United States District Court, N.D. California
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY
JUDGMENT DOCKET NO. 55
M. CHEN United States District Judge.
Tala Russell has filed an employment discrimination case
against her former employer Kronos Inc. The specific claims
she has asserted are as follows:
• Sex discrimination in violation of FEHA and Title VII
(claims 1 and 7).
• National origin discrimination in violation of FEHA
and Title VII (claims 2 and 8).
• Race discrimination in violation of FEHA and Title VII
(claims 3 and 9).
• Retaliation in violation of FEHA and Title VII (claims
4 and 10).
• Failure to prevent discrimination and harassment in
violation of FEHA (claim 5).
• Wrongful discharge in violation of public policy
pending before the Court is Kronos's motion for summary
judgment. Kronos asks for summary judgment on all causes of
FACTUAL & PROCEDURAL BACKGROUND
evidence submitted by the parties reflects as follows. (Where
there are disputes of fact, or evidentiary objections in need
of ruling, they are so noted.)
Russell is a Hispanic woman. See Burton Decl., Ex.
211 (Russell Depo. at 18). She worked for Kronos from
approximately September 2013 to July 2017 (almost four fiscal
years) as a Senior Sales Executive. Kronos
terminated Ms. Russell purportedly because of poor
performance. The decision to terminate was made by her direct
supervisor, Chris Lipscomb, with the approval of Human
Resources and Mr. Lipscomb's superiors (Tony Lombardi and
Robert Kennedy). See Cullen Decl. ¶ 9.
Russell's first year of employment with Kronos (FY2014),
there is no evidence in the record about her
Russell's second year of employment (FY2015), it appears
that she achieved 66% of her annual quota. See
Cullen Decl., Ex. 178 (draft LOC). Her direct supervisor at
the time, Mike Solomon gave her a performance review that
included some positives but also included some criticisms.
His overall rating for her performance was
“Inconsistent.” Hudson Decl., Ex. 63 (Performance
Review at 10).
Russell's third year of employment (FY2016), Ms. Russell
achieved 95% of her quota. See Russell Decl. Ex. 194
(FY2016 Worldwide Sales Rankings). Kronos maintains, however,
that quota attainment is not the only metric on which a sales
executive's performance is measured. See Cullen
Decl. ¶ 8; Lipscomb Decl. ¶ 28. Kronos also asserts
that the 95% quota attainment for FY2016 is misleading
because it includes split commissions. According to Kronos,
if two deals (with DirecTV and U.K. Celesio) are excluded
because they involved split commissions, then Ms.
Russell's quota attainment for FY2016 is actually 32%.
See Lipscomb Decl., Ex. 164 (Mr. Lipscomb's
notes); Cullen Decl. ¶ 7 & Ex. 170 (email). Kronos
adds that, even if only the U.K. Celesio deal is excluded
(i.e., Ms. Russell disputes that the DirecTV deal
involved a split commission), her quota attainment is only
about 63%. See Cullen Decl., Ex. 178 (draft LOC). In
response, Ms. Russell argues that “there is no written
requirement that a sales executive must complete the deals
alone to be successful.” Opp'n at 2.
about October 2016, i.e., following the close of
FY2016, Ms. Russell's direct supervisor at the time, Mr.
Solomon, drafted a Letter of Concern (“LOC”)
regarding Ms. Russell's performance. See Cullen
Decl., Ex. 178 (LOC); Cullen Decl., Ex. 177 (email). In the
draft LOC, Mr. Solomon questioned her sales productivity
(based on her quota attainments for the prior two years) and
also her “pipeline” development (i.e.,
possible deals). The LOC was never issued because Mr. Solomon
resigned thereafter and “it was felt the matter should
wait for plaintiff's new supervisor to assume his or her
post.” Cullen Decl. ¶ 6.
addition, in or about October 2016, Kronos reorganized the
“vertical” (i.e., line of business) in
which Ms. Russell worked. More specifically, Kronos created a
new subvertical, “targeting larger accounts with an
international footprint, ” and “[s]everal sales
executives, including Tommy Chacko, were promoted to a Global
Account Manager at that time.” Lombardi Decl. ¶ 5.
The restructuring resulted in the transfer of three of Ms.
Russell's accounts to Mr. Chacko. The three accounts were
McKesson, Microsoft, and Teletech. See Lombardi Decl.
¶ 5. According to Ms. Russell, the transfer of the three
accounts was a major factor in her sales numbers going down.
However, she testified at her deposition that she did not
have any reason to believe that the transfer of the accounts
had anything to do with her sex or ethnicity. See
Hudson Decl., Ex. 190 (Russell Depo. at 41-42).
McKesson account, Ms. Russell continued to do work even after
the transfer of the account to Mr. Chacko - through
approximately March 2017. See Russell Decl., Ex. 207
(emails). Ms. Russell's direct supervisor at the time
(Mr. Lombardi) told Ms. Russell that she would be entitled to
split commissions with Mr. Chacko for the first three
quarters of FY2017. See Lombardi Decl. ¶¶
6-7. Ms. Russell was ultimately fired at the end of 3Q FY2017
before any McKesson deals actually closed and thus she never
received any split commissions. See Russell Decl.,
Ex. 207 (emails). According to Ms. Russell, Mr. Chacko
deliberately delayed in closing the McKesson deals in order
to deprive her of the split commissions. Mr. Chacko, however,
denies such. See, e.g., Chacko Reply Decl. ¶ 3
(testifying that “[t]he notion that I would
deliberately delay . . . in order to avoid sharing a
commission is absurd” because, “[a]s anyone
involve[d] in sales understands, securing the customer's
signature on a contract is the only effective assurance that
a sale will occur”); Chacko Reply Decl. ¶ 5
(testifying about the “[m]any factors caus[ing] the
closing of the McKesson contract to be delayed”). Mr.
