Diaz v. Tesla, Inc.

— 1 — — 2 — — 3 — 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA — 6 — 7 DEMETRIC DI-AZ, et al., Case No. 3:17-cv-06748-WHO 8 Plaintiffs, ORDER ON MOTIONS FOR 9 v. SUMMARY JUDGMENT 10 TESLA, INC., et al., Re: Dkt. Nos. 85, 91, 92, 116, 117, 118, 11 Defendants. 119, 120, 124, 125, 131, 135 — 12 — 13 The facts of this racial discrimination and harassment case are as complex and overlapping 14 as the employment structure the defendants have fabricated. According to plaintiffs (and father 15 and son) Owen Diaz and Demetric Di-az, the Tesla, Inc. factory in Fremont, California—where 16 they worked in 2015 and 2016—was a hotbed of racial hostility where they frequently heard the n17 word from supervisors and fellow employees. Owen Diaz brings harassment and discrimination 18 claims against Tesla, CitiStaff Solutions, Inc. (his temporary staffing agency), and nextSource, 19 Inc. (the liaison between Tesla and CitiStaff); Demetric Di-az brings claims only against Tesla.1 20 Before me are the defendants’ motions for summary judgment. Material facts are in 21 dispute whether plaintiffs faced severe and pervasive racial harassment in the workplace and 22 whether Tesla, its staffing agency, and the on-scene liaison are joint employers. Owen Diaz did 23 not rebut defendants’ evidence that he failed to return to work as promised after a leave, so his 24 other employment-related discrimination claims fail. For the reasons set forth below, I will grant 25 the motions in part and deny them in part. This case will proceed to trial. — 26 — — 27 — 1 BACKGROUND 2 A. Relationships between the Defendants 3 Before describing the environment at the Tesla factory that a jury could conclude was 4 hostile in violation of 42 U.S.C. section 1981 , it is necessary to discuss the employment structure 5 Tesla created. I will start with defendant CitiStaff, which admits to being Owen Diaz’s employer. 6 It is a temporary staffing agency that provides contractors to clients for temporary work 7 throughout California, including through a partnership with nextSource. Ledesma Decl. ¶ 2; 8 McGinn Depo. 22:13-15. The application individuals fill out to become CitiStaff employees 9 includes CitiStaff policies, from sexual harassment to job abandonment. De Leon Depo 40:2-15. 10 New employees receive an Employee Handbook containing an anti-harassment policy that “sets 11 forth examples of prohibited conduct including, but not limited to, the use of derogatory 12 comments, statements, or innuendo in the workplace and requires employees to report conduct 13 believed to violate this policy.” Ledesma Decl. ¶ 3. Monica De Leon is the CitiStaff 14 representative for Northern California. She handles onboarding and processes applications to 15 ensure that candidates have “read and signed all [CitiStaff’s] policies.” De Leon Depo. 166:7-14. 16 CitiStaff did not have an employee on-site at the Tesla factory during Diaz’s time there; instead, 17 he and other contractors were told to contact their staffing supervisor with any problems at work. 18 Ledesma Decl. ¶ 2. De Leon tells contractors that if they have questions or concerns they can also 19 call or email her. See De Leon Depo. 163:24-164:8.2 20 Defendant nextSource is a service provider that functions as a liaison between staffing 21 agencies such as CitiStaff and nextSource’s clients, including defendant Tesla. Jackson Depo. 22 16:1-8. When Tesla informs nextSource of its need for a particular service, nextSource contacts 23 its suppliers to request individuals with the skills required to meet that need. Id. at 18:4-13 ; 24 McGinn Depo. 20:2-12, 20:22-25 (noting that agencies recruit and onboard individual workers). — 25 — 2 According to one colloquy during De Leon’s deposition: “Q: Did CitiStaff have a requirement — 26 — that its contractors contact the CitiStaff personnel like yourself when it comes to complaints of harassment? Or can CitiStaff contractors make the complaints directly to the clients? A: So they — 27 — would be able to report to me as well. And if for some reason they can’t get ahold of me and they 1 Once an individual is placed at the Tesla factory, Tesla gives them an orientation, directs their 2 day-to-day activities, and determines their rate of pay. See Diaz Depo. 81:24-82:10; McGinn 3 Depo. 20:19-22. NextSource facilitates “information flow”: it communicates Tesla’s needs or 4 wishes to suppliers, and it provides a technology platform where contract workers enter their 5 timesheets for Tesla’s approval. McGinn Depo. 19:20-20:1, 24:4-23. Once timesheets have been 6 approved, nextSource prepares a consolidated bill for Tesla. Id. at 131:14-132:4 . Tesla pays 7 nextSource, nextSource pays the staffing agencies, and the staffing agencies pay individual 8 contractors. Id. 9 Wayne Jackson was nextSource’s program manager during the time period in question, 10 meaning that he acted as a liaison between Tesla and the contractors at the Tesla factory. Jackson 11 Depo. 15:18-25, 22:2-4, McGinn Depo. 42:19-43:7. When there was an issue with a contracted 12 employee, Jackson alerted the relevant agency along with Tesla.3 See Jackson Depo. 19:12-24 13 (noting that “usually one of the first things [he] did” was to alert the agency), 19:25-20:18 (noting 14 that he would alert Tesla’s HR department), 40:10-13, 68:23-69:13; see also McGinn Depo. 43: 215 7 (indicating that Jackson would “communicate to the -- either party to the client side or to the 16 supplier side, based on the facts”).4 He might gather facts at Tesla’s request and communicate 17 those facts to the staffing agency so that it could investigate. See McGinn Depo. 43:3-7; Jackson 18 Depo. 19:12-24, 24:14-24. Jackson was the highest-level nextSource employee at the Tesla 19 factory when the plaintiffs worked there. McGinn Depo. 43:19-22. 20 While working at Tesla, contractors are expected to comply with its safety rules and anti21 harassment and discrimination policies.5 Quintero Depo. 19:10-25; Heisen Depo. 70:1-9, 72:5-18. 22 When an incident occurs at a Tesla factory, policy requires supervisors to inform their managers 23 and HR. Heisen Depo. 78:1-10, 79:7-15; Marconi Depo. 52:3-6, 118:4-21 (noting that she would — 24 — — 25 — 3 Diaz was aware he could talk to Jackson of nextSource. Diaz Depo. 131:23-132:8. — 26 — 4 Jackson testified that Monica De Leon of CitiStaff “was really very difficult to reach.” Jackson Depo. 96:7-15. Erin Marconi of Tesla HR recalled “having to push on behalf of Tesla to get — 27 — things from [nextSource].” Marconi Depo. 107:10-22. 1 expect Quintero to inform her about racist comments). Upon learning of an incident, Tesla HR 2 would inquire about the contractor’s comfort level and then connect the contractor to the HR 3 representative in the relevant agency. Marconi Depo. 58:3-9. Tesla relied on agencies to conduct 4 investigations involving their employees, but Tesla’s HR department communicated and 5 collaborated with the relevant agency to ensure that the issue was resolved. Heisen Depo. 112:86 18, 170:9-15; Marconi Depo. 59:8-21 (noting that her preference “would not be to interview 7 someone else’s employee, especially not without them present”), 87:20-25 (noting that she would 8 expect the agency to keep her informed on the findings of an investigation). Tesla generally 9 trusted the thoroughness of an agency’s investigation process. See Marconi Depo. 59:1-5 (“-- if 10 West Valley investigated it and came back and said there wasn’t actually an issue, I’m going to 11 believe that West Valley did their investigation thoroughly and if there was something to address, 12 addressed it.”). 13 Tesla has authority to exclude contract employees from the property and to end the 14 contract with an individual. Heisen Depo. 170:16-22; De Leon Depo. 118:10-20; see De Leon 15 Depo. 110:6-111:19 (testifying, “let’s just say in the case the client tells us that a contractor has 16 violated a harassment policy or any policy, more than likely the client is going to end the person’s 17 assignment”). De Leon did not have the authority to end a CitiStaff employee’s assignment; 18 instead, she would have to follow up with HR. De Leon Depo. 160:11-16. Only the agency could 19 actually terminate an individual worker. Jackson Depo. 40:17-23 (noting that he could 20 recommend termination, but the final decision rested with the agency). NextSource and Tesla 21 were permitted to issue warnings to CitiStaff employees and give them performance evaluations. 