Deaguiar v. Whole Foods Market, Inc. et al
Filing
87
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT re 50 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 2/12/13. "The Clerk of Court is directed to enter judgment in favor of Whole Foods and to close this file." ; (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
)
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Plaintiff,
)
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vs.
)
)
)
MRS. GOOCH’S NATURAL
FOOD MARKET, INC., dba
)
WHOLE FOODS MARKET,
)
INC.,
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Defendant.
)
________________________ )
HERBERT DEAGUIAR, JR.,
Civ. No. 12-00100 SOM/KSC
ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
This action, removed based on diversity of citizenship,
alleges age discrimination claim and intentional infliction of
emotional distress (“IIED”) solely under Hawaii law.
Plaintiff
Herbert DeAguiar was 50 years old when he was fired by Defendant
Mrs. Gooch’s Natural Foods Market, Inc., dba Whole Foods Market
(“Whole Foods”).
Before the court is Whole Foods’ motion for
summary judgment (the “Motion”).
I.
The court grants the Motion.
BACKGROUND.
DeAguiar was hired by Whole Foods as the Bakery Team
Leader on July 21, 2008.
DeAguiar Decl. ¶¶ 2,9.
On May 21,
2010, Whole Foods issued DeAguiar a “Corrective Counseling
Notice” that stated that his performance was “unsatisfactory in a
number of areas and has contributed to the inconsistent financial
performance and overall execution of the team.”
Corrective Counseling Notice, ECF No. 73-2.
5/21/10
At around this
time,1 DeAguiar was allegedly called into the Whole Foods
management office to talk with Store Team Leader Robin Burton and
Assistant Store Team Leader Vishan Dookhu.
DeAguiar Decl. ¶ 12.
According to DeAguiar, Burton and Dookhu “suggested that
[DeAguiar] step down from Bakery Team Leader to Assistant Bakery
Team Leader so they could bring in someone with more experience
to train [him] in the Whole Foods way of running the bakery.”
Id.
On May 24, 2010, DeAguiar told Burton and Dookhu that he was
stepping down.
5/24/10 DeAguiar Email, ECF No. 51-14.
Whole Foods hired Kara Jones, who was approximately 25
years old, as its new Bakery Team Leader.
Id. ¶¶ 13-15.
On her
first day of work, Jones allegedly told DeAguiar that he had
“sounded younger on the phone.”
Id. ¶ 15.
DeAguiar also asserts
that Jones failed to train him and instead trained an employee
under the age of 35.
Id. ¶ 16.
DeAguiar says this made him feel
“cheated” because he “had stepped down with the expectation that
[he] would receive training on how to be a better Bakery Team
Leader.”
Id. ¶ 17.
DeAguiar says that, despite his repeated
requests, Jones never offered him satisfactory training.
Id.
¶¶ 18-20.
1
DeAguiar says this meeting occurred in June 2010. See
DeAguiar Decl. ¶ 12. However, on May 24, 2010, he sent an email
to Whole Foods referring to this conversation and indicating that
it took place “last week.” 5/24/10 DeAguiar Email to Whole
Foods, ECF No. 51-14.
2
On September 20, 2010, Jones issued DeAguiar a second
“Corrective Counseling Notice.”
Notice, ECF No. 73-3.
9/20/10 Corrective Counseling
According to this second Corrective
Counseling Notice, DeAguiar failed to date bread he pulled from
the freezer, failed to restock two kinds of bread, and failed to
properly rotate brownies and cookies.
Id.
DeAguiar received a third Corrective Counseling Notice
on October 5, 2010.
No. 73-4.
10/05/10 Corrective Counseling Notice, ECF
This Corrective Counseling Notice complained that
DeAguiar’s work performance was unsatisfactory because he
“consistently show[ed] a lack of attention to detail when
preforming [sic] tasks in the department.”
Id.
In particular,
DeAguiar was written up for having left a rack of burnt granola
by the ovens overnight, omitting over 12 cases of cookies from
the Bakery Department inventory, and incorrectly donating a
delivery of bread upon receipt.
Id.
