United States District Court, N.D. California, San Jose Division
ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR
SUMMARY JUDGMENT AND REMANDING TO STATE COURT RE: DKT. NO.
29
EDWARD
J. DAVILA UNITED STATES DISTRICT JUDGE
Plaintiff
Aimbrell Shanks (“Plaintiff”) brings a number of
employment-related causes of action against Defendants Abbott
Laboratories, Abbott Vascular, Inc. (together,
“Abbott”), Candy Barajas (“Barajas”),
and Heather Dal Cielo (“Dal Cielo”)
(collectively, “Defendants”). In particular,
Plaintiff alleges that Defendants harassed her and
discriminated against her on account of her race, physical
disability, medical condition, and age. Plaintiff also
alleges that Defendants failed to address Plaintiff’s
complaints and eventually terminated her employment in
violation of public policy.
Now
before the Court is Defendants’ motion for summary
judgment on all of Plaintiff’s claims. Dkt. No. 29
(“Mot.”). Plaintiff has filed a written
opposition to the motion. Dkt. No. 34 (“Opp.”).
The parties appeared for a hearing on this motion on July 21,
2016. Dkt. No. 40. Federal jurisdiction arises pursuant to 28
U.S.C. §§ 1331 and 1367. After considering the
parties’ arguments, for the reasons below, the Court
finds that Defendants have met their burden on most, but not
all, of Plaintiff’s claims. Defendants’ motion
for summary judgment will be granted in part and denied in
part, and the case will be remanded to state court for
further proceedings.
I.
BACKGROUND
In
compliance with the Court’s standing order for civil
cases, Defendants have submitted a separate statement of 15
pages or less containing the facts Defendants contend are not
subject to dispute. Dkt. No. 29-2. Plaintiff has submitted a
responsive separate statement disputing several of these
facts. Dkt. No. 34-2. However, even though the Court’s
standing order requires that such a responsive statement
“shall add no more than 5 pages” to the moving
statement, Plaintiff’s response adds nearly 40 pages.
The Court therefore does not consider the facts that
Plaintiff cites in the responsive statement, except to note
that Plaintiff disputes certain facts that Defendants contend
are undisputed. The summary of the relevant facts below
consists largely of the genuinely undisputed facts. However,
where the Court discusses disputed facts, it will cite to the
appropriate portion of the record.
Plaintiff
is a woman of mixed race, though her coworkers perceived her
as African-American. Dkt. No. 29-6, Ex. A (“Pl.
Dep.”), at 78:21-79:2, 83:14-21; Dkt. No. 34-5
(“Pl. Decl.”), ¶ 8.[1] Plaintiff started with
Abbott Vascular, Inc., a division of Abbott Laboratories, in
2006 as an accounts payable specialist. Her employment
contract indicated that her employment was at-will. Dkt. No.
29-6, ECF p. 142. In 2012, in light of Plaintiff’s
obesity, as well as pain and carpal tunnel syndrome,
Abbott’s workers’ compensation medical specialist
diagnosed Plaintiff with a physical disability and prescribed
work restrictions, including stretching breaks of 2-3 minutes
every 30 minutes between keyboarding activities as well as
limiting her lifting to 5 pounds.[2] From March 2008 until July
2014, except for a brief period in 2009, Barajas was
Plaintiff’s supervisor.
Barajas
and Plaintiff did not get along. Barajas made a number of
comments about Plaintiff’s obesity in front of their
colleagues. On six separate occasions, Barajas insisted that
Plaintiff accompany Barajas and other members of the
department on one-mile walks. When Plaintiff declined because
she could not walk so far, Barajas insisted that Plaintiff
come to help Plaintiff lose weight. Barajas stopped only
after Plaintiff specifically asked her to do so. Plaintiff
was the oldest member of her department, and Barajas also
made several comments about Plaintiff’s age in
one-on-one settings and in a staff meeting. And when
Plaintiff tried to set up a Latino affinity group at Abbott,
Barajas told her that she was “African-American, not
Latino.” Aside from these comments, Barajas belittled
and demeaned Plaintiff in front of her colleagues on a
regular basis. At one point, Plaintiff had spent months
organizing a guest speaker lunch session that 80 employees
attended. But in the middle of the session, and in the
absence of any emergency, Barajas pulled Plaintiff out and
told her to return to her desk and do work. At other times,
Barajas took other people in the department to lunch, where
they discussed work-related issues, without inviting
Plaintiff. Barajas also timed Plaintiff’s absences when
she was away from her desk. Barajas treated Plaintiff poorly
during staff meetings, such as by calling Plaintiff’s
ideas “silly.” Although Barajas allowed other
employees to take overtime, she routinely denied
Plaintiff’s requests for the same.
