Xochitl Nisbet v. American National Red Cross et alNOTICE OF MOTION AND MOTION for Summary JudgmentC.D. Cal.June 19, 2017 CASE NO.: 2:16-cv-07342 GW(ASx) 1 DEFS’ NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Theresa M. Marchlewski (SBN 82429) Ellen Cohen (SBN 258131) JACKSON LEWIS P.C. 725 South Figueroa Street, Suite 2500 Los Angeles, California 90017-5408 Telephone: (213) 689-0404 Facsimile: (213) 689-0430 E-mail: marchlet@jacksonlewis.com E-mail: ellen.cohen@jacksonlewis.com Attorneys for Defendants AMERICAN NATIONAL RED CROSS, individually and on behalf of the GREATER LOS ANGELES CHAPTER OF THE AMERICAN RED CROSS (erroneously sued as AMERICAN RED CROSS OF GREATER LOS ANGELES) and AUSANTA NEBBITT UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA XOCHITL NISBET, Plaintiff, v. AMERICAN NATIONAL RED CROSS; AMERICAN RED CROSS OF GREATER LOS ANGELES; AUSANTA NEBBITT; and DOES 1 through 100, Defendants. Case No.: 2:16-cv-07342 GW(ASx) DEFENDANTS AMERICAN NATIONAL RED CROSS AND AUSANTA NEBBITT’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT [F.R.C.P. Rule 56] [Filed concurrently with the Memorandum of Points and Authorities; Statement of Uncontroverted Material Facts and Conclusions of Law; Declarations and Exhibits in Support of Motion; and [Proposed] Order] Date: July 17, 2017 Time: 8:30 a.m. Place: Courtroom 9D State Complaint File: August 30, 2016 Pretrial Conference: August 17, 2017 Trial: August 29, 2017 Case 2:16-cv-07342-GW-AS Document 56 Filed 06/19/17 Page 1 of 5 Page ID #:286 CASE NO.: 2:16-cv-07342 GW(ASx) 2 DEFS’ NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TO PLAINTIFF XOCHITL NISBET AND TO HER ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on July 17, 2017 at 8:30 a.m., or soon thereafter as the matter may be heard, in Courtroom 9D of the above court, located at 350 West 1st Street, Los Angeles, California, 90012, Defendants American National Red Cross (“Red Cross”) and Ausanta Nebbitt (“Nebbitt”) (Collectively “Defendants”) will move and does hereby move this court, pursuant to Rule 56 of the Federal Rules of Civil Procedure, for an order granting summary judgment or, in the alternative, partial summary judgment of those issues for which there is no controverted material fact, pursuant to Rule 56 of the Federal Rules of Civil Procedure, as to the claims by Plaintiff against Defendants. Defendants base their motion on the grounds that the pleadings, depositions, declarations, and other supporting evidence show that there is no genuine issue as to any material fact as to any claim asserted by Plaintiff, and that Defendants are entitled to judgment in their favor as a matter of law as follows: ISSUE NO. I: Plaintiff’s First Cause of Action for Breach of Contract against Defendants fails as a matter of law because there was no enforceable contract. (Uncontroverted Material Facts (“UMF”) Nos. 1, 4-11, 39, 60, 72, 74-77, 81-82) ISSUE NO. II: Plaintiff’s Second Cause of Action for Breach of Implied Covenant of Good Faith and Fair Dealing Fails as a matter of law because Plaintiff cannot establish that there was a contractual duty upon which this claim is based. (UMF Nos. 1, 4-11, 39, 60, 72, 74-77, 81-82) ISSUE NO. III: Plaintiff’s Third Cause of Action for Wrongful Termination fails as a matter of law as Plaintiff cannot establish a prima facie case. (UMF Nos. 1-72, 74- 76, 79-80, 83-84) ISSUE NO. IV: Plaintiff’s Fourth Cause of Action for Violation of California Constitution fails as a matter of law because it is not a cognizable claim. /// /// Case 2:16-cv-07342-GW-AS Document 56 Filed 06/19/17 Page 2 of 5 Page ID #:287 CASE NO.: 2:16-cv-07342 GW(ASx) 3 DEFS’ NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ISSUE NO. V: Plaintiff’s Fifth Cause of Action for Discrimination and Retaliation in Violation of FEHA against Defendant Nebbitt fails because there is no individual liability for discrimination or retaliation. ISSUE NO. VI: Plaintiff’s Fifth Cause of Action for Discrimination in Violation of FEHA on the basis of Age, Ancestry, Color, Ethnicity, Race, Gender, Disability, Perceived Disability, Religion, Need for Family Care or Medical Leave, Need for Good Faith Interactive Process or Accommodation because Plaintiff cannot establish a prima facie case. (UMF Nos. 1-71, 75, 78-80, 83-84) ISSUE NO. VII: Plaintiff’s Fifth Cause of Action for Discrimination in Violation of FEHA on the basis of Age, Ancestry, Color, Ethnicity, Race, Gender, Disability, Perceived Disability, Religion, Need for Family Care or Medical Leave, Need for Good Faith Interactive Process or Accommodation because Defendant RED CROSS had a legitimate non-discriminatory business reason for Plaintiff’s lay-off. (UMF Nos. 1-7, 13- 26, 60-70, 83-84) ISSUE NO. VIII: Plaintiff’s Fifth Cause of Action for Harassment in Violation of the FEHA on the basis of Age against Defendants fails as a matter of law because Plaintiff cannot establish a prima facie case. (UMF Nos. 28-29, 32, 53, 59, 62, 71) ISSUE NO. IX: Plaintiff’s Fifth Cause of Action for Harassment in Violation of the FEHA on the basis of Ancestry, Color, Ethnicity or Race against Defendants fails as a matter of law because Plaintiff cannot establish a prima facie case. (UMF Nos. 28-29, 32, 51-53, 59, 62, 71) ISSUE NO. X: Plaintiff’s Fifth Cause of Action for Harassment in Violation of the FEHA on the basis of Gender against Defendants fails as a matter of law because Plaintiff cannot establish a prima facie case. (UMF Nos. 28-29, 32, 34-37, 40-42, 51, 53, 59, 62, 71) ISSUE NO. XI: Plaintiff’s Fifth Cause of Action for Harassment in Violation of the FEHA on the basis of Disability or Perceived Disability against Defendants fails as a Case 2:16-cv-07342-GW-AS Document 56 Filed 06/19/17 Page 3 of 5 Page ID #:288 CASE NO.: 2:16-cv-07342 GW(ASx) 4 DEFS’ NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 matter of law because Plaintiff cannot establish a prima facie case. (UMF Nos. 28-29, 32, 34, 43-45, 48-50, 53, 59, 62, 71) ISSUE NO. XII: Plaintiff’s Fifth Cause of Action for Harassment in Violation of the FEHA on the basis of Religion against Defendants fails as a matter of law because Plaintiff cannot establish a prima facie case. (UMF Nos. 28-29, 32, 53- 59, 62, 71) ISSUE NO. XIII: Plaintiff’s Fifth Cause of Action for Retaliation in Violation of the FEHA against Defendants fails as a matter of law because she cannot establish a causal link between any protected activity and any adverse employment action. (UMF Nos. 1-71, 75, 78-80, 83-84) ISSUE NO. XIV: Plaintiff’s Sixth Cause of Action for California Business and Professions Code §17200 against Defendant RED CROSS fails as a matter of law because Plaintiff’s underlying claims are meritless. (UMF Nos. 1-84) ISSUE NO. XV: Plaintiff’s Seventh Cause of Action for Intentional Misrepresentation [Fraud], Negligent Misrepresentation, and Concealment fails as a matter of law because Plaintiff cannot establish that Defendants intentionally misrepresented or concealed a material fact with the intent to defraud Plaintiff. (UMF Nos. 4-7, 38-39, 72-77) ISSUE NO. XVI: Plaintiff’s Eighth Cause of Action for Intentional Infliction of Emotional Distress against Defendants fails as a matter of law because there was no extreme or outrageous conduct. (UMF Nos. 1-84) ISSUE NO. XVII: Plaintiff’s Eighth Cause of Action for Intentional Infliction of Emotional Distress against Defendants fails as a matter of law because this claim is barred by workers’ compensation exclusivity. (UMF Nos. 1-84) ISSUE NO. XVIII: Plaintiff’s Ninth Cause of Action for Violation of Labor Code against Defendant RED CROSS fails as a matter of law because Plaintiff was properly paid all the wages that she was owed. (UMF Nos. 78-79) /// Case 2:16-cv-07342-GW-AS Document 56 Filed 06/19/17 Page 4 of 5 Page ID #:289 CASE NO.: 2:16-cv-07342 GW(ASx) 5 DEFS’ NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Defendants’ Motion is based on this Notice of Motion and Motion, the accompanying Memorandum of Points and Authorities, the Separate Statement of Uncontroverted Material Facts in Support thereof, the Declarations of Theresa M. Marchlewski, Dana Thatcher, Lauri Rhinehart, Ausanta Nebbitt, and Ellen E. Cohen, as well as any other documents and records on file herein and such other oral and/or documentary evidence as may be presented up to and including the time of the hearing of this Motion. This motion is made following the conference of counsel pursuant to L.R. 7-3 of the Local Rules for the United States District Court for the Central District of California. (Declaration of Ellen E. Cohen, ¶¶ 2-11, Exs. Y-DD) Dated: June 19, 2017 JACKSON LEWIS P.C. By: /s/ Theresa M. Marchlewski Theresa M. Marchlewski Ellen E. Cohen Attorneys for Defendants AMERICAN NATIONAL RED CROSS, AMERICAN RED CROSS OF GREATER LOS ANGELES and AUSANTA NEBBITT 4822-3949-7286, v. 1 Case 2:16-cv-07342-GW-AS Document 56 Filed 06/19/17 Page 5 of 5 Page ID #:290 Case No: 2:16-cv-07342 GW(ASx) 1 MEMORANDUM OF POINTS & AUTHORITIES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Theresa M. Marchlewski (SBN 82429) Ellen Cohen (SBN 258131) JACKSON LEWIS P.C. 725 South Figueroa Street, Suite 2500 Los Angeles, California 90017-5408 Telephone: (213) 689-0404 Facsimile: (213) 689-0430 E-mail: marchlet@jacksonlewis.com E-mail: ellen.cohen@jacksonlewis.com Attorneys for Defendants AMERICAN NATIONAL RED CROSS, individually and on behalf of the GREATER LOS ANGELES CHAPTER OF THE AMERICAN RED CROSS (erroneously sued as AMERICAN RED CROSS OF GREATER LOS ANGELES) and AUSANTA NEBBITT UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA XOCHITL NISBET, Plaintiff, v. AMERICAN NATIONAL RED CROSS; AMERICAN RED CROSS OF GREATER LOS ANGELES; AUSANTA NEBBITT; and DOES 1 through 100, Defendants. Case No.: 2:16-cv-07342 GW(ASx) DEFENDANTS AMERICAN NATIONAL RED CROSS AND AUSANTA NEBBITT’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT [F.R.C.P. Rule 56] [Filed concurrently with Notice of Motion; Statement of Uncontroverted Material Facts and Conclusions of Law; Declarations and Exhibits in Support of Motion; and [Proposed] Order] Date: July 17, 2017 Time: 8:30 a.m. Place: Courtroom 9D State Complaint File: August 30, 2016 Pretrial Conference: August 17, 2017 Trial: August 29, 2017 Case 2:16-cv-07342-GW-AS Document 56-1 Filed 06/19/17 Page 1 of 29 Page ID #:291 Case No: 2:16-cv-07342 GW(ASx) 2 MEMORANDUM OF POINTS & AUTHORITIES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF CONTENTS Page I. INTRODUCTION ..................................................................................................... 7 II. STATEMENT OF FACTS ........................................................................................ 8 Overview of Plaintiff’s Employment with the Red Cross. ............................. 8 Plaintiff’s Department Undergoes Significant Structural Changes. ............... 9 Plaintiff’s Position is Eliminated, Resulting in Her Lay-Off. ....................... 10 Plaintiff Greatly Mischaracterizes Her Working Relationship With Nebbitt In An Effort To Inflate Her Baseless Claims. .................................. 12 1. Plaintiff’s Claims Relating to Her Childcare Needs. .......................... 12 2. Plaintiff’s Alleged Disability. ............................................................. 13 3. Plaintiff’s Claims Relating to Her Religion. ....................................... 14 4. Plaintiff’s Claims Relating to Her Race, Ethnicity and National Origin. ................................................................................................. 14 5. Plaintiff’s Claims Relating to her Wages. .......................................... 15 III. LEGAL ARGUMENT............................................................................................. 15 Plaintiff’s First Cause of Action for Breach of Contract Fails as a Matter of Law as Plaintiff Cannot Establish a Prima Facie Case. ............... 15 Plaintiff’s Second Cause of Action for Breach of the Covenant of Good Faith and Fair Dealing Against Defendants Fails as a Matter of Law as Plaintiff Cannot Establish that there was a Contractual Duty Upon Which this Claim is Based. ................................................................. 18 Plaintiff’s Third Cause of Action for Wrongful Termination Fails as a Matter of Law as Plaintiff Cannot Establish a Prima Facie Case. ............... 18 Plaintiff’s Fourth Cause of Action for Violation of California Constitution Fails as a Matter of Law Because it is Not a Cognizable Claim. ............................................................................................................ 19 Plaintiff’s Fifth Cause of Action for Violation of Cal. Gov. Code § 12900 Against Defendants Fails as a Matter of Law as Plaintiff Cannot Establish a Prima Facie Case. .......................................................... 19 1. There is No Individual Liability for Discrimination or Retaliation, Thus Plaintiff’s Claims Against Defendant Nebbitt Fail as a Matter of Law. ...................................................................... 19 2. Plaintiff’s Discrimination Claims against Defendant Red Cross. ...... 20 Case 2:16-cv-07342-GW-AS Document 56-1 Filed 06/19/17 Page 2 of 29 Page ID #:292 Case No: 2:16-cv-07342 GW(ASx) 3 MEMORANDUM OF POINTS & AUTHORITIES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 a. Plaintiff Cannot Establish A Prima Facie Case for Discrimination. ......................................................................... 20 b. The Red Cross Had a Legitimate Non-Discriminatory Reason for Plaintiff’s Lay-Off. ................................................. 21 c. Plaintiff Cannot Demonstrate that The Red Cross’ Reason to Terminate Her Was Pretextual. ............................... 22 3. Plaintiff’s Retaliation Claims against Defendant Red Cross. ............. 22 4. Plaintiff’s Harassment Claims Against Defendants. .......................... 23 Plaintiff’s Sixth Cause of Action for Violation of California Business & Professions Code § 17200 Fails As a Matter of Law Because Plaintiff’s Underlying Claims are Meritless. ................................................ 24 Plaintiff’s Seventh Cause of Action for Intentional Misrepresentation [Fraud], Negligent Misrepresentation, and Concealment Fails Because Plaintiff Cannot Establish a Knowing Misrepresentation or Concealment of a Material Fact by Defendants, nor Can She Establish an Intent to Defraud. ...................................................................................... 24 Plaintiff’s Eighth Cause of Action for Intentional Infliction of Emotional Distress Against Defendants Fails as a Matter of Law Because Defendants Did Not Engage In Extreme or Outrageous Conduct and Plaintiff Did Not Suffer Severe Emotional Distress. ............... 26 Plaintiff’s Eighth Cause of Action for Intentional Infliction of Emotional Distress Against Defendants Fails as a Matter of Law Because it is Barred by Workers’ Compensation Exclusivity. ..................... 28 Plaintiff’s Ninth Cause of Action for Violation of Labor Code Fails Because Plaintiff was Properly Paid All Wages She was Owed. ................. 28 IV. CONCLUSION ........................................................................................................ 29 Case 2:16-cv-07342-GW-AS Document 56-1 Filed 06/19/17 Page 3 of 29 Page ID #:293 Case No: 2:16-cv-07342 GW(ASx) 4 MEMORANDUM OF POINTS & AUTHORITIES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES Page Federal Cases Buscemi v. McDonnell Douglas Corp. 736 F.2d 1348 (9th Cir. 1984) ....................................................................................... 27 Faragher v. City of Boca Raton 524 U.S. 775 (1998) ....................................................................................................... 24 Himaka v. Buddhist Churches of America 919 F. Supp.332 (N.D. Cal. 1995) .................................................................................. 19 Lawler v. Montblanc North America, LLC 704 F.3d 1235 (9th Cir. 2013) ........................................................................................ 