Opinion
Case No. CV 03-2914 GAF (MCx)
April 2, 2004
MEMORANDUM AND ORDER REGARDING DEFENDANTS MOTION FOR SUMMARY JUDGMENT
I. INTRODUCTION AND SUMMARY
In May 2000, Defendant Jo-Ann Stores ("JAS") hired Plaintiff Donna Meraz, a 52 year-old woman with minimal retail experience, as an "at-will" employee in an entry level position at an hourly rate slightly above California's minimum wage. By the fall of 2002, Meraz had been give modest annual hourly pay increases based on barely adequate performance ratings. During the same period, she had been disciplined on several occasions for cash register shortages, handling her own personal transactions without another employee's involvement, and incorrectly using certain functions on the company cash register. When a new management team took over the operation of the store in September 2002, Meraz became insubordinate because she was asked to perform tasks she apparently felt were not part of her job, even though she shared those tasks with other members of her team.
A few weeks before Halloween 2002, a notice went up encouraging JAS employees to come to work in costume on October 31. More than half of the store's employees, including Meraz, wore their usual work clothes on that day. In Meraz's case, she declined to wear a costume because to do so conflicted with her unspecified religious beliefs. Later that year, when JAS reduced her work hours, Meraz concluded that she was being punished for not working in costume on Halloween. From that belief has sprung this employment lawsuit, in which Meraz claims to have been the victim, not only of religious discrimination, but also of age discrimination and harassment. She further contends that she has been the victim of retaliation for having filed a discrimination claim with the California Department of Fair Employment and Housing, and that the acts that form the basis of the discrimination and harassment claims also establish a breach of an alleged employment contract.
Defendant now moves for summary judgment. Defendant has persuasively demonstrated that Meraz is an at-will employee for the Jo-Ann Stores, that Meraz was an adequate, but not exceptional employee who had been the subject of several disciplinary notices over the period leading up to her hours reduction, and that Meraz has failed to present any evidence that would establish that JAS's proffered explanation for its reduction in her work hours is a pretext to conceal any discriminatory or retaliatory animus. Because the Court concludes that no genuine issue of material fact remains for trial on any of Meraz's claims, JAS's motion for summary judgment is GRANTED in its entirety.
II. FACTUAL BACKGROUND
A. JO-ANN STORES HIRES MERAZPlaintiff first joined Jo-Ann Stores, Inc. ("JAS"), a nationwide retailer of fabrics, crafts, and sewing items, on May 24, 2000 at the Porter Ranch, California retail outlet. (SUF ¶¶ 1-2). Plaintiff joined JAS as a "Team Member" — an entry level position Plaintiff has maintained throughout her entire three-year career at JAS. (Id. ¶¶ 2, 32). When hired, Plaintiff had minimal and dated retailing experience, and thus was hired at an hourly rate just above California's then minimum wage rate of $5.75 per hour. (Id. ¶ 2).
Plaintiff apparently operated a craft business from her home. She made items and then gave them to a friend who then sold the items for her. (PI. Depo. at 19:3-6).
The employment application directed Plaintiff to indicate the days she would be available to work. Plaintiff left Sunday blank. Plaintiff insisted that due to her religious orientation, she not be assigned to work Sundays, a demand for special treatment that Defendant respected. (PI. Depo. at 20:1-21:8; Exh. 1 thereto).
It is undisputed that management had no knowledge of what specific religion Plaintiff practiced.
In her application for employment, Plaintiff acknowledged that working at JAS was expressly "at will," unless modified by a written agreement signed by both herself and a duly authorized officer of the Company. (SUF ¶ 3). Throughout her JAS career, Meraz and JAS have never negotiated or signed such a written, bilateral employment agreement. (Id.). All of JAS' written personnel policies expressly noted Plaintiff's at-will status. (SUF ¶¶ 3, 4).
Throughout Plaintiff's career at JAS, there have been several other Team Members at JAS who are significantly older than Plaintiff and who earn significantly more on a per hour basis than does Plaintiff. (Id. ¶ 11). The list includes the following: Employee Age Hourly Rate of Pay;
Plaintiff Donna Meraz 52 $7.04 per hour Nailoa Ellsworth 74 $7.48 per hour Mary Folwarski 58 $9.27 per hour Mary Atler 60 $9.27 per hour Jeannette Goldstein 69 $7.58 per hour Victoria Martin 55 $13.39 per hour Virginia Athey 74 $7.68 per hour Jeanne Abramson 54 $14.91 per hour Mary Spitz 57 $7.27 per hour (Id.). There are, of course, Team Members who are significantly younger than Plaintiff, a number of whom are paid less than Plaintiff. (Id.).B. MERAZ'S EMPLOYMENT HISTORY
Several written disciplinary notices were issued to Plaintiff during the first two years of Plaintiff's JAS career. (Id. ¶ 9). JAS Operations Mangager, Genia Crews, issued written notices of deficiencies to Plaintiff for: (1) multiple cash register shortages; (2) transacting her own employee purchases in violation of company policy requiring management to preside over such transactions; (3) and overusing the cash register's so-called "quantity key" to transact customer sales. (Id.). Additionally, before the written discipline was issued regarding the quantity key overuse, Crews had spoken to Plaintiff about her excessive use. (Id.). Each written disciplinary action warned that further disciplinary action could be taken against Plaintiff, including termination, unless the noted areas of concern improved. (Id).
Crews is just three years younger than Plaintiff. (SUF ¶ 9).
The disciplinary notices undoubtedly contributed to Meraz's marginal performance evaluations in 2001 and 2002. Like many employers, JAS rated Plaintiff's performance on a numerical point scale. Plaintiff's scores were just one point above an evaluation of "does not consistently meet" or "falls below" expectations. (Exhs. 2 7 to PI. Depo.). Notwithstanding her disciplinary warnings, and marginal performance evaluations, Plaintiff was granted annual hourly pay increases in the summer of 2001 and 2002. (SUF ¶ 10). Plaintiff signed for both her 2001 and 2002 performance evaluations, including the noted hourly increases in pay, and not once claimed or alleged that her newly determined hourly rates of pay were a byproduct of ageist or religious bigotry, (Id.; PI. Depo. at 48:2-11).
C. MANAGEMENT CHANGE AT THE PHILLIPS RANCH JAS STORE
On September 16, 2002, a new JAS management team comprised of Store Manager/Team Leader Lisa Hernandez and Guest Services Supervisor Jo-Ann Miller began working at the Porter Ranch JAS location. (Id. ¶¶ 11 12, 13). Plaintiff directly reported to Miller who was responsible for scheduling Plaintiffs hours of work. (Id. ¶ 12). Hernandez was the immediate supervisor to Miller. (Id. ¶ 13).
D. THE HALLOWEEN INCIDENT
Because of the craft nature of the establishment's retail business, many of JAS's nationwide retail stores actively celebrate Halloween, with workers contributing potluck dishes and dressing up in costume. (Id. ¶ 7). In anticipation of Halloween 2002, a flier was posted in the Porter Ranch store which read:
HALLOWEEN IS COMING AND YOU
EVERYONE AT JO ANN'S WEARS A
KNOW WHAT THAT MEANS. . . . COSTUME FOR HALLOWEEN! GOODIES GALORE
WE'LL MAKE LOTS OF MAGIC
HALLOWEEN FALLS ON
THROUGHOUT THE STORE! THURSDAY, SO DON'T FORGET LET'S MAKE IT THE BEST HALLOWEEN YET!!!!!
