This matter comes before the court upon defendant's motion for summary judgment. (ECF 15.) Hearing on this motion took place on August 31, 2011; Kara Keister and Sean Gavin appeared for plaintiff and William Murphy and Joe Creason appeared for defendant. For the following reasons, defendant's motion is hereby GRANTED.
Plaintiff filed her complaint in Placer County Superior Court on May 11, 2010 alleging eight causes of action: 1) age discrimination in violation of Cal. Gov't Code §§ 12900, et seq., and 12940, et seq.; 2) gender discrimination in violation of Cal. Gov't Code §§ 12900, et seq., and 12940, et seq.; 3) wrongful termination in violation of Cal. Gov't Code §§ 12900, et seq., and 12940, et seq.; 4) retaliation in violation of Cal. Gov't Code §§ 12900, et seq., and 12940, et seq.; 5) breach of employment contract; 6) breach of the implied covenant of good faith and fair dealing; 7) negligent hiring and retention;*fn1 and 8) intentional infliction of emotional distress (IIED). (Not. of Removal, Ex. A, ECF 1-1.) Defendant removed the action to this court on June 11, 2010. (ECF 1.)
Defendant filed the present motion for summary judgment on July 20, 2011. (ECF 15.) Plaintiff filed her opposition on August 17, 2011. (ECF 34.) Defendant filed its reply on August 24, 2011. (ECF 46.)
II. PLAINTIFF'S REQUEST TO SEAL (ECF 50)
Plaintiff filed a request to seal documents on August 22, 2011 (ECF 43), which
was denied on August 30, 2011 (ECF 49). The court struck paragraph 5 of the protective order (ECF 11), found that there was no good cause for granting plaintiff's request, and instructed plaintiff that the termination list underlying the request would not be considered in connection with the pending motion for summary judgment unless and until it was properly filed in compliance with the Local Rules and paragraph 7 of the protective order. (ECF 49.) Instead of properly filing the termination list, on August 30, 2011, plaintiff refiled the same request to seal documents the court had rejected earlier that day. (ECF 50.) Accordingly, plaintiff's renewed request to seal documents is DENIED. The termination list has not been considered by the court in connection with the present motion.
On April 15, 2009, plaintiff adjusted the price of a bottle of vodka to half the original price for a customer. (Def.'s Statement of Undisputed Material Facts ¶¶ 5-7, ECF 17 (hereinafter "ECF 17"); Pl.'s Opp'n to Def.'s Statement of Undisputed Material Facts ¶¶ 5-7, ECF 27 (hereinafter "ECF 27").) The customer's purchase was rung up by Diane Bragg, who reported the fact that the price had been marked down to Jason Kellogg, the Store Manager, after the customer had left. (ECF 17 ¶¶ 8-9; ECF 27 ¶¶ 8-9.*fn2 ) Bragg reported this fact to Kellogg because she "did not feel right" about it, not because of plaintiff's age or gender.*fn3 (Bragg Decl. ¶ 2, ECF 20; Creason Decl., Ex. D, Bragg Dep. at 28:19-22, ECF 18-3; ECF 17 ¶ 11.) Kellogg interviewed plaintiff, who admitted she had given the discount and that she had given such discounts in the past. (ECF 17 ¶¶ 12-13; ECF 27 ¶¶ 12-13.)
Kellogg suspended plaintiff from her employment as Liquor Department Manager at Safeway store 1592 on April 15, 2009, and reported the incident to John Gummert, the Loss Prevention Investigator. (ECF 17 ¶ 16; ECF 27 ¶ 16.) Gummert determined that plaintiff had violated store rules and reported his findings to Terry Friedman, the District Manager. (ECF 17 ¶¶ 21-22; ECF 27 ¶¶ 21-22.) Friedman ultimately terminated plaintiff's employment on May 21, 2009. (Def.'s Br. at 10; ECF 17 ¶ 24; ECF 27 ¶ 24.*fn4
In a letter dated July 14, 2009, plaintiff's union advised her that "the Company did in fact have just cause to terminate you. Therefore, your grievance was denied." (Creason Decl., Ex. A, Ex. 9 to the Mazalin Dep., ECF 19 at 72.)
Defendant's store rules*fn5 provide: "Employees may not discount merchandise for customers, other employees or themselves without the express approval of the store manager only. Such approval may be exercised only at the time granted." (Schumacher Decl., Ex. D*fn6 at 3, ECF 26-4.) The rules further provide: "Selling merchandise to fellow employees, friends or customers for less than properly marked or currently advertised prices shall be construed as theft and cause for discharge." (Id. at 4.) The rules clearly state: "Violations of store rules and policies shall be deemed sufficient cause for discipline or discharge." (Id. at 14.)
A court will grant summary judgment "if . . . there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). The "threshold inquiry" is whether "there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).*fn7
The moving party bears the initial burden of showing the district court "that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). The burden then shifts to the nonmoving party, which "must establish that there is a genuine issue of material fact . . . ." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585 (1986). In carrying their burdens, both parties must "[cite] to particular parts of materials in the record [or show] that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support that fact." FED. R. CIV. P. 56(c)(1); see also Matsushita, 475 U.S. at 586 ("[the nonmoving party] must do more than simply show that there is some metaphysical doubt as to the material facts"). Moreover, "the requirement is that ...