23 McDonnell Douglas Corp. v. Green 411 U.S. 792 (1973) ................................................................................................. 21, 22 State Cases Aguilar v. Avis Rent A Car Sys., Inc. 21 Cal. 4th 121 (1999) .................................................................................................... 23 Alcorn v. Anbro Eng. Inc. 2 Cal.3d 493, fn. 5 (1970) ............................................................................................. 27 Arteaga v. Brink’s, Inc. 163 Cal.App.4th 327 (2008) ........................................................................................... 21 Boschma v. Home Loan Center, Inc. 198 Cal.App.4th 230 (2011) ........................................................................................... 26 Cal. Lettuce Growers v. Union Sugar Co. 45 Cal.2d 474 (1955) ...................................................................................................... 16 Clark v. Claremont Univ. Ctr. 6 Cal.App.4th 639 (1992) ............................................................................................... 21 Cornblith v. First Maint. 268 Cal.App.2d 564 (1968) ........................................................................................... 27 Davidson v. City of Westminster 32 Cal.3d 197 (1982) ..................................................................................................... 26 Ellis v. Klaff 96 Cal.App.2d 471 (1950) .............................................................................................. 15 Farmers Ins. Exchange v. Sup. Ct. 2 Cal.4th 377 (1992) ....................................................................................................... 24 Fisher v. San Pedro Peninsula Hospital 214 Cal.App.3d 590 (1989) ............................................................................................ 23 Case 2:16-cv-07342-GW-AS Document 56-1 Filed 06/19/17 Page 4 of 29 Page ID #:294 Case No: 2:16-cv-07342 GW(ASx) 5 MEMORANDUM OF POINTS & AUTHORITIES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Flait v. North American Watch Corp. 3 Cal.App.4th 467 (1992) ............................................................................................... 23 Guz v. Bechtel National Inc. 24 Cal.4th 317 (2000) ..................................................................................................... 21 Haggard v. Kimberly Quality Care, Inc. 39 Cal. App. 4th 508 (1995) ........................................................................................... 16 Hicks v. KNTV Television, Inc. 160 Cal.App.4th 994 (2008) ........................................................................................... 22 Holmes v. General Dynamics Corp. 17 Cal.App.4th 1418 (1993) ........................................................................................... 18 Hughes v. Pair 46 Cal.4th 1035 (2009) ....................................................................................... 23, 27, 28 Janken v. GM Hughes Elecs. 46 Cal. App. 4th 55 (1996) ....................................................................................... 23, 27 Jones v. Dep’t of Corr. & Rehab. 152 Ca1.App.4th 1367 (2007) ........................................................................................ 24 Jones v. Lodge at Torrey Pines Partnership 42 Cal.4th 1158 (2008) ................................................................................................... 20 Ladas v. California State Auto. Assn. 19 Cal. App. 4th 761 (1993) ........................................................................................... 16 Lazar v. Sup. Ct. (Rykoff-Sexton, Inc. 12 Cal.4th 631 (1996) ..................................................................................................... 25 Lyle v. Warner Brothers Television Productions 38 Cal.4th 264 (2006) ..................................................................................................... 23 Marketing West, Inc. v. Sanyo Fisher (USA) Corp. 6 Cal.App.4th 603 (1992) ............................................................................................... 25 Martin v. Lockheed Missiles & Space Co. 29 Cal.App.4th 1718 (1994) ..................................................................................... 18, 23 McCoy v. Pacific Maritime Ass’n 216 Cal.App.4th 283 (2013) .......................................................................................... 27 Mixon v. Fair Employment and Hous. Comm’n 192 Cal.App.3d 1306 (1987) .......................................................................................... 20 Moncada v. West Coast Quartz Corp. 221 Cal.App.4th 768 (2013) .......................................................................................... 27 Price v. Starbucks Corp. 192 Cal.App.4th 1136 (2011) ......................................................................................... 24 Racine & Laramie, Ltd. v. Department of Parks & Recreation 11 Cal.App.4th 1026 (1992) ........................................................................................... 18 Case 2:16-cv-07342-GW-AS Document 56-1 Filed 06/19/17 Page 5 of 29 Page ID #:295 Case No: 2:16-cv-07342 GW(ASx) 6 MEMORANDUM OF POINTS & AUTHORITIES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Reno v. Baird 18 Cal.4th 640 (1998) ......................................................................................... 18, 19, 23 Richards v. Oliver 162 Cal.App.2d 548 (1958) ............................................................................................ 15 Robinson & Wilson, Inc. v. Stone 35 Cal.App.3d 396 (1973) .............................................................................................. 15 Robinson v. Hewlett-Packard Corp. 183 Cal. App. 3d 1108 (1986) ........................................................................................ 17 Rochlis v. Walt Disney Co. 19 Cal. App. 4th 201 (1993) ........................................................................................... 16 Sequoia Insurance v. Superior Ct. 13 Cal.App.4th 1472 (1993) ........................................................................................... 18 Serri v. Santa Clara University 226 Cal. App. 4th 830 (2014) ......................................................................................... 20 Shoemaker v. Myers 52 Cal.3d 1 (1990) ................................................................................................... 27, 28 State ex rel. McCann v. Bank of Am., N.A. 191 Cal. App.4th 897 (2011) .......................................................................................... 25 Tameny v. Atlantic Richfield Co. 27 Cal.3d 167 (1980) ...................................................................................................... 18 Tarmann v. State Farm. Mut. Auto. Ins. Co. 2 Cal.App.4th 153 (1991) ............................................................................................... 25 Turner v. Anheuser-Busch, Inc. 7 Cal.4th 1238 (1994) ..................................................................................................... 18 Vasquez v. Franklin Mgmt. Real Estate Fund, Inc. 222 Cal.App.4th 819 (2013) .......................................................................................... 28 State Statutes Cal. Civ. Code § 1710 ........................................................................................................ 25 Cal. Civ. Code § 1710(2) ................................................................................................... 25 Cal. Civ. Code, § 1598 ....................................................................................................... 16 Cal. Code Civ. Proc., § 1856 ............................................................................................. 16 Cal. Gov. Code, § 12993, subd. (c) .................................................................................... 17 Other Authorities Business & Professions Code § 17200 et seq. ................................................................... 25 Cal. Lab. Code, § 3600 et seq. ........................................................................................... 29 Case 2:16-cv-07342-GW-AS Document 56-1 Filed 06/19/17 Page 6 of 29 Page ID #:296 Case No: 2:16-cv-07342 GW(ASx) 7 MEMORANDUM OF POINTS & AUTHORITIES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION Summary Judgment is warranted in this case because Plaintiff’s claims are without merit. Plaintiff Xochitl Nisbet (“Plaintiff”) was employed by the Greater Los Angeles Chapter of American National Red Cross (“Red Cross”), as a Gift Coordinator, and then as a Data Systems Specialist. In her lawsuit, Plaintiff is essentially claiming that because she was a single mother, the Red Cross should have accommodated her in every possible way in order to allow her to spend quality time with her children. In fact, the Red Cross bent over backwards to accommodate Plaintiff’s personal schedule. However, Plaintiff repeatedly took advantage of the Red Cross and seemed to take personal offense when her supervisor expected her to be present at work or accountable for her mistakes. Plaintiff was frequently absent from work for various personal reasons, including issues with her car, children’s school projects, being stuck in traffic or taking her pet to the veterinarian. Plaintiff also alleges, without any factual support whatsoever, that she was somehow mistreated because of her race, age and claimed disability. Plaintiff admits that within the last year of her employment at Red Cross there had been several rounds of lay-offs within her department. She also acknowledges several other changes within her department including Ausanta Nebbitt (“Nebbitt”) being promoted to Director of Operations, and a switch from the Raiser’s Edge to Salesforce software programs. Although Plaintiff was generally resistant to Nebbitt’s attempts to manage her, Nebbitt attempted to work with Plaintiff, telling her that she was looking out for her and generally encouraging and supporting her. The uncontroverted material facts will demonstrate that Red Cross had a legitimate, non-discriminatory reason for Plaintiff’s termination - Plaintiff’s position was eliminated on a nationwide level. As described below, Plaintiff’s claims are entirely without any factual or legal merit. /// /// Case 2:16-cv-07342-GW-AS Document 56-1 Filed 06/19/17 Page 7 of 29 Page ID #:297 Case No: 2:16-cv-07342 GW(ASx) 8 MEMORANDUM OF POINTS & AUTHORITIES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 II. STATEMENT OF FACTS Overview of Plaintiff’s Employment with the Red Cross. Plaintiff was originally hired by Red Cross on April 19, 2011 as a Gifts Coordinator working in its West Los Angeles office. [UMF 1] As Gifts Coordinator, Plaintiff reported to the Database and Research Manager, Leigh Ellis (“Ellis”). [UMF 2] At the time, Red Cross was using the non-profit fundraising and donor management database called Raiser’s Edge, which Plaintiff claimed she had significant training in. [UMF 3] Plaintiff’s signed offer letter stated that her employment with Defendant Red Cross was at-will. [UMF 4] Additionally, at the time of her hire, Plaintiff was provided and acknowledged receipt of the Red Cross’ Employee Handbook. [UMF 5] The handbook, as well as the acknowledgment, expressly provided that Plaintiff’s employment with Red Cross was “at-will” and that the employment relationship could be terminated by either party, at any time, with or without cause. [UMF 6] Plaintiff testified that she understood that the Red Cross had a written policy that it would not tolerate unlawful discrimination, either for age or any other protected class [UMF 7] The handbook also set forth Red Cross’ policy regarding working remotely (Telework Program). The Red Cross’ Telework Program provided that the ability to work remotely was not a universal benefit, and although it was permitted in some instances, the Red Cross had the right to refuse to make teleworking available to an employee and to terminate the teleworking arrangement at any time. [UMF 8] According to the policy, Red Cross recognized three main categories of telework arrangements: 1. Tier 1- Occasional Telework: Where an employee requested a telework day on an infrequent/non-regular basis. This applied to unanticipated emergency situations. The policy specifically provided that such informal arrangements were at a supervisor’s discretion and were not covered by the policy. /// /// Case 2:16-cv-07342-GW-AS Document 56-1 Filed 06/19/17 Page 8 of 29 Page ID #:298 Case No: 2:16-cv-07342 GW(ASx) 9 MEMORANDUM OF POINTS & AUTHORITIES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2. Tier 2- Regular/Recurring Telework: Where the majority of the work is performed at the work location but telework is done at some other off-site work location on a set telework schedule. 3. Tier 3- Remote Worker Telework: Where the primary work location is the employee’s home or some off-site location. [UMF 9] The Telework Program policy provides that in order for an employee to be eligible for a regular/recurring telework arrangement, the employee must obtain approval from her supervisor, and the employee, the supervisor and department executive must execute a Telework Agreement. [UMF 10] In her deposition, Plaintiff testified that she never reviewed the Red Cross policy regarding working remotely and did not execute a Telework Agreement. [UMF 11] Although Plaintiff did not have a Telework Agreement, Plaintiff often decided that she would work remotely, often notifying Ellis at the last minute that she would not becoming in due to one personal issue or another. [UMF 12] Plaintiff’s Department Undergoes Significant Structural Changes. Ellis began discussing possible changes within Plaintiff’s department in the beginning of 2014. [UMF 13] Plaintiff testified that in early 2014, Ellis told her that the Red Cross would be combining the local fundraising databases into one national database. [UMF 14] Plaintiff also testified that around January 2014, Red Cross’ Chief Development Officer (“CDO”) for the Los Angeles Region, Andrea Waldron (“Waldron”), advised Plaintiff that there would be layoffs in her department. [UMF 17] Ellis also told Plaintiff that the Red Cross was determining how many Donor Data Center of Expertise (“DDCOE”) position would remain. [UMF 15] These changes were part of Red Cross’ nationwide DDCOE conversion project, which would focus on converting the individual chapter gift databases to a centralized the gift database on a national level. [UMF 18] Plaintiff testified that it was stressful working in the department because everyone knew Case 2:16-cv-07342-GW-AS Document 56-1 Filed 06/19/17 Page 9 of 29 Page ID #:299 Case No: 2:16-cv-07342 GW(ASx) 10 MEMORANDUM OF POINTS & AUTHORITIES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 that there were going to be changes and no one knew what they would be, and admits that there were several rounds of lay-offs in her department. [UMF 16] Around June 2014, Ausanta Nebbitt (“Nebbitt”), an African-American female was promoted to Director of Development Operations. [UMF 19] Around September 1, 2014, Ellis resigned from employment and Nebbitt became Plaintiff’s supervisor, working together in the DDCOE department. [UMFs 20, 21] Around this time, Plaintiff job title changed to Data Systems Specialist, which resulted in Plaintiff changing from a non-exempt to exempt employee. [UMF 22] The new title came with an increase in pay to $65,000.00 a year. [UMF 23] As Data Systems Specialist, Plaintiff was a part of the Los Angeles Regional chapter’s data team and her duties consisted of managing the corporate and foundation feeder portfolios1, creating Salesforce records for new donors, and entering gifts into Salesforce, among other data related duties. [UMF 24] Plaintiff testified that the Data Systems Specialist job description was a more accurate description of the work she had been doing prior to the change in her title. [UMF 25] This was a rather turbulent time within the DDCOE