(Exh. 8 to PI. Depo). A similar flier was also distributed in prior years. (PI. Depo. at 33:7-22).
Plaintiff, who is a Jehovah's Witness, refused to partake in 2001 Halloween festivities at the store, including electing not to dress up in costume, for religious reasons. (SUF ¶ 7). When Plaintiff elected not to participate in such activities in 2001, she did not explain that her decision was related to her faith, and admits that she did not bear the brunt of any harassment, retaliation, or reduction in scheduled hours for exercising her choice not to dress up for Halloween. (PI. Depo. at 36:11-14;38:11-15).
Plaintiff claims that no later than September 29, 2002, she again made perfectly clear her intention not to participate in the 2002 Halloween festivities. (SUF ¶ 15). Specifically, Plaintiff made a passing remark to Miller that because of her religious beliefs, she did not participate in Halloween, to which Miller made no response. (PI. Depo. at 77:18-25; 79:17-25; 81:2-5). Plaintiff echoed this reason to Crews in November of 2002. (Id. at 40 1-11; 54:11-16). At no time did Plaintiff disclose her particular faith to management, (Id. at 54:3-24; 80:19-25; 81:1). For some workweeks following her announcement, Miller scheduled Plaintiff to work her traditional shift of twenty-plus hours per week. (SUF ¶¶ 14, 15, 18).
Apparently, other co-workers asked why Plaintiff refused to partake in the Halloween festivities to which Plaintiff replied that her faith prevented her from doing so. Management, however, never inquired as to why she elected not to participate. (PI. Depo. at 37:2-8).
Plaintiff followed through with her stance, refusing to don a Halloween costume for the celebrations on October 31, 2002. (SUF ¶ 16; PI. Depo. at 106:25 — 107:2). Plaintiff, however, was not alone in this respect. Several other Team Members, many of whom are older than Plaintiff, also did not wear costumes. The older Team Members who did not dress for Halloween were:
Employee Age Nailoa Ellsworth 73 Mary Folwarski 57 Mary Atler 59 Mary Spitz 56
(SUF ¶¶ 16, 17). Indeed, more employees opted not to don Halloween costumes than those who did. (PI. Depo. at 107:20-24). The absence of Plaintiffs costume went without comment from anyone in store management. (Id. at 107:8-19). Notwithstanding the fact that most of Plaintiff's other co-workers also elected not to work in costume on Halloween in 2002, they experienced no retaliation or retribution from any of the store's managers. (SUF ¶ 16). Moreover, for the first full week of work scheduled after Halloween 2002, Miller scheduled Plaintiff to work a total of twenty-four hours. (SUF ¶¶ 14, 18).
E. POST-HALLOWEEN INSUBORDINATION
In about early November 2002, Miller began to experience what she perceived to be intentional insubordination and belligerence by Plaintiff. (Id. ¶ 19). The same overuse of the store register's "quantity key" occurred. (Id.). When Miller once saw Plaintiff abandon her register post, and warned her against leaving it unattended, Plaintiff told Miller "I don't want to deal with you." (Id.). Furthermore, Plaintiff ignored Miller's directive to have cashiers form two lines of customers during busy times. (Id.). In turn, Miller reduced Plaintiffs scheduled workweek hours, (Id. ¶ 20).
Plaintiff was not the only Team Member deemed to be insubordinate who suffered consequences for her behavior. (Id.), A forty-two-year old Team Member, Robin Resendiz, was similarly viewed by Miller to be a Team Member with unexplained performance problems, and likewise, her scheduled hours were also reduced. (Id.). There is no evidence that other employees who chose not to dress up for Halloween but were not viewed as insubordinate by Miller suffered any reduction in their hours or any other form of discipline.
What's more, not all of the reduced hours of work experienced by Plaintiff were the result of Miller's scheduling. Miller scheduled Plaintiff to work twenty hours for the week of November 17-23, 2003, but Plaintiff called in sick on one of her scheduled days. (Id. ¶ 21). Similarly, Plaintiff called in sick for the workweek of December 15-21, 2002. (Id.).
F. INCIDENTS OF ALLEGED DISPARATE TREATMENT
Plaintiff claims to have suffered, at the hands of Miller, such intolerable practices as being assigned to gather shopping carts from the store's parking lot, on four occasions being asked to clean the store's restrooms, once having her pockets checked when departing the store, and occasionally being disciplined by Miller, who exclaimed "speed it up" in front of customers when Plaintiff's customer lines were backed up. (Id. ¶ 22).
Affidavits by numerous other Team Members, both young and old, and celebrants and non-celebrants of Halloween, demonstrate that they too were required to perform the tasks that Meraz believed were directed at her out of some discriminatory animus. (Id.). Moreover, even since Miller's departure, Team Members have continued to be assigned to such tasks, (Id. ¶¶ 22, 28). Moreover, the pockets and bags of employees are routinely checked at shifts' ends as part of the company's loss prevention policy, (Id. ¶ 24). And, the 2003 hourly rate of pay earned by Plaintiff was much lower than several of her co-workers who are much older than she and higher than workers younger than she. (Id. ¶¶ 11, 30).
Because she has at all times occupied the lowest position within the JAS hierarchy, Plaintiff obviously has never suffered a demotion in the truest sense of the word, although Plaintiff asserts the diminution in hours, resulting in reduced pay, operated as a type of demotion. (Id. ¶ 31). Additionally, Plaintiff admits that she has never once been subjected to age-based or religious-based derogatory comments or slurs, physical assaults, obstructions on the basis of her age or religion, or derogatory cartoons or drawings. Id. ¶ 34).
G. MILLER LEAVES JAS
In mid-December 2002, Miller voluntarily separated her employment with JAS when her husband's job required them to relocate to Delaware. (Id. ¶ 25). As already discussed, at no time during Miller's employment at Jo-Ann's did Plaintiff discuss her specific religious beliefs with Miller. (Id. ¶ 25). Miller did not know what religion Plaintiff practiced. (Id.). Further, Miller did not establish or review the hourly rates of pay for store employees. (Id.).
After Miller voluntarily left JAS in December of 2002, Crews re-assumed scheduling employees' work hours. (Id. ¶ 26). Plaintiff contends that her scheduled work hours continued to be reduced through the workweek ending March 9, 2003. (Id.). Plaintiff, however, does not contend that Ms. Crews held ageist or religious bigoted views of her, at least none that were openly expressed, (Id.). Plaintiff never once discussed what religion she practiced with Crews. (Id.). Moreover, under Crews's supervision, employees continued to be assigned the tasks of gathering shopping carts, cleaning restrooms, and having their pockets checked at the conclusion of their shifts. (Id. ¶ 28). In July of 2003, Plaintiff received another performance evaluation that rated her as just barely "adequate" and received a $.12 incremental increase in her hourly rate of pay, to $7.04 per hour. (Id. ¶ 29).
