Mendoza v. Kindred Healthcare Operating, Inc. et al

Filing 55

ORDER by Judge Yvonne Gonzalez Rogers granting 33 Motion for Summary Judgment. Defendants are hereby ORDERED to submit a proposed judgment consistent with this Order. A compliance hearing regarding the filing of a proposed judgment shall be held on Friday, June 29, 2012 on the Court's 9:01 a.m. calendar. (fs, COURT STAFF) (Filed on 6/5/2012)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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CARLITO MENDOZA,

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Plaintiff,

Case No.: 11-cv-00666-YGR
ORDER GRANTING DEFENDANTS’ MOTION
FOR SUMMARY JUDGMENT

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vs.
KINDRED HEALTHCARE OPERATING,
INC., et al.,

Northern District of California

United States District Court

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Defendants.

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Plaintiff Carlito Mendoza brings this employment discrimination, retaliation, and harassment
action against Defendants Kindred Healthcare Operating, Inc., Kindred Hospitals West, LLC, and
Kindred Nursing Centers West, LLC (collectively, “Defendants”). Plaintiff alleges seven claims
against Defendants: (1) discrimination based on national origin (Title VII); (2) retaliation (Title VII);
(3) harassment (Title VII); (4) violation of 42 U.S.C. section 1981; (5) discrimination based on

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national origin (California Fair Employment and Housing Act (“FEHA”)); (6) retaliation (FEHA);
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and (9) [sic] harassment (FEHA). (Dkt. No. 1 (“Compl.”).)
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Defendants filed a Motion for Summary Judgment or, in the Alternative, Summary
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Adjudication on April 10, 2012. (Dkt. No. 33 (“Motion” or “Mot.”); see also Dkt. Nos. 34–41.) The
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Motion is made as to all claims alleged by Plaintiff and as to Plaintiff’s claim for punitive damages.
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On April 24, 2012, Plaintiff filed his Opposition to Defendants’ Motion for Summary Judgment, or, in
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the Alternative, Summary Adjudication. (Dkt. No. 42 (“Opposition” or “Opp.”); see also Dkt. Nos.
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43–45, 47 & 52–53.) Defendants filed their Reply in Support of their Motion for Summary Judgment
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on May 1, 2012. (Dkt. No. 48 (“Reply”); see also Dkt. Nos. 49–50.) On May 15, 2012, the Court

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held oral argument on Defendants’ Motion. (Dkt. No. 54.)
Having carefully considered the papers submitted and the pleadings in this action, and for the

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reasons set forth below, the Court hereby GRANTS Defendants’ Motion for Summary Judgment.

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I.

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FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff works at the Tunnell Center for Rehabilitation and Healthcare (“Tunnell”) in San

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Francisco as a Certified Nursing Assistant (“CNA”). (Dkt. No. 34, Declaration of D. Gregory

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Valenza in Support of Defendants’ Motion for Summary Judgment, Ex. A (Videotaped Deposition of

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Carlito Mendoza (“Mendoza Dep.”)) 13:25–14:25.) Kindred Nursing Centers West, LLC operates

Northern District of California

Tunnell and is Plaintiff’s only employer. Kindred Healthcare Operating, Inc. and Kindred Hospitals

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United States District Court

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West, LLC are related, but separate, entities from Kindred Nursing Centers West, LLC. (Dkt. No. 38,

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Declaration of Jeremy Ballard in Support of Defendants’ Motion for Summary Judgment ¶¶ 3–5.)

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Plaintiff has been employed continuously at Tunnell since 2002. Muriel Han is the Executive

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Director of Tunnell and has held that position since March 17, 2010. (Dkt. No. 35, Declaration of

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Muriel Han in Support of Defendants’ Motion for Summary Judgment (“Han Decl.”) ¶¶ 2–3.) She

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manages Tunnell’s day-to-day operations and is its highest ranking administrator. Id. ¶¶ 3–4.

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As a CNA, Plaintiff assists patients with their daily living needs, including, for example,

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transferring patients from their beds, feeding and bathing, assisting them with maintaining their range

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of motion, ensuring patients are properly turned and lifted, and making sure they are clean and not at

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risk of infection. Mendoza Dep. 21:15–22:15 & 26:17–23. CNAs receive “in-service” training on

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subjects including transferring/turning patients, charting, and reporting patient abuse. Id. 26:24–

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27:13, 27:21–28:1 & 43:10–15.

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In November 2009, a Tunnell patient complained that a CNA had slapped her in the face.

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(Dkt. No. 37, Declaration of Cherry Bautista in Support of Defendants’ Motion for Summary

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Judgment (“Bautista Decl.”) ¶ 4.) Cherry Bautista, Tunnell’s Assistant Director of Nursing Services

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participated in the investigation of the incident, including interviewing Plaintiff and the supervising

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nurse on duty. Id. ¶ 4. In the course of its investigation, Tunnell suspected Plaintiff in this incident

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because he was on duty at the time of the alleged incident and took care of the complaining patient.

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Id. ¶ 4. Plaintiff was suspended during the investigation into the allegations. Id. ¶ 4; see Mendoza

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Dep. 76:19–23, 77:8–16 & 77:25–78:6. Following its investigation, Tunnell was unable to

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substantiate the allegations because nobody witnessed the alleged abuse. Bautista Decl. ¶ 4.

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Within four months later (prior to March 2010), Plaintiff was accused of patient neglect in

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another incident. Mendoza Dep. 78:7–81:3. Specifically, a fellow CNA who worked on the same

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shift as Plaintiff accused him of neglecting to change a patient. Id. Tunnell investigated that

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accusation, during which it suspended Plaintiff for approximately two or three days. Id. Again, the

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incident was not substantiated. Id. The slapping and patient neglect accusations both occurred prior

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to when Han became Executive Director of Tunnell. Mendoza Dep. 80:19–22 & 81:16–18; Han Decl.

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Northern District of California

United States District Court

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¶¶ 3 & 5.
On July 28, 2010, a patient’s wife reported to Han that one or two weeks prior, a CNA had

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handled her husband in a rough manner. Han Decl. ¶ 14. Han immediately began an investigation,

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which included interviewing the patient’s wife, the patient’s daughter, and Tunnell staff. Id. Han met

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with Plaintiff and two other CNAs who regularly worked on the second floor during the shift in which

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the patient’s wife claimed the abuse occurred. Id. ¶ 15; Mendoza Dep. 39:20–40:7. Han requested

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their consent to be photographed so that the patient’s wife could identify who had handled her

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husband roughly. Han Decl. ¶ 15; Mendoza Dep. 40:13–24. The CNAs stated they did not want their

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pictures to be taken, but agreed so they could return to work. Mendoza Dep. 40:13–24. They agreed

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to use their union steward’s cell phone to take the pictures. Id. 48:2–9. Plaintiff was informed that

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the wife had selected him from the photographs as the person who had treated her husband in a rough

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manner. Id. 40:8–12, 41:4–14 & 48:10–16. Plaintiff denied the wife’s complaint, which he later

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memorialized. Mendoza Dep. 33:8–36:8 & Ex. 2 to Mendoza Dep. Prior to the incident in July 2010,

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Plaintiff did not have any problems with the patient, the wife, or her daughter and he believed that he

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was the wife’s favorite CNA. Mendoza Dep. 36:18–21, 41:20–25 & 42:5–8. He also did not have

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any problems with Muriel Han before this incident. Id. 38:24–39:1.

