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Carr v. Home Depot U.S.A, Inc.

United States District Court, S.D. California

May 22, 2018

LINDA CARR, Plaintiff,
HOME DEPOT U.S.A., INC.; DOES 1 through 10, inclusive, Defendant.



         Defendant Home Depot USA, Inc. (“Home Depot”) moves the court for summary judgment or, alternatively, for partial summary judgment. (Doc. No. 26.) Plaintiff Linda Carr opposes the motion. (Doc. No. 32.) Pursuant to Local Rule 7.1(d)(1), the court finds the matter appropriate for resolution without oral argument. For the reasons set forth below, the court denies summary judgment as to Plaintiff's age discrimination and related claims and grants summary judgment in Home Depot's favor and against Plaintiff on the remaining claims.


         On July 7, 2017, Home Depot removed this action from the Superior Court for the State of California, County of San Diego, based upon diversity jurisdiction under 28 U.S.C. §§ 1332 and 1441. (Doc. No. 1.) Plaintiff brought suit against Home Depot in state court after obtaining a right to sue letter from California's Department of Fair Employment and Housing on August 17, 2016. (Doc. No. 1-2 (“Compl.”) ¶ 24.) Plaintiff alleges six causes of action in her complaint: (1) wrongful termination in violation of public policy; (2) retaliation in violation of the Fair Employment and Housing Act (“FEHA”); (3) failure to prevent discrimination and retaliation; (4) age discrimination; (5) gender discrimination; (6) harassment; and (7) violation of California Business and Professions Code sections 17200 et seq. (Compl.)

         Plaintiff started working at Home Depot in November 2001. In 2007, she voluntarily left Home Depot of her own accord to pursue other opportunities. (Doc. No. 36-1 (“Carr Decl.”) ¶ 2.) On February 15, 2008, Home Depot rehired Plaintiff at Store 680 (“Balboa store”) just shy of her fifty-sixth birthday. (Doc. No. 26-4 (“Carr Depo.”) at 60:10-22, 101:16-18.) Plaintiff worked at the Balboa store until 2013 without incident as relates to this action. (Id. at 112:7-11.)

         In January 2013, Plaintiff transferred from the Balboa store to Home Depot Store 1848 (“El Cajon store”) at her own request, where she worked as a Kitchen/Bath Designer. (Id. at 114:22-115:9.) As of April 2015 onward, Plaintiff was documented for various performance and customer service-related shortcomings. (Doc. No. 26-9 (“Gotcher Decl.”) ¶ 5, Exh. B (failure to greet several customers), Exh. C (needs to improve her time management and actively seek out potential clients), Exh. G (exceeded some performance goals but “sits flat” on another performance goal), Exh. H (on the internet “looking at unrelated work material” rather than seeking out customers), Exhs. J-K (Plaintiff “has fell [sic] far below her [performance] goals”), Exh. L (missed sales goal by -10% and “[p]erforming in a consistently downward trend”), Exh. M (“performance fell below the standards expected for job performance” on sales goal and “[e]ngaging in a regular pattern of poor performance in areas that are necessary for success”), Exh. N (-12% to her sales goal), Exh. O (discussion with Plaintiff regarding her “apparent negative attitude and declining morale”), Exh. Q (sales improved, but still -9% of goal), Exh. R (“has continued to decline in her . . . sales performance”), Exh. S (Final Warning-“has continued to miss her individual metrics” and “[e]ngaging in a regular pattern of poor performance in areas that are necessary for success”), Exh. T (marked as “needs improvement” on half of customer service metrics and “Improvement Needed” overall), Exh. U (termination notice).)

         In April 2016, Assistant Store Manager Frank Lococo told Plaintiff that Tyler Budde, one of the store managers, was going after older people and Lococo felt bad for Plaintiff. (Carr Depo. at 199:7-25, 200:1-17.)

         At a department meeting[1], Plaintiff spoke up against the company's push to sell cabinet refacing because she felt that it was not always in the customer's best interest to reface rather than put in entirely new cabinets. (Doc. No. 37-28 (“Carr Depo. 2”) at 62:16- 63:11.) In response, Store Manager Gregory Hackett called Plaintiff a “negative Nancy.” (Carr Depo. 2 at 62:9-15.) On May 14, 2016, Hackett and Assistant Store Manager David Gotcher met with Plaintiff to discuss her “apparent negative attitude and declining morale.” (Gotcher Decl. Exh. O.) At this follow up meeting, Plaintiff shared that she felt she had a “target on her back” and was “just waiting to get fired.” (Id.) At the time, Plaintiff was concerned that she was being target for her sales. (Carr Depo. 2 at 69:22-24.)

