Opinion
NO. CIV. 05-01627 FCD EFB.
March 20, 2007
MEMORANDUM AND ORDER
This matter is before the court on defendant Evergood Associates, LLC's ("Evergood") motion for summary judgment on plaintiff Courtney Crowe's ("plaintiff") claims for (1) discrimination in violation of Title VII; (2) constructive discharge under California law; (3) intentional infliction of emotional distress; and (4) negligent infliction of emotional distress. Plaintiff opposes the motion. For the reasons set forth below, defendant's motion is GRANTED.
Because oral argument will not be of material assistance, the court orders the matter submitted on the briefs. E.D. Cal. L.R. 78-230(h).
BACKGROUND
Unless otherwise noted, the facts herein are undisputed. (See Pl.'s Resp. to Stmt. of Undisp. Facts ("UF"), filed Mar. 3, 2007). Where the facts are in dispute, the court recounts plaintiffs' version of the facts. (See Pl.'s Stmt. of Disp. Facts ("DF")).
Plaintiff indicated on his application and during his interview that he had several scheduling limitations. (UF ¶ 5). Specifically, plaintiff was a student and his hours had to be limited when school started the following month. (Id.) Plaintiff also communicated that he was not available to work on Sunday mornings. (Id.) Additionally, plaintiff disclosed that he was concurrently working at KFC. (Id.)
Smith was in charge of scheduling employee's hours during plaintiff's employment at Arby's. (UF ¶ 6). Many Arby's employees, including plaintiff, asked Smith to be scheduled for more hours during plaintiff's tenure. (UF ¶ 7). Plaintiff alleges that Wang "Ricky" Saechao ("Saecho") was hired after plaintiff and was immediately given more hours than plaintiff. (DF ¶ 7). Plaintiff claims that throughout the time that plaintiff and Saecho worked concurrently at Arby's, Saechao received many more hours of work than plaintiff did. (DF ¶ 7). Furthermore, plaintiff asserts that when Saechao was hired at Arby's, there were hours available but Smith refused to give the available hours to plaintiff. (DF ¶ 8). Plaintiff claims Smith could not provide a satisfactory explanation as to why Saechao received more hours than plaintiff. (DF ¶ 8). Conversely, Smith and Song Saecho, an Arby's crew led, assert that they had concerns about Plaintiff's ability to perform his job duties quickly and accurately. (UF ¶ 21). Smith eventually offered plaintiff an additional two-hour shift, which plaintiff refused. (UF ¶ 8).
Plaintiff received an increase in his hourly wage to $6.90 in February 2004, approximately six months after starting at Arby's. (UF ¶ 9). The time frame and amount of plaintiff's raise was similar to raises received by other Arby's employees. (UF ¶ 19).
Plaintiff claims his working conditions at Arby's were so stressful that they caused him to vomit and suffer headaches. (UF ¶¶ 22-23). After working at Arby's for ten months, plaintiff quit his job at Arby's. (UF ¶ 10). Plaintiff's resignation took place less than three weeks after his eighteenth birthday. (UF ¶ 10).
STANDARD
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); Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970).
Under summary judgment practice, the moving party
always bears the initial responsibility of informing the district court of the basis of 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. at 324. Indeed, summary judgment should be entered 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. Id. at 322.
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, 585-87 (1986); First Nat'l Bank v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968). 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). 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), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party,Id. at 251-52.
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 resolve the parties' differing versions of the truth at trial."First Nat'l Bank, 391 U.S. at 289. 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); SEC v. Seaboard Corp., 677 F.2d 1301, 1305-06 (9th Cir. 1982). The evidence of the opposing party is to be believed, and all reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party. Anderson, 477 U.S. at 255. 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. Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985),aff'd, 810 F.2d 898 (9th Cir. 1987).
ANALYSIS
A. Discrimination in Violation of Title VII
Plaintiff alleges defendant's actions violated Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-2 ("Title VII"). (Complaint for Damages ("Compl."), filed Aug. 12, 2005, ¶ 9). Plaintiff claims Smith reduced plaintiff's assigned hours and gave him unsuitable work shifts because he was African American. (Id. ¶ 4). Plaintiff alleges that an Asian worker, Saechao, was given better and longer hours than plaintiff, even though plaintiff was more qualified to work those hours. (Id. ¶ 5). Plaintiff asserts that the favortism Smith showed for the other workers "caused plaintiff to be the subject of ridicule and scorn." (Id.) Further, he maintains that "the owners, managers and supervisors were aware of the discriminatory treatment suffered by [p]laintiff, but they chose to do nothing about it. . . ." (Id.)
