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Belinda Solis v. Walgreen Co

May 9, 2013


The opinion of the court was delivered by: Edward J. Davila United States District Judge


United States District Court For the Northern District of California

Presently before the court in this employment discrimination and retaliation action is Defendant Walgreen Co.'s ("Walgreens") Motion for Summary Judgment. Dkt. No. 31. The court 20 previously found this matter suitable for decision without oral argument pursuant to Civil Local 21

Rule 7-1(b) and vacated the hearing. Having reviewed the parties' briefing, and for the reasons 22 that follow, the court GRANTS Walgreens' Motion for Summary Judgment. 23


a.Ms. Solis' Disability and Accommodations

Plaintiff Belinda Solis ("Ms. Solis") worked at Walgreens' Seaside location ("the Seaside 26 store") from February 11, 1999 until her departure on May 28, 2010. Compl. ¶ 4, Dkt. No. 1; 27 Declaration of Scott Plamondon ISO Def. MSJ ("Plamondon Decl.") Ex. B at 92:1-3, Dkt. No. 37. 28 During her eleven-year tenure at the Seaside store, Ms. Solis received good performance evaluations and was promoted from cashier, to Pharmacy Technician, to Senior Pharmacy 2 Technician. Declaration of Belinda Solis ISO Pl. Opp'n ("Solis Decl.") ¶¶ 1-5, Dkt. No. 40-1. 3

4 disease that causes intestinal bleeding, bloody diarrhea, and cramping. Compl. at ¶¶ 7-8; 5 32:3-33:9, 33:21-34:9. In 2008, she was diagnosed with fibromyalgia, bursistis in her hips, and 7 tendinitis in both arms. Solis Decl. ¶ 7; Granieri Decl. Ex. C at 58:11-23. The parties do not 8 appear to dispute that Ms. Solis was disabled. 9 10 use of a handicapped parking space. Granieri Decl. Ex. A at 44:1-16; Ex. C at Christensen Dep. 11 12 Plamondon Decl. ¶¶ 14-15, Ex. K. Walgreens' then-pharmacy manager Mr. David Duncan and 14 store manager Mr. Patrick Servais both initially questioned Ms. Solis' use of handicapped parking. 15

However, after speaking with District Pharmacy Supervisor Mr. Brett Stark, the Seaside store 16 managers permitted her to use handicapped parking without repercussion. Compl. ¶¶ 20-27; 17 Plamondon Decl. Ex. B at 49:10-17. 18 20 through a budgetary control memorandum ("the Budget Control Memo") to its store managers. 21

Control Memo instructed managers to reduce store headcount by May 15, 2010 through a variety 23 of measures including taking advantage of normal employee attrition, asking employees to 24 voluntarily work less hours or transfer to stores with available budget hours, and instituting a 25

In December 2004, Ms. Solis was diagnosed with ulcerative colitis, an inflammatory bowel Declaration of Christy W. Granieri ("Granieri Decl.") Ex. A at 15:14-17; Ex. C at 11:9-12:19, 6 Ms. Solis sought two accommodations for her disability: a modified work schedule and the Exs. 2, 8. Walgreens granted Ms. Solis a schedule of seven to eight hour shifts, five days per week. Declaration of Patrick Servais ISO Def. MSJ ("Servais Decl.") ¶ 29, Dkt. No. 34;*fn1 a.Walgreens' Budgetary Control Measures In March 2010, Walgreens implemented new budgetary controls, which it explained Declaration of Chris Murray ISO Def. MSJ ("Murray Decl.") ¶5, Ex. 2, Dkt. No. 36. The Budget 22 mandatory reduction in staffing. Id. To further its budgetary goals, Walgreens implemented a 2 nationwide hiring freeze on June 15, 2010, which affected all of its 7,742 stores nationwide. 3 Effective immediately, hiring for our community pharmacy staff is temporarily suspended in order to further support achieving our Q4 budgets. These restrictions apply to hiring internal and external candidates for pharmacists, technicians, and pharmacy cashiers.Hiring managers who are noncompliant will be subject to disciplinary action. Id.

