Kulukulualani v. Tori Richard, Ltd.

Filing 64

ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND DISMISSING PLAINTIFF'S STATE LAW CLAIMS re: 47 . Signed by MAGISTRATE JUDGE KEVIN S.C. CHANG on 6/30/2015. (afc)Excerpt of conclusion:&qu ot;The Court grants summary judgment with respect to Counts I (Title VII discrimination/hostile work environment), IV (Title VII retaliation), and V (to the extent it seeks punitive damages pursuant to § 1981a). The Court DISMISSES Counts II (II ED), III (negligent hiring/supervision/retention), and V (ratification)."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
NALANI KULUKULUALANI,

)
)
Plaintiff,
)
)
vs.
)
)
TORI RICHARD, LTD.; CHRIS )
LYNCH; JOHN DOES 1-10; JANE )
DOES 1-10; DOE PARTNERSHIPS )
1-10; DOE CORPORATIONS 1- )
10; ROE “NON-PROFIT”
)
CORPORATIONS 1-10; AN D ROE )
GOVERNMENTAL ENTITIES 1-10, )
)
Defendants.
)
___________________________ )

CIVIL NO. 14-00028 KSC
ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY
JUDGMENT AND DISMISSING
PLAINTIFF’S STATE LAW
CLAIMS

ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT AND DISMISSING PLAINTIFF’S STATE LAW CLAIMS
Before the Court is Defendants Tori Richard,
Ltd. (“Tori Richard”) and Christopher Lynch’s (“Lynch”)
(collectively “Defendants”) Motion for Summary
Judgment, filed May 6, 2015.

The Court finds this

matter suitable for disposition without a hearing
pursuant to Rule 7.2(d) of the Local Rules of Practice
for the U.S. District Court for the District of Hawaii.
After careful consideration of the parties’
submissions and the applicable law, the Court HEREBY
GRANTS Defendants’ Motion and DISMISSES Plaintiff’s

state law claims for the reasons set forth below.
BACKGROUND
I.

Factual History
This action arises out of Tori Richard’s

termination of Plaintiff on November 12, 2012.
On March 19, 2004, Tori Richard hired Plaintiff
as a sales associate.

Defs.’ Concise Statement of

Facts (“CSF”) at ¶ 1.

Tori Richard then transferred

Plaintiff to its retail division in June 2004, and to
the TRIA department in the fall of 2005.

Id.

According to Tori Richard, Plaintiff’s 2005 transfer
was for the purpose of giving her an opportunity to
succeed notwithstanding her manager, Caroline
McKinney’s (“McKinney”) desire to terminate Plaintiff
due to communication issues.

Id. at ¶ 2.

Plaintiff,

on the other hand, attributes her transfer to an effort
to protect her against retaliation from McKinney.
Pl.’s Statement of Disputed Facts (“SDF”) at ¶ 2.
Plaintiff represents that she did not receive
any disciplinary memos between 2005 and 2012, but Tori
Richard describes Plaintiff’s tenure as replete with
2

poor communication skills and confrontational,
condescending and demanding behavior, with particular
difficulty beginning around June 2012.

Pl.’s SDF at

¶ 5; Defs.’ CSF at ¶ 5.
On June 7, 2012, Plaintiff and Lynch, the
shipping manager, had a verbal exchange concerning
shipping procedures.

Defs.’ CSF at ¶ 6.

Plaintiff

allegedly pushed to have merchandise shipped in
contravention of proper procedure.

Id.

Plaintiff

insists that the shipment could have been processed
utilizing her procedure.

Pl.’s SDF at ¶ 6.

There are

conflicting accounts of what occurred during the
exchange, with Plaintiff claiming that Lynch confronted
her at her desk, where he stood above her, yelled at
her, and threw a pick ticket at her.

Id. at ¶ 5.

Lynch admits to visiting Plaintiff at her desk and
raising his voice, but he claims to have simply dropped
one or two pick tickets on her desk and reiterated
proper shipping procedures.

Defs.’ CSF at ¶ 7; id.,

Decl. of Christopher Lynch (“Lynch Decl.”) at ¶ 14.

3

In an ensuing exchange that day, Plaintiff
purportedly visited the shipping department, where she
confronted Lynch, accused him of not knowing his job,
and stated that she knew more than he did.
at ¶ 8.

Defs.’ CSF

Plaintiff accuses Lynch of screaming at her

and claims that she told him not to come to her desk,
nor throw things at her.

Pl.’s SDF at ¶ 7.

Lynch complained to his supervisor, Robert
Karpowicz (“Karpowicz”), Vice President of Operations,
and Jo Kerns (“Kerns”), Human Resources Director,
about Plaintiff’s conduct.

Defs.’ CSF at ¶ 9.

Meanwhile, on June 8, 2012, Plaintiff sent an email to
Kerns expressing that she felt harassed.

Id. at ¶ 10.

Kerns responded by commencing an investigation
into the events on June 7, 2012, and Plaintiff’s
complaint of harassment.

Defs.’ CSF at ¶ 11; Pl.’s

Statement of Material Facts (“SMF”) at ¶ 5.

Plaintiff,

Kerns, and Joshua Feldman (“Feldman”), Tori Richard’s
President and Chief Executive Officer, met on June 11,
2012.

Defs.’ CSF at ¶ 12.

During the meeting, Feldman

queried Plaintiff about her harassment claim.
4

Plaintiff responded that Lynch’s late May/early June
2012 emails had a tone, which she characterized as
defensive, demeaning, non-responsive, and
inappropriate.

Id.

Plaintiff also reported that

Lynch’s emails to other employees, such as Plaintiff’s
supervisor, Sue Sanders, were friendlier and less
abrupt.

Id. at ¶ 13.

At the meeting, Plaintiff never

reported that she felt harassed by Lynch based on her
gender.

Id. at ¶ 14.
As part of the investigation, Kerns interviewed

Sanders, who witnessed the confrontation between
Plaintiff and Lynch at Plaintiff’s desk.
¶ 5.

Pl.’s SMF at

Sanders reported that she heard Lynch throw

something onto Plaintiff’s desk, that both Plaintiff
and Lynch were agitated with raised voices, and that
Plaintiff had handled herself well.

Id.

Although Plaintiff claims that Lynch was not
disciplined, she and Lynch received disciplinary memos
concerning their inappropriate behavior from Kerns on
June 27, 2012, and July 9, 2012, respectively.

5

Defs.’

CSF at ¶ 8, Exs. J & K.

With respect to Plaintiff,

Kerns concluded that 1) Plaintiff had made
condescending and disrespectful comments to Lynch;
2) Plaintiff made statements outside the scope of her
job; and 3) there was no basis of harassment from Lynch
based on the exchange of late May/early June 2012
emails.

Defs.’ CSF at ¶ 17, Ex. J.

Kerns asked

Plaintiff to assume responsibility for her conduct.
Id.

On June 29, 2012, Sanders coached Plaintiff about

the incident and her communication and interpersonal
skills.

Id. at ¶ 18.
Lynch’s disciplinary memo concluded that he

made condescending and unprofessional comments.
¶ 19, Ex. K.

