Moorehead v. Hi-Health Supermart Corporation

Filing 88

ORDER granting Defendant's Motion for Summary Judgment (Doc. 76 ) on all of Plaintiff's claims against Defendant. The Clerk of Court shall enter judgment accordingly and close this case. Signed by Judge John J Tuchi on 1/13/17.(KGM)

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NOT FOR PUBLICATION

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Christine Moorehead,
Plaintiff,

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ORDER

v.

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No. CV-14-02542-PHX-JJT

Hi-Health Supermart Corporation,

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Defendant.

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At issue is Defehendant’s Motion for Summary Judgment (Doc. 76, Mot. Summ.

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J.), to which Plaintiff filed a Response (Doc. 84, Resp.), and Defendant filed a Reply
(Doc. 87, Reply). Because the parties’ briefs were adequate for the Court to resolve the
issues arising in Defendant’s Motion, the Court finds this matter appropriate for decision
without oral argument. See LRCiv 7.2(f). For the reasons set forth below, the Court
grants Defendant’s Motion for Summary Judgment.
I.

BACKGROUND
Plaintiff Christine Moorehead (hereinafter “Plaintiff”) claims Defendant Hi-Health

Supermart Corporation (hereinafter “Defendant”) violated Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e, by retaliating against her for engaging in protected
activity, and the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C.
§ 621, et seq., by discriminating against her based on age. (Doc. 56, Am. Compl. ¶ 1.)1

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The operative complaint is Plaintiff’s Amended Complaint, (Doc. 56). Plaintiff
originally filed a Complaint on November 17, 2014, (Doc. 1), to which Defendant filed
an Answer on December 9, 2014, (Doc. 7).

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Defendant “owns and operates stores throughout Arizona that sell high-quality vitamins

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and nutritional supplements, and other health-related items.” (Doc. 77, DSOF ¶ 1.)

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Plaintiff was employed as a Buyer and Senior Buyer by Defendant from January 30,

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1995, until she was terminated on March 30, 2012. (Am. Compl. ¶ 9; DSOF ¶ 2.)

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Plaintiff’s original direct supervisor was Eric Sielaff, who was later replaced by

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Jill Lansdale. (Doc. 84, PSOF ¶¶ 112, 116.) After Ms. Lansdale left Hi-Health in June

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2007, Plaintiff reported to Jay Chopra and continued to do so throughout her remaining

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tenure at Hi-Health. (PSOF ¶¶ 118–119.) Although Mr. Chopra placed Plaintiff on a

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performance improvement plan (“PIP”) in September 1997 “to address significant

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shortfalls between her targeted and actual gross profit numbers for several product

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categories,” Plaintiff was later promoted to Senior Buyer in December 1997, retaining

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this position until her termination in March 2012. (DSOF ¶¶ 7–8, 20.)

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As a Buyer, Plaintiff was “responsible for sourcing, pricing, promotion and other

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management activities for products in [her] assigned product categories.” (DSOF ¶ 9.)

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According to Defendant, “Buyers are assigned many [product] categories (consisting of

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thousands of items) and a Buyer’s categories occasionally change based on business

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needs and when new Buyers are hired or depart.” (DSOF ¶ 12.) Defendant asserts that it

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“measures the performance of its Buyers based on achievement of assigned business

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targets, and gross profit targets, for their [product] categories,” but “does not measure

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their job performance based upon the gross profits from the categories assigned to that

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Buyer.” (DSOF ¶¶ 13, 15.) Accordingly, Defendant evaluates its Buyers “based on

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reaching a set amount of sales and a set amount of gross profit dollars as compared with

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last year’s sales and last year’s gross profit dollars,” emphasizing the “percentage of

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increase based upon the preset gross profit goal.” (DSOF ¶¶ 16–17.) Plaintiff, however,

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alleges that Simon Chalpin, the president of Hi-Health, and Mr. Chopra told her “that her

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performance was measured by the gross profits that her product categories generated by

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means of sales.”2 (PSOF ¶ 13.)

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Plaintiff claims that the assignment of product categories was not neutral because
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In April 2000, Plaintiff was called as a witness in a sex discrimination suit brought

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by her former supervisor, Ms. Lansdale, against Hi-Health. (DSOF ¶ 23; PSOF ¶ 123.)

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Plaintiff “testified in her deposition and again at trial as a witness in Ms. Lansdale’s case-

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in-chief . . . that she heard Simon Chalpin make discriminatory comments in the

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workplace about women.” (PSOF ¶ 124.) Mr. Chopra also testified during the trial on

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behalf of Mr. Chalpin, (PSOF ¶ 126), but he “was not present when Plaintiff testified,”

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(DSOF ¶ 25). Although Defendant contends that Mr. Chopra “has no knowledge of the

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contents of Plaintiff’s testimony,” (DSOF ¶ 25), Plaintiff alleges that “Mr. Chopra knew

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the content of [Plaintiff’s] trial testimony because he directly, specifically, and repeatedly

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criticized it in the workplace to [Plaintiff],” (PSOF ¶ 25). However, Plaintiff concedes

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that she “never told Mr. Chopra . . . the contents of her testimony,” and Mr. Chopra never

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asked Plaintiff, nor anyone else, to divulge the contents of Plaintiff’s testimony. (DSOF

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¶¶ 26–28; PSOF ¶¶ 26–28.)

