Knighten v. Omni Hotel

Filing 59

ORDER by Judge Claudia Wilken GRANTING DEFENDANTS 29 MOTION FOR SUMMARY JUDGMENT. (ndr, COURT STAFF) (Filed on 8/28/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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LINDA M. KNIGHTEN,
Plaintiff,

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No. C 12-2296 CW
ORDER GRANTING
DEFENDANT’S MOTION
FOR SUMMARY
JUDGMENT (Docket
No. 29)

v.
OMNI HOTEL,
Defendant.
________________________________/

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United States District Court
For the Northern District of California

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Plaintiff Linda Knighten brought this suit against Defendant
Omni Hotel under the California Fair Employment and Housing Act
(FEHA), Cal. Gov’t Code §§ 12900 et seq.
summary judgment on all claims.

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After considering the parties’

submissions and oral argument, the Court grants the motion.
BACKGROUND

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Defendant now moves for

The following facts are undisputed except where otherwise
noted.

Plaintiff worked as a cook in the kitchen at the Omni

Hotel in San Francisco from January 2002 until her termination in
October 2010.

Declaration of Linda Knighten ¶ 2; Declaration of

Joselyne Simonsen ¶ 3.

During that time, she clashed frequently

with her supervisors and co-workers and received numerous
sanctions for poor performance, including negative employee
evaluations, formal disciplinary warnings, and suspensions.
Simonsen Decl., Exs. A, B.
These problems began in January 2003 when Plaintiff received
her first formal warning from management for arguing with her
kitchen supervisors and refusing to follow their cooking

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instructions.

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The warning notice Plaintiff received stated, “Failure to conduct

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yourself as a culinary professional may result in further written

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warnings up to and including termination.”

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annual performance review one month later, Plaintiff’s supervisor

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noted that she needed to “improve [her] organization and cooking

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skills.”

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Id., Ex. A, 1/13/03 Warning Notice, at 123-24.1

Id. at 124.

In her

Id., 2/27/03 Associate Performance Appraisal, at 150.

In April 2003, Plaintiff received a second written warning,
this time for arriving two hours late for a 6:00 a.m. shift.

Id.,

United States District Court
For the Northern District of California

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4/30/03 Warning Notice, at 118-20.

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Plaintiff’s tardiness caused delays in preparing several food

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orders scheduled for hotel events that day.

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notified Plaintiff that her tardiness was “unacceptable” and that

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“[f]urther instances will result in disciplinary action, up to and

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including suspension and/or termination.”

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The notice explained that

Id. at 120.

It also

Id.

Four months later, in August 2003, Plaintiff received another

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written warning for tardiness after she called her supervisor

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forty-five minutes after the start of her scheduled shift to

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report that she would be late because she overslept.2

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8/26/03 Warning Notice, at 104-05.

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notice explained that hotel employees were required to give their

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supervisors advance notice whenever they planned to miss part of a

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scheduled shift.

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“Future instances of failure to follow hotel policy will result in

Id.

Id. at 104.

Id.,

The warning

It also warned Plaintiff, once again,

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All page citations to documents in Plaintiff’s personnel file and
handwritten journal notes are to OMNI Bates-stamp page numbers.
2 According to a handwritten note in Plaintiff’s personnel file,
this written warning was reduced to a verbal warning in November 2004
for reasons that are not stated in the file. Id.

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disciplinary action up to and including suspension and/or

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termination.”

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Id.

Despite this warning, Plaintiff continued to violate the

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hotel’s employee attendance policies.

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May 2006, she received seven additional warnings for infractions

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including tardiness, absenteeism, and failure to provide

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sufficient notice before missing work.

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89.

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underlying these attendance violations or any of the earlier

United States District Court
For the Northern District of California

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Between December 2004 and

Id. at 89-90, 92-97, 1484-

She has not presented any evidence to dispute the allegations

violations.
In February 2007, Plaintiff received a one-day suspension for

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failing to take a timely lunch break and improperly clocking out

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for a rest break.

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months later, she was placed on a “work improvement plan” to help

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her increase her productivity.

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Plan, at 74-75.

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habits and her ability to follow supervisors’ instructions.

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at 75.

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months, Plaintiff had recorded nine absences and reported late for

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work fifteen times.

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Id., 2/8/07 Suspension Notice, at 76.

Eight

Id., 10/30/07 Work Improvement

The plan was also intended improve her attendance
Id.

It specifically noted that, over the previous seven

Id.

In January 2008, Plaintiff was suspended for three days after

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she failed to report for an 8:00 a.m. shift.

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Suspension Notice, at 73.

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annual performance review, which specifically noted that Plaintiff

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“was issued a work improvement plan and has yet to show

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improvement on the areas of concern.”

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Performance Appraisal, at 141.