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On the same day that the complaint was made (July 28), Tunnell suspended Plaintiff pending

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investigation into the allegations. Han Decl. ¶ 17; Mendoza Dep. 32:14–18 & 33:8–34:1. On or

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about August 9, 2010, Han terminated Plaintiff’s employment. Han Decl. ¶ 19; Mendoza Dep. 45:8–

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10. Han based her decision, in part, on the patient’s wife witnessing the incident, her belief that the

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allegations were substantiated, and that various Tunnell policies prohibited the mistreatment of

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patients. Han Decl. ¶ 19. Han also learned that Mendoza had abuse allegations made against him

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before. Id. ¶¶ 18–19; see Bautista Decl. ¶ 4. Tunnell has terminated other employees for

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substantiated patient abuse during Plaintiff’s employment, including other Filipinos and at least one

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non-Filipino (Latina). Mendoza Dep. 88:20–89:6. In addition, Tunnell has suspended a number of

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employees upon allegations of abuse during Han’s tenure, since March 2010. Han Decl. ¶ 20.

Dep. 45:25–46:13; Dkt. No. 36, Declaration of Shirley Faller in Support of Defendants’ Motion for

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Summary Judgment (“Faller Decl.”) ¶¶ 5–6. As conditions of his reinstatement, Tunnell reassigned

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Northern District of California

On or about August 12, 2012, Tunnell offered to reinstate Plaintiff’s employment. Mendoza

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United States District Court

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Mendoza from his 3:00 p.m. to 11:00 p.m. (“swing”) shift to the day shift so that more people would

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be around to support and supervise him. Mendoza Dep. 17:12–22, 49:6–16 & 65:24–66:4; Faller

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Decl. ¶ 6. He was informed that any further accusations from patients would mean immediate

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termination. He completed in-service training regarding abuse and dealing with difficult patients.

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Mendoza Dep. 64:21–25. Plaintiff agreed to these mandatory conditions so that he could return to

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work. Id. 49:17–25. Han approved Mendoza’s reinstatement based, in part, on his acceptance of the

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conditions of his reinstatement. Han Decl. ¶ 22.

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Plaintiff bases his claims on the events in July and August 2010. He alleges that he has been

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subjected to a continuing pattern of unlawful discriminatory employment practices which include: (a)

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a false accusation of patient abuse in July 2010; (b) continued threats of termination of employment;

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(c) termination of employment on August 9, 2010, after which he was reinstated on August 12; (d)

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denial of employment; (e) denial of pay; (f) removal from the swing shift in August 2010 without

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cause or justification; and (g) continuing harassment. (Dkt. No. 43, Declaration of Carlito Mendoza

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in Support of his Opposition to Defendants’ Motion for Summary Judgment (“Mendoza Declaration”

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or “Mendoza Decl.”) ¶ 6); see Compl. ¶ 6. He further claims that his similarly-situated non-Filipino

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coworkers are not subjected to the actions and conduct that he is, including management personnel

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refusing to speak or be cordial to him. Mendoza Decl. ¶ 6. Plaintiff argues in his Opposition that Han

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orchestrated an “unprecedented pattern of over scrutiny and heightened criticism” against him. Opp.

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at 6–7. Han is the only person that Plaintiff believes has discriminated against him. Mendoza Dep.

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55:8–15.
Plaintiff filed a Charge of Discrimination with the Equal Employment Opportunity

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Commission in October 2010 (“EEOC Charge”), and received a Notice of Right to Sue in November

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2010. Mendoza Dep. 85:15–25 & Ex. 9 to Mendoza Dep.

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II.

DISCUSSION

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A.

Legal Standard for Motion for Summary Judgment Under Fed. R. Civ. P. 56

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Summary judgment is appropriate when there is no genuine dispute as to any material fact and

summary judgment bears the initial burden of informing the court of the basis for its motion, and of

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Northern District of California

the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). A party seeking

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United States District Court

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identifying those portions of the pleadings, depositions, discovery responses, and affidavits that

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demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317,

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323 (1986). Material facts are those that might affect the outcome of the case. Anderson v. Liberty

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Lobby, Inc., 477 U.S. 242, 248 (1986). The “mere existence of some alleged factual dispute between

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the parties will not defeat an otherwise properly supported motion for summary judgment; the

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requirement is that there be no genuine issue of material fact.” Id. at 247–48 (dispute as to a material

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fact is “genuine” if there is sufficient evidence for a reasonable jury to return a verdict for the non-

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moving party).

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Where the moving party will have the burden of proof at trial, it must affirmatively

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demonstrate that no reasonable trier of fact could find other than for the moving party. Soremekun v.

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Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). On an issue where the non-moving party will

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bear the burden of proof at trial, the moving party can prevail merely by pointing out to the district

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court that there is an absence of evidence to support the non-moving party’s case. Id. If the moving

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party meets its initial burden, the opposing party must then set out “specific facts” showing a genuine

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issue for trial in order to defeat the motion. Id. (quoting Anderson, 477 U.S. at 250). The opposing

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party’s evidence must be more than “merely colorable” but must be “significantly probative.” Id. at

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249–50. Further, that party may not rest upon mere allegations or denials of the adverse party’s

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evidence, but instead must produce admissible evidence that shows there is a genuine issue of

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material fact for trial. Nissan Fire & Marine Ins. Co. v. Fritz Cos., Inc., 210 F.3d 1099, 1102–03 (9th

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Cir. 2000); Nelson v. Pima Cmty. College Dist., 83 F.3d 1075, 1081–1082 (9th Cir. 1996) (“mere

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allegation and speculation do not create a factual dispute”); Arpin v. Santa Clara Valley Transp.

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Agency, 261 F.3d 912, 922 (9th Cir. 2001) (“conclusory allegations unsupported by factual data are

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insufficient to defeat [defendants’] summary judgment motion”).

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When deciding a summary judgment motion, a court must view the evidence in the light most

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favorable to the non-moving party and draw all justifiable inferences in its favor. Anderson, 477 U.S.

