Opinion
NO. CIV. S-08-0050 FCD KJM.
September 28, 2009
MEMORANDUM AND ORDER
This employment discrimination case, in which plaintiff Christine Earl ("plaintiff" or "Earl") alleges age and disability discrimination, is before the court on defendants' motion for summary judgment, or alternatively, summary adjudication of claims pursuant to Federal Rule of Civil Procedure 56. Plaintiff does not oppose defendant Nielsen Company (US) Inc.'s motion. (Stmt. of Non-Opp'n [Docket #114], filed July 30, 2009.) Accordingly, defendant Nielsen Company (US) Inc.'s motion for summary judgment is GRANTED. However, plaintiff opposes the motion brought by defendant Nielsen Media Research, Inc. ("defendant" or "Nielsen"). The court heard oral argument on the motion on September 4, 2009. For the reasons set forth below, defendant Nielsen Media Research, Inc.'s motion is GRANTED.
BACKGROUND
Unless otherwise noted, the facts herein are undisputed. (See Def.'s Response to Pl.'s Response to Stmt. of Undisputed Facts in Supp. of Mot. for Summ. J. ("UF"), filed Aug. 7, 2009.) Where the facts are disputed, the court recounts plaintiff's version of the facts. (See Def.'s Resp. to Pl.'s Stmt. Of Disputed Facts ("DF"), filed Aug. 7, 2009.)
Both plaintiff and defendant have filed objections to evidence. The court has reviewed the objections and the disputed evidence and relies only on admissible evidence herein. See Orr v. Bank of Am., NT SA, 285 F.3d 764, 773 (9th Cir. 2002) ("A trial court can only consider admissible evidence in ruling on a motion for summary judgment.").
Plaintiff Earl was employed by defendant Nielsen as a Membership Representative ("MR") in San Francisco LPM Market Area in Benicia, California. (UF ¶ 1.) Plaintiff was hired by Nielsen on July 1, 1994 as an "at-will" employee. (UF ¶¶ 2, 6.) Plaintiff's date of birth is June 7, 1947; she was approximately 47 years old when hired by defendant. (UF ¶ 3; DF ¶ 1.)
In its policies and procedures guide, defendant Nielsen describes itself as "the world's leading provider of marketing information, audience measurement, and business media products and services." (Def.'s Ex. G.) Defendant represents that it "strives to provide statistically clean and accurate samples, which is achieved through special attention on gaining membership from Basic households." (Def.'s Ex. J.) An MR is provided with a list of homes, a "Spec report," the first of which is called the "basic." (DF ¶ 22.) The basic home has been identified as representing a certain desirable demographic. (DF ¶ 22.) If the basic home cannot be recruited, the MR is required to work down the list of alternates until finding a home whose demographics match those of the basic. (DF ¶ 22.)
At all relevant times, defendant had a performance improvement discipline policy entitled "Disciplinary Action/Performance Counseling." (UF ¶ 7; Def.'s Ex. I at 17.) Based upon the situation, an employee may receive either verbal notification and/or a written or final notification. (UF ¶ 7; Def.'s Ex. I at 17.) However, the policy also provides that "management may eliminate steps in this process and accelerate the process up to and including termination in any case." (Def.'s Ex. I at 17.) Moreover, the policy provides that it does not negate the "`at-will' nature of employment." (Id.)
During plaintiff's employment, defendant also had various policies relating to the duties of Membership Representatives. If a MR purchased a gift for a household, the MR was required to follow defendant's current gift policies. (UF ¶ 8.) Following September 11, 2001, defendant initiated a policy forbidding MRs from leaving unattended gifts at the doorsteps of potential households. (UF ¶ 9.) Plaintiff understood that she was obligated to comply with this policy. (UF ¶ 10.) However, in August 2005, plaintiff left an unattended gift at the doorstep of a potential household; she received a verbal warning from her supervisor. (UF ¶¶ 11-12.) Following this violation, defendant sent an e-mail to all MRs company-wide on August 21, 2005, reiterating the Company's policy against leaving unattended gifts at the doorsteps of potential households. (Decl. of Sally Dollard ("Dollard Decl."), filed July 10, 2009, ¶ 3.) On January 29, 2006, plaintiff left a box of candy at the doorstep of an unoccupied home she was attempting to recruit. (UF ¶ 13.)