Id., 1/12/08

Later that week, she received her

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Id., 1/14/08 Associate

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Eleven months later, in December 2008, Plaintiff received

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another three-day suspension for failing to report for a scheduled

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shift.

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explained that, because Plaintiff had improved her attendance in

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recent months, termination was not warranted at that time;

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however, the notice also stated that it would be Plaintiff’s “last

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and final” warning about attendance policy violations.

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Id., 12/04/2008 Suspension Notice, at 69.

The notice

Id.

Two months later, in February 2009, Plaintiff received a
“non-disciplinary memo” from her supervisor addressing the

United States District Court
For the Northern District of California

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“argumentative nature of the working relationship” between her and

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a co-worker.

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focused on Plaintiff’s inability to work cordially with another

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kitchen employee and explained that “[c]ooperation is an

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expectation of employment.”

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strive to conduct herself “in a professional and polite manner.”

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Id.

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Id., 2/10/09 Non-Disciplinary Memo, at 68.

Id.

The memo

The memo directed Plaintiff to

In December 2009, Plaintiff received a ten-day suspension for

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removing certain guest records from the hotel without permission.

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Id., 12/1/09 Suspension Notice, at 54-57.

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does not identify the exact nature of the hotel records, it notes

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that they were “especially sensitive as they contain private guest

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information” and were “not to be used outside of the Hotel.”

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at 57.

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serious” breach of hotel policy and that this suspension, like the

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previous suspension, was being issued “in lieu of termination.”

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Id.

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Depo. 163:6-:8; she asserts that she did so “in the course of

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[her] work as Shop Steward” for her union.

Although the notice

Id.

It warned Plaintiff that removing the records was a “very

Plaintiff admits that she took these documents home, Knighten

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Knighten Decl. ¶ 9.

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The following month, in January 2010, Plaintiff was suspended

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again for calling in sick less than ten minutes before the

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beginning of her shift.

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Notice, at 52-53.

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past disciplinary record, the fifteen-day suspension would be

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Plaintiff’s “final warning.”

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again, issued “in lieu of termination.”

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Simonsen Decl., Ex. A, 1/11/10 Suspension

The notice stated that, in light of Plaintiff’s

Id. at 53.

The suspension was, once
Id.

In July 2010, Plaintiff was placed on a second work
improvement plan.

Id., 7/6/10 Performance Issues Memorandum, at

United States District Court
For the Northern District of California

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47-50.

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that outlined the hotel’s reasons for implementing the new plan.

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Id.

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failed to prepare dishes as requested and summarized Plaintiff’s

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recent disciplinary history.

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that, if Plaintiff failed to improve her job performance, “the

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Hotel will have no choice but to terminate [her] employment.”

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at 50.

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acknowledging that she had discussed the new plan with the chef

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and affirming that she would be subject to its terms.

The executive chef sent Plaintiff a three-page memorandum

The memorandum identified several instances when Plaintiff

Id. at 49.

It concluded by noting

Id.

Plaintiff signed the memorandum on July 6, 2010,

Id.

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Two months later, in September 2010, the hotel opened an

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investigation into a series of incidents that occurred in the

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kitchen on September 1, 2010 and involved Plaintiff.

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Termination Notice, at 22.

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does not describe the incidents in detail,3 Plaintiff herself

Id., 10/7/10

Although Plaintiff’s personnel file

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The only document Omni has submitted describing the September 1,
2010 incident is an unlabeled spreadsheet that contains dates and notes
about Plaintiff’s conduct. See Simonsen Decl., Ex. A, at 35. Because
Omni does not identify what this document is, when it was produced, or
why it was placed in Plaintiff’s personnel file, the Court does not rely
on the document here.

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asserts that the investigation was prompted by her co-workers’

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allegations that she: (1) failed to defrost chicken properly;

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(2) spoiled a pot of rice; and (3) used company time to arrange

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flowers for herself.

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that she spoiled the pot of rice and admits that she used a

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defrosting method that her supervisor had previously instructed

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her not to use.

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Resp. Interrog. No. 5, at 3-5.

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arranged the flowers during one of her breaks, not on company

United States District Court
For the Northern District of California

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time.

Knighten Decl. ¶ 11.

Plaintiff concedes

Id. ¶ 13; van Krieken Decl., Ex. D, Pl.’s Further
She asserts, however, that she

Id. ¶ 14.

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On October 7, 2010, the hotel terminated Plaintiff’s

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employment based on the results of its investigation and on her

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“continued poor performance while on a Work Improvement Plan.”

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Simonsen Decl., Ex. A, 10/7/10 Termination Notice, at 23.

