Leonard v. Tegna, Inc.

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA [10] 11 BOBBIE LEONARD, Case No.: 20cv1612-LL-KSC 12 Plaintiff, ORDER ON DEFENDANT’S 13 v. MOTION FOR SUMMARY JUDGMENT 14 KFMB-TV, LLC, 15 Defendant. [ECF No. 45] [16] 17 Currently before the Court is Defendant’s Motion for Summary Judgment. ECF No. 18 45. The motion has been fully briefed and is suitable for submission without oral argument. 19 ECF No. 60. For the below reasons, the motion is GRANTED IN PART and DENIED 20 IN PART. 21 I. BACKGROUND 22 KFMB-TV, LLC (“KFMB”) is a television station in San Diego. ECF No. 54. In 23 January 2000, KFMB hired Plaintiff as a part-time writer. Plaintiff remained with KFMB 24 until August 2001 when she resigned to pursue opportunities outside of the broadcasting 25 field. Plaintiff rejoined KFMB in November 2011 as a part-time weekend night 26 Assignment Desk Editor. In February 2018, TEGNA Inc. (“Tegna”) purchased KFMB. 27 Between 2017 and April 2019, Plaintiff was not selected for four different full-time 28 positions. Plaintiff was in her sixties. The persons selected for the positions were all at least 1 15 years younger than Plaintiff. On January 22, 2020, Plaintiff accepted an offer of 2 employment with the United States Census Bureau. Her last day with KFMB was on 3 January 23, 2020. She informed the company, “[e]ffective Friday January 24th I quit. Key 4 card & cell phone will be dropped off at the front desk before close of business Friday.” 5 On July 10, 2020, Plaintiff filed a complaint against Tegna in San Diego Superior 6 Court for: (1) “Denial of Promotion in Employment – Age Discrimination (Gov. Code § 7 12940(a));” (2) “Denial of Promotion in Employment – Failure To Prevent Age 8 Discrimination (Gov. Code § 12940(k));” and (3) “Constructive Termination of 9 Employment – Age Discrimination (Gov. Code § 12940(a)).” ECF No. 1-2. On August 17, 10 2020, Tegna filed an answer. ECF No. 1-3. On August 19, 2020, the case was removed to 11 federal court based on diversity of citizenship. ECF No. 1. On November 10, 2020, Plaintiff 12 amended her complaint by replacing Tegna with KFMB as the sole Defendant. ECF No. 13 14. On June 30, 2021, KFMB filed the instant Motion for Summary Judgment on all of 14 Plaintiff’s claims. ECF No. 45. On January 4, 2022, the case was transferred to the below 15 signed district judge. ECF No. 59. 16 II. LEGAL STANDARD 17 A moving party is entitled to summary judgment if “there is no genuine dispute as 18 to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. 19 P. 56 (a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A fact is material if 20 it could affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242 , 248 21 (1986). A dispute of material fact is genuine if the evidence, viewed in the light most 22 favorable to the non-moving party, “is such that a reasonable jury could return a verdict for 23 the non-moving party.” Id. 24 The moving party may make this showing by identifying those portions of the 25 pleadings, discovery, and affidavits that demonstrate the absence of a genuine issue of 26 material fact. Celotex, 477 U.S. at 323 . If a moving party carries its burden of showing the 27 absence of evidence as to an essential element of the opposing party’s case, “the burden 28 then shifts to the non-moving party to designate specific facts demonstrating the existence 1 of genuine issues for trial.” In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2 2010); see also Fed. Trade Comm’n v. Stefanchik, 559 F.3d 924, 927-28 (9th Cir. 2009). 3 “This burden is not a light one.” Oracle, 627 F.3d at 387 . The party opposing the motion 4 for summary judgment “must show more than the mere existence of a scintilla of evidence” 5 by coming forward “with evidence from which a jury could reasonably render a verdict in 6 the non-moving party’s favor.” Id. The nonmoving party must go beyond the pleadings and 7 designate facts showing a genuine issue for trial. Bias v. Moynihan, 508 F.3d 1212 , 1218 8 (9th Cir. 2007) (citation omitted). The nonmoving party can do this by citing to specific 9 parts of the materials in the record or by showing that the materials cited by the moving 10 party do not compel a judgment in the moving party’s favor. Fed. R. Civ. P. 56(c). 