Jones pointed out to Lindsay Mucha, the Store Team
Leader, what Jones viewed as DeAguiar’s numerous performance
problems, such as unrecorded “spoilage” totaling $900; failure to
pull invoices on bakery goods; and a statement to Jones that
Whole Foods was out of holiday chocolate when, in fact, there was
an entire pallet of chocolate in the back.
12/13/10, ECF No. 73-6.
Kara Jones Email,
Jones asked Mucha whether Whole Foods
was “good to move forward with separating Herb,” and Mucha
3
informed Jones that termination would occur.
Id.
There is no
dispute that the person who decided to terminate DeAguiar was
Mucha.
Pl.’s Concise Statement of Facts ¶ 20, ECF No. 73; Def.’s
Concise Statement of Facts ¶ 20, ECF No. 51.
See also Local Rule
56.1.
DeAguiar complains that he was unfairly disciplined and
fired for things that he had not done.
37.
See DeAguiar Decl. ¶¶ 25-
DeAguiar also says: “Whole Foods Market discriminated
against me because of my age, and I noticed that their general
hiring practices reflected that they did not like older
employees.”
Id. ¶ 42.
DeAguiar explains:
While I could not directly hire new team
members, I would interview prospective
employees and refer them to store management.
When I would send qualified older people to
the Store Team Leader to be interviewed, they
were often rejected, in favor of younger
college students. I eventually stopped
referring older persons to management because
I knew that they wouldn’t be selected.
Id.
DeAguiar asserts that “most of the older Team Leaders who
were hired for the grand opening of the store” were subsequently
fired.
Id. ¶ 43.
more favorably.
DeAguiar also complains that Jones was treated
DeAguiar says that he saw Jones make mistakes
for which she was “never reprimanded."
Id. ¶ 38.
DeAguiar also
notes that Jones was demoted after he was terminated, which he
says "shows that she was not a competent Bakery Team Leader."
Id. ¶ 48.
4
On April 1, 2011, the Hawaii Civil Rights Commission
received DeAguiar’s charge of discrimination against Whole Foods
(dated by DeAguiar as signed on March 27, 2011).
Discrimination, ECF No. 51-18.
EEOC Charge of
DeAguiar filed a lawsuit in
Hawaii state court on January 13, 2012.
ECF No. 1-2.
Whole
Foods removed the action to this court on February 17, 2012.2
ECF No. 1.
action.
This court has diversity jurisdiction over this
See Order Denying Plaintiff’s Motion to Remand, ECF No.
49.
DeAguiar’s Complaint asserts two grounds for relief:
age discrimination in violation of Hawaii Revised Statutes 3782(1)(A), and intentional infliction of emotional distress
(“IIED”).
II.
STANDARD.
Summary judgment shall be granted when “the pleadings,
the discovery and disclosure materials on file, and any
affidavits show that there is no genuine issue as to any material
fact and that the movant is entitled to judgment as a matter of
law.”
Fed. R. Civ. P. 56(c).
One of the principal purposes of
summary judgment is to identify and dispose of factually
Celotex Corp. v. Catrett, 477
unsupported claims and defenses.
U.S. 317, 323-24 (1986).
Accordingly, “[o]nly admissible
2
Whole Foods’ removal was timely because Whole Foods did
not receive notice of DeAguiar’s lawsuit until January 19, 2012.
See 28 U.S.C. § 1446(b); Notice of Removal at 1, ECF No. 1.
5
evidence may be considered in deciding a motion for summary
judgment.”
Miller v. Glenn Miller Prods., Inc., 454 F.3d 975,
988 (9th Cir. 2006).
Summary judgment must be granted against a
party that fails to demonstrate facts to establish what will be
an essential element at trial.
See Celotex, 477 U.S. at 323.
A
moving party has both the initial burden of production and the
ultimate burden of persuasion on a motion for summary judgment.
Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102
(9th Cir. 2000).
The burden initially falls on the moving party
to identify for the court “those portions of the materials on
file that it believes demonstrate the absence of any genuine
issue of material fact.”