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Area Director of Human Resources, Joselyne Simonsen, who approved

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Plaintiff’s termination, asserts that “the Hotel made the decision

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to terminate her employment based on her extensive disciplinary

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record, her failure to meet performance standards, her failure to

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comply with supervisors’ requests, and her failure to complete job

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assignments satisfactorily and meet Hotel expectations.”

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Decl. ¶ 17.

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Omni’s

Simonsen

In April 2012, a year and a half after her termination,

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Plaintiff filed this action against Omni.

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of action under FEHA: discrimination on the basis of race,

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discrimination on the basis of gender, retaliation, harassment,

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and failure to prevent discrimination and harassment.

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1, Compl. ¶¶ 16-20.

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She asserts five causes

Docket No.

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LEGAL STANDARD

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Summary judgment is properly granted when no genuine and

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disputed issues of material fact remain, and when, viewing the

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evidence most favorably to the non-moving party, the movant is

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clearly entitled to prevail as a matter of law.

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P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986);

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Eisenberg v. Ins. Co. of N. Am., 815 F.2d 1285, 1288-89 (9th Cir.

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1987).

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Fed. R. Civ.

The moving party bears the burden of showing that there is no

United States District Court
For the Northern District of California

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material factual dispute.

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true the opposing party’s evidence, if supported by affidavits or

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other evidentiary material.

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815 F.2d at 1289.

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in favor of the party against whom summary judgment is sought.

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Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

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587 (1986); Intel Corp. v. Hartford Accident & Indem. Co., 952

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F.2d 1551, 1558 (9th Cir. 1991).

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Therefore, the court must regard as

Celotex, 477 U.S. at 324; Eisenberg,

The court must draw all reasonable inferences

Material facts which would preclude entry of summary judgment

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are those which, under applicable substantive law, may affect the

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outcome of the case.

The substantive law will identify which

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facts are material.

Anderson v. Liberty Lobby, Inc., 477 U.S.

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242, 248 (1986).

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of proof on an issue at trial, the moving party may discharge its

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burden of production by either of two methods:

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Where the moving party does not bear the burden

The moving party may produce evidence negating an
essential element of the nonmoving party’s case, or,
after suitable discovery, the moving party may show that
the nonmoving party does not have enough evidence of an
essential element of its claim or defense to carry its
ultimate burden of persuasion at trial.
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Nissan Fire & Marine Ins. Co., Ltd., v. Fritz Cos., Inc., 210 F.3d

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1099, 1106 (9th Cir. 2000).

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If the moving party discharges its burden by showing an

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absence of evidence to support an essential element of a claim or

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defense, it is not required to produce evidence showing the

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absence of a material fact on such issues, or to support its

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motion with evidence negating the non-moving party’s claim.

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see also Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 885 (1990);

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Bhan v. NME Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir. 1991).

Id.;

If

United States District Court
For the Northern District of California

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the moving party shows an absence of evidence to support the non-

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moving party’s case, the burden then shifts to the non-moving

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party to produce “specific evidence, through affidavits or

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admissible discovery material, to show that the dispute exists.”

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Bhan, 929 F.2d at 1409.

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If the moving party discharges its burden by negating an

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essential element of the non-moving party’s claim or defense, it

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must produce affirmative evidence of such negation.

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F.3d at 1105.

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burden then shifts to the non-moving party to produce specific

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evidence to show that a dispute of material fact exists.

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Nissan, 210

If the moving party produces such evidence, the

Id.

If the moving party does not meet its initial burden of

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production by either method, the non-moving party is under no

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obligation to offer any evidence in support of its opposition.

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Id.

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ultimate burden of persuasion at trial.

This is true even though the non-moving party bears the

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Id. at 1107.

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DISCUSSION
A.

Race and Gender Discrimination (First and Second Causes of
Action)
Plaintiff asserts that Omni discriminated against her on the

basis of her race and gender.

Specifically, she alleges that, as

one of only a few African Americans and women employed on the
kitchen staff, she was unfairly subject to excessive disciplinary
sanctions and termination.

Compl. ¶ 5.

To determine whether an employment discrimination plaintiff
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can survive a defendant’s motion for summary judgment, courts
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United States District Court
For the Northern District of California

typically use the burden-shifting framework described in
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McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973), and
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Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 252-56
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(1981).

Although this framework was originally created to

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evaluate Title VII claims, California courts have since adopted it
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to analyze FEHA claims, as well.

Guz v. Bechtel Nat’l Inc., 24

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Cal. 4th 317, 354 (2000); Bradley v. Harcourt, Brace & Co., 104
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F.3d 267, 270 (9th Cir. 1996).
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Under this framework, the plaintiff must first establish a
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prima facie case of discrimination by presenting evidence that he
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or she: (1) belongs to a protected class; (2) was performing the
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job duties adequately; (3) was subject to an adverse employment
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decision; and (4) was treated differently than similarly situated
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employees who are not members of the plaintiff’s protected class.
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St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 506 (1993) (citing
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McDonnell Douglas, 411 U.S. at 802, and Burdine, 450 U.S. at 255).
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If the plaintiff does not satisfy this initial burden, then the
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defendant is entitled to summary judgment.
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However, if the plaintiff does satisfy this initial burden,

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then a presumption of discriminatory intent arises.