22 De Leon Depo. 65:8-66:1. 23 Various Tesla employees worked with and supervised contract workers during the time 24 period in question. In his role as contract services supervisor, Edward Romero escalated concerns 25 or complaints to the right people. Romero Depo. 88:3:11. Within Tesla, that meant manager 26 Victor Quintero or someone from Human Resources. Id. at 88:16-19 . Where issues involved 27 contract workers, Quintero informed their representative or account manager for them to handle it. 1 B. Plaintiffs’ Employment and Assignments 2 Diaz was recruited and hired on June 2, 2015. On that day, he signed CitiStaff’s sexual 3 harassment policy and abandonment/walk-off policy.6 Diaz Depo. 95:6-21, Ex. 33. He was 4 immediately assigned to work at Tesla’s Fremont, California factory, and he began working as an 5 elevator operator. Diaz Depo. 90:6-11. In that role he loaded heavy material from one floor onto 6 the elevator and then unloaded it onto another floor as part of the construction of cars. Id. at 7 90:14-21; Romero Depo. 68:15-69:8. Tesla provided elevator operators with safety equipment. 8 Quintero Depo. 21:16-25. All individuals who worked in the Tesla factory had to take safety 9 orientation class. Quintero Depo. 19:22-25. Diaz’s first supervisor was Tom Kawasaki, who 10 promoted him; later he reported to Edward Romero. Diaz Depo. 81:5-6, 18-20; see Kawasaki 11 Depo. 63:5-18. 12 On June 24, 2015 Diaz became team lead, meaning that he assumed more responsibility 13 and worked with other departments more often. Romero Depo. 76:7-23. Leads were expected to 14 move product efficiently and responsibly and to have “good communication, a spirit of 15 cooperation, an ability to resolve issues that came along that might impede the movement of 16 materials.” Id. at 78:5-11 . 17 C. Owen Diaz’s Experiences of Racism at the Factory 18 According to Diaz, he frequently experienced racism at the Tesla factory. He testified that 19 two supervisors and around eight to ten employees called him the n-word. Diaz Depo. 55:4-17. 20 He estimated that the two supervisors, one of whom was Ramon Martinez, used the n-word more 21 than 60 times. Id. at 55:18-56:11 . For example, Martinez once said, “I hate you n------s,” and he 22 twice said, “Go back to Africa.” Id. at 63:15-22, 68:7-10 . Diaz also saw graffiti, including the n23 word, inside about four bathrooms. Id. at 48:2-11, 50:15-17 . The following incidents also 24 occurred at the factory. 25 1. July 31, 2015 26 On July 31, 2015 Diaz and that fellow elevator operator Judy Timbreza got into an — 27 — 1 argument and appeared as though they were about to fight. Kawasaki Depo. 42:16-22. Tesla 2 supervisor Tamotsu Kawasaki separated the two and then asked Diaz, Timbreza, and witnesses 3 what had happened.7 Kawasaki Depo. 42:16-22, 81:16-23. Diaz reported that Timbreza called 4 him racial slurs, including the n-word.8 Kawasaki Depo. 42:13-18, 81:24-82:4. Witnesses 5 confirmed that Timbreza had used racial slurs toward Diaz. Id. at 81:24-82:4 . After confirming 6 that Timbreza was the aggressor and that he had behaved inappropriately, Kawasaki sent Timbreza 7 home. Id. at 45:2-15, 82:1-4 . That same day, Kawasaki sent Romero and Quintero an email about 8 the incident. Kawasaki Depo. 37:17-24, 47:22-48:1. Soon after that, Romero came to speak to 9 Kawasaki about the incident. Kawasaki shared all the information he had gathered and then 10 passed responsibility for next steps to Romero. See id. at 47:22-48:10 ; Romero Depo. 152:4-21. 11 Romero determined that a verbal warning was appropriate because (according to Romero) 12 witnesses were not able to confirm what Timbreza had said. Romero Depo. 156:5-21. Several 13 agreed that Timbreza had a “tendency to kid around excessively.” See id.; Organ Decl. Ex. E 14 (contemporaneous email from Romero to Quintero). The warning explained to Timbreza “his 15 need to treat his fellow team members with dignity and respect.” Romero Depo. 162:11-23 16 (quoting an email). The Tesla supervisors agreed that if he engaged in similar conduct, he would 17 be terminated. Id. at 162:19-21 . Diaz did not see Timbreza again after that.9 Diaz Depo. 232:1018 15. 19 2. October 17, 2015 20 On October 17, 2015, Diaz reported to Romero that he had a negative incident with Ramon 21 Martinez, his supervisor at Tesla who was hired by Chartwell, a different staffing agency.10 Diaz 22 Depo. 132:16-24; Organ Decl. Ex. K (email from Diaz to Jackson); see also Kawasaki Depo. — 23 — — 24 — 7 Both Timbreza and Kawasaki were temporary workers employed by a staffing agency other than CitiStaff. See Jackson Depo. 56:10-16. — 25 — 8 Kawasaki also testified that he heard the n-word “thrown around” at the Tesla factory, — 26 — distinguishing between its use “casually” and its use with a certain tone. Kawasaki Depo. 76:7-23. 9 Kawasaki testified that he was not aware of why Timbreza stopped working at Tesla only a few — 27 — days later. See Kawasaki Depo. 92:6-20. 1 65:10-25 (indicating that he had received an email because he was off on the day in question). 2 Martinez got in Diaz’s face with his fists balled up. See Romero Depo. 107:5-17. Jackson of 3 nextSource interviewed both Diaz and Martinez about the incident. Jackson Depo. See 65:2-25, 4 67:2-17. It was his practice to take notes to document interviews and then send them to the 5 relevant agencies.11 Id. at 67:2-17 . Jackson could not recall exactly what actions he took in this 6 case, but he might have spoken with Chartwell or CitiStaff. Id. at 62:1-13 . 7 Tesla HR learned about the incident on October 20. Marconi Depo. 109:1-12. Because in 8 Tesla’s view, the incident involved “all nextSource employees,” it expected nextSource to conduct 9 the investigation. See id. at 109:10-18, 110:1-6 . 10 3. November 5, 2015 11 On November 5, 2015, Diaz got into a verbal dispute with Rothaj Foster, another African 12 American CitiStaff employee assigned to work at Tesla. Diaz Depo. 141:17-19; De Leon Depo. 13 67:17-22. During that dispute Foster, who was being aggressive, said he was going to shoot Diaz 14 and threatened Diaz’s car. Id. at 141:20-21 ; De Leon Depo. 139:1-5. Diaz reported the incident to 15 Romero. Diaz Depo. 141:22-23. After Romero had corroborated the incident, he called security 16 and had Foster removed from the Tesla premises to prevent any more problems between him and 17 Diaz. Romero Depo. 199:2-6, 200:14-22; see also Marconi Depo. 116:13-25 (noting that the 18 correct procedure was followed in response to this incident). 19 Diaz did not report the interaction to CitiStaff; instead, CitiStaff learned about it from 20 Jackson of nextSource. De Leon Depo. 163:1-5; see also id. at 163:7-10 (“Q: And why did thy 21 report to you; do you know? A: Since [Diaz] was a CitiStaff contractor, that is why they reported 22 to me as well.”). When De Leon learned about it, she followed up with both Diaz and Foster by 23 phone to understand what had happened.12 See id. at 122:8-123:4 . When De Leon spoke with 24 Diaz, he indicated that he was comfortable going back to work in the same position. De Leon — 25 — — 26 — 11 Although he testified that it was his practice to take notes on his nextSource laptop, Jackson did not have a copy of any notes. Jackson Depo. 67:18-68:11. — 27 — 1 Depo. 139:13-24. When De Leon spoke with Foster, he admitted to raising his voice but denied 2 making any threats.13 De Leon Depo. 140:18-23. Foster’s assignment with Tesla was terminated, 3 and Diaz had no further interactions with him.14 4 4. January 22, 2016 5 On January 22, 2016, Diaz emailed Romero in the morning about an incident that had 6 occurred the previous evening. Organ Decl. Ex. O (email from Diaz). He wrote that as he was 7 working, he saw a drawing on the cardboard bale he was about to move: “It was a picture of a 8 cartoon depicting a black face person with a bone in his hair with the caption under it saying 9 booo.” Id. The image resembled racist cartoons from the 1920s and 1930s, and Diaz understood 10 “Booo” to mean “Jigaboo.” Diaz Depo. 146:6-10, 20-25. He wrote that his “stomach dropped.” 