United States District Court, S.D. California
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY
JUDGMENT [DOC. NO. 41]
Cathy Ann Bencivengo United States District Judge.
matter is before this Court on Defendant's motion for
summary judgment. On March 13, 2017, a hearing was held with
regard to the motion. [Doc. No. 54.] Erin Hanson, Esq., and
Kevin Mirch, Esq. appeared on behalf of Plaintiff Jane
Wheeler. Anthony Sbardellati, Esq. appeared on behalf of
Defendant Home Depot. For the reasons set forth below, the
motion is granted.
was employed by Home Depot from 1994 until August 2014.
[Deposition of Plaintiff Janet Wheeler [Doc. No. 41-5
(“Wheeler Depo.”), 22:16-24:18 and 32:1-25.]
During her employment at Home Depot, Plaintiff worked as an
assistant store manager (“ASM”), a co-manager and
a Store Manager (“SM”). In 2005, Plaintiff was
transferred to become the SM of the Chula Vista store, where
she remained until 2012. [Id., 30:23-31:11.] ¶
2012, Plaintiff was transferred to work as the SM of the Otay
Mesa store, where she remained until she resigned in 2014.
[Doc. No. 41-5, Wheeler Depo., 31:12-32:25, 239:17-240:11;
Doc. No. 41-7.]
First Amended Complaint (“FAC”), Plaintiff
alleges Defendant constructively terminated her by
discriminating against her based on age and gender, and
retaliated against her for complaining about improper conduct
in the workplace. Defendant seeks summary adjudication of
each of the remaining claims in the FAC.
Statement of Facts
last few months of her employment at Home Depot, Plaintiff
received two progressive disciplinary notices from her
District Operations Manager, Mr. Taylor, and five
Manager's Notes from the Human Resources Manager, Ms.
Korkow, with regard to poor store operations and appearances.
[Doc. Nos. 41-31, 41-32; Doc. Nos. 41-22 -
p.m. on August 25, 2014, Mr. Taylor sent an email to a
listserv which included all eleven SMs in District 199 (the
“August 25 email”). [Taylor Depo., 47:12-48:6,
119:1-120:23; Wheeler Depo., 227:18-228:19; Doc. No. 41-10.]
In that email, Mr. Taylor wrote that Plaintiff's store
had performed poorly over the prior six months and that she
was not improving and was “at risk.” [Taylor
Dep., 47:12-53:9; Doc. No. 41-10.] Mr. Taylor testified that
he should have sent this email to his boss and [District
Manager] Astorino, only, but he accidentally sent it to all
the SMs in District 199. [Taylor Depo., 44:19-47:25 and
119:1-120:23.] As soon as he sent the August 25 email, Mr.
Taylor received a call from another SM in District 199 who
explained that it was sent to all SMs in the district.
[Taylor Depo., 119:1-120:23.] Two minutes after the August 25
email was sent, Mr. Taylor sent another email asking all the
SM's to immediately delete the August 25 email. [Doc. No.
41-11.] Approximately 14 minutes after sending the second
email, Mr. Taylor sent a third email to the SMs, apologizing
for any embarrassment and taking responsibility for sending
the August 25 email. [Doc. No. 41-12.] After sending the
emails, Mr. Taylor also called Plaintiff and apologized for
sending it. [Taylor Depo., 119:1-120:23.] Mr. Taylor was
later disciplined by his boss for circulating the August 25
email. [Astorino Depo, 116:12-118:11; Taylor Depo.,
receipt of the August 25 email, Plaintiff forwarded it to the
Human Resources Manager, Ms. Korkow, and requested a meeting
to discuss the issue. [Wheeler Depo., 231:13-232:14; Doc. No.
41-13.] Ms. Korkow responded to Plaintiff that Mr. Taylor
sending the August 25 email was a “huge mistake”
and asked Plaintiff whether she could meet at a Starbucks on
August 28, 2014 at 8:15 a.m. [Wheeler Depo., 234:8-238:12;
Doc. No. 41-14.] The following is Plaintiff's testimony
with regard to that meeting:
Q. Did you meet her?
A. I did.
A. The next day at 8:15.
Q. And was that - A. So the 27th.
Q. Maybe the 28th?
A. Oh, yeah, the next day after the 27th. I'm
sorry. Yes, the 28th.
Q. You met her at 8:15 in the morning?
A. At 8:15 in the morning, at Starbucks inside the Target
next to the Balboa Home Depot.
Q. How long did you meet with Courtney [Ms. Korkow]?
A. About 15 minutes, probably.
Q. Do you recall what you discussed?
A. Yes, I told her that - she had asked me, when we had met
previously, to not quit and to think about it, to not leave.
And I had told her on that previous occasion that I - I would
take some time to think about it, but I didn't think that
it would make any difference because if they had decided to
terminate me, they were going to terminate me anyway. One way
or another, it was going to happen, so why would I postpone
And she asked me if I knew anybody that could hire me, off
the record. And, again, asked me to please take a couple of
days at least to think about it.
And so this was our follow-up meeting, where I had asked her
to bring me a copy of my file, and I let her know that I was
for sure not coming back.
Q. So based on your testimony, it's my understanding that
after Alex Taylor sent out that email to the entire team on
August 25th that was not supposed to be sent to
the entire team, you told Courtney that you felt like you
wanted to quit, and then she asked you to take a few days to
think about it; is that correct?
A. What I told her is I couldn't work for this company
anymore. I couldn't work with Alex anymore. I
couldn't work in a place that people would allow that
anymore. And she asked me to think about it for a few days.
And this is when I came back and told her that I had made the
decision that I was not going to continue to work for Home
Q. And prior to this meeting, did Courtney urge you not to
A. That is a - that is an interesting question, because she -
she said, “We don't want you to quit.” But
when I said that I was going to be fired if I didn't -
that this was - there's, you know, no doubt in my mind
that there was this target, and that they were going to find
things wrong with me.
And I let her know that if I - if somebody told me I had to
fire this person, no matter who it was, I could find
something wrong. You can find ways to document anybody out of
a job if it was a - something that they wanted to do, and
therefore, it didn't make sense for me to - to wait.
Her response to that was no longer, “Please don't
quit”; her response to that was, “Off the record,
do you know anybody that would hire you in retail?” Q.
Do you think it's possible she asked you that because she
was personally concerned about your financial welfare? A. I
think she was trying to give me a hint that I was right.
Q. But do you know that for a fact?
A. I don't know what is inside her head.
Q. Okay. So it is at least theoretically possible that she
was concerned for you?
A. But even if she was concerned about me, I - to me, it just
validated that she knew that I was right; that this was -
that this was a moot point, to go back to work for the
company. Because otherwise, she would have said,
“I'm genuinely concerned for you, I will help you.
Let “-“come back to work. I will be the HR
manager that I should be, and I will help support you and get
you the training, if that's what is needed, or help you
understand what the circumstances are that are causing this.
I will be there and be a partner to you and help you through
it.” Instead, she said, “Go find another
Q. Well, let me just ask you generally, because you did say
that you were ...