Judge: Lee W. Tsao, Case: 21NWCV00541, Date: 2023-06-29 Tentative Ruling
Case Number: 21NWCV00541 Hearing Date: June 29, 2023 Dept: C
CASTENADA v.
STARBUCKS CORPORATION
CASE NO.: 21NWCV00541
HEARING: 06/29/23
#10
I.
Defendant STARBUCKS CORPORATION’s Motion for
Summary Adjudication is DENIED in part and GRANTED in part.
II.
Defendant ASHLEY ALLEN’s Motion for Summary
Judgment is GRANTED.
Moving Party(s) to give notice.
This wrongful termination action was filed by Plaintiff
MARIA DEL CARMEN CASTANEDA (“Plaintiff”) on August 25, 2021. Plaintiff alleges
the following relevant facts: “Plaintiff started working for Defendant in or
around September 2011 as a Barista Manager….. Plaintiff’s work performance was
consistently above expectation as she was a top performer according to her
performance reviews.” (Complaint ¶8.) “At the time of her termination, on
September 3, 2020, Plaintiff was around 56 years old, while Defendant hired and
retained predominantly employees in their 20s and 30s. [¶] Plaintiff is
Hispanic and has an accent.[¶] On July 1st, 2020, Ashely Allen [ ]
officially became Plaintiff’s supervisor. Plaintiff had temporarily worked with
Ashley for a few months in 2019. During that time, Ashley had made negative
remarks about Plaintiff’s accent. Ashley, who is Caucasian and in her 30s, was
always hostile towards Plaintiff because of Plaintiff’s national origin/race
and accent and her age, i.e., characteristics that stood out among the
Starbucks employees.” (Complaint ¶¶9-11.) “Before her termination, Plaintiff
had never received a negative performance review and was instead a stellar
employee. Plaintiff believes that Defendant discriminated against her because
of her age, race and national origin and made up nonsensical reasons to
terminate her employment.” (Complaint ¶26.)
Plaintiff’s Complaint asserts the following causes of
action: (1) Waiting Time Penalties; (2) Age Discrimination; (3) Race
Discrimination; (4) Work Environment Harassment; (5) Retaliation (Gov. Code
§12940(h).); (6) Retaliation (Labor Code §246.5); (7) Retaliation (Labor Code
§1102.5); (8) Failure to Prevent Harassment, Discrimination, and Retaliation;
(9) Unfair and Unlawful Business Practices; and (10) Wrongful Termination.
Defendant STARBUCKS CORPORATION (“Starbucks”) moves for
summary adjudication as to the following issues:
·
Plaintiff’s second cause of action for Age
Discrimination fails as a matter of law;
·
Plaintiff’s third cause of action for Race
Discrimination fails as a matter of law;
·
Plaintiff’s fourth cause of action for Work
Environment Harassment fails as a matter of law;
·
Plaintiff’s fifth cause of action for
Retaliation (Gov. Code §12940) fails as a matter of law;
·
Plaintiff’s sixth cause of action for
Retaliation (Labor Code §246.5) fails as a matter of law;
·
Plaintiff’s seventh cause of action for
Retaliation (Labor Code §1102.5) fails as a matter of law;
·
Plaintiff’s eighth cause of action for Failure
to Prevent Harassment, Discrimination, and Retaliation fails as a matter of
law;
·
Plaintiff’s ninth cause of action for Unfair and
Unlawful Business Practices fails as a matter of law because it is derivative
of other causes of action;
·
Plaintiff’s tenth cause of action for Wrongful
Termination in Violation of Public Policy fails as a matter of law; and
·
Plaintiff’s prayer for punitive damages fails
because Starbucks did not act with fraud, oppression, and malice.
Defendant ASHLEY ALLEN (“Allen”) moves for summary judgment.
Only the fourth cause of action for Work Environment Harassment (and
Plaintiff’s prayer for punitive damages) is asserted against Allen.
Plaintiff’s Memorandum in Opposition
In Reply, Defendant Allen argues that this Court should
strike Plaintiff’s Opposition because it exceeds the 20-page limit set forth in
CRC Rule 3.133(d).
“In a summary judgment or summary adjudication motion, no
opening or responding memorandum may exceed 20 pages.” (CRC Rule 3.133(d).)
Plaintiff filed one consolidated 33-page Opposition in
response to the two separate Motions filed by Defendants and Allen. Given the
fact that Defendants’ Motions address some overlapping issues, the Court does
not find that Plaintiff must have necessarily filed two separate Oppositions.
Given the fact that Plaintiff’s Opposition addresses two separate Motions, the
Court exercises its discretion to consider the entirety of Plaintiff’s
oversized memorandum.
Allen’s request to strike Plaintiff’s Opposition is DENIED.