The United States Supreme Court set forth a three-step burden-shifting test to evaluate discrimination claims under Title VII. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Thereunder, plaintiff must first establish a prima facie case of discrimination. In doing so, plaintiff may produce indirect evidence that gives rise to an inference of discriminatory motive. See Transworld Airlines, Inc. v. Thurston, 469 U.S. 111, 121 (1985).
Once plaintiff makes this initial showing, the burden shifts to the employer to articulate a legitimate, non-discriminatory reason for the adverse employment action. See EEOC v. Hacienda Hotel, 881 F.2d 1504, 1514 (9th Cir. 1989). The ultimate burden of persuasion, however, remains with the plaintiff. Texas Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981).
If the employer articulates a legitimate, non-discriminatory reason for the adverse employment action, the plaintiff must demonstrate that the reason is a pretext for discrimination. The plaintiff may demonstrate pretext in one of 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 that unlawful discrimination more likely motivated the employer."Chuang v. Univ. of Calif. Davis, Board of Trustees, 225 F.3d 1115, 1127 (9th Cir. 2000). The factual inquiry regarding pretext requires a new level of specificity. Burdine, 450 U.S. at 255. Plaintiff must produce specific and substantial evidence that the defendant's reasons are really a pretext for discrimination.Aragon v. Republic Silver State Disposal, Inc., 292 F.3d 654, 661 (9th Cir. 2002).
1. Failure to Promote
To set forth a prima facie case of discrimination on the basis of race under a failure to promote theory, plaintiff must establish that (1) he belongs to a protected class; (2) he applied for and was qualified for the position; (3) he was rejected despite his qualifications; and (4) the employer sought other applicants or filled the position with someone whose qualifications were comparable to plaintiff's after rejecting him. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).
Plaintiff has satisfied the first element required to set forth a prima facie case. Neither plaintiff nor defendant dispute that plaintiff was a member of a protected class. Both parties agree that plaintiff is an African American. (UF ¶ 11).
Second, plaintiff must demonstrate that he applied for and was qualified for the open position. Although plaintiff does not allege that he formally applied for a different position at Arby's, plaintiff attests that he continuously asked Smith for more hours and was repeatedly denied. (Decl. of Courteney Crow in Opp'n to Mot. for Summ. J. ("Crowe Decl."), filed Mar. 3, 2007, ¶ 3). Moreover, plaintiff states that he could competently perform his job duties and therefore was qualified to receive more hours. (Id. ¶ 4). Defendant argues that plaintiff was not meeting his employer's legitimate expectations and was consequently, not qualified to receive additional hours. (Mem. of P. A. in Supp. of Mot. for Summ. J. ("Def.'s MSJ"), filed Jan. 30, 2007, at 7). Smith testified at her deposition that Plaintiff was slower than the other employees in completing his tasks and did not show initiative. (Dep. of Eleanor Smith ("Smith Dep."), Ex. D to Decl. of Susan E. Bishop in Supp. of Mot. for Summ. J., filed Jan. 30, 2007, at 56:8-14.) Further, Smith asserted that she had a conversation with Song Saechao in which he let Smith know that he did not want to work with plaintiff because plaintiff is slow, does not want to work, stands around and talks to other employees, stands around and does nothing, forgets to complete tasks, and has a negative attitude. (Smith Dep. at 57:1-8). Additionally, on July 21, 2003, Plaintiff was given a "strong verbal warning" because he had a money shortage in his cash register and he took food without manager permission. (Smith Dep., Ex. A). Plaintiff offers no response to contradict this evidence. At best, it is disputed that plaintiff was qualified for the hours he requested.
However, even if plaintiff was qualified to work additional hours, he must provide evidence that his application was rejected despite his qualifications. Plaintiff declares that in February 2004, Saechao began working at Arby's and his requests for more hours were consistently denied. (Crowe Decl. ¶ 4). Plaintiff admits he was offered an additional one or two hour increase, which he declined because he felt it was insulting. (DF ¶ 9). Plaintiff has not proved he applied for a new position and was denied. He has merely shown that he requested a change to his current schedule and did not receive as many additional hours as he wanted.
