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Cenis v. Winco Holdings Inc.

United States District Court, E.D. California

May 25, 2018

WENDY CENIS, Plaintiff,
WINCO HOLDINGS, INC., a corporation, Defendant.


         This matter is before the court on the parties' cross-motions for summary judgment. Plaintiff Wendy Cenis (“plaintiff” or “Cenis”) filed a motion for partial summary judgment on August 8, 2017. (Doc. No. 14.) Defendant WinCo Holdings, Inc. (“defendant” or “WinCo”) filed a motion for summary judgment on October 3, 2017. (Doc. No. 34.) A hearing on both motions was held on December 19, 2017, with attorney Michael Bononi appearing telephonically on behalf of plaintiff and attorney Ari Hersher appearing telephonically on behalf of defendant. Following the hearing, the motions were taken under submission. For the reasons set forth below, plaintiff's motion will be denied and defendant's motion will be granted in its entirety.


         Plaintiff began working for WinCo as a cashier on July 1, 2014. (Doc. No. 30 (joint statement of undisputed facts or “JSUF”) at ¶ 1.) Plaintiff began her employment with WinCo at its grocery store located on Blue Lake Blvd. North in Twin Falls, Idaho (“Twin Falls store”). (Id. at ¶ 2.) During her employment at the Twin Falls store, plaintiff received progressive discipline for recurring unexcused absenteeism, including a period of unpaid suspension. (Doc. No. 34-2 (defendant's statement of undisputed facts or “DSUF”) at ¶¶ 5-6.) Plaintiff was warned that further violation of the company's absenteeism policies would result in disciplinary actions, including termination. (Id.) As of March 22, 2015, defendant permitted plaintiff to transfer to the WinCo store located on Coffee Road in Bakersfield, California (“Bakersfield store”), even though she had too many attendance point violations to qualify for a transfer under company policy. (JSUF at ¶ 4.)

         According to plaintiff, on May 9, 2015, she arrived at the Bakersfield store in advance of her shift, ate chicken salad purchased from the WinCo deli, and then began to feel ill. (Doc. No. 31 (plaintiff's statement of undisputed facts or “PSUF”) at ¶ 7.) Plaintiff states that during her shift on May 9, 2015, she developed severe diarrhea, sweats, stomach cramps, and overall body pain, and became so sick that she was having difficulty standing because she felt dizzy and weak. (Id. at ¶ 10.) As a result, plaintiff states that she left work before the end of her scheduled shift. (Id. at ¶ 11.) Plaintiff also states that she did not attend work on May 10, 2015 because she was still vomiting and suffering from diarrhea. (Id. at ¶ 13.) Defendant disputes various aspects of plaintiff's account of these events, including whether she was actually ill, whether the lead cashier gave plaintiff permission to leave work, and if she was ill, the cause of her food poisoning. (Doc. No. 33-1 at ¶¶ 6-10.) However, it is undisputed that plaintiff did not seek medical treatment or take any medication for her alleged food poisoning. (JSUF at ¶¶ 17, 18.)

         Plaintiff worked her scheduled shifts on May 11 and May 12, 2015. (JSUF at ¶ 15.) On May 13, 2015, plaintiff met with Jeremiah Westbrook, the WinCo Assistant Manager, and told him that she had vomited and possibly gotten sick from food she purchased from WinCo's deli on May 9, 2015 prior to her shift. (DSUF at ¶ 19.) On May 14, 2015, plaintiff emailed WinCo's Human Resources Specialist, Janelle Raber, regarding her food poisoning and the attendance points she had been assessed as a result of leaving work that day. (PSUF at ¶ 20.) On May 19, 2015, upon the advice of WinCo management, plaintiff filed a claim with Unum Group (“Unum”), WinCo's third party leave administrator, contesting the attendance points assessed for her absence from work on May 9 and 10. (JSUF at ¶ 22.) Unum evaluated whether plaintiff qualified for leave under the Family and Medical Leave Act (“FMLA”) and the California Family Rights Act (“CFRA”), and concluded that because plaintiff had not worked for defendant for a year as of May 9, 2015, she did not qualify for either. (JSUF at ¶ 25.)

         On June 4, 2015, WinCo terminated plaintiff's employment. (JSUF at ¶ 33.) Gisel Villeda, WinCo's Regional Human Resources Director, based her recommendation to terminate plaintiff's employment, in whole or in part, on all of her absences from work, including her absences on May 9 and 10, 2015. (PSUF at ¶ 38.)