T.W. Elec. Serv., Inc. v. Pac. Elec.
Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987) (citing
Celotex Corp., 477 U.S. at 323); accord Miller, 454 F.3d at 987.
“A fact is material if it could affect the outcome of the suit
under the governing substantive law.”
Miller, 454 F.3d at 987.
“A genuine dispute arises if the evidence is such that
a reasonable jury could return a verdict for the nonmoving
party.”
California v. Campbell, 319 F.3d 1161, 1166 (9th Cir.
2003).
Accord Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134
(9th Cir. 2000).
On a summary judgment motion, “the nonmoving party’s
evidence is to be believed, and all justifiable inferences are to
6
be drawn in that party’s favor.”
Miller, 454 F.3d at 988
(quotation marks and brackets omitted).
II.
ANALYSIS.
A.
DeAguiar Does Not Establish That There are
Questions of Fact Concerning Age Discrimination.
DeAguiar alleges that Whole Foods engaged in
“discriminatory treatment of older persons in favor of younger
and inexperienced persons, which led to the instant termination
of Plaintiff from his employment.”
Compl. ¶ 20.
At the hearing
on this Motion, DeAguiar’s counsel asserted that he was asserting
two theories of age discrimination: (1) pattern-or-practice
discrimination and (2) disparate treatment.
“Under the pattern-or-practice paradigm, a plaintiff
must prove, by circumstantial or direct evidence, that an
employer’s past actions evidence a pattern of illegal
discrimination against a protected class.”
Shoppe v. Gucci
America, Inc., 94 Haw. 368, 377 n.2, 14 P.3d 1049, 1058 n.2
(2008).
A plaintiff has the initial burden of demonstrating that
“unlawful discrimination has been the regular policy of the
employer, i.e., that discrimination was the company’s standard
operating procedure — the regular rather than the unusual
practice.”
French v. Hawaii Pizza Hut, Inc., 105 Haw. 462, 474,
99 P.3d 1046, 1058 (2004) (internal quotation marks and citation
omitted).
“The focus of this inquiry is on a pattern of
7
discriminatory decision making, not on individual employment
decisions.”
Id.
Under an individualized disparate treatment theory of
discrimination, however, a plaintiff must prove “intentional
discrimination against an individual who belongs to a protected
class.”
Shoppe, 94 Haw. at 378, 14 P.3d at 1059.
At the hearing, DeAguiar urged the court to undertake a
“mixed motive” analysis in reviewing his age discrimination
claims.
Under a “mixed motive” approach, “the plaintiff must
show by direct evidence that discriminatory factors motivated the
adverse employment decision.”
Id.
But see Harris v. City of
Santa Monica, 2013 WL 452959, at *25 (Cal. Feb. 7, 2013) (holding
that even if discrimination plays a role in an employee’s
termination, the employer will not be liable if the employee
would have been terminated for poor performance).
There is no
direct evidence of age discrimination in the record.
DeAguiar
alleges that Jones told him when they first met that he had
sounded younger on the phone, but this is only a “stray remark”
that “is at best weak circumstantial evidence of discriminatory
animus.”
1993).
Nesbit v. Pepsico, Inc., 994 F.2d 703, 705 (9th Cir.
Moreover, Jones was not the person authorized to fire
DeAguiar.
The court therefore examines the circumstantial
evidence DeAguiar offers in support of both his pattern-orpractice claim and his disparate impact theory.
8
When a plaintiff attempts to prove either theory of age
discrimination with circumstantial evidence, Hawaii courts have
adopted the burden-shifting analysis set forth by the United
States Supreme Court in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973).
See Schefke v. Reliable Collection Agency,
Ltd., 96 Haw. 408, 425, P.3d 52, 60 (2001).
The McDonnell
Douglas analysis involves three steps:
First, the plaintiff must establish a
prima facie case of discrimination by
demonstrating, by a preponderance of the
evidence, the following four elements: (1)
that plaintiff is a member of a protected
class; (2) that plaintiff is qualified for
the position for which plaintiff has applied
or from which plaintiff has been discharged;
(3) that plaintiff has suffered some adverse
employment action, such as a discharge; and
(4) that the position still exists . . . .
