Matsumoto-Herera v. Continental Casualty Company

Filing 52

Order by Hon. Vince Chhabria granting in part and denying in part 38 Motion for Summary Judgment.(knm, COURT STAFF) (Filed on 8/27/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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GINGER MATSUMOTO-HERRERA,

Case No. 14-cv-03626-VC

Plaintiff,
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v.
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CONTINENTAL CASUALTY COMPANY,
Defendant.

ORDER GRANTING IN PART AND
DENYING IN PART MOTION FOR
SUMMARY JUDGMENT
Re: Dkt. No. 38

United States District Court
Northern District of California

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Continental Casualty's motion for summary judgment is granted in part and denied in part.
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Mastumoto-Herrera's FEHA claims for age and disability discrimination based on Continental
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Casualty's decision to pass her over for the Operations Director position must go to trial. Her
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remaining claims may not.
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Age and Disability Discrimination Claims Concerning the Operations Director Position
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There is a genuine issue of fact on whether Continental Casualty's decision to pass over
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Matsumoto-Herrera for the Operations Director position was based partly on her age and
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disability, and whether the decisionmakers' subsequent explanation for passing her over was
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pretextual. The following evidence prevents the Court from concluding that no reasonable juror
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could find for Matsumoto-Herrera on this question:
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When Matsumoto-Herrera interviewed for the position, the decisionmakers were aware

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she was 53 years old and had just gone out on temporary medical leave.
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The candidate they hired, Olga Brody, was 38 years old.

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The job description for the Operations Director position stated that five years of

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managerial experience was "preferred." Brody had no experience directly managing
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employees, while Matsumoto-Herrera had more than five years.
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people the Operations Director would be called upon to manage.

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Matsumoto-Herrera's managerial experience was with underwriting technicians – the

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Although the decisionmakers said in deposition that they were not convinced

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Matsumoto-Herrera had the "strategic skills" needed for the position, her performance

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reviews (which were uniformly positive over the years) hinted that she had these skills.

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Although the decisionmakers touted Brody's "strategic skills" in their depositions, they

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spoke of this issue at a high level of generality, without providing clear examples or

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explaining with any specificity what they meant.

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Brody was fired a year later for inadequate performance. See Godwin v. Hunt Wesson,
Inc., 150 F.3d 1217, 1222 (9th Cir. 1998) ("Facts tending to show that the chosen

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United States District Court
Northern District of California

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applicant may not have been the best person for the job are probative as they 'suggest

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that [the explanation] may not have been the real reason for choosing [the chosen

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applicant] over the [plaintiff].'") (quoting Lindahl v. Air Franc, 930 F.2d 1413, 1439

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(9th Cir. 1991)); cf. Williams v. Edward Apffels Coffee Co., 792 F.2d 1482, 1487 (9th

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Cir. 1986).

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To be sure, there is a good deal of evidence from which a jury could conclude that

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Continental Casualty's decision to pass over Matsumoto-Herrera for the Operations Director

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position was not discriminatory, and that the decision to hire Brody was merely a mistake. But the

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above-cited evidence constitutes "specific and substantial facts" to create a triable issue on pretext.

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See Earl v. Nielsen Media Research, Inc., 658 F.3d 1108, 1112-13 (9th Cir. 2011).

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Remaining FEHA Discrimination Claims

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Continental Casualty provides legitimate non-discriminatory reasons for eliminating

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Matsumoto-Herrera's Support Services Manager position and for not interviewing her for the

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administrative assistant position. The Support Services Manager position was eliminated as part

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of a restructuring of Continental Casualty's field operations by Andrew Cohen, who did not know

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that Matsumoto-Herrera held the position when it was eliminated. Matsumoto-Herrera was not

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interviewed for the administrative assistant position because, unlike those who were, she had not

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recently served as an administrative assistant, and because her prior salary was approximately
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$50,000 higher than the offered salary for that position, which caused concern that Matsumoto-

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Herrera would leave promptly upon finding a higher paying position. Matsumoto-Herrera points

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to no evidence suggesting that these reasons for eliminating her position or for not interviewing

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her for the administrative assistant position were a "mask for prohibited [] bias." Guz v. Bechtel

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Nat'l, Inc., 24 Cal. 4th 317, 353 (2000).

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Matsumoto-Herrera also provides no evidence to create a triable dispute on her gender

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discrimination claims. Women were hired for both the Operations Director and administrative

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assistant positions. See Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1062 (9th Cir. 2002).
Claim for Failure to Prevent Discrimination

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There is no genuine issue of fact on whether Continental Casualty failed to prevent

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United States District Court
Northern District of California

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discrimination. Matsumoto-Herrera has provided no evidence suggesting that Continental

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Casualty "failed to take all reasonable steps to prevent discrimination" and that "this failure caused

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[her] to suffer injury." Lelaind v. City & County of San Francisco, 576 F. Supp. 2d 1079, 1103

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(N.D. Cal. 2008) (citing Cal. Civil Jury Instructions (BAJI) 12.11). She notes that two Continental

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Casualty employees did not receive disability discrimination training, but there is no evidence

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either employee was involved in the decision to hire Brody, rather than Matsumoto-Herrera, for

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the Operations Director position.

