Almaweri v. Walgreen Co.

Filing 60

ORDER Granting In Part and Denying In Part Defendant's Motion for Summary Judgment 43 by Magistrate Judge Elizabeth D. Laporte.(shyS, COURT STAFF) (Filed on 1/26/2015)

1
2
3
4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6
7

HASSEN ALMAWERI,

Case No. 13-cv-04920-EDL

Plaintiff,
8
v.
9
10

WALGREEN SPECIALTY PHARMACY,
LLC,

Re: Dkt. No. 43

Defendant.

11
United States District Court
Northern District of California

ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANT'S
MOTION FOR SUMMARY JUDGMENT

12
13

Before the Court is Defendant’s Motion for Summary Judgment in this employment

14

discrimination matter. The Court held a hearing on Defendant’s Motion on January 13, 2015. For

15

the reasons stated at the hearing and in this Order, Defendant’s Motion is granted in part and

16

denied in part.

17

Facts

18

Defendant is a national retail pharmacy chain that had 8,091 stores nationwide as of May

19

3, 2013. Declaration of Gorman Moy (“Moy Decl.”) at ¶ 2. Plaintiff is a former store manager for

20

Defendant who was terminated from his employment on May 3, 2013. Id. ¶ 3. He is a 53-year-

21

old Arab man. Declaration of Hassen Almaweri (“Almawari Decl.”) ¶ 2.

22

Plaintiff’s employment with Defendant began in 1989 and was at-will. Declaration of Rex

23

Berry (“Berry Decl.”) Ex. A at 58-59; Almaweri Decl. ¶ 2. Defendant’s employment policy

24

describes the employment relationship as follows:

25
26
27
28

Employment with Walgreen Co. is for no definite period, and may
be terminated at any time, with or without cause, at the option of
Walgreen Co. or the employee, and with or without warning or
notice by the Company. Further, no employee, Manager, or other
agent or representative of Walgreen Co. other than its Chief
Executive Officer, has authority to enter into any agreement for
employment for any specified period of time, or to make any

1

agreement contrary to the foregoing.
Moy Decl. Ex. A. Defendant’s Chief Executive Officer did not alter Plaintiff’s at-will

2
employment status. Berry Decl. Ex. A at 60. Further, Defendant’s discipline policy states: “The
3
progressive discipline policy is not a contract of employment between Walgreens’ family of
4
companies and any employee.” Moy Decl. Ex. B.
5
In 1999, Plaintiff was promoted to store manager and was placed in charge of the East
6
Oakland store (#3295). Almaweri Decl. ¶ 3. The East Oakland store was located in the Northern
7
Region District called District 58, comprised of about thirty-five stores. Id.
8
During his employment as a store manager from 1999 through 2010, Plaintiff states that he
9
met the expectations of his supervisors (Almaweri Decl. ¶ 4), but Defendant notes that Plaintiff
10
received three warnings during that time for poor performance, which Plaintiff does not dispute.
11
United States District Court
Northern District of California

In January 2003, Plaintiff received a verbal warning from his supervisor, District Manager Gordon
12
McAdams, for the poor condition of his store. Berry Decl. Ex. A at 61-64; A76. However,
13
McAdams also stated that Plaintiff was the best fit for the East Oakland store, and that he was a
14
“warrior” in the “toughest store in the district.” Brunner Decl. Ex. A at 4-42, 125.
15
In March 2006, Plaintiff’s supervisor, District Manager Keith Druyor, noted on Plaintiff’s
16
performance evaluation that his “store [is] usually a mess.” Berry Decl. Ex. A at 68; A77-79. In
17
May 2008, Druyor noted in Plaintiff’s performance evaluation that his “store condition is rough.”
18
Berry Decl. Ex. A at 71; A80-84. Plaintiff does not complain of any discrimination or harassment
19
by Druyor or McAdams. Berry Decl. Ex. A at 40-41.
20
In 2010, District Manager Gorman Moy replaced Druyor as Plaintiff’s supervisor. Berry
21
Decl. Ex. A at 77. Moy is responsible for the operation of stores within his district, ensuring that
22
the stores operate in compliance with Defendant’s corporate policies. Moy Decl. ¶ 21. He is not
23
an officer or director of Defendant, and does not have authority over operations other than those in
24
his district. Id. Moy does not establish corporate policy and does not exercise any discretion over
25
decisions that ultimately determine Defendant’s corporate policies. Id.
26
In August 2010, Moy gave Plaintiff a performance review that rated him as “meets
27
expectations.” Berry Decl. Ex. A at A88-90. This review contained both positive and negative
28
2

1

comments, including that Plaintiff “needs to be more involved” and “needs to keep a neater store.”

2

Id. Plaintiff signed off on this review, made no comments, and did not complain to anyone about

3

this evaluation. Berry Decl. Ex. A at 91; A90.

4

In August 2011, Moy gave Plaintiff another performance review. Berry Decl. Ex. A at 98-

5

100; A91-96. Moy noted, among other things, that Plaintiff “needs to develop a stronger sense of

6

urgency to complete tasks on time” and that Plaintiff had “too many missed deadlines.” Id. at

7

A91-96. Further, Moy noted that the “store has too many basic and ad outs [i.e., store our of

8

advertised items]. Staff isn’t pulling stockroom and leading to a disorganized stockroom.” Id.

9

Plaintiff signed off on this review, made no comments, and did not complain to anyone about the

10

review. Barry Decl. Ex. A at 98-100.