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this presumption, the defendant must offer a legitimate, non-

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discriminatory reason for its challenged employment decision.

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at 506-07.

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shifts back to the plaintiff to prove that the defendant’s

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proffered reason is pretextual and that the defendant did, in

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fact, act with discriminatory intent.

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plaintiff can only satisfy this ultimate burden by producing

Id.

To rebut

If the defendant provides such a reason, the burden

Id. at 510-11.

The

10
United States District Court
For the Northern District of California

Id.

“specific, substantial evidence of pretext.”

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Inc., 703 F.2d 392, 393 (9th Cir. 1983).

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the prima facie case consists of no more than the minimum

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necessary to create a presumption of discrimination under

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McDonnell Douglas, the plaintiff has failed to raise a triable

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issue of fact.”

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Cir. 1994).

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Steckl v. Motorola,

“[I]n those cases where

Wallis v. J.R. Simplot Co., 26 F.3d 885, 890 (9th

Here, Plaintiff has failed to make out a prima facie case of

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discrimination.

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member of two protected classes and that she was subject to

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adverse employment actions, she has not offered sufficient

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evidence to support an inference that she was treated differently

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than any similarly situated employee.

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she was performing her job duties adequately -- a point Omni

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contests -- Plaintiff has failed to satisfy her initial burden of

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production.

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Although she has presented evidence that she is a

Thus, even assuming that

Plaintiff states in her declaration that she was “treated

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differently from other Cooks.”

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particular, she asserts that she was required to help other cooks

Knighten Decl. ¶ 3.

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In

whenever they needed assistance but was barred from receiving any

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help from them in return.

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identify any specific instance when this rule was actually

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followed or enforced nor does she explain how or when she first

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learned of it.

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with her admission that she received “several” offers of help from

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another kitchen employee in October 2009.

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Lisa M. van Krieken, Ex. D, 10/28/09 Journal Entry, at 240.

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importantly, Plaintiff fails to identify the race or gender of any

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United States District Court
For the Northern District of California

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of the hotel’s other cooks, making it impossible to infer whether

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any of them were treated more favorably on account of race or

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gender.4

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inference that she was subject to differential treatment on

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account of her membership in a protected class.

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Id.

However, Plaintiff does not

She also does not explain how the rule comports

Reply Declaration of
Most

As such, Plaintiff’s declaration does not support an

Although Plaintiff asserts that she was subject to excessive

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disciplinary sanctions because of her race and gender, none of her

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evidence suggests that she was subject to harsher sanctions than

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similarly situated employees.

Plaintiff has not identified, for

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Plaintiff asserts in her declaration that she was the “only
African American and the only female employed in the kitchen.” Knighten
Decl. ¶ 2. Although this statement is relevant to Plaintiff’s
allegations of differential treatment, the Court does not rely on it
here because it conflicts with other sworn statements she has made.
Specifically, the statement contradicts the testimony Plaintiff gave
during her deposition, when she accused some of her co-workers of making
racially insensitive comments about another African-American chef. See
Knighten Depo. 224:18. The statement also contradicts Plaintiff’s
subsequent assertion -- in the same declaration -- that other female
employees worked in Omni’s kitchen during Plaintiff’s employment there.
See Knighten Decl. ¶ 2. The Court therefore disregards Plaintiff’s
assertion that she was “the only African American and the only female
employed in the kitchen” under the “sham” declaration rule. Kennedy v.
Allied Mut. Ins. Co., 952 F.2d 262, 266–67 (9th Cir. 1991) (holding that
a party cannot create a dispute of fact by contradicting his or her own
prior deposition testimony).

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instance, any employee who was subject to lesser disciplinary

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sanctions for violating the same hotel policies that she violated.

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In fact, during her deposition, Plaintiff acknowledged that she

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knew of several white male employees, including kitchen staff, who

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were disciplined for similar violations.

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van Krieken, Ex. A, Knighten Depo. 249:5-:21, 337:1-:16.

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Plaintiff points to just one instance where the hotel failed to

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discipline another employee -- a Hispanic male -- for recurring

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tardiness even though Plaintiff herself was disciplined for a

Declaration of Lisa M.

United States District Court
For the Northern District of California

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similar infraction.

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isolated instance, the hotel immediately rescinded its

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disciplinary action against Plaintiff once it learned of the

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inconsistency.

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instance where she was actually disciplined for behavior for which

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others were not disciplined.

