United States District Court, N.D. California, San Jose Division
December 2, 2005.
CHRISTINA JOHNSON, Plaintiff,
P.W. SUPERMARKET, INC., et al., Defendants.
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.
D. Procedural History
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.
II. LEGAL STANDARD
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 v.
Maaherra, 895 F. Supp. 1335, 1335 (D. Ariz. 1995).
A. First Claim for Relief: Discrimination in Violation of Cal.
Gov. Code § 12940.
Johnson asserts a claim for racial discrimination in violation
of California's Fair Employment and Housing Act ("FEHA"), Cal.
Gov. Code § 12900 et seq., against PW, Engen, and Rivero. FAC,
¶¶ 10-20. FEHA declares that discrimination in employment on
specified grounds, including race, color, national origin or
ancestry, is unlawful and against public policy. Cal. Gov. Code §
12920. In order to pursue a civil cause of action under FEHA, an
individual first must follow certain procedural steps set forth
in the statute. "Under FEHA, the employee must exhaust the
administrative remedy provided by the statute by filing a
complaint with the [DFEH] and must obtain from the [DFEH] a
notice of right to sue in order to be entitled to file a civil
action in court." Romano v. Rockwell Int'l, Inc.,
14 Cal. 4th 479, 492 (1996). The DFEH complaint must be filed within one year
of the date on which the last alleged unlawful practice occurred.
Cal. Gov. Code § 12960(d).
In the instant action, the most recent alleged unlawful
employment practice occurred on July 2, 2002, when PW terminated
Johnson. FAC, ¶ 13j. DFEH records indicate that the Department
did not receive Johnson's administrative complaint until October
21, 2003 more than three months beyond the statutory deadline.
Johnson Dep., Ex. 7. Nevertheless, Johnson argues that the date
on which the DFEH complaint was received remains a contested
material fact. The Court finds that Johnson has failed to present
evidence sufficient to support her contention that the DFEH
complaint was filed prior to the expiration of the statutory
deadline. For instance, Johnson testified that she "[could not]
recall honestly the right month" in which she sent the complaint
to the DFEH. Johnson Dep. at 79. Mr. Springer maintains that he
drafted a letter requesting information regarding the status of
Johnson's DFEH complaint and instructed his staff to mail a copy of the letter and Pre-Complaint
Questionnaire to the DFEH on May 20, 2003. Springer Dec., ¶ 4.
However, DFEH records indicate that the letter and accompanying
questionnaire were not received until they were sent via fax on
October 10, 2003. Johnson Dep., Ex. D at 14-17. In any event,
even if the Court were to assume that the letter and
questionnaire were received by the DFEH in May 2003, these
documents are insufficient to constitute a valid DFEH complaint.
See Cole v. Antelope Valley Union High School Dist.,
47 Cal. App. 4th 1505, 1515 (1996) ("The statute does not authorize any
alternative to the requirement of the filing of a `verified
complaint in writing.'") (emphasis added). Indeed, there is no
evidence that would permit a jury to determine that Johnson filed
a formal DFEH complaint within the required statutory period.
Accordingly, the Court concludes that Johnson failed to exhaust
her administrative remedies and thus is precluded from pursuing a
civil action under FEHA against PW, Engen, and Rivero on her
claim for racial discrimination.*fn4 Nor does the record
support Johnson's request to apply the doctrine of equitable
tolling in this instance.
Although Johnson failed to exhaust her administrative remedies
under FEHA, she nonetheless may assert state law claims against
Defendants based upon their alleged discriminatory conduct. "FEHA
is meant to supplement, not supplant or be supplanted by,
existing anti-discrimination remedies, in order to give employees
the maximum opportunity to vindicate their civil rights against
discrimination." Rojo v. Kliger, 52 Cal. 3d 65, 74-75 (1990);
see also Cal. Gov. Code § 12993. "[E]xhaustion is not required
before filing a civil action for damages alleging nonstatutory
causes of action." Rojo, 52 Cal. 3d at 88. Accordingly, the
Court will proceed to evaluate Defendants' motion for summary
judgment as it pertains to Johnson's remaining state law claims. B. Second Claim for Relief: Wrongful Termination in Violation
of Public Policy
Johnson next asserts a claim for wrongful termination in
violation of public policy against PW, Engen, and Rivero. FAC, ¶¶
21-26. Johnson alleges specifically that she was "constructively
terminated by [PW] because of her race, national origin, or
ancestry" in violation of public policy set forth in Article I,
Section 8 of the California Constitution and California
Government Code Sections 12920 and 12921.*fn5 FAC, ¶¶ 23-26.
Contrary to Johnson's allegation that she was constructively
terminated, the record indicates that Johnson was actually
terminated by PW on July 2, 2002. Stigers Dec., ¶ 2. There is no
evidence to suggest that Engen, Johnson's co-worker, possessed
the authority to terminate Johnson or was involved in PW's
decision to terminate Johnson. Similarly, the evidence indicates
that although Rivero was involved in a dispute with Johnson on
the date of her termination, Rivero was not in a position to
terminate Johnson's employment. In her declaration, Rivero
suggests that she did not make the ultimate decision to terminate
Johnson, stating: "I believe PW's motivation for terminating
Johnson was based upon its legitimate concern about her
insubordinate conduct. . . ." Rivero Dec., ¶ 19 (emphasis added).
Without clear evidence that Engen and Rivero possessed the
authority to terminate Johnson, they cannot be held liable for
their alleged discriminatory actions under a theory of wrongful
termination. Accordingly, the Court will grant summary judgment
in favor of Engen and Rivero on this claim.