United States District Court
Northern District of California

11

In February 2012, Moy gave Plaintiff a disciplinary warning for “gross misconduct” for

12

being five minutes late to an all-day meeting at the district office, and because he was unable to

13

attend another meeting due to lack of coverage at his store. Almaweri Decl. ¶ 27. Plaintiff states

14

that he was five minutes late to the all-day meeting because his assistant store manager was stuck

15

in traffic and Plaintiff could not leave his store for the meeting until she arrived. Id.
While Plaintiff was the store manager of the East Oakland store, Coretta Howard worked

16
17

there as the head of the photo department. Declaration of Coretta Howard (“Howard Decl.”) ¶¶ 2-

18

3.1 Howard states that when Moy became the district manager in 2010, he started visiting the East

19

Oakland store more frequently, and “nit-picked whatever he could at the store.” Id. ¶ 4. Howard

20

stated that Plaintiff fixed all of Moy’s complaints, but the “visits and nit-picking only increased.”

21

Id. Howard states that since Plaintiff was transferred to San Pablo, Moy only visited the East

22

Oakland store two or three times in two years. Id.
Howard stated that Plaintiff worked very long hours and “devoted his life to Walgreens.”

23
24

Howard Decl. ¶ 5. Howard states that Plaintiff required all employees to be cross-trained in

25

several positions within the store. Id. ¶ 6. Under Plaintiff’s leadership, the East Oakland store

26
27
28

1

In a footnote in the reply, Defendant objects to the Howard declaration as hearsay and
opinion evidence. To the extent that Howard’s declaration contains hearsay, the Court does not
rely on these portions of it.
3

1

went from a disorganized store with a shop-lifting problem to being recognized as having the best

2

cash handling, best photo department and the best pharmacy in the district. Id. ¶¶ 7-8. Howard

3

states that Plaintiff was so effective in bringing down the “shrink rate,” that on more than one

4

occasion, loss prevention executives from corporate headquarters visited the store to learn how it

5

was possible to have such a low shrink rate in such an economically depressed area. Id. ¶ 8.
Howard also states that in 2011 and 2012, Moy and Alonso repeatedly told Plaintiff that he

6
7

was too old to be a store manager and suggested that he retire. Howard Decl. ¶ 9. Also during

8

that time, Howard heard Moy tell Plaintiff that he could not understand Plaintiff’s accent and

9

asked him to repeat himself. Id. ¶ 10. Howard states that this stood out to her because Moy’s tone

10

was condescending and because she never had trouble understanding Plaintiff. Id.
In April 2012, Moy transferred Plaintiff from the older store in East Oakland to the newest

United States District Court
Northern District of California

11
12

store in the area in San Pablo. Moy Decl. ¶ 7. Moy decided to transfer Plaintiff “in order to give

13

him a fresh start at a newer store, and to help him address some of his performance issues.” Id.

14

Plaintiff states that the transfer was not a promotion. Almaweri Decl. ¶ 9. Although Defendant

15

characterizes his deposition testimony as showing that he welcomed the promotion, instead,

16

Plaintiff testified at his deposition that: “I been requesting throughout my evaluation through all

17

the DMs I like to be transferred, I like to have a better store, and a higher store, not the lower

18

store; not lower volume, higher volume.” Brunner Decl. Ex. A at 125. Howard states that the

19

transfer was very quick and the transition to a new store manager in East Oakland was rough.

20

Howard Decl. ¶ 11. She states that a few weeks after the transfer, she called Market Vice-

21

President Bill Hose to talk about the transfer, and had to leave a message. Howard Decl. ¶ 18.

22

Howard’s new store manager pressured Howard to stop complaining about Plaintiff’s transfer. Id.

23

Others complained about the transfer as well, and Hose held a meeting with store employees. Id. ¶

24

20.

25

Plaintiff states that after he was transferred to San Pablo, a store with less sales volume and

26

ranked much lower than the East Oakland store, Defendant’s employees made ageist and racist

27

comments to him. Almaweri Decl. ¶¶ 5-7. Moy told Plaintiff that he was too old to do his job, did

28

not comprehend things, was too old to compete, was too old to perform his duties as a manager,
4

1

and that he would not “make it” in the new Walgreen’s era. Almaweri Decl. ¶ 5. Moy also told

2

Plaintiff that he preferred to give opportunities to “rookies” who would do better and learn faster

3

than Plaintiff. Id. Moy also told Plaintiff that Plaintiff was “stuck in his ways.” Id. In his

4

declaration, Plaintiff states that Moy frequently ridiculed Plaintiff in public, saying that his accent

5

was too difficult to understand. Id. ¶ 6. Moy testified that he never told Plaintiff that his accent

6

was difficult to understand. Brunner Decl. Ex. B at 133. In 2013, Plaintiff states that Emilio

7

Alonso, Defendant’s Community Leader for the geographic area, told Plaintiff that he should

8

resign and do work at 7-Eleven with his “kind of people.” Id. ¶ 7.

9

After Plaintiff was transferred in April 2012, over 300 community members and customers
signed a petition to have him returned to the East Oakland store. Almaweri Decl. ¶ 10; Howard

11
United States District Court
Northern District of California

10

Decl. ¶ 15. Plaintiff had no knowledge of the petition before it was sent to Defendant. Almaweri

12

Decl. ¶ 10. According to Plaintiff, Moy accused Plaintiff of orchestrating the petition. Id.

13

In September 2012, Moy gave Plaintiff a performance review in which he rated Plaintiff as

14

“partially achieving expectations.” Barry Decl. Ex. A at 101-117. Plaintiff signed off on the

15

review, made no comments, and did not complain about the review. Berry Decl. Ex. A at 141,

16

146. Plaintiff states that during this time, Moy gave Plaintiff lower scores in subjective areas than

17

his peers in the same categories, while making similar comments on the performance reviews.

