Andrews v. Pride Industries et al

Filing 111

AMENDED ORDER signed by District Judge Kimberly J. Mueller on 1/11/2017 ORDERING Defendants' motion for summary judgment is DENIED in PART and GRANTED in PART; this order resolves ECF No. 65 and SUPERSEDES the order filed at ECF No. 95 .(Reader, L)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 NAPOLEON ANDREWS, 12 Plaintiff, 13 14 15 v. No. 2:14-cv-02154-KJM-AC AMENDED ORDER PRIDE INDUSTRIES and JEAN ZURBUCHEN, Defendants. 16 17 18 I. REASON FOR AMENDMENT On October 21, 2016, defendants moved for reconsideration of the court’s decision 19 20 on the federal enclave doctrine question raised in this case, contending there were factual errors 21 upon which the court’s decision was based. Defs.’ Mot. 5, ECF No. 97. In particular, defendants 22 contend no evidence in the record establishes the events giving rise to Mr. Andrews’ claims 23 occurred at David Grant Medical Center. Id. As explained in the court’s separate order on defendants’ motion for 24 25 reconsideration, ECF No. 110, defendants’ motion is GRANTED IN PART, to the extent the 26 court amends this order to strike reference to David Grant Medical Center. The amendments are 27 incorporated below. 28 ///// 1 1 II. INTRODUCTION 2 From May 2009 until November 2012, Napoleon Andrews worked for PRIDE 3 Industries, leading a crew of disabled employees at Travis Air Force Base (AFB) in Fairfield, 4 California. Starting in May 2012, Mr. Andrews went on leave under the Family and Medical 5 Leave Act (FMLA), taking an extended absence he attributed to stress and anxiety stemming 6 from racial and disability discrimination in the workplace. Near the end of his FMLA leave, 7 Mr. Andrews was terminated. In September 2014, Mr. Andrews filed this suit against PRIDE and 8 his supervisor there, Jean Zurbuchen, alleging a variety of violations, including racial and 9 disability discrimination, retaliation, harassment, and wrongful termination. After the close of 10 discovery, both defendants have moved for summary judgment. 11 At hearing on defendants’ motion, Andrea Rosa appeared for Mr. Andrews, and 12 David Daniels and Jennifer Calderon Schmuldt appeared for PRIDE and Ms. Zurbuchen. ECF 13 No. 86. As explained below, defendants’ motion is GRANTED in PART and DENIED in PART. 14 III. PROCEDURAL HISTORY 15 Mr. Andrews originally filed this action against PRIDE and Ms. Zurbuchen on 16 September 16, 2014 in the Solano County Superior Court. First Am. Compl. (FAC), ECF No. 3. 17 He asserted the following six claims: (1) disability discrimination and failure to accommodate; 18 (2) failure to engage in the interactive process; (3) race discrimination; (4) hostile work 19 environment; (5) failure to prevent discrimination; and (6) wrongful termination in violation of 20 public policy. FAC at ¶¶ 72–125. With the exception of Mr. Andrews’ common law wrongful 21 termination claim, all claims alleged violations of the California Fair Employment Housing Act 22 (FEHA). See id. Defendants then removed the case to this court, contending the federal enclave 23 doctrine, discussed in more detail below, establishes federal jurisdiction. Not. Remov. 2, ECF 24 No. 2. After removal, defendants filed a motion to dismiss. ECF No. 6. 25 A. 26 Motion to Dismiss First Amended Complaint In their motion to dismiss, defendants argued the federal enclave doctrine 27 precluded Mr. Andrews’ state-law claims. Id. at 5–7. Essentially, defendants argued the conduct 28 ///// 2 1 giving rise to Mr. Andrews’ claims occurred on Travis AFB, a federal enclave, and any attempt to 2 subject such conduct to state regulation was precluded. Id. 3 Defendants did not prevail on this theory because it was unclear whether the 4 events underlying this action occurred on a federal enclave not subject to state regulation. Order 5 on MTD (Prev. Order) 7–8, ECF No. 18. In denying defendants’ motion to dismiss, the court 6 allowed Mr. Andrews the opportunity to conduct discovery on the federal enclave issue, as well 7 as leave to file a second amended complaint. Id. at 9. 8 B. Second Amended Complaint 9 Mr. Andrews’ second amended complaint asserts the same state-law claims as his 10 first amended complaint, but further asserts the following federal claims: (1) race discrimination 11 in violation of 42 U.S.C. § 1981; (2) retaliation also in violation of § 1981; (3) discriminatory 12 termination in violation of the FMLA; and (4) retaliation also for exercising the right to FMLA 13 leave. See generally Second Am. Compl. (SAC), ECF No. 25. Mr. Andrews’ suit is grounded 14 on federal question and supplemental jurisdiction. 28 U.S.C. §§ 1331, 1367. 15 Defendants now move for summary judgment. Mot., ECF No. 65. Mr. Andrews 16 opposes the motion, Opp’n, ECF No. 80, and defendants have replied, Reply, ECF No. 81. 17 IV. FACTUAL BACKGROUND 18 The following facts are undisputed unless otherwise stated. Where a genuine 19 dispute exists, the court draws reasonable inferences in favor of Mr. Andrews. Tolan v. Cotton, 20 ___U.S.___, 134 S. Ct. 1861, 1868 (2014) (per curiam). 21 A. 22 PRIDE Hires Mr. Andrews PRIDE Industries is a federal contractor; it services Travis AFB. Undisputed 23 Material Fact (UMF) No. 1, ECF No. 80-5; Prev. Order at 7. Napoleon Andrews was hired as 24 Grounds Maintenance Lead in May 2009, and was responsible for leading a crew of employees 25 with disabilities in landscaping duties. UMF No. 3. He also was responsible for maintaining the 26 grounds of buildings on the base, cutting grass with lawn mowers, and trimming hedges. Walters 27 ///// 28 3 1 Decl. ¶ 11, ECF No. 70. Jean Zurbuchen was the Manager of Grounds Maintenance at PRIDE, 2 and Mr. Andrews’ supervisor. Walters Decl. ¶ 8. 3 4 5 6 Mr. Andrews is African-American and speaks fluent Spanish. Andrews Decl. ¶ 2, ECF No. 80-2; Andrews Dep. 440:25–441:6. B. May 2010 to May 2012: Disciplinary Write-ups Soon after Mr. Andrews started work at PRIDE, he began to receive a series of 7 disciplinary write-ups. Walters Decl. ¶¶ 16–20; Ex. C. For example, in May 2010, Mr. Andrews 8 was sanctioned for “failure to follow instructions” when he did not complete paperwork after 9 mowing around two buildings on the base. Walters Decl. Ex. C at 22. On August 13, 2010, 10 Mr. Andrews received a written warning for arriving at work fifteen minutes late. Id. On 11 July 15, 2011, Mr. Andrews received a document titled “final written warning” for a “safety 12 violation,” due to driving a PRIDE truck with its tailgates unsecured. Id. Despite receiving a 13 “final warning,” Mr. Andrews continued to work for PRIDE. On August 8, 2011, Mr. Andrews 14 was disciplined for unnecessarily spraying an area for weeds. Id. On February 22, 2012, 15 Mr. Andrews received another “final written warning” for failure to follow instructions and poor 16 work performance, because he did not report that work under his supervision was “incomplete.” 17 Id. Again, Mr. Andrews was allowed to continue working. While the record does not make clear 18 who delivered the disciplinary write-ups to Andrews, Ms. Zurbuchen signed the written warnings. 19 See id. at 26–36. 20 During the same time period Mr. Andrews received these write-ups, PRIDE also 21 gave Mr. Andrews performance reviews. Id. 37–39. According to a June 2010 performance 22 review, Mr. Andrews was rated as “meeting expectations” in the following areas: (1) team player 23 and presenting a positive, courteous attitude toward all employees; and (2) providing customer 24 service through demonstrative courtesy and respect towards customers. Id. Mr. Andrews met 25 expectations but needed improvement or training in attendance, job knowledge, initiative, and 26 quality or quantity of work. Id. The performance review further noted Mr. Andrews was a 27 positive lead, “but needs to show his guys that he can be a leader and get them to work the way he 28 wants them to.” Id. Mr. Andrews received the same ratings in his June 2011 performance 4 1 review, except the review noted Mr. Andrews “needs to work with his crew on all times even 2 when spraying or working on paper work.” Id. 3 His disciplinary write-ups notwithstanding, Mr. Andrews was neither demoted nor 4 was his pay decreased. Id. ¶ 13. During a morning roll call at Travis AFB on April 30, 2012, 5 however, PRIDE management publicly announced Mr. Andrews would be reassigned from his 6 Grounds Maintenance Lead position to a lower-level detail position. Andrews Decl. ¶ 17, ECF 7 No. 80–2. Ms. Zurbuchen was partially responsible for this decision, as it was part of her 8 responsibility to decide where to assign Ground Maintenance Leads. Id.; Walters Decl. Ex. C. 9 Although the lower-level detail position did not involve a pay cut, Mr. Andrews would lead fewer 10 employees and would be subject to daily assignment changes. Andrews Decl. ¶ 17. He was 11 initially told he would be in this position for one week, but the position was later extended to two 12 weeks. Id. Before the two weeks ended, Mr. Andrews went out on leave, as described below. 