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at 255; Hunt v. City of Los Angeles, 638 F.3d 703, 709 (9th Cir. 2011). However, in determining

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whether to grant or deny summary judgment, it is not a court’s task “to scour the record in search of a

Northern District of California

genuine issue of triable fact.” Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996) (internal

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quotations omitted). Rather, a court is entitled to “rely on the nonmoving party to identify with

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reasonable particularity the evidence that precludes summary judgment.” See id.; Carmen v. San

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Francisco Unified Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. 2001) (“The district court need not

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examine the entire file for evidence establishing a genuine issue of fact, where the evidence is not set

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forth in the opposing papers with adequate references so that it could conveniently be found.”)

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B.

Motion for Summary Judgment By Defendants Kindred Healthcare Operating,
Inc. and Kindred Hospitals West, LLC

Defendants assert that Kindred Nursing Centers West, LLC operates Tunnell, where Plaintiff
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works, and that this entity is the only entity that can be deemed Plaintiff’s “employer” under Title VII
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and FEHA. Mot. at 10; Reply at 3. Kindred Healthcare Operating, Inc. and Kindred Hospitals West,
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LLC are separate corporations and Defendants seek dismissal of the entities. Mot. at 10. Plaintiff
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does not dispute this and dismisses these two entities from this action. Opp. at 10 & 13.
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For these reasons, the Court GRANTS the Motion for Summary Judgment as to Defendants
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Kindred Healthcare Operating, Inc. and Kindred Hospitals West, LLC and DISMISSES them from this
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action. Because there is only one remaining party moving for summary judgment, the Court will refer
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to Kindred Nursing Centers West, LLC throughout the rest of this Order as “Defendant.”
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C.

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Motion for Summary Judgment by Kindred Nursing Centers West, LLC
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Evidentiary Issues1

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a.

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Whether Plaintiff’s Declaration Was Translated and Authenticated

Defendant contends that the Mendoza Declaration is inadmissible based on

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Fed. R. Evid. 602, 604 & 901(a) to the extent that it was translated for him. Reply at 2. Defendant

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notes that Plaintiff required a translator at his deposition, but that his declaration is written in English

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and contains strong indications that it was written by a third party. Id. Defendant asserts that witness

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testimony translated from a foreign language without proper authentication is inadmissible and must

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be excluded in considering this Motion. Id.
At the hearing on this Motion, the Court asked Plaintiff’s counsel about the issue of a

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translator. Counsel stated that Defendant had offered to provide a Tagalog translator at Plaintiff’s

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deposition and that Plaintiff accepted this offer because he had concerns regarding the deposition

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environment and felt more comfortable having one there. Counsel further stated that Plaintiff does

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speak and read English “well” and that he read and understood his entire declaration.

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The Court is satisfied with counsel’s explanation regarding the Mendoza Declaration and
overrules the objection thereto. The Court further notes that this declaration is Plaintiff’s only
evidence submitted in opposition to summary judgment.2 But, as discussed below, even considering

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The Court struck Plaintiff’s Objections to Evidence in Support of his Opposition to Defendants’ Motion for
Summary Judgment (Dkt. No. 46) for failure to comply with Civ. L.R. 7-3, which requires that “evidentiary
and procedural objections to [a] motion must be contained within [a] brief or memorandum.” (Dkt. No. 51.)
Notwithstanding the foregoing, the Court only considers admissible, relevant evidence.

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Plaintiff does not rely on any of his deposition testimony in his Opposition, Response to Defendants’ Separate
Statement of Undisputed Facts in Support of Plaintiff’s Opposition (Dkt. No. 45 (“Responsive Separate
Statement”)), or Amended Separate Statement of Undisputed Facts in Support of Plaintiff’s Opposition (Dkt.
No. 52 (“Plaintiff’s Separate Statement”)). He did not attach exhibits to his declaration, or rely upon any
written discovery or deposition testimony of any third party witnesses. The Court further notes that Plaintiff’s
Responsive Separate Statement is rife with incorrect citations to the Mendoza Declaration. While the failure to
give proper citations to evidence in opposition to a summary judgment may result in exclusion of the evidence,
the Court elects not to do so, particularly because it is Plaintiff’s only evidence in opposing the Motion. See
Orr v. Bank of America, NT & SA, 285 F.3d 764, 774–75 (9th Cir. 2002) (“The efficient management of
judicial business mandates that parties submit evidence responsibly. . . . [W]hen a party relies on deposition
testimony in a summary judgment motion without citing to page and line numbers, the trial court may in its
discretion exclude the evidence.”). The Court has, as best it could, attempted to locate the correct citations in
Plaintiff’s supporting documents.
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the Mendoza Declaration as admissible evidence, Plaintiff’s claims fail.
To the extent that Defendant has objected to Plaintiff’s counsel’s “arguments” as attempting to

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create disputed facts (Reply at 3), the Court will address the sufficiency of Plaintiff’s evidence and

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whether disputed material facts exist in its analysis of the claims below.

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b.

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Having decided that it will consider the Mendoza Declaration as admissible

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Whether the Mendoza Declaration Is a Sham Declaration

evidence, the Court must address Defendant’s assertion that Plaintiff improperly contradicts his
deposition testimony in an attempt to create disputed facts. Reply at 2. “The general rule in the Ninth

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Circuit is that a party cannot create an issue of fact by an affidavit contradicting his prior deposition
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testimony.” Nelson v. City of Davis, 571 F.3d 924, 927 (9th Cir. 2009) (quoting Kennedy v. Allied

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Mutual Ins. Co., 952 F.2d 262, 266 (9th Cir. 1991)). This rule, known as the “sham affidavit” rule,
prohibits a party from creating a genuine issue of material fact by submitting a contradictory affidavit
“without sufficient explanation for the contradiction.” Martinez v. Marin Sanitary Service, 349 F.

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Supp. 2d 1234, 1242 (N.D. Cal. 2004) (citing Radobenko v. Automated Equip. Co., 520 F.2d 540, 544

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(9th Cir. 1995)); Nelson, 571 F.3d at 928 (a party cannot create a “dispute with himself to defeat

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summary judgment”). However, this rule does not preclude the non-moving party from elaborating

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upon, explaining, or clarifying prior testimony, nor does it provide a basis to exclude an affidavit due

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to “minor inconsistencies that result from an honest discrepancy, a mistake, or newly discovered

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evidence.” Nelson, 571 F.3d at 928 (internal citations omitted). While “[s]ham affidavits may be

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disregarded in summary judgment proceedings” (Jack v. Trans World Airlines, Inc., 854 F. Supp. 654,

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660 (N.D. Cal. 1994)), a court must exercise caution in applying this rule and make a factual

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determination that the contradiction was actually a “sham” (Nelson, 571 F.3d at 928; Ram v. Infinity

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Select Ins., 807 F. Supp. 2d 843, 855 (N.D. Cal. 2011)).

