Guthmann v. Classic Residence Management Limited Partnership et al

Filing 74

Order by Hon. Lucy H. Koh Granting #41 Motion for Partial Summary Judgment.(lhklc2S, COURT STAFF) (Filed on 7/14/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

United States District Court
Northern District of California

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STACY GUTHMANN,

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Plaintiff,

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ORDER GRANTING MOTION FOR
SUMMARY JUDGMENT ON
SELECTED CLAIMS

v.

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Case No. 16-CV-02680-LHK

CLASSIC RESIDENCE MANAGEMENT
LIMITED PARTNERSHIP, et al.,

Re: Dkt. No. 41

Defendants.
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Plaintiff Stacy Guthmann (“Plaintiff”) brings this action against CC-Palo Alto, Inc. D/B/A

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Vi at Palo Alto (“Vi”) and Classic Residence Management Limited Partnership (“Classic

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Residence Management”) (collectively, “Defendants”). Before the Court is Defendants’ motion

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for summary judgment on certain claims in Plaintiff’s complaint. ECF No. 41 (“Mot.”).

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Specifically, Defendants move for summary judgment on Plaintiff’s gender discrimination, age

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discrimination, retaliation, and wrongful termination claims. Having considered the submissions

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and oral arguments of the parties, the relevant law, and the record in this case, the Court GRANTS

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Defendants’ motion for summary judgment on these claims.

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I.

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BACKGROUND
A. Factual Background
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Defendant Classic Residence Management operates retirement communities across the

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United States. Guthmann Decl. ¶ 2. In August 2011, Plaintiff began working as a Sales Counselor

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at one of these retirement communities, Vi at Palo Alto. Ex. C. to Mot. Plaintiff worked at Vi at

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Palo Alto until she was terminated on May 28, 2015. Guthmann Decl. ¶ 1. As a Sales Counselor,

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Plaintiff’s job duties included sales and marketing of residential units at Vi at Palo Alto.

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Plaintiff claims that from the time she was hired through January 2012, Plaintiff “reported

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to work but did not clock in or out.” Opp. at 3; Guthmann Depo. 17:4–20. Thereafter, Plaintiff’s

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supervisor instructed Plaintiff to begin clocking in and out, and Plaintiff began to do so. Id.

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However, because Plaintiff was a Sales Counselor, Plaintiff was often unexpectedly interrupted at
lunchtime by potential buyers seeking to tour residential units. This would require Plaintiff to

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clock in before beginning the tour. Plaintiff was also required to “punch out at the supposed end of

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the day in an artificial manner” even if Plaintiff continued to work after the “supposed end of the

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day.” Guthmann Decl. ¶ 6. According to Plaintiff, this system meant that Plaintiff worked off the

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clock between 5 and 10 times per month “during the busy times of the year, i.e., October through

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January,” and approximately four times per month during the rest of the year. Id.

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Plaintiff claims that she made numerous complaints about this system and “constantly

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suggested that Defendants simply adjust my salary and classification and make me exempt.” Id. ¶

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7. Specifically, Plaintiff claims that she discussed this topic once per month for almost four years

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with her supervisor, Michael Wilson. Id. ¶ 7. Plaintiff also claims that she discussed this topic with

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Shari Okumura, the Director of Human Resources, approximately ten times in three and a half

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years. Id. ¶ 8. Finally, Plaintiff claims that she discussed this issue with the Executive Director of

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Vi at Palo Alto, Steve Brudnick, five times per year. Id. ¶ 9.

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Plaintiff also claims that she complained about other allegedly unfair wage practices. For

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example, Plaintiff states that Plaintiff received a commission on every sale of a residential unit.

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However, if the sale was cancelled for some reason, Plaintiff was required to pay back the

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commission she earned, but Defendants would not return the amount that Plaintiff had paid in

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taxes on the commission. Id. ¶ 10. Plaintiff complained about this practice to Wilson in April

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2013. Plaintiff claims that she also complained to Wilson about another issue regarding what

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Plaintiff regarded as unfair policies for using Personal Time Off. Id. ¶ 11. Additionally, Plaintiff

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complained that after Defendants switched to a new time-clock system in May 2014, the new

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system malfunctioned in ways that made it appear that Plaintiff was “working a lot of overtime”

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and that Plaintiff was taking longer breaks. Id. ¶ 13; Opp. at 4.

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According to Plaintiff, these complaints and the problems with the new time-clock system
caused Wilson “to become frustrated and terse with Plaintiff.” Opp. at 4. Therefore, Plaintiff

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contacted Okumura, who arranged a meeting with Plaintiff to discuss the matter. Guthmann Decl.

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¶ 15. When Plaintiff met with Okumura on June 2, 2014, Plaintiff states that Okumura discussed

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ways to improve the relationship between Plaintiff and Wilson. Id. However, Plaintiff also stated

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that “[w]hen [Plaintiff] pointed out to Ms. Okumura that there were differences between the way

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that I was compelled to clock in a[nd] out and employees on her Staff, [Okumura] became

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defensive and angry.” Id.

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The same day as the meeting with Okumura, June 2, 2014, Plaintiff made a separate

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request to Wilson. Specifically, Plaintiff “foresaw an upcoming need to work on a Saturday

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coupled with [a] need for some personal time in an upcoming work week.” Opp. at 5. Therefore

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“Plaintiff requested to not have to take PTO [Personal Time Off] but instead to work on Saturday

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because she believed her PTO had been unfairly depleted by Defendants’ practices.” Id. Wilson

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denied this request. Id.

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On June 13, 2014, Plaintiff learned that since June 2, 2014, the Director of Resident

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Services, Spiller, had been “keeping a log” of Plaintiff’s personal calls, lunch breaks, and clock-

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punching times. Id. ¶ 17. Plaintiff found this “highly unusual since [Spiller] was not in [Plaintiff’s]

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chain of command,” and therefore Plaintiff complained to Okumura. Id. Okumura informed

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Plaintiff that Spiller had complained to Okumura that Plaintiff was making too many personal

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calls. Id. Plaintiff states that “[t]o solve the issue, Plaintiff shut her door.” Opp. at 5.

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Plaintiff continued to complain about wage and hour issues to Wilson and Okumura. Id.
Eventually, Plaintiff emailed Defendants’ corporate office in Chicago and requested more
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information on why Plaintiff was not classified as an exempt employee. Ex. B to Opp. Okumura

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forwarded this email and the corporate office’s response to Brudnick. Id.
On August 12, 2014, Plaintiff received a mid-year performance evaluation from Wilson.

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Ex. A (Wilson Depo., Ex. 5). As part of the evaluation, Wilson wrote the following:
An issue coming to [the] forefront for Stacy is that she perceives a disparity
regarding her and a few other employees regarding exempt/nonexempt status and
has made this an issue of dispute recently with myself and the Director of H.R.
Although it has been explained to her the rationale behind the non-exempt status
of the Sales Counselor position said status is an irritant to her, however, it has not
had a negative effect on her work performance or morale.

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Id.
On August 20, 2014, employees in Defendants’ Vi community in San Diego filed a class
action lawsuit asserting claims related to Defendants’ wage and hour practices, including timeclock issues. ECF No. 58-1. Wilson informed Plaintiff about this lawsuit in March 2015.
On May 6, 2015, at Okumura’s request, Wilson forwarded Okumura emails from Plaintiff
relating to Plaintiff’s complaints about wage and hour issues. Ex. A 136:7–15. In mid-May 2015,
Plaintiff claims that Wilson informed Plaintiff that because of the Vi San Diego lawsuit, an
investigator was coming to Vi Palo Alto to “ask if . . . people who are on the clock had any issues
about missed time, about missed breaks.” Guthmann Depo. at 144:11–19. Plaintiff states that
Wilson told Plaintiff that if Plaintiff “play[ed] ball,” Wilson would support Plaintiff’s effort to be
classified as an exempt employee. Id. at 146:7–9. Plaintiff met with the investigator on May 15,
2015 and told the investigator that Plaintiff “did not have a problem with not receiving . . .
breaks.” Id. at 148:1–2.
On May 21, 2015, Plaintiff was involved in an altercation with a Vi resident, Mrs. Lawver,
and her dog. Plaintiff claims that even before the incident, Mrs. Lawver’s dog was “known for
attacking other dogs and people” and that Mrs. Lawver herself “was known for her violent, vulgar,
racist[,] abusive conduct, which has repeatedly occurred over the years.” Opp. at 2–3. Plaintiff has
produced evidence regarding particular incidents involving Mrs. Lawver and her dog. Id.
The basic facts of the May 21, 2015 incident are as follows. As Plaintiff sat in her office,
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she heard a dog barking outside and left to investigate. Guthmann Depo. 95:5–12. Once outside,

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Plaintiff witnessed Mrs. Lawver’s dog barking at another resident’s dog. Id. at 96:4–7. Plaintiff

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took Mrs. Lawver’s dog’s leash, and Plaintiff and Mrs. Lawver exchanged words. Id. at 97:6–24.

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Plaintiff then returned to her office. Id. at 97–98. After remaining in her office for a few seconds,

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Plaintiff again left her office and encountered Mrs. Lawver in the hallway. Plaintiff and Mrs.

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Lawver then engaged in a second verbal altercation in the hallway. Id. at 102:4–25.

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Plaintiff reported this incident by email to Luis Lopez, the manager of the day, the same

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day it occurred and gave her version of events. Plaintiff stated that she “ran up to take the leash

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from Mrs. Lawver’s arm” and told Mrs. Lawver that her dog needed to leave the community. Ex.
K to Guthmann Decl. Plaintiff stated that Mrs. Lawver threatened to sue Plaintiff, and that

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Plaintiff “told her she could get a lawyer or speak to Steve [Brudnick] about me.” Id. Plaintiff then

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stated that during the second altercation in the hallway, Mrs. Lawver swore at Plaintiff and

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Plaintiff “told her that she cannot use that language with me nor could she hit me[.] [T]hat

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behavior isn’t allowed in the community.” Id.