11 “In judging evidence at the summary judgment stage, the court does not make 12 credibility determinations or weigh conflicting evidence,” Soremekun v. Thrifty Payless, 13 Inc., 509 F.3d 978, 984 (9th Cir. 2007), but will draw inferences from the facts in the light 14 most favorable to the nonmoving party, see Earl v. Nielsen Media Research, Inc., 658 F.3d 15 1108, 1112 (9th Cir. 2011); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., [16] 475 U.S. 574, 587 (1986). However, the nonmoving party’s mere allegation that factual 17 disputes exist between the parties will not defeat an otherwise properly supported motion 18 seeking summary judgment. See Fed. R. Civ. P. 56(c); see also Soremekun, 509 F.3d at 19 984 (“Conclusory, speculative testimony in affidavits and moving papers is insufficient to 20 raise genuine issues of fact and defeat summary judgment”); see also Nelson v. Pima 21 Cmty., 83 F.3d 1075 , 1081-82 (9th Cir.1996) (“[M]ere allegation and speculation do not 22 create a factual dispute for purposes of summary judgment”). Further, if the factual context 23 makes the nonmoving party’s claim as to the existence of a material issue of fact 24 implausible, that party must come forward with more persuasive evidence to support his 25 claim than would otherwise be necessary. Matsushita, 475 U.S. at 587 . 26 /// 27 /// 28 /// 1 III. DISCUSSION 2 A. Age Discrimination 3 Under the California Fair Employment and Housing Act (“the FEHA”), it is an 4 unlawful employment practice, unless based upon a “bona fide occupational qualification,” 5 for an employer, because of the age of any person, to discriminate against the person in 6 terms, conditions, or privileges of employment. Cal. Gov’t Code § 12940(a). “Generally, 7 the plaintiff must provide evidence that (1) he was a member of a protected class, (2) he 8 was qualified for the position he sought or was performing competently in the position he 9 held, (3) he suffered an adverse employment action, such as termination, demotion, or 10 denial of an available job, and (4) some other circumstance suggests discriminatory 11 motive.” Guz v. Bechtel Nat. Inc., 24 Cal. 4th 317, 355 (2000). A prima facie case for 12 unlawful age discrimination can be established with direct evidence or by presumption. 13 Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir. 1994). Plaintiff argues she has 14 established her prima facie case of discrimination by both direct evidence and by 15 presumption. 16 1. Direct Evidence 17 Plaintiff argues she has produced direct evidence of discriminatory motive.1 ECF 18 No. 49 at 21. “Direct evidence is evidence which, if believed, proves the fact of animus 19 without inference or presumption.” DeJung v. Superior Ct., 87 Cal. Rptr. 3d 99 , 111 20 (2008); see also Coghlan v. Am. Seafoods Co. LLC., 413 F.3d 1090 , 1095 n.8 (9th Cir. 21 2005) (“‘Direct’ evidence refers only to evidence (such as racist or sexist statements) that 22 proves the fact of discriminatory animus without the need for substantial inference.”). [24] 25 1 KFMB does not dispute that Plaintiff was over 40 and suffered an adverse employment action when she was not selected for the full-time positions. While KFMB states that [26] Plaintiff’s performance ratings “declined as time progressed,” that “more qualified” 27 candidates were selected, and that Plaintiff’s “job and interview performance simply fell short,” KFMB does not specifically argue that Plaintiff was not qualified for the positions [28] 1 Plaintiff points to a December 2018 email chain that included the KFMB President 2 and General Manager Alberto Meir y Teran, and Tegna Senior Vice President of Media 3 Operations, Mark Cornetta. ECF No. 49-4 at 49-51. The chain begins with an email to 4 Cornetta, on which Teran is copied, informing them that an employee who worked for 5 KFMB for over thirty-two years was retiring, and after speaking with Teran and another 6 manager,2 the “plan” was to promote another employee, Mario Escovedo, who worked for 7 the company for over thirty years, into the position. Id. at 50. Teran responded to Cornetta, 8 “[w]e will be saving approximately $40k on an annual basis. We are using this as part of 9 our $125k that we need to cut per corporate request.” Id. Cornetta responded: [10] The next in line is not necessarily the right thing to do here. . . . You have a 11 major culture issue in your newsroom and a workflow challenge. Promoting existing folks who may or may not buy-in is not a