department. As part of a national effort, back office and support functions, such as those performed by Plaintiff, were consolidated with new systems (DDCOE and Salesforce), which resulted in the elimination of 4 positions in Plaintiff’s department in October 2014. [UMF 26] Plaintiff’s Position is Eliminated, Resulting in Her Lay-Off. Several years prior to Plaintiff’s lay-off, Defendant Red Cross began a nationwide implementation of the DDCOE, which included the rollout of a centralized donor database for all donors and gifts, the standardization of the systems and processes used for fundraising throughout the Red Cross on a national level, and the centralization of caging and cashiering to the fullest extent possible. [UMF 63] Primary integration points included: 1 A donor feeder portfolio is a set of data consisting of individual donor information for donors who had previously donated below a certain monetary threshold, to be used for direct mailings and/or emails, solicitations and donor management. Case 2:16-cv-07342-GW-AS Document 56-1 Filed 06/19/17 Page 10 of 29 Page ID #:300 Case No: 2:16-cv-07342 GW(ASx) 11 MEMORANDUM OF POINTS & AUTHORITIES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 gift processing, donor data management, campaign management and access to data elements. [UMF 64] As part of the conversion process, it was determined that donor feeder portfolios, as well as the majority of the local data administration functions, would be administered at the national level, under the Red Cross’ Consolidated Direct Mail Program, as it would be more cost-effective to have the feeder portfolios in multiple regions managed by national headquarters. [UMF 65] As a result of this decision, Plaintiff’s position, which was responsible for handling feeder portfolios, was no longer needed in the Los Angeles Region. [UMF 66] As a result, on January 23, 2015, Plaintiff was advised that her position had been eliminated. [UMF 60] Although she was given two weeks’ notice and offered four weeks’ severance, Plaintiff declined to accept the severance. [UMF 61] Significantly, in the months leading up to her lay-off, Plaintiff was aware that there were ongoing layoffs and even spoke about the issue with Nebbitt, who told Plaintiff that she would try to look out for career postings for Plaintiff and to arrange for her to spearhead certain projects. [UMF 29] Nebbitt did not participate in the decision to lay-off Plaintiff. [UMF 62] Significantly, Plaintiff testified that she does not know who made the decision to eliminate her position. [UMF 70] Plaintiff testified that she believes that her position had not been eliminated because her co-worker Arthur Bragg (“Bragg”) remained employed by Red Cross. [UMFs 67] Unlike Plaintiff, Bragg was not a Data Systems Specialist. [UMF 68] Plaintiff testified she did not know, what, if anything, Bragg did in regard to the feeder portfolio. [UMF 83] In fact, Plaintiff admits that Bragg worked at Red Cross’ Pasadena office and only began working at the West L.A. office two days a week after Plaintiff requested assistance. [UMF 84] Other than Bragg remaining employed and doing what Plaintiff believed was the same work, Plaintiff has no other reason to believe that her position was not eliminated. [UMF 69] Case 2:16-cv-07342-GW-AS Document 56-1 Filed 06/19/17 Page 11 of 29 Page ID #:301 Case No: 2:16-cv-07342 GW(ASx) 12 MEMORANDUM OF POINTS & AUTHORITIES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff Greatly Mischaracterizes Her Working Relationship With Nebbitt In An Effort To Inflate Her Baseless Claims. Not once did Nebbitt deny Plaintiff’s request to work remotely or take time off. [UMF 34] Significantly, Plaintiff did not make a single complaint regarding Nebbitt discriminating against her during her employment at Red Cross. Rather, Plaintiff admits that any complaints she may have made centered on her belief that she had an extremely heavy workload. [UMF 59] 1. Plaintiff’s Claims Relating to Her Childcare Needs. Despite her allegedly heavy workload, Plaintiff was frequently late, left early or was absent from work for various personal reasons. [UMF 27] On September 10, 2014, Nebbitt requested that Plaintiff keep Nebbitt apprised of her weekly schedule. [UMF 28] Nebbitt sympathized with Plaintiff regarding her frustration relating to the changes within the department, but assured Plaintiff that she [Nebbitt] would support her as much as possible during the transitional phase. [UMF 80] In fact, Plaintiff testified that starting mid-October 2014, Nebbitt told her that she was watching out for her, was suggesting Plaintiff to spearhead other projects, and was advocating for Plaintiff. [UMF 29] Plaintiff began submitting weekly schedules to Nebbitt, which stated that Plaintiff would be leaving early nearly every day to pick up her children from school2, as well as arriving late or leaving mid-day to tend to personal business or attend various appointments. [UMF 30] In addition to the time off Plaintiff marked down on her weekly schedules, Plaintiff continued to arrive to work late or work remotely at her own convenience without providing Nebbitt sufficient notice. [UMF 31] As a result, Nebbitt requested that Plaintiff notify her in advance, within 24 hours if possible, if Plaintiff was going to be taking time off. [UMF 32] 2 Plaintiff would transport her children to school before 8:00 a.m., and pick them up between 3:00 and 5:00 p.m. [UMF 33] Case 2:16-cv-07342-GW-AS Document 56-1 Filed 06/19/17 Page 12 of 29 Page ID #:302 Case No: 2:16-cv-07342 GW(ASx) 13 MEMORANDUM OF POINTS & AUTHORITIES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff testified that she had an “understanding” with Ellis that she could work her job around her children because Red Cross was trying to ensure “work life balance”. [UMF 38] Plaintiff testified that Nebbitt once told her that Plaintiff’s flexible schedule was “not fair” to the other employees. [UMF 35] Plaintiff testified that Nebbitt made it difficult for her to take care of her children because she said that Plaintiff’s parental duties were detracting from her work duties, and it was hard for Nebbitt to ask Plaintiff things by telephone or by email. [UMF 40] Plaintiff testified she was upset because when she was not able to work from home, she had to leave her children to make dinner for themselves and could not assist them with homework. [UMF 36, 41] Thus, Plaintiff testified that she believed that when she had any parental duties, she should have been able to do them- regardless of whether or not they interfered with her work. [UMFs 33, 36, 40] Plaintiff enjoyed a flexible schedule while under Ellis’ supervisor and was upset that Nebbitt did not allow for the same amount of flexibility. [UMFs 33, 36, 40-41] However, Nebbitt did not deny any of Plaintiff’s requests for time off to take care of her children. [UMFs 34, 42] Plaintiff did not complain to anyone in human resources or management that Nebbitt told her that she could no longer have a flexible schedule. [UMF 37] Significantly, Plaintiff admits that she was never promised that she could have a flexible schedule no matter what the circumstances. [UMF 39] 2. Plaintiff’s Alleged Disability. Plaintiff hurt her jaw on September 4, 2014, as she was yawning while working out at the gym. [UMF 43] Plaintiff testified that she experienced an exacerbation of her jaw condition, caused by her workload and stress at work. [UMF 44] Plaintiff further testified that she suffered from stress as a result of the increased workload. [UMF 47] In fact, Plaintiff testified that her jaw condition began to get worse starting in June 2014 as a result of the data system being switched over to a national system, the restructure that was being talked about and discussions about a lot of uncertainty. [UMF 45] Case 2:16-cv-07342-GW-AS Document 56-1 Filed 06/19/17 Page 13 of 29 Page ID #:303 Case No: 2:16-cv-07342 GW(ASx) 14 MEMORANDUM OF POINTS & AUTHORITIES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff believes that she was “mistreated” because of her claimed disability because it was evident that she was in pain and suffering from emotional distress and workload stress which was never addressed. [UMF 49] Plaintiff testified that she does not believe that anyone other than Nebbitt directly mistreated her because of her alleged disability. [UMF 48] However, Nebbitt did not deny any of Plaintiff’s requests for time off to attend medical appointments. [UMFs 34] Significantly, Plaintiff’s doctor never provided her (and she never provided Red Cross) a notice or any documentation indicating that she should take time off for her stress or jaw issue. [UMF 46] Further, other that asking for help alleviating her workload, Plaintiff did not ask anyone at Red Cross for any kind of accommodation. [UMF 50] 3. Plaintiff’s Claims Relating to Her Religion. Plaintiff testified she was told during orientation that Red Cross allowed employees to observe their religion and asserts that this was not followed in her situation, because in November and December of 2014 she was not able to attend two Masses at her children’s school. [UMF 54] Plaintiff testified that in November and December 2014 there were Masses that she did not attend for fear of getting in trouble for missing time at work. [UMF 55] According to Plaintiff, she told Nebbitt about a Mass she wanted to attend and Nebbitt told her that she could not take the time off because “it wasn’t fair to other people.” [UMF 56] However, these Masses were not on any particular holy day of obligation. Rather, they were school events that Plaintiff simply wanted to attend. [UMF 57] Plaintiff admits that she was given Catholic holy days off. [UMF 58] 4. Plaintiff’s Claims Relating to Her Race, Ethnicity and National Origin. Plaintiff testified that she believed that Nebbitt micromanaged her because of her race but did not micromanage Bragg, her male African-American coworker. [UMF 51] Plaintiff testified that Nebbitt used language in the workplace that Plaintiff found inappropriate. Specifically, Nebbitt use “street language” by calling a co-worker “Boo”, jokingly telling Plaintiff that she would cut her and telling Plaintiff’s daughter that she had Case 2:16-cv-07342-GW-AS Document 56-1 Filed 06/19/17 Page 14 of 29 Page ID #:304 Case No: 2:16-cv-07342 GW(ASx) 15 MEMORANDUM OF POINTS & AUTHORITIES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 great hair and that she would cut it off. [UMF 52] Plaintiff testified that Nebbitt behaved aggressively towards her by holding her face in anger and standing over Plaintiff and becoming angry at Plaintiff if Plaintiff did not know something. [UMF 53] Plaintiff testified that Nebbitt treated Bragg more favorably because she commented that he did things more expeditiously and was not as stressed out. [UMF 71] 5. Plaintiff’s Claims Relating to her Wages. Plaintiff testified that Nebbitt, who was in charge of her timecard, changed her timecard to reflect one of Plaintiff’s day off on December 26, 2014 as paid time off instead of a floating holiday. [UMF 79] III. LEGAL ARGUMENT Plaintiff’s First Cause of Action for Breach of Contract Fails as a Matter of Law as Plaintiff Cannot Establish a Prima Facie Case. Plaintiff nebulously alleges that she and the Red Cross entered into an oral contract whereby Plaintiff was to be employed by Red Cross as a Data Coordinator, then as a Data System Specialist, receive monthly wages, leave and benefits, and would not be laid off as long as she performed satisfactorily and obeyed all reasonable and lawful directions of her employer. [UMF 81] Plaintiff alleges that pursuant to that agreement, Defendants expressly promised that Plaintiff’s employment would continue and she would have the opportunity to advance within the company as long as she performed satisfactorily and obeyed all reasonable and lawful directions of her employment. [UMF 82] Plaintiff further alleges that Red Cross breached this “contract” by terminating her employment. To be enforceable, a promise must be definite enough that a court can determine the scope of the duty and the limits of performance must be sufficiently defined to provide a rational basis for the assessment of damages. Robinson & Wilson, Inc. v. Stone (1973) 35 Cal.App.3d 396, 407; Richards v. Oliver (1958) 162 Cal.App.2d 548, 561; Ellis v. Klaff (1950) 96 Cal.App.2d 471, 478. Where a contract is so uncertain and indefinite that the intention of the parties in material particulars cannot be ascertained, the contract is void Case 2:16-cv-07342-GW-AS Document 56-1 Filed 06/19/17 Page 15 of 29 Page ID #:305 Case No: 2:16-cv-07342 GW(ASx) 16 MEMORANDUM OF POINTS & AUTHORITIES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 and unenforceable. Cal. Lettuce Growers v. Union Sugar Co. (1955) 45 Cal.2d 474, 481; see Cal. Civ. Code, § 1598. Here, Plaintiff’s alleged promises of indefinite employment are not sufficiently definite to give rise to a contractual duty. These alleged promises are also insufficient to impute any contractual liability. See Ladas v. California State Auto. Assn. (1993) 19 Cal. App. 4th 761, 772 [“Employers frequently boast of good benefits, competitive salaries, excellent working conditions and the like. To anoint such puffing language with contractual import would open the door to a plethora of specious litigation and constitute a severe and unwarranted intrusion on the ability of business enterprises to manage internal affairs”; see also Rochlis v. Walt Disney Co. (1993) 19 Cal. App. 4th 201, 213-214 [promises allegedly made to a former employee that he was to receive “reasonable salary increases” and “reasonable annual bonuses,” and would “actively and meaningfully participate in all … creative activities” of the department to which he was assigned were not cognizable as contract claims]. Plaintiff testified that when she commenced employment she was told by human resources that she was being hired for a career position. [UMF 74] She further testified that she was told by Waldron and Ellis that her position was not at risk when Defendant Red Cross was contemplating lay-offs. [UMF 75] However, this is simply not sufficient to overcome the at-will nature of Plaintiff’s employment. Plaintiff reviewed and signed a form expressly acknowledging the “at will” nature of her employment with Red Cross. [UMFs 5-6] Plaintiff acknowledged this “at will” term could not be altered except in writing; that the form constituted a final and fully binding integrated agreement with respect to the “at will” nature of their employment agreement; and that there were no oral or collateral agreements regarding this issue. [UMFs 5-6] An integrated agreement such as the one signed by Plaintiff precludes the introduction of any parole evidence to vary or contradict that provision. See Cal. Code Civ. Proc., § 1856; see also Haggard v. Kimberly Quality Care, Inc. (1995) 39 Cal. App. 4th 508, 520-521. Case 2:16-cv-07342-GW-AS Document 56-1 Filed 06/19/17 Page 16 of 29 Page ID #:306 Case No: 2:16-cv-07342 GW(ASx) 17 MEMORANDUM OF POINTS & AUTHORITIES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Finally, Plaintiff’s attempt to convert her claims under the Fair Employment and Housing Act (“FEHA”) into contractual claims is wholly improper in light of the legislative intent of the FEHA. See Cal. Gov. Code, § 12993, subd. (c) [“…[I]t is the intention of the Legislature to occupy the field of regulation of discrimination in employment and housing encompassed by the provisions of this part …”; see also Robinson v. Hewlett-Packard Corp. (1986) 183 Cal. App. 3d 1108, 1124 [holding that racial comments cannot form the basis of a cause of action for breach of an implied covenant or promise of good faith and fair dealing]. Thus Plaintiff’s claim for breach of contract fails as a matter of law as she will be unable to establish that she entered into a valid oral contract with Red Cross in light of the express written terms of her fully integrated agreement. Plaintiff also somehow believes that Nebbitt somehow violated Plaintiff’s “agreement” with