H. MERAZ'S FILING OF HER DFEH COMPLAINT AND THIS LAWSUIT
On December 24, 2002, Plaintiff filed her first California-based administrative charge of age and religious employment discrimination against JAS. (Id. ¶ 27). Despite clearly marked form boxes for advancing claims of unequal pay, Plaintiff's first filed charge made no mention whatsoever of having been victimized by discriminatory pay practices. (Id.). Crews had no knowledge that such a charge had been filed, and no knowledge that Plaintiff was even alleging discrimination until this suit was served in April of 2003. (Id.). Plaintiff never discussed with Crews or Hernandez the fact that she had filed, or intended to file, a California DFEH charge, of employment discrimination, (Id.).
Plaintiff filed this action in state superior court on February 14, 2003, alleging seven causes of action. The action was removed to this Court on the basis of diversity on April 25, 2003. Plaintiff filed her FAC on August 1, 2003. On August 8, 2003, five months after this suit was filed and removed to this Court based on diversity, Plaintiff with the assistance of counsel, filed a second California age/religion/retaliation charge. (Id.). It too failed to allege any pay disparity practices. (Id.). Plaintiff now contends, in her SAC, that she was inequitably compensated on account of her age. (SAC ¶ 40). That allegation was made nowhere in Plaintiff's twin administrative charges; instead, both charge boxes were left blank by Plaintiff. (SUF ¶ 27).
III. ANALYSIS
A. THE LEGAL STANDARD FOR A MOTION FOR SUMMARY JUDGMENT
Summary judgment is proper where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Thus, when addressing a motion for summary judgment, this Court must decide whether there exist "any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party."Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).
The moving party has the burden of demonstrating the absence of a genuine issue of fact for trial. See id. at 256. A party opposing a properly made and supported motion for summary judgment may not rest upon mere denials but "must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). In particular, when the non-moving party bears the burden of proving an element essential to its case, that party must make a showing sufficient to establish a genuine issue of material fact with respect to the existence of that element or be subject to summary judgment. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, (1986).
An issue is genuine if evidence is produced that would allow a reasonable jury to reach a verdict in favor of the non-moving party.Anderson, 477 U.S. at 248. The Court will assume the truth of direct evidence set forth by the opposing party. See Hanon v. Dataproducts Corp., 976 F.2d 497, 507 (9th Cir. 1992). However, where circumstantial evidence is presented, the Court may consider the plausibility and reasonableness of inferences arising therefrom. See Anderson, 477 U.S. at 249-50; TW Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626. 631-32 (9th Cir. 1987). Inferences drawn from the evidence must be viewed in a light most favorable to the nonmoving party. Eastman Kodak Co. v. Image Technical Servs., Inc., 504 U.S. 451, 456 (1992). "A mere `scintilla' of evidence will not be sufficient to defeat a properly supported motion for summary judgment; rather, the nonmoving party must introduce some `significant probative evidence tending to support the claim.'" Summers v. Teichert Son, Inc., 127 F.3d 1150, 1152 (9th Cir. 1997) (quoting Anderson, 477 U.S. at 252, 249); see also Eisenberg v. Ins. Co. of N. Am., 815 F.2d 1285, 1288 (9th Cir. 1987) (holding that summary judgment may be granted if the opposing party's "evidence is merely colorable . . . or is not significantly probative"). Thus, if a defendant moves for summary judgment and establishes that the undisputed facts prove that the plaintiffs case lacks one of its essential elements or that there is a complete defense to that cause of action, the motion must be granted.
B. SUMMARY JUDGMENT Is GRANTED WITH RESPECT TO PLAINTIFF'S CONTRACT CLAIMS
Plaintiffs contract claims each allege that Defendants breached their agreement by reducing her work hours in November 2002. (SAC ¶¶ 24, 32, 35). However, in support of these claims, Meraz offers no evidence of any sort that the parties either expressly or impliedly entered into an employment contract with respect to her work hours or any other aspect of her employment.
1. Indefinite Employment Relationship's Are Presumed To Be "At-Will";
In California, a presumption exists that an employment relationship of indefinite duration is intended to be terminable at will by either the employer or employee, Foley v. Interactive Data Corp., 47 Cal.3d 654. 680 (1998). The California Labor Code includes a statutory provision to the same effect. See CAL. LABOR CODE § 2922. Because it is presumed that an employee may be discharged at will, the California Supreme Court has held that the at-will presumption clearly applies to lesser adverse employment actions. Scott v. PG E Co., 11 Cal.4th 454, 465 (1995). Accordingly, for an "at-will" employee, actions such as demotions and reduction in work hours are matters that are within managerial discretion and will not support a breach of contract claim. Id.
California courts have consistently enforced written at-will employment disclaimers, such as the one present in this case, absent specific and identifiable evidence of an employer's contrary intent. Guz v. Bechtel National, Inc., 24 Cal. 4th 317, 339-40 (2000); see also., Slivinsky v. Watkins-Johnson Corp., 221 Cal.App.3d 799, 805 (1990); Waaner v. Glendale Adventist Med. Ctr., 21 Cal.App.3d 1379, 1388 (1989); Gerdlund v. Electronic Dispensers Intl., 190 Cal.App.3d 263, 276 (1987); Malmstrom v. Kaiser Alum. Chem. Corp., 187 Cal.App.3d 299, 316 (1986). California law presumes that the written understanding between the parties supersedes all prior or contemporaneous oral agreements.Malmstrom, 187 Cal.App.3d at 315.
Whether the exercise of managerial discretion in a specific case has been limited by contract depends upon several factors such as "`the personnel policies or practices of the employer, the employee's longevity of service, actions or communications by the employer reflecting assurances of continued employment, and the practices of the industry in which the employee is engaged.'" Foley, 47 Cal.3d at 680 (quoting Pugh v. See's Candies, 116 Cal.App.3d 311, 327 (1981)). In its most recent pronouncement on the subject, the California Supreme Court placed limits on the Foley doctrine:
Foley asserted that "the totality of the circumstances" must be examined to determine whether the parties' conduct, considered in the context of surrounding circumstances, gave rise to an implied-in-fact contract limiting the employer's termination rights. We did not suggest, however, that every vague combination of Foley factors, shaken together in a bag, necessarily allows a finding that the employee had a right to be discharged only for good cause, as determined in court. On the contrary, "courts seek to enforce the actual understanding" of the parties to an employment agreement.Guz, 24 Cal. 4th at 336-37 (citations omitted). Meraz's contract claims must be evaluated in light of this controlling California precedent.
2. The Undisputed Facts Refute the Existence of an Express Agreement
The California Supreme Court in Guz recognized that the employment arrangement is fundamentally contractual. Id. at 335. Therefore, according to the Court:
Though Labor Code section 2922 prevails where the employer and employee have reached no other understanding, it does not overcome their "fundamental . . . freedom of contract" to depart from at-will employment. The statute does not prevent the parties from agreeing to any limitation, otherwise lawful, on the employer' s termination rights.Id. at 336 (citations omitted). Like any other contract, the employment agreement may be express or implied. Id. Here, Meraz has provided no evidence whatsoever of any express agreement regarding her work hours. On the contrary, all of JAS's written personnel policies expressly noted Plaintiffs at-will status. (SUF ¶¶ 3, 4). In the employment application process, Plaintiff signed a JAS document that stated:
I understand that, if hired, my employment is "at-will" and either I or my employer may terminate my employment at anytime, with or without cause, unless the "at-will" arrangement is modified by a written agreement signed both by me and a duly authorized officer of the Company.
