Opinion
No. CIV. S-04-1904 LKK/JFM.
January 10, 2006
ORDER
Plaintiff brings this action against her former employer, Sprint United Management Company. She alleges age discrimination, sex discrimination, medical condition discrimination, harassment and retaliation. These claims are premised on both federal and state law. The matter is before the court on defendants' motion for summary judgment. I decide the motion based on the papers and pleadings filed herein and after oral argument.
Plaintiff also alleges claims against Sprint Communications Company, L.P. This defendant has moved for summary judgment premised on the declaration of DeAnna Dresel that it had no employees and plaintiff never worked for it. Plaintiff has objected to the declaration as without foundation and hearsay. That objection appears well-taken and accordingly the motion must be denied.
I. FACTS
Facts are undisputed unless otherwise noted.
Plaintiff's allegations stem from her termination of employment with Sprint. Plaintiff is a fifty-five year old woman who began working for defendant approximately 21 years ago. Def.'s SUF, 1. Under defendants' retirement plan, plaintiff was entitled to begin receiving retirement benefits when her age, plus the number of years she had been working for defendants totaled the sum of "76", this is known in the company as the "Rule of 76." See Employee Retirement Benefit Plan, Pl.'s Opp'n, Ex. 13.
In 2002, plaintiff worked in the Carrier Transport division of the Billing Department of Sprint. Def.'s SUF, 2. In mid-2002, plaintiff was transferred from the Carrier Transport division to the Data Retros division. Def.'s SUF, 3. Both divisions were under the supervision of the Director of Billing Services, DeAnna Dresel and it was her decision to transfer plaintiff, Def.'s SUF, 5. Plaintiff was told that her job duties would remain the same, despite the transfer. Def.'s SUF, 6. Plaintiff maintains that in reality the job responsibilities of the two jobs were different and that plaintiff was not told of her new job duties until after she allegedly made mistakes on the new job. Pl.'s Opp'n, Ex. 2.
The court notes that the citation to Ex. 2 (referenced in plaintiff's response to defendant's SUF, 6) does not contain support for the asserted fact. The court cannot find evidentiary support for this alleged fact in the record. As the Seventh Circuit has aptly remarked "[j]udges are not like pigs, hunting for [buried] truffles. . . ." United States v. Dunkel, 927 F.2d 955-56 (7th Cir. 1991).
In October of 2002, plaintiff received a copy of her performance review, known within the company as a "LINK." The LINK is a process by which the company rates an employee's performance, addresses future performance and discusses the employee's progress in the company. See Pl.'s Opp'n, Ex. 1.
Plaintiff objected to the contents of the LINK review. Specifically, plaintiff contested whether a mistake that cost the company $6 million dollars was attributable to her. Defendant removed the assertion of a mistake from plaintiff's LINK and apologized; however, the LINK was again modified, and this time it attributed to plaintiff a separate $2.6 million mistake. See Pl.'s Opp'n, Exs. 4 5. Through the end of 2002 and into 2003, plaintiff challenged the LINK review. See Def.'s SUF 8; Pl. Opp'n, Ex. 6.
In April of 2003, plaintiff received a final LINK performance evaluation and objected to the contents of that as well. Pl.'s Opp'n, Ex. 7; Def's SUF, 8-10. In at least two areas, plaintiff's job performance was rated as "less effective" and the evaluation also discussed the asserted $2.6 million mistake.
The court does not have a copy of the full LINK evaluations. The court takes the parties' general characterization of the contents of the LINK as sufficient for purposes of the instant motion.
Between 2002 and the fall of 2004, plaintiff attempted to address her concerns by confronting multiple supervisors at various levels of authority. Many e-mails were exchanged about plaintiff's objections to her LINK evaluation. See Def.'s SUF, 9 10; Pl.'s Opp'n, Exs. 6-8.
Without recounting each e-mail, it is undisputed that plaintiff's complaints about her LINK review generally centered around "serious disagreements with the notes and ratings" contained in the LINK as well as the attribution of the asserted $2.6 million dollar mistake to her. See, e.g., Pl.'s Opp'n, Ex. 7. Plaintiff asserts that no one met with her to address her objections to the LINK report. Pl.'s Opp'n, Ex. 3.
