Villalvaso v. Odwalla, Inc. et al

Filing 29

SCHEDULING CONFERENCE ORDER, signed by Judge Oliver W. Wanger on 6/16/2011. (Discovery Cut-Off: 6/15/2012, Non-Dispositive Motion Filing Deadline: 6/29/2012, Non-Dispositive Motion Hearing set 7/27/2012 at 01:30 PM in Courtroom 6 (JLT) before Magi strate Judge Jennifer L. Thurston, Dispositive Motion Filing Deadline: 7/16/2012, Dispositive Motion Hearing set for 8/20/2012 at 10:00 AM in Courtroom 3 (OWW) before Judge Oliver W. Wanger, Settlement Conference set for 6/28/2012 at 01:30 PM in Cour troom 6 (JLT) before Magistrate Judge Jennifer L. Thurston, Pretrial Conference set for 9/24/2012 at 11:00 AM in Courtroom 3 (OWW) before Judge Oliver W. Wanger, Jury Trial set for 11/6/2012 at 09:00 AM in Courtroom 3 (OWW) before Judge Oliver W. Wanger.)(Gaumnitz, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ALICIA VILLALVASO,

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Plaintiff,
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v.
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ODWALLA, INC., a California
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Corporation; SPHERION, INC., a
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Delaware Corporation; and MARIO )
ACOSTA, an individual,
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Defendants.
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)

1:10-cv-2369 OWW MJS
SCHEDULING CONFERENCE ORDER
Discovery Cut-Off: 6/15/12
Non-Dispositive Motion
Filing Deadline: 6/29/12
Non-Dispositive Motion
Hearing Date: 7/27/12 1:30
Ctrm. 6

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Dispositive Motion Filing
Deadline: 7/16/12

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Dispositive Motion Hearing
Date: 8/20/12 10:00 Ctrm. 3

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Settlement Conference Date:
6/28/12 1:30 Ctrm. 6

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Pre-Trial Conference Date:
9/24/12 11:00 Ctrm. 3

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Trial Date: 11/6/12 9:00
Ctrm. 3 (JT-10 days)

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I.

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Date of Scheduling Conference.
June 16, 2011.

II.

Appearances Of Counsel.

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Felicia A. Espinosa, Esq., appeared on behalf of Plaintiff.

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Curiale Hirschfeld Kraemer LLP by Kristin L. Oliveira, Esq.,
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appeared on behalf of Defendant Odwalla, Inc. and Mario Acosta.

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III.

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Summary of Pleadings.
A.

Plaintiff’s Factual and Legal Contentions.

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1.

On or around January 2006, Plaintiff applied for

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employment with a temporary employment agency, Spherion, Inc.,

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that provides staff services to Odwalla, Inc. (hereinafter,

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“Defendant”).

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instructed to report to Defendant’s plant located in Dinuba,

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California.

On or around February 2006, Plaintiff was

Plaintiff reported to work with Defendant.

At all

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relevant times, Plaintiff was jointly employed by Spherion, Inc.

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and Defendant from approximately February 2006 until July 21,

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2006.

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direct supervisor was Mario Acosta (hereinafter “Defendant

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Acosta”).

Throughout her employment with Defendant, Plaintiff’s

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2.

Plaintiff worked in Defendant’s cold storage and

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shipping department under the direct supervision of Defendant

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Acosta.

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harassed Plaintiff by both verbal and physical acts.

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inappropriate physical acts included touching her against her

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wishes and rubbing his body against her.

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included offensive and explicit details of his sexual encounters

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and unwelcome sexual overtures.

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deliberately waited until Plaintiff would enter the locker room

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and witness her zip into her work outfit that is placed over her

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clothing.

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environment pervasive with sexual harassment.

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During her employment, Defendant Acosta sexually
The

The verbal harassment

Additionally, Defendant Acosta

These verbal and physical acts created a hostile work

3.

