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Andrea Van Scoy, Lynda Azevedo, Diana Murdock, Christina Carnes v. New Albertson's Inc.

November 30, 2010

ANDREA VAN SCOY, LYNDA AZEVEDO, DIANA MURDOCK, CHRISTINA CARNES; MINA JO GUERRERO, MIRACLE JOHNSON, ROSANNE LAZUKA, PATRICIA LOGAN, TERESA LYON, THERESA ORTH,
AND MARA GRACE SMITH, PLAINTIFFS,
v.
NEW ALBERTSON'S INC., ALBERTSON'S, INC., SAVE-MART SUPERMARKETS, INC., LUCKY'S INC.;
AND DOES 1 THROUGH 25, INCLUSIVE, DEFENDANTS.



The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge

MEMORANDUM AND ORDER

Defendant Save Mart Supermarkets Inc., as successor in interest to Albertson's, Inc. and Albertsons, LLC ("Defendant"), has separately moved for summary judgment as to two of the Plaintiffs in this action, Christina Carnes and Rosanne Lazuka ("Plaintiffs" unless otherwise indicated).

Defendant argues that Plaintiffs' claims asserted in the instant lawsuit, which include allegations of harassment, retaliation and discrimination in violation of the California Fair and Employment and Housing Act, California Government Code § 12940, et seq. ("FEHA"), fail on various grounds. As set forth below, the Court will deny both Motions.*fn1

BACKGROUND

Plaintiffs Christina Carnes and Rosanne Lazuka are two of eleven different named Plaintiffs*fn2 who brought suit in this matter in March of 2008 after previously filing a total of 19 complaints with the California Department of Fair Employment and Housing ("DFEH") in March and April of 2007. Plaintiffs, who were white employees of Defendant's Store 7254 in Vallejo, California, allege they were subjected to so-called "reverse" discrimination at the hands of their African-American store manager, Lois Douglas, who is claimed to have discriminated, harassed and retaliated against them because they were not African-American.

Because the summary judgment requests now before the Court are nearly identical, the Court will consider both motions jointly, while noting any differences between the claims posited by Carnes and Lazuka that merit separate treatment.

Both Plaintiffs worked at Store 7254 before Lois Douglas transferred to that facility as Store Manager in June of 2005. Both claim that the atmosphere changed markedly thereafter since Ms. Douglas acted in a discriminatory fashion by favoring African-American employees in such areas as work assignments and scheduling, promoting African-Americans with less seniority, and holding Plaintiffs to a stricter standard of conduct than African-American employees. Compl., ¶ 18. Plaintiffs further claim that Douglas began a campaign of harassment and intimidation which created a hostile work environment with the intention of forcing Plaintiffs to resign or to transfer to other stores. Id. at ¶ 20.

According to Plaintiffs, the discipline meted out by Douglas to white, as opposed to black, employees was vastly different. Both Carnes and Lazuka describe, for example, significant discrepancies in the way Douglas enforced dress issues between the two groups. Similar discrepancies were identified with respect to other issues like whether consumption of food and beverages was permitted on the sales floor. Moreover, according to Plaintiffs, Douglas adopted a pattern of announcing over the store-wide loudspeaker which employees were to be called into her office, ostensibly for discipline-related reasons. According to the Declaration of Andrea Van Scoy, 99 percent of the time this involved white employees. Ms. Van Scoy notes that in her 31 years in the grocery business she has never seen discipline being announced in such a public, rather than confidential, manner. See Van Scoy Decl., ¶¶ 8, 10.

Plaintiffs go on to allege that Douglas gave African-American employees more favorable hours and shift assignments. According to Carnes, before Douglas took over management of the Vallejo store she had never experienced problems in having her work shifts accommodate additional time she worked a second job at Lyon's Restaurant. When Ms. Douglas was in charge, however, she began to assign shifts that conflicted with that second job. Carnes further alleges that at the same time her own weekly hours at Defendants' facility were reduced as much as twelve hours a week. Carnes Decl., ¶¶ 6, 13.

Perhaps most significantly, both Plaintiffs insist that Douglas' disparate treatment between black and white employees resulted in a hostile, polarized work environment. This alleged state of affairs is buttressed by declarations of other employees submitted by Plaintiffs in connection with their oppositions to Defendants' two motions. According to Mina Guerrero, a white manager, for example, Douglas routinely failed to back her up on any discipline accorded to black employees, even when those employees worked directly under Ms. Guerrero. Guerrero Decl., ¶ 16, 20-21. Plaintiff Lazuka herself opines that Ms. Douglas' repeated and unwarranted discipline of white employees resulted in their disqualification for promotional opportunities to the advantage of black employees with less seniority who were thereby able to qualify for positions that would otherwise have been available. Lazuka goes on to allege that the vast majority of hires and promotions effectuated by Ms. Douglas were of African-Americans.

She states that Douglas attempted to condescendingly rebuff her own requests for different job applications, going so far on one occasion to complain that "you people do this to me all the time". Lazuka Decl., ¶ 37.

In March of 2006, various Store 7254 employees complained to the Union about Douglas' near daily harassment and intimidation of non-black employees, misuse of discipline and writeups to threaten employees and the resulting tension filled, hostile work atmosphere. See id. at ¶ 27. Thereafter, according to Plaintiff Lazuka, Douglas told her that the Union did not scare her and that Lazuka should "keep her big mouth shut". Id. at ¶¶ 28, 31.

According to Defendant, it conducted an internal investigation in August of 2006 after being advised by the Union of complaints levied against Ms. Douglas. Although Defendant claims that it found nothing amiss as a result of that investigation, it nonetheless implemented a plan of action that included removing Ms. Douglas from issuing discipline to store employees, tasking managers with assisting in the interview and hiring process for job applicants, and sending Ms. Douglas for outside training aimed at improving her communication skills. See Carnes Statement of Undisputed Fact ("SUF") Nos. 56-58.

Plaintiffs nonetheless claim that these measures failed to curtail Ms. Douglas' alleged abuses, and, as stated above, the eleven originally-named Plaintiffs in this case, including Plaintiffs Lazuka and Carnes, filed a total of 19 complaints with DFEH in March and April of 2007 which alleged, inter alia, discrimination, ...


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