United States District Court, N.D. California, San Jose Division
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT ON
SELECTED CLAIMS Re: Dkt. No. 41
H. KOH United States District Judge
Stacy Guthmann (“Plaintiff”) brings this action
against CC-Palo Alto, Inc. D/B/A Vi at Palo Alto
(“Vi”) and Classic Residence Management Limited
Partnership (“Classic Residence Management”)
(collectively, “Defendants”). Before the Court is
Defendants' motion for summary judgment on certain claims
in Plaintiff's complaint. ECF No. 41
(“Mot.”). Specifically, Defendants move for
summary judgment on Plaintiff's gender discrimination,
age discrimination, retaliation, and wrongful termination
claims. Having considered the submissions and oral arguments
of the parties, the relevant law, and the record in this
case, the Court GRANTS Defendants' motion for summary
judgment on these claims.
Classic Residence Management operates retirement communities
across the United States. Guthmann Decl. ¶ 2. In August
2011, Plaintiff began working as a Sales Counselor at one of
these retirement communities, Vi at Palo Alto. Ex. C. to Mot.
Plaintiff worked at Vi at Palo Alto until she was terminated
on May 28, 2015. Guthmann Decl. ¶ 1. As a Sales
Counselor, Plaintiff's job duties included sales and
marketing of residential units at Vi at Palo Alto.
claims that from the time she was hired through January 2012,
Plaintiff “reported to work but did not clock in or
out.” Opp. at 3; Guthmann Depo. 17:4-20. Thereafter,
Plaintiff's supervisor instructed Plaintiff to begin
clocking in and out, and Plaintiff began to do so.
Id. However, because Plaintiff was a Sales
Counselor, Plaintiff was often unexpectedly interrupted at
lunchtime by potential buyers seeking to tour residential
units. This would require Plaintiff to clock in before
beginning the tour. Plaintiff was also required to
“punch out at the supposed end of the day in an
artificial manner” even if Plaintiff continued to work
after the “supposed end of the day.” Guthmann
Decl. ¶ 6. According to Plaintiff, this system meant
that Plaintiff worked off the clock between 5 and 10 times
per month “during the busy times of the year, i.e.,
October through January, ” and approximately four times
per month during the rest of the year. Id.
claims that she made numerous complaints about this system
and “constantly suggested that Defendants simply adjust
my salary and classification and make me exempt.”
Id. ¶ 7. Specifically, Plaintiff claims that
she discussed this topic once per month for almost four years
with her supervisor, Michael Wilson. Id. ¶ 7.
Plaintiff also claims that she discussed this topic with
Shari Okumura, the Director of Human Resources, approximately
ten times in three and a half years. Id. ¶ 8.
Finally, Plaintiff claims that she discussed this issue with
the Executive Director of Vi at Palo Alto, Steve Brudnick,
five times per year. Id. ¶ 9.
also claims that she complained about other allegedly unfair
wage practices. For example, Plaintiff states that Plaintiff
received a commission on every sale of a residential unit.
However, if the sale was cancelled for some reason, Plaintiff
was required to pay back the commission she earned, but
Defendants would not return the amount that Plaintiff had
paid in taxes on the commission. Id. ¶ 10.
Plaintiff complained about this practice to Wilson in April
2013. Plaintiff claims that she also complained to Wilson
about another issue regarding what Plaintiff regarded as
unfair policies for using Personal Time Off. Id.
¶ 11. Additionally, Plaintiff complained that after
Defendants switched to a new time-clock system in May 2014,
the new system malfunctioned in ways that made it appear that
Plaintiff was “working a lot of overtime” and
that Plaintiff was taking longer breaks. Id. ¶
13; Opp. at 4.
to Plaintiff, these complaints and the problems with the new
time-clock system caused Wilson “to become frustrated
and terse with Plaintiff.” Opp. at 4. Therefore,
Plaintiff contacted Okumura, who arranged a meeting with
Plaintiff to discuss the matter. Guthmann Decl. ¶ 15.
When Plaintiff met with Okumura on June 2, 2014, Plaintiff
states that Okumura discussed ways to improve the
relationship between Plaintiff and Wilson. Id.
