McCarthy v. R.J. Reynolds Tobacco Company et al

Filing 59

ORDER signed by Judge William B. Shubb on 5/3/11 GRANTING 12 Motion for Summary Judgment as to plaintiffs' claim for disability discrimination under FEHA, and DENIED as to plaintiffs' claims for sexual harassment and retaliation and tortious adverse employment action in violation of public policy. (Matson, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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VICTORIA McCARTHY, KATHERINE
SCHMITT,

NO. CIV. 2:09-2495 WBS DAD

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Plaintiffs,

MEMORANDUM AND ORDER RE:
MOTION FOR SUMMARY JUDGMENT

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v.
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R.J. REYNOLDS TOBACCO CO., and
DOES 1-10,

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Defendants.
/

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Plaintiffs Victoria McCarthy and Katherine Schmitt

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brought this action against their former employer, defendant R.J.

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Reynolds Tobacco Co., alleging claims under Title VII of the

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Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2, 2000e-3, for

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sexual harassment and retaliation, under California’s Fair

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Employment and Housing Act (“FEHA”), Cal. Gov’t Code § 12940, for

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disability discrimination and failure to accommodate, and for

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tortious adverse employment actions in violation of public

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policy.

Defendant now moves for summary judgment on all claims
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pursuant to Federal Rule of Civil Procedure 56.1

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I.

Evidentiary Objections

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“A party may object that the material cited to support

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or dispute a fact cannot be presented in a form that would be

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admissible in evidence.”

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survive summary judgment, a party does not necessarily have to

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produce evidence in a form that would be admissible at trial, as

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long as the party satisfies the requirements of Federal Rules of

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Civil Procedure 56.”

Fed. R. Civ. P. 56(c)(2).

“[T]o

Fraser v. Goodale, 342 F.3d 1032, 1036-37

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(9th Cir. 2003) (quoting Block v. City of Los Angeles, 253 F.3d

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410, 418-19 (9th Cir. 2001)) (internal quotation marks omitted).

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Even if the non-moving party’s evidence is presented in a form

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that is currently inadmissible, such evidence may be evaluated on

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a motion for summary judgment so long as the moving party’s

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objections could be cured at trial.

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Univ. of Cal., 433 F. Supp. 2d 1110, 1119-20 (E.D. Cal. 2006).

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See Burch v. Regents of the

Defendant has filed twenty-one evidentiary objections.

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(Docket No. 40.)

Defendant objects to portions of plaintiffs’

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deposition testimony on the grounds of lack of foundation,

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hearsay, speculation,2 lack of personal knowledge, and expert

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1
The court gave plaintiffs an opportunity to file a
second opposition after they untimely filed their first
opposition. (Docket No. 31.) The court considers all the
arguments and evidence submitted to the court, but unless
otherwise noted, all references herein are to plaintiffs’ second
opposition, defendant’s second reply, and defendant’s second set
of evidentiary objections.
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Objections to evidence on the ground that it is
speculative are duplicative of the summary judgment standard
itself. A court can award summary judgment only when there is no
genuine dispute of material fact. Statements based on
speculation or improper legal conclusions are not facts and will
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opinion testimony.

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respond to the objections and defendant an opportunity to reply.

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Plaintiffs have withdrawn the evidence referenced in defendant’s

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objections 14 and 16, and the court will not consider that

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evidence.

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The court gave plaintiffs an opportunity to

Defendant has withdrawn objection 7.
In the interest of brevity, as defendant is aware of

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the substance of its objections and the grounds asserted in

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support of each objection, the court will not review the

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substance or grounds of all the objections here.

Defendant’s

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objections 1-2, 4, 8, 10-11, 13, 17-18, and 20-21 are overruled,

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as they could be presented in a form that would be admissible at

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trial.3

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the basis that the evidence is inadmissible hearsay that could

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not be cured at trial.4

Defendant’s objections 3, 9, 15, and 19 are sustained on

Defendant’s objections 5, 6, and 12 are

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not be considered on a motion for summary judgment. Objections
on this ground are superfluous. See Burch v. Regents of Univ. of
Cal., 433 F. Supp. 2d 1110, 1119 (E.D. Cal. 2006). Objections 4,
10-11, 17-18, and 20-21 are therefore overruled.

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Objections 1 and 2 relate to deposition testimony by
plaintiffs about statements made by Madsen and other employees
that were made within the scope of their employment. These
statements are not hearsay because they constitute admissions of
a party-opponent. See Fed. R. Evid. 801(d)(2)(D).
Objections 8 and 13 relate to deposition testimony by
plaintiffs about which the depositions did not show that they had
personal knowledge. Plaintiffs demonstrated personal knowledge
in their response to the objections.
The others are objections to speculation, overruled as
discussed in footnote 2.
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Pursuant to the court’s simultaneously-filed Final
Pretrial Order, plaintiffs may call themselves and Jared LaLonde
as witnesses, but they may not call Keith Johnson, “Nicole,” or
the EEOC investigator as witnesses. In fact, plaintiffs did not
list the latter three witnesses in their Pretrial Statement.
Even though LaLonde may be called as a witness, three of the
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sustained on personal knowledge grounds.5

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II.

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Relevant Facts
Plaintiffs began working for defendant in August of

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2006 as Trade Marketing Representatives (“TMRs”).

(Waggoner

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Decl. Ex. 2 (“Schmitt Dep.”) at 9:4-7 (Docket No. 18); Waggoner

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Decl. Ex. 3 (“McCarthy Dep.”) at 19:13-18.)

