Ramirez-Castellanos v. Nugget Market, Inc.

[8] 9 UNITED STATES DISTRICT COURT 10 EASTERN DISTRICT OF CALIFORNIA [11] 12 JIMMY DAVID RAMIREZ- No. 2:17-cv-01025-JAM-AC CASTELLANOS and FRANCISCO 13 JAVIER GOMEZ ESPINOZA, 14 Plaintiffs, ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT NUGGET 15 v. MARKETS’ MOTION FOR SUMMARY JUDGMENT 16 NUGGET MARKET, INC. DBA NUGGET MARKETS AND ONE STOP 17 SERVICES DBA ONE STOP SOLUTION, AND DOES 1-10, [18] Defendants. [19] 20 Jimmy David Ramirez-Castellanos (“Ramirez-Castellanos”) and 21 Francisco Javier Gomez Espinoza(“Espinoza”) (collectively 22 “Plaintiffs”) sued their former employers, Defendants Nugget 23 Market, Inc., dba Nugget Markets (“Nugget”), One Stop, and Issa 24 Quara, for allegedly discriminating and retaliating against them 25 based on their Latino national origin. First Amend. Compl. 26 (“FAC”), ECF No. 45. Defendant Nugget now moves for summary 27 judgment, Mot. Summ. J. (“Mot.”), ECF No. 92. Plaintiffs oppose 28 this Motion. Opp’n, ECF No. 102. For the reasons set forth 1 below the Court GRANTS in part and DENIES in part Defendant’s 2 motion for summary judgment.1 [3] 4 I. FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND 5 Plaintiffs bring this action against Defendant Nugget for 6 alleged employment discrimination based on their Latino origin 7 under Title VII of the Civil Rights Act of 1964, 42 U.S.C § 1981, 8 California’s Fair Housing and Employment Act (“FEHA”), and common 9 law prohibitions on wrongful discharge. FAC at 1-2. 10 A. Plaintiffs’ Employment 11 Plaintiff Espinoza is an immigrant from Mexico and does not 12 speak English fluently. Opp’n at 1 n.1. He worked for Nugget 13 from 2006 to 2008, and then returned in 2011 as a janitorial 14 associate. Mot. at 2. Nugget promoted him to night stock crew 15 associate in November 2014. 16 Nugget contracted with Defendant Quarra and his janitorial 17 companies—One Stop and Building Maintenance Group (“BMG”)—for 18 floor cleaners. Opp’n at 2. Around the same time Espinoza was 19 promoted, One Stop’s supervisor hired Ramirez-Castellanos to work 20 exclusively at Nugget as a night-shift floor cleaner. Id. 21 Ramirez-Castellanos is an immigrant from El Salvador and also 22 does not speak English fluently. Id. at 2 n.3 23 Because Ramirez-Castellanos was hired by One-Stop, the 24 Parties dispute whether he was employed by Nugget. Defendant 25 maintains it had generally no control over him. Mot. at 4. But [26] 27 1 This motion was determined to be suitable for decision without oral argument. E.D. Cal. L.R. 230(g). The hearing was 28 scheduled for April 7, 2020. 1 Plaintiffs contend the opposite. Opp’n at 2. They state 2 Nugget’s maintenance director judged the quality of Ramirez3 Castellanos’ work, instructed him on how to perform his duties, 4 and assigned him tasks, among other things. Id. at 3. 5 B. Alleged Discrimination 6 The Parties also dispute whether Plaintiffs suffered any 7 discrimination on account of their race and national origin. 8 According to Plaintiffs, they took their job seriously and both 9 received positive feedback about their work. Opp’n at 3. 10 However, their enthusiasm waned when Managers Lisset Sanchez and 11 Blake Billings began to make discriminatory remarks about Latinos 12 and other minorities on a nearly daily basis. Id. at 3. 13 According to Defendant, Plaintiffs were not discriminated 14 against and instead were simply performing poorly at work. Mot. 15 at 3-4. Because Manager Sanchez encouraged Plaintiffs to focus 16 on their work, there was friction between them. Id. Thus, 17 Espinoza complained that Sanchez “made him feel stupid” and 18 Ramirez-Castellanos was angry and rude towards her. Id. 19 Moreover, Defendant contends Ramirez-Castellanos did not make 20 Nugget aware that he was allegedly being discriminated against. 21 Id. at 5. 22 C. Reporting Incidents 23 The Parties also dispute whether Plaintiffs reported the 24 alleged discrimination. Plaintiffs contend Ramirez-Castellanos 25 first reported the discrimination to his One Stop manager and to 26 Nugget Grocery Manager Rebecca Reichardt, in April and May 2015 27 respectively. Id. Reichardt allegedly told him he was a liar 28 and to “shut up and go on working, or else.” Id. He continued 1 to report the discrimination to his One Stop Supervisor for the 2 following ten months. Id. But according to Defendant, Ramirez3 Castellanos never reported any discrimination until after his 4 termination. Mot. at 5. 5 The parties agree that Espinoza had two meetings in May and 6 June of 2015 with Nugget management. But they disagree as to 7 the substance of the meetings. Plaintiffs maintain Espinoza met 8 with management on May 2015 because he complained about the 9 discrimination and requested to be transferred to a different 10 store. Id. Since he complained, the managers attempted to 11 manufacture performance issues for Espinoza and gave him his 12 first and only less than positive review. Id. At the meeting, 13 the managers denied his request to transfer, scrutinized his job 14 performance, and tried to convince him he was not being 15 discriminated against. Id. Management told him he was only 16 targeted because he was not “completing what he needs to do.” 17 Id. 18 The harassment allegedly continued so Espinoza had another 19 meeting with the HR director on June 2, 2015. Id. Once again, 20 he claims the managers