However, Plaintiff also stated that “[w]hen [Plaintiff]
pointed out to Ms. Okumura that there were differences
between the way that I was compelled to clock in a[nd] out
and employees on her Staff, [Okumura] became defensive and
same day as the meeting with Okumura, June 2, 2014, Plaintiff
made a separate request to Wilson. Specifically, Plaintiff
“foresaw an upcoming need to work on a Saturday coupled
with [a] need for some personal time in an upcoming work
week.” Opp. at 5. Therefore “Plaintiff requested
to not have to take PTO [Personal Time Off] but instead to
work on Saturday because she believed her PTO had been
unfairly depleted by Defendants' practices.”
Id. Wilson denied this request. Id.
13, 2014, Plaintiff learned that since June 2, 2014, the
Director of Resident Services, Spiller, had been
“keeping a log” of Plaintiff's personal
calls, lunch breaks, and clock-punching times. Id.
¶ 17. Plaintiff found this “highly unusual since
[Spiller] was not in [Plaintiff's] chain of command,
” and therefore Plaintiff complained to Okumura.
Id. Okumura informed Plaintiff that Spiller had
complained to Okumura that Plaintiff was making too many
personal calls. Id. Plaintiff states that
“[t]o solve the issue, Plaintiff shut her door.”
Opp. at 5.
continued to complain about wage and hour issues to Wilson
and Okumura. Id. Eventually, Plaintiff emailed
Defendants' corporate office in Chicago and requested
more information on why Plaintiff was not classified as an
exempt employee. Ex. B to Opp. Okumura forwarded this email
and the corporate office's response to Brudnick.
August 12, 2014, Plaintiff received a mid-year performance
evaluation from Wilson. Ex. A (Wilson Depo., Ex. 5). As part
of the evaluation, Wilson wrote the following:
An issue coming to [the] forefront for Stacy is that she
perceives a disparity regarding her and a few other employees
regarding exempt/nonexempt status and has made this an issue
of dispute recently with myself and the Director of H.R.
Although it has been explained to her the rationale behind
the non-exempt status of the Sales Counselor position said
status is an irritant to her, however, it has not had a
negative effect on her work performance or morale.
August 20, 2014, employees in Defendants' Vi community in
San Diego filed a class action lawsuit asserting claims
related to Defendants' wage and hour practices, including
time-clock issues. ECF No. 58-1. Wilson informed Plaintiff
about this lawsuit in March 2015.
6, 2015, at Okumura's request, Wilson forwarded Okumura
emails from Plaintiff relating to Plaintiff's complaints
about wage and hour issues. Ex. A 136:7-15. In mid-May 2015,
Plaintiff claims that Wilson informed Plaintiff that because
of the Vi San Diego lawsuit, an investigator was coming to Vi
Palo Alto to “ask if . . . people who are on the clock
had any issues about missed time, about missed breaks.”
Guthmann Depo. at 144:11-19. Plaintiff states that Wilson
told Plaintiff that if Plaintiff “play[ed] ball,
” Wilson would support Plaintiff's effort to be
classified as an exempt employee. Id. at 146:7-9.
Plaintiff met with the investigator on May 15, 2015 and told
the investigator that Plaintiff “did not have a problem
with not receiving . . . breaks.” Id. at
21, 2015, Plaintiff was involved in an altercation with a Vi
resident, Mrs. Lawver, and her dog. Plaintiff claims that
even before the incident, Mrs. Lawver's dog was
“known for attacking other dogs and people” and
that Mrs. Lawver herself “was known for her violent,
vulgar, racist[, ] abusive conduct, which has repeatedly
occurred over the years.” Opp. at 2-3. Plaintiff has
produced evidence regarding particular incidents involving
Mrs. Lawver and her dog. Id.
basic facts of the May 21, 2015 incident are as follows. As
Plaintiff sat in her office, she heard a dog barking outside
and left to investigate. Guthmann Depo. 95:5-12. Once
outside, Plaintiff witnessed Mrs. Lawver's dog barking at
another resident's dog. Id. at 96:4-7. Plaintiff
took Mrs. Lawver's dog's leash, and Plaintiff and
Mrs. Lawver exchanged words. Id. at 97:6-24.
Plaintiff then returned to her office. Id. at 97-98.