13 14 C. May 2009 to May 2012: Discriminatory Treatment Also during the same time period he received disciplinary write-ups, Mr. Andrews 15 witnessed and personally experienced discriminatory treatment. Andrews Dep. 443:2–14. For 16 example, when a Caucasian co-worker ruptured a main water line to a building Andrews 17 described as “one of the most important buildings” at the AFB, PRIDE supervisors commented, 18 “Oh, wasn’t that cute, [the coworker] hit that pipe?” Id. 443:2–14. When another Caucasian 19 co-worker was insubordinate with a union representative, the co-worker did not receive a write- 20 up, and no disciplinary action was taken. Id. 447:24–448:15. The record does not make clear 21 whether these co-workers had a disability, as some PRIDE employees do. Mr. Andrews, by 22 contrast, received several citations for offenses he deems less serious, as noted above. 23 Mr. Andrews also witnessed and experienced treatment by Ms. Zurbuchen that he 24 considered unfair. In particular, Mr. Andrews alleges Ms. Zurbuchen forbid him from speaking 25 Spanish in the workplace, and often referred to his Mexican coworkers as “the Mexican Mafia.” 26 Rosa Decl. ¶ 18, Exhibit Q, ECF No. 80–1; Andrews Dep. 49:5–8, 50:10–13. In his declaration, 27 Mr. Andrews stated because many of his co-workers were Spanish monolingual speakers, it was 28 important for him to speak and write Spanish so he could help his crew or other laborers 5 1 understand what was being asked of them. Andrews Decl. ¶ 6. Because many PRIDE 2 supervisors and managers did not speak Spanish, very few people other than Mr. Andrews could 3 assist his co-workers. Id. However, other evidence in the record suggests speaking Spanish in 4 the workplace was allowed, and the prohibition on speaking Spanish was acceptable only “under 5 limited circumstances,” such as speaking to a manager who only speaks English or in an 6 emergency situation. Rosa Decl. Ex. Q at 145. 7 Ms. Zurbuchen also called Mr. Andrews “slow,” on numerous occasions, and at 8 least once threatened to terminate Mr. Andrews by showing him pictures of minorities who had 9 been fired or wrongfully terminated at PRIDE while telling him, “You could be in this group.” 10 Andrews Dep. 49:8, 49:22–50:4. Ms. Zurbuchen also uttered the word “nigger” in front of 11 Mr. Andrews, in the context of asking whether Mr. Andrews himself used that word at work. 12 Andrews Dep. 49:8–10. At his deposition, Mr. Andrews testified Ms. Zurbuchen’s comments 13 caused him to feel intimidated and to lose concentration while at work. Andrews Dep. 48:6–22. 14 D. 15 May 7, 2012: Leave from PRIDE As mentioned, the discriminatory treatment he witnessed and experienced caused 16 Mr. Andrews “memory loss, anxiety, and [an] inability to concentrate.” Andrews Dep. 17 45:24-46:1. In particular, Mr. Andrews had difficulty concentrating on his job without seeming 18 anxious or fidgety or having to leave work for short periods of time. Andrews Dep. 46:19–47:4. 19 On May 7, 2012, he went on leave from his job at PRIDE under the FMLA. Andrews Dep. 20 227:14–228:18; Walters Decl. ¶¶ 28–29. Mr. Andrews made numerous requests to extend his 21 leave, reviewed below. UMF Nos. 37, 39. 22 23 E. Requests for Extended FMLA Leave In support of his initial request for FMLA leave, Mr. Andrews’ primary doctor 24 Dr. Tuan Doan, gave Mr. Andrews a medical note, dated May 7, 2012, stating “unable to work 25 since May 7, 2012, due to medical illness, return back to work on May 21, 2012,” which 26 Dr. Doan submitted to PRIDE. UMF No. 33; Walters Decl. ¶¶ 25, 28. The parties dispute 27 whether PRIDE actually received Dr. Doan’s note. Compare Walters Decl. ¶¶ 25, 28, with 28 Andrews Decl. ¶ 19. On the one hand, Mr. Andrews avers Dr. Doan faxed the note to PRIDE on 6 1 May 7, 2012, Mr. Andrews’ first day of FMLA leave. Andrews Decl. ¶ 19. On the other hand, 2 PRIDE says it did not receive the May 7 note, but instead, received an different note on May 16, 3 2012 requesting leave until August 4, 2012. Walters Decl. ¶ 25. PRIDE avers that from May 8, 4 the day after Mr. Andrews went on leave, until May 15, 2012, PRIDE received no communication 5 from Mr. Andrews. Walters Decl. ¶ 28. In any event, PRIDE cites to evidence showing that on 6 May 16, 2012, it granted Mr. Andrews’ request for leave, and extended his leave from July 31 to 7 August 4, 2012. Id. 8 9 F. Second Request for Extended Leave The same day PRIDE granted Mr. Andrews’ request for extended FMLA leave, it 10 also requested that Mr. Andrews complete and return paperwork. Walters Decl. ¶ 29. 11 Mr. Andrews did not return the paperwork to PRIDE. Walters Decl. ¶ 30. However, 12 Mr. Andrews submitted a new medical note from Dr. Doan, dated July 25, 2012, in support of 13 extending his medical leave from August 4, 2012 to November 4, 2012. UMF No. 39. Before 14 granting this request, PRIDE ordered Mr. Andrews to obtain answers from Dr. Doan to a 15 reasonable accommodations questionnaire by August 16, 2012. UMF No. 40. 16 Dr. Doan completed the questionnaire on August 6, 2012, but PRIDE did not 17 receive it until August 27, 2012. UMF No. 42. In the questionnaire, Dr. Doan noted 18 Mr. Andrews had stress disorder, generalized anxiety disorder, as well as a latex allergy. Walters 19 Decl. Ex. J at 59–66. These conditions affected at least four major life activities including 20 breathing, working, concentrating, and interacting with others. Id. Dr. Doan also noted the 21 medication for Mr. Andrews’ conditions would prevent him from operating heavy machinery, and 22 this restriction was expected to last until October 30, 2012. Id. 23 PRIDE interpreted the questionnaire to mean Mr. Andrews would be able to return 24 to work after October 30, 2012, and issued a letter granting Mr. Andrews’ request to extend his 25 leave to that date. Walters Decl. Ex. K. Specifically, it granted Mr. Andrews’ second request in 26 an October 2, 2012 letter, which stated in part, 27 28 If you are able to return to work on October 31, 2012, you must provide [a] note from your doctor that clears you to return to work and that lists any and all restrictions. Please contact your Local HR 7 1 Representative, Andre Anthony at [phone number provided] by October 23, 2012 to either provide the return to work note and to arrange for your return to work, or to resign your position. 2 3 Id. The parties dispute whether October 23 was a hard deadline or a due date contingent on 4 whether Mr. Andrews was able to return to work on October 31, 2012. Compare Walters Decl. 5 ¶ 35 with Andrews Decl. ¶ 35. PRIDE argues the letter clearly required Mr. Andrews to contact 6 Andre Anthony by October 23, 2012. Walters Decl. ¶ 35. Mr. Andrews argues the letter 7 required him to contact Andre Anthony by October 23, 2012 only if he was able to return to work 8 by October 31, 2012. Andrews Decl. ¶ 35. Mr. Andrews understood he did not have to respond 9 to PRIDE because he was unable to return to work by October 31. Id. Regardless, Mr. Andrews 10 neither returned the paperwork nor indicated a desire to resign his position by October 23, 2012. 11 Walters Decl. ¶ 37. 