Opinion
No. C 00-2059 SI
April 24, 2001
On April 20, 2001, the Court heard argument on defendant's motion for summary judgment. Having carefully considered the arguments of the parties and the papers submitted, and for the reasons set forth below, the Court GRANTS the motion as to the First, Third, Fourth and Fifth Causes of Action; and DISMISSES the Second Cause of Action without prejudice.
BACKGROUND
Since October 1999, plaintiff Ered Wu ("Wu") worked full-time as a front desk clerk at the Best Western Lighthouse Hotel in Pacifica, California. Compl. ¶ 11. Defendant Pacifica Hotel Company ("Pacifica") purchased the hotel from its previous owner and hired plaintiff to continue as a front desk clerk on January 14, 2000. Declaration of Peter McNamee in Supp. S.J. ("McNamee Decl.") ¶ 2; Declaration of Helen Black in Supp. S.J. ("Black Decl.") ¶ 2. Plaintiff resigned from his position on March 29, 2000. Black Decl. ¶ 3.
On April 14, 2000, Wu submitted a discrimination charge against Pacifica before the Equal Employment Opportunity Office and California Department of Fair Employment and Housing, alleging sexual harassment and retaliation by his supervisor David Turner ("Turner"). Compl. ¶ 3; Deft.'s Req. for Judicial Notice, Ex. A. Wu received right-to-sue letters from both agencies and commenced this lawsuit on June 8, 2000. Compl. ¶ 3.
Plaintiff alleges that Turner coerced him into a sexual relationship in exchange for employment benefits and a promise of promotion. Compl. ¶ 13. Both Wu and Turner are homosexual males. Compl. ¶ 5; Oppo. to S.J. 1:2-4. According to plaintiff, when he terminated the relationship in March 2000, Turner continued to make improper sexual advances and retaliated by "drastically reducing" plaintiffs work hours and issuing a written notice of discipline. Compl. ¶ 14; Deposition of Ered Wu ("Wu Depo.") 186:21-187:15 (attached to Declaration of Matthew A. Goodin in Supp. S.J. ("Goodin Decl."), Ex. A). The notice of discipline claimed that Wu switched work-shifts with another employee without prior approval, against company policy. Black Decl. ¶ 5, Ex. G (Notice of Discipline dated Mar. 23, 2000).
Wu's complaint states five causes of action against Pacifica: sexual harassment in violation of the Civil Rights Act of 1964 ("Title VII") (First Cause of Action) and California Fair Employment and Housing Act ("FEHA") (Second Cause of Action), retaliation in violation of Title VII (Third Cause of Action) and FEHA (Fourth Cause of Action), and constructive discharge in violation of public policy (Fifth Cause of Action). Defendant hereby moves for summary judgment in its favor on all causes of action.
LEGAL STANDARD
The Federal Rules of Civil Procedure provide for summary judgment when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c).
In a motion for summary judgment, "[if] the moving party for summary judgment meets its initial burden of identifying for the court those portions of the materials on file that it believes demonstrate the absence of any genuine issues of material fact," the burden of production then shifts so that "the non-moving party must set forth, by affidavit or as otherwise provided in Rule 56, `specific facts showing that there is a genuine issue for trial.'" T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n., 809 F.2d 626, 630 (9th Cir. 1987) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 317 (1986)).
In judging evidence at the summary judgment stage, the Court does not make credibility determinations or weigh conflicting evidence, and draws all inferences in the light most favorable to the nonmoving party. See T.W. Electric, 809 F.2d at 630-31 (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348 (1986)); Ting v. United States, 927 F.2d 1504, 1509 (9th Cir. 1991). The evidence presented by the parties must be admissible. Fed.R.Civ.P. 56(e). Conclusory, speculative testimony in affidavits and moving papers is insufficient to raise genuine issues of fact and defeat summary judgment. See Falls Riverway Realty, Inc. v. City of Niagara Falls, 754 F.2d 49 (2d Cir. 1985); Thornhill Publ'g Co., Inc. v. GTE Corp., 594 F.2d 730, 738 (9th Cir. 1979). Hearsay statements found in affidavits are inadmissible. See, e.g., Fong v. American Airlines, Inc., 626 F.2d 759, 762-63 (9th Cir. 1980).
