United States District Court, N.D. California, San Francisco Division
JEMAR THOMPSON, ROSEMARY JOHNSON, EARL HOLLY, DAMIAN WEST, RAY STRONG, KEVIN HARDY, IRVIN GREEN, JO'SEAN SNELL, WARREN ANDERSON and CRYSTAL COLEMAN, Plaintiffs,
C&H SUGAR CO., and AMERICAN SUGAR REFINERY, INC., Defendants.
ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR SUMMARY JUDGMENT Re: Dkt. No. 129
NATHANAEL M. COUSINS, Magistrate Judge.
Defendants move for summary judgment as to nine plaintiffs' race discrimination claims. The Court previously denied defendants' motion for summary judgment as to race discrimination claims brought by plaintiff Crystal Coleman. Defendants therefore bring this motion for summary judgment as to the remaining plaintiffs: Jemar Thompson, Rosemary Johnson, Earl Holly, Damian West, Ray Strong, Kevin Hardy, Irvin Green, Jo'Sean Snell and Warren Anderson. The Court must determine: 1) whether plaintiffs' claims outside the statutes of limitations for Title VII, FEHA, and § 1981 are nonetheless actionable based on a continuing violation or equitable tolling; 2) whether plaintiffs have pointed to sufficient evidence of discriminatory motivation to support their timely claims; and 3) whether plaintiffs' claims fail because their alleged damages are too speculative or uncertain. The Court finds that claims outside the statutes of limitations are barred for the remaining plaintiffs except for plaintiff Thompson. But the Court finds that plaintiffs have pointed to sufficient evidence of discriminatory intent to support their timely claims. The Court also finds that plaintiffs' damages are not so speculative as to merit summary judgment. The motion for summary judgment is therefore granted in part and denied in part.
A. Procedural Background
On January 25, 2014, thirteen African American employees filed suit against their employer, C&H Sugar Company, Inc., and its parent corporation, American Sugar Refinery, Inc. ("ASR"), alleging that defendants denied them training and promotions within the packaging department because of their race in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 1981, and California Government Code § 12940. Dkt. No. 1. Plaintiffs allege that they were refused promotions and training opportunities to a greater extent than non-African American packaging department employees. Id. at 5. Prior to filing suit, plaintiffs Jemar Thompson, Rosemary Johnson, Earl Holly, Damian West, Ray Strong, Kevin Hardy, Crystal Coleman, and Irvin Green filed complaints on July 25, 2011 with the California Department of Fair Employment and Housing ("DFEH") charging the same alleged discrimination. Dkt. No. 1 at ¶¶ 27, 36, 59, 68, 80, 91, 120, 128. Plaintiffs Snell and Anderson filed their DFEH complaints on October 7, 2011. Dkt. No. 1 at ¶¶ 136, 144.
The parties stipulated to allow defendants to file a separate motion for summary judgment for each plaintiff. Dkt. No. 44. On October 4, 2013, defendants moved for summary judgment on Crystal Coleman's race discrimination claims. Dkt. No. 54. The Court denied the motion. Dkt. No. 138. Defendants bring this motion for summary judgment as to the remaining nine plaintiffs.
The parties consented to the jurisdiction of a magistrate judge. Dkt. Nos. 5, 15.
B. General Factual Background
C&H uses "level" designations to classify jobs in the packaging department. Dkt. No. 121-1 at 41; Dkt. No. 121-2 at 30-31. An entry-level employee at C&H is called a Laborer (New). Dkt. No. 121 at ¶ 14. After one year of service, those employees are automatically elevated to Laborers. Id. Through training, a Laborer can get promoted though six levels: Level 1, Level 2, Level 3, Level 4, Level 5, and "Specialist." Dkt. No. 121-1 at 41; Dkt. No. 121-2 at 30-31. Employees working in higher level positions are paid more than employees at lower levels. Dkt. No. 121-1 at 41; Dkt. No. 121-2 at 30-31.