12 13 G. Third Request and Termination On October 22, 2012, PRIDE received another medical note from Dr. Doan, dated 14 October 16, 2012, requesting a third extension of leave for Mr. Andrews to adjust his 15 medications, and stating that Mr. Andrews could return to work on November 16, 2012. Walters 16 Decl. ¶ 36; Ex. L. PRIDE did not hear anything more from Mr. Andrews until November 15, 17 2012, when he sent a letter stating he was not resigning from his job, he appreciated the time 18 allotted to him, and he needed more leave to have a new reasonable accommodation questionnaire 19 completed. Walters Decl. Ex. N. 20 On the morning of November 16, 2012, Mr. Andrews did not show up for work. 21 Walters Decl. ¶ 39. Mr. Andrews arrived instead in the afternoon to hand-deliver a note from 22 Dr. Doan, dated November 16, 2012, requesting additional leave. Andrews Decl. ¶ 30. In his 23 declaration, Mr. Andrews notes Dr. Doan was not available to sign the letter that day, so he first 24 hand-delivered the unsigned note to PRIDE, and then waited until Monday, November 19, to get 25 a copy of the note signed. Id. When he arrived at PRIDE on November 16, Mr. Andrews met 26 with Donna Walters, the head of HR, and said he was ready to work that day. Id. Ms. Walters 27 told him to wait for a letter PRIDE had been working on, which Mr. Andrews later discovered 28 was a termination letter. Id. 8 1 On November 19, 2012, the same day PRIDE received the signed medical note 2 from Dr. Doan, Walters Decl. ¶ 40, PRIDE issued a termination letter to Mr. Andrews for “his 3 failure to follow instructions and provide return to work documentation by October 23, 2012, and 4 for his failure to return to work on November 16–19, 2012.” Walters Decl. ¶ 42 & Ex. M. 5 In making the decision to terminate Mr. Andrews, Ms. Walters consulted with 6 PRIDE’s HR representative Andre Anthony, the person responsible for corresponding with 7 Mr. Andrews throughout his FMLA leave. Anthony Dep. 107:12–13. Mr. Anthony testified that 8 he told Ms. Walters he did not receive any information from Mr. Andrews by the requested due 9 date of October 23, 2012. Id. He also testified he did not know whether Mr. Andrews’ doctor 10 had made contact with HR, Anthony Dep. 107:18–21, or whether Mr. Andrews contacted anyone 11 besides himself, id. 107:14–17. 12 H. Complaints against PRIDE 13 During his time on FMLA leave, Mr. Andrews filed several claims and complaints 14 against PRIDE. He filed a workers’ compensation claim on May 31, 2012, alleging work-related 15 injuries, including “on the job stress.” Andrews Decl. Ex. C. He filed a claim with the National 16 Labor Relations Board on June 17, 2012, stating he was disciplined and harassed for his union 17 activity. Andrews Decl. Ex. B. During his deposition, Mr. Andrews testified he engaged in 18 union activity related to interrupted meal and rest breaks, without clarifying what kind of activity. 19 Andrews Dep. 215:9–24. He also filed a complaint with the California Department of Pesticide 20 Regulation on August 23, 2012, for pesticide exposure during his time at PRIDE. Andrews Dep. 21 169:15–16, 176:22–177:4. 22 Mr. Andrews also filed two administrative claims with the California Department 23 of Fair Employment and Housing (DFEH). Daniels Decl. ¶ 7, ECF No. 68. In his first complaint, 24 filed June 25, 2012, Mr. Andrews alleged that between July 2011 and May 2012 he was subjected 25 to differential treatment because of his age and race. Daniels Decl. Ex. B. PRIDE responded to 26 the first complaint in a letter to the DFEH, stating Mr. Andrews’ claims were “not accurate,” and 27 enclosed copies of his write-ups to support its position. Walters Ex. C. Mr. Andrews received 28 ///// 9 1 two right-to-sue letters for his first DFEH complaint, on April 17 and April 22, 2013. Daniels 2 Decl. Ex. C. 3 In his second complaint, filed February 4, 2014, Mr. Andrews alleged 4 discrimination, harassment, and retaliation based on Mr. Andrews’ membership in a protected 5 class, disability, national origin, and race. Daniels Decl. Ex. D.1 Although the second DFEH 6 complaint alleged only that the discrimination occurred on or before August 30, 2013, without 7 more, the parties agree Mr. Andrews’ claims for disability discrimination under FEHA accrued, at 8 the latest, by November 19, 2012, the date Mr. Andrews’ termination became effective. UMF 9 No. 25. Mr. Andrews received a right-to-sue letter for his second DFEH complaint later on 10 February 4, 2014; the same day he had filed the second DFEH complaint. Daniels Decl. Ex. D. 11 V. LEGAL STANDARD 12 A court will grant summary judgment “if . . . there is no genuine dispute as to any 13 material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). 14 The “threshold inquiry” is whether “there are any genuine factual issues that properly can be 15 resolved only by a finder of fact because they may reasonably be resolved in favor of either 16 party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). 17 Rule 56 also authorizes granting summary judgment on only part of a claim or 18 defense, known as partial summary judgment. See Fed. R. Civ. P. 56(a) (“A party may move for 19 summary judgment, identifying each claim or defense—or the part of each claim or defense—on 20 which summary judgment is sought.”). The standard that applies to a motion for partial summary 21 judgment is the same as that which applies to a motion for summary judgment. See State of Cal. 22 23 24 25 26 27 28 1 The court notes Mr. Andrews’ deposition testimony raises a doubt whether he filed this complaint with the DFEH or whether his lawyer, Ms. Andrea Rosa, signed and filed the complaint without Mr. Andrews’ notice or consent. See Andrews Dep. 415:9 (when asked about the second DFEH complaint during his deposition, Mr. Andrews stated he did not recall filing it), 415:19 (Mr. Andrews did not recognize complaint or right to sue letter that followed the complaint), 416:11–13 (when asked how he was discriminated against on August 30, 2013, Mr. Andrews said, “I don’t know what they’re referring to when they say August 30, 2013.”), 416:23–25 (when specifically asked if he was discriminated against on August 30, 2013, Mr. Andrews said, “I know I was fired in November of 2012.”). 10 1 ex rel. Cal. Dep’t of Toxic Substances Control v. Campbell, 138 F.3d 772, 780 (9th Cir. 1998) 2 (applying summary judgment standard to motion for summary adjudication); ARC of Cal. v. 3 Douglas, No. 11–02545, 2015 WL 631426, at *3 (E.D. Cal. Feb. 13, 2015). 4 The moving party bears the initial burden of showing the district court “there is an 5 absence of evidence to support the nonmoving party’s case.” Celotex Corp. v. Catrett, 477 U.S. 6 317, 325 (1986). The burden then shifts to the nonmoving party, which “must establish that there 7 is a genuine issue of material fact . . . .” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 8 475 U.S. 574, 585 (1986). In carrying their burdens, both parties must “cit[e] to particular parts 9 of materials in the record . . . or show [] that the materials cited do not establish the absence or 10 presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to 11 support the fact.” Fed. R. Civ. P. 56(c)(1); see also Matsushita, 475 U.S. at 586 (“[The 12 nonmoving party] must do more than simply show that there is some metaphysical doubt as to the 13 material facts.”). Moreover, “the requirement is that there be no genuine issue of material fact . . . 14 Only disputes over facts that might affect the outcome of the suit under the governing law will 15 properly preclude the entry of summary judgment.” Anderson, 477 U.S. at 247–48. A district 16 court is “not required to comb the record to find some reason to deny a motion for summary 17 judgment.” Carmen v. S.F. Unified Sch. Dist., 237 F.3d 1026, 1029 (9th Cir. 2001) (internal 18 quotations omitted). “Where the record taken as a whole could not lead a rational trier of fact to 19 find for the non-moving party, there is no ‘genuine issue for trial.’” Matsushita, 475 U.S. at 587 20 (quoting First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289 (1968)). 21 VI. 22 DISCUSSION A. Absence of Written Opposition 23 Defendants PRIDE and Ms. Zurbuchen move for summary judgment on each of 24 Mr. Andrews’ claims. At the outset, the court notes Mr. Andrews’ opposition does not address 25 several arguments defendants make in support of their motion, including the claims of FEHA 26 hostile work environment, § 1981 race discrimination, retaliation in violation of the FMLA, and 27 termination in violation of the FMLA. See generally Opp’n. Mr. Andrews’ counsel, Ms. Rosa, 28 stated at hearing that she was not abandoning any claims, but represented she did not respond to 11 1 some of defendants’ arguments because her original opposition was erased electronically within 2 hours before the court’s filing deadline. With her original opposition having disappeared, counsel 3 explained she scrambled to assemble a decent, working opposition before the filing deadline and 4 haphazardly neglected to address a number of issues. 