over scrutinized his work performance 21 rather than focus on the discrimination complaints. Id. They 22 had the maintenance director interpret for him, but Espinoza 23 decided to switch over to his broken English because he could 24 not rely on the selective interpretation. Id. He told them as 25 best he could about the incidents of discrimination and asked 26 once again to transfer stores. Id. But the managers ignored 27 him, and Manager Sanchez kept harassing Espinoza up until she 28 left for medical leave in May 2016. Id. 1 Defendant, on the other hand, contends these meetings were 2 not because of Espinoza’s complaints about discrimination, but 3 rather a result of his poor performance. Mot. at 2. For 4 example, at the May 20, 2015 meeting he said he was slower at 5 stocking shelves because of a language barrier but did not 6 indicate any discrimination. Id. And Nugget only held the June 7 2, 2015 meeting because Espinoza told Manager Billings that 8 Manager Sanchez discriminated against him by “making him feel 9 stupid.” Id. at 3. The maintenance director translated for 10 Espinoza but he did not indicate he was being discriminated 11 against. Id. The meeting focused on helping Espinoza improve 12 his performance, and after the meeting, Nugget coached Sanchez 13 on how to properly give advice to Espinoza. Id. 14 D. Termination of Employment 15 Lastly, the parties also dispute Plaintiffs’ termination of 16 employment at Nugget. According to Plaintiffs, Ramirez17 Castellano was fired around December 2015 because Nugget 18 threatened to terminate their contract with One Stop if Nugget 19 did not fire him. Opp’n at 7. Espinoza, on the other hand, 20 worked until June 2016 when he reluctantly left Nugget because he 21 could no longer handle the hostile work environment. Id. 22 Conversely, Defendant contends Ramirez-Castellanos was only 23 fired by One Stop, because of his failure to complete his 24 cleaning duties according to the services contract with Nugget. 25 Mot. at 5. Moreover, Espinoza abandoned his job without ever 26 notifying Nugget that he was leaving. Id. at 3. Defendant 27 contends Espinoza left early one day due to a “family emergency” 28 and never returned. Id. 1 II. OPINION 2 A. Judicial Notice 3 Plaintiffs ask the Court to take judicial notice of the 4 work-sharing agreement between the California Department of Fair 5 Employment and Housing (“DFEH”) and the U.S. Equal Employment 6 Opportunity Commission (“EEOC”), along with four facts in the 7 agreement. See Plf’s Req. for Judicial Notice, ECF No. 103. 8 Defendant does not oppose this request. 9 Under Federal Rule of Evidence 201, a district court may 10 take judicial notice of a fact that is “not subject to 11 reasonable dispute because it can be accurately and readily 12 determined from sources whose accuracy cannot reasonably be 13 questioned.” Fed. R. Evid. 201(b)(2). It is well-established 14 that “a court may take judicial notice of matters of public 15 record.” Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th 16 Cir. 2001). The DFEH and EEOC work-sharing agreement is a 17 matter of public record. As such, other Courts have taken 18 judicial notice of this agreement. See, e.g., Saling v. Royal, 19 No. 2:13-CV-1039-TLN-EFB, 2015 WL 5255367 , at *9 n. 5 (E.D. Cal. 20 Sept. 9, 2015); Hause v. The Salvation Army, No. CV07-5249CAS 21 CWX, 2007 WL 4219450 , at *1 n. 2 (C.D. Cal. Nov. 27, 2007). 22 Since this request is unopposed and since it is proper under 23 Federal Rule of Evidence 201, the Court GRANTS Plaintiffs’ 24 request. 25 B. Evidentiary Objections 26 The Parties raise numerous evidentiary objections in their 27 Opposition and Reply briefs. See ECF Nos. 104, 109-3. This 28 Court has reviewed the parties’ evidentiary objections but 1 declines to individually rule on each one. Since “courts self2 police evidentiary issues on motions for summary judgment,” a 3 formal evidentiary ruling is unnecessary to the determination of 4 these motions. Henry v. Central Freight Lines, Inc., No. 2:165 cv-00280, 2019 WL 2465330 , at * 2 (E.D. Cal. June 13, 2019). 6 C. Legal Standard 7 Summary judgment is appropriate, when the moving party 8 “shows that there is no genuine dispute as to any material fact 9 and the movant is entitled to judgment as a matter of law.” 10 Fed. R. Civ. P. 56(a). The moving party bears the burden of 11 “informing the court of the basis for its motion and identifying 12 [the documents] which it believes demonstrate the absence of a 13 genuine issue of material fact.” Celotex Corp. v. Catrett, 477 14 317, 323 (1986)(internal quotations omitted). A fact is 15 “material” if it “might affect the outcome of the suit under the 16 governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242 , 17 248 (1986). Moreover, “[t]he evidence of the non-movant is to 18 be believed, and all justifiable inferences are to be drawn in 19 his favor.” Id. at 255 . 20 If the moving party meets its initial burden, the burden 21 shifts to the opposing party to establish that “there is a 22 genuine issue for trial.” Id. at 248 . An issue of fact is 23 genuine if “the evidence is such that a reasonable jury could 24 return a verdict for the nonmoving party.” Id. 25 D. Analysis 26 1. Exhaustion of Administrative Remedies 27 Defendant argues Plaintiffs have not exhausted their 28 administrative remedies with respect to their FEHA claims, 1 because they did not obtain Right-to-Sue Notices from the 2 Department of Fair Employment and Housing (DFEH) prior to filing 3 this suit. Mot at 6-7. Plaintiffs argue an administrative 4 error at the DFEH prevented them from obtaining the notices, so 5 they should not be penalized for a mistake they did not commit. 