(Id. ¶ 3). Plaintiff admits that since being hired, she has never possessed an agreement signed by both herself and any duly authorized officer of JAS purporting to alter her at-will employment arrangement. (Id.). Likewise, she provides no evidence of any oral agreement governing any term or condition of her employment. When deposed, Plaintiff conceded that no one had any discussions with her at any time concerning the requisite criteria, if any, for demoting or reducing the scheduled work hours of employees. (SUF ¶ 5). Indeed, had she offered such evidence, she would have had to establish that it statements were made to her under conditions that would overcome the limitations in the JAS Human Resources Manual which expressly states:
No associate may rely on any statement to the contrary [regarding her at-will status]. Nothing in this manual is intended or may be construed as a contract, express or implied, and cannot be relied upon as creating any rights, contractual or otherwise. This an all other policies may be changed, supplemented, or eliminated entirely be Fabri-Centers at any time.
(Id. ¶ 4). Because Meraz has offered no evidence of any promises or assurances by anyone in management at JAS, the Court need not address the effect of the manual on the express contract claim.
Having failed to present any evidence of an express contract covering the terms and conditions of her work hours, Meraz's express contract claim fails as a matter of law. 3. The Undisputed Facts Refute the Existence of an Implied Contract
Even the operative complaint, which does not constitute evidence on which Plaintiff could rely to oppose the motion, states the contract case in extremely general terms, and asserts that vague statements and imagined assurances give rise either to an express or an implied contract (she is apparently unsure which). (See e.g., SAC ¶¶ 21, 27). Even if evidence were presented that such statements were made, any of JAS's communications purportedly relied upon by Plaintiff to establish herFolely exception are the sort of "oblique language [that] will not, standing alone, be sufficient to establish agreement." Foley, 47 Cal.3d at 681. Although the terms of a contract need not be stated in the minutest detail, there must be evidence of a meeting of the minds upon the essential features of the Agreement, and the scope of the duties and limits of acceptable performance be at least sufficiently defined.Scott, 11 Cal.4th at 467. "In other words, courts will not enforce vague promises about the terms and conditions of employment that provide no definable standards constraining an employer's inherent authority to manage its enterprise." Id. at 473.
Moreover, Plaintiff cannot satisfy the Guz/Foley test for advancing an implied-in-fact contract claim. Under Guz, where an employer supplies workers with applications, handbooks and manuals stating that employment is "at-will," specific evidence of the employer's contrary intent must be proffered to establish an agreement. In opposing a motion for summary judgment on the issue, the Plaintiff must show the existence of disputed facts from which a jury could find the existence of an agreement. Guz, 24 Cal. 4th at 337 ("[W]here the undisputed facts negate the existence or the breach of the contract claimed, summary judgment is proper.")
The typical implied-in-fact contract case involves a long-term employee who has been given significant raises over the years, has been given favorable performance reviews, has received assurances of continued employment over the years, works in an industry where terminations or adverse employment actions require a showing of good cause, and where manuals and policy statements suggest that no adverse action will be taken without certain procedures being followed and good cause being shown. See generally id. No particular combination of factors is dispositive, and even the presence of these factors may not be sufficient to establish a contract where the employer's contrary intent is clear from the record. The Ninth Circuit has expressly held that employment longevity, raises, and promotions without specific words or conduct by the employer negating at-will employment, will not suffice to raise triable issue of fact. Moreau v. Air France, 343 F.3d 1179, 1191 (9th Cir. 2003).
Plaintiff has presented no evidence whatsoever that would provide a basis for a jury to find for her on her implied-in-fact contract claim if it were presented at trial. First, as noted in the express contract discussion, not only has Plaintiff failed to identify any specific writing or any statements made to her that would imply the existence of an employment agreement on the subjects of her dispute with her employer, she also leaves completely uncontested Defendants' evidentiary items to the contrary. Moreover, the job application, handbooks, and manuals contain no statements that would undercut her at-will status, and indeed unequivocally support the defense position that JAS workers were at-will and that no associate could rely on any statement or promise to the contrary, (Id. ¶¶ 3, 4). In short, Meraz claims the existence of an implied in fact contract without citing to a single policy, practice or communication by Defendant JAS that might arguably have led Plaintiff to conclude that she would not be demoted or experience a reduction in hours without cause.
Notably, "most cases applying California law . . . have held that an at-will provision in an express written agreement, signed by the employee, cannot be overcome by proof of an implied contrary understanding." Guz, 24 Cal.4th at 340 n. 10. Moreover, the more clear, prominent, complete, consistent, and all-encompassing the disclaimer to employees is, the greater is the likelihood that workers could not form any reasonable contrary understanding. Id. at n. 11. In this case, Meraz offers no evidence to explain how she came to the understanding that the policies expressed in the employment application and employment manuals did not apply to her.
Similarly, none of the other factors that one typically finds in implied-in-fact employment cases are present in this dispute. As to Meraz's position in JAS and her performance of her job duties, the record establishes that Plaintiff is a low-level, relatively short-term employee whose performance was barely adequate during her first two years of employment. Rather than praise and awards, she has been the recipient of criticism and discipline during her relatively brief tenure with the company. Thus, the kind of assurances that are often made to employees performing well have not been made to Meraz during her time with JAS.
In sum, as the foregoing discussion of the record indicates, Meraz has presented no evidence even to hint at the existence of an implied-in-fact contract, let alone to create a genuine issue of material fact for trial.
4. Plaintiff's Good Faith and Fair Dealing Claim Cannot Survive
Because Plaintiff's contract claim is unable to survive the FED. R. CIV. P. 56 inquiry, Plaintiff's good faith and fair dealing claim is not viable. Guz, 24 Cal.4th at 349. Accordingly, Defendants are entitled to judgment as a matter of law on all of Plaintiff's contract claims.
C. PLAINTIFF'S WAGE DISPARITY CLAIM IS JURISDICTIONALLY BARRED
Plaintiffs SAC alleges that Plaintiff was compensated at a lower rate of pay than younger employees with less experience. (SAC ¶ 40). However, neither of Plaintiff's pre-suit charges remotely allege that she suffered any pay discrimination. (SUF ¶ 27). "Under California law `an employee must exhaust the . . . administrative remedy' provided by the Fair Employment and Housing Act, by filing an administrative complaint with the California Department of Fair Employment and Housing (DFEH)."Martin v. Lockheed Missiles Space Co., 29 Cal.App.4th 1718, 1724 (1994) (quoting CAL. COV. CODE §§ 12960, 12965). To exhaust his or her administrative remedies as to a particular act made unlawful by FEHA, the plaintiff must specify that act in the administrative complaint, even if the complaint specifies other cognizable wrongful acts. Yurick v. Superior Court, 209 Cal.App.3d 1116, 1121-23 (1989). "`[T]he failure to exhaust an administrative remedy is a jurisdictional, not a procedural, defect,' and thus the failure to exhaust administrative remedies is a ground for a defense summary judgment." Id. (quoting Miller v. United Airlines, 174 Cal.App.3d 878, 890 (1985)).