5 Counsel did not alert the court or defendants to this mishap until she was asked 6 about it at the hearing. At that point she asked the court to allow leave to attach a table of 7 contents to her opposition brief. The court denied this request. Counsel did not request leave to 8 clarify or supplement the substance of her filed opposition, so the court takes the opposition as it 9 finds it. Nevertheless, the court takes care to consider the merits of plaintiff’s position rather than 10 11 construing counsel’s incomplete briefing as partial consent to granting defendants’ motion. B. State Law Claims 12 1. 13 Defendants argue, as they did in their prior motion to dismiss, Mr. Andrews’ state 14 15 Federal Enclave Doctrine law claims are barred because the events in question occurred on a federal enclave. Mot. at 26. The federal enclave doctrine derives from Article I, section 8, clause 17 of the 16 United States Constitution, which provides Congress shall have the power “to exercise [exclusive 17 legislative] Authority over all Places purchased by the Consent of the Legislature of the State in 18 which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other 19 needful Buildings.” U.S.C.A. Const. art. 1, § 8, cl. 17; see also Pac. Coast Dairy v. Dep’t of 20 Agric. of Cal., 318 U.S. 285, 294 (1943) (citing U.S.C.A. Const. art. 1, § 8, cl. 17) (holding the 21 state of California was not authorized to regulate the sale of milk sold to war department located 22 on federal enclave). This essentially means, when the federal government acquires a tract of land 23 or property, jurisdiction over the land rests primarily, if not exclusively, with the United States, 24 and “local law not inconsistent with federal policy [may] remain[] in force until altered by 25 national legislation.” Id. 26 Here, in its order on defendants’ motion to dismiss, the court concluded the land 27 designated as Travis AFB qualified for federal enclave status. Prev. Order at 7. But because it is 28 unclear whether the events the events underlying this action occurred on a federal enclave,] the 12 1 court noted it could not say at that point whether defendants’ alleged conduct took place on a 2 federal enclave. Id. Although the parties have engaged in full discovery, neither party presented 3 new evidence on this issue, and defendants’ mere reiteration of their previously unsupported 4 argument does not assist the court or make their case. 5 6 Defendants’ motion for summary judgment on the basis of the federal enclave doctrine is DENIED, and the court proceeds to the merits of Mr. Andrews’ state law claims. 7 2. 8 Defendants argue first that they are entitled to summary judgment because 9 Disability Discrimination Mr. Andrews’ disability discrimination claims for failure to accommodate and failure to engage 10 in the interactive process are barred by FEHA’s one-year statute of limitations. Mot. at 13. 11 Mr. Andrews argues the statute of limitations was tolled as a result his pending workers’ 12 compensation claim, which he argues addressed the same injuries supporting his discrimination 13 claim, namely on-the-job stress. Opp’n at 14. 14 FEHA prohibits discrimination in employment on the basis of physical or mental 15 disability. Cal. Gov’t Code § 12940(a); Jimeno v. Mobil Oil Corp., 66 F.3d 1514, 1520 (9th Cir. 16 1995) (interpreting FEHA). The Ninth Circuit has held FEHA provisions relating to disability 17 discrimination are based on the ADA, Humphrey v. Mem’l Hosps. Ass’n, 239 F.3d 1128, 1133 n.3 18 (9th Cir. 2001), and “stress” can be considered a mental impairment under the ADA, see Snead v. 19 Metro. Prop. & Cas. Ins. Co., 237 F.3d 1080, 1088 (9th Cir. 2001). 20 The statute of limitations for a FEHA action is found in California Government 21 Code section 12960, which provides, “[n]o complaint may be filed after the expiration of one year 22 from the date upon which the alleged unlawful practice or refusal to cooperate occurred . . . .” 23 Cucuzza v. City of Santa Clara, 104 Cal. App. 4th 1031, 1040 (2002). This statute of limitations 24 can be tolled when the plaintiff submits a workers’ compensation claim for the same injury that 25 gives rise to the FEHA claim filed with the court. See Elkins v. Derby, 12 Cal. 3d 410, 413 26 (1974). 27 28 In Elkins, the plaintiff filed a timely claim for benefits with the Workmen’s Compensation Appeals Board after he was injured while working on the defendants’ premises. 13 1 Id. at 411. The Board’s decision became final after the statute of limitations applicable to 2 plaintiff’s injury ran and the plaintiff then filed a personal injury tort suit for the same injury that 3 had given rise to his workers’ compensation claim. Id. The California Supreme Court held that 4 the limitations period for the plaintiff’s personal injury claim was tolled from the day he filed 5 with the Board to the day the Board’s decision became final, noting allowing the newly filed civil 6 complaint to proceed would not frustrate the statute of limitations’ primary purpose; to prevent 7 surprise to the defendants. Id. at 413 n.1, 416. The state Supreme Court thus reversed the 8 superior court’s holding that plaintiff’s personal injury claim was time-barred. Id. at 420. 9 A California Court of Appeals has since construed the equitable tolling doctrine of 10 Elkins narrowly, holding the statute of limitations for a personal injury claim is not tolled when a 11 plaintiff pursues a remedy for a wrong related to, but not the same as, the injury underlying a 12 workers’ compensation claim. Aerojet Gen. Corp. v. Superior Court, 177 Cal. App. 3d 950, 955 13 (1986). In Aerojet, the plaintiff sued his employer for fraudulent concealment of the cause of his 14 injuries, bringing suit after he filed a workers’ compensation claim for the injury itself. Id. The 15 court held the equitable tolling doctrine did not apply to the plaintiff’s fraudulent concealment 16 claim, distinguishing the case from that of Elkins. Id. at 954–55. The court held the plaintiff in 17 Aerojet sought to challenge a wrong “entirely [different]” from the injury alleged in his workers’ 18 compensation claim, thereby stifling defendants’ ability to gather evidence necessary to refute the 19 later filed civil claim. Id. at 955–56. The plaintiff’s claim was dismissed as time-barred. Id. at 20 957. The Ninth Circuit cited to Aerojet as an example of California’s longstanding refusal to 21 apply the “equitable tolling doctrine to toll the statute of limitations on a claim for a distinct 22 wrong that was not the basis of the earlier proceeding.” Daviton v. Columbia/HCA Healthcare 23 Corp., 241 F.3d 1131, 1141 (9th Cir. 2001). In the end, the Ninth Circuit’s conclusion in Daviton 24 aligned with Aerojet, because it held “the equitable tolling doctrine requires that the same wrong 25 serve as the predicate for the earlier and later proceedings to make sure defendant received proper 26 notice.” Id. 27 28 Here, there is no dispute the last day Mr. Andrews’ claims for disability discrimination could accrue was November 19, 2012, the date his termination became effective. 14 1 UMF No. 25. Further, it is undisputed that Mr. Andrews filed his disability discrimination claim 2 with the DFEH on February 4, 2014, well more than one year after this accrual date and nineteen 3 months after he filed his racial and age discrimination claims in his first complaint made to 4 DFEH. Daniels Decl. Exs. B, D. In short, Mr. Andrews’ disability discrimination claims are 5 untimely unless the limitations period is tolled for approximately fourteen months, the difference 6 in time between November 19, 2012, the last accrual date, and February 4, 2014, the date he filed 7 his DFEH complaint for disability discrimination. 8 9 In the operative complaint, Mr. Andrews alleges PRIDE’s failure to accommodate his mental disability and failure to engage in the interactive process serve as the basis of his 10 FEHA disability discrimination claims. See SAC ¶¶ 91–108. Whereas in his workers’ 11 compensation claim Mr. Andrews alleged “on the job stress,” nowhere in the instant complaint 12 does Mr. Andrews assert a claim based on this injury alone, including, including by saying 13 defendants discriminated against him because of his stress. Compare id. with Andrews Decl. 14 Ex. C. In his opposition, Mr. Andrews argues only that “defendant[s] had notice of [the claimed] 15 disability, and [] therefore, cannot demonstrate any prejudice” Opp’n at 15. But because 16 Mr. Andrews does not seek to recover in this civil action for the injury at the heart of his workers’ 17 compensation claim, as the plaintiff did in Elkins, 12 Cal. 3d at 413, but rather for a “different 18 wrong entirely,” as in Aerojet, 177 Cal. App. 3d at 955–56, his argument is unavailing. 