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Although Defendant states that Plaintiff contradicts his prior deposition testimony, Defendant
has not identified the precise contradictions for the Court. But the Court has, in reviewing the briefs
and Plaintiff’s deposition transcript excerpts and declaration, observed that Plaintiff does appear to

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contradict himself in a number of ways in an attempt to create a factual dispute. The Court will
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address specific contradictions it has observed as it analyzes the evidence and claims below.

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2.

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Discrimination Based on National Origin Under Title VII and FEHA (First
and Fifth Claims)

Defendant contends that Plaintiff has no direct evidence of discriminatory intent and

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cannot establish discrimination by indirect evidence because he cannot show there was an adverse

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employment action or that similarly-situated non-Filipinos were treated more favorably. Mot. at 10–

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12. In addition, Defendant sets forth legitimate, non-discriminatory reasons for various actions taken

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(or alleged to have been taken) against Plaintiff. Mot. at 15–18. Specifically, Defendant provides

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explanations for Plaintiff’s suspension, termination, move to the day shift, overtime, and vacation

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accrual. Id.
“Whatever the employer’s decisionmaking process, a disparate treatment claim cannot succeed

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unless the employee’s protected trait actually played a role in that process and had a determinative

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influence on the outcome.” Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 (1993) (emphasis

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supplied). In general, discrimination can be established in either of two ways—by direct evidence or

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by indirect evidence. Lowe v. City of Monrovia, 775 F.2d 998, 1009 (9th Cir. 1985). Direct evidence

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is that which, if believed, proves the fact of discriminatory animus “without inference or
presumption.” Godwin v. Hunt Wesson Inc., 150 F.3d 1217, 1221 (9th Cir. 1998) (internal citations
omitted).

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A plaintiff may prove discrimination by using indirect, or circumstantial evidence, under the
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three-stage burden-shifting framework laid out in McDonnell Douglas Corp. v. Green, 411 U.S. 792,
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802–04, 807 (1973). Using the principles outlined in McDonnell Douglas, a plaintiff must first
establish a prima facie case of disparate treatment discrimination by showing that: (1) he belongs to a

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protected class; (2) he was performing her job satisfactorily (or was qualified for a position for which

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

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outside of his protected class were treated more favorably. Chuang v. University of Cal. Davis, Bd. of

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Trustees, 225 F.3d 1115, 1123 (9th Cir. 2000); Coleman v. Quaker Oats Co., 232 F.3d 1271, 1281

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(9th Cir. 2000); see Aragon v. Republic Silver State Disposal Inc., 292 F.3d 654, 658 (9th Cir. 2002).3

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Employees “are similarly situated when they have similar jobs and display similar conduct.” Vasquez

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v. County of Los Angeles, 349 F.3d 634, 641 (9th Cir. 2003).

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If a plaintiff succeeds in establishing a prima facie case, the burden of production shifts to the

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defendant to articulate a legitimate, non-discriminatory reason for the adverse employment action. If

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the defendant does so, the plaintiff must demonstrate that the defendant’s articulated reason is a

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pretext for unlawful discrimination “by either directly persuading the court that a discriminatory
reason more likely motivated the employer or indirectly by showing that the employer’s proffered

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explanation is unworthy of credence.” Aragon, 292 F.3d at 658–59 (internal quotations and citations
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omitted); Godwin, 150 F.3d at 1220. To establish pretext, very little direct evidence of discriminatory

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motive is required, but if circumstantial evidence is offered, such evidence has to be “specific” and
“substantial.” Id. at 1222; Cornwell v. Electra Central Credit Union, 439 F.3d 1018, 1028 n.6 (9th
Cir. 2006) (merely denying the credibility of defendant’s proffered reason for the challenged

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employment action or relying solely plaintiff’s subjective beliefs that the action was unnecessary are

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insufficient to show pretext); Wallis v. J.R. Simplot Co., 26 F.3d 885, 890 (9th Cir. 1994) (“a plaintiff

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cannot defeat summary judgment simply by making out a prima facie case” to show pretext or

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“denying the credibility of the [defendant’s] witnesses”) (internal citations omitted) (alteration in

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original).

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a.

Prima Facie Case of Discrimination

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Plaintiff asserts that he has met the prima face elements for discrimination

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because he has direct evidence that he was subjected to a “continuing pattern of hostility” to which

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similarly-situated, non-Filipino employees have not been subjected. Opp. at 14. He claims that

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Tunnell has not wrongfully terminated other non-Filipino employees after false charges of abuse, nor

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have non-Filipino employees been subjected to “negative and unfavorable conduct” in the form of

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The same burden-shifting analysis is applied in FEHA cases. Guz v. Bechtel Nat’l, Inc., 24 Cal.4th 317, 354–
55 (2000); Bradley v. Harcourt, Brace & Co., 104 F.3d 267, 270 (9th Cir. 1996). California courts also look to
federal anti-discrimination law as an aid in interpreting analogous state law provisions. Guz, 24 Cal. 4th at 354.
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having seniority and vacation time taken away following reinstatement or being transferred to the day

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shift, depriving them of “differential pay and opportunity for overtime.” Id. at 14–15. Moreover,

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these employees do not have management personnel “stop[] speaking” to them or closely scrutinizing

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their work without justification. Id.

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Although Plaintiff characterizes his evidence as “direct evidence” of discrimination, these are
conclusory allegations and not specific facts which, even drawing all inferences in Plaintiff’s favor,
prove discriminatory animus “without [requiring further] inference or presumption.” Godwin, 150
F.3d at 1221. Plaintiff’s “evidence” of discrimination lacks foundation and is nothing more than

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speculation that discrimination with respect to others similarly-situated has occurred. Importantly, he
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provides no specific facts or evidence that similarly-situated individuals outside of the protected class

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were treated more favorably than he—because of his national origin. See Villiarimo v. Aloha Island
Air, Inc., 281 F.3d 1054, 1059 n.5 (9th Cir. 2002) (granting summary judgment and noting that
plaintiff’s declaration that male employees in her position were punished less severely should have

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“indicate[d] how she knows this to be true”). Nor has he shown that the circumstances surrounding

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the alleged adverse actions should give rise to an inference of discrimination. Indeed, his Opposition

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and Declaration do not supply any specific instances where a non-Filipino CNA was treated more

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favorably than he. His declaration is substantively lacking at this, the summary judgment, stage.

