Myers v. California Check Cashing Stores, LLC

Filing 64

MEMORANDUM OPINION AND ORDER signed by Magistrate Judge Craig M. Kellison on 3/13/2018 ORDERING 28 that Defendant's motion for summary judgment is GRANTED as to all claims; Plaintiff's 60 motion to modify the scheduling order is DENIED as MOOT; the Clerk of the Court is directed to enter judgment in favor of defendant and close this file. CASE CLOSED (Reader, L)

1
2
3
4
5
6
7
8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

FAIUPU MYERS,

12
13
14

No. 2:13-CV-2209-CMK

Plaintiff,
vs.

MEMORANDUM OPINION AND ORDER

CHECK SMART FINANCIAL, LLC,

15

Defendant.

16

/

17

Plaintiff, who is represented by retained counsel, brings this civil action for

18

workplace discrimination.1 Pursuant to the written consent of all parties, this case is before the

19

undersigned as the presiding judge for all purposes, including entry of final judgment. See 28

20

U.S.C. § 636(c). Following the Ninth Circuit Court of Appeals’ July 3, 2017, memorandum

21

opinion concluding that plaintiff’s claims are timely and exhausted, the matter is before the court

22

on the remainder of defendant’s motion for summary judgment (Doc. 28). The parties appeared

23

before the undersigned on January 10, 2018, at 10:00 a.m., and following oral argument the

24

matter was submitted.

25
1

26

The action was removed to this court from the Butte County Superior Court based
on diversity. See 28 U.S.C. § 1441(b).
1

1

I. BACKGROUND

2
3

This action proceeds on plaintiff’s first amended complaint (Doc. 13) against
defendant Checksmart Financial, LLC. Plaintiff asserts the following claims:

4

Claim 1

Wrongful Termination in Violation of Public Policy

5

Claim 2

Breach of Implied Covenant of Good Faith and Fair Dealing

6

Claim 3

Intentional Infliction of Emotional Distress

7

Claim 4

Disability Discrimination in Violation of California Government
Code § 12940.

8
9

Plaintiff’s claims were initially filed in state court and later removed by defendant under this

10

court’s diversity jurisdiction (plaintiff is a California resident and defendant is a Delaware

11

corporation).

12

A.

Plaintiff’s Factual Allegations

13

Plaintiff states that she began working for defendant on March 16, 2007, as a

14

teller/cashier at defendant’s Butte County location. Plaintiff states that her employment was

15

pursuant to an “oral employment contract” and that, at all relevant times, she performed her

16

duties and obligations under that agreement. Plaintiff alleges that she was terminated on April 3,

17

2012 because of her pregnancy. According to plaintiff, her termination violates public policy as

18

well as California law.

19

B.

The Parties’ Evidence

20

According to defendant, the following facts are undisputed:

21

1.

Plaintiff was employed as a teller/cashier in 2007.

22

2.

Plaintiff was an “at-will” employee of defendant and plaintiff’s wage
statements and W-2s identified defendant as her employer.

3.

Plaintiff received defendant’s employee handbook which stated that
defendant would “consider requests for reasonable accommodations for
disabling conditions related to pregnancy, childbirth, or related medical
conditions if requested” and that the employee “must provide a
certification from her medical provider setting forth her medical
restrictions which includes the dates . . . the restrictions will be in place.”

23
24
25
26

2

1

4.

At all relevant times, defendant maintained an attendance policy providing
that employees who fail to call in and report for work will be considered to
have abandoned their employment.

5.

In early 2012, while an employee of defendant, plaintiff requested leave
related to her pregnancy and anticipated childbirth.

6.

Plaintiff failed to include the required medical certification with her
request.

7.

Defendant sent plaintiff a letter on February 17, 2012, asking plaintiff to
submit a medical certification by March 12, 2012, warning plaintiff that
the failure to provide the medical certification could result in denial of the
requested leave.

8.