6 Opp’n at 10. 7 To bring a civil action under FEHA, “the aggrieved person 8 must exhaust the administrative remedies provided by law.” 9 Rodriguez v. Airborne Express, 265 F.3d 890, 896 (9th Cir. 10 2001). Accordingly, the employee must file a written charge 11 with DFEH within one year of the alleged unlawful employment 12 discrimination. Cal. Gov’t Code § 12960. If after 150 days 13 from filing the complaint DFEH does not issue a civil action 14 against the employer, it shall notify the employee in writing 15 “that it will use, on request, the right-to-sue notice.” Id. at 16 § 12965(b). If the employee does not make such a request, the 17 DFEH must issue the notice no later than one year after the 18 filing of the complaint. Id. Regardless of how it is obtained, 19 the notice is a “prerequisite to judicial action.” Rojo v. 20 Kliger, 52 Cal. 3d 65, 83 (1990). Moreover, the employee must 21 file a claim for violation of the FEHA within one year of 22 receipt of the right-to-sue notice from the DFEH. Id. at 23 § 12965(d)(1). 24 Plaintiffs Ramirez-Castellanos and Espinoza timely dual 25 filed an administrative charge with the EEOC and DFEH on October 26 3, 2016 and March 14, 2017, respectively. Mot. at 6. 27 Plaintiffs requested and obtained Right-to-Sue Notices from the 28 EEOC on April 19, 2017 and May 9, 2017, respectively. Id. 1 Plaintiffs’ then filed this suit on May 16, 2017. Compl., ECF 2 No. 1. However, they had not yet obtained Right-to-Sue notices 3 from the DFEH—a prerequisite to filing their FEHA claims before 4 this Court. In fact, Plaintiffs only requested their notices 5 from the DFEH in April 2018, after Defendant’s attorney brought 6 the lack of notice to their attention. Mot at 13. The DFEH 7 issued their notices shortly after, stating they did not provide 8 them sooner because of an administrative error. Opp’n at 16. 9 Defendant argues obtaining their notices from the DFEH 10 nearly a year after filing their suit, does not remedy 11 Plaintiffs’ failure to initially meet that exhaustion 12 requirement. Reply. 3. Indeed, although Plaintiffs’ had their 13 EEOC right-to-sue letter prior to commencing this suit, an EEOC 14 notice “does not satisfy the jurisdictional requirement of 15 exhaustion of remedies as to FEHA claims.” Mot. at 7 (quoting 16 Alberti v. City & Council of San Francisco Sheriff’s Dept., 32 17 F. Supp. 2d 1164, 1174 (N.D. Cal. 1998)). Instead, an EEOC 18 notice only satisfies the exhaustion requirements for “action[s] 19 based on Title VII.” Martin v. Lockheed Missiles & Space Co., [20] 29 Cal. App. 4th 1718, 1726 (1994). Accordingly, Plaintiffs 21 needed to have obtained their DFEH notices prior to commencing 22 this suit to properly exhaust their remedies. 23 Moreover, the DFEH’s administrative error does not excuse 24 Plaintiffs’ failure to exhaust administrative remedies. The 25 DFEH was required to issue notices, even if Plaintiffs did not 26 request them, “upon completion of their investigation, and not 27 later than one year after [the charges were filed].” Cal. Gov’t 28 Code § 12965(b). Therefore, the DFEH did err by issuing the 1 notices on April 2018, since it should have issued them by 2 October 2017 and March 2018, a year after the chargers had been 3 filed. But this error is not to blame for Plaintiffs’ failure. 4 Plaintiffs should have requested the notices before they filed 5 suit in May 2017, just as they did with the EEOC. Plaintiffs 6 have not even contended that they ever requested their notices 7 prior to commencing this suit. See Opp’n. Accordingly, 8 Plaintiffs’ reliance on Grant v. Comp. USA, Inc., is misplaced. [9] 109 Cal. App. 4th 637 (2003) (excusing plaintiff’s failure to 10 obtain notice of right to sue, because she filed the suit after 11 the DFEH was required to issue the notice). 12 The Court finds Plaintiffs’ FEHA claims fail as a matter of 13 law, because they did not exhaust their administrative remedies 14 before filing those claims. The Court therefore GRANTS summary 15 judgment on Plaintiffs’ third and sixth causes of action. 16 2. Plaintiff Ramirez-Castellanos’ Employment 17 Defendant argues Plaintiff Ramirez-Castellanos’ claims 18 against Nugget also fail as a matter of law because he was not a 19 Nugget employee. Mot. at 7. Plaintiffs, on the other hand, 20 argue Defendants Nugget and One Stop jointly employed Plaintiff 21 Ramirez-Castellanos. Opp’n 11. 22 a. Applicable Employment Test 23 The parties do not dispute that courts must apply the 24 common-law test, in both Title VII and Section 1981 claims, to 25 determine whether a defendant is a joint employer. Reply at 4 26 n. 2; Opp’n at 11. They do dispute, however, which common law 27 test the Court should adopt. Plaintiffs argue the Court should 28 adopt the common-law agency test adopted by the Ninth Circuit in 1 U.S. Equal Employment Opportunity Commission v. Global Horizons, 2 Inc., 915 F.3d 631 (9th Cir. 2019). Conversely, Defendant 3 argues the Court should not rely solely on that analysis and 4 should instead also consider case law in other circuits. Reply 5 at 10. The Court disagrees. 