Pursuant to company policy, it is "recommended before the initial contact" with a potential household that the MR print out a Spec report and obtain a Stat Research map. (Pl.'s Ex. E.) The company procedure manual notes that "Stat Research will not offer any assistance in locating a housing unit without having a printed Spec map." (Id.) Plaintiff testified at her deposition that she was required to have the Spec map with her. (Dep. of Christine Earl ("Earl Dep.") at 184:7-13.) Plaintiff also testified that she understood a MR could be fired for failing to have a Spec map in the car. (Id. at 223:3-7; UF ¶ 17.) However, in February 2006, while on a temporary assignment in New York, plaintiff recruited a home without a Spec map. (UF ¶ 16.) When a supervisor e-mailed plaintiff inquiring how she had signed a "spec" without the Spec map, plaintiff responded, "Magic?" (Pl.'s Ex. F.)
After plaintiff committed these policy violations, plaintiff's direct supervisor, Sally Dollard ("Dollard"), issued a verbal warning and documented her counseling session with plaintiff in the form of a Developmental Improvement Plan ("DIP"). (UF ¶ 18.) According to the DIP, Dollard counseled plaintiff on her violation of defendant's gift policy and Spec map policy. (UF ¶ 19.) Dollard also expressed displeasure with plaintiff's attitude, noting plaintiff's response to a supervisor's question was not only "inappropriate for a business question from a supervisor but it also demonstrated a lack of respect for the policy and procedure set forth by Nielson Media Research." (UF ¶ 19.). Moreover, according to the DIP, plaintiff failed a Quality Assurance ("QA") audit for failing to train a recruit sufficiently. (UF ¶ 20.) The DIP also stated, "Your performance WILL BE REVIEWED PERIODICALLY to determine if you are meeting stated expectations in the job. Failure TO MEET THESE EXPECTATIONS in the future MAY RESULT IN the implementation of the DISCIPLINARY PROCESS." (UF ¶ 21.) Plaintiff signed and acknowledged the DIP on March 27, 2006. (UF ¶ 22.)
In September/October 2006, plaintiff received an overall satisfactory performance evaluation. (DF ¶ 32; Pl.'s Ex. J.) However, the evaluation noted that plaintiff needed improvement in: (1) entering contract notes within 24 hours; (2) submitting expense books accurately; and (3) ensuring that she always follows policy and procedure. (Id.)
Subsequently, plaintiff committed another violation of defendant's policies and procedures. (See UF ¶ 28.) Company policy requires MRs to verify that the housing unit and address are correct when recruiting a household. (UF ¶ 23.) MRs are responsible for initially inputting all of the household data correctly. (UF ¶ 24.) All signed households must have a completed Panel Agreement. A Panel Agreement contains the household name, household number and Spec ID, complete household address verified from the Spec Report, zip code, and household member's signature and Field Associate's signature. (UF ¶ 25.) According to defendant's Sample Procedures Documentation, "[e]xtreme attention to detail is required in order to accurately complete a Panel Agreement with all areas completed with the correct information." (UF ¶ 26.) On October 28, 2006, while working on a temporary assignment in Texas, plaintiff recruited an Alternate household located at 319 Forest Lake Drive, which was listed as "Alternate 11." However, when plaintiff filled out the Initial Demo Questionnaire and Panel Agreement and inputted the household information into the company's computer software, she inaccurately listed the recruited home as 327 Forest Lake Drive, which was listed as "Alternate 9." (UF ¶ 27.) As a result of these errors, plaintiff had enrolled the wrong household for equipment installation. (UF ¶ 27.) When Dollard spoke to plaintiff about the situation, Dollard believed that plaintiff was not serious about what had happened and treated the violation as it was "no big deal." (Dep. of Sally Dollard ("Dollard Dep.") at 70:10-23.)
Despite having the wrong address, the technician was able to find the appropriate house to install the metering equipment. (DF ¶ 28.) The technician, a fairly new field representative, received verbal counseling, but no formal discipline for failing to correct the address in the company software. (DF ¶¶ 28-29.)
