Shanks v. Abbott Laboratories

          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 ...