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

June 28, 2011


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


Defendant Save Mart Supermarkets Inc., as successor in interest to Albertson's, Inc. and Albertsons, LLC ("Defendant"), has filed two motions for summary judgment in this matter. The first is directed solely to the claims made by Plaintiff Andrea Van Scoy.

The second challenges the claims brought by the remaining active Plaintiffs, Lynda Azevedo, Diana Murdock, Christina Carnes, Mina Jo Guerrero, Miracle Johnson, Rosanne Lazuka and Theresa Orth.*fn1

Summary adjudication as to individual claims being made by the various plaintiffs; instead, both notices of motion simply seek "summary judgment as to all claims". Consequently, in ruling on the motions, the Court's inquiry must necessarily focus on whether any portion of Plaintiffs' claims survive.

The dominant argument advanced in both motions is Defendant's contention that Plaintiffs' claims are barred by the six-month statute of limitations generally applicable to claims falling within the purview of the Labor Management Relations Act, 29 U.S.C. § 141, et seq. ("LMRA"). Both Motions depend on that argument in claiming that Plaintiffs' claims fail in their entirety. Because the Court finds that Defendant has not met its burden in establishing as a matter of law that said limitations period expired, the instant motions must be denied.*fn2


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. Plaintiffs filed suit on March 20, 2008 in the Solano County Superior Court 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 allege, inter alia, harassment, retaliation and discrimination in violation of the California Fair and Employment and Housing Act, California Government Code § 12940, et seq. ("FEHA").

According to Plaintiffs, after Lois Douglas transferred to Store 7254 as Store Manager in June of 2005, the atmosphere at the store changed markedly. Plaintiffs claim that 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.

Beginning in early 2006, various Store 7254 employees complained to both union representatives, and directly to Defendant's human resources representative Donna Breitenbach, 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 Pls.' Supp. Response; 3:9-14, citing previously filed Carnes Decl., ECF No. 54, ¶ 48; see also Lazuka Decl., ECF No. 51, ¶ 29.*fn3 Defendant thereafter conducted its own internal investigation which culminated in an initial August 2006 report prepared by Ms. Breitenbach. See Pls.' Supp. Response, 3:14-20, citing Def.'s Breitenbach Decl., ECF No. 42, Ex. A. Defendant thereafter 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. Breitenbach Decl., ECF No. 42, ¶ 8.

According to Plaintiffs, those measures still failed to curtail Ms. Douglas' alleged abuses, and, as stated above, the eleven originally-named Plaintiffs in this case filed a total of 19 complaints with DFEH in March and April of 2007 which alleged, inter alia, discrimination, retaliation, and hostile work environment claims against Ms. Douglas and Defendant. After those grievances were filed, Defendant undertook further investigation beginning in May of 2007. According to a Confidential Investigation Summary prepared by Defendant on May 17, 2007, a total of 40 additional interviews were conducted in conjunction with that further investigation. According to the Report, Store 7254 remained "extremely dysfunctional" and the "worst [the author of the Report] had experienced in... 20 years of investigation." See Confidential Investigation Summary, Ex. A to Def.'s Decl. Of Monica Sanchez, ECF No. 43-1, p. 6. According to the Report, despite the investigation and recommendations of August of 2006, "[t]he employees feel their issues were not resolved. Local 5 does not feel the issues were resolved, and are ongoing. The complaints appear to be the same or very similar to the previous complaints from 1-2 years ago."

Id. at p. 7. The Report went on to discuss an "action plan for resolution" that included meeting with the DFEH to discuss the 19 complaints as well as follow-up meetings with union representatives, the transfer of Lois Douglas and other employees away from Store 7254, as well as meetings and retraining (as deemed appropriate) involving the remainder of Store 7254's staff. Id.

There was no indication in the Report that these ongoing measures designed to address Plaintiffs' claims had terminated or otherwise ended. To the contrary, according to Plaintiffs, Defendant was continuing to work towards a resolution of their complaints through the time the instant action was filed in March of 2008.


The Federal Rules of Civil Procedure provide for summary judgment when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). One of the principal purposes of Rule 56 is to dispose of factually unsupported claims or defenses. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Under summary judgment practice, the moving party "always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of 'the pleadings, ...

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