         On July 16, 2016, Gotcher terminated Plaintiff's employment. (Gotcher Decl. ¶ 15, Exh. U.) According to the termination notice, on July 4, 2016, a customer approached Plaintiff regarding a product, but after a brief conversation, Plaintiff “told the customer that she was unable to assist him.” (Gotcher Decl. Exh. U.) A few days later, the same customer returned, accompanied by a Home Depot employee who was his daughter. Plaintiff reportedly identified the customer as “the man I couldn't help, ” and the other employee ended up assisting the customer with his purchase. (Id.) After speaking with Plaintiff, the other employee, and Hackett, and also discussing the matter with Home Depot's Associate Advice and Counsel Group (“AACG”), Gotcher determined that Plaintiff had committed a major work rule violation by intentionally refusing to assist a customer. (Gotcher Decl. ¶ 15.) Plaintiff is female and was sixty-four years old when Home Depot terminated her employment.

         Now, Home Depot moves for summary judgment on each of Plaintiff's claims.


         A motion for summary judgment shall be granted where “there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). The moving party bears the initial burden of informing the court of the basis for its motion and identifying those portions of the file that it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). But Federal Rule of Civil Procedure 56 contains “no express or implied requirement . . . that the moving party support its motion with affidavits or other similar materials negating the opponent's claim.” Id. (emphasis in original).

         In response to a motion for summary judgment, the nonmoving party cannot rest on the mere allegations or denials of a pleading, but must “go beyond the pleadings and by [its] own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial.” Id. at 324 (internal citations omitted). In other words, the nonmoving party may not rely solely on conclusory allegations unsupported by factual data. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). The court must examine the evidence in the light most favorable to the nonmoving party, United States v. Diebold, Inc., 369 U.S. 654, 655 (1962), and any doubt as to the existence of an issue of material fact requires denial of the motion, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).


         I. Claims Four and Five - Age and Gender Discrimination in Violation of FEHA

         FEHA prohibits an employer from terminating an employee based on age or gender. Cal. Gov't Code § 12940(a). To determine whether there are triable issues of fact on FEHA claims, California courts apply the three-stage burden-shifting framework set forth by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Trop v. Sony Pictures Entm't, 129 Cal.App.4th 1133, 1144 (citing Guz v. Bechtel Nat. Inc., 24 Cal.4th 317, 354 (2000)).

         At trial, the plaintiff must establish a prima facie case of age and gender discrimination by providing evidence that “(1) [s]he was a member of a protected class, (2) [s]he . . . was performing competently in the position [s]he held, (3) [s]he suffered an adverse employment action . . . and (4) some other circumstance suggests discriminatory motive.” Guz, 24 Cal.4th at 355. If the employee successfully establishes a prima facie case, a presumption of discrimination arises, and the burden shifts to the employer to provide evidence that there was a “legitimate, nondiscriminatory reason” for the adverse employment action. Id. “If the employer produces evidence showing a legitimate reason for the adverse employment action, the presumption falls away and the burden shifts back to the employee to provide ‘substantial responsive evidence' that the employer's proffered reasons were untrue or pretextual.” Sako v. Wells Fargo Bank, N.A., 2015 WL 5022307, at *8 (S.D. Cal. Aug. 21, 2015) (quoting Loggins v. Kaiser Permanente Int'l, 151 Cal.App.4th 1102, 1109 (2007)).

         The McDonnell Douglas framework is modified when the employer moves for summary judgment. “[T]he employer, as the moving party, has the initial burden to present admissible evidence showing either that one or more elements of plaintiff's prima facie case is lacking or that the adverse employment action was based upon legitimate, nondiscriminatory factors.” Serri v. Santa Clara Univ., 226 Cal.App.4th 830, 861 (2014) (internal quotation omitted). If the employer meets this burden, “it is incumbent upon the employee to produce ‘substantial responsive ...

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