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August of 2007, plaintiffs and other employees began to have

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complaints about Michelle Madsen, their supervisor.

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vulgar language and discussed whether or not the employees were

Starting in July or

Madsen used

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objections must be sustained: Objection 3 (deposition testimony
by McCarthy that three employees, Jared LaLonde, Keith Johnson,
and “Nicole,” told her they had been confronted by Madsen
regarding the complaints); Objection 9 (deposition testimony by
McCarthy that Jared LaLonde told her that Fedewa said McCarthy
was “coo-coo”); and Objection 19 (deposition testimony by Schmitt
that Jared LaLonde told her that he told Madsen that plaintiffs
were the ones who complained about her).
Plaintiffs’ counsel spoke to LaLonde over the phone,
who apparently referenced his conversation with Madsen but not
the one with Fedewa. LaLonde refused to sign a declaration
summarizing that phone conversation. Even if plaintiffs
subpoenaed him for trial, there is no basis to know what he would
say, so the hearsay objections are valid.
Objection 15 refers to deposition testimony by McCarthy
stating that the EEOC told her that defendant never disciplined
Madsen. In response to the objection, McCarthy filed a
declaration naming the individual at the EEOC and stating that
the individual could testify on the matter. However, as the EEOC
investigator may not be called at trial, McCarthy’s statement is
simply hearsay.
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Objections 5 and 6 refer to deposition testimony by
McCarthy stating that Madsen had McCarthy make spreadsheets but
then never used the spreadsheets. Even in reply to the
objections, plaintiffs did not demonstrate how McCarthy had
personal knowledge of this.

Objection 12 refers to deposition testimony by McCarthy
that Fedewa was required (presumably by defendant) to change his
management style to become less militant. McCarthy says she has
personal knowledge of this because she saw Fedewa’s personnel
file. If this is her only reason for personal knowledge, the
file itself would be the best evidence.
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in relationships.

(Bolanos Decl. Ex. A (“McCarthy Dep.”) at

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67:21-25; 69:20-72:6 (Docket No. 33).)

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told McCarthy that she should not have boyfriends if she wanted

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to get ahead, because relationships “mess up” careers.

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70:3-20.)

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sex with her husband because it interfered with her work.

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at 71:12-16.)

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“was starting to lack because [Schmitt’s] bedroom was a very

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lonesome place,” and that she needed to have “a more active

In particular, Madsen

(Id. at

Madsen also told McCarthy that Madsen no longer had
(Id.

In contrast, Madsen told Schmitt that her work

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bedroom” for her work to improve.

(Bolanos Decl. Ex. C (“Schmitt

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Dep.”) at 42:2-7.)

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“his work would be better if his girlfriend lived here, because

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he wouldn’t be so focused on having an empty bedroom.”

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45:2-8.)

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people preferred, and referred to the fact that another employee,

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John Walker, was homosexual.

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86:3-12.)

Madsen also told another employee, Kyle, that

(Id. at

Madsen also liked to talk about what sexual positions

(Bolanos Decl. McCarthy Dep. at

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In late August or early September of 2007, plaintiffs

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separately complained to defendant’s Human Resources department

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about Madsen’s behavior, particularly about what they believed to

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be Madsen’s improper termination of Walker because of his

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sexuality.

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96:2; Waggoner Decl. McCarthy Dep. at 130:5-16, 131:4-24, 132:13-

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133:8, 134:16-135:7, 137:5-16, 138:24-139:12, 139:21-141:9,

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144:15-145:5, 146:20-148:9.)

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Duszynski from Human Resources held a meeting with all of the

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employees under Madsen’s supervision to discuss the problems with

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Madsen.

(Waggoner Decl. Schmitt Dep. at 91:9-92:3, 92:20-

On September 12, 2007, Renee

(Waggoner Decl. Schmitt Dep. at 60:1-21.)
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Many

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employees voiced concerns about Madsen.

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Bolanos Decl. McCarthy Dep. at 166:10-20.)

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(Id. at 60:1-67:17;

On October 15, 2007, defendant contends that Madsen was

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issued a “final written reprimand” for her conduct, the most

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severe form of written discipline short of termination.

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(Sullivan Decl. ¶ 6 (Docket No. 20).)

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not know that plaintiffs were the ones who complained about her

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conduct until much later. (Madsen Decl. ¶ 6 (Docket No. 16).)

Madsen claims that she did

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Starting in October of 2007, Madsen required plaintiffs

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to move boxes for two days and clean their storage units multiple

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times, tasks that were normally outsourced to third parties.

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(Bolanos Decl. McCarthy Dep. at 216:5-15, 229:8-230:7.)

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Beginning in September of 2007, Madsen changed Schmitt’s time

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cards to inaccurately reflect her sick leave, and denied many of

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plaintiffs’ reimbursement requests, something she had not

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previously done.

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190:12-191:6.)

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every day at 8:00 a.m. to learn if and where they were working

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and threatening to “pop into” their routes, something she did not

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do for other employees.

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perceived these calls as attempts to “scare” her.

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10.)

(Bolanos Decl. Schmitt Dep. at 86:23-87:5,
Madsen also started calling plaintiffs almost

(Id. at 87:6-10, 113:7-114:25.)

