Opinion
No. C 03-5918 CW.
April 18, 2005
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
Defendants U.S. Bank, Jack Catton and Donna Nullmeyer (collectively, Defendants) move for summary adjudication, or in the alternative partial summary adjudication, of Plaintiff Luzviminda Ungson-Senas' claims against them for (1) wrongful termination in violation of public policy; (2) breach of the implied covenant of good faith and fair dealing; (3) discrimination based on race and national origin; (4) sexual harassment; and (5) illegal retaliation in response to complaints. Plaintiff, appearing pro se, opposes the motion.
The Court finds Defendants' motion for summary judgment appropriate for decision without oral argument as permitted by Civil Local Rule 7-1(b) and Federal Rule of Civil Procedure 78.See Partridge v. Reich, 141 F.3d 920, 926 (9th Cir. 1998), (noting that district court may decide summary judgment issues without oral argument if parties have opportunity to submit written materials) (citing Lake at Las Vegas Investors Group, Inc. v. Pacific Malibu Dev. Corp., 933 F.2d 724, 729 (9th Cir. 1991) cert. denied, 503 U.S. 920 (1992)). Having considered all the papers filed by the parties, the Court grants Defendants' motion for summary judgment.
BACKGROUND
Except where otherwise noted, the facts below are not subject to conflicting evidence. On April 1, 2002, Plaintiff was hired by Defendant U.S. Bank as a Sales and Service Coordinator at its branch location at 1414 Webster Avenue in Alameda, California (the Webster Branch). U.S. Bank's human resources representative offered Plaintiff the job in a letter, stating in part, "Your employment in this position will be at will," and offering her an annual salary of $34,000. Hochschild Decl., Ex. A, Ungson-Senas Dep., Ex. 15, March 21 Letter to Luzviminda Ungson-Senas. As Sales and Service Coordinator, Plaintiff was responsible for supporting the then-Branch Manager, Michele Andrada-Lee, in the administration of major branch activities, including "delivering strong customer sales and service [and] insuring compliance with operational policies and procedures." Catton Decl., Ex. A, Sales and Service Coordinator Job Description.
According to Defendant Jack Catton, then the East Bay District Manager responsible for supervision of the Webster Branch, Ms. Andrada-Lee informed him that she was concerned about Plaintiff's poor interpersonal skills, including rudeness to customers. Catton Decl. ¶ 6. Plaintiff admits that she was reprimanded by Ms. Andrada-Lee, including for an incident in which Plaintiff refused to set up a teller drawer for a trainee teller. Ungson-Senas Dep. 117:2-118:12; Ungson-Senas Dep., Ex. 18, August 23, 2002 Memo from Michele Lee to Luz Senas Re: Insubordination (August 23, 2002 Memo). In a written memo, Ms. Andrada-Lee warned Plaintiff that her refusal to set up the drawer was argumentative and insubordinate, and that further such unprofessional conduct "may result in further disciplinary action up to and including the termination of your employment with U.S. Bank." August 23, 2002 Memo. Mr. Catton complained to Ms. Andrada-Lee that Plaintiff repeatedly refused to identify herself by first name when answering the phone, despite his express request that she do so as a matter of courtesy to customers. Catton Decl., Ex. B, August 21, 2002 Email from Jack Catton to Michele Andrada-Lee; see also Ungson-Senas Dep. 120:1-123:15 (describing Catton's instruction as an "illegal detention" because Catton was interfering with Plaintiff's performance at work).
Ms. Andrada-Lee was transferred to another location in September, 2002. The Branch Manager position remained vacant, while Plaintiff continued in her role as coordinator of the Webster Branch without an on-site supervisor. Plaintiff was not interviewed for the position as Branch Manager after Ms. Andrada-Lee's departure. Ungson-Senas Dep. 170:12-18. However, Plaintiff never filled out an application for the job, and at her deposition was unable to remember whether she ever indicated to bank management that she wished to be considered. Id. at 171:3-9.
