The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge
ORDER GRANTING DEFENDANT'S MOTIONS FOR SUMMARY JUDGMENT
On July 31, 2009, Defendant Career Systems Development Corporation ("Career Systems") filed motions for summary judgment on all claims in Plaintiffs' complaint: (1) marital status discrimination in violation of the California Fair Employment and Housing Act ("FEHA"); (2) race and national origin discrimination in violation of FEHA; (3) religious discrimination in violation of FEHA; (4) harassment in violation of FEHA; (5) wrongful discharge in violation of the public policy embodied in FEHA; (6) retaliation; (7) breach of contract; and (8) breach of the covenant of good faith and fair dealing.
Career Systems contracted with the United States Department of Labor to operate the Sacramento Job Corps Center (the "Center"), a youth training facility which provides a no-cost education and vocational training program for young people ages 16 through 20. Plaintiff Rachel Yang began working at the Center on September 23, 2003, as a Residential Advisor II ("RA II"). (Yang Statement of Undisputed Facts ("Yang SUF") ¶ 171.) As an RA II, Yang was responsible for working in the female student dormitories. (Yang Dep. 69:9-16.) Yang received a pay raise and promotion to Career Counselor in September 2006. (Yang SUF ¶ 46.) Yang went on medical leave on January 29, 2007, and ceased being a Career Systems' employee on March 2, 2007 after she failed to return to work on March 1, 2007, the date she placed in her leave slip as the date on which she expected to return. (Yang SUF ¶¶ 2, 5, 16.)
Plaintiff Johnny Her began working at the Center on February 21, 2004, as a Residential Advisor I ("RA I"). (Her Statement of Undisputed Facts ("Her SUF") ¶ 42.) Her received a promotion to RA II on February 26, 2005, and a pay raise . (Her SUF ¶ 69.) On May 26, 2006, Her submitted a letter of resignation in which he stated his last day of employment would be June 9, 2006. (Her SUF ¶ 4.) On June 2, 2006, Her was told his resignation was accepted early and that he had to leave the Center immediately; he was then escorted off the premises. (Her SUF ¶ 6.) Her was paid through June 9, 2006. (Her SUF ¶ 7.)
The McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), burden-shifting regime applies to employment discrimination claims brought under FEHA. Loggins v. Kaiser Permanente Intern., 151 Cal. App. 4th 1102, 1109 (2007) ("California follows the burden shifting analysis of McDonnell Douglas Corp. . . . ."); Metoyer v. Chassman, 504 F.3d 919, 941 (9th Cir. 2007) ("California courts apply the Title VII framework to claims brought under FEHA."). Under this burden-shifting regime, the plaintiff bears the initial burden of establishing a prima facie case of discrimination or retaliation. Noyes v. Kelly Serv., 488 F.3d 1163, 1168 (9th Cir. 2007). If Plaintiff satisfies this burden:
[T]he burden of production shifts to the defendant to articulate a legitimate, [non-discriminatory and] non-retaliatory explanation for the adverse employment action. If the employer rebuts the inference of discrimination and/or retaliation, the burden of production shifts back to the plaintiff to show that the defendant's explanation is merely a pretext for impermissible discrimination or retaliation. Pretext may be shown either (1) directly by persuading the jury that a discriminatory motive more likely than not motivated the employer or (2) indirectly by showing that the employer's proffered explanation is unworthy of credence. Winarto v. Toshiba Am. Elec. Components, Inc., 274 F.3d 1276, 1284 (9th Cir. 2001) (citations and quotations omitted; emphasis added).