Schmitt

(Id. at 87:6-

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McCarthy testified that Madsen touched her

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inappropriately in October of 2007 by touching McCarthy’s leg

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with her hand for a “couple seconds” while the two were driving

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to lunch, and then touching her shoe against McCarthy’s pants

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under the table at lunch. (Waggoner Decl. McCarthy Dep. at

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184:14-192:11, 295:19-296:2, 291:10-20, Ex. 32.)
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McCarthy’s

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testimony regarding when she first reported the touching to

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defendant is contradictory: She alternately states that she first

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reported it in December of 2007 and July of 2008.

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Decl. McCarthy Dep. at 295:19-296:2, Ex. 32; Bolanos Decl.

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McCarthy Dep. at 199:15-21.)

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(Waggoner

Plaintiffs each took a leave of absence from mid-

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December to early January.

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2007, to January 7, 2008, and McCarthy took leave from December

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17, 2007, to January 8, 2008.

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Schmitt took leave from December 13,

(Garrison Decl. in Supp. of Def.’s

Mot. for Summ. J. (“Garrison Decl.”) ¶¶ 6-7 (Docket No. 17).)

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Starting on January 1, 2008, defendant underwent

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corporate reorganization and plaintiffs started reporting to

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Bryan Fedewa rather than Madsen.

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15); Madsen Decl. ¶ 20.)

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morning at 8:00 a.m., as Madsen had done.

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Dep. at 203:12-14.)

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reprimands to plaintiffs for violating management instructions6

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in November and December of 2007, when she was still their

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supervisor; she claims that she waited until mid-January to

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discipline them because they had been on leave.

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2, 8, 13-16, Exs. 3-5.)

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2008, review, Schmitt requested a lateral transfer to Colorado,

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which was denied because of the written reprimand she had

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received.

(Fedewa Decl. ¶ 2 (Docket No.

Fedewa began calling plaintiffs every
(Bolanos Decl. Schmitt

On January 18, 2008, Madsen issued written

(Madsen Decl. ¶¶

At some point after the January 18,

(Bolanos Decl. Schmitt Dep. at 169:4-11, 173:3-14.)

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Plaintiffs had failed to report their activities for
particular days, and had mostly spent those days “out of the
field,” working on their expense reports together. (Madsen Decl.
¶¶ 2, 8, 13-16, Exs. 3-5 (Docket No. 16).) Plaintiffs contend
that they were only following orders by working on their expense
reports. (Bolanos Decl. McCarthy Dep. at 299:21-301:11.)
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From February 15, 2008, to March 27, 2008, Schmitt took

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a second leave of absence.

(Garrison Decl. ¶ 6.)

On March 3,

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2008, she filed a complaint with the Equal Employment Opportunity

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Commission (“EEOC”).

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Waggoner Decl. Schmitt Dep. at 279:21-25, 282:23-25, 283:5-18,

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Ex. 79.)

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final leave of absence from June 5 to October 27, 2008.

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(Garrison Decl. ¶ 6.)

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resignation.

(Garrison Decl. ¶¶ 11-12, Exs. 10-11;

She returned to work for a few months and then took a

(Id.)

At that point, she tendered her
Schmitt states that she resigned because of

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Fedewa’s “retaliation, hostile attitude and militant managerial

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style.”

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228:12-229:22, 231:1-232:7, 512:5-13.)

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(Waggoner Decl. Schmitt Dep. Ex. 140; see also id. at

On February 12, 2008, McCarthy filed a complaint with

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the EEOC.

(Garrison Decl. ¶¶ 9-10, Exs. 6-9; Waggoner Decl.

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McCarthy Dep. at 271:1-14, 276:12-20, Ex. 28.)

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dispute whether Fedewa did an analysis of McCarthy’s work in

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March of 2008 and discovered that there were problems.

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Decl. ¶¶ 5-7, Ex. 1.)

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from March 24 to March 28 and April 18 to June 23 of 2008.

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(Garrison Decl. ¶ 7.)

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written reprimand from Fedewa relating to the problems that had

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been discovered in March, before her leaves of absence.

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Decl. ¶¶ 5-7, Ex. 1.)

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absence from June 27, 2008, to February 24, 2009, and filed a

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second EEOC complaint during her leave on September 9, 2008.

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(Garrison Decl. ¶¶ 7, 9-10, Exs. 6-9; Waggoner Decl. McCarthy

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Dep. at 271:1-14, 276:12-20.)

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February 24, 2009, when she did not return to work.

The parties

(Fedewa

McCarthy took two more leaves of absence,

On June 25, 2008, McCarthy received a

(Fedewa

McCarthy then took a final leave of

McCarthy was terminated on

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(Garrison

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Decl. ¶ 7.)

She contends that she is permanently disabled and is

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unable to work, and has been since April of 2008; she has been

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collecting Social Security disability benefits since that time.

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(Waggoner Decl. McCarthy Dep. at 537:14-22, 587:17-20, 609:7-17,

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616:10-19.)

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III.

Discussion

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Summary judgment is proper “if the movant shows that

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there is no genuine dispute as to any material fact and the

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movant is entitled to judgment as a matter of law.”

Fed. R. Civ.

10

P. 56(a).7

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of the suit, and a genuine issue is one that could permit a

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reasonable jury to enter a verdict in the non-moving party’s

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favor.

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(1986).

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burden of establishing the absence of a genuine issue of material

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fact and can satisfy this burden by presenting evidence that

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negates an essential element of the non-moving party’s case.