Id. at

Lynch was asked to assume responsibility

for his conduct, to “walk the higher road” as a
manager, and to explain the rationale of policies to
others so they understand why Tori Richard does things.
Id.

Ultimately, Kerns concluded that Lynch was

unprofessional because he confronted Plaintiff with a
change in procedures and did not provide a rationale

6

for the change.

Pl.’s SMF at ¶ 6.

She also concluded

that it was unprofessional for Lynch to throw the pick
tickets.

Id.

Kerns additionally found that Plaintiff

and Lunch “acted inappropriately and unprofessionally
on June 7th.

In [Kerns’] opinion, both employees were

guilty of raising their voices, creating a scene, being
confrontational, disrespectful and rude.

However,

[Kerns] did not conclude that [Lynch] harassed
[Plaintiff] on that date or prior to that date.”

Pl.’s

SMF at ¶ 7.
On September 4, 2012, there was an exchange
between Plaintiff and Gina Maran (“Maran”), a new
shipping clerk.

Maran reported to Kerns that Plaintiff

confronted her regarding shipping charges and a missing
pair of pants in a harsh manner that caused Maran to
cry.

Defs.’ CSF at ¶ 20; Pl.’s SDF at ¶ 20.

Kerns met

with Plaintiff to discuss the exchange, but Plaintiff
did not want to proceed until Sanders could be present.
Defs.’ CSF at ¶ 23; Pl.’s SDF at ¶ 23.

In response to

this incident, Karpowicz complained to Sanders about

7

Plaintiff’s abusive behavior.

Defs.’ CSF at ¶¶ 21-22.

A follow-up meeting occurred on September 22,
2012, with Plaintiff, Sanders, and Kerns.

During the

meeting, Plaintiff was given the opportunity to clarify
and/or correct statements she made during the September
4, 2012 meeting.

Defs.’ CSF at ¶ 24.

Kerns concluded,

based on the September 4, 2012 incident and June
disciplinary memo, that the manner in which Plaintiff
spoke to others was condescending and offensive and
that there were recurring incidents of Plaintiff acting
outside the scope of her job without going to the
appropriate manager.

Id.

Kerns also claimed to have

advised Plaintiff that Feldman was contemplating how to
handle these ongoing problems.

Id.

Plaintiff denies

receiving notification that Tori Richard was
considering how to handle communication problems.
Pl.’s SDF at ¶ 24.
Another disagreement took place via email on
October 16, 2012, between Plaintiff and Lynch,
concerning the issuance of return authorizations.

8

Defs.’ CSF at ¶ 25; Pl.’s SDF at ¶ 25.
so upset that she left work early.
Pl.’s SDF at ¶ 26.

Plaintiff was

Defs.’ CSF at ¶ 26;

She did not inform Sanders or

Kerns, but asked Susan Morrison (“Morrison”), her
mother and a manager at Tori Richard, to inform Sanders
that she left early due to stress.

Id.

After leaving work, Plaintiff visited her
primary care physician, Dr. Wray Tsuzaki, and
complained of stress caused by ongoing harassment at
work.

Pl.’s SMF at ¶ 11.

Dr. Tsuzaki referred

Plaintiff to a psychologist and placed her off of work
until November 11, 2012, then on modified leave until
November 27, 2012.

Id. at ¶¶ 11, 13.

Kerns investigated this latest incident in the
days that followed, but was unable to speak to
Plaintiff, who was on leave.

Defs.’ CSF at ¶ 27.

On

October 18, 2012, Kerns met with Morrison, who
reported, among other things, that Plaintiff felt Lynch
caused a hostile work environment.

Pl.’s SMF at ¶ 12.

Kerns also met with Lynch and Sanders as part of her

9

investigation.

Sanders indicated that she was unaware

of issues with return authorizations and that the
emails between Plaintiff and Lynch revealed an
operational change in processing returns.
¶ 14.

Pl.’s SMF at

Kerns found that the email did not create a

hostile work environment because Lynch had a rationale
for the operational change conveyed to Plaintiff.
Defs.’ CSF at 28.
On October 30, 2012, Feldman, Sanders, Kerns,
and Tom Teson (“Teson”), Tori Richard’s Chief Financial
Officer, met to discuss options if Plaintiff returned
to work.

Id. at ¶ 29.

Unable to find a viable option

for Plaintiff, they ultimately determined that she
would be terminated.

Id. at ¶ 30.

Upon her return to work on November 12, 2012,
Feldman terminated Plaintiff.

Id.; Pl.’s SMF at ¶ 15.

II. Procedural History
Plaintiff commenced this action on January 23,
2014, claiming that Defendants engaged in
discriminatory and willful and/or wanton conduct,

10

created a hostile work environment, and retaliated
against her.

Compl. at ¶ 4.

following claims:

Plaintiff asserts the

1) discrimination and hostile work

environment; 2) intentional infliction of emotional
distress (“IIED”); 3) negligent and/or reckless
retention and/or hiring and/or supervision; 4) unlawful
retention and/or retaliatory discharge; and 5)
ratification, additional conduct, and punitive damages.
The present Motion followed.
STANDARD OF REVIEW
Summary judgment is appropriate when there is
no genuine issue of material fact and the moving party
is entitled to judgment as a matter of law.
R. Civ. P. 56(a).

See Fed.

“A party seeking summary judgment

bears the initial burden of informing the court of the
basis for its motion and of identifying those portions
of the pleadings and discovery responses that
demonstrate the absence of a genuine issue of material
fact.”

Soremekun v. Thrifty Payless, Inc., 509 F.3d

978, 984 (9th Cir. 2007) (citing Celotex Corp. v.

11

Citrate, 477 U.S. 317, 323 (1986)); T.W. Elec. Serv.,
Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630
(9th Cir. 1987).

In a motion for summary judgment, the

court must view the facts in the light most favorable
to the nonmoving party.

State Farm Fire & Cas. Co. v.

Martin, 872 F.2d 319, 320 (9th Cir. 1989).
Once the moving party has met its burden of
demonstrating the absence of any genuine issue of
material fact, the nonmoving party must set forth
specific facts showing that there is a genuine issue
for trial.
P. 56(c).

T.W. Elec., 809 F.2d at 630; Fed. R. Civ.
The opposing party may not defeat a motion

for summary judgment in the absence of any significant
probative evidence tending to support its legal theory.
Intel Corp. v. Hartford Accident & Indem. Co., 952 F.2d
1551, 1558 (9th Cir. 1991).

The nonmoving party cannot

stand on its pleadings, nor can it simply assert that
it will be able to discredit the movant’s evidence at
trial.

T.W. Elec., 809 F.2d at 630; Blue Ocean

Preservation Soc’y v. Watkins, 754 F. Supp. 1450, 1455

12

(D. Haw. 1991).
If the nonmoving party fails to assert specific
facts, beyond the mere allegations or denials in its
response, summary judgment, if appropriate, shall be
entered.

Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871,

884 (1990); Fed. R. Civ. P. 56(e).

There is no genuine

issue of fact if the opposing party fails to offer
evidence sufficient to establish the existence of an
element essential to that party’s case.