Plaintiff was terminated from employment with defendant on January 6, 2007, when she was approximately 59 years old. Dollard provided information about plaintiff's performance, but Lisa Lalama and Jim Sowatzke made the decision to terminate plaintiff's employment. (DF ¶ 36.) Defendant asserts plaintiff was terminated because she violated the "Recruiting the Basic" policy when she enrolled the wrong household for equipment installation and because she previously violated policies and procedures as documented in the DIP. Plaintiff asserts she was terminated on account of her age and disability.
In her statement of additional disputed facts, plaintiff asserts that she was passed over several times in favor of younger employees with less experience and that she was told she was not promoted because "she didn't fit what they were looking for." First, this evidence lacks foundation. Second, the third party statement constitutes improper hearsay to the extent plaintiff relies upon it for the truth of the matter asserted. Further, plaintiff fails to identify who made the statement. Finally, plaintiff fails to raise any argument based upon this "evidence" in her opposition. Accordingly, the court does not consider this evidence in determining whether there is a triable issue of fact regarding plaintiff's claims of age discrimination.
During the course of her employment with defendant, plaintiff told Dollard that her "feet hurt" because she had peripheral neuropathy. (UF ¶ 31.) When Dollard asked plaintiff about her feet, plaintiff replied that she was fine. (UF ¶ 31.) Plaintiff never requested an accommodation for her peripheral neuropathy or any other medical condition related to her feet. (UF ¶ 32.) Plaintiff did not discuss her condition with any other supervisors during her employment. (UF ¶ 33.) Plaintiff testified that she had no reason to believe that any of the people involved in the meeting regarding her termination had some sort of animus against her because of her medical condition. (Earl Dep. at 149:17-21.)
After plaintiff's termination, plaintiff's territory was reassigned to a forty-two year old MR. (UF ¶ 35.) In the months just before and after plaintiff's termination, defendant hired five MRs, three in their twenties and two in their early thirties, for the territory in which plaintiff worked. (DF ¶ 47.)
On October 11, 2007, plaintiff filed her complaint in the Superior Court of the State of California in and for the County of Solano, alleging claims for (1) Age Discrimination in Violation of the Fair Employment and Housing Act ("FEHA"); (2) Disability Discrimination in Violation of the FEHA; and (3) wrongful termination in violation of public policy. On January 8, 2008, defendant removed the case to this court on the basis of diversity jurisdiction.
STANDARD
The Federal Rules of Civil Procedure provide for summary judgment where "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c);see California v. Campbell, 138 F.3d 772, 780 (9th Cir. 1998). The evidence must be viewed in the light most favorable to the nonmoving party. See Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000) (en banc).
The moving party bears the initial burden of demonstrating the absence of a genuine issue of fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). If the moving party fails to meet this burden, "the nonmoving party has no obligation to produce anything, even if the nonmoving party would have the ultimate burden of persuasion at trial." Nissan Fire Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102-03 (9th Cir. 2000). However, if the nonmoving party has the burden of proof at trial, the moving party only needs to show "that there is an absence of evidence to support the nonmoving party's case." Celotex Corp., 477 U.S. at 325.
Once the moving party has met its burden of proof, the nonmoving party must produce evidence on which a reasonable trier of fact could find in its favor viewing the record as a whole in light of the evidentiary burden the law places on that party. See Triton Energy Corp. v. Square D Co., 68 F.3d 1216, 1221 (9th Cir. 1995). The nonmoving party cannot simply rest on its allegations without any significant probative evidence tending to support the complaint. See Nissan Fire Marine, 210 F.3d at 1107. Instead, through admissible evidence the nonmoving party "must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e).
ANALYSIS
A. FEHA: Age Discrimination
Plaintiff brings claims under the Fair Employment and Housing Act ("FEHA") for discrimination on the basis of age. Defendants move for summary judgment on the ground that plaintiff has not produced sufficient evidence to create a triable issue of fact for violations of FEHA.
