Desmond v. Charter Communications, Inc. et al

Filing 48

ORDER Granting Defendant Charter Communications, Inc.'s Motion for Summary Judgement (Doc. No. 25 ). The Court grants Charter's motion for summary judgment in its entirety. Signed by Judge Anthony J. Battaglia on 7/19/2021. (jrm)

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Case 3:19-cv-02392-AJB-MDD Document 48 Filed 07/19/21 PageID.2463 Page 1 of 31 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 13 14 15 STACY DESMOND, Case No.: 3:19-CV-2392-AJB-MDD Plaintiff, ORDER GRANTING DEFENDANT CHARTER COMMUNICATIONS, INC.’S MOTION FOR SUMMARY JUDGMENT v. CHARTER COMMUNICATIONS, INC., Defendant. (Doc. No. 25.) 16 17 18 Presently pending before the Court is Defendant Charter Communications, Inc.’s 19 (“Charter”) motion for summary judgment, or alternatively, for partial summary judgment 20 against Plaintiff Stacy Desmond (“Plaintiff”). (Doc. No. 25.) Plaintiff opposes Charter’s 21 motion. (Doc. No. 39.) Charter replied. (Doc. No. 43.) The Court held a hearing on 22 Charter’s motion on July 1, 2021. (Doc. No. 44.) For the reasons set forth below, the Court 23 GRANTS Charter’s motion for summary judgment in its entirety. 24 I. BACKGROUND 25 A. Plaintiff’s Role at Charter 26 This is an employment case, alleging discrimination, harassment, and retaliation. 27 Plaintiff argues she was terminated on the basis of her gender and disability, and in 28 retaliation for her complaints to Charter’s Employee Relations Department. In defense, 1 3:19-CV-2392-AJB-MDD Case 3:19-cv-02392-AJB-MDD Document 48 Filed 07/19/21 PageID.2464 Page 2 of 31 1 Charter’s asserts it terminated Plaintiff’s employment because she failed to meet her sales 2 quota for five consecution months. (Doc. No. 25-1 at 9.) 3 In November 2010, Plaintiff commenced employment with Time Warner Cable, Inc. 4 (“Time Warner”)—the predecessor entity to Charter. (Complaint (“Compl.”), Doc. No. 1- 5 2, ¶ 5.) Plaintiff was employed as a Direct Sales Representative (“DSR”), a door-to-door 6 salesperson responsible for selling Charter’s products and services. (Id. ¶ 6.) On August 8, 7 2014, Plaintiff began work in the Multi-Dwelling Unit Concierge (“MDU”) position, in 8 which she sold Charter’s products and services to apartment buildings, condominiums, and 9 other multi-dwelling communities. (Doc. No. 25-1 at 11.) Plaintiff states that the MDU 10 position was less strenuous, as walking was confined to multi-dwelling units instead of 11 residential neighborhoods. 12 In 2016, Charter merged with Time Warner. (Id.) This merger resulted in the 13 restructuring of some of Charter’s departments, including downsizing the MDU 14 department. (Id.) As a result, Plaintiff was transferred back to the DSR department along 15 with two other male MDU employees. 1 (Id.) 16 From November 16, 2016, through May 3, 2017, Plaintiff experienced medical 17 issues related to a neck and shoulder injury she sustained in 2001, prior to working with 18 Time Warner. (Plaintiff Desmond’s Deposition (“Plaintiff’s Depo.”), Doc. No. 25-2, at 19 107:12-111:5.)2 Due to these health issues, which Plaintiff alleges was exacerbated by 20 Plaintiff’s work as a DSR, Plaintiff was placed on a medical leave of absence at Charter. 21 (Id.) 22 While still out on leave in March 2017, Plaintiff applied for an open MDU position. 23 (Doc. No. 25-1 at 12.) At the time of her application, Plaintiff was medically restricted to 24 25 26 27 28 1 Plaintiff argues that her transfer from the MDU role back to the DSR position constituted a demotion. (Doc. No. 39 at 21.) 2 The page numbering for Plaintiff’s deposition refers to the page number provided by counsel. All other page numbers referenced in this order refers to the CM/ECF number located at the top right of each document. 2 3:19-CV-2392-AJB-MDD Case 3:19-cv-02392-AJB-MDD Document 48 Filed 07/19/21 PageID.2465 Page 3 of 31 1 a part-time schedule with limited hours in the field, and limited walking. (Id.) The medical 2 restrictions were: (1) Plaintiff would require a one-hour break for every three hours of field 3 work; (2) Plaintiff could only carry ten pounds per hand; and (3) Plaintiff could only work 4 five days a week. (Id. at 120:7-121:7.) Charter rejected Plaintiff’s MDU application, and 5 deemed Plaintiff unsuitable for the MDU job because the role was full-time, and required 6 more activity in the field than Plaintiff’s medical restrictions would permit. (Plaintiff’s 7 Depo., at 115:3-24.) On May 4, 2017, Plaintiff returned from leave to her prior DSR 8 position—the same position she held before her leave of absence. (Doc. No. 25-1 at 13.) 9 B. Charter’s Employment Policies 10 All DSRs at Charter, including Plaintiff, were required to meet a monthly sales quota 11 of 23 sales. (Id.) According to Charter’s policies, the transaction would only qualify as a 12 sale if the installation of Charter’s product or service occurred during the same cycle as the 13 sale. (Doc. No. 39 at 17.) In addition to this quota, DSRs were required to meet a ten sales 14 threshold in order to earn commission and avoid corrective action. (See Declaration of Jose 15 Hernandez (“Hernandez Decl.”), Doc. No. 25-2, at ¶ 8.) This ten sales minimum could be 16 adjusted downwards if a DSR did not work a full month due to absences, leave, or vacation. 17 (Id.) Charter alleges Saturdays were not required workdays for DSRs, however, many 18 DSRs worked on Saturdays to meet their 23 monthly sales quota. (Id.) 19 To maintain employee performance, Charter implemented a strict discipline system. 20 (Id. at 14.) Employees who failed to meet their minimum quotas were subject to a 21 progressive discipline system including a “Coaching,” a “Verbal Warning,” a “Written 22 Warning,” a “Final Written Warning,” and then ultimately, termination. (See Hernandez 23 Decl. ¶ 10.) According to Charter, Plaintiff failed to meet her minimum quotas for the 24 months of May, June, July, August, and September of 2017. (Id. ¶¶ 11–14.) After being 25 issued a “Final Written Warning,” Charter issued an Incident Investigation Report and 26 termination recommendation on September 26, 2017. (See id. ¶ 14.) On October 13, 2017, 27 Charter officially terminated Plaintiff for failing to meet her sales quota for five 28 consecutive months. (Id.) 3 3:19-CV-2392-AJB-MDD Case 3:19-cv-02392-AJB-MDD Document 48 Filed 07/19/21 PageID.2466 Page 4 of 31 1 C. 2 On September 22, 2017, prior to her termination, Plaintiff filed an Open Door 3 complaint against Sales Manager Chris Workman (“Workman”), alleging disability 4 discrimination, retaliation, and harassment on the basis of alleged offensive comments 5 made by Workman. Then, on October 13, 2018, Plaintiff filed a complaint with the 6 Department of Fair Employment and Housing (“DFEH”). (See Exhibit 13 to Declaration 7 of Casey Morris.) The DFEH claim alleged harassment, gender and disability 8 discrimination, and retaliation based on Plaintiff’s requests for accommodation and 9 complaints to management. (Id.) The DFEH issued an immediate Right to Sue notice, and 10 11 12 13 Plaintiff’s Claims Against Charter took no further action on the DFEH charge. (Id.) On October 11, 2019, Plaintiff filed a civil action in San Diego Superior Court. Plaintiff’s Complaint asserts fifteen causes of action: 25 Breach of Implied Contract Claims for Wages under the California Labor Code Wrongful Termination Retaliation in Violation of FEHA Failure to Prevent Discrimination and Retaliation in Violation of Gov’t Code §12940(k) et. seq. 6. Age Discrimination in Violation of FEHA 7. Gender Discrimination in Violation of FEHA 8. Intentional Infliction of Emotional Distress 9. Negligent Infliction of Emotional Distress 10.Defamation 11.Harassment in Violation of FEHA and Gov’t Code § 12940(j) 12.Violation of California’s Family Rights Act (“CFRA”) & the Federal Family and Medical Leave Act of 1993 (“FMLA”) 13.Violation of Business and Professions Code § 17200 et. seq. 14.Violation of the California Unruh Civil Rights Act 15.Violation of Title I of the Americans with Disabilities Act of 1990 26 The state action was removed to this Court on December 12, 2019. (Doc. No. 1.) No 27 motion to dismiss was filed. Charter filed this instant motion for summary judgment on 14 15 16 17 18 19 20 21 22 23 24 28 1. 2. 3. 4. 5. 4 3:19-CV-2392-AJB-MDD Case 3:19-cv-02392-AJB-MDD Document 48 Filed 07/19/21 PageID.2467 Page 5 of 31 1 April 9, 2021, which was opposed by Plaintiff. (Doc. No. 25.) The Court held a hearing on 2 the motion on July 1, 2021. (Doc. No. 44.) 