DISCUSSION
According to Pacifica, no genuine dispute of material fact exists that Wu was not subjected to unwelcome sexual advances, did not suffer tangible, negative employment action, and unreasonably failed to make use of established internal complaint procedures or otherwise seek redress until after he resigned. For these reasons, Pacifica contends that it is entitled to judgment as a matter of law on Wu's first four causes of action for sexual harassment and retaliation under Title VII and FEHA. Pacifica further argues that no genuine dispute of material fact exists to demonstrate that Wu was subjected to intolerable employment conditions such that a reasonable person in his position would have felt compelled to quit. Because Wu cannot establish a constructive discharge, Pacifica argues that he cannot prove wrongful discharge in violation of public policy.
A. Sexual Harassment
Wu's First and Second Causes of Action allege sexual harassment by Turner in violation of Title VII and FEHA, respectively. There are two theories upon which sexual harassment may be alleged: "The first is quid pro quo harassment, where a term of employment is conditioned upon submission to unwelcome sexual advances. The second is hostile work environment, where the harassment is sufficiently pervasive so as to alter the conditions of employment and create an abusive work environment." Kohler v. Inter-Tel Tech., __ F.3d __, 2001 WL 357113, *5 (9th Cir. (Cal.) April 11, 2001) (quoting Mogilefsky v. Superior Court, 20 Cal.App.4th 1409, 1414 (1993)). California courts employ the same definition of both forms of sexual harassment as federal courts. Id. (citing Beyda v. City of Los Angeles, 65 Cal.App.4th 511, 517 (1998), and Fisher v. San Pedro Peninsula Hosp., 214 Cal.App.3d 590, 607 (1989)); see also Brooks v. City of San Mateo, 229 F.3d 917, 923 (9th Cir. 2000) ("While [plaintiff] argues that she was subjected to sexual discrimination under Title VII as well as FEHA, we need only assess her claim under federal law because Title VII and FEHA operate under the same guiding principles.").
The Supreme Court has held that an employer is vicariously liable for a supervisor's sexual harassment, whether it falls under the category of quid pro quo or hostile work environment. Faragher v. City of Boca Raton, 524 U.S. 775, 807, 118 S.Ct. 2275 (1998); Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765, 118 S.Ct. 2257 (1998); accord Kelly-Zurian v. Wohl Shoe Co., 22 Cal.App.4th 397, 415 (1994) (same rule applies under FEHA). It is enough if a plaintiff establishes that an agent or supervisor of the employer committed the sexual harassment; no showing is required that the employer committed the harassment or had actual or constructive knowledge of the supervisor's wrongful conduct. Kohler, __ F.3d __, 2001 WL 357113 at *10. However, certain affirmative defenses are available to employers under these circumstances.
1. Quid Pro Quo Sexual Harassment
Wu asserts only a claim of quid pro quo sexual harassment by Turner. Oppo. to S.J. 6:16-18. Quid pro quo sexual harassment occurs when a term of employment was expressly or impliedly conditioned upon acceptance of a supervisor's unwelcome sexual advances. See Heyne v. Caruso, 69 F.3d 1475, 1478 (9th Cir. 1995) (citing Nichols v. Frank, 42 F.3d 503, 511 (9th Cir. 1994)); Beyda v. City of Los Angeles, 65 Cal.App.4th 511, 550 (1998); Mogilefsky v. Superior Court, 20 Cal.App.4th 1409, 1414 (1993).