Defendant Donna Nullmeyer, who is white, was hired as Branch Manager in February, 2003. Nullmeyer Decl. ¶ 1. Ms. Nullmeyer was informed by Mr. Catton that he had serious concerns about Plaintiff's job performance, but that he had not terminated Plaintiff because the Branch was short-staffed. Id. ¶ 2. Ms. Nullmeyer states in her declaration that she concluded that, while Plaintiff had the necessary accounting skills, she lacked "interpersonal skills" needed for her position and was rude and uncooperative. Id. ¶ 3. In a March 18, 2003 memo to Plaintiff, Ms. Nullmeyer described as "problematic" certain activities for which Plaintiff was responsible, such as customer service, answering the phone, wearing the employee name badge, sales and communication with the Branch Manager. Id. Ex. A, March 18, 2003 Memo from Donna Nullmeyer to Luz Senas. The memo concluded, "It is my hope to work with you to improve these areas and to show positive results in a quick period of time." At her deposition, Plaintiff acknowledged that she received the memo and that Ms. Nullmeyer emphasized the need for prompt improvement in all of these areas. Ungson-Senas Dep. 132:5-12.
According to Ms. Nullmeyer, on March 26, 2003, after observing Plaintiff fail to respond to a customer's request for assistance, she concluded that it was appropriate to terminate Plaintiff's employment. Nullmeyer Decl. ¶ 4-5. Ms. Nullmeyer and Mr. Catton agreed that he would inform Plaintiff of the decision immediately. That day, Ms. Nullmeyer asked to speak with Plaintiff. In response, Plaintiff asked to take her lunch break. The parties agree that although Plaintiff was allowed to take her lunch break, Mr. Catton commented, "You already ate your lunch when you had your first break" and Ms. Nullmeyer told Plaintiff, "[T]his is your last lunch." See Complaint ¶ K, L. When Plaintiff returned from her break, Mr. Catton informed her that she was being terminated. According to a letter dated that same day, Plaintiff was involuntarily terminated due to "insubordination and lack of professionalism." Catton Decl., Ex. D, March 26, 2003 Letter from Jack Catton to Luzviminda Senas.
While Plaintiff provides no evidence that would refute the preceding sequence of events, she maintains that the stated reasons for her termination were pretextual. First, Plaintiff claims that she was terminated in violation of public policy for reporting that other Webster Branch employees were engaged in "illegal and fraudulent activities," specifically with regard to a "$50 Million credit that keeps on hopping from one account to another that had finally settled on the dummy account of one of the employees of the bank." Complaint ¶ 15. Acting on an email instructing employees to notify U.S. Bank's corporate security office upon identification of the $50 million credit, Plaintiff contacted corporate security by phone and provided them with the account number of a Webster Branch co-worker. This incident occurred "months or weeks" prior to her termination. Ungson-Senas Dep. 141:10. Ms. Nullmeyer states, and Plaintiff does not dispute, that she was unaware of the alleged report of illegal or fraudulent activity by bank employees when she made the decision to fire Plaintiff. Nullmeyer Decl. ¶ 8. Plaintiff provides no evidence that Mr. Catton was aware of her report.
Plaintiff also claims that Defendants breached the implied covenant of good faith and fair dealing in several ways. The contract Plaintiff identified governing her employment is her offer letter. Ungson-Senas Dep. 92:8-20. That letter explicitly stated that her employment was at-will, at an annual salary of $34,000. Nevertheless, Plaintiff claims that she had an implied contract prohibiting termination except for good cause. She bases her claim solely on U.S. Bank's progressive discipline policy, which pertains to employees who open new accounts which incur loss within six months. Pl.'s Opp., Ex. 8.
Defendants object to the documents attached to Plaintiff's opposition on the grounds that Plaintiff has not submitted testimony under oath as to the admissibility of the documents. Defendants object to Plaintiff's declaration in support of her opposition on the grounds that it contradicts her sworn deposition testimony. Because the Court finds that Plaintiff's evidence would be insufficient to overcome Defendants' motion for summary judgment even if it were authenticated and non-contradictory, Defendants' objections are overruled as moot.
Defendants also object to Plaintiff's Opposition, which contains numerous allegations that are not supported by affidavit, deposition testimony or any other evidence. Such allegations are not evidence and are not considered as such by the Court.
Plaintiff's other claims for violation of the implied covenant relate to the terms and conditions of her employment. Plaintiff did not receive commission payments for accounts opened. Her request to attend banker training was denied. Plaintiff also claims that her request for leave to study for the Certified Public Accountant (CPA) examination was denied, although she admits that Ms. Nullmeyer did not reject the request outright, but said she would "study" the request. Ungson-Senas Dep. 164:4-11. Plaintiff further contends that her level of compensation was unfair; she performed significantly more work for her salary than a male employee who was paid almost as much, and almost as much work as the female Branch Managers, whose salaries were much higher. Plaintiff conceded in her deposition that Defendants made no written or oral promise that she was, or would become, entitled to commissions, banker training, leave to prepare for the CPA exam or a higher salary.