Red Cross - namely that Plaintiff could work from home at her convenience. Plaintiff makes this claim even though she cannot identify a single instance where Nebbitt denied Plaintiff’s requests to work remotely. Plaintiff believes that Red Cross “promised” her that she could take care of her children, transporting them to school before 8:00 a.m., and picking them up between 3:00 and 5:00 p.m. Plaintiff claims she had an “understanding” with Ellis that she could work her job around her children because Red Cross was trying to ensure “work life balance”. [UMFs 33, 38] Plaintiff also testified that the “department as a whole” told her at the time she commenced employment with Defendant Red Cross that there was no “hard and fast schedule.” [UMF 76] Thus, Plaintiff testified that she believed that when she had any parental duties that she should have been able to do them regardless of whether or not they interfered with her work. [UMFs 33, 36, 40] However, these supposed “promises” are insufficient to constitute a contract and Plaintiff also did not execute a Telework Agreement. [UMFs 8-11] Further, Plaintiff admits that no one at Red Cross ever promised her that she could have flexible hours no matter what the circumstances. [UMF 39] Therefore, her ability to work remotely was solely at her supervisor’s discretion. /// Case 2:16-cv-07342-GW-AS Document 56-1 Filed 06/19/17 Page 17 of 29 Page ID #:307 Case No: 2:16-cv-07342 GW(ASx) 18 MEMORANDUM OF POINTS & AUTHORITIES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Thus, Plaintiff fails to identify a contract and fails to identify a breach. In sum, she cannot establish that Defendants breached any contractual duty towards her. Plaintiff’s Second Cause of Action for Breach of the Covenant of Good Faith and Fair Dealing Against Defendants Fails as a Matter of Law as Plaintiff Cannot Establish that there was a Contractual Duty Upon Which this Claim is Based. The covenant of good faith and fair dealing rests upon the existence of a contract. Racine & Laramie, Ltd. v. Department of Parks & Recreation (1992) 11 Cal.App.4th 1026, 1031-1032. As discussed above, Plaintiff cannot establish that vague, optimistic statements of career opportunities at Red Cross created any sort of contractual duty. Thus for the same reasons discussed above with respect to Plaintiff’s breach of contract claim, Plaintiff’s claim for breach of the covenant of good faith and fair dealing also fails. Plaintiff’s Third Cause of Action for Wrongful Termination Fails as a Matter of Law as Plaintiff Cannot Establish a Prima Facie Case. To establish a prima facie case of wrongful termination, Plaintiff must show that: (1) an employer-employee relationship exists; (2) she was terminated; (3) a “nexus” exists between the termination and her protected activity; (4) the termination was in contravention of California’s public policy; and (5) the termination was a legal cause of her damages. See, e.g., Holmes v. General Dynamics Corp. (1993) 17 Cal.App.4th 1418, 1426; Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167, 178. Plaintiff’s wrongful termination claim is predicated on her FEHA claim. A wrongful termination claim must fail where a plaintiff cannot show a violation of the underlying scheme. Turner v. Anheuser-Busch, Inc. 7 Cal.4th 1238, 1256-57 (1994); Sequoia Insurance v. Superior Ct., 13 Cal.App.4th 1472, 1475 (1993) (public policy claim based upon the FEHA cannot proceed where facts do not support the underlying statutory claim); accord Reno v. Baird (1998) 18 Cal.4th 640, 663-64; Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718 (wrongful termination claim based on the same allegations as statutory FEHA discrimination claim is subject to the same analysis). Case 2:16-cv-07342-GW-AS Document 56-1 Filed 06/19/17 Page 18 of 29 Page ID #:308 Case No: 2:16-cv-07342 GW(ASx) 19 MEMORANDUM OF POINTS & AUTHORITIES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Because (as discussed below) Plaintiff’s FEHA claim will fail, so will her wrongful termination in violation of public policy claims. Plaintiff’s Fourth Cause of Action for Violation of California Constitution Fails as a Matter of Law Because it is Not a Cognizable Claim. The Fourth Cause of Action pled by Plaintiff for alleged violation of the California Constitution is not a cognizable claim, as it is not self-executing and affords no independent basis for relief. See Himaka v. Buddhist Churches of America (N.D. Cal. 1995) 919 F. Supp.332 (Article 1, Section 8 of California Constitution provision is not self-executing and does not by itself create a cause of action to redress private employment discrimination.) Thus, this claim cannot be properly stated against either Red Cross or Nebbitt. Plaintiff’s Fifth Cause of Action for Violation of Cal. Gov. Code § 12900 Against Defendants Fails as a Matter of Law as Plaintiff Cannot Establish a Prima Facie Case. Plaintiff alleges that she was discriminated, harassed and retaliated against because of her age, ancestry, color, ethnicity, race, gender, disability, perceived disability, religion, needing family care or medical leave, needing a good faith interactive process to evaluate her claimed disability and for needing accommodation. Plaintiff’s allegations are not only unintelligible, they are unsupported by the facts and law. 1. There is No Individual Liability for Discrimination or Retaliation, Thus Plaintiff’s Claims Against Defendant Nebbitt Fail as a Matter of Law. Defendant Nebbitt cannot be individually liable for discrimination or retaliation under the FEHA. See Reno v. Baird (1998) 18 Cal.4th 640, 663 (holding a supervisor may not be held individually liable for employment discrimination, even if the employer is held liable for that supervisor’s conduct on respondeat superior principles, explaining that “individuals who do not themselves qualify as employers may not be sued under the FEHA Case 2:16-cv-07342-GW-AS Document 56-1 Filed 06/19/17 Page 19 of 29 Page ID #:309 Case No: 2:16-cv-07342 GW(ASx) 20 MEMORANDUM OF POINTS & AUTHORITIES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 for alleged discriminatory acts”); see also Jones v. Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158, 1173 (holding that “the employer is liable for retaliation under section 12940, subdivision (h), but non-employer individuals are not personally liable for their role in that retaliation”) Thus, there can be no individual liability for discrimination or retaliation against Defendant Nebbitt as a matter of law. 2. Plaintiff’s Discrimination Claims against Defendant Red Cross. For Plaintiff to establish a prima facie case of discrimination she must prove (1) she belonged to a protected class - (Plaintiff claim’s the protected classes she belongs to are Catholic, Caucasian/Hispanic, disabled person, or single mother); (2) she was qualified for the position and was satisfactorily performing her job; (3) she was subjected to an adverse employment action; and (4) others outside her protected class were not similarly treated. Mixon v. Fair Employment and Hous. Comm’n (1987) 192 Cal.App.3d 1306, 317. “It is not sufficient for an employee…to speculate as to discriminatory motive. Rather it is incumbent upon the employee to produce substantial responsive evidence demonstrating the existence of a material triable controversy as to pretext or discriminatory animus on the part of the employer.” Serri v. Santa Clara University (2014) 226 Cal. App. 4th 830, 833. a. Plaintiff Cannot Establish A Prima Facie Case for Discrimination. Here, Plaintiff cannot establish the she somehow mistreated based on her laundry list of claimed protected categories. Significantly, being a single parent does not qualify as a protected class under the FEHA. Further, Red Cross and Nebbitt permitted Plaintiff to work remotely and it is clear based upon the calendars she submitted that she rarely worked a full day, at least during the time she worked under Nebbitt’s supervision. [UMFs 28, 30- 31, 34] Further, Plaintiff was not the only individual who was impacted by changes within her department and lay-offs, as she admits that there were several other lay-offs within her department prior to hers. Plaintiff will argue that Bragg, who is an African-American male Case 2:16-cv-07342-GW-AS Document 56-1 Filed 06/19/17 Page 20 of 29 Page ID #:310 Case No: 2:16-cv-07342 GW(ASx) 21 MEMORANDUM OF POINTS & AUTHORITIES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 without children was not let laid-off. However, Bragg was not a Data Systems Specialist and his duties varied from that of Plaintiff. [UMFs 68, 83-84] Plaintiff cannot present any facts that would support her allegations that she was discriminated against in any way. b. The Red Cross Had a Legitimate Non-Discriminatory Reason for Plaintiff’s Lay-Off. Assuming arguendo that Plaintiff was able to establish a prima facie case, the burden shifts to Red Cross to articulate some legitimate, non-discriminatory reason for its actions. McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 802-04. Red Cross’ burden is not a difficult one; it is only required to articulate a legitimate reason for its conduct. Clark v. Claremont Univ. Ctr. (1992) 6 Cal.App.4th 639, 663. Even if the reason is foolish or trivial or baseless, as long as it is honestly believed and non-discriminatory on its face, Red Cross meets its burden. Guz v. Bechtel National Inc. (2000) 24 Cal.4th 317, 358. Thus, “if the employer presents admissible evidence either that one or more of plaintiff's prima facie elements is lacking or the adverse employment action was based on legitimate, non- discriminatory factors, the employer will be entitled to summary judgment unless the plaintiff produces admissible evidence which raises a triable issue of fact material to the defendant’s showing . . .” Arteaga v. Brink’s, Inc. (2008) 163 Cal.App.4th 327, 344. Here, Plaintiff’s position was eliminated as part of a national restructuring and it is undisputed that Nebbitt played no part in that decision. [UMFs 60-66] Specifically it was determined that determined that donor feeder portfolios, as well as the majority of the local data administration functions, would be administered at the national level, under the Red Cross Consolidated Direct Mail Program, as it would be more cost-effective to have the feeder portfolios in multiple regions managed by national headquarters. [UMF 65] As a result of this decision, Plaintiff’s position, which was responsible for handling feeder portfolios, was no longer needed in the Los Angeles Region. [UMF 66] /// /// Case 2:16-cv-07342-GW-AS Document 56-1 Filed 06/19/17 Page 21 of 29 Page ID #:311 Case No: 2:16-cv-07342 GW(ASx) 22 MEMORANDUM OF POINTS & AUTHORITIES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 c. Plaintiff Cannot Demonstrate that The Red Cross’ Reason to Terminate Her Was Pretextual. Once Red Cross articulates a legitimate, non-discriminatory reason for Plaintiff’s termination, the inference of discrimination disappears and the burden shifts back to Plaintiff to present substantial evidence that Red Cross’ proffered reason was false or merely a pretext for unlawful discrimination. McDonnell Douglas, supra, 411 U.S. at 804. Plaintiff has the burden to produce “substantial evidence that the employer’s stated nondiscriminatory reason for the adverse action was untrue or pretextual, or evidence the employer acted with a discriminatory animus, or a combination of the two.” Hicks v. KNTV Television, Inc. (2008) 160 Cal.App.4th 994, 1003. Plaintiff “must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in [Red Cross’] proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence and therefore infer that [Red Cross] did not act for the stated non-discriminatory reasons.” Id. at 1005. Plaintiff can only offer speculation for her frivolous contention that her termination was in any way related to her race, age, purported disability, gender or any other protected class. She has no substantive evidence to proffer, thus rendering her unable to establish that Red Cross’ legitimate, non-discriminatory reason for her termination was pretextual. Plaintiff cannot dispute that her position was eliminated, not only in her region, but nationwide. Accordingly, Plaintiff’s discrimination claims fail because she not only cannot establish a prima facie case, but she also cannot offer any evidence - let alone substantial evidence - demonstrating that Red Cross’ proffered reason for her termination was pretextual. 3. Plaintiff’s Retaliation Claims against Defendant Red Cross. To succeed on her retaliation causes of action, Plaintiff must prove that: (1) she engaged in protected activity; (2) she was thereafter subjected to adverse employment action; and (3) a causal link existed between the two. Fisher v. San Pedro Peninsula Case 2:16-cv-07342-GW-AS Document 56-1 Filed 06/19/17 Page 22 of 29 Page ID #:312 Case No: 2:16-cv-07342 GW(ASx) 23 MEMORANDUM OF POINTS & AUTHORITIES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Hospital (1989) 214 Cal.App.3d 590, 614-615; Flait v. North American Watch Corp. (1992) 3 Cal.App.4th 467, 476. Once again, if the employer articulates a legitimate, non- retaliatory reason for its actions, the employee must prove that the employer’s reason was untrue or pretextual. Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718, 1735. Here, Plaintiff admits that she did not complain about any alleged discriminatory conduct nor did she engage in any other kind of protected activity. [UMFs 37, 59] As such, Plaintiff cannot establish a prima facie case of retaliation. 4. Plaintiff’s Harassment Claims Against Defendants. To establish a claim for harassment in violation of FEHA, Plaintiff must demonstrate that: (1) she is a member of a protected group; (2) she was subjected to harassment because she belonged to this group; and (3) the alleged harassment was so severe that it created a hostile work environment.” Lawler v. Montblanc North America, LLC (9th Cir. 2013) 704 F.3d 1235, 1244 citing Aguilar v. Avis Rent A Car Sys., Inc. (1999) 21 Cal. 4th 121. The plaintiff must show a ‘"concerted pattern of harassment of a repeated, routine or a generalized nature."’ Id. Thus, there is no recovery “for harassment that is occasional, isolated, sporadic, or trivial.” Hughes v. Pair (2009) 46 Cal.4th 1035, 1043 citing Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 283. Moreover, harassment ‘"consists of actions outside the scope of job duties which are not of a type necessary to business and personnel management."’ Lawler, supra, 704 F.3d at 1244 citing Reno v. Baird, supra, 18 Cal. 4th at 647; see also Janken v. GM Hughes Elecs. (1996) 46 Cal. App. 4th 55, 65. For example, "commonly necessary personnel management actions such as hiring and firing, job or project assignments, . . . promotion or demotion, [and] performance evaluations, . . . do not come within the meaning of harassment." Reno, supra, 957 18 Cal. 4th at 646. Consistent with the authority cited above, simple offhand comments (such as those allegedly made by Nebbitt-i.e. asking Plaintiff to provide her schedule and give notice if she was going to be out of the office [UMFs 28, 32], telling Plaintiff that a flexible schedule Case 2:16-cv-07342-GW-AS Document 56-1 Filed 06/19/17 Page 23 of 29 Page ID #:313 Case No: 2:16-cv-07342 GW(ASx) 24 MEMORANDUM OF POINTS & AUTHORITIES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 was not fair to other employees [UMF 35], calling a co-worker “boo” [UMF 52] or getting upset at Plaintiff if Plaintiff did not know something [UMF 53], etc.) do not amount to discriminatory changes in the terms and conditions of employment. Jones v. Dep’t of Corr. & Rehab. (2007) 152 Ca1.App.4th 1367, 1377. Thus, “the ordinary tribulations of the workplace, such as the sporadic use of abusive language, gender-related jokes, and occasional teasing” is not actionable harassment. Faragher v. City of Boca Raton, 524 U.S. 775 (1998). As discussed above, Plaintiff’s own allegations and testimony establish that Nebbitt did not engage in conduct towards Plaintiff that even comes close to constituting actionable harassment. More importantly, there is no evidence that the alleged unlawful conduct altered the conditions of Plaintiff’s employment. Plaintiff never complained regarding the alleged conduct and did not suffer any adverse employment actions because of her membership in any protected class. [UMFs 37, 59] Plaintiff’s Sixth Cause of Action for Violation of California Business & Professions Code § 17200 Fails As a Matter of Law Because Plaintiff’s Underlying Claims are Meritless. Business & Professions Code § 17200 et seq. (“UCL”) § 17200 et seq. prohibits any unlawful, unfair, or fraudulent business act or practice. An action based on this statute typically “borrows” violations of other statutes when committed pursuant to business activity. Farmers Ins. Exchange v. Sup. Ct. (1992) 2 Cal.4th 377, 383. In Price v. Starbucks Corp. (2011) 192 Cal.App.4th 1136, 1147, the court held that when the underlying statutory claims fail, the derivative UCL claim must also fail. As discussed above, Plaintiff fails to create a genuine issue of material fact as to her statutory claims. Therefore, because the statutes and claims upon which Plaintiff relies to support her derivative UCL § 17200 claim fails as a matter of law, Plaintiff’s claim under the UCL must also fail. Plaintiff’s Seventh Cause of Action for Intentional Misrepresentation [Fraud], Negligent Misrepresentation, and Concealment Fails Because Case 2:16-cv-07342-GW-AS Document 56-1 Filed 06/19/17 Page 24 of 29 Page ID #:314 Case No: 2:16-cv-07342 GW(ASx) 25 MEMORANDUM OF POINTS & AUTHORITIES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff Cannot Establish a Knowing Misrepresentation or Concealment of a Material Fact by Defendants, nor Can She Establish an Intent to Defraud. To establish a cause of action for intentional misrepresentation, a plaintiff must establish that: (1) the defendant made a misrepresentation of a past or existing material fact or concealed such facts when under a duty to disclose; (2) the defendant made the representation with the intent to defraud the plaintiff; (3) the plaintiff justifiably relied on the misrepresentation; and (4) the plaintiff suffered legally cognizable damages as a result. Cal. Civ. Code § 1710; Lazar v. Sup. Ct. (Rykoff-Sexton, Inc.)(1996) 12 Cal.4th 631, 638; Marketing West, Inc. v. Sanyo Fisher (USA) Corp. (1992) 6 Cal.App.4th 603, 612-613. To establish a cause of action for fraud or intentional misrepresentation, the plaintiff must additionally show that the defendant knew the representation was false or had no reason to believe it to be true. Cal. Civ. Code § 1710. This well-established standard requires that the complaint must set forth “the time, place, and contents of the false representations, as well as the identity of the person making the misrepresentation and what he obtained thereby.” State ex rel. McCann v. Bank of Am., N.A., 191 Cal. App.4th 897, 906 (2011) (“McCann”). Plaintiff must allege “the names of the persons who made the allegedly fraudulent representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written.” Lazar, supra, 12 Cal.4th at 645 (quoting Tarmann v. State Farm. Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 157). The elements of the causes of action for intentional and negligent misrepresentation are nearly the same. See McCann, 191 Cal.App.4th at 906. In addition to the requirement that the plaintiff prove (1) misrepresentation; (2) intent to defraud; (3) reliance; and (4) damages, the plaintiff must also show that the defendant lacked a reasonable ground for believing the representation to be true. Cal. Civ. Code § 1710(2); CACI 1903. Plaintiff alleges that at the time she commenced employment, Defendants promised Plaintiff she would have “employment that was stable, fair, not arbitrary, permanent, would Case 2:16-cv-07342-GW-AS Document 56-1 Filed 06/19/17 Page 25 of 29 Page ID #:315 Case No: 2:16-cv-07342 GW(ASx) 26 MEMORANDUM OF POINTS & AUTHORITIES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 have development and training, annual bonus, promotions, reasonable work hours, and that Plaintiff would not be subject to arbitrary lay-off.” [UMF 72] However, in her deposition, Plaintiff testified that no one ever promised her annual bonuses, she received promotions and training, and as discussed above, was at all times an at-will employee. [UMFs 5-6, 73] The elements of an action for fraud based on concealment are: (1) the defendant must have concealed or suppressed a material fact, (2) the defendant must have been under a duty to disclose the fact to the plaintiff, (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff, (4) the plaintiff must have been unaware of the fact, and would not have acted as he did if he had known of the concealed or suppressed fact, and (5) as a result of the concealment or suppression of the fact, the plaintiff must have sustained damage. Boschma v. Home Loan Center, Inc. (2011) 198 Cal.App.4th 230, 248. Plaintiff’s concealment claim, i.e. that Defendants concealed that they would not honor Defendants’ policies also fails because Plaintiff cannot establish that Defendants concealed any such fact, or that they did not honor Defendants’ policies. Finally, Plaintiff cannot present any evidence that Defendant Nebbitt either concealed or mispresented any facts to Plaintiff. Plaintiff’s Eighth Cause of Action for Intentional Infliction of Emotional Distress Against Defendants Fails as a Matter of Law Because Defendants Did Not Engage In Extreme or Outrageous Conduct and Plaintiff Did Not Suffer Severe Emotional Distress. The elements of a cause of action for intentional infliction of emotional distress (“IIED”) are: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) severe or emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct. Davidson v. City of Westminster (1982) 32 Cal.3d 197, 209. To recover for IIED, the employer’s actions must be “so extreme and Case 2:16-cv-07342-GW-AS Document 56-1 Filed 06/19/17 Page 26 of 29 Page ID #:316 Case No: 2:16-cv-07342 GW(ASx) 27 MEMORANDUM OF POINTS & AUTHORITIES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 outrageous as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Alcorn v. Anbro Eng. Inc. (1970) 2 Cal.3d 493, 499, fn. 5 [internal quotes omitted]. Here, Plaintiff cannot establish the requisite “extreme and outrageous” conduct. Liability for IIED does not arise out of “mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.” Hughes v. Pair (2009) 46 Cal.4th 1035, 1051. Examples of conduct not held to be “extreme and outrageous” include the following: making inappropriate sexual demands (ibid.); firing an employee without cause Buscemi v. McDonnell Douglas Corp. (9th Cir. 1984) 736 F.2d 1348, 1352 [applying California law] (ostracizing an employee in retaliation for bringing a successful lawsuit against the employer), McCoy v. Pacific Maritime Ass’n (2013) 216 Cal.App.4th 283, 295); and making false promises of bonuses (Moncada v. West Coast Quartz Corp. (2013) 221 Cal.App.4th 768, 780-781. Mere insults and petty oppressions are precisely all that Plaintiff supposedly endured. Allegedly telling Plaintiff that she needed to finish her work before going home early [UMF 38], comments relating to Plaintiff’s work performance [UMF 71] or even off hand jokes [UMF 52], for instance, simply do not constitute “extreme and outrageous” conduct. Further, claims for IIED also do not extend to personnel management activity, even if discriminatory motivation is alleged; managing personnel “is not outrageous conduct beyond the bounds of human decency, but rather conduct essential to the welfare and prosperity of society.” Janken v. GM Hughes Elect. (1996) 46 Cal.App.4th 55, 80; Cornblith v. First Maint. (1968) 268 Cal.App.2d 564, 565. Even intentional and malicious discipline and criticism does not constitute “extreme” conduct. See Shoemaker v. Myers (1990) 52 Cal.3d 1, 25. Thus Plaintiff’s claims that Nebbitt discouraged her from working from home or insisted that she report when she would not be at work or critiqued Plaintiff’s work performance, simply does not constitute actionable conduct. Case 2:16-cv-07342-GW-AS Document 56-1 Filed 06/19/17 Page 27 of 29 Page ID #:317 Case No: 2:16-cv-07342 GW(ASx) 28 MEMORANDUM OF POINTS & AUTHORITIES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Finally, Plaintiff cannot establish that she suffered “severe” emotional distress as required. “Severe emotional distress is not mild or brief; it must be so substantial or long lasting that no reasonable person in a civilized society should be expected to bear it.” CACI 1604; Vasquez v. Franklin Mgmt. Real Estate Fund, Inc. (2013) 222 Cal.App.4th 819, 832-833. “Discomfort, worry, anxiety, upset stomach, concern and agitation” do not constitute “severe emotional distress.” Hughes, supra, 46 Cal.4th at 1051. Yet all Plaintiff suffered, at most, headaches and bouts of stress and jaw pain. This is not enough to establish a claim for IIED. Plaintiff’s Eighth Cause of Action for Intentional Infliction of Emotional Distress Against Defendants Fails as a Matter of Law Because it is Barred by Workers’ Compensation Exclusivity. Plaintiff’s claim for IIED is also barred by workers’ compensation exclusivity. Cal. Lab. Code, § 3600 et seq.; see, e.g., Shoemaker v. Myers (1990) 52 Cal.3d 1, 25 [“Even if such conduct may be characterized as intentional, unfair or outrageous, it is nevertheless covered by the workers’ compensation exclusivity provisions.”]. Notably, in Shoemaker, the California Supreme Court sustained the defendant’s demurrer as to the IIED claim because-although the plaintiff alleged that his employer improperly disciplined him and then threatened and intimidated him-even if the discipline was intentional and malicious, that conduct is still a normal part of the employment workplace. Shoemaker, supra, 52 Cal.3d at 10, 25. Here, Plaintiff’s factual allegations arise entirely from conduct that occurred at the worksite in the normal course of an employer-employee relationship. Thus, Plaintiff’s claim for IIED is barred because the Workers’ Compensation Appeals Board is the exclusive forum for resolving these claims. A contrary result would conflict with California Supreme Court precedent. Plaintiff’s Ninth Cause of Action for Violation of Labor Code Fails Because Plaintiff was Properly Paid All Wages She was Owed. Case 2:16-cv-07342-GW-AS Document 56-1 Filed 06/19/17 Page 28 of 29 Page ID #:318 Case No: 2:16-cv-07342 GW(ASx) 29 MEMORANDUM OF POINTS & AUTHORITIES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff’s complaint fails to specify what Labor Code Section she believes Defendant violated. In her Complaint, Plaintiff alleges that on December 26, 2014, Nebbitt deliberately altered Plaintiff’s timesheet without Plaintiff’s knowledge or permission, and as a result Plaintiff was not credited for hours worked. [UMF 72] Plaintiff testified that Nebbitt, who was in charge of her timecard, changed it to reflect Plaintiff’s day off on December 26, 2014 as paid time off instead of a floating holiday. [UMF 73] It is entirely unclear how this would have resulted in a violation of the Labor Code, as Plaintiff was paid all wages, including for December 26, 2014, which was classified as paid time off. IV. CONCLUSION This Court’s precious time and resources should not be squandered litigating baseless claims. Accordingly, for all of the reasons set forth above Defendants request that the Court enter summary judgment in their favor. Alternatively, Defendants request that the Court summarily adjudicate the issues set forth above. Dated: June 19, 2017 JACKSON LEWIS P.C. By: /s/ Theresa M. Marchlewski Theresa M. Marchlewski Ellen E. Cohen Attorneys for Defendants AMERICAN NATIONAL RED CROSS, AMERICAN RED CROSS OF GREATER LOS ANGELES and AUSANTA NEBBITT 4812-7372-2954, v. 1 Case 2:16-cv-07342-GW-AS Document 56-1 Filed 06/19/17 Page 29 of 29 Page ID #:319 CASE NO.: 2:16-cv-07342 GW(ASx) 1 DEFS’ STATEMENT OF UNCONTROVERTED MATERIAL FACTS AND CONCLUSIONS OF LAW 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Theresa M. Marchlewski (SBN 82429) Ellen Cohen (SBN 258131) JACKSON LEWIS P.C. 725 South Figueroa Street, Suite 2500 Los Angeles, California 90017-5408 Telephone: (213) 689-0404 Facsimile: (213) 689-0430 E-mail: marchlet@jacksonlewis.com E-mail: ellen.cohen@jacksonlewis.com Attorneys for Defendants AMERICAN NATIONAL RED CROSS, individually and on behalf of the GREATER LOS ANGELES CHAPTER OF THE AMERICAN RED CROSS (erroneously sued as AMERICAN RED CROSS OF GREATER LOS ANGELES) and AUSANTA NEBBITT UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA XOCHITL NISBET, Plaintiff, v. AMERICAN NATIONAL RED CROSS; AMERICAN RED CROSS OF GREATER LOS ANGELES; AUSANTA NEBBITT; and DOES 1 through 100, Defendants. Case No.: 2:16-cv-07342 GW(ASx) DEFENDANT AMERICAN NATIONAL RED CROSS AND AUSANTA NEBBITT’ STATEMENT OF UNCONTROVERTED MATERIAL FACTS AND CONCLUSIONS OF LAW IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT [F.R.C.P. Rule 56] [Filed concurrently with Notice of Motion; Memorandum of Points and Authorities; Declarations and Exhibits in Support of Motion; and [Proposed] Order] Date: July 17, 2017 Time: 8:30 a.m. Place: Courtroom 9D State Complaint File: August 30, 2016 Pretrial Conference: August 17, 2017 Trial: August 29, 2017 Case 2:16-cv-07342-GW-AS Document 56-2 Filed 06/19/17 Page 1 of 36 Page ID #:320 CASE NO.: 2:16-cv-07342 GW(ASx) 2 DEFS’ STATEMENT OF UNCONTROVERTED MATERIAL FACTS AND CONCLUSIONS OF LAW 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Defendants American National Red Cross (“Defendant Red Cross”) and Ausanta Nebbitt (“Defendant Nebbitt”) (Collectively “Defendants”) by and through its attorneys of record, hereby submits the following Statement of Uncontroverted Facts and Conclusions of Law pursuant to Federal Rule of Civil Procedure, Local Rule 56-1 in support of their Motion for Summary Judgment or in the Alternative, Summary Adjudication of the Issues. UNCONTROVERTED FACTS AND SUPPORTING EVIDENCE DEFENDANTS’ UNCONTROVERTED MATERIAL FACTS AND SUPPORTING EVIDENCE PLAINTIFF’S RESPONSE AND SUPPORTING EVIDENCE 1. Plaintiff was originally hired by Red Cross on April 19, 2011 as a Gifts Coordinator working in the West Los Angeles office on Ohio Avenue. Evidence: Declaration of Theresa M. Marchlewski (“Marchlewski Decl.”), ¶ 2, Ex. A, Deposition of Xochitl Nisbet (“Nisbet Depo”), 38:22-39:9. 2. As Gifts Coordinator, Plaintiff reported to the Database and Research Manager, Leigh Ellis. Evidence: Marchlewski Decl., ¶ 2, Ex. A, Nisbet Depo, 38:22-39:9. 3. At the time Red Cross was using the non-profit database called Raiser’s Edge, Case 2:16-cv-07342-GW-AS Document 56-2 Filed 06/19/17 Page 2 of 36 Page ID #:321 CASE NO.: 2:16-cv-07342 GW(ASx) 3 DEFS’ STATEMENT OF UNCONTROVERTED MATERIAL FACTS AND CONCLUSIONS OF LAW 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEFENDANTS’ UNCONTROVERTED MATERIAL FACTS AND SUPPORTING EVIDENCE PLAINTIFF’S RESPONSE AND SUPPORTING EVIDENCE which Plaintiff claimed she had significant training in. Evidence: Marchlewski Decl., ¶ 2, Ex. A, Nisbet Depo, 31:1-20. 4. Plaintiff’s signed offer letter stated that Plaintiff’s employment with Defendant Red Cross was at-will. Evidence: Marchlewski Decl., ¶ 2, Ex. A, Nisbet Depo, 38:22-40:1. 5. At the time of her hire, Plaintiff was provided and acknowledged receipt of Red Cross’ Employee Handbook. Evidence: Marchlewski Decl., ¶ 2, Ex. A, Nisbet Depo, 48:25-49:12, Declaration of Dana Thatcher (“Thatcher Decl.”) ¶ 5, Ex. E. 6. The handbook, as well as the acknowledgment, expressly provided that Plaintiff’s employment with Red Cross was “at-will” and that the employment relationship could be terminated by either party, at any time, with or without cause. Evidence: Case 2:16-cv-07342-GW-AS Document 56-2 Filed 06/19/17 Page 3 of 36 Page ID #:322 CASE NO.: 2:16-cv-07342 GW(ASx) 4 DEFS’ STATEMENT OF UNCONTROVERTED MATERIAL FACTS AND CONCLUSIONS OF LAW 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEFENDANTS’ UNCONTROVERTED MATERIAL FACTS AND SUPPORTING EVIDENCE PLAINTIFF’S RESPONSE AND SUPPORTING EVIDENCE Marchlewski Decl., ¶ 2, Ex. A, Nisbet Depo, 50:2-51:1; Thatcher Decl. ¶ 4, Ex D, (ARC 00003). 