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Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

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Alternatively, the moving party can demonstrate that the

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non-moving party cannot produce evidence to support an essential

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element upon which it will bear the burden of proof at trial.

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Id.

A material fact is one that could affect the outcome

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
The party moving for summary judgment bears the initial

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Once the moving party meets its initial burden, the

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burden shifts to the non-moving party to “designate ‘specific

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facts showing that there is a genuine issue for trial.’”

Id. at

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Federal Rule of Civil Procedure 56 was revised and
rearranged effective December 1, 2010. However, as stated in the
Advisory Committee Notes to the 2010 Amendments to Rule 56,
“[t]he standard for granting summary judgment remains unchanged.”
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324 (quoting then-Fed. R. Civ. P. 56(e)).

To carry this burden,

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the non-moving party must “do more than simply show that there is

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some metaphysical doubt as to the material facts.”

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Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).

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“The mere existence of a scintilla of evidence . . . will be

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insufficient; there must be evidence on which the jury could

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reasonably find for the [non-moving party].”

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at 252.

Matsushita

Anderson, 477 U.S.

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In deciding a summary judgment motion, the court must

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view the evidence in the light most favorable to the non-moving

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party and draw all justifiable inferences in its favor.

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255.

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and the drawing of legitimate inferences from the facts are jury

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functions, not those of a judge . . . ruling on a motion for

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summary judgment . . . .”

Id. at

“Credibility determinations, the weighing of the evidence,

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Id.

Plaintiffs’ claims for Title VII retaliation and FEHA

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disability discrimination are subject to the McDonnell Douglas

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burden-shifting analysis used at summary judgment to determine

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whether there are triable issues of fact for resolution by a

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jury.

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(9th Cir. 1994) (retaliation); Guz v. Bechtel Nat’l Inc., 24 Cal.

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4th 317, 354 (2000) (discrimination); see McDonnell Douglas Corp.

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v. Green, 411 U.S. 792 (1973).

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Steiner v. Showboat Operating Co., 25 F.3d 1459, 1464-65

Under McDonnell Douglas,

a plaintiff must first establish a prima facie case of
discrimination [or other illegal conduct]. The burden
then shifts to the employer to articulate a legitimate,
nondiscriminatory reason for its employment action. If
the employer meets this burden, the presumption of
intentional discrimination [or other illegal conduct]
disappears, but the plaintiff can still prove disparate
treatment
by,
for
instance,
offering
evidence
demonstrating that the employer’s explanation is
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pretextual.

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Raytheon Co. v. Hernandez, 540 U.S. 44, 49 n.3 (2003) (internal

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citation omitted).

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A.

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Title VII Claims
Title VII of the Civil Rights Act of 1964 makes it “an

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unlawful employment practice for an employer . . . to

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discriminate against any individual with respect to his

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compensation, terms, conditions, or privileges of employment,

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because of such individual’s race, color, religion, sex, or

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national origin . . . .”

42 U.S.C. § 2000e-2(a) (1).

Plaintiffs

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have brought claims under Title VII for sexual harassment and

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retaliation.

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1.

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Under Title VII, to establish a claim for sexual

Sexual Harassment

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harassment, plaintiffs must show that they either were subjected

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to “quid-pro-quo harassment,” meaning that a supervisor

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conditioned employment benefits on sexual favors, or that they

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were subjected to harassment in the form of a hostile work

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environment.

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1054 (9th Cir. 2007) (discussing “two categories” of Title VII

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sexual harassment cases).

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quid-pro-quo,8 and, consequently, the court addresses only

See Craig v. M & O Agencies, Inc., 496 F.3d 1047,

The record contains no evidence of any

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Plaintiffs seem to argue that Madsen’s comments about
her employees’ relationships, while not conditioning employment
benefits on a sexual relationship with her, did condition
employment benefits on having or not having a sexual relationship
in general. Even if such conduct could constitute harassment,
there is no evidence to support this argument. Madsen appears to
have made conversational remarks about the correlation between
the quality of employees’ work and whether they were in a
relationship, but plaintiffs point to no evidence to indicate
that their employment benefits would change based on their
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2

whether plaintiffs were subjected to a hostile work environment.
To prevail on a hostile workplace claim under Title

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VII, a plaintiff must show: (1) that she was subjected to verbal

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or physical conduct of a harassing nature; (2) that the conduct

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was unwelcome; and (3) that the conduct was sufficiently severe

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or pervasive to alter the conditions of the plaintiff’s

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employment and create an abusive work environment.

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Cal. Youth Auth., 217 F.3d 1104, 1109-10 (9th Cir. 2000).

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harassment is actionable under Title VII to the extent that it

See Kortan v.
Sexual

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occurs “because of” the plaintiff’s sex.

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Offshore Servs., Inc., 523 U.S. 75, 79 (1998); Nichols v. Azteca

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Rest. Enters., Inc., 256 F.3d 864, 872 (9th Cir. 2001).

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Oncale v. Sundowner

“[A] sexually objectionable environment must be both

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objectively and subjectively offensive . . . .”

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of Boca Raton, 524 U.S. 775, 787 (1998).

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Faragher v. City

[T]o determine whether an environment is sufficiently
hostile or abusive to violate Title VII, [courts] look
“at all the circumstances, including the frequency of the
discriminatory conduct; its severity; whether it is
physically threatening or humiliating, or a mere
offensive utterance; and whether it unreasonably
interferes with an employee’s work performance.”