1. Rachel Yang's Discrimination Claims
Yang argues the adverse employment actions on which her discrimination claims are based are her promotion "into a position which was designed to prove too arduous for her," and her termination from employment at the Center. (Yang Opp'n 17:3-4.) Yang also declares she "was afraid the full caseload [she] was given from the start [of the promotion] was an attempt to set [her] up to fail." (Yang Decl. ¶ 37). "An adverse employment action is one that materially affects the compensation, terms, conditions, or privileges of employment." Davis v. Team Elec. Co., 520 F.3d 1080, 1089 (9th Cir. 2008) (citation omitted). "[A]ssigning [an employee] more, or more burdensome, work responsibilities" than other employees may be considered an adverse employment action. Id. Yang has not presented sufficient evidence to establish that her promotion was an adverse employment action taken against her. Yang supports her position pointing to her declaration in which she declares her increase in workload occurred only after she received a promotion and pay raise; she also called the promotion a "great opportunity" and her "ultimate goal." (Yang Decl. ¶ 36.) Yang also relies on the hearsay testimony of her co-worker Joe Pearson, declaring that Pearson told her "he had an easy caseload comparably and would much rather have a full caseload like [Yang's]." (Yang Decl. ¶ 37.) It is unclear what Pearson means by these statements, and whether Pearson's position was the same as Yang's position. Career Systems objects Pearson's statements arguing they are inadmissible hearsay. (Def.'s Evid. Obj. 28:25-5.) This objection is sustained.
Yang's evidence on her promotion consists of her conclusory statement that she had a "full caseload." However, this conclusory averment lacks "factual data" sufficient to support an inference that her caseload was more burdensome than other employees in her position. See Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 922 (9th Cir. 2001) (treating plaintiff's conclusory statement unsupported by factual data as insufficient to defeat summary judgment motion).
Further, Yang's statement that her caseload "was an attempt to set [her] up to fail" constitutes "[c]onclusory, speculative testimony . . . [which] is insufficient to raise genuine issues of fact and defeat summary judgment." Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). Yang also argues her workload "eventually caused [her] so much stress that she was taken off work by her doctor, and ultimately fired." (Yang Opp'n 17:7-10.) However, this argument is not supported by evidence. Since Yang conclusory averments are without factual support, she has not produced sufficient evidence to establish that her promotion was an adverse employment action.
Yang also argues she was terminated based on discrimination. Termination "from one's position certainly constitutes an adverse employment action." Aragon v. Republic Silver State Disposal Inc.,292 F.3d 654, 660 (9th Cir. 2002). Career Systems counters Yang gave up her job when she failed to return to work following her leave of absence. It is undisputed Yang went on medical leave on January 29, 2007, failed to return to work on March 1, 2007 as stated in her leave slip, and that Career Systems treated this failure as Yang's resignation from employment. (Yang SUF ¶¶ 2, 5, 16.) Before Yang took leave on January 29, 2007, she filled out and signed a document entitled "Medical Care and/or Family Care Leave of Absence Form," in which she stated her leave ended February 28, 2007, and she was to return to work on March 1, 2007. (Yang SUF ¶¶ 6, 7; Def.'s Lodgment of Exs., Ex. 13.) A condition in the leave slip Yang signed states: "Failure to return to work on the date specified above, or to have obtained an approved extension of your leave or have been granted a personal leave prior to that date, will be deemed your resignation." (Id.) In addition, Human Resources Manager Rebecca McClure sent Yang a letter dated January 30, 2007, which Yang received, in which McClure informed Yang that Yang had "an expected return date of March 1, 2007." (Yang SUF ¶ 8; Def.'s Lodgment of Exs., Ex. 14; Yang Dep. 176:24-177:1.) Yang did not return to work on March 1, 2007, and failed to inform anyone at Career Systems that she would not be returning to work until after she was fired; nor did she "make any effort to contact anyone at the company to inform them of the fact that [she was] not going to return to work." (Yang SUF ¶ 16; Yang Dep. 186:21-187:12.) On March 2, 2007, McClure sent Yang a letter in which McClure stated Yang was "removed from the payroll effective immediately for failure to return from leave of absence." (Yang SUF ¶ 8; Def.'s Lodgment of Exs., Ex. 15.) Career Systems explanation as to why Yang's employment ended shifts the burden to Yang to show that Career Systems' explanation is merely a pretext for impermissible discrimination.
To satisfy her burden, Yang must present evidence showing that Career Systems' explanation for removing her from employment is "unworthy of credence . . . or otherwise not believable," or that she was terminated based on her marital status, race, national origin, and religion. Noyes, 488 F.3d at 1170.
Yang's religion is Shamanism Hmong. (Yang SUF ¶ 116.) She does not recall ever discussing her religion with any other employees, and presents no facts indicating religious discrimination. (Yang Dep. 212:4-8.). Therefore, Career ...