Id.

Simonsen Decl. ¶ 7.

But, even in that

In short, Plaintiff has not identified any

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Because Plaintiff has not produced sufficient evidence to

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make out a prima facie case of discrimination, Omni is entitled to

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summary judgment on her discrimination claims.

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if Plaintiff had made out a prima facie case, Omni would still be

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entitled to summary judgment here for a different reason: namely,

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Plaintiff has failed to rebut Omni’s proffered justification for

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her termination -- poor job performance.

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has submitted several documents from Plaintiff’s personnel file

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that chronicle her numerous attendance and behavioral problems.

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See id., Ex. A.

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decision makers, including Simonsen, reasonably relied on this

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record when they terminated Plaintiff.

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mails that Omni received from Plaintiff’s co-workers complaining

Furthermore, even

As discussed above, Omni

It has also presented evidence that the relevant

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Id. ¶ 17.

The various e-

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about her lack of professionalism and subpar cooking skills

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provide further evidence that its decision was not motivated by

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discriminatory animus.

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See id., Ex. B.

Plaintiff has not presented any evidence to contradict Omni’s

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employment records or to suggest that Omni has somehow

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misrepresented the nature of her performance.

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even admits to making some of the very cooking mistakes that

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prompted the disciplinary measures she now challenges, including

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spoiling the pot of rice that led to her termination.

Indeed, Plaintiff

Knighten

United States District Court
For the Northern District of California

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Decl. ¶ 13.

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to her December 2009 suspension.

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Plaintiff has not submitted anything that rises to the level of

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“specific, substantial evidence of pretext.”

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Inc., 703 F.2d 392, 393 (9th Cir. 1983).

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entitled to summary judgment on Plaintiff’s first two causes of

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action.

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B.

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She also admits to removing the guest logs that led
Knighten Decl. ¶ 9.5

In sum,

Steckl v. Motorola,

As such, Omni is

Retaliation (Third Cause of Action)
Plaintiff alleges that Omni retaliated against her for filing

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administrative complaints with the Equal Employment Opportunity

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Commission (EEOC).

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Specifically, she asserts that her December

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Plaintiff suggests in her brief that there is a dispute of
material fact as to whether Omni was justified in disciplining her for
improperly defrosting chicken. The evidence she cites, however, does
not reveal any such dispute. Rather, it confirms that Plaintiff failed
to follow her supervisor’s defrosting instructions on multiple
occasions. For instance, Plaintiff’s own responses to Omni’s
interrogatories indicate that she attempted to defrost chicken under
running water in September 2010 even though a sous chef had instructed
her in May 2008 not to defrost chicken that way. See Pl.’s Further
Resp. Interrog. No. 5, at 3-5. While Plaintiff presents evidence to
show that her defrosting method was proper, this evidence is ultimately
insufficient to raise a dispute of material fact. The only relevant
issue here -- that Plaintiff failed to follow her supervisor’s
instructions -- is not in dispute.

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2009 and January 2010 suspensions were issued in response to EEOC

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charges that she filed in October 2009 and December 2009.

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also asserts that the hotel increased her workload in retaliation

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for filing the second charge.

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suspended for non-retaliatory reasons and denies that she was

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singled out for a workload increase in retaliation for her

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decision to file the administrative complaints.

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She

Omni contends that Plaintiff was

To determine whether a plaintiff’s retaliation claim can
survive summary judgment, courts typically use a burden-shifting

United States District Court
For the Northern District of California

10

framework similar to the one they use for employment

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discrimination claims.

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prima facie case of retaliation by submitting evidence that

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(1) she engaged in protected activity, (2) the defendant subjected

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her to some adverse employment action, and (3) there was a causal

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link between the protected activity and the adverse action.

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Iwekaogwu v. City of Los Angeles, 75 Cal. App. 4th 803, 814

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(1999).

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case, the burden shifts to the defendant to produce evidence of a

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legitimate, non-retaliatory reason for its challenged employment

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action.

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App. 4th 986, 1021 (2009).

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burden, the plaintiff must provide evidence that the defendant’s

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proffered reason was pretextual.

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First, the plaintiff must establish a

Next, assuming the plaintiff makes out a prima facie

Scotch v. Art Inst. of Cal.-Orange Cnty., Inc., 173 Cal.
Finally, if the defendant meets this

Id.

In the present case, Plaintiff has failed to present

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sufficient evidence to make out a prima facie case of retaliation

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based on Omni’s decision to increase her workload.

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shortcoming in Plaintiff’s evidence is that it fails to identify

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when Omni increased her workload.
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The critical

The only evidence she cites to

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support this allegation is an EEOC charge that she filed in May

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2011, seven months after her termination, in which she states that

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Omni’s head chef increased her workload “[s]ubsequent to filing”

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her EEOC charge in December 2009.

