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Dupree v. Apple, Inc.

United States District Court, N.D. California, San Jose Division

June 16, 2017

ANDREW R. DUPREE, Plaintiff,
v.
APPLE, INC, Defendant.

          ORDER GRANTING SUMMARY JUDGMENT Re: Dkt. No. 76

          LUCY H. KOH United States District Judge

         Plaintiff Andrew Dupree (“Plaintiff”) brings this action against Apple, Inc. (“Defendant”). Before the Court is Defendant's motion for summary judgment on all claims in Plaintiff's Third Amended Complaint (“TAC”). ECF No. 76 (“Mot.”). Having considered the submissions and oral arguments of the parties, the relevant law, and the record in this case, the Court GRANTS Defendant's motion for summary judgment.

         I.BACKGROUND

         A. Factual Background

         On February 15, 2011, Plaintiff began working as a retail specialist for Apple, Inc. (“Apple”) at Apple's retail store at the Millenia Mall in Orlando, Florida (the “Millenia Mall store”). Second Amended Complaint (“SAC”), ECF No. 36 ¶ 5. Plaintiff, an African American man, alleges that a manager at the Millenia Mall store told Plaintiff that “[b]lacks don't make management in this market.” Id. ¶ 9. “[S]hocked, embarrassed, and humiliated by this comment, ” Plaintiff requested and was granted a transfer to the Apple retail store in Sydney, Australia (the “Australia store”). Id. ¶ 10. Plaintiff began working in Australia on July 27, 2012. Id. ¶ 11.

         On July 9, 2013, Plaintiff decided to transfer back to the Millenia Mall store and contacted Millenia Mall store leadership. Id. ¶ 15. Plaintiff avers that Millenia Mall store leadership indicated that they would be receptive to Plaintiff's return, and Plaintiff returned to Florida on July 28, 2013. Id. ¶ 20. On August 22, 2013, however, Millenia Mall store leadership contacted Plaintiff and informed him that he would not be rehired.

         Upon learning this news, Plaintiff sent emails to Apple CEO Tim Cook (“Cook”) and Apple Human Resources representatives Brenda Everson (“Everson”) and Susan Pierre-Zilles (“Zilles”). Id. ¶¶ 27-28. In response to these emails, Everson informed Plaintiff on October 10, 2013 that management at Apple's retail store in Central Florida “would be contacting him regarding a possible position.” Id. ¶ 31. On December 2, 2013, Plaintiff was hired at the Central Florida Apple retail store (the “Central Florida store”). Id. ¶ 33.

         While working in Central Florida, Plaintiff alleges that he was discriminated based on his race and national origin. Plaintiff states that he was disciplined for wearing a “baseball cap with a logo on store grounds, ” while it was “common for [other] employees to wear these types of baseball caps with no disciplinary action taken.” Id. ¶ 35. Plaintiff also alleges that he was falsely reported as being late, that his work schedule was changed without his knowledge, and that he was threatened by his manager. Id.

         In September 2015, Plaintiff transferred to the Apple retail store in Los Gatos, California (the “California store”). ECF No. 28 at 10. During his tenure in Los Gatos, Plaintiff alleges that he continued to be subject to racial discrimination. Plaintiff points specifically to five incidents. According to the Third Amended Complaint (“TAC”), these incidents are as follows. First, a corporate Apple employee who had asked Plaintiff to help fix her Apple device allegedly called Plaintiff “Oakland” because Plaintiff “must not be from around here.” TAC ¶ 19. Second, another Apple corporate employee allegedly asked whether Plaintiff was “part of some kind of new diversity program” when the employee became frustrated with Plaintiff's service. Id. ¶ 22. Third, when Plaintiff was working a shift at the Cupertino Apple Store, another Apple corporate employee “stated [that] she wanted to work with someone more professional looking and not someone who looked like they were ‘part of a gang.'” Id. ¶ 27. Most recently, in 2016, Plaintiff alleges that one of his coworkers threatened to “punch [Plaintiff] in the face, ” that another coworker yelled at Plaintiff for no reason, and that another co-worker switched shifts with Plaintiff without Plaintiff's knowledge or consent. Id. ¶¶ 32-34.

         Plaintiff took a medical leave of absence from his employment at Apple on February 8, 2016, but has remained on Apple's payroll since that time. ECF No. 76-2, at 19; June 18, 2017 Hearing Transcript, at 15 (“He's still working at Apple, not actively. He's on a leave of absence, but he remains on the payroll.”). Plaintiff has been receiving worker's compensation as part of his medical leave. June 8, 2017 Hearing Transcript, at 16.