7. Plaintiff testified that she understood that the Red Cross had a written policy that it would not tolerate unlawful discrimination, either for age or any other protected characteristic. Evidence: Marchlewski Decl., ¶ 2, Ex. A, Nisbet Depo, 54:12-16. 8. The handbook also set forth Red Cross’ policy regarding working remotely (Telework Program). Red Cross’ Telework Program provided that although the ability to work remotely was not a universal benefit, while it was permitted in some instances, the Red Cross had the right to refuse to make teleworking available to an employee and to terminate the teleworking arrangement at any time. Evidence: Thatcher Decl. ¶ 4, Ex. D, (ARC 000032- 00034). 9. According to the policy, Red Cross Case 2:16-cv-07342-GW-AS Document 56-2 Filed 06/19/17 Page 4 of 36 Page ID #:323 CASE NO.: 2:16-cv-07342 GW(ASx) 5 DEFS’ STATEMENT OF UNCONTROVERTED MATERIAL FACTS AND CONCLUSIONS OF LAW 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEFENDANTS’ UNCONTROVERTED MATERIAL FACTS AND SUPPORTING EVIDENCE PLAINTIFF’S RESPONSE AND SUPPORTING EVIDENCE recognized three main categories of telework arrangements: 1. Tier 1- Occasional Telework: Where an employee requested a telework day on an infrequent/non-regular basis. This applied to unanticipated emergency situations. The policy specifically provided that such informal arrangements were at a supervisor’s discretion and were not covered by the policy. 2. Tier 2- Regular/Recurring Telework: Where the majority of the work is performed at the work location but telework is done at some other off-site work location on a set telework schedule. 3. Tier 3- Remote Worker Telework: Where the primary work location is the employees home or some off site location. Evidence: Thatcher Decl. ¶ 4, Ex. D. (ARC 000032- Case 2:16-cv-07342-GW-AS Document 56-2 Filed 06/19/17 Page 5 of 36 Page ID #:324 CASE NO.: 2:16-cv-07342 GW(ASx) 6 DEFS’ STATEMENT OF UNCONTROVERTED MATERIAL FACTS AND CONCLUSIONS OF LAW 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEFENDANTS’ UNCONTROVERTED MATERIAL FACTS AND SUPPORTING EVIDENCE PLAINTIFF’S RESPONSE AND SUPPORTING EVIDENCE 00034) 10. The Telework Program policy provides that in order for an employee to be eligible for a regular/recurring telework arrangement, the employee must obtain approval from her supervisor, and the employee, the supervisor and department executive must execute a Telework Agreement. Evidence: Thatcher Decl. ¶ 4, Ex. D. (ARC 000032- 00034) 11. In her deposition, Plaintiff testified that she never reviewed Red Cross’ policy regarding working remotely and did not execute a Telework Agreement. Evidence: Marchlewski Decl., ¶ 2, Ex. A, Nisbet Depo, 58:21-59:20. 12. Although Plaintiff did not have a Telework Agreement, Plaintiff often decided that she would work remotely, often notifying Ellis at the last minute that she would not becoming in due to one personal issue or another. Case 2:16-cv-07342-GW-AS Document 56-2 Filed 06/19/17 Page 6 of 36 Page ID #:325 CASE NO.: 2:16-cv-07342 GW(ASx) 7 DEFS’ STATEMENT OF UNCONTROVERTED MATERIAL FACTS AND CONCLUSIONS OF LAW 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEFENDANTS’ UNCONTROVERTED MATERIAL FACTS AND SUPPORTING EVIDENCE PLAINTIFF’S RESPONSE AND SUPPORTING EVIDENCE Evidence: Marchlewski Decl., ¶ 2, Ex. A, Nisbet Depo, 102:19-104:3, 111:8-13. 13. Ellis began discussing possible changes within Plaintiff’s department in the beginning of 2014. Evidence: Marchlewski Decl., ¶ 2, Ex. A, Nisbet Depo, 89:13-90:8. 14. Plaintiff testified that in early 2014, Ellis told her that Red Cross would be combining the local databases into one national database. Evidence: Marchlewski Decl., ¶ 2, Ex. A, Nisbet Depo, 90:4-91:2. 15. Plaintiff testified that Ellis told her that Red Cross was determine how many of the DDCOE positions would remain. Evidence: Marchlewski Decl., ¶ 2, Ex. A, Nisbet Depo, 91:3-12. 16. Plaintiff testified that it was stressful working in the department because everyone knew that there were going to be Case 2:16-cv-07342-GW-AS Document 56-2 Filed 06/19/17 Page 7 of 36 Page ID #:326 CASE NO.: 2:16-cv-07342 GW(ASx) 8 DEFS’ STATEMENT OF UNCONTROVERTED MATERIAL FACTS AND CONCLUSIONS OF LAW 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEFENDANTS’ UNCONTROVERTED MATERIAL FACTS AND SUPPORTING EVIDENCE PLAINTIFF’S RESPONSE AND SUPPORTING EVIDENCE changes and no one knew what they would be, and admits that there were several rounds of lay-offs in her department. Evidence: Marchlewski Decl., ¶ 2, Ex. A, Nisbet Depo, 120:1-16-122:5. 17. Plaintiff testified that around January 2014, Red Cross’ Chief Development Office (“CDO”) for the Los Angeles Region, Andrea Waldron (“Waldron”), advised Plaintiff that there would be layoffs in her department. Evidence: Marchlewski Decl., ¶ 2, Ex. A, Nisbet Depo, 147:21-24. 18. These changes were part of Red Cross’ nationwide Donor Data Center of Expertise (“DDCOE”) conversation project, which would focus on converting the individual chapter gift databases to a centralized the gift database on a national level. Evidence: Marchlewski Decl., ¶ 2, Ex. A, Nisbet Depo, 90:4-15; Declaration of Lauri Case 2:16-cv-07342-GW-AS Document 56-2 Filed 06/19/17 Page 8 of 36 Page ID #:327 CASE NO.: 2:16-cv-07342 GW(ASx) 9 DEFS’ STATEMENT OF UNCONTROVERTED MATERIAL FACTS AND CONCLUSIONS OF LAW 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEFENDANTS’ UNCONTROVERTED MATERIAL FACTS AND SUPPORTING EVIDENCE PLAINTIFF’S RESPONSE AND SUPPORTING EVIDENCE Rhinehart (“Rhinehart Decl.”) ¶¶ 5, 12-18, Exs. Q, R, S, T, U, V, W and X. 19. Around June 2014, Ausanta Nebbitt (“Nebbitt”), an African-American female was promoted to Director of Development Operations. Evidence: Declaration of Ausanta Nebbitt (“Nebbitt Decl.”), ¶ 3. 20. Around September 1, 2014, Ellis resigned from employment and Nebbitt became Plaintiff’s supervisor. Evidence: Marchlewski Decl., ¶ 2, Ex. A, Nisbet Depo, 86:5-14. 21. Plaintiff and Nebbitt worked together in the Donor Data Center of Expertise (DDCOE) department. Evidence: Marchlewski Decl., ¶ 2, Ex. A, Nisbet Depo, 91:10-12; Nebbitt Decl., ¶ 4. 22. Around this time, Plaintiff job title changed to Data Systems Specialist, which resulted in Plaintiff changing from a non- exempt to exempt employee. Case 2:16-cv-07342-GW-AS Document 56-2 Filed 06/19/17 Page 9 of 36 Page ID #:328 CASE NO.: 2:16-cv-07342 GW(ASx) 10 DEFS’ STATEMENT OF UNCONTROVERTED MATERIAL FACTS AND CONCLUSIONS OF LAW 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEFENDANTS’ UNCONTROVERTED MATERIAL FACTS AND SUPPORTING EVIDENCE PLAINTIFF’S RESPONSE AND SUPPORTING EVIDENCE Evidence: Marchlewski Decl., ¶ 2, Ex. A, Nisbet Depo, 72:11-73:22 23. The new title came with an increase in pay to $65,000.00 a year. Evidence: Marchlewski Decl., ¶ 2, Ex. A, Nisbet Depo, 73:24-74:6. 24. As Data Systems Specialist, Plaintiff was a part of the Los Angeles Regional chapter’s data team within the DDCOE department and her duties consisted of managing the corporate and foundation feeder portfolios, creating Salesforce records for new donors, enter gifts into Salesforce, among other data related duties. Evidence: Marchlewski Decl., ¶ 2, Ex. A, Nisbet Depo, 72:3-73:22; Thatcher Dec., ¶ 6, Ex. F. 25. Plaintiff testified that the Data Systems Specialist job description was a more accurate description of the work she had been doing prior to the change in her Case 2:16-cv-07342-GW-AS Document 56-2 Filed 06/19/17 Page 10 of 36 Page ID #:329 CASE NO.: 2:16-cv-07342 GW(ASx) 11 DEFS’ STATEMENT OF UNCONTROVERTED MATERIAL FACTS AND CONCLUSIONS OF LAW 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEFENDANTS’ UNCONTROVERTED MATERIAL FACTS AND SUPPORTING EVIDENCE PLAINTIFF’S RESPONSE AND SUPPORTING EVIDENCE title. Marchlewski Decl., ¶ 2, Ex. A, Nisbet Depo, 72:19-73:22. 26. As part of a national effort, back office and support functions, such as those performed by Plaintiff, were consolidated with new systems (DDCOE and Salesforce), which resulted in the elimination of several positions in Plaintiff’s department in October 2014. Evidence: Marchlewski Decl., ¶ 2, Ex. A, Nisbet Depo, 32:16-19, 90:7- 91:2, 147:7-20; Rhinehart Decl. ¶¶ 5, 12-19, Exs, Q, R, S, T, U, V, W and X. 27. Plaintiff was frequently late, left early or absent from work for various personal reasons. Evidence: Marchlewski Decl., ¶ 2, Ex. A, Nisbet Depo, 198:19-201:2. 28. On September 10, 2014, Nebbitt requested that Plaintiff keep Nebbitt apprised of her weekly schedule. Evidence: Case 2:16-cv-07342-GW-AS Document 56-2 Filed 06/19/17 Page 11 of 36 Page ID #:330 CASE NO.: 2:16-cv-07342 GW(ASx) 12 DEFS’ STATEMENT OF UNCONTROVERTED MATERIAL FACTS AND CONCLUSIONS OF LAW 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEFENDANTS’ UNCONTROVERTED MATERIAL FACTS AND SUPPORTING EVIDENCE PLAINTIFF’S RESPONSE AND SUPPORTING EVIDENCE Marchlewski Decl., ¶ 2, Ex. A, Nisbet Depo, 133:21-22; Nebbitt Decl., ¶ 5, Ex. H. 29. Plaintiff testified that starting mid- October 2014, Ausanta Nebbitt told her that she was watching out for her, was suggesting Plaintiff to spearhead other projects, and was advocating for Plaintiff. Evidence: Marchlewski Decl., ¶ 2, Ex. A, Nisbet Depo, 120:21-121:13. 30. Plaintiff began submitting weekly schedules to Nebbitt, which stated that Plaintiff would be leaving early nearly every day to pick up her children from school, as well as arriving late or leaving mid-day to tend to personal business or attend various appointments. Evidence: Marchlewski Decl., ¶ 2, Ex. A, Nisbet Depo, 133:21-22; Nebbitt Decl. ¶ 6, Ex. I. 31. In addition to the time off Plaintiff marked down on her weekly schedules, Plaintiff continued to arrive to work late, leave early or work remotely at her own Case 2:16-cv-07342-GW-AS Document 56-2 Filed 06/19/17 Page 12 of 36 Page ID #:331 CASE NO.: 2:16-cv-07342 GW(ASx) 13 DEFS’ STATEMENT OF UNCONTROVERTED MATERIAL FACTS AND CONCLUSIONS OF LAW 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEFENDANTS’ UNCONTROVERTED MATERIAL FACTS AND SUPPORTING EVIDENCE PLAINTIFF’S RESPONSE AND SUPPORTING EVIDENCE convenience. Evidence: Nebbitt Decl. ¶ 7, Ex. J. 32. Nebbitt requested that Plaintiff notify her in advance, within 24 hours if possible, if Plaintiff was going to be taking time off. Evidence: Nebbitt Decl. ¶ 8, Ex. K. 33. Plaintiff would transport her children to school before 8:00 a.m., and pick them up between 3:00 and 5:00 p.m. Evidence: Marchlewski Decl., ¶ 2, Ex. A, Nisbet Depo, 128:18-129:1. 34. Nebbitt did not deny any of Plaintiff’s requests for time off to take care of her children or to attend medical appointments. Evidence: Marchlewski Decl., ¶ 2, Ex. A, Nisbet Depo A, 134:21-135:4; 177:10-13. 35. Plaintiff testified that Nebbitt once told her that Plaintiff’s flexible schedule was “not fair” to the other employees. Case 2:16-cv-07342-GW-AS Document 56-2 Filed 06/19/17 Page 13 of 36 Page ID #:332 CASE NO.: 2:16-cv-07342 GW(ASx) 14 DEFS’ STATEMENT OF UNCONTROVERTED MATERIAL FACTS AND CONCLUSIONS OF LAW 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEFENDANTS’ UNCONTROVERTED MATERIAL FACTS AND SUPPORTING EVIDENCE PLAINTIFF’S RESPONSE AND SUPPORTING EVIDENCE Evidence: Marchlewski Decl., ¶ 2, Ex. A, Nisbet Depo, 106:14-19. 36. Plaintiff testified that Nebbitt reprimanded her for doing things she needed to do as a parent by asking her for her weekly schedule, telling Plaintiff that she needed to give 24 hours’ notice if her child was going to be sick, marking Plaintiff as absent for attending a parent- teacher conference, and telling her that she needed to complete a task when Plaintiff had to leave to pick up her children. Evidence: Marchlewski Decl., ¶ 2, Ex. A, Nisbet Depo, 257:20-258:8. 37. Plaintiff did not complain to anyone in human resources or management that Nebbitt told her that she could no longer have a flexible schedule. Evidence: Marchlewski Decl., ¶ 2, Ex. A, Nisbet Depo, 106:16-19, 106:20-23. 38. Plaintiff testified that she had an “understanding” with Ellis that she could Case 2:16-cv-07342-GW-AS Document 56-2 Filed 06/19/17 Page 14 of 36 Page ID #:333 CASE NO.: 2:16-cv-07342 GW(ASx) 15 DEFS’ STATEMENT OF UNCONTROVERTED MATERIAL FACTS AND CONCLUSIONS OF LAW 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEFENDANTS’ UNCONTROVERTED MATERIAL FACTS AND SUPPORTING EVIDENCE PLAINTIFF’S RESPONSE AND SUPPORTING EVIDENCE work her job around her children because Red Cross was trying to ensure “work life balance”. Evidence: Marchlewski Decl., ¶ 2, Ex. A, Nisbet Depo, 131:11-132:12. 39. Plaintiff testified that no one at Red Cross ever promised her that she could have flexible hours no matter what. Evidence: Marchlewski Decl., ¶ 2, Ex. A, Nisbet Depo, 119:12-15. 40. Plaintiff testified that Nebbitt made it difficult for her to take care of her children because she said that Plaintiff’s parental duties were detracting from her work duties, and that it was hard for Nebbitt to ask Plaintiff things by telephone or by email. Evidence: Marchlewski Decl., ¶ 2, Ex. A, Nisbet Depo, 132:18-133:11. 41. Plaintiff testified she was upset because when she was not able to work from home, she had to leave her children Case 2:16-cv-07342-GW-AS Document 56-2 Filed 06/19/17 Page 15 of 36 Page ID #:334 CASE NO.: 2:16-cv-07342 GW(ASx) 16 DEFS’ STATEMENT OF UNCONTROVERTED MATERIAL FACTS AND CONCLUSIONS OF LAW 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEFENDANTS’ UNCONTROVERTED MATERIAL FACTS AND SUPPORTING EVIDENCE PLAINTIFF’S RESPONSE AND SUPPORTING EVIDENCE to make dinner for themselves and could not assist them with homework. Evidence: Marchlewski Decl., ¶ 2, Ex. A, Nisbet Depo, 135:12-136:15, 141:18-142:25. 42. Plaintiff testified that she never had to miss a parent-teacher conference because Nebbitt would not let her go. Evidence: Marchlewski Decl., ¶ 2, Ex. A, Nisbet Depo, 259:20-23. 43. Plaintiff hurt her jaw on September 4, 2014, as she was yawning while working out at the gym. Evidence: Marchlewski Decl., ¶ 2, Ex. A, Nisbet Depo, 150:14-151:5. 44. Plaintiff testified that the exacerbation of her jaw condition was caused by her workload and stress at work. Evidence: Marchlewski Decl., ¶ 2, Ex. A, Nisbet Depo, 150:14-151:5. 45. Plaintiff testified that her jaw condition began to get worse starting in Case 2:16-cv-07342-GW-AS Document 56-2 Filed 06/19/17 Page 16 of 36 Page ID #:335 CASE NO.: 2:16-cv-07342 GW(ASx) 17 DEFS’ STATEMENT OF UNCONTROVERTED MATERIAL FACTS AND CONCLUSIONS OF LAW 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEFENDANTS’ UNCONTROVERTED MATERIAL FACTS AND SUPPORTING EVIDENCE PLAINTIFF’S RESPONSE AND SUPPORTING EVIDENCE June 2014 as a result of the data system being switched over to a national system, the restructure that was being talked about and the discussions about a lot of uncertainty. Evidence: Marchlewski Decl., ¶ 2, Ex. A, Nisbet Depo, 151:17-152:3. 46. Plaintiff’s doctor never provided her with a notice or any documentation indicating that she should take time off for her stress or jaw issue. Evidence: Marchlewski Decl., ¶ 2, Ex. A, Nisbet Depo, 214:22-215:5. 47. Plaintiff testified that she suffered from stress as a result of the increased workload. Evidence: Marchlewski Decl., ¶ 2, Ex. A, Nisbet Depo, 136:5-15; 150:14-151:5. 48. Plaintiff testified that she does not believe that anyone other than Nebbitt directly mistreated her because of her disability. Case 2:16-cv-07342-GW-AS Document 56-2 Filed 06/19/17 Page 17 of 36 Page ID #:336 CASE NO.: 2:16-cv-07342 GW(ASx) 18 DEFS’ STATEMENT OF UNCONTROVERTED MATERIAL FACTS AND CONCLUSIONS OF LAW 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEFENDANTS’ UNCONTROVERTED MATERIAL FACTS AND SUPPORTING EVIDENCE PLAINTIFF’S RESPONSE AND SUPPORTING EVIDENCE Evidence: Marchlewski Decl., ¶ 2, Ex. A, Nisbet Depo, 253:14-254:11. 49. Plaintiff believes that she was mistreated because of her disability because it was evident that she was in pain and suffering from emotional distress and workload stress and it was never addressed. Evidence: Marchlewski Decl., ¶ 2, Ex. A, Nisbet Depo, 254:5-11. 