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Little v. Windermere Relocation, Inc., 301 F.3d 958, 966 (9th

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Cir. 2002) (quoting Clark Cnty. Sch. Dist. v. Breeden, 532 U.S.

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268, 270-71 (2001)).

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seriousness of the harassing conduct varies inversely with the

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pervasiveness or frequency of the conduct.”

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924 F.2d 872, 878 (9th Cir. 1991).

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comments, and isolated incidents (unless extremely serious) will

“[T]he required showing of severity or

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relationship status.
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Ellison v. Brady,

“[S]imple teasing, offhand

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not amount to discriminatory changes in the terms and conditions

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of employment.”

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marks and citation omitted); id. (noting Title VII is not a

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“general civility code,” but that its standards are designed to

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“filter out complaints attacking the ordinary tribulations of the

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workplace, such as the sporadic use of abusive language,

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gender-related jokes, and occasional teasing”) (internal

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quotation marks omitted).

9

Faragher, 524 U.S. at 788 (internal quotation

“[S]ex discrimination consisting of same-sex sexual

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harassment is actionable under Title VII . . . .”

Oncale, 523

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U.S. at 82.

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to prove that any harassment [that] took place [was] ‘because of

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sex.’”

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79).

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circumstances in which a court can infer that the alleged conduct

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of a purported harasser against someone of the harasser’s sex is

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“because of sex”: (1) when proposals to engage in sexual activity

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are made by the harasser and there is credible evidence that the

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harasser is homosexual; (2) when the victim is treated in a

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sex-specific manner which suggests hostility toward people of the

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victim’s sex; or (3) when men and women are treated differently

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by the harasser.9

To prevail on this claim, plaintiffs are “required

Nichols, 256 F.3d at 872 (quoting Oncale, 523 U.S. at
In Onacle, the United States Supreme Court described three

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Id. at 80-81.

The inappropriate comments by Madsen about whether

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employees should be sexually active could be seen by a jury to be

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dependent on plaintiffs being women or based on Madsen’s

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While the list in Oncale was not exhaustive, plaintiffs
do not suggest any other way in which Madsen’s conduct occurred
“because of” sex.
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hostility to women.

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have boyfriends if she wanted to get ahead, and informed McCarthy

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that Madsen’s success was due to her refusal to have sex with her

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husband.

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a boyfriend.

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that he was too focused on having an empty bedroom.

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also evidence that Madsen referred to McCarthy and Schmidt as

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“her girls,” whereas there is no evidence that she referred to

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any of the male employees as “her guys.”

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Madsen told McCarthy that she should not

Conversely, Madsen told Schmitt that she ought to have
Her remarks to Kyle, on the other hand, were simply
There is

While not particularly strong evidence that Madsen’s

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behavior was “because of” plaintiffs’ sex, plaintiffs may present

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this evidence to the jury to decide.

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appellate caselaw, this court cannot say that this conduct was

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not objectively severe or pervasive from “the reasonable woman’s

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perspective.”

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F.3d 958, 966 (9th Cir. 2002).

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defendant’s motion for summary judgment on plaintiffs’ claim for

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sexual harassment under Title VII.

Given the vagaries in the

See Little v. Windermere Relocation, Inc., 301
Accordingly, the court will deny

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2.

Retaliation

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To make out a prima facie case of retaliation in

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violation of Title VII, a plaintiff must show “(1) involvement in

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a protected activity, (2) an adverse employment action and (3) a

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casual link between the two.”

24

F.3d 917, 928 (9th Cir. 2000).

25

employee’s formal or informal complaint regarding unlawful

26

employment practices is “protected activity,” and a plaintiff

27

need only show that her belief that an unlawful employment

28

practice occurred was “reasonable.”

Brooks v. City of San Mateo, 229
As to the first element, an

14

See Passantino v. Johnson &

1

Johnson Consumer Prods., Inc., 212 F.3d 493, 506 (9th Cir. 2000);

2

Moyo v. Gomez, 40 F.3d 982, 985 (9th Cir. 1994).

3

second element, for purposes of a retaliation claim, a challenged

4

action must be “materially adverse,” which means that it would

5

dissuade a reasonable worker from exercising protected rights.

6

See Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68

7

(2006).

8

causal link between the protected activity and the adverse action

9

by circumstantial evidence, including the employer’s knowledge of

As to the

As to the third element, a plaintiff may establish a

10

the protected activity and a proximity in time between the

11

protected action and the adverse employment act.

12

Clark, 847 F.2d 1368, 1376 (9th Cir. 1988); see Passantino, 212

13

F.3d at 507 (“[W]hen adverse decisions are taken within a

14

reasonable period of time after complaints of discrimination have

15

been made, retaliatory intent may be inferred.”).

16

Jordan v.

It is undisputed that plaintiffs complained to Human

17

Resources about Madsen in late August or early September of 2007.

18

Plaintiffs complained about Madsen’s treatment of Walker and

19

about her treatment of other employees, believing that they were

20

experiencing a hostile work environment.

21

complaint with the EEOC on March 3, 2008, and McCarthy filed

22

complaints with the EEOC on February 12, 2008, and September 9,

23

2008.

24

F.3d at 985.

25

Schmitt filed a

These complaints were protected activities.

See Moyo, 40

Plaintiffs argue that actions taken by Madsen and

26

Fedewa after their initial complaints to Human Resources were

27

sufficiently “materially adverse” to constitute retaliation.