good strategy. It would be [12] better to begin to infuse some innovative thinking into your news organization 13 otherwise we will be condemned to the past. Change is hard but it is a heck of a lot harder when you have resistance. Everyone that has come to visit has [14] remarked on the culture in the new organization and how things are being 15 done in a very basic and rudimentary way. We need bold thinking and leadership. I am not aware of Mario’s skills but I do know that if he has been [16] in your organization for 31 years there is a very strong likelihood that he 17 doesn’t represent forward thinking. Please don’t move forward with this promotion. It sounds like it is an easy move but I doubt if it is the right one. [18] 19 Id. at 49. After being informed that “Mario is probably assuming that he would move into 20 a supervisor role,” Cornetta replied, “I am concerned for the reasons I stated below. We 21 may need to try and use some of the openings to bring in some fresh thinking and this is 22 one of those opportunities we need to look at.” Id. Plaintiff also points to Teran’s deposition 23 testimony in which he agreed there was a “major culture issue” in the newsroom. ECF No. 24 49-4 at 218. Teran stated: 25 It was an opinion that I came up with on my own. . . . We were a very – we [27] 2 The other manager was Dean Elwood, Vice President and Director of News. See ECF [28] 1 had not progressed – our newsroom had not progressed with the times in regards to – if you want to use the word “pivot,” which a lot of people use the [2] word “pivot.” We had not pivoted into the digital media world, okay? [3] Id. Plaintiff argues these statements are direct evidence of discriminatory intent on the part [4] of “upper management” of KFMB because “Teran and Cornetto directed that older [5] employees not be promoted.” ECF No. 49 at 5. [6] Certainly, Cornetta’s comments are evidence of his interest in hiring outside [7] applicants who could infuse some “innovative,” “bold,” and “fresh” thinking into the [8] newsroom instead of promoting “existing” long-time employees, like Escovedo, who were [9] “next in line” for the position. Teran’s comments show his interest in fixing the “culture [10] issue” in the newsroom because the newsroom had not “progressed with the times” and [11] had not “pivoted into the digital world.” However, the comments do not, if believed, prove [12] animus towards people over 40 without the need for inference or presumption. Rather, on [13] their face, the comments indicate interest in hiring from the outside for one particular [14] position.3 While it may be reasonable to infer that references to “fresh thinking” and [15] “pivot[ing] into the digital world” reveals a preference for younger people, it is an inference [16] nonetheless. Courts have found that similar comments, or worse comments, do not rise to [17] the level of direct evidence. See See Nidds v. Schindler Elevator Corp., 113 F.3d 912, 915 , [18] 91819 (9th Cir. 1996) (supervisor’s comment that he wanted to get rid of all the “old [19] timers” was ambiguous because it could refer to longtime employees, not just those over [20] 40, and was not tied directly to plaintiff’s layoff, so “it is weak evidence and not enough to [21] create and inference of age discrimination”); Nesbit v. Pepsico, Inc., 994 F.2d 703 , 705 [22] (9th Cir. 1993) (supervisor’s comment during a meeting that “we don’t necessarily like [24] 25 3 While Plaintiff claims these comments constitute a “directive” not to promote older employees, Plaintiff does not provide any evidence that Teran or Cornetto were involved [26] in any of the decisions not to select Plaintiff for the full-time positions, or that their 27 comments were linked with the decision-making process. See DeJung, 87 Cal. Rptr. at 111 (“Comments demonstrating animus may be found to be direct evidence if there is evidence [28] 1 grey hair” that was not tied directly to the employee’s termination was “at best weak 2 circumstantial evidence of discriminatory animus toward” the employee); Mewborn v. 3 Abbott Laboratories, CV 18-8732 DSF (PLAx), 2021 WL 4622396 , at *10 (C.D. Cal. June 4 8, 2021) (comments like “not adaptable” and “not willing to change” are not direct 5 evidence of age discrimination because they do not refer to age or show discriminatory 6 animus without inference or presumption); Wexler v. Jensen Pharms., Inc., No. CV 157 03518-AB (AJWx), 2016 WL 6594106 , at *9 (C.D. Cal. July 25, 2016), aff’d, 739 F. 8 App’x 911 (9th Cir. 2018) (finding that it would be a “stretch” to say the comment “older 9 reps were the hardest reps to train, were most challenging” reflects discriminatory animus); 10 Robinson v. PPG Indus., Inc., No: 2:19-cv-04033-ODW (RAOx), 2021 WL 5868323 , at 11 *7 (C.D. Cal. Dec. 9, 2021) (commenting that the plaintiff was “too senior” required an 12 inference the speaker meant “too old”). 