Plaintiff also claims that Defendants discriminated against her by failing to promote and then terminating her on the basis of race, color and national origin; subjected her to a hostile work environment due to her sex; and terminated her in retaliation for her complaints about discrimination and harassment. Plaintiff is originally from the Philippines, has a brown skin color and speaks accented English.
According to Plaintiff, Mr. Catton told her on March 6, 2003, "You are my mate," and threw a small piece of paper at her that landed inside her blouse. Complaint ¶ I. Plaintiff also claims that she "felt a human head structure that landed on her lips" and kissed her. Id. However, Plaintiff was unable to remember who did this, or whether the "head structure" was in fact a person. Ungson-Senas Dep. 181-182. Although this incident occurred while Plaintiff was engaged in conversation with Mr. Catton, she confirmed that it was not he who kissed her. Id. at 182:13-17.
During her employment at the Webster Branch, Plaintiff never reported her complaints regarding discrimination or harassment to U.S. Bank's corporate or local human relations department, although she was aware that this was the company's reporting procedure. Ungson-Senas Dep. 210:15-22, 207:7-19. On June 16, 2003, Plaintiff wrote to the CEO of U.S. Bank, attaching a report of discrimination and unfair treatment which she later filed with the EEOC. Id. Ex. 10. The EEOC and California Department of Fair Employment and Housing (DFEH) issued right-to-sue notices on August 18, 2003. Ungson-Senas Dep. Ex. 10, 12.
On November 17, 2003, Plaintiff filed complaints in both the Alameda County Superior Court and the Northern District of California. Defendants removed the State complaint to federal court. On May 11, 2004, the Court dismissed as duplicative the original federal complaint.
LEGAL STANDARD
Summary judgment is properly granted when no genuine and disputed issues of material fact remain, and when, viewing the evidence most favorably to the non-moving party, the movant is clearly entitled to prevail as a matter of law. Fed.R.Civ.P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986);Eisenberg v. Ins. Co. of N. Am., 815 F.2d 1285, 1288-89 (9th Cir. 1987).
The moving party bears the burden of showing that there is no material factual dispute. Therefore, the court must regard as true the opposing party's evidence, if supported by affidavits or other evidentiary material. Celotex, 477 U.S. at 324;Eisenberg, 815 F.2d at 1289. The court must draw all reasonable inferences in favor of the party against whom summary judgment is sought. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Intel Corp. v. Hartford Accident Indem. Co., 952 F.2d 1551, 1558 (9th Cir. 1991).
Material facts which would preclude entry of summary judgment are those which, under applicable substantive law, may affect the outcome of the case. The substantive law will identify which facts are material. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Where the moving party does not bear the burden of proof on an issue at trial, the moving party may discharge its burden of showing that no genuine issue of material fact remains by demonstrating that "there is an absence of evidence to support the nonmoving party's case." Celotex, 477 U.S. at 325. The moving party is not required to produce evidence showing the absence of a material fact on such issues, nor must the moving party support its motion with evidence negating the non-moving party's claim. Id.; see also Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 885 (1990); Bhan v. NME Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir. 1991), cert. denied, 502 U.S. 994 (1991). If the moving party shows an absence of evidence to support the non-moving party's case, the burden then shifts to the opposing party to produce "specific evidence, through affidavits or admissible discovery material, to show that the dispute exists."Bhan, 929 F.2d at 1409. A complete failure of proof concerning an essential element of the non-moving party's case necessarily renders all other facts immaterial. Celotex, 477 U.S. at 323.
DISCUSSION
I. Wrongful Termination in Violation of Public Policy
Defendants argue that they are entitled to summary adjudication of Plaintiff's State law claim for wrongful termination in violation of public policy because she cannot identify the public policy at issue or the necessary nexus between that policy and her termination.
In order to sustain a claim for wrongful termination in violation of public policy, Plaintiff must prove that her dismissal violated a fundamental and substantial policy that affects society at large and was well established at the time of her discharge. Stevenson v. Superior Court, 16 Cal. 4th 880, 889 (1997) (citing Foley v. Interactive Data Corp., 47 Cal. 3d 654, 669-670 (1988)). In addition, if her claim is based on retaliation for reporting violations of a statute, Plaintiff must establish "the required nexus between [her] reporting of alleged statutory violations and [her] allegedly adverse treatment" by Defendants. Turner v. Anheuser-Busch, 7 Cal. 4th 1238, 1258 (1994).