Defendant sent plaintiff a second letter on March 13, 2012, informing
plaintiff that her request for leave had been denied because she did not
provide the medical certification, but that the denial could be reconsidered
if plaintiff provided the medical certification by March 26, 2012, after
which time plaintiff’s request for leave would be considered withdrawn.

9.

Defendant sent plaintiff a third letter on March 28, 2012, making a final
request for the medical certification and informing plaintiff that the
certification is “necessary to approve your leave of absence and secure
your position with the company.”

10.

On April 4, 2012, defendant informed plaintiff that her by-then prolonged
absence from work was considered unexcused due to her failure to provide
the medical certification supporting her leave request, and that her
employment had been terminated pursuant to defendant’s attendance
policy.

11.

On April 4, 2012, defendant also informed plaintiff that she could reapply
for her position.

12.

Plaintiff reapplied but was considered ineligible for re-hire because she
refused to repay a debt she owed defendant.

2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20

Defendant’s statement of undisputed facts is based on the declaration of Pagle Helterbrand,

21

defendant’s Vice President for Human Resources, and exhibits thereto, as well as testimony from

22

plaintiff’s August 5, 2014, deposition. Relevant exhibits from plaintiff’s deposition include the

23

following:

24

Exhibit 4

Acknowledgment of receipt of employee handbook signed by
plaintiff on June 6, 2011.

Exhibit 7

February 17, 2012, letter to plaintiff from Ashley Rymer,
defendant’s Benefits Administrator, instructing plaintiff to return a

25
26

3

1

completed Certification of Health Care Provider form by March
12, 2012. The letter cautioned: “Failure to provide certification
may result in denial of continuation of leave.”

2
3

Exhibit 10

March 13, 2012, letter to plaintiff from Ashley Rymer regarding
non-receipt of a completed Certification of Health Care Provider
form. Plaintiff was advised that her leave had been denied and that
“the company absence policies will apply for any days you have or
will miss.” Plaintiff was also advised that her leave request could
be re-opened if she returned the completed Certification of Health
Care Provider form by March 26, 2012. Plaintiff was informed
that failure to comply with this deadline would be construed as
withdrawal of her leave request.

Exhibit 11

March 28, 2012, letter to plaintiff from Ashley Rymer, sent via
Federal Express delivery, regarding the absent Certification of
Health Care Provider form. Plaintiff was given one final deadline
of April 2, 2012, to return the completed form. Plaintiff was again
cautioned that “[t]he company’s attendance policy will be applied
to your absences.”

4
5
6
7
8
9
10
11
12

According to plaintiff, the following facts are undisputed:

13

1.

Plaintiff’s last day at work before her pregnancy leave was January 20,
2012.

2.

Plaintiff provided her employer the “form for disability benefits” on
January 25, 2012.

3.

“After her hospital visit on January 20, 2012” plaintiff provided her
employer “papers from the emergency room and a doctor’s note confining
Plaintiff to bedrest.”

18

4.

Plaintiff gave birth on March 4, 2012.

19

5.

On April 4, 2012, plaintiff contacted her employer and was told she was
terminated.

6.

Plaintiff was told she could be re-hired if she paid $400 she owed on the
company credit card.

14
15
16
17

20
21
22

According to plaintiff, the following facts are in dispute:

23

1.

Plaintiff disputes defendant’s contention that, on February 17, 2012,
defendant sent her a letter asking plaintiff to return a completed medical
certification by March 12, 2012.

2.

Plaintiff disputes defendant’s contention that she did not return a
completed medical certification.

24
25
26

4

1

3.

Plaintiff disputes defendant’s contention that, on March 13, 2012,
defendant sent her a letter stating her request for leave had been denied for
failure to submit the completed medical certification and that her leave
request could be reconsidered if she submitted the completed medical
certification.

4.

Plaintiff disputes defendant’s contention that plaintiff failed to comply
with the March 13, 2012, letter.