FEHA provides that it is "an unlawful employment practice" for an employer to refuse to hire or employ, to bar or discharge from employment, or to discriminate against any individual over the age of 40 in terms, conditions, or privileges of employment on the basis of age. Cal. Gov. Code §§ 12926, 12941 (West 2006). "Although the wording of the Fair Employment Housing Act and title VII of the Federal Civil Rights Act of 1964 differs in some particulars, the antidiscriminatory objectives and the overriding public policy purposes are identical," and therefore, California courts refer to applicable federal decisions where appropriate.Sorosky v. Burroughs Corp., 826 F.2d 794, 803 (9th Cir. 1987) (citing County of Alameda v. Fair Employment Hous. Comm'n, 153 Cal. App. 3d 499, 504 (1984); Guz v. Bechtel Nat'l, Inc., 24 Cal. 4th 317, 354 (2000). "In particular, California has adopted the three-stage burden-shifting test established by the United States Supreme Court for trying claims of discrimination, including age discrimination, based on a theory of disparate treatment." Guz, 24 Cal. 4th at 354 (citing Texas Dep't of Cmty Affairs v. Burdine, 450 U.S. 248 (1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Martin v. Lockheed Missiles Space Co., 29 Cal. App. 4th 1718, 1730 (1994); Ewing v. Gill Indus., Inc., 3 Cal. App. 4th 601, 610-11 (1992); County of Alameda, 153 Cal. App. 3d 499, 504 (1984)).
1. Prima Facie Case
To establish a case of age discrimination in violation of FEHA, plaintiff must prove (1) he was a member of a protected class; (2) he was performing competently in the position he held; (3) he suffered an adverse employment action, such as termination, demotion, or denial of an available job; and (4) some other circumstance suggests discriminatory motive. Guz, 24 Cal. 4th at 355 (citations omitted).
With respect to her prima facie case, defendant does not dispute that plaintiff was a member of a protected class or that she suffered an adverse employment action. Rather, defendant argues that plaintiff fails to demonstrate that she was performing competently in her position or that defendant had discriminatory motives for their conduct.
Plaintiff presents sufficient evidence that she was competently performing in her position. Plaintiff received a satisfactory review during her last performance evaluation received in 2006. Dollard testified during her deposition that, at the time of her evaluation, plaintiff was "performing up to standard" and that she had no significant criticisms of plaintiff's performance. (Dollard Dep. at 143:24-144:8.) While the evaluation also noted that there were issues that needed improvement and was completed prior to the final policy violation, the court finds plaintiff's evidence sufficient to support her prima facie case that she was performing her position competently.
Plaintiff also presents sufficient evidence of discriminatory intent for purposes of a prima facie case because she was replaced by a substantially younger employee. See Begnal v. Canfield Assocs., Inc., 78 Cal. App. 4th 66, 73-74 (1st Dist. 2000) (collecting cases and noting that a plaintiff may set forth a prima facie case of age discrimination by demonstrating that she was replaced by a substantially younger person). Plaintiff's territory was reassigned to a forty-two year old MR after she was terminated. Subsequently, defendant hired employees in their twenties and thirties in the relevant office. Assuming plaintiff was "replaced" by the forty-two year old employee, although he was also over the age of forty, he was still "significantly" younger than plaintiff. See Hersant v. Dep't of Soc. Servs., 57 Cal. App. 4th 997, 1005-06 (4th Dist. 1997) (holding that the plaintiff had established a prima facie case because he was replaced by a man that was over forty but seven years younger than him).
Accordingly, the court finds that plaintiff has set forth a prima facie case of age discrimination in violation of FEHA.
2. Legitimate, Non-discriminatory Resson
Under McDonnell Douglass, once the plaintiff makes out a prima facie case of discrimination, the burden shifts to the defendant to set forth a legitimate, non-retaliatory reason for the adverse action. Guz, 24 Cal. 4th at 355-56. However, only the burden of production shifts; the ultimate burden of persuasion remains with the plaintiff. Burdine, 450 U.S. at 253.