6 Supreme Court precedent dictates that “the common-law 7 agency test” governs when statutes like Title VII, “do not 8 meaningfully define terms like ‘employer’ and ‘employee.’” 9 Global Horizon, 915 F.3d at 638 . Accordingly, the Ninth Circuit 10 expressly decided “the common-law agency test is the most 11 appropriate one for Title VII purposes.” Id. And while the 12 court did look to the Fifth and Seventh Circuits’ analysis when 13 considering automatic liability of a joint employer, it only did 14 so to expressly adopt that standard. Id. In other words, just 15 as it had expressly decided that in the Ninth Circuit the 16 common-law agency test governs, it also expressly decided that 17 one joint employer is not automatically liable for the actions 18 of the other. Id. This Court is bound by those two 19 conclusions. Accordingly, the Court need not look elsewhere, as 20 Defendant pleads, when analyzing joint employment. As other 21 courts within this circuit have done, this Court will only 22 employ the Ninth Circuit analysis as set-forth in Global 23 Horizons. See e.g., Horn v. Experis US Inc., No. 17-cv-0814, [24] 2019 WL 2868963 , at *6 (E.D. Cal. July 3, 2019), adopted by this 25 court, No. 17-cv-0814, 2019 WL 4955189 (E.D. Cal. Oct 8, 2019); 26 see also Di-az v. Tesla, Inc., No. 3:17-cv-06748, 2019 WL 27 7311990, at *8 (N.D. Cal. Dec. 30, 2019). 28 /// 1 b. Analysis 2 Under the common-law agency test, “the principal guidepost” 3 is the element of control.” Global Horizons, 915 F.3d at 638 . 4 The element of control is “the extent of control that one may 5 exercise over the details of the work of the other.” Id. 6 (quoting Clackamas Gastroenterology Assoc., P.C. V. Wells, 538 7 U.S. 440 , 448 (2003)). Courts consider the following non8 exhaustive list of factors when analyzing control: 9 the skill required; the source of the instrumentalities and tools; the location of the work; the duration of 10 the relationship between the parties; whether the hiring party has the right to assign additional 11 projects to the hired party; the extent of the hired party’s discretion over when and how long to work; the 12 method of payment; the hired party’s role in hiring and paying assistants; whether the work is part of the 13 regular business of the hiring party; whether the hiring party is in business; the provision of employee 14 benefits; and the tax treatment of the hired party. [15] Id. No one factor is decisive; “all of the incidents of 16 the relationship must be assessed and weighed.” Id. 17 Plaintiffs argue Defendant jointly employed Plaintiff 18 Ramirez-Castellanos with One Stop, because Nugget asserted 19 significant control over him. Opp’n at 11. For example, 20 Plaintiff argues: (1) Nugget supervisors and managers determined 21 the quality of and instructed Ramirez-Castellanos’s work; (2) he 22 worked with Nugget employees daily; (3) he rarely communicated 23 with One Stop; (4) Nugget provided most of his cleaning 24 supplies; and (5) Nugget assigned work to him and determined he 25 could no longer work for them. Id. 26 Defendant disputes all of this, while at the same time 27 arguing that there is no genuine issue of material fact. Reply 28 at 7-9. Defendant contends for instance that: (1) Ramirez1 Castellanos communicated with One Stop at least once a day; 2 (2) providing him with cleaning supplies does not support he was 3 joint employed by Nugget; (3) not granting him access to the 4 store without a Nugget employee implies he is not a Nugget 5 employee; (4) One Stop hiring him to clean Nugget’s floors, 6 implies it is outside the scope of Nugget employees to clean 7 floors, and (5) the award Nugget gave Plaintiff is just a nice 8 “sentiment,” but not an indication of control. Id. Defendant 9 therefore posits “these facts demonstrate Nugget did not have 10 the level of control necessary for a finding of joint employer 11 status.” Reply at 10. 12 But “[c]redibility determinations, the weighing of the 13 evidence, and the drawing of legitimate inferences from the 14 facts are jury functions,” not functions for this Court. 15 Anderson, 477 U.S. at 257 . Defendant cannot have its cake and 16 eat it too. By disputing Plaintiffs’ facts in a lengthy three17 page analysis, Defendant implicitly admits there are genuine 18 issues of material fact. Whether Defendant jointly employed 19 Plaintiff Ramirez-Castellanos is for a jury to decide. The 20 Court therefore denies summary judgment on Ramirez-Castellanos’ 21 claims on this basis and does not need to address Plaintiffs’ 22 alternative third-party interference argument. See Opp’n at 12. 23 3. Hostile Work Environment 24 Defendant seeks summary judgment on Plaintiffs’ first and 25 second causes of action under Title VII and Section 1981 for 26 hostile work environment. Mot. at 11. Plaintiffs, in their 27 opposition, argue they can establish a prima facie case of 28 hostile work environment. Opp’n at 13. 1 Section 1981 guarantees “all persons” the same right “to 2 make and enforce contracts.” 42 U.S.C. § 1981 . A hostile work 3 environment violates this guarantee by interfering with “the 4 enjoyment of all benefits . . . and conditions of the 5 contractual [employment] relationship.” Manatt v. Bank of 6 America, NA, 339 F.3d 792, 797 (9th Cir. 2003). Similarly, 7 Title VII of the Civil Rights Act of 1964 makes it unlawful for 8 an employer to discriminate against any individual “because of 9 such individual's race, color, religion, sex, or national 10 origin.” 