Finally, even if plaintiff's denied request for more hours satisfies the third element, plaintiff fails on the fourth element required for a prima facie case. Plaintiff must prove that defendant filled the position with someone not of plaintiff's class whose qualifications were similar to plaintiff's. Plaintiff asserts that additional hours were given to Saechao, who was a student like plaintiff. (Crowe Decl. ¶ 4). Plaintiff has not, however, provided evidence that demonstrates plaintiff and Saechao had similar qualifications. During the course of plaintiff's employment at Arby's from July 2003 to May 2004, on two separate occasions, he missed work and did not call to give a reason for his absence and on seven different assigned work shifts he called in sick. (Decl. of George Su in Supp. of Mot. for Summ. J. ("George Su Decl."), filed Jan. 30, 2007, Ex. E). Defendant's scheduling records indicate Saechao did not miss a scheduled shift during the period in which plaintiff and Saechao were concurrently employed at Arby's. (George Su Decl., Ex. D). The scheduling records indicate that Saechao was a more reliable employee than plaintiff. Furthermore, in contrast to Smith's assessment of plaintiff, Saechao was described by Smith as a very good employee who was ambitious and tried to keep himself busy. (Smith Dep. At 55:6-8).
In an effort to support his claims, plaintiff cites a letter from George Su to the Equal Employment Opportunity Commission ("EEOC") in which George Su stated plaintiff is "a valuable employee and his service remains greatly appreciated." (DF ¶ 2; Pl.'s Resp. to Statement of Undisputed Facts, filed Mar. 3, 2007, Ex. 2). This letter does not prove plaintiff and Saechao had similar qualifications. In fact, George Su stated that all of Evergood's employees are valued and that Evergood appreciates the service provided by all of its employees. (Decl. of George Su in Supp. of Reply ("George Su Reply Decl."), filed Mar. 9, 2007, ¶ 2). Furthermore, George Su also explained that he did not believe plaintiff was a top performer at Arby's and his statement that plaintiff was a valued employee was not intended to imply that plaintiff was a top performer. (Id.) As such, plaintiff has not presented evidence sufficient to substantiate the fourth element of a prima facie case.
Defendant filed an objection to the EEOC letter. (Objection to Evidence, filed Mar. 9, 2007). The court declines to rule on defendant's objection to plaintiff's evidence because for the reasons stated herein, even considering this evidence, it fails to raise a triable issue of fact sufficient for plaintiff to withstand summary judgment.
Notwithstanding the above, even if plaintiff had set forth a prima facie case of discrimination, defendant has provided legitimate, non-discriminatory reasons for not allocating additional hours to plaintiff. Smith attested that she created the work schedule for Arby's employees based on what the business needed, the availability of the employees and job performance of the employees. (Smith Decl. at 49:15-18). During the period in which plaintiff requested additional hours, there were many other employees requesting additional hours. (UF ¶ 7). Smith stated that she attempted to accommodate requests for additional hours but had to consider the budgeting requirements of the business when making the schedule and could not grant all such requests. (Smith Dep. at 38:24-25; 39:1-3). During the majority of his employment at Arby's, plaintiff was a student who was only available to work on evenings and weekends due to his school schedule. (Dep. of Courtney Crowe ("Crowe Dep."), Ex. C to Decl. of Susan E. Bishop in Supp. of Mot. for Summ. J., filed Jan. 30, 2007, at 45:8-9). Further, defendant believed plaintiff's potential hours were restricted because he was not available on Sundays until after 3 pm and because he was also employed at KFC. (Crowe Dep. at 49:16-25; DF ¶ 1). Defendant argues plaintiff's work schedules were created based on budgeting constraints, the limited nature of plaintiff's availability, and plaintiff's unreliability discussed above, not on the fact that plaintiff is African American.
Because defendant has met its burden with respect to the reasons for denying plaintiff's request for more hours, the burden shifts to plaintiff to demonstrate the proffered reasons are pretextual. Plaintiff has offered no specific and substantial evidence to support a conclusion that defendant's reasons are mere pretext. In his opposition to defendant's motion, plaintiff states "Ms. Smith always treated Plaintiff differently because of his race." (Pl.'s Opp'n to Mot. for Summ. J. ("Pl.'s Opp'n"), filed Mar. 2, 2007, at 5). Such a statement is unsupported and conclusory. Conclusory statements without factual support are insufficient to defeat a motion for summary judgment. National Steel Corp. v. Golden Eagles Ins. Corp., 121 F.3d 496, 502 (9th Cir. 1997). Even if plaintiff has established a prima facie case of discrimination, plaintiff has not met his burden of demonstrating that defendant's reasons are pretextual.
Although not argued by plaintiff in his opposition, plaintiff stated in his deposition that he thought he saw Smith throw away job applications filled out by African Americans. (Crowe Dep. at 91: 3-11). Smith denied that she ever threw away a job application. (Smith Dep. at 48: 12-24). Even if the court considers plaintiff's statement as evidence, this fact does not support plaintiff's assertion that he was denied additional hours because he was African American.