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Neither the EEOC charge nor her declaration specifies whether the

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chef increased her workload immediately after the December 2009

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charge or several months later.

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insufficient to support an inference that there was a causal link

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between her workload increase and her protected activity.

Simonsen Decl., Ex. G, at 680.

As such, this evidence is

United States District Court
For the Northern District of California

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Numerous courts have recognized that, to establish a causal link,

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a plaintiff must submit evidence that the temporal proximity

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between the protected activity and the adverse action was “very

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close.”

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74 (2001) (per curiam); Maurey v. Univ. of Southern Cal., 87 F.

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Supp. 2d 1021, 1033 (C.D. Cal. 1999).

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here.

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pinpoint the date of this workload increase, during her

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deposition, she estimated that it occurred in “September of

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2009” -- a full month before she filed her first EEOC charge.

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Knighten Depo. 263:6-:16.

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not provide a basis for her retaliation claim.

22

Clark County School Dist. v. Breeden, 532 U.S. 268, 273-

Plaintiff has not done so

In fact, the only time Plaintiff actually attempted to

The workload increase therefore does

Nor do the suspensions she received in December 2009 and

23

January 2010.

24

than timing, to establish a causal link between the EEOC charge

25

and these suspensions.

26

suspensions alone was sufficient to make out a prima facie case,

27

Omni has presented non-retaliatory justifications for each of the

28

suspension decisions.

Plaintiff has not presented any evidence, other

Further, even if the timing of the

As noted above, the December 2009
15

1

suspension notice states that Plaintiff was suspended for removing

2

guest logs from the hotel without permission while the January

3

2010 notice states that she was suspended for failing to provide

4

adequate notice that she would be missing her shift.

5

Decl., Ex. A, at 52-53, 54-57.

6

hotel’s underlying allegations regarding either of these

7

suspensions.

8

hotel, Knighten Decl. ¶ 9, and does not dispute that she called in

9

sick less than ten minutes before she was scheduled to begin her

United States District Court
For the Northern District of California

10

Simonsen

Plaintiff does not contradict the

She admits that she removed guest logs from the

shift.

11

Plaintiff testified during her deposition that Omni “didn’t

12

treat [the guest logs] as confidential” because it let hotel

13

employees use them as “scratch paper.”

14

164:13-:14.

15

statement from a supervisor permitting her to remove these logs

16

from the hotel.

17

admitted that she did not obtain all of the guest logs from the

18

scrap paper supply but, rather, relied on co-workers to obtain

19

some of them from other sources.

20

Plaintiff admitted that she refused to return the logs to the

21

hotel when her supervisor requested them and similarly refused to

22

disclose the names of the co-workers who helped her obtain them.

23

Id. 164:22-165:23.

24

the hotel’s disciplinary action.

25

Knighten Depo. 163:2-:3,

But she failed to identify any company policy or

Id. 162:4-163:25.

Furthermore, Plaintiff

Id. 164:1-:7.

Most importantly,

This conduct alone is sufficient to justify

Thus, because neither the alleged workload increase nor the

26

suspensions ultimately support Plaintiff’s retaliation claim, Omni

27

is entitled to summary judgment on this claim, as well.

28

C.

Harassment (Fifth Cause of Action)
16

1

Plaintiff asserts that she was subject to a hostile work

2

environment due to constant harassment by her co-workers and

3

supervisors.

4

To evaluate a plaintiff’s claims of racial or sexual

5

harassment under FEHA, California courts rely on federal case law

6

interpreting Title VII.

7

464, (1999).

8

summary judgment must present evidence that (1) he or she was

9

subjected to verbal or physical conduct related to his or her

Etter v. Veriflo, 67 Cal. App. 4th 457,

Under this case law, a plaintiff seeking to survive

United States District Court
For the Northern District of California

10

membership in a protected class; (2) the conduct was unwelcome;

11

and (3) the conduct was sufficiently severe or pervasive to alter

12

the conditions of the plaintiff’s employment and create an abusive

13

work environment.

14

(9th Cir. 2003) (citing Gregory v. Widnall, 153 F.3d 1071, 1074

15

(9th Cir. 1998)).

Vasquez v. County of L.A., 349 F.3d 634, 642

16

Here, Plaintiff has not presented sufficient evidence to

17

support an inference that she was subject to “severe or pervasive”

18

harassment on account of her race.

19

incidents of harassment in the course of her eight years at Omni

20

that were even plausibly racial in nature.

21

the head chef making “generalization[s]” about the eating habits

22

of the Chinese members of the hotel’s housekeeping staff.

23

Knighten Depo. 226:1-:24.

24

using the term, “colored,” to refer to African-American people.

25

Id. 228:6-:14.