42 U.S.C § 2000e-2. Accordingly, Title VII prohibits 11 an employer from “requiring people to work in a discriminatorily 12 hostile or abusive environment.” Harris v. Forklift Sys., Inc., [13] 510 U.S. 17, 21 (1993). 14 The Ninth Circuit evaluates Section 1981 claims and Title 15 VII claims under the same standard. Manatt, 339 F.3d at 798 . 16 To establish a prima facie hostile work environment under either 17 statute, Plaintiffs must show: (1) they were subjected to verbal 18 or physical conduct because of their race or national origin, 19 (2) the conduct was unwelcome, and (3) the conduct was 20 sufficiently severe or pervasive to alter the conditions of 21 Plaintiffs’ employment and create an abusive work environment. 22 Vazquez v. County of Los Angeles, 349 F.3d 634, 642 (9th Cir. 23 2003). Lastly, even if a hostile working environment exists, 24 “an employer is only liable for failing to remedy harassment of 25 which it knows or should know.” Id. The Court addresses each 26 factor in turn. 27 a. Statute of Limitations 28 When addressing the hostile work environment claim, 1 Defendant makes a brief one-sentence argument that Plaintiffs 2 did not meet the Title VII statute of limitations requirement. 3 Mot. 14. Specifically, Defendant argues Plaintiff Espinoza is 4 barred because he “filed his administrative charge with the EEOC 5 in March 2017, more than one year after he last claims to have 6 experienced harassment at Nugget.” Id. 7 An employee must file an unlawful employment practice with 8 the EEOC within 300 days of the alleged unlawful practice. 42 9 U.S.C § 2000e-5(e)(1); see also National R. R. Passenger Corp. 10 v. Morgan, 536 U.S. 101, 109-10 (2002). “Each discriminatory act 11 starts a new clock for filing charges.” Morgan, 536 at 113. 12 Accordingly, the charge must be filed within the 300-day time 13 period after a discrete discriminator act occurred. Id. 14 Here, Defendant argues Espinoza’s claims are untimely 15 because “the alleged harassing comments” occurred “certainly no 16 later than mid-2016.” Mot. at 13. Plaintiffs contend Defendant 17 subjected Espinoza to “racist comments” until “at least mid18 2016.” Mot. at 14. That the parties dispute the exact timeline 19 is a genuine dispute of fact. Nevertheless, if the last 20 harassing comment occurred in mid-2016, then it falls squarely 21 within the 300-day requirement from March 2017. Accordingly, 22 the Court denies summary judgment on Plaintiff Espinoza’s Title 23 VII claims on this basis. 24 b. Unwelcomed Discriminatory Conduct 25 Plaintiffs argue they were subjected almost daily to “anti26 immigrant insults, jokes, and comments, as well as . . . other 27 harassing conduct.” Opp’n at 14. Plaintiff Espinoza argues 28 this harassment endured throughout his employment from 2011 1 through 2016. Id. Defendant’s maintenance director Martinez, 2 as well as managers Billings and Sanchez, all made “numerous 3 disparaging and racial comments about Latinos.” Id. For 4 instance, Manager Billings said Mexicans are “cholos,” 5 criminals, and that their work is “shit.” Id. at 15. Moreover, 6 Manager Sanchez said Latinos are “garbage,” do bad work, and 7 steal jobs from Americans. Id. 8 Plaintiff Ramirez-Castellanos likewise argues he was 9 subjected to similar racial discrimination. Id. He contends 10 that Nugget’s night managers insulted him, called him names, and 11 mocked his native language, throughout the 10-month period he 12 worked there. Id. For example, Manager Billings asked him if 13 he was “shopping,” “looking for food,” or “eating food” after 14 Ramirez-Castellanos discarded garbage, because that is what 15 “Salvadorian guys do.” Id. He also told him that “Salvadorian 16 guys are used to looking at dirty floors.” Id. And he called 17 him a “cabrón,” a derogatory Spanish word akin to “dumbass.” 18 Id. Manager Billings also intentionally ran into Ramirez19 Castellanos’s shoulder as they walked down the aisle, stating 20 “Salvadorians think they are tough.” Id. Moreover, both 21 Sanchez and Billings told Plaintiff that Salvadorians are “lazy” 22 and “bad workers.” Id. Sanchez even went as far as to accuse 23 him of theft. Id. 24 Defendant does not necessarily dispute that there was such 25 discriminatory conduct—it only disputes that it was ever made 26 aware of this alleged harassment. See Mot. Accordingly, the 27 Court finds in viewing the facts in the light most favorable to 28 Plaintiffs, a jury could find Plaintiffs have shown they were 1 subjected to verbal and physical harassing conduct on account of 2 their race and national origin. Neither party addresses the 3 issue of whether this conduct was “unwelcomed.” But based on 4 the nature of the conduct the Court presumes for purposes of 5 summary judgment that the conduct was unwelcomed. 6 c. Severe and Pervasive 7 To determine whether discriminatory conduct is sufficiently 8 severe or pervasive, the Court must consider the totality of the 9 circumstances, including: “the frequency of the discriminatory 10 conduct; its severity; whether it was physically threatening or 11 humiliating, or a mere offensive utterance; and whether it 12 unreasonably interferes with an employee’s work performance.” 13 Vasquez, 349 F.3d at 642 . Moreover, the working environment 14 must be subjectively and objectively perceived as abusive. 