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Plaintiff claims that Plaintiff was the only person to report this incident to Lopez and that

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Mrs. Lawver returned to her room and made no effort to lodge a complaint regarding the incident.

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Lopez Depo. 32:2–11. However, one employee, Joy Flores, informed her supervisor, Spiller, about

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the incident. Ex. D to Opp. In response, Spiller told Flores that if Mrs. Lawver “tries to get you

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involved, tell her she has to talk to Steve [Brudnick].” Spiller Depo. 123:10–13.

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Spiller forwarded this email chain to several people, including Christina Ninh, a Move-In

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Coordinator who witnessed the incident. Ex. M. to Opp. Ninh responded to Spiller and stated that

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“I’ve heard [Plaintiff’s] side of the story, which is very untrue, she is not the victim in this at all.”

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Id. Ninh stated that she was “writing a report with Esmerelda [Rodriguez] that I can cc you on.”

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Id. Ninh added, “[a]s crazy as we think Mrs. Lawver may be, she was very composed.” Id.

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Soon afterward, Ninh forwarded her full statement to Rodriguez, who forwarded it to

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Okumura, who forwarded it to Brudnick. Ex. N. to Opp. According to Ninh’s statement, when

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Plaintiff confronted Mrs. Lawver, Plaintiff repeatedly told Mrs. Lawver that “[y]ou need to leave.”

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Ex. I at 49. Plaintiff also told Mrs. Lawyer that “You can call an attorney [if] you want, I don’t

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care.” Id. Ninh stated that after Plaintiff momentarily went back to her office, Ninh “was very

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apologetic to Mrs. Lawver, and even hugged her.” Subsequently, during the second altercation in

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the hallway, Ninh stated that Plaintiff “came back in a U-turn fashion in front of Mrs. Lawver’s

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face, and stood there upright with her hands folded. It was provoking and unnecessary.” Id.

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Plaintiff then “dared [Dr. Lawver] to lay a hand on her.” Id. According to Ninh, Plaintiff

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“completely lost it. [Plaintiff] was very unprofessional, undignified, provoking and unacceptable.”

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Id.

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On May 22, 2015, the day after the incident, Joy Flores also emailed Okumura and stated
that another resident and her caregiver “saw and heard everything [and] told me that the sales lady

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[Plaintiff] was very rude and unprofessional [and] that she needs to be reported to Steve

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[Brudnick].” Ex. P. Okumura forwarded this email to Brudnick and noted that Flores “was going

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to speak with Susan [Spiller] but she was considering contacting the Ombudsman to report

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[Plaintiff] for elder abuse.” Id. Brudnick responded, “Let her do what she wants to do. It’s

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ridiculous of course but you can’t stop her.” Id.

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An hour later, Spiller emailed Brudnick directly, cc-ing Okumura, and stated that Spiller

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would speak to Mrs. Lawver and would report the incident to the Santa Clara County

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Ombudsman. Ex. Q to Opp. Spiller asked Brudnick, “Are you ok with this?” Id. In response,

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Okumura emailed Spiller and stated, “I texted with Steve. He’s ‘in the know’ and we’ll proceed

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per our normal protocol.” Id.

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The same day, Spiller visited Mrs. Lawver in her apartment. Ex. R. to Opp. Mrs. Lawver

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stated that she “did not want to make a statement as she was preparing to leave.” Id. Spiller

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informed Mrs. Lawver about the next steps regarding the Ombudsman. Id. Spiller also

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“apologized profusely, acknowledging that an incident like this should never happen.” Id. Mrs.

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Lawver stated that Plaintiff should be fired. Id. Mrs. Lawver stated that she would file a report as

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part of the elder abuse claim. Id.

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Defendants have produced fax transmission records showing that the complaint was sent to
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the Santa Clara County Ombudsman and Adult Protection Services on May 26, 2015. Ex. J to

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Mot. However, Plaintiff “seriously question[s] the authenticity” of Defendants’ fax transmissions.

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Opp. at 18.

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On May 22, 2015, Okumura met with Plaintiff regarding the incident and suspended
Plaintiff from work pending investigation of the incident. Guthmann Depo. 110:11–13. Okumura

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informed Plaintiff that “there had been an elder abuse claim by Mrs. Lawver” and that Defendants

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could not allow someone accused of abuse to work around the alleged victim. Id. at 110:24–25.

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Because Mrs. Lawver lived at Vi Palo Alto, Plaintiff “would need to be the one to leave pending

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the investigation.” Id. at 111:1–2. Plaintiff informed Wilson that Plaintiff was being sent home,

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and Wilson “was shocked because of [Mrs. Lawver’s] reputation of being a serial abuser within

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the community.” Id. at 111:16–17. Plaintiff also claims that Wilson stated that he “wasn’t included

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in this decision.” Id. at 111:18–19.

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Mrs. Lawver, Blanca Ruiz, and Carmen Galindo, each of whom witnessed the incident,

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gave written statements about the incident. Ex. I to Mot. Mrs. Lawver’s statement stated that

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Plaintiff “castigated me for being a disturbance and told me that I did not belong here and should

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leave.” Ex. I at 48. Blanca Ruiz, an Administrative Assistant, gave little information but stated that

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Plaintiff “rais[ed] her arm and pointed her finger at [Mrs. Lawver] a couple of times” and then

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“walk[ed] away from the scene in a[n] upsetting way.” Ex. I at 52. Carmen Galindo, a personal

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aide to another resident, stated that Plaintiff “shouted at [Mrs. Lawver]” and said that Mrs. Lawver

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“should get out with her dog, right away, today.” Ex. I at 51. Galindo stated that in the hallway,

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Plaintiff “continued to shout” at Mrs. Lawver. Id.

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After conducting an investigation, Defendants determined that Plaintiff should be

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terminated. Okumura Depo. 47. Specifically, on or around May 27, 2015, Okumura had a call with

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members of the corporate office, which to the best of Okumura’s recollection included Danielle

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Kerry, Diane Schreiber, and Stephanie Fields. Id. During this call, “the situation was reviewed and

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the decision was made.” Id. Okumura testified that Brudnick did not participate in the call. Id.

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Thereafter, on May 28, 2015, Plaintiff met with Okumura and Wilson to discuss the meeting. At

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that meeting, Okumura informed Plaintiff that she was being fired based on the incident.

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Guthmann Depo. 87:3–6, 89:7–10.

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B. Procedural History

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This action began with a complaint filed in Santa Clara County Superior Court on April

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11, 2016. ECF No. 1 at 7 (“Compl.”). The complaint asserts nine causes of action: (1) failure to

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pay overtime wages; (2) failure to provide meal periods; (3) failure to provide rest periods; (4)

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failure to furnish accurate wage statements; (5) failure to pay earned wages upon termination; (6)

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gender discrimination; (7) age discrimination; (8) retaliation; and (9) wrongful termination in

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violation of public policy. Id. Defendants removed the case to this Court on May 18, 2016. ECF

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No. 1. Defendants also answered the complaint on May 18, 2016. ECF No. 1.
On May 17, 2017, Defendants filed the instant motion for summary judgment on a subset

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of Plaintiff’s claims. ECF No. 41. In the motion, Defendants requested summary judgment on

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Plaintiff’s claims for gender discrimination, age discrimination, and wrongful termination in

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violation of public policy. Id. On May 31, 2017, Plaintiff filed an opposition to Defendants’

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motion for summary judgment. ECF No. 54. Also on May 31, 2017, Plaintiff filed a request for

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judicial notice in conjunction with the opposition. ECF No. 58. On June 7, 2017, Defendants filed

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a reply. 1 ECF No. 64.

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II.

LEGAL STANDARD
Summary judgment is proper where the pleadings, discovery and affidavits demonstrate

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that there is “no genuine issue as to any material fact and that the moving party is entitled to

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judgment as a matter of law.” Fed. R. Civ. P. 56(c). Material facts are those which may affect the

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outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a

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material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for

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the nonmoving party. Id.

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Along with the reply, Defendants also submitted separate evidentiary objections. ECF Nos. 64-1,
64-2. However, Civil Local Rule 7–3 requires that “[a]ny evidentiary and procedural objections to
the motion must be contained within the brief or memorandum.” Accordingly, the Court strikes
Defendants’ separately filed objections.
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The party moving for summary judgment bears the initial burden of identifying those

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portions of the pleadings, discovery and affidavits which demonstrate the absence of a genuine

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issue of material fact. Celotex Corp. v. Cattrett, 477 U.S. 317, 323 (1986). Where the moving

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party will have the burden of proof on an issue at trial, it must affirmatively demonstrate that no

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reasonable trier of fact could find other than for the moving party. However, on an issue for which

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the opposing party will have the burden of proof at trial, the moving party need only point out

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“that there is an absence of evidence to support the nonmoving party’s case.” Id. at 325.

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Once the moving party meets its initial burden, the nonmoving party must go beyond the

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pleadings and, by its own affidavits or discovery, “set forth specific facts showing that there is a
genuine issue for trial.” Fed. R. Civ. P. 56(e). The court is only concerned with disputes over

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material facts and “factual disputes that are irrelevant or unnecessary will not be counted.”

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Anderson, 477 U.S. at 248. It is not the task of the court to scour the record in search of a genuine

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issue of triable fact. Keenan v. Allen, 91 F.3d 1275, 1279 (9th Cir. 1996). The nonmoving party

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has the burden of identifying, with reasonable particularity, the evidence that precludes summary

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judgment. Id. If the nonmoving party fails to make this showing, “the moving party is entitled to

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judgment as a matter of law.” Celotex Corp., 477 U.S. at 323.

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At the summary judgment stage, the court must view the evidence in the light most

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favorable to the nonmoving party: if evidence produced by the moving party conflicts with

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evidence produced by the nonmoving party, the judge must assume the truth of the evidence set

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forth by the nonmoving party with respect to that fact. See Leslie v. Grupo ICA, 198 F.3d 1152,

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1158 (9th Cir. 1999).

