Baker v. Walgreens Company

Filing 46

ORDER that Plaintiff's motion for summary judgment, (Doc. 44 ), is DENIED. IT IS FURTHER ORDERED that Defendant's motion for summary judgment, (Doc. 45 ), with respect to Plaintiff's state law claim is GRANTED. IT IS FURTHER ORDERED that the Clerk of the Court shall enter judgment in favor of Defendant and dismiss this case with prejudice. Signed by Senior Judge James A Teilborg on 6/8/16. (KGM)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Karen M. Baker,

No. CV-15-00342-PHX-JAT

Plaintiff,

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v.

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ORDER

Walgreens Arizona Drug Company,

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Defendant.

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Pending before the Court are cross-motions for summary judgment filed by

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Plaintiff Karen M. Baker, (Doc. 44), and Defendant Walgreens Arizona Drug Company.

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(Doc. 45). The parties’ motions come in response to the Court’s May 6, 2016, Order

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finding that the Court would exercise supplemental jurisdiction over Plaintiff’s state law

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“wrongful termination” claim pursuant to Title 28 U.S.C. § 1367 (2012). (Doc. 43).

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Having considered the parties’ filings, the Court now rules on the pending motions. 1

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I.

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In its April 18, 2016, Order the Court set forth in detail the factual allegations

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underlying Plaintiff’s lawsuit. (Doc. 40 at 1-5). The Court need not do so again. For

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Neither party requested oral argument on the pending dispositive motions. Both
parties have submitted memoranda discussing the law and facts in support of their
positions and oral argument will not aide the Court’s decisional process. See e.g.,
Partridge v. Reich, 141 F.3d 920, 926 (9th Cir. 1998); Lake at Las Vegas Investors
Group, Inc. v. Pacific. Dev. Malibu Corp., 933 F.2d 724, 729 (9th Cir. 1991). As noted
infra, neither party filed a timely response opposing summary judgment under LRCiv
7.2(c).

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purposes of adjudicating the pending cross-motions for summary judgment, it is

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sufficient to note the following procedural developments.

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On April 18, 2016, the Court granted Defendant summary judgment on Plaintiff’s

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federal law claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et

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seq, (“Title VII”), and the Age Discrimination in Employment Act of 1967, 29 U.S.C. §

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621 et seq., (“ADEA”). (Doc. 40 at 7-22). The Court also found, reading pro se Plaintiff’s

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pleading liberally, that the Complaint contained a state law claim of “wrongful

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termination,” (id. at 22-23), but that further factual development was necessary to

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determine whether the Court had original jurisdiction under 28 U.S.C. § 1332, or whether

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the Court had discretion to exercise supplemental jurisdiction under 28 U.S.C. § 1367.

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(Id. at 23).

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On May 6, 2016, after considering the parties’ briefing on subject matter

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jurisdiction, the Court found that original jurisdiction did not exist, but that in its

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discretion the Court would exercise supplemental jurisdiction over the state law claim, as

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it was “part of the same controversy as [Plaintiff’s] federal law discrimination claims, and

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that judicial efficiency w[ould] be promoted by hearing the claim.” (Doc. 43 at 2).

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Because Plaintiff’s Complaint and her subsequent filings failed to provide any substance

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as to what sort of state law “wrongful termination” claim was alleged, the Court further

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found that Plaintiff’s claim was best characterized as a violation the Arizona Employment

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Protections Act (“APEA”), pursuant to A.R.S. § 23-1501(3)(b) (2014), for violations of

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the Arizona Civil Rights Act (“ACRA”). (Id.) Finally, in light of the Court’s decision to

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exercise supplemental jurisdiction over the state law claim, coupled with “the ambiguities

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about the nature of the claim in the original Complaint,” 2 the Court amended its Fed. R.

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Plaintiff’s entire wrongful termination claim was the succinct allegation that
Defendant “[t]erminated her employment against state law” because it “willfully and
knowingly fabricated a lie and accused Plaintiff of theft.” (Doc. 1 at 10). Defendant did
not seek summary judgment on any state law claims in the Complaint. Defendant’s
Answer, however, did acknowledge the possibility that the Complaint alleged a state law
claim and noted that “[d]ue to the vague allegations in Plaintiff’s Complaint, and
specifically, in Count II, the nature of Count II and whether this Count arises out of the
same conduct alleged in Count I is unclear.” (Doc. 9 at 2 n.2). Defendant thereafter
“reserve[d] the right to seek dismissal of Count II because such allegations, even if true,
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Civ. P. 16(b) Scheduling Order and permitted each party file dispositive motions by

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Friday, May 20, 2016. (Id. at 3).

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Both parties filed a motion for summary judgment on Plaintiff’s remaining claim

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on May 20, 2016. (Doc. 44; Doc. 45). Neither party filed a timely response opposing

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summary judgment, 3 nor did either party request oral argument. Having set forth the

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pertinent procedural background, the Court turns to the pending motions.