Plaintiff points to both her exercise of her statutory right to take a lunch break and her report to U.S. Bank's corporate security office of the $50 million "scam," which report Plaintiff claims was required by anti-money-laundering laws. Even assuming,arguendo, that each of these public policies is sufficient to support a claim for wrongful termination in violation of public policy, Plaintiff has not provided evidence that raises a dispute of material fact as to the existence of the required nexus between these policies and her termination.
Plaintiff claims that the fact that she was terminated after she reported the appearance of the peripatetic $50 million credit is sufficient to establish the required "nexus." However, the undisputed evidence shows that Ms. Nullmeyer was not aware of the report to corporate security when she made the decision to fire Plaintiff. Plaintiff has offered no evidence to show that Mr. Catton was aware of the report or that other U.S. Bank officials who were aware of it participated in Ms. Nullmeyer's ultimate decision to terminate her. In the absence of any such evidence, there are no grounds on which to infer that Plaintiff's report of an irregularity in response to an emailed request from U.S. Bank corporate management caused Defendants to terminate her.
Similarly, Plaintiff has provided no evidence sufficient to raise an disputed issue of fact as to whether her declaration that she was entitled to a lunch break caused Defendants to terminate her. Plaintiff does not dispute that Defendants allowed her to take her statutory lunch break, on the day she was fired and at other times. Indeed, Ms. Nullmeyer's statement, "this is your last lunch," supports Defendants' contention that the determination to fire Plaintiff was made prior to her insistence on her statutory right to a lunch break.
For these reasons, the Court grants Defendants' motion for summary adjudication of Plaintiff's claim of wrongful termination in violation of public policy.
II. Breach of Implied Covenant of Good Faith and Fair Dealing
Defendants move for summary adjudication of Plaintiff's second claim, for breach of the implied covenant of good faith and fair dealing. A covenant of good faith and fair dealing is implied in all contracts. Foley, 47 Cal. 3d at 682. "Since the good faith covenant is an implied term of a contract, the existence of a contractual relationship is thus a prerequisite for any action for breach of the covenant." Kim v. Regents of University of Cal., 80 Cal. App. 4th 160, 164 (2000). The implied covenant cannot "impose substantive terms and conditions beyond those to which the contract parties actually agreed." Guz v. Bechtel Nat'l Inc., 24 Cal. 4th 317, 349 (2000). Instead, the covenant serves to prevent one party from frustrating the other's "right to receive the benefits of the agreement actually made."Id.
Defendants argue that Plaintiff has no basis for her claim for breach of the implied covenant of good faith and fair dealing because she seeks to enforce terms and conditions beyond those in any actual contract, either express or implied. The Court examines each alleged breach in turn.
A. Plaintiff's Termination
Defendants argue that Plaintiff has no basis for her claim for breach of the covenant of good faith and fair dealing because no contract, express or implied, protected her from termination at-will. Plaintiff claims that she enjoyed an implied contract protecting her from termination without just cause. An at-will employee "cannot use the implied covenant to create a for cause employment contract where none exists." Eisenberg v. Alameda Newspapers, Inc., 74 Cal. App. 4th 1359, 1391 (1999) (citingFoley, 47 Cal. 3d at 690). In the absence of a contract limiting Defendants' right to terminate her, Plaintiff cannot bring a claim based on the implied covenant of good faith and fair dealing challenging her termination.
Plaintiff correctly notes that progressive discipline policies may be relevant in determining the existence of an implied contract not to terminate except for good cause, and thus whether an implied covenant to that effect applies. See Wood v. Loyola Marymount Univ., 218 Cal. App. 3d 661, 668 (1990); Foley, 47 Cal.3d at 680 (quoting Pugh v. See's Candies, Inc., 116 Cal. App. 3d 311, 327 (1981)) (listing factors that may bear on existence and content of implied contract limiting employer's right to fire employee, e.g. longevity of service, assurances of continued employment and industry practice). However, the U.S. Bank policy Plaintiff proffers, which provides guidelines for disciplinary action against employees who open new accounts in which loss occurs in the first six months, is inapposite. Pl.'s Opp., Ex. 8. She was not accused of improper authorization of accounts. Plaintiff has provided no evidence suggesting that any of the other Foley factors apply. Therefore, the Court finds that Plaintiff had no implied contract that barred her termination.