3 II. LEGAL STANDARDS 4 A court may grant summary judgment when it is demonstrated that there exists no 5 genuine dispute as to any material fact, and that the moving party is entitled to judgment 6 as a matter of law. See Fed. R. Civ. P. 56(a); Adickes v. S.H. Kress & Co., 398 U.S. 144, 7 157 (1970). The party seeking summary judgment bears the initial burden of informing a 8 court of the basis for its motion and of identifying the portions of the declarations, 9 pleadings, and discovery that demonstrate an absence of a genuine dispute of material fact. 10 See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A fact is “material” if it might 11 affect the outcome of the suit under the governing law. See Anderson v. Liberty Lobby, 12 Inc., 477 U.S. 242, 248–49 (1986). A dispute is “genuine” as to a material fact if there is 13 sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. See 14 Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006). 15 Where the moving party will have the burden of proof on an issue at trial, the movant 16 must affirmatively demonstrate that no reasonable trier of fact could find other than for the 17 movant. See Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). Where 18 the non-moving party will have the burden of proof on an issue at trial, the movant may 19 prevail by presenting evidence that negates an essential element of the non-moving party’s 20 claim or by merely pointing out that there is an absence of evidence to support an essential 21 element of the non-moving party’s claim. See Nissan Fire & Marine Ins. Co. v. Fritz 22 Companies, 210 F.3d 1099, 1102–03 (9th Cir. 2000). If a moving party fails to carry its 23 burden of production, then “the non-moving party has no obligation to produce anything, 24 even if the non-moving party would have the ultimate burden of persuasion.” Id. If the 25 moving party meets its initial burden, the burden then shifts to the opposing party to 26 establish that a genuine dispute as to any material fact actually exists. See Matsushita Elec. 27 Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The opposing party cannot 28 “rest upon the mere allegations or denials of [its] pleading but must instead produce 5 3:19-CV-2392-AJB-MDD Case 3:19-cv-02392-AJB-MDD Document 48 Filed 07/19/21 PageID.2468 Page 6 of 31 1 evidence that sets forth specific facts showing that there is a genuine issue for trial.” See 2 Estate of Tucker, 515 F.3d 1019, 1030 (9th Cir. 2008) (internal quotation marks and 3 citation omitted). 4 The evidence of the opposing party is to be believed, and all reasonable inferences 5 that may be drawn from the facts placed before a court must be drawn in favor of the 6 opposing party. See Stegall v. Citadel Broad, Inc., 350 F.3d 1061, 1065 (9th Cir. 2003). 7 However, “[b]ald assertions that genuine issues of material fact exist are insufficient.” See 8 Galen v. County of Los Angeles, 477 F.3d 652, 658 (9th Cir. 2007); see also Day v. Sears 9 Holdings Corp., No. 11–09068, 2013 WL 1010547, *4 (C.D. Cal. Mar. 13, 2013) 10 (“Conclusory, speculative testimony in affidavits and moving papers is insufficient to raise 11 genuine issues of fact and defeat summary judgment.”). Further, a “motion for summary 12 judgment may not be defeated . . . by evidence that is ‘merely colorable’ or ‘is not 13 significantly probative.’” See Anderson, 477 U.S. at 249–50; see also Hardage v. CBS 14 Broad. Inc., 427 F.3d 1177, 1183 (9th Cir. 2006) (same). If the nonmoving party fails to 15 produce evidence sufficient to create a genuine dispute of material fact, the moving party 16 is entitled to summary judgment. See Nissan Fire & Marine, 210 F.3d at 1103. 17 III. DISCUSSION 18 In its motion, Charter moves for summary judgment on all fifteen of Plaintiff’s 19 claims for relief. (Doc. No. 25.) As such, the Court will address each basis for summary 20 judgment below. For the reasons provided herein, the Court GRANTS Charter’s motion. 21 A. Evidentiary Objections 22 As a preliminary mater, both Plaintiff and Charter provide various objections to each 23 other’s evidence offered in connection with the present motion. (Doc. No. 39 at 12, 13, 15, 24 17; Doc. No. 43 at 5–7.) To the extent the Court relies on the disputed evidence, the Court 25 will address the evidentiary objections below. However, insofar as the Court’s decision 26 does not depend on certain disputed evidence in this order, the Court need not reach those 27 remaining evidentiary objections, and OVERRULES such objections as moot. 28 // 6 3:19-CV-2392-AJB-MDD Case 3:19-cv-02392-AJB-MDD Document 48 Filed 07/19/21 PageID.2469 Page 7 of 31 1 B. 2 In its first argument, Charter contends Plaintiff’s claim for age discrimination and 3 age harassment fail for failure to exhaust the necessary administrative remedies. (Doc. No. 4 25-1 at 17.) To this point, the Court agrees. Plaintiff’s Claims for Age Discrimination and Harassment 5 In order to be entitled to file a civil action in a court based on the Fair Employment 6 and Housing Act (“FEHA”) violations, an employee must first exhaust administrative 7 remedies. See Blum v. Superior Court, 141 Cal. App. 4th 418, 422 (2006). An employee 8 can exhaust administrative remedies by filing a complaint with the DFEH within one year 9 of the occurrence of the allegedly unlawful act, and obtaining a notice of the right to sue 10 from the DFEH. See Blum, 141 Cal. App. 4th at 422; see also Rao v. AmerisourceBergen 11 Corp., No. CIV S-08-1527 DAD PS, 2010 WL 3767997, at *9 (E.D. Cal. Sept. 22, 2010) 12 (“The timely filing of an administrative complaint is a prerequisite to the bringing of a civil 13 action for damages under the FEHA.”). It is the plaintiff’s burden to plead and prove timely 14 exhaustion of administrative remedies. See Kim v. Konad USA Distribution, Inc., 226 Cal. 15 App. 4th 1336, 1345 (2014) (citing Garcia v. Los Banos Unified School Dist., 418 F. Supp. 16 2d 1194, 1215 (E.D. Cal. 2006)). 17 In her Complaint before this Court, Plaintiff alleges discrimination and harassment 18 based on age because she was terminated at age of 45. (Compl. ¶ 98.) Charter moves for 19 summary judgment, arguing that no age discrimination or age harassment claim was ever 20 filed with the DFEH to satisfy administrative exhaustion. (Doc. No. 25-1 at 17–18.) In 21 opposition, Plaintiff concedes that she did not use the terms “age discrimination” in her 22 DFEH complaint to assert such a charge. (Doc. No. 39 at 20.) However, this is not fatal, 23 according to Plaintiff, because an investigation of her DFEH complaint would have 24 revealed age discrimination. (Id.) Plaintiff is mistaken. 25 Plaintiff relies on Sandhu v. Lockheed Missiles & Space Co. to argue that if an 26 administrative investigation into an employee’s DFEH claim would likely have 27 encompassed the new allegations in the civil court complaint, exhaustion is satisfied. See 28 26 Cal. App. 4th 846, 859 (1994). However, Sandhu is not entirely helpful to Plaintiff 7 3:19-CV-2392-AJB-MDD Case 3:19-cv-02392-AJB-MDD Document 48 Filed 07/19/21 PageID.2470 Page 8 of 31 1 because that case also noted that to satisfy the exhaustion requirement, an administrative 2 charge must be “like or reasonably related” to the conduct alleged in the civil complaint. 3 Id. at 846. No explanation or authority is provided by Plaintiff to explain how age 4 discrimination or age harassment is “like or reasonably related” to gender or disability 5 discrimination. See Shah v. Mt. Zion Hosp. & Med. Ctr., 642 F.2d 268, 271 (9th Cir. 1981) 6 (dismissing the race, religion, and color allegations in plaintiff’s complaint, as not 7 sufficiently close to the sex and national origin claims in his administrative charge to have 8 been investigated by the EEOC). Further, Plaintiff provides no reasons why her DFEH 9 complaint, based on gender and disability discrimination, would reasonably trigger an 10 investigation into discrimination on the basis of age. See Rodriguez v. Airborne Express, 11 265 F.3d 890, 898 (9th Cir. 2001) (holding that exhaustion of administrative remedies 12 alleging discrimination on the grounds of being Mexican–American was insufficient to 13 exhaust a claim of disability discrimination); Stallcop v. Kaiser Found. Hosps., 820 F.2d 14 1044, 1050 (9th Cir. 1987) (holding that allegations of sex and age discrimination in civil 15 complaint were not encompassed by charge filed with the DFEH alleging only national 16 origin discrimination). Indeed, there is no evidence supporting the conclusion that 17 Plaintiff’s gender and disability discrimination claims were in any way related or 18 intertwined with Plaintiff’s claims based on age. 19 In an attempt to be excused from the administrative exhaustion requirement, Plaintiff 20 notes that concealment was involved in this matter. (See Doc. No. 39 at 20.) Specifically, 21 Plaintiff alleges that Charter fabricated accounting records of sales to justify the 22 termination of Plaintiff. (Id.) However, Plaintiff does not provide a sufficient nexus to 23 explain how this purported fabrication is in any way related to Plaintiff’s age discrimination 24 claim. And, as explained in depth below, there is no evidence of any fabrication or 25 concealment concerning Charter’s sales records. Neither does Plaintiff provide any 26 evidence substantiating her allegations of age discrimination or age harassment. In fact, 27 there is no evidence in the record that Plaintiff provided notice to Charter as to her age 28 discrimination grievance during her employment or at any point thereafter. Because neither 8 3:19-CV-2392-AJB-MDD Case 3:19-cv-02392-AJB-MDD Document 48 Filed 07/19/21 PageID.2471 Page 9 of 31 1 age discrimination nor age harassment was alleged in Plaintiff’s DFEH charge, she fails to 2 establish that she administratively exhausted her age discrimination and harassment claims 3 for this pending action. For all these reasons, summary judgment is GRANTED to Charter 4 on Plaintiff’s claims to the extent they are premised on age discrimination or age 5 harassment. 