13 Plaintiff also argues that direct evidence of discriminatory motive exists because the 14 KFMB HR Director “ordered a false record of ‘unreliability due to calling in sick too much’ 15 be placed in [Plaintiff’s] personnel file, which was used by management to justify denying 16 the promotions.” ECF No. 49 at 5. The only support for this argument, however, is a June 17 3, 2019 letter to Plaintiff warning her about five unexcused absences between January and 18 May of 2019. ECF No. 49-4 at 96. Plaintiff offers no evidence to support her claim the 19 record is false, that the HR Director ordered it to be placed in Plaintiff’s file, or that the 20 letter was used by management to deny her promotions.4 Accordingly, Plaintiff has not 21 shown direct evidence of age discrimination. 22 /// 23 /// [26] 27 4 There is also no evidence to suggest, as Plaintiff argues, that the letter, or any manager, repeated the “trope that ‘older employees are unreliable because they get sick too much.’” [28] 1 2. Presumption 2 Under McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), the plaintiff bears 3 the initial burden of establishing a prima facie case of discrimination. Guz, 24 Cal. 4th at 4 354-55. If the plaintiff does so, the burden shifts to the employer to rebut this presumption 5 of discrimination by producing evidence sufficient to create a genuine issue of fact and that 6 would, if true, show the employment action was taken for a “legitimate, nondiscriminatory 7 reason.” Id. at 355 . If the employer does so, the burden then shifts back to the plaintiff to 8 show that these reasons are mere ”pretexts for discrimination, or to offer any other evidence 9 of discriminatory motive.” Id. To satisfy this burden and survive summary judgment, the 10 plaintiff must produce enough evidence “to allow a jury to conclude that age was a 11 ‘substantial motivating factor’ in [her] termination.” Merrick v. Hilton Worldwide, Inc., [12] 867 F.3d 1139, 1147 (9th Cir. 2017) (quoting Harris v. City of Santa Monica, 56 Cal. 4th 13 203, 232 (2013)). 14 a. Prima Facie Case 15 Making a prima facie case of discrimination “is not onerous.” Tex. Dep’t of Cmty. 16 Affairs v. Burdine, 450 U.S. 248, 253 (1981). KFMB argues that Plaintiff fails to make her 17 prima facie showing of discriminatory motive because “[n]o evidence exists to show 18 KFMB rejected [Plaintiff’s] applications for the four positions because of her age.” ECF 19 No. 45-1 at 21. In response, Plaintiff appears to argue5 that she has satisfied her prima facie 20 burden of showing discriminatory motive because all of the persons hired were 21 “substantially younger” and because she had “vastly superior qualifications to two of the 22 persons who were selected instead of her.” ECF No. 49 at 4. [24] 25 5 Plaintiff’s opposition generally does not conform to the McDonnell Douglas framework. For example, rather than beginning her argument by addressing her prima facie case, [26] Plaintiff addresses it at the end of her brief, repeats her direct evidence argument, and 27 essentially just refers back to the section of her memorandum providing factual background information. Plaintiff also provides little to no meaningful discussion of the cases that are [28] 1 In termination cases under the FEHA, “evidence that an employee is replaced by a 2 substantially younger person, together with certain other facts . . . , permits the inference 3 that the termination was based upon age, which may be rebutted by evidence of non-age 4 related reasons for the termination.” Begnal v. Canfield & Assocs., Inc., 78 Cal. App. 4th 5 66, 74 (2000). In “failure-to-promote” cases under the federal Age Discrimination in 6 Employment Act (ADEA), “a plaintiff may establish a prima facie case of discrimination 7 in violation of the ADEA by producing evidence that he or she was (1) at least forty years 8 old, (2) qualified for the position for which an application was submitted, (3) denied the 9 position, and (4) the promotion was given to a substantially younger person.” Shelley v. 10 Geren, 666 F.3d 599, 608 (9th Cir. 2012).6 “[A]n average age difference of ten years or 11 more between the plaintiff and the replacements will be presumptively substantial[.]” 