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In Plaintiff’s annual review in October 2000, “Mr. Chopra noted numerous areas

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where improvements were needed, but advised [Plaintiff] to ‘stay motivated and

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encourage[d a] positive attitude.’” (DSOF ¶ 30.) As part of “her self-evaluation for that

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same period, Plaintiff recognized a need to improve her computer literacy” and focus on

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Mr. Chopra “manipulated the assignment of . . . categories in order to undermine
[Plaintiff’s] performance and ultimately terminate her” by assigning her “the most
difficult product categories to market.” (PSOF ¶ 12.) Further, Plaintiff alleges that Mr.
Chopra “assigned [Plaintiff] almost twice as many product categories as Hi-Health’s two
other Buyers, [and] assigned the more profitable product categories to the youngest
Buyer.” (PSOF ¶ 12.) However, Defendant asserts that “Plaintiff points to no evidence in
the record that Mr. Chopra set her goals unreasonably high” as a “Hi-Health management
team (including the CEO and CFO), not Mr. Chopra individually, set the goals.” (Reply
at 13.) Defendant further contends that Plaintiff’s “claim that ‘Mr. Chopra imposed
higher monthly marginal [“GP$”] increase requirements on [her] than those imposed on
her younger counterparts at Hi-Health’ grossly misstates Mr. Chopra’s testimony.”
(Reply at 13.) Rather, Mr. Chopra “testified that Plaintiff, the higher paid Senior Buyer,
was responsible for more categories (and therefore more GP$) than the junior Buyer, but
explicitly explained that ‘their evaluation is done based upon . . . [the] increase over the
plan,” not the GP$ money total. (Reply at 13–14.) Defendant asserts Plaintiff “ignores the
facts that she was the only Senior Buyer and was paid more than the junior Buyer.”
(Reply at 14 n.14.) Furthermore, “[u]nder Hi-Health’s category-growth expectation, if
that younger Buyer fails to increase GP$ in . . . [a] category, she fails her performance
goal, regardless of how profitable [that category] was at the time it was assigned.” (Reply
at 15.)
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her categories. (DSOF ¶ 31.) In June and July 2001, Mr. Chopra approved a bonus for

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Plaintiff, and later gave Plaintiff a raise in 2003 “to compensate her for the additional

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work she had taken on.” (DSOF ¶¶ 32–33.) When Plaintiff failed to meet her

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performance goals shortly thereafter, Mr. Chalpin “wanted to withhold Plaintiff’s bonus

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and hold her salary at the prior year’s amount.” (DSOF ¶ 34.) Nonetheless, Mr. Chopra

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“questioned Mr. Chalpin’s decision, and obtained an increase for Plaintiff.” (DSOF ¶ 34.)

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Plaintiff also received a raise and favorable review from Mr. Chopra in 2005. (DSOF ¶

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35.) However, in both 2006 and 2007, Plaintiff “failed to meet targets, was below her

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gross profit performance from the prior year, and did not receive a raise.” (DSOF ¶¶ 36–

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37.) From November 2000 through August 2011, Plaintiff was disciplined on six

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occasions after disregarding Hi-Health policy and procedure.3

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First, a memo dated November 7, 2000 by Mr. Chopra indicates that Plaintiff
submitted a proposal to a vendor “for co-op advertising in the amount of $7,000 for a 6
month period” when the amount received from the same vendor “for the same period was
$14,000 a year ago.” (Doc. 77-2, Nov. 2000 Discipline Memo at 250–51.) Mr. Chopra
notes that this “proposal was sent to this vendor without [his] approval or knowledge,”
and indicates that he had previously counseled Plaintiff two months before that Hi-Health
is “looking to equal or increase co-op advertising $’s [sic] from each manufacturer,” after
she had sent a similar decrease in co-op monies to another vendor. (Nov. 2000 Discipline
Memo at 251.) Second, according to a memo dated May 3, 2001, Plaintiff had “pointed to
Jay Chopra’s office” after a conversation regarding product returns and “very loudly
said[,] ‘why is he never held responsible for the things he does wrong[.]’” (Doc. 77-2,
May 2001 Discipline Memo at 253.) This discipline memo was completed by a Hi-Health
employee by the name of Cheri, not by Mr. Chopra. (May 2001 Discipline Memo at 253.)
Third, “[i]n August 2004, a potential vendor emailed Hi-Health to complain of rude
treatment by Plaintiff.” (DSOF ¶ 40.) This potential vendor stated that she “was offended
by the ungracious and flippant manner in which [she] was spoken to by [Plaintiff].” (Doc.
77-2, Aug. 2004 Disciplinary Memo at 258.) Mr. Chopra indicated that he spoke to
Plaintiff and “made clear that under no circumstance is she to be unprofessional or rude
to a vendor.” (Aug. 2004 Discipline Memo at 255.)
Fourth, “[i]n August 2008, Plaintiff . . . sign[ed] a vendor agreement on behalf of
Hi-Health in violation of the company’s signature policy and subjected Hi-Health to
potential legal exposure.” (DSOF ¶ 41). After Mr. Chopra emailed Plaintiff and other
employees to “clarify that [they] are not authorized to approve or exclusively sign vendor
agreements, contracts and other documents representing Hi-Health,” Plaintiff indicated in
an email response that she “understand[s] and acknowledge[s] the authorized signature
policy.” (Doc. 77-2, Aug. 2008 Discipline Memo at 262.) Fifth, “[i]n February 2010,
Plaintiff received written counseling for not following procedure for updating vendor
information.” (DSOF ¶ 42.) Plaintiff acknowledged “the problem [this] could cause” and
assured that “it certainly wo[uld]n’t happen again.” (Doc. 77-2, Feb. 2010 Discipline
Memo at 264.) Finally, in August 2011, Plaintiff allowed a vendor “to hand out product
training information” containing unsubstantiated claims “to store managers without
approval” from Mr. Chopra, subjecting Hi-Health to potential “financial penalties.” (Doc.
77-2, Aug. 2011 Discipline Memo at 266.)
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“In 2011, Hi-Health restructured its management” and “implemented revised