5.

Plaintiff disputes defendant’s contention that defendant sent plaintiff a
letter by Federal Express delivery on March 28, 2012, once again
requesting the medical certification necessary to approve her leave request.

6.

Plaintiff disputes defendant’s contention that plaintiff failed to comply
with the March 28, 2012, letter.

2
3
4
5
6
7
8
9

As to each of these disputed facts, plaintiff states: “Plaintiff gave Defendant the notes from the
10
emergency room and a doctor’s note on January 20, 2012, taking Plaintiff off work until after
11
Plaintiff delivered her baby.” Plaintiff’s statements of undisputed and disputed facts are based on
12
her declaration filed in opposition to summary judgment. Plaintiff has not provided the court
13
with copies of the emergency room notes or doctor’s note referenced in her declaration.
14
15
II. STANDARDS FOR SUMMARY JUDGMENT
16
The Federal Rules of Civil Procedure provide for summary judgment or summary
17
adjudication when “the pleadings, depositions, answers to interrogatories, and admissions on file,
18
together with affidavits, if any, show that there is no genuine issue as to any material fact and that
19
the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(a). The
20
standard for summary judgment and summary adjudication is the same. See Fed. R. Civ. P.
21
56(a), 56(c); see also Mora v. ChemTronics, 16 F. Supp. 2d. 1192, 1200 (S.D. Cal. 1998). One
22
of the principal purposes of Rule 56 is to dispose of factually unsupported claims or defenses.
23
See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Under summary judgment practice, the
24
moving party
25
26

. . . always bears the initial responsibility of informing the district court of
the basis for its motion, and identifying those portions of “the pleadings,
5

1
2
3

depositions, answers to interrogatories, and admissions on file, together
with the affidavits, if any,” which it believes demonstrate the absence of a
genuine issue of material fact.
Id., at 323 (quoting former Fed. R. Civ. P. 56(c)); see also Fed. R. Civ. P.
56(c)(1).

4
5

If the moving party meets its initial responsibility, the burden then shifts to the

6

opposing party to establish that a genuine issue as to any material fact actually does exist. See

7

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

8

establish the existence of this factual dispute, the opposing party may not rely upon the

9

allegations or denials of its pleadings but is required to tender evidence of specific facts in the

10

form of affidavits, and/or admissible discovery material, in support of its contention that the

11

dispute exists. See Fed. R. Civ. P. 56(c)(1); see also Matsushita, 475 U.S. at 586 n.11. The

12

opposing party must demonstrate that the fact in contention is material, i.e., a fact that might

13

affect the outcome of the suit under the governing law, Anderson v. Liberty Lobby, Inc., 477 U.S.

14

242, 248 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630

15

(9th Cir. 1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury

16

could return a verdict for the nonmoving party, Wool v. Tandem Computers, Inc., 818 F.2d 1433,

17

1436 (9th Cir. 1987). To demonstrate that an issue is genuine, the opposing party “must do more

18

than simply show that there is some metaphysical doubt as to the material facts . . . . Where the

19

record taken as a whole could not lead a rational trier of fact to find for the non-moving party,

20

there is no ‘genuine issue for trial.’” Matsushita, 475 U.S. at 587 (citation omitted). It is

21

sufficient that “the claimed factual dispute be shown to require a trier of fact to resolve the

22

parties’ differing versions of the truth at trial.” T.W. Elec. Serv., 809 F.2d at 631.

23

In resolving the summary judgment motion, the court examines the pleadings,

24

depositions, answers to interrogatories, and admissions on file, together with the affidavits, if

25

any. See Fed. R. Civ. P. 56(c). The evidence of the opposing party is to be believed, see

26

Anderson, 477 U.S. at 255, and all reasonable inferences that may be drawn from the facts placed
6

1

before the court must be drawn in favor of the opposing party, see Matsushita, 475 U.S. at 587.