Defendant presents evidence that plaintiff committed multiple violations of its policies and procedures. Specifically, plaintiff twice violated the company's gift policy; one of these violations occurred after a verbal warning and a company-wide e-mail reiterating the gift policy. Plaintiff also failed to have a Spec Map with her when enrolling a new house, which was recommended in defendant's procedure manual and was conduct for which plaintiff believed she could be terminated. Plaintiff's supervisor did not believe that plaintiff took this violation seriously or evinced respect for defendant's policies and procedures. In response to these violations, defendant gave plaintiff verbal warnings and a written DIP. Further, plaintiff received supplemental training for a policy violation relating to Quality Assurance. Finally, plaintiff failed to verify household address information and, as a result, enrolled the wrong household for equipment installation. According to defendant's evidence, plaintiff did not take this final violation seriously. Subsequent to this last violation, plaintiff was terminated. Under these undisputed facts, defendant has presented sufficient evidence that plaintiff was terminated for the legitimate reason of violating company policy. See Moore v. May Dep't Stores Co., 222 Cal. App. 3d 836, 840 (1990) (holding that there was good cause for termination as a matter of law where employee violated company procedures); Fowler v. Viarian Assocs., Inc., 196 Cal. App. 3d 34, 41-43 (1987) (holding that there was good cause for termination as a matter of law where, inter alia, employee refused to follow directions when he refused to disclose information).
3. Pretext
If the employer articulates a legitimate reason, the burden of production shifts back to the plaintiff to "attack the employer's proffered reasons as pretexts for discrimination, or to offer any other evidence of discriminatory motive. Guz, 24 Cal. 4th at 356 (citing St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 515-18 (1993)). It is insufficient for an employee to show that the employer's decision was "wrong, mistaken, or unwise." Horn v. Cushman Wakefield Western, Inc., 72 Cal. App. 4th 798, 807 (1st Dist. 1999). "Rather, the employee must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its actions that a reasonable factfinder could find them unworthy of credence, and hence infer that the employer did not act for the asserted non-discriminatory reasons." Id. (emphasis in original) (internal quotations and citations omitted).
A 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 defendants reasons are really a pretext for discrimination.Aragon v. Republic Silver State Disposal, Inc., 292 F.3d 654, 661 (9th Cir. 2002); see also Horn, 72 Cal. App. 4th at 807 (emphasizing that an issue of fact can only be created by a conflict in evidence, not by speculation or conjecture or by denying the credibility of the defendant's witnesses).
In support of her argument that defendant's asserted reason for termination was merely pretext for age discrimination, plaintiff asserts that she was treated differently from similarly situated, younger employees. First, plaintiff asserts that employee 33071, who was under 40 years old, signed an incorrect alternate, but was not terminated. Employee 33071 enrolled a house that did not have a cable television — a requirement to match the "basic" household demographic. This is not the same violation committed by plaintiff. While plaintiff's counsel argues that plaintiff's violation was less serious, plaintiff fails to offer any evidence to support the assertion that defendant considered 33071's error to be more egregious or even comparable to plaintiff's. See Hicks v. KNTV Television, Inc., 160 Cal. App. 4th 994, 1011 (6th Dist. 2008) (noting that "[a] plaintiff is not allowed to recast an employer's proffered nondiscriminatory reasons or substitute his business judgment for that of the employer" and holding that a weeknight news anchor was not necessarily similarly situated to a weekday news anchor). Accordingly, plaintiff has not demonstrated that her situation was equivalent to employee 33071 such that she should have been treated the same. See id.
Similarly, plaintiff consistently cites to deposition testimony wherein deponents testify that employees are not terminated for clerical errors. However, a full reading of the deposition testimony reveals that defendant did not consider plaintiff's violation to be a mere clerical error.
Second, plaintiff attempts to compare herself to employee 36082, who was thirty-nine when he first signed an incorrect alternate. Again, plaintiff seeks to equate enrolling a house that did not match the "basic" household demographic to enrolling the wrong house for installation. As set forth above, there is no evidence that these are comparable offenses. Further, assuming arguendo that these violations are equivalent, employee 36082's treatment does not support plaintiff's assertion of pretext. While 36082 was thirty-nine when he committed his first violation, he was forty, and within the same protected class as plaintiff, when he committed his second violation. He was also forty when he committed his third violation. (See Pl.'s Ex. N at D04042-43.). Employee 36082 received a written warning in the form of a Performance Improvement Plan ("PIP"), but was not terminated. As such, because employee 36082 was in the same protected class as plaintiff, defendant's failure to terminate him refutes rather than supports plaintiff's contention that defendant has a bias against employees based upon their age. At the very least, however, plaintiff's comparison is not persuasive as 36082 was in Earl's protected class at all relevant times. Cf. Beck v. United Food Commercial Workers Union, 506 F.3d 874, 883 (9th Cir. 2007) ("Evidence that one or more similarly situated individuals outside of the protected class received more favorable treatment can constitute sufficient evidence of discrimination.").