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III.

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DISCUSSION
As discussed above, Plaintiff’s complaint asserts nine causes of action: (1) failure to pay

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overtime wages; (2) failure to provide meal periods; (3) failure to provide rest periods; (4) failure

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to furnish accurate wage statements; (5) failure to pay earned wages upon termination; (6) gender

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discrimination; (7) age discrimination; (8) retaliation; and (9) wrongful termination in violation of

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public policy.

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Defendants move for summary judgment on four of these causes of action: gender

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discrimination, age discrimination, retaliation, and wrongful termination in violation of public

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policy. Plaintiff has filed a request for judicial notice in connection with Plaintiff’s opposition to

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the motion for summary judgment. The Court first addresses Plaintiff’s request for judicial notice.

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The Court then considers Plaintiff’s gender and age discrimination claims together, followed by

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Plaintiff’s retaliation claim and then Plaintiff’s claim for wrongful termination in violation of

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public policy.

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A. Request for Judicial Notice
The Court first addresses Plaintiff’s request for judicial notice. ECF No. 58. The Court

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may take judicial notice of matters that are either “generally known within the trial court’s

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territorial jurisdiction” or “can be accurately and readily determined from sources whose accuracy

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cannot reasonably be questioned.” Fed. R. Evid. 201(b). Public records, including judgments and

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other publicly filed documents, are proper subjects of judicial notice. See, e.g., United States v.

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Black, 482 F.3d 1035, 1041 (9th Cir. 2007) (“[Courts] may take notice of proceedings in other

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courts, both within and without the federal judicial system, if those proceedings have a direct

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relation to matters at issue.”); Rothman v. Gregor, 220 F.3d 81, 92 (2d Cir. 2000) (taking judicial

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notice of a filed complaint as a public record).
However, to the extent any facts in documents subject to judicial notice are subject to

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reasonable dispute, the Court will not take judicial notice of those facts. See Lee v. City of L.A.,

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250 F.3d 668, 689 (9th Cir. 2001) (“A court may take judicial notice of matters of public

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record . . . But a court may not take judicial notice of a fact that is subject to reasonable dispute.”)

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(internal quotation marks omitted), overruled on other grounds by Galbraith v. Cty. of Santa

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Clara, 307 F.3d 1119 (9th Cir. 2002).
Defendant requests judicial notice of the following documents:

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Complaint for Damages in the matter of Shiela Victoriano v. Classic Residence

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Management, LP, San Diego Superior Court Case No. 37-2014-00028031-CU-OE-CTL,

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filed on August 20, 2014;

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Order and Judgment Re: Plaintiff’s Motion for Attorneys’ Fees and costs and Class

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Representative Enhancement; and Motion for Conditional Certification and Final Approval

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of Class Action Settlement, filed on May 5, 2016 in the matter of Shiela Victoriano v.

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Classic Residence Management, LP, San Diego Superior Court Case No. 37-2014-

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00028031- CU-OE-CTL.

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Both of these documents are public records and are therefore proper subjects of judicial

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notice. Additionally, Defendants do not oppose Plaintiff’s request for judicial notice. The Court

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therefore GRANTS Plaintiff’s request for judicial notice.

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B. Gender and Age Discrimination
The Court first addresses Plaintiff’s causes of action for gender and age discrimination.

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Plaintiff’s gender and age discrimination causes of action are asserted solely under the California

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Fair Employment and Housing Act, Cal. Gov’t Code § 12900 et seq. (“FEHA”).

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The FEHA provides that it is an unlawful employment practice “for an employer, because

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of the . . . [sex or age] . . . of any person, to . . . discriminate against the person in . . . terms,

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conditions, or privileges of employment.” Cal. Gov. Code, § 12940(a). Claims for gender and age

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discrimination under the FEHA are subject to the three-part burden-shifting analysis described in

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the United States Supreme Court’s decision in McDonnell Douglas Corporation v. Green, 411

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U.S. 792 (1973). See, e.g., Guz v. Bechtel National, Inc., 24 Cal. 4th 317, 354 (2000) (applying

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McDonnell Douglas burden shifting framework to age discrimination claim); University of

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Southern California v. Sup. Ct., 222 Cal. App. 3d 1028, 1035 (1990) (applying McDonnell

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Douglas burden shifting framework to sex discrimination claim).

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Under the McDonnell Douglas framework, “an employee challenging an adverse

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employment action has the initial burden of establishing a prima facie case of discrimination.”

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Curley v. City of N. Las Vegas, 772 F.3d 629, 632 (9th Cir. 2014). In order to establish a prima

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facie case of discrimination, Plaintiff must show that: (1) she is a member of a protected class; (2)

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she was qualified for her position and was performing her job satisfactorily; (3) she experienced

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an adverse employment action; and (4) similarly situated individuals outside of her protected class

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were “treated more favorably, or other circumstances surrounding the adverse employment action

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give rise to an inference of discrimination.” Hawn v. Executive Jet Mgmt., Inc., 615 F.3d 1151,

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1156 (9th Cir. 2010) (citing Peterson v. Hewlett–Packard Co., 358 F.3d 599, 603 (9th Cir. 2004).

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If a plaintiff establishes a prima facie case of discrimination, the burden “shifts to the

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employer to provide a legitimate, nondiscriminatory . . . reason for the adverse employment

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action. If the employer does so, then the burden shifts back to the employee to prove that the

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reason given by the employer was pretextual.” Curley, 772 F.3d at 632. If the employer has met its

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burden of providing a legitimate, nondiscriminatory reason for the adverse employment action and

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the employee has not raised a genuine material fact dispute as to whether the employer's reasons
were pretextual, the Court need not address whether the employee has met the employee’s burden

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to establish a prima facie case of discrimination. Id.

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At the outset, the Court notes that Plaintiff provides no argument in her opposition

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regarding her age discrimination claim, and the Court has located no evidence in the record

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supporting this claim. Plaintiff does not claim that Defendants were motivated by Plaintiff’s age,

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that similarly situated younger employees who were treated more favorably, or that Defendants’

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proffered reason was a pretext for age discrimination. Keenan, 91 F.3d at 1279 (“It is not our task,

17

or that of the district court, to scour the record in search of a genuine issue of triable fact. We rely

18

on the nonmoving party to identify with reasonable particularity the evidence that precludes

19

summary judgment.”) (citation omitted); see also Fed. R. Civ. P. 56(e) (“If a party . . . fails to

20

properly address another party’s assertion of fact . . . the court may . . . consider the fact

21

undisputed for purposes of the motion.”). Plaintiff has not raised a triable issue of fact regarding

22

Plaintiff’s age discrimination claim. Therefore, the Court GRANTS Defendants’ motion for

23

summary judgment on Plaintiff’s age discrimination claim.

24

As for Plaintiff’s gender discrimination claim, the Court assumes without deciding that

25

Plaintiff has met her burden of establishing a prima facie case. However, for the reasons discussed

26

below, the Court finds that Defendants have met their burden of providing a legitimate,

27

nondiscriminatory reason for terminating Plaintiff and that Plaintiff has not raised a genuine

28

12
Case No. 16-CV-02680-LHK
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT ON SELECTED CLAIMS

1

material fact dispute as to whether these reasons were a pretext for gender discrimination.
1. Defendants’ Proffered Legitimate, Nondiscriminatory Reason for Terminating
Plaintiff

2
3

Defendants’ stated reason for terminating Plaintiff is Plaintiff’s behavior on May 21, 2015,

4
when Plaintiff confronted a resident at Vi at Palo Alto, Mrs. Lawver. The incident was as follows.
5
As Plaintiff sat in her office, she heard a dog barking outside and left to investigate. Guthmann
6
7

Depo. 95:5–12. Once outside, Plaintiff witnessed Mrs. Lawver’s dog barking at another resident’s
dog. Id. at 96:4–7. Plaintiff took Mrs. Lawver’s dog’s leash, and Plaintiff and Mrs. Lawver

8
exchanged words about the incident. Id. at 97:6–24. Plaintiff then returned to her office. Id. at 97–
9
98. After remaining in her office for a few seconds, Plaintiff again left her office and encountered
10
Mrs. Lawver in the hallway. Plaintiff and Mrs. Lawver then engaged in a second verbal altercation
11
United States District Court
Northern District of California

in the hallway. Id. at 102:4–25.
12
The undisputed facts show that Defendants conducted an investigation of the incident in
13
which they reviewed the statements of Plaintiff, Christina Ninh, Blanca Ruiz, and Carmen
14

Galindo, each of whom witnessed the incident.2 Except for Plaintiff herself, each of these

15
witnesses portrayed Plaintiff as behaving in an unprofessional manner during the incident.
16
For example, Ninh’s statement contained the following facts. When Plaintiff confronted
17
18
19
20
21
22

Mrs. Lawver, Plaintiff repeatedly told Mrs. Lawver that “[y]ou need to leave.” Ex. I at 49. Plaintiff
also told Mrs. Lawver that “You can call an attorney [if] you want, I don’t care.” Id. After Plaintiff
momentarily went back to her office, Ninh “was very apologetic to Mrs. Lawver, and even hugged
her.” Id. Subsequently, during the second altercation in the hallway, Plaintiff “came back in a Uturn fashion in front of Mrs. Lawver’s face, and stood there upright with her hands folded. It was
provoking and unnecessary.” Id. Plaintiff then “dared [Dr. Lawver] to lay a hand on her.” Id.

23
24
25
26
27
28

2

It is unclear whether Defendants reviewed a written statement by Mrs. Lawver in connection
with the investigation. Mrs. Lawver’s written statement appears to be dated May 21, 2015. Ex. I to
Mot. However, this date may refer to the date on which the incident occurred. This is consistent
with Spiller’s statement that it took Mrs. Lawver “about ten days I think to get us a statement.” Ex.
D at 135:7–8. However, it is undisputed that Spiller spoke to Mrs. Lawver about the incident on or
around May 22, 2015, and that Mrs. Lawver told Spiller that she believed Plaintiff should be fired.
Ex. R to Opp.
13
Case No. 16-CV-02680-LHK
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT ON SELECTED CLAIMS

1

Plaintiff “completely lost it. [Plaintiff] was very unprofessional, undignified, provoking and

2

unacceptable.” Id.