As of May 2003, among plaintiff's concerns that she contends were unaddressed were that her 2002 LINK was finalized without discussion with her, that her ratings were changed from "effective" to "less effective", causing her to lose a merit increase, and that she was not supposed to be rated in her position that started after September 2, 2003, but she was rated anyway. Pl.'s Opp'n, Ex. 3. Plaintiff also expressed concerns that her "20 years tenure with Sprint is now threatened by this violation of the Performance Management and Link Review Process."Id.
In July of 2003, e-mails were exchanged between supervisors that plaintiff would be again rated as "less effective" in the 2003 LINK review process. Pl.'s Opp'n, Ex. 20.
On July 31, 2003, plaintiff received a written "verbal warning." Pl.'s Opp'n, Ex. 23. The warning stated, in effect, that despite weekly meetings with her supervisor, plaintiff was not meeting the requirements of her position and that she needed to improve her performance. Id. Plaintiff objected to the warning. Pl.'s Opp'n, Ex. 29. More e-mails were exchanged between supervisors about whether plaintiff's failure to improve her performance warranted the next level of sanctions, a written warning. One of these e-mails, dated September 5, 2003, contained the following statement: "[Plaintiff] want's (sic) it escalated. However, it has reached it's level of escalation and it's final. If we go down the path of corrective action, and she ends up being terminated — she can file a claim for retaliation — we will deal with that if we need to." Pl.'s Opp'n, Ex. 31.
On September 8, 2003, plaintiff received a second written warning. This warning contained a discussion of how plaintiff failed to make improvement and that she was expected to show "sustained improved performance" as well as attend weekly one-on-one meetings. Pl.'s Opp'n, Ex. 33.
On September 11, 2003, plaintiff maintains that she performed research regarding the work she was told she had completed improperly, found she did it correctly and felt harassed. At this point, plaintiff became upset and fainted at work. Pl.'s Opp'n, Decl. of Alicia Alo.
Plaintiff went to an Emergency Room and was advised to see her primary care physician the next day. Id. On September 12, 2003, Dr. Alicia Sabin diagnosed plaintiff as suffering from depression incident to her work environment. Pl.'s Opp'n, Ex. 36. Plaintiff was on medical leave from September 2003 through January 2, 2004. When plaintiff reported to work on January 2, 2004, she was advised by a supervisor that she was not going to continue working at Sprint and that she would have to return home and wait to hear from her direct supervisor regarding her work status. Pl.'s Opp'n, Decl. of Alicia Alo. On January 5, 2004, plaintiff received a call from her supervisor, advising plaintiff that she had been fired. Id.
Plaintiff had seen Dr. Sabin several times from June 2, 2003 through September 12, 2003 and told Dr. Sabin that her chief complaint was a harassing work environment. Pl.'s Opp'n, Ex. 36. Plaintiff told her doctor that she had worked for Sprint for 20 years, is 3 years short of retirement and they are "trying to get rid of her" and "rob her of her retirement." Id.
II. STANDARDS
Summary judgment is appropriate when it is demonstrated that there exists no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); See also Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970); Sicor Limited v. Cetus Corp., 51 F.3d 848, 853 (9th Cir. 1995).Under summary judgment practice, the moving party
[A]lways bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact.Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). "[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the `pleadings, depositions, answers to interrogatories, and admissions on file.'" Id. Indeed, summary judgment should be entered, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. See id. at 322. "[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. In such a circumstance, summary judgment should be granted, "so long as whatever is before the district court demonstrates that the standard for entry of summary judgment, as set forth in Rule 56(c), is satisfied." Id. at 323.
If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist.Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); See also First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968); Sicor Limited, 51 F.3d at 853.
In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the denials of its pleadings, but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that the dispute exists. Fed.R.Civ.P. 56(e); Matsushita, 475 U.S. at 586 n. 11; See also First Nat'l Bank, 391 U.S. at 289; Rand v. Rowland, 154 F.3d 952, 954 (9th Cir. 1998). The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Owens v. Local No. 169, Assoc. of Western Pulp and Paper Workers, 971 F.2d 347, 355 (9th Cir. 1992) (quoting T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party, Anderson, 477 U.S. 248-49; see also Cline v. Industrial Maintenance Engineering Contracting Co., 200 F.3d 1223, 1228 (9th Cir. 1999).