6 C. 7 Next, the Court turns to arguments relating to Plaintiff’s FEHA disability 8 discrimination claim. A prima facie case for disability discrimination under FEHA based 9 on grounds of physical disability requires that Plaintiff: (1) establish that she suffers from 10 a disability; (2) is otherwise qualified to do her job; and (3) was subject to an adverse 11 employment action because of her disability. See Ravel v. Hewlett–Packard Enter., Inc., 12 228 F. Supp. 3d 1086, 1095 (E.D. Cal. 2017); Faust v. California Portland Cement Co., 13 150 Cal. App. 4th 864, 886 (2007). Under the FEHA, a “physical disability” is any 14 “physiological disease, disorder or condition” that both affects a specific bodily system and 15 limits a major life activity. See Cal. Gov’t Code § 12926(m). Plaintiff’s Disability Discrimination Claim 16 Because the FEHA is an anti-discrimination law modeled after the federal 17 Americans with Disabilities Act (“the ADA”), courts analyze FEHA claims under the 18 burden-shifting analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 19 802–04 (1973) (“McDonnell Douglas”). Accordingly, on a motion for summary judgment 20 brought against such a cause of action, Plaintiff bears the burden of establishing a prima 21 facie case of discrimination based upon physical disability. The burden then shifts to the 22 employer to offer a legitimate, nondiscriminatory reason for the adverse employment 23 action. See Ellis v. City of Reedley, No. CVF0501474 AWI SMS, 2007 WL 1098571, at *9 24 (E.D. Cal. Apr. 12, 2007). Once the employer has done so, the plaintiff must offer evidence 25 that the employer’s stated reason is either false or pretextual, or evidence that the employer 26 acted with discriminatory animus, or evidence of each which would permit a reasonable 27 trier of fact to conclude the employer intentionally discriminated. Id. 28 Here, unchallenged is Plaintiff’s assertion that she suffers from a disability. 9 3:19-CV-2392-AJB-MDD Case 3:19-cv-02392-AJB-MDD Document 48 Filed 07/19/21 PageID.2472 Page 10 of 31 1 However, Charter argues Plaintiff cannot establish a prima facie case because there is a 2 legitimate, nondiscriminatory justification for Plaintiff’s termination. (See Doc. No. 25-1 3 at 20.) To support this assertion, Charter points to evidence showing that Plaintiff was 4 terminated for poor performance after failing to meet her sales quota for five consecutive 5 months. (Id.) 6 In an effort to create a genuine dispute of material fact, Plaintiff challenges her sales 7 quota, arguing that Charter orchestrated a scheme to falsify her sales record as a pretext to 8 conceal its discriminatory animus on the basis of disability. (Doc. No. 39 at 21.) Plaintiff 9 points to Exhibit 15, attached to the declaration of Plaintiff’s counsel, Marie Mirch, which 10 purports to be a print-out of internal sales figures from a Charter portal “contain[ing] actual 11 accounting records of each sale, the number of the contracting party, dates of the 12 transactions and installations.” (Id.) Plaintiff then creates a table based on these sales 13 figures, which compares Charter’s sales quota and what Charter calculated as Plaintiff’s 14 completed sales, with what Plaintiff believes the sales quota should have been, and 15 Plaintiff’s actual sales according to Plaintiff. The table, redacted for brevity, is provided 16 below: 17 18 19 20 21 22 23 24 25 26 27 28 Sales Cycle Days in Cycle April 22 – 20 Adjusted Days in Cycle Adjusted Sales Quota MSJ: Sales Quota Actual Sales MSJ: Actual Sales 7 2.45 5 5 1 23 23 7 10 7 5 22 22 7 10 7 7 21 21 10 10 12 9 May 21 May 22 – June 21 June 22 – July 21 July 22 – Aug. 21 10 3:19-CV-2392-AJB-MDD Case 3:19-cv-02392-AJB-MDD Document 48 Filed 07/19/21 PageID.2473 Page 11 of 31 1 Aug. 22 – 2 Sept. 21 3 Sept. 22 – 4 Oct. 21 23 23 6 6 10 4 21 16 7.6 Not 11 Not Stated stated 5 6 7 (Id. at 8.) 1. Evidentiary Objections 8 As a threshold matter, Charter mounts evidentiary objections to Plaintiff’s evidence 9 offered in support of her claim that Charter falsified sales records to justify Plaintiff’s 10 termination. (Doc. No. 43 at 5.) Particularly, Charter challenges Plaintiff’s Exhibit 15, a 11 print-out document which Plaintiff claims she obtained from Charter’s online portal. (Doc. 12 No. 39 at 21.) The Mirch declaration also states that this document was received from 13 Plaintiff, and maintained at counsel’s office during the normal course of business in this 14 litigation. (See Mirch Decl., Doc. No. 39-4 at 4.) In its objection, Charter argues that 15 Exhibit 15 lacks foundation and is not properly authenticated because it does not contain 16 the dates as to when the document was printed, or what the information in it represents. 17 (Doc. No. 43 at 5.) The Court agrees that there are circumstances calling into question 18 Exhibit 15. For one, in her declaration, Plaintiff stated that Charter had “took away access 19 to track the sales [she] had made.” (Plaintiff’s Decl., Doc. No. 39-1, ¶ 34.) Then, at 20 Plaintiff’s deposition, Plaintiff also stated that she was unable to track her sales because 21 Charter removed access. (See Plaintiff’s Depo., Doc. No. 25-2, at 132:19-133:19.) When 22 pressed on this issue at the July 1, 2021 motion hearing, Plaintiff failed to clearly lay the 23 foundation for Exhibit 15, or prove its authenticity. Based on the conflicting information 24 provided by Plaintiff, the Court questions the reliability of Plaintiff’s offered evidence. 25 Because Plaintiff has failed to properly alleviate the Court’s concerns in the papers or at 26 the hearing, the Court SUSTAINS Charter’s objection to Exhibit 15 of the Mirch 27 28 11 3:19-CV-2392-AJB-MDD Case 3:19-cv-02392-AJB-MDD Document 48 Filed 07/19/21 PageID.2474 Page 12 of 31 1 declaration. 3 2 2. Merits of Plaintiff’s Disability Discrimination Claim 3 Turning back to the merits of the case, in response to Charter’s challenge of 4 Plaintiff’s disability discrimination claim, Plaintiff argues there is a triable issue of fact as 5 to whether Plaintiff’s minimum threshold was properly adjusted. (Doc. No. 39 at 15.) 6 Plaintiff appears to argue that Charter’s justification for the termination was based on an 7 erroneously calculated sales quota. (Id.) Where an employer offers a legitimate, non- 8 discriminatory reasons for the adverse employment decision, the plaintiff must produce 9 “substantial, responsive evidence” tending to suggest that the employer’s showing was 10 untrue. See Cucuzza v. City of Santa Clara, 104 Cal. App. 4th 1031, 1038–39 (2002). 11 Plaintiff has failed to produce such “substantial, responsive” evidence. To attack Charter’s 12 decision to terminate Plaintiff’s employment, Plaintiff disputes the appropriate sales quota, 13 but offers no competent evidence supporting how the sales quota was incorrectly 14 calculated. Moreover, Plaintiff offers scant evidence to validate her claims that the 15 termination was pretextual, and based on discriminatory intent. In fact, Plaintiff’s own 16 deposition testimony confirms she does not believe she was treated differently than other 17 non-disabled employees. Rather, it appears that Plaintiff’s actual grievance is that she felt 18 that she should have been given more time to meet Charter’s expectations. When posed the 19 question, “[h]ow were you treated differently than non-disabled employees?” (Plaintiff’s 20 Depo., at 141:20-21), Plaintiff responded, “[t]reated differently? No. It wasn’t—no, that’s 21 my point. Is I wasn’t—I don’t—I should have been given a better chance at succeeding, in 22 my position, because I was gradually succeeding.” (Id. at 144:22–25.) Plaintiff’s 23 24 25 26 27 28 3 Even if the Court were to find that Plaintiff properly laid the foundation for, and properly authenticated Exhibit 15, Charter correctly points out that any calculations as to Plaintiff’s quota or actual sales based on the information extracted from Exhibit 15 would be unreliable. Specifically, Exhibit 15 includes sales transactions which were ultimately cancelled, and not installed. (Doc. No. 43 at 5.) Charter reiterates that only sales which resulted in installation of Charter’s products within the same cycle counted towards Plaintiff’s sales quota. Because Exhibit 15 does not account for whether the sales were actually installed, any corresponding data calculated would necessarily be unreliable. (Id. at 6.) 