18

Brunner Decl. Ex. B at 162 at Ex. 27; Seigel Decl. Ex. A at 11-13 at Exs. 60-62. For example,

19

Plaintiff claims that on his review, Moy gave him a two out of five score in the area of “Develops

20

Others,” but gave other store managers a higher score. The comment on Plaintiff’s performance

21

evaluation was: “Needs to cross train employees and hold them accountable. When is the last time

22

you wrote someone up or promoted someone? Focus on teaching the members of management

23

while they are at your store.” Berry Decl. Ex. 8 at A91-96. Other store managers receiving higher

24

scores had different comments such as: “Elizabeth has promoted two employees to management

25

over the past year” and “Done a nice job in training new employees at his previous store. Is

26

working on transitioning to same style at new store.” Siegel Decl. Ex. A at Ex. 16, 62.

27
28

In March 2012, Moy issued a written warning to Plaintiff for gross misconduct by failing
to attend to scheduled meeting with Moy. Berry Decl. Ex. A at A97-98. In August 2012, Plaintiff
5

1

was not present in his store for a scheduled supervisory meeting with Moy. Berry Decl. Ex. A at

2

A99-100. Plaintiff states in his declaration that Moy’s visit was not scheduled. Almaweri Decl. ¶

3

12. Plaintiff does not deny that he was not present for the unscheduled 8:00 a.m. visit, but states

4

that it was because he started his shift at 9:00 a.m. that day so there would be managerial coverage

5

in the store later in the day. Id. Plaintiff states that Moy later told Plaintiff that he agreed with this

6

managerial scheduling decision. Id.

7

Plaintiff states that when he was a manager in East Oakland, the Community Leader would

8

only visit his store once per month, and he did not write up notes of his meeting. Almaweri Decl.

9

¶ 13. But when Plaintiff was transferred to San Pablo, the Community Leader Alonso came to the

10

United States District Court
Northern District of California

11

store almost every day, wrote up his notes and shared them with Moy. Id.
In October 2012, Moy placed Plaintiff on a performance improvement plan (“PIP”) and

12

issued him a written warning based on his continued poor performance. Moy Decl. ¶ 8; Berry

13

Decl. Ex. A at A118-135; Almaweri Decl. ¶ 14. Plaintiff was given several areas in which to

14

improve. Berry Decl. Ex. A at A118-135. The PIP stated that if performance standards were not

15

met, Plaintiff could be subject to further discipline, including suspension. Barry Decl. Ex A at

16

A121. During this time, Alonso made weekly visits to Plaintiff’s store as part of the effort to help

17

Plaintiff succeed. Declaration of Emilio Alonso (“Alonso Decl.”) ¶ 2. As a Community Leader,

18

Alonso’s role was to be a resource and mentor for other store managers within his assigned

19

Community of six to eight stores, to provide guidance and assistance to them and to help them

20

operate in compliance with Defendant’s policies and procedures. Alonso Decl. ¶ 2. Alonso did

21

not manage or supervise other store managers, nor did he prepare performance reviews for store

22

managers or have the authority to terminate or discipline store managers. Alonso Decl. ¶ 2.

23

In January 2013, Moy determined that Plaintiff’s performance had improved, so that the

24

PIP could be closed. Moy Decl. ¶ 9; Almaweri Decl. ¶ 14. Plaintiff was advised that if he did not

25

sustain the improvement, the PIP could be reinstated. Id.

26

Shortly after the PIP was closed, Moy observed, based on personal visits to Plaintiff’s

27

store, that Plaintiff’s performance again began to deteriorate. Moy Decl. ¶ 10. Rather than

28

terminate Plaintiff, Moy reopened the PIP in March 2013 and issued a final written warning to
6

Plaintiff. Id. According to Plaintiff, Moy told Plaintiff at that time that there was an 85% chance

2

that Plaintiff was not going to “make it.” Almaweri Decl. ¶ 16. Plaintiff notes that the reopened

3

PIP included a requirement that Plaintiff “improve sales and customer service” even though his

4

store ranked among the highest in the district in many objective areas. Almaweri Decl. ¶ 16. For

5

example, in an April 2013 report showing the ranking of all stores in the district for suggestive

6

selling, that is the number of items sold by suggestive selling, Plaintiff’s store ranked fourth out of

7

thirty-three stores. Almaweri Decl. ¶ 17; Brunner Decl. Ex. B at Ex. 47. Plaintiff’s store also

8

showed a 29.1% sales increase during the March and April 2013 time period, which was tied with

9

fourth out of thirty-three stores in the district. Almaweri Decl. ¶ 19; Brunner Decl. Ex. B at Ex.

10

50. Further, Plaintiff’s store ranked fifth out of thirty-three stores in gross profit increase for the

11
United States District Court
Northern District of California

1

week ending March 30, 2013. Almaweri Decl. ¶ 20; Brunner Decl. Ex. B at Ex. 50. In a report

12

dated April 13, 2013, Plaintiff’s store had a sales increase of 12.3%, making it third in the district

13

and a gross profit increase of 6.8%, making it ninth in the district. Almaweri Decl ¶ 21; Brunner

14

Decl. Ex. B at Ex. 50. Sixteen stores had a sales decrease in that period. Id. On a report dated

15

April 18, 2013 showing “basic outs” (basic merchandise that all of Defendant’s stores should have

16

in stock), Plaintiff’s store ranked sixth out of thirty-three stores. Id. ¶ 22; Brunner Decl. Ex. B at

17

Ex. 48. In addition, according to Plaintiff, Moy told Plaintiff that he included the requirement

18

about sales and customer service in the PIP in part because he found Easter signage in the store

19

after the season. Almaweri Decl. ¶ 16. But Plaintiff states that the PIP was reopened weeks

20

before Easter. Id.