11 He called the recycling team lead and sent him a text of the picture. Diaz wrote that Martinez’s 12 behavior was not new and “because nothing has been done, it seem[ed] that his behavior [was] 13 getting worse.” He attached a picture of the image to the email. 14 Martinez admitted to drawing the picture but said that he was “just playing.” See Romero 15 Depo. 109:16-24, 114:20-115:1. He told Diaz, “You people can’t take a joke.” Diaz Depo. 155:616 7. Quintero of Tesla instructed Romero of Tesla to meet with Martinez and Diaz. Quintero Depo. 17 49:19-22. Chartwell, Martinez’s staffing agency, investigated Diaz’s complaint and interviewed 18 both Martinez and Diaz within a few days of the incident. V. Martinez Decl. ¶¶ 4-7. It placed 19 Martinez on “Corrective Action” from January 26, 2016 to December 31, 2016 and gave him a 20 three-day suspension and a permanent warning. Id. ¶ 8 ; see Quintero Depo. 64:18-65:5 (indicating 21 that the suspension was Jackson’s decision but that he agreed); Jackson Depo. 33:5-10, 88:14-17. 22 Diaz forwarded his email to CitiStaff on the evening of January 22 because he “didn’t want — 23 — — 24 — 13 Foster further told De Leon that he became angry because he felt Diaz, who was “very strong — 25 — and very aggressive,” was being disrespectful toward him and abusing his power as a lead. De Leon Depo. 140:18-141:7. — 26 — 14 Because Foster wanted to keep his job at Tesla, De Leon reached out to nextSource to find out — 27 — whether it would be possible for Foster to continue his assignment and simply be separated from 1 the situation to be covered up.”15 Diaz Depo. 161:11-162:4. De Leon “immediately took it up to 2 HR” and informed her supervisors about it. De Leon Depo. 133:6-17. She then spoke with Diaz 3 and asked him whether he was going to return to Tesla or whether he wanted to be moved to a 4 different department. Id. at 133:21-134:7 . Although Diaz was “upset and a little aggravated,” he 5 said he would stay at Tesla in the same department. Id. De Leon told Diaz that HR would deal 6 with the issue. Id. She also gave Chartwell consent to speak with Diaz. Id. at 134:5-7 . The HR 7 representative told De Leon that what she had done was good and that HR would handle the rest. — 8 — Id. at 136:15-23 . 9 After learning about the January 25 incident, CitiStaff human resources manager Ludivina 10 Ledesma told De Leon that he would investigate it. Ledesma Decl. ¶ 5. After De Leon told her 11 that Chartwell had already investigated and disciplined the alleged harasser, Ledesma concluded 12 that she “did not need to further investigate this complaint against a non-CitiStaff employee.” Id. 13 According to Ledesma, prior to January 22, 2016, CitiStaff was unaware of the issues Diaz had 14 experienced with Martinez or of any problems at the Tesla factory. Id. ¶ 6 . 15 D. Demetric Di-az’s Experiences of Racism at the Factory 16 Demetric Di-az was an employee of West Valley Staffing Group during the time that he 17 worked at Tesla.16 After his training, Di-az began in the day shift and then transitioned to the 18 night shift a few weeks later. Di-az Depo. 101:4-18. 19 Diaz reported to Javier Caballero during the night shift. Id. at 102:4-20 . Caballero 20 harassed him and used the n-word on the daily basis. Id. at 119:18-21 . A few days after Di-az 21 joined the night shift, the team was a little behind for their meal break and Caballero said, “All you 22 n-----s need to hurry the fuck up.” Id. at 170-20-171:3. Another day when Demetric’s father 23 Owen was in his department for lunch, Caballero said, “All you fucking n-----s – I can’t stand you 24 mother fuckers.” Id. at 159:9-160:4 . It was directed to his team of six, three of whom were 25 African American. Id. at 160:19-161:8 . Di-az also saw offensive graffiti in the bathrooms at the — 26 — 15 Jackson also informed Diaz’s staffing agency. Jackson Depo. 31:2-8 (noting that he could not — 27 — remember whether Diaz worked for Chartwell or CitiStaff). 1 Tesla factory. The graffiti had messages like “fuck you, n-----” and “you n-----s don’t belong 2 here.” Id. at 154:4-6 . Di-az stopped using that bathroom. Id. at 154:17-18 . 3 Di-az complained of his treatment on a few occasions. He told Caballero how the 4 language made him feel, and Caballero essentially said, “You’re a temp, and if you don’t like it, 5 you can get fired.” Id. at 161:18-22, 186:19-22 ; see also id. at 170:11-16 (noting that a member of 6 Di-az’s team said there was nothing to do because Caballero was their supervisor). Di-az then 7 reported the statement to Caballero’s supervisor, who did nothing, and finally to someone with 8 Tesla HR. Id. at 162:2-10, 163:5-8 . Di-az also reported issues17 to an individual from West 9 Valley who was onsite at Tesla. Di-az Depo. 74:7-75:1, 75:18-21. That person said that he would 10 investigate, but nothing came of Di-az’s complaint. Id. at 75:19-24 . Di-az did not report the 11 graffiti he saw in the bathroom. Id. at 154:10-18 . 12 E. Plaintiffs’ Assignments End 13 1. Owen Diaz 14 There are mixed reports of Diaz’s work performance while at Tesla. Kawasaki never 15 experienced any issues with him as an elevator operator or as a lead. Kawasaki Depo. 63:5-18 16 (noting that he would not have recommended Diaz for the lead position if he was unprepared). He 17 never heard complaints about Diaz’s conduct. Id. at 63:19-25 . According to Jackson of 18 nextSource, however, “Owen was known as the kind of difficult elevator operator at the plant,” 19 and there were “a lot” of complaints related to him. Jackson Depo. 110:2-13, 112:2-4, 112:2220 113:1 (noting that the problem was Diaz’s “attitude” and that he was “very abrasive” toward 21 coworkers). Jackson testified that Tesla’s safety inspector approached Diaz because he was not 22 wearing his safety vest or the required steel-toed shoes. Jackson Depo. 108:5-10, 109:1-11. Diaz 23 became confrontational with the safety person. Id. at 109:13-25 . Romero also observed that Diaz 24 struggled to get along with some people. Romero Depo. 81:17-24, 84:5-18. Some people did not 25 like the way Diaz spoke to them, and one individual felt Diaz gossiped about him behind his back. 26 See id. at 82:13-84:18 . Other departments also complained about “him not being cooperative, him — 27 — 1 not communicating, shutting down.” Id. at 98:5-16 . 2 In March 2016, Diaz received approval to be away from work from March 4 to March 11 3 because his mother had died. De Leon Depo. 150:12-25; Diaz Depo. 178:7-25. He failed to 4 return to work when he was expected back on March 12. See Diaz Depo. 178:7-25. On March 18, 5 2016, Jackson from nextSource emailed De Leon of CitiSource to let it know Tesla had ended 6 Diaz’s assignment. De Leon Depo. 148:18-22, 149:20-24. 7 When De Leon called Diaz to tell him the news, he was “mad, upset” and “cussing” 8 because he wanted to continue working at Tesla, in part because he was making good money.18 — 9 — Id. at 149:3-11, 153:15-20 . She told him not to return to the Tesla factory. Id. at 149:12-16 . De 10 Leon has since offered Diaz other positions where he could earn $16 per hour, but he has declined 11 them. Id. at 157:11-25 . Diaz remains a registered temporary employee with CitiStaff. Ledesma 12 Decl. ¶ 7. 13 2. Demetric Di-az 14 In October 2015, two months after he began working at Tesla, Di-az reported the factory 15 and learned that his contract had ended and his badge would no longer work. Di-az Depo. 144:1216 17. He did not receive an explanation. Id. at 145:1-6 . Di-az believes he was fired because of his 17 complaints about the racist treatment he experienced. Id. at 190:3-13 . After his threats, Caballero 18 “made sure [Di-az] got fired.” Id. 19 Although Di-az was initially told that he was eligible for another work assignment, his 20 staffing representative stopped returning his calls. Id. at 145:12-23 . His experience at Tesla made 21 Di-az feel as if he lost himself. Id. at 201:13-23 . He felt dehumanized and like less than a man. — 22 — Id. He began eating less and stopped wanting to be around his peers and family. Id. at 202:1223 203:21. 