Opinion
No. C-07-5991 EMC.
June 3, 2009
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (Docket No. 22)
Plaintiff George Harris has filed suit against Defendant Vance International, Inc., his former employer, for employment discrimination based on race. Currently pending before the Court is Vance's motion for summary judgment or, in the alternative, for summary adjudication.
I. FACTUAL PROCEDURAL BACKGROUND
A. Claims at Issue
As a preliminary matter, the Court notes that, in his complaint, Mr. Harris originally claimed discrimination not only on the basis of race, but also on the basis of sex, age, and religion, all in violation of the California Fair Employment and Housing Act ("FEHA"). See Compl. ¶ IV. However, at his deposition, Mr. Harris dropped his claims for discrimination on any basis except for race. See Harris Depo. at 256. As to that claim, Mr. Harris claims both disparate treatment on the basis of race as well as a racial hostile work environment.
As an additional matter, the Court notes that, in his complaint, Mr. Harris originally claimed that Vance's termination of his employment constituted not only discrimination but also retaliation. See Compl. ¶ V. In its motion for summary judgment, Vance argued that there was no genuine dispute of material fact that it did not retaliate. Mr. Harris did not address this argument at all in his opposition. Accordingly, the Court deems the retaliation claim to have been dropped by Mr. Harris as well and Vance is entitled to summary judgment on the claim.
In short, what the Court is left with at this juncture are only claims for (1) disparate treatment based on race and (2) a racial hostile work environment.
B. Mr. Harris's Employment at Vance
Much of the evidence regarding Mr. Harris's employment at Vance is in dispute. There are, however, some facts that appear to be undisputed. They are as follows. See see also See see also See see also See See i.e. See See
(1) Mr. Harris is African American. (2) Vance is a security firm and employed Mr. Harris as a security officer from March 22, 2006, to April 12, 2007. Martinez Decl. ¶ 3; Compl. ¶¶ III, V (alleging that he was hired in March 2006 and then terminated on or about April 12, 2007). (3) During his employment with Vance, Mr. Harris worked at the Richmond San Francisco Chronicle site. Martinez Decl. ¶ 3; Amie Decl. ¶ 2 (noting that Mr. Harris was employed at that site). (4) During his employment with Vance, Mr. Harris's direct supervisor was, first, Natalie Amie and then, when she resigned, Paulette Murphy. Martinez Decl. ¶ 4; Amie Decl. ¶ 1 (stating that she employed by Vance from 2005 to 2007 as manager of all Vance security officers at the Richmond San Francisco Chronicle site); Harris Decl. ¶ 10 (stating that his manager was Ms. Amie). Ms. Murphy began to supervise Mr. Harris as of January 8, 2007. Martinez Decl. ¶ 9. Ms. Murphy is African American. Martinez Decl. ¶ 4. (5) Michael Martinez was hired by Vance on January 4, 2007 — , shortly before Ms. Murphy became Mr. Harris's supervisor. Martinez Decl. ¶ 1; Martinez Reply Decl. ¶ 1. He was hired and has since served as the project manager of security for the San Francisco Chronicle, including the Richmond site. Martinez Decl. ¶ 1; Martinez Reply Decl. ¶ 1. "[His] duties include overseeing all of the security operations for the Richmond San Francisco Chronicle Site. This includes the hiring of employees, training of employees, conducting new hire orientations, disciplining employees, and serving as a liaison between the San Francisco Chronicle and Vance." Martinez Decl. ¶ 1; Martinez Reply Decl. ¶ 1. What is disputed, of course, is whether Mr. Harris suffered employment discrimination while he was working at Vance. According to Mr. Harris, Vance terminated him on the basis of his race, and he suffered a racial hostile work environment while working there. Mr. Harris claims that Mr. Martinez was the person at Vance responsible for the disparate treatment and the hostile work environment.Vance disputes the evidence of discrimination offered by Mr. Harris. According to Vance, Mr. Harris had a history of employment problems which eventually led to his termination on April 12, 2007. Some of these alleged problems predated Mr. Martinez's employment with Vance. Mr. Harris challenges each of the alleged problems, both as an evidentiary matter and as a factual matter.
