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Purnell v. Rudolph and Sletten Inc.

United States District Court, N.D. California

December 20, 2019




         Defendants 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 stated below.


         On 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.[1] 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.

         A. Undisputed Facts

         Defendant 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.

         In 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.

         On July 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.

         In late 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.

         On 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;[2] Dkt. 118 ¶ 9.

         Following 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.

         Following 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, Ex. C.

         B. Procedural Posture

         On 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 plaintiff.

         C. Operative Allegations

         In her 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.

         Further, 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. 16.


         A. Legal Standard

         Summary 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).

         Courts 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 materials.”).

         “Once 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.” Id.[3]

         The 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.”)

         Lastly, 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 summary judgment.”).

         B. Analysis

         Discrimination 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).

         If met, 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 discriminatory conduct.”).

         If the 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).

         Unlike 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.

         1. Summary Adjudication of Plaintiff's Hostile Work Environment Claims Is Appropriate

         Title 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 abusive.”).

         To 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 ...

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