         B. Procedural History

         1. Dupree I

On July 22, 2014, Plaintiff filed a complaint against Apple which alleged discrimination on the basis of race and national origin in violation of Title VII of the Civil Rights Act (“Title VII”). Dupree v. Apple Inc. (“Dupree I”), No. 14-CV-3294 (N.D. Cal.). The complaint was filed in the Northern District of California but focused on events occurring at the Millenia Mall store in Orlando, Florida. Id. at 6. Accordingly, on March 11, 2015, U.S. District Judge Edward Davila, to whom Dupree I was assigned, granted Apple's motion to transfer Dupree I to the Middle District of Florida. Dupree I, ECF No. 46. As Judge Davila noted, “Apple has demonstrated based primarily on Plaintiff's allegations that most if not all of the critical events giving rise to Plaintiff's claims occurred in or around [an] Orlando Apple store.” Id. at 3.

         On March 16, 2015, Dupree I was officially transferred into the Middle District of Florida and was assigned to U.S. District Judge Kendall Sharp. Dupree v. Apple Inc., No. 15-CV-0423 (M.D. Fla.), ECF No. 47. On April 7, 2015, Judge Sharp granted Plaintiff's motion for leave to amend his complaint. Dupree I, ECF No. 62. Plaintiff's amended complaint added Cook, Zilles, and Everson as Defendants, and alleged causes of action based upon violations of Title VII, the California Fair Employment and Housing Act (“FEHA”), and 42 U.S.C. § 1981.

         On April 24, 2015, Defendants moved to dismiss certain causes of action in Plaintiff's first amended complaint. On June 30, 2015, Judge Sharp granted Defendants' motion to dismiss. Dupree I, ECF No. 69 (“Dupree I MTD”). First, Judge Sharp held that Plaintiff could not move forward with Plaintiff's FEHA claims because FEHA does not apply to conduct occurring outside of California. Next, Judge Sharp held that Plaintiff could not bring a Title VII claim against Cook, Zilles, and Everson because “individual capacity suits under Title VII are inappropriate.” Id. at 7 (alterations omitted). Finally, Judge Sharp determined that Plaintiff had failed to state a cause of action under 42 U.S.C. § 1981 against Cook, Zilles, and Everson. Id. at 9. Judge Sharp also concluded that amendment would be futile, and granted Defendants' motion to dismiss with prejudice. Because Defendants did not move to dismiss all causes of action against all Defendants in Dupree I, a portion of Plaintiff's first amended complaint survived dismissal.

         On September 29, 2015, Judge Sharp granted Plaintiff's motion to dismiss Plaintiff's surviving claims in Dupree I without prejudice, as “Plaintiff wishe[d] . . . to end litigation of this matter without incurring further expenses.” Dupree I, ECF No. 84.

         2. Dupree II

         On January 19, 2016, Plaintiff filed the original complaint in the instant action. ECF No. 1 (“Compl.”). The complaint asserted claims based on events occurring in the Millenia Mall store, the Central Florida Store, the Los Gatos store, and the Cupertino store. The Court shall refer to all proceedings in the instant action as Dupree II. Plaintiff filed a motion for leave to amend on April 11, 2016, which Defendants did not oppose. ECF No. 23. Accordingly, the Court granted Plaintiff's motion to amend on the record at the April 27, 2016 initial case management conference. ECF No. 32.

         On May 25, 2016, Plaintiff filed another motion for leave to amend. ECF No. 33. Defendants also did not oppose this second motion to amend. ECF No. 37. Plaintiff referred to the proposed amended complaint as the “First Amended Complaint.” ECF No. 36. As the procedural history demonstrates, however, Plaintiff's May 25, 2016 motion in fact sought leave to file a third complaint in Dupree II. Accordingly, the Court granted Plaintiff's May 25, 2016 motion for leave to amend, but stated that it would refer to the “proposed amended complaint as the ‘Second Amended Complaint' or ‘SAC' in . . . all future Orders.” ECF No. 38 at 2.

         Defendants moved to dismiss the SAC on June 29, 2016. On August 9, 2016, the Court granted the motion to dismiss. ECF No. 44. First, the Court found that the statute of limitations had expired for Plaintiff's claims related to events at the Millenia Mall Store and the Central Florida Store. ECF No. 44, at 6-10. Second, the Court found that FEHA did not apply to conduct outside California and therefore dismissed Plaintiff's FEHA claims for events at the Millenia Mall Store and the Central Florida Store. Id. at 10. Third, the Court dismissed Plaintiff's claim under the Civil Rights Act of 1991 because the Civil Rights Act of 1991 does not provide a substantive cause of action but instead only provides additional remedies for other causes of action. Id. at 10- 11. Fourth, the Court dismissed Plaintiff's claim for intentional infliction of emotional distress with prejudice to the extent that the claim arose from events before January 19, 2014, because the statute of limitations for claims for intentional infliction of emotional distress is two years before the filing of the Dupree II complaint on January 19, 2016. Id. at 11. The Court also dismissed Plaintiff's intentional infliction of emotional distress claim without prejudice to the extent that it arose from events after January 19, 2014, including the incidents in which corporate employees made racially insensitive statements. Id. at 11-18. The Court found that the employees who allegedly made racially insensitive comments were not acting within the scope of their employment because “[t]hese employees sought assistance with their personal Apple devices and personal Apple purchases” and thus were on “personal errands.” Id. at 16. The Court also found that other incidents at the Millenia Mall Store and the Central Florida store were either “personnel management activity [that] is insufficient to support a claim of intentional infliction of emotional distress” or did not constitute “extreme and outrageous conduct.” Id. at 11-18.