Celotex, 477

U.S. at 322; Citadel Holding Corp. v. Roven, 26 F.3d
960, 964 (9th Cir. 1994); Blue Ocean, 754 F. Supp. at
1455.
In considering a motion for summary judgment,
“the court’s ultimate inquiry is to determine whether
the ‘specific facts’ set forth by the nonmoving party,
coupled with undisputed background or contextual facts,
are such that a rational or reasonable jury might
return a verdict in its favor based on that evidence.”
T.W. Elec., 809 F.2d at 631 (citing Anderson v. Liberty
Lobby, 477 U.S. 242, 255 (1986)).

13

Inferences must be

drawn in favor of the nonmoving party.

Id.

However,

when the opposing party offers no direct evidence of a
material fact, inferences may be drawn only if they are
reasonable in light of the other undisputed background
or contextual facts and if they are permissible under
the governing substantive law.

Id. at 631-32.

If the

factual context makes the opposing party’s claim
implausible, that party must come forward with more
persuasive evidence than otherwise necessary to show
there is a genuine issue for trial.

Bator v. Hawaii,

39 F.3d 1021, 1026 (9th Cir. 1994) (citing Cal.
Architectural Bldg. Prods., Inc. v. Franciscan
Ceramics, 818 F.2d 1466, 1468 (9th Cir. 1987), cert.
denied, 484 U.S. 1006 (1988)).
ANALYSIS
I.

Discrimination/Hostile Work Environment
Plaintiff alleges that Tori Richard’s acts

and/or omissions constituted sex discrimination.

Title

VII prohibits employment discrimination based on “race,
color, religion, sex, or national origin.”

14

42 U.S.C.

§ 2000e-2(a).1

An employee may show violations of Title

VII by proving disparate treatment, a hostile work
environment, or retaliation for protected activities.
As an initial matter, the Court addresses
Defendants’ argument that Tori Richard could terminate
Plaintiff for any reason because she was an at-will
employee.

Even though Plaintiff was an at-will

employee, “[t]here is no ‘at-will’ defense to a federal
discrimination complaint.”

Washington v. Lake Cnty.,

Ill., 969 F.2d 250, 256 (7th Cir. 1992), abrogated on
other grounds by McKennon v. Nashville Banner Pub. Co.,
513 U.S. 352 (1995).

Therefore, the Motion will not be

granted on this basis.

1

In the Complaint, Plaintiff also alleges
discrimination/hostile work environment pursuant to 42
U.S.C. § 1981. However, § 1981 is inapplicable because
its application is limited to race discrimination.
Runyon v. McCrary, 427 U.S. 160, 168 (1976) (Section
“1981 prohibits racial discrimination in the making and
enforcement of private contracts”). Plaintiff’s
allegations are limited to sex/gender discrimination,
not race discrimination, and do not involve the making
or enforcement of a contract. Indeed, Plaintiff
concedes that she was an at-will employee.
15

The Court also addresses Defendants’ contention
that claims against Lynch should be dismissed because
individual liability is not legally recognized.

The

Court agrees that claims against individuals are not
cognizable under Title VII.

Miller v. Maxwell’s Int’l

Inc., 991 F.2d 583, 587 (9th Cir. 1993) (individual
employees are not subject to liability under Title
VII).

Thus, to the extent Plaintiff’s Title VII claims

are asserted against Lynch individually, Lynch is
entitled to summary judgment.
A.

Hostile Work Environment
An employer is liable under Title VII for
conduct giving rise to a hostile
environment where the employee proves (1)
that he was subjected to verbal or
physical conduct of a harassing nature,
(2) that this conduct was unwelcome, and
(3) that the conduct was sufficiently
severe or pervasive to alter the
conditions of the victim’s employment and
create an abusive working environment.

Kortan v. Cal. Youth Authority, 217 F.3d 1104, 1109-10
(9th Cir. 2000) (quoting Pavon v. Swift Trans. Co.,
Inc., 192 F.3d 902, 908 (9th Cir. 1999)).

16

1.

Severe or Pervasive

In determining if an environment is so
hostile as to violate Title VII, courts “consider
whether, in light of ‘all the circumstances,’ the
harassment is ‘sufficiently severe or pervasive to
alter the conditions of the victim’s employment and
create an abusive working environment.’”

McGinest v.

GTE Serv. Corp., 360 F.3d 1103, 1112-13 (9th Cir. 2004)
(citations omitted); Brooks v. City of San Mateo, 229
F.3d 917, 923 (9th Cir. 2000) (“We use a totality of
the circumstances test to determine whether a
plaintiff’s allegations make out a colorable claim of
hostile work environment.”).

Offending an employee

“based on an isolated comment is not sufficient to
create actionable harassment under Title VII,” but the
harassment need not cause psychological injury.
McGinest, 360 F.3d at 1113 (citing Harris v. Forklift
Sys., Inc., 510 U.S. 17, 21-22 (1993)).

“It is enough

‘if such hostile conduct pollutes the victim's
workplace, making it more difficult for her to do her

17

job, to take pride in her work, and to desire to stay
on in her position.’”

Id. (quoting Steiner v. Showboat

Operating Co., 25 F.3d 1459, 1463 (9th Cir. 1994)).
Plaintiffs must show that the work environment
was both objectively and subjectively hostile.
229 F.3d at 923; McGinest, 360 F.3d at 1113.

Brooks,
To

evaluate objective hostility, the court considers the
following:

“frequency of discriminatory conduct; its

severity; whether it is physically threatening or
humiliating, or a mere offensive utterance; and whether
it unreasonably interferes with an employee’s work
performance.”

Id.; Brooks, 229 F.3d at 924.

The

perspective of the reasonable victim is assumed when
assessing the objective portion of a plaintiff’s claim.
Brooks, 229 F.3d at 924 (citing Ellison v. Brady, 924
F.2d 872, 879 (9th Cir. 1991)).
Title VII is not a “general civility code.”
Faragher v. City of Boca Raton, 524 U.S. 775, 788
(1998).

“[S]imple teasing, offhand comments, and

isolated incidents (unless extremely serious) will not

18

amount to discriminatory changes in the ‘terms and
conditions of employment.’”

Id. (internal citation

omitted).
Viewing the evidence in the light most
favorable to Plaintiff, and given the totality of the
circumstances, she has failed to establish that
Defendants’ conduct was sufficiently severe or
pervasive to alter the conditions of her employment and
create an abusive working environment.
Plaintiff cites the following allegations
against Lynch to support her hostile work environment
claim:
1) He yelled at her on June 7, 2012 regarding a
shipping issue and threw a paper at her, and
displayed rage toward her later that day.
2) His subsequent communications were
unprofessional and he yelled at Plaintiff.
3) He sent emails that were hostile.
4) Between June 2012 to October 2012, he frequently
yelled at female employees, but not male employees.
5) He communicated with Plaintiff in a harassing
and hostile manner on or around October 16, 2012,
and told Plaintiff that “she didn’t know what she
was doing.”
19

Compl. at ¶ 22.

In the Opposition, Plaintiff asserts

that Tori Richard created a hostile work environment by
allowing Lynch to block her from completing her duties.2
Notably, none of the allegations regarding
Lynch’s conduct toward Plaintiff link his conduct to
gender-based animus.