24 LEGAL STANDARD 25 Summary judgment on a claim or defense is appropriate “if the movant shows that there is 26 no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of — 27 — 1 law.” Fed. R. Civ. P. 56(a). In order to prevail, a party moving for summary judgment must show 2 the absence of a genuine issue of material fact with respect to an essential element of the non3 moving party’s claim, or to a defense on which the non-moving party will bear the burden of 4 persuasion at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the movant has 5 made this showing, the burden then shifts to the party opposing summary judgment to identify 6 “specific facts showing there is a genuine issue for trial.” Id. The party opposing summary 7 judgment must present affirmative evidence from which a jury could return a verdict in that 8 party’s favor. Anderson v. Liberty Lobby, 477 U.S. 242, 257 (1986). 9 On summary judgment, the court draws all reasonable factual inferences in favor of the 10 non-movant. Id. at 255 . In deciding the motion, “[c]redibility determinations, the weighing of the 11 evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a 12 judge.” Id. However, conclusory and speculative testimony does not raise genuine issues of fact 13 and is insufficient to defeat summary judgment. See Thornhill Publ’g Co., Inc. v. GTE Corp., 594 14 F.2d 730, 738 (9th Cir. 1979). 15 DISCUSSION 16 The plaintiffs did not oppose defendants’ motions for summary judgment on the following 17 claims: (i) against Tesla, Unruh Civil Rights Act claims (Oppo. Tesla 2); (ii) against nextSource, 18 Bane Act, NIED, IIED, negligent hiring, retention, and supervision, and constructive discharge 19 claims (Oppo. NextSource 5); (iii) against CitiStaff, retaliation claims under Section 1981 and 20 California Labor Code § 1102.5, negligent hiring, retention, and supervision, constructive 21 discharge in violation of public policy (Reply 2, 11-12, 14), and NIED and IIED (October 23, 22 2019 hearing). The motions for summary judgment on those claims are GRANTED. 23 As relevant for this Order, the following remains. Owen Diaz brings claims under section 24 1981 against all three defendants. He brings Ralph Act claims against nextSource and CitiStaff 25 and Bane Act claims against CitiStaff. Demetric Di-az asserts various causes of action only 26 against Tesla, which moves for summary judgment on his claim for punitive damages. 27 I. SECTION 1981 CLAIMS 1 private contracts. Runyon v. McCrary, 427 U.S. 160, 168 (1976). CitiStaff and nextSource raise 2 several challenges to Diaz’s section 1981 claims, chief among them that Diaz lacks evidence to 3 support a finding that they jointly employed him. Diaz does not challenge defendants’ contention 4 that such a finding is a necessary prerequisite to any finding of liability under section 1981. 5 A. Joint Employment 6 There is no dispute that CitiStaff employed Diaz; the question is whether he has evidence 7 to support a finding that nextSource and Tesla were also his employers.19 Diaz and nextSource 8 first dispute the appropriate test for determining joint employment in this case. NextSource relies 9 on the three formulations of the test set forth in Martinez v. Combs, 49 Cal. 4th 35, 42 (2010), as 10 modified (June 9, 2010), while Diaz puts forth U.S. Equal Employment Opportunity Comm'n v. 11 Glob. Horizons, Inc., 915 F.3d 631, 639 (9th Cir. 2019) (hereinafter Glob. Horizons).20 Diaz 12 criticizes nextSource’s reliance on Martinez, which indeed dealt with the California Labor Code. 13 Oppo. NextSource 19. NextSource responds that the Ninth Circuit has not adopted the Title VII 14 Global Horizons test for Section 1981 claims. Reply 12 n.3. The distinction is not great: similar 15 principles of direction and control animate the tests the parties advance and the cases they cite. 16 The federal common law test from Global Horizons is the correct one to apply, but the cases I rely 17 on here will include analysis under state law insofar as it focuses on direction and control. 18 “[The] general principle—that an individual may be held to have more than one 19 employer in the temporary-staffing context—has long been recognized for the purposes of 20 applying state and federal antidiscrimination laws.” Jimenez v. U.S. Cont'l Mktg., Inc., 41 Cal. 21 App. 5th 189, 197–98 (2019) (internal quotation marks and formatting omitted) (quoting Bradley 22 v. Dep’t of Corr. & Rehab., 158 Cal. App. 4th 1612, 1626 (2008)). Federal courts use a common23 law agency test to determine joint employment “when a statute does not meaningfully define terms 24 like ‘employer’ and ‘employee.’” Glob. Horizons, Inc., 915 F.3d at 639 (citing Clackamas 25 Gastroenterology Assocs., P. C. v. Wells, 538 U.S. 440 , 444–45 (2003)). — 26 — 19 Tesla does not dispute a joint employment relationship for purposes of its motion for partial — 27 — summary judgment. 1 The element of control is the “principal guidepost” in determining whether a joint 2 employment relationship existed. Id. at 638 (internal quotation marks omitted. A non-exhaustive 3 list of factors includes: the skill required; the source of the instrumentalities and tools; the 4 location of the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional 5 projects to the hired party; the extent of the hired party’s discretion over when and how long to work; the method of payment; the hired 6 party’s role in hiring and paying assistants; whether the work is part of the regular business of the hiring party; whether the hiring party is 7 in business; the provision of employee benefits; and the tax treatment of the hired party. — 8 — Id. at 638 (quoting Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 323 (1992). No one factor — 9 — is decisive. Id.; see also Horn v. Experis US Inc., No. 17-cv-0814, 2019 WL 2868963 , at *6 (E.D. — 10 — Cal. July 3, 2019), report and recommendation adopted, No. 17-cv-0814, 2019 WL 4955189 — 11 — (E.D. Cal. Oct. 8, 2019) (finding that the contracting employer exercised joint control that — 12 — employer hired plaintiff, trained her, managed her, directed her day-to-day activities, schedule, — 13 — and assignments, and had the exclusive right to terminate or promote her). — 14 — Even if a joint-employment relationship exists, one employer is not “automatically” liable — 15 — for another’s conduct. Glob. Horizons, 915 F.3d at 641 . “Liability may be imposed for a co16 employer’s discriminatory conduct only if the defendant employer knew or should have known — 17 — about the other employer’s conduct and failed to undertake prompt corrective measures within its — 18 — control.” Id. (internal quotation marks and citation omitted). — 19 — In one case, the Honorable Edward M. Chen of this district concluded that a defendant — 20 — company was not a joint employer where it controlled only a limited area of the plaintiff’s work. — 21 — Field v. Am. Mortg. Exp. Corp., No. 09-cv-5972-EMC, 2011 WL 3354344 , at *8 (N.D. Cal. Aug. — 22 — 2, 2011). There was no genuine dispute of material fact that the company lacked sufficient control — 23 — over the plaintiff’s wages or working conditions.21 Id. at *5-*6. Evidence suggested that the — 24 — company exercised “limited control over certain aspects of the working conditions,” namely by — 25 — administering 401(k) and benefits plans, consulting on HR matters, providing limited training, and — 26 — — 27 — 21 Judge Chen applied the first test from the California Supreme Court case Martinez v. Combs, 49 1 helping to enforce a sexual harassment policy. Id. at *6-*7; see also id. at *4 (noting that the 2 company formally issued paychecks and W-2s, but another company actually paid the wages). 3 This evidence was not enough to establish the requisite control. Id. at *8 . The professional 4 services agreement also confirmed that another entity was responsible for the day-to-day job 5 duties and had the right and obligation to supervise, direct, and control workers. Id. at *5 . 