After remaining in her office for a few seconds, Plaintiff
again left her office and encountered Mrs. Lawver in the
hallway. Plaintiff and Mrs. Lawver then engaged in a second
verbal altercation in the hallway. Id. at 102:4-25.
reported this incident by email to Luis Lopez, the manager of
the day, the same day it occurred and gave her version of
events. Plaintiff stated that she “ran up to take the
leash from Mrs. Lawver's arm” and told Mrs. Lawver
that her dog needed to leave the community. Ex. K to Guthmann
Decl. Plaintiff stated that Mrs. Lawver threatened to sue
Plaintiff, and that Plaintiff “told her she could get a
lawyer or speak to Steve [Brudnick] about me.”
Id. Plaintiff then stated that during the second
altercation in the hallway, Mrs. Lawver swore at Plaintiff
and Plaintiff “told her that she cannot use that
language with me nor could she hit me[.] [T]hat behavior
isn't allowed in the community.” Id.
claims that Plaintiff was the only person to report this
incident to Lopez and that Mrs. Lawver returned to her room
and made no effort to lodge a complaint regarding the
incident. Lopez Depo. 32:2-11. However, one employee, Joy
Flores, informed her supervisor, Spiller, about the incident.
Ex. D to Opp. In response, Spiller told Flores that if Mrs.
Lawver “tries to get you involved, tell her she has to
talk to Steve [Brudnick].” Spiller Depo. 123:10-13.
forwarded this email chain to several people, including
Christina Ninh, a Move-In Coordinator who witnessed the
incident. Ex. M. to Opp. Ninh responded to Spiller and stated
that “I've heard [Plaintiff's] side of the
story, which is very untrue, she is not the victim in this at
all.” Id. Ninh stated that she was
“writing a report with Esmerelda [Rodriguez] that I can
cc you on.” Id. Ninh added, “[a]s crazy
as we think Mrs. Lawver may be, she was very composed.”
afterward, Ninh forwarded her full statement to Rodriguez,
who forwarded it to Okumura, who forwarded it to Brudnick.
Ex. N. to Opp. According to Ninh's statement, when
Plaintiff confronted Mrs. Lawver, Plaintiff repeatedly told
Mrs. Lawver that “[y]ou need to leave.” Ex. I at
49. Plaintiff also told Mrs. Lawyer that “You can call
an attorney [if] you want, I don't care.”
Id. Ninh stated that after Plaintiff momentarily
went back to her office, Ninh “was very apologetic to
Mrs. Lawver, and even hugged her.” Subsequently, during
the second altercation in the hallway, Ninh stated that
Plaintiff “came back in a U-turn fashion in front of
Mrs. Lawver's face, and stood there upright with her
hands folded. It was provoking and unnecessary.”
Id. Plaintiff then “dared [Dr. Lawver] to lay
a hand on her.” Id. According to Ninh,
Plaintiff “completely lost it. [Plaintiff] was very
unprofessional, undignified, provoking and
22, 2015, the day after the incident, Joy Flores also emailed
Okumura and stated that another resident and her caregiver
“saw and heard everything [and] told me that the sales
lady [Plaintiff] was very rude and unprofessional [and] that
she needs to be reported to Steve [Brudnick].” Ex. P.
Okumura forwarded this email to Brudnick and noted that
Flores “was going to speak with Susan [Spiller] but she
was considering contacting the Ombudsman to report
[Plaintiff] for elder abuse.” Id. Brudnick
responded, “Let her do what she wants to do. It's
ridiculous of course but you can't stop her.”
later, Spiller emailed Brudnick directly, cc-ing Okumura, and
stated that Spiller would speak to Mrs. Lawver and would
report the incident to the Santa Clara County Ombudsman. Ex.
Q to Opp. Spiller asked Brudnick, “Are you ok with
this?” Id. In response, Okumura emailed
Spiller and stated, “I texted with Steve. He's
‘in the know' and we'll proceed per our normal
same day, Spiller visited Mrs. Lawver in her apartment. Ex.
R. to Opp. Mrs. Lawver stated that she “did not want to
make a statement as she was preparing to leave.”
Id. Spiller informed Mrs. Lawver about the next
steps regarding the Ombudsman. Id. Spiller also
“apologized profusely, acknowledging that an incident
like this should never happen.” Id. Mrs.
Lawver stated that Plaintiff should be fired. Id.