Vasquez v. Cnty. of Los Angeles,

349 F.3d 634, 642 (9th Cir. 2003) (“To prevail on a
hostile workplace claim premised on either race or sex,
a plaintiff must show . . . that he was subjected to
verbal or physical conduct of a racial or sexual
nature.”).

Plaintiff’s conclusory allegations are

insufficient to establish that Lynch’s conduct was
based on Plaintiff’s gender.

Thorton v. City of St.

Helens, 425 F.3d 1158, 1167 (9th Cir. 2005) (holding
that “conclusory statements of bias do not carry the
nonmoving party’s burden in opposition to a motion for
summary judgment”); Forsberg v. Pac. NW. Bell Tel. Co.,
2

This assertion is contradicted by Plaintiff’s
performance evaluations, which indicate that Plaintiff
was performing her duties, and by Plaintiff’s argument
in connection with her disparate treatment claim that
she was satisfactorily performing her job. Opp’n at 78.
20

840 F.2d 1409, 1419 (9th Cir. 1988) (“[P]urely
conclusory allegations of alleged discrimination, with
no concrete, relevant particulars, will not bar summary
judgment.”).

What is more, Plaintiff has failed to

produce evidence demonstrating that a reasonable person
would find her work environment hostile or abusive, as
she must to sustain her claim.

Indeed, Plaintiff’s

allegations, at most, evidence some degree of conflict
between her and Lynch.

However, the record is devoid

of evidence to suggest that Plaintiff was subjected to
ongoing and persistent harassment, or that Lynch
targeted Plaintiff because she is female.3
3

The emails even call into question Plaintiff’s
characterization of them as hostile and harassing. In
response to an October 15, 2012 email from Plaintiff
asking whether returns can be picked up at the same
time as deliveries, Lynch responded: “Nalani, Get me an
RA and we’ll pick it up.” Pl.’s SDF at ¶ 25, Ex. 13.
When Plaintiff explained that she does not issue RA’s
until goods are returned, Lynch stated that “[w]e can’t
pick up goods without RA’s.” Id. Plaintiff then
inquired about who handles RA’s, to which Lynch
responded:
C/S. I spoke to Staci-Li and she said
TRIA does their own RA’s. This is why we
need RA’s. Not too long ago the drivers
brought some goods back that weren’t
21

The fact that Plaintiff believes that Lynch
obstructed her from completing her duties does not,
without more, create a hostile work environment.
Additionally, other than her bare assertion that Tori
Richard treated Lynch differently from her, there is no
evidence to support a finding of hostile work

approved (more than once)[.] After a
couple on [sic] incidences we had to
establish the drivers are not to pick up
any RA’s [n]o matter what without the
authorization. So I can’t tell them no
pickups w/o RA’s except for TRIA. I don’t
know if Josh needs to approve your RA’s
but he does approve all of the others. So
if Sue can approve the RA’s that’s fine
but I need to give the drivers the
approved paperwork.
Id. In another email exchange from late May/early
June 2012, Plaintiff accused Lynch of being
defensive and inappropriate. She advised Kerns
that she felt harassed and found Lynch’s responses
unacceptable. Defs.’ CSF at ¶ 10, Ex. L.
However, Lynch’s responses were as follows: 1) “No
I can’t do it by this Fri maybe next by Friday
[sic]”; and 2) “I gave a maybe as you can see
below[.] I can’t count inventory until after
Father’s Day at the soonest[.] Preferably August
when we inventory everything else.” Id.
Significantly, the foregoing email communications
were purely work related and Lynch did not insult
or attack Plaintiff, much less based on her gender.
22

environment.

Plaintiff’s claim that Tori Richard

treated her differently than Lynch when investigating
Maran’s harassment claim against her is unfounded and
contradicted by the evidence.

Tori Richard conducted

investigations in both instances and Plaintiff never
received a disciplinary memo for the incident with
Maran, whereas Lynch received a disciplinary memo for
the June 7, 2012 incident.

Plaintiff cannot carry her

burden by relying on conclusory statements of bias.
Even if Lynch’s conduct could be construed as
gender/sex-based, or Plaintiff had proffered evidence
that Tori Richard’s treatment of Lynch differed
significantly from its treatment of her, the pertinent
allegations are neither severe nor pervasive enough to
alter the conditions of Plaintiff’s employment.

There

were only a few documented instances of purported
conflict between Lynch and Plaintiff.

The most severe

interaction was the June 7, 2012 incident, but both
parties were agitated and raised their voices in the
exchange.

And although Plaintiff claims that her

23

conflict with Lynch interfered with her work
performance, the evidence she has presented suggests
otherwise.

As mentioned in footnote 2, Plaintiff

claims to have performed her job satisfactorily.
Simply put, none of the actions cited by
Plaintiff, individually or collectively, support a
finding of hostile work environment.

See, e.g.,

Kortan, 217 F.3d at 1111 (finding no hostile work
environment where the supervisor called females
“castrating bitches,” “Madonnas,” or “Regina” in front
of the plaintiff on several occasions and directly
called the plaintiff “Medea”); Vasquez, 307 F.3d at 893
(finding no hostile work environment when employee was
told that he had “a typical Hispanic macho attitude,”
that he should work in the field because “Hispanics do
good in the field” and where he was yelled at in front
of others); Draper v. Coeur Rochester, Inc., 147 F.3d
1104, 1109 (9th Cir. 1988) (concluding that the
defendant created a hostile work environment where the
plaintiff’s supervisor repeatedly made sexual remarks

24

about the plaintiff over a two-year period, referring
to her as “gorgeous” and “beautiful” instead of her
name, sharing his sexual fantasies and his desire to
have sex with her, commenting on her “ass”, and asking
her over a loudspeaker if she needed assistance
changing her clothes); Nichols v. Azteca Rest. Enters.,
Inc., 256 F.3d 864, 870 (9th Cir. 2001) (finding
hostile work environment where male employee of
restaurant was subjected to a relentless campaign of
insults, name-calling, vulgarities, and taunts of
“faggot” and “fucking female whore” by male co-workers
and supervisors at least one a week and often several
times a day).
In accordance with the foregoing, there is
no evidence that Plaintiff was subjected to severe or
pervasive conduct, much less any conduct based on her
gender.

Insofar as Plaintiff has failed to establish

her prima facie case for a Title VII gender hostile
work environment claim, Tori Richard is entitled to
summary judgment as to said claim.

25

B.

Disparate Treatment
Although not expressly pled in the Complaint,

it appears that Plaintiff is alleging disparate
treatment based on her reliance on the McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802 (1973) burden
shifting analysis.4

To establish disparate treatment

under Title VII, a plaintiff “must first establish a
prima facie case of discrimination by offering evidence
that ‘give[s] rise to an inference of unlawful
discrimination.’”