12 3:19-CV-2392-AJB-MDD Case 3:19-cv-02392-AJB-MDD Document 48 Filed 07/19/21 PageID.2475 Page 13 of 31 1 disagreement with Charter’s method of calculating sales quota is not enough to show an 2 inference of discriminatory intent. See Dep’t of Fair Emp’t & Hous. v. Lucent Techs., Inc., 3 642 F.3d 728, 746 (9th Cir. 2011) (it is insufficient to show that the employer’s decision 4 was “wrong, mistaken, or unwise”) (citation and quotation marks omitted). 5 Because Plaintiff’s grievance about Charter’s business practices is insufficient to 6 raise the inference of discriminatory animus, Plaintiff fails to meet her burden in rebutting 7 Charter’s legitimate, non-discriminatory reason for the termination. The Court GRANTS 8 summary judgment in favor of Charter on Plaintiff’s disability discrimination claim. 9 D. Plaintiff’s ADA Reasonable Accommodation Claim 10 Related to Plaintiff’s disability discrimination claim, Plaintiff also claims that 11 Charter failed to provide reasonable accommodation for her disability. The ADA requires 12 an employer to make reasonable accommodations for an employee with a disability. See 13 42 U.S.C. § 12112(b)(5); Dunlap v. Liberty Nat. Prods, Inc., 878 F.3d 794, 799 (9th Cir. 14 2017) (internal quotations and citations omitted). To prevail on a failure to accommodate 15 claim under the ADA, a plaintiff must prove that “(1) she is disabled within the meaning 16 of the ADA; (2) she is a qualified individual able to perform the essential functions of the 17 job with reasonable accommodation; and (3) she suffered an adverse employment action 18 because of her disability.” Samper v. Providence St. Vincent Med. Ctr., 675 F.3d 1233, 19 1237 (9th Cir. 2012) (quotation and citation omitted). A reasonable accommodation may 20 include “job restructuring, part-time or modified work schedules, . . . and other similar 21 accommodations for individuals with disabilities.” 42 U.S.C. § 12111(9)(B). Whether an 22 accommodation is reasonable is ordinarily a question of fact, requiring a “fact-specific, 23 individualized analysis of the disabled individual’s circumstances and the potential 24 accommodations.” Dunlap, 878 F.3d at 799. An employer, however, does not have a duty 25 to “provide an employee the accommodation [s]he requests or prefers, the employer need 26 only provide some reasonable accommodation.” Zivkovic v. S. Cal. Edison Co., 302 F.3d 27 1080, 1089 (9th Cir. 2002). 28 // 13 3:19-CV-2392-AJB-MDD Case 3:19-cv-02392-AJB-MDD Document 48 Filed 07/19/21 PageID.2476 Page 14 of 31 1 Here, Plaintiff claims she was denied reasonable accommodation because Charter 2 failed to adjust her sales quota even though she was legally restricted to work only six 3 hours a day. Plaintiff also asserts that Charter failed to offer her the MDU position upon 4 her return from leave. (Doc. No. 39 at 23.) Plaintiff’s claims both fail. First, with regard to 5 the assertion that Charter should have lowered the sales quota, Plaintiff has not shown that 6 the lowering of Plaintiff’s sales quota would have been a reasonable accommodation. 7 Indeed, as an exempt employee, Plaintiff was not restricted to working six hours per day. 8 Instead, the medical restriction only required that Plaintiff take a one-hour break for every 9 three hours worked in the field. (See Exhibit 12 to Decl. of Kasei Reed, Doc. No. 25-2.) 10 Because Plaintiff exercised control over when she could rest and work, Plaintiff’s argument 11 that was she legally only able to work six hours a day, is without merit. As such, Plaintiff 12 has not shown how a reduction in her sales quota would have been a reasonable 13 accommodation. 14 Furthermore, with regard to Plaintiff’s argument that Charter should have provided 15 her the MDU role, Charter was not obligated to offer her that position as an employer does 16 not have a duty to “provide an employee the accommodation [s]he requests or prefers, the 17 employer need only provide some reasonable accommodation.” Zivkovic, 302 F.3d at 1089. 18 As shown by the evidence, Plaintiff did not qualify for the MDU position because 19 Plaintiff’s work restrictions prevented her from performing the essential functions of that 20 job—working a full time schedule out on the field. (See Desmond Depo. 113:16-116:22; 21 Reed Decl. ¶ 9; Ex. 11). As soon as Plaintiff was released to return to a five day per week 22 schedule, Charter promptly returned Plaintiff to her DSR position as it was able to 23 accommodate her new schedule. 24 Moreover, substantial evidence supports the conclusion that Charter did in fact 25 provide reasonable accommodation by (1) granting Plaintiff a six-month leave of absence 26 when Plaintiff was unable to work, (2) offering to transfer Plaintiff to other positions when 27 Plaintiff was authorized to return to work with restrictions that rendered her unable to 28 resume the DSR position, (3) not requiring Plaintiff to work on Saturdays. (Doc. No. 25-1 14 3:19-CV-2392-AJB-MDD Case 3:19-cv-02392-AJB-MDD Document 48 Filed 07/19/21 PageID.2477 Page 15 of 31 1 at 24–25.) Charter engaged Desmond in the interactive process during her leave of absence 2 and tried to assist her with finding a different position which would have enabled Desmond 3 to return to work. (Desmond Depo. 111:8-118:24; Reed Decl. ¶¶ 7, 8; Ex. 11). 4 5 Accordingly, the Court GRANTS Charter’s motion for summary judgment as to Plaintiff’s failure to provide reasonable accommodation claim. 6 E. 7 “To establish a prima facie case, a plaintiff must offer evidence that ‘give[s] rise to 8 an inference of unlawful discrimination.’ . . . ‘The prima facie case may be based either on 9 a presumption arising from the factors such as those set forth in McDonnell Douglas. . ., 10 or by more direct evidence of discriminatory intent.’” Cordova v. State Farm Ins. Cos., 11 124 F.3d 1145, 1148 (9th Cir. 1997) (quoting Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 12 (9th Cir. 1994)). “Generally, the plaintiff must provide evidence that: (1) [s]he was a 13 member of a protected class, (2) [s]he was qualified for the position [s]he sought or was 14 performing competently in the position [s]he held, (3) [s]he suffered an adverse 15 employment action, such as termination, demotion, or denial of an available job, and (4) 16 some other circumstance suggests discriminatory motive,” e.g., similarly-situated 17 individuals outside her protected class were treated more favorably. Guz v. Bechtel 18 National, Inc., 24 Cal. 4th 317, 355 (2000). A plaintiff also “must prove by a preponderance 19 of the evidence that there was a ‘causal connection’ between [her] protected status and the 20 adverse employment decision.” Mixon v. Fair Employment & Housing Comm’n, 192 Cal. 21 App. 3d 1306, 1319 (1987). Plaintiff’s Gender Discrimination Claim 22 There is no doubt that Plaintiff is a member of a protected class as a female, and that 23 she suffered an adverse employment action. But there is no evidence of discriminatory 24 motive and no causal connection between Plaintiff’s protected status and the decision to 25 terminate her employment. To substantiate her claim, Plaintiff argues she was replaced by 26 a male for the MDU position. (Doc. No. 39 at 23.) This naked assertion, without more, is 27 insufficient to demonstrate an inference of unlawful discrimination. Also weakening this 28 inference is that two other men were also transferred from the MDU role along with 15 3:19-CV-2392-AJB-MDD Case 3:19-cv-02392-AJB-MDD Document 48 Filed 07/19/21 PageID.2478 Page 16 of 31 1 Plaintiff. (See Plaintiff’s Depo., at 38:2-7 (Plaintiff stating that “Joshua and Larry” were 2 moved from the MDU position to the DSR position at the same time that Plaintiff was 3 transferred). Plaintiff also contends she was replaced by a male for the MDU role. But 4 Plaintiff’s deposition refutes these allegations. Indeed, Plaintiff confirmed that prior to her 5 being transferred from the MDU role to the DSR position, there were ten total employees 6 on the MDU team. (Id. at 39:12-16.) With the transfer of Plaintiff and two other males, 7 seven employees remained on the MDU team. (Id.) But contrary to Plaintiff’s assertion 8 that she was replaced by a male, Plaintiff also testified that no new individuals were hired 9 onto the MDU team after Plaintiff’s transfer. (Id. at 39:17-21.) 