The court also notes that there is no evidence that employee 36082 had committed policy violations prior to his first instance of signing an incorrect alternate.
The court also notes that in April 2008, defendant terminated a thirty-nine year old employee, an employee outside plaintiff's protected class, for the same violation committed by plaintiff, enrolling the wrong household for equipment installation. (Pl.'s Ex. N at D1915-18.) Similarly, in August 2007, defendant terminated a thirty-one year old employee, an employee outside plaintiff's class, for a policy violation. (UF ¶ 36.) This was the only employee, aside from plaintiff, who was terminated from the Benicia office since 2001 for violating company policy and procedure. (Id.) The court recognizes, though, that each of these instances occurred after plaintiff's termination. See Chuang, 225 F.3d at 1129 (noting that actions subsequent to the filing of a discrimination complaint will rarely be relevant as circumstantial evidence in favor of the employer due to the obvious incentive to shield itself from liability).
Plaintiff also asserts that defendant's failure to engage in the complete progressive discipline policy demonstrates pretext. Plaintiff concedes that she is an at-will employee; as such, she is not entitled to any or all steps within the disciplinary process. However, defendant's failure to apply the process to plaintiff would be relevant to the extent that similarly situated employees outside of plaintiff's protected class were given the benefit of the complete process while plaintiff was not. As set forth above, plaintiff has failed to identify any similarly situated employees who were treated differently; rather, she only identifies employees who committed different violations. Accordingly, plaintiff's argument regarding defendant's failure to issue Earl a PIP before terminating her employment is unpersuasive.
In her opposition, plaintiff similarly asserts, without citation to any case or relevant legal authority, that defendant's violation of its own progressive discipline policy by terminating plaintiff without a PIP demonstrates pretext. Plaintiff relies on a statement in an e-mail sent by Bob Burns ("Burns"), Sowatzke's manager and mentor, providing, "As much as it sounds reasonable to terminate [the employee] without a PIP, it would not be consistent with our procedure." (Pl.'s Ex. H.) Plaintiff asserts that this is sufficient evidence to support her assertion that it was company policy to terminate employees only after placing them on a PIP.
However, defendant designated Sowatzke as the Person Most Knowledgeable on the topic of defendant's policies and procedures. Sowatzke testified that defendant's policy did not require issuance of a PIP prior to termination. (Sowatzke Dep. at 590:21-591:1.) Plaintiff never deposed Burns. Nor are there any documents, declarations, or other deposition testimony to support plaintiff's position that company policy required issuance of a PIP prior to termination. Furthermore, there is no evidence that the employee the e-mail referred to had committed the same violation as plaintiff; rather, it appears that he enrolled an alternate household that did not match the basic requirements. (Pl.'s Ex. H.) As such, this evidence is insufficient to raise a triable issue of fact regarding pretext.
Finally, plaintiff contends that her expert's analysis of the statistical evidence supports her contention that defendant had a pattern or practice of discriminating on the basis of age. Specifically, plaintiff presents evidence that there is a statistically significant disparity between the age of defendant's workforce generally and defendant's MRs specifically and the age of the general civilian workforce. (DF ¶¶ 49-54.) Statistical evidence may be relevant in an age discrimination case because "it can be used to establish a general discriminatory pattern in an employer's hiring or promotion practices." Diaz v. Am. Tel. Tel., 752 F.2d 1356, 1363 (9th Cir. 1985). Such a pattern may be probative of motive and "create an inference of discriminatory intent with respect to the individual employment decision at issue." Id. Absent explanation, nondiscriminatory hiring practices will generally result in a workforce more or less representative of the population of the community from which employees are hired. Id. (quoting Int'l Brotherhood of Teamsters v. U.S., 431 U.S. 324, 340 n. 20 (1977)). Therefore, general population statistics are often useful as a proxy pool of potential applicants "when the challenged employer practice screens applicants for entry level jobs requiring little or no specialized skills." Moore v. Hughes Helicopters, Inc., 708 F.2d 475, 482 (9th Cir. 1983). However, where "special skills are required for a job, the proxy pool must be that of the local labor force possessing the requisite skills." Id. (emphasis added); see Hazelwood Sch. Dist. v. U.S., 433 U.S. 299, 308 n. 13 (1977) (similar analysis of proper labor pools in disparate treatment cases). In this case, it is undisputed that MR position requires a college degree or equivalent experience. As such, special skills are required. Plaintiff's expert, however, compared the age of defendant's workforce, and MRs in particular, to the general civilian labor force, which does not represent the qualified labor market for MR positions. Plaintiff fails to present any statistical evidence comparing defendant's workforce to the relevant proxy pool. As such, her expert analysis fails to raise a triable issue of fact regarding a pattern or practice of discrimination and thus, an inference of discriminatory motive in this case.