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business targets and goals designed to be ‘more in line with’ last year’s numbers.”

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(DSOF ¶¶ 44–45.) Mr. Chopra met with Plaintiff and the other Buyers in October 2011 to

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“explain the revised business methodology and communicate Hi-Health’s expectation

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that, in the coming fiscal year (beginning November 2011), they will be held accountable

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for meeting their targets.” (DSOF ¶ 50.) “In November 2011, Plaintiff earned a

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‘marginal’ score (‘2.5 out of 5’) on her 2011 annual performance evaluation,” was “14%

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under her 2011 goal for gross profit dollars[,] and exhibited ‘questionable’ item selection

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and product ‘launch strategies.’” (DSOF ¶¶ 51–52; Doc. 77-2, 2011 Annual Review at

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268.) As part of this 2011 performance evaluation, “Mr. Chopra individually reviewed

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Plaintiff’s previous performance and upcoming performance targets with her.” (DSOF

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¶ 55.) In January 2012, “Plaintiff signed the ‘Category Manager 2012 Incentive Plan,’

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acknowledging its receipt and contents”; this Plan “expressly warned of the consequences

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for poor performance,” including placement on a PIP, with lack of improvement

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potentially leading to termination. (DSOF ¶¶ 58–59.)

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On February 6, 2012, Mr. Chopra met with Plaintiff and placed her on a 60-day

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PIP because “Plaintiff was more than 13% below her gross profit numbers plan”

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following the first quarter of the 2012 fiscal year. (DSOF ¶¶ 61–62.) By signing the PIP,

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Plaintiff acknowledged that the “PIP required [her] to increase her gross profit numbers

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and bring them up to plan,” and specifically warned that “failure to improve her

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performance” could lead to termination. (DSOF ¶¶ 63–65.) “Plaintiff continued to have

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trouble meeting her numbers and complained to her co-workers about the objective

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methodology,” so “Mr. Chopra again met with the entire department, including Plaintiff,

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to explain the logic and process for determining gross profit measurements” on

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February 28, 2012. (DSOF ¶¶ 66–67.)

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“On March 6, 2012, Mr. Chopra and Joy Salenger-Robinson, General Manager of

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Merchandising, met with Plaintiff to discuss her progress towards the objectives set by

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her PIP.” (DSOF ¶ 68.) Despite the fact that “Hi-Health, as a whole, had an overall

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increase of 7%” over the prior month, “Plaintiff was still 13% below plan.” (DSOF ¶ 69.)

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At this meeting, “Plaintiff acknowledged that she was facing termination, and asked

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whether she should attend an upcoming trade show.” (DSOF ¶ 70.) In response,

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Mr. Chopra indicated that “he wanted her to succeed just like the rest of Hi-Health, and

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assured her that he want[ed] her to attend the trade show, which she did.” (DSOF ¶ 71.)

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Over the course of the second 30-days of her PIP, Plaintiff was still 4.6% below

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her gross profit plan number, failing to “improve to plan.” (DSOF ¶ 72.) “In total,

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Plaintiff was 9% below plan for the PIP period,” and “also failed each of the other . . .

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requirements of the PIP” which included creating promotions, adding new products with

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specialty formulas, and improving her four worst-performing categories to meet plan by

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the end of the PIP. (DSOF ¶¶ 73–74.) Accordingly, “Mr. Chopra made the decision to

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terminate Plaintiff because she could not consistently increase gross profit dollars year-

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over-year, did not meet her objective performance requirements for five consecutive

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months preceding her termination, and failed the [PIP].” (DSOF ¶ 77.)

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In the Amended Complaint, Plaintiff seeks “equitable relief and money damages

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for age discrimination and retaliation in the workplace.” (Am. Compl. ¶ 1.) Plaintiff

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claims “Mr. Chopra ultimately discriminatorily terminated [Plaintiff] on March 30, 2012

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based on her age and her previous adverse trial testimony in the Lansdale case.” (Am.