10 In addition, Plaintiff argues that other female employees working at Charter reported 11 gender discrimination. Specifically, Plaintiff claims Diane Medrano, a Direct Sales 12 supervisor, “complained about a male employee poaching her customers” and she “decided 13 to resign because upper management did nothing to stop the that intrusion.” (See Exhibit 14 90 to Mirch Decl.) However, Exhibit 90, the interview notes of Medrano, does not reveal 15 any evidence of discriminatory intent or gender-specific complaints. Instead, upon review 16 of the document, the Court notes that the exhibit only mentions that a supervisor—who just 17 so happened to be male—was encroaching on Medrano’s sales territory. (Id.) Medrano’s 18 complaint does not appear to focus on gender at all. 19 Plaintiff also alleges that Chris Workman, a female, filed a complaint against her 20 supervisor. (Doc. No. 39 at 13.) Plaintiff cites to Exhibit 40 to support this contention. 21 Again, the evidence shows that the complaints made by Workman were wholly unrelated 22 to gender discrimination and do not even touch on the issue of gender. Notably, in Exhibit 23 40, Charter’s HR Specialist Kasei Reed stated that she believed Workman’s complaint was 24 the result of a “personality clash” between Workman and the male supervisor. (See Exhibit 25 40 to Mirch Decl.) Nowhere did Reed indicate that the dispute involved gender 26 discrimination. 27 And even more telling of the lack of discriminatory animus, five of the seven 28 individuals who ultimately approved Plaintiff’s termination were women. (Reed Decl., 16 3:19-CV-2392-AJB-MDD Case 3:19-cv-02392-AJB-MDD Document 48 Filed 07/19/21 PageID.2479 Page 17 of 31 1 Doc. No. 25-2, ¶ 14 (“I, along with Stacia Erway, the Human Resources Director, Daymion 2 Montañez, the Senior Human Resources Director, Chris Workman, the Sales Manager, 3 Mutari Madden, the Sales Director, Gabriella Borrego, the Senior Director of Sales, and 4 Amanda Field, the Vice President of Sales, all approved Desmond’s termination.”). Case 5 law authority shows that any inference of discrimination is undermined when the decision- 6 maker is a member of the same protected class. See, e.g., Coghlan v. American Seafoods 7 Co. LLC, 413 F.3d 1090, 1096–97 (9th Cir. 2005) (affirming summary judgment for 8 employer where the person who engaged in the allegedly discriminatory conduct was of 9 the same protected category as the plaintiff); Mattsson v. Home Depot, Inc., No. 11CV0533 10 AJB BLM, 2012 WL 2342948, at *4 (S.D. Cal. June 20, 2012) (same). 11 Because Plaintiff has failed to establish any evidence as to gender discrimination, 12 the Court GRANTS summary judgment in favor of Charter as to Plaintiff’s gender 13 discrimination claim. 14 F. 15 The FEHA makes it unlawful for an employer to “discharge, expel, or otherwise 16 discriminate against any person because the person has opposed any practices forbidden 17 under this part or because the person has filed a complaint, testified, or assisted in any 18 proceeding under this part.” Cal. Gov’t Code § 12940(h). To assert a prima facie claim for 19 retaliation under FEHA, Plaintiff must plead that: (1) she engaged in “protected activity,” 20 (2) the employer subjected her to an “adverse employment action,” and (3) there is a 21 “causal link” between the protected activity and the employer’s action. Yanowitz v. L’Oreal 22 USA, Inc., 36 Cal. 4th 1028, 1042 (2005); see also Doe v. Dep’t of Corr. & Rehab., 43 Cal. 23 App. 5th 721, 734 (2019); Brooks v. City of San Mateo, 229 F.3d 917, 928 (9th Cir. 2000). 24 In determining FEHA retaliation claims in the context of motions for summary judgment, 25 courts apply the same burden-shifting analysis as for determining discrimination claims 26 under FEHA. See Yanowitz, 36 Cal. 4th at 1042 (citing McDonnell Douglas, 411 U.S. at 27 802–05). 28 Plaintiff’s Retaliation Claim 17 3:19-CV-2392-AJB-MDD Case 3:19-cv-02392-AJB-MDD Document 48 Filed 07/19/21 PageID.2480 Page 18 of 31 1 The “protected activity” Plaintiff claims she engaged in was asserting various 2 complaints against Charter, including (1) a complaint relating to the ADA, (2) a MDU 3 application complaint, (3) a work phone disconnection complaint, (4) a complaint 4 regarding the failure to disclose that Plaintiff’s leave of absence extension was rejected, (5) 5 a complaint regarding Charter’s poor services and equipment failures, (6) a complaint 6 regarding working in violation of physician’s orders, (7) complaint regarding permits, (8) 7 a complaint against vacations, and (9) Plaintiff’s Open-Door complaint. (Doc. No. 39 at 8 15–16.) 9 Under a FEHA retaliation claim, “protected activity” includes an employee’s formal 10 or informal complaint to a supervisor regarding unlawful discrimination, and accordingly, 11 an employer’s adverse actions taken against the employee after such complaints may 12 constitute retaliation. Passantino v. Johnson & Johnson Consumer Prod., Inc., 212 F.3d 13 493, 506 (9th Cir. 2000) (citing Moyo v. Gomez, 40 F.3d 982 (9th Cir. 1994) (allowing 14 retaliation claim based on informal protest of allegedly discriminatory policy)). However, 15 “complaints about personal grievances or vague or conclusory remarks that fail to put an 16 employer on notice as to what conduct it should investigate will not suffice to establish 17 protected conduct.” The employee must “have alerted his employer to his belief that 18 discrimination, not merely unfair personal treatment, had occurred.” Mayfield v. Sara Lee 19 Corp., 2005 WL 88965, *8 (N.D. Cal. 2005) (citing Jurado v. Eleven–Fifty Corp., 813 F.2d 20 1406, 1412 (9th Cir. 1987) (finding employee complaint regarding scheduling change not 21 protected activity)); see also Lanagan v. Santa Cruz Cty Metro Transit Dist., 2010 WL 22 1838984, at *5–6 (N.D. Cal. 2010) (reporting co-employee’s negligence resulting in 23 accidents was “not protected activity [under FEHA] because it has nothing to do with the 24 FEHA’s prohibitions”); Lewis v. City of Fresno, 834 F. Supp. 2d 990, 1002 (E.D. Cal. 25 2011) (complaining of allocation of overtime assignments in an email or informal 26 grievance to superior was not a protected activity under FEHA). 27 Although Plaintiff attempts to highlight several grievances lodged against Charter, 28 a closer review of these complaints reveal that all of these grievances were not actually 18 3:19-CV-2392-AJB-MDD Case 3:19-cv-02392-AJB-MDD Document 48 Filed 07/19/21 PageID.2481 Page 19 of 31 1 FEHA-protected complaints, but instead questions Plaintiff raised in various emails to 2 Charter employees. These questions are insufficient to alert Charter as to Plaintiff’s belief 3 that discrimination occurred. For example, Plaintiff alleges that she lodged an ADA 4 complaint, citing to Exhibit 39 of the Mirch declaration. However, Exhibit 39 is only an 5 email from Plaintiff to Reed in which Plaintiff questions, “ADA contact person says the 6 department has not accepted the restrictions?? I don’t know who to talk to about this.” 7 (Exhibit 39 to Mirch Decl.) As for another example, Plaintiff alleges she complained about 8 the rejection of her MDU position application, citing to Exhibit 63 to the Mirch declaration. 9 But a review of Exhibit 63 only reveals an email from Plaintiff to Reed wherein Plaintiff 10 asks, “This email says I am not eligible? Movement guidelines?? What does this mean?” 11 Again, this question for clarification does not rise to the level of notice necessary to alert 12 Charter as to ongoing discrimination. 13 Plaintiff also argues she was retaliated against for the filing of an Open-Door 14 complaint to Charter’s Employee Relations Center. In this complaint, Plaintiff had alleged 15 disability discrimination, retaliation, and harassment against Chris Workman. However, as 16 illuminated by Charter, Plaintiff’s failure to meet the minimum threshold for the fiscal 17 month of September was the ultimate reason for the termination, and this had occurred 18 before Plaintiff filed her Open-Door complaint. (Doc. No. 25-1 at 21); Buhl v. Abbott 19 Lab’ys, 817 F. App’x 408, 411 (9th Cir. 2020) (“[Plaintiff’s] performance problems and 20 misconduct long predated the particular whistleblower complaint.”). Accordingly, this 21 Open-Door complaint cannot serve as the basis of a retaliation claim. 22 23 As Plaintiff has not established any evidence of retaliation, the Court GRANTS summary judgment in favor of Charter. 24 G. Plaintiff’s CFRA and FMLA Claims 25 Next, Charter argues Plaintiff’s California Family Rights Act (“CFRA”) and Family 26 and Medical Leave Act (“FMLA”) claims fail because it provided Plaintiff with the proper 27 amount of medical leave. (Doc. No. 25-1 at 25.) In opposition, Plaintiff does not dispute 28 that she received the proper amount of leave, but responds that her CFRA claim is in fact 19 3:19-CV-2392-AJB-MDD Case 3:19-cv-02392-AJB-MDD Document 48 Filed 07/19/21 PageID.2482 Page 20 of 31 1 a CFRA retaliation claim. (Doc. No. 39 at 24.) 