Moreover, to the extent that Plaintiff's pay discrimination claim is based on her initial hiring rate of pay, it may be time barred by the one-year limitations period because Plaintiff was hired on May 24, 2000. CAL. Gov. CODE § 12960(d). Because; Plaintiff failed to exhaust her administrative remedies with respect to any claim for pay discrimination and the statute of limitation may bar such a claim, Defendants are entitled to defense summary judgment on Plaintiffs wage disparity claims.
D. SUMMARY JUDGMENT SHOULD BE GRANTED WITH RESPECT TO PLAINTIFF'S AGE AND RELIGIOUS DISCRIMINATION CLAIM
In addition to the alleged wage discrimination claim, Plaintiff asserts that either because of her fifty-one years of age, or perhaps because of her election not to dress up for Halloween in 2002, she suffered an adverse employment action in the form of reduced work hours, demotion, being asked to gather shopping carts from the parking lot, four times being asked to clean the store's restrooms, once having her pockets checked when departing the store, and occasionally being admonished by Miller to "speed it up" in the presence of store customers. (SUF ¶ 22; SAC ¶¶ 39-41).
1. McDonell Douglas Burden Shifting Analysis Applies to FEHA Claims
Because California courts use related federal precedent regarding similar federal laws when applying state discrimination laws, a plaintiff alleging discrimination under FEHA must survive the burden shifting analysis set forth by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Guz, 24 Cal. 4th, at 354 (stating "[b]ecause of the similarity between state and federal employment discrimination laws, California courts look to pertinent federal precedent when applying our own statutes," and noting adoption ofMcDonnell Douglas analysis); Horn v. Cushman Wakefield Western, Inc., 72 Cal.App.4th 798, 806 (1999). The test reflects the principle that direct evidence of intentional discrimination is rare, and that such claims must usually be proved circumstantially. Guz, 24 Cal.4th at 354. Thus, by successive steps of increasingly narrow focus, the test allows discrimination to be inferred from facts that create a reasonable likelihood, of bias and are not satisfactorily explained,Id.
In the first step of the McDonnell Douglas test, the employee plaintiff must establish a prima facie case of discrimination. Winarto v. Toshiba Am. Elect. Co., 274 F.3d 1276, 1284 (9th Cir. 2001); Guz, 24 Cal.4th at 354. If the employee does so, then in the second step, burden of production shifts to the defendant to articulate a legitimate non-discriminatory explanation for the adverse employment action. Guz, 24 Cal.4th at 355-56. Finally, in the third step, if the employer rebuts the inference of discrimination, the burden of production shifts back to the plaintiff to show that the defendant's explanation is merely a pretext for impermissible discrimination. Id. While the burden of production may shift, the "ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff." Texas Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981); Guz, 24 Cal.4th at 356.
2. Prima Facie Case of Discrimination
In order to show a prima facie case of discrimination, a plaintiff must offer evidence that "gives rise to an inference of unlawful discrimination." Nidds v. Schindler Elevator Corp., 113 F.3d 912, 917 (9th Cir. 1996). While the prima facie burden is not onerous, Burdine, 450 U.S. at 444, the plaintiff must at least show actions taken by the employer from which one can infer, if such actions remain unexplained, that it is more likely than not that such actions were based on a prohibited discriminatory criterion. Guz, 24 Cal.4th at 354.
The specific elements of a prima facie case may vary depending on the particular facts. Burdine, 450 U.S. at 253 n. 6. Generally, the plaintiff must provide evidence that (1) she is a member of the protected class; (2) she was qualified for the position sought or was performing competently in the position she held; (3) she suffered an adverse employment action, such as termination, demotion, or denial of an available job; and (4) some other circumstances suggest discriminatory motive. Guz, 24 Cal.4th at 355.
For purposes of its consideration of the present motion, the Court will assume without discussion that the elements of a prima facie case have been met, and will turn to a consideration of the proffered explanation for the defendant's actions and an assessment of whether Meraz has presented evidence that would tend, if believed, to show that the proffered explanation was a pretext to conceal a discriminatory animus.
3. Defendant's Legitimate Non-discriminatory Reasons
On summary judgment, a defendant who presents "clear and reasonably specific" legitimate reasons for its actions toward the plaintiff-employee shifts the burden to the plaintiff to present evidence that the reasons given were pretextual. Burdine, 450 U.S. at 255-58. The true reasons, if nondiscriminatory, need not have been wise or correct. Guz, 24 Cal.4th at 358. While the objective soundness of an employer's proffered reasons supports their credibility, the ultimate issue is simply whether the employer acted with a motive to discriminate illegally. Id. Thus, legitimate reasons in this context are reasons that are facially unrelated to prohibited bias, and which, if true, would thus preclude a finding of discrimination. Id.
Defendants have set forth competent, admissible, and persuasive evidence of their reasons why they temporarily diminished Plaintiffs hours and verbally reprimanded her.
From the outset, Meraz was a marginal employee. She had come to JAS with no recent retail experience, (PI. Depo. at 11-13, 19:3-6), and developed a poor performance record that preceded the events that she claims reveal age or religious bias. In her first annual performance review in June 2001, she barely qualified for the "meeting expectations" rating, and received only a $.25 per hour raise. (Crews Aff. ¶ 6; Exh. E thereto). No doubt this rating reflected criticisms she had received regarding shortages in her cash drawer in November 2000, (Id. ¶ 2; Exh. A and January 2001 (Id. ¶ 3; Exh. B thereto), and her handling of her own transactions, with the store in early June 2001. (Id. ¶ 4, Exh. C thereto). These events are clearly set forth in written "Performance Improvement Plans, contained in Meraz's personnel file. In these documents, Meraz was unambiguously notified of the seriousness of her transgressions. In November 2000, for example, regarding a $37.95 shortage in Meraz's cash drawer, Crews advised Meraz that "if this occurs again it will result in further disciplinary action up to including termination." (Id.; Exh. A thereto). Meraz refused to sign the written notice of her performance deficiency. Again in January 2001, when she was short $11.90 in her cash drawer, Crews prepared a second Performance Improvement Plan in which Crews again advised Meraz of the seriousness of the problem and warned that repetition in the future would lead to further discipline "up to and including termination." (Id.; Exh. B thereto).
In June 2001, Crews disciplined Meraz for transacting three of her own purchases from the store without arranging to have the transactions completed by a member of the store's management. (Id. ¶ 4.) Crews advised Meraz of the policy prohibiting employees from handling their own transaction, and placed a written note of the incident in her personnel file, (Id.; Exh. C thereto). Meraz was again advised that further violations could result in discipline up to and including termination. (Id.).
In late 2001, Meraz was disciplined again — this time for improperly recording transaction under the "quantity" key on the cash register, (Id. ¶ 5; Exh. D thereto). Before Crews disciplined Meraz for this error, she had spoken to Meraz and explained that the "quantity" key on the cash register should be used only in certain circumstances. (Crews Aff. ¶ 5.) Crews again prepared a Performance Improvement Plan, met with Meraz, explained the problem, and warned her that repetition in the future could lead to termination, (Id. ¶ 5; Exh. D. thereto).
