On April 11, 2011, plaintiff Tracy DaOro filed a complaint alleging both state and federal claims against defendants Eskaton, SPS Health Care, Inc. ("SPS"), Oak Avenue Properties, LLC ("Oak Avenue") and Erik Pilegaard. (ECF 1.) SPS and Oak Avenue moved for summary judgment on December 18, 2012 (ECF 34) and Eskaton moved for summary judgment on December 21, 2012 (ECF 35). DaOro filed oppositions on January 4, 2013. (ECF 64, 69.) On January 18, 2013, the court heard oral argument on both motions. Manolo Olaso appeared for DaOro, David Ditora appeared for Eskaton and Barbara Blackburn appeared for SPS and Oak Avenue. For the reasons explained below, the court GRANTS the motions for summary judgment as to DaOro's federal claims and dismisses her remaining state claims. /////
1. FountainWood Lodge Ownership and Management FountainWood Lodge ("FountainWood") is a senior residential facility in Orangevale, California that has been managed by Eskaton Properties, Inc. ("EPI") and its affiliate California Healthcare Consultants, Inc. ("CHC") since April 2007. (Hammond Dep. at 18:7-13, ECF 68; Eskaton Resp. to Interrogs. at 3, ECF 53; DaOro Dep. at 11:6-8, ECF 54.) Defendant Eskaton owns EPI; they are separate entities that have a relationship similar to that of a parent company and its subsidiary. (Pace Decl. ¶ 5, ECF 37; Hammond Dep. at 17:13-18:5, ECF 68.) Eskaton and EPI both are non-profit corporations that manage senior care facilities in Northern California. (Pace Decl. ¶ 5, ECF 37.) In 2010, the officers of Eskaton were CEO Todd Murch, CFO Bill Pace, and COO Trevor Hammond (Eskaton Resp. to Interrogs. at 3, ECF 53.) Murch, Pace and Hammond also were the officers of EPI and CHC. (See Bayless Decl. ¶¶ 1-2, ECF 38.) Eskaton and EPI have the same human resources manager and they share personnel policies. (Bayless Dep. at 20:7-17, ECF 56.) The entities have approximately 1500 employees combined, with EPI itself having approximately 1500 employees and Eskaton having 44 as of 2010. (Hammond Dep. at 20:11-19, ECF 68; Eskaton Resp. to Interrogs. at 4, ECF 53.)
Between March 1995 and April 2007, defendant SPS operated FountainWood, until transferring management to EPI. (SPS Resp. to Interrogs. at 4, ECF 34-9.) Because of the management transfer, SPS terminated all its employees in April 2007; most were rehired by EPI. (Id. at 3.) SPS now has no employees; it consists of five partners including defendant Pilegaard and SPS President Douglas Sutherland. (Id. at 5; Sutherland Dep. at 8:5-12, ECF 61.)
SPS remained the owner of FountainWood until March 2011. (Sutherland Dep. at 21:14-19, ECF 61.) When SPS transferred management to EPI, the parties entered into an agreement describing the roles and duties of each. The agreement provided that SPS would (i) retain general control over the operation of [FountainWood] including but not limited to the budget approval, distribution and use of owners [sic] proceeds from operations and the advance approval on all non-budgeted, non-emergency expenditures in excess of $2,500, (ii) maintain, and retain full responsibility under, all licenses, certificates, permits and approvals necessary for the operation of [FountainWood]. . . (Assisted Living Mgmt. Agreement, ECF 34-6.) EPI's duties were to "(a) Manage and supervise the operations of [FountainWood], in all respects . . . . (l) At the expense of [SPS], provide a qualified full-time [A]dministrator at [Fountainwood]; The Administrator selection will be made with the prior approval of [SPS] . . . . The Administrator . . . shall assume general day-to-day administrative and operational responsibility for [FountainWood] . . . .
The agreement states further that The Administrator will be an employee of [EPI] . . . . and shall not be deemed or construed to be an employee of CHC or [SPS]. All compensation and other amounts payable with respect to the Administrator . . . will be charged as operating expenses to [SPS] at the [EPI]'s actual expense."
2. DaOro's Employment at FountainWood
Plaintiff DaOro worked at FountainWood from 1995 until 2000 and again from 2006 until 2010. (SPS Resp. to Interrogs. at 3, ECF 34-9; DaOro Dep. at 10:3-11, ECF 54.) During the time that SPS managed FountainWood, DaOro was an SPS employee. (SPS Resp. to Interrogs. at 5, ECF 34-9.) When SPS transferred management to EPI, DaOro became an employee of CHC. (Bayless Decl. ¶ 2, ECF 38.) On October 15, 2007, DaOro was promoted to the position of FountainWood administrator and became an EPI employee. (Id.)
While DaOro worked as the FountainWood administrator, EPI paid her salary. (Pace Decl. ¶ 6, ECF 37.) EPI was responsible for her performance evaluations. (DaOro Dep. at 258:15-17, ECF 55.) Hammond was DaOro's direct supervisor. (Hammond Dep. at 17:4-9, ECF 68.) DaOro met monthly with Sutherland and Hammond to review FountainWood operations. (Sutherland Dep. at 12:11-15, ECF 61; DaOro Dep. at 23:16-24:12, ECF 34-5.) At one point, Sutherland instructed DaOro on renovations to the FountainWood dining room. (DaOro Dep. at 243:6-14, ECF 67.) She also met monthly with Murch at Eskaton's corporate offices. (DaOro Dep. at 19:2-17, ECF 67.)
In May 2010, DaOro went on paid administrative leave from FountainWood after complaining about sexually inappropriate behavior from Pilegaard. (Bayless Decl. ¶¶ 16-18, ECF 38.) DaOro ...