         After the Court granted Defendant's motion to dismiss, Plaintiff obtained the assistance of counsel, ECF No. 47, and filed a Third Amended Complaint (“TAC”) on September 8, 2016. ECF No. 48. On October 11, 2016, Plaintiff filed a motion for leave to file a Fourth Amended Complaint, in which Plaintiff sought to assert three new causes of action: a claim for disparate impact discrimination based on race and/or national origin, a claim for failure to prevent harassment and discrimination, and a claim for assault. ECF No. 51. The Court denied this motion on January 18, 2017, on the grounds that Defendant would be prejudiced by further delay after Plaintiff had already amended his complaint six times between two different lawsuits before three different judges. ECF No. 70.

         On January 17, 2017, Plaintiff filed a motion to substitute himself appearing pro se in place of his attorney. ECF No. 69. The Court granted this motion on January 18, 2017. ECF No. 71. Therefore, although Plaintiff is now representing himself pro se, the operative complaint in this case, the TAC, was drafted and filed when Plaintiff was represented by an attorney.

         On April 27, 2017, Defendant filed a motion for summary judgment on all claims in the TAC. ECF No. 76. Plaintiff filed an opposition on May 11, 2017. ECF No. 79. Defendant filed a reply on May 18, 2017. ECF No. 84.

         On May 30, 2017, Plaintiff filed a motion to appoint counsel. ECF No. 86. On May 30, 2017, Plaintiff also filed a request for the Court to allow Plaintiff to orally argue his opposition to the motion for summary judgment. ECF No. 87. On June 8, 2017, the Court held a hearing on the motion for summary judgment. ECF No. 91.

         II. LEGAL STANDARD

         Summary judgment is proper where the pleadings, discovery and affidavits demonstrate that there is “no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). Material facts are those which may affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. Id.

         The party moving for summary judgment bears the initial burden of identifying those portions of the pleadings, discovery and affidavits which demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Cattrett, 477 U.S. 317, 323 (1986). Where the moving party will have the burden of proof on an issue at trial, it must affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party. However, on an issue for which the opposing party will have the burden of proof at trial, the moving party need only point out “that there is an absence of evidence to support the nonmoving party's case.” Id. at 325.

         Once the moving party meets its initial burden, the nonmoving party must go beyond the pleadings and, by its own affidavits or discovery, “set forth specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e). The court is only concerned with disputes over material facts and “factual disputes that are irrelevant or unnecessary will not be counted.” Anderson, 477 U.S. at 248. It is not the task of the court to scour the record in search of a genuine issue of triable fact. Keenan v. Allen, 91 F.3d 1275, 1279 (9th Cir. 1996). The nonmoving party has the burden of identifying, with reasonable particularity, the evidence that precludes summary judgment. Id. If the nonmoving party fails to make this showing, “the moving party is entitled to judgment as a matter of law.” Celotex Corp., 477 U.S. at 323.

         At the summary judgment stage, the court must view the evidence in the light most favorable to the nonmoving party: if evidence produced by the moving party conflicts with evidence produced by the nonmoving party, the judge must assume the truth of the evidence set forth by the nonmoving party with respect to that fact. See Leslie v. Grupo ICA, 198 F.3d 1152, 1158 (9th Cir. 1999).

         III. DISCUSSION

         As discussed above, Plaintiff's TAC, which was drafted with the assistance of counsel, asserts eight causes of action against Defendant: (1) discrimination based on race, color, and national origin under Title VII; (2) discrimination based on race, color, and national origin under FEHA; (3) retaliation under Title VII; (4) harassment under Title VII; (5) harassment and creation of a hostile work environment under 42 U.S.C. § 1981; (6) creation of a hostile work environment under FEHA; (7) intentional infliction of emotional distress; and (8) violation of California's Ralph Civil Rights Act. TAC ¶¶ 39-104.

         Defendant moves for summary judgment on all eight of Plaintiff's causes of action. The Court first discusses the events underlying Plaintiff's claims and then the Court considers each of Plaintiff's causes of action.

         A. Events Underlying ...


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