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Compl. ¶ 42.) Specifically, Plaintiff alleges that after she testified, “both Mr. Chalpin and

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Mr. Chopra refused to look at [her] or speak to her at work,” (Am. Compl. ¶ 24), and

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“Mr. Chopra commenced a pattern of regularly falsely claiming to Mr. Chalpin that she

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was not performing her job duties adequately,” (Am. Compl. ¶ 31). Plaintiff also states

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that “around the time that [she] celebrated her sixtieth birthday in July 2011, Mr. Chopra

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started to make derogatory comments based upon her age and linked her age with what

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he (falsely) claimed to be poor job performance.” (Am. Compl. ¶ 35.) Plaintiff alleges

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Mr. Chopra said:
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“I know you’re older, but you need to come into the
21st Century”;
“I know you’ve been around a long time and you’re

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older than the other buyers, but you still should be able
to come up with some new ideas”;
“I know you’re older than the other buyers, but that
shouldn’t stop you from being innovative and
creative”;
“Other people in the company as well as myself look
around and wonder whether or not you can keep up
with the other younger buyers”; and,
“I know you’re over 60 now but, you still need to keep
up with the other younger buyers, if not, this job might
not be for you.”

(Am. Compl. ¶ 36.)
On June 22, 2015, Defendant filed an Answer to Plaintiff’s Amended Complaint
denying retaliation or age discrimination against Plaintiff. (Doc. 57, Answer to Pl.’s Am.
Compl. ¶ 42.) Defendant filed a Motion for Summary Judgment on Plaintiff’s claims of
Title VII retaliation and ADEA discrimination on March 21, 2016, contending there is no
genuine dispute as to material fact that “Hi-Health neither retaliated against Plaintiff for
her 2000 testimony nor discriminated against her based on her age.” (Mot. Summ. J. at
5.) Rather, “Hi-Health terminated Plaintiff when she was unable to meet her assigned
business targets and other objectives.” (Mot. Summ. J. at 5.) Defendant continues:
Unwilling to accept personal responsibility for the
consequences of her poor performance, Plaintiff now blames
Hi-Health’s COO for her termination. . . . Plaintiff’s only
evidence of unlawful motivation is her own, self-serving
testimony vaguely recounting half-remembered stray remarks
Hi-Health’s COO may have made over the years. This
testimony simply does not satisfy Plaintiff’s prima facie
burden, let alone establish a triable issue of fact in light of the
undisputed, objective evidence of her poor performance.
(Mot. Summ. J. at 5.)

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Plaintiff filed a Response opposing Defendant’s Motion for Summary Judgment

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on May 17, 2016. (Resp. at 18.) Plaintiff’s Response claims Mr. Chopra’s “ten year

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history of making harassing remarks based on [Plaintiff’s] trial testimony” is evidence of

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his retaliatory animus, and, therefore, “supports finding a causal connection between her

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protected activity and her ultimate termination.” (Resp. at 14.) Plaintiff’s Response

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further alleges that Mr. Chopra’s series of remarks about Plaintiff’s age “reflect Jay

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Chopra’s discriminatory attitude and explicitly link[] [Plaintiff’s] age to her work

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performance,” thereby “constitut[ing] ‘direct evidence’ of Mr. Chopra’s discriminatory

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animus against [Plaintiff] based upon her age.” (Resp. at 16.)

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On June 20, 2016, Defendant filed a Reply in support of its Motion for Summary

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Judgment, asserting that Plaintiff is unable to establish prima facie cases of retaliation or

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ADEA age discrimination because “Mr. Chopra’s remarks do not support a causal

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inference of retaliation under the stringent ‘but-for’ test” nor constitute “direct evidence

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of ageism[] justifying escape from McDonnell Douglas.” (Reply at 5.) Defendant also

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asserts that, even if Plaintiff could establish the prima facie elements of age

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discrimination under the ADEA, she fails to demonstrate any genuine issues of material

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fact with regard to pretext, “thereby again failing her McDonnell Douglas burden and

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entitling [Defendant] to summary judgment.” (Reply at 5.)

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II.

DISCUSSION

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A.

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Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is

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appropriate when: (1) the movant shows that there is no genuine dispute as to any

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material fact; and (2) after viewing the evidence most favorably to the non-moving party,

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the movant is entitled to prevail as a matter of law. Fed. R. Civ. P. 56; Celotex Corp. v.

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Catrett, 477 U.S. 317, 322–23 (1986); Eisenberg v. Ins. Co. of N. Am., 815 F.2d 1285,

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1288–89 (9th Cir. 1987). Under this standard, “[o]nly disputes over facts that might affect

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the outcome of the suit under governing [substantive] law will properly preclude the

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entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

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A “genuine issue” of material fact arises only “if the evidence is such that a reasonable

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jury could return a verdict for the non-moving party.” Id.

Summary Judgment Standard

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In considering a motion for summary judgment, the court must regard as true the

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non-moving party’s evidence if it is supported by affidavits or other evidentiary material.