By June 2002, when Meraz came up for her second review, her evaluation had not improved. She again barely qualified for the lowest level of acceptable performance, and was award a 2.5% ($.27/hour) raise. (Id. ¶ 6; Exh. E. thereto). Meraz signed the review acknowledging that she had: received it. (Id.). Notably, Meraz has not claimed that these reviews were the product of ageist or religious bigotry, and has not claimed that Crews, who was only three years younger than Meraz, was motivated by age or religious bigotry.
In September 2002, JAS installed a new management team at the Porter Ranch store, one of whom was Jo-Ann Miller, who became Meraz's new supervisor. (SUF ¶ 12). Miller reported to Laura Hernandez. (Id. ¶ 13). At the time of their arrival, Meraz worked between 20 and 28 hours per week. (Id. ¶ 14). During the last two weeks of October 2002, Miller scheduled Meraz to work 20 hours (week of October 20) and 16 hours (week of October 27), and during the first full week after Halloween, Miller scheduled Meraz to work 24 hours. (Miller Aff. ¶ 5; Exh. E thereto). In fact, Miller made no significant reduction in Meraz's hours until November 10, 2002, and then only because Meraz continued to perform poorly, and refused to follow Miller's directions and counseling, (Id. ¶ 6). Miller noted the following:
1) Miller spoke with numerous occasions to Meraz regarding Meraz's habit of leaving her cash register unattended during work hours. (Id. ¶ 7).
2) In October 10, 2002, Miller observed Meraz leaver her cash register unattended and attempted to direct her not to leave the store. Meraz ignored Miller's requests for her attention, and went into the parking lot to retrieve shopping carts. She then refused to discuss with Miller the reasons why Miller did not want the cash register left unattended during store hours. Miller noted the incident in Meraz's personnel file. (Id.; Exh. A thereto). Hernandez also noted the incident in a written "Performance Improvement Plan," that was presented to and signed by Meraz. (Hernandez Aff. ¶ 5; Exh. C thereto). In that document, Hernandez noted, "Dissappearing [sic] from the register . . . will not be tolerated." (Id.).
3) Prior to November 10, 2002, Miller had spoken with Meraz on several occasions regarding the procedure to be followed when the store was crowded. Meraz on several occasions refused to follow Miller's direction and attempted to engage customers in the discussion as she ignored Miller's request. On other occasions, she simply refused to comply. (Miller Aff. ¶ 8).
4) Despite earlier warnings regarding the use of the "quantity" key on the cash register, Meraz continued to improperly use the key in violation of company policy (which was imposed as a loss prevention practice). (Id. ¶ 9). When Miller observed that Meraz continued to violate the policy, she too warned Meraz that it was against company policy to use the quantity key for transactions involving fewer than six items. (Id.). Meraz ignored these warnings, (Id.; Exhs. C D thereto).
Having counseled Meraz regarding her shortcomings, and having received no satisfactory response from her, Miller reduced Meraz's work hours in mid-November 2002. Meraz admits that Miller informed her that her hours were reduced because Plaintiff was "slow" and "unproductive," (PL Depo at 68:20-21; 117: 23-25; 118:1-6; 119:11-18). When Plaintiff confronted Hernandez regarding her reduced hours, Hernandez corroborated Miller's earlier statement and informed Plaintiff that Miller considered her unproductive. (Id. at 68:20-21; 117:23-25; 118:1-6, 24-25; 119:1-18). No one at JAS vacillated or advanced inconsistent reasons why Meraz's hours were being reduced.
Although Plaintiff claims that deeming someone slow is an actionable euphemism for age, existing case law holds that such statements are not direct evidence of age discrimination. Cummings v. Benco Blgd. Srvs., 10 Cal.App.4th 745, 754 (1992) (discussing that deeming someone slow is not direct evidence of age discrimination). Moreover, in the present context, such evidence can hardly be considered specific and substantial enough to establish circumstantial evidence of ageist bias.
The Court notes that Meraz was not the only employee to receive this sort of discipline. At least one other, considerably younger, employee — Robin Resendiz — also had her hours reduced because of repeated poor performance and insubordination. (Id. ¶ 12.)
Furthermore, the evidence reveals that Plaintiff was herself responsible for the "reduction" in her work hours on at least two occasions. Miller scheduled Plaintiff to work twenty hours for the week of November 17-23, 2003, but Plaintiff called in sick on one of her scheduled days. (Id. ¶ 21). Similarly, Plaintiff called in sick for the workweek of December 15-21, 2002. (Id.). Thus, the "reduction" in Plaintiff's work hours during these weeks has no relevance at all to the alleged discrimination by JAS.
Regarding what might loosely be described as "harassment" motivated by unlawful discrimination — having her pockets check once as she left the store for the day, and being told to "speed it up" as she worked the cash register — JAS has presented uncontradicted evidence that other employees also had their pockets checked from time to time, and that other employees were also critiqued if they were slow in the operation of the cash register. (SUF ¶ 22). Miller admits that she spoke to a number of store employees on the spot, sometimes in the presence of customers, if she observed the employee failing to adhere to company policies and procedures. (Miller Aff. ¶ 14). Other employees have acknowledged having their pockets checked upon their departure from work as part of the company's loss prevention protocol. (See e.g., Miranda Aff. ¶ 4; Devers Aff. ¶ 4; Baldonado Aff. ¶ 4).
As to the request that Meraz perform other unpleasant duties — collecting shopping carts from the parking lot and cleaning the restrooms — JAS submits uncontradicted evidence that these tasks were also assigned to other team members from time to time. (See e.g., Baldonado Aff. ¶ 4; Athey Aff. ¶ 4; Martin Aff. ¶ 4; Ellsworth Aff. ¶ 4).
Accordingly, JAS has submitted substantial evidence of its legitimate, non-discriminatory reasons for temporarily reducing Meraz's work hours in late 2002.
4. Meraz Presents No Evidence Creating an Issue of Fact for Trial Regarding Pretext
Once the employer rebuts the inference of discrimination, the burden of production shifts back to the plaintiff to present evidence creating a triable issue of fact that defendant's reason was not the actual reason for its actions or that it was merely a pretext for discrimination.Burdine, 450 U.S. at 253. The Ninth Circuit has held that a plaintiff may prove pretext in two ways: (1) indirectly, by showing that the employer's proffered explanation is "unworthy of credence" because it is internally inconsistent or otherwise not believable, or (2) directly, by showing evidence of discriminatory animus on the part of the decision-makers.Blue v. Widnall, 162 F.3d 541, 546 (9th Cir. 1998); Nidds, 113 F.3d 912, 918 (1997). To establish pretext, very little direct evidence of discriminatory motive is sufficient, but if circumstantial evidence is offered, such evidence has to be specific and substantial. Winarto, 274 F.3d at 1284.
a. Age Discrimination
Meraz argues that JAS's reduction in her hours was motivated by age discrimination. In support, Meraz first presents data showing that after Plaintiff's hours were reduced the store hired fifty new employees, 74% of which were under age forty, most under age thirty and 50% of the total being under the age of twenty. (Plaintiffs Index Exh. 1(a) at 7-10; Opp. at 3). This data is insufficient to establish an inference of discriminatory animus. Meraz presents no evidence regarding the time frame in which these hires occurred, the applicant pool, the positions filled, the qualifications of the applicants, the persons replaced (if any), or the change (if any) in the hours worked by other employees during the period. All of this information would be necessary before a circumstantial case of age discrimination could be made out. Every court to have considered the issue thus far has held that such bare bone, bottom line statistics, without accompanying foundational evidence, including an analysis of the relevant applicant pool, lend nothing to an employment discriminating analysis. See e.g., Moore v. Hughes Helicopters, 708 F.2d 475, 484 (9th Cir. 1983); Haaans v. Andrus, 651 F.2d 622, 627 (9th Cir. 1980); Selbvv. Pepsico, Inc., Supp. 750, 756 (N.D.Cal. 1991).