Walgreens did not distribute this notice to store-level management until it officially announced the 10 hiring freeze on June 15, 2010. Murray Decl. ¶ 7. 11

Murray Decl. ¶ 6, Ex. 3. The Temporary Hiring Suspension notice stated in relevant part: 4

b. Ms. Solis' Decision to Leave the Seaside Store

In early March 2010, Ms. Solis decided to move to Utah with her boyfriend. Plamondon Decl. Ex. B at 64:22-65:1, 65:18-25. Ms. Solis informed the Seaside store of her intention to 14 move, and asked for help in securing a position at a Walgreens in her new town. Plamondon Decl. 15 Ex. B at 71:8-19. Ms. Solis also attempted to secure her own position. She called a Walgreens 16 located in Kaysville, Utah ("the Kaysville store"), and made contact with the pharmacy manager, 17 Ms. Berrie Child. Ms. Solis and Ms. Child had a telephone conversation in which Ms. Solis 18 explained that she was moving to Utah and hoped to find work at a Walgreens. The two discussed 19 71:14-15, 20-22, 72:6-19; Declaration of Berrie Child ISO Def. MSJ ("Child Decl.") ¶ 3, Dkt. No. 21 32. The parties agree that during this conversation Ms. Child told Ms. Solis that she would need to 22 come to an in-person meeting once she arrived in Utah, but dispute whether or not Ms. Child made 23 an employment offer during the phone call. Plamondon Decl. Ex. B at 73:14-16; Child Decl. ¶¶ 3-24 While Ms. Solis was planning her move to Utah, the Seaside store was struggling to meet 26 the May 15, 2010 deadline for headcount reduction set by the Budget Control Memo. Having been 27 unsuccessful with voluntary reduction, the Seaside store's managers selected an employee, Theresa 28 Ms. Solis' qualifications, and Ms. Child expressed interest in hiring her. Plamondon Decl. Ex. B at 20 4. 25 Elliot, for layoff, and informed Ms. Elliot of the decision. Servais Decl. ¶¶ 4-7. However, after her telephone conversation with Ms. Child and one week before the headcount reduction deadline, Ms. 2 Solis informed Mr. Servais that she had secured a position at the Kaysville store and would be 3 leaving the Seaside store on May 28, 2010. Servais Decl. ¶ 8; Compl. ¶ 46. Ms. Solis' departure 4 created an opportunity for the Seaside store to reverse Ms. Elliot's lay-off. Servais Decl. at ¶ 8, 9, 5 Elliot's situation. Servais Decl. ¶ 9. Ms. Solis complied and submitted a letter dated May 7, 2010, 7 which bore the heading "2 WEEKS NOTICE" and stated: 8

13. Mr. Servais requested that Ms. Solis provide him written notice so that he could address Ms. 6 My name is Belinda Solis and have worked for Walgreens Store 2867 in Seaside, CA for a little over 11 years and I will be transferring to a Walgreens in the state of Utah. My last day of work will be on May 28, 2010. I will be using my last vacation days after that date. Compl. Ex. E.

Ms. Solis testified that she "wasn't sure exactly at that time if [she] was going to start in Kaysville, 13 so [she] just put Utah." Plamondon Decl. Ex. B at 84:4-9. Ms. Solis worked her last day at the 14 81:15-16, 92:1-3. 16

18 had discussed. Plamondon Decl. Ex. B at 75:20-76:2. The two met on June 25, 2010. Child Decl. 19 Decl. Ex. G at 36:18, 37:6-9. However, Ms. Child told Ms. Solis she needed to speak with the 21 district manager regarding her hire and pay, and that she would get back to her. Id. at 37:17-38:3. 22