21

During two subsequent visits to Plaintiff’s store on March 30, 2013 and April 5, 2013,

22

Moy found that the store’s condition was poor. Moy Decl. ¶ 11. For example, Moy found

23

Valentine’s Day promotions still on display. Id. Plaintiff does not dispute that Moy talked to him

24

about these issues. Berry Decl. Ex. A at 179-187.

25

On April 22, 2013, Moy requested that Plaintiff attend a meeting at the District Office to

26

discuss his performance and reinstatement of the PIP. Moy Decl. ¶ 12. Also present were two

27

other employees, Community Leader Alonso and Operations Trainer Jennifer Johnson. Id.

28

During that meeting, Moy states that Plaintiff was hostile to Moy, and blamed others for his
7

1

performance problems and the poor condition of his store. Moy Decl. ¶ 12; Ex. C, D; Alonso

2

Decl. ¶ 3; Ex. A. Plaintiff states that he was prepared to review all the completed tasks from the

3

PIP in a binder that he had created. Almaweri Decl. ¶ 23. Plaintiff states that Moy did not review

4

the action steps listed on the PIP and instead told Plaintiff that he was “worth nothing.” Id.

5

Plaintiff contends that had Moy asked him about his action steps, he would have shown him the

6

project binder, but that Moy did not ask him for it. Id. At the end of the meeting, Plaintiff asked

7

Moy to review the binder, but Moy refused. Id. Plaintiff said that his tone at this meeting

8

changed because he was “responding to years of escalating discrimination and harassment, and

9

Moy’s refusal to review the tasks assigned in the PIP, which was the purpose of the meeting.”

10

United States District Court
Northern District of California

11

Almaweri Decl. ¶ 24.
Thereafter, Moy made the decision to terminate Plaintiff’s employment. Moy Decl. ¶ 13.

12

On May 3, 2013, Moy informed Plaintiff that he was terminated. Moy Decl. ¶ 13. Moy discussed

13

the decision to terminate Plaintiff with his supervisor, Market Vice-President Bill Hose, and with

14

representatives of Defendant’s Employee Relations Department. Moy Decl. ¶ 22. Hose is not an

15

officer or director of Defendant and is only responsible for the operation of stores within the area

16

to which he is assigned and to ensure that those stores operate in compliance with Defendant’s

17

corporate policies. Hose Decl. ¶ 2. Moy was not required to obtain any approval from Hose to

18

terminate Plaintiff. Moy Decl. ¶ 22. Plaintiff states that he was the only Arab store manager

19

under Moy’s supervision at the time. Almaweri Decl. ¶ 25.

20

Defendant contends that the May 3, 2013 meeting in which Plaintiff was terminated was

21

the first time that Plaintiff complained that he was subject to discrimination based on his national

22

origin (Arab) and his age. Berry Decl. Ex. A at 45-46; 235-236. Defendant initiated an

23

investigation after Plaintiff’s termination, but Plaintiff did not return calls from Defendant. Berry

24

Decl. Ex. A at 238-239. Plaintiff states in his declaration that he complained of discrimination and

25

harassment before Defendant terminated his employment. Almaweri Decl. ¶ 26. Plaintiff called

26

Hose in mid-April 2013 and emailed him one week later, requesting a phone call. Id. Hose called

27

Plaintiff on April 22, 2013, and Plaintiff informed him that Moy was harassing him and

28

discriminating against him. Id. Plaintiff states that Hose told Plaintiff that he would take care of
8

1
2

it, but did not do so. Id.
Moy stated that he did not consider Plaintiff’s age or national origin in making any

3

employment decision. Moy Decl. ¶ 14. Moy supervises a culturally diverse district including

4

store managers of numerous ethnic backgrounds ranging in age from mid-30s up to age 70. Moy

5

Decl. ¶ 14. Moy noted that in 2013, he promoted another store manager of Middle Eastern

6

descent. Moy Decl. ¶ 16. Plaintiff, however, states in his declaration that this store manager,

7

Rizwan Azam, is actually Indian, and not of Middle Eastern descent. Almaweri Decl. ¶ 8.

8

Defendant notes, however, that there is no evidence that Moy did not believe that Azam was of

9

Middle Eastern descent.
Also, it is undisputed that Moy stated that when Plaintiff was terminated, there were seven

11
United States District Court
Northern District of California

10

store managers in the district who were older than Plaintiff, and since Plaintiff’s termination, Moy

12

has promoted another employee who is older than Plaintiff. Moy Decl. ¶ 17. Moy stated that he

13

has disciplined and terminated store managers of various ethnic backgrounds, both younger and

14

older than Plaintiff, for performance issues. Moy Decl. ¶ 18.

15

Moy pointed out that the performance reviews of Plaintiff contain both positive and

16

negative comments, and that Moy approved Plaintiff’s transfer to a newer store in order to give

17

Plaintiff a fresh start. Moy Decl. ¶ 15. Moy stated that even though he put Plaintiff on a PIP, he

18

closed it when Plaintiff’s performance improved, and only reopened it when Plaintiff’s

19

performance began to slip, rather than terminating Plaintiff right away. Moy Decl. ¶ 15. Moy

20

stated that he never made any derogatory remarks to anyone about Plaintiff’s age or national

21

origin. Moy Decl. ¶ 19.