3

Similarly, Ruiz stated that Plaintiff “rais[ed] her arm and pointed her finger at [Mrs.

4

Lawver] a couple of times” and then “walk[ed] away from the scene in a[n] upsetting way. Ex. I at

5

52.

6

Galindo stated that Plaintiff “shouted at [Mrs. Lawver]” and said that Mrs. Lawver “should

7

get out with her dog, right away, today.” Ex. I at 51. Galindo stated that in the hallway, Plaintiff

8

“continued to shout” at Mrs. Lawver. Id.

9

After the investigation, Defendants determined that Plaintiff’s action during the incident
violated Defendants’ written policy requiring all employees to be courteous to all residents of the

11
United States District Court
Northern District of California

10

community. See Ex. B (Employee Handbook) (“Employees are expected to be professional . . .

12

when . . . interacting with residents . . . .”); Ex. F (Communicating and Socializing with Residents

13

Policy) (stating that the rights of residents include the right “[t]o be accorded dignity in your

14

personal relationships with staff, residents, and other persons” and the right “[t]o be free from

15

corporal or unusual punishment, humiliation, intimidation, mental abuse or other actions of a

16

punitive nature . . . .”). Defendants terminated Plaintiff on May 28, 2015.

17

Although Plaintiff may disagree with the accounts of these three witnesses, there is no

18

genuine dispute that the weight of the evidence that Defendants reviewed in deciding to terminate

19

Plaintiff indicated that Plaintiff had behaved in an unprofessional manner. In other words, the

20

undisputed facts show that Defendants “entertained an honest belief” that Plaintiff acted

21

unprofessionally during the May 21, 2017 incident. King v. United Parcel Serv., Inc., 152 Cal.

22

App. 4th 426, 433, 60 Cal. Rptr. 3d 359, 366 (2007) (“For purposes of establishing the moving

23

employer’s initial burden of proof, it does not matter whether plaintiff actually did commit [a]

24

violation as long as [the employer] honestly believed he did.”). Therefore, the Court finds that

25

Defendants have met their burden of production to show a legitimate, nondiscriminatory reason

26

for Plaintiff’s termination.

27
28

2. Plaintiff’s Burden to Show Pretext
14
Case No. 16-CV-02680-LHK
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT ON SELECTED CLAIMS

1

Defendants have met their burden of production to show a legitimate, nondiscriminatory
reason for Plaintiff’s termination. Therefore, under the McDonnell-Douglas framework, the

3

burden shifts to Plaintiff to adduce evidence that Defendants’ justification for its decision to

4

terminate Plaintiff was merely a pretext for discrimination. See Hawn, 615 F.3d at 1155. A

5

Plaintiff may demonstrate pretext using either direct or circumstantial evidence. When the

6

evidence of discrimination is direct, a plaintiff needs to present “very little evidence to survive

7

summary judgment in a discrimination case.” EEOC v. Boeing Co., 577 F.3d 1044, 1049 (9th Cir.

8

2009) (quoting Lam v. Univ. of Hawaii, 40 F.3d 1551, 1564 (9th Cir. 1994)). “But when the

9

plaintiff relies on circumstantial evidence, that evidence must be specific and substantial to defeat

10

the employer's motion for summary judgment.” Boeing, 577 F.3d at 1049 (quoting Coghlan v. Am.

11
United States District Court
Northern District of California

2

Seafoods Co. LLC, 413 F.3d 1090, 1095 (9th Cir. 2005)). An employee “cannot simply show the

12

employer’s decision was wrong, mistaken or unwise” in order to establish pretext. Dep’t of Fair

13

Employment & Housing v. Lucent Techs., Inc., 642 F.3d 728, 746 (9th Cir. 2011) (internal

14

quotation marks and citation omitted). Instead, “the employee must demonstrate such weaknesses,

15

implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered

16

legitimate reasons for its action that a reasonable fact-finder could rationally find them unworthy

17

of credence.” Id. Additionally, the United States Supreme Court has held that in employment

18

discrimination cases, an employer is “entitled to judgment . . . if the plaintiff create[s] only a weak

19

issue of fact as to whether the employer’s reason was untrue and there [is] abundant and

20

uncontroverted independent evidence that no discrimination has occurred.” Reeves v. Sanderson

21

Plumbing Prods., 530 U.S. 133, 148 (2000).

22

In the instant case, Plaintiff's evidence of discrimination is circumstantial, and thus

23

Plaintiff must point to “specific and substantial” evidence of pretext to survive a motion for

24

summary judgment. Plaintiff claims that she has produced “specific and substantial” evidence of

25

pretexts for several reasons. First, Plaintiff claims that a similarly situated male employee was not

26

terminated and that Brudnick sometimes called women “sweetie,” “honey,” “angel,” and

27

“pumpkin.” Opp. at 14. Second, Plaintiff claims that “Defendants’ changing reasons for Plaintiff’s

28

15
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ORDER GRANTING MOTION FOR SUMMARY JUDGMENT ON SELECTED CLAIMS

1

termination” demonstrate pretext. Opp. at 15. Third, Plaintiff claims that Defendants conducted a

2

shoddy investigation that violated Defendants’ policies, and that these circumstances suggest

3

pretext. The Court addresses these arguments in turn. Opp. at 17–20.

4
5

a. Comparison to Lopez and Brudnick’s References to Women
Plaintiff claims that similarly situated male employees were not terminated for behavior

6

similar to Plaintiff’s. However, Plaintiff specifically identifies only one such employee, Luis

7

Lopez. Lopez was the Director of Dining Services, which is a supervisory position. Mot. at 5.

8

Plaintiff claims that on several occasions, Lopez “screamed at” and “demeaned” other employees

9

at Vi at Palo Alto. Mot. at 5–6. Additionally, Plaintiff claims that on two occasions, Lopez was
rude to residents. First, in 2014, a resident complained to Brudnick that Lopez had made rude

11
United States District Court
Northern District of California

10

comments to the resident, including “Nobody likes you,” and “I am not sitting you with anyone.”

12

Gerson Decl. ¶ 4a. Second, in 2017, Lopez instituted a change in policy dictating that no residents

13

could bring their pets “into the village store nor down the colonnade hallway to hand in their to-go

14

meal forms.” Ex. C. to Opp. 28:2–7. Mrs. Lawver complained about this policy change and stated

15

that Lopez “chased her.” Id. Mrs. Lawver “wanted him to get fired.” Id.

16

These facts suggest that in many respects, Lopez is situated quite differently than Plaintiff.

17

For example, Lopez was in a supervisory position, and Plaintiff was a lower-level employee.

18

“[E]mployees in supervisory positions are generally deemed not to be similarly situated to lower

19

level employees.” Vasquez v. Cty. of Los Angeles, 349 F.3d 634, 641 (9th Cir. 2003). Additionally,

20

most of the incidents in which Lopez allegedly yelled at others involved employees, not residents.

21

Furthermore, although the 2014 incident between Lopez and a resident is somewhat similar

22

to the incident between Plaintiff and Mrs. Lawver, the 2017 incident between Lopez and Mrs.

23

Lawver is significantly different from the incident between Plaintiff and Mrs. Lawver. Mrs.

24

Lawver’s primary objection to Lopez was based on a policy change restricting the area in which

25

pets were allowed rather than any lack of professionalism on Lopez’s part. See Ex. C to Opp.

26

28:14–17 (“She just complained, you know, about Luis, that she had been living here – ever since

27

she lived here she was able to bring her dog into both those areas. She didn’t know why it

28

16
Case No. 16-CV-02680-LHK
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT ON SELECTED CLAIMS

1

changed. She wanted to get him fired, that he chased her.”). Additionally, the witness statements

2

regarding the incident between Lopez and Mrs. Lawver state that Lopez simply “told [Mrs.

3

Lawver] that she cannot bring her dog into the dining areas because it violates health code” and

4

that Mrs. Lawver threw a piece of paper at Lopez, yelled at Lopez, threatened to hit and stab

5

Lopez’s testicles, yelled at Lopez for not being able to speak English, and called Lopez a

6

“Mexican Rattlesnake.” Ex. K to Opp. In contrast, according to the witness accounts, Mrs. Lawver

7

was more “composed” than Plaintiff during the May 21, 2017 incident between Plaintiff and Mrs.

8

Lawver. See, e.g., Ex. M. to Opp. (“As crazy as we think Mrs. Lawver may be, she was very

9

composed.”).

10

Lopez and Plaintiff are not similarly situated. Thus, lesser discipline for Lopez does not

United States District Court
Northern District of California

11

suggest that Defendants’ legitimate, nondiscriminatory reasons are a pretext for gender

12

discrimination. Meyer v. California & Hawaiian Sugar Co., 662 F.2d 637, 640 (9th Cir. 1981)

13

(holding that a particular comparison was “not such [a] parallel[] to [Plaintiff’s] case as to raise a

14

genuine issue of pretext”); see also Sun v. Asian Am. Recovery Servs., 1991 U.S. Dist. LEXIS

15

18073, *12 (N.D. Cal. Dec. 9, 1991) (“Regarding the showing that other employees committed

16

similar violations of workplace rules, courts generally require that the situations of the other

17

employees be very analogous to that of the plaintiff.”).

18

The Court assumes, without deciding, that Plaintiff’s comparison to Lopez is sufficient to

19

establish a prima facie case of discrimination. However, “a plaintiff’s burden is much less at the

20

prima facie stage than at the pretext stage.” Hawn, 615 F.3d at 1158. Plaintiff has cited no caselaw

21

establishing that pretext can be inferred from the fact that a single male employee in a supervisory

22

capacity was treated somewhat differently from a lower-level female employee.