15 Fuller v. City of Oakland, 47 F.3d 1522, 1527 (9th Cir. 1995). 16 Plaintiffs argue the hostile conduct was severe and 17 pervasive because it was “frequent, physically threatening, 18 humiliating, and unreasonably interfered with Plaintiffs’ work 19 performance. Opp’n at 16. The required level of severity or 20 seriousness of the hostile conduct “varies inversely with the 21 pervasiveness or frequency of the conduct.” Nichols v. Azteca 22 Rest. Enters., Inc., 256 F.3d 864 , 872 (9th Cir. 2001). Here, 23 Plaintiffs allege they were frequently harassed by managers 24 Sanchez and Billings for months and years respectively. 25 Therefore, Defendants’ alleged hostile conduct need not be 26 especially severe or serious. The remaining question, however, 27 is whether the conduct was subjectively and objectively 28 perceived as abusive. 1 (i) Objectively Hostile 2 “Whether the workplace is objectively hostile must be 3 determined from the perspective of a reasonable person with the 4 same fundamental characteristics.” Fuller, 47 F.3d at 1527 . 5 Defendant argues Plaintiffs’ cannot show “a reasonable 6 person in [Plaintiffs’] circumstances would have perceived their 7 work environment as hostile.” Mot. 13. However, Defendant does 8 not expand on that contention. See Mot. 13. Instead, it argues 9 Ramirez-Castellanos “never complained to management” about the 10 alleged harassment “until after” he was terminated. Id. It 11 also argues Espinoza no longer suffered harassment after he 12 filed the internal complaint. Id. 13 But the Court finds Plaintiffs have brought forth enough 14 evidence to show a reasonable person in their circumstance would 15 have perceived the managers’ actions as offensive. Plaintiffs 16 argue two other employees found the statements to be offensive. 17 Opp’n at 17. For instance, manager Vicente Osegueda admitted he 18 would find the statements offensive. Id. Moreover, Plaintiffs 19 contend a separate employee also complained about a statement 20 Martinez made, when he threatened Latino employees “that he 21 could find more people because people that clean the floor were 22 illegal and they just came to get these types of jobs.” Id. 23 Thus, a reasonable man in Plaintiffs’ circumstances would have 24 found the hostile conduct “sufficiently severe and pervasive to 25 alter the terms and conditions of his employment.” Nichols, 256 26 F.3d at 873 (finding “the sustained campaign of taunts” directed 27 at Plaintiff “designed to humiliate and anger him,” were 28 sufficiently severe and pervasive). 1 (ii) Subjectively Hostile 2 “Assuming that a reasonable person would find a workplace 3 hostile, if the victim ‘does not subjectively perceive the 4 environment to be abusive, the conduct has not actually altered 5 the conditions of the victim's employment, and there is no Title 6 VII violation.’” Nichols, 256 F.3d at 873. 7 Plaintiffs argue their “discrimination complaints, fear 8 that Sanchez and Billings would physically harm them, and 9 [Plaintiff] Espinoza’s transfer request” are all proof that they 10 subjectively perceived Nugget’s work environment to be hostile. 11 Opp’n at 17. Moreover, Plaintiffs believed the conduct to be so 12 severe that it even impacted their mental health. Id. at 16. 13 Ramirez-Castellanos “became withdrawn, turned away from friends, 14 started to drink more,” and even stopped working out despite his 15 normal routine of practicing martial arts almost daily. Id. 16 Moreover, Plaintiffs’ mental-health experts found the hostile 17 conduct had a significant effect on Espinoza. Opp’n at 16 18 (redacted to protect Plaintiff Espinoza’s privacy). Defendant 19 does not dispute that Plaintiffs subjectively found the conduct 20 to be severe and pervasive. Accordingly, the Court finds 21 Plaintiffs have shown they subjectively found the conduct to be 22 severe and pervasive. Moreover, because Plaintiffs have 23 satisfied their showing for each element, the Court finds in 24 looking at the evidence in the light most favorable to 25 Plaintiffs, that a jury could find they have demonstrated a 26 prima facie case of a hostile work environment claim. 27 /// 28 /// 1 d. Nugget’s Knowledge of Harassment 2 Even though Plaintiffs have proven a prima facie case of a 3 hostile work environment, the Court “must [still] consider 4 whether [Defendant] is liable for the harassment.” McGinest v. 5 GTE Service Corp., 360 F.3d 1103, 1118 (9th Cir. 2004). An 6 employer may be held either vicariously liable for the acts of a 7 supervisor or negligently liable for failing to correct or 8 prevent discriminatory conduct by an employee. Reynaga v. 9 Roseburg Forest Products, 847 F.3d 678, 688-89 (9th Cir. 2017). 10 Here, two managers and a maintenance director were the 11 alleged perpetrators of the hostile work environment. 12 Accordingly, as they are managers and directors, rather than 13 just employees, Defendant is vicariously liable for their 14 behavior. Defendant argues that its management “was never aware 15 of any complaints Ramirez-Castellanos [made] about race or 16 national origin discrimination,” and that Espinoza did not 17 actually complain about discrimination because he qualified his 18 statement by saying Sanchez made him “feel stupid” instead. 