MEMORANDUM AND ORDER RE: MOTION FOR SUMMARY JUDGMENT
Plaintiffs Victoria McCarthy and Katherine Schmitt brought this action against their former employer, defendant R.J. Reynolds Tobacco Co., alleging claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2, 2000e-3, for sexual harassment and retaliation, under California's Fair Employment and Housing Act ("FEHA"), Cal. Gov't Code § 12940, for disability discrimination and failure to accommodate, and for tortious adverse employment actions in violation of public policy. Defendant now moves for summary judgment on all claims pursuant to Federal Rule of Civil Procedure 56.*fn1
I. Evidentiary Objections "A party may object that the material cited to support
or dispute a fact cannot be presented in a form that would be admissible in evidence." Fed. R. Civ. P. 56(c)(2). "[T]o survive summary judgment, a party does not necessarily have to produce evidence in a form that would be admissible at trial, as long as the party satisfies the requirements of Federal Rules of Civil Procedure 56." Fraser v. Goodale, 342 F.3d 1032, 1036-37 (9th Cir. 2003) (quoting Block v. City of Los Angeles, 253 F.3d 410, 418-19 (9th Cir. 2001)) (internal quotation marks omitted). Even if the non-moving party's evidence is presented in a form that is currently inadmissible, such evidence may be evaluated on a motion for summary judgment so long as the moving party's objections could be cured at trial. See Burch v. Regents of the Univ. of Cal., 433 F. Supp. 2d 1110, 1119-20 (E.D. Cal. 2006).
Defendant has filed twenty-one evidentiary objections. (Docket No.
40.) Defendant objects to portions of plaintiffs' deposition testimony
on the grounds of lack of foundation, hearsay, speculation,*fn2
lack of personal knowledge, and expert
opinion testimony. The court gave plaintiffs an opportunity to respond
to the objections and defendant an opportunity to reply. Plaintiffs
have withdrawn the evidence referenced in defendant's objections 14
and 16, and the court will not consider that evidence. Defendant has
withdrawn objection 7.
In the interest of brevity, as defendant is aware of the substance of its objections and the grounds asserted in support of each objection, the court will not review the substance or grounds of all the objections here. Defendant's objections 1-2, 4, 8, 10-11, 13, 17-18, and 20-21 are overruled, as they could be presented in a form that would be admissible at trial.*fn3 Defendant's objections 3, 9, 15, and 19 are sustained on the basis that the evidence is inadmissible hearsay that could not be cured at trial.*fn4 Defendant's objections 5, 6, and 12 are sustained on personal knowledge grounds.*fn5
Plaintiffs began working for defendant in August of
2006 as Trade Marketing Representatives ("TMRs"). (Waggoner Decl. Ex. 2 ("Schmitt Dep.") at 9:4-7 (Docket No. 18); Waggoner Decl. Ex. 3 ("McCarthy Dep.") at 19:13-18.) Starting in July or August of 2007, plaintiffs and other employees began to have complaints about Michelle Madsen, their supervisor. Madsen used vulgar language and discussed whether or not the employees were in relationships. (Bolanos Decl. Ex. A ("McCarthy Dep.") at 67:21-25; 69:20-72:6 (Docket No. 33).) In particular, Madsen told McCarthy that she should not have boyfriends if she wanted to get ahead, because relationships "mess up" careers. (Id. at 70:3-20.) Madsen also told McCarthy that Madsen no longer had sex with her husband because it interfered with her work. (Id. at 71:12-16.) In contrast, Madsen told Schmitt that her work "was starting to lack because [Schmitt's] bedroom was a very lonesome place," and that she needed to have "a more active bedroom" for her work to improve. (Bolanos Decl. Ex. C ("Schmitt Dep.") at 42:2-7.) Madsen also told another employee, Kyle, that "his work would be better if his girlfriend lived here, because he wouldn't be so focused on having an empty bedroom." (Id. at 45:2-8.) Madsen also liked to talk about what sexual positions people preferred, and referred to the fact that another employee, John Walker, was homosexual. (Bolanos Decl. McCarthy Dep. at 86:3-12.)
In late August or early September of 2007, plaintiffs separately complained to defendant's Human Resources department about Madsen's behavior, particularly about what they believed to be Madsen's improper termination of Walker because of his sexuality. (Waggoner Decl. Schmitt Dep. at 91:9-92:3, 92:20-96:2; Waggoner Decl. McCarthy Dep. at 130:5-16, 131:4-24, 132:13-133:8, 134:16-135:7, 137:5-16, 138:24-139:12, 139:21-141:9, 144:15-145:5, 146:20-148:9.) On September 12, 2007, Renee Duszynski from Human Resources held a meeting with all of the employees under Madsen's supervision to discuss the problems with Madsen. (Waggoner Decl. Schmitt Dep. at 60:1-21.) Many employees voiced concerns about Madsen. (Id. at 60:1-67:17; Bolanos Decl. McCarthy Dep. at 166:10-20.)
On October 15, 2007, defendant contends that Madsen was issued a "final written reprimand" for her conduct, the most severe form of written discipline short of termination. (Sullivan Decl. ¶ 6 (Docket No. 20).) Madsen claims that she did not know that plaintiffs were the ones who complained about her conduct until much later. (Madsen Decl. ¶ 6 (Docket No. 16).)