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Claim for Wrongful Termination

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As discussed above, Matsumoto-Herrera fails to raise a triable dispute on her claim that her

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position was eliminated in violation of FEHA. Therefore, her claim for wrongful termination also

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fails. See Haney v. Aramark Uniform Servs., Inc., 121 Cal. App. 4th 623, 641 (2004) (for

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wrongful termination claim, plaintiff must show that "the alleged violation of public policy was a

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motivating reason for the discharge").1

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Claims Relating to Interactive Process and Reasonable Accommodation

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To survive summary judgment on her claim for failure to engage in the interactive process,

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Matsumoto-Herrera must establish a triable dispute on whether she initiated the process, identified

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Matusumoto-Herrera does not argue that her wrongful termination claim can somehow be linked
to Continental's decision to pass her over for the Operations Director position.
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the disability and resulting limitation, and suggested some reasonable accommodation. See Scotch

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v. Art Inst. of Cal.-Orange Cnty., Inc., 173 Cal. App. 4th 986, 1013 (2009). But Matsumoto-

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Herrera never informed anyone at Continental Casualty of any limitation she had as a result of a

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disability beyond the need for time off, which Continental Casualty gave her.

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Nor does Matsumoto-Herrera provide any evidence that Continental Casualty failed to

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offer a reasonable accommodation. See id. at 1009-12. She did not propose any accommodation

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to Continental Casualty beyond her requests for time off.

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Claim for Violation of FMLA/CFRA

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Matsumoto-Herrera provides no evidence of a connection between the decision to
eliminate her Support Services Manager position and her request for medical leave. See

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United States District Court
Northern District of California

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Bachelder v. Am. W. Airlines, Inc., 259 F.3d 1112, 1125 (9th Cir. 2001) (for FMLA claim,

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plaintiff must "prove by a preponderance of the evidence that her taking of FMLA-protected leave

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constituted a negative factor in the decision to terminate her"); Faust v. Cal. Portland Cement Co.,

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150 Cal. App. 4th 864, 885 (2007) (for CFRA claim, plaintiff must show that she "suffered an

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adverse employment action, such as termination, fine, or suspension, because of her exercise of

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her right to CFRA leave"). She points out that she originally requested medical leave beginning

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February 1, 2013, months before Continental Casualty decided to eliminate her position. But as

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noted above, Cohen, who drove the restructuring process that resulted in Matsumoto-Herrera's

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position being eliminated, did not know who held the Support Services Manager position. There

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is no evidence suggesting that anyone involved in the decision to eliminate the Support Services

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Manager position was aware of Matsumoto-Herrera's February 1 request for medical leave.

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Claim for Intentional Infliction of Emotional Distress

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Matsumoto-Herrera points to no conduct by Continental Casualty or any of its employees

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that "is so extreme as to exceed all bounds of that usually tolerated in a civilized community."

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Kelley v. Conco Cos., 196 Cal. App. 4th 191, 215 (2011) (citation and internal quotation marks

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omitted); see also Janken v. GM Hughes Elecs., 46 Cal. App. 4th 55, 80 (1996) ("A simple

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pleading of personnel management activity is insufficient to support a claim of intentional

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infliction of emotional distress, even if improper motivation is alleged. . . . [T]he remedy is a suit
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against the employer for discrimination.").

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Claim for Negligent Infliction of Emotional Distress

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Nor does Matsumoto-Herrera point to evidence showing that she suffered "serious

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emotional distress," which would be necessary to support a claim for negligent infliction of

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emotional distress. See Wong v. Jing, 189 Cal. App. 4th 1354, 1377-78 (2010). Contrary to

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Continental Casualty's argument, Matsumoto-Herrera is not required to have seen a therapist or to

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have been treated with medication prior to her deposition to create a fact issue with respect to

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emotional distress. But she must provide more than a conclusory declaration stating that her self-

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esteem has been "shattered" and that she continues "to feel a lack of self-worth and despair." See
id. (tort requires "emotional distress of such substantial quality or enduring quality that no

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United States District Court
Northern District of California

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reasonable [person] in civilized society should be expected to endure it" (citations and internal

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quotation marks omitted)).

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IT IS SO ORDERED.
Dated: August 27, 2015
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VINCE CHHABRIA
United States District Judge

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