The civilian labor force consists of all individuals aged 16 years or older employed or seeking employment in the United States.
In response to the court's specific questions on this matter at oral argument, plaintiff's counsel asked the court to infer that the statistical disparities would be the same or even greater if the proxy pool was limited to those qualified for the MR position. However, plaintiff has submitted no evidence to support such an inference; nor is the court inclined to speculate on matters that generally require expert analysis and testimony.
Looking at all of plaintiff's evidence together, plaintiff has failed to submit either specific or substantial evidence that defendant's reasons for termination were pretextual. Plaintiff has failed to present any evidence that defendant or her supervisors ever made any explicit comments that would implicate discriminatory intent or motive. Cf. Messick, 62 F.3d at 1231 (finding a triable issue of fact of pretext of age discrimination where the evidence demonstrated, in part, that the plaintiff's supervisor repeatedly commented to the plaintiff, coworkers, and customers about plaintiff's age). At most, plaintiff has demonstrated that she was replaced by a younger employee and that she did not receive the full progressive discipline policy. However, she has failed to show that similarly situated younger employees were given more favorable treatment or treated differently. Plaintiff has also failed to present any evidence that defendant's proffered reasons are not worthy of credence.
Therefore, for the foregoing reasons, defendant's motion for summary judgment regarding plaintiff's claim for age discrimination in violation of FEHA is GRANTED.
B. FEHA: Disability Discrimination
Plaintiff also brings claims under FEHA for discrimination on the basis of disability. Defendants move for summary judgment on the ground that plaintiff has not produced sufficient evidence to create a triable issue of fact for violations of FEHA.
In her opposition, plaintiff devotes approximately two pages of argument in support of her claim, relying primarily on her assertion that the subject of plaintiff's peripheral neuropathy "came up at work many times in meetings during which her supervisor, Sally Dollard, was present." (Pl.'s Opp'n at 19.) Plaintiff offers no support for her apparent contention that an employer's mere knowledge of a disability is sufficient to raise a triable issue of fact that an employee suffered discrimination on the basis of that disability. Rather, plaintiff conclusorily argues that "[s]ome] of the most significant of [plaintiff's evidence regarding age discrimination] also creates triable issues of fact as to whether defendant's termination is a pretext for disability discrimination." (Id. at 19-20.)
The court disagrees. Plaintiff has failed to present any evidence demonstrating discriminatory intent based upon her disability. Further, as set forth above, none of plaintiff's evidence raises a triable issue of fact regarding age discrimination; it similarly fails to raise a triable issue of fact regarding disability discrimination.
Therefore, defendant's motion for summary judgment regarding plaintiff's claim for disability discrimination in violation of FEHA is GRANTED.
C. Wrongful Termination in Violation of Public Policy
Finally, plaintiff claims that she was wrongfully terminated in violation of public policy because she was terminated on the basis of her age and/or disability. See Stevenson v. Superior Court, 16 Cal. 4th 880, 897 (1997) (holding that "FEHA's policy against age discrimination in employment is sufficiently substantial and fundamental to support a tort claim for wrongful discharge"). For the reasons set forth above, plaintiff's FEHA claims for age and disability discrimination fail; accordingly, plaintiff's claim for wrongful termination in violation of public policy also fails. See Sanders v. Arneson Prods., Inc., 91 F.3d 1351, 1354 (9th Cir. 1996). Therefore, defendant's motion for summary judgment regarding plaintiff's claim for wrongful termination in violation of public policy is GRANTED.
CONCLUSION
For all the above reasons, defendant's motion for summary judgment is GRANTED. The Clerk of Court is directed to close this file.
IT IS SO ORDERED.