not to attend the
proceeding and her grievance was withdrawn. Id. at 72. As a
result, Johnson's termination was upheld. Id., Ex. 6.
C. Department of Fair Employment and Housing Complaint
On March 5, 2003, Johnson completed a California Department of
Fair Employment and Housing ("DFEH") complaint with the
assistance of her attorney, Mr. Springer, but she did not submit
the complaint to the DFEH on the same day. Id. at 77. Johnson
claims not to remember the date on which she sent the complaint
to the DFEH. Id. at 79. According to DFEH records, the
complaint was filed by Johnson on October 21, 2003. Id., Ex. 7.
DFEH records also indicate that on September 10, 2003, Mr.
Springer faxed a copy of Johnson's Pre-Complaint Questionnaire to
the DFEH and requested investigation or issuance of a right to
sue letter. Id., Ex. D at 14-17. Mr. Springer states that he
initially sent the Pre-Complaint Questionnaire and request for
issuance of a right to sue letter to the DFEH on May 20, 2003.
Springer Dec., ¶ 4.
On October 21, 2004, Johnson filed suit in the Santa Clara
Superior Court against PW, Engen, Rivero, the Union, and two
Union representatives. Johnson assserted claims for: (1)
discrimination; (2) wrongful termination in violation of public
policy; (3) breach of contract; (4) breach of the covenant of
good faith and fair dealing; (5) intentional infliction of
emotional distress; and (6) negligent infliction of emotional
distress. On December 6, 2004, Defendants removed the action to
this Court, invoking federal jurisdiction under Section 301 of
the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185.*fn3 On
March 15, 2005, the Court dismissed Johnson's claims against the
two Union representatives without leave to amend and granted
Johnson leave to amend certain claims asserted against the Union.
In response, Johnson filed a First Amended Complaint ("FAC") on
April 4, 2005. On June 15, 2005, the Court granted the Union's
second motion to dismiss in its entirety, resulting in the
dismissal of the Union from the action. The remaining Defendants
PW, Engen, and Rivero now move for summary judgment.
A motion for summary judgment should be granted if there is no
genuine issue of material fact and the moving party is entitled
to judgment as a matter of law. Fed.R.Civ.P. 56(c); Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The moving
party bears the initial burden of informing the Court of the
basis for the motion and identifying the portions of the
pleadings, depositions, answers to interrogatories, admissions,
or affidavits that demonstrate the absence of a triable issue of
material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323
"When the nonmoving party has the burden of proof at trial, the
moving party need only point out `that there is an absence of
evidence to support the nonmoving party's case.'" Devereaux v.
Abbey, 263 F.3d 1070, (9th Cir. 2001) (quoting Celotex Corp. v.
Catrett, 477 U.S. 317, 325 (1986)). Once the moving party meets
this burden, the nonmoving party may not rest upon mere
allegations or denials, but must present evidence sufficient to
demonstrate that there is a genuine issue for trial. Id. A
genuine issue for trial exists if the non-moving party presents
evidence from which a reasonable jury, viewing the evidence in
the light most favorable to that party, could resolve the
material issue in his or her favor. Anderson, 477 U.S. 242,
248-49; Barlow v. Ground, 943 F.2d 1132, 1134-36 (9th Cir. 1991).
The standard applied to a motion seeking partial summary
judgment is identical to the standard applied to a motion seeking
summary judgment of the entire case. Urantia Foundation ...