6 1. Whether There is Evidence that NextSource was a Joint Employer 7 NextSource argues that the undisputed material facts show that it lacked direction and 8 control over the conditions of his employment. NextSource MSJ 10. Diaz disagrees, asserting 9 that nextSource exercised a “high degree” of control. Oppo. NextSource 18. He offers the 10 following specifics: (i) nextSource employee Romero supervised him, (ii) he received new 11 assignments, promotions, or terminations at nextSource’s recommendation, (iii) nextSource 12 handled complaints and offered recommendations on next steps, (iv) nextSource disciplined Diaz 13 and his peers on multiple occasions, (v) nextSource maintained the system for hours and 14 remuneration, and (vi) nextSource set Diaz’s pay rates. Diaz also cites the agreement between 15 nextSource and Tesla. Oppo. NextSource 19; see Organ Decl. Ex. D (“Tesla-nextSource 16 Contract”). 17 I will address each of Diaz’s pieces of evidence, beginning with the agreement. It provides 18 that nextSource “will, to the extent applicable, manage, supervise, and provide direction to 19 Supplier Personnel and cause Supplier Personnel to comply with the obligations and restrictions 20 applicable to Supplier Personnel under this Agreement.” Tesla-nextSource Contract § 3.1(b). 21 “‘Supplier Personnel’ means any personnel furnished by [nextSource] to perform any part of the 22 Services, including employees and independent contractors of Supplier, its Affiliates and 23 subcontractors.” Id. § 3.1(a). Under the contract, Tesla has the right to inform nextSource of any 24 personnel who need to be replaced for unsatisfactory performance. Id. § 3.3. This language 25 supports a finding that nextSource was a joint employer. 26 Romero’s supervision: Diaz argues that nextSource employee Romero exercised control 27 over him as his supervisor. NextSource points out that Romero became a Tesla employee in 1 contention at the December 17, 2019 hearing. This evidence does not support a finding of joint 2 employment. 3 Receiving assignments, promotions, terminations at nextSource’s recommendation: Diaz 4 cites two emails from nextSource employees to Tesla employees. In one, a nextSource employee 5 wrote that she thought Diaz “would be a great candidate for the Floor Supervisor position.” Organ 6 Decl. Ex. C. In another, a nextSource employee asked whether Tesla would like to replace Diaz, 7 and later Jackson responded that he would need to be replaced as soon as possible. Id. Ex. U. As 8 Diaz acknowledges, this evidence does not show that nextSource was the final decisionmaker on 9 issues like promotion or termination; however, it does show that nextSource exerted some 10 influence over these decisions. This role supports a finding of joint employment. 11 Handling complaints and proposing next steps: Diaz cites a series of emails from October 12 2015 in which nextSource and Tesla employees addressed Diaz’s confrontation with Martinez. 13 Organ Decl. Ex. G. NextSource does not dispute that it played a role in responding to complaints 14 involving temporary employees, but it argues that its role was to gather information and share it 15 with Tesla and the employees’ agencies. As the evidence below reinforces, there are disputes of 16 fact over the extent of nextSource’s role in the complaint process. 17 Disciplining Diaz and his peers: Diaz asserts that nextSource was involved in his own 18 discipline along with discipline of his peers. Romero gave Timbreza a Verbal Warning (which 19 Diaz asserts was insufficient) when he was still a nextSource employee. Organ Decl. Ex. J. 20 Jackson was involved in determining the discipline Diaz and Martinez received after the October 21 2015 incident.22 See Jackson Depo. 70:8-22, 70:23-71:10. The record suggests that Jackson gave 22 Diaz a written warning after an altercation with another coworker. Organ Decl. Ex. X (emails 23 between Jackson and Romero). Jackson wrote, “They have both been made aware how critical it 24 is for them to provide good customer service to their customers. They have been instructed to 25 follow all direction and follow up with you or myself if they have any issues or concerns. They — 26 — — 27 — 22 The level of Jackson’s involvement is not clear from the record. Although Diaz cites to the 1 both understand that this is their final warning and any further issues will result in termination of 2 their contract.” Organ Decl. Ex. X. This evidence supports a finding of joint employment. 3 System for hours and remuneration: There is no dispute that nextSource provided the 4 technology platform for the input of temporary workers’ hours, but payroll processing does not 5 show control. See Field, 2011 WL 3354344 , at *6 (describing administration of a 401(k) and 6 benefits as “a ministerial task analogous to payroll processing”). 7 Taken as a whole, this evidence is enough to create a triable issue over whether nextSource 8 was Diaz’s joint employer. The Tesla-nextSource agreement obligated nextSource to manage and 9 supervise temporary personnel, and evidence suggests that nextSource did so in a few key 10 respects. Although there is also evidence that nextSource’s role was limited to that of a 11 middleman or a facilitator, disputes of fact prevent me from making this determination as a matter 12 of law. 13 NextSource next argues that even if a joint employment relationship existed, it cannot be 14 liable under Global Horizons because there is no evidence that it “failed to undertake prompt 15 corrective measures within its control.” See Glob. Horizons, 915 F.3d at 641 . But Diaz’s theory 16 of the case is that while there were various responses to the incidents he experienced, those 17 responses were insufficient. Even if a jury agrees with nextSource that its role was limited in 18 certain ways—for example, to making recommendations to Tesla and/or the relevant staffing 19 agency—it could still find that nextSource failed to respond adequately to the pervasive racial 20 harassment Diaz alleges that he experienced. A jury could conclude that nextSource should have 21 taken a more active role in redressing the hostile environment at the factory. Disputes of fact 22 prevent judgment as a matter of law in favor of nextSource. 23 2. Whether There is Evidence that Tesla was a Joint Employer 24 Although Tesla itself does not dispute joint employment for purposes of its motion, 25 CitiStaff argues that there is not enough evidence to support such a finding. Diaz counters with 26 the following: (i) Tesla trained Diaz, expected him to follow its safety policies, and provided 27 tools—including safety equipment—for Diaz’s work; (ii) Tesla employees set Diaz’s work 1 recommend discipline or termination; and (iv) Diaz worked in the factory helping to assemble 2 cars, which is Tesla’s regular business. Oppo. 16. 3 CitiStaff does not meaningfully engage with Diaz’s evidence and argument. See Reply 84 9. Applying the control factors to Tesla’s role in Diaz’s work at the factory, there is evidence to 5 support a finding that Tesla was Diaz’s joint employer. Tesla trained him and provided him with 6 safety and other equipment. Tesla exercised control over Diaz’s his day-to-day work and 7 assignments, gave him promotions, and determined his rate of pay. Finally, Tesla was involved in 8 responding to Diaz’s complaints and disciplining employees, and eventually it terminated Diaz’s 9 assignment. This evidence is enough to send the question of joint employment to a jury. 10 CitiStaff next argues that Diaz lacks evidence to show that it “failed to undertake prompt 11 corrective measures within its control.” See Glob. Horizons, 915 F.3d at 641 . It asserts that (i) it 12 did not know of any incidents other than the cartoon, (ii) Diaz fails to prevent evidence that it 13 should have known of any of the other incidents, and (iii) as to the cartoon, CitiStaff acted 14 promptly. Again, there is evidence to support a verdict in Diaz’s favor. For example, there is 15 evidence suggesting that CitiStaff knew or should have known about more than just the drawing. 