E.E.O.C. v. Boeing Co., 577 F.3d

1044, 1049 (9th Cir. 2009) (quoting Tex. Dep’t of Cmty.
Affairs v. Burdine, 450 U.S. 248, 253 (1981))
(alteration in original); Noyes v. Kelly Servs., 488
F.3d 1163, 1168 (9th Cir. 2007) (citing Chuang v. Univ.
of Cal. Davis, Bd. of Trustees, 225 F.3d 1115, 1123
(9th Cir. 2000)) (“In the summary judgment context, the
plaintiff bears the initial burden to establish a prima
facie case of disparate treatment.”).

4

Defendants also employed McDonnell Douglas in
their Reply.
26

A plaintiff may establish a prima facie case in
one of two ways:

1) by satisfying the four-part test

set forth in McDonnell Douglas or 2) “by providing
direct evidence suggesting that the employment decision
was based on an impermissible criterion.”

Boeing, 577

F.3d at 1049 (citing Cordova v. State Farm Ins. Cos.,
124 F.3d 1145, 1148 (9th Cir. 1997)); Metoyer v.
Chassman, 504 F.3d 919, 931 (9th Cir. 2007) (citation
omitted) (some alterations in original) (“[W]hen
responding to a summary judgment motion . . . [the
plaintiff] may proceed by using the McDonnell Douglas
framework, or alternatively, may simply produce direct
or circumstantial evidence demonstrating that a
discriminatory reason more likely than not motivated
[the employer].”).

Direct evidence is “evidence which,

if believed, proves the fact [of discriminatory animus]
without inference or presumption.”

Godwin v. Hunt

Wesson, Inc., 150 F.3d 1217, 1221 (9th Cir. 1988)
(internal quotation marks omitted) (alteration in
original).

27

Here, Plaintiff has not provided direct or
circumstantial evidence suggesting that the subject
employment decisions were based on impermissible
criterion.

Aside from her personal belief that Tori

Richard subjected her to unequal terms and conditions
of employment based on her gender, Plaintiff has not
proffered any competent evidence to suggest that the
employment decisions she complains of were made because
of her gender.
Because Plaintiff has not provided direct or
circumstantial evidence that discriminatory reason(s)
more likely than not motivated Tori Richard, the Court
applies the McDonnell Douglas framework.

To establish

a prima facie case under McDonnell Douglas, Plaintiff
must demonstrate that:

(1) she belonged to a protected

class; (2) she was qualified for her job; (3) she was
subjected to an adverse employment action; and (4)
similarly situated males received more favorable
treatment.

Anthoine v. N. Cent. Counties Consortium,

605 F.3d 740, 753 (9th Cir. 2010) (citing Moran v.

28

Selig, 447 F.3d 748, 753 (9th Cir. 2006)); McDonnell
Douglas, 411 U.S. at 802.

“The requisite degree of

proof necessary to establish a prima facie case for
Title VII . . . on summary judgment is minimal and does
not even need to rise to the level of preponderance of
the evidence.”

Wallis v. J.R. Simplot Co., 26 F.3d

885, 889 (9th Cir. 1994) (citation omitted).

However,

a “plaintiff’s failure to offer evidence establishing a
necessary element of his prima facie case will
ordinarily be fatal to his claim.”
307 F.3d 1092, 1113 (9th Cir. 2002).

Lyons v. England,
Indeed, the

granting of summary judgment is proper when a plaintiff
fails to establish a prima facie case of
discrimination.

Moran, 447 F.3d at 753.

If a plaintiff establishes a prima facie case,
the burden shifts to the defendant “to provide nondiscriminatory reasons for the adverse action.”
Anthoine, 605 F.3d at 753 (citing Wallis, 26 F.3d at
889).

“Should the defendant carry its burden, the

burden then shifts back to the plaintiff to raise a

29

triable issue of fact that the defendant’s proffered
reason was a pretext for unlawful discrimination.”
Noyes v. Kelly Servs., 488 F.3d 1163, 1168 (9th Cir.
2007).

Circumstantial evidence of pretext must be

specific and substantial.

Becerril v. Pima Cnty.

Assessor’s Office, 587 F.3d 1162, 1163 (9th Cir. 2009).
“A plaintiff may not defeat a defendant’s motion for
summary judgment merely by denying the credibility of
the defendant’s proffered reason for the challenged
employment action.”

Cornwell v. Electra Cent. Credit

Union, 439 F.3d 1018, 1029 n.6 (9th Cir. 2006)
(citation omitted).
Tori Richard does not dispute that Plaintiff
is a member of a protected class, but challenges the
remaining elements of a prima facie case of
discrimination.

Notwithstanding the low degree of

proof required at the prima facie stage, the Court
finds that Plaintiff has failed to establish a prima
facie case of gender discrimination.

30

1.

Plaintiff’s Job Performance

The parties dispute the sufficiency of
Plaintiff’s job performance.

Plaintiff presents four

performance evaluations in support of her assertion
that she performed her job satisfactorily:

the period

June 27, 2006 to June 15, 2007; the period July 1, 2009
to June 30, 2010; the period July 2010 to July 2011;
and the period July 2011 to July 2012.5
¶ 5, Exs. 4-7.

Pl.’s SDF at

In all but the last evaluation,

Plaintiff received excellent and outstanding ratings.
The last evaluation, which covered the period during
which the incident between Lynch and Plaintiff
occurred, rated Plaintiff’s interpersonal skills as
satisfactory.

Id. at ¶ 5, Ex. 7.

Sanders made the

following comments about Plaintiff’s interpersonal
skills:
There were a few incidents this year that
were atypical of [Plaintiff’s] demeanor in
that she was condescending to a Manager.
To her credit, she has been able to work
5

It is unclear why Plaintiff has not produced her
performance evaluations for the 2007 to 2008 and 2008
to 2009 periods.
31

and communicate with this person after the
confrontations despite saying that she
could in no way communicate with this
person. She will sometimes stand her
ground at the expense of demeaning another
employee (no matter who they are).
However, I don’t see it as habitual
behavior. In the scheme of things, these
occurrences are very rare. She will stand
her ground to get something done. She
does need to work on being open new ways
of doing things and not resort to “this is
how it’s always been done” [sic].
Id.
Defendants, meanwhile, present evidence
reflecting Plaintiff’s history of communication
problems.

A March 24, 2005 document entitled “One on

One” identified multiple communication issues with
Plaintiff:

her communication skills did not meet the

expectations of her position; she engaged in
inappropriate communications that resulted in the
escalation of three separate incidents; she failed to
keep her manager in the loop; she did not receive
feedback or criticism without defensive behaviors; and
because she had difficulty accepting ownership of her
own mistakes, she was quick to blame others.

32

Defs.’

CSF at ¶ 5, Ex. C.

Plaintiff also received a

“Corrective Notice of Action” on April 22, 2005, for
ineffective communication.

Id. at ¶ 5, Ex. D.

The

notice stated that Plaintiff “has shown no improvement
on her communication efforts since she was issued her
one on one on March 27, 2005.

She does not communicate

with her manager which is impacting her effectiveness
and quality of work.”

Id.

In addition to the foregoing, Plaintiff engaged
in inappropriately toned email discussions with
Feldman,6 she received disciplinary memo as a result of
the incident with Lynch, and she was required to attend
performance coaching with Sanders.
J & S.

