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Jeanne Elmore v. New Albertson's

August 15, 2012


The opinion of the court was delivered by: Otis D. Wright, II United States District Judge


Pending before the Court is Defendant New Albertson's, Inc.'s Motion for Summary Judgment. (ECF No. 17.) The Court has carefully considered the parties' briefs, the evidence submitted in support of and in opposition to those briefs, and the parties' oral arguments.


Plaintiff, Jeanne Elmore, began working for Albertson's in 2000. (Elmore Decl. ¶ 2.) In early 2006, a worker's compensation doctor diagnosed Elmore with Carpal Tunnel Syndrome ("CTS") resulting from the tasks Elmore was required to perform at her job. (Elmore Dep. 38:13--20, 44:16--45:21.) Elmore went on disability leave from February 19, 2007 to October 15, 2007, during which time she had surgery to treat her CTS. (Elmore Decl. ¶ 4.) After the surgery, Dr. Stuart Kuschner cleared her to work with no restrictions. (Elmore Dep. Ex. 16.) Upon returning to work, Elmore was placed in a general merchandise position in accordance with her doctor's recommendation. (Id. ¶ 5.) She worked in this position at the Newbury Park Albertson's store until the end of 2009. (Id. ¶¶ 6--7, 10.) During this time, Elmore did not ask for any accommodations relating to her hands. (Elmore Dep. 81:16-20.) At the same time, Elmore also held a second job as a general clerk at a CVS store. (Id. 39:16--40:17.)

In November 2009, Elmore complained of wrist pain and went to see Dr. Jerold Litoff. (SUF 11.) Dr. Litoff reported that Elmore had "no evidence of recurrence of her [CTS] . . . but did have evidence of . . . lateral humeral epicondylitis [tennis elbow]." (Elmore Dep. Ex. 27 at 5.) Dr. Litoff cleared Elmore to work her regular duties. (Id.)

In 2010, Elmore transferred to the Albertson's store in Simi Valley, California, which was closer to her home, in order to care for her ill son. (Elmore Decl. ¶¶ 10-- 11.) For this transfer, Elmore sought a position in the general merchandise department, for which there were no openings, so instead she accepted a position in the deli department. (Id.)

Elmore contends that at the Simi Valley Albertson's store, she made it known to the store manager, Carlton Hurst, that her hands hurt doing the work in the deli, and that she wished to transfer to a general merchandise position when one became available. (Id. ¶ 11.) Elmore further contends that when a general merchandise position opened up, Hurst failed to accommodate her, and instead hired another worker. (Id. ¶ 14.)

On May 5, 2010, Albertson's warned Elmore for violating company policy when she packaged deli meat and marked the price down for her own purchase. (Hurst Decl. ¶¶ 4--6; Ex. 2.) Elmore contends she had permission from her supervisor to do this, since the deli meats were expired and could not be sold. (Elmore Decl. ¶ 17.) Hurst warned Elmore that she would be terminated for any similar violations in the future. (Id. ¶ 18; Hurst Decl. Ex. 2.) Although Elmore desired a different position and loathed Hurst's demeanor towards her, she never requested a transfer to a different Albertson's store nor checked job postings for better positions (e.g., general merchandising) at different Albertson's stores. (Elmore Decl. ¶¶ 12--13; Elmore Dep. 126:4--11.)

On June 15, 2010, after a report that there was no fried chicken breasts left in the deli section, Hurst reviewed a store video from the previous night, which he believed showed Elmore giving an unauthorized discount to a customer by giving ten large pieces of chicken for a eight-piece chicken dinner. (Hurst Decl. ¶ 8.) Hurst discussed this matter with management and Elmore, and terminated her on June 21, 2010. (Id. ¶¶ 11--13.) Albertson's claims this termination was a direct result of the May 5, 2010 and June 15, 2010 incidents. (Id. ¶ 9.)

Albertson's now seeks summary judgment on the entirety of Elmore's action.


Summary judgment should be granted if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The moving party bears the initial burden of establishing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323--24 (1986). Once the moving party has met its burden, the nonmoving party must go beyond the pleadings and identify specific facts that show a genuine issue for trial. Id.

A genuine issue of material fact must be more than a scintilla of evidence, or evidence that is merely colorable or not significantly probative. Addisu v. Fred Meyer, 198 F.3d 1130, 1134 (9th Cir. 2000). A disputed fact is "material" where the resolution of that fact might affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1968). An issue is "genuine" if the evidence is sufficient for a reasonable jury to return a verdict for the nonmoving party. Id. Where the moving and nonmoving parties' versions of events differ, courts are required to view the facts and draw reasonable inferences in the light most favorable to the nonmoving party. Scott v. Harris, 550 U.S. 372, 378 (2007).

Further, the Court need not "scour the record in search of a genuine issue of triable fact"-it is the nonmoving party's responsibility to "identify with reasonable particularity the evidence ...

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