16 The record shows that there were open lines of communication between the various entities, and 17 Jackson testified that he routinely contacted the relevant staffing agencies when problems arose. 18 He also testified that De Leon from CitiStaff was difficult to reach; attempts to contact her could 19 be enough to allow a jury to conclude that CitiStaff should have known about the incidents. As far 20 as whether CitiStaff could have done more, it did little or nothing in response to the earlier 21 incidents if it was indeed aware of them. 22 For all of these reasons, there are triable issues over whether nextSource and Tesla jointly 23 employed Diaz. 24 B. Contractual Relationship with NextSource 25 NextSource asserts that Diaz’s claim under section 1981 has a second foundational defect: 26 he was not in a contractual relationship with nextSource. NextSource MSJ 14-15. Diaz argues 27 that he can sue under section 1981 because he was a third-party beneficiary of the contract 1 assignment. Oppo. NextSource 21. 2 “Any claim brought under § 1981 . . . must initially identify an impaired ‘contractual 3 relationship,’ § 1981(b), under which the plaintiff has rights.” Domino’s Pizza, Inc. v. McDonald, — 4 — 546 U.S. 470, 476 (2006). The Supreme Court has recognized the possibility that “a third-party 5 intended beneficiary of a contract may have rights under § 1981.” Id. at 476 n.3. The law of the 6 forum state determines questions of contract under Section 1981, provided that it is not 7 inconsistent with federal law. Judie v. Hamilton, 872 F.2d 919, 923 (9th Cir. 1989) (applying 8 Washington law). Beginning with the written contract, California courts interpret contracts “so as 9 to give effect to the mutual intention of the contracting parties at the time the contract was 10 formed.” Serv. Employees Internat. Union, Local 99 v. Options--A Child Care & Human Servs. 11 Agency, 200 Cal. App. 4th 869, 879 (2011). “A third party may enforce a contract made for his or 12 her benefit or made for the benefit of a class of which he or she is a member.” Serv. Employees 13 Internat. Union, Local 99 v. Options--A Child Care & Human Servs. Agency, 200 Cal. App. 4th 14 869, 878 (2011). While the third-party need not be the “sole or even primary beneficiary,” if their 15 benefit “is only incidental or remote,” they will not be considered a third-party beneficiary. Id. 16 There is no dispute that CitiStaff and nextSource entered into a contract to connect 17 temporary workers with nextSource clients. As a temporary worker with CitiStaff, Diaz was part 18 of the class of people intended to benefit under that contract. Although the temporary workers 19 may not have been the primary beneficiaries, their benefit was more than incidental or remote. 20 Diaz’s section 1981 claim against nextSource can proceed. 21 C. Theories of Liability under Section 1981 22 Diaz raises four theories of liability under section 1981: racial discrimination, retaliation, 23 racial harassment, and failure to prevent. Two survive. 24 1. Racial Discrimination 25 Section 1981 discrimination claims are analyzed using the Title VII burden-shifting 26 analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Surrell v. 27 California Water Serv. Co., 518 F.3d 1097, 1103 (9th Cir. 2008). “Under McDonnell 1 protected class, (2) he was performing the position she held competently, (3) he suffered an 2 adverse employment action, and (4) circumstances . . . give rise to an inference of unlawful 3 discrimination.” Means v. City & Cty. of San Francisco, Dep't of Pub. Health, 749 F. Supp. 2d 4 998, 1004 (N.D. Cal. 2010) (citing Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248 , 253 5 (1981). If Diaz succeeds in this showing, the burden shifts to CitiStaff to “rebut the presumption 6 of discrimination by producing evidence that the plaintiff was rejected, or someone else was 7 preferred, for a legitimate, nondiscriminatory reason.” Texas Dep’t of Cmty. Affairs v. Burdine, — 8 — 450 U.S. 248, 254 (1981). The plaintiff “may defeat summary judgment by offering direct or 9 circumstantial evidence that a discriminatory reason more likely motivated the employer, or that 10 the employer’s proffered explanation is unworthy of credence because it is internally inconsistent 11 or otherwise not believable.” Anthoine v. N. Cent. Ctys. Consortium, 605 F.3d 740, 753 (9th Cir. 12 2010) (analyzing a claim under Section 1983 but using the McDonnell Douglas framework) 13 (internal quotation marks and citation omitted). An opposition based only on “denying the 14 credibility of the defendant’s proffered reason for the challenged employment action” will not 15 succeed. Id. Instead, the plaintiff’s evidence must be “specific and substantial.” Id. (determining 16 that the plaintiff failed to “carry his burden of showing his employer’s explanation was unworthy 17 of credence”). 18 According to both nextSource and CitiStaff, Diaz fails to make out a prima facie case of 19 race discrimination because he cannot show that they subjected him to an adverse employment 20 action.23 CitiStaff MSJ 13; NextSource MSJ 16. As CitiStaff puts it, they “did not discipline, 21 demote, terminate or, in any other way, treat Plaintiff differently than any other employee not in 22 Plaintiff’s protected class.” CitiStaff MSJ 13. But a jury could determine that the defendants 23 were joint employers, and Tesla subjected Diaz to an adverse employment action when it 24 terminated his placement.24 Accordingly, this argument fails. — 25 — 23 CitiStaff does not concede that Diaz was performing his position competently. CitiStaff MSJ — 26 — 13. — 27 — 24 A jury could potentially find that CitiStaff subjected Diaz to an adverse employment action 1 The stronger argument is nextSource’s. Even assuming Diaz can make out a prima facie 2 case, there was a legitimate, nondiscriminatory reason to end his assignment: he failed to show up 3 for work. NextSource MSJ 16. I agree; non-attendance is, on its face, a legitimate reason for 4 termination. There is no dispute that Diaz failed to return to work on the day he said he would. 5 Given this showing by the defendants, the burden shifted to Diaz to offer “specific and 6 substantial” evidence to show that the reason for ending his assignment is pretextual. He has not 7 done so.25 Accordingly, this theory of section 1981 liability fails. 8 2. Retaliation 9 “To establish a prima facie case of retaliation, a plaintiff must demonstrate: (1) a protected 10 activity; (2) an adverse employment action; and (3) a causal link between the protected activity 11 and the adverse employment action.” Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018 , 12 1034–35 (9th Cir. 2006). Temporal proximity between the protected action and the employment 13 decision can give rise to an inference of causation. Id. at 1035 . Retaliation claims can also rely on 14 the McDonnell Douglas burden-shifting framework. Id. 15 Diaz asserts a theory of retaliation under Section 1981 that he was terminated less than two 16 months after reporting the racist drawing incident, which was a protected activity. It fails for the 17 same reasons that the racial discrimination claim fails. The defendants offered a legitimate, 18 nondiscriminatory reason for terminating Diaz’s assignment with Tesla, and Diaz failed to raise a 19 genuine issue of material fact that defendants’ reason was pretextual. 20 3. Racial Harassment 21 To make a prima facie showing of a hostile work environment under section 1981, Diaz 22 will have to prove that: “(1) he was subjected to verbal or physical conduct because of his race, 23 (2) the conduct was unwelcome, and (3) the conduct was sufficiently severe or pervasive to alter 24 the conditions of his employment and create an abusive work environment.” Johnson v. Riverside — 25 — — 26 — 25 At the hearing, Diaz for the first time asserted that his failure to return to work should be considered a constructive discharge. This argument is unpersuasive for several reasons. Diaz — 27 — dropped his claim for constructive discharge in violation of public policy, his amended complaint 1 Healthcare Sys., LP, 534 F.3d 1116, 1122 (9th Cir. 2008) (internal quotation marks and formatting 2 omitted). The environment must be both objectively offensive to a reasonable person in the 3 protected class and subjectively offensive to the plaintiff. Faragher v. City of Boca Raton, 524 4 U.S. 775 , 787 (1998); see Ellison v. Brady, 924 F.2d 872, 878-79 (9th Cir. 1991) (analyzing sex 5 harassment from the perspective of a reasonable woman). “Simple teasing” and “offhand 6 comments” may not be sufficient even where the conduct is “offensive and inappropriate.” 