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Plaintiff’s evidence of a “continuous pattern” of discrimination likewise cannot withstand

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summary judgment. As a preliminary matter, Plaintiff’s declaration contradicts his deposition

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testimony on a number of fronts. For example, while Plaintiff asserts that he lost seniority upon

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reinstatement, he testified that co-workers were upset with him after he moved to the day shift

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because he was “number three in seniority,” which forced less senior CNAs to move to other floors.4

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To the extent that Plaintiff claims his change to the day shift was an adverse employment action, the Court
notes that Plaintiff testified that there was nothing “bad” about the day shift, but that it was undesirable to him
because he is “not a morning person.” Mendoza Dep. 65:16–23. In opposing summary judgment, he now
claims that working the swing shift is “crucial” to his ability to assist his family. Mendoza Decl. ¶ 34. While
Plaintiff indicates that recent events may have changed his family obligations (although the timing of this is
vague), these statements—to the extent they do not contradict his prior testimony—are insufficient to create a
triable issue that the prior decision regarding the shift change was based on discrimination.
11

1

Compare Mendoza Decl. ¶ 35 (“I have also lost my seniority”) with Mendoza Dep. 59:16–60:8 (“I

2

had higher seniority”). Plaintiff claims that he has been deprived of “differential pay,” but previously

3

testified that his pay rate was the same before his termination and after his reinstatement. Compare

4

Mendoza Decl. ¶ 35 with Mendoza Dep. 70:15–71:3. As to overtime, Plaintiff testified that “they

5

[Tunnell] don’t really give [him] overtime” and “never ask [him]” if he wants overtime. But

6

importantly, he cannot recall (or “forg[ets]”) whether he has ever even requested overtime and been

7
8

refused, and he has never been told he is not allowed to work overtime. Mendoza Dep. 71:4–72:16.
The Court disregards these portions of Plaintiff’s declaration as contradicting his prior deposition

9

testimony.
10

As to Plaintiff’s vacation, Defendant has explained that Plaintiff accrued less vacation time as

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11
12
13
14

of his reinstatement because a new hire date was entered into the payroll system. (Dkt. No. 39,
Declaration of Cheryl Priddy in Support of Defendants’ Motion for Summary Judgment (“Priddy
Decl.”) ¶¶ 3–5 & 7.) Defendant manually corrected this mistake and he now accrues vacation at the

15

correct amount based on his 2002 hire date, including having access the vacation hours he should

16

have accrued before the mistake was corrected. Id. ¶¶ 6–8. Further, the only person alleged to have

17

discriminated against Plaintiff—Muriel Han—had no involvement with the entry of payroll

18

information in the database that tracks vacation accrual. Han Decl. ¶ 22; see Priddy Decl. ¶¶ 2 & 7.

19

In response, Plaintiff’s sole evidence is that he only recently “received vacation credit to which [he

20

was] entitled” and “Defendant delayed the correction of [his] vacation credit for more than one and

21

one half years.” Mendoza Decl. ¶¶ 35 & 43. Questioning the timing of the fix is not evidence that

22

alleged discrimination based on national origin played any part with the mistake in the first place.

23

Plaintiff’s other evidence of discrimination is that “Han does not speak. Since [my]

24

reinstatement Han has ceased to greet or engage in ordinary conversation with me. She does,

25

however, keep me under close scrutiny and interrogates me and criticizes me concerning aspects of

26
27

my job duties which I have been performing excellently for several years.” Mendoza Decl. ¶ 41; Opp.
at 15. Although Plaintiff provides no specific instances in his Declaration or Opposition of how Han

28

scrutinized, interrogated, or criticized him regarding his job duties, the Court notes that he previously
12

1

testified that Han “was always checking on [him]” or “watching” him, and identified two times where

2

Han asked (1) why a patient had not eaten yet, and (2) why a patient was not wearing socks.

3

Mendoza Dep. 55:16–57:8; see also id. 104:24–105:21 (his supervisor Bautista constantly looks at

4

what he does, but there is nothing inappropriate about her watching him). Without more, this is

5

insufficient evidence of discriminatory intent because national origin is not implicated, nor is there an

6

adverse employment action.5 Moreover, Plaintiff accepted as a condition of his reinstatement that he

7
8

would be moved to the day shift because more people would be on hand to support and supervise him.
Mendoza Dep. 49:10–25 & 65:24–66:4; Faller Decl. ¶ 6. While Plaintiff now seeks to dispute his

9

acceptance by claiming that he was “compelled” to accept the conditions, which were “obviously
10

unnecessary,” the undisputed fact is that he accepted the condition because he wanted to return to

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12
13

work. Mendoza Dep. 49:10–25. Even assuming the conditions were “unnecessary,” such conditions
themselves are not sufficient evidence to create a material disputed fact.
Finally, even inferring in Plaintiff’s favor that Han does not “speak” to Plaintiff and/or

14
15

engages in ordinary conversation with other employees, this alone is insufficient to show

16

discrimination. Plaintiff does not identify who Han speaks to other than him, how often, what they

17

discuss, nor does he identify the national origin of those employees—thus, he cannot show that

18

similarly-situated employees outside of his class are treated more favorably than him. Cf. Lam v. City

19

and County of San Francisco, No. C 08–4702 PJH, 2012 WL 1253199, at *16 (N.D. Cal. Apr. 13,

20

2012) (granting summary judgment on discrimination, harassment, and retaliation claims, and finding

21

that a supervisor’s “mean demeanor” did not amount to verbal or physical conduct of a racial nature

22

and “cannot be said to be evidence of any race based harassment”). While Plaintiff may be upset that

23

Han does not speak to him, his vague and conclusory claim that she talks to everybody but him fails

24

to show it was because he is Filipino.

25
26

It is undisputed that Han is the only person at Tunnell who Plaintiff claims discriminated
against him. Mendoza Dep. 55:11–15. It is further undisputed that Han made no derogatory

27
28

5

An adverse employment action must materially affect the “terms, conditions, or privileges of employment.”
Yanowitz v. L’Oreal USA, Inc., 36 Cal. 4th 1028, 1054 (2005).
13

1

comments regarding Filipinos, never called Plaintiff any names, and that Plaintiff had no problems

2

with Han prior to July 28. Id. 38:24–39:1, 54:25–55:3 & 57:9–10. In opposing summary judgment,

3

Plaintiff’s only evidence is that “management personnel” (presumably Han) stated that there were

4

“too many Filipinos around here.” Opp. at 6; Mendoza Decl. ¶ 19.6 This statement is too vague to be

5

considered direct evidence of discrimination because it is not tied directly to an adverse action. See

6

Cozzi v. County of Marin, 787 F. Supp. 2d 1047, 1060 (N.D. Cal. 2011) (granting summary judgment

7
8

and stating that “[w]here a comment is not directly tied to an adverse action, it cannot be considered
direct evidence of discrimination.”). Indeed, Plaintiff has not identified when Han or “management

9

personnel” made this statement, the context in which it arose, or how it relates to any specific action
10

taken against him. See Responsive Separate Statement at no. 10 (no evidence provided in disputing

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12

the fact that no one at Tunnell made any negative comments about Filipinos).
For these reasons, the Court finds that Plaintiff has not established a prima facie case because

13
14

he has not provided evidence that he was subjected to any adverse employment action, nor that

15

similarly-situated non-Filipino employees were treated more favorably. See, e.g., Mendoza Dep.