2. Constructive Discharge
To set forth a prima facie case of Title VII race discrimination under a constructive discharge theory, plaintiff must prove, in light of the totality of the circumstances, that a reasonable person in plaintiff's position would have felt he had no choice but to quit due to the "intolerable and discriminatory working conditions". Watson v. Nationwide Ins. Co., 823 F.2d 360, 361 (9th Cir. 1987) (quoting Satterwhite v. Smith, 744 F.2d 1380, 1381 (9th Cir. 1984)). The standard is an objective one which focuses on a reasonable person's reaction to the working conditions and not the subjective intent of the employer. Id. To establish that he was constructively discharged, a plaintiff must demonstrate the presence of "`aggravating factors', such as a `continuous pattern of discriminatory treatment.'" Id. (emphasis added in original) (quoting Satterwhite, 744 F.2d at 1382). The plaintiff's working conditions must be sufficiently extraordinary or egregious to amount to a constructive discharge.See Brooks v. City of San Mateo, 229 F.3d 917, 930 (9th Cir. 2000) (citing Turner v. Anheuser-Busch, Inc., 7 Cal. 4th 1238, 1246).
Plaintiff alleges that Smith's discriminatory conduct created a work environment so hostile that he was constructively discharged from his position. Specifically, plaintiff claims Smith reduced his work hours and gave him unsuitable work shifts and that her actions caused him to be the subject of ridicule and scorn. (Compl. ¶ 4-5). Plaintiff has provided no evidence to support these claims. Defendant proffered Arby's scheduling records, which demonstrate plaintiff's weekly hours remained consistent after his initial training sessions were completed. (George Su Decl., Ex. E). In addition, plaintiff admitted in his deposition that his hours remained largely the same after Saechao was hired. (Crowe Dep. at 98:2-4). Furthermore, plaintiff has not explained or provided evidence to support his allegation that his work shifts were unsuitable. In his deposition, plaintiff stated his shifts were unsuitable because he was repeatedly put on the night crew and often had to close the restaurant. (Crowe Dep. at 104:18-20). Nevertheless, because of plaintiff's school schedule and Sunday commitment, he was not available to work an early shift on any day but Saturday. (UF ¶ 5). Moreover, plaintiff's evidence that he was the subject of ridicule and scorn is supported only by his vague and conclusory statements. (See Crowe Decl. ¶ 5; Crowe Dep. at 105:19-25). In plaintiff's deposition, he asserts that the other employees laughed at him because he had the least amount of hours. (Crowe Dep. at 105: 19-25). Plaintiff's vague statement that he was laughed at by his fellow employees is insufficient evidence for the court to find his work environment was so extraordinary and egregious that a reasonable person would have had no alternative but to leave Arby's. See Summar v. Potter, 355 F. Supp. 2d 1046, 1057 (D. Alaska 2005) (holding that defendants' alleged snubbing, reprimanding and calling plaintiff an undesirable employee, as well as subjecting her to schedule changes are not egregious events demonstrating discriminatory working conditions); see also Li Li Manatt, 339 F.3d at 798 (holding that racial jokes, ridicule of plaintiff's accent, and act of pulling eyes back to imitate or mock the appearance of Asians were insufficient to alter the condition of plaintiff's employment); Vasquez v. County of Los Angeles, 307 F.3d 884, 893 (9th Cir. 2002) (finding no altered work conditions where employee was told that he had "a typical Hispanic macho attitude," that he should work in the field because "Hispanics do good in the field" and where he was yelled at in front of others); Kortan v. Cal. Youth Auth., 217 F.3d 1104, 1111 (9th Cir. 2000) (finding no altered work environment where the supervisor referred to females as "castrating bitches," "Madonnas," or Regina, and referred to plaintiff as "Medea"); King v. AC R Advertising, 65 F.3d 764, 768-69 (9th Cir. 1995) (holding that a change of employment status to at-will, a reduction in managerial responsibilities, a reduction in base salary and change to potentially lucrative bonus program did not constitute a constructive discharge).
Further, it is unclear that plaintiff quit Arby's because of the intolerable conditions. It is undisputed that plaintiff resigned from his position at Arby's less than three weeks after his eighteenth birthday. (UF ¶ 10). Plaintiff testified that he began training for a new, higher paying position with another employer while he was still working at Arby's. (Crowe Dep. at 76: 8-13; 20: 5-17). Plaintiff has provided any evidence that he sought a position with a different employer because of the discriminatory conditions at Arby's and not because there were higher paying positions open to him after he turned eighteen.