19 Construing the facts in favor of plaintiff, it is not reasonable to conclude a workers’ compensation 20 claim for “on the job stress” would have alerted PRIDE to the possibility of disability 21 discrimination claims for failure to accommodate and failure to engage in the interactive process. 22 The time for filing of Mr. Andrews’ disability discrimination claims was not equitably tolled, and 23 Mr. Andrews’ claims for disability discrimination due to failure to accommodate and 24 discrimination for failure to engage in the interactive process are therefore dismissed as time- 25 barred. 26 Defendants’ motion for summary judgment on this claim is GRANTED. 27 ///// 28 ///// 15 1 3. 2 Defendants contend they are entitled to summary judgment on Mr. Andrews’ Race Discrimination 3 FEHA race discrimination claim, saying, in essence, a jury could not conclude he was terminated 4 under circumstances suggesting a racially discriminatory motive. Mot. at 17. 5 a) Legal Standard 6 FEHA makes it “unlawful for an employer to discharge a person on the basis of 7 race, or otherwise to discriminate against the person in compensation or in terms, conditions or 8 privileges of employment.” Mixon v. Fair Emp’t and Hous. Comm’n, 192 Cal. App. 3d 1306, 9 1316 (1987). Where “discharge from employment is the challenged action, the complainant must 10 make an initial showing that plaintiff was discharged from a position for which he was qualified 11 ‘under circumstances which give rise to an inference of unlawful discrimination.’ ” Id. at 1318 12 (citing Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981)). Although the 13 claimant “need not prove that racial animus was the sole motivation behind the challenged 14 action,” he must nonetheless prove by a preponderance of the evidence that “there was a causal 15 connection between the employee’s protected status and the adverse employment decision.” Id. 16 at 1319. 17 To determine whether discriminatory discharge occurred, the court engages in a 18 three-part analysis. First, to create a rebuttable presumption that the employer unlawfully 19 discriminated against the employee, a plaintiff must show (1) he belongs to a protected class; 20 (2) his job performance was satisfactory; (3) he was discharged; and (4) others not in the 21 protected class were retained in similar jobs. Id. at 1318. Second, the burden shifts to the 22 defendant employer “to articulate some legitimate, nondiscriminatory reason for the employee’s 23 rejection.” Id. (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). If the 24 defendant employer carries its burden, the court proceeds to the third step, where the plaintiff 25 must demonstrate pretext, that the defendant’s “proffered reason was not the true reason for the 26 employment decision.” Id. The plaintiff can carry this burden either “directly by persuading the 27 court that a discriminatory reason more likely motivated the employer, or indirectly by showing 28 that the employer’s proffered explanation is unworthy of credence.” Id. at 1318–19. 16 1 2 b) Plaintiff’s Prima Facie Case Here, as an African-American, Mr. Andrews belongs to a protected class for the 3 purposes of FEHA. See McKinney v. Am. Airlines, Inc., 641 F. Supp. 2d 962, 972 (C.D. Cal. 4 2009) (interpreting FEHA). And it is undisputed he ultimately was terminated. This leaves the 5 second and fourth prongs of the prima facie case analysis. 6 As to the second, Mr. Andrews’ job performance, the evidence includes the 7 performance reviews PRIDE gave Mr. Andrews in July 2010 and June 2011, which included 8 several ratings of “meets expectations,” one of which noted Mr. Andrews was a “positive lead.” 9 Walters Decl. Ex. C at 37–38. While the reviews also noted room for improvement, they did not 10 characterize his work as unsatisfactory. Id. From this, a reasonable juror could find Mr. 11 Andrews’ work was satisfactory prior to his termination. 12 Regarding the fourth prong, additional evidence in the record could convince a 13 reasonable juror to conclude others not in the protected class received more favorable treatment 14 than plaintiff, or were retained in similar jobs despite shortcomings. See Mixon, 192 Cal. App. 3d 15 at 1318. During his deposition, Mr. Andrews testified his Caucasian co-workers were not 16 terminated or reprimanded for serious misconduct, whereas he was continually reprimanded for 17 less severe conduct. Andrews Dep. 443:2–14. For example, PRIDE reprimanded Mr. Andrews 18 for coming to work fifteen minutes late and unnecessarily spraying an area for weeds after being 19 instructed not to do so. Walters Decl. Ex. C. But Mr. Andrews testified that when a Caucasian 20 co-worker ruptured the main water line to an important building, PRIDE supervisors said that it 21 was “cute [that the co-worker] hit that pipe.” Andrews Dep. 443:2–14. Defendants do not 22 dispute PRIDE managers characterized the Caucasian co-worker’s conduct as “cute.” Similarly, 23 a reasonable jury might well believe Mr. Andrews was treated differently than another Caucasian 24 co-worker who became insubordinate with a PRIDE union representative but did not receive a 25 write-up or any form of disciplinary action. Andrews Dep. 447:24–448:15. 26 Mr. Andrews also presents evidence showing his supervisor, Ms. Zurbuchen, 27 subjected him to at least two instances of treatment that could be found discriminatory. In one 28 instance, she pointed to photos of other minorities PRIDE recently fired, while exclaiming 17 1 Mr. Andrews could find himself in that group one day. Andrews Dep. 49:22–50:4. Mr. Andrews 2 has submitted evidence that on another occasion Ms. Zurbuchen used the loaded word “nigger” in 3 Mr. Andrews’ presence. Id. 427:1-25. While it is not disputed that Ms. Zurbuchen used the word 4 in the context of asking whether Mr. Andrews himself used that word at work, id. 49:8–10, a 5 reasonable juror could conclude the mere utterance of this particular word by a supervisor, instead 6 of referring to the racial epithet as “the n-word,” could be “highly offensive and demeaning” to an 7 African-American subordinate. As the Ninth Circuit has observed, “no single act can more 8 quickly alter the conditions of employment and create an abusive working environment than the 9 use of an unambiguously racial epithet such as ‘nigger’ by a supervisor in the presence of his 10 subordinates.” McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1116 (9th Cir. 2004). Whether this 11 instance reflects racial insensitivity, thus making it more likely Mr. Andrews was terminated 12 under conditions suggesting discrimination, is a question best left for a jury to decide. 13 Although there is no direct evidence of Ms. Zurbuchen’s making the ultimate 14 decision to fire Mr. Andrews, there is sufficient circumstantial evidence to raise a genuine issue 15 of material fact regarding Ms. Zurbuchen’s role in or influence on the PRIDE termination 16 decision. As the manager of Grounds Maintenance at PRIDE, Ms. Zurbuchen was involved in 17 deciding where to assign Grounds Maintenance Leads such as Mr. Andrews, and was at least 18 partly responsible for reassigning Mr. Andrews to a lower-level detail position in which he would 19 lead fewer employees and be subject to route changes each day. Andrew Decl. ¶ 17. Ms. 20 Zurbuchen signed all of Mr. Andrews’ disciplinary write-ups, except one time when she was on 21 vacation. Id. Ex. C at 25–37. All things considered, a reasonable jury could conclude 22 discriminatory animus infected the decision to terminate Mr. Andrews. See Metoyer v. 23 Chassman, 504 F.3d 919, 938 (9th Cir. 2007) (plaintiff showed discriminatory animus in 24 employment decision based on circumstantial evidence of discriminatory animus of plaintiff’s 25 supervisor). 26 Viewing the evidence in the light most favorable to plaintiff, a reasonable juror 27 could conclude Mr. Andrews has established his prima facie case of racial discrimination. The 28 ///// 18 1 burden thus shifts to defendants “to articulate some legitimate, nondiscriminatory reason” for 2 Mr. Andrews’ termination. Mixon, 192 Cal. App. 3d at 1318. 