16

53:6–20 & 88:20–89:6. The evidence presented in its totality does not create an inference of

17

discrimination as it is based on nothing more than a series of bald conclusions that discrimination

18

occurred. Without establishing this inference of discrimination (let alone any discrimination linked to

19

the purported adverse actions), Plaintiff’s claims for discrimination based on national origin fail.

20

b.

Plaintiff’s Evidence of Pretext for Unlawful Discrimination

21

Even if the Court drew all inferences in Plaintiff’s favor and found that Plaintiff

22

has established a prima face case of discrimination, these claims would nonetheless fail under the

23

McDonnell Douglas burden-shifting analysis. Because Defendant has articulated legitimate, non-

24

discriminatory reasons for the alleged adverse employment actions, Plaintiff must demonstrate the

25
26
27
28

6

See Mendoza Dep. 54:11–24 (“A. . . . She hired CNAs from other races because she said there were too
many Filipinos, and she needed a translator for the floor; but she was disappointed because these workers of
other races quit immediately. Q. She -- are you saying that she said she needed somebody who could speak
the other languages that the patients spoke when you said translator? A. No, that there was just things that
were being said at work.”).
14

1

reasons are pretext for unlawful discrimination by showing that the non-discriminatory reasons are

2

unworthy of credence. Aragon, 292 F.3d at 658–59; St. Mary’s Honor Center v. Hicks, 509 U.S. 502,

3

510–511 (1993) (presumption of discrimination “simply drops out of the picture” when defendant

4

articulates legitimate, nondiscriminatory reasons).

5
6
7
8

In its Motion, Defendant provided its non-discriminatory explanations regarding: (a)
Plaintiff’s suspension; (b) termination; (c) move to the day shift; (d) overtime; and (e) vacation
accrual. Mot. at 16–17. Tunnell suspended Plaintiff consistent with its policies, which provide that
Defendant may suspend employees when abuse allegations have been made in order to conduct an

9

investigation. Han Decl. ¶ 16; Mendoza Dep. 43:10–15, 92:5–17, 94:17–95:8, 95:16–96:10 & Exs.
10

10, 13 & 14 to Mendoza Dep. Suspending employees pending investigations of abuse serves the

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12
13
14

purpose of separating patients from their alleged abusers, and Tunnell had consistently suspended
employees against whom abuse allegations had been made. Han Decl. ¶¶ 16 & 20; Mendoza Dep.
39:2–19. Plaintiff’s termination resulted from Tunnell’s investigation, which Han believed had

15

substantiated the allegations made by the patient’s wife, and also from Han reviewing Plaintiff’s file

16

and learning that he had previously been accused of slapping a patient, although that accusation was

17

not substantiated because there were no witnesses. Han Decl. ¶¶ 17 & 19.7
Plaintiff’s primary response8 is that these reasons are untrustworthy and “must be rejected out

18
19

of hand as a pretext” because he never abused any patient. Opp. at 16–17; see, e.g., Mendoza Decl. ¶¶

20

13–15, 17, 23–29. Even if the Court accepts Plaintiff’s argument that Tunnell was unreasonable in

21

7

22
23
24
25
26
27
28

The Court has already addressed Plaintiff’s non-discriminatory reasons for Plaintiff’s move to the day shift,
overtime, and vacation accrual. Defendant has provided declarations from Tunnell management regarding the
intent behind moving Plaintiff to the day shift—namely that more people would be on hand to support and
supervise him, which is consistent with the reasons explained to Plaintiff upon his reinstatement. As to
overtime, Plaintiff has not been prohibited from working overtime, has never been told he cannot earn
overtime, and, more importantly, has not specifically requested any overtime and cannot recall ever being
refused overtime since his reinstatement. As to the vacation accrual, Defendant has explained that the lower
accrual resulted from Plaintiff’s changed hire date in the payroll system upon reinstatement, which was
inadvertent and has been corrected, and he has been given retroactive access to the hours he accrued. See
Section II.C.2.a.
8

Plaintiff also pointed out that Defendant “neglect[ed]” to address the issue of “denial of time differential pay”
(Opp. at 16), but the Court has already explained that this claim contradicts Plaintiff’s deposition testimony.
Compare Mendoza Decl. ¶ 34 with Mendoza Dep. 70:15–71:3.
15

1

concluding that the allegations against Plaintiff were substantiated, it does not automatically follow

2

that their reasons are pretext for discrimination. Cornwell, 439 F.3d at 1028 n.6 (plaintiff’s subjective

3

beliefs that the employment action was unnecessary or unwarranted are insufficient to overcome a

4

legitimate, non-discriminatory reason). Plaintiff must still show that national origin was more likely

5

Tunnell’s motivation for its conduct. Rather than providing evidence, Plaintiff again concludes that

6

there is such pretext, that the abuse never occurred, and that Defendant had no reasonable basis to

7
8

believe the abuse did occur. However, Plaintiff himself recognizes the importance of protecting
patients when an accusation of abuse has been made. Mendoza Dep. 39:2–19 & 54:5–10. During his

9

employment, Plaintiff received documents and training regarding reporting patient abuse (see, e.g.,
10

Mendoza Dep. 43:10–15, 92:5–17, 94:17–95:8, 95:16–96:10 & Exs. 10, 13 & 14 to Mendoza Dep.)

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and generally understood that abuse was prohibited and that Tunnell would act upon allegations of
abuse to protect patients. Plaintiff had also been suspended in the past when allegations were made
before Han joined Tunnell. Id. 80:12–20; Bautista Decl. ¶ 4. Plaintiff also confirms that Tunnell
management cared about making sure patients were treated properly. Mendoza Dep. 43:16–19.
It is further undisputed that Shirley Faller, the Director of Clinical Operations, recommended

17

that Plaintiff be reinstated to the day shift because that shift has more managerial and supervisory

18

coverage, which allows Tunnell to better supervise and support employees. Faller Decl. ¶ 6. Han

19

approved his reinstatement based on her staff’s recommendation and Plaintiff’s acceptance of the shift

20

change. Han Decl. ¶ 22. Plaintiff was informed of his condition prior to reinstatement and accepted

21

it, even though he may have believed it was unnecessary. Mendoza Dep. 49:10–25. Plaintiff also

22

admits that Tunnell has terminated other employees upon substantiating allegations of abuse,

23

including one non-Filipino employee. Id. at 88:20–89:6; see id. 53:6–20 (Plaintiff “wonder[ed]”

24

whether he was the first Filipino to be terminated by Han, but does not know).

25
26
27

Plaintiff discussed at length the events of July and August 2010 in his deposition, consistently
denying having abused patients. He did not assert that the July 28 complaint was completely
fabricated. See Mendoza Decl. ¶¶ 6 & 20; Opp. at 5 & 7; see Villiarimo, 281 F.3d at 1063 (in

28

challenging proffered justifications, “it is not important whether they were objectively false,” but
16

1

courts only require that an employer honestly believe its reason for its actions). Aside from being

2

inconsistent with his deposition, Plaintiff has provided no competent evidence challenging that the

3

complaint occurred. To the contrary, Plaintiff admits that his photo was taken as part of the

4

investigation. Plaintiff simply urges the Court to deny summary judgment because he speculates that

5

discrimination occurred.

