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Horn v. Experis U.S. Inc.

United States District Court, E.D. California

July 2, 2019

ELLA W. HORN, Plaintiff,
v.
EXPERIS U.S. INC., A MANPOWER BRAND COMPANY, Defendant.

          ORDER AND FINDINGS AND RECOMMENDATIONS

          DEBORAH BARNES UNITED STATES MAGISTRATE JUDGE

         Plaintiff Ella Horn is proceeding in this action pro se. This matter was, therefore, referred to the undersigned in accordance with Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1). Pending before the undersigned is defendant Experis U.S. Inc.'s, (“Experis”), motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. (ECF No. 33.)

         On May 28, 2019, the undersigned issued finding and recommendations recommending that defendant's motion for summary judgment be granted as to the complaint's Title VII claims, that the court decline to exercise supplemental jurisdiction over the complaint's state law claims, and that the complaint's state law claims be dismissed without prejudice. (ECF No. 39 at 15.) This recommendation was based on the complaint's assertion of only federal question jurisdiction and the lack of any allegations from which the court could find the existence of diversity jurisdiction. (Compl. (ECF No. 1) at 2-3.[1]) However, on June 10, 2019, defendant filed objections to the findings and recommendations. (ECF No. 40.)

         Therein, defendant establishes that plaintiff is a citizen of California, defendant is a citizen Wisconsin, and that the amount in controversy exceeds $75, 000. (Id. at 3-4.) District courts have diversity jurisdiction over “all civil actions where the matter in controversy exceeds the sum or value of $75, 000, exclusive of interest and costs, ” and the action is between “citizens of different States[.]” 28 U.S.C. § 1332. In this regard, defendant's objections establish that “this Court has jurisdiction over [the state law] claims [found in the complaint] on the basis of the diversity of citizenship between the parties.” (ECF No. 40 at 2.)

         “Courts may permit parties to amend defective allegations of jurisdiction at any stage in the proceedings.” NewGen, LLC v. Safe Cig, LLC, 840 F.3d 606, 612 (9th Cir. 2016); see also 28 U.S.C. § 1653 (“Defective allegations of jurisdiction may be amended, upon terms, in the trial or appellate courts.”); Herrick Co., Inc. v. SCS Communications, Inc., 251 F.3d 315, 329 (2nd Cir. 2001) (“where the facts necessary to the establishment of diversity jurisdiction are subsequently determined to have obtained all along, a federal court may simply allow a complaint to be amended to assert those necessary facts and then treat diversity jurisdiction as having existed from the beginning”).

         Accordingly, given that the court has both federal question and diversity jurisdiction over this action, the undersigned will vacate the May 28, 2019 findings and recommendations and resolve defendant's motion with respect to all of the complaint's causes of action. And, having reviewed the parties' briefing, and for the reasons stated below, the undersigned will recommend that defendant's motion for summary judgment be granted.

         BACKGROUND

         Plaintiff, proceeding pro se, commenced this action on April 18, 2017, by filing a complaint and a motion to proceed in forma pauperis. (ECF Nos. 1 & 2.) Therein, plaintiff alleges that on May 28, 2015, CRC Health Care, (“CRC Health”), manager Slvie Cosgrove hired plaintiff as a project manager. (Compl (ECF No. 1) at 7.) The position was to become permanent after 90 days. (Id.) CRC Health was defendant Experis's “Client.” (Id.)

         Thereafter, however, Cosgrove “refused to communicate with plaintiff in any form.” (Id. at 8.) Plaintiff was also forced to work with Frank Yang, “a CRC Health Care, project manager, ” “who avoided to train plaintiff, ” and “referred to plaintiff as a ‘dumbass project manager[.]'” (Id. at 10-11.) “Approximately, a week and half” after plaintiff was hired, plaintiff contacted Tonya Rosado, defendant Experis's HR Manager, and explained that Cosgrove “was un-responsive and that the training . . . was not occurring and lacking.” (Id. at 12.)

         On or about June 12, 2015, plaintiff was traveling on a work-related trip in a rental car with Yang. (Id. at 14-15.) “[P]laintiff endured unsolicited sexual harassment stares at her breast from Mr. Yang[.]” (Id. at 15.) Also, while driving past an Adult Video Book Store, “Yang, turn[ed] to plaintiff while driving and asked, ‘what would you say if I stopped at this Adult Video Book Store?'” (Id.) “Before plaintiff could compose herself to speak, Mr. Yang said, ‘I was just kidding.'” (Id. at 16.)