On or about June 21, 2006, Plaintiff was

approached by Defendant’s Manager, Christian Emrich and was told
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that he was aware of Defendant Acosta’s sexual harassment of

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Plaintiff.

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represented by an attorney.

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Plaintiff to go home and to not report to work the next day, June

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22, 2006.

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attempts to discuss the sexual harassment with Defendant and with

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Spherion, Inc.

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Plaintiff to return to work and failed to adequately investigate

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and/or discipline Defendant Acosta for his actions.

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Plaintiff informed Mr. Emrich that she was
At that time, Mr. Emrich told

Plaintiff, accompanied with her counsel, made repeated

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As of June 22, 2006, Defendant never permitted

Plaintiff suffered and continues to suffer severe

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psychological and emotional distress due to the hostile work

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environment she was forced to endure, the repeated sexual

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harassment, retaliation and discrimination on behalf of Defendant

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and Defendant Acosta.

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and punitive damages and injunctive relief.

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B.

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Plaintiff seeks compensatory, statutory,

Defendants’ Factual and Legal Contentions.
1.

Plaintiff was an employee of Spherion, Inc., a

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temporary employee agency that provides recruitment and staffing

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services to Defendant.

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placed with Defendant’s facility in Dinuba, California as a

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temporary worker.

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Shipping Department.

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2.

From February to June 2006, Plaintiff was

During that period, she worked in Defendant’s

On June 21, 2006, one of Plaintiff’s coworkers at

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the Defendant’s plant told Christian Emrich, a Shipping Manager,

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that Plaintiff had complained Defendant Acosta was “bragging”

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her.

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(Mr. Acosta was not Plaintiff’s supervisor and he did not have

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authority or control over the terms or conditions of Plaintiff’s

Mr. Acosta was an employee in the Shipping Department.

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temporary placement with Defendant.

Rather, Defendant Acosta was

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only a “lead” employee in Shipping.

As a lead, he was primarily

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responsible for advising Order Selectors which orders to

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palletize and ensuring Defendant’s juices were correctly rotated

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and utilized according to the bottling date.)

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attempted to interview Plaintiff about any issues she had with

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Defendant Acosta, but she stated she had legal counsel and was

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reluctant to provide details to Mr. Emrich.

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provided little information to Mr. Emrich, he assured her that

Mr. Emrich

Although Plaintiff

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she had nothing to fear and that he would promptly speak to Human

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Resources of Defendant.

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with Plaintiff, and suggested she go home for the day if she was

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upset.

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her regarding the next steps.

Mr. Emrich exchanged telephone numbers

He told Plaintiff that Defendant would be in touch with

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3.

Mr. Emrich immediately notified Sharon Burg, the

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Human Resources Manager at Defendants’ plant, about Plaintiff’s

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complaint.

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telephone Plaintiff that day to discuss Plaintiff’s concerns.

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Ms. Burg, however, was unable to reach Plaintiff.

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day, Spherion advised Ms. Burg that Plaintiff would be at

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Defendant’s plant on June 23, 2006 to speak with Human Resources.

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The morning of June 23, 2006, Plaintiff and her legal counsel

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appeared at Defendant’s plant under the pretense of allowing

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Plaintiff to be interviewed by Ms. Burg.

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surprised as she was not expecting Plaintiff’s attorney to

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accompany Plaintiff.

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Plaintiff with her attorney present.

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that Plaintiff was scheduled to meet with Spherion’s manager that

Ms. Burg informed Spherion and also attempted to

The following

Ms. Burg was completely

She did not feel comfortable interviewing

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Ms. Burg also understood

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day.

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signed by legal counsel containing a general description of

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Plaintiff’s harassment allegations.

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Plaintiff’s counsel handed Ms. Burg a one-page letter

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Thereafter, Defendant conducted an investigation

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by interviewing several employees who worked with Plaintiff and

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Defendant Acosta in the Shipping Department.

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interviewed Defendant Acosta and Rosario Serno, another female

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employee in Shipping, on two separate occasions.