Pacifica argues that Wu cannot raise a genuine dispute of material fact that he was subjected to unwelcome sexual advances. Pacifica notes that Wu admitted finding Turner attractive and eventually agreed to go out because Turner appeared "very compassionate, kind, caring person, and also . . . a very eloquent speaker." Motion for S.J. 4-5; Wu Depo. (attached at Goodin Decl., Ex. A) 41:5-7, 44:19-25. These facts do not necessarily establish that Turner's advances were not unwelcome. Wu also testified that the sexual advances continued after he tried to discontinue the relationship, and the advances were unwelcome at that point. Wu Depo. 172:21-173:15, 173:24-174:4. Although the advances at this point may have been unwelcome for fear of negative reprisal, a sexual advance premised on a threat of job detriment constitutes quid pro quo just as well. Nichols, 42 F.3d at 511 (quid pro quo occurs "whenever an individual explicitly or implicitly conditions a job, a job benefit, or the absence of a job detriment, upon an employee's acceptance of sexual conduct") (emphasis added). Wu's deposition testimony creates a genuine dispute of material fact that Turner's sexual advances, whether at the beginning or end of the relationship, were unwelcome.
2. Employer's Affirmative Defense to Sexual Harassment by a Supervisor
Assuming that Turner committed quid pro quo sexual harassment, Pacifica argues that it is entitled to raise an affirmative defense because Wu did not suffer any tangible employment action. According to the Supreme Court, if no tangible employment action was taken against the employee, the employer may raise an affirmative defense to liability by showing that (1) it exercised reasonable care to prevent and correct the harassment; and (2) that the employee unreasonably failed to take advantage of any preventative or corrective opportunities or otherwise failed to avoid harm. Faragher, 524 U.S. at 807-808; Ellerth, 524 U.S. at 765.
In order to avail itself of the affirmative defense, Pacifica must establish that plaintiff did not suffer any tangible employment action as a result of Turner's sexual harassment. "A tangible employment action constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits." Ellerth, 524 U.S. at 761, 118 S.Ct. at 2268. Wu urges that he suffered tangible employment action when Turner disciplined him by submitting a written notice of discipline into Wu's personnel file, reassigned Wu to a later work shift, and "drastically" reduced his hours in March.
Wu does not dispute the underlying reason for the written discipline — switching schedules with another employee without prior authorization. See Black Decl., Ex. G. Further, it is undisputed that Wu "suffered no reduction in pay, loss of work, suspension, demotion, or reduction in any type of employment as a result of this disciplinary action." Id. at ¶ 5. Beyond the mere fact of the written discipline, Wu offers no argument or evidence showing that he suffered any effect from this incident. As a matter of law, the disciplinary notice is not tangible employment action that would preclude Pacifica from asserting an Ellerth/Faragher affirmative defense. Compare Ellerth, 524 U.S. at 761, 118 S.Ct. at 2269 ("bruised ego," demotion without change in pay, benefits, duties or prestige, or reassignment to a more inconvenient job is not a tangible employment action) (citations omitted).
Wu has submitted unauthenticated copies of employee schedules for January 24 through February 6, and March 5 through April 1, 2000. See Declaration of Gregg Lowell McCurdy in Oppo. to S.J. ("McCurdy Decl."), Ex. 1. In addition to being inadmissible, the schedules fail to raise a genuine dispute that Wu suffered tangible employment action by a shift reassignment or reduction in hours. The schedules show that Wu was assigned to work a 7 AM to 3 PM shift until March 10. See id. Thereafter his shifts varied from 9 AM to 5 PM, noon to 8 PM, or 3-11 PM. Id. There is no evidence that the shift changes caused some significant alteration in job responsibility or term of employment. Without some accompanying significant change in employment terms or benefits, the shift changes do not indicate that Wu suffered tangible employment action. See Ellerth, 524 U.S. at 761, 118 S.Ct. at 2268 ("A tangible employment action constitutes a significant change in employment status, such as . . . reassignment with significantly different responsibilities. . . ."); Kohler, __ F.3d __, 2001 WL 357113 at *12 (doubting that inconvenient work schedule and poor work performance review constituted tangible employment action). Wu's remaining argument that he suffered tangible employment action arises from an allegation that Turner "drastically reduced [Wu's] hours such that Plaintiff was only working `part time.'" Compl. ¶ 14(d). The Court need not determine whether this allegation, if true, would constitute tangible employment action because undisputed evidence reveals that it is untrue.