2 The FMLA and CFRA both require the plaintiff to make a prima facie case of 3 retaliation. Nelson v. United Techs., 74 Cal. App. 4th 597, 613 n.5 (1999). To prevail on a 4 claim under the FMLA and CFRA, a plaintiff must plead and prove: (1) that the plaintiff 5 was eligible for CFRA leave; (2) that the plaintiff took CFRA leave; (3) that the plaintiff 6 suffered an adverse employment action because she exercised her right to take CFRA 7 leave; and (4) that there was a causal connection between the adverse employment action 8 and the plaintiff’s exercising of her CFRA rights. Dudley v. Dep't of Transp., 90 Cal. App. 9 4th 255, 261 (2001). 10 However, as considered directly above, the undisputed facts show that Charter 11 terminated Plaintiff for failing to meet her sales quota. And, Plaintiff has not submitted 12 evidence tending to show that retaliation had occurred. As such, even if Plaintiff could 13 establish a causal link between her protected activity and the adverse employment action, 14 she cannot defeat Charter’s showing that it terminated Plaintiff for non-discriminatory 15 purposes. See Rincon v. Am. Fed’n of State, Cty. and Mun. Employees, No. 12-4158 MEJ, 16 2013 WL 4389460, at *15 (N.D. Cal. Aug. 13, 2013) (denying retaliation claim where 17 defendant established it had non-retaliatory reasons for adverse employment actions). 18 19 20 Accordingly, the Court GRANTS Charter summary judgment as to the FMLA and CFRA claims to the extent they are premised on Plaintiff’s retaliation claim. H. Plaintiff’s Harassment Claim 21 1. The Statute of Limitations on Plaintiff’s Gender Harassment 22 Claim 23 In her Complaint, Plaintiff claims that she was harassed based on her gender and 24 disability. Charter first challenges Plaintiff’s FEHA gender harassment claim as time- 25 barred by the applicable statute of limitations. (Doc. No. 25-1 at 25.) Charter asserts that 26 at the time of Plaintiff’s filing of her DFEH charge, the statute of limitations to file a written 27 charge was one-year after the alleged gender harassment. See Cal. Gov’t Code § 12960(d). 28 Charter goes on to explain that Plaintiff’s gender harassment claim is based on statements 20 3:19-CV-2392-AJB-MDD Case 3:19-cv-02392-AJB-MDD Document 48 Filed 07/19/21 PageID.2483 Page 21 of 31 1 that were allegedly made by her former supervisor, Steven Pereda, on or before October 2 19, 2016. (Id. at 17.) According to Charter, since Plaintiff did not file her complaint with 3 the DFEH until October 13, 2018, Plaintiff’s gender harassment claim is time-barred. (Id.) 4 In her response, Plaintiff states that the statute of limitations did not begin to run on all 5 causes of action until Plaintiff was terminated. (Doc. No. 39 at 25.) Plaintiff avers the 6 wrongful conduct against Plaintiff began in 2016 and continued until she was terminated 7 on October 13, 2017. (Id.) 8 If a complaint is not filed within the statute of limitations, those claims are then 9 barred. However, under the continuing violation doctrine, “an employer is liable for actions 10 that take place outside the limitations period if these actions are sufficiently linked to 11 unlawful conduct that occurred within the limitations period.” Yanowitz, 36 Cal. 4th at 12 1056. “[T]he FEHA statute of limitations begins to run when an alleged adverse 13 employment action acquires some degree of permanence or finality,” but not sooner. Id. at 14 1059. The continuing violation doctrine is premised on the principle that “the employer 15 that creates or permits a persistent pattern of harassment or failure to reasonably 16 accommodate that makes its working conditions unfavorable to the employee . . . cannot 17 complain of delay when the employee retains employment in hopes that informal 18 conciliation will succeed.” Richards v. CH2M Hill, Inc., 26 Cal. 4th 798, 822 (2001); 19 Yanowitz, 36 Cal. 4th at 1059 (quoting Richards, 26 Cal. 4th at 823). “‘[P]ermanence’ . . . 20 should properly be understood to mean the following: that an employer’s statements and 21 actions make clear to a reasonable employee that any further efforts at informal conciliation 22 to obtain reasonable accommodation or end harassment will be futile.” Richards, 26 Cal. 23 4th at 823. 24 As to the gender harassment claim only, Charter correctly notes that Pereda stopped 25 supervising Plaintiff on October 19, 2016, the date when Plaintiff was transferred back to 26 27 28 21 3:19-CV-2392-AJB-MDD Case 3:19-cv-02392-AJB-MDD Document 48 Filed 07/19/21 PageID.2484 Page 22 of 31 1 the DSR position. (See Erway Decl. 4 ¶ 7.) Jose Hernandez was then the supervisor of 2 Plaintiff’s DSR team starting on October 19, 2016 through Plaintiff’s termination on 3 October 13, 2017. (Id. ¶ 14.; Hernandez Decl. ¶ 1 (“I was Plaintiff Stacy Desmond’s direct 4 supervisor when Desmond was a Direct Sales Representative (“DSR”) from October 2016 5 through her termination in October 2017.”)). Plaintiff did not file her DFEH complaint 6 until October 13, 2018, well over a year after Pereda stopped supervising Plaintiff. There 7 are no other allegations of gender harassment by any other individuals other than Pereda, 8 and there are no allegations of any continued gender harassment after Plaintiff was 9 transferred back to the DSR role. (Plaintiff’s Depo., Doc. No. 25-2, at 148:6-10 (Plaintiff 10 answering “no” to the question “Did anybody else ever harass you based on your 11 gender?”).) Thus, the continuing violation doctrine does not apply to save Plaintiff’s gender 12 harassment claim as there is no evidence of any continued gender harassment. This claim 13 is thus time-barred. 14 2. Plaintiff’s Disability Harassment Claim 15 As the Court has already concluded that Plaintiff’s age and gender harassment claims 16 are barred, the Court will address Plaintiff’s disability harassment claim. To establish a 17 claim for harassment under FEHA, a plaintiff must demonstrate each of the following: (1) 18 she is “a member of a protected group”; (2) she was “subjected to harassment because she 19 belonged to this group”; and (3) the alleged harassment “was so severe that it created a 20 hostile work environment.” Lawler v. Montblanc N.A., LLC, 704 F.3d 1235, 1244 (9th Cir. 21 2013). Harassment under FEHA “focuses on situations in which the social environment of 22 23 24 25 26 27 28 4 Plaintiff argues that the declaration of Stacia Erway should be stricken because Erway was not listed on Charter’s Rule 26 disclosure of witnesses. (Doc. No. 39 at 12.) When pressed on this issue at the July 1, 2021 motion hearing, Charter responded that although no supplemental disclosures were made, Erway was disclosed in discovery responses. This is not fatal, however, because “[t]he duty to supplement is satisfied when the additional or corrective information has been otherwise made known during the discovery process or in writing.” Fed. R. Civ. P. 26(e)(1). Thus, disclosure of Erway’s identity in discovery responses was satisfactory supplementation to the initial Rule 26 disclosures. According, Plaintiff’s evidentiary objections to the declaration of Erway is OVERRULED. 22 3:19-CV-2392-AJB-MDD Case 3:19-cv-02392-AJB-MDD Document 48 Filed 07/19/21 PageID.2485 Page 23 of 31 1 the workplace becomes intolerable because the harassment (whether verbal, physical, or 2 visual) communicates an offensive message to the harassed employee.” Roby v. McKesson 3 Corp., 47 Cal. 4th 686, 706 (2009) (emphasis omitted). Liability for harassment may arise 4 when the plaintiff’s workplace is “permeated” with conduct directed at that person that is 5 “sufficiently severe or pervasive to alter the conditions of the victim’s employment and 6 create an abusive working environment.” Lyle v. Warner Bros. Television Prods., 38 Cal. 7 4th 264, 279 (2006) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). 8 However, FEHA is not a “civility code,” and it does not bar conduct just because it may be 9 offensive. Id. at 295. Additionally, there must be a “concerted pattern of harassment of a 10 repeated, routine or a generalized nature.” Aguilar v. Avis Rent A Car Sys., Inc., 21 Cal. 11 4th 121, 130–31 (1999); see also Hughes v. Pair, 46 Cal. 4th 1035, 1043 (2009) (unless 12 the harassing conduct is “severe in the extreme,” there is no recovery “for harassment that 13 is occasional, isolated, sporadic, or trivial.”) (quoting Lyle, 38 Cal. 4th at 283–84). 