Once the plaintiff establishes a prima facie
case of discrimination, the burden of
production shifts to the defendant to
articulate a legitimate, nondiscriminatory
reason for the adverse employment action . .
. . The employer’s explanation must be in the
form of admissible evidence and must clearly
set forth reasons that, if believed by the
trier of fact, would support a finding that
unlawful discrimination was not the cause of
the challenged employment action . . . .
Although the burden of production is shifted
to the employer, “the ultimate burden of
persuading the trier of fact that the
employer intentionally discriminated against
the plaintiff remains at all times with the
plaintiff.” . . .
Finally, if the employer rebuts the
prima facie case, the burden reverts to the
plaintiff to demonstrate that the defendant’s
proffered reasons were pretextual.
9
Shoppe, 94 Haw. at 378-79, 14 P.3d at 1059-60 (citations
omitted).
With respect to his pattern-or-practice claim, DeAguiar
says that Whole Foods’ “general hiring practices reflected that
they did not like older employees.”
DeAguiar Decl. ¶ 42.
In
support of this assertion, DeAguiar says that “qualified older
people . . . were often rejected, in favor of younger college
students.”
Id.
DeAguiar also says that “most of the older Team
Leaders who were hired for the grand opening of the store are no
longer employed with Whole Foods Market.”
Id. ¶ 43.
DeAguiar
offers the following examples: “Larry Hoover and Ray Stockton,
both original Store Team Leaders for Whole Foods, and both over
the age of 50, were terminated from Whole Foods.
Carl Matsuda,
the Seafood Team Leader, who was over 50 years old, was
terminated from Whole Foods over a simple mistake.”
Id.
These allegations do not amount to a prima facie case
of discrimination.
DeAguiar nowhere alleges that Hoover,
Stockton, and Masuda were qualified for the positions they held
when they were discharged; nor does DeAguiar allege that their
positions still exist.
Thus, DeAguiar fails to even allege a
prima facie case with regard to his pattern-or-practice claim.3
3
To the extent DeAguiar is relying on Whole Foods' alleged
pattern or practice of discriminating against older employees as
evidence of disparate treatment, this reliance is misplaced. A
list of names and ages of several employees who were terminated,
with no context or detail, does not establish a pattern or
10
With regard to his disparate treatment claim, DeAguiar
says that he establishes a prima facie case of age discrimination
because: “(1) he is over 40 years old; (2) he was qualified to
perform the duties of a bakery manager; (3) his employment was
terminated; and (4) a younger person replaced him.”
Opp’n at 25.
There is no dispute that DeAguiar is a member of a protected
class and that he was terminated.
Whole Foods challenges
DeAguiar’s assertions that he was qualified, Mot. at 8-9, but on
a summary judgment motion, all inferences must be drawn in favor
of the nonmoving party.
factor.
Whole Foods is silent as to the fourth
Although DeAguiar asserts that he was replaced by a
younger person, there is no evidence in the record as to whether
DeAguiar was replaced at all.4
For this reason, the court
questions whether DeAguiar has satisfied his initial burden of
establishing a prima facie case.
practice of age discrimination. Nor is it clear who the
decisionmakers were or whether they were aware of each other's
actions. Because DeAguiar does not meet his burden of
establishing pretext, Whole Foods is entitled to summary judgment
on DeAguiar's age discrimination claim.
4
Under Hawaii law, there is a 180-day statute of
limitations that bars any claim based on DeAguiar’s decision to
step down from Bakery Team Leader. See Haw. Rev. Stat. § 368-11.
Because DeAguiar filed his charge of discrimination against Whole
Foods on April 1, 2011, 312 days after he stepped down, his
demotion cannot serve as an adverse employment action for the
purposes of this lawsuit. Therefore, although DeAguiar does
identify Jones (a woman in her 20s) as his replacement as Bakery
Team Leader, the relevant inquiry goes to who replaced DeAguiar
when he was terminated as Assistant Bakery Team Leader.