2

Nevertheless, inferences are not drawn out of the air, and it is the opposing party’s obligation to

3

produce a factual predicate from which the inference may be drawn. See Richards v. Nielsen

4

Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff’d, 810 F.2d 898, 902 (9th Cir.

5

1987). Ultimately, “[b]efore the evidence is left to the jury, there is a preliminary question for

6

the judge, not whether there is literally no evidence, but whether there is any upon which a jury

7

could properly proceed to find a verdict for the party producing it, upon whom the onus of proof

8

is imposed.” Anderson, 477 U.S. at 251.

9
10
11

III. DISCUSSION
Defendant argues that summary judgment in its favor is appropriate because

12

plaintiff’s termination was based on a legitimate non-discriminatory reason. See Guz v. Bechtel

13

National, Inc., 24 Cal. 4th 317 (2000); Green v. State of California, 42 Cal. 4th 254 (2007).

14

Specifically, defendant argues that plaintiff failed to provide information necessary to excuse her

15

absences and that she was fired under the company’s attendance policy.

16

When the plaintiff in an employment discrimination case makes a prima facie case

17

of discrimination, the burden shifts to the employer to produce evidence that its action was taken

18

for a legitimate non-discriminatory reason. See Guz, 24 Cal. 4th at 354-56. If the employer

19

meets this burden, the burden shifts once again back to the plaintiff to show that the employer’s

20

reason was pretext for discrimination. See Horn v. Cushman & Wakefield Western, Inc., 72 Cal.

21

App. 4th 798, 807 (1999); see also Guz, 24 Cal. 4th at 360. The plaintiff meets this burden with

22

evidence that shows weaknesses, implausibilities, inconsistencies, or contradictions in the

23

employer’s explanation for its action. See Morgan v. Regents of the University of California, 88

24

Cal. App. 4th 52, 72 (2000); see also Dep’t of Fair Employment and Housing v. Lucent

25

Technologies, 642 F.3d 728, 746 (9th Cir. 2011) (citing Morgan). Where evidence of pretext is

26

circumstantial and not direct, the plaintiff must provide specific and substantial facts to create a
7

1

triable issue of pretext. See Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1222 (9th Cir. 1998).

2

California law permits employers to require written medical certification as a

3

condition to granting pregnancy leave. See 2 Cal. Code Reg. § 11050(b); see also Cal. Code

4

Reg. § 11050(c)(1). In this case, plaintiff does not deny that she failed to provide the

5

Certification of Health Care Provider form completed by her doctor, despite numerous letters

6

from defendant. According to defendant, plaintiff’s request for pregnancy leave was denied for

7

this reason and she was terminated based on unexcused absences. Defendant has rebutted any

8

presumption of discrimination by providing evidence of a legitimate non-discriminatory reason –

9

in this case violation of defendant’s attendance policy – for plaintiff’s termination. The burden

10

shifts to plaintiff to provide evidence of pretext.

11

In opposition to defendant’s motion, plaintiff contends:

12

Here in Myers, the Defendants do not make a claim that it did not
know of Plaintiff’s pregnancy nor that it did not receive any medical
documents from the Plaintiff. It simply is complaining that the Plaintiff
did not comply with the Defendants own requirements for documentation.

13
14
15
16
17
18

Plaintiff argues:
Since there is a claim by the Defendants that the Plaintiff provided
them with inadequate paperwork and a claim by the Plaintiff that she
provided paperwork consistent with previous pregnancies in which she
complied with her employer’s requirements by giving them a note from
her doctor and medical reports was sufficient she has presented an issue of
fact for a trier of fact.

