The opinion of the court was delivered by: Frank C. Damrell, Jr. United States District Judge
This matter is before the court on defendant Pape Machinery, Inc.'s ("Pape Machinery") motion for summary judgment or, in the alternative, summary adjudication. Plaintiff Cara Wong ("Wong") opposes the motion. For the reasons set forth below,*fn1 defendant's motion for summary judgment is GRANTED.
Defendant Pape Machinery sells, leases, and services construction equipment. (UF ¶ 2.) Because most of the customers at the Sacramento location do residential and light construction, its business is dependent on new construction. (UF ¶ 2.) Pape Machinery purchased the Sacramento location at the end of February 2005. (UF ¶ 4.) The gross revenue for Pape Machinery's Sacramento location from March through December of 2005 was $35,361,126. (UF ¶ 4.) In 2006, the gross revenue was $34,813,421. (UF ¶ 5.) The total sales in the Service Department was $2,949,514. (UF ¶ 7.) However, in 2007, the gross revenue dropped to $20,291,231. (UF ¶ 6.) The total sales for the Service Department also dropped to $2,272,872. (UF ¶ 8.)
Plaintiff Wong began working as a Service Administrator at Pape Machinery's Sacramento location in February 2005. (UF ¶ 1.) The Service Administrator position was an administrative support position for the Service Department. (UF ¶ 11.) The duties of that position included opening and closing service invoices, time-card billing entry, and filing. (UF ¶ 11.)
Wong suffered a back injury in or around November 2005, which required her to take numerous days off for treatment and recovery throughout the 2006 and 2007 work years. (UF ¶ 44.)
Such treatment included, among other things, several epidurals and one facet block procedure. (UF ¶ 45.) On June 11, 2007, Wong went out on a leave of absence from work. (UF ¶ 3.) She returned to work a half day on June 15, 2007, and subsequently was out on a leave of absence until her position was eliminated. (UF ¶ 3.)
Pape Machinery never interfered with Wong's ability to get benefits or to take time off for her alleged disabilities. (UF ¶ 23.) It allowed her to work within her doctor's work restrictions and gave her time off as needed for her alleged disabilities. (UF ¶ 24.)
The only comment anyone at Pape Machinery ever made to Wong about her alleged disabilities was when Dillon Green, a co-worker, commented that it must be nice having a month off from work after she returned from her leave in 2005. (UF ¶ 17.) In a performance evaluation, dated November 6, 2006, Wong received a score indicating that she needed improvement in attendance and punctuality. (Ex. H to Decl. of Cara Wong ("Wong Decl."), file Mar. 9, 2009.) The comments in this category noted, "Cara misses an excessive amount of time from work, (sic) the majority of absences are approved by the Supervisors in the Service Dept. However, the poor performance in attendance creates delays and an unsatisfactory performance in many other areas of the Service Dept's daily operations." (Id.) Michael Miller ("Miller"), plaintiff's former supervisor, testified at his deposition that reliability was an "on-going issue" with Wong; specifically, he testified that "[i]t wasn't the leave, it was . . . [b]eing late, the carpooling, the children sick, her sick, her own internal issues." (Dep. of Michael Miller, Ex. I to Decl. of Robert A. Carichoff ("Carichoff Decl."), filed Mar. 9, 2009, at 45:5-22.) Further, on a fax cover sheet for a work excuse form from plaintiff, dated August 13, 2007, defendant's former Human Resources Coordinator, Jennifer Van Zante ("Van Zante") wrote, "Here's the latest and greatest on Cara Wong." (Ex. K to Carichoff Decl.)
Wong was terminated on November 2, 2007. (UF ¶ 13.) She was not able to work from the time she took her leave of absence in June 2007 up until at least May 27, 2008. (UF ¶ 21.) Wong began seeking employment beginning in or around June 2008. (UF ¶ 34.) She has applied for approximately forty different jobs between June 2008 and February 2009, but has not been called for any interviews. (UF ¶¶ 35-36.) Plaintiff presents evidence that she was deemed ineligible for rehire with defendant. (UF ¶ 37.) Defendant asserts that it never informed plaintiff that she was ineligible for rehire and that she has always be eligible for rehire. (UF ¶ 47.) Plaintiff continues to seek employment. (UF ¶ 36.)
Between May 2007 and June 2008, twenty of the fifty-four employees at the Sacramento location, including Wong, were laid off, left voluntarily, or retired; these employees were not replaced. (UF ¶ 14.) Defendant contends that when business declined in 2007, there were fewer invoices and timecards to process and fewer filing duties. (UF ¶ 12.) Defendant asserts that because of this decline in work, the Service Administrator position that Wong held was no longer needed. (UF ¶ 12.) The Service Administrator position was never filled while she was on her leave of absence, and there is currently no Service Administrator position at the Sacramento location. (UF ¶ 15.)*fn3
Rather, Wong's former job duties have been distributed among several different employees in different departments. (UF ¶ 16.) Plaintiff contends that she was terminated due to her disability and related leave. (UF ¶ 12.)
Plaintiff also contends that she did not timely receive her final paycheck. Pape Machinery sent Wong's final check, postmarked on November 1, 2007, to her home address via certified mail. (UF ¶ 25.) Wong asserts that the check was not actually delivered to her until one week later, on November 8, 2007. (UF ¶ 25.) She deposited this check on November 13, 2007. (UF ¶ 28.)
Plaintiff filed a complaint in the Superior Court of California for the County of Sacramento, alleging (1) violation of the California Fair Employment and Housing Act ("FEHA"), Cal. Gov't Code §§ 12900 et seq.; (2) wrongful termination in violation of public policy; and (3) failure to pay her final paycheck on the date of her termination in violation of the California Labor Code. Defendant removed the litigation to this court on January 7, 2008.
The Federal Rules of Civil Procedure provide for summary judgment where "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); see California v. Campbell, 138 F.3d 772, 780 (9th Cir. 1998). The evidence must be viewed in the light most favorable to the nonmoving party. See Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000) (en banc).
If the moving party does not bear the burden of proof at trial, he or she may discharge his burden of showing that no genuine issue of material fact remains by demonstrating that "there is an absence of evidence to support the non-moving party's case." Celotex, 477 U.S. at 325. If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-87 (1986); First Nat'l Bank v. Cities Serv. Co., 391 U.S. 253, 288-289 (1968). In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the denials of its pleadings, but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that the dispute exists. Fed. R. Civ. P. 56(e). The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party, Id. at 251-52.
In the endeavor to establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." First Nat'l Bank, 391 U.S. at 289. Thus, the "purpose of summary judgment is to 'pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.'" Matsushita, 475 U.S. at 587 (quoting Rule 56(e) advisory committee's note on 1963 amendments). In judging evidence at the summary judgment stage, the court does not make credibility determinations or weigh conflicting evidence. See T.W. Elec. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630-31 (9th Cir. 1987) (citing Matsushita, 475 U.S. at 587).
On a motion for summary judgment, the evidence of the opposing party is to be believed, and all reasonable inferences that may be drawn from the facts must be drawn in favor of the opposing party. Anderson, 477 U.S. at 255. Nevertheless, inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff'd, 810 F.2d 898 (9th Cir. 1987). Finally, to demonstrate a genuine issue, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts. . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.'" Matsushita, 475 U.S. at 586-87, 106 S.Ct. at 1356.
I. Disability Discrimination in Violation of FEHA
Plaintiff alleges that she suffers from several disabilities, including vertigo and a herniated lumbar disc. She contends that she was terminated because of ...