50. Other that asking for help alleviating her workload, Plaintiff did not ask anyone at Red Cross for any kind of accommodation. Evidence: Marchlewski Decl., ¶ 2, Ex. A, Nisbet Depo, 254:12-15. 51. Plaintiff testified that she believed that Nebbitt micromanaged her because of her race because she did not micromanage her male African-American coworker, Arthur Bragg. Evidence: Case 2:16-cv-07342-GW-AS Document 56-2 Filed 06/19/17 Page 18 of 36 Page ID #:337 CASE NO.: 2:16-cv-07342 GW(ASx) 19 DEFS’ STATEMENT OF UNCONTROVERTED MATERIAL FACTS AND CONCLUSIONS OF LAW 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEFENDANTS’ UNCONTROVERTED MATERIAL FACTS AND SUPPORTING EVIDENCE PLAINTIFF’S RESPONSE AND SUPPORTING EVIDENCE Marchlewski Decl., ¶ 2, Ex. A, Nisbet Depo, 183:11-15. 52. Plaintiff testified that Nebbitt used words language in the workplace that Plaintiff found inappropriate. Specifically, Nebbitt use “street language” by calling a co-worker “Boo”, jokingly telling Plaintiff that she would cut her and telling Plaintiff’s daughter that she had great hair and that she would cut it off. Evidence: Marchlewski Decl., ¶ 2, Ex. A, Nisbet Depo, 160:13-164:21. 53. Plaintiff testified that Nebbitt behaved aggressively towards her by holding her face in anger, standing over Plaintiff and becoming angry at Plaintiff if Plaintiff did not know something. Evidence: Marchlewski Decl., ¶ 2, Ex. A, Nisbet Depo, 162:5-19. 54. Plaintiff testified she was told during orientation that Red Cross allowed employees to observe their religion and asserts that this was not followed in her Case 2:16-cv-07342-GW-AS Document 56-2 Filed 06/19/17 Page 19 of 36 Page ID #:338 CASE NO.: 2:16-cv-07342 GW(ASx) 20 DEFS’ STATEMENT OF UNCONTROVERTED MATERIAL FACTS AND CONCLUSIONS OF LAW 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEFENDANTS’ UNCONTROVERTED MATERIAL FACTS AND SUPPORTING EVIDENCE PLAINTIFF’S RESPONSE AND SUPPORTING EVIDENCE situation, because in November and December 2014 she was not able to attend two Masses at her children’s school. Evidence: Marchlewski Decl., ¶ 2, Ex. A, Nisbet Depo, 137:2-16-140:7. 55. Plaintiff testified that in November and December 2014 there were Masses that she did not attend for fear of getting in trouble for missing time at work. Evidence: Marchlewski Decl., ¶ 2, Ex. A, Nisbet Depo, 137:17-22. 56. According to Plaintiff, she told Nebbitt about a Mass she wanted to attend and Nebbitt told her that she could not take the time off because “it wasn’t fair to other people.” Evidence: Marchlewski Decl., ¶ 2, Ex. A, Nisbet Depo, 140:8-19. 57. These Masses were not on any particular holy day of obligation. Rather, they were school events that Plaintiff simply wanted to attend. Case 2:16-cv-07342-GW-AS Document 56-2 Filed 06/19/17 Page 20 of 36 Page ID #:339 CASE NO.: 2:16-cv-07342 GW(ASx) 21 DEFS’ STATEMENT OF UNCONTROVERTED MATERIAL FACTS AND CONCLUSIONS OF LAW 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEFENDANTS’ UNCONTROVERTED MATERIAL FACTS AND SUPPORTING EVIDENCE PLAINTIFF’S RESPONSE AND SUPPORTING EVIDENCE Evidence: Marchlewski Decl., ¶ 2, Ex. A, Nisbet Depo, 138:3-140:7. 58. Plaintiff admits that she was given Catholic holy days off. Evidence: Marchlewski Decl., ¶ 2, Ex. A, Nisbet Depo, 138:3-140:7. 59. Plaintiff admits that any complaints she may have made relating to her employment at Red Cross centered on her belief that she had an extremely heavy workload. Evidence: Marchlewski Decl., ¶ 2, Ex. A, Nisbet Depo A, 169:21-170:8; 174:23-177:9. 60. On January 23, 2015, Plaintiff was advised that her position was eliminated. Evidence: Marchlewski Decl., ¶ 2, Ex. A, Nisbet Depo, 246:22-247:2; Nebbitt Decl. ¶ 13, Ex. O. 61. Although she was given two weeks’ notice and offered severance, Plaintiff Case 2:16-cv-07342-GW-AS Document 56-2 Filed 06/19/17 Page 21 of 36 Page ID #:340 CASE NO.: 2:16-cv-07342 GW(ASx) 22 DEFS’ STATEMENT OF UNCONTROVERTED MATERIAL FACTS AND CONCLUSIONS OF LAW 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEFENDANTS’ UNCONTROVERTED MATERIAL FACTS AND SUPPORTING EVIDENCE PLAINTIFF’S RESPONSE AND SUPPORTING EVIDENCE declined to accept the severance. Evidence: Marchlewski Decl., ¶ 2, Ex. A, Nisbet Depo, 252:22-253:5. 62. Nebbitt did not participate in the decision to eliminate Plaintiff’s position or lay her off. Evidence: Nebbitt Decl. ¶¶ 12 -13, Ex. O. 63. Several years prior to Plaintiff’s lay- off, Defendant Red Cross began a nationwide implementation of the DDCOE (Donor Data Center of Expertise), which was the is the implementation of a centralized donor database for all donors and gifts, the standardization of the systems and processes used for fundraising throughout the Red Cross on a national level, and the centralization of caging and cashiering to the fullest extent possible. Evidence: Rhinehart Decl. ¶¶ 5-19, Exs. P, Q, R, S, T, U, V, W and X. Case 2:16-cv-07342-GW-AS Document 56-2 Filed 06/19/17 Page 22 of 36 Page ID #:341 CASE NO.: 2:16-cv-07342 GW(ASx) 23 DEFS’ STATEMENT OF UNCONTROVERTED MATERIAL FACTS AND CONCLUSIONS OF LAW 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEFENDANTS’ UNCONTROVERTED MATERIAL FACTS AND SUPPORTING EVIDENCE PLAINTIFF’S RESPONSE AND SUPPORTING EVIDENCE 64. Primary integration points included: gift processing, donor data management, campaign management and access to data elements. Evidence: ¶¶ 5, 12, Ex. Q. 65. As part of the conversion process, it was determined that donor feeder portfolios, as well as the majority of the local data administration functions, would be administered at the national level, under Red Cross’ Consolidated Direct Mail Program, as it would be more cost- effective to have the feeder portfolios in multiple regions managed by national headquarters. Evidence: Rhinehart Decl. ¶¶ 5-19, Exs. P, Q, R, S, T, U, V, W and X. 66. As a result of this decision, Plaintiff’s position, which was responsible for handling feeder portfolios, was no longer needed in the Los Angeles Region, as both were now going to be handled by National Headquarters. Case 2:16-cv-07342-GW-AS Document 56-2 Filed 06/19/17 Page 23 of 36 Page ID #:342 CASE NO.: 2:16-cv-07342 GW(ASx) 24 DEFS’ STATEMENT OF UNCONTROVERTED MATERIAL FACTS AND CONCLUSIONS OF LAW 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEFENDANTS’ UNCONTROVERTED MATERIAL FACTS AND SUPPORTING EVIDENCE PLAINTIFF’S RESPONSE AND SUPPORTING EVIDENCE Evidence: Rhinehart Decl. ¶¶ 5-19, Exs. P, Q, R, S, T, U, V, W and X.; Nebbitt Decl. ¶ 13, Ex. O. 67. Plaintiff testified that she believed that her position had not been eliminated because Arthur Bragg remained employed by Red Cross. Evidence: Marchlewski Decl., ¶ 2, Ex. A, Nisbet Depo, 247:3-6. 68. Bragg was not a Data Systems Specialist. Evidence: Marchlewski Decl., ¶ 2, Ex. A, Nisbet Depo, 247:7-8; Thatcher Decl. ¶ 7, Ex. G. 69. Other than Bragg remaining employment and doing what Plaintiff believed was the same work, Plaintiff has no other reason to believe that her position was not eliminated. Evidence: Marchlewski Decl., ¶ 2, Ex. A, Nisbet Depo, 247:9-13. 70. Plaintiff testified that she does not Case 2:16-cv-07342-GW-AS Document 56-2 Filed 06/19/17 Page 24 of 36 Page ID #:343 CASE NO.: 2:16-cv-07342 GW(ASx) 25 DEFS’ STATEMENT OF UNCONTROVERTED MATERIAL FACTS AND CONCLUSIONS OF LAW 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEFENDANTS’ UNCONTROVERTED MATERIAL FACTS AND SUPPORTING EVIDENCE PLAINTIFF’S RESPONSE AND SUPPORTING EVIDENCE know who made the decision to eliminate her position. Evidence: Marchlewski Decl., ¶ 2, Ex. A, Nisbet Depo, 247:14-16. 71. Plaintiff testified that Nebbitt treated Bragg more favorably because she commented that he did things more expeditiously and was not as stressed out. Evidence: Marchlewski Decl., ¶ 2, Ex. A, Nisbet Depo, 259:7-12. 72. In her Complaint, Plaintiff that she was promised she would have employment that was stable, fair, not arbitrary, permanent, would have development and training, annual bonus, promotions, reasonable work hours, and that Plaintiff would not be subject to arbitrary lay-off.” Evidence: Marchlewski Decl., ¶ 3, Ex. B, Complaint, ¶ 3. 73. Plaintiff testified that no one told her that she would have an annual bonus. Evidence: Case 2:16-cv-07342-GW-AS Document 56-2 Filed 06/19/17 Page 25 of 36 Page ID #:344 CASE NO.: 2:16-cv-07342 GW(ASx) 26 DEFS’ STATEMENT OF UNCONTROVERTED MATERIAL FACTS AND CONCLUSIONS OF LAW 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEFENDANTS’ UNCONTROVERTED MATERIAL FACTS AND SUPPORTING EVIDENCE PLAINTIFF’S RESPONSE AND SUPPORTING EVIDENCE Marchlewski Decl., ¶ 2, Ex. A, Nisbet Depo, 114:7-9. 74. Plaintiff testified that someone in human resources who she does not recall told her at the time she commenced employment that she was being hired for a career position. Evidence: Marchlewski Decl., ¶ 2, Ex. A, Nisbet Depo, 113:18-23. 75. Plaintiff testified that Andrea Waldron and Leigh Ellis told her that her position was not at risk when Defendants were “scaling back.” Evidence: Marchlewski Decl., ¶ 2, Ex. A, Nisbet Depo, 113:24-114:5. 76. Plaintiff testified that the “department as a whole” told her at the time she commenced employment with Defendant Red Cross that there was no “hard and fast schedule.” Evidence: Marchlewski Decl., ¶ 2, Ex. A, Nisbet Depo, 114:20-115:5. Case 2:16-cv-07342-GW-AS Document 56-2 Filed 06/19/17 Page 26 of 36 Page ID #:345 CASE NO.: 2:16-cv-07342 GW(ASx) 27 DEFS’ STATEMENT OF UNCONTROVERTED MATERIAL FACTS AND CONCLUSIONS OF LAW 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEFENDANTS’ UNCONTROVERTED MATERIAL FACTS AND SUPPORTING EVIDENCE PLAINTIFF’S RESPONSE AND SUPPORTING EVIDENCE 77. During her employment with Defendant Red Cross, Plaintiff was provided training for any systems that she needed to use but was not familiar with. Evidence: Marchlewski Decl., ¶ 2, Ex. A, Nisbet Depo, 101:3-9. 78. In her Complaint, Plaintiff alleges that on December 26, 2014, Nebbitt deliberately altered Plaintiff’s timesheet without Plaintiff’s knowledge or permission, and as a result Plaintiff was not credited for hours worked. Evidence: Marchlewski Decl., ¶ 3, Ex. B, Complaint, ¶ 22. 79. Plaintiff testified that Nebbitt, who was in charge of her timecard, changed her timecard to reflect one of Plaintiff’s day off on December 26, 2014 as paid time off instead of a floating holiday. Evidence: Marchlewski Decl., ¶ 2, Ex. A, Nisbet Depo 237:20-239:22. 80. Nebbitt acknowledged Plaintiff’s Case 2:16-cv-07342-GW-AS Document 56-2 Filed 06/19/17 Page 27 of 36 Page ID #:346 CASE NO.: 2:16-cv-07342 GW(ASx) 28 DEFS’ STATEMENT OF UNCONTROVERTED MATERIAL FACTS AND CONCLUSIONS OF LAW 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEFENDANTS’ UNCONTROVERTED MATERIAL FACTS AND SUPPORTING EVIDENCE PLAINTIFF’S RESPONSE AND SUPPORTING EVIDENCE frustration relating to the changes within the department, but assured Plaintiff that she [Nebbitt] would support her as much as possible during the transitional phase. Evidence: Nebbitt, Decl., ¶ 5, Ex. H. 81. In her Complaint, Plaintiff alleges that she and Red Cross entered into an oral contract whereby Plaintiff was to be employed by Red Cross as a Data Coordinator, then as a Data System Specialist, receive monthly wages, leave and benefits, and would be treated fairly and would not be laid off. Evidence: Marchlewski Decl., ¶ 3, Ex. B, Complaint, ¶ 32. 82. Plaintiff alleges that pursuant to that agreement, Defendants expressly promised that Plaintiff’s employment would continue and she would have the opportunity to advance within the company as long as she performed satisfactorily and obeyed all reasonable and lawful directions of her employment. Case 2:16-cv-07342-GW-AS Document 56-2 Filed 06/19/17 Page 28 of 36 Page ID #:347 CASE NO.: 2:16-cv-07342 GW(ASx) 29 DEFS’ STATEMENT OF UNCONTROVERTED MATERIAL FACTS AND CONCLUSIONS OF LAW 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEFENDANTS’ UNCONTROVERTED MATERIAL FACTS AND SUPPORTING EVIDENCE PLAINTIFF’S RESPONSE AND SUPPORTING EVIDENCE Evidence: Marchlewski Decl., ¶ 3, Ex. B, Complaint, ¶ 34 83. Plaintiff does not know what kind of work Bragg did in relation to the feeder portfolio. Evidence: Marchlewski Decl., ¶ 2, Ex. A, Nisbet Depo 249:23-250:3. 84. Plaintiff testified that Bragg worked out of the Pasadena office and began working in the West L.A. office because Plaintiff asked for assistance. Evidence: Marchlewski Decl., ¶ 2, Ex. A, Nisbet Depo 175:22-176:13. ISSUE NO. I Plaintiff’s First Cause of Action for Breach of Contract against Defendants fails as a matter of law because there was no enforceable contract. Defendants’ Uncontroverted Material Facts 1, 4-11, 39, 60, 72, 74-77, 81-82. /// /// /// Case 2:16-cv-07342-GW-AS Document 56-2 Filed 06/19/17 Page 29 of 36 Page ID #:348 CASE NO.: 2:16-cv-07342 GW(ASx) 30 DEFS’ STATEMENT OF UNCONTROVERTED MATERIAL FACTS AND CONCLUSIONS OF LAW 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ISSUE NO. II Plaintiff’s Second Cause of Action for Breach of Implied Covenant of Good Faith and Fair Dealing Fails as a matter of law because Plaintiff cannot establish that there was a contractual duty upon which this claim is based. Defendants’ Uncontroverted Material Facts 1, 4-11, 39, 60, 72, 74-77, 81-82. ISSUE NO. III Plaintiff’s Third Cause of Action for Wrongful Termination fails as a matter of law as Plaintiff cannot establish a prima facie case. Defendants’ Uncontroverted Material Facts 1-72, 74-76, 79-80, 83-84. ISSUE NO. IV Plaintiff’s Fourth Cause of Action for Violation of California Constitution fails as a matter of law because it is not a cognizable claim. This is purely a legal argument. ISSUE NO. V Plaintiff’s Fifth Cause of Action for Discrimination and Retaliation in Violation of FEHA against Defendant Nebbitt fails because there is no individual liability for discrimination or retaliation. This is purely a legal argument. ISSUE NO. VI Plaintiff’s Fifth Cause of Action for Discrimination in Violation of FEHA on the basis of Age, Ancestry, Color, Ethnicity, Race, Gender, Disability, Perceived Disability, Religion, Need for Family Care or Medical Leave, Need for Good Faith Interactive Process or Accommodation because Plaintiff cannot establish a prima facie case. Defendants’ Uncontroverted Material Facts 1-71, 75, 78-80, 83-84. Case 2:16-cv-07342-GW-AS Document 56-2 Filed 06/19/17 Page 30 of 36 Page ID #:349 CASE NO.: 2:16-cv-07342 GW(ASx) 31 DEFS’ STATEMENT OF UNCONTROVERTED MATERIAL FACTS AND CONCLUSIONS OF LAW 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ISSUE NO. VII Plaintiff’s Fifth Cause of Action for Discrimination in Violation of FEHA on the basis of Age, Ancestry, Color, Ethnicity, Race, Gender, Disability, Perceived Disability, Religion, Need for Family Care or Medical Leave, Need for Good Faith Interactive Process or Accommodation because Defendant Red Cross had a legitimate non-discriminatory business reason for Plaintiff’s lay-off. Defendants’ Uncontroverted Material Facts 1-7, 13-26, 60-70, 83-84. ISSUE NO. VIII Plaintiff’s Fifth Cause of Action for Harassment in Violation of the FEHA on the basis of Age against Defendants fails as a matter of law because Plaintiff cannot establish a prima facie case. Defendants’ Uncontroverted Material Facts 28-29, 32, 53, 59, 62, 71. ISSUE NO. IX Plaintiff’s Fifth Cause of Action for Harassment in Violation of the FEHA on the basis of Ancestry, Color, Ethnicity or Race against Defendants fails as a matter of law because Plaintiff cannot establish a prima facie case. Defendants’ Uncontroverted Material Facts 28-29, 32, 51-53, 59, 62, 71. ISSUE NO. X Plaintiff’s Fifth Cause of Action for Harassment in Violation of the FEHA on the basis of Gender against Defendants fails as a matter of law because Plaintiff cannot establish a prima facie case. Defendants’ Uncontroverted Material Facts 28-29, 32, 34-37, 40-42, 51, 53, 59, 62, 71. /// /// /// Case 2:16-cv-07342-GW-AS Document 56-2 Filed 06/19/17 Page 31 of 36 Page ID #:350 CASE NO.: 2:16-cv-07342 GW(ASx) 