Barajas
also interfered with Plaintiff’s medical care. Several
times, Barajas asked Plaintiff to show Barajas her emails
with her occupational health advisors. Barajas repeatedly
demanded that Plaintiff move medical appointments to non-work
hours, although she did not ask this of other employees in
the department. On one occasion at work, Plaintiff began
suffering shooting pains in her arm and her doctor told her
to visit him immediately, but Barajas threatened to fire her
if she left. Plaintiff protested to the occupational nurse at
Abbott, who told her to go to the doctor immediately the next
time because she could have been having a heart attack.
In 2011
and 2013, Plaintiff filed workplace harassment complaints
against Barajas. In these complaints, Plaintiff said that
Barajas had singled her out and treated her poorly, including
by applying different standards to her performance, scolding
her in front of her co-workers, implicitly threatening to
fire her, refusing to allow her overtime, intruding into her
communications with medical providers, and failing to adhere
to Abbott’s written policies. Plaintiff also accused
Barajas of discriminating against her for her race.
A few
weeks after Plaintiff filed the 2013 complaint, and after
Barajas learned of the complaint, she filled out a negative
performance evaluation of Plaintiff.[3] Barajas indicated that
Plaintiff had only partially achieved expectations in that
year, although Plaintiff’s evaluations from 2008
through 2012 mostly indicated that she had achieved
expectations. Plaintiff submitted an addendum to her
complaint in which she argued that the evaluation was unfair.
Dal
Cielo was assigned to investigate the 2013 complaint. Dkt.
No. 29-7, Ex. C (“Dal Cielo Dep. I”), at
10:8-11:6. In doing so, she interviewed Plaintiff and Barajas
on the phone as well as several of their colleagues. Dkt. No.
34-6, Ex. A (“Dal Cielo Dep. II”), at 17:16-20,
18:6-9, 23:25-24:6, 42:15-43:8. She eventually concluded that
Plaintiff’s complaints were largely unfounded. Dal
Cielo Dep. I, at 119:4-19. However, Dal Cielo found that
other employees also had complaints about Barajas. Dal Cielo
recommended to Barajas’ manager that Barajas get
coaching on her management style and communication skills.
Id. at 45:11-46:8.
In
2014, Abbott’s higher-ups decided to eliminate a number
of positions throughout the company. An assistant controller,
Kamal Trivedi, recommended that Plaintiff’s group, the
finance group, should lay off 11 employees. She and Maria
Mulvoy, an HR specialist at Abbott, took part in a process
that identified Plaintiff as one of the employees to be laid
off. One of the factors in the decision was the 2013
performance review. They also decided to combine two
positions, so that Plaintiff’s accounts payable
position would be replaced by a new one that required a
broader skillset, including accounting. The new accounts
payable position was filled by Stephanie Valdez
(“Valdez”), a 67-year-old Latina woman who was
friends with Barajas and had previously been in the accounts
receivable department. Valdez was an accountant, whereas
Plaintiff was not. Abbott fired Plaintiff during this
reorganization.
Plaintiff
filed suit on January 23, 2015. Dkt. No. 1, Ex. A
(“Compl.”). On March 11, 2015, Defendants removed
the case to this Court. Dkt. No. 1. Plaintiff alleges twelve
causes of action in her complaint: (1) discrimination in
violation of Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e et seq. (“Title VII”); (2)
violations of an unspecified section of 42 U.S.C.; (3)
violation of the Unruh Civil Rights Act, Cal. Civ. Code
§ 51 (“Unruh Act”); (4) disparate treatment
in violation of the Fair Employment and Housing Act, Cal.
Gov’t Code § 12940(a) (“FEHA”); (5)
failure to accommodate in violation of the FEHA, Cal.
Gov’t Code § 12940(m); (6) wrongful termination in
violation of public policy; (7) civil harassment in violation
of Cal. Civ. Code § 527.6; (8) harassment in violation
of the FEHA, Cal. Gov’t Code § 12940(j); (9)
intentional infliction of emotional distress; (10) breach of
an implied-in-fact contract, only against Abbott; (11)
negligence; and (12) negligent supervision. Compl.,
¶¶s 43-328. Defendants filed an answer to the
removed complaint on March 11. Dkt. No. 1. They now move for
summary judgment on all claims. See Mot.
II.
LEGAL STANDARD
A
motion for summary judgment or partial summary judgment
should be granted 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); Addisu v. Fred
Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000).
The
moving party bears the initial burden of informing the court
of the basis for the motion and identifying the portions of
the pleadings, depositions, answers to interrogatories,
admissions, or affidavits that demonstrate the absence of a
triable issue of material fact. Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). If the issue is one
on which the nonmoving party must bear the burden of proof at
trial, the moving party need only point out an absence of
evidence supporting the claim; it does not need to disprove
its opponent's claim. Id. at 325.