In the endeavor to establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that "the claimed factual dispute be shown to require a jury or judge to, 04-1993 resolve the parties' differing versions of the truth at trial." First Nat'l Bank, 391 U.S. at 290; See also T.W. Elec. Serv., 809 F.2d at 631. Thus, the "purpose of summary judgment is to `pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.'"Matsushita, 475 U.S. at 587 (quoting Fed.R.Civ.P. 56(e) advisory committee's note on 1963 amendments); see also International Union of Bricklayers Allied Craftsman Local Union No. 20 v. Martin Jaska, Inc., 752 F.2d 1401, 1405 (9th Cir. 1985).
In resolving the summary judgment motion, the court examines the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any. Rule 56(c); See also In re Citric Acid Litigation, 191 F.3d 1090, 1093 (9th Cir. 1999). The evidence of the opposing party is to be believed, see Anderson, 477 U.S. at 255, and all reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party, see Matsushita, 475 U.S. at 587 (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962) (per curiam)). Nevertheless, inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. See Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff'd, 810 F.2d 898, 902 (9th Cir. 1987).
Finally, to demonstrate a genuine issue, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts. . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no `genuine issue for trial.'"Matsushita, 475 U.S. at 587 (citation omitted).
III. ANALYSIS
A. AGE DISCRIMINATIONPlaintiff's cause of action alleging age discrimination is premised on both the federal and state statutes prohibiting such conduct. The Age Discrimination Employment Act makes it "unlawful for an employer . . . to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. § 623(a)(1).
The federal statute commences at 29 U.S.C § 623(a)(1) while the state statute is found at Cal. Gov't Code §§ 621 et seq. (FEHA). Claims under California's FEHA are subject to the same analytical framework because the objective of the statutes are the same. Horn v. Cushman Wakefield Western, Inc, 72 Cal.App.4th 798, 805 (1999).
When a plaintiff alleges disparate treatment based on age, liability depends on whether the protected trait actually motivated the employer's decision. Hazen Paper Co. v. Biggens, 507 U.S. 604, 610 (1993). McDonnell Douglas and subsequent decisions have "established an allocation of the burden of production and an order for the presentation of proof in discriminatory-treatment cases." St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506 (1993). Accordingly, upon a motion for summary judgment:
The plaintiff must first establish a prima facie case of discrimination. If the plaintiff establishes a prima facie case, the burden then shifts to the defendant to articulate a legitimate nondiscriminatory reason for its employment decision. Then, in order to prevail, the plaintiff must demonstrate that the employer's alleged reason for the adverse employment decision is a pretext for another motive which is discriminatory.Nidds v. Schindler Elevator Corp., 113 F.3d 912, 916 (9th Cir. 1996) (quoting Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir. 1994)). I. Prima Facie Case
While it is clear that plaintiff ultimately bears the burden of persuasion, Costa v. Desert Palace, 299 F.3d 838, 855 (9th Cir. 2002), aff'd, 539 U.S. 90 (2003), it is important not to confuse that issue with the requisites for defeating a motion for summary judgment.
To establish a prima facie case of age discrimination, the plaintiff must tender evidence that she is (1) within the protected class of individuals over forty years of age, (2) that she was qualified for her position, (3) that she was discharged, and (4) that a younger person with equal or inferior qualifications replaced her. Nidds v. Schindler Elevator Corp., 113 F.3d 912 (9th Cir. 1996); Hersant v. Dep't of Soc. Serv., 57 Cal.App.4th 997, 1003 (1997). The burden on the plaintiff at this point is not onerous. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248 (1981).
Although the cases addressing the issue sometimes reflect confusion, nothing in the substantive law nor in the McDonnell Douglas shifting burden mode of analysis modifies Fed.R.Civ.P. 56 nor the standards relating to the disposition of motions brought pursuant to that section.