Therefore, plaintiff has not established that he was subjected to an adverse employment action under either a failure to promote theory or a constructive discharge theory. Consequently, defendant's motion is GRANTED as to plaintiff's Title VII claims.
B. Constructive Discharge under California Law
Plaintiff alleges defendant's conduct described above amounts to constructive discharge under California law. (Compl. ¶ 15).
The standard for establishing a constructive discharge under California law is largely similar to the constructive discharge standard under Title VII. In California, the doctrine of constructive discharge seeks to address the situation where, "[i]n an attempt to avoid liability for wrongfully discharging an employee, an employer may refrain from actually firing an employee, preferring instead to engage in conduct causing him or her to quit." Colores v. Bd. of Trs., 105 Cal. App. 4th 1293, 1305 (2003) (quoting Turner v. Anheuser-Busch, Inc., 7 Cal. 4th 1238, 1244-45 (1994)). As a result, in order to prevent "endruns" around claims requiring employer-initiated terminations of employment, "a constructive discharge is legally regarded as a firing rather than a resignation." See id. (quoting Turner, 7 Cal. 4th at 1244-45). The standard by which a constructive discharge is determined is "whether a reasonable person faced with the allegedly intolerable employer actions or conditions of employment would have no reasonable alternative except to quit."Id. (quoting Turner, 7 Cal. 4th at 1248). In order to establish a constructive discharge, a plaintiff must show that "the employer either intentionally created or knowingly permitted working conditions that were so intolerable or aggravated at the time of the employee's resignation that a reasonable employer would realize that a reasonable person in the employee's position would be compelled to resign." Id. at 1305 (quoting Turner, 7 Cal. 4th at 1251). For purposes of constituting constructive discharge, the "adverse working conditions must be unusually `aggravated' or amount to a `continuous pattern' before the situation will be deemed intolerable." Id. at 1306.
For the reasons set forth in the court's discussion of plaintiff's Title VII claim, plaintiff cannot establish that he was subjected to an adverse employment action under a constructive discharge theory under California law. Therefore, defendant's motion is GRANTED as to this claim.
C. Intentional and Negligent Infliction of Emotional Distress
Plaintiff contends that defendant's conduct was "extreme and outrageous and [was] done with the intent of causing plaintiff severe emotional distress." (Compl. ¶ 18). Defendant argues that plaintiff's emotional distress claims are barred by the California Workers' Compensation Act ("CWCA"). (Def.'s MSJ, at 18-19).
The CWCA provides the exclusive remedy for injuries sustained under the normal conditions of employment. Cal. Lab. Code § 3601. Where an employee falls within the protection of the Workers' Compensation scheme, as laid out in Labor Code § 3600, the code precludes a cause of action against the employer. Id. This prohibition extends to emotional injuries such as intentional infliction of emotional distress and negligent infliction of emotional distress. Cole v. Fair Oaks Fire Protection District, 43 Cal. 3d 148, 160 (1987).
The California Supreme Court warned that exceptions to the exclusive remedy provision risk undermining the legislative compromise of the Workers' Compensation Act by permitting the employee to pursue a cause of action merely by tailoring the claim to fall within the scope of the exception. Id. at 160. The doctrine therefore requires emotional injuries to fall within the exclusive remedy provision of § 3601, so long as the basic conditions of § 3600 are met and the employer's conduct does not contravene fundamental public policy or exceed the risks inherent in the employment relationship. Livitsanos v. Superior Court, 2 Cal. 4th 744, 815 (1992). As such, "a claim for emotional and psychological damage, arising out of employment, is not barred where the distress is engendered by an employer's illegal discriminatory practices." Accardi v. Superior Court, 17 Cal. App. 4th 341, 352 (1993).
In the instant case, plaintiff has not established that defendant engaged in illegal discriminatory practices. Plaintiff's claim under Title VII and state law claim for constructive discharge have been dismissed; therefore, there is no basis for this court fo find that the employer's conduct violates public policy or exceeds the risks inherent in the employment relationship. Consequently, plaintiff's claims for intentional infliction of emotional distress and negligent infliction of emotional distress are barred by the Workers' Compensation Act. Therefore, defendant's motion is GRANTED with respect to these claims.
CONCLUSION
For the foregoing reasons, defendant's motion for summary judgment is GRANTED. The Clerk of the Court is directed to close this file.
IT IS SO ORDERED.