The proffered evidence lacks foundation to establish its authenticity and is inadmissible hearsay. Vague boiler-plate language stating that the schedules are "true copies of the originals," McCurdy Decl. ¶ 4, is insufficient to authenticate the evidence and does not qualify it as nonhearsay or as a hearsay exception.
The unauthenticated schedules Wu submitted show that he was scheduled to work 3 days the last week of January, 5 days the first week of February, 5 days the first full week of March, 3 days the second week of March, 4 days the third week of March, and 2 days the last week of March. See id. Contrary to his assertion that he worked full-time, five days per week, the schedule shows that Wu's scheduled hours varied from week to week. Pacifica's time card report, which Wu does not dispute, indicates that Wu's paid hours, measured in semi-monthly pay-periods, were relatively consistent in the weeks leading up to his resignation. The report reveals that Wu was paid for working 64.75 hours from January 16 to 31, 89.75 hours from February 1 to 15, 64.75 hours from February 16 to 29, 64.25 hours from March 1 to 15, and 64.25 hours from March 16 to 30. Black Decl. ¶ 3, Ex. D. Wu stresses that the drastic reduction occurred in the week of March 26, when he was scheduled to work only two days. However, Wu resigned from his job on March 29, 2000, which falls in the middle of that week. He therefore could not have worked the latter half of the week. Moreover, as defendant's evidence shows, Wu's hours for the last pay period that he worked do not differ from the previous pay periods. Wu has failed to raise a genuine dispute to support the claim that his hours were drastically reduced. See Davis v. Town of Lake Park, Fla., __ F.3d __, 2001 WL 289882, *6 (11th Cir. Mar. 26, 2001) ("[T]he employee's subjective view of the significance and adversity of the employer's action is not controlling; the employment action must be materially adverse as viewed by a reasonable person in the circumstances.").
There is no explanation for the missing three weeks in February.
Because Wu suffered no tangible employment action, Pacifica is entitled to the Ellerth/Faragher affirmative defense. Pacifica must show 1) that it exercised reasonable care to prevent and promptly correct any sexually harassing behavior, and 2) that Wu unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm otherwise. Ellerth, 524 U.S. at 765. Wu offers no argument or evidence to challenge Pacifica's showing of an affirmative defense. Consequently, the following facts are undisputed.
Pacifica has an established sexual harassment prevention policy and procedure including a printed definition of prohibited activity; a complaint mechanism naming a specified person to receive complaints that allows employees to by-pass a harassing supervisor, and written assurance that no retaliation will result from complaints. Black Decl., ¶ 2 and Ex. A. Pacifica routinely disseminates an informational handout and displays posters in the workplace, Wu's hotel, informing employees of the procedure. Id. at ¶ 2 and Exs. A-C. Wu received such information, saw the posters, was aware of the complaint procedure, and knew of neutral individuals to whom he could submit a complaint. Wu Depo. 163:7-20, 167:9-25, 171:10-13, 174:5-175:18, 181:9-182:2. Wu did not, however, utilize the complaint procedure and failed to notify hotel management, corporate management, or any other appropriate person of the alleged sexual harassment and retaliation by Turner. Wu Depo. 167:9-25, 169:9-20; McNamee Decl. ¶ 6; Black Decl. ¶ 6.