19 Mot. at 14. Yet, Plaintiffs have submitted more than enough 20 evidence to the contrary. Plaintiffs firmly maintain that they 21 both made Defendant aware, through its managers, that they were 22 victims of discrimination. Opp’n at 18 n. 13. Instead of 23 addressing those complaints, Plaintiffs maintain Nugget 24 management simply turned a blind eye. Id. Because the Court 25 must view this evidence in the light most favorable to 26 Plaintiffs, the Court finds Plaintiffs have established there is 27 a genuine issue of material fact as to whether Defendant is 28 liable for the hostile work environment. Therefore, the Court 1 DENIES summary judgment on Plaintiffs’ first and second causes 2 of action. 3 4. Race and National Origin Discrimination 4 Defendant seeks summary judgment on Plaintiffs’ supposed 5 claims for race and national origin discrimination. Mot. at 15. 6 However, Plaintiffs do not assert these claims in their 7 Complaint, nor do they make mention of them in their Opposition 8 brief. The Court therefore need not address Defendant’s request 9 for summary judgment on these nonexistent claims. 10 5. Retaliation Claims 11 In their fourth and fifth causes of action, Plaintiffs 12 allege Nugget retaliated against them for complaining to their 13 supervisors that they were victims of racial and national origin 14 discrimination, in violation of Title VII and Section 1981. 15 FAC. Defendant seeks summary judgment on these claims. 16 Title VII prohibits employers from discriminating against 17 an employee because an employee has opposed an unlawful 18 employment practice, “or because he has made a charge, 19 testified, assisted, or participated in any manner in an 20 investigation, proceeding or hearing [related to the unlawful 21 practice].” 42 U.S.C. § 2000e-3(a). To prevail on their 22 retaliation claims, Plaintiffs must establish a prima facie case 23 of retaliation. Ray v. Henderson, 217 F.3d 1234, 1240 (9th Cir. 24 2000). If Plaintiffs establish a prima facie claim, the burden 25 shifts to Defendant “to articulate a legitimate 26 nondiscriminatory reason for its decision.” Id. If Defendant 27 articulates such a reason, the burden shifts back to Plaintiffs 28 to show the reason “was merely a pretext for a discriminatory 1 motive.” Id. 2 a. Prima Facie Case 3 To establish a prima facie case of retaliation, Plaintiffs 4 must show that (1) they engaged in a protected activity; 5 (2) Nugget subjected them to an adverse employment action; and 6 (3) a causal link exists between the protected activity and the 7 adverse action. Ray, 217 F.3d at 1240 . Defendant does not 8 dispute that Plaintiffs engaged in a protected activity when 9 they complained about the alleged discrimination. See Id. at 10 1240 n.3 (finding making an informal complaint with a supervisor 11 is a protected activity). The Court therefore only addresses 12 the last two factors. 13 (i) Adverse Employment Action 14 The Ninth Circuit takes “an expansive view of the type of 15 actions that can be considered adverse employment actions.” 16 Ray, 217 F.3d at 1241 . Moreover, it has adopted the EEOC test, 17 finding an “adverse employment action” is adverse treatment that 18 is “reasonably likely to deter the charging party or others from 19 engaging in protected activity.” Id. at 1246 . 20 Plaintiffs argue Nugget subjected Ramirez-Castellanos to an 21 adverse employment action when they fired him for complaining 22 about being discriminated against. Opp’n at 20. Moreover, they 23 contend Nugget also subjected Espinoza to adverse employment by: 24 (1) not granting his transfer request, (2) unfairly scrutinizing 25 his work, (3) giving him his first negative performance review, 26 and (4) dismissing his discrimination complaints. Id. 20-21. 27 Viewing the evidence in the light most favorable to Plaintiffs, 28 the Court agrees that a jury could find Defendant subjected 1 Plaintiffs to an action of adverse employment. 2 First, termination constitutes an adverse employment 3 action. See Ray, 217 F.3d at 1241 n. 4 (discussing Nidds v. 4 Schindler Elevator Corp., 113 F.3d 912, 912 (9th Cir. 1996). 5 While the question still remains as to whether Ramirez6 Castellanos’ termination was casually linked to his alleged 7 reports of discrimination, there is no doubt that the 8 termination itself constitutes an adverse employment action. 9 Moreover, a jury could also find Espinoza was subjected to 10 adverse employment actions. If proven, “undeserved performance 11 ratings . . . would constitute ‘adverse employment [actions].’” 12 Yartzoff v. Thomas, 809 F.2d 1371, 1376 (9th Cir. 1987). 13 Accordingly, a jury could find Defendant subjected Espinoza to 14 an adverse employment action when it gave him his first and only 15 negative performance review after he complained about 16 discrimination. 17 (ii) Causal Link 18 When there is a close proximity in time between a protected 19 activity and the alleged adverse employment action, the casual 20 link “can be inferred from timing alone.” Thomas v. City of 21 Beaverton, 379 F.3d 802, 812 (9th Cir. 2004). 22 Here, according to Plaintiffs, Ramirez-Castellanos was 23 fired “one day after he complained about Sanchez’s anti24 immigrant remarks.” Opp’n at 21. Moreover, Nugget gave 25 Espinoza his first and only negative performance review “close 26 on the heels of his complaints.” Ray, 217 F.3d at 1244 (finding 27 a causal link exists when the adverse action was “implemented 28 close on the heels of [plaintiff’s] complaints.”). Accordingly, 1 the Court finds the casual link between Plaintiffs’ complaints 2 of discrimination and the adverse employment actions they were 3 subjected to, can be inferred from timing alone. The Court 4 therefore need not address Plaintiffs’ argument in the 5 alternative, that Nugget cannot meet its burden under an 6 affirmative defense to liability. See Opp’n at 21. 