23

Additionally, the Ninth Circuit has held that employees with different supervisors are not

24

similarly situated. Hargrow v. Fed. Express Corp., 2009 WL 226039, at *1 (9th Cir. Jan. 30,

25

2009) (“[T]he employees who allegedly received more favorable treatment than Hargrow were not

26

similarly situated to Hargrow. They were subject to different supervisors.”). In the instant case,

27

Plaintiff’s direct supervisor was Wilson, and the investigation leading up to Plaintiff’s termination

28

17
Case No. 16-CV-02680-LHK
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT ON SELECTED CLAIMS

1

was conducted primarily by Okumura. There is no evidence that Wilson was Lopez’s direct

2

supervisor or that Okumura or Wilson made any decision regarding the incidents between Lopez

3

and residents at Vi at Palo Alto. Thus, Plaintiff’s comparison to Lopez is not “specific and

4

substantial” evidence suggesting that Defendants’ stated reason for terminating Plaintiff is

5

pretextual.

6

The Court next considers Brudnick’s references to women. According to Okumura, the

7

Human Resources Director, the group who held a phone call and decided that Plaintiff should be

8

terminated consisted of four women. See Ex. B at 47:7–8 (listing Okumura herself and three

9

corporate employees: Danielle Kerry, Diane Schreiber, and Stephanie Fields). Plaintiff does not
claim that any of these four women harbored any prejudice against Plaintiff on the basis of

11
United States District Court
Northern District of California

10

Plaintiff’s gender. Although Brudnick was the Executive Director of Vi at Palo Alto and therefore

12

shared ultimate responsibility with Okumura for signing off on the decision to terminate Plaintiff,

13

Brudnick did not participate in the phone call in which “the situation was reviewed and the

14

decision was made.” Id. Thus, the fact that Brudnick sometimes referred to women as “sweetie,”

15

“honey,” “angel,” or “pumpkin” does not constitute “specific and substantial” evidence to rebut

16

Defendants’ legitimate, nondiscriminatory reason for terminating Plaintiff. Ex. C to Opp. at 53:9–

17

25. Additionally, there is no evidence that Brudnick ever referred to Plaintiff using these terms.

18

Indeed, Plaintiff admitted in her deposition that no Vi employees ever made any comments about

19

her gender. Pl. Depo. 130:16–20; 1362–4. Thus, Brudnick’s references to women other than

20

Plaintiff are not “specific and substantial” evidence suggesting that Defendants’ stated reason for

21

terminating Plaintiff is pretextual.

22
23

b. Defendants’ “Changing Reasons” for Plaintiff’s Termination
Next, the Court addresses Plaintiff’s claims regarding “Defendants’ changing reasons for

24

Plaintiff’s termination.” Opp. at 15. Plaintiff claims that on May 28, 2015, Okumura informed

25

Plaintiff that because of the incident involving Mrs. Lawver, “an Ombudsm[a]n had been

26

contacted and . . . an investigation had been conducted and . . . the Ombudsm[a]n agreed that there

27

was ‘elder abuse.’” Guthmann Decl. ¶ 31. Plaintiff then claims that in June 2015, Plaintiff

28

18
Case No. 16-CV-02680-LHK
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT ON SELECTED CLAIMS

1

received documents from the Employment Development Department (“EDD”) which stated that

2

the reason for Plaintiff’s discharge was “violation of company policy. [Plaintiff] blocked a

3

resident[‘]s pathway on 05/21/15 and provoked the elderly resident to hit her during a verbal

4

altercation with the resident and failed to report the incident.” Guthmann Decl, Ex. L.3 On

5

December 5, 2016, in response to Plaintiff’s Special Interrogatory, Defendants claimed that

6

“Plaintiff’s employment was terminated because she became embroiled in an altercation with two

7

residents and their dogs, during which she behaved in an inappropriate, threatening manner toward

8

one of the residents (in violation of Vi’s policies and procedures).” Ex. Y to Mot. Finally, on May

9

25, 2017, Defendants’ Federal Rule of Civil Procedure 30(b)(6) witness testified that Plaintiff was
terminated for “improper conduct with a resident” and did not mention company policy. Kerry

11
United States District Court
Northern District of California

10

Depo. 14:13–20. Plaintiff claims that these “changing reasons” suggest that Defendants’ claimed

12

reason was pretextual.
However, these explanations of why Plaintiff was fired are not materially different.

13
14

Although these explanations emphasized different aspects of the May 21, 2015 incident and

15

provided varying levels of detail about the incident, Defendants have consistently maintained that

16

Plaintiff was terminated because of her behavior during the May 21, 2015 incident.
Plaintiff also points to differences in Defendants’ account of who made the decision to

17
18

terminate her. First, in response to a Special Interrogatory, on December 6, 2016, Defendants

19

identified Michael Wilson, Steve Brudnick, Shari Okumura, Danielle Kerry, Diane Schreiber, and

20

Stephanie Fields. Ex. Y. On December 7, 2016, during Okumura’s deposition testimony, Okumura

21

stated that “[t]o my recollection,” Okumura, Kerry, Schreiber, and General Counsel Stephanie

22

Fields were on the phone call in which the decision was made to terminate Plaintiff. Ex. B at

23

47:11–12. Finally, Defendants’ Rule 30(b)(6) witness testified that Brudnick, the Executive

24

Director of Vi at Palo Alto, was the individual “responsible for making the final decision to

25
26
27
28

3

Plaintiff asserts that she did in fact report the incident, and Plaintiff’s May 21, 2017 email to
Lopez suggests that Plaintiff is correct. Thus, the EDD form’s statement that Plaintiff failed to
report the incident appears to be incorrect. The record does not identify the source of the
information in the EDD form or the preparer of the EDD form. Guthmann Decl. Ex. L.
19
Case No. 16-CV-02680-LHK
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT ON SELECTED CLAIMS

1

terminate” Plaintiff. Ex. I at 14:14–20; see Ex. BB to Opp. (“No separation may occur without

2

prior knowledge of Human Resources and the Executive Director.”).

3

Here again, there is no material inconsistency between the different explanations of who

4

made the decision to terminate Plaintiff. Most of the discrepancies can be resolved by considering

5

the difference in the questions to which Defendants were responding at the time. For example, in

6

Okumura’s deposition testimony, Okumura was asked about who participated in a specific phone

7

call. Ex. B to Opp. (“Who was part of that call?”). In contrast, the Special Interrogatory to which

8

Defendants responded on December 5, 2016 asked Defendants to “identify each PERSON(S) who

9

contributed to YOUR decisions to terminate PLAINTIFF’S employment with the Vi.” Ex. Y
(emphasis added). Finally, immediately after the Rule 30(b)(6) witness identified Brudnick as “the

11
United States District Court
Northern District of California

10

person . . . responsible for making the final decision to terminate Stacy Guthmann,” the following

12

discussion occurred:

14

MS. LEYTON-JONES: I’m going to object on the ground that the question is
vague to the extent it says the final decision. Are you asking was there anybody
else involved in the decision-making process?

15

MR. MCMAHON: I’ll get to that.

13

16

Ex. I at 14:21–25. Thus, it is clear that the question to the 30(b)(6) witness, unlike the Special

17

Interrogatory, was not meant to elicit an identification of everyone who contributed to the

18

decision.

19

In short, the evidence shows only that different witnesses responded to different questions

20

by identifying different people who were involved in different aspects of the decision-making

21

process. There is no significant inconsistency between these explanations. Even if there are some

22

minor discrepancies, these discrepancies in no way suggest that the offered explanation for

23

Plaintiff’s termination was pretext for gender discrimination. Thus, the Court finds that

24

Defendants’ alleged “changing reasons” for terminating Plaintiff are not “specific and substantial”

25

reasons indicating pretext.

26
27
28

c. Defendants’ Alleged “Shoddy Investigation”
Finally, Plaintiff claims that pretext can be inferred from Defendants’ “shoddy
20
Case No. 16-CV-02680-LHK
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT ON SELECTED CLAIMS

1

investigation.” Opp. at 17. Plaintiff claims that the investigation was “shoddy” for various

2

reasons, including that three potential witnesses were not interviewed, that Okumura did not give

3

important information to corporate employees who participated in the decision to terminate

4

Plaintiff, and that Defendants’ claims regarding a complaint with the Ombudsman are not

5

credible. Plaintiff also claims that according to Defendants’ policy, Plaintiff’s supervisor should

6

have participated more in the investigation and Defendants should have used more formalized

7

processes such as interviews and witness statements.

8

Many of Plaintiff’s claims are not indicative of a poor investigation. For example, Plaintiff
claims that she was not interviewed during the investigation. However, while there may not have

10

been a formal interview, Plaintiff provided a statement regarding the incident and Plaintiff spoke

11
United States District Court
Northern District of California

9

to Okumura on May 22, 2015 about the incident.

12

Additionally, Plaintiff claims that Enrico Galvez, Ms. Soltau, and Ms. Macovski should

13

have given witness statements. However, in his deposition testimony, Galvez stated that he did

14

not witness the incident but was instead at the Sales Desk “on a phone call with a client the whole

15

time . . . covering [his] ear” and that he only heard “dogs barking” outside the building. Ex. G to

16

Opp. at 26:4–7. Moreover, Spiller, who was Director of Residents for Vi at Palo Alto, did in fact

17

speak to Mrs. Soltau and reported to Brudnick and Okumura that “Mrs. Soltau did not witness the

18

resident/staff interaction, only the initial dog to dog interaction.” Ex. Q to Mot. Indeed, Plaintiff’s

19

own declaration states that Ms. Soltau “began walking away from the area with her dog” almost

20

immediately after Plaintiff intervened in the incident with Mrs. Lawver. Guthmann Decl. ¶ 23.

21

Plaintiff also stated that Ms. Macovski was “nearby” but “too far to intervene to help the

22

situation.” Id. Additionally, even if Galvez or Ms. Macovski were potential witnesses, there is no

23

evidence that Defendants were aware of this at the time of the investigation.