B. Denial of Sales Commissions, Leave and Training
Plaintiff also contends that Defendants violated the implied covenant of good faith and fair dealing by denying her opportunities to receive sales commissions, to go on leave to study for the CPA exam and to attend banker training. All of these claims are deficient because Plaintiff has not shown that Defendants were obliged to provide her with these benefits pursuant to a contract, express or implied. The only compensation offered in Plaintiff's hiring letter is a $34,000 annual salary, and Plaintiff admits that she was never promised commissions.Id. at 161:17-19. She identifies no contract or promise that would give her the right to such leave, and no bank policy regarding training and time off that Defendants violated. Id. 164:12-21. Moreover, Plaintiff admitted that her request for leave to study for the CPA board exam was not definitively denied. Because Plaintiff was not entitled to these benefits based on a contract, either express or implied, Defendants' acts cannot constitute a breach of the implied covenant of good faith and fair dealing.
C. Level of Compensation
Plaintiff alleges in her complaint that Defendants breached the implied covenant by assigning her "too many responsibilities and a high volume of customer service," resulting in unpaid overtime. Complaint ¶ 19. Assuming arguendo that Plaintiff would have been entitled to overtime pay, Plaintiff has failed to provide sufficient evidence to establish a dispute of material fact as to this claim. At her deposition, Plaintiff was unable to remember or to estimate the number of times she was required to work extra hours, or whether overtime occurred "often." Ungson-Senas Dep. 225:11-19; 226:7-13. Plaintiff never recorded her time, and never asked for compensation for overtime hours. Id. at 225:20-24; 221:23-222:5. She "once" told William Shields, District Operations Manager, that she had to work past 6:00 p.m. Id. at 221:6-10.
With her opposition to this motion, Plaintiff submits a sworn declaration that she had too many tasks to complete and that as a result she worked "more than 40 hours per week" without overtime pay. Ungson-Senas Decl. ¶ 2(a). This general and conclusory testimony does not meet her burden to produce "specific evidence" showing that a dispute exists as to unpaid overtime. Bhan, 929 F.2d at 1409. Plaintiff proffers printed records of her compliance curriculum training to show that she completed certain intranet courses on six Saturdays and Sundays between May 5 and June 22, 2002. Pl.'s Opp. Ex. 9. However, these printouts are insufficient to support Plaintiff's contention that "there have been excess hours not paid" by Defendants. Plaintiff submitted no evidence to show that these trainings were mandatory or that she actually worked more than forty hours without compensation during the time period when she completed the training. Therefore, the Court finds that there is insufficient evidence to raise a factual dispute as to whether Defendants violated the implied covenant by failing to pay Plaintiff overtime.
D. Equal Pay Claim
Plaintiff claims that Defendants breached the implied covenant by assigning her more responsibilities for proportionately less pay than other employees and denying her request for salary increases, in violation of Equal Pay laws. Complaint ¶ 21. California and federal Equal Pay laws prohibit employers from paying employees less than members of the opposite sex for "equal work on jobs the performance of which requires equal skill, effort, and responsibility." 29 U.S.C. § 206(d)(1); Cal. Labor Code § 1197.5(a).
Plaintiff has not shown that she was paid less than members of the opposite sex for equal work involving equal skill, effort and responsibility. Plaintiff does not identify a male employee who performed a job requiring equal skill, effort and responsibility yet was paid more than she. Instead, Plaintiff identifies the female Branch Managers, who were Plaintiff's supervisors and made substantially larger salaries, and the Webster Branch's male personal banker, who had "lesser responsibility" and made slightly less than Plaintiff. Ungson-Senas Dep. 169:14-22. Regardless of whether these discrepancies were fair, they do not constitute a prima facie case for violation of Equal Pay laws. See Forsberg v. Pacific Northwest Bell Tel. Co., 840 F.2d 1409, 1414 (9th Cir. 1988) ("In order to make out a prima facie case under the EPA, a plaintiff bears the burden of establishing that he or she did not receive equal pay for equal work"). Therefore, there is no evidence that Defendants breached the implied covenant by violating Equal Pay laws with respect to Plaintiff's salary.