The undisputed facts demonstrate that there is no genuine issue of material fact to challenge Pacifica's Ellerth/Faragher affirmative defense. See Kohler, __ F.3d __, 2001 WL 357113 at *14 (showing that the plaintiff failed to follow known and established complaint procedures will often be sufficient to satisfy employer's burden); Madray v. Publix Supermarkets Inc., 208 F.3d 1290, 1302 (11th Cir. 2000) (same). Under these circumstances, plaintiffs Title VII claim fails.
Wu also argues that the Ellerth/Faragher affirmative defense is not available in sexual harassment claims under FEHA. The Ninth Circuit recently addressed this precise argument in Kohler v. Inter-Tel Tech., __ F.3d __, 2001 WL 357113, *5 (9th Cir. (Cal.) April 11, 2001). It first noted that the California Supreme Court has not yet ruled on the matter. Id. at *4 ("The parties have not cited, nor have we discovered, any California decision that addresses this precise question."). After reviewing FEHA's statutory language, policy goals and legislative history, the Ninth Circuit concluded that "the California courts will most likely adopt the affirmative defense to employer liability for workplace harassment set forth in Ellerth and Faragher." Kohler, __ F.3d __, 2001 WL 357113 at **7-10, 15. Ninth Circuit authority requires this Court to apply the Ellerth/Faragher affirmative defense to FEHA claims as well as Title VII claims.
The Kohler decision was not issued until after plaintiff filed his brief in opposition in this case. The Court notes that the attorneys who argued against application of the Ellerth/Faragher affirmative defense to FEHA claims in Kohler are the same attorneys representing plaintiff in this case. It therefore is not surprising that the arguments raised here by plaintiff are identical to those raised before, and recently rejected by, the Ninth Circuit.
At oral argument, Wu's counsel requested that this Court decline to exercise supplemental jurisdiction over the FEHA claims. "A federal district court with power to hear state law claims has discretion to keep, or decline to keep, them under conditions set out in § 1367(c)." Acri v. Varian Assocs., 114 F.3d 999, 1000 (9th Cir. 2000) (en banc). One ground to decline supplemental jurisdiction is if the state claim raises a novel or complex issue of State law. 28 U.S.C. § 1367(c)(1). California courts, unlike this Court, are not bound by the Kohler decision requiring application of the affirmative defense to FEHA claims. The question is still unsettled in State court even though the Ninth Circuit has determined how it believes the California Supreme Court would rule if presented with the question. The Court therefore GRANTS plaintiffs request and declines to exercise supplemental jurisdiction over the FEHA claim for sexual harassment.
Accordingly, defendant is entitled to summary judgment on Wu's First Cause of Action for sexual harassment under Title VII. The Second Cause of Action under FEHA is DISMISSED WITHOUT PREJUDICE to being refiled in State court.
B. Retaliation
Wu's Third and Fourth Causes of Action claim retaliation by Turner in violation of Title VII and FEHA, respectively. To establish a prima facie case of retaliation under Title VII and FEHA, Wu must show that (1) he engaged in protected activity, (2) his employer subjected him to an adverse employment action, and (3) the employer's action is causally linked to the protected activity. EEOC v. Dinuba Medical Clinic, 222 F.3d 580, 586 (9th Cir. 2000); Payne v. Norwest Corp., 113 F.3d 1079, 1080 (9th Cir. 1997); Flait v. North Am. Watch Corp., 3 Cal.App.4th 467, 476 (1992). Wu cannot demonstrate a triable issue of fact with respect to the first two elements of his prima facie case of retaliation.
Wu did not file his administrative complaint until approximately two weeks after his resignation. Any retaliation must therefore emanate from Wu engaging in protected activity while he was still employed by Pacifica. As discussed above, Wu did not pursue Pacifica's internal complaint procedure despite knowledge of its existence. He did not complain to the hotel's manager or anyone else at Pacifica. Wu admits, though, that he had the Opportunity to complain to the manager and that the manager could have acted to remedy the problem. Wu Depo. 167:9-25, 169:9-20, 174:5-175:18. These undisputed facts demonstrate that Wu did not engage in any protected activity from which retaliation could have resulted.