24

Plaintiff’s complaints about Okumura’s failure to inform “corporate” about Ms. Lawver’s

25

past actions, Plaintiff’s history with Spiller, or Ninh’s reputation as a “drama queen” also do not

26

indicate a poor investigation. Opp. at 17–18. The investigation was focused on Plaintiff’s behavior

27

during the May 21, 2015 incident, and thus the details of all of Plaintiff’s workplace relationships

28

21
Case No. 16-CV-02680-LHK
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT ON SELECTED CLAIMS

1

were not directly relevant to the investigation. Even if the investigation may have been more

2

complete with this information, the fact that Okumura did not specifically inform “corporate”

3

about these issues does not suggest an investigation so shoddy that it indicates that Defendants’

4

stated reason for termination was pretext for discrimination.

5

Plaintiff also claims that “Okumura did not provide the statement of Joy Flores, which

6

supports Plaintiff’s version of events, to corporate.” Opp. at 18. However, Flores did not support

7

Plaintiff’s version of events. Instead, on May 21, 2015, Flores emailed Spiller and stated the

8

following:

9
10

United States District Court
Northern District of California

11
12
13
14

There was a little commotion with Mrs. L & Mrs. S dogs. Stacy came out, Mrs. L
was very upset with Stacy.
Ex. D to Opp. Subsequently, on May 22, 2015, Flores emailed Okumura and stated the following:
I was at the front desk and heard the commotion going on from the hallway by the
bar and peek, I heard Stacy stating “you need to get out of here,” don’t know who
she meant or what. I just saw Mrs. Lawver very upset and shaking. A resident
came to me after, Mr. Gurley and her [sic] caregiver who saw and heard
everything, he told me that the sales lady was very rude and unprofessional [and]
that she needs to be reported to Steve.

15

Ex. P to Opp. Thus, Flores’s version of events does not “support[] Plaintiff’s version,” and

16

Okumura’s failure to provide this statement to corporate does not indicate an investigation so

17

shoddy that it suggests that Defendants’ proffered reasons for termination were pretextual.

18

Furthermore, Plaintiff’s claim that Defendants violated their own policies in investigating

19

the May 21, 2015 incident is not persuasive. Plaintiff claims that the investigation violated

20

Defendants’ policies because “Plaintiff’s Supervisor, Mr. Wilson, did not participate in the

21

investigation . . . .” Opp. at 20. Plaintiff points to several provisions in the Human Resources

22

Procedures Manual that discuss the duty of supervisors to document and report misconduct.

23

However, none of the provisions to which Plaintiff points indicate that the Director of Human

24

Resources cannot directly investigate misconduct. See, e.g., Ex. BB to Opp. (“Under certain

25

circumstances immediate discharge may be the proper form of discipline. For instance, an

26

employee commits an offense for which immediate discharge is deemed as the penalty or in the

27

supervisor’s judgment, in partnership with the HR department . . . .”). On the contrary, the

28

22
Case No. 16-CV-02680-LHK
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT ON SELECTED CLAIMS

1

provisions of the Manual are meant to ensure that supervisors do not take certain actions without

2

consulting the Director of Human Resources, who must “review and approve every discharge.” Id.

3

Thus, Plaintiff has pointed to no policy that was violated by the fact that Okumura, the Human

4

Resources Director, directly investigated the incident.

5

Similarly, Plaintiff states that “[t]he HR Manual also makes repeated references to a

6

‘Workplace Conduct Investigation Process’ (‘WCIP’), which Defendants did not follow either.”

7

Opp. at 20. The only way in which Plaintiff claims that the investigation of the May 21, 2015

8

incident departed from the WCIP is that “Okumura did not conduct any interviews.” Opp. at 20.

9

However, Okumura spoke with Plaintiff on May 22, 2015. Additionally, Plaintiff cites no
evidence for her claim that Okumura did not conduct any interviews, and it is undisputed that

11
United States District Court
Northern District of California

10

Okumura at least reviewed witnesses’ written accounts of the incident. Furthermore, Spiller, who

12

was Director of Residents for Vi at Palo Alto, spoke with Mrs. Lawver on May 22, 2015. ECF No.

13

41-2; see also Ex. CC to Opp. (“If resident issue, the assigned Community Leader conducts

14

resident interviews and gathers data/information.”). In short, Plaintiff has not identified deviations

15

from company policy that suggest that Defendants’ proffered reasons for termination were a

16

pretext for discrimination.

17

Plaintiff also argues that Defendants’ proffered explanation is pretextual because the Santa

18

Clara County Ombudsman could not locate any records regarding Plaintiff. Ex. V to Opp.

19

Defendants have produced fax cover sheets indicating that on May 26, 2015, Spiller sent the

20

complaint at issue to the Santa Clara County Ombudsman. Ex. J to Mot. Plaintiff states that she is

21

awaiting review of electronic records of the faxes at issue, but “[i]n the meantime, Plaintiff objects

22

to the authenticity of” Defendants’ evidence. Opp. at 18 n.13. The Court doubts whether this is

23

sufficient to create a genuine dispute about the authenticity of Defendants’ documents. The fact

24

that the Ombudsman could not locate records regarding Plaintiff on January 3, 2017 does not

25

support an inference that Defendants fabricated a document showing that Spiller sent a fax to the

26

Ombudsman on May 26, 2015. Additionally, it is not clear how this issue is material to the

27

question of whether Defendants’ proffered reason for terminating Plaintiff was pretextual.

28

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Case No. 16-CV-02680-LHK
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1

Although Plaintiff claims that these circumstances show that “Defendants did not actually want an

2

investigation by the Ombudsm[a]n or [Adult Protective Services] because it would exonerate

3

Plaintiff,” this claim is belied by the fact that even Plaintiff does not dispute that Spiller called

4

Santa Clara County Adult Protective Services to report the incident. See Ex. W to Opp. Plaintiff

5

provides no other explanation for why this dispute would indicate that Defendants’ claim that

6

Plaintiff was fired because of the incident involving Mrs. Lawver was pretextual. In short, even if

7

there is some dispute about the complaint to the Ombudsman, this dispute is not material because

8

it does not provide “specific and substantial” evidence to rebut Defendants’ proffered explanation

9

for terminating Plaintiff.

10

Additionally, even if Defendants’ investigation was flawed in some way, “merely pointing

United States District Court
Northern District of California

11

to an employer’s shoddy investigatory efforts is [not] sufficient to establish pretext. Erroneous

12

(but believed) reasons for terminating an employee are not tantamount to pretextual reasons.”

13

Humphries v. CBOCS W., Inc., 474 F.3d 387, 407 (7th Cir. 2007), aff’d, 553 U.S. 442 (2008).

14

There is no requirement that an employer’s investigation be entirely free of error. King, 152 Cal.

15

App. 4th at 439 (holding that the defendant “conducted an adequate investigation as a matter of

16

law” even though there were “flaws in the investigation”). Instead, an investigation must be

17

flawed in a way that it suggests that the defendant’s proffered explanation is pretextual, which

18

generally requires that the investigation is “not just flawed but inexplicably unfair.” Mastro v.

19

Potomac Elec. Power Co., 447 F.3d 843, 855 (D.C. Cir. 2006). Any flaws in Defendants’

20

investigation in the instant case were not “inexplicably unfair” and do not suggest that Defendants’

21

proffered reasons for terminating Plaintiff were pretext for discrimination.

22

In short, Plaintiff has provided no “specific and substantial” reason to believe that

23

Defendants’ proffered explanation for Plaintiff’s termination was pretextual. Essentially, Plaintiff

24

has pointed to one male employee who was not similarly situated in most respects, immaterial

25

differences among Defendants’ explanations of who decided to fire Plaintiff and why she was

26

fired, and some minor flaws in the investigation leading up to Plaintiff’s termination. The United

27

States Supreme Court has held that an employer is “entitled to judgment . . . if the plaintiff created

28

24
Case No. 16-CV-02680-LHK
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT ON SELECTED CLAIMS

1

only a weak issue of fact as to whether the employer's reason was untrue and there was abundant

2

and uncontroverted independent evidence that no discrimination had occurred.” Reeves v.

3

Sanderson Plumbing Prod., Inc., 530 U.S. 133, 148 (2000). The evidence in the instant case

4

provides abundant support for Defendants’ proffered explanation, and Plaintiff has failed to offer

5

“specific and substantial” evidence to rebut that explanation. Villiarimo v. Aloha Island Air, Inc.,

6

281 F.3d 1054, 1062 (9th Cir. 2002).
For these reasons, the Court finds that Defendants have met their burden of production by

8

offering a legitimate, nondiscriminatory reason justifying Plaintiff’s termination and that Plaintiff

9

has failed to meet her burden to demonstrate a triable issue of fact regarding whether this reason

10

was a pretext for discrimination. Therefore, the Court GRANTS Defendants’ motion to dismiss

11
United States District Court
Northern District of California

7

Plaintiff’s cause of action for gender discrimination.

12

C. Retaliation

13

Next, the Court addresses Plaintiff’s claim for retaliation, which is asserted under

14

California Labor Code § 98.6 and under the California Fair Employment and Housing Act, Cal.

15

Gov’t Code § 12900 et seq. (“FEHA”).

16

In evaluating retaliation claims, Courts apply the same burden-shifting framework that is

17

used for discrimination claims. Specifically, the burden-shifting framework is as follows:

18

First, the plaintiff must establish a prima facie case of retaliation. If the plaintiff is
successful, the burden shifts to the defendant to respond with a legitimate,
nondiscriminatory reason for its actions. The burden then shifts back to the
plaintiff to establish that the reason for the adverse action was a pretext or coverup for the unlawful retaliation. To establish a prima facie case of retaliation, a
plaintiff must show (1) that he engaged in a protected activity, (2) that his
employer subjected him to adverse employment action, and (3) that there is a
causal link between the two.