7 b. Nondiscriminatory Reason 8 Because when looking at the evidence in the light most 9 favorable to Plaintiffs, they can establish a prima facie 10 retaliation case, the burden shifts to Defendant to provide a 11 nondiscriminatory reason for their alleged adverse actions. 12 Ray, 217 F.3d at 1240 . Defendant repeatedly argues that any 13 adverse employment action was actually a result of Plaintiffs’ 14 poor employment performance. Reply at 11. Therefore, the 15 burden shift backs to Plaintiff to establish that this 16 nondiscriminatory reason is a “pretext[] for retaliation.” Ray, 17 217 at 1244. 18 c. Pretext for Reason 19 A plaintiff may establish that the employer’s alleged 20 explanation is a pretext for impermissible retaliation by 21 “either directly persuading the court that a discriminatory 22 reason more likely motivated the employer or indirectly by 23 showing that the employer’s proffered explanation is unworthy of 24 credence.” Yartzoff, 809 F.2d at 1377 . 25 Plaintiffs argue they can proffer both direct and indirect 26 pretextual evidence to rebut Defendant’s alleged 27 nondiscriminatory reasons. Opp’n at 24-25. For direct 28 evidence, Plaintiffs proffer an email in which a Nugget manager 1 asks a fellow employer to look for performance related conduct 2 to terminate or discipline Espinoza. Id. at 24. As for 3 Ramirez-Castellanos, Plaintiffs introduce a recorded call 4 between Plaintiff and his One Stop supervisor, in which the 5 supervisor explains that Nugget wants him fired because the 6 manager “doesn’t want to hear any more complaints from you or 7 anyone else.” Id. at 25. Lastly, as indirect evidence, 8 Plaintiffs re-establish the evidence they presented in making 9 their prima facie claim. Id. The Court finds this evidence to 10 be compelling. 11 Defendant argues Plaintiffs reliance on the evidence they 12 used in their initial prima facie burden, does not meet the 13 standard to show pretext. Reply at 12. But as stated above, 14 “[e]vidence already introduced to establish the prima facie case 15 may be considered,” and there may even be cases “where [that] 16 initial evidence . . . will suffice to discredit the defendant’s 17 explanation.” Yartzoff, 809 F.2d at 1377 . Moreover, 18 Defendant’s argue the Court should not consider Plaintiff 19 Ramirez-Castellano’s phone recording, because it was illegally 20 obtained. Reply at 12. Defendant’s argue it is therefore 21 impermissible hearsay under the Federal Rules of Evidence. Id. 22 However, the nonmoving party need not “produce evidence in a 23 form that would be admissible at trial in order to avoid summary 24 judgment.” Burch, 433 F. Supp. 2d at 1119. Accordingly, the 25 Court will consider the recording to the extent it establishes 26 there is a genuine dispute of material fact as to this claim. 27 The Court finds in viewing the evidence in the light most 28 favorable to Plaintiffs, that a jury could find Plaintiffs have 1 shown Defendant’s nondiscriminatory reason is pretextual. 2 Moreover, “a grant of summary judgment . . . is generally 3 unsuitable in Title VII cases in which the plaintiff has 4 established a prima facie case because of the elusive factual 5 question of intentional discrimination.” Yartzoff, 809 F.2d at 6 1377. The Court therefore DENIES summary judgment on 7 Plaintiffs’ fourth and fifth causes of action for retaliation. 8 6. Wrongful Termination in Violation of Public Policy 9 Defendant seeks summary judgment on Plaintiff Ramirez10 Castellanos’ seventh cause of action for wrongful termination in 11 violation of public policy. Mot. at 19. As Defendant points 12 out, Plaintiff Ramirez-Castellanos does not respond to this 13 argument in Plaintiffs’ opposition. See generally Opp’n. The 14 Court interprets Ramirez-Castellanos’ failure to oppose this 15 argument as acquiescence of its merit. The Court also finds 16 Defendant’s argument that Ramirez-Castellanos has neglected to 17 clearly articulate the public policy upon which he bases his 18 claim (which is presumably based on FEHA) to be meritorious. As 19 explained above, Raimrez-Castellanos is jurisdictionally barred 20 from bringing a FEHA claim. Summary judgment on this cause of 21 action is GRANTED. [22] 23 III. ORDER 24 For the reasons set forth above, the Court GRANTS Defendant 25 Nugget Markets’ Motion for Summary Judgment on Plaintiffs’ third 26 cause of action for hostile work environment under FEHA and sixth 27 cause of action for retaliation under FEHA. The Court also 28 GRANTS Defendant Nugget Markets’ Motion for Summary Judgment on WAU 2.4 fF VAMOS PAINT NN RU AOI PAY oO Vee 1 Plaintiff Ramirez-Castellanos’ seventh cause of action for common 2 law wrongful discharge; 3 The Court DENIES Defendant Nugget Markets’ Motion for 4 Summary Judgment on Plaintiffs’ first, second, fourth and fifth 5 causes of action for hostile work environment and retaliation 6 | under Title VII and 42 U.S.C. §1981 . 7 IT IS SO ORDERED. 8 Dated: May 27, 2020 kA 10 teiren staves odermacr 7008