II. EVIDENCE
A. Evidence of Discrimination
In conjunction with the summary judgment motion, Mr. Harris has offered the following evidence of discrimination to which certain evidentiary objections were made by Vance. See see i.e. See See See before See See See See See See See before See See See i.e. before See See See See, e.g. See See, e.g. Lujan v. National Wildlife Fed'n 497 U.S. 871 888 56 Lindsey v. Shalmy 29 F.3d 1382 1385 Taylor v. List 880 F.2d 1040 1045 Forsberg v. Pacific Northwest Bell Tel. Co. 840 F.2d 1409 1419 Lindsey Lindsey Lindsey 29 F.3d at 1385 Lindsey e.g.
The Court addresses only those evidentiary objections that are relevant to its resolution of Vance's motion for summary judgment.
B. Evidence of Employment Problems
Vance's position, as noted above, is that Mr. Harris was terminated because of employment problems, not because of race discrimination. Vance has submitted evidence of Mr. Harris's alleged employment problems through the declaration of Mr. Martinez. In his declaration, Mr. Martinez testifies to both his personal knowledge of Mr. Harris's alleged employment problems as well as to his knowledge obtained through Mr. Harris's personnel file.Mr. Harris makes a broad challenge to the admissibility of the bulk of the documents attached to the Martinez declaration, arguing that they are hearsay and that they do not fall under the business records exception. See Pl.'s Obj. at 2 (No. 3) (objecting to Exhibits B, C, D, F, H, L, and M of the Martinez declaration); Opp'n at 2 (same). The objections are overruled.
Federal Rule of Evidence 803(6) provides for the business records exception. It states that the following is not excluded by the hearsay rule:
(6) Records of regularly conducted activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by certification that complies with Rule 902(11), Rule 902(12), or a statute permitting certification, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness.
Mr. Harris's main contention seems to be that, because Mr. Martinez is not Vance's custodian of records, he cannot establish that the documents fall under the business records exception. But, as is clear from the language of Rule 803(6), a person need not be a custodian of records; a person may testify so long as he or she is a "qualified witness." Id. The Weinstein treatise explains that what is needed is someone "who can explain the record-keeping of the organization." 5-803 Weinstein's Fed. Evid. § 803.08[8][a]. The treatise also notes that
[t]he phrase "other qualified witness" is given a very broad interpretation. The witness need only have enough familiarity with the record-keeping system of the business in question to explain how the record came into existence in the ordinary course of business. The witness need not have personal knowledge of the actual creation of the documents or have personally assembled the records. In fact, the witness need not even be an employee of the record-keeping entity as long as the witness understands the entity's record-keeping system.Id.
In the instant case, Mr. Martinez has shown that he has a sufficient understanding of Vance's record-keeping system. He testified in his declaration that "Vance maintains personnel files regarding its employees in the regular course of its business. Those personnel files include any documentation regarding disciplinary action taken against an employee." Martinez Decl. ¶ 6. The objection is overruled.
Mr. Harris also objects to Exhibit M of the Martinez declaration on the basis that it is hearsay. Exhibit M is a "summary describing the racial background of the Security Officers employed by Vance at the San Francisco Chronicle Site on January 16, 2008, about one year after [Mr. Martinez] was hired." Martinez Decl. ¶ 16. The summary appears to be based on a review of personnel records. The objection is overruled. Under Federal Rule of Evidence 1006, "[t]he contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation." Fed.R.Evid. 1006.
Having resolved the major evidentiary issues, the Court turns to the evidence of alleged employment problems submitted by Vance. prior See See See See See inter alia See, e.g. See see e.g. See See See See See See See See see See See See See See See See See
See Harris Depo. at 64.
III. DISCUSSION
As stated above, the only remaining claims in this case are (1) disparate treatment based on race and (2) racial hostile work environment. Both are state law claims, i.e., FEHA claims. California Government Code § 12940(a) governs claims for disparate treatment, providing in relevant part that it is unlawful
[f]or an employer, because of the race . . . of any person . . . to bar or to discharge the person from employment or from a training program leading to employment, or to discriminate against the person in compensation or in terms, conditions, or privileges of employment.