28
15

1

After plaintiffs first complained about Madsen’s behavior,10 they

2

received negative reviews from Madsen and Fedewa, Schmitt

3

requested a transfer that was denied because of her negative

4

review, and McCarthy did not receive a promotion she was

5

expecting.

6

other employees by requiring them to move boxes and clean their

7

storage lockers, denying their reimbursement requests, and

8

changing plaintiffs’ time cards to use some of their sick days.

9

Madsen and Fedewa called plaintiffs nearly every morning at 8:00

10

a.m. in a manner that was perceived as threatening.11

11
12

Madsen began treating plaintiffs differently from

Denial of a transfer or promotion could certainly
dissuade a reasonable worker from engaging in a protected

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

10
Although Madsen states in a declaration that she did
not know that plaintiffs were the ones who complained, and
plaintiffs have presented no admissible evidence to the contrary,
the fact that Madsen began treating plaintiffs differently after
they complained creates a genuine issue of fact as to whether she
suspected that plaintiffs had complained and retaliated on that
basis. See Price v. Thompson, 380 F.3d 209, 212-13 (4th Cir.
2004) (“[A] reasonable factfinder could elect not to credit fully
the testimony supportive of [the hiring official] in favor of the
circumstantial evidence tending to show that [the hiring
official] knew or strongly suspected that [the plaintiff] was the
complainant.”); Hernandez v. Spacelabs Med. Inc., 343 F.3d 1107,
1113 (9th Cir. 2003) (plaintiff “provided sufficient evidence
from which a reasonable jury could infer both that [the
supervisor] either knew or suspected that [plaintiff] had
reported the alleged harassment to [the human resources manager],
and that there was a causal connection between this knowledge or
suspicion and [plaintiff’s] termination.”). Taking the facts in
the light most favorable to the non-moving party, the court will
assume for purposes of this motion that Madsen at least suspected
plaintiffs’ protected activities.
11

Plaintiffs also provide evidence not mentioned in the
Complaint that Madsen “hit” Schmitt. This evidence is presented
in McCarthy’s deposition testimony; Schmitt does not mention the
incident. (Bolanos Decl. Ex. A (“McCarthy Dep.”) at 67:2-9,
72:13-19 (Docket No. 33).) This incident allegedly took place in
July of 2007, before any protected activities took place upon
which a claim of retaliation could be based.
16

1

activity.

See Brooks, 229 F.3d at 928 (“Among those employment

2

decisions that can constitute an adverse employment action are

3

termination, dissemination of a negative employment reference,

4

issuance of an undeserved negative performance review and refusal

5

to consider for promotion.”).

6

by Madsen and Fedewa during plaintiffs’ employment might be

7

insufficient on their own to meet the “materially adverse”

8

standard, taken together, they too could dissuade a reasonable

9

worker from filing a complaint under the Burlington standard.

While the other actions committed

10

Because the allegedly retaliatory actions began occurring shortly

11

after plaintiffs first complained to Human Resources, plaintiffs

12

have stated a prima facie case of retaliation for the challenged

13

actions taken during their employment.12

14

Defendant then faces the burden of demonstrating a non-

15

retaliatory reason for its actions.

See Steiner, 25 F.3d at

16

1464-65.

17

for plaintiffs’ actions in failing to report time out of the

18

field, and thus Schmitt’s transfer was also justly denied.

19

McCarthy’s promotion, defendant argues that McCarthy was not

20

entitled to receive a promotion.

21

list,” not everyone on the succession list could or would receive

22

a promotion.

23

calling plaintiffs every morning and making them perform tasks

24

outside their normal duties, could not be considered adverse

25

employment actions.

It argues that the negative reviews were justly given

As to

While she was on a “succession

Defendant argues that the other actions, such as

26
27
28

12

Because the court finds that plaintiffs have stated a
prima facie claim for retaliation, it does not consider whether
McCarthy’s termination and Schmitt’s resignation would also
constitute retaliation.
17

1

Plaintiffs have sufficiently demonstrated, for purposes

2

of this motion, that defendant’s proffered reasons for the

3

adverse employment actions are pretextual.

4

given are plausible when considered individually, taking all of

5

Madsen and Fedewa’s actions together, there is a question of fact

6

as to whether the actions were retaliatory.

7

treatment that employees who did not engage in protected

8

activities did not face.

9

McCarthy that if McCarthy had remained “her girl[,] this wouldn’t

While the reasons

Plaintiffs faced

In October of 2007, Madsen said to

10

have happened,” which McCarthy took to mean that she would not

11

receive a promotion.

12

This evidence of retaliatory motivation, combined with the

13

numerous burdens placed on plaintiffs immediately after their

14

protected activities, presents a genuine issue of material fact

15

for trial.

16

(Bolanos Decl. McCarthy Dep. at 192:12-15.)

Accordingly, the court will deny defendant’s motion for

17

summary judgment on plaintiffs’ claim of retaliation under Title

18

VII.

19
20

B.

FEHA Disability Discrimination Claim
FEHA makes it an “unlawful employment practice . . .

21

[f]or an employer, because of the . . . physical disability [or]

22

mental disability . . . of any person, . . . to bar or to

23

discharge the person from employment . . . or to discriminate

24

against the person in compensation or in terms, conditions, or

25

privileges of employment.”

26

establish a prima facie case of disability discrimination, a

27

plaintiff must show that: (1) she suffered from a disability; (2)

28

could perform the essential duties of the job with or without

Cal. Gov’t Code § 12940(a).