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Acosta stated that he told Plaintiff a joke, and Defendant

Defendant

Defendant

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determined that the joke could be interpreted as having a sexual

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connotation.

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joke in the workplace.

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Defendant could not substantiate Plaintiff’s claims that

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Defendant Acosta made sexual or lewd comments to her,

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propositioned her for sex, and engaged in inappropriate and

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unwelcome touching.

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Defendant maintained a policy prohibiting sexual harassment in

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the workplace and this policy was published in Defendant’s

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employee handbook.

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harassment training to its employees.

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5.

Defendant Acosta was orally warned for making this
Following a lengthy investigation,

At all times relevant to the Complaint,

In addition, Defendant provided sexual

After Plaintiff’s conversation with Christian

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Emrich, she was free to return to work at Defendant’s plant.

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Defendant tried to contact Plaintiff, but she did not respond and

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evidently chose not to return to work at Defendant’s plant.

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Defendant did not prevent Plaintiff from returning to the plant.

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In addition, Defendant understands that Plaintiff did not wish to

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continue working at Defendant’s plant, and she declined offers of

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temporary assignments at other employers as presented to her by
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Spherion after June 2006.

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6.

In sum, Defendant and Defendant Acosta deny

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Plaintiff’s claims of sexual harassment and gender

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discrimination, and further deny that Plaintiff has been damaged

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in any amount whatsoever.

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subjected to a hostile work environment based on her gender, or

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that Defendant retaliated against her after she complained about

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harassment in violation of Title VII of the Civil Rights Act of

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1964.

Defendants deny that Plaintiff was

Further, Defendant denies that it negligently supervised

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or hired its employees, or that it failed to maintain a safe

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working environment for Plaintiff.

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not strictly liable for the actions of Defendant Acosta, as

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Defendant Acosta was not Plaintiff’s supervisor.

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IV.

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Orders Re Amendments To Pleadings.
1.

Plaintiff does not expect to add or dismiss any causes

of action at this time.

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Defendant asserts that it is

2.

Defendants do not expect to add or dismiss any

affirmative defenses at this time.

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3.

Plaintiff has reached a settlement with Spherion, Inc.,

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a Delaware corporation.

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V.

Factual Summary.

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A.

Admitted Facts Which Are Deemed Proven Without Further

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Proceedings.

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1.

Plaintiff is an individual and a resident of the

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Eastern District of California at the time of events alleged in

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the complaint.

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2.

Odwalla, Inc., a California corporation, is

incorporated in and conducts business in the City of Dinuba, Inc.
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Defendant Mario Acosta is an employee of Odwalla

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and at times relevant, was employed at the Dinuba plant and an

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employee of Odwalla at all times alleged in the Complaint.

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4.

Plaintiff was a temporary employee who had been

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placed through Spherion, Inc. and performed work at Odwalla

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during the period February 7, 2006 to June 21, 2006 in Dinuba,

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California, as an Order Selector and Packer.

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5.

Plaintiff was never a regular, full-time employee

of Odwalla.

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6.

Plaintiff did not complain to any agent or manager

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at Odwalla about Mario Acosta’s alleged harassing conduct until

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June 21, 2006, when she spoke with Christian Emrich at the Dinuba

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plant.

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B.

Contested Facts.

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1.

Whether Plaintiff was en employee of Odwalla.

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2.

Whether Mario Acosta was Plaintiff’s Supervisor.

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3.

Whether Mario Acosta engaged in inappropriate

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conduct toward Plaintiff, including physical touching, sexual

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proposition or sexual commentary, as she contends.

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4.

Whether Plaintiff refused or declined to

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participate in Odwalla’s investigation of Plaintiff’s harassment

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contentions.

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5.

Whether Plaintiff was terminated from her

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temporary placement at Odwalla after she complained about Mario

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Acosta’s alleged harassment.

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6.

