This matter came before the court on October 30, 2009 for hearing of defendant's motion for summary judgment (Doc. No. 30). Plaintiff Nisha Rao, proceeding pro se, appeared telephonically on her own behalf. Attorneys Matthew Ruggles and Adrianne Ostrowki appeared on behalf of defendant AmerisourceBergen Corporation. Oral argument was heard, and defendant's motion for summary judgment was taken under submission.*fn1
For the reasons set forth below, the court will grant defendant's motion for summary judgment.*fn2
Plaintiff filed her original complaint against defendant AmerisourceBergen Corp. and DOES 1-5 in Sacramento County Superior Court on January 7, 2008.*fn3 (Doc. No. 1 at 7 of 25.) On May 22, 2008, plaintiff filed an amended complaint in that court. (Id. at 15 - "Am. Compl.".) In plaintiff's amended complaint she alleges as follows.*fn4 Plaintiff was hired as a permanent employee by defendant AmerisourceBergen Corporation on or about October 4, 2004. Defendant subjected her to harassment and misrepresentation. Specifically, plaintiff claims that defendant refused to accommodate her when she requested to be reassigned to a different position and requested to work part-time. Plaintiff also states that the delivery of a letter noticing her rehiring was delayed by the mail carrier until after the provided deadline for response but defendant refused to acknowledge the delivery error. Plaintiff contends that defendant failed to maintain policies or procedures to prevent her from being subjected to discrimination and harassment and that as a result of defendant's actions she suffered emotional distress, nervous pain and suffering. Based on these allegations, plaintiff presented the following six causes of action: 1) failure to accommodate; 2) failure to prevent harassment; 3) negligent training; 4) misrepresentation; 5) racial discrimination; and 6) disability discrimination. (Id. at 15-21.)
On July 2, 2008 defendant removed this action to this court pursuant to 28 U.S.C. § 1441(b) based on this court's diversity jurisdiction under 28 U.S.C. § 1332(a). (Doc. No. 1.) Defendant filed an answer to plaintiff's complaint on July 7, 2008. (Doc. No. 8.) Thereafter, a scheduling order was issued under which discovery closed in this action on October 2, 2009. (Doc. No. 23.) Defendant filed a timely motion for summary judgment on September 29, 2009. (Doc. No. 30.) Plaintiff filed an initial opposition to defendant's motion on October 13, 2009.*fn5 (Doc. No 32.) Defendant's reply was filed on October 23, 2009. (Doc. No. 34.) Plaintiff thereafter filed a second opposition to the motion for summary judgment on October 26, 2009. (Doc. No. 36.) Plaintiff then filed an opposition to defendant's reply on October 28, 2009. (Doc. No. 38.)*fn6
DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
I. Legal Standards Applicable to a Motion for Summary Judgment
Summary judgment is appropriate when it is demonstrated that there exists no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970); Owen v. Local No. 169, 971 F.2d 347, 355 (9th Cir. 1992).
A party moving for summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact.
"[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the 'pleadings, depositions, answers to interrogatories, and admissions on file.'" Celotex Corp., 477 U.S. at 323. Indeed, summary judgment should be entered, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. See id. at 322.
"[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. Summary judgment should then be granted, "so long as whatever is before the district court demonstrates that the standard for entry of summary judgment, as set forth in Rule 56(c), is satisfied." Id. at 323.
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, 586 (1986); First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968); Ruffin v. County of Los Angeles, 607 F.2d 1276, 1280 (9th Cir. 1979). The opposing party must demonstrate that a fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987). 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 Fed. R. Civ. P. 56(e) advisory committee's note on 1963 amendments).
II. Application of the Standards
Defendant seeks summary judgment in its favor on plaintiff's third cause of action for negligent training on the ground that plaintiff's exclusive remedy is under the Workers' Compensation Act and that this cause of action is therefore barred. Defendant also seeks summary judgment in its favor on plaintiff's fifth cause of action for racial discrimination on the ground that plaintiff failed to properly exhaust her administrative remedies. With respect to plaintiff's other causes of action, defendant argues that summary judgment should be granted in defendant's favor because the evidence establishes that plaintiff cannot prove the necessary elements with respect to her claims.
Defendant's motion includes a separate statement of undisputed material facts supported by plaintiff's deposition testimony*fn7 , the declaration of defendant's Human Resources Coordinator Michelle Westervelt, the declaration of Human Resources Manager Ken Howie, a copy of a Collective Bargaining Agreement between defendant and the International Brotherhood of Teamsters Union, documents submitted to defendant from plaintiff's physician, the applicable job description for an Order Filler, and correspondence between plaintiff and other employees of defendant.
Defendant's Statement of Undisputed Material Facts (Doc. No. 30) establishes the following. Plaintiff was hired on October 4, 2004, as an Order Filler at defendant's National Facility in Sacramento, CA. Order Fillers at defendant's National and Sacramento Distribution Center are covered by a Collective Bargaining Agreement ("CBA") between defendant and the International Brotherhood of Teamsters Union. There are no Order Filler positions in defendant's warehouses not within the CBA. As an Order Filler plaintiff was primarily responsible for filling customer orders, retrieving merchandise, and placing merchandise in containers. The Order Filler position requires that an employee be able to perform substantial physical activity, including, standing, walking, bending, kneeling, stooping, and lifting of up to 65 pounds.
