United States District Court, N.D. California
GEORGETTE G. PURNELL, Plaintiff,
RUDOLPH AND SLETTEN INC., Defendant.
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY
JUDGMENT RE: DKT. NO. 117
PHYLLIS J. HAMILTON, UNITED STATES DISTRICT JUDGE
Rudolph and Sletten, Inc.'s (“defendant Rudolph
& Sletten”) and Service West, Inc.'s
(“defendant Service West”) (collectively,
“defendants”) motion for summary judgment came on
for hearing before this court on September 25, 2019. Pro se
plaintiff Georgette G. Purnell (“plaintiff”)
filed an opposition to the motion but failed to appear at the
hearing. Defendants appeared through their counsel, Mark
Divelbiss and Kristin Hutchins. At the court's request,
defendants filed supplemental briefing concerning
plaintiff's employment discrimination claims on October
22, 2019 (Dkt. 152), which plaintiff subsequently responded
to on November 12, 2019 (Dkt. 159). Having read the papers
filed by the parties and carefully considered their argument,
proffered evidence, and relevant legal authority, and good
cause appearing, the court hereby GRANTS
defendants' motion for summary judgment for the reasons
August 21, 2019, defendants filed this combined motion for
summary judgment or, in the alternative, partial summary
judgment. In it, defendants purport to challenge “each
and all  causes of actions” brought by plaintiff in
both Purnell v. Rudolph & Sletten, Inc.
(18-cv-1402) and Purnell v. Service West, Inc.
(18-cv-1404), which this court consolidated on January 9,
2019. While not crisply stated in her first
amended complaint (“FAC”), plaintiff appears to
allege claims under Title 42 U.S.C. § 2000e-2, et.
seq. (“Title VII”) for discrimination,
retaliation, and hostile workplace. Plaintiff premises her
claims upon her race, sex, and national origin.
Service West is a privately-owned interior construction
company. Dkt. 121 ¶¶ 1-2. Defendant Rudolph &
Sletten is a general contracting firm. Dkt. 124 ¶¶
1-2. Defendant Rudolph & Sletten served as the general
contractor on the “AC2” project. Id.
¶ 5. Plaintiff began working for defendant Service West
as a drywall apprentice on the AC2 project in Cupertino on
June 13, 2016. Dkt. 138 ¶ 3; Dkt. 121 ¶¶ 5, 8,
Ex. B. At the time of her hire, plaintiff received a copy of
Service West's employee handbook, and signed a form
acknowledging its receipt. Dkt. 121 ¶ 9, Ex. C.
Plaintiff is an African-American woman of Haitian descent.
Dkt. 138 ¶ 4.
August 2016, defendant Service West's non-supervisory
employees working on the AC2 project were transferred to
Rudolph & Sletten's payroll and became employees of
defendant Rudolph & Sletten. Dkt. 121 ¶¶ 14-15.
Defendant Service West supervisors continued to manage such
employees, including plaintiff. Id. ¶¶
14-16; Ex. H; Dkt. 124 ¶ 6. Once hired by defendant
Rudolph & Sletten, plaintiff received a copy of the
company's “Harassment, Discrimination and
Retaliation Prevention Policy” (the “Rudolph
& Sletten Harassment Prevention Policy”) and signed
a form acknowledging its receipt. Dkt. 124 ¶ 7, Ex. B.
Plaintiff remained an employee with defendant Rudolph &
Sletten until the time of her employment termination.
Id. ¶¶ 8-9.
6, 2016, plaintiff received a verbal warning for arriving
late to work. Dkt. 121 ¶ 10, Ex. D. On August 3, 2016,
plaintiff received a written warning for failure to attend
work several other days in late July. Id. ¶ 11,
Ex. E; Dkt. 138 ¶ 3. On August 15, 2016, plaintiff
received another written warning for arriving late. Dkt. 121
¶ 12, Ex. F.
July or early August 2016, plaintiff was reassigned to a
different area of the AC2 Project. Dkt. 138 ¶ 4. Michael
Jones (“Jones”), another employee of defendant
Rudolph & Sletten, also worked in that area of the
project. Id. ¶ 4. Following her reassignment,
plaintiff and Jones engaged in verbal conflict. Id.
¶ 5; Dkt. 118 ¶ 2, Ex. A.
January 5, 2017, Jones complained to defendant Rudolph &
Sletten's human resources department about an incident
with plaintiff, whereby plaintiff purportedly took gloves
from a work box. Dkt. 118 ¶ 2, Ex. A. On January 12,
2017, plaintiff met with defendant Rudolph & Sletten
human resources personnel, Julie Jacobs, to discuss this
incident; at that time, plaintiff complained about Jones'
comments on the job site referring to her sex and race.