Plaintiff clearly establishes a prima facie case. First, because she was over forty at the time she was fired, plaintiff is a member of the protected class. Second, plaintiff's testimony is that she was performing competently. Thus, even though she received negative feedback on the LINK evaluations, the contents of which she disputed, there is evidence that plaintiff was qualified for her position. Third, plaintiff was discharged. And fourth, several of the employees that remained in the Billings department were younger and had either equal or inferior skills.
ii. Legitimate Nondiscriminatory Reasons for Termination
Upon plaintiff's showing, it now becomes defendant's burden to articulate a legitimate, nondiscriminatory reason for its actions. The burden is merely one of production, and the "defendant need not persuade the court that it was actually motivated by the proffered reasons." Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 254 (1981).
Here, defendants have offered a nondiscriminatory reason for plaintiff's termination. Specifically, defendants claim that plaintiff was let go because of her poor job performance, Def.'s Reply to Opp'n at 3:1-2, and the LINK review provides an evidentiary basis for that assertion.
iii. Pretext
Under the McDonnell Douglas mode of analysis, the burden now shifts to plaintiff to introduce evidence that the defendants' reasons were pretextual. The Supreme Court has stated that at this stage "a plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated." Reeves v. Sanderson Plumbing Products, 530 U.S. 133, 148 (2000). Accordingly, because the burden on the plaintiff at summary judgment is not heavy, see, e.g., Pottenger v. Potlatch Corp., 329 F.3d 740, 746 (9th Cir. 2003), upon the tender of evidence to that effect, summary judgment should be denied. Id.; See also Coghlan v. American Seafoods Co. LLC., 413 F.3d 1090, 1097 (9th Cir. 2005) ("in many cases where the evidence is sufficient for a rational trier of fact to conclude that the employer is lying about its reason for firing or demoting the plaintiff, summary judgment will be inappropriate on that basis alone because a jury could reasonably view the employer's lie as evidence of its guilt.")
Here, plaintiff advances several reasons that undermine defendants' legitimate nondiscriminatory reason and therefore creates a genuine issue of material fact as to whether defendants' stated reason is a pretext for discrimination.
Plaintiff maintains that she was performing her job at a satisfactory level, and disputes the accuracy of the negative performance reviews she received prior to her termination. See Pl.'s Opp'n, Decl. of Alicia Alo. It is perhaps not without significance that it appears that only as plaintiff got older and approached retirement did she began to receive negative performance reviews. Again, it may be significant that plaintiff was wrongly accused of a mistake that cost the company $6 million dollars. Indeed, it was only when plaintiff challenged the accusation that defendants removed any mention of the $6 million dollar mistake from the performance review. Soon thereafter, however, plaintiff was accused of a second and separate $2.6 million dollar mistake. Pl.'s Opp'n, Decl. of Alicia Alo. Plaintiff contested both of these alleged mistakes and claims that neither mistake was attributable to her. Id.
Plaintiff also challenged the negative comments on her performance reviews. She told her supervisors that she was worried that her twenty year tenure with the company was threatened. Id. Plaintiff explained that she was never told exactly what she was doing wrong in her job and that the negative comments in her LINK evaluations failed to explain what plaintiff was doing wrong. Id. Finally, plaintiff claims that when she was transferred to the new unit within the Carrier group, she was never given any guidelines on how to perform her new job until she would make alleged mistakes. Id.
It is undisputed that the negative performance reviews occurred as plaintiff was getting older and only a few years from retirement and the vesting of her pension plan. Finally, it is also undisputed that of the thirty eight employees terminated from plaintiff's division, twenty seven of those terminated were over the age of forty (40). Mot. for Summ. J., Decl. of Jeffery S. Gray at 4:2.
It seems self-evident that firing an older worker in order to deprive her of her retirement benefits falls comfortably within the prohibition against age discrimination since only older workers would be subject to such conduct. See ADEA, 29 U.S.C. § 623(a)(1).
Taken together, all the above suggests that there is sufficient evidence for a rational trier of fact to conclude that the employer's tendered justification is mere pretext. Proof that the defendant's explanation is unworthy of credence is "one form of circumstantial evidence that is probative of intentional discrimination. . . ." Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 134 (2002), and "once the employer's justification has been eliminated, discrimination may well be the most likely alternative explanation, especially since the employer is in the best position to put forth the actual reason for its decision." Reeves, 530 U.S. at 134. Accordingly, summary judgment for defendants is inappropriate and the motion must be denied.