12 France v. Johnson, 795 F.3d 1170, 1174 (9th Cir. 2015), as amended on reh’g (Oct. 14, 13 2015). 14 There is no dispute that each person selected over Plaintiff for a full-time position 15 was substantially younger. While Plaintiff was in her sixties, the persons selected for the 16 positions were 28, 28, 32, and 43. Neither party addresses whether this fact, standing alone, 17 is sufficient as a matter of law for Plaintiff to show a prima facie case of discriminatory 18 motive.7 See O’Connor v. Consol. Coin Caterers Corp., 517 U.S. 308, 313 (1996) [20] 21 6 “In evaluating discrimination claims under FEHA, California courts look to federal precedent governing analogous federal discrimination claims.” Day v. Sears Holdings [22] Corp., 930 F. Supp. 2d 1146, 1160 (C.D. Cal. 2013); see also Metoyer v. Chassman, 504 23 F.3d 919, 941 (9th Cir. 2007) (“California courts apply the Title VII framework to claims brought under FEHA.”) (citing Guz, 24 Cal. 4th at 354 ). [24] 25 7 Plaintiff states “where employees who were substantially younger than the plaintiff were selected for a position and/or where there is a stark disparity between the candidate’s [26] qualifications for the position and the older candidate in the protected class with vastly 27 superior qualifications is not selected, this is circumstantial evidence of an employer’s discriminatory motives.” ECF No. 49 at 4. However, the cases cited by Plaintiff do not [28] 1 (“Because the ADEA prohibits discrimination on the basis of age and not class 2 membership, the fact that a replacement is substantially younger than the plaintiff is a far 3 more reliable indicator of age discrimination than is the fact that the plaintiff was replaced 4 by someone outside the protected class.”). Regardless, it is undisputed that Plaintiff was 5 rejected not once, but four times in two years, in favor of substantially younger persons. It 6 is also undisputed that Plaintiff had been working for years as a part-time Assignment 7 Editor, and on three separate occasions, was not selected for a full-time Assignment Editor 8 position.8 Accordingly, Plaintiff is entitled to a prima facie presumption that she was 9 qualified for those positions. Based on the above, Plaintiff has met her minimal prima facie 10 burden of showing circumstance suggesting discriminatory motive. 11 b. Legitimate, Non-Discriminatory Reasons 12 Because Plaintiff has made a prima facie case of age discrimination, the burden shifts 13 to KFMB to produce admissible evidence sufficient to “raise a genuine issue of fact and to 14 justify a judgment for the employer, that its action was taken for a legitimate, 15 nondiscriminatory reason.” Guz, 24 Cal. 4th at 355-56 (internal quotation marks and 16 alterations omitted). “Legitimate” means “reasons that are facially unrelated to prohibited 17 bias, and which, if true, would thus preclude a finding of discrimination.” Id. at 358 18 (internal emphasis omitted). “To be non-discriminatory, the reasons need not have been [20] 21 F.3d 1185, 1193 (9th Cir. 2003), the court merely reaffirmed that “clearly superior” qualifications “standing alone” are enough to prove pretext. In Earl v. Nielsen Media Rsch., [22] Inc., 658 F.3d 1108, 1116-17 (9th Cir. 2011), the court reversed the district court’s finding 23 that the replacement of a 59-year-old terminated employee with a 42-year-old employee “refutes rather than supports” a claim for age discrimination. In Reeves v. MV Transp., Inc., [24] 186 Cal. App. 4th 666, 675 (2010), the court merely reaffirmed that a disparity in 25 qualifications must be “substantial to support an inference of discrimination sufficient to show pretext.” [26] 27 8 While Plaintiff repeatedly offers opinions and speculation concerning her qualifications and job performance, this conjecture is not, as KFMB argues, the only evidence upon which [28] 1 wise or even correct.” McKinney v. Am. Airlines, Inc., 641 F. Supp. 2d 962, 972 (C.D. Cal. 2 2009) (citing Guz, 24 Cal. 4th at 358 ). Articulating a legitimate, nondiscriminatory reason 3 is not the same as proving the absence of discriminatory motive. Bd. of Tr. of Keene St. 4 Coll. v. Sweeney, 439 U.S. 24, 25 (1978). The burden “is merely one of production, not 5 persuasion.” Bowen v. M. Caratan, Inc., 142 F. Supp. 3d 1007, 1025 (E.D. Cal. 2015) 6 (citing Hawn v. Exec. Jet Mgmt., Inc., 615 F.3d 1151, 1155 (9th Cir. 2010)). 