18

To

1

reasonable accommodations, i.e., she was a “qualified

2

individual”; and (3) was subjected to an adverse employment

3

action because of the disability.

4

4th 228, 236 (2d Dist. 1997); see also Green v. State of Cal., 42

5

Cal. 4th 254, 262 (2007) (a plaintiff bears the burden as part of

6

a prima facie case to show he could perform “essential job

7

duties” with or without accommodation).

8
9

Brundage v. Hahn, 57 Cal. App.

Similarly, FEHA proscribes an employer from “fail[ing]
to make reasonable accommodation for the known physical or mental

10

disability of an . . . employee.”

11

“The elements of a failure to accommodate claim are (1) the

12

plaintiff has a disability under FEHA, (2) the plaintiff is

13

qualified to perform the essential functions of the position, and

14

(3) the employer failed to reasonably accommodate the plaintiff’s

15

disability.”

16

Cal. App. 4th 986, 1009-10 (4th Dist. 2009).

17

accommodation is “a modification or adjustment to the workplace

18

that enables the employee to perform the essential functions of

19

the job held or desired.”

20

Inc., 166 Cal. App. 4th 952, 974 (1st Dist. 2008).

21

Cal. Gov. Code § 12940(m).

Scotch v. Art Inst. of Cal.-Orange Cnty., Inc., 173
A reasonable

Nadaf-Rahrov v. Neiman Marcus Grp.,

A plaintiff who seeks to bring a FEHA action must first

22

exhaust her administrative remedies.

Romano v. Rockwell Int’l

23

Inc., 14 Cal. 4th 479, 492 (1996).

24

administrative remedies, a plaintiff must file a complaint with

25

the Department of Fair Employment and Housing (“DFEH”) within one

26

year from the date on which the alleged unlawful conduct

27

occurred.

28

issue a right-to-sue notice upon completion of its investigation

In order to exhaust

Cal. Gov’t Code § 12960(b), (d).

19

The DFEH will then

1

of the complaint and not later than one year after the initial

2

filing of the complaint.

3

ordinarily obtain a right-to-sue letter to bring a FEHA claim in

4

court.

5

remedies, an employee must file a complaint with DFEH and receive

6

a DFEH right-to-sue notice.)

Id. § 12965(b).

A plaintiff must

Romano, 14 Cal. 4th at 492 (to exhaust administrative

7

Plaintiffs admit that they did not actually file

8

complaints with the DFEH; instead, they argue that they

9

constructively did so by filing a charge of discrimination with

10

the EEOC.

11

The EEOC is authorized to enter into written agreements

12

with “State and local agencies charged with the administration of

13

State fair employment practices laws” regarding the processing of

14

discrimination claims.

15

The EEOC has formed such an agreement with the DFEH.

16

Dep’t of Water & Power, 58 Cal. App. 4th 1093, 1097 (2d Dist.

17

1997) (“The EEOC and the DFEH [have] each designated the other as

18

its agent for receiving charges and agreed to forward to the

19

other agency copies of all charges potentially covered by the

20

other agency’s statute.”); Surrell v. Cal. Water Serv. Co., 518

21

F.3d 1097, 1104 (9th Cir. 2008) (charge filed with DFEH deemed

22

filed with EEOC pursuant to a work-sharing agreement between the

23

two entities).

24

EEOC, which should have been shared with the DFEH, the court

25

finds that plaintiffs’ FEHA claims do not fail for failure to

42 U.S.C. §§ 2000e-4(g)(1), 2000e-8(b).
Downs v.

Because plaintiffs filed complaints with the

26
27
28
20

1

file complaints with the DFEH.13

2

C 09-5237, 2010 WL 3119200, at *3 (N.D. Cal. Aug. 3, 2010)

3

(holding that the filing of a plaintiff’s EEOC complaint is

4

deemed to be a filing with the DFEH).

5

Area Air Quality Mgmt. Dist., No. C08-3630, 2010 WL 147953, at *1

6

(N.D. Cal. Jan. 12, 2010) (granting the defendant’s summary

7

judgment motion on FEHA claim because the plaintiff failed to

8

obtain right-to-sue letter from DFEH).

9

See Reed v. UBS Sec., LLC, No.

But see Gordon v. The Bay

Even if her EEOC claim is deemed a DFEH claim, Schmitt

10

only filed a claim with the EEOC for sex discrimination; she

11

never alleged disability discrimination.

12

Dep. Ex. 79.)

13

discrimination in court.

14

Operations Co., 36 Cal. App. 4th 1607, 1617 (6th Dist. 1995)

15

(holding that employee who had only filed complaint about

16

discrimination and harassment with DFEH could not bring suit

17

against employer for retaliation without having amended his DFEH

18

complaint to include retaliation).

19

properly bring a claim for disability discrimination, she has

20

provided no evidence suggesting that she even has a disability,

21

much less that she was subject to an adverse employment action

22

because of a disability.

23

claim for disability discrimination.

24

(Waggoner Decl. Schmitt

Thus, she cannot now bring a claim for disability
See Okoli v. Lockheed Technical

Even if Schmitt could

Thus, she fails to state a prima facie

It appears that McCarthy filed a claim for disability

25
26
27
28

13
Even if the complaints are deemed to be filed with the
DFEH, plaintiffs might still need to obtain right-to-sue letters
from the DFEH. See Reed v. UBS Sec., LLC, No. C 09-5237, 2010 WL
3119200, at *3 (N.D. Cal. Aug. 3, 2010). However, because the
court finds that plaintiffs’ claims for disability discrimination
fail, it need not decide that question.