Second Cause of Action – Age Discrimination
To prove a claim of age discrimination, Plaintiff has the
initial burden of making a prima facie showing of each of the following
elements: (1) she was a member of a protected class (age); (2) she was
performing competently in the job she held; (3) she suffered an adverse
employment action, including but not necessarily limited to termination; and
(4) the circumstances suggest a discriminatory motivation for the adverse
employment action. (Guz v. Bechtel Nat., Inc. (2000) 24 Cal.4th 317,
355.) Once Plaintiff makes a prima facie case, then a presumption of age
discrimination arises, and the burden shifts to Starbucks to rebut the
presumption by proving by a preponderance of the evidence that the adverse
employment action was not motivated by age discrimination, but by a legitimate
business reason. (Id. at 355-356.) If Starbucks makes that showing, then
the burden shifts back to Plaintiff to prove by a preponderance of the evidence
that the reason give by Starbucks is re pretext for actual discriminatory
intent. (Id. at 356.)
“An employer moving for summary judgment on a FEHA cause of
action may satisfy its initial burden of proving a cause of action has no merit
by showing either that one or more elements of the prima facie case is lacking,
or that the adverse employment action was based on legitimate nondiscriminatory
factors.” (Soria v. Univision Radio Los Angeles, Inc. (2016) 5
Cal.App.5th 570, 591.) “Once the employer sets forth a nondiscriminatory reason
for the decision, the burden shifts to the plaintiff to produce substantial
responsive evidence that the employer’s showing was untrue or pretextual.” (Id.)
“An employer is entitled to summary judgment if, considering the employer’s
innocent explanation for its actions, the evidence as a whole is insufficient
to permit a rational interference that the employer’s actual motive was
discriminatory.” (Id.)
Starbucks argues that it had a legitimate, nondiscriminatory
reason to terminate Plaintiff—Plaintiff’s admitted falsification of time
records. (Starbucks UMF No. 11, 17-24.) Plaintiff admitted to falsifying labor
codes for nearly one year, in violation of Starbucks’ policies. (Starbucks UMF
Nos. 11-24.)
To defeat summary adjudication, Plaintiff must produce
“substantial responsive evidence that the employer’s showing was untrue or
pretextual.” (Hersant v. California Dept. of Social Svcs. (1997) 57
Cal.App.4th 997, 1004-1005.) The employee cannot meet her burden of
establishing pretext by simply showing that the employer’s reason was wrong or
mistaken, because the issue is not the wisdom of the decision, but whether it
was discriminatory. (Wills v. Sup. Ct. (2011) 195 Cal.App.4th 143,
159-160.) “Rather, the [employee] must demonstrate such weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions in the employer’s proffered
legitimate reasons for its action that a reasonable fact finder could
rationally find them ‘unworthy of credence.’… and hence infer ‘that the
employer did not act for the [asserted] nondiscriminatory reasons.” (Sandell
v. Taylor-Listug, Inc. (2010) 188 Cal.App.4th 297, 314.)
In Opposition, Plaintiff cites evidence of discriminatory animus
based on statements made to or about Plaintiff referencing her age. Plaintiff
submits her own declaration referencing a number of instances wherein Plaintiff
was allegedly treated differently from other employees due to her age and race.
(see e.g., PUMF Nos. 14, 17, 18, 113, 101-116.) Plaintiff claims:
·
Sharon Moy assigned more important
responsibilities related to the management of the store to younger staff
members and hired younger employees for store manger positions. (PUMF Nos.101,
104.)
·
Employees made negative comments about
Plaintiff’s age. (PUMF No. 102.)
·
Sharon Moy separated employees into groups of
older and younger persons and preferred that younger employees undertook organizational
tasks related to the promotion of the store during the Holidays, and assigned
all Hispanic employees to the same group. (PUMF Nos. 107-108.)
·
Before Plaintiff was terminated, Allen had moved
a younger store manager from another district to manage Plaintiff’s store.
(PUMF No. 116.)
The age- based remarks that Plaintiff relies upon present
evidence of some age-based discriminatory animus. “A discharge is not ‘on the
ground of age’ within the meaning of this prohibition unless age is a
‘motivating factor’ in the decision.” (West v. Bechtel Corp. (2002) 96
Cal.App.4th 966, 978.) Here, the Court
finds that Plaintiff has successfully raised an inference that her age was a
motivating factor in her termination where Plaintiff proffers evidence to show
that she was replaced by a younger employee. (PUMF No. 116.) “[T]he fact that a
replacement is substantially younger than the plaintiff is a far more reliable
indicator of age discrimination than is the fact that the plaintiff was
replaced by someone outside the protected class.” (O’Connor v. Consolidated
Coin Caterers Corp. (1996) 517 U.S. 308, 312.) Because Plaintiff has raised
this inference, the Court finds that there is a triable fact at issue in
Plaintiff’s age discrimination claim.