7 Manatt v. Bank of Am., NA, 339 F.3d 792, 798 (9th Cir. 2003). Summary judgment may be 8 appropriate where events, while troubling, occurred over a long span of time. See id. (granting 9 summary judgment where over two-and-a-half years, employees made jokes using the phrase 10 “China man,” ridiculed a mispronunciation, and pulled back their eyes). 11 Both nextSource and CitiStaff challenge Diaz’s ability to make a prima facie showing 12 because according to them, his claim rests on a single event: the racist drawing.26 But Diaz 13 asserts that he experienced harassment throughout his time at the factory, and there are material 14 disputes of fact over its severity and pervasiveness. The Ninth Circuit has noted that the n-word is 15 “perhaps the most offensive and inflammatory racial slur in English, a word expressive of racial 16 hatred and bigotry.” Swinton v. Potomac Corp., 270 F.3d 794, 817 (9th Cir. 2001) (quoting 17 Merriam–Webster’s Collegiate Dictionary 784 (10th ed. 1993)). Diaz testified that he frequently 18 heard the n-word during the ninth months he worked at the Tesla factory, including from 19 supervisors, and he reported one such incident as early as July 31, 2015. Coupled with the other 20 incidents alleged—some of which Diaz theorizes were also race-based—there is a triable issue. 21 In addition, there is evidence that could allow a fact finder to conclude that all of the — 22 — 26 Specifically, CitiStaff argues that it cannot be liable for events about which it was unaware. In — 23 — response to this argument, and throughout his opposition to CitiStaff, Diaz asserts that it instructed him to bring problems to on-site supervisors. See Oppo. 6, 19, 22-23. In support of this — 24 — contention, he takes deposition testimony out of context. When discussing the policy around contractors informing the defendant entities about the need to be away from work at the last — 25 — minute, De Leon testified, “And I would always let all the temp- -- the contractor workers know that, you know, if there’s ever an issue to arise, let me know. Let your supervisors know. If for — 26 — whatever reason you can’t contact your supervisor, let me know. I can get in contact with them, let them know, whatever the case is. Any last-minute issues, you just call in, let me know.” — 27 — De Leon Depo. 151:17-24. Diaz quotes only the bolded portion with none of the surrounding 1 defendants knew or should have known about the allegedly hostile environment at the Tesla 2 factory. The record shows that there were open lines of communication when issues arose. 3 Jackson, the nextSource representative on-side at the Tesla factory, testified that he routinely 4 informed the relevant staffing agencies if there were any problems with temporary employees. 5 Jackson Depo. 19:12-24. Romero testified that he escalated complaints as well. Romero Depo. 6 88:12-22. Jackson himself heard the n-word used in the Tesla factory, although he concluded that 7 its use was not offensive in those instances. Jackson Depo. 141:9-25, 151:1-10. 8 Finally, CitiStaff argues that it is not liable because it can show “(a) that [it] exercised 9 reasonable care to prevent and correct promptly any . . . harassing behavior, and (b) that the 10 plaintiff employee unreasonably failed to take advantage of any preventive or corrective 11 opportunities provided by the employer or to avoid harm otherwise.” See Faragher v. City of 12 Boca Raton, 524 U.S. 775, 807 (1998). Here, too, material disputes prevent summary judgment in 13 favor of CitiStaff. If a jury finds that CitiStaff was aware of prior incidents, or should have known 14 about them, it could conclude that CitiStaff did not exercise reasonable care to prevent and 15 promptly correct the harassment. Even with the racist drawing incident—about which CitiStaff 16 undisputedly knew—a jury could conclude that CitiStaff should have done more than merely 17 adopt the actions of other investigating entities.27 Of course, it could also find that CitiStaff’s 18 approach was reasonable because the alleged harasser was removed from his position. Finally, 19 although the undisputed evidence shows that Diaz declined CitiStaff’s offer to change his 20 placement, a jury could find that his failure to take advantage of this corrective opportunity was 21 not unreasonable. This theory of section 1981 liability survives. — 22 — 23 4. Failure to Prevent 24 Employers have a “statutory obligation to provide a workplace free from [] harassment.” 25 Ellison v. Brady, 924 F.2d 872, 882 (9th Cir. 1991). When incidents of harassment occur, — 26 — 27 On this point, CitiStaff argues that it could not have done more to remedy the problems with — 27 — Martinez because he was not a CitiStaff employee. CitiStaff MSJ 14. But as Diaz contends, a 1 employers should respond in a way that “reasonably calculated to end the harassment.” Id. 2 (internal quotation marks omitted). “[T]he reasonableness of an employer’s remedy will depend 3 on its ability to stop harassment by the person who engaged in harassment.” Id. The success of a 4 claim for failure to prevent harassment or discrimination is dependent on a finding that actionable 5 harassment or discrimination in fact occurred. See Trujillo v. N. Cty. Transit Dist., 63 Cal. App. 6 4th 280, 289 (1998), as modified (May 12, 1998). 7 CitiStaff and nextSource raise several challenges to Diaz’s failure to prevent claim. 8 NextSource MSJ 18. First, nextSource argues that Diaz cannot show a tangible employment 9 action. Second, both CitiStaff and nextSource assert they exercised reasonable care to prevent and 10 respond to harassment. CitiStaff MSJ 15; nextSource MSJ 17-18. Finally, CitiStaff asked Diaz 11 whether he wanted a new assignment after the racist drawing incident, and Diaz declined. 12 If a jury concludes that Tesla, nextSource, and CitiStaff were joint employers of Diaz, it 13 could also find that they failed to meet their joint obligation to provide a workplace free from 14 harassment. Even considering the arguably limited control nextSource and CitiStaff had over 15 some of the employees at the factory, their response to earlier incidents—or lack thereof, 16 according to Diaz—could be considered insufficient to deter future harassment. This theory of 17 liability survives. 18 II. THE RALPH ACT AND THE BANE ACT 19 Diaz brings claims under two state civil rights statutes. The Ralph Civil Rights Act, 20 California Civil Code section 51.7 states that persons within California have the right to be free 21 from any “violence, or intimidation by threat of violence, committed against their persons or 22 property” because of characteristics including race. See Cal. Civ. Code § 51.7 (a); Cal. Civ. Code 23 § 51(e)(6). The Bane Civil Rights Act, California Civil Code section 52.1, prohibits all people 24 from interfering “by threat, intimidation, or coercion . . . with the exercise or enjoyment by any 25 individual or individuals of rights secured by the Constitution or laws of the United States, or of 26 the rights secured by the Constitution or laws of this state.” Cal. Civ. Code § 52.1 (a). 