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December 2, 2005.

P.W. SUPERMARKET, INC., et al., Defendants.

The opinion of the court was delivered by: JEREMY FOGEL, District Judge

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.


  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 (1986).

  "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 ...

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