19
20
21
22
23

Hollie v. Concentra Health Servs., 2012 WL 993522, at *4 (N.D. Cal. Mar. 23, 2012) (citations

24

omitted). This burden-shifting framework applies to claims under both California Labor Code

25

§ 98.6 and the FEHA. See id. (applying this framework to California Labor Code § 98.6);

26

Yanowitz v. L’Oreal USA, Inc., 36 Cal. 4th 1028, 1042, 116 P.3d 1123, 1130 (2005) (applying this

27

framework to California Labor Code § 98.6). Thus, the Court applies the same analysis to both

28

25
Case No. 16-CV-02680-LHK
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT ON SELECTED CLAIMS

1

claims. See Yoshimoto v. O’Reilly Auto., Inc., 2013 WL 6446249, at *24 (N.D. Cal. Dec. 9, 2013)

2

(“The court finds that this claim [for retaliation under Labor Code § 98.6] is substantively the

3

same as plaintiff's Title VII and FEHA retaliation claims . . . .”).

4

Under Labor Code § 98.6, as relevant here, an employer may not retaliate against any

5

employee because the employee “made a written or oral complaint that he or she is owed unpaid

6

wages, or because the employee has initiated any action or notice pursuant to Section 2699, or has

7

testified or is about to testify in a proceeding pursuant to that section.” Plaintiff argues that she

8

engaged in protected activity because “a class action lawsuit alleging various wage and hour

9

violations . . . was filed on August 20, 2014. Accordingly, Plaintiff had made a written or oral
complaint and had initiated an action pursuant to [Labor Code §] 2699 because she was part of the

11
United States District Court
Northern District of California

10

class covered by the lawsuit.” Opp. at 21.

12

The lawsuit to which Plaintiff refers was filed in San Diego County Superior Court by

13

Shiela Victoriano against Classic Residence Management LP D/B/A Vi at La Jolla (“La Jolla

14

lawsuit”). See ECF No. 58 at 4. Based on the court documents, of which the Court has taken

15

judicial notice, see supra Part II.A, it is not clear whether Plaintiff was included in the class

16

definition in the La Jolla lawsuit. The original complaint in the La Jolla lawsuit discussed several

17

proposed classes, each of which was limited to “employees of Defendant.” Id. at 8. Because the

18

only defendant in the lawsuit was Vi at La Jolla, this class definition appears to exclude Plaintiff.

19

However, in the order granting final approval of the class action settlement, the court certified the

20

following class: “All hourly non-exempt employees who are or were employed at least one day by

21

Vi in California at any time during the Class Period August 20, 2010 to October 31, 2015 working

22

in a ‘Covered Position,’ as defined in the Settlement Agreement.” Id. at 34. This class definition

23

appears to be broader than the class definition in the complaint. However, even if this class

24

definition covers all employees at all Vi locations in California, Plaintiff has produced no evidence

25

that she falls within a “Covered Position” for the purposes of the lawsuit, nor has Plaintiff

26

produced the Settlement Agreement so that the Court can make this determination. Thus, based on

27

the court documents in the La Jolla lawsuit, it is unclear whether Plaintiff was ever included in the

28

26
Case No. 16-CV-02680-LHK
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT ON SELECTED CLAIMS

1
2

class definition.
Additionally, in the La Jolla lawsuit, a class was provisionally certified on February 19,

3

2016 and finally certified on May 31, 2016. Id. at 32–33. Thus, at the time of the events at issue in

4

the instant case in May 2015, Plaintiff was at most a putative class member in the La Jolla lawsuit.

5

Indeed, in order to avoid releasing the claims at issue in the instant case, Plaintiff excluded herself

6

from the class in the La Jolla lawsuit before the class was finally certified. See id. at 42 (listing

7

Stacy Guthmann as the sole opt-out from the class). Thus, even if Plaintiff fell within the class

8

definition, Plaintiff was never actually a class member. Instead, Plaintiff was at most a putative

9

class member who later excluded herself from the class.

10

Furthermore, even if Plaintiff was a putative class member in the La Jolla lawsuit at the

United States District Court
Northern District of California

11

time of the events at issue in the instant case, the Court finds that this does not qualify as protected

12

activity for the purposes of Plaintiff’s retaliation claim. Plaintiff argues that her putative class

13

membership was protected activity because it constituted both a “written or oral complaint” and

14

the initiation of an action under Labor Code § 2699, both of which are listed protected activities

15

under Labor Code § 98.6. Specifically, § 98.6 forbids retaliation against any employee because the

16

employee “made a written or oral complaint that he or she is owed unpaid wages, or because the

17

employee has initiated any action or notice pursuant to Section 2699, or has testified or is about to

18

testify in a proceeding pursuant to that section . . . .” California Labor Code § 98.6. Section 2699,

19

in turn, describes civil actions that “aggrieved employees” may initiate to enforce “any provision

20

of this code that provides for a civil penalty to be assessed and collected by the Labor and

21

Workforce Development Agency . . . .” California Labor Code § 2699(a).

22

However, the mere fact that Plaintiff may have been a putative class member does not

23

establish that Plaintiff “made” a complaint or “initiated” an action under Labor Code § 98.6.

24

Indeed, it appears that the only active step that Plaintiff took regarding the La Jolla lawsuit was to

25

exclude herself from the suit after the class was provisionally certified. Although Plaintiff suggests

26

that Defendants were afraid that Plaintiff might testify in the La Jolla lawsuit, Opp. at 22, Plaintiff

27

provides no evidence that there was a possibility that she might testify in the La Jolla lawsuit, let

28

27
Case No. 16-CV-02680-LHK
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT ON SELECTED CLAIMS

alone that she was “about to testify . . . .” California Labor Code § 98.6. To the contrary, in

2

Plaintiff’s deposition in the instant case, Plaintiff stated that when she was interviewed by an

3

investigator after the lawsuit was filed, Plaintiff did not mention any wage and hour complaints

4

and specifically said that she “did not have a problem with not receiving . . . breaks.” Guthmann

5

Depo. at 148:1–2. Thus, Plaintiff’s claim that her termination was “a preemptive strike to prevent

6

her testimony” has no evidentiary support. Opp. at 27. Instead of indicating a desire to testify on

7

behalf of the plaintiffs in the class-action lawsuit, Plaintiff informed the investigator that she had

8

no complaints about not receiving breaks. Plaintiff also offers no legal argument and cites no cases

9

in support of the proposition that being a putative class member constitutes protected activity,

10

despite the fact that it is Plaintiff’s burden to establish that she engaged in protected activity.

11
United States District Court
Northern District of California

1

Heard v. Lockheed Missiles & Space Co., 44 Cal. App. 4th 1735, 1749 (1996) (“[I]t is the

12

plaintiff's burden to prove by a preponderance of the evidence a prima facie case of discrimination

13

[or retaliation].”).

14

Furthermore, both the phrase “made a written or oral complaint” and “initiated any action

15

or complaint” describe active conduct on the part of the employee. In contrast, falling within a

16

class definition in a putative class action is purely passive and requires no active participation. See

17

Cullen v. Margiotta, 811 F.2d 698, 719 (2d Cir. 1987) (“[A]bsent putative class members are

18

expected and encouraged to remain passive during the early stages of the class action . . . . Not

19

until a class is certified does a class member have any duty to take note of the suit or to exercise

20

any responsibility with respect to it . . . .”) (internal quotation marks omitted).

21

Plaintiff also claims that Plaintiff’s “long history of complaining about wage and hour

22

issues” was somehow connected to her termination. Opp. at 21. However, Plaintiff does not

23

provide any argument as to how these complaints constituted protected activity. See Weingand v.

24

Harland Fin. Sols., Inc., 2012 WL 3537035, at *7 (N.D. Cal. Aug. 14, 2012) (“Plaintiff makes no

25

argument as to why or under what provision his complaints to his superiors constitute a protected

26

activity under the provisions of § 98.6 . . . .”). Indeed, Plaintiff appears to concede that these

27

complaints were not protected activity. Specifically, after mentioning both her wage and hour

28

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Case No. 16-CV-02680-LHK
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT ON SELECTED CLAIMS

1

complaints and her membership in the putative class action as “two instances of Defendants’

2

retaliatory animus,” Plaintiff describes her membership in the class action as “the one [instance]

3

that is actionable under Labor Code Section 98.6.” Opp. at 22.4
Furthermore, even if Plaintiff’s complaints qualified as protected activity under § 98.6, the

4
5

most recent specific complaints to which Plaintiff has pointed occurred in or around June 2014.5

6

Plaintiff’s termination occurred on May 28, 2015. The Ninth Circuit has held that “in order to

7

support an inference of retaliatory motive, [a] termination must have occurred fairly soon after the

8

employee’s protected expression.” Villiarimo, 281 F.3d at 1065. Thus, the timing of Plaintiff’s

9

complaints does not establish a “causal link” sufficient for even a prima facie case of retaliation.
See id. (citing with approval cases holding that a four month gap, an eight month gap, a five month

11
United States District Court
Northern District of California

10

gap, and a four month gap between protected activity and termination is insufficient to establish

12

causation).6
Additionally, even if Plaintiff could establish a prima facie case, summary judgment would

13
14

still be warranted. As discussed above, Defendants have met their burden of production to offer a

15

legitimate, nondiscriminatory reason for Plaintiff’s discharge, and Plaintiff has failed to point to

16

“specific and substantial” evidence to demonstrate that Defendants’ proffered reason is pretextual.