Id. at ¶ 5, Exs. E,

The performance coaching addressed Plaintiff’s

confrontational, condescending, and demanding
tendencies, as well as her excessive detail/emailing
and actions outside the scope of her job.
Ex. S.

Id. at ¶ 5,

Defendants further cite the September 2012

6

After seeing the email exchange, Sanders told
Plaintiff that she had to talk to Sanders and that
Plaintiff should not be sending an email with such a
tone. Defs.’ CSF at ¶ 5, Ex. T.
33

incident with Maran and October 2012 email exchange
regarding return authorizations with Lynch.
Finally, Karpowicz, Sanders, and Feldman all
attested that Plaintiff had communication issues during
her employment at Tori Richard.
Insofar as a conflict exists between the
parties’ evidence about whether Plaintiff was
performing her job satisfactorily, the Court finds that
there is a genuine issue of material fact with respect
to Plaintiff’s job performance.
2.

Adverse Employment Action

Plaintiff claims that she suffered two adverse
employment actions:

1) the reprimand she received in

connection with the June 7, 2012 incident with Lynch
(disciplinary memo and professional coaching) and
2) her termination.
The Ninth Circuit construes “adverse employment
action” broadly and has found that “a wide array of
disadvantageous changes in the workplace constitute
adverse employment actions.”

34

Ray v. Henderson, 217

F.3d 1234, 1240 (9th Cir. 2000); Lyons, 307 F.3d at
1118 (“Title VII does not limit its reach only to acts
that take the form of cognizable employment actions
such as discharge, transfer, or demotion.”) (quotation
marks and citations omitted).

However, not every

employment decision amounts to an adverse employment
action.

Ray, 217 F.3d at 1240.

Instead, “an adverse

employment action is one that “‘materially affect[s]
the compensation, terms, conditions, or privileges of .
. . employment.’”

Davis v. Team Elec. Co., 520 F.3d

1080, 1089 (9th Cir. 2008) (citations omitted)
(alteration in original) (assigning more, or more
burdensome, work responsibilities, is an adverse
employment action); Fonseca v. Sysco Food Servs. of
Ariz., Inc., 374 F.3d 840, 847 (9th Cir. 2004)
(identifying the following as adverse employment
actions:

receiving payment a couple of days late;

warning letter or negative review; transfers of job
duties; undeserved performance ratings); Lyons, 307
F.3d at 1113 (identifying denial of promotion as

35

adverse employment action); Strother v. S. Cal.
Permanente Med. Group, 79 F.3d 859, 869 (9th Cir. 1996)
(Being excluded from meetings, seminars, and positions
that would have made the employee eligible for salary
increases, and being given a more burdensome work
schedule, if proven, were sufficient to establish
adverse employment actions); Little v. Windemere
Relocation, Inc., 301 F.3d 958, 970 (9th Cir. 2002)
(identifying termination as an adverse employment
action).
In the present case, because Plaintiff’s
termination was clearly an adverse employment action,
the Court finds it unnecessary to address whether the
disciplinary memo and professional coaching constituted
adverse employment actions.
3.

Treatment of Similarly Situated Male
Employees

Plaintiff asserts that she and Lynch were
similarly situated and that Tori Richard treated
Lynch more favorably than her.

To establish this

prong, Plaintiff must demonstrate that, at the least,
36

she is similarly situated to Lynch in all material
respects.

Moran, 447 F.3d at 755 (citation omitted).

“[I]ndividuals are similarly situated when they have
similar jobs and display similar conduct.”

Hawn v.

Exec. Jet Mgmt., Inc., 615 F.3d 1151, 1157 (9th Cir
2010); Nicholson v. Hyannis Air Serv., Inc., 580 F.3d
1116, 1125 (9th Cir. 2009) (quoting Vasquez, 349 F.3d
at 641) (quotations omitted) (alteration in original).
Supervisory employees and lower level employees are
generally deemed not to be similarly situated.
Vasquez, 349 F.3d at 641.
Here, Plaintiff was a sales assistant in the
TRIA department, while Lynch was the shipping
department manager as of February 2012.

Lynch was

responsible for managing 15-20 employees, ensuring
shipment of merchandise to 11 retail stores and
corporate customers, and coordinating and warranting
the return of merchandise.

Defs.’ CSF, Lynch Decl. at

¶¶ 1, 5-6.
Disregarding the significant differences

37

between her and Lynch’s positions and responsibilities
at Tori Richard, Plaintiff relies on an out of district
case for the proposition that she and Lynch are
similarly situated.

Bowden v. Potter, 308 F. Supp. 2d

1108 (N.D. Cal. 2004).

Bowden is not binding on this

Court, but in any event, it does not support
Plaintiff’s contention.
Applying Ninth Circuit precedent, this Court
focuses on whether Plaintiff and Lynch had similar jobs
and displayed similar conduct.

As already discussed,

Plaintiff and Lynch did not have similar jobs.
Moreover, while they may have exhibited similar conduct
during their confrontation on June 7, 2012 - raised
voices and agitation - they were treated similarly
notwithstanding differences in their employment
positions.

Both were involved in the investigation

that followed the incident and both received
disciplinary memos, albeit non-identical memos.
Compare Defs.’ CSF, Ex. J with id., Ex. K.

Plaintiff

was subjected to performance coaching with Sanders, and

38

while she accuses Tori Richard of imposing different
disciplinary measures, she cites to notes that are from
Lynch’s performance coaching even though she continues
to speculate that Lynch did not receive performance
coaching.

Pl.’s SMF at ¶ 8, Ex. 23; Opp’n at 12.

Plaintiff’s speculation is without basis and is
contradicted by the evidence presented by Tori Richard.
Karpowicz confirmed that he provided coaching to Lynch
regarding the June 7, 2012 incident.

Defs.’s CSF,

Decl. of Robert Karpowicz (“Karpowicz Decl.”) at ¶ 11.
Lynch also represented that he was disciplined and that
he was interviewed and coached by Kerns and Karpowicz.
Defs.’ CSF, Lynch Decl. at ¶¶ 21-22.
Significantly, Plaintiff ignores the fact that
any purported differences between Tori Richard’s
disciplinary responses could reasonably be attributed
to her and Lynch’s differing positions/status within
the company.

Even Bowden acknowledges as much:

The ultimate question that is informed by
the similarly situated analysis is whether
there is a basis for inferring
discriminatory motive: Does the purported
39

purpose of the challenged action require
similar treatment of the two employees or
does it justify different treatment due to
differences in their status or situation
rather than race? In the above examples,
the fact that one employee is a supervisor
or works in a different department is
irrelevant to the purpose of the
discipline. In other situations, those
differences may be relevant. The issue of
similarly situated status is therefore
fact specific and defies a mechanical or
formulaic approach.
Bowden, 308 F. Supp. 2d at 1117.

Unlike the examples

cited in Bowden where employees in different positions
can be deemed similarly situated, i.e. an employee on
an assembly line who physically assaults a co-worker is
similarly situated to a supervisor who engages in
similar conduct, this case presents a situation where a
sales assistant questioned the shipping manager about
shipping procedures and proceeded to argue with him
about the same.