Starting in October of 2007, Madsen required plaintiffs to move boxes for two days and clean their storage units multiple times, tasks that were normally outsourced to third parties. (Bolanos Decl. McCarthy Dep. at 216:5-15, 229:8-230:7.) Beginning in September of 2007, Madsen changed Schmitt's time cards to inaccurately reflect her sick leave, and denied many of plaintiffs' reimbursement requests, something she had not previously done. (Bolanos Decl. Schmitt Dep. at 86:23-87:5, 190:12-191:6.) Madsen also started calling plaintiffs almost every day at 8:00 a.m. to learn if and where they were working and threatening to "pop into" their routes, something she did not do for other employees. (Id. at 87:6-10, 113:7-114:25.) Schmitt perceived these calls as attempts to "scare" her. (Id. at 87:6-10.)
McCarthy testified that Madsen touched her inappropriately in October of 2007 by touching McCarthy's leg with her hand for a "couple seconds" while the two were driving to lunch, and then touching her shoe against McCarthy's pants under the table at lunch. (Waggoner Decl. McCarthy Dep. at 184:14-192:11, 295:19-296:2, 291:10-20, Ex. 32.) McCarthy's testimony regarding when she first reported the touching to defendant is contradictory: She alternately states that she first reported it in December of 2007 and July of 2008. (Waggoner Decl. McCarthy Dep. at 295:19-296:2, Ex. 32; Bolanos Decl. McCarthy Dep. at 199:15-21.)
Plaintiffs each took a leave of absence from mid-December to early January. Schmitt took leave from December 13, 2007, to January 7, 2008, and McCarthy took leave from December 17, 2007, to January 8, 2008. (Garrison Decl. in Supp. of Def.'s Mot. for Summ. J. ("Garrison Decl.") ¶¶ 6-7 (Docket No. 17).)
Starting on January 1, 2008, defendant underwent corporate reorganization and plaintiffs started reporting to Bryan Fedewa rather than Madsen. (Fedewa Decl. ¶ 2 (Docket No. 15); Madsen Decl. ¶ 20.) Fedewa began calling plaintiffs every morning at 8:00 a.m., as Madsen had done. (Bolanos Decl. Schmitt Dep. at 203:12-14.) On January 18, 2008, Madsen issued written reprimands to plaintiffs for violating management instructions*fn6 in November and December of 2007, when she was still their supervisor; she claims that she waited until mid-January to discipline them because they had been on leave. (Madsen Decl. ¶¶ 2, 8, 13-16, Exs. 3-5.) At some point after the January 18, 2008, review, Schmitt requested a lateral transfer to Colorado, which was denied because of the written reprimand she had received. (Bolanos Decl. Schmitt Dep. at 169:4-11, 173:3-14.)
From February 15, 2008, to March 27, 2008, Schmitt took a second leave of absence. (Garrison Decl. ¶ 6.) On March 3, 2008, she filed a complaint with the Equal Employment Opportunity Commission ("EEOC"). (Garrison Decl. ¶¶ 11-12, Exs. 10-11; Waggoner Decl. Schmitt Dep. at 279:21-25, 282:23-25, 283:5-18, Ex. 79.) She returned to work for a few months and then took a final leave of absence from June 5 to October 27, 2008. (Garrison Decl. ¶ 6.) At that point, she tendered her resignation. (Id.) Schmitt states that she resigned because of Fedewa's "retaliation, hostile attitude and militant managerial style." (Waggoner Decl. Schmitt Dep. Ex. 140; see also id. at 228:12-229:22, 231:1-232:7, 512:5-13.)
On February 12, 2008, McCarthy filed a complaint with the EEOC. (Garrison Decl. ¶¶ 9-10, Exs. 6-9; Waggoner Decl. McCarthy Dep. at 271:1-14, 276:12-20, Ex. 28.) The parties dispute whether Fedewa did an analysis of McCarthy's work in March of 2008 and discovered that there were problems. (Fedewa Decl. ¶¶ 5-7, Ex. 1.) McCarthy took two more leaves of absence, from March 24 to March 28 and April 18 to June 23 of 2008. (Garrison Decl. ¶ 7.) On June 25, 2008, McCarthy received a written reprimand from Fedewa relating to the problems that had been discovered in March, before her leaves of absence. (Fedewa Decl. ¶¶ 5-7, Ex. 1.) McCarthy then took a final leave of absence from June 27, 2008, to February 24, 2009, and filed a second EEOC complaint during her leave on September 9, 2008. (Garrison Decl. ¶¶ 7, 9-10, Exs. 6-9; Waggoner Decl. McCarthy Dep. at 271:1-14, 276:12-20.) McCarthy was terminated on February 24, 2009, when she did not return to work. (Garrison Decl. ¶ 7.) She contends that she is permanently disabled and is unable to work, and has been since April of 2008; she has been collecting Social Security disability benefits since that time. (Waggoner Decl. McCarthy Dep. at 537:14-22, 587:17-20, 609:7-17, 616:10-19.)
Summary judgment is proper "if the ...