Before 2009, C&H's policy dictated that the packaging department manager would give employees the chance to train for new jobs based on seniority, regardless of discipline history or attendance record. Dkt. No. 79-1 at 36-37. Employees would progress a level once they trained on two jobs. Dkt. No. 79-1 at 23.
In 2009, C&H and the Sugar Worker's Union negotiated a new collective bargaining agreement ("CBA"), which reclassified packaging department jobs and implemented new promotion procedures. Dkt. No. 121 at 3; Dkt. No. 121-2. Two ASR employees signed the CBA on behalf of C&H. Dkt. No. 56 at 45.
Under the CBA, C&H agreed to follow a new procedure for job training and promotion, called the Advancement Program. Dkt. No. 121 at 3; Dkt. No. 121-2. The Advancement Program dictated that C&H select employees for training and promotion based on seniority, performance rating, and duty status. Dkt. No. 121-2 at 33-36. The new policy required that first, C&H post opportunities to train for higher level positions, and interested employees could add their names to a sign-up sheet. Dkt. No. 79-1, 21-22. Then the packaging department manager was to forward the list of candidates to the Human Resources Department. Dkt. No. 79-1 at 21-22. HR was then to review the list of candidates to determine whether a record of disciplinary action or attendance problems disqualified any employees from training. Dkt. No. 79-1 at 21-22. HR was then to revise the list based on employee records and return it to the packaging department manager, who was directed to select qualified employees based on seniority. Dkt. No. 79-1 at 21-22. The packaging department manager also retained discretion to "cross-train" employees on other jobs classified within the same level without regard to seniority, disciplinary record, or attendance. Dkt. No. 79-1 at 36-37.
Under the packaging department's policy, employees with excessive absences would receive bad performance ratings, which would disqualify them from training. Dkt. No. 121-1 at 44, 56. The 2009 CBA incorporated an "Attendance Improvement Program, " also known as the "Step Program." Dkt. No. 121-1 at 56. Employees with attendance problems would be placed on Step 1 of the program. Id. If they continued to miss work during the next twelve months, they would be put on Step 2 of the program. Id. Step 2 employees who missed another eight hours of work would be terminated. Id. However, an employee could be removed from the program and improve his performance record if he had perfect attendance for six months. Id. Employees on Step 1 or 2 of the program were to be disqualified from job training under the packaging department's policy. Id. at 44, 56.
Plaintiffs cite evidence showing that C&H did not follow these promotion policies in practice, and instead that the training and promotion decision process was actually controlled by a supervisory employee named Cliff Sullivan. Other employees testified in depositions that Sullivan circumvented the seniority rules and excluded African American employees from training. Dkt. No.79-1 at 11-12. Supervisory employee Phil Mendelowitz testified that in 2005, Sullivan made racist jokes and once called an African American employee "a nigger" in front of three people. Dkt. No. 164 at 109-110 (Mendelowitz Depo., 142:15-143:7). Mendelowitz also testified that when Sullivan saw an African American employee kiss another African American employee on the cheek, Sullivan referred to her as "a ugly black woman" and commented, "Oh, god, that's gross. How could you kiss something like that?" Dkt. No. 79-3 at 16, 35 (Mendelowitz Depo., 52:21-22; 218:10-11). Mendelowitz's employment at C&H ended in March 2007. Dkt. No. 164 at 112 (Mendelowitz Depo., 229:9-13). Cliff Sullivan's employment at C&H ended in the spring of 2011. Dkt. No. 131 at ¶ 2. Sullivan passed away in July 2013. Dkt. No. 129 at 14.
