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Guthmann v. Classic Residence Management Limited Partnership

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

July 14, 2017



          LUCY H. KOH United States District Judge

         Plaintiff 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.

         I. BACKGROUND

         A. Factual Background

         Defendant 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.

         Plaintiff 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.

         Plaintiff 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.

         Plaintiff 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.

         According 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 angry.” Id.

         The 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.

         On June 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.

         Plaintiff 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. Id.

         On 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.


         On 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.

         On May 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 148:1-2.

         On May 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.

         The 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.

         Plaintiff 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.

         Plaintiff 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.

         Spiller 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.” Id.

         Soon 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 unacceptable.” Id.

         On May 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.” Id.

         An hour 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 protocol.” Id.

         The 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.

         Defendants 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.

         On May 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.

         Mrs. 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.

         After 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. 87:3-6, 89:7-10.

         B. Procedural History

         This 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.

         On May 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.[1] ECF No. 64.


         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).


         As 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) ...

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