         “Plaintiff was silent and . . . never said a word on this subject[.]” (Id.) On July 2, 2015, “Cosgrove wrongfully terminated plaintiff[']s employment . . . due to her race.” (Id. at 8.) According to the complaint defendant Experis created and maintained “a racially hostile work environment” and “retaliated against Plaintiff on the basis of her race and for sexual harassment, resulting in wrongful termination[.]” (Id. at 7.) Based on these allegations, the complaint asserts causes of action for racial discrimination, sexual harassment, and retaliation in violation of Title VII of the Civil Rights Act of 1964, (“Title VII”), and California's Fair Employment and Housing Act, (“FEHA”), wrongful termination, and the negligent infliction of emotional distress. (Id. at 17-21.)

         On September 26, 2017, the undersigned issued an order granting plaintiff's motion to proceed in forma pauperis and ordering service of the complaint on the defendant. (ECF No. 3.) Defendant filed an answer on December 6, 2017. (ECF No. 9.) On November 30, 2018, defendant filed the pending motion for summary judgment. (ECF No. 24.) Plaintiff filed an opposition, a sperate statement of disputed and undisputed facts, and a declaration in support of opposition to defendant's motion on December 21, 2018. (ECF Nos. 28-30.) On January 18, 2019, defendant filed an amended declaration in support. (ECF No. 31.) On January 25, 2019, defendant filed a reply to plaintiff's opposition. (ECF No. 32.) The undersigned took defendant's motion for summary judgment under submission on January 28, 2019. (ECF No. 33.)

         On January 29, 2019, plaintiff filed an objection to defendant's amended declaration. (ECF No. 35.) And on January 30, 2019, plaintiff filed a motion to strike defendant's reply but did not notice the motion for a hearing.[2] (ECF No. 37.) On January 31, 2019, defendant filed a response to plaintiff's objection. (ECF No. 36.) On February 11, 2019, defendant filed an opposition to plaintiff's motion to strike. (ECF No. 38.)

         STANDARDS

         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). Under 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. Securities Litigation, 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), admission, interrogatory answers, or other materials” or by showing that such materials “do not establish the absence or presence of a genuine dispute, or that the 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, “the moving party need only prove that there is an absence of evidence to support the nonmoving 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. In such a circumstance, summary judgment should be granted, “so long as whatever is before the district court demonstrates that the standard for 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, and/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. 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. Pacific 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 nonmoving party. See Wool v. Tandem Computers, 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 short, what is required to defeat summary judgment is simply evidence ‘such that a reasonable juror drawing all inferences in favor of the respondent could return a verdict in the respondent's favor.'” Zetwick v. County of Yolo, 850 F.3d 436, 441 (9th Cir. 2017) (quoting Reza v. Pearce, 806 F.3d 497, 505 (9th Cir. 2015)).

         “In evaluating the evidence to determine whether there is a genuine issue of fact, ” the court draws “all reasonable inferences supported by the evidence in favor of the non-moving party.” Walls v. Central Costa County Transit Authority, 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 nonmoving party, there is no ‘genuine issue for trial.'” Matsushita, 475 U.S. at 587 (citation omitted).

         DEFENDANT'S STATEMENT OF UNDISPUTED FACTS

         Defendant's statement of undisputed facts-supported by citation to declarations, exhibits, and transcripts from depositions-evidences, in relevant part, the following. Defendant Experis is a staffing company. Defendant placed plaintiff in a Project Manager assignment with its client, CRC Health in June of 2015. Sylvie Cosgrove was a manager for CRC Health. Cosgrove was not an employee, supervisor, manager or agent of defendant, nor did she act on behalf of defendant or at defendant's direction. Cosgrove made the decision to hire plaintiff for the position of Project Manager with CRC Health and was responsible for plaintiff's training and daily work activities. (Defs.' SUDF (ECF No. 24-2) 1-7.[3])

         On June 12, 2015, plaintiff was riding in a vehicle with Frank Yang. Yang was an employee of Centroid, performing work as a contract Project Manager for CRC Health. Plaintiff alleged Yang sexually harassed plaintiff by looking at plaintiff suggestively and commenting about stopping at an adult book store. Yang was not plaintiff's supervisor nor defendant's employee. (Defs.' SUDF (ECF No. 24-2) 13-18.)

         Plaintiff never complained to anyone employed with defendant or CRC Health about Yang's behavior. Plaintiff's employment was eventually terminated by CRC Health. Plaintiff, however, remained eligible to receive employment assignments from defendant. (Defs.' SUDF (ECF No. 24-2) 24-25, 27, 29.)

         PLAINTIFF'S OPPOSITION

         Local Rule 260(b) requires a party opposing summary judgment to (1) reproduce each fact enumerated in the moving party's statement of undisputed facts and (2) expressly admit or deny each fact. Under that provision the party opposing summary judgment is also required to cite evidence in support of each denial. Here, plaintiff's opposition has attempted to comply with Local Rule 260(b), although some of plaintiff's asserted disputed facts are not clearly disputed. (ECF No. 29.) Rather than recreating every ...


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