Summary adjudication is DENIED.
Third Cause of Action – Race Discrimination
Plaintiff claims that Starbucks discriminated against her
based on her race (Hispanic). Plaintiff relies on the following evidence:
·
Employees were not allowed to speak Spanish
while working on the floor. (PUMF No. 11.)
·
Allen made negative remarks about Plaintiff’s
accent. (PUMF No. 17.)
·
Allen made demeaning comments about Hispanic
people to Plaintiff. (PUMF Nos. 15 and 113.)
·
Sharon Moy separated employees into groups of
older and younger persons and preferred that younger employees undertook
organizational tasks related to the promotion of the store during the Holidays,
and assigned all Hispanic employees to the same group. (PUMF Nos. 107-108.)
While there may be evidence of discriminatory animus, “proof
of discriminatory animus does not end the analysis of a discrimination claim.
There must also be evidence of a causal relationship between the animus and the
adverse employment action. (DeJung v. Sup. Ct. (2008) 169 Cal.App.4th
533, 550.)
Here, while the alleged statements made by Starbucks about
Plaintiff are direct evidence of a discriminatory animus, there is no
admissible evidence of a causal relationship between the alleged race-based
animus and any adverse employment action. Accordingly, Starbucks motion or
summary adjudication of Plaintiff’s third cause of action is GRANTED.
Fourth Cause of Action (Allen and Starbucks) – Work
Environment Harassment
Defendants Allen and Starbucks both move for summary
adjudication of this issue. As indicated above, the fourth cause of action is
the sole claim asserted against Allen.
“The elements of a cause of action [for age/national origin
harassment] are: (1) [p]laintiff belongs to a protected group; (2) plaintiff
was subject to unwelcome sexual harassment; (3) the harassment complained of
was based on sex; (4) the harassment complained of was sufficiently pervasive
so as to alter the conditions of employment and create an abusive working
environment; and (5) respondeat superior. [Citation Omitted.] To be
sufficiently pervasive harassment, the acts complained of cannot be isolated or
trivial. Rather, there must be a pattern of harassment of a routine or
generalized nature. [Citation Omitted.]” (Guthrey v. State of California
(1998) 63 Cal.App.4th 1108, 1123.) “The factors that can be considered in
evaluating the totality of the circumstances are: (1) the nature of the
unwelcome [ ] acts or works….; (2) the frequency of the offensive encounters;
(3) the total number of days over which all of the offensive conduct occurs;
and (4) the context in which the sexually harassing conduct occurred.” (Fisher
v. San Pedro Hospital (1989) 214 Cal.App.3d 590, 610.) Harassment “cannot
be occasional, isolated, sporadic, or trivial; rather the plaintiff must show a
concerted pattern of harassment of a repeated, routine or a generalized
nature.” (Aguilar v. Avis Rent A Car Sys., Inc. (1999) 21 Cal.4th 121,
130-131.)
Summary adjudication of the fourth cause of action as to
Defendant Allen and Defendant Starbucks is GRANTED. Plaintiff fails to
demonstrate a triable issue of material fact that the alleged incidents were
severe, pervasive, and routine enough to constitute actionable harassment.
Consequently, Allen’s Motion for Summary Judgment is
GRANTED.
Fifth Cause of Action – Retaliation (Gov. Code
§12940(h).)
Gov. Code §12940(h)
makes it an unlawful business practice “[f]or any employer… to discharge,
expel, or otherwise discriminate against any person because the person has
opposed any practices forbidden under this part or because the person has filed
a complaint, testified, or assisted in any proceeding under this part.” “To
establish a prima facie case of retaliation under FEHA, a plaintiff must show
(1) he or she engaged in a ‘protected activity.’ (2) the employer subjected the
employee to an adverse employment action, and (3) a causal link existed between
the protected activity and the employer’s action. [Citations.]” (Nealy v.
City of Santa Monica (2015) 234 Cal.App.4th 359, 380.)
Summary adjudication
is GRANTED. Plaintiff fails to submit sufficient evidence to show that the
proffered reasons for her termination were a pretext for a retaliatory motive.
Plaintiff relies on the following facts: Plaintiff complained to Richard Brazil
about her District Manger’s decision to assign her to Norwalk because of her
age; Plaintiff complained about Ms. Moy’s segregation of store employees into
groups of younger and older people and grouping Hispanic employees together;
Plaintiff tried to contact Partner Resources to discuss Ms. Price’s negative
remarks about Plaintiff’s age and to complain about the fact that Ms. Price
gave younger employees more hours; and Plaintiff opposed requests to write up
and terminate two employees due to their race. Here, Plaintiff fails to support
the contention that her termination was motivated by a retaliatory (as opposed
to an age-based) motivation. For instance, Plaintiff submits no evidence to
show that employees who filed complaints against Starbucks suffered discipline,
as opposed to those who did not file complaints. Timing evidence, although
sufficient to state a prima facie case for retaliation, is insufficient, on its
own, to show pretext.