III. Discrimination Claims
Defendants move for summary adjudication of Plaintiff's State and federal claims of discrimination based on race, color and national origin. Defendants argue that Plaintiff failed to provide sufficient evidence to meet her prima facie burden to show discrimination or to support a rational inference that Defendants' reasons for failing to hire her for the Branch Manager position and for firing her were pretextual.
In their motion, Defendants also contend that Plaintiff failed timely to exhaust her Title VII claims "within ninety days after the giving of" the EEOC's Notice of Right to Sue. 42 U.S.C. § 2000e(5)(f)(1). The EEOC's Notice of Right to Sue was issued on August 18, 2003, and Plaintiff filed suit ninety-one days later on November 19, 2003. As Plaintiff correctly notes, the ninety day deadline fell on a Sunday. Furthermore, Defendants' exhaustion argument relies on a misreading of case law. See Nelmida v. Shelly Eurocars, Inc., 112 F.3d 380, 383 (9th Cir. 1997) (holding that the limitations period ran from the date delivery was attempted, not from the date notice was issued). Therefore, the Court considers Plaintiff's Title VII discrimination claim on the merits.
In McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973) and Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981), the Supreme Court established a burden-shifting framework for evaluating the sufficiency of a plaintiff's evidence in employment discrimination suits. The California Supreme Court applied this burden-shifting analysis, in relevant part, to State discrimination claims in Guz, 24 Cal. 4th at 354-358. Within this framework, a plaintiff may establish aprima facie case of discrimination with circumstantial evidence: a plaintiff must show that she is a member of a protected class; that she was qualified for the position she held or sought; that she was subjected to an adverse employment decision; and that she was replaced by someone who was not a member of the protected class or that the circumstances of the decision otherwise raised an inference of discrimination. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993) (citing McDonnell Douglas and Burdine). Once the plaintiff establishes a prima facie case, a presumption of discriminatory intent arises. Id. To overcome this presumption, the defendant must come forward with a legitimate, non-discriminatory reason for the employment decision. Id. at 506-07. If the defendant provides that explanation, the presumption disappears. See id. at 511; Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir. 1994).
In response to the defendant's offer of a non-discriminatory reason, the plaintiff must produce "specific, substantial evidence of pretext." Steckl v. Motorola, Inc., 703 F.2d 392, 393 (9th Cir. 1983). To survive summary judgment, the plaintiff must introduce evidence sufficient to raise a genuine issue of material fact as to whether the reason the employer articulated is a pretext for discrimination. The plaintiff may rely on the same evidence used to establish a prima facie case or put forth additional evidence. See Coleman v. Quaker Oats Co., 232 F.3d 1271, 1282 (9th Cir. 2000); Wallis, 26 F.3d at 892. "[I]n deciding whether an issue of fact has been created about the credibility of the employer's nondiscriminatory reasons, the district court must look at the evidence supporting the prima facie case, as well as the other evidence offered by the plaintiff to rebut the employer's offered reasons. And, in those cases where the prima facie case consists of no more than the minimum necessary to create a presumption of discrimination underMcDonnell Douglas, plaintiff has failed to raise a triable issue of fact." Wallis, 26 F.3d at 890. "[T]he plaintiff `must tender a genuine issue of material fact as to pretext in order to avoid summary judgment.'" Id. (quoting Steckl, 703 F.2d at 393). Plaintiff must "produce specific facts . . . showing that the employer's explanation is not credible," although she "need produce very little evidence of discriminatory motive to raise a genuine issue of fact." Lindahl v. Air France, 930 F.2d 1434, 1438 (9th Cir. 1991).
With respect to Defendants' failure to hire Plaintiff for the Branch Manager job, Plaintiff has not provided sufficient evidence to show that she suffered an adverse employment decision as required for a prima facie case. Plaintiff was clearly aware that the Branch Manager position was vacant. She did not apply for the position and does not even remember telling anyone that she was interested in being considered, nor has she introduced any evidence indicating that Defendants discouraged her from applying for the job. Cf., e.g., Dews v. A.B. Dick Co., 231 F.3d 1016, 1022 (6th Cir. 2000) (holding that plaintiff in failure-to-promote case need not establish that he or she applied for promotion where employer does not notify employees of the available promotion or provide a formal mechanism for expressing interest in promotion). Therefore, Plaintiff cannot proceed with her claim that Defendants discriminated against her by failing to promote her to Branch Manager.