In other words, the confrontation

between Lynch and Plaintiff was work related and
specifically concerned an issue within Lynch’s purview.
Therefore, it is entirely distinguishable from those
situations where two employees in different positions

40

engage in an act bearing no relation to their position,
such as theft or assault.
Based on the foregoing, the record is
insufficient to allow the Court to conclude that Lynch
was similarly situated to Plaintiff, or that Tori
Richard treated Lynch more favorably.7

Accordingly, the

Court finds that Plaintiff has failed to establish a
prima facie case of gender discrimination.
Even assuming that Plaintiff could
establish a prima facie case of gender discrimination,
Tori Richard set forth a legitimate, non-discriminatory
reason for terminating her employment:

she was no

longer a good fit, recurring communication problems
throughout her employment, her mid to late 2012
behavior, and her disinclination to learn from coaching
efforts.8

Defs.’ CSF at ¶ 33.

To survive summary

7

Plaintiff cites to incidents involving Lynch
that occurred after her termination. These incidents
are irrelevant.
8

Feldman attested that he decided to terminate
Plaintiff “based upon her history of communication
problems, her inability to get along with her coworkers, and her unwillingness to learn from the
41

judgment, Plaintiff must therefore raise a triable
issue of fact that Tori Richard’s proffered reason was
a pretext for unlawful discrimination.
at 1168.

Noyes, 488 F.3d

As earlier noted, it is not enough for

Plaintiff to merely deny the credibility of Tori
Richard’s proffered reason for her termination.
Cornwell, 439 F.3d at 1029 n.6.
The evidence shows that Plaintiff 1) received
two notifications in 2005 - a “One on One” and a
“Corrective Notice of Action” - regarding her
communication issues; 2) received a disciplinary memo
for the June 7, 2012 incident; 3) engaged in
inappropriately toned email discussions with Feldman;
4) underwent performance coaching as a result of the
June 7, 2012 incident; 5) received a performance
evaluation for the period July 2011 to July 2012 that

coaching provided to her.” Defs.’ CSF, Decl. of Joshua
Feldman (“Feldman Decl.”) at ¶ 21. He “concluded that
she was no longer a good fit with the Company and [he]
believed her confrontational, condescending and
demanding behaviors to be the primary cause of employee
conflict which was disruptive to the overall harmony of
the workplace.” Id.
42

rated Plaintiff’s interpersonal skills as satisfactory
and commented about Plaintiff’s interaction with Lynch;
6) had an altercation with Maran; and 7) had conflicts
with Lynch via email in 2012.

Defs.’ CSF at ¶ 5, Exs.

C-E, J & S; Pl.’s SDF at ¶ 5, Ex. 7.

After discussing

possible options for Plaintiff’s future in the company,
Feldman, Kerns, Sanders, and Teson concluded that she
would be terminated.

Defs.’ CSF at ¶¶ 29-30.

The only evidence presented by Plaintiff in her
attempt to establish pretext is her deposition
testimony.

Plaintiff baldly asserts that Tori

Richard’s proffered reasons for her termination were
pretext for her discriminatory termination.
A.

If you’re asking my belief, yes, I
believe that I was being terminated
because of the direct action of me
speaking up for myself in regards to
the issues that pertained or led up to
me going onto workman’s comp.

Q.

Did you believe you were being
terminated for being a woman?

A.

Yes, I guess I did, in a sense.

Pl.’s SDF at ¶¶ 30, 33, Ex. 1 at 222:13-19.

43

Plaintiff’s personal belief is not direct or specific
and substantial circumstantial evidence of
discriminatory motive.

Schuler v. Chronicle

Broadcasting Co., Inc., 793 F.2d 1010, 1011 (9th Cir.
1986) (a plaintiff’s “subjective personal judgments do
not raise a genuine issue of material fact”).

She has

produced no meaningful evidence indicating that Tori
Richard’s proffered explanation was false or that it
harbored discriminatory animus towards her because she
is female.

Consequently, Tori Richard is entitled to

summary judgment on Plaintiff’s discrimination claim.
II.

Retaliation
Plaintiff also asserts a Title VII retaliation

claim.

Title VII makes it unlawful for an employer to

retaliate against an employee on the basis of the
employee’s opposition to practices or actions
prohibited by Title VII.

42 U.S.C. § 2000e–3(a).

To

establish a prima facie case of retaliation, Plaintiff
must establish that she engaged in a protected
activity, that Tori Richard subjected her to an adverse

44

employment action, and that there is a causal link
between the two events.

Davis v. Team Elec. Co., 520

F.3d 1080, 1093–94 (9th Cir. 2008); Vasquez, 349 F.3d
at 646.

The McDonnell Douglas burden-shifting scheme

set forth above applies to Plaintiff’s retaliation
claim.
A.

Protected Activity
Plaintiff identifies, as a protected activity,

her statement to Sanders on June 29, 2012, during the
performance coaching, that she believed she was being
written up for standing up for herself and that if a
man stood up to Lynch, he would not have been
reprimanded.9

According to Plaintiff, this complaint to

Sanders was the “but-for” cause of her termination, as
she engaged in protected activity, while Lynch did not.
“Title VII’s statutory ‘opposition clause’ prohibits an
employer from retaliating against an applicant or
9

Curiously, during this same session, Plaintiff
also expressed her belief that female managers at Tori
Richard - Morrison and Karen MacRae - were treated more
favorably by Lynch than her. Pl.’s SMF, Ex. 24.

45

employee ‘because he has opposed any practice made an
unlawful employment practice,’” such as discrimination
based on race, gender, religion, or national origin.
E.E.O.C. v. Luce, Forward, Hamilton & Scripps, 303 F.3d
994, 1005 (9th Cir. 2002) (citation omitted).
“Protected activity includes the filing of a
charge or a complaint, or providing testimony regarding
an employer’s alleged unlawful practices, as well as
engaging in other activity intended to ‘oppose[ ]’ an
employer’s discriminatory practices.”

Raad v.

Fairbanks N. Star Borough Sch. Dist., 323 F.3d 1185,
1197 (9th Cir. 2003) (alteration in original) (quoting
42 U.S.C. § 2000e-3(a)).

A complaint about an isolated

incident, to which a plaintiff has been subjected,
“does not constitute a protected activity unless a
reasonable person would believe that the isolated
incident violated Title VII.”

E.E.O.C. v. Go Daddy

Software, Inc., 581 F.3d 951, 963 (9th Cir. 2009).

A

plaintiff’s failure to raise a genuine dispute of
material fact as to engagement in a protected activity

46

is sufficient ground for granting summary judgment.
Klat v. Mitchell Repair Info. Co., 528 F. App’x. 733
(9th Cir.), cert. dismissed, 134 S. Ct. 625 (2013).
The Court finds that Plaintiff’s complaint to
Sanders that a male would not be reprimanded for the
same conduct she engaged in constitutes a protected
activity, as it was a complaint raised with Sanders
that she was being discriminated against based on her
gender.

Passantino v. Johnson & Johnson Consumer

Prods., 212 F.3d 493, 506 (9th Cir. 2000) (finding that
informal complaints to a supervisor constitute
protected activity).
B.

Adverse Action
Plaintiff also satisfies the second prong of

the test because she was terminated.
C.