Whether Odwalla failed to rehire Plaintiff due to

her complaints of harassment and/or her gender.
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Whether Odwalla, by and through its agents or
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supervisors, knew or should have known of the alleged conduct by

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Defendant Acosta and failed to take immediate and appropriate

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corrective action.

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Odwalla following her complaints about Defendant Acosta.

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9.

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Whether Odwalla properly trained and/or supervised

its employees regarding sexual harassment and retaliation.

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Whether Plaintiff refused to return to work at

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What steps Odwalla took to prevent discrimination

or sexual harassment from occurring in its workplace.
VI.

Legal Issues.
A.

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Uncontested.
1.

Jurisdiction exists under 28 U.S.C. § 1331 and 42

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U.S.C. §§ 2000e, et seq.

Jurisdiction is further invoked under

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28 U.S.C. § 1367 and Cal. Gov’t Code §§ 12926, et seq.

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2.

Venue is proper under 28 U.S.C. § 1391.

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3.

The parties agree that the substantive law of the

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State of California governs supplemental claims.
B.

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Contested.
1.

Whether Plaintiff was subjected to sexual

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harassment or sexual battery by Odwalla, by and through its

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agents, supervisors or employees.

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2.

Whether Plaintiff was subjected to a hostile work

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environment at Odwalla, by and through its agents, supervisors or

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employees.

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3.

Whether Mario Acosta is a “supervisor” under the

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California Fair Employment & Housing Act, California Government

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Code § 12926(r).

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4.

Whether Odwalla is strictly liable for the actions
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of Mario Acosta.

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5.

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Whether Odwalla negligently supervised and/or

policy.

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Whether the conduct of Odwalla violated public

trained any of its employees, causing harm to Plaintiff.

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7.

Whether Odwalla retaliated against Plaintiff for

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retaining legal counsel in violation of California Labor Code

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§ 923.

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8.

Whether Plaintiff can pursue a claim for sexual

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battery or wrongful termination in violation of public policy

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based upon the applicable statute of limitations in California

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Code of Civil Procedure § 335.1.

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9.

Whether the statute of limitations for Plaintiff’s

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sexual battery and/or wrongful termination claims was tolled on

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the basis of equitable tolling.

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10.

Whether Plaintiff can state a claim for emotional

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Whether Plaintiff can state a claim for

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constructive discharge.

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12.

Whether Plaintiff can establish tolling.

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Whether Plaintiff can state a claim for punitive

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Whether Plaintiff can make any claim for damages.

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Whether Plaintiff has mitigated any damages she

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distress.

damages.

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now claims she suffered because of Defendants.

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VII. Consent to Magistrate Judge Jurisdiction.

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1.

The parties have not consented to transfer the

case to the Magistrate Judge for all purposes, including trial.
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VIII.

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1.

Corporate Identification Statement.
Any nongovernmental corporate party to any action in

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this court shall file a statement identifying all its parent

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corporations and listing any entity that owns 10% or more of the

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party's equity securities.

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its initial pleading filed in this court and shall supplement the

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statement within a reasonable time of any change in the

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information.

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IX.

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A party shall file the statement with

Discovery Plan and Cut-Off Date.
A.

Proposed changes in the limits on discovery imposed by

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Federal Rules of Civil Procedure, Rules 26(b), 30(a)(2)(A), (B)

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or (C), 30(d) or 33(a):

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longer than the seven hours permitted by FRCP 30 to depose

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Plaintiff as Plaintiff requires an interpreter at the oral

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deposition.

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seven hour limit for her deposition if necessary because of the

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added time for using an interpreter.

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B.

Defendants anticipate that it may take

Plaintiff agrees to a reasonable extension of the

Necessity of a protective order relating to the

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discovery of information relating to trade secret or other

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confidential research, development or commercial information.

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The parties reserve the right to so request and formulate

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protective orders regarding employee personnel files.

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C.

Issues or proposals as to the timing, sequencing,

phasing or scheduling of discovery.
D.

None at present.