Cal. Gov't Code § 12940(a). Section 12940(j)(1), in turn, governs claims for harassment, stating in relevant part that it is unlawful "[f]or an employer . . ., because of race, . . . to harass an employee, an applicant, or a person providing services pursuant to a contract." Id. § 12940(j)(1). According to the California Supreme Court, "[b]ecause of the similarity between state and federal employment discrimination laws, California courts look to pertinent federal precedent when applying our own statutes." Guz v. Bechtel National, Inc., 24 Cal. 4th 317, 354 (2000).
A. Disparate Treatment
As the California Supreme Court has stated, "California has adopted the three-stage burden-shifting test established by the United States Supreme Court for trying claims of discrimination . . . based on a theory of disparate treatment." Id.
At the first stage, the plaintiff must establish a prima facie case of discrimination. "This step is designed to eliminate at the outset the most patently meritless claims. . . ." Id. While "[t]he specific elements of a prima facie case may vary depending on the particular facts," as a general matter, "the plaintiff must provide evidence that (1) he was a member of a protected class, (2) he was qualified for the position he sought or was performing competently in the position he held, (3) he suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests discriminatory motive." Id. at 355; see also Mamou v. Trendwest Resorts, Inc., 165 Cal. App. 4th 686, 713 (2008) ("[T]he elements of a claim for employment discrimination in violation of section 12940, subdivision (a), are (1) the employee's membership in a classification protected by the statute; (2) discriminatory animus on the part of the employer toward members of that classification; (3) an action by the employer adverse to the employee's interests; (4) a causal link between the discriminatory animus and the adverse action; (5) damage to the employee, and (6) a causal link between the adverse action and the damage.").
If the plaintiff makes this prima facie showing, then "the burden shifts to the employer to rebut the presumption [of discrimination] by producing admissible evidence, sufficient to `raise[] a genuine issue of fact' and to `justify a judgment for the [employer],' that its action was taken for a legitimate, nondiscriminatory reason." Guz, 24 Cal. 4th at 355-56.
If the employer meets this burden, "the presumption of discrimination disappears" and the plaintiff must then "attack the employer's proffered reasons as pretexts for discrimination, or to offer any other evidence of discriminatory motive. In an appropriate case, evidence of dishonest reasons, considered together with the elements of the prima facie case, may permit a finding of prohibited bias." Id. at 356. A plaintiff may discredit an employer's proffered reason by demonstrating such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reason for its action that a reasonable factfinder could rationally find that reason unworthy of credence. See Fuentes v. Perskie, 32 F.3d 759, 765 (3d Cir. 1994). A plaintiff may also demonstrate pretext by showing that the employer treated similarly situated employees outside the plaintiff's protected class more favorably. See Vasquez v. County of Los Angeles, 349 F.3d 634, 641 (9th Cir. 2003) ("A plaintiff can show pretext directly, by showing that discrimination more likely motivated the employer, or indirectly, by showing that the employer's explanation is unworthy of credence. [¶] A showing that the County treated similarly situated employees outside Vasquez's protected class more favorably would be probative of pretext.").
In the instant case, Vance argues that, as a matter of law, Mr. Harris cannot establish either a prima facie case or demonstrate pretext.
1. Prima Facie Case
Regarding the prima facie case, Vance makes two arguments: (1) that there is no evidence from which a reasonable jury could find that Mr. Harris was qualified and (2) that there is no evidence suggesting a discriminatory motive. Neither argument is convincing.
As to Mr. Harris being qualified, there is declaration testimony from both Ms. Amie and Mr. Ruiz. Ms. Amie testifies in her declaration that Mr. Harris "had no disciplinary problems" and that "[h]e was prompt, well-dressed, and never left his post unless properly relieved." Amie Decl. ¶ 5. In turn, in his declaration, Mr. Ruiz testifies that Mr. Harris "was a good employee, prompt, loyal, hard-working, well-dressed and groomed, and a credit to the Company." Ruiz Decl. ¶ 9. Mr. Ruiz even goes on to state that he recently offered to hire Mr. Harris at the security company where Mr. Ruiz currently works. See Ruiz Decl. ¶ 9. While there is evidence presented by Vance to the contrary, the declarations from Ms. Amie and Mr. Ruiz by themselves are enough to raise a genuine dispute of material fact as to whether Mr. Harris was qualified.