6
7
8

The fundamental inquiry is whether Plaintiff has provided specific and substantial evidence
showing that Defendant’s reasons are unworthy of credence. Guz, 24 Cal. 4th at 358 (“[I]f
nondiscriminatory, [a defendant’s] true reasons need not necessarily have been wise or correct. . . .

9

[T]he ultimate issue is simply whether the employer acted with a motive to discriminate illegally.”).
10

Plaintiff has not shown that Defendant was more likely motivated by discrimination than legitimate

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13
14
15

business reasons. Id. (affirming grant of summary judgment where employee failed to establish
pretext). Without evidence sufficient to overcome Tunnell’s non-discriminatory reasons for the
alleged wrongful actions taken against Plaintiff, his claims for discrimination must fail.
Because of this failure and his inability to establish a prima face case with specific factual

16

evidence, the Court GRANTS Defendant’s Motion for Summary Judgment on the first and fifth claims

17

for discrimination based on national origin.

18

3.

Retaliation Under Title VII and FEHA (Second and Sixth Claims)

19

Defendant contends that Plaintiff cannot establish his prima facie retaliation claims

20

because the retaliatory acts (suspension, termination, and reinstatement) did not occur until months

21

after the complaint of discrimination in November 2010. Mot. at 13. Further, Defendant argues that

22

Plaintiff’s claim that Han has been questioning or closely monitoring him since his reinstatement does

23

not qualify as an “adverse employment action” because it does not materially impact his employment.

24

Id. at 14. Acknowledging that a retaliation claim does require that a protected activity precede

25

adverse employment actions, Plaintiff asserts that he engaged in “protected activity” by protesting

26
27

both the abuse accusation in July 2010 and his suspension. Opp. at 15–16.
A plaintiff can establish a prima facie case of retaliation by showing that: (1) he engaged in a

28

protected activity; (2) he suffered an adverse employment decision; and (3) there was a causal link
17

1

between the protected activity and the adverse employment decision. Surrell v. Cal. Water Serv. Co.,

2

518 F.3d 1097, 1108 (9th Cir. 2008); Yanowitz, 36 Cal. 4th at 1042. An employee has engaged in a

3

protected activity if he opposed discrimination or other conduct made unlawful by Title VII or FEHA.

4

42 U.S.C. § 2000e-3(a); Cal. Gov. Code § 12940(h). An employee’s comments, when read in their

5

totality, must oppose discrimination. Yanowitz, 36 Cal. 4th at 1047. On the other hand, “an

6

employee’s unarticulated belief that an employer is engaging in discrimination will not suffice to

7
8

establish protected conduct . . . where there is no evidence the employer knew that the employee’s
opposition was based upon a reasonable belief that the employer was engaging in discrimination.” Id.

9

at 1046. Moreover, “complaints about personal grievances or vague or conclusory remarks that fail to
10

put employer on notice as to what conduct it should investigate will not suffice to establish protected

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12
13
14
15

conduct.” Id. at 1047; see Cohen v. Fred Meyer, Inc., 686 F.2d 793, 796 (9th Cir. 1982) (causation
element requires evidence that “employer was aware that the plaintiff had engaged in the protected
activity”).
Plaintiff is mistaken in asserting that “protesting” both the abuse accusation or suspension as

16

unfair or incorrect satisfies the requirement that he engage in a protected activity under Title VII or

17

FEHA. The Court cannot assume that Plaintiff protested discrimination by denying abusing a patient.

18

See Mendoza Dep. 34:22–36:8 & Ex. 2 to Mendoza Dep. Plaintiff has provided this Court with no

19

evidence (via deposition testimony or otherwise) that he raised an issue of discrimination or other

20

unlawful activity in July or August 2010. By contrast, Plaintiff’s deposition testimony does support

21

the conclusion that Defendant did not receive notice of Plaintiff’s claim of discrimination until the

22

EEOC Charge in November. Mendoza Dep. 90:17–91:2 (answering that he did not ever complain of

23

unfair treatment because of being Filipino to company until EEOC Charge). Defendant cannot be

24

charged with retaliation against Plaintiff by suspending or terminating him based on an EEOC Charge

25

filed months later.

26
27

Even if, as Plaintiff argues, Han stopped speaking to Plaintiff and placed him under close
scrutiny after the EEOC Charge (see Opp. at 16), these actions cannot be adverse employment

28

actions. “Minor or relatively trivial adverse actions” are not actionable. Yanowitz, 36 Cal. 4th at
18

1

1054; Cozzi, 787 F. Supp. 2d at 1066 (Title VII adverse actions may lie where the action “dissuade[s]

2

a reasonable worker from making or supporting a charge of discrimination”) (internal citation

3

omitted). Plaintiff has identified two times where Han questioned his patient care, and generally

4

asserts Han and Bautista watched him. These instances, however, cannot be said to have dissuaded

5

Plaintiff or any other reasonable employee from making a discrimination charge, or to have materially

6

affected the terms, conditions, or privileges of employment. Yanowitz, 36 Cal. 4th at 1051–52.

7
8

Because Plaintiff has failed to provide evidence sufficient to establish his prima face case of
retaliation, namely that he engaged in a protected activity prior to his EEOC Charge or that he

9

suffered any adverse employment action thereafter, the Court GRANTS Defendant’s Motion for
10

Summary Judgment as to the second and sixth claims for retaliation.

Northern District of California

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11

4.

12

Defendant contends that Plaintiff’s claims of harassment fail because: (1) he cannot

13
14

Harassment (Third and Ninth [sic] Claims)

show that any of the “harassing” conduct was based on his national origin; (2) the conduct was not

15

“severe or pervasive” enough to create a hostile work environment; and (3) personnel management

16

actions cannot form the basis of a harassment claim. Mot. at 20–21. Plaintiff argues that the scope of

17

harassment consisted of Han initiating and maintaining a “climate of hostility. . . beginning in early

18

2010 which culminated in his being, without cause or justification, suspended from employment on

19

July 28, 2010” and thereafter being terminated. Opp. at 18. After his reinstatement, he was subjected

20

to continuing hostile conduct, including management personnel refusing to speak to him and

21

“constant over scrutiny.” Id. Regarding whether personnel management actions can be the basis of a

22

harassment claim, Plaintiff states that “[e]mployees are required to be treated with dignity and

23

respect.” Id.