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Celotex, 477 U.S. at 324; Eisenberg, 815 F.2d at 1289. The non-moving party may not

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merely rest on its pleadings; it must produce some significant probative evidence tending

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to contradict the moving party’s allegations, thereby creating a question of material fact.

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Anderson, 477 U.S. at 256–57 (holding that the plaintiff must present affirmative

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evidence in order to defeat a properly supported motion for summary judgment); First

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Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289 (1968).

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“A summary judgment motion cannot be defeated by relying solely on conclusory

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allegations unsupported by factual data.” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir.

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1989). “Summary judgment must be entered ‘against a party who fails to make a showing

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sufficient to establish the existence of an element essential to that party’s case, and on

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which that party will bear the burden of proof at trial.’” United States v. Carter, 906 F.2d

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1375, 1376 (9th Cir. 1990) (quoting Celotex, 477 U.S. at 322).

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B.

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Defendant first moves for summary judgment on Plaintiff’s Title VII Retaliation

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Title VII Retaliation

claim. (Mot. Summ. J. at 11–16.)
1.

Legal Standard

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Under Title VII of the Civil Rights Act of 1964, it is unlawful for an employer to

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discriminate against an employee because that employee “has made a charge, testified,

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assisted, or participated in any manner in an investigation, proceeding, or hearing under

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this subchapter.” 42 U.S.C. § 2000e-3(a). Pursuant to the McDonnell Douglas framework

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governing Title VII retaliation claims, “a plaintiff must first establish a prima facie case

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of retaliation.” Cheeks v. Gen. Dynamics, 22 F. Supp. 3d 1015, 1035 (D. Ariz. 2014)

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(citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). To establish a

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prima facie case of retaliation, a plaintiff must show that “1) [s]he engaged in a protected

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activity; 2) [s]he suffered an adverse employment decision; and 3) there was a causal link

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between the protected activity and the adverse employment decision.” Villiarimo v. Aloha

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Island Air, Inc., 281 F.3d 1054, 1064 (9th Cir. 2002). “The requisite degree of proof

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necessary to establish a prima facie case for Title VII . . . claims on summary judgment is

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minimal and does not even need to rise to the level of a preponderance of the evidence.”

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Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir. 1994) (citation omitted). “If [the

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plaintiff] provides sufficient evidence to show a prima facie case of retaliation, the

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burden then shifts to the [defendant] to articulate a legitimate, non-retaliatory reason for

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its actions.” Porter v. California Dep’t of Corr., 419 F.3d 885, 894 (9th Cir. 2005) (citing

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Ray v. Henderson, 217 F.3d 1234, 1240 (9th Cir. 2000)). “Once the defendant has

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presented a purpose for the action, the plaintiff bears the ultimate burden of providing

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evidence that the defendant’s reason is ‘merely a pretext for a retaliatory motive.’”

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Cheeks, 22 F. Supp. 3d at 1035 (quoting Porter, 419 F.3d at 894).

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2.

Analysis

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It is undisputed that Plaintiff satisfies the first two elements of a prima facie

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retaliation claim. (See Mot. Summ. J. at 12; Resp. at 12.) Specifically, Defendant

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concedes that “Plaintiff engaged in a protected activity—testifying in a suit involving Hi-

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Health,” and later, “[o]n March 30, 2012, Plaintiff was terminated—an adverse

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employment action.” (Mot. Summ. J. at 12.) Defendant, however, contends that Plaintiff

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cannot establish the causation element of a prima facie retaliation claim because Plaintiff

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“cannot prove that her testimony [in the Lansdale v. Hi-Health suit] was the but-for cause

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of her termination.” (Mot. Summ. J. at 12.) Rather, Defendant argues that “[t]he 12-year

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gap [between the protected activity and the adverse employment action], as a matter of

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law, precludes a causal inference,” especially where “there is insufficient additional

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evidence of retaliatory motive to overcome the 12-year time gap.” (Mot. Summ. J. at 12.)

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“Title VII retaliation claims must be proved according to traditional principles of

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but-for causation” which “requires proof that the unlawful retaliation would not have

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occurred in the absence of the alleged wrongful action or actions of the employer.” Univ.

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of Texas Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2533 (2013). “Accordingly, Plaintiff

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must show that she would not have suffered the adverse employment action but-for” her

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testimony in 2000 in the Lansdale v. Hi-Health suit. Cheeks, 22 F. Supp. 3d at 1036.

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Specifically, Plaintiff “must provide evidence–either direct or circumstantial–that the

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individuals responsible for the adverse employment action knew about the protected

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activity and intended to retaliate based on it.” Johnson v. Fed. Express Corp., No. CV-14-

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02428-PHX-DGC, 2016 WL 1593811, at *6 (D. Ariz. Apr. 21, 2016) (citations omitted).