17

Villiarimo, 281 F.3d at 1062. Thus, Plaintiff has not rebutted Defendants’ legitimate, non-

18
19
20
21
22
23
24
25
26
27
28

4

As discussed above, under § 98.6 protected activity includes “written or oral complaint[s] that . .
. [an employee] is owed unpaid wages.” Labor Code § 98.6(b). However, Plaintiff does not claim
that her wage and hour complaints fall under this category, and Plaintiff points to no evidence that
in her “long history” of complaints, Plaintiff ever claimed that she was “owed unpaid wages.” To
the contrary, Plaintiff’s complaints focused on her desire to be reclassified as an exempt employee
in the future rather than a desire to be paid wages for work performed in the past.
5
Plaintiff has also claimed more generally that she complained about these issues “during my
entire tenure . . . .” Opp. at 2. However, Plaintiff does not argue for causation based on this fact.
Moreover, even if Plaintiff did make such an argument, this vague claim is not sufficiently
specific to raise an inference that Plaintiff’s termination occurred in close temporal proximity to
these complaints.
6
Plaintiff mentions that Plaintiff’s August 2014 performance review occurred in close temporal
proximity to her complaints. However, Plaintiff does not claim that this performance review was
an adverse employment action. Indeed, the August 2014 performance review was positive and
described Plaintiff as a “consistent performer.” Ex. A to Mot. The performance review specifically
noted that although Plaintiff had complaints “regarding exempt/non-exempt status,” these issues
had “not had a negative effect on her work performance or morale.” Id.
29
Case No. 16-CV-02680-LHK
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT ON SELECTED CLAIMS

1
2
3
4
5

discriminatory reason for termination.
For these reasons, the Court GRANTS Defendants’ motion for summary judgment on
Plaintiff’s retaliation claim.
D. Wrongful Termination in Violation of Public Policy
The Court next considers Plaintiff’s claim for wrongful termination in violation of public

6

policy. Wrongful termination in violation of public policy is a California common law cause of

7

action providing that “when an employer’s discharge of an employee violates fundamental

8

principles of public policy, the discharged employee may maintain a tort action and recover

9

damages traditionally available in such actions.” Tameny v. Atl. Richfield Co., 27 Cal.3d 167

10

United States District Court
Northern District of California

11

(1980); see also Freund v. Nycomed Amersham, 347 F.3d 752, 758 (9th Cir. 2003).
Plaintiff’s claim for wrongful termination is mostly derivative of Plaintiff’s claim for

12

gender discrimination and retaliation. See Hoskins v. BP Prod. N. Am. Inc., 2014 WL 116280, at

13

*7 (C.D. Cal. Jan. 9, 2014) (citing Reno v. Baird, 18 Cal. 4th 640, 664 (1998) (“[I]f a plaintiff

14

cannot sue the defendant for discrimination or retaliation under FEHA, the plaintiff cannot sue the

15

defendant for wrongful termination in violation of FEHA or public policy.”); Guyton v. Novo

16

Nordisk, Inc., 151 F. Supp. 3d 1057, 1091 (C.D. Cal. 2015) (“[B]ecause [the plaintiff’s] retaliation

17

claim fails as a matter of law, he cannot establish that he was wrongfully discharged because he

18

exercised a statutory right or reported a statutory violation for the public's benefit.”) (internal

19

quotation marks omitted). Therefore, for the same reasons discussed above, the Court finds that

20

summary judgment is warranted on Plaintiff’s derivative claim for wrongful termination.

21

To the extent that Plaintiff asserts that her wrongful termination claim is not simply

22

derivative of her discrimination and retaliation claims, the Court also finds that summary

23

judgment is warranted. First, Plaintiff appears to claim that her termination was in violation of the

24

public policy in Labor Code § 1102.5(b) protecting whistleblowers. Under § 1102.5(b), an

25

employer is forbidden from retaliating against an employee for “disclosing information . . . to a

26

person with authority over the employee or another employee who has the authority to investigate,

27

discover, or correct the violation . . . if the employee has reasonable cause to believe that the

28

30
Case No. 16-CV-02680-LHK
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT ON SELECTED CLAIMS

1

information discloses a violation of state or federal statute . . . .”
However, under California law “disclosure” within the meaning of § 1102.5(b) “means to

2
3

reveal something that was hidden and not known.” Mize-Kurzman v. Marin Cmty. Coll. Dist., 202

4

Cal. App. 4th 832, 858 (2012) (“We agree with . . . federal cases that have held that the report of

5

information that was already known did not constitute a protected disclosure.”). Plaintiff never

6

claims that she “disclosed” unlawful practices to those who did not know about them. To the

7

contrary, in her complaints Plaintiff expressed her disagreement with wage and hour policies to

8

Wilson, Okumura, and Brudnick, who clearly knew about the policies at issue. See id. at 866

9

(finding no violation because “Plaintiff was not disclosing any previously unknown or hidden
conduct, practice or policy, but only her view that the known policy was not lawful.”).

11
United States District Court
Northern District of California

10

Additionally, there is no indication that Plaintiff ever told any of her supervisors that she believed

12

this conduct was unlawful before her termination. See Carter v. Escondido Union High Sch. Dist.,

13

148 Cal. App. 4th 922, 933 (2007) (finding no violation of § 1102.5 in part because the plaintiff’s

14

“conversation with [his supervisor] was not motivated by his belief that a law had been broken.”);

15

see also Nieves v. City of Oakland, 2016 WL 6879282, at *6 (Cal. Ct. App. Nov. 22, 2016)

16

(unpublished) (“There is no allegation that appellant’s conversations with [his supervisors] were

17

‘motivated by his belief that a law had been broken’ rather than just an internal administrative or

18

payroll problem.” (citing Carter, 148 Cal. App. 4th at 933)).7 Indeed, in her letter to the corporate

19

office, Plaintiff mentioned no legal violation at all, but instead simply stated that “I am trying to

20

gain a better understanding on how the Vi determined that [certain] positions are exempt and not

21

the Sales Counselor position.” Ex. B to Opp. Thus, Plaintiff’s questioning of a known policy did

22

not qualify as disclosing an unknown legal violation under § 1102.5(b). 8

23
24
25
26
27
28

7

The Nieves opinion is unpublished and is therefore not precedent under the California Rule of
Court 8.1115. However, the Court may “may nonetheless rely on the unpublished opinion[] . . . to
‘lend support’” to the idea that Carter “accurately represents California law.” Emp’rs Ins. of
Wausau v. Granite State Ins. Co., 330 F.3d 1214, 1220 n. 8 (9th Cir. 2003).
8
Green v. Ralee Eng. Co., 19 Cal.4th 66, 87 (1998), expanded the protections of § 1102.5(b) to a
quality control inspector who disclosed to internal managers that the company sold defective
airplane components in violation of federal regulations. Accordingly, § 1102.5(b) has since been
amended to protect internal disclosures and violations of regulations. However, no court has ever
31
Case No. 16-CV-02680-LHK
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT ON SELECTED CLAIMS

1

Similarly, Plaintiff claims that she was terminated for “disclosures regarding working

2

conditions under Labor Code §§ 226.7, 232.5, and 512 that implicate fundamental public policy.”

3

However, as discussed above, Plaintiff’s complaints did not constitute “disclosure” under

4

California law. Cf. Cuevas v. SkyWest Airlines, 17 F. Supp. 3d 956, 967 (N.D. Cal. 2014), aff’d,

5

644 F. App’x 791 (9th Cir. 2016) (granting summary judgment on wrongful termination claim

6

premised on disclosure of working conditions despite the fact that employee had complained

7

internally). Additionally, Plaintiff does not provide any argument about how the working

8

conditions of which Plaintiff complained implicated any well-established “public policy” that is

9

“fundamental and substantial” and that “inures to the benefit of the public at large.” See, e.g.,
Deschene v. Pinole Point Steel Co., 76 Cal. App. 4th 33, 43 (1999), as modified, (Nov. 29, 1999)

11
United States District Court
Northern District of California

10

(“In order to establish a common law cause of action for wrongful termination in violation of

12

public policy the plaintiff must identify a public policy which: (1) is supported by a constitutional

13

or statutory provision; (2) inures to the benefit of the public at large; (3) is fundamental and

14

substantial; and, (4) is well established at the time of plaintiff's discharge.”) (emphasis added).

15

For these reasons, the Court finds that Plaintiff has not identified any additional public

16

policy ground for her wrongful termination claim except for those public policies that are

17

derivative of her gender discrimination and retaliation claims. Nevertheless, even if Plaintiff had

18

identified a distinct public policy ground for her wrongful termination claim, summary judgment

19

would nevertheless be warranted. As discussed above, Defendants have offered a valid,

20

nondiscriminatory reason for Plaintiff’s discharge, and Plaintiff has failed to offer specific and

21

substantial evidence to rebut Defendants’ proffered reason. See Day v. Sears Holdings Corp., 930

22

F. Supp. 2d 1146, 1191 (C.D. Cal. 2013) (“In assessing a claim for wrongful termination in

23

violation of public policy, California courts apply the burden shifting analysis as set forth in

24

McDonnell Douglas.”) (internal quotation marks omitted); see also Loggins v. Kaiser Permanente

25
26
27
28

expanded § 1102.5(b) to protect employees who did not “disclose” anything. At the very least,
expansion of § 1102.5(b) to this degree was not “well established at the time of the discharge
here,” as required for the tort of wrongful termination in violation of public policy. Stevenson v.
Superior Court, 16 Cal. 4th 880, 885 (1997).
32
Case No. 16-CV-02680-LHK
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT ON SELECTED CLAIMS

1

Intern., 151 Cal. App. 4th 1102, 1108–09 (2007) (same).
Thus, the Court GRANTS Defendants’ motion for summary judgment on Plaintiff’s claim

2
3

for wrongful termination in violation of public policy. The Court therefore need not consider

4

whether Plaintiff is entitled to punitive damages.

5

IV.

CONCLUSION
For the foregoing reasons, the Court GRANTS Defendants’ motion for summary judgment

6
7

on Plaintiff’s age discrimination, gender discrimination, retaliation, and wrongful termination

8

claims.

9

IT IS SO ORDERED.

10

United States District Court
Northern District of California

11
12
13

Dated: July 14, 2017
______________________________________
LUCY H. KOH
United States District Judge

14
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20
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26
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28

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Case No. 16-CV-02680-LHK
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT ON SELECTED CLAIMS