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II.

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The Court’s April 18, 2016, Order set forth in full the applicable legal standard for

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a Fed. R. Civ. P. 56(a) motion for summary judgment where one party is a pro se litigant.

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(Doc. 40 at 5-7). The Court need not recite the full standard again. Summary judgment is

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only appropriate where there is no genuine issue of material fact, Celotex Corp. v.

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Catrett, 477 U.S. 317, 323 (1986), and as a pro se litigant, the Court must liberally

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construe Plaintiff’s pleadings, Franklin v. Murphy, 745 F.2d 1221, 1235 (9th Cir. 1984)

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(citation omitted), and her burden to overcome summary judgment in this employment

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discrimination action is minimal. Diaz v. Eagle Produce, Ltd., 521 F.3d 1201, 1207 (9th

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Cir. 2008) (quoting Chuang v. Univ. of Cal. Davis, Bd. of Trs., 225 F.3d 1115, 1124 (9th

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Cir. 2000)).

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III.

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A.

Plaintiff’s Motion for Summary Judgment

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The Court begins by addressing Plaintiff’s motion. (Doc. 44). Having reviewed the

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motion liberally, the Court finds it to be insufficient to entitle Plaintiff to judgment as a

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matter of law. Plaintiff’s motion is primarily a re-telling of facts contained in Plaintiff’s

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are not sufficient to state a claim for relief under either Arizona statutory or common
law.” (Id.).
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LRCiv 7.2(c) requires that a party opposing summary judgment file a responsive
memorandum within fourteen days after service of the motion. Each motion for summary
judgment was filed on May 20, 2016. As of June 8, 2016, no responsive memoranda had
been filed with the Court. (Doc. 44, 45).
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opposition to Defendant’s earlier motion for summary judgment, (Doc. 26), and rests on

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three factual allegations. The Court will address each in turn.

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First, Plaintiff recounts in detail the incident involving the customer who tendered

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five dollars as partial payment for the transaction that ultimately led to Plaintiff’s

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termination. (Doc. 44 at 2-4). Plaintiff denies that she stole the customer’s money, and

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alleges that Luis Palomo, the manager at the store where Plaintiff worked, “fabricated

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this lie of theft, and then terminated Plaintiff’s employment.” (Id. at 6, 7). The Court,

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however, previously noted that it was unable “to identify a viable cause of action under

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the [Arizona Employment Protection Act (“AEPA”)] for making false accusations about

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an employee.” (Doc. 43 at 2). Plaintiff has yet to point to anywhere in the statute that

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authorizes such a claim, and to the extent that the allegation supports a claim of

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discrimination on the basis of race and age, the Court finds it to be a “conclusory

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statement without factual support” in the record. Plaintiff has proffered no evidence to

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support the allegation, and absent some corroboration in the record, the Court need not

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consider it. Surrell v. Cal. Water Serv., 518 F.3d 1097, 1103 (9th Cir. 2008) (citation

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omitted). Even accepting Plaintiff’s conclusory claim, she has still proffered nothing to

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show that other similarly situated employees were treated differently than she was. See

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Baker v. Walgreens Ariz. Drug. Co., No. CV-15-00342-PHX-JAT, 2016 U.S. Dist.

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LEXIS 51503, at *13 (D. Ariz. April 18, 2016) (finding that the record did not contain

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“even a modicum of evidence to support [Plaintiff’s] claim”).

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Next, Plaintiff asserts that the Arizona Department of Economic Security

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(“ADES”) investigated Plaintiff’s unemployment claim, and found that Plaintiff was

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entitled to unemployment insurance due to the fact she was “discharged because [her]

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employer was not satisfied with [her] work” and not due to negligence or carelessness.

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(Doc. 44 at 10). Plaintiff also cites to a brief discussion with an ADES Unemployment

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Insurance Consultant where she informed the consultant that there was a delay between

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the incident that led to Plaintiff’s termination and the actual date of termination. (Id. at 6).

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These facts, however, pertain to what appears to be an investigation as to whether

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Plaintiff was eligible to collect unemployment. ADES is the state agency that handles

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applications for and dissemination of unemployment benefits. Prebula v. Arizona Dep’t

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of Economic Sec., 672 P.2d 978, 980 (D. Ariz. 1983). The ADES investigation

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determined that Plaintiff was not “negligent” or “careless” and did not “fail[] to provide

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the ordinary care expected” in her job, a statement closely resembling the definition for

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negligence. The succinct, one paragraph letter does nothing to suggest that Defendant

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terminated, or discriminated against Plaintiff if any way, on the basis of race or age.