11
Even assuming DeAguiar has made out a prima facie case
of disparate treatment age discrimination, Whole Foods identifies
ten different performance problems leading to DeAguiar’s
termination.
Mot. at 9.
These are legitimate, nondiscriminatory
reasons for terminating DeAguiar.
See Shoppe, 94 Haw. at 382, 14
P.3d at 1062 (holding that an employee’s failure to perform at
work in a “satisfactory manner” is a legitimate,
nondiscriminatory reason to take adverse employment action).
The
burden therefore shifts to DeAguiar to demonstrate pretext.
DeAguiar does not do this.
To establish pretext, DeAguiar must demonstrate that
Whole Foods’ articulated reasons for terminating him were
dishonest.
Thu Hong Tanaka v. Dep’t of Accounting & Gen. Servs.,
2011 WL 1598718, at *8 (D. Haw. Apr. 27, 2011) (“[C]ourts ‘only
require that an employer honestly believed its reasons for its
actions, even if its reason is foolish or trivial or even
baseless.’”)(citing Villiarimo v. Aloha Island Air, Inc., 281
F.3d 1054, 1063 (9th Cir. 2002)).
Although DeAguiar complains
that he was not actually to blame for the incidents that gave
rise to his termination, he did not tell Whole Foods at the time
he was disciplined that he believed he had been wrongly accused.
DeAguiar acknowledges that he was “given an opportunity to say
anything” but says he decided not to speak up because he “already
knew from the first writeup that [he] was on [his] way out.”
12
DeAguiar Dep. at 55, ECF No. 51-12.
Because there is no evidence
that Mucha had any reason to think that DeAguiar was being blamed
for failings by others, DeAguiar’s protestations in that regard
have no bearing on the pretext issue.
Even if DeAguiar was
wrongly accused, that does not show that Mucha’s decision to fire
him was a pretext for age discrimination by her.
Nor are Jones’s own alleged deficiencies as a Bakery
Team Leader sufficient to establish pretext.
Any such
deficiencies known to Whole Foods may well be evidence of bad
management by Whole Foods in having allowed an allegedly poor
supervisor to evaluate DeAguiar, but, without more, it is not
enough to establish that there is a triable issue as to whether
Whole Foods was seeking to conceal age discrimination.
Nothing
in the record suggests that Whole Foods had any reason to think
that Jones was wrongly attributing any act or omission by someone
else to DeAguiar.
Jones’s allegedly poor supervision skills do
not, on the present record, equate to either mistaken or
deliberately false accusations against a subordinate.
And
although Jones was indisputably younger than DeAguiar, that alone
says nothing about Whole Foods’ motive.
B.
DeAguiar Does Not Establish That There are
Questions of Fact Concerning His IIED Claim.
DeAguiar claims that Whole Foods’ actions “constituted
the intentional infliction of emotional distress.”
Compl. ¶ 21.
Under Hawaii law, a plaintiff asserting an IIED claim must
13
establish that the conduct causing the harm was intentional or
reckless; that the conduct was outrageous; and that the conduct
caused extreme emotional distress.
Young v. Allstate Ins. Co.,
119 Haw. 403, 198 P.3d 666 (Haw. 2008).
Conduct is “outrageous”
if “the recitation of the facts to an average member of the
community would arouse his resentment against the actor, and lead
him to exclaim, ‘Outrageous!’” Id.
Because none of the facts
that DeAguiar cites rises to the level of outrageousness, Whole
Foods is entitled to summary judgment on DeAguiar’s IIED claim.
IV.
CONCLUSION.
For the foregoing reasons, the court grants Whole
Foods’ Motion.
The Clerk of Court is directed to enter judgment
in favor of Whole Foods and to close this file.
IT IS SO ORDERED.
DATED: Honolulu, February 12, 2013.
/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District
Judge
Herbert DeAguiar, Jr. v. MRS. GOOCH’S NATURAL FOODS MARKET, INC.
dba WHOLE FOODS MARKET, Civ No. 12-00100 SOM/KSC; ORDER GRANTING
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
14
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