Defendants have proffered legitimate, non-discriminatory reasons for Plaintiff's subsequent termination, including incidents of insubordination and lack of professionalism. Plaintiff attempts to show that Defendants' performance-related reasons were pretextual by pointing to Defendants' "decision to retain a non-performing employee." Pl.'s Opp. at 17. According to Plaintiff's deposition testimony, this allegedly "non-performing" employee was a Hispanic teller whose medical condition sometimes required that other Webster Branch employees miss their lunch breaks while waiting for paramedics. Ungson-Senas Dep. 172-173. Defendants' continued employment of this teller provides no evidence whatsoever that Defendants' reasons for firing Plaintiff were pretextual.
For these reasons, the Court grants Defendants' motion for summary adjudication of Plaintiff's discrimination claims.
IV. Sexual Harassment
Defendants move for summary adjudication of Plaintiff's claim that she was sexually harassed in violation of California Government Code § 12940(j)(1).
The required elements of a prima facie case for sexual harassment include, "(1) plaintiff belongs to a protected group; (2) plaintiff was subject to unwelcome sexual harassment; and (3) the harassment complained of was based on sex; [and] (4) the harassment complained of was sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment." Fisher v. San Pedro Peninsula Hosp., 214 Cal. App. 3d 590, 608 (1989). California courts look to Title VII case law for guidance in deciding Fair Employment and Housing Act (FEHA) claims, and the standard is accordingly the same under FEHA as under Title VII. See Nidds v. Schindler Elevator Corp., 113 F.3d 912, 916 (9th Cir. 1996). To demonstrate a hostile work environment, a plaintiff must show that the work environment is abusive from both a subjective and an objective point of view. See Fuller v. City of Oakland, 47 F.3d 1522, 1527 (9th Cir. 1995) (citing Harris v. Forklift Systems, Inc., 510 U.S. 17, 21-22 (1993)). In evaluating the objective hostility of a work environment, the factors to be considered include the "frequency of discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Nichols v. Azteca Rest. Enters., 256 F.3d 864, 872 (9th Cir. 2001) (citation omitted).
Plaintiff describes incidents that allegedly created an abusive working environment and were based on sex. Given Plaintiff's inability to remember whose "human head structure" contacted her and whether this head belonged to an actual person, the Court declines to infer that this incident involved an unwelcome advance by a supervisor or co-worker, and does not consider it further. Combined, Mr. Catton's alleged statement, "You are my mate," and throwing of a small piece of paper at Plaintiff are not frequent, severe or threatening enough to alter the conditions of Plaintiff's employment and create an abusive working environment. Cf. Nichols at 870, 872 (finding that "relentless campaign of insults, name-calling, and vulgarities" created an objectively hostile environment).
For these reasons, the Court grants Defendants' motion for summary adjudication of Plaintiff's sexual harassment claim.
V. Retaliation
Defendants move for summary adjudication of Plaintiff's claim that she was terminated in retaliation for her complaints. In order to establish a prima facie case of retaliation under either Title VII or FEHA, Plaintiff "must show she engaged in a protected activity, she was thereafter subjected to adverse employment action by her employer and there was a causal link between the two." Mathieu v. Norrell Corp., 115 Cal. App. 4th 1174, 1185 (2004) (citing Soldinger v. Northwest Airlines, Inc., 51 Cal. App. 4th 345, 367 (1996)); see also Brooks v. City of San Mateo, 229 F.3d 917, 928 (9th Cir. 2000). To the extent that Plaintiff's retaliation claim rests on her report to corporate security regarding the $50 million credit, this claim was addressed in Section I above, and is not cognizable under FEHA or Title VII. To the extent that her retaliation claim rests on the discrimination complaints filed with U.S. Bank's CEO, the EEOC or DFEH, Plaintiff cannot show the required causal link because these complaints were filed after her termination.
For these reasons, the Court finds that Plaintiff has failed to provide sufficient facts to establish a prima facie case of retaliation against Defendants.
Because the Court finds that Plaintiff has not established the existence of a dispute of material fact as to any of her claims, it does not reach Defendants' argument that certain claims cannot be maintained against the individual Defendants.
CONCLUSION
For the foregoing reasons, the Court GRANTS Defendants' motion for summary judgment (Docket No. 24). Judgment shall enter accordingly. Defendants shall recover their costs from Plaintiff.
IT IS SO ORDERED.