Meraz apparently seeks refuge in these statistics because she cannot point to any direct evidence of age discrimination. Meraz's purported evidence of pretext contains no statements by any management level employee containing any remark that remotely hints at age discrimination. Moreover, the undisputed evidence establishes that similarly situated younger workers were subjected to similar discipline to that imposed on Meraz. For example, it is undisputed that younger workers whom Hernandez also perceived to be unproductive also suffered a reduction in their work schedules. (SUF ¶¶ 20, 22). On the other hand, workers older than Meraz, aged 73, 57, 59, and 56, have been able to thrive in JAS's employ. (Id. ¶ 17). At least eight older employees at the Porter Ranch store were paid higher wages than Meraz, some significantly higher. If Miller and others at JAS were truly biased against older workers, one would have expected that these much older workers would have been the subject of similar discriminatory actions. The fact that younger, unproductive workers were disciplined, and that older productive workers were not, thoroughly undermines Meraz's claim that her treatment resulted from age discrimination rather than her own shortcomings and insubordination.
Likewise, Meraz has failed to present any evidence that would tend to rebut the numerous affidavits from young and old Team Members relating that they were also assigned the tasks of gathering shopping carts, cleaning restrooms, having pockets checked, and occasionally being disciplined by Miller in the presence of store customers. (Id. ¶ 22). Rather, Plaintiff offers a single affidavit, from former employee Alex Gutierrez, whose employment predated Miller's supervision and who was not employed at JAS during October through December 2002. Thus, the affidavit has no relevance to the issues before the Court.
Meraz contends that the Court should ignore JAS's evidence because many of the affidavits contain the same or similar language indicating that "the witnesses did not use their own words or ideas." (Opp. at 15). The argument bears little comment. "[A]ffidavits in litigation are prepared by lawyers, and merely signed by affiants." DF Activities Corp. v. Brown, 851 F.2d 920, 922 (7th Cir. 1988). The fact that affidavits are similar does not negate their value for purposes of summary judgment.Jones v. Owens-Corning, 69 F.3d 712, 718 (4th Cir. 1995). A party may not "merely recite the incantation `credibility,' and have a trial on the hopes that a jury may disbelieve factually uncontested proof." Corrugated Paper Prods., Inc. v. Longview Fibre Corp., 868 F.2d 908, 914 (7th Cir. 1975) (quoting Curl v. I.B.M. Corp., 517 F.2d 212, 214 (5th Cir. 1975)). If Plaintiff truly believed that affiant's testimony is not credible, then it was incumbent upon her to depose them or otherwise explore their testimony during discovery and attempt to expose any inconsistencies in their testimony which could cast doubt on their affidavits. Jones. 69 F.3d at 718. Plaintiff has not done so, and thus these affidavits are now uncontradicted.
Plaintiff's counsel does relate the content of a hearsay telephone call with affiant Zornes in which Zornes allegedly told counsel that he did not sign an affidavit and "would never get involved like that." (Index of Evidentiary Support Exh. 3 ¶ 5). Zornes's affidavit was solicited and executed before a notary republic for the State of California. (Decl. of Cecilia Leonard Exh. 25 to Supp. Pryatel Decl.), Leonard verified Zornes' identity through an un-expired California driver's license bearing his picture. (Id.). Zornes executed the notary log book and his signature is identical to the signed signature that appears in his affidavit filed with the Court. (Zornes Affidavit Exh. 9 to Defendant's Index). In fact, Zornes's signature on his filed affidavit is virtually identical to the employment documents executed by him while an employee of JAS. (Kaminski Decl. attached to Exh. 26 to Supp. Pryatel Decl.). Even if the Court could consider Plaintiffs counsel's hearsay grounds, the fact remains that the Zornes' affidavit meets the requirements for filing under FED. R. CIV. P. 56(e).
Even if the Court had not found Plaintiff's pay discrimination claim to be jurisdictionally barred, the foregoing evidence demonstrates the complete lack of merit in that claim. Plaintiff's hiring rate of pay was determined from her minimal, and dated, retail background. (SUF ¶ 2). "Lack of retail experience" is a permissible criteria to justify pay disparities. Quinn v. Salvation Army, 83 Fair Empl. Prac. Cas. 172, 176 (C.D. Cal. 2000). Any later increase awarded to Plaintiff were driven by her annual performance evaluations. (SUF ¶ 10). Several other Team Members who were much older than Plaintiff are compensated at higher hourly wage rates, a phenomenon that is simply irreconcilable with an organization bent on age discrimination, (Id. ¶ 11). Moreover, there are younger Team Members who are compensated at lower hourly rates than Plaintiff. (Id.). All of this evidence persuasively demonstrates that Meraz cannot show a genuine issue for trial on her age discrimination claim.
b. Religious Discrimination
Plaintiff alternatively argues that she was demoted and her work hours diminished because she elected, for religious reasons, not to dress up for Halloween in 2002. (SAC ¶¶ 57-58). Plaintiff made a similar, unfettered choice in 2001, and suffered no apparent retribution for doing so. (SUF ¶ 7). Additionally, the mere fact that Plaintiff, for unexpressed religious reasons, elected not to dress up in costume was quite unremarkable. Plaintiff admits that more store employees chose not to dress up in costume than did dress up. (Id. ¶ 16). None of the other non-dressers suffered any form of retaliation, retribution, or adverse employment action. (Id.). Many of these non-dressers were older than Plaintiff, and suffered no retaliation by Miller, which also makes Plaintiff's cry of age discrimination even less compelling. (Id. ¶¶ 16, 17). When Plaintiff appeared at work on October 31, 2002 without costume, no one in JAS management made any smart, rude, or snide comments. (PI. Depo attached at Exh. 2 to Pryatel Decl. at 107:3-19).
These facts refute any claim that JAS's stated reasons for disciplining Meraz were a pretext to conceal illegal religious discrimination, and Meraz presents no evidence that would even create a triable issue on that question. Instead, Plaintiff points only to the timing of her reduction in scheduled hours to show pretext. (Opp. at 4). Even that meager bit of evidence is unpersuasive. The undisputed timing of the event is not the slightest bit suggestive of religious bigotry. Plaintiff's announcement that she intended not to dress in costume for Halloween was made on September 29, 2002, but her subsequent workweek schedules completed by Miller were consistent with Plaintiffs usual schedule. In short, Plaintiff's announced intention not to work in costume had no impact on her scheduled hours for some period of weeks. (Id. ¶¶ 14, 15). Indeed, for the first workweek after Halloween, November 3-9, Miller scheduled Plaintiff to work twenty-four hours. (Id. ¶¶ 14, 18). Thus, nothing in the timing warrants any inference that JAS's stated reasons for an hours reduction — insubordination and poor performance — were made to conceal a discriminatory animus of any sort.