Sixth Cause of Action – Retaliation (Labor Code §246.5)
“California Labor Code section
248.5 outlines the ‘Enforcement of the Article.’ The explicit language in
subsections (a)(b)(d) and (e) outline the role of the Labor Commissioner or the
Attorney General. Subsection € then sets forth explicitly two distinct
mechanisms for civil enforcement of the HWHF…. [U]nder these provisions, a
civil enforcement action can be brought by the Labor Commissioner, the Attorney
General, or a private litigant, so long as the person or entity brining the
action otherwise complies with the requirements set forth in section 248.5(e).”
(Diaz v. Rescare Inc. (2020) (N.D. Cal., Oct. 26, 2020, No.
4:20-CV-01333 YGR) 2020 WL 6270934, at *2.)
There is no private right of action under Labor Code §246.5.
Summary adjudication is GRANTED.
Seventh Cause of Action – Retaliation Labor Code §1102.5
Labor Code §1102.5(b)
states that “[a]n employer… shall not retaliate against an employee for
disclosing information, or because the employer believes that the employee
disclosed or may disclose information, to a government or law enforcement
agency, to a person with authority over the employee or another employee who
has the authority to investigate, discover, or correct the violation or
noncompliance, or for providing information to, or testifying before, any
public body conducting an investigation, hearing, or inquiry, if the employee
has reasonable cause to believe that that the information discloses a violation
of state or federal statute, or a violation of or noncompliance with a local,
state, or federal rule or regulation, regardless of whether disclosing the information
is part of the employee’s job duties.”
Plaintiff does not allege or indicate that she reported any
actionable workplace violations under this provision. Labor Code §1102.5 does
not pertain to internal reports of workplace violations. (See Carter v.
Escondido High School Dist. (2007) 148 Cal.App.4th 922, 933-935.)
Summary adjudication is GRANTED.
Eighth Cause of Action – Failure to Prevent Harassment,
Discrimination, and Retaliation
Gov. Code §12940(k)
makes it an independent tort for employers “to fail to take all reasonable
steps necessary to prevent discrimination and harassment from occurring.” A
successful claim for Failure to Prevent Harassment, Discrimination, and
Retaliation depends on whether Plaintiff has adequately alleged claims for for Harassment, Discrimination, or
Retaliation. As indicated above, Plaintiff has successfully alleged a claim for
Age-Based Discrimination sufficient to withstand summary adjudication.
Accordingly, summary
adjudication of the eighth cause of action is DENIED.
Ninth Cause of Action – Unfair and Unlawful Business
Practices
To state a claim under §17200, a Plaintiff must
allege whether the conduct complained of is a fraudulent, unlawful or an unfair
business practice. To bring a claim under the fraud prong, Plaintiff must
allege an affirmative misrepresentation, conduct or business practice on the
part of a defendant; or an omission in violation of defendant’s duty to
disclose; and that is likely to deceive members of the public. (Buller v.
Sutter Health (2008) 160 Cal.App.4th 981, 986.) To state a claim under the
unfairness prong, Plaintiff must allege that one or more of Defendant’s
business practices are unfair, unlawful or fraudulent; and the remedy sought is
authorized by law. (Paulus v. Bob Lynch Ford, Inc. (2006) 139
Cal.App.4th 659, 676; see also Kwikset Corp. v. Superior Court (2011) 51
Cal.4th 310, 337.) To state a claim under the unlawful prong, Plaintiff must
allege a violation of law and cite that law. (Graham v. Bank of America,
N.A. (2014) 226 Cal.App.4th 594, 610 [demurrer to SAC which failed to
allege violation of a law was properly sustained without leave to amend].)
Again, as indicated above, Plaintiff’s claim for
Age-Based Discrimination is sufficient to withstand summary adjudication. This
claim is derivative of the Age-Based Discrimination claim. Therefore, Summary
adjudication is DENIED.
Tenth Cause of Action – Wrongful Termination
Plaintiff’s final
cause of action is for wrongful termination in violation of public policy. In
moving for summary adjudication on Plaintiff’s Tameny claim, Starbucks
essentially repeats all of the material facts asserted in connection with other
causes of action. Because Plaintiff has successfully alleged a claim for
Age-Based Discrimination, Starbucks does not meet its initial burden in
establishing an entitlement to summary adjudication as a matter of law.
Summary adjudication
is DENIED.
Plaintiff’s
Evidentiary Objections:
Nos. 1-6. Overruled
Defendants’ Evidentiary
Objections:
Nos. 1-59. Overruled