Id. ¶¶ 1, 4; Dkt. 138 ¶ 5. Following
that complaint, Jacobs initiated an investigation into
Jones' purported conduct. Dkt. 118 ¶ 6; Dkt. 120
¶ 2. Jacobs concluded that Jones engaged in making
inappropriate racial comments, including statements that he
was “proud to be racist” and use of the word
“nigger” toward plaintiff during an after-work
party among employees. Dkt. 118 ¶ 7, Ex. B. Jones was
forced to engage in an anti-harassment training course and
plaintiff was not. Dkt. 137 at 6; Dkt. 118 ¶ 9.
the investigation, plaintiff and Jones were assigned to
different work areas and teams; however, for a single day, on
February 24, 2017, plaintiff and Jones were assigned to work
on the same section of the project. Dkt. 137 at 6; Dkt. 120
¶ 3. They encountered one another that day. Id.
After the encounter, Jacobs told plaintiff she could leave
for the day. Dkt. 137 at 6; Dkt. 118 ¶ 13.
that departure, plaintiff did not return to work. Dkt. 118
¶ 14. More than a month later, in either late March or
early April 2017, plaintiff was terminated from her
employment. Dkt. 138 ¶ 13; Dkt. 118 ¶¶ 16-17,
December 26, 2017, the EEOC dismissed plaintiff's charge
and issued plaintiff a right-to-sue letter. Dkt. 14 at 21.
Plaintiff initiated both Purnell v. Rudolph &
Sletten, Inc. (18-cv-1402) and Purnell v. Services
West, Inc. (18-cv-1404) on March 2, 2018. On January 9,
2019, following a joint stipulation by the parties, the court
ordered these cases consolidated for all purposes and that
they proceed jointly under the caption and case number
Purnell v. Rudolph & Sletten Inc., (18-cv-1402).
Dkt. 64. The allegations in the operative complaints in both
actions are materially similar. However, plaintiff's FAC
in Purnell v. Rudolph & Sletten, Inc. provides
exhibits that further detail defendants' alleged
wrongdoing. For purpose of resolving this motion, the court
will generously treat such exhibits as evidence proffered by
FAC, plaintiff alleges that defendant Rudolph & Sletten
discriminated against her in violation of Title VII by
terminating her on the basis of her race, sex, and national
origin. Dkt. 14 at 2 (“Exhibits A and B attached will
disclose the following facts where defendants discriminated
and/or caused discrimination to take effect upon plaintiff
where plaintiff was wrongfully terminated without reasons
based upon plaintiff's race . . . sex . . . and national
origin in violation of Title VII of the Civil Rights Act of
1964”). Exhibit A of the FAC includes a table detailing
multiple meeting notes written by plaintiff's supervisors
and union representatives concerning their investigation into
incidents between plaintiff and Jones. Dkt. 14 at 7-14.
Exhibit A also includes a series of plaintiff's
timesheets, detailing the number of hours she had worked for
select weeks between September 2016 and February 2017. Dkt.
14 at 15-20.
in the charge filed by plaintiff with the EEOC on June 20,
2017, plaintiff adds a claim for harassment, Dkt. 14 at 24
(“I believe I was harassed because of my race . . .
because of my national origin . . . and because of my sex . .
. in violation of Title VII of the Civil Rights Act”),
as well as a claim for retaliation, id. (“I
believe I was subjected to different terms and conditions of
employment, disciplined, and discharged in retaliation for
opposing discrimination in violation of the Title VII of the
Civil Rights Act”). Following its 28 U.S.C. § 1915
review, this court found “that the FAC states a claim
under Title VII of the Civil Rights Act of 1964.” Dkt.
judgment is proper where the pleadings, discovery, and
affidavits show 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). 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. “A
‘scintilla of evidence,' or evidence that is
‘merely colorable' or ‘not significantly
probative,' is not sufficient to present a genuine issue
as to a material fact.” United Steelworkers of Am.
v. Phelps Dodge Corp., 865 F.2d 1539, 1542 (9th Cir.
1989) (citation omitted).
recognize two ways for a moving defendant to show the absence
of genuine dispute of material fact: (1) proffer evidence
affirmatively negating any element of the challenged claim or
(2) identify the absence of evidence necessary for plaintiff
to substantiate such claim. Nissan Fire & Marine Ins.
Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000)
(“In order to carry its burden of production, the
moving party must either produce evidence negating an
essential element of the nonmoving party's claim or
defense or show that the nonmoving party does not have enough
evidence of an essential element to carry its ultimate burden
of persuasion at trial.”). Rule 56(c)(1) expressly
requires that, to show the existence or nonexistence of a
disputed fact, a party must “cit[e] to particular parts
of materials in the record.” Fed. R. Civ. Pro. 56(c)(1)
(“A party asserting that a fact cannot be or is
genuinely disputed must support the assertion 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
the moving party meets its initial burden, the nonmoving
party must go beyond the pleadings and, by its own affidavits
or by the depositions, answers to interrogatories, and
admissions on file, come forth with specific facts to show
that a genuine issue of material fact exists.”
Hansen v. United States, 7 F.3d 137, 138 (9th Cir.
1993) (per curiam). When the nonmoving party relies only on
its own affidavits to oppose summary judgment, it cannot rely
on conclusory allegations unsupported by factual data to
create an issue of material fact.”