3 4 c) Defendant’s Nondiscriminatory Reasons Defendants contend Mr. Andrews was terminated because of his failure to follow 5 instructions to communicate with HR representative Andre Anthony by October 23, 2012, as well 6 as his failure to return to work at the expiration of his extended leave of absence. Mot. at 18. 7 Defendants also contend their ultimate termination decision relied on the repeated disciplinary 8 write-ups Mr. Andrews received throughout his employment. Id. In a letter sent to the DFEH in 9 response to Mr. Andrews’ FEHA race discrimination claim, PRIDE argued Mr. Andrews’ race 10 discrimination claim was “not accurate,” and enclosed copies of the write-ups to support its 11 position. Walters Ex. C at 21–37. 12 Defendants have articulated reasons a reasonable jury could find the decision to 13 terminate Mr. Andrews was legitimate and nondiscriminatory. See Mixon, 192 Cal. App. 3d at 14 1306 (“The defendant need not persuade the court that it was actually motivated by the proffered 15 reasons. It is sufficient if the defendant’s evidence raises a genuine issue of fact as to whether it 16 discriminated against the plaintiff.”). The court proceeds to the third step of analysis, pretext. 17 18 d) Pretext At the third step, a reasonable jury could conclude defendants’ “proffered 19 reason[s] w[ere] not the true reason[s] for the employment decision.” Id. at 1318. As to 20 PRIDE’s first reason for termination, regarding Mr. Andrews’ failure to communicate with HR 21 representative Andre Anthony by October 23, 2012, as well as his failure to return to work, 22 Mr. Andrews’ doctor communicated with PRIDE by October 22 in a letter requesting additional 23 leave to give Mr. Andrews time to adjust his medications. Walters Decl. ¶ 36 & Ex. L. 24 Mr. Andrews testified he did show up to work on November 16, the day his extended leave 25 expired, albeit in the afternoon to hand-deliver a note from his doctor requesting still further 26 leave. Andrews Decl. ¶ 30. Mr. Andrews also notes he told PRIDE he was ready to start 27 working that day, but Donna Walters in HR told him to wait for a letter PRIDE had been working 28 on, which Mr. Andrews later discovered was the termination letter. Id. 19 1 On balance, the state of the record is insufficient for the court to conclude 2 defendants can prevail as a matter of law; rather a reasonable jury could conclude PRIDE’s 3 proffered reason is “unworthy of credence.” Mixon, 192 Cal. App. 3d at 1318–1319. As to 4 PRIDE’s reliance on the disciplinary write-ups, defendants’ argument is belied by the 5 performance reviews PRIDE gave Mr. Andrews in the same timeframe of July 2010 and June 6 2011, which included several ratings of “meets expectations,” and noted Mr. Andrews was a 7 “positive lead,” and did not affect his work assignment in any way. Walters Decl. Ex. C at 37– 8 38. Moreover, Mr. Andrews’ last disciplinary write-up occurred in February 2012, more than 9 eight months before he was terminated, and aside from the short-term reassignment, Mr. Andrews 10 was never demoted or at actual risk of termination. Id. Defendants’ argument is further belied by 11 the termination letter PRIDE sent to Mr. Andrews, which did not attribute his termination to his 12 disciplinary write-ups, but only to his delays in contacting HR representative Andre Anthony 13 regarding his return date. Walters Decl. Ex. M. 14 15 Mr. Andrews may be able to establish pretext, if the jury reaches the question. Summary judgment is DENIED on the race discrimination claim. 16 4. 17 Harassment in the form of a hostile work environment constitutes unlawful Hostile Work Environment 18 discrimination in violation of FEHA. Lyle v. Warner Bros. Television Prod., 38 Cal. 4th 264, 279 19 (2006). Although commonly alleged in connection with sex and gender, a hostile work 20 environment claim also may be based on other protected characteristics, including race. 21 Vasquez v. Cty. of L.A., 349 F.3d 634, 642 (9th Cir. 2003). 22 Because California courts look to Title VII cases to guide their interpretation of 23 FEHA, this court looks to Rene v. MGM Grand Hotel, Inc., 305 F.3d 1061, 1065 (9th Cir. 2002) 24 to determine what showing is required in a hostile environment claim. See Brooks v. City of 25 San Mateo, 229 F.3d 917, 923 (9th Cir. 2000) (Title VII and FEHA operate under the same 26 guiding principles). The Rene court held a plaintiff must show the following to prevail on a 27 hostile work environment claim: (1) she was subjected to verbal or physical conduct, (2) the 28 conduct was unwelcome, and (3) the conduct was sufficiently severe or pervasive to alter the 20 1 conditions of the plaintiff’s employment and create an abusive working environment. Id. The 2 only question here is whether Mr. Andrews has satisfied the third element. See Mot. at 24. 3 While a “mere utterance of an ethnic or racial epithet which engenders offensive 4 feelings in an employee” will not, by itself, establish a case, a plaintiff can overcome a motion for 5 summary judgment when the employer has “created a working environment heavily charged with 6 ethnic or racial insult and ridicule.” Etter v. Veriflo Corp., 67 Cal. App. 4th 457, 463 (1998). The 7 plaintiff need not show explicitly racialized conduct, for calling someone names of a different sort 8 can serve as a proxy for race and ethnicity. El-Hakem v. BJY Inc., 415 F.3d 1068, 1073 (9th Cir. 9 2005) (interpreting § 1981 and Title VII). In El-Hakem, for example, the Ninth Circuit held 10 triable issues of fact precluded summary judgment when the plaintiff’s employer repeatedly 11 insisted on calling the plaintiff “Manny” instead of by his Arabic name, despite the plaintiff’s 12 strenuous objections. Id. at 1071. Physical conduct also can support a hostile environment claim. 13 In Manatt v. Bank of America, for example, the Ninth Circuit held the plaintiff was subject to a 14 hostile environment where her co-workers ridiculed her not only for mispronouncing “Lima,” but 15 also pulled their eyes back in mocking imitation of her appearance and Asian heritage. 339 F.3d 16 792, 794–95, 798 (9th Cir. 2003) (interpreting § 1981 and Title VII). 17 Here, defendants argue Mr. Andrews was not subject to conditions “so severe or 18 pervasive” as to alter his work environment. Mot. at 24. Mr. Andrews, in opposition, points to 19 evidence suggesting he witnessed and was himself subject to treatment that referenced race or 20 national origin, which included Ms. Zurbuchen’s prohibition on speaking Spanish in which he 21 was fluent, calling plaintiff “slow,” threatening him with termination similar to another group of 22 minorities that had been fired, and referring to his co-workers as the “Mexican Mafia.” Rosa 23 Decl. ¶ 18; Andrews Dep. 49:5–8, 50:10–13. Mr. Andrews also points to the evidence reviewed 24 above suggesting he was treated differently from Caucasian co-workers whose job performance 25 was problematic. 26 On the record before the court no reasonable juror could conclude Mr. Andrews 27 was subjected to racial discrimination when being called “slow,” without more. Mr. Andrews 28 ///// 21 1 does not argue Ms. Zurbuchen referred to him as slow because of his race, and no precedent or 2 sister court suggests the word “slow” is a proxy for race. 3 On whether the prohibition on Mr. Andrew’s ability to speak Spanish can support 4 a hostile environment claim, the Ninth Circuit has addressed bilingualism in the context of a Title 5 VII hostile environment claim. Garcia v. Spun Steak Co., 998 F.2d 1480, 1486 (9th Cir. 1993). 6 The Ninth Circuit has observed that prohibitions on employees who speak both Spanish and 7 English are not so adverse as to amount to a hostile environment claim when bilingual speakers 8 wish to speak one language, such as Spanish, as a matter of “individual preference” rather than 9 necessity, as Title VII “does not protect the ability of workers to express their cultural heritage at 10 the workplace.” Id. at 1486–87. 