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The evidence indicates that Mr. Chopra, the individual responsible for the adverse

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employment action, knew Plaintiff testified on behalf of a former Hi-Health employee in

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a sex discrimination suit—a protected activity—though he was unaware of the contents

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of Plaintiff’s testimony. (DSOF ¶¶ 23, 25–29.) However, despite evidence of

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Mr. Chopra’s knowledge of the protected activity, there is no evidence indicating that

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retaliation for this testimony was a motivating factor in Mr. Chopra’s decision to

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terminate Plaintiff, much less the but-for cause of Plaintiff’s termination. Rather, the

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evidence indicates that Plaintiff’s poor work performance and disregard for Hi-Health

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policy and procedure led to Mr. Chopra’s decision to fire Plaintiff. Specifically, as

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Defendant points out, Plaintiff admitted that “at least as of October 2011, Hi-Health

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clearly communicated the expectation and policy that, in the upcoming fiscal year, all

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Buyers must meet objective performance goals consisting of specified gross profit dollars

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(“GP$”) increase, and failure to do so would lead to a PIP and termination.” (Reply at 12;

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see PSOF ¶¶ 45, 50–53, 55, 58–76.) Further, Plaintiff admitted that “Hi-Health followed

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its procedures, placed her on a PIP, and terminated her after she failed it.” (Reply at 12;

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see PSOF ¶¶ 44-78.) Plaintiff also “concedes by silence that poor performance and a

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failed PIP are legitimate, nondiscriminatory reasons for termination.” (Reply at 12; see

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Resp. at 11–17.)

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Plaintiff broadly claims that Mr. Chopra’s “ten year history of making harassing

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remarks based on [Plaintiff’s] trial testimony” is evidence of his retaliatory animus, and,

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therefore, “supports finding a causal connection between her protected activity and her

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ultimate termination.” (Resp. at 14.) However, Defendant correctly notes that Plaintiff

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premises her Title VII retaliation claim “on a single protected activity—testifying in the

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Lansdale suit in 2000—and a single adverse employment action—her termination 12

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years later.” (Reply at 5, n.1.) Accordingly, those facts and arguments are generally

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outside the scope of Plaintiff’s retaliation claim. Specifically, the Court cannot consider

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Plaintiff’s allegations that Mr. Chopra made harassing remarks regarding other “related

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protected activity” (such as Plaintiff’s involvement in litigation beyond Lansdale), (Resp.

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at 3-5, 14), or Plaintiff’s accusations “of post-protected activity ‘harassment’” because

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“her retaliation charge is solely predicated on Mr. Chopra’s supposed animus,” (Reply at

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5, n.1).

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Plaintiff offers the following comments by Mr. Chopra as evidence of

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Mr. Chopra’s retaliatory animus: “You are the only employee who testified against Sy”;

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“How could you have testified the way you did?”; “You’re the only person who believes

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that Sy discriminated against these women.” (PSOF ¶ 144.) However, even viewing this

10

evidence in the light most favorable to Plaintiff, the Court finds that it fails to

11

demonstrate that Plaintiff’s termination occurred after circumstances giving rise to an

12

inference of retaliation. “[S]tray remarks are insufficient to establish discrimination.”

13

Merrick v. Farmers Ins. Grp., 892 F.2d 1434, 1438 (9th Cir. 1990). Here, Mr. Chopra’s

14

comments were not tied directly to Plaintiff’s termination and are “weak circumstantial

15

evidence of discriminatory animus” toward Plaintiff. Nesbit v. Pepsico, Inc., 994 F.2d

16

703, 705 (9th Cir. 1993). Specifically, these remarks are “unrelated to the decisional

17

process,” and “insufficient to demonstrate that the employer relied on illegitimate

18

criteria.” Smith v. Firestone Tire and Rubber Co., 875 F.2d 1325, 1330 (7th Cir. 1989).

19

Without more, Plaintiff has not made a sufficient showing that the decision to terminate

20

her employment was based on retaliation for her participation as a trial witness in the

21

Lansdale case. Accordingly, as Defendant states, “[n]one of the three alleged comments

22

has anything to do with her ultimate termination, and they do not support an inference of

23

but-for causation.” (Reply at 7.)

24

Further, Plaintiff’s termination is too far removed from the protected activity to

25

establish a causal link by temporal proximity. Although “timing alone will not show

26

causation in all cases, . . . ‘to support an inference of retaliatory motive, the termination

27

must have occurred fairly soon after the employee’s protected expression.’” Villiarimo,

28

281 F.3d at 1065 (finding that “[a] nearly 18–month lapse between protected activity and

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1

an adverse employment action is simply too long, by itself, to give rise to an inference of

2

causation.”) (quoting Paluck v. Gooding Rubber Co., 221 F.3d 1003, 1010 (7th Cir.

3

2000)). An inference is not possible here, where approximately 12 years have lapsed

4

between the date of Plaintiff’s testimony and her termination. See, e.g., Manatt v. Bank of

5

Am., NA, 339 F.3d 792, 802 (9th Cir. 2003) (finding no evidence of causation where

6

approximately nine months lapsed between the date of the plaintiff’s complaint and the

7

defendant’s alleged adverse decisions).

8

Moreover, in the period of time between Plaintiff’s testimony in the Lansdale case

9

and Mr. Chopra’s decision to terminate her, Mr. Chopra “awarded Plaintiff multiple

10

positive reviews and raises[,] and even successfully challenged Mr. Chalpin’s 2004

11

decision to cancel a bonus and raise he had approved” for Plaintiff. (Reply at 8, n.7.)