14 As for disability harassment, Plaintiff only alleges two statements that can 15 reasonably be considered related to her disability. First, Plaintiff alleges that “she was made 16 fun of for crying because of pain related to her disability.” (Doc. No. 39 at 26.) Specifically, 17 Plaintiff alleges that Workman nicknamed her “Waterfalls.” (Id.) Plaintiff points out that 18 Workman stated in an interview, “[w]hen she first met me, she hugged me, she started 19 crying because she was in pain because of her neck.” (Id.) However, Workman also stated 20 that Plaintiff was given this nickname as a “term of endearment” because Plaintiff “cries 21 all the time for everything.” (Exhibit 92 to Mirch Decl.) While Plaintiff has raised an 22 arguably unprofessional statement inappropriate for the workplace, Plaintiff has not 23 adequately shown that this nickname is related to her disability in such a way that is 24 sufficiently severe or pervasive. Plaintiff points to Workman’s statement during an 25 interview regarding Workman’s first encounter with Plaintiff, but does not explain how 26 this nickname is sufficiently associated with Plaintiff’s disability, or that Plaintiff was even 27 aware that the nickname was related to her disability. See Faragher v. City of Boca Raton, 28 524 U.S. 775, 788 (1998) (“[S]imple teasing, offhand comments, and isolated incidents 23 3:19-CV-2392-AJB-MDD Case 3:19-cv-02392-AJB-MDD Document 48 Filed 07/19/21 PageID.2486 Page 24 of 31 1 (unless extremely serious) will not amount to discriminatory changes in the ‘terms and 2 conditions of employment’” in the context of a Title VII suit. (internal citations omitted)); 3 Lee v. Eden Med. Ctr., 690 F. Supp. 2d 1011, 1025 (N.D. Cal. 2010) (“[Plaintiff] alleges 4 stray remarks and offhand comments which do not rise to the level of a hostile work 5 environment.”). 6 Second, Plaintiff argues that “she was ridiculed about her weight” by Workman. 7 (Doc. No. 39 at 26.) Plaintiff cites to Exhibit 18 of the Mirch declaration. But Exhibit 18, 8 notes from the interview of Jose Hernandez revealed that Hernandez believed “the 9 comment was not directed at [Plaintiff] but [Hernandez] but [Plaintiff] took it that way 10 because she was there. . .” (Exhibit 18 to Mirch Decl.) Furthermore, Hernandez qualifies 11 that “[Workman] may not have mentioned that I am overweight but [Workman] said her 12 husband was overweight too.” (Id.) In any event, relevant to this statement, Plaintiff does 13 not allege that being overweight was part of, or exacerbated, her shoulder and neck 14 disability. 15 Finally, Plaintiff’s other complaints about her treatment at work have no relation to 16 her disability: she claims that she was denied vacation time, was told that she could be 17 terminated for anything at any time, was denied her MDU role, and that Hernandez 18 encouraged her to knock on additional doors to meet her sales quota. (Doc. No. 39 at 26.) 19 Setting aside that Plaintiff has not shown that these actions are sufficiently severe or 20 pervasive to constitute harassment, Plaintiff does not contend that this treatment was any 21 different from the way non-disabled employees were treated. See Arteaga, 163 Cal. App. 22 4th at 344. 23 24 Accordingly, the Court GRANTS summary judgment to Charter on Plaintiff’s disability harassment claim. 25 I. Plaintiff’s Derivative Claims 26 Next, Charter argues that Plaintiff’s derivative claims—(1) wrongful termination, 27 (2) failure to prevent retaliation, discrimination, and harassment, (3) intentional infliction 28 of emotional distress (“IIED”), and (4) negligent infliction of emotional distress 24 3:19-CV-2392-AJB-MDD Case 3:19-cv-02392-AJB-MDD Document 48 Filed 07/19/21 PageID.2487 Page 25 of 31 1 (“NIED”)—fail because they are derivative of Plaintiff’s underlying discrimination, 2 retaliation, and harassment claims. (Doc. No. 25-1 at 28.) The Court agrees. Because 3 Plaintiff has not shown she can prevail on her discrimination, retaliation, and harassment 4 claims, the Court GRANTS summary judgment to Charter as to all claims which are 5 premised on discrimination, retaliation, and harassment. Merrick v. Hilton Worldwide, Inc., 6 867 F.3d 1139, 1150 (9th Cir. 2017) (“Merrick’s other claims are derivative of his FEHA 7 age discrimination claim, and so necessarily fail along with that claim.”); Tumblin v. USA 8 Waste of California, Inc., No. CV 16–2902 DSF (PLAx), 2016 WL 3922044, at *8 (C.D. 9 Cal. July 20, 2016) (a plaintiff failing to state a claim for age discrimination under FEHA 10 could not state a derivative claim of wrongful termination in violation of public policy); 11 Sneddon v. ABF Freight Syss., 489 F. Supp. 2d 1124, 1131 (S.D. Cal. 2007). 5 12 J. 13 Charter moves for summary judgment on Plaintiff’s claim for breach of implied 14 contract. In Plaintiff’s breach of implied contract claim, Plaintiff alleges “[i]mplicit in the 15 contract of employment is Spectrum’s obligation to follow all state, federal, and/or industry 16 rules (including its own compliance with the same rules & regulations) regarding 17 workplace safety and employment practices.” (Compl. ¶ 74.) Charter argues it is entitled 18 to summary judgment because it had an integrated written at-will policy, which stated that 19 Plaintiff could be terminated without cause. (Doc. No. 25-1 at 29–30.) Plaintiff’s Breach of Implied Contract Claim 20 A plaintiff “cannot state a claim for breach of implied contract by relying exclusively 21 on a policy document containing an express disclaimer” of a contractual relationship. See 22 23 24 25 26 27 28 5 Plaintiff’s emotional distress claims fail for the additional reason that under California law, claims for negligent and intentional infliction of emotional distress made within the context of the employment relationship are within the exclusive remedy provisions of the California Workers’ Compensation Act. See Cole v. Fair Oaks Fire Protection District, 43 Cal. 3d 148, 160–61 (1987). Additionally, a necessary element of a claim for intentional infliction of emotional distress is outrageous conduct by the defendant. As Plaintiff has failed to adequately establish a claim based on discrimination, harassment, or retaliation, Plaintiff fails to allege outrageous conduct by Charter. See Janken v. GM Hughes Elecs., 46 Cal. App. 4th 55 (1996). 25 3:19-CV-2392-AJB-MDD Case 3:19-cv-02392-AJB-MDD Document 48 Filed 07/19/21 PageID.2488 Page 26 of 31 1 Lillie v. ManTech Int’l Corp., 2017 WL 3498618, at *8 (C.D. Cal., Aug. 14, 2017). 2 Although “a company policy, such as that evidenced in a handbook or employer policy 3 memorandum, may give rise to a contract between employer and employee, courts have 4 generally held that a policy containing an express disclaimer creates no enforceable 5 contractual rights.” See id.; see also Xin Liu v. Amway Corp., 347 F. 3d 1125, 1138 (9th 6 Cir. 2003) (dismissing plaintiff’s breach of implied contract claim because “explicit at-will 7 provisions contained in her employment letter and employee handbook suggest that no 8 implied-in-fact contract was created that limited [defendant’s] ability to terminate 9 employment at any time”). 10 Here, first and foremost, the uncontroverted evidence in the record shows that 11 Plaintiff was an at-will employee. Charter offers as evidence Plaintiff’s Employee 12 Handbook Acknowledgement, which Plaintiff signed upon her commencement of 13 employment with Time Warner, prior to the merger with Charter, acknowledging her status 14 as an at-will employee. (See Exhibit 1 to Erway Decl.) Charter also provides relevant 15 portions of Charter’s Employee Handbook, which confirms Plaintiff’s status as an at-will 16 employee, and states that Charter’s Handbook and the policies contained therein do not 17 create any implied contract between Charter and Plaintiff. (Id. (“An employment-at-will 18 relationship exists between Charter and its employees, meaning both parties have the right 19 to end the employment relationship at any time, for any reason, with or without cause or 20 notice.”).) 21 Plaintiff argues that while she might have entered into an at-will employment 22 agreement with Time Warner, she did not sign an employment agreement with Charter. 23 However, Plaintiff admits in her deposition that she understood her employment with 24 Charter was at-will. Plaintiff was asked “[a]nd you understood that you were an at-will 25 employee at Charter. Is that correct?” to which Plaintiff replied, “[i]sn’t everybody an at- 26 will employee?” (Plaintiff’s Depo., at 22:5-10.) Furthermore, the following questions were 27 posed to Plaintiff: 28 Q. Did Charter represent to you that you were an at-will employee? 26 3:19-CV-2392-AJB-MDD Case 3:19-cv-02392-AJB-MDD Document 48 Filed 07/19/21 PageID.2489 Page 27 of 31 1 A. I believe so. 2 Q. Okay. And that status never changed. Is that right? 3 A. I believe that’s correct. 4 (Id. at 22:18–23.) Plaintiff does not provide any evidence to the contrary to support her 5 claim that an employment agreement for cause existed. Accordingly, a finding of at-will 6 employment is proper. 