22

Defendant maintains extensive policies and procedures prohibiting workplace

23

discrimination, harassment or retaliation on any basis, including national origin and age. Moy

24

Decl. ¶ 4. Defendant also maintains easily accessible complaint procedures, including an Open

25

Door Policy and a Confidential Hotline. Moy Decl. ¶ 4. Defendant regularly provides training to

26

employees on company policies and on state and federal laws regarding discrimination,

27

harassment and retaliation. Moy Decl. ¶ 4. During his employment, Plaintiff received training on

28

Defendant’s policies against discrimination and harassment, and he understood the complaint
9

1

mechanisms that were available to him. Berry Decl. Ex. A at 43-44.

2

Legal Standard

3

Summary judgment shall be granted if “the pleadings, discovery and disclosure materials

4

on file, and any affidavits show that there is no genuine issue as to any material fact and that the

5

movant is entitled to judgment as a matter of law.” Fed. R. Civ. Pro. 56(c). Material facts are

6

those which may affect the outcome of the case. See Anderson v. Liberty Lobby, Inc., 477 U.S.

7

242, 248 (1986). A dispute as to a material fact is genuine if there is sufficient evidence for a

8

reasonable jury to return a verdict for the nonmoving party. Id. The court must view the facts in

9

the light most favorable to the non-moving party and give it the benefit of all reasonable
inferences to be drawn from those facts. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475

11
United States District Court
Northern District of California

10

U.S. 574, 587 (1986). The court must not weigh the evidence or determine the truth of the matter,

12

but only determine whether there is a genuine issue for trial. Balint v. Carson City, 180 F.3d

13

1047, 1054 (9th Cir. 1999).
A party seeking summary judgment bears the initial burden of informing the court of the

14
15

basis for its motion, and of identifying those portions of the pleadings and discovery responses

16

that demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477

17

U.S. 317, 323 (1986). Where the moving party will have the burden of proof at trial, it must

18

affirmatively demonstrate that no reasonable trier of fact could find other than for the moving

19

party. On an issue where the nonmoving party will bear the burden of proof at trial, the moving

20

party can prevail merely by pointing out to the district court that there is an absence of evidence to

21

support the nonmoving party’s case. Id. If the moving party meets its initial burden, the opposing

22

party “may not rely merely on allegations or denials in its own pleading;” rather, it must set forth

23

“specific facts showing a genuine issue for trial.” See Fed. R. Civ. P. 56(e)(2); Anderson, 477

24

U.S. at 250. If the nonmoving party fails to show that there is a genuine issue for trial, “the

25

moving party is entitled to judgment as a matter of law.” Celotex, 477 U.S. at 323.

26

Discussion

27

1.

28

Summary adjudication is denied as to Plaintiff’s first claim for discrimination.
Plaintiff’s first claim for relief alleges that Defendant violated California’s Fair
10

1

Employment and Housing Act, Government Code §§ 12940, et seq., by discriminating against him

2

based on his national origin and age.

3

Motions for summary judgment in employment discrimination actions are analyzed under
the burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792

5

(1973). See, e.g., Chuang v. University of California Davis, 225 F.3d 1115, 1123-24 (9th Cir.

6

2000) (citing McDonnell Douglas); Guz v. Bechtel, 24 Cal.4th 317, 380 (2000) (“In disparate

7

treatment cases, California courts apply the test that the United States Supreme Court articulated

8

in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 802–803, 93 S.Ct. 1817, 36 L.Ed.2d

9

668 (McDonnell Douglas) to assess such cases when brought under federal law.”). A plaintiff

10

alleging disparate treatment must first establish a triable issue of fact as to a prima facie case of

11
United States District Court
Northern District of California

4

discrimination by showing that: (1) he belongs to a protected class; (2) he was qualified for the

12

position; (3) he was subject to an adverse employment action; and (4) similarly situated

13

individuals outside his protected class were treated more favorably. See id. The proof necessary

14

for a plaintiff to establish a prima facie case is “minimal” and need not even rise to the level of a

15

preponderance of the evidence. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133,

16

143 (2000) (citing Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir. 1994)). The plaintiff

17

need only offer evidence that “gives rise to an inference of unlawful discrimination,” arising either

18

under the McDonnell Douglas presumption or by more direct evidence of discriminatory intent.

19

Wallis, 26 F.3d at 889.

20

Once a plaintiff has sufficiently shown a prima facie case of discrimination, the defendant

21

is entitled to come forward with a legitimate, nondiscriminatory reason for the adverse

22

employment action. See Reeves, 530 U.S. at 142 (citing Texas Dep't of Community Affairs v.

23

Burdine, 450 U.S. 248, 254 (1981)). The defendant's burden at this stage is one of production, not

24

persuasion. The court may not make a credibility assessment. See Reeves, 530 U.S. at 142 (citing

25

St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 509 (1993)).

26

If the defendant offers admissible evidence of a legitimate, nondiscriminatory reason for

27

the claimed adverse action, the McDonnell Douglas framework and its presumption of

28

discrimination disappears, and the plaintiff is left to prove by a preponderance of the evidence that
11

1

the reasons offered by the defendant are merely a pretext for discrimination. See Reeves, 530 U.S.