If the
moving party meets the initial burden, the burden then shifts
to the non-moving party to go beyond the pleadings and
designate specific materials in the record to show that there
is a genuinely disputed fact. Fed.R.Civ.P. 56(c);
Celotex, 477 U.S. at 324. A “genuine
issue” for trial exists if the non-moving party
presents evidence from which a reasonable jury, viewing the
evidence in the light most favorable to that party, could
resolve the material issue in his or her favor. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986).
The
court must draw all reasonable inferences in favor of the
party against whom summary judgment is sought. Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986). However, the mere suggestion that facts are in
controversy, as well as conclusory or speculative testimony
in affidavits and moving papers, is not sufficient to defeat
summary judgment. Id. (“When the moving party
has carried its burden under Rule 56(c), its opponent must do
more than simply show that there is some metaphysical doubt
as to the material facts.”); Thornhill Publ’g
Co. v. GTE Corp., 594 F.2d 730, 738 (9th Cir. 1979).
Instead, the non-moving party must come forward with
admissible evidence to satisfy the burden. Fed.R.Civ.P.
56(c).
“If
the nonmoving party fails to produce enough evidence to
create a genuine issue of material fact, the moving party
wins the motion for summary judgment.” Nissan Fire
& Marine Ins. Co. v. Fritz Cos., Inc., 210 F.3d
1099, 1103 (9th Cir. 2000). “But if the nonmoving party
produces enough evidence to create a genuine issue of
material fact, the nonmoving party defeats the motion.”
Id.
III.
DISCUSSION
A.
Title VII and 42 U.S.C. Claims (Counts 1 and 2)
Courts
analyze disparate-treatment claims under the burden-shifting
framework of McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). Coghlan v. Am. Seafoods Co. LLC,
413 F.3d 1090, 1093-94 (9th Cir. 2005). “Under this
analysis, plaintiffs must first establish a prima facie case
of employment discrimination.” Hawn v. Exec. Jet
Mgmt., Inc., 615 F.3d 1151, 1155 (9th Cir. 2010) (citing
Noyes v. Kelly Servs., 488 F.3d 1163, 1168 (9th Cir.
2007)). To establish a prima facie case, a plaintiff
“must offer evidence that ‘give[s] rise to an
inference of unlawful discrimination.’”
Id. at 1156 (alteration in original) (quoting
Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1220
(9th Cir. 1998)). The plaintiff “may do so by showing
that (1) he belongs to a protected class, (2) he was
qualified for the position he held (or for the position to
which he wished to be promoted), (3) he was terminated or
demoted from (or denied a promotion to) that position, and
(4) the job went to someone outside the protected
class.” Coghlan, 413 F.3d at 1094 (citing
St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502,
506 (1993); McGinest v. GTE Serv. Corp., 360 F.3d
1103, 1122 (9th Cir. 2004)).
If the
plaintiff makes out a prima facie case, the
defendant-employer must then “produce admissible
evidence showing that the defendant undertook the challenged
employment action for a ‘legitimate, nondiscriminatory
reason.’” Cornwell v. Electra Cent. Credit
Union, 439 F.3d 1018, 1028 (9th Cir. 2006) (quoting
McDonnell Douglas, 411 U.S. at 802). “[I]f the
employer meets that burden, then the McDonnell
Douglas framework drops out of the picture entirely, and
the plaintiff bears the full burden of persuading the
factfinder that the employer intentionally discriminated
against him.” Coghlan, 413 F.3d at 1094
(citing St. Mary’s, 509 U.S. at 507-08).
“In
the context of employment discrimination law under Title VII,
summary judgment is not appropriate if, based on the evidence
in the record, a reasonable jury could conclude by a
preponderance of the evidence that the defendant undertook
the challenged employment action because of the
plaintiff’s race.” Cornwell, 439 F.3d at
1028 (citing Wallis v. J.R. Simplot Co., 26 F.3d
885, 889 (9th Cir. 1994)). For example, “a plaintiff
may defeat a defendant’s motion for summary judgment by
offering proof that the employer’s legitimate,
nondiscriminatory reason is actually a pretext for racial
discrimination.” Id. at 1028-29 (citations
omitted). To satisfy this standard, “plaintiffs may
rely on circumstantial evidence, which . . . must be
‘specific’ and ‘substantial’ to
create a genuine issue of material fact.” Id.
at 1029 (quoting Godwin, 150 F.3d at 1222).
Although
Plaintiff’s complaint does not fully explain the theory
underlying her Title VII claim, it appears that Plaintiff
alleges discrimination based on her race, physical
characteristics, age, and color. Compl., ¶¶s 48-49,
61-62. Plaintiff’s second claim, which she brings under
an unspecified section of 42 U.S.C., focuses on racial
discrimination. Id., ¶¶s 84-85, 97-98.
Title VII only bars discrimination based on an
“individual’s race, color, religion, sex, or
national origin.” 42 U.S.C. § 2000e-2(a)(1). To
the extent Plaintiff alleges discrimination based on her
physical characteristics or her disability, that conduct is
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