As to discriminatory motive, there is adequate evidence to raise a disputed issue of fact. That evidence includes Mr. Martinez's use of the word "duckets" with specific reference to African Americans, Mr. Martinez's changing work schedules to favor Hispanics over African Americans, and Mr. Ruiz's testimony that Mr. Harris had no problems until Mr. Martinez was hired. Compare Merrick v. Farmers Ins. Group, 892 F.2d 1434, 1438-39 (9th Cir. 1990) (noting that stray remarks or isolated comments unsupported by other evidence of discriminatory motivation will not create a triable issue). There is additional evidence of discriminatory motive as discussed above including allegations that African Americans were replaced with Hispanics and that Mr. Martinez had a hostile attitude towards African Americans. Although Vance disputes much of that evidence — e.g., whether Mr. Harris was replaced by a Hispanic or whether another African American employee was replaced by a person with the last name Hernandez — factual disputes must be resolved in Mr. Harris's favor for purposes of this motion.
2. Justification and Pretext
Vance argues that, even if Mr. Harris could establish a prima facie case, it has submitted evidence showing that his termination was based on poor performance and, as a matter of law, Mr. Harris has failed to present any evidence of pretext.
Vance has indeed advance neutral performance-based justification for Mr. Harris's termination as discussed above, including his abandonment of his shift, as well as a host of other performance issues. Thus, the burden shifts back to Mr. Harris to show pretext. Evidence of pretext advanced by Mr. Harris includes the following. i.e. see i.e. See supra. i.e.
(1) When Mr. Martinez terminated Mr. Harris, he did not cite any performance problems as the reason for the termination. Rather, Mr. Martinez simply told Mr. Harris that there was a decision to cut back and that Mr. Harris was not a "`perfect fit.'" Harris Depo. at 154-55, 174; Harris Decl. ¶ 13. (2) Charlie Brooks, a Caucasian employee, also violated company policy more than once but was never terminated for his conduct and instead was only written up — , he was treated more favorably. (Vance has never presented any evidence that Mr. Harris's claims about Mr. Brooks's discipline history is incorrect.) (3) Mr. Harris could have been disciplined short of termination for any misconduct. Although Vance did not have an explicit policy requiring progressive discipline, its Security Officer's Handbook could implicitly be read as suggesting such discipline, Martinez Decl., Ex. A at 70 (handbook) (describing different levels of disciplinary action — , counseling, written warning, suspension without pay, and then finally termination). Even if it were not mandatory, progressive discipline was not fully applied here. (4) Evidence that Mr. Harris's performance — both before and after Mr. Martinez started working at Vance — was in fact not an issue, and that the allegations of poor performance were fabrications. Part II.B, (5) Mr. Harris as well as other witnesses (, Ms. Amie and Mr. Ruiz) testified about Mr. Martinez's hostile attitude towards African Americans and replacement of some African Americans by Hispanics. The record is not sufficiently clear to negate testimony with respect to the alleged replacement of some African Americans by Hispanics. The evidence, viewed in Plaintiff's favor with all reasonable inferences drawn in his favor, is sufficient to establish both a prima facie case as well as pretext, notwithstanding evidence of a non-discriminatory basis for Mr. Harris's termination. Accordingly, the Court denies Vance's motion for summary judgment with respect to the disparate treatment claim.B. Hostile Work Environment
For a racial hostile work environment claim, a plaintiff must establish, inter alia, that he or she was harassed on the basis of race and that the harassment was "sufficiently severe or pervasive to alter the conditions of [the victim's] employment and create an abusive working environment." Aguilar v. Avis Rent a Car Sys., 21 Cal. 4th 121, 130 (1999) (internal quotation marks omitted). "An employer is strictly liable for harassment committed by its agents or supervisors. . . ." Jones v. Department of Corrections Rehabilitation, 152 Cal. App. 4th 1367, 1377 (2007).
In the instant case, Mr. Harris charges Mr. Martinez, his supervisor, with having created a racial hostile work environment. Vance argues in its motion for summary judgment that, as a matter of law, Mr. Martinez's conduct was neither sufficiently severe nor sufficiently pervasive to create such an environment.