2

at 143 (citations omitted); Chuang, 225 F.3d at 1124 (the plaintiff must show that the articulated

3

reason is pretextual, “‘either directly by persuading a discriminatory reason more likely motivated

4

the employer or indirectly by showing that the employer's proffered explanation is unworthy of

5

credence.’”) (quoting Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981));

6

Dominguez-Curry v. Nevada Transp. Dep’t, 424 F.3d 1027, 1037 (9th Cir. 2005). The ultimate

7

burden of persuading the trier of fact that the employer intentionally discriminated remains at all

8

times with the plaintiff. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000)

9

(citing Burdine, 450 U.S. at 253); see also Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1222
(9th Cir. 1998) (“In those cases where direct evidence is unavailable, however, the plaintiff may

11
United States District Court
Northern District of California

10

come forward with circumstantial evidence that tends to show that the employer's proffered

12

motives were not the actual motives because they are inconsistent or otherwise not believable.

13

Such evidence of ‘pretense’ must be ‘specific’ and ‘substantial’ in order to create a triable issue

14

with respect to whether the employer intended to discriminate on the basis of sex.”).

15

A.

16

Defendant argues that Plaintiff cannot make a prima facie showing that he was

17

competently performing his job, that is, that he was qualified for his position. Defendant notes

18

that Plaintiff received counseling and discipline for poor performance, including the poor

19

condition of his store, dating back to 2003, long before he started reporting to Moy. When Moy

20

became Plaintiff’s supervisor, Plaintiff continued to receive poor performance evaluations,

21

including notations that he missed deadlines and had no sense of urgency. Moy also noted that

22

Plaintiff’s store was in a poor condition. Moy eventually put Plaintiff on a PIP, which was closed,

23

but later reopened because Plaintiff’s performance declined. Thus, Defendant argues that Plaintiff

24

cannot establish a prima facie case of discrimination.

25

Prima facie case

The requirements of a prima facie case, however, are minimal. Plaintiff has provided

26

evidence that his San Pablo store was performing within at least the top ten of the stores in the

27

district with respect to objective criteria such as sales and gross profits. Further, before Plaintiff

28

arrived at the East Oakland store, it was disorganized, had low profits and had a shop-lifting
12

1

problem. Howard Decl. ¶ 8. McAdams called Plaintiff a “warrior” in the “toughest store in the

2

district.” McAdams also said that Plaintiff was the best fit for that store. When Moy reopened the

3

PIP in March 2013, Plaintiff’s store ranked fourth out of the thirty-three stores in Moy’s district in

4

the areas of sales and customer service. Although Plaintiff did not raise any issues of

5

discrimination at the time that the performance reviews were given to him, and those reviews

6

listed problems such as missed deadlines, lack of sense of urgency, and having to be “chased

7

down” for compliance on work issues (Berry Decl. Ex. A at A88-96, A101-117), Plaintiff testified

8

that he did not complain because he was “trying to build a new relationship with the [District

9

Manager].” Berry Decl. Ex. A at 91. Thus, Plaintiff has met the low threshold of showing a

10

triable issue of fact as to whether Plaintiff was performing competently in his position.

United States District Court
Northern District of California

11

B.

Legitimate, nondiscriminatory reason

12

“A reason is ‘legitimate’ if it is ‘facially unrelated to prohibited bias, and which if true,

13

would thus preclude a finding of discrimination.’” Washington v. California City Correction

14

Center, 871 F. Supp. 2d 1010, 1026 (E.D. Cal. 2012) (internal citation omitted). Here, Defendant

15

has established a legitimate, non-discriminatory reason for terminating Plaintiff. According to

16

Defendant, Plaintiff was performing poorly and was unable to improve despite many chances

17

given by Moy. Defendant also notes that Plaintiff was reportedly hostile and combative during the

18

April 22, 2013 meeting with Moy and others. Defendant has met its burden of showing a triable

19

issue of fact as to whether there was legitimate and non-discriminatory reason for terminating

20

Plaintiff.

21

C.

Pretext

22

A showing that the legitimate reason proffered by the employer is pretextual must be

23

supported by “specific, substantial evidence.” Steckl v. Motorola, 703 F.2d 392, 393 (9th Cir.

24

1983). “A plaintiff may demonstrate pretext in either of two ways: (1) directly, by showing that

25

unlawful discrimination more likely than not motivated the employer; or (2) indirectly, by

26

showing that the employer's proffered explanation is unworthy of credence because it is internally

27

inconsistent or otherwise not believable.” Washington, 871 F. Supp. 2d at 1026. A plaintiff may

28

not “create a genuine issue of material fact by relying solely on the plaintiff's subjective belief that
13

1

the challenged employment action was unnecessary or unwarranted.” Cornwall v. Electra Cent.

2

Credit Union, 438 F.3d 1018, 1029 n.6 (9th Cir. 2006).

3

Here, Plaintiff has met his burden of raising a triable issue of fact regarding pretext, and

4

does not rely merely on a subjective argument of fairness. First, there is a disputed issue of fact as

5

to whether Moy made racist and ageist comment to and about Plaintiff. Plaintiff testified that after

6

he was transferred to the San Pablo store, Moy commented that Plaintiff was “too old to do his

7

job,” “did not comprehend things,” was “too old to compete,” was “too old to perform his duties”

8

as a manager, that he would not “make it in the new Walgreens era,” that Moy “preferred to give

9

opportunities to rookies,” and that “rookies could do better and learn faster” than Plaintiff.
Almaweri Decl. ¶ 5. Plaintiff also testified that Moy “frequently ridiculed” Plaintiff in public,

11
United States District Court
Northern District of California

10

saying that his accent was too difficult to understand. Almaweri Decl. ¶ 6. Alonso reportedly told

12

Plaintiff in 2013 to go work at “7-Eleven” with his “kind of people,” and while he was not

13

Plaintiff’s supervisor, he was the Community Leader for Plaintiff’s store and visited Plaintiff’s

14

store almost every day, writing up his notes and sharing them with Moy. Almaweri Decl. ¶ 7.