Chacko is not a named defendant and he is not alleged to be a
Lipscomb became Ms. Russell's direct supervisor in or
about February 2017. See Lombardi Decl. ¶ 10.
Approximately a month later, in March 2017, Mr. Lipscomb told
Ms. Russell that she “would be more suited to take a
customer service role.” Hudson Decl., Ex. 46 (Ms.
Russell's notes). In April 2017, Mr. Lipscomb began to
work with Human Resources on a LOC regarding Ms.
Russell's performance. See Lipscomb Decl. ¶
13. According to Mr. Lipscomb, there were several
considerations that led to his conclusion that a LOC was
necessary. For example, Ms. Russell's quota attainment at
the time was below 12% (2Q FY2017 had just closed).
See Lipscomb Decl. ¶ 4. Also, Ms. Russell's
opportunities in the pipeline were not qualified and were not
progressing through sales stages. See Lipscomb Decl.
¶ 6; see also Lombardi Decl. ¶ 9
(testifying that a qualified opportunity is “an
opportunity where a prospect has an actual need for a product
or service offered by Kronos, and there is a reasonable
probability that that prospect will actually purchase from
Kronos”). Sales productivity and pipeline development
were issues that had also been identified by both of Ms.
Russell's prior direct supervisors, Mr. Solomon (who
authored the draft LOC discussed above) and Mr. Lombardi.
See Lombardi Decl. ¶ 9 (discussing pipeline
Lipscomb issued the LOC to Ms. Russell on April 13, 2017.
Areas of concern identified on the LOC included sales
productivity (based on quota attainment for the year) and
pipeline development. See Lipscomb Decl., Ex. 112
2, 2017, Mr. Lipscomb issued a performance improvement plan
(“PIP”) to Ms. Russell, purportedly because her
performance continued to be poor. See Lipscomb
Decl., Ex. 20 (PIP); Lipscomb Decl., 127 (email). In the PIP,
Mr. Lipscomb set certain performance goals for Ms. Russell to
obtain by July 14, 2017 (i.e., just after 3Q
FY2017). For example, “[a] minimum quota attainment of
75% YTD is expected.” Lipscomb Decl., Ex. 20. Also,
“[e]xpect a pipeline of 3x annual quota (with movement
through stages) and forecast of minimum 80% of quota as well
(monthly & quarterly).” Lipscomb Decl., Ex. 20. Ms.
Russell suggests that these were unrealistic goals.
before the PIP review period was to close, Mr. Lipscomb
communicated with Human Resources about Ms. Russell's
performance. He noted, inter alia, that her quota
attainment for FY2017 remained quite low. See
Lipscomb Decl., Ex. 164 (Mr. Lipscomb's notes)
(indicating 9% for Q1, 1% for Q2, and 7% for Q3). He also
indicated that Ms. Russell's forecast for Q4 was
questionable. See Lipscomb Decl., 164; see
also Lipscomb Decl. ¶¶ 26, 29 (indicating that
two opportunities identified by Ms. Russell never closed).
decision to terminate Ms. Russell was made by Mr. Lipscomb
with the approval of Human Resources and his two superiors,
Mr. Lombardi (who had been Ms. Russell's direct
supervisor for a brief period of time) and Mr. Kennedy.
According to Mr. Lipscomb,
[t]he decision to terminate Plaintiff in July of 2017 was not
a one-dimensional decision based on just plaintiff's
quota attainment in fiscal year 2017. We looked at the entire
picture, and considered other factors, including the
following: (1) plaintiff had worked for Kronos as a Senior
Sales Executive since 2013, and therefore had almost four
years to build her pipeline; (2) plaintiff was assigned to a
mature vertical, the Services and Distribution vertical; (3)
during FY 2017 plaintiff had not demonstrated progress in
moving opportunities in her pipeline through the various
sales stages; as of July of 2017, it did not appear that any
significant sales were on the horizon; (4) I had personally
observed plaintiff's performance during numerous sales
meetings, and her performance was unimpressive; she often
exhibited a serious lack of preparation and planning, as well
as a lack of attention and participation in the meetings; (5)
although plaintiff had nominally achieved 95% of her quota in
FY 2016, this was the only year she came close to achieving
her quota, and she did so only because of major transactions
on which another sales representative was, at a minimum, a
major contributor; and (6) plaintiff's forecasting of
sales was generally neither sufficient nor accurate.
Lipscomb Decl. ¶ 31. The decision to terminate was
communicated to Ms. Russell on July 17, 2017. See
Lipscomb Decl. ¶ 30.
Russell was replaced by a woman. See Cullen Decl.
Rule of Civil Procedure 56 provides that a “court shall
grant summary judgment [to a moving party] if the movant
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). An issue of fact is genuine
only if there is sufficient evidence for a reasonable jury to
find for the nonmoving party. See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248-49 (1986). “The
mere existence of a scintilla of evidence . . . will be
insufficient; there must be evidence on which the jury could
reasonably find for the [nonmoving party].”
Id. at 252. At the summary judgment stage, evidence
must be viewed in the light most favorable to the nonmoving
party and all justifiable inferences are to be drawn in the
nonmovant's favor. See Id. at 255.
defendant moves for summary judgment based on a claim for
which the plaintiff bears the burden of proof, the defendant
need only by pointing to the plaintiff's failure
“to make a showing sufficient to establish the
existence of an element essential to [the plaintiff's]
case.” Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986); see also Fontenot v. Upjohn Co., 780
F.2d 1190, 1194 (5th Cir. 1986) (stating that, “if the
movant bears the burden of proof on an issue, either because
he is the plaintiff or as a defendant he is asserting an