         On August 25, 2015, plaintiff, a California resident, filed a complaint in the Kern County Superior Court against WinCo and Brandon Rodgers, the manager of the Bakersfield store. (Doc. No. 1 at 2.) On October 1, 2015, defendants removed this action to federal court purportedly on the basis of this court's diversity jurisdiction. (Id.) On August 12, 2016, this court granted plaintiff's motion to remand and denied defendants' motion to dismiss, finding that plaintiff had sufficiently pled a defamation claim against Rodgers. (Id.) The case was remanded back to Kern County Superior Court.

         On March 30, 2017, defendants filed a motion for summary judgment in Kern County Superior Court. (See Doc. No. 1 at 3.) On June 27, 2017, the state court denied defendants' motion for summary judgment but dismissed plaintiff's breach of implied warranty of merchantability and defamation claims. (Id.) Accordingly, Mr. Rodgers was then no longer a defendant in this action and the only remaining defendant was WinCo. (Id.)

         On June 28, 2017, defendant WinCo again removed the case based on this court's diversity jurisdiction. (Doc. No. 1.) On August 8, 2017, plaintiff filed a motion for partial summary judgment on her claim for disability discrimination under the California Fair Employment and Housing Act (“FEHA”). (Doc. No. 14.) Defendant filed a motion for summary judgment on October 3, 2017 as to all of plaintiff's claims. (Doc. No. 34) The parties submitted a joint statement of undisputed facts (Doc. No. 30), as well as individual statements of disputed facts and the underlying evidence. (See Doc. Nos. 18, 31, 33-1, 34-2, 43-1, 44-2, 44-3.) On December 13, 2017, plaintiff filed a motion to strike defendant's reply separate statement of undisputed facts in support of its cross-motion for summary judgment.[1] (Doc. No. 46.)


         Summary judgment is appropriate when the moving party “shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a).

         In summary judgment practice, the moving party “initially bears the burden of proving the absence of a genuine issue of material fact.” In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). The moving party may accomplish this by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials” or by showing that such materials “do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1)(A), (B). When the non-moving party bears the burden of proof at trial, as plaintiff does here, “the moving party need only prove that there is an absence of evidence to support the non-moving party's case.” Oracle Corp., 627 F.3d at 387 (citing Celotex, 477 U.S. at 325); see also Fed. R. Civ. P. 56(c)(1)(B). Indeed, summary judgment should be entered, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. See Celotex, 477 U.S. at 322. “[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.” Id. at 322-23. In such a circumstance, summary judgment should be granted, “so long as whatever is before the district court demonstrates that the standard for the entry of summary judgment . . . is satisfied.” Id. at 323.

         If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the allegations or denials of its pleadings but is required to tender evidence of specific facts in the form of affidavits or admissible discovery material in support of its contention that the dispute exists. See Fed. R. Civ. P. 56(c)(1); Matsushita, 475 U.S. at 586 n.11; Orr v. Bank of Am., NT & SA, 285 F.3d 764, 773 (9th Cir. 2002) (“A trial court can only consider admissible evidence in ruling on a motion for summary judgment.”). The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the non-moving party, see Anderson, 477 U.S. at 250; Wool v. Tandem Computs. Inc., 818 F.2d 1433, 1436 (9th Cir. 1987).

         In the endeavor to establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that “the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial.” T.W. Elec. Serv., 809 F.2d at 631. Thus, the “purpose of summary judgment is to ‘pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.'” Matsushita, 475 U.S. at 587 (citations omitted).

         “In evaluating the evidence to determine whether there is a genuine issue of fact, ” the court draws “all inferences supported by the evidence in favor of the non-moving party.” Walls v. Cent. Contra Costa Cty. Transit Auth., 653 F.3d 963, 966 (9th Cir. 2011). It is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. See Richards v. Nielsen Freight Lines, 602 F.Supp. 1224, 1244-45 (E.D. Cal. 1985), aff'd, 810 F.2d 898, 902 (9th Cir. 1987). Finally, to demonstrate a genuine issue, the opposing party “must do more than simply show that there is some metaphysical doubt as to the material facts. . . . Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.'” Matsushita, 475 U.S. at 587 (citation omitted).


         Plaintiff seeks partial summary judgment in her favor with respect to her claim that she was discriminated against by defendant based upon a physical disability in violation of FEHA, California Government Code § 12940. (Doc. Nos. 14, 15 at 6-7.)

         Defendant seeks summary judgment in its favor on all of plaintiff's claims that have not been summarily adjudicated by the state court. Those remaining claims before this court are: 1) unlawful discrimination based upon a physical disability in violation of FEHA; 2) failure to engage in the interactive process in violation of FEHA; 3) failure to reasonably accommodate a disability in violation of FEHA; 4) failure to prevent discrimination and retaliation in violation of FEHA; 5) retaliation in violation of FEHA; 6) retaliation in violation of California Labor Code § 6310; 7) wrongful termination in violation of public policy; and 10) for declarative and injunctive relief.

         I. Disability ...

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