Pacheco v. Gold Emblem Produce, Inc.

Filing 23

MEMORANDUM DECISION AND ORDER denying 14 Motion for Summary Judgment, 16 Motion for Summary Judgment, and 18 Motion to Strike. Signed by Judge B. Lynn Winmill.(caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

JUANA ADRIANA PACHECO,
Case No. 4:15-cv-288-BLW
Plaintiff,
v.

MEMORANDUM DECISION AND
ORDER

GOLD EMBLEM PRODUCE, INC.,

Defendant.

INTRODUCTION
The Court has before it cross-motions for summary judgment. The Court heard
oral argument on August 9, 2016, and took the motions under advisement. For the
reasons expressed below, the Court will deny both motions.
ANALYSIS
Gold Emblem’s Motion for Summary Judgment
Pacheco has made out a prima facie case under the McDonnell Douglas burdenshifting analysis. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 805–06 (1973).
She has presented evidence showing that while she was pregnant, and qualified for her
job, she was fired and replaced by a non-pregnant individual. This Court has previously

Memorandum Decision & Order – page 1

held that such a showing satisfies the McDonnell Douglas standard for a prima facie case.
Staley v. U.S. Bank Nat. Ass’n, 2012 WL 3201934 (D.Id. August 3, 2012), Id. at *4.1
This shifts the burden to Gold Emblem to show that Pacheco was fired for a
legitimate reason. Gold Emblem satisfies its burden by alleging that Pacheco was fired
for insubordination after refusing to train another employee to be a pallet tagger. See
Taylor Affidavit (Dkt. No. 14-4) at p. 3; Simpson Affidavit (Dkt. No. 14-3) at pp. 2-3.
To avoid summary judgment, Pacheco must show that this reason is a pretext for
discrimination, and can do that either indirectly (by showing Gold Emblem’s stated
reason for termination is not credible and may be regarded by the jury as pretextual) or
directly (by showing that unlawful discrimination more likely motivated Gold Emblem).
Chuang v. University of California, 225 F.3d 1115, 1127 (9th Cir.2000). With regard to
whether Gold Emblem’s stated reason was not worthy of belief, and therefore pretextual,
Pacheco alleges that she was never asked to train another employee, and thus never
refused to do so. See Pacheco Affidavit (Dkt. No. 16-3) at p. 2. Instead, she claims that
after Randy Taylor learned she was pregnant, he demanded that she accept the help of
another employee to do her job, and she responded that she did not need any help because
she could handle the job herself. Id.

1

The Court would note that an unpublished Ninth Circuit case has held that “[t]o state a prima
facie case of discrimination, [Plaintiff] must show that . . . similarly situated persons not in her protected
class were treated more favorably or that her position was filled by a person who was not pregnant.” See
Fulkerson v. AmeriTitle, Inc., 64 Fed. App'x 63, 65 (9th Cir.2003) (emphasis added). But because
unpublished cases prior to 2007 cannot be used as precedent, the Court will ignore this case.
Memorandum Decision & Order – page 2

If believed, Pacheco’s allegations would demonstrate that Gold Emblem’s claim
that she was insubordinate for refusing to train another employee is not credible. That
would be sufficient to raise a genuine issue of material fact precluding summary
judgment.
In addition, Pacheco claims that there is direct evidence of discrimination. She
has testified that Randy Taylor required her to bring a doctor’s note describing any
limitations that her pregnancy would place on her job duties. See Transcript (Dkt. No.
16-5) at pp. 38-39. She testified that she was told that “if you don’t get this note, you
cannot work here.” Id.2 Her doctor refused to provide the note, telling her that an
employer cannot require such a note. Id. at p. 39.3
Thus, Pacheco alleges that Gold Emblem placed two demands on her because of
her pregnancy (accept help and bring a doctor’s note), and then fired her when she did
not comply with those pregnancy-related demands. If she is to be believed, Gold

2

Gold Emblem seeks to strike this testimony on the grounds it is culled from a transcript of a
Department of Labor hearing that is inadmissible hearsay. But it is a statement of the plaintiff, recalling
the statement of her manager (Taylor) who ultimately fired her. Taylor’s statement would not be hearsay
under Rule 801(d)(2). The fact that Pacheco’s statement is contained in the transcript of an agency
hearing does not make it inadmissible in this summary judgment proceeding. In determining
admissibility for summary judgment purposes, it is the contents of the evidence rather than its form that
must be considered. Fraser v. Goodale, 342 F.3d 1032, 1036-37 (9th Cir. 2003). If the contents of the
evidence could be presented in an admissible form at trial, those contents may be considered on summary
judgment even if the evidence itself is hearsay. Id. (affirming consideration of hearsay contents of
plaintiff’s diary on summary judgment because at trial, plaintiff’s testimony of contents would not be
hearsay). Gold Emblem makes no challenge to the accuracy of the transcript. The Court will deny the
motion to strike.
3

Taylor recalled asking for the doctor’s note but could not recall telling her that if she failed to
bring one, she could not work there. See Transcript, supra at p. 27.
Memorandum Decision & Order – page 3

Emblem was setting her up for termination because she was pregnant, a violation of the
PDA.
Gold Emblem argues that it treats all its employees the same. But there is no
evidence submitted to the Court that Gold Emblem routinely demands that employees
with, say, weak backs or strained ankles, accept the help of another employee or be fired.
Gold Emblem points to a provision in its Medical Screening Procedure stating that
“All employees must be observed for any signs of illness, open sores & lesions on a daily
basis by their supervisors,” and that “depending on the nature of the illness the employee
may be required to bring a doctor’s note before they will be allowed to return to work.”
See Statement of Facts (Dkt. No. 14-2) at ¶ 5. But this provision is limited to illnesses,
and pregnancy is not an illness. There is no evidence before the Court that Gold Emblem
routinely requires employees – who are suspected of having work limitations not related
to illness – to bring a doctor’s note or be fired.
Gold Emblem argues that it was merely attempting to help Pacheco by making
sure she did not damage her health or that of the unborn infant due to the strenuous
demands of her job. Gold Emblem argues that it is being punished for being proactive in
protecting Pacheco. This paternalistic attitude is certainly a cultural norm. But Congress
has spoken that in the workplace, paternalism must give way to equal treatment for the
pregnant woman: Employers must treat “women affected by pregnancy . . . the same for
all employment-related purposes . . . as other persons not so affected but similar in their
ability or inability to work.” See 42 U.S.C. § 2000e(k). Because there are disputed facts
over whether Gold Emblem treated Pacheco the same as it treated other employees
Memorandum Decision & Order – page 4

“similar in their ability or inability to work,” Gold Emblem’s motion for summary
judgment must be denied.
Pacheco’s Motion for Summary Judgment
Pacheco argues that she is entitled to summary judgment because Gold Emblem
imposed on her two restrictions based entirely on her pregnancy that resulted in her being
fired – accept help and bring a doctor’s note. But the discussion above demonstrates that
genuine issues of material fact exist on these claims, precluding summary judgment. The
Court will therefore deny Pacheco’s motion for summary judgment.
ORDER
In accordance with the Memorandum Decision set forth above,
NOW THEREFORE IT IS HEREBY ORDERED, that the motions for summary
judgment (docket nos. 14 & 16) are DENIED.
IT IS FURTHER ORDERED, that the motion to strike (docket no. 18) is
DENIED.

DATED: August 10, 2016

_________________________
B. Lynn Winmill
Chief Judge
United States District Court

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