26

who, while recounting a story about a former sous chef, noted that

27

the former sous chef was “black,” which Plaintiff felt was an

28

unnecessary detail in the story.

She has identified just four

One incident involved

Another involved a different supervisor

A third incident involved a different supervisor

Id. 231:12-:22.
17

The fourth and

1

most egregious incident of racial harassment occurred when a white

2

kitchen employee used the “N word” while speaking to another black

3

employee.

4

employee was later disciplined for the comment.

5

Taken together, these incidents -- none of which involved physical

6

harassment and none of which were directed at Plaintiff

7

personally -- are not sufficient to establish that Plaintiff was

8

subject to a hostile work environment because of her race.

9

Lewis v. North General Hosp., 502 F. Supp. 2d 390, 403 (S.D.N.Y.

Id. 233:4-:5.

Plaintiff acknowledges that the white
Id. 232:12-:14.

United States District Court
For the Northern District of California

10

2007) (finding that “only four incidents over a three-month

11

period” is insufficient to support an inference of unlawful

12

Cf.

harassment under Title VII).

13

Plaintiff’s evidence of sexual harassment is similarly

14

lacking.

15

alleged sexual harassment to support her claim.

16

occurred sometime “around 2003,” when a male kitchen employee

17

propositioned Plaintiff and made a lewd comment toward her.

18

Knighten Depo. 195:16, 200:14-:22.

19

when a male chef, responding to Plaintiff’s comment that the hotel

20

needed more female cooks, stated that “one is more than enough.”

21

Id. 188:16-:23.

22

another male kitchen employee asked Plaintiff if she had ever had

23

“a Brazilian” and suggested that they have sex together.

24

190:3-:5, 191:1-:5.

25

obviously offensive, they appear to be isolated incidents rather

26

than part of a consistent pattern of harassment, given that they

27

were spread out over the course of several years.

28

Plaintiff admits that after she complained to management about the

During her deposition, she described three incidents of
The first

The second occurred in 2004

The third incident occurred in 2007 or 2008 when

Id.

While all three of these comments are

18

What’s more,

1

offending employees, the employees never harassed her again.

2

191:17-192:4.

3

Id.

Although Plaintiff identifies other incidents of alleged

4

harassment, she has not presented sufficient evidence to support

5

an inference that these incidents occurred because of her race or

6

gender.

7

one sous chef “would deliberately make loud noises in back of

8

[her], e.g., banging pots and pans, breaking up frozen vegetables”

9

Knighten Decl. ¶ 4, but she fails to provide any basis for

For instance, Plaintiff asserts in her declaration that

United States District Court
For the Northern District of California

10

inferring that the sous chef’s behavior was motivated by

11

discriminatory animus.

12

whether the sous chef’s conduct constituted sexual harassment,

13

racial harassment, or some combination of the two.

14

this lack of specificity, Plaintiff’s evidence is insufficient to

15

support an inference of harassment based on race or gender.

16

is therefore entitled to summary judgment on this claim.

17

D.

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19
20
21
22
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24
25
26
27
28

Indeed, Plaintiff does not even specify

In light of

Omni

Failure to Prevent Unlawful Harassment (Fourth Cause of
Action)
Plaintiff alleges that Omni failed to prevent her co-workers

from harassing her, asserting a claim under section 12940k
California Government Code.

California courts have made clear

that this claim “is viable only if the defendant engaged in
actionable discrimination.”

Solis v. Walgreen Co., 2013 WL

1942159, at *7 (N.D. Cal.) (citing Trujillo v. N. County Transit
Dist., 63 Cal. App. 4th 280, 288–89 (1998)).

Thus, because Omni

is entitled to summary judgment on Plaintiff’s underlying claims
for discrimination and harassment, it is also entitled to summary
judgment on her claim for failure to prevent harassment.
19

1
2

E.

Statute of Limitations
In addition to the reasons outlined above, Plaintiff’s

3

discrimination claims fail because they are time-barred to the

4

extent they rely on allegations contained in her October 2009 EEOC

5

charge.

6

provides that an employee who seeks to bring FEHA claims against

7

his or her employer must do so within one year of receiving a

8

right-to-sue notice from the Department of Fair Employment and

9

Housing (DFEH).

United States District Court
For the Northern District of California

10
11

Section 12965(b) of the California Government Code

Hall v. Goodwill Industries of So. Cal., 193 Cal.

App. 4th 718, 725 (2011).
On October 18, 2010, Plaintiff received a right-to-sue notice

12

in response to her October 2009 EEOC charge.

13

this action, however, until April 2012, a full six months after

14

the statute of limitations had run.

15

claims based on acts alleged in the October 2009 EEOC charge are

16

barred by the statute of limitations.