7 Additionally, to the extent Plaintiff claims Charter breached an implied contract with 8 Plaintiff to not violate its own policies prohibiting discrimination and harassment, 9 Plaintiff’s claim fails as a matter of law. Charter’s Handbook explicitly states that “the 10 policies and information contained in it, do not alter the employment-at-will relationship 11 in any way, nor does it constitute a contract of employment, or create any type of express 12 or implied contractual promise or obligation.” (Exhibit 1 to Erway Decl.) A document 13 “which states on its face that it ‘is not intended to constitute or create, nor is it to be 14 construed to constitute or create, the terms of an employment contract’ cannot be a promise 15 or a commitment to future behavior.” Bianco v. H.F. Ahmanson & Co., 897 F. Supp. 433, 16 439 (C.D. Cal. 1995). Accordingly, Plaintiff may not divine rights from a document where 17 none exists. 18 19 In sum, the Court GRANTS summary judgment to Charter as to Plaintiff’s breach of implied contract claim. 20 K. Plaintiff’s Wage Claims 21 Plaintiff claims that she was a non-exempt hourly employee entitled to unpaid 22 wages. Charter moves for summary judgment, arguing that Plaintiff was in fact an exempt 23 outside sales employee. (Doc. No. 25-1 at 31.) Plaintiff responds by asserting that a triable 24 issue of fact exists as to whether Plaintiff was an “exempt” outside commissioned 25 salesperson. (Doc. No. 39 at 30.) 26 Under the California Labor Code and applicable California Industrial Welfare 27 Commission (“IWC”) Wage Order, “outside salespersons” are exempt from wage and hour 28 claims. See Cal. Labor Code § 1171; Wage Order No. 4–2001(1)(C). The IWC defines an 27 3:19-CV-2392-AJB-MDD Case 3:19-cv-02392-AJB-MDD Document 48 Filed 07/19/21 PageID.2490 Page 28 of 31 1 outside salesperson as “any person, 18 years of age or over, who customarily and regularly 2 works more than half the working time away from the employer’s place of business selling 3 tangible or intangible items or obtaining orders or contracts for products, services or use of 4 facilities.” Wage Order No. 42001(2)(M) (emphasis added). “Unlike the corresponding 5 federal provision, California’s wage order definition takes a purely quantitative approach 6 and focuses exclusively on whether the employee spends more than half of the workday 7 engaged in sales activities outside the office.” Duran v. U.S. Bank Nat’l Ass’n, 59 Cal. 4th 8 1, 26 (2014) (internal quotation marks omitted). The determination of whether an employee 9 is an outside salesperson is “a mixed question of law and fact.” Ramirez v. Yosemite Water 10 Co., Inc., 20 Cal. 4th 785, 794 (1999). “[U]nder California law, exemptions from statutory 11 mandatory overtime provisions are narrowly construed.” Id. “[T]he employer bears the 12 burden of proving the employee’s exemption.” Id. at 795. 13 To meet this burden, Charter provides that Plaintiff admitted in her deposition that 14 she spent more than half of her working time out in the field, selling Charter’s products 15 and services. (See Plaintiff’s Depo., at 28:7-32:22 (when posed the question, “Okay. And 16 so you would spend the majority of your days out in the field, carrying this equipment, 17 selling Charter products to residences. Is that right?” Plaintiff answered “[t]hat is correct”). 18 In response, Plaintiff briefly argues that notwithstanding Charter’s argument that 19 Plaintiff spent more than 50% of her time on outside sales activities, it would not excuse 20 Charter from its failure to pay commissions due. But Plaintiff does not cite to any 21 competent evidence demonstrating that Plaintiff is owed any commission. Plaintiff merely 22 cites to her Complaint regarding unpaid commission but at the summary judgment stage, 23 Plaintiff cannot “rest upon the mere allegations or denials of [her] pleading but must instead 24 produce evidence that sets forth specific facts showing that there is a genuine issue for 25 trial.” See Estate of Tucker, 515 F.3d at 1030. Plaintiff has failed to do so. 26 There are sufficient undisputed material facts for the Court to determine as a matter 27 of law that Plaintiff is an exempt outside salesperson. The parties do not dispute that 28 Plaintiff spent more than 50% of her working time in the field, selling Charter’s products 28 3:19-CV-2392-AJB-MDD Case 3:19-cv-02392-AJB-MDD Document 48 Filed 07/19/21 PageID.2491 Page 29 of 31 1 and services. As such, Plaintiff qualifies as an exempt outside sales person. Because wage 2 and hour claims cannot be brought by exempt outside sales employees, the Court 3 GRANTS summary judgment in favor of Charter as to Plaintiff’s wage claims. 4 L. 5 Charter next moves for summary judgment on Plaintiff’s claim that she was defamed 6 when Charter allegedly made false statements to other Charter employees concerning (1) 7 Plaintiff’s requirement for accommodation for her disability, (2) Plaintiff’s inability to 8 perform the MDU role, and (3) Plaintiff’s termination for failing to meet her performance 9 expectations. (Doc. No. 39 at 18–19.) Plaintiff’s Defamation Claim 10 “Defamation is an invasion of the interest in reputation. The tort involves the 11 intentional publication of a statement of fact which is false, unprivileged, and has a natural 12 tendency to injure or which causes special damage.” Ringler Associates Inc. v. Maryland 13 Cas. Co., 80 Cal. App. 4th 1165, 1179 (2000). “Publication, which may be written or oral, 14 is defined as a communication to some third person who understands both the defamatory 15 meaning of the statement and its application to the person to whom reference is made.” Id. 16 Publication to a single individual is sufficient to satisfy the publication element of a 17 defamation claim. Id.; see Smith v. Maldonado, 72 Cal. App. 4th 637, 645 (1999). Cal. Civ. 18 Code § 47(c) extends a conditional privilege against defamation claims to communication 19 made without malice on a subject of mutual interest. “[B]ecause an employer and its 20 employees have a common interest in protecting the workplace from abuse, an employer’s 21 statements to employees regarding the reasons for termination of another employee 22 generally are privileged.” King v. United Parcel Service, Inc., 152 Cal. App. 4th 426, 440 23 (2007); see also Fisher v. Lucky Stores, *865 Inc., No. C 93–1019 FMS, 1994 WL 125104, 24 at *6 (N.D. Cal. Apr. 4, 1994). 25 In this case, Plaintiff’s defamation claim centers on Charter’s allegedly false 26 statements made to Charter employees that Plaintiff required accommodation for her 27 disability, that Plaintiff was unable to perform the MDU role, and that Plaintiff was 28 terminated for failing to meet her performance expectations. (Doc. No. 39 at 18–19.) 29 3:19-CV-2392-AJB-MDD Case 3:19-cv-02392-AJB-MDD Document 48 Filed 07/19/21 PageID.2492 Page 30 of 31 1 However, Plaintiff cannot assert a defamation claim based on these statements for at least 2 two reasons. First, Plaintiff has not provided any evidence to show that Charter’s 3 statements regarding her disability were false. For example, statements communicating that 4 Plaintiff had medical restrictions and required accommodation were true, and in fact, form 5 the basis of Plaintiff’s failure to provide reasonable accommodation claim. Thus, these 6 statements cannot support Plaintiff’s defamation claim. Second, any assertions concerning 7 Plaintiff’s failure to meet her sales quota, and subsequently being fired, are privileged 8 communications as long as they are not made with malice. Here, Plaintiff fails to provide 9 any evidence tending to show that Charter made such statements with malice. Thus, the 10 Court finds that any statements regarding the reasons Charter terminated Plaintiff are 11 privileged from a defamation claim under California law. 12 13 In summation, the Court GRANTS Charter’s motion for summary judgment as to Plaintiff’s defamation claim. 14 M. 15 Finally, Charter moves for summary judgment on Plaintiff’s Unruh Act claims. 16 (Doc. No. 25-1 at 32–33.) In general terms, the Unruh Act provides that “all persons are 17 entitled to free and equal accommodations, privileges, facilities and services in all business 18 establishments. It secures equal access to public accommodations and prohibits 19 discrimination by business establishments.” Black v. Dep’t of Mental Health, 83 Cal. App. 20 4th 739 (2000). The Unruh Act, however, “has no application to employment 21 discrimination.” Rojo v. Kliger, 52 Cal. 3d 65 (1990). Plaintiff does not provide any 22 contrary authority. Because Plaintiff’s Unruh Act claim fails as a matter of law, the Court 23 GRANTS summary judgment in favor of Charter on this claim. 24 // 25 // 26 // 27 // 28 // Plaintiff’s Unruh Act Claim 30 3:19-CV-2392-AJB-MDD Case 3:19-cv-02392-AJB-MDD Document 48 Filed 07/19/21 PageID.2493 Page 31 of 31 1 IV. CONCLUSION 2 For all the reasons provided herein, the Court GRANTS Charter’s motion for 3 summary judgment in its entirety. (Doc. No. 25.) The Court of Clerk is DIRECTED to 4 CLOSE this case. 5 6 IT IS SO ORDERED. Dated: July 19, 2021 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 31 3:19-CV-2392-AJB-MDD

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