B. HARASSMENT
Plaintiff argues that defendants harassed her in the form of blaming her for mistakes she was not responsible for and telling plaintiff to stop protesting her LINK reviews. See Opp'n to Mot. for Summ. J. at 23:6-19.
Harassment is, of course, a form of discrimination. Here, it appears that plaintiff may be asserting that the alleged harassing incidents are simply evidence of her more general claim of discrimination. However, plaintiff does not explain how the harassment she suffered was connected to her age, sex, or medical disability. Instead, plaintiff seems to suggest a more general type of personal harassment that is not linked to discrimination. Title VII is not a general civility code for the workplace and does not, for better or worse, prohibit all employment-related verbal harassment. Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998). For these reasons, summary judgment is granted on any action premised on harassment.
The distinction is that harassing claims require conduct of sufficient gravity as to cause an alteration in the conditions of employment. Reno v. Baird, 18 Cal.4th 640, 646 (1998);Aguilar v. Avis Rent A Car System, Inc., 21 Cal.4th 121 (1999).
Of course this order would in no way preclude plaintiff from tendering evidence of the allegedly harassing incidents in support of her claim of discrimination.
C. RETALIATION
Plaintiff alleges that defendants unlawfully retaliated against her for "engag[ing] in the protected activity of protesting the manner in which her performance review was handled." Pl.'s Opp'n to Mot. for Summ. J. at 20: 10-12. Plaintiff's brief asserts that "once this protected activity took place, plaintiff was subjected to the adverse actions of receiving her first verbal and written warnings in 20 years. . . ." Id. at 13-14.
The court notes that the plaintiff's brief is not evidence and the plaintiff's declaration is silent of the subject of previous warnings.
To survive a motion for summary judgment, plaintiff must first show (1) involvement in a protected activity, (2) an adverse employment action, and (3) a causal link between the two.McAlindin v. County of San Diego, 192 F.3d 1226, 1238 (9th Cir. 1999). "Thereafter, the burden of production shifts to the employer to present legitimate reasons for the adverse employment action. Once the employer carries this burden, plaintiff must demonstrate a genuine issue of material fact as to whether the reason advanced by the employer was a pretext." Id.
In this context, "protected activity" requires the plaintiff must have protested conduct prohibited by law such as age discrimination. Implicit in the definition of actionable informal complaints is that the employer must be aware of the protected conduct and that a plaintiff must have made clear that her opposition to the employer's practices was based on grounds of discrimination and not merely a dispute concerning employer conduct which is not the subject of legal constraint. See Gifford v. Atchison, T. S.F.R. Co., 685 F.2d 1149, 1155 (9th Cir. 1982); Jurado v. Eleven-Fifty Corp., 813 F.2d 1406, 1411-12 (9th Cir. 1987).
The question is whether there is any evidence to support plaintiff's claim that her objections to the LINK and the warnings she received was premised on her assertion that they were motivated by age discrimination and that her employer knew it. Although the plaintiff has failed to marshal any evidence, two bits appear to exist. First is the fact that plaintiff suggested to her supervisors that she was concerned with whether they were trying to destroy her twenty years of seniority with the company and the fact that she was approaching retirement.See n. 9. Second was the e-mail between supervisors which reads "If we go down the path of corrective action, and she ends up being terminated — she can file a claim for retaliation — we will deal with that if we need to." Pl.'s Opp'n to Mot. for Summ. J., Ex. 31. It is, to say the least, unclear what the supervisors thought the claim of retaliation would address. Given the requirement that the court draw all reasonable inferences in favor of the non-moving party, it appears proper that the court draw the inference that the references were to age discrimination. Given the inference, it would appear that there is evidence that the employer was aware that plaintiff was objecting to the treatment she was receiving not just because it was unfair (a non-cognizable claim), but because it was based in age discrimination.
Whether the inference is reasonable has caused the court some pause. It is important, however, to remember that the court is not engaged in fact finding, but only in the discovery of a genuine dispute.
Once plaintiff makes a prima facie case, the analysis of the other factors parallels the McDonnell Douglas analysis addressed above, resulting in the same conclusion, i.e. that summary judgment must be denied.