21

1

discrimination with the EEOC, so the court will consider the

2

merits of her disability discrimination claim.

3

does not argue that McCarthy did not have a disability, the court

4

will assume that she did.

5

the second and third elements of a prima facie case of disability

6

discrimination: that she could perform the essential duties of

7

the job with or without reasonable accommodations, and that she

8

was subjected to an adverse employment action because of her

9

disability.

Since defendant

However, McCarthy has not satisfied

See Brundage, 57 Cal. App. 4th at 236.

10

California’s proscription against disability

11

discrimination applies only to “those employees with a disability

12

who can perform the essential duties of the employment position

13

with reasonable accommodation.”

14

see Cal. Gov’t Code § 12940(a)(1).

15

establish that a defendant employer has discriminated on the

16

basis of disability in violation of the FEHA, the plaintiff

17

employee bears the burden of proving he or she was able to do the

18

job, with or without reasonable accommodation.”

19

4th at 262.

20

Green, 42 Cal. 4th at 264;
“Therefore, in order to

Green, 42 Cal.

McCarthy admitted that she is unable to work and was

21

terminated because she failed to return to work.

22

began collecting Social Security disability benefits before her

23

termination, while she was on leave.

24

accommodation would allow her to perform the essential elements

25

of her job; thus, she was not a “qualified individual.”

26

Employers need not retain an employee on the payroll on an

27

indefinite leave of absence when that employee is unable to work.

28

See Hanson v. Lucky Stores, Inc., 74 Cal. App. 4th 215, 226 (2d
22

Indeed, she

It is clear that no

1

Dist. 1999) (“[A] finite leave can be a reasonable accommodation

2

under FEHA, provided it is likely that at the end of the leave,

3

the employee would be able to perform his or her duties.”).

4

McCarthy’s termination had to do with the fact that she could no

5

longer work; she has provided no evidence that defendant

6

discriminated against her in any way because of her disability.

7

McCarthy’s allegation that defendant failed to

8

accommodate her disability similarly fails.

McCarthy was given

9

several accommodations for her disability in the form of leaves

10

of absence.

She provides no evidence that she asked for any

11

other accommodations or that other accommodations would have

12

allowed her to perform her job.

13

that defendant failed to accommodate her disability.

14

v. Cont’l Airlines, Inc., 165 Cal. App. 4th 1237, 1252 (2d Dist.

15

2008) (to show failure to accommodate, the employee must have

16

requested an accommodation).

Thus, she has failed to show
See Avila

17

Accordingly, plaintiffs’ claim of disability

18

discrimination under FEHA fails as a matter of law and the court

19

will grant defendant’s motion for summary judgment on that claim.

20

C.

Tortious Adverse Employment Action in Violation of

21

Public Policy Claim

22

To establish a tort claim for wrongful termination or

23

other adverse employment actions in violation of public policy, a

24

plaintiff must establish (1) an employer-employee relationship;

25

(2) termination or other adverse employment action; (3) the

26

termination or adverse action was a violation of public policy;

27

(4) the termination or adverse action was a legal cause of

28

plaintiff’s damages; and (5) the nature and extent of the
23

1

damages.

2

1418, 1426 n.8 (4th Dist. 1993).

3

his dismissal violated a policy that is (1) fundamental, (2)

4

beneficial for the public, and (3) embodied in a statute or

5

constitutional provision.”

6

Cal. 4th 1238, 1256 (1994) (footnotes omitted).

7

Holmes v. General Dynamics Corp., 17 Cal. App. 4th
A plaintiff “must prove that

Turner v. Anheuser-Busch, Inc., 7

Plaintiffs’ claim for wrongful termination and other

8

adverse employment actions in violation of public policy is

9

derivative of their statutory claims.

See Sanders v. Arneson

10

Prods., Inc., 91 F.3d 1351, 1354 (9th Cir. 1996) (citing Jennings

11

v. Marralle, 8 Cal. 4th 121, 135-36 (1994)) (no public policy

12

claim against employers who have not violated the law).

13

plaintiffs’ claim for Title VII retaliation survives summary

14

judgment, so too does their public policy claim.14

15

v. St. Mary Regional Med. Ctr., 96 Cal. App. 4th 218, 234 (4th

16

Dist. 2002) (“[F]ederal law, and in particular, Title VII, may

17

supply an alternative public policy basis for a wrongful

18

termination claim.”).

19

Because

See Phillips

IT IS THEREFORE ORDERED that defendant’s motion for

20

summary judgment be, and the same hereby is, GRANTED as to

21

plaintiffs’ claim for disability discrimination under FEHA, and

22

DENIED as to plaintiffs’ claims for sexual harassment and

23
24
25
26
27
28

14

Plaintiffs also argue that California Labor Code
section 1102.5(c), which prohibits employers from “retaliat[ing]
against an employee for refusing to participate in an activity
that would result in a violation of state or federal statute, or
a violation or noncompliance with a state or federal rule or
regulation,” provides an independent basis for showing a public
policy violation. However, plaintiffs have not alleged nor do
they provide any evidence to support a finding that any such
violation occurred.
24

1

retaliation under Title VII and tortious adverse employment

2

action in violation of public policy.

3

DATED:

May 3, 2011

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