32 DEFS’ STATEMENT OF UNCONTROVERTED MATERIAL FACTS AND CONCLUSIONS OF LAW 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ISSUE NO. XI Plaintiff’s Fifth Cause of Action for Harassment in Violation of the FEHA on the basis of Disability or Perceived Disability against Defendants fails as a matter of law because Plaintiff cannot establish a prima facie case. Defendants’ Uncontroverted Material Facts 28-29, 32, 34, 43-45, 48-50, 53, 59, 62, 71. ISSUE NO. XII Plaintiff’s Fifth Cause of Action for Harassment in Violation of the FEHA on the basis of Religion against Defendants fails as a matter of law because Plaintiff cannot establish a prima facie case. Defendants’ Uncontroverted Material Facts 28-29, 32, 53- 59, 62, 71. ISSUE NO. XIII Plaintiff’s Fifth Cause of Action for Retaliation in Violation of the FEHA against Defendants fails as a matter of law because she cannot establish a causal link between any protected activity and any adverse employment action. Defendants’ Uncontroverted Material Facts 1-71, 75, 78-80, 83-84. ISSUE NO. XIV Plaintiff’s Sixth Cause of Action for California Business and Professions Code §17200 against Defendant Red Cross fails as a matter of law because Plaintiff’s underlying claims are meritless. Defendants’ Uncontroverted Material Facts 1-84. ISSUE NO. XV Plaintiff’s Seventh Cause of Action for Intentional Misrepresentation [Fraud], Negligent Misrepresentation, and Concealment fails as a matter of law because Plaintiff cannot Case 2:16-cv-07342-GW-AS Document 56-2 Filed 06/19/17 Page 32 of 36 Page ID #:351 CASE NO.: 2:16-cv-07342 GW(ASx) 33 DEFS’ STATEMENT OF UNCONTROVERTED MATERIAL FACTS AND CONCLUSIONS OF LAW 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 establish that Defendants intentionally misrepresented or concealed a material fact with the intent to defraud Plaintiff. Defendants’ Uncontroverted Material Facts 4-7, 38-39, 72-77. ISSUE NO. XVI Plaintiff’s Eighth Cause of Action for Intentional Infliction of Emotional Distress against Defendants fails as a matter of law because there was no extreme or outrageous conduct. Defendants’ Uncontroverted Material Facts 1-84. ISSUE NO. XVII Plaintiff’s Eighth Cause of Action for Intentional Infliction of Emotional Distress against Defendants fails as a matter of law because this claim is barred by workers’ compensation exclusivity. Defendants’ Uncontroverted Material Facts 1-84. ISSUE NO. XIX Plaintiff’s Ninth Cause of Action for Violation of Labor Code against Defendant Red Cross fails as a matter of law because Plaintiff was properly paid all the wages that she was owed. Defendants’ Uncontroverted Material Facts 78-79. CONCLUSIONS OF LAW 1. The Court has jurisdiction over this action pursuant to 36 U.S.C §300105(a)(5). 2. Plaintiff’s Breach of Contract fails because Plaintiff’s alleged promises of indefinite employment are not sufficiently definite to give rise to a contractual duty. These alleged promises are also insufficient to impute any contractual liability. See Ladas v. California State Auto. Assn. (1993) 19 Cal. App. 4th 761, 772. Case 2:16-cv-07342-GW-AS Document 56-2 Filed 06/19/17 Page 33 of 36 Page ID #:352 CASE NO.: 2:16-cv-07342 GW(ASx) 34 DEFS’ STATEMENT OF UNCONTROVERTED MATERIAL FACTS AND CONCLUSIONS OF LAW 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3. Plaintiff’s cause of action for Breach of Covenant of Good Faith and Fair Dealing fails because Plaintiff cannot establish that there was an existence of a contract, Plaintiff cannot establish that vague, optimistic statements of career opportunities at Red Cross created any sort of contractual duty. Racine & Laramie, Ltd. v. Department of Parks & Recreation (1992) 11 Cal.App.4th 1026, 1031-1032. 4. Plaintiff’s wrongful termination claim fails because Plaintiff’s underlying claims are meritless. Tameny v. Atlantic Richfield Co. (1980) 27 Cal. 3d 167, 172; Carter v. Escondido Union High School Dist. (2007) 148 Cal.App.4th 922, 934-935. 5. Plaintiff’s Violation of California Constitution claim fails because is it not a cognizable claim, as it is not self-executing and affords no independent basis for relief. See Himaka v. Buddhist Churches of America (N.D. Cal. 1995) 919 F. Supp.332 (Article 1, Section 8 of California Constitution provision is not elf-executing does not by itself create a cause of action to redress private employment discrimination.) 6. Plaintiff’s claim for discrimination and retaliation against Defendant Nebbitt based on age, ancestry, color, ethnicity, race, gender, disability, perceived disability, religion, needing family care or medical leave, needing a good faith interactive process to evaluate her claimed disability and for needing accommodation fails because Defendant Nebbitt cannot be individually liable for discrimination or retaliation under the FEHA. See Reno v. Baird (1998) 18 Cal.4th 640, 663 (holding a supervisor may not be held individually liable for employment discrimination, even if the employer is held liable for that supervisor’s conduct on respondeat superior principles, explaining that “individuals who do not themselves qualify as employers may not be sued under the FEHA for alleged discriminatory acts”); see also Jones v. Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158, 1173 (holding that “the employer is liable for retaliation under section 12940, subdivision (h), but non-employer individuals are not personally liable for their role in that retaliation”) 7. Plaintiff’s claim for discrimination based on age, ancestry, color, ethnicity, race, gender, disability, perceived disability, religion, needing family care or medical Case 2:16-cv-07342-GW-AS Document 56-2 Filed 06/19/17 Page 34 of 36 Page ID #:353 CASE NO.: 2:16-cv-07342 GW(ASx) 35 DEFS’ STATEMENT OF UNCONTROVERTED MATERIAL FACTS AND CONCLUSIONS OF LAW 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 leave, needing a good faith interactive process to evaluate her claimed disability and for needing accommodation fails because Plaintiff cannot establish a causal link between her membership in any protected class and her lay-off, and she was laid-off for a legitimate non-discriminatory business reason. Morgan v. Regents of University of Cal. (2000) 88 Cal.App.4th 52, 69; McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 802-04. 8. Plaintiff’s harassment on the basis of age, ancestry, color, ethnicity, race, gender, disability, perceived disability, religion, needing family care or medical leave, needing a good faith interactive process to evaluate her claimed disability and for needing accommodation claim fails because the alleged conduct she complains of was not severe and pervasive. Guthrey v. State of California (1998) 63 Cal.App.4th 1108, citing Fisher v. San Pedro Peninsula Hosp. (1989) Cal.App.3d 590, 608-610. 9. Plaintiff’s retaliation claim failed because Plaintiff cannot not establish a causal link between her lay-off and any protected activity, and she was terminated for a legitimate non-discriminatory business reason. Morgan v. Regents of University of Cal. (2000) 88 Cal.App.4th 52, 69; McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 802-04. 10. Plaintiff’s Business & Professions Code § 17200 et seq. (“UCL”) § 17200 et seq. fails because the statutory claims upon which Plaintiff relies to support her derivative UCL § 17200 claim are meritless. Business & Professions Code § 17200 et seq. (“UCL”) § 17200 et seq.; Farmers Ins. Exchange v. Sup. Ct. (1992) 2 Cal.4th 377, 383; In Price v. Starbucks Corp. (2011) 192 Cal.App.4th 1136, 1147. 11. Plaintiff’s intentional misrepresentation (fraud), negligent misrepresentation, and concealment claim fails because Plaintiff cannot establish that Defendants intentionally misrepresented or concealed a material fact with the intent to defraud Plaintiff. Cal. Civ. Code § 1710; Lazar v. Sup. Ct. (Rykoff-Sexton, Inc.)(1996) 12 Cal.4th 631, 638; Marketing West, Inc. v. Sanyo Fisher (USA) Corp. (1992) 6 Cal.App.4th 603, 612-613. /// Case 2:16-cv-07342-GW-AS Document 56-2 Filed 06/19/17 Page 35 of 36 Page ID #:354 CASE NO.: 2:16-cv-07342 GW(ASx) 36 DEFS’ STATEMENT OF UNCONTROVERTED MATERIAL FACTS AND CONCLUSIONS OF LAW 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12. Plaintiff’s intentional infliction of emotional distress claim fails because Plaintiff cannot establish that Defendants engaged in extreme or outrageous conduct Davidson v. City of Westminster (1982) 32 Cal.3d 197, 209. 13. Plaintiff’s intentional infliction of emotional distress claim fails because it is barred by workers’ compensation exclusivity. Cal. Lab. Code, § 3600 et seq.; see, e.g., Shoemaker v. Myers (1990) 52 Cal.3d 1, 25 (“Even if such conduct may be characterized as intentional, unfair or outrageous, it is nevertheless covered by the workers’ compensation exclusivity provisions.”). 14. Plaintiff’s Labor Code claim fails because Plaintiff has been properly paid all of the wages she is owed, nor has she identified which section of the Labor Code she believes Defendants have violated. Dated: June 19, 2017 JACKSON LEWIS P.C. By: /s/ Theresa M. Marchlewski Theresa M. Marchlewski Ellen E. Cohen Attorneys for Defendants AMERICAN NATIONAL RED CROSS, AMERICAN RED CROSS OF GREATER LOS ANGELES and AUSANTA NEBBITT 4847-5839-4442, v. 1 Case 2:16-cv-07342-GW-AS Document 56-2 Filed 06/19/17 Page 36 of 36 Page ID #:355 CASE NO.: 2:16-cv-07342 GW(ASx) 1 [PROPOSED] ORDER 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA XOCHITL NISBET, Plaintiff, v. AMERICAN NATIONAL RED CROSS; AMERICAN RED CROSS OF GREATER LOS ANGELES; AUSANTA NEBBITT; and DOES 1 through 100, Defendants. Case No.: 2:16-cv-07342 GW(ASx) [PROPOSED] ORDER GRANTING DEFENDANTS AMERICAN NATIONAL RED CROSS AND AUSANTA NEBBITT’S MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT [F.R.C.P. Rule 56] [Filed concurrently with Notice of Motion; Memorandum of Points and Authorities; Statement of Uncontroverted Material Facts and Conclusions of Law; Declarations of and Exhibits in Support of Motion] Date: July 17, 2017 Time: 8:30 a.m. Place: Courtroom 9D State Complaint File: August 30, 2016 Pretrial Conference: August 17, 2017 Trial: August 29, 2017 This action came on for hearing before the court on July 17, 2017, 2017, the Honorable George H. Wu, District Judge presiding, on the Motion for Summary Case 2:16-cv-07342-GW-AS Document 56-3 Filed 06/19/17 Page 1 of 4 Page ID #:356 CASE NO.: 2:16-cv-07342 GW(ASx) 2 [PROPOSED] ORDER 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Judgment, or in the Alternative Summary Adjudication, of Defendants American National Red Cross and Ausanta Nebbitt (“Defendants”) against Plaintiff Xochitl Nisbet (“Plaintiff”). The parties appeared through their respective counsel of record. After considering the moving and opposing papers, the argument of counsel and all other evidence and matters presented to the Court: IT IS HEREBY ORDERED: Defendants’ Motion for Summary Judgment is GRANTED as follows: ISSUE NO. I: Plaintiff’s First Cause of Action for Breach of Contract against Defendants fails as a matter of law because there was no enforceable contract. (UMF 1, 4-11, 39, 60, 72, 74-77, 81-82). ISSUE NO. II: Plaintiff’s Second Cause of Action for Breach of Implied Covenant of Good Faith and Fair Dealing Fails as a matter of law because Plaintiff cannot establish that there was a contractual duty upon which this claim is based. (UMF 1, 4-11, 39, 60, 72, 74-77, 81-82.) ISSUE NO. III: Plaintiff’s Third Cause of Action for Wrongful Termination fails as a matter of law as Plaintiff cannot establish a prima facie case. (UMF 1-72, 74-76, 79- 80, 83-84). ISSUE NO. IV: Plaintiff’s Fourth Cause of Action for Violation of California Constitution fails as a matter of law because it is not a cognizable claim. ISSUE NO. V: Plaintiff’s Fifth Cause of Action for Discrimination and Retaliation in Violation of FEHA against Defendant Nebbitt fails because there is no individual liability for discrimination or retaliation. ISSUE NO. VI: Plaintiff’s Fifth Cause of Action for Discrimination in Violation of FEHA on the basis of Age, Ancestry, Color, Ethnicity, Race, Gender, Disability, Perceived Disability, Religion, Need for Family Care or Medical Leave, Need for Good Faith Interactive Process or Accommodation because Plaintiff cannot establish a prima facie case. (UMF 1-71, 75, 78-80, 83-84) Case 2:16-cv-07342-GW-AS Document 56-3 Filed 06/19/17 Page 2 of 4 Page ID #:357 CASE NO.: 2:16-cv-07342 GW(ASx) 3 [PROPOSED] ORDER 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ISSUE NO. VII: Plaintiff’s Fifth Cause of Action for Discrimination in Violation of FEHA on the basis of Age, Ancestry, Color, Ethnicity, Race, Gender, Disability, Perceived Disability, Religion, Need for Family Care or Medical Leave, Need for Good Faith Interactive Process or Accommodation because Defendant RED CROSS had a legitimate non-discriminatory business reason for Plaintiff’s lay-off. (UMF 1-7, 13-26, 60-70, 83-84). ISSUE NO. VIII: Plaintiff’s Fifth Cause of Action for Harassment in Violation of the FEHA on the basis of Age against Defendants fails as a matter of law because Plaintiff cannot establish a prima facie case. (UMF 28-29, 32, 53, 59, 62, 71) ISSUE NO. IX: Plaintiff’s Fifth Cause of Action for Harassment in Violation of the FEHA on the basis of Ancestry, Color, Ethnicity or Race against Defendants fails as a matter of law because Plaintiff cannot establish a prima facie case. (UMF 28-29, 32, 51- 53, 59, 62, 71). ISSUE NO. X: Plaintiff’s Fifth Cause of Action for Harassment in Violation of the FEHA on the basis of Gender against Defendants fails as a matter of law because Plaintiff cannot establish a prima facie case. (UMF 28-29, 32, 34-37, 40-42, 51, 53, 59, 62, 71.) ISSUE NO. XI: Plaintiff’s Fifth Cause of Action for Harassment in Violation of the FEHA on the basis of Disability or Perceived Disability against Defendants fails as a matter of law because Plaintiff cannot establish a prima facie case. (UMF 28-29, 32, 34, 43-45, 48-50, 53, 59, 62, 71). ISSUE NO. XII: Plaintiff’s Fifth Cause of Action for Harassment in Violation of the FEHA on the basis of Religion against Defendants fails as a matter of law because Plaintiff cannot establish a prima facie case. (UMF 28-29, 32, 53- 59, 62, 71.) ISSUE NO. XIII: Plaintiff’s Fifth Cause of Action for Retaliation in Violation of the FEHA against Defendants fails as a matter of law because she cannot establish a causal link between any protected activity and any adverse employment action. (UMF 1- 71, 75, 78-80, 83-84). Case 2:16-cv-07342-GW-AS Document 56-3 Filed 06/19/17 Page 3 of 4 Page ID #:358 CASE NO.: 2:16-cv-07342 GW(ASx) 4 [PROPOSED] ORDER 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ISSUE NO. XIV: Plaintiff’s Sixth Cause of Action for California Business and Professions Code §17200 against Defendant RED CROSS fails as a matter of law because Plaintiff’s underlying claims are meritless. (UMF 1-84) ISSUE NO. XV: Plaintiff’s Seventh Cause of Action for Intentional Misrepresentation [Fraud], Negligent Misrepresentation, and Concealment fails as a matter of law because Plaintiff cannot establish that Defendants intentionally misrepresented or concealed a material fact with the intent to defraud Plaintiff. (UMF 4- 7, 38-39, 72-77) ISSUE NO. XVI: Plaintiff’s Eighth Cause of Action for Intentional Infliction of Emotional Distress against Defendants fails as a matter of law because there was no extreme or outrageous conduct. (UMF 1-84) ISSUE NO. XVII: Plaintiff’s Eighth Cause of Action for Intentional Infliction of Emotional Distress against Defendants fails as a matter of law because this claim is barred by workers’ compensation exclusivity. (UMF 1-84) ISSUE NO. XVIII: Plaintiff’s Ninth Cause of Action for Violation of Labor Code against Defendant RED CROSS fails as a matter of law because Plaintiff was properly paid all the wages that she was owed. (UMF 78-79) Dated: ____________________ _____________________________ HONORABLE GEORGE WU UNITED STATES DISTRICT COURT JUDGE 4835-4196-2310, v. 1 Case 2:16-cv-07342-GW-AS Document 56-3 Filed 06/19/17 Page 4 of 4 Page ID #:359