On January 15, 2005, plaintiff experienced pain in her foot while at work and on February 1, 2005, plaintiff's husband contacted Human Resources Coordinator Michelle Westervelt and stated that plaintiff was going to be taking off the remainder of the work week due to pain in her feet. On February 4, 2009 Dr. Jarvis from U.S. Healthworks informed defendant that plaintiff should see a podiatrist on a non-industrial basis and that her injury was not work related.*fn8 On February 9, 2005, plaintiff's physician took plaintiff off work through March 1, 2005. As of February 9, 2005, plaintiff had been employed by defendant for less than 12 months and therefore did not qualify for protected leave under the Family and Medical Leave Act or the California Family Rights Act. On February 21, 2005, defendant sent plaintiff a letter notifying her that even though she was on unpaid leave, she was still covered under her employee benefits plan. On March 2, 2005, defendant received a note from plaintiff's physician stating that plaintiff would not be returning to work for twelve weeks because of a required foot surgery. On April 1, 2005, defendant terminated ten Order Fillers, including plaintiff, due to a loss of business. Plaintiff was selected for termination in accordance with the terms of the CBA which provided that, in the event of a reduction in work force, the last employee hired would be the first employee fired. As of April 1, 2005, plaintiff's seniority ranked 239 out of 247 employees. On April 15, 2005, defendant sent a certified letter to plaintiff recalling her to work pursuant to the CBA. Plaintiff failed to respond to the letter recalling her to work within the four-day time period provided to do so. Although plaintiff did not timely respond to the April 15, 2005 letter, plaintiff's name remained on the defendant's recall to work list.
Plaintiff, however, was not cleared by her physician to return to work for nearly six more months. On October 7, 2005, plaintiff's physician released her to return to work with restrictions. In this regard, plaintiff was limited to one to two hours of standing or walking at a time, with thirty minutes of sitting in between. The restrictions also noted that it was preferable that plaintiff perform sedentary duty. On October 31, 2005, defendant's Human Resources Coordinator Michelle Westervelt met with plaintiff to discuss her return to work.
Westervelt informed plaintiff that defendant was not currently recalling any employees and that the duties of an Order Filler required that she be able to stand, walk, and lift up to 65 pounds. Plaintiff requested a part-time or sitting position that would allow her to sit for six hours and stand for two hours. Plaintiff also requested a transfer to another warehouse. Westervelt explained that while there were no positions available at that time that would accommodate plaintiff's restrictions, plaintiff would remain on defendant's recall to work list. On November 29, 2005, defendant again sent plaintiff a certified letter recalling her to work due to an increase in business. Plaintiff once again failed to timely respond to this letter.
However on December 5, 2005, plaintiff gave defendant a doctor's note stating that she was undergoing a revisional surgery on her foot and would not be able to return to work until March 15, 2006. On December 12, 2005, defendant notified plaintiff that because she was unable to return to work until March 2006, plaintiff would lose her seniority and would be dropped from the recall to work list pursuant to the terms of the CBA. The CBA provided that an employee's seniority shall be considered broken and employment terminated by twelve consecutive months of unemployment due to lay off. In February of 2006, defendant announced that it would be closing its Sacramento warehouse and would begin terminating its employees there. By April of 2006 defendant had reduced its workforce from 247 to 120 employees.
By mid-July 2006, the National Facility was closed. Even if plaintiff had remained on the recall list and been able to return to work in March of 2006, defendant was not recalling any employees but instead laying off additional employees as of that time. As of May 26, 2009, plaintiff remained unable to lift 65 pounds, unable to stand or walk and unable to perform the physical demands of the Order Filler position. Defendant has an Equal Employment Opportunity Affirmative Action Policy. Plaintiff never witnessed anyone violate the equal employment opportunity or anti-discrimination policy at defendant AmerisourceBergen. No one at defendant AmerisourceBergen ever said anything derogatory or rude or demeaning to plaintiff or treated plaintiff differently because of her race or national origin. Plaintiff was never harassed while she worked at defendant AmerisourceBergen. Plaintiff never heard any employee at AmerisourceBergen make any demeaning or negative remarks to plaintiff regarding her race and/or national origin. Plaintiff never complained of harassment or discrimination while she was employed by defendant. When making the April 1, 2005, decision to lay-off ten employees due to a decline in business, plaintiff's leave of absence was never considered nor was her leave of absence considered when defendant decided not to re-hire her.
On January 11, 2006, plaintiff filed a Complaint of Discrimination with the California Department of Fair Employment and Housing ("DFEH") alleging disability discrimination. In that complaint plaintiff did not allege the she was discriminated against because of her race, color, or national origin. The DFEH conducted an investigation and on January 11, 2007, issued a Notice of Case Closure, finding the absence of probable cause to believe a violation of the statute had occurred.
As required by the standards applicable to motions for summary judgment, defendant has identified portions of the pleadings, materials obtained through discovery, and affidavits that demonstrate the absence of a genuine issue of material fact as to plaintiff's claims. The burden thus shifts to plaintiff to establish that a genuine issue as to any material fact actually does exist. Plaintiff must demonstrate that any fact in contention is material, i.e., it might affect the outcome of the suit under the governing law, and that the dispute is genuine, i.e., the evidence might lead a reasonable jury to return a verdict for plaintiff.
As noted above, plaintiff filed two oppositions to defendant's motion for summary judgment. However, neither of those oppositions comply with Local Rule 260(b), which requires a party opposing summary judgment to (1) reproduce each fact enumerated in the moving party's statement of undisputed facts and (2) expressly admit or deny each fact. The opposing party is also required to cite evidence in support of each denial. In the absence of the required admissions and denials, the court has reviewed plaintiff's arguments and evidence in an effort to discern whether plaintiff denies any fact asserted in ...