She failed to file

Thus, any discrimination

17

Although Plaintiff argues that her subsequent EEOC charges

18

effectively revive her time-barred claims, case law makes clear

19

that they do not.

20

FEHA claims simply by filing a new administrative complaint, then

21

the statute of limitations would effectively be meaningless.

22

is why another court in this district has expressly rejected

23

Plaintiff’s argument in the past.

24

Dist., 2004 WL 2075447, at *11 (N.D. Cal.) (“Plaintiff received a

25

right to sue letter on May 16, 2002 for his May 8, 2002 charge.

26

Because Plaintiff failed to bring a civil action under the FEHA

27

within one year from the date of this letter, to the extent

28

Plaintiff’s FEHA claim is based on the allegations in the May 8,

If plaintiffs were able to revive time-barred

20

This

Bill v. Berkeley Unified Sch.

1

2002 charge, that claim is barred by the statute of

2

limitations.”).

3

discrimination and retaliation claims are based on events that

4

were described in her October 2009 EEOC charge, those claims are

5

precluded by the statute of limitations.

6

Thus, to the extent that Plaintiff’s

Plaintiff correctly notes that, unlike other discrimination

7

claims, harassment claims are not time-barred when the alleged

8

harassment continues into the acceptable statutory filing period.

9

See Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002)

United States District Court
For the Northern District of California

10

(“It does not matter, for purposes of the statute [i.e., Title

11

VII], that some of the component acts of the hostile work

12

environment fall outside the statutory time period.”).

13

Plaintiff has not presented any evidence that any incidents of

14

alleged racial and sexual harassment occurred during the statutory

15

filing period here.

16

are also time-barred.

17

F.

18

However,

Accordingly, Plaintiff’s harassment claims

Evidentiary Objections
Omni objects to certain conclusory statements in Plaintiff’s

19

declaration.

20

here, Omni’s evidentiary objections are overruled as moot.

21

Because the Court does not rely on those statements

Plaintiff objects to the Simonsen’s declaration by asserting,

22

“Most of the Declaration is hearsay.”

23

fails to provide any further explanation of the exact nature of

24

this objection, her argument appears to be based on the fact that

25

Simonsen’s declaration cites various documents from Plaintiff’s

26

personnel file, including suspension notices, work improvement

27

plans, performance reviews, and e-mail complaints submitted by

28

other Omni employees.

Opp. 9.

Although Plaintiff

Simonsen’s reliance on these documents,
21

1

however, does not render the declaration inadmissible.

2

of the documents Simonsen cites, such as Plaintiff’s performance

3

reviews and suspension notices, fall under the business records

4

exception to the hearsay rule because they were created in the

5

course of Omni’s regular business by knowledgeable hotel employees

6

at the time the relevant events occurred.

7

see also Rogers v. Oregon Trail Elec. Consumers Co-op., Inc., 2012

8

WL 1635127 (D. Or.), (holding that “formal memoranda issued in

9

conjunction with disciplinary action and performance reviews

Almost all

Fed. R. Evid. 803(6);

United States District Court
For the Northern District of California

10

pertaining to one individual” fell within the business records

11

exception).

12

documents to make her employment decisions.

13

not rely on most of them for the truth of the matter asserted but,

14

rather, to show that she received numerous complaints about

15

Plaintiff from various sources.

16

Commc’ns, Inc., 642 F. Supp. 1531, 1543 (S.D.N.Y. 1986) (holding

17

that “testimony concerning the complaints [the witnesses] received

18

about [the plaintiff’s] work performance were properly admitted at

19

trial as nonhearsay evidence” because they were presented “for the

20

purpose of proving that [the witnesses] had received these

21

complaints”), aff’d, 814 F.2d 653 (2d Cir. 1987).

22

objection is therefore overruled.

23
24

Furthermore, Simonsen was entitled to rely on these
Her declaration does

See, e.g., Mazzella v. RCA Global

Plaintiff’s

CONCLUSION
For the reasons set forth above, Defendant’s motion for

25

summary judgment (Docket No. 29) is GRANTED; Defendant’s

26

evidentiary objections are OVERRULED as moot; and Plaintiff’s

27

evidentiary objections are OVERRULED.

28
22

1

The Court GRANTS the parties’ requests to take judicial

2

notice of arbitration decisions issued after the summary judgment

3

hearing (Docket Nos. 50, 52).

4

a dispute of material fact or alters the outcome in this case.

5

The arbitrator’s May 28, 2013 decision relates to a September 2009

6

disciplinary action on which the Court has not relied in this

7

order while the June 4, 2013 decision lends further support to

8

Defendant’s position.

9

Neither decision suffices to create

IT IS SO ORDERED.

United States District Court
For the Northern District of California

10
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12

Dated: 8/28/2013

CLAUDIA WILKEN
United States District Judge

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