ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
This matter comes before the Court on Defendant Quest Diagnostic's ("Defendant's") Motion for Summary Judgment. Plaintiff Miriam Roberson ("Plaintiff") opposes the motion.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff, who is African American, was employed as a supervisor at one of Defendant's blood centers. Plaintiff supervised phlebotomists who collected and transported blood samples. Plaintiff was hired in 1978 by Sacramento Clinical Laboratory, and remained as an employee throughout the years as the company was bought out by various successor companies, most recently Defendant in 2003. When Plaintiff began working for Defendant, she kept her old position as a supervisor. She did not have a phlebotomy license, and did not perform blood draws, nor had she done so for many years. Plaintiff, an at-will employee, was terminated on October 10, 2005, because she did not have a phlebotomy license. Supervisors of phlebotomists were required to have certification prior to 2003, and in early 2003 were required to be licensed. Plaintiff had not been certified prior to 2003 and did not have a license in early 2003 when the new regulations became effective. Changes in California law required all phlebotomists to become licensed pursuant to new regulations, and in the course of a compliance audit one of Defendant's compliance officers discovered that Plaintiff did not have her license and did not qualify for the grandfathering clause of the new regulations. Plaintiff knew about license requirement and had taken a course towards obtaining her license in July 2004. However she had not completed all the requirements for licensing in August 2005 when it was discovered that she was not in compliance. Defendant gave Plaintiff sixty days in which to become licensed in order to continue in her current position, and her failure to do so was the stated reason behind her termination.
Plaintiff sued Defendant and Jack Satterlee (her supervisor)in Sacramento Superior Court after she was terminated from her job, alleging state law causes of action for race discrimination, wrongful termination in violation of public policy, statutory violations, intentional infliction of emotional distress, breach of contract, and breach of the covenant of good faith and fair dealing. Plaintiff alleges that her termination followed on the heels of racially motivated comments by, or in the presence of, Jack Satterlee, and complaints she made regarding Defendant's failure to provide company cars for blood transport.
In her Superior Court suit, Plaintiff sought attorney's fees and costs and punitive and compensatory damages. Defendant Quest Diagnostics filed a demurrer in Superior Court, which was sustained in part and overruled in part. Defendant then removed the case to District Court, alleging complete diversity between the parties and amount in controversy over $75,000. Plaintiff is a citizen of California, and Quest Diagnostics is incorporated in Delaware and has its principle place of business in New Jersey. Jack Satterlee is a citizen of California, however Defendant argued that he was fraudulently joined and no viable claims against him existed.
Following discovery, Plaintiff then moved to remand the case to Superior Court, and Defendant moved for summary judgment. A hearing on the motions was held on November 4, 2009. At this hearing, the Court denied Plaintiff's motion to remand, finding that Jack Satterlee was fraudulently joined and no viable claims against him existed. The Court also granted summary judgment in his favor for the claims brought against him. Accordingly, the Court now rules on the remaining claims in Defendant's Motion for Summary Judgment.
Summary judgment is appropriate if "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." Federal Rule of Civil Procedure 56(c). The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party sustains its burden, the burden shifts to the nonmoving party to go beyond the pleadings and by his or her own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial. Id. at 324. When one party tells a story that blatantly disregards the record, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment. Scott v. Harris, 550 U.S. 372, 380 (2007). Mere disagreement or bald assertion that a genuine issue of material fact exists will not preclude the grant of summary judgment. Harper v. Wallingford, 877 F. 2d 728, 731 (9th Cir. 1987).
B. Defendant's Motion for Summary Judgment
1. Race Discrimination, First Cause of Action
Plaintiff claims that she was racially discriminated against and harassed in violation of the Fair Employment and Housing Act ("FEHA"), California Government Code §12940, which prohibits discrimination and harassment based on various grounds including race. Plaintiff claims disparate treatment, which is intentional discrimination against one or more persons on prohibited grounds. Guz v. Bechtel National, Inc., 24 Cal. 4th 317, 354 (2000). Claims of disparate treatment discrimination under FEHA are analyzed using a three part burden shifting analysis. Id. For this three part test, a plaintiff must first prove the elements of a prima face case of discrimination. Plaintiff establishes a prima facie case if she can show that she was a member of a protected class, she was qualified for the position she sought or was performing competently in the position she held, she suffered an adverse employment action, such as termination, demotion, or denial of an available job, and some other circumstance suggest discriminatory motive. Id. at 355. If she can do so, the burden shifts to the defendant to articulate a "legitimate, non-discriminatory reason" for its actions. If defendant does so, the burden shifts back to the plaintiff to show that defendant's proffered non-discriminatory reason was in reality a pretext for discrimination. Id.
In both the papers submitted and oral argument at the hearing, Plaintiff was unable to prove the elements of a prima facie case of discrimination. While claiming discrimination based on disparate treatment due to her race, Plaintiff offered no admissible evidence to demonstrate that she was treated differently from other employees. Her alleged examples of race discrimination and harassment consisted of approximately four incidents, including one in which she testified that race was not part of the conversation and another about which she testified at her deposition she could make out no racial connection. She further testified at her deposition that her managers had never said anything racially motivated.
With respect to whether Plaintiff was qualified to remain in her job, Plaintiff is also unable to meet her burden of proof for a prima facie case of discrimination. California Business and Professions Code §1246(c)(1)(A) (2004) states that certified phlebotomy technicians must be supervised by a physician, surgeon, or a supervisor who is licensed as a phlebotomy technician. Because she supervised phlebotomists, Plaintiff needed to be licensed. Moreover, as she testified in her deposition, she had not done blood draws for many years and did not have a certificate showing she had been trained in accordance with requirements established by the State Department of Health Services. Thus Plaintiff did not qualify for the grandfathering clause that would have given her until April 2006 to obtain a phlebotomy license pursuant to §1246(b)(1). For phlebotomy technicians not eligible for the grandfathering ...