With respect to PW, the Court concludes that there are disputed
issues of material fact that preclude summary judgment. PW
contends that it legitimately terminated Johnson because she
engaged in insubordinate and disrespectful conduct toward Rivero
on July 2, 2002. Stigers Dec., ¶ 2. However, Johnson disputes the essential facts relating
to her alleged insubordinate conduct. In her deposition, Johnson
stated that she did not yell or curse at Rivero. Johnson Dep. at
50. Moreover, Johnson and Anchondo state that their daughter did
not touch or take a cookie during the July 2, 2002 visit to the
store. Johnson Dec., ¶ 3e; Anchondo Dec., ¶ 6. Thus, although
Johnson concedes that insubordination was PW's stated rationale
for her termination, she does not admit that she engaged in
insubordinate conduct. Johnson Dec., ¶ 5. Given this discrepancy,
a reasonable jury could accept Johnson's version of the facts and
conclude that she actually had been terminated in violation of
public policy. The fact that Johnson was terminated approximately
four months after her most recent complaint to the Union
regarding Engen's conduct does not as a matter of law preclude a
jury from finding that Johnson was wrongfully terminated, given
that Johnson's allegation of retaliation is merely a component of
her claim for discrimination in violation of public policy. See
FAC, ¶¶ 21-26. Accordingly, the Court will deny PW's motion for
summary judgment on this claim.
C. Third and Fourth Claims for Relief: Breach of Contract and
Breach of the Covenant of Good Faith and Fair Dealing
Johnson asserts further claims for breach of contract and
breach of the covenant of good faith and fair dealing against PW.
FAC, ¶¶ 27-45. Johnson alleges specifically that PW breached an
implied contract with Johnson that had been established by PW's
written employment policies and the parties' course of conduct.
It is undisputed that as a Union employee, the terms and
conditions of Johnson's employment were set forth in a CBA.
Stigers Dec., ¶ 4. PW contends that the CBA is the only contract
that governed Johnson's employment with PW, and that Johnson's
state law claims for breach of contract and breach of the
covenant of good faith and fair dealing thus are preempted by the
LMRA. See 19 U.S.C. § 185. The Court agrees. As an initial
matter, Johnson's deposition testimony is inconsistent with her
allegation in the FAC that the parties had formed an implied
Q. Now, other than the union agreement . . . is there
any other document that you're aware of that you
think had anything to do with your employment setting
forth the terms or conditions of employment? A. That I had received or I'm sorry?
Q. Either that you received or that you didn't
receive of which you are aware.
A. I'm not aware, no. Piece of paper? What are you
Johnson Dep. at 192. Furthermore, Johnson has failed to present
evidence that PW maintained or published company policies that
could form the basis of an implied contract. Without such
evidence, a reasonable jury could not conclude that Johnson's
employment was governed by any contract other than the CBA.
Given the Court's determination that the CBA was the only
contract between Johnson and PW, Johnson's breach of contract and
breach of the covenant of good faith and fair dealing claims are
preempted by the LMRA. Where a plaintiff alleges breach of
contract, "preemption [under the LMRA] is required if his claims
can be resolved only by referring to the terms of the [collective
bargaining] agreement." Cook v. Lindsay Olive Grower,
911 F.2d 233, 237 (9th Cir. 1990). Likewise, "[w]here the collective
bargaining agreement contains terms governing job security, [the]
breach of the covenant of good faith and fair dealing cause of
action is preempted."*fn6 Id. at 238-39. Accordingly, the
Court will grant summary judgment in favor of PW as to Johnson's
third and fourth claims for relief.
D. Fifth and Sixth Claims for Relief: Intentional and
Negligent Infliction of Emotional Distress
Johnson finally alleges that PW negligently or intentionally
inflicted emotional distress upon her by engaging in a pattern
and practice of discrimination based on race, failing to properly
respond to her complaints of discrimination, retaliating against
her for reporting the discriminatory actions of other employees,
and terminating her employment because of her race. FAC, ¶¶ 47-48, 53-55. In order to state a claim for intentional
or negligent infliction of emotional distress under California
law, Johnson must show that (1) PW engaged in extreme and
outrageous conduct with the intent of causing, or reckless
disregard of the probability of causing, emotional distress, (2)
Johnson actually suffered emotional distress, and (3) PW's
outrageous conduct proximately caused her emotional distress.
See Newberry v. Pac. Racing Ass'n, 854 F.2d 1142, 1150 (9th
In the FAC, Johnson alleges conclusorily that she "has suffered
and continues to suffer pain, discomfort, anxiety, humiliation
and emotional distress. . . ." FAC, ¶¶ 52, 59. However, in
response to PW's motion for summary judgment, Johnson fails to
offer any evidence indicating that she actually suffered
emotional distress as a direct result of PW's alleged
discriminatory conduct. "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)).
Given Johnson's failure to submit any evidence in support of her
intentional or negligent infliction of emotional distress claims,
the Court will grant summary judgment in favor of PW.
In light of the foregoing analysis and conclusions, Johnson now
maintains only a single claim against PW for wrongful termination
in violation of public policy. In the exercise of its discretion,
the Court declines to retain supplemental jurisdiction under
28 U.S.C. § 1367 over this state law claim. Accordingly, this claim
will be remanded to the Santa Clara Superior Court. IV. ORDER
IT IS HEREBY ORDERED THAT:
(1) Engen and Rivero's motion for summary judgment as
to Plaintiff's first and second claims for relief is
(2) PW's motion for summary judgment as to
Plaintiff's first, third, fourth, fifth, and sixth
claims for relief is GRANTED.
(3) PW's motion for summary judgment as to
Plaintiff's second claim for relief is DENIED. This
claim is REMANDED to the Santa Clara Superior Court
for further proceedings.
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