United States District Court, N.D. California, San Jose Division
ANDREW R. DUPREE, Plaintiff,
APPLE, INC, Defendant.
ORDER GRANTING SUMMARY JUDGMENT Re: Dkt. No.
H. KOH United States District Judge
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
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.
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.
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.
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.
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.
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
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.
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.
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.
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.
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.
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).
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.
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.
Events Underlying ...