Here, the undisputed evidence establishes that Mr. Martinez's conduct was not so severe as to constitute a hostile work environment. For example, although there is evidence that Mr. Martinez used the word "duckets" with reference to African Americans in suggesting they only cared about money, there is no evidence that he used other racial epithets or other words that are generally recognized as inflammatory or particularly hurtful. See Swinton v. Potomac Corp., 270 F.3d 794, 817 (9th Cir. 2001) (describing the n-word as "`perhaps the most offensive and inflammatory racial slur in English'"); cf. Aguilar v. Avis Rent a Car Sys., 21 Cal. 4th 121, 130 (1999) (noting that "not every utterance of a racial slur in the workplace violates the FEHA or Title VII"). Nor is there any evidence that Mr. Martinez assaulted, threatened to assault, or used any physical force against African American employees. Cf. Herberg v. California Institute of the Arts, 101 Cal. App. 4th 142, 151 (2002) (noting that "`even a single incident of severe harassment may be sufficient' to establish liability by an employer for sexual harassment" but adding that "such a single incident must be severe in the extreme and generally must include either physical violence or the threat thereof").
"[W]hen the harassing conduct is not severe in the extreme, more than a few isolated incidents must have occurred to prove a [hostile work environment] claim based on working conditions." Lyle v. Warner Brothers Television Productions, 38 Cal. 4th 264, 284 (2006). In other words, a plaintiff cannot establish pervasive harassment — and therefore prevail on a hostile work environment claim — where the harassment "is occasional, isolated, sporadic, or trivial; rather, the employee must show a concerted pattern of harassment of a repeated, routine, or a generalized nature." Id. See also Mokler v. County of Orange, 157 Cal. App. 4th 121, 142 (2007) (noting that "[t]he required level of severity or seriousness varies inversely with the pervasiveness or frequency of the conduct" and that "[s]imple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment") (internal quotation marks omitted).
In the instant case, Mr. Harris failed to provide sufficient evidence to establish harassment so pervasive as to constitute a hostile work environment. There is no indication, for instance, that the "ducket" reference or any other form of verbal race-based harassment was used repeatedly. The evidence of discrimination has been described in Part II.A, supra, reflects that, at most, Mr. Martinez, in addition to the occasional use of offensive language made without explicit reference to African Americans, made four employment decisions adverse to African Americans and/or beneficial to non-African Americans (Ronald Tizon, Charlie Brooks, Jose Morales, and Officer Hernandez), and changed work schedules on an unspecified number of occasions to favor Hispanics as against African Americans. This evidence does not establish the kind of "continuous, pervasive harassment" found by courts to have created a hostile working environment. See Mokler v. County of Orange, 157 Cal. App. 4th at 144-45 (concluding that three incidents that took place over a five-week period, none of which involved a physical threat, fell short of establishing continuous, pervasive harassment; the conduct was "rude, inappropriate, and offensive behavior" but that, "[t]o be actionable, . . . a workplace must be permeated with discriminatory intimidation, ridicule and insult") (internal quotation marks omitted). Hope v. California Youth Authority, 134 Cal. App. 4th 577, 589-90 (2005) (upholding jury finding on hostile work environment claim where, inter alia, plaintiff was called derogatory names by his supervisor and others every day). See also Etter v. Veriflo Corp., 67 Cal. App. 4th 457, 467 (1998) (noting that "isolated incidents, such as the sporadic use of abusive language, will not be actionable").
Mr. Harris points to the declaration of Mr. Ruiz, in which he states that "Mr. MARTINEZ created a hostile environment at the Richmond site, making African-Americans uncomfortable," Ruiz Decl. ¶ 5. While evidence of Mr. Martinez's attitude may provide corroboration of Mr. Martinez's discriminatory motive, as discussed supra, this allegation is too conclusory to establish a hostile work environment at Vance. Mr. Ruiz's declaration provides no specifics about why there was a hostile work environment. In short, Mr. Harris's evidence does not establish "severe or pervasive" harassment sufficient to create an "abusive working environment." Aguilar, supra.
Accordingly, the Court grants summary judgment in favor of Vance on the hostile work environment claim.
IV. CONCLUSION
For the foregoing reasons, Vance's motion for summary judgment is granted in part and denied in part. The motion is granted with respect to the retaliation claim and the claim for a hostile work environment. The motion is denied with respect to the disparate treatment claim.This order disposes of Docket No. 22.
IT IS SO ORDERED.