Mrs. Lawver stated that she would file a report as part of
the elder abuse claim. Id.
have produced fax transmission records showing that the
complaint was sent to the Santa Clara County Ombudsman and
Adult Protection Services on May 26, 2015. Ex. J to Mot.
However, Plaintiff “seriously question[s] the
authenticity” of Defendants' fax transmissions.
Opp. at 18.
22, 2015, Okumura met with Plaintiff regarding the incident
and suspended Plaintiff from work pending investigation of
the incident. Guthmann Depo. 110:11-13. Okumura informed
Plaintiff that “there had been an elder abuse claim by
Mrs. Lawver” and that Defendants could not allow
someone accused of abuse to work around the alleged victim.
Id. at 110:24-25. Because Mrs. Lawver lived at Vi
Palo Alto, Plaintiff “would need to be the one to leave
pending the investigation.” Id. at 111:1-2.
Plaintiff informed Wilson that Plaintiff was being sent home,
and Wilson “was shocked because of [Mrs. Lawver's]
reputation of being a serial abuser within the
community.” Id. at 111:16-17. Plaintiff also
claims that Wilson stated that he “wasn't included
in this decision.” Id. at 111:18-19.
Lawver, Blanca Ruiz, and Carmen Galindo, each of whom
witnessed the incident, gave written statements about the
incident. Ex. I to Mot. Mrs. Lawver's statement stated
that Plaintiff “castigated me for being a disturbance
and told me that I did not belong here and should
leave.” Ex. I at 48. Blanca Ruiz, an Administrative
Assistant, gave little information but stated that Plaintiff
“rais[ed] her arm and pointed her finger at [Mrs.
Lawver] a couple of times” and then “walk[ed]
away from the scene in a[n] upsetting way.” Ex. I at
52. Carmen Galindo, a personal aide to another resident,
stated that Plaintiff “shouted at [Mrs. Lawver]”
and said that Mrs. Lawver “should get out with her dog,
right away, today.” Ex. I at 51. Galindo stated that in
the hallway, Plaintiff “continued to shout” at
Mrs. Lawver. Id.
conducting an investigation, Defendants determined that
Plaintiff should be terminated. Okumura Depo. 47.
Specifically, on or around May 27, 2015, Okumura had a call
with members of the corporate office, which to the best of
Okumura's recollection included Danielle Kerry, Diane
Schreiber, and Stephanie Fields. Id. During this
call, “the situation was reviewed and the decision was
made.” Id. Okumura testified that Brudnick did
not participate in the call. Id. Thereafter, on May
28, 2015, Plaintiff met with Okumura and Wilson to discuss
the meeting. At that meeting, Okumura informed Plaintiff that
she was being fired based on the incident. Guthmann Depo.
action began with a complaint filed in Santa Clara County
Superior Court on April 11, 2016. ECF No. 1 at 7
(“Compl.”). The complaint asserts nine causes of
action: (1) failure to pay overtime wages; (2) failure to
provide meal periods; (3) failure to provide rest periods;
(4) failure to furnish accurate wage statements; (5) failure
to pay earned wages upon termination; (6) gender
discrimination; (7) age discrimination; (8) retaliation; and
(9) wrongful termination in violation of public policy.
Id. Defendants removed the case to this Court on May
18, 2016. ECF No. 1. Defendants also answered the complaint
on May 18, 2016. ECF No. 1.
17, 2017, Defendants filed the instant motion for summary
judgment on a subset of Plaintiff's claims. ECF No. 41.
In the motion, Defendants requested summary judgment on
Plaintiff's claims for gender discrimination, age
discrimination, and wrongful termination in violation of
public policy. Id. On May 31, 2017, Plaintiff filed
an opposition to Defendants' motion for summary judgment.
ECF No. 54. Also on May 31, 2017, Plaintiff filed a request
for judicial notice in conjunction with the opposition. ECF
No. 58. On June 7, 2017, Defendants filed a
reply. ECF No. 64.
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 complaint asserts nine
causes of action: (1) failure to pay overtime wages; (2)
failure to provide meal periods; (3) failure to provide rest
periods; (4) failure to furnish accurate wage statements; (5)
failure to pay earned wages upon termination; (6) gender
discrimination; (7) ...