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Finally, Plaintiff’s motion alleges that “all non-African Americans, working for

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[Defendant] have never been treated with this kind of d[i]sparate treatment.” (Doc. 44 at

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7). The assertion is supported by nothing of record, although Plaintiff’s motion does

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assert that she “seeks to provide th[e] Court with substance that further support[]s [her]

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state law claim per A.R.S. [§] 23-1501(3)(b)(i).” (Id.). Absent any semblance of support

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for this allegation, the Court finds that it is a “conclusory statement without factual

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support,” and the Court will not consider it. Surrell, 518 F.3d at 1103.

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In sum, Plaintiff’s motion for summary judgment, (Doc. 44), fails to establish that

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Defendant discharged or discriminated against Plaintiff on the basis of race or age. More

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specifically, as will be discussed infra, Plaintiff’s motion does nothing to show, or even

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suggest, that “other employees with qualifications similar to her own were treated more

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favorably” by Defendant. Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1220 (9th Cir.

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1998). Plaintiff is not entitled to judgment as a matter of law, and the motion will be

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denied.

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B.

Defendant’s Motion for Summary Judgment

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To the extent that Plaintiff’s remaining state law claim can be characterized as an

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alleged AEPA claim premised on ACRA violations, substantial case law suggests that

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Plaintiff’s claim is not actionable. See Cronin v. Sheldon, 991 P.2d 231, 241 (Ariz. 1999)

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(finding that the “exclusive remedies provision” of the AEPA precluded the petitioners’

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ACRA-based claims); Taylor v. Graham County Chamber of Commerce, 33 P.3d 518,

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522 (Ariz. Ct. App. 2001) (noting that the ACRA “provides a remedy to an employee for

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the violation” and that it cannot serve as the basis for an AEPA claim); Miles v. Vasquez,

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No. CV-07-1398-PHX-FJM, 2007 U.S. Dist. LEXIS 100142, at *3-5 (D. Ariz. Nov. 5,

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2007) (noting that the ACRA is a specifically delineated statute that “provides a remedy

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to an employee” and that “a wrongful discharge claim cannot be premised on [a]

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violation of the ACRA”); Fallar v. Compuware Corp., 202 F. Supp. 2d 1067, 1076 (D.

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Ariz. 2002) (finding that Plaintiff’s “only remedies” for civil rights violations were

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pursuant to the ADA and the ACRA and that the claim could not be brought under the

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AEPA). In light of the aforementioned authorities, the Court finds that to the extent that

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Plaintiff’s state law claim can be properly characterized as an AEPA claim premised on

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violations of the ACRA, it is not actionable. See Baron v. Arizona, 270 Fed. Appx. 706,

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710 (9th Cir. 2008) (holding that because the “ACRA provides a remedy for sex

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discrimination, [the plaintiff] cannot bring this claim under the AEPA”).

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The Court’s analysis, however, continues. In the April 17, 2016, Order, the Court

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noted that Plaintiff had offered nothing throughout this litigation to illuminate even the

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general nature of her state law claim. Baker v. Walgreens Ariz. Drug. Co., No. CV-15-

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00342-PHX-JAT, 2016 U.S. Dist. LEXIS 60449, at *2 (D. Ariz. May 6, 2016). The Court

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found that given the nature of the Complaint, Plaintiff’s state law claim was one for

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discrimination that led to her firing. To the extent that Plaintiff’s claim can be

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characterized as an independent claim that Defendant violated the ACRA, A.R.S. § 41-

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1463(B)(1) (2014), 4 the Court finds that Defendant is entitled to summary judgment.

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“Title VII and the Arizona Civil Rights Act . . . are ‘generally identical,’ and . . .

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federal Title VII law has been ‘persuasive in the interpretation of the ACRA.’” Lopez v.

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Produce Exch., 171 Fed. Appx. 11, 12 (9th Cir. 2006) (quoting Bodett v. CoxCom, Inc.,

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366 F.3d 736, 742 (9th Cir. 2004)); see also Higdon v. Evergreen Int’l Airlines, 673 P.2d

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907, 909 n.3 (Ariz. 1983) (noting that “[t]he Arizona Civil Rights Act is modeled after

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A.R.S. § 41-1463(B)(1) makes it an unlawful employment practice for an
employer to “discharge any individual or otherwise to discriminate against any individual
. . . because of the individual’s race” or “age.”
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and generally identical to the federal statute in the area” Title VII). This applies to the

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ADEA as well. See Cardwell v. Intel Corp., No. CIV 99-0532-PHX-MHM, 2002 U.S.

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Dist. LEXIS 19273, at *10 (D. Ariz. Sept. 19, 2002) (citing Timmons v. City of Tucson,

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830 P.2d 871, 875 (Ariz. Ct. App. 1991)) (finding federal ADEA case law “persuasive in

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interpreting [the] ACRA”). Thus, when analyzing a claim under the ACRA, courts

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subject it to the same framework of analysis as federal law discrimination claims.