Causal Link Between Protected Activity and
Termination
Although Plaintiff satisfies the first two

prongs, she has failed to create a genuine issue
of fact that Tori Richard’s decision to terminate her
was made because of her comment to Sanders during the
47

performance coaching session.

“Title VII retaliation

claims must be proved according to traditional
principles of but-for causation[, which] requires proof
that the unlawful retaliation would not have occurred
in the absence of the alleged wrongful action or
actions of the employer.”

Univ. of Texas Sw. Med. Ctr.

v. Nassar, 133 S. Ct. 2517, 2533 (2013).
“To show the requisite causal link, the
plaintiff must present evidence sufficient to raise the
inference that her protected activity was the likely
reason for the adverse action.”

Cohen v. Fred Meyer,

Inc., 686 F.2d 793, 796 (9th Cir. 1982).

“The causal

link can be inferred from circumstantial evidence such
as the employer’s knowledge of the protected activities
and the proximity in time between the protected
activity and adverse action.”

Dawson v. Entek Int’l,

630 F.3d 928, 936 (9th Cir. 2011) (citing Jordan v.
Clark, 847 F.2d 1368, 1376 (9th Cir. 1988)); see also
Passantino, 212 F.3d at 507 (“[W]hen adverse employment
decisions are taken within a reasonable period of time

48

after complaints of discrimination have been made,
retaliatory intent may be inferred.”).
Causation can in some cases “be inferred from
timing alone where an adverse employment action follows
on the heels of protected activity.”

Villiarimo v.

Aloha Island Air, Inc., 281 F.3d 1054, 1065 (9th Cir.
2002).

Inferences have been made for time periods

ranging from 42 days to three months.
omitted).

Id. (citations

Here, Plaintiff was terminated over four

months after she engaged in protected activity.10

Four

months has been found to be too long to support an
inference of retaliation.

Id. (citing Filipovic v. K &

R Express Sys., Inc., 176 F.3d 390, 398–99 (7th Cir.
1999);

Conner v. Schnuck Markets, Inc., 121 F.3d 1390,

1395 (10th Cir. 1997)).

Given the more than four month

lag between the subject protected activity and her
termination, the Court cannot infer causation based on
timing alone.

Plaintiff must “rely on additional

10

It is of no consequence that Feldman may have
contemplated termination prior to November 12, 2012,
because the adverse employment action was the
termination.
49

evidence beyond mere temporal proximity to establish
causation.”

Conner, 121 F.3d at 1395.

Plaintiff has failed to present additional
evidence sufficient to raise the inference that her
protected activity was the likely reason for her
termination.

She cites only her performance

evaluations as evidence of causation, but disregards
the evidence relied upon by Tori Richard in support of
its decision to terminate Plaintiff.

Viewing the facts

in the light most favorable to Plaintiff, the Court
finds that there is no genuine issue of material fact
as to causation.

Therefore, Tori Richard is entitled

to summary judgment as to Plaintiff’s retaliation
claim.
Assuming, arguendo, that Plaintiff established
a prima facie case of retaliation, Tori Richard is
nevertheless entitled to summary judgment because it
set forth a legitimate, non-retaliatory reason for
terminating Plaintiff.

For the reasons discussed with

respect to Plaintiff’s discrimination claim, Plaintiff

50

has not produced evidence demonstrating that Tori
Richard’s proffered reason for Plaintiff’s termination
was a pretext for retaliation.
III.

Punitive Damages
Plaintiff seeks punitive damages pursuant to 42

U.S.C. § 1981a.

Inasmuch as the Court has granted

summary judgment as to Plaintiff’s Title VII and § 1981
claims, there is no basis for an award of punitive
damages pursuant to § 1981a.11

The Court thus grants

summary judgment with respect to Count V, to the extent
Plaintiff seeks punitive damages pursuant to
§ 1981a.
IV.

Remaining Claims
Plaintiff’s remaining claims - IIED; negligent

retention and negligent supervision;12 and ratification

11

In any event, Section 1981a does not provide
Plaintiff with an independent cause of action.
Ogundele v. Girl Scouts–Arizona Cactus Pine Council,
Inc., No. CV–10–1013–PHX–GMS, 2011 WL 1770784, at *3
n.2 (D. Ariz. May 10, 2011); Huckabay v. Moore, 142
F.3d 233, 241 (5th Cir. 1998).
12

Plaintiff concedes that her negligent hiring
claim should be dismissed.
51

- are all state law claims.

Given the granting of

summary judgment as to the federal claims, the Court
has at most supplemental jurisdiction over the state
law claims.13
Under 28 U.S.C. § 1367(c)(3), “district courts
may decline to exercise supplemental jurisdiction . . .
if . . . the district court has dismissed all claims
over which it has original jurisdiction [.]”

“[W]hen

deciding whether to exercise supplemental jurisdiction,
‘a federal court should consider and weigh in each
case, and at every stage of the litigation, the values
of judicial economy, convenience, fairness, and
comity.’”

City of Chicago v. Int’l Coll. of Surgeons,

522 U.S. 156, 173 (1997) (quoting Carnegie–Mellon Univ.
v. Cohill, 484 U.S. 343, 350 (1988)); Acri v. Varian
Assocs., Inc., 114 F.3d 999, 1001 (9th Cir. 1997) (en
banc).

13

There is no basis for diversity jurisdiction
because Plaintiff and Defendants are citizens of
Hawaii.
52

Because state courts have the primary
responsibility for developing and applying state law,
the “values of judicial economy, convenience, fairness
and comity” do not favor retaining jurisdiction in this
case.

Acri, 114 F.3d at 1001 (providing that “in the

usual case in which all federal-law claims are
eliminated before trial, the balance of factors will .
. . point toward declining to exercise jurisdiction
over the remaining state-law claims” (quoting
Carnegie–Mellon Univ., 484 U.S. at 350 n.7)).

The

Court therefore declines to continue exercising
supplemental jurisdiction over Plaintiff’s remaining
state law claims.14

14

28 U.S.C. § 1367(d) provides that
The period of limitations for any claim
asserted under subsection (a), and for any
other claim in the same action that is
voluntarily dismissed at the same time as
or after the dismissal of the claim under
subsection (a), shall be tolled while the
claim is pending and for a period of 30
days after it is dismissed unless State
law provides for a longer tolling period.

28 U.S.C. § 1367(d).
53

CONCLUSION
Based on the foregoing, the Court HEREBY GRANTS
Defendants’ Motion for Summary Judgment, filed May 6,
2015.

The Court grants summary judgment with respect

to Counts I (Title VII discrimination/hostile work
environment), IV (Title VII retaliation), and V (to the
extent it seeks punitive damages pursuant to § 1981a).
The Court DISMISSES Counts II (IIED), III (negligent
hiring/supervision/retention), and V (ratification).
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, June 30, 2015.

_____________________________
Kevin S.C. Chang
United States Magistrate Judge

KULUKULUALANI V. TORI RICHARD, LTD., ET AL.; CIVIL NO. 14-00028 KSC; ORDER
GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND DISMISSING PLAINTIFF’S
STATE LAW CLAIMS

54