15

Moy and Alonso deny making these racist and ageist statements. Although Defendant argues that

16

these remarks were too remote in time to constitute any inference of discriminatory animus (see

17

Martin v. Genesco, Inc., 2008 WL 4816455, at * (E.D. Cal. Nov. 5, 2008) (comments made one

18

year before the termination, among other things, did not show pretext), these remarks were

19

allegedly made in the time after Plaintiff was transferred to the new store and through 2013 when

20

he was terminated.

21

Plaintiff has also provided other facts to support a triable issue of fact as to pretext.

22

Defendant does not dispute that Moy replaced Plaintiff with a younger, non-Arab woman, which

23

Plaintiff claims is further evidence of Defendant’s discriminatory intent. Further, Plaintiff states

24

that he was the only Arab employee to be terminated. While Plaintiff also states that Moy did not

25

promote another Arab employee and that Azam was Indian, not Middle Eastern, he has no

26

evidence that Moy knew that the promoted employee was actually Indian and not Middle Eastern.

27

Also, objective criteria show that the San Pablo store was performing in a number of ways near

28

the top of the district’s thirty-three stores under Plaintiff’s leadership. Plaintiff’s lowest scores on
14

1

his performance evaluations are in subjective criteria, which is relevant to the pretext issue. See

2

Atonio v. Wards Cove Packing Co., 810 F.2d 1477, 1481 (9th Cir. 1987) (“. . . we have stated that

3

subjective practices are particularly susceptible to discriminatory abuse and should be closely

4

scrutinized.”).

5

Plaintiff has raised a triable issue of fact as to his prima facie case and as to pretext.

6

Therefore, Defendant’s Motion for Summary Adjudication as to Plaintiff’s discrimination claim is

7

denied.

8

2.

Summary adjudication is granted as to Plaintiff’s first claim for harassment.
To prevail on his harassment claims, Plaintiff must show that: (1) he was subjected to

9

verbal or physical conduct because of his membership in a protected class; (2) the conduct was

11
United States District Court
Northern District of California

10

“unwelcome”; and (3) “the conduct was sufficiently severe or pervasive to alter the conditions of

12

the plaintiff's employment and create an abusive work environment.” Kang v. U. Lim America,

13

Inc., 296 F.3d 810, 817 (9th Cir.2002) (citing Gregory v. Widnall, 153 F.3d 1071, 1074 (9th

14

Cir.1998)). An “employee claiming harassment based upon a hostile work environment must

15

demonstrate that the conduct complained of was severe enough or sufficiently pervasive to alter

16

the conditions of employment and create a work environment that qualifies as hostile or abusive to

17

employees.” Lyle v. Warner Bros. Television Prods., 38 Cal.4th 264, 279 (2006) (emphasis in

18

original); see also Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993). At the hearing, Plaintiff

19

stated that he was not pursuing a harassment claim based on national origin or age. Thus,

20

Defendant’s Motion for Summary Adjudication as to Plaintiff’s harassment claim is granted.

21

3.

22

Summary adjudication is granted as to Plaintiff’s second claim for
breach of employment contract.
In his opposition, Plaintiff concedes that it is undisputed that he was an at will employee

23
with no employment contract, so there can be no breach of employment contract claim. Summary
24
adjudication is granted as to this claim.
25
26

4.

Summary adjudication is denied as to Plaintiff’s third claim for failure
to prevent discrimination and harassment

27

Under California law, an employer may violate California law by failing to “take all

28

reasonable steps necessary to prevent discrimination and harassment from occurring.” Cal. Gov’t
15

1

Code § 12940(k). “When a plaintiff seeks to recover damages based on a claim of failure to

2

prevent discrimination or harassment she must show three essential elements: 1) plaintiff was

3

subjected to discrimination, harassment or retaliation; 2) defendant failed to take all reasonable

4

steps to prevent discrimination, harassment or retaliation; and 3) this failure caused plaintiff to

5

suffer injury, damage, loss or harm.” Lelaind v. City & County of San Francisco, 576 F. Supp. 2d

6

1079, 1103 (N.D. Cal. 2008).
As described above, there is a triable issue of fact as to discrimination. Further, Plaintiff

7
8

has raised a triable issue of fact that Defendant failed to take all reasonable steps to prevent

9

discrimination. Plaintiff states in his declaration that he called Hose in mid-April 2013 and finally
talked to him on April 22, 2013, prior to his termination. Almaweri Decl. ¶ 26. Plaintiff states

11
United States District Court
Northern District of California

10

that he told Hose that Moy was harassing him and discriminating against him based on his race

12

and national origin, and that Hose promised to take care of it, but did not. Id. Although

13

Defendant argues that Plaintiff’s deposition is to the contrary so his declaration should be ignored

14

as a sham (see, e.g., Yeager v. Bowlin, 693 F.3d 1076, 1080 (9th Cir. 2012)), Plaintiff’s deposition

15

is consistent with his declaration. Defendant only points to his deposition testimony that he did

16

not call the 1-800 employee assistance number before he was terminated, but only on the date of

17

his termination. Berry Decl. Ex. A at 45-46. However, Plaintiff also testified that he called

18

someone else prior to his termination to complain about discrimination and harassment. Berry

19

Decl. Ex. A at 46. Plaintiff was not asked in his deposition, nor did he testify, as to whether he

20

complained to Hose or anyone else prior to his termination. Thus, because Plaintiff has created a

21

triable issue of fact as to this claim, summary adjudication is denied.