12

Accordingly, Plaintiff is unable to establish a prima facie case of retaliation due to these

13

breaks in the causal chain. See Ghirmai v. Nw. Airlines, Inc., 131 F. App’x 609, 611 (9th

14

Cir. 2005) (holding that intervening events between the plaintiff’s protected activity and

15

his termination, such as “positive reviews and assistance, break the causal connection”).

16

As Plaintiff has not shown that her trial testimony in the Lansdale case was the but-for

17

cause of her termination twelve years later, Plaintiff has failed to establish a prima facie

18

case of retaliation. Accordingly, the Court will grant Defendant’s Motion for Summary

19

Judgment as to Plaintiff’s Title VII Retaliation claim.

20

Although Plaintiff’s failure to meet her prima facie burden renders moot the

21

remainder of the McDonnell Douglas burden-shifting analysis, the Court notes that “the

22

substantial evidence (including Plaintiff’s own admissions) of Plaintiff’s poor job

23

performance . . . constitute[s] a legitimate, non-retaliatory reason for Defendant’s action.”

24

Drottz v. Park Electrochemical Corp., No. CV 11-1596-PHX-JAT, 2013 WL 6157858, at

25

*15 (D. Ariz. Nov. 25, 2013). Defendant has articulated a “legitimate, nondiscriminatory

26

reason for its adverse employment decision,” by “clearly set[ting] forth through the

27

introduction of evidence, reasons for its employment decision which, if believed by the

28

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1

trier of fact, would support a finding that the employment action was not a result of

2

unlawful discrimination.” Noyes v. Kelly Servs., 488 F.3d 1163 (9th Cir. 2007).

3

In addition, Plaintiff has not shown pretext. The Court agrees with Defendant that

4

because “Plaintiff lacks ‘specific’ or ‘substantial’ evidence calling into genuine dispute

5

these material facts, a reasonable factfinder simply cannot conclude that Hi-Health’s

6

reason for terminating Plaintiff—poor performance and a failed PIP—is ‘unworthy of

7

credence because it is internally inconsistent or otherwise not believable.’” (Mot. Summ.

8

J. at 16–17 (quoting Chuang v. Univ. of Cal. Davis, Bd. of Trustees, 225 F.3d 1115, 1127

9

(9th Cir. 2000.)) Accordingly, even if she had met her prima facie burden, Plaintiff still

10

would have failed to demonstrate a genuine dispute of material fact as to Defendant’s

11

legitimate non-discriminatory reason for Plaintiff’s termination or as to pretext.

12
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C.

Age Discrimination under the ADEA
1.

Legal Standard

14

Defendant next moves for summary judgment as to Plaintiff’s ADEA claim. (Mot.

15

Summ. J. at 17-21.) Under the ADEA, it is unlawful for an employer “to discharge any

16

individual or otherwise discriminate against any individual with respect to [her]

17

compensation, terms, conditions, or privileges of employment, because of such

18

individual’s age.” 29 U.S.C. § 623(a)(1). Courts analyze ADEA claims differently

19

depending on whether the claim relies on direct or circumstantial evidence. See Enlow v.

20

Salem-Keizer Yellow Cab Co., Inc., 389 F.3d 802, 812 (9th Cir. 2004). In this instance,

21

Plaintiff claims that Mr. Chopra made various comments related to her age, namely: “I

22

know you’re older, but you need to come into the 21st Century”; “I know you’ve been

23

around a long time and you’re older than the other buyers, but you still should be able to

24

come up with some new ideas”; “I know you’re older than the other buyers, but that

25

shouldn’t stop you from being innovative and creative”; “Other people in the company as

26

well as myself look around and wonder whether or not you can keep up with the other

27

younger buyers”; and “I know you’re over 60 now but, you still need to keep up with the

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other younger buyers, if not, this job might not be for you.” (PSOF ¶ 153.) Plaintiff also

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1

alleges Mr. Chopra “asked me if I was able to keep up, make my sales and gross margin

2

projections and get up to the level of the other younger buyers.” (DSOF ¶ 97.)

3

Defendant argues that (1) under Ninth Circuit precedent, these statements do not

4

constitute direct evidence of discriminatory intent because Plaintiff proffers no evidence

5

that the remarks about her age were directly tied to the alleged adverse action, Plaintiff’s

6

termination, and (2) even if the Court were to draw inferences in Plaintiff’s favor—an act

7

that itself would indicate the evidence is indirect and circumstantial—the link between

8

the remarks and Plaintiff’s termination is so weak that the Court must apply the

9

McDonnell Douglas framework to Plaintiff’s ADEA claim. (Reply at 8-12.) The Court

10

agrees. As Defendant points out, the comments Plaintiff states Mr. Chopra made were all

11

oriented toward Plaintiff meeting her performance targets, and no evidence supports the

12

conclusion that the stray remarks regarding Plaintiff’s age were directly tied to

13

Defendant’s termination of Plaintiff. The Court thus concludes that the statements are

14

weak circumstantial evidence requiring application of the McDonnell Douglas

15

framework. See France v. Johnson, 795 F.3d 1170, 1173 (9th Cir. 2015); Nidds v.