24
25
26
27

To prevail on his harassment claims, Plaintiff must show that: (1) he was subjected to verbal
or physical conduct because of his national origin; (2) the conduct was “unwelcome”; and (3) “the
conduct was sufficiently severe or pervasive to alter the conditions of the plaintiff’s employment and
create an abusive work environment.” Kang v. U. Lim America, Inc., 296 F.3d 810, 817 (9th Cir.

28

2002) (citing Gregory v. Widnall, 153 F.3d 1071, 1074 (9th Cir. 1998)). To determine whether
19

1

conduct is sufficiently severe or pervasive to violate Title VII, the court looks at all surrounding

2

circumstances, including frequency, severity, whether the alleged conduct is threatening or

3

humiliating, or merely an offensive utterance, and whether it interferes with an employee’s work

4

performance.9 See, e.g., Vasquez, 349 F.3d at 649; Hughes v. Pair, 46 Cal. 4th 1035, 1043 (2009) (no

5

recovery for harassment that is “occasional, isolated, sporadic, or trivial”) (internal citations omitted);

6

Etter, 67 Cal. App. 4th at 462 (plaintiff may prevail on harassment claim “when the employer has

7
8

created a working environment heavily charged with ethnic or racial insult and ridicule”). The court
must assess “allegations of a racially hostile workplace . . . from the perspective of a reasonable

9

person belonging to the racial or ethnic group of the plaintiff.” McGinest v. GTE Service Corp., 360
10

F.3d 1103, 1115 (9th Cir. 2004).

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Plaintiff’s harassment claims fail for the same reasons that his discrimination and retaliation

12
13
14

claims do—a lack of specific evidence, other than speculation or conclusions or denials of
Defendant’s evidence, in support of his claims. Here, Plaintiff summarily concludes that his work

15

environment is so hostile and pervasive that it has materially altered the terms and conditions of his

16

employment, but he has failed to provide any evidence of how this is so. Moreover, Plaintiff reverts

17

to arguing that the suspension and termination were “without cause or justification,” but in doing so,

18

fails to show that either decision was motivated by his national origin. Defendant identified specific

19

deposition testimony where Plaintiff admitted that no one at Tunnell made any negative or derogatory

20

comments about Filipinos, to which Plaintiff failed to pinpoint a single piece of evidence in response.

21

See Responsive Separate Statement at no. 10. Based on the evidence that Plaintiff has provided in his

22

Declaration, the Court cannot conclude that a reasonable employee of Filipino national origin would

23

have perceived Defendant’s (or Han’s) conduct as hostile or abusive toward Filipinos.

24

Moreover, while the Court has already addressed the issue of Han not speaking to Plaintiff, it

25

notes that Title VII and FEHA are not “general civility code[s]” in the workplace. Manatt v. Bank of

26
27
28

9

California courts also apply federal decisions interpreting Title VII to analyze FEHA national origin
harassment claims. Etter v. Veriflo Corp., 67 Cal. App. 4th 457, 464 (Cal. Ct. App. 1998).

20

1

America, N.A., 339 F.3d 792, 798 (9th Cir. 2003) (affirming grant of summary judgment to employer

2

on harassment and retaliation claims); see Cozzi, 787 F. Supp. 2d at 1070–72 (granting summary

3

judgment on harassment claim where plaintiff’s only evidence was her own declaration, in which she

4

stated that other employees were treated with “dignity and respect,” and otherwise failed to show that

5

she was targeted because of her age). To the extent that the alleged harassment consisted of bias that

6

created an intolerable “social environment” (properly a harassment claim), as opposed to biased

7
8

personnel management decisions (which are actionable as discrimination), Plaintiff has failed to
establish that any alleged actionable “harassment” was based on his national origin, let alone severe or

9

pervasive. Roby v. McKesson Corp., 47 Cal. 4th 686, 706–708 (2009).
10

Accordingly, the Court GRANTS Defendant’s Motion for Summary Judgment as to the third

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11
12
13
14

and ninth [sic] claims for harassment.
5.

Violation of 42 U.S.C. Section 1981 (Fourth Claim)

Defendant contends that summary judgment must be granted on Plaintiff’s claim under

15

42 U.S.C. section 1981 (“Section 1981”) for the same reasons as his discrimination and harassment

16

claims. Mot. at 15 (cannot overcome Defendant’s legitimate, non-discriminatory business reasons) &

17

20 (Plaintiff’s Title VII harassment claim is also actionable under Section 1981).

18

Section 1981 prohibits discrimination in the “benefits, privileges, terms and conditions” of the

19

contractual relationship. 42 U.S.C. § 1981(b). At-will employment can serve as the predicate

20

contract for a discrimination claim under Section 1981. Skinner v. Maritz, Inc., 253 F.3d 337, 340

21

(8th Cir. 2001); Lauture v. Int’l Business Machines Corp., 216 F.3d 258, 262–63 (2d Cir. 2000). In

22

analyzing an employment discrimination claim under Section 1981 and a Title VII disparate treatment

23

case, “both require proof of discriminatory treatment and the same set of facts can give rise to both

24

claims.” Fonseca v. Sysco Food Services of Arizona, Inc., 374 F.3d 840, 850 (9th Cir. 2004). As

25

such, the same legal principles apply to Section 1981 as with Title VII disparate treatment cases.

26
27

Surrell, 518 F.3d at 1103 & 1105 (including McDonnell Douglas burden-shifting framework).
Plaintiff’s Section 1981 claim must be DISMISSED for the same reasons as the underlying Title

28

VII and FEHA claims. Accordingly, the Court GRANTS the Motion for Summary Judgment as to the
21

1

fourth claim.

2

6.

3

Because Plaintiff has failed to establish his claims of discrimination, retaliation, and

Punitive Damages

4

harassment, his claim for punitive damages cannot survive summary judgment either. See 42 U.S.C.

5

§ 1981a(b)(1) (employee must demonstrate employer engaged in “discriminatory practice . . . with

6

malice or with reckless disregard” to recover punitive damages). The Court hereby GRANTS

7
8
9
10

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11
12
13
14
15
16
17
18

Defendant’s Motion for Summary Judgment as to the claim for punitive damages.
III.

CONCLUSION
For the foregoing reasons, Defendants’ Motion for Summary Judgment is GRANTED. This

Order terminates Dkt. No. 33.
Defendants are hereby ORDERED to submit a proposed judgment consistent with this Order. A
compliance hearing regarding the filing of a proposed judgment shall be held on Friday, June 29,
2012 on the Court’s 9:01 a.m. calendar, in the Federal Courthouse, 1301 Clay Street, Oakland,
California, in a courtroom to be designated. If a proposed judgment has not been filed by five (5)
business days prior to the compliance hearing, Defendants shall file a one-page statement setting forth
an explanation for their failure to comply. If compliance is complete, the hearing will be taken off
calendar. If compliance is not complete, the parties may be required to appear.
IT IS SO ORDERED.

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21

Dated: June 5, 2012

_______________________________________
YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT COURT JUDGE

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