27 Diaz must show the following under section 51.7: “(1) the defendant threatened or 1 plaintiff’s race; (3) the plaintiff was harmed; and (4) the defendant’s conduct was a substantial 2 factor in causing the plaintiff’s harm.” Knapps v. City of Oakland, 647 F. Supp. 2d 1129 , 1167 3 (N.D. Cal. 2009), amended in part (Sept. 8, 2009). Under the Bane Act “speech alone” is not 4 enough, “except upon a showing that the speech itself threatens violence against a specific person 5 or group of persons; and the person or group of persons against whom the threat is directed 6 reasonably fears that, because of the speech, violence will be committed against them or their 7 property and that the person threatening violence had the apparent ability to carry out the threat.” — 8 — Cal. Civ. Code § 52.1 (k). Employers can be vicariously liable for the actions of their employees 9 under this section. Knapps v. City of Oakland, 647 F. Supp. 2d 1129, 1168 (N.D. Cal. 10 2009), amended in part (Sept. 8, 2009) (applying vicarious liability to police officers under section 11 52.1). 12 Diaz’s Ralph and Bane Act claims are based on Martinez’s October 2015 threats of 13 violence. He argues that both nextSource and CitiStaff are vicariously liable for Martinez’s 14 conduct, which harmed him. Oppo. CitiStaff 25-26. But Diaz fails to articulate any viable theory 15 under which the actions of Martinez—a Chartwell employee—could be imputed to either 16 nextSource or CitiStaff under respondeat superior.28 See Oppo. NextSource 27 (arguing only that 17 the defendants “knew about the harassment and failed to take appropriate corrective action, 18 implicitly ratifying Martinez’s conduct”). The motions for summary judgment on the Ralph and 19 Bane Act claims are GRANTED. 20 III. PUNITIVE DAMAGES 21 All three defendants move for summary judgment on the claims for punitive damages. The 22 federal and state standards for punitive damages are similar. “Agency principles limit vicarious 23 liability for punitive damages awards.” Bains LLC v. Arco Prod. Co., Div. of Atl. Richfield Co., — 24 — 405 F.3d 764, 773 (9th Cir. 2005). A corporate employer is not liable for punitive damages based 25 on acts of its employees unless an officer, director, or managing agent (i) knew the employee was 26 unfit and employed him with a conscious disregard for others’ safety, (ii) authorized or ratified the — 27 — 1 wrongful conduct, or (iii) was personally guilty of oppression, fraud, or malice. Cal. Civ. Code § 2 3294(b); see also Kolstad v. Am. Dental Ass’n, 527 U.S. 526, 543 (1999) (quoting similar tests 3 from Second Restatement of Torts). 4 In determining whether someone is in a managerial capacity, “the court should review the 5 type of authority that the employer has given to the employee, the amount of discretion that the 6 employee has in what is done and how it is accomplished.” Kostad, 527 U.S. at 543 . According 7 to the California Supreme Court, managing agents are those employees who “exercise substantial 8 independent authority and judgment over decisions that ultimately determine corporate policy.” 9 White, 21 Cal. 4th at 573. Under federal law, the actions of employees who are only low-level 10 managers may still be imputed to an employer “if the supervisors are made responsible, pursuant 11 to company policy, for receiving and acting on complaints of harassment.” Swinton v. Potomac 12 Corp., 270 F.3d 794, 810 (9th Cir. 2001).29 13 I am not convinced that the defendants are entitled to summary judgment. The disputed 14 nature of the plaintiffs’ harassment claims means that punitive damages could be available. 15 Plaintiffs allege that racial harassment was so pervasive at the Tesla factory that they heard the n16 word on a near-daily basis, including from their supervisors. If a jury credits their evidence that 17 such an environment indeed existed, it could also find that a managing agent necessarily must 18 have known about that environment—and that by failing to correct it, those managing agents 19 ratified the wrongful conduct. The defendants cannot wash their hands of potential liability for 20 punitive damages by painting all the players at issue in this case as low-level managers. 21 IV. MOTIONS TO SEAL 22 A party seeking to seal court records must overcome a strong presumption in favor of the 23 public’s right to access those records. See Ctr. for Auto Safety v. Chrysler Grp., LLC, 809 F.3d 24 1092, 1096 (9th Cir.), cert. denied sub nom. FCA U.S. LLC v. Ctr. for Auto Safety, 137 S. Ct. 38 25 (2016). The Ninth Circuit imposes the “compelling reasons” standard on most motions to seal, — 26 — — 27 — 29 The defendants argue that plaintiffs’ citations to Kolstad and Swinton are inapposite because 1 which requires a court to explain its findings “without relying on hypothesis or conjecture.” Id. at 2 1096–97. Sealing requests must be “narrowly tailored to seek sealing only of sealable material.” 3 Civ. L.R. 79-5(b). Further, “[r]eference to a stipulation or protective order that allows a party to 4 designate certain documents as confidential is not sufficient to establish that a document, or 5 portions thereof, are sealable.” Civ. L.R. 79-5(d)(1)(A). 6 The parties have filed motions to seal information and exhibits associated with: (i) Diaz’s 7 opposition to CitiStaff’s motion, Dkt. No. 92, (ii) nextSource’s motion for summary judgment, 8 Dkt. No. 116, (iii) Tesla’s motion for partial summary judgment, Dkt. No. 118, (iv) Diaz’s 9 opposition to nextSource’s motion, Dkt. No. 124, (v) plaintiffs’ opposition to Tesla’s motion, Dkt. 10 No. 125, (vi) Tesla’s reply, Dkt. No. 131, and (vii) plaintiffs’ opposition to Tesla’s motion to 11 retain confidentiality of documents,30 Dkt. No. 135. Plaintiffs do not seek sealing of the 12 information themselves; instead, they make their requests on behalf of the defendants, who 13 marked information and exhibits as confidential pursuant to the protective order in this case. 14 Civil Local Rule 79-4(e)(1) required the defendants to file a declaration within four days 15 establishing that the designated material referenced above was sealable under Civil Local Rule 7916 5(d)(1)(A). None of the defendants did so.31 Moreover, the defendants’ own motions failed to 17 heed this district’s admonitions that (i) a confidentiality designation under a protective order is 18 insufficient justification for sealing and (ii) requests should be narrowly tailored. See Civ. L.R. 19 79-5(d)(1)(A)-(B). These failures are grounds for me to deny the motions in their entirety and 20 unseal every brief and exhibit in the docket. 21 Instead, I will give the defendants another opportunity. They should note that the 22 compelling justifications standard is high; very little of the information I have reviewed—if any— 23 is sealable. None of the information in this Order is sealable. The defendants should review the 24 Civil Local Rules, Ninth Circuit authority, and my prior orders to understand just what — 25 — — 26 — 30 I denied that motion without prejudice in the minute entry following the December 17, 2019 hearing, noting that I will address any confidentiality issues during the pretrial. See Dkt. No. 136. — 27 — 1 “compelling reasons” and “narrowly tailored” mean. For example, I will not seal general 2 information about investigations into the incidents alleged here, and I will not seal entire exhibits 3 or entire pages of deposition testimony. 4 If the defendants wish that certain narrowly tailored information remain under seal, they 5 shall file the following no later than January 16, 2020. First, they shall submit a single joint table 6 || outlining the information they believe should be sealed. Their table should clearly identify, by 7 docket entry, page number, and line, which redactions they seek and which docket entries that are 8 currently under seal can be unsealed in their entirety. They shall also file declarations from 9 || knowledgeable individuals that detail the harm they or others will suffer if the documents are 10 || made public. Once I have ruled on the defendants’ joint requests, I will order that the appropriate 11 docket entries be unsealed and that the parties submit properly redacted versions of documents as 12 necessary. 13 CONCLUSION 14 As set forth above, the defendants’ motions for summary judgment are GRANTED IN 3 15 || PART and DENIED IN PART. a 16 IT IS SO ORDERED. 3 17 Dated: December 30, 2019 18 . — 19 — Iam H. Orrick 20 United States District Judge — 21 — — 22 — — 23 — — 24 — — 25 — — 26 — — 27 — — 28 —