16

Schindler Elevator Corp., 113 F.3d 912, 918-19 (9th Cir. 1996); Nesbit, 994 F.2d at 705;

17

Merrick, 892 F.2d at 1438.

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2.

Analysis

19

To make out an ADEA claim based on circumstantial evidence of discrimination,

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Plaintiff must first establish a prima facie case by demonstrating she was “(1) at least

21

forty years old, (2) performing [her] job satisfactorily, (3) discharged, and (4) either

22

replaced by substantially younger employees with equal or inferior qualifications or

23

discharged under circumstances otherwise giving rise to an inference of age

24

discrimination.” Diaz v. Eagle Produce Ltd. P’ship, 521 F.3d 1201, 1207 (9th Cir. 2008).

25

Defendant argues that Plaintiff cannot demonstrate elements (2) or (4) because the

26

evidence undisputedly shows that Plaintiff was not performing her job satisfactorily and

27

that she was not discharged under circumstances giving rise to an inference of age

28

discrimination. (Mot. Summ. J. at 13-16.)

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1

With regard to Plaintiff’s job performance, Defendant points to undisputed

2

evidence that Plaintiff did not meet objective performance goals in late 2011 and early

3

2012 or the PIP Defendant placed her on, leading to her termination. (DSOF ¶¶ 45-85.)

4

Plaintiff testified that, during that period, the basis upon which her performance was

5

measured changed from gross profit to monthly marginal gross profit increase, and that

6

change constituted manipulation of the performance goals intended to cause her to fail.4

7

(PSOF ¶¶ 177-80.) However, Plaintiff does not cite any evidence to show that the new

8

performance goals were not objectively reasonable, that Defendant did not apply the new

9

performance goals to all the Buyers at the same time such that the goals were not

10

objective, or that Defendant did not adequately communicate the performance goals or

11

PIP with her. As a result, a conclusion that the evidence shows the new performance

12

goals were manipulation on the part of Defendant would be more than an inference; it

13

would be speculation. Plaintiff thus has not raised a genuine issue of material fact

14

regarding her less-than satisfactory job performance prior to her termination.

15

A review of the evidence regarding the circumstances of Plaintiff’s discharge

16

leads to a similar result. Plaintiff again relies on the Mr. Chopra’s statements regarding

17

her age, but, as the Court already noted, those statements were directed toward her

18

performance compared to other Buyers and her ability to meet objective performance

19

goals. She does not point the Court to any evidence that she was replaced by substantially

20

younger Buyers, and her contention that another Buyer was given an extra month to reach

21

her performance goals and then not fired is immaterial, because the evidence shows that

22

Buyer successfully completed her PIP and met her goals, unlike Plaintiff. (DSOF ¶ 83.)

23

No evidence or reasonable inferences therefrom could lead a factfinder to conclude that

24
25
26
27
28

4

In her Response to Defendant’s Motion, Plaintiff does not argue that there
remains a genuine dispute of material fact as to whether she performed her job
satisfactorily prior to her termination or whether she was discharged under circumstances
giving rise to an inference of age discrimination, because she argues that Mr. Chopra’s
remarks regarding her age were not circumstantial, but rather direct, evidence of
discrimination—a proposition with which the Court disagrees. But the Court looks to the
evidence proffered by Plaintiff to determine whether she has created a genuine dispute of
material fact to resist summary judgment.
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1

Plaintiff’s termination was a result of age discrimination instead of poor performance;

2

indeed, the evidence shows Plaintiff acknowledged her need to improve her performance

3

prior to her termination. (DSOF ¶¶ 53-54.) Because Plaintiff does not raise a genuine

4

issue of material fact regarding two of the elements of a prima facie claim of age

5

discrimination under the ADEA, the Court will grant Defendant summary judgment on

6

that claim.

7

As with Plaintiff’s retaliation claim, the Court again notes that, even if it were to

8

find a genuine dispute as to Plaintiff’s prima facie claim of age discrimination, Plaintiff

9

has not created a genuine dispute as to whether Defendant’s legitimate non-

10

discriminatory reason for Plaintiff’s termination—poor performance—was pretextual.

11

Plaintiff has not produced specific and substantial evidence to show that poor

12

performance was an internally inconsistent or otherwise unbelievable justification for

13

terminating Plaintiff as a Senior Buyer. See, e.g., Chuang, 225 F.3d at 1127. As a result,

14

Defendant is entitled to summary judgment on Plaintiff’s age discrimination claim for

15

this additional reason.

16
17
18
19
20

IT IS THEREFORE ORDERED granting Defendant’s Motion for Summary
Judgment (Doc. 76) on all of Plaintiff’s claims against Defendant.
IT IS FURTHER ORDERED that the Clerk of Court shall enter judgment
accordingly and close this case.
Dated this 13th day of January, 2017.

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Honorable John J. Tuchi
United States District Judge

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