Whether the parties anticipate the need to conduct

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discovery outside the United States, and a description of the

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proposed discovery.

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E.

Not anticipated.

Whether the parties anticipate video and/or sound
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recording of depositions.

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notice depositions as required.

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F.

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Conference:

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G.

The parties reserve the right to so

Proposed date for Mid-Discovery Status Report and
parties propose January 16, 2012.

The parties do not anticipate any issues relating to

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either disclosure or discovery of electronically stored

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information or claims of privilege.

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The following schedule is adopted for the case:

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1.

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The parties are ordered to complete all discovery on or

before June 15, 2012.
2.

The parties are directed to disclose all expert

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witnesses, in writing, on or before March 15, 2012.

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or supplemental expert disclosures will be made on or before May

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15, 2012.

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Rule of Civil Procedure 26(a)(2) regarding their expert

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designations.

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designation of experts shall be made pursuant to F. R. Civ. P.

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Rule 26(a)(2), (A) and (B) and shall include all information

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required thereunder.

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with this order may result in the Court excluding the testimony

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or other evidence offered through such experts that are not

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disclosed pursuant to this order.

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3.

Any rebuttal

The parties will comply with the provisions of Federal

Local Rule 16-240(a) notwithstanding, the written

Failure to designate experts in compliance

The provisions of F. R. Civ. P. 26(b)(4) shall

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apply to all discovery relating to experts and their opinions.

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Experts shall be fully prepared to be examined on all subjects

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and opinions included in the designation and their reports, which

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shall include every opinion to be rendered and all reasons for

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each opinion.

Failure to comply will result in the imposition of
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sanctions.

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X.

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Pre-Trial Motion Schedule.
1.

All Non-Dispositive Pre-Trial Motions, including any

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discovery motions, shall be filed on or before June 29, 2012, and

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heard on July 27, 2012, at 9:30 a.m. before Magistrate Judge

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Michael J. Seng in Courtroom 6.

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2.

In scheduling such motions, the Magistrate

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Judge may grant applications for an order shortening time

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pursuant to Local Rule 142(d).

However, if counsel does not

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obtain an order shortening time, the notice of motion must comply

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with Local Rule 251 and this schedule.

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3.

All Dispositive Pre-Trial Motions are to be

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filed no later than July 16, 2012, and will be heard on August

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20, 2012, at 10:00 a.m. before the Honorable Oliver W. Wanger, in

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Courtroom 3, 7th Floor.

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shall comply with Local Rule 230.

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XI.

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In scheduling such motions, counsel

Pre-Trial Conference Date.
1.

September 24, 2012, at 11:00 a.m. in Courtroom 3, 7th

Floor, before the Honorable Oliver W. Wanger.
2.

The parties are ordered to file a Joint Pre-

Trial Statement pursuant to Local Rule 281(a)(2).
3.

Counsel's attention is directed to Rules 281

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and 282 of the Local Rules of Practice for the Eastern District

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of California, as to the obligations of counsel in preparing for

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the pre-trial conference.

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compliance with those rules.

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XII. Motions - Hard Copy.

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1.

The Court insists upon strict

The parties shall submit one (1) courtesy paper copy to
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the Court of any motions filed.

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protruding numbered or lettered tabs so that the Court can easily

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identify such exhibits.

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XIII.

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1.

Exhibits shall be marked with

Trial Date.
November 6, 2012, at the hour of 9:00 a.m. in Courtroom

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3, 7th Floor, before the Honorable Oliver W. Wanger, United

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States District Judge.

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2.

This is a jury trial.

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3.

Counsels' Estimate Of Trial Time:

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a.
4.

Ten days.

Counsels' attention is directed to Local Rules

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of Practice for the Eastern District of California, Rule 285.

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XIV. Settlement Conference.

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1.

The parties are agreeable to participate in private

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mediation after the conclusion of Plaintiff’s deposition and some

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of Defendant’s depositions, which is currently scheduled for

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August 4-5, 2011.