22

5.

23

Summary adjudication is granted as to Plaintiff’s claim for punitive damages.
To prevail on a claim for punitive damages, a plaintiff must establish “oppression, fraud or

24

malice” and that the conduct at issue was performed or ratified by an “officer, director or

25

managing agent” by clear and convincing evidence. Barton v. Alexander Hamilton Life Ins. Co.

26

of Amer., 110 Cal.App.4th 1640, 1644 (2003). “The clear and convincing standard requires a

27

finding of high probability ... so clear as to leave no substantial doubt; sufficiently strong to

28

command the unhesitating assent of every reasonable mind.” Scott v. Phoenix Schools, Inc., 175
16

Cal.App.4th 702, 715 (2009) (internal quotation marks omitted). “If the plaintiff is going to

2

prevail on a punitive damages claim, he or she can only do so by establishing malice, oppression

3

or fraud by clear and convincing evidence. Thus, any evidence submitted in response to a motion

4

for summary adjudication must necessarily meet that standard.” Basich v. Allstate Ins. Co., 87

5

Cal.App.4th 1112, 1118–19 (2001). California Civil Code section 3294 “permits punitive

6

damages against a corporate employer if the employee is sufficiently high in the corporation's

7

decision-making hierarchy to be an ‘officer, director or managing agent.’” Gelfo v. Lockheed

8

Martin Corp., 140 Cal.App.4th 34, 63 (2006) citing White v. Ultramar, Inc., 21 Cal.4th 563, 572

9

(1999). “‘Managing agents' are employees who ‘exercise [ ] substantial discretionary authority

10

over decisions that ultimately determine corporate policy.’” Cruz v. HomeBase, 83 Cal.App.4th

11
United States District Court
Northern District of California

1

160, 167 (2000) (internal citations and italics omitted). “In order to demonstrate that an employee

12

is a true managing agent under section 3294, subdivision (b), a plaintiff seeking punitive damages

13

would have to show that the employee exercised substantial discretionary authority over

14

significant aspects of a corporation's business.” White, 21 Cal.4th at 577.

15

Defendant argues that Moy is not a corporate officer of Defendant, nor he is a member of

16

the Board of Directors. Defendant argues that there is no evidence that he was acting as a

17

managing agent when he terminated Plaintiff. Moy is a district manager who is responsible solely

18

for the 33 stores within his district, which represents 0.41% of the 8,091 stores nationwide. Moy

19

Decl. ¶ 21. Moy’s authority is to ensure that his stores operate within the corporate policies,

20

which he does not establish. Id. Moy does not exercise substantial discretion over decisions that

21

ultimately determine Defendant’s corporate policies. Id.; see also Roby v. McKesson Corp., 47

22

Cal.4th 686, 714 (2009) (“When we spoke in White about persons having ‘discretionary authority

23

over ... corporate policy,’ we were referring to formal policies that affect a substantial portion of

24

the company and that are the type likely to come to the attention of corporate leadership. It is this

25

sort of broad authority that justifies punishing an entire company for an otherwise isolated act of

26

oppression, fraud, or malice.”) (internal citation omitted).

27
28

Plaintiff does not provide evidence to dispute these facts. Instead, Plaintiff argues that
there is a triable issue of fact as to whether Moy acted as a managing agent, relying in White v.
17

1

Ultramar, Inc., 21 Cal.4th 563 (1999). In White, the court concluded that the manager who fired

2

the plaintiff was a managing agent:

3

As the zone manager for Ultramar, Salla was responsible for
managing eight stores, including two stores in the San Diego area,
and at least sixty-five employees. The individual store managers
reported to her, and Salla reported to department heads in the
corporation's retail management department.

4
5
6

The supervision of eight retail stores and sixty-five
employees is a significant aspect of Ultramar's business. The
testimony of Salla's superiors establishes that they delegated most, if
not all, of the responsibility for running these stores to her. The fact
that Salla spoke with other employees and consulted the human
resources department before firing plaintiff does not detract from her
admitted ability to act independently of those sources. In sum, Salla
exercised substantial discretionary authority over vital aspects of
Ultramar's business that included managing numerous stores on a
daily basis and making significant decisions affecting both store and
company policy. In firing White for testifying at an unemployment
hearing, Salla exercised substantial discretionary authority over
decisions that ultimately determined corporate policy in a most
crucial aspect of Ultramar's business.

7
8
9
10

United States District Court
Northern District of California

11
12
13

White, 21 Cal.4th at 577. This case is not substantially similar to White. In White, the decision
14
was based on part on the fact that the supervisor was responsible for a “significant aspect” of the
15
defendant’s business. Plaintiff has not met his burden of showing by clear and convincing
16
evidence that Moy was responsible for a significant aspect of Defendant’s business. Also,
17
Plaintiff has not presented evidence that Moy made “significant decisions affecting both store and
18
company policy.” Because Plaintiff has not met his burden of raising a triable issue of fact as to
19
whether Moy is a managing agent of Defendant, and has not established by clear and convincing
20
evidence that Defendant engaged in conduct amounting to oppression, fraud or malice (Cal. Civ.
21
Code § 3294(b)), Defendant’s Motion for Summary Adjudication as to punitive damages is
22
granted.
23
Conclusion
24
Accordingly, Defendant’s Motion for Summary Judgment is granted in part and denied in
25
part.
26
IT IS SO ORDERED.
27
Dated: January 26, 2015
28
18

1
2

______________________________________
ELIZABETH D. LAPORTE
United States Magistrate Judge

3
4
5
6
7
8
9
10

United States District Court
Northern District of California

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
19