Several people served as packaging department managers during plaintiffs' tenure at C&H. Dkt. No. 57 at 4-5. Sullivan was superintendent prior to 2008 and then held the title of manager from spring 2008 to May 2011. Dkt. No. 57 at 4. Timothy Cowger was manager from July 2005 to spring 2008, from spring 2011 to October 2011, and from late 2012 to the present. Dkt. No. 57 at 4-5; Dkt. No. 121 at 2. Two other people were managers between 2005 and the present. Dkt. No. 57 at 4-5. However, other employees testified that Sullivan made all the decisions in the packaging department, even when Tim Cowger was manager. Dkt. No. 79-3 at 25, 34. Both before and after 2009, Sullivan "ran the plant with an iron fist." Dkt. No. 79-4 at 28 (Snell Depo., 75:8-17). Sullivan disregarded the advancement program and picked who he wanted to train, which mainly did not include African American employees. Dkt. No. 79-4 at 10 (Johnson Depo, 100:3-8).
C. Factual Background Specific to the Nine Remaining Plaintiffs
i. Jemar Thompson
Jemar Thompson began working in the packaging department on December 8, 2002. Dkt. No. 132 at ¶ 10. Thompson was elevated from Laborer (New) to Laborer after one year of service at C&H. Id. Thompson was promoted to Level 1 on September 29, 2004. Thompson was promoted to Level 2 on January 29, 2005. Id. Thompson was promoted to Level 3 on November 14, 2011. Id.
Thompson claims that he spoke with HR manager David Wilhelm, a union representative, and Cliff Sullivan to inquire why he was not being trained. Dkt. No. 158 at 12-13, 14, 15 (Thompson Depo., 83:24-84:4; 92:9-20; 94:17-95:3). In October 2010, Thompson called a hotline to complain about unfair training. Id. at 103:4-10. Thompson alleges that after his 2005 promotion, he was wrongfully denied promotions until six years later when Sullivan no longer controlled the packaging department. Id. at 161:7-18.
ii. Damian West
Damian West began working in the packaging department on August 21, 2002. Dkt. No. 132 at ¶ 22. After a year of service, West was elevated from Laborer (New) to Laborer. Id. West was promoted to Level 1 on March 1, 2004. Id. West was promoted to Level 2 on November 13, 2004. Id. West was promoted to Level 3 on November 14, 2011. Id.
West claims that he spoke to HR manager Wilhelm in March 2011 to complain that African Americans were being denied training and promotion opportunities. Dkt. No. 158 at 26 (West Depo., 132:9-25). West also complained to plant manager Kim Merritt about being passed over for training opportunities. Id. at 150:13-21. West alleges nothing was done as a result of his complaints. Id.
In 2009, Cliff Sullivan disciplined West for tardiness, despite West protesting that he was not tardy and was actually changing shifts. Dkt. No. 164 at 67 (West Depo., 72:2-7). West recounted that some time before 2008, he witnessed Cliff Sullivan unfairly discipline an African American employee. Id. at 49:24-53:22. West also testified that he witnessed Sullivan refuse to speak to African American employees and that from the time West was hired, Sullivan was friendly with non-African American employees and unfriendly toward African American employees. Id. at 35:4-25; 85:8-86:2. West also claimed that in 2005 or 2006, in his role as shop steward, West represented African American workers with grievances about discipline and that Sullivan refused to investigate those grievances. Id. at 90:9-91:4.
iii. Irvin Green
Irvin Green began working in the packaging department on December 9, 2002. Dkt. No. 132 at ¶ 34. After a year of service, Green was elevated from Laborer (New) to Laborer. Id. Green was promoted to Level 1 on August 4, 2004. Id. Green was elevated to Level 2 on August 10, 2009. Id. Green was promoted to Level 3 on December 3, 2013. Id.
Green claims that he spoke to Cliff Sullivan more than ten times between 2005 and 2010 regarding training, but was consistently told he would be trained eventually or was given no response. Dkt. No. 158 at 38-40 (Green Depo., 85:23-87:19). At some point, Green also spoke with Tim Cowger to inquire about a lack of training, but without any result. Id. at 111:19-112:6.
Green once complained to union business agent Ross Lawrence, sometime between 2004 and 2008, that he was being discriminated against on the basis of race. ...