19
20

Plaintiff’s argument is not supported by admissible evidence. Plaintiff has not

21

provided the court with copies of the doctor’s note or medical report she claims she provided to

22

defendant on January 25, 2012, following her hospital stay on January 20, 2012, nor has plaintiff

23

submitted any evidence of “paperwork consistent with previous pregnancies” submitted in

24

compliance with defendant’s requirements. In fact, there is no evidence that plaintiff was

25

employed by defendant during any prior pregnancy. Plaintiff has simply provided no admissible

26

evidence to undermine defendant’s evidence showing that plaintiff was terminated for unexcused
8

1

absences.

2

Plaintiff cites to portions of her deposition as evidence that defendant knew about

3

her doctor’s requirement of bedrest and, by implication, her termination for failure to provide the

4

requested Certification of Health Care Provider form was a pretext. Specifically, she cites the

5

following testimony:

6
7

Q.
Okay. Did you give any of it, the ER note or the doctor’s
note that you receive on that Monday [January 20, 2012], did you give
either of those to Veronica?

8

A.

Yes.

9

Q.

Okay. Which ones did you give to her?

10

A.
Both, the one from the emergency and then the one from
the doctor’s note.

11
Q.

And what did the doctor’s note say?

A.

Releasing me for bedrest.

Q.

And do you recall for how long?

A.

Until after I had the baby.

12
13
14
15
***
16
17
18
19

Q.
Okay. And when – and you gave that note, the light duty
note, to Veronica?
A.

Yes.

Q.
Okay. And did you have any discussions with Veronica
about that doctor’s release?

20
21

A.
She said that she was going to turn it in showing that I’m
released from the doctor to come back to work and she’ll give me a call.

22

This evidence is inadmissable hearsay to the extent plaintiff is offering her testimony as to the

23

contents of the emergency room notes, doctor’s note, or statements made by Veronica. See Fed.

24

Rules of Evid. 801(c), 802. Plaintiff has offered no admissible evidence that she ever provided

25

any medical information or notes to defendant, nor has she provided any admissible evidence of

26

the contents of such medical information or notes.
9

1

At the hearing, plaintiff’s counsel cited Cornell v. Berkeley Tennis Club, DJ DAR

2

12149 (2017), in support of her position that there is a triable issue of fact as to whether

3

defendant’s reason for terminating plaintiff was pretext. The California Court of Appeal,

4

however, did not reach the issue of pretext in Cornell. Instead, the court concluded that the

5

defendant had failed to meet its summary judgment burden of showing a complete lack of proof

6

of one of the elements of plaintiff’s prima facie case. The defendant in this case has made no

7

such argument.

8
9

Plaintiff’s counsel also cited Moore v. Regents of the University of California, DJ
DAR 5990 (2016), in support of her position that her declaration alone is sufficient to defeat

10

defendant’s motion for summary judgment. In Moore, the California Court of Appeal held that

11

the trial court erred in granting summary judgment because the plaintiff had offered evidence that

12

the employer’s reason for terminating her may have been pretext for discrimination based on

13

disability. Specifically, the plaintiff presented evidence that the employer’s reason for

14

terminating her – corporate restructuring – may have been untrue, that her employer did not

15

believe that she could perform her job duties, that her employer considered the plaintiff to have

16

“adverse” health problems, that her employer felt the plaintiff was “a liability,” and that her

17

employer failed to comply with its own policies and procedures. Moore stands in stark contrast

18

to the instant case in which plaintiff has presented no admissible evidence whatsoever to support

19

her position that defendant’s reason for terminating her – specifically, plaintiff’s failure to submit

20

required paperwork concerning a medical need for a leave of absence – was pretext for

21

discrimination.

22
23

IV. CONCLUSION

24

Based on the foregoing, IT IS HEREBY ORDERED that:

25

1.

26

Defendant’s motion for summary judgment (Doc. 28) is granted as to all

claims;
10

1
2
3
4

2.

Plaintiff’s motion to modify the scheduling order (Doc. 60) is denied as

3.

The Clerk of the Court is directed to enter judgment in favor of defendant

moot; and

and close this file.

5
6
7
8

DATED: March 13, 2018
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
11