D. SEX DISCRIMINATION
Plaintiff's sex discrimination claims are not detailed in the complaint or explained in the plaintiff's opposition to the motion for summary judgment. Defendants argue that the claim must fail for lack of a cognizable harm. Def.'s Mot. for Summ. J. at 9:15-22.
Upon review of the facts, it appears that at one point, plaintiff commented in her deposition that she believed defendants were nicer to six specific male employees. Def.'s Mot. for Summ. J., Dep. of Alicia Alo at 236:20-24.
These were the only facts that the court discovered to support plaintiff's sex discrimination claim.
Given the paucity of facts to support this claim and given that plaintiff did not address the cause of action in her opposition, defendants are entitled to summary judgment on the sex discrimination claim.
E. MEDICAL CONDITION DISCRIMINATION UNDER THE ADA FEHA
Plaintiff maintains that she suffered from a mental disability, specifically, depression and stress bought on by her work environment. Plaintiff maintains that she was discriminated against based on this condition. Pl.'s Opp'n at 22:3-10.
Because 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).
To state a prima facie case under the ADA where a motion for summary judgment has been made, a plaintiff must tender evidence that (1) she is a disabled person within the meaning of the ADA; (2) she is a qualified individual, meaning she can perform the essential functions of her job; and (3) that her employer terminated her because of her disability. Nunes v. Wal-Mart Stores, Inc., 164 F.3d 1243, 1246 (9th Cir. 1999).
Under the ADA, "disability" is defined as "a physical or mental impairment that substantially limits one or more of the major life activities of the individual." 42 U.S.C. § 12102(2)(A). The applicable federal regulations list three factors to be considered in determining whether an individual is substantially limited in a major life activity: "(i) The nature and severity of the impairment; (ii) The duration or expected duration of the impairment; and (iii) The permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment." 29 C.F.R. Pt. 1630.2(j)(2).
In the case at bar, plaintiff was first diagnosed with depression and anxiety in July 2003, roughly two months prior to her fainting spell and five months prior to the termination of her employment. Pl.'s Opp'n, Dep. of Alicai Sabin, M.D., Ex. 36. In July, plaintiff was also placed on medication to treat depression. Id. After plaintiff fainted in September, she was on "medical disability" from work for three months. Id.
Depression may be a disability within the meaning of the ADA.See Doe v. Region 13 Mental Health-Mental Retardation Commission, 704 F.2d 1402 (5th Cir. 1983); and Pritchard v. Southern Co. Services, 92 F.3d 1130, 1132 (11th Cir. 1996) (defining disability as a "physical or mental impairment").
Here, at least for the purpose of the instant motion, defendants make no claim that plaintiff was not disabled. Rather, they rely on the presence of a legitimate nondiscriminatory reason for the discharge. For the same reasons noted above, the court concludes that there is a genuine dispute as to defendants' motive, and accordingly the motion must be denied.
F. DISCRIMINATION IN VIOLATION OF THE UNRUH ACT
Plaintiff also cites the California Unruh Civil Rights Act as a grounds for relief. The Unruh Act provides that:
All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, . . . are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.
The Unruh Act prohibits discrimination "by a `business establishment' in the course of furnishing goods, services or facilities to its clients, patrons or customers." Alcorn v. Anbro Eng'g, Inc., 2 Cal.3d 493, 500 (1970). The Unruh Act does not, however, apply to allegations of discrimination in employment. Id.; See also Rojo v. Kliger, 52 Cal.3d 65, 77 (1990) (holding that the Unruh Act has no application to employment discrimination). For this reason, plaintiff's claim under the Unruh Act is not cognizable and summary judgment must be granted for defendants.
For the aforementioned reasons, the court hereby ORDERS as follows:
1. Defendants' motion for summary judgment as to plaintiff's age discrimination claim is DENIED.
2. Defendants' motion for summary judgment as to plaintiff's retaliation claim is DENIED.
3. Defendants' motion for summary judgment as to plaintiff's medical disability claim in DENIED.
4. Defendants' motion for summary judgment as to all the other causes of action listed in the complaint is GRANTED.
IT IS SO ORDERED.