7 KFMB argues that Plaintiff was not selected for the positions because the persons 8 selected were “more qualified” and “[i]n the opinion of the hiring managers, [Plaintiff’s] 9 job and interview performance simply fell short.” ECF No. 45-1 at 7. In support of this 10 argument, and as discussed in detail below, KFMP provides deposition testimony from 11 persons involved in the hiring decision that the younger people selected for the positions 12 were better candidates. This is a legitimate, non-discriminatory reason for not selecting 13 Plaintiff. See Schnidrig v. Columbia Mach., Inc., 80 F.3d 1406 , 1410 (9th Cir. 1996) 14 (plaintiff’s qualifications for a promotion, and the qualifications of the person selected, are 15 legitimate, non-discriminatory reasons). 16 c. Pretext 17 Having produced evidence of a legitimate, non-discriminatory reason for not 18 selecting Plaintiff for the positions, the burden shifts back to Plaintiff to ”attack the 19 employer’s proffered reasons as pretexts for discrimination, or to offer any other evidence 20 of discriminatory motive.” Guz, 24 Cal. 4th at 356 . Pretext can be demonstrated in two 21 ways: “(1) directly, by showing that unlawful discrimination more likely than not 22 motivated the employer;9 or (2) indirectly, by showing that the employer’s proffered 23 explanation is unworthy of credence because it is internally inconsistent or otherwise not 24 believable.” Earl, 658 F.3d at 1112-13 (citation omitted). “Where evidence of pretext is 25 circumstantial, rather than direct, the plaintiff must produce ‘specific’ and ‘substantial’ [27] 9 As discussed above, Plaintiff fails to produce any direct evidence showing that unlawful [28] 1 facts to create a triable issue of pretext.” Id. at 1113 . Harris v. City of Santa Monica, 56 2 Cal. 4th 203 , 232 (2013) (plaintiff’s burden is to show that discrimination was a 3 “substantial motivating factor”). 4 A claim can survive summary judgment if the totality of the evidence permits a 5 rational inference that the employer’s actual motive was discriminatory. Guz, 24 Cal. 4th 6 at 361-62 . “An employee in this situation cannot simply show the employer’s decision was 7 wrong, mistaken, or unwise.” Morgan v. Regents of the Univ. of Cal., 88 Cal. App. 4th 52 8 (2000) (internal quotation marks omitted). “Rather, the employee must demonstrate such 9 weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the 10 employer’s proffered legitimate reasons for its action that a reasonable factfinder could 11 rationally find them unworthy of credence . . . . and hence infer that the employer did not 12 act for the . . . . non-discriminatory reasons.” Id. (internal quotation marks, emphasis, and 13 citation omitted); Dep’t of Fair Emp. & Hous. v. Lucent Techs., Inc., 642 F.3d 728 , 746 14 (9th Cir. 2011). “In judging whether [an employer’s] proffered justifications were ‘false,’ 15 it is not important whether they were objectively false . . . . Rather, courts only require that 16 an employer honestly believed its reason for its actions, even if its reason is foolish or 17 trivial or even baseless.” Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1063 (9th Cir. 18 2002) (citation and internal quotation marks omitted). However, the burden on plaintiffs to 19 raise a triable issue of fact as to pretext is “hardly an onerous one.” Payne v. Norwest Corp., [20] 113 F.3d 1079, 1080 (9th Cir. 1997); see also Nicholson v. Hyannis Air Serv., Inc., 580 21 F.3d 1116 , 1127 (9th Cir. 2009) (“[V]ery little evidence is necessary to raise a genuine 22 issue of fact regarding an employer’s motive; and any indication of discriminatory motive 23 may suffice to raise a question that can only be resolved by a fact-finder.”) (internal 24 quotation marks omitted). 