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commence settlement discussions after Plaintiff’s deposition, but

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before Plaintiff conducts any depositions.

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2.

It is anticipated that the parties will

A Settlement Conference is scheduled for June 28, 2012,

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at 1:30 p.m. in Courtroom 6 before the Honorable Michael J. Seng,

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United States Magistrate Judge.

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3.

Unless otherwise permitted in advance by the

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Court, the attorneys who will try the case shall appear at the

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Settlement Conference with the parties and the person or persons

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having full authority to negotiate and settle the case on any

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terms at the conference.

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4.

Permission for a party [not attorney] to attend
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by telephone may be granted upon request, by letter, with a copy

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to the other parties, if the party [not attorney] lives and works

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outside the Eastern District of California, and attendance in

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person would constitute a hardship.

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allowed, the party must be immediately available throughout the

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conference until excused regardless of time zone differences.

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Any other special arrangements desired in cases where settlement

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authority rests with a governing body, shall also be proposed in

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advance by letter copied to all other parties.

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5.

If telephone attendance is

Confidential Settlement Conference Statement.

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At least five (5) days prior to the Settlement Conference the

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parties shall submit, directly to the Magistrate Judge's

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chambers, a confidential settlement conference statement.

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statement should not be filed with the Clerk of the Court nor

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served on any other party.

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marked "confidential" with the date and time of the Settlement

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Conference indicated prominently thereon.

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request the return of their statements if settlement is not

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achieved and if such a request is not made the Court will dispose

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of the statement.

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6.

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Each statement shall be clearly

Counsel are urged to

The Confidential Settlement Conference

Statement shall include the following:

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The

a.

A brief statement of the facts of the

b.

A brief statement of the claims and

case.

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defenses, i.e., statutory or other grounds upon which the claims

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are founded; a forthright evaluation of the parties' likelihood

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of prevailing on the claims and defenses; and a description of
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the major issues in dispute.

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c.

A summary of the proceedings to date.

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d.

An estimate of the cost and time to be

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expended for further discovery, pre-trial and trial.

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e.

The relief sought.

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f.

The parties' position on settlement,

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including present demands and offers and a history of past

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settlement discussions, offers and demands.

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XV.

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Request For Bifurcation, Appointment Of Special Master,

Or Other Techniques To Shorten Trial.
1.

The parties do not agree on bifurcation of liability

and damage phases.
2.

The issue will be addressed by motion.

The subject of the amount of punitive damages, if any,

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shall be tried in a continuous trial, in a second phase, before

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the same jury, after the entitlement to punitive damages and the

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amount of compensatory damages has been determined by the jury.

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XVI. Related Matters Pending.

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1.
XVII.
1.

There are no related matters.
Compliance With Federal Procedure.
The Court requires compliance with the Federal

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Rules of Civil Procedure and the Local Rules of Practice for the

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Eastern District of California.

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efficient administration of this case, all counsel are directed

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to familiarize themselves with the Federal Rules of Civil

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Procedure and the Local Rules of Practice of the Eastern District

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of California, and keep abreast of any amendments thereto.

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XVIII.

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1.

To aid the court in the

Effect Of This Order.
The foregoing order represents the best
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estimate of the court and counsel as to the agenda most suitable

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to bring this case to resolution.

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specifically reserved for this case.

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any time that the schedule outlined in this order cannot be met,

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counsel are ordered to notify the court immediately of that fact

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so that adjustments may be made, either by stipulation or by

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subsequent scheduling conference.

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2.

The trial date reserved is
If the parties determine at

Stipulations extending the deadlines contained

herein will not be considered unless they are accompanied by

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affidavits or declarations, and where appropriate attached

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exhibits, which establish good cause for granting the relief

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requested.

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3.

Failure to comply with this order may result in

the imposition of sanctions.

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IT IS SO ORDERED.

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Dated:
June 16, 2011
emm0d6

/s/ Oliver W. Wanger
UNITED STATES DISTRICT JUDGE

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