11 But the facts of Garcia are distinguishable from those here, for a reasonable juror 12 could find Mr. Andrews’ decision to speak with monolingual members of his service crews was 13 made out of “necessity” rather than “individual preference,” id., because evidence of record 14 suggests other employees, including PRIDE managers and supervisors, could not effectively 15 communicate the tasks of the job to these crew members. Andrews Decl. ¶ 6. Under these 16 circumstances, a reasonable juror could find the prohibition on speaking Spanish in this case not 17 only interfered with Mr. Andrews' practical necessity to communicate, but also amounted to 18 racial discrimination against Mr. Andrews’ monolingual Spanish speaking co-workers, which 19 itself in turn interfered with Mr. Andrews’ “personal right to work in an environment unaffected 20 by racial discrimination.” Cf. id. at 1488 (monolingual Spanish-speaking plaintiff could sustain 21 Title VII discrimination claim if she cannot enjoy the privilege of conversing on the job if 22 conversation is limited to a language she cannot speak); see also Smithberg v. Merico, Inc., 23 575 F. Supp. 80, 83 (C.D. Cal. 1983) (White plaintiff could assert discrimination claim against 24 employer based on alleged practice of discrimination against African Americans; citing United 25 States E.E.O.C. v. T.I.M.E.–D.C. Freight, Inc., 659 F.2d 690, 691–92 (5th Cir.1981)). Similarly, 26 Mr. Andrews could sustain a hostile environment claim based on Ms. Zurbuchen’s repeated 27 references to Mr. Andrews’ co-workers as the “Mexican Mafia,” for a juror could reasonably 28 ///// 22 1 conclude this conduct also interfered with Mr. Andrews’ “personal right to work in an 2 environment unaffected by racial discrimination.” Smithberg, 575 F. Supp. at 83. 3 On balance, the prohibition on Mr. Andrews’ ability to speak Spanish and Ms. 4 Zurbuchen’s repeated references to Mr. Andrews’ co-workers as the “Mexican Mafia,” when 5 combined with the threat of termination linked to previously terminated minority workers, could 6 support a hostile environment claim. When considering the duration of the alleged discriminatory 7 conduct, Mr. Andrews testified he witnessed and was subject to this differential treatment from 8 February 2012 until the time he went on FMLA leave in May 2012. Walters Decl. ¶¶ 28-29; 9 Andrews Dep. 227:14–228:18. A reasonable jury might conclude Mr. Andrews was subjected to 10 repeated incidents of harassment based on race, whether directly or indirectly. El-Hakem, 11 415 F.3d at 1073; see also Smithberg, 575 F. Supp. at 83. 12 Defendants’ motion for summary judgment in this respect is DENIED. 13 5. 14 It also is an unlawful employment practice under FEHA “for an employer . . . to Failure to Prevent Race Discrimination 15 fail to take all reasonable steps necessary to prevent discrimination and harassment from 16 occurring” in the workplace. Cal. Gov’t Code § 12940(k). When a plaintiff seeks to recover 17 damages based on a claim of failure to prevent discrimination or harassment, he must show three 18 essential elements: (1) plaintiff was subjected to discrimination, harassment or retaliation; 19 (2) defendant failed to take all reasonable steps to prevent discrimination, harassment or 20 retaliation; and (3) this failure caused the plaintiff to suffer injury, damage, loss or harm. Achal v. 21 Gate Gourmet, Inc., 114 F. Supp. 3d 781, 804 (N.D. Cal. 2015) (interpreting FEHA). Some 22 examples of “reasonable steps” available to remedy harassment or discrimination under FEHA 23 include “affirmatively raising the subject of harassment [or discrimination], expressing strong 24 disapproval, developing appropriate sanctions, informing employees of their right to raise and 25 how to raise the issue of harassment [or discrimination] under California law, and developing 26 methods to sensitize all concerned.” Id. Other reasonable steps include the establishment and 27 promulgation of antidiscrimination policies and the implementation of effective procedures to 28 handle discrimination-related complaints and grievances. Cal. Fair Emp’t & Hous. Comm’n v. 23 1 Gemini Aluminum Corp., 122 Cal. App. 4th 1004, 1025 (2004). The causation element requires 2 an employee to show the discriminatory conduct was a “substantial factor” in causing his harm. 3 Alamo v. Practice Mgmt. Info. Corp., 219 Cal. App. 4th 466, 480 (2013). Termination from 4 employment is an injury sufficient to support recovery under a failure to prevent discrimination 5 claim. See Gemini Aluminum Corp., 122 Cal. App. 4th at 1021. 6 Here, defendants argue Mr. Andrews’ failure to prevent discrimination claim fails 7 because Mr. Andrews has not shown he suffered racial discrimination as a matter of law. Mot. at 8 21–22. But as noted above, the court has denied summary judgment to defendants on 9 Mr. Andrews’ race discrimination claim. Here as well, defendants have not borne their burden 10 and their motion is DENIED. 11 6. 12 As a matter of California common law, “when an employer’s discharge of an Wrongful Termination in Violation of Public Policy 13 employee violates fundamental principles of public policy, the discharged employee may 14 maintain a tort action and recover damages traditionally available in such actions.” Tameny v. 15 Atl. Richfield Co., 27 Cal. 3d 167, 170 (1980); see also Freund v. Nycomed Amersham, 347 F.3d 16 752, 758 (9th Cir. 2003). The public policy implicated must be “(1) delineated in either 17 constitutional or statutory provisions; (2) ‘public’ in the sense that it ‘inures to the benefit of the 18 public’ rather than serving merely the interests of the individual; (3) well established at the time 19 of discharge; and (4) substantial and fundamental.” Freund, 347 F.3d at 758 (quoting City of 20 Moorpark v. Superior Court, 18 Cal. 4th 1143, 1159 (1998)). 21 The public policy implicated by Mr. Andrews’ claim here is that articulated in 22 Labor Code section 1102.5, which prohibits employers from retaliating against an employee for 23 disclosing information to a government or law enforcement agency, where the employee has 24 reasonable cause to believe the information discloses a violation of state or federal statute. Cal. 25 Lab. Code § 1102.5(b); Cramer v. Consol. Freightways, Inc., 209 F.3d 1122, 1134 n.12 (9th Cir. 26 2000) (analyzing section 1102.5). The purpose of section 1102.5 is to “encourage workplace 27 whistleblowers to report unlawful acts without fearing retaliation.” Hollie v. Concentra Health 28 ///// 24 1 Servs., Inc., No. 10–5197, 2012 WL 993522 at *5 (N.D. Cal. Mar. 23, 2012) (citing Green v. 2 Ralee Eng’g Co., 19 Cal. 4th 66, 77 (1998)). 3 Here, a reasonable juror could conclude one or more of Mr. Andrews’ complaints 4 to the National Labor Relations Board on June 17, 2012, Andrews Decl. Ex. B, the California 5 Department of Pesticide Regulation on August 23, 2012, Andrews Dep. 169:15–16, 176:22– 6 177:4, and the DFEH on June 25, 2012, Daniels Decl. Ex. B, amount to disclosure of a violation 7 of a state or federal statute. Cal. Lab. Code § 1102.5(b); Cramer, 209 F.3d at 1122. 8 Defendants argue Mr. Andrews’ claim for wrongful termination in violation of 9 public policy fails as “entirely derivative” of his FEHA claims. Mot. at 22. As noted, the court 10 has denied summary judgment on Mr. Andrews’ racial discrimination claim. Defendants have 11 not borne their burden, and their motion is DENIED. 12 7. 13 In sum, defendants’ motion is DENIED on Mr. Andrews’ state claims of racial Summary 14 discrimination, hostile work environment, failure to prevent discrimination, and wrongful 15 termination in violation of public policy. Defendants’ motion is GRANTED on Mr. Andrews’ 16 state disability discrimination claims for failure to accommodate and failure to engage in the 17 interactive process. The court now proceeds to the merits of Mr. Andrews’ federal claims. 18 C. Federal Claims 19 1. 20 In analyzing Mr. Andrews’ race discrimination claim under § 1981, the court Race Discrimination in Violation of § 1981 21 applies the same legal principles as in a Title VII disparate treatment case, akin to the burden- 22 shifting framework governing FEHA race discrimination claims. See, e.g., Fonseca v. Sysco 23 Food Servs. of Ariz., Inc., 374 F.3d 840, 849-50 (9th Cir. 2004). Once the plaintiff establishes a 24 prima facie case of discrimination, defendant must then articulate a legitimate, nondiscriminatory 25 reason for its conduct; if defendant surpasses this hurdle, plaintiff then may defeat summary 26 judgment by showing defendant's reasons are pretextual. Id. 27 28 Here, as noted in the FEHA race discrimination analysis above, a reasonable jury could conclude Mr. Andrews has established a prima facie case, defendants point to a “legitimate, 25 1 nondiscriminatory reason,” but Mr. Andrews has undermined the veracity of that reason. 