Nor can Wu demonstrate that he suffered any adverse employment action as a matter of retaliation. The same actions Wu points to as "tangible employment action" taken against him are relied upon to make out his claims that he suffered "adverse employment action" as a matter of retaliation. For the same reasons as are discussed above, Wu has not provided any facts to raise a genuine dispute that he suffered such action. He did not suffer a loss of job benefits or any other effect from Turner's written notice of discipline. He did not suffer an overall reduction in work. The shift change — the only claim supported by evidence — also fails to establish an adverse employment action. Wu noted that he lived from paycheck to paycheck. Wu Depo. 153:7-11 (attached at McCurdy Decl., Ex. 2). A change in work shifts does not directly impact this situation, and Wu offers no other evidence to show how scheduling him later during the day affects the terms or benefits of his employment. There is no evidence to show that the change in shifts implicated anything more than Wu's preference. Standing alone, the shift change does not constitute adverse employment action. See Steiner v. Showboat Operating Co., 25 F.3d 1459, 1465 n. 6 (9th Cir. 1994), cert. denied, 513 U.S. 1082 (1995) (questioning whether transfer from swing shift to day shift was "adverse" employment action where employee "was not demoted, or put in a worse job, or given any additional responsibilities"); Yates v. Avco Corp., 819 F.2d 630, 638 (6th Cir. 1987) (no adverse employment action where temporary transfer did not result in loss of salary or benefits).
Wu cannot raise a genuine dispute of material fact to satisfy the first two elements of his prima facie case of retaliation. Defendant is entitled to judgment as a matter of law on Wu's Third and Fourth Causes of Action for retaliation under Title VII and FEHA, respectively.
C. Wrongful Discharge in Violation of Public Policy
Wu's Fifth Cause of Action alleges that Turner's conduct forced Wu to resign and amounted to a constructive discharge. Wu claims that the discharge was in violation of public policy. The California Supreme Court articulated the elements of a constructive discharge claim in Turner v. Anheuser-Busch, Inc., 7 Cal.4th 1238 (1994):
In order to establish a constructive discharge, an employee must plead and prove, by the usual preponderance of the evidence standard, 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.
Turner, 7 Cal.4th at 1251. According to Turner, "the adverse working conditions must be unusually `aggravated' or amount to a `continuous pattern' before the situation will be deemed intolerable." Id. at 1246.
Considering the one written reprimand, and assuming that Wu's hours were reduced the last week of employment, Wu has not raised a genuine issue of fact demonstrating unusually aggravated or continuously intolerable working conditions. Wu's subjective perception of a stressful situation does not establish constructive discharge. As the court explained in Turner,
An employee may not be unreasonably sensitive to his [or her] working environment. Every job has its frustrations, challenges, and disappointments; these inhere in the nature of work. An employee is protected from unreasonably harsh conditions, in excess of those faced by his co-workers. He is not, however, guaranteed a working environment free of stress.
Turner, 7 Cal.4th at 1247 (quoting Goldsmith v. Mayor and City of Baltimore, 987 F.2d 1064, 1072 (4th Cir. 1993)). Accordingly, Pacifica is entitled to judgment as a matter of law on Wu's Fifth Cause of Action for wrongful discharge in violation of public policy.
CONCLUSION
For the foregoing reasons, the Court GRANTS defendant's motion for summary judgment on the First, Third, Fourth and Fifth Causes of Action. The Second Cause of Action is DISMISSED WITHOUT PREJUDICE.
JUDGMENT
In accordance with this Court's Order Granting Defendant's Motion for Summary Judgment as to the First, Third, Fourth and Fifth Causes of Action; and Dismissing Second Cause of Action without Prejudice dated April 24, 2001, judgment is hereby entered.
IT IS SO ORDERED AND ADJUDGED.