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Shaninga v. St. Luke’s Med. Ctr. LP, No. CV-14-02475-PHX-GMS, 2016 U.S. Dist.

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LEXIS 49131, at *17-19 (D. Ariz. April 11, 2016); Kunz v. Smith’s Food & Drug Ctrs.,

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Inc., No. CV-09-1645-PHX-GMS, 2011 U.S. Dist. LEXIS 29591, at *18 (D. Ariz. March

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21, 2011); Knowles v. United States Foodservice, Inc., No. CV-08-01283-PHX-ROS,

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2010 U.S. Dist. LEXIS 95267, at *9 (D. Ariz. Sept. 9, 2010); De La Torre v. Merck

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Enters., 540 F. Supp. 2d 1066, 1079 n.10 (D. Ariz. 2008); Barkclay v. Wal-Mart Stores,

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Inc., No. CV 07-981-PHX-MHM, 2007 U.S. Dist. LEXIS 95260, at *9-12 (D. Ariz. Dec.

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13, 2007).

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Here, Plaintiff’s Complaint alleged discrimination on the basis of race and age, but

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the Complaint failed to “establish a prima facie case of discrimination” through “direct or

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circumstantial evidence of discriminatory intent.” Baker, 2016 U.S. Dist. LEXIS 51503,

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at *13 (quoting Vasquez v. County of Los Angeles, 394 F.3d 634, 640 (9th Cir. 2003)).

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Plaintiff therefore had to proffer “evidence that ‘gives rise to an inference of unlawful

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discrimination’ . . . through the [burden shifting] framework set forth in McDonnell

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Douglas Corp. v. Green[, 411 U.S. 792 (1973)].” Vasquez, 394 F.3d at 640 (citing

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Cordova v. State Farm Ins. Cos., 124 F.3d 1145, 1148 (9th Cir. 1997)). Defendant was

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entitled to summary judgment on Plaintiff’s federal discrimination claims, Baker, 2016

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U.S. Dist. LEXIS 51503, at *40, because despite Plaintiff’s minimal burden to establish a

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prima facie case of discrimination, the record “simply failed to produce even a modicum

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of evidence to support [Plaintiff’s] claim that other similarly situated employees were

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treated more favorably than she was . . . .” Id. at *36, *37. Thus, under the burden-

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shifting framework set forth in McDonnell Douglas, Plaintiff failed to carry her initial

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burden of establishing a prima facie case of discrimination.

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Plaintiff’s pending motion for summary judgment, 5 (Doc. 44), fails to add

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anything substantive to the record. It follows that to the extent Plaintiff’s state law claim

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is an independent allegation under the ACRA, Plaintiff has failed to carry her initial

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burden to establish a “prima facie case of discrimination” on the basis of age or race

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under the McDonnell Douglas test. The record still does not contain “even a modicum of

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evidence” to support Plaintiff’s claim that other “similarly situated employees were

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treated more favorably than she was.” Baker, 2016 U.S. Dist. LEXIS 51503, at *37

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(citation omitted). Accordingly, Plaintiff’s state law claim has failed to “present any

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evidence creating a genuine dispute of material fact” necessitating trial to resolve. Dang

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v. Solar Turbines, Inc., 452 Fed. Appx. 804, 805 (9th Cir. 2011). Defendant is entitled to

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summary judgment on the remaining state law claim.

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IV.

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To conclude, the Court finds that Plaintiff’s motion for summary judgment must

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be denied. The Court further finds that to the extent Plaintiff’s state law claim is a claim

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under the AEPA, it is not actionable. To the extent that Plaintiff’s state law claim is an

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independent ACRA claim, Defendant is entitled to summary judgment, as Plaintiff has

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failed to make out a prima facie case of discrimination on the basis of age or race.

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Between this Order and the Court’s prior Order granting Defendant summary

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judgment on Plaintiff’s federal law claims, (Doc. 40), Defendant is entitled to judgment

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as a matter of law on all counts contained in the Complaint. Accordingly, the Clerk of the

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Court shall enter judgment in favor of Defendant, and dismiss the case with prejudice.

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For the aforementioned reasons,

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IT IS ORDERED that Plaintiff’s motion for summary judgment, (Doc. 44), is

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DENIED.

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Plaintiff failed to timely oppose Defendant’s motion for summary judgment.
LRCiv. 7.2(c).
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IT IS FURTHER ORDERED that Defendant’s motion for summary judgment,
(Doc. 45), with respect to Plaintiff’s state law claim is GRANTED.
IT IS FURTHER ORDERED that the Clerk of the Court shall enter judgment in
favor of Defendant and dismiss this case with prejudice.
Dated this 8th day of June, 2016.

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