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. Tolan v.
Cotton, 134 S.Ct. 1861, 1865 (2014); Leslie v. Grupo
ICA, 198 F.3d 1152, 1158 (9th Cir. 1999). However, when
a non-moving party fails to produce evidence rebutting
defendants' showing, then an order for summary
adjudication is proper. Nissan Fire, 210 F.3d at
1103 (“If the nonmoving party fails to produce enough
evidence to create a genuine issue of material fact, the
moving party wins the motion for summary judgment.”)
the Ninth Circuit recognizes that “an ordinary pro se
litigant, like other litigants, must comply strictly with the
summary judgment rules.” Thomas v. Ponder, 611
F.3d 1144, 1150 (9th Cir. 2010) (citation omitted); Chan
v. Ramada Plaza Hotel, 2003 WL 22159061, at *3 (N.D.
Cal. Sept. 12, 2003) (“It is here noted that [pro se]
plaintiff was given every opportunity to meet his burden on
and retaliation claims brought under Title VII are subject to
a unique burden-shifting analysis. Surrell v. California
Water Serv. Co., 518 F.3d 1097, 1105 (9th Cir. 2008)
(“Typically, we apply the familiar McDonnell
Douglas burden shifting framework for Title VII and
§ 1981 claims.”). Under McDonnell
Douglas, a plaintiff must first prove a prima facie case
of discrimination or retaliation. Surrell, 518 F.3d
at 1105 (“Under this framework, the plaintiff first
must establish a prima facie case of discrimination or
retaliation.”). The Ninth Circuit has emphasized that
“the degree of proof necessary to establish a prima
facie case is minimal and does not even need to rise to the
level of a preponderance of the evidence.”
Dominguez-Curry v. Nevada Transp. Dep't, 424
F.3d 1027, 1037 (9th Cir. 2005).
the employer then must articulate a legitimate
non-discriminatory reason for its challenged employment
decision. Vasquez v. County of Los Angeles, 349 F.3d
634, 640 (“If the plaintiff succeeds in doing so, then
the burden shifts to the defendant to articulate a
legitimate, nondiscriminatory reason for its allegedly
employer does so, “[t]he plaintiff then must produce
sufficient evidence to raise a genuine issue of material fact
as to whether the employer's proffered nondiscriminatory
reason is merely a pretext for discrimination. . . .The
plaintiff may show pretext either (1) by showing that
unlawful discrimination more likely motivated the employer,
or (2) by showing that the employer's proffered
explanation is unworthy of credence because it is
inconsistent or otherwise not believable.”
Dominguez-Curry, 424 F.3d at 1037. A plaintiff may
make such a showing by producing either direct evidence of
discriminatory motive, which need not be substantial, or
circumstantial evidence that is “specific and
substantial evidence of pretext.” Godwin v. Hunt
Wesson, Inc., 150 F.3d 1217, 1221-22 (9th Cir. 1998).
“Direct evidence is evidence, which, if believed,
proves the fact of discriminatory animus without inference or
presumption, ” and it “typically consists of
clearly sexist, racist, or similarly discriminatory
statements or actions by the employer.”
Dominguez-Curry, 424 F.3d at 1038. If the plaintiff
succeeds in demonstrating a genuine issue of material fact as
to whether the reason advanced by the employer was a pretext
for discrimination, then the case proceeds beyond the summary
judgment stage. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 143 (2000).
its discrimination and retaliation counterparts, claims under
Title VII for a hostile work environment are subject to
ordinary principles of summary judgment review. Fuller v.
Idaho Dep't of Corr., 865 F.3d 1154, 1161 (9th Cir.
2017), cert. denied sub nom. Idaho Dep't of
Correction v. Fuller, 138 S.Ct. 1345, 200 L.Ed.2d 514
(2018) (“We recently explained in a case involving a
hostile work environment claim that ‘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.'”). The court will first analyze the hostile
work environment claim.
Summary Adjudication of Plaintiff's Hostile Work
Environment Claims Is Appropriate
VII's prohibition on discrimination “extends to the
creation of a hostile work environment.”
Fuller, 865 F.3d at 1161. An employee establishes a
prima facie claim for a hostile work environment only if the
employee can show that he or she (1) was subjected to verbal
or physical conduct because of a protected trait, (2) this
conduct was unwelcome, and (3) this conduct was sufficiently
severe or pervasive to alter the conditions of the
victim's employment and create an abusive working
environment. Campbell v. Hawaii Dep't of Educ.,
892 F.3d 1005, 1016 (9th Cir. 2018). In addition to making an
objective showing that her work environment was sufficiently
severe or pervasive, an employee must also show that she
subjectively perceived such environment as abusive.
Id. at 1017 (“The work environment must be
both subjectively and objectively perceived as
determine whether conduct was sufficiently severe or
pervasive to violate Title VII, courts in the Ninth Circuit
“consider all circumstances, with a particular focus on
issues such as the frequency and severity of the conduct,
whether the conduct was physically threatening or
humiliating, and the extent to which it ...