Finally, it is undisputed that Miller had no knowledge of what religion Plaintiff practiced. (Id. ¶ 25). Logically, it is impossible to discriminate against an unknown trait. Furthermore, this discrimination claim is brought against an employer that accommodated Plaintiff's and other co-workers' elections not to dress for Halloween, for religious reasons or otherwise. Furthermore, because of her religious orientation, Plaintiff insisted that she not be assigned to work Sundays, a demand for special treatment that Defendant respected. (PI. Depo. at 20:1-21:8). As there is no genuine issue of material fact with regard to Plaintiff's claim for religious discrimination, summary judgment is GRANTED to Defendant.
D. SUMMARY JUDGMENT Is GRANTED WITH RESPECT TO PLAINTIFF'S RETALIATION CLAIM
First and foremost, Plaintiff cannot bring her claim for retaliation against Miller because Miller had left her employment at JAS before the first complaint was filed with the California Department of Fair Employment and Housing and thus could not have retaliated against Plaintiff for filing the complaint. (SUF ¶¶ 25, 27). Thus, any claim against Miller personally must be dismissed.
With respect to the remainder of the claim, a FEHA retaliation plaintiff must show that she engaged in protected activity, the employer subjected her to adverse employment action, and there is a causal link between the protected activity and the adverse employment action. Iwekaogwu v. City of Los Angeles, 75 Cal.App.4th 803, 814 (1999). For the adverse employment action to be legally redressable, it must rise to the level of a material adverse employment action that produces a detrimental and substantial effect. Thomas v. Dept. of Corrections, 77 Cal.App.4th 507, 510-511 (2000). Only non-trivial employment actions that would deter reasonable employees from complaining . . . will constitute actionable retaliation."Brooks v. San Mateo, 229 F.3d 917, 928 (9th Cir. 2000). Here the claim fails because Meraz has not shown the existence of a genuine issue of fact for trial on the causation element.
To the extent that Plaintiff alleges that her hours of work continued to be reduced after Miller resigned, Crews asserts that she had no knowledge that Plaintiff had even filed a charge of discrimination with the California state agency. (Id. ¶ 25, 27). To prove causation, it is essential that the employer was aware that the plaintiff engaged in protected activity. Morgan v. Regents of University of California, 88 Cal.App.4th 52, 70 (2000). In an effort to rebut Crews's assertion of lack of knowledge, Plaintiff offers inadmissible hearsay evidence — "that DFEH told Plaintiff that all employers are sent copies of the complaint as a matter of course." (Opp. at 17). Not only is the statement hearsay, the foundation for this statement — the who, what, when, where, etc. — has not been established as a condition to the admission of the statement. Moreover, no evidence is presented that, even if DFEH gave notice to someone at some level in the JAS chain of command, such notice was ever communicated to those managers responsible for establishing Meraz's work hours. Accordingly, because there is no admissible evidence to establish that Crews fielded or otherwise knew of Plaintiff's pre-suit charge, there is no evidence to establish a causal connection between Meraz's complaint and JAS's alleged retaliation. Because no competent, admissible evidence has been presented by Plaintiff on this point, Defendants are entitled to a judgment as a matter of law. E. SUMMARY JUDGMENT Is GRANTED WITH RESPECT TO PLAINTIFF'S HARASSMENT CLAIM ,
Not every employment setback rises to the level of legally actionable harassment in the state of California. California discrimination litigants cannot convert acts of discrimination into acts of harassment.Reno v. Baird, 18 Cal.4th 640, 646-47 (1998). "Harassment consists of conduct outside the scope of necessary job performance, conduct presumably engaged in for personal gratification, because of meanness or bigotry, or for other personal motives. . . . Discrimination claims by contrast, arise out of the performance of necessary personnel management duties." Id. at 645-46 (citations omitted). "The actions of a type necessary to carry out the duties of business and personnel management may retrospectively be found discriminatory if based on improper motives, but in that event the remedies provided by the FEHA are those for discrimination, not harassment." Reno, 18 Cal.4th at 646-47.
The conduct about which Plaintiff complains is, if anything, proscribed discrimination — not harassment. Disciplining workers, even in front of customers, and demoting workers are the precise types of "personnel decisions [that are] an inherent and unavoidable part of the supervisory function," and thus not actionable as true harassment. Reno, 18 Cal.4th at 646. Likewise, the inspection of workers pockets at shift's end, as part of a corporate loss prevention policy, cannot be said to be harassment. (SAC ¶ 71; SUF ¶ 24). Even the reduction in hours, based on alleged age and religious discrimination, states a claim not for harassment but for discrimination.
In the SAC, Plaintiff alleges that Miller altered the settings on Plaintiffs cash register to make it look as though Plaintiff was stealing. Plaintiff's own testimony under oath directly contradicts this allegation. When deposed, Plaintiff was asked if she believed that Miller tampered with her cash register to make it appear as though she was stealing from the company, to which Plaintiff answered with an unequivocal "no." (SUF ¶ 23; PI. Depo. at 114:14-17). Moreover, Miller did not know how to accomplish such an act. (Id.). Plaintiff also contends she was forced to retrieve shopping carts from the parking lot and was subjected to humiliation by being required to clean the restroom. (Opp. at 16). As a matter of law, these sorts of task assignments also will not constitute legally actionable harassment in California. Reno, 18 Cal.4th at 646-47. Additionally, numerous other employees in their affidavits have sworn that they too engaged in these tasks. (SUF ¶ 22).
Moreover, to be actionable, the harassment must be sufficiently severe or pervasive in its regularity to alter the conditions of the victim's employment and create an abusive working environment. Etter v. Veriflo Corp., 67 Cal.App.4th 457, 463-65 (1998) (holding that the mere utterance of an ethnic or racial epithet, while offensive, is not actionable under Title VII and that more than an episodic pattern of antipathy must be shown). California's Fair Employment and Housing Commission has defined statutorily actionable harassment as including, but not limited to, verbal harassment, e.g. epithets, derogatory comments or slurs, physical harassment, assault, impeding or blocking movement, or any physical interference with normal work or movement, visual harassment, derogatory posters, cartoons, or drawings, or sexual favors. 2 CAL. REGS. CODE § 7287.6. Plaintiff admittedly experienced none of this. (SUF ¶ 34). There is no allegation of snide comments, physical confrontation, isolating conduct, or other actions outside the scope of necessary personnel management actions.
Accordingly, Plaintiffs allegations are among the classic personnel management actions Reno describes. As such they are only cognizable under Plaintiff's claims for discrimination, which as discussed above, cannot survive Defendants' motion for summary judgment. Because none of Plaintiff's allegation set forth a separate factual basis for a harassment cause of action, Defendants are GRANTED summary judgment on this claim.
IV. CONCLUSION
For the foregoing reasons, Defendants are entitled to a judgment as a matter; of law pursuant to Fed.R.Civ.P. 56, and summary judgment is GRANTED with regard to all of Plaintiff's claims.IT IS SO ORDERED.