When Ms. Child contacted her district manager, she was informed of the nationwide hiring freeze 23 and told that she was not allowed to hire any pharmacy technicians. Id. at 37:4-24. Therefore, Ms. 24 Solis call her old store. Child Decl. ¶ 7; Compl. ¶ 55. 26 27 to the Seaside store. Compl. ¶¶ 56-57. Mr. Servais instructed Ms. Solis to contact Ms. Patel to see 28 if the pharmacy had available hours. Id. at ¶ 57. When Ms. Solis spoke with Ms. Patel, she learned Seaside store on May 28, 2010 and moved to Utah in early June 2010. Plamondon Decl. Ex. B at 15

c.Ms. Solis' Request to Return to the Seaside Store

Upon arriving in Utah, Ms. Solis contacted Ms. Child to set up the in-person meeting they ¶ 6. Ms. Child thought Ms. Solis was "extremely competent" and wished to hire her. Plamondon 20 Child contacted Ms. Solis and told her that she could not make an offer but suggested that Ms. 25 Without an offer from the Kaysville store, Ms. Solis called Mr. Servais and asked to return that the Seaside store no longer had room for her. Id. at 58-59. After that conversation, Ms. Solis 2 never spoke with Mr. Servais, Ms. Patel, or Ms. Child again. Plamondon Decl. Ex. B at 87:18-3 88:10, 89:3-10; Declaration of Keral Patel ("Patel Decl.") ¶ 6; Child Decl. ¶ 8. 4

d.Procedural History

After filing complaints with the Equal Employment Opportunity Commission and California's Department of Fair Employment and Housing, Ms. Solis instituted this litigation 7 against Walgreens on February 9. 2011. See Compl. Ex. F; Plamondon Decl. Ex. B at 87:18-21. 8 Ms. Solis' Complaint alleges seven causes of action: (1) unlawful discrimination based upon 9 physical disability in violation of the California Fair Employment and Housing Act ("FEHA"); (2) 10 failure to reasonably accommodate physical disability in violation of FEHA; (3) failure to engage 11 in the interactive process in violation of FEHA; (4) retaliation in violation of FEHA; (5) failure to prevent discrimination in violation of FEHA; (6) wrongful termination in violation of public 13 policy; and (7) violation of California Labor Code Section 970. Walgreens moves for summary 14 judgment as to each cause of action. The court will now turn to the substance of that motion. 15

17 material fact and the movant is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(a); 18

Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000). The moving party bears the 19 initial burden of informing the court of the basis for the motion and identifying the portions of the 20 pleadings, depositions, answers to interrogatories, admissions, or affidavits that demonstrate the 21 absence of a triable issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). 22

If the moving party does not satisfy its initial burden, the nonmoving party has no 23 obligation to produce anything and summary judgment must be denied. Nissan Fire & Marine Ins. 24 Co., Ltd. v. Fritz Cos., Inc., 210 F.3d 1099, 1102--03 (9th Cir. 2000).On the other hand, if the 25 moving party does meet this initial burden, the burden then shifts to the nonmoving party to go 26 beyond the pleadings and designate "specific facts showing that there is a genuine issue for trial." 27 Fed. R. Civ. P. 56(e); Celotex, 477 U.S. at 324. The court must regard as true the opposing party's 28 evidence, if supported by affidavits or other evidentiary material. Celotex, 477 U.S. at 324.


A motion for summary judgment should be granted if "there is no genuine dispute as to any

However, the mere suggestion that facts are in controversy, as well as conclusory or speculative 2 testimony in affidavits and moving papers, is not sufficient to defeat summary judgment. See 3

Thornhill Publ'g Co. v. GTE Corp., 594 F.2d 730, 738 (9th Cir. 1979). Instead, the non-moving 4 party must come forward with admissible evidence to satisfy the burden. Fed. R. Civ. P. 56(c); see 5 also Hal Roach Studios, Inc. v. Feiner & Co., Inc., 896 F.2d 1542, 1550 (9th Cir. 1990). 6

Where the moving party will have the burden of proof on an issue at trial, it must 7 affirmatively demonstrate that no reasonable trier of fact could find other than for the moving 8 party. Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). However, where the 9 nonmoving party will have the burden of proof at trial on a particular issue, the moving party ...

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