2 Accordingly, the evidence in the record may convince a reasonable juror that a discriminatory 3 reason more likely than not motivated PRIDE as the employer in the termination decision. 4 Defendants’ motion on this claim is DENIED. 5 2. 6 Defendants argue Mr. Andrews has not established a causal link between his Retaliation in Violation of § 1981 7 protected activity and his termination. Mot. at 21–22. Mr. Andrews contends the causal link 8 between his protected activity and his termination may be established by “the temporal sequence 9 between the protected expression and the adverse action.” Opp’n at 13. 10 As with plaintiff’s § 1981and FEHA race discrimination claims, the court applies a 11 burden-shifting framework, where the plaintiff must first establish a prima facie case of 12 retaliation, the defendant must then articulate legitimate, nondiscriminatory reasons for its 13 allegedly retaliatory conduct, and the plaintiff must then show pretext. Fonseca, 374 F.3d at 849- 14 50. 15 To make out a prima facie case of retaliation under § 1981, a plaintiff must 16 establish he undertook protected activity, his employer subjected him to an adverse employment 17 action, and there is a causal link between those two events. Vasquez, 349 F.3d at 646. To engage 18 in protected activity, the plaintiff must oppose an unlawful employment practice under § 1981. 19 Learned v. City of Bellevue, 860 F.2d 928, 932 (9th Cir. 1988) (“[T]he opposed conduct must 20 fairly fall within the protection of Title VII to sustain a claim of unlawful retaliation.”). An 21 adverse employment action is one that is “reasonably likely to deter employees from engaging in 22 protected activity.” Vasquez, 349 F.3d at 646. Where the plaintiff seeks to establish causation 23 solely with evidence of close proximity, the adverse action must follow within a relatively short 24 time after the protected activity. Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001) (per 25 curiam) (“The cases that accept mere temporal proximity between an employer’s knowledge of 26 protected activity and an adverse employment action as sufficient evidence of causality to 27 establish a prima facie case uniformly hold that the temporal proximity must be very close.”). 28 ///// 26 1 Mr. Andrews contends he engaged in protected activity when he first took FMLA 2 leave on May 7, 2012, Andrews Dep. 227:14–228:18, filed a workers’ compensation claim on 3 May 31, 2012, Andrews Decl. Ex. C, filed a complaint with the California Department of 4 Pesticide Regulation on August 23, 2012, Andrews Dep. 169:15–16, filed a claim with the NLRB 5 on June 17, 2012, Andrews Decl. Ex. B, and filed FEHA complaints with the DFEH on June 25, 6 2012 and February 4, 2014, Daniels Decl. ¶ 7. 7 Assuming these actions constitute “protected activity,” and that the February 2014 8 filing counts in the analysis, the smallest temporal gap between Mr. Andrews’ last protected 9 activity in February 2014 and his termination is 148 days, or approximately five months. The 10 record includes no other evidence reasonably supporting a connection between Mr. Andrews’ 11 protected activity and his termination. Five months is not sufficient to show adverse action 12 followed “within a relatively short time.” See Fisher v. San Pedro Peninsula Hosp., 13 214 Cal. App. 3d 590, 615 (1989); Jadwin v. Cty. of Kern, 610 F. Supp. 2d 1129, 1156 (E.D. Cal. 14 2009) (five to six month gap in context of a section 1102.5 claim insufficient); see also Breeden, 15 532 U.S. at 273–74 (20-month period in Title VII case insufficient); Cornwell v. Electra Cent. 16 Credit Union, 439 F.3d 1018, 1034 (9th Cir. 2006) (8-month period in Title VII case 17 insufficient); Richmond v. ONEOK, Inc., 120 F.3d 205, 209 (10th Cir. 1997) (3-month period in 18 FMLA case insufficient); Hughes v. Derwinski, 967 F.2d 1168, 1174–1175 (7th Cir. 1992) 19 (4-month period in Title VII retaliation case insufficient). 20 21 Mr. Andrews has not established there is a triable fact as to his § 1981 retaliation claim, and defendants’ motion for summary judgment on this claim is GRANTED. 22 3. 23 Defendants contend Mr. Andrews’ FMLA claims alleging retaliation and 24 25 26 Interference with Exercise of FMLA Rights discriminatory termination fail as a matter of law. Mot. at 25. a) Anti-Termination and Anti-Retaliation Claims Mr. Andrews alleges he was retaliated against and terminated in violation of the 27 FMLA. SAC ¶¶ 139–159. “In the Ninth Circuit, the anti-retaliation or anti-discrimination 28 provisions do not cover visiting negative consequences on an employee simply because he has 27 1 used FMLA leave.” Bachelder v. Am. W. Airlines, Inc., 259 F.3d 1112, 1124 (9th Cir. 2001). 2 Instead, the anti-termination and retaliation provisions apply to discrimination and retaliation 3 against an employee after that employee has opposed an employer’s violation of the FMLA. Id. 4 Accordingly, where plaintiff alleges defendants terminated him based on the exercise of FMLA 5 rights, he has an interference claim under the FMLA. Id. Here, Mr. Andrews alleges only that 6 defendants retaliated against and terminated him because he exercised his right to take FMLA 7 leave, SAC ¶ 152, so the court construes his allegations as a single interference claim under the 8 FMLA, Bachelder, 259 F.3d at 1124. 9 10 b) Interference Claim The FMLA prevents an employer from interfering with the employee’s right to 11 take leave by refusing to authorize leave, discouraging the use of leave, or considering leave as a 12 negative factor in an employment action. Liu v. Amway Corp., 347 F.3d 1125, 1132–33 (9th Cir. 13 2003). To prevail on an interference claim, the plaintiff must prove by a preponderance of the 14 evidence that the taking of FMLA-protected leave constituted a negative factor in the decision to 15 terminate him. Bachelder, 259 F.3d at 1125. The plaintiff can prove this claim by using either 16 direct or circumstantial evidence, or both. Id. 17 Here, there is evidence bearing on the employer’s motives: PRIDE told 18 Mr. Andrews when it fired him that it based its decision on his inability to follow the directions of 19 the October 2, 2012 letter requiring that Mr. Andrews contact Andre Anthony by October 23, 20 2012 regarding his return to work. Walters Decl. Ex. M. Additionally, PRIDE contends it 21 terminated Mr. Andrews because of his disciplinary write-ups. Id. Ex. C. Mr. Andrews does not 22 point to any evidence suggesting his FMLA absence was considered a “negative factor” in the 23 firing decision. Further, after an independent review of the record, the court finds no evidence 24 suggesting the FMLA absence was considered a negative factor, or that PRIDE’s reason for 25 terminating Mr. Andrews was mere pretext to camouflage any interference with Mr. Andrews’ 26 FMLA rights. See Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1029 (9th Cir. 27 2001) (the court is not required to “comb the record” to find some reason to deny summary 28 judgment). Construing the evidence in a light most favorable to Mr. Andrews, no reasonable 28 1 juror could conclude Mr. Andrews was terminated on account of his FMLA leave. If anything, 2 PRIDE allowed a lengthy leave without expressing concern about the reason for the leave or its 3 length. Defendants’ motion on this claim is GRANTED. 4 4. 5 In sum, defendants’ motion for summary judgment as to federal claims is DENIED Summary 6 on Mr. Andrews’ § 1981 race discrimination claim, GRANTED on his § 1981 retaliation claim, 7 and GRANTED on his FMLA retaliation and discrimination claims construed as an interference 8 claim. 9 VII. 10 CONCLUSION For the foregoing reasons, the court DENIES defendants’ motion for summary 11 judgment on the following claims: (1) FEHA race discrimination, (2) FEHA hostile environment, 12 (3) FEHA failure to prevent discrimination, (4) wrongful termination in violation of public policy 13 and (5) § 1981 race discrimination. The court GRANTS defendants’ motion for summary 14 judgment on the following claims: (1) disability discrimination in the form of failure to 15 accommodate, (2) disability discrimination in the form of failure to engage in interactive process, 16 (3) § 1981 retaliation, and (4) interference with FMLA rights. 17 18 19 20 This order resolves ECF No. 65 and SUPERSEDES the order filed at ECF No. 95, which is VACATED. IT IS SO ORDERED. DATED: January 11, 2017 21 22 23 UNITED STATES DISTRICT JUDGE 24 25 26 27 28 29

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