25 i. 2017 Assignment Editor Position 26 The parties do not dispute that Plaintiff, who was 61-years old at the time, was passed 27 over in 2017 for a full-time Assignment Editor position in favor of 43-year-old Bernadette 28 Abshier who, like Plaintiff, was also working as a part-time Assignment Editor. ECF No. 1 45-1 at 12. In support of its decision, KFMB relies on deposition testimony from Dean 2 Elwood, Vice President and News Director, who testified that he had “final approval” on 3 who got the job. ECF No. 45-4 at 19:17-23. Elwood testified that Abshier was: (1) “a far 4 superior candidate,” id. at 20:14-15; (2) “more competent at the mechanics of the job of 5 being an assignment editor;” id. at 20:18-20; (3) “far more reliable,” id.; (4) “excellent at 6 everything she did,” id. at 25:12; and (5) “a star performer,” id. 25:8-9. 7 With respect to Plaintiff, Elwood testified that: (1) she “had reliability issues,” but 8 didn’t recall having discussions with her about being unreliable, id. at 20:20, 21:6; (2) he 9 had discussions with her about a “pretty severe” ethical issue where she reportedly 10 threatened to do a “hit piece” against her mortgage company, id. at 21:9-25; (3) she showed 11 a lack of “drive and initiative . . . . by not being available to fill in for other people when 12 she’s a part-timer telling people constantly that she needed money,” id. at 23:21-23, 24:1113 13; and (4) she was not a “star performer,” id. at 25:8-9.10 14 /// 15 /// 16 /// [18] 19 10 In its motion, KFMB also claims (1) “while Elwood was ultimately responsible for making a final decision, Cooper-Chadwick was also involved in reviewing applications [20] and making recommendations for the position,” and (2) “both Cooper-Chadwick and 21 Elwood concluded that [the person selected] was the superior candidate as compared to Plaintiff.” ECF No. 45-1 at 13; see also ECF No. 52 at 5 (“Dean Elwood and John [22] Chadwick-Cooper selected Bernadette Abshier[.]”). While Ellwood testified that “it would 23 have been a recommendation from [Cooper-Chadwick], and then we would have discussed it,” ECF No. 45-4 at 19:12-13, the deposition excerpts attached to KFMB’s motion in no [24] way show that Cooper-Chadwick was involved in the decision. He is not asked whether he 25 actually participated in the hiring decision, or why Plaintiff was not hired. Rather, the questions are generally limited to those concerning Plaintiff’s performance evaluations and [26] his previous supervision of the person selected for the position, as well as his knowledge 27 of Plaintiff. More importantly, Ellwood also testified that he had no “specific recollection” that Cooper-Chadwick made any recommendation concerning the hiring decision. Id. at [28] 1 Plaintiff does not argue that Elwood’s positive opinions about Abshier’s 2 performance were a pretext for discrimination.11 Plaintiff provides no evidence that 3 Abshier was not “excellent at everything she did,” “more competent at the mechanics of 4 the job,” or “a star performer.” Plaintiff also does not specifically argue that she was more 5 qualified than Abshier. While Plaintiff claims she had “vastly superior qualifications to 6 two of the persons who were selected,” Abshier was not one of those persons. ECF No. 49 7 at 8. Indeed, Plaintiff concedes that Abshier’s qualifications “have not been provided.” Id. 8 at 8. Instead, Plaintiff essentially makes three arguments. 9 First, Plaintiff cites her own testimony that she “believed” she was not selected based 10 on her age because she had “extensive experience, not just on a local level, but on the 11 network level, and had been doing the job exactly as they had wanted for the past six and 12 a half years.” ECF No. 49-4 at 194:11-18. However, as repeatedly pointed out by KFMB, 13 Plaintiff’s subjective beliefs, and her testimony to the same, do not constitute specific and 14 substantial evidence of pretext. See Nelson v. Pima Cmty. C., 83 F.3d 1075 , 1081-82 (9th 15 Cir. 1996) (“[M]ere allegation and speculation do not create a factual dispute for purposes 16 of summary judgment.”). 17 Second, Plaintiff argues that “Elwood discounted [Plaintiff’s] qualifications falsely 18 claiming she was ‘unreliable.’”12 ECF No. 49 at 11. This is essentially two arguments. With [20] 21 11 In fact, nowhere in Plaintiff’s opposition is the word “pretext” even mentioned. Plaintiff also does not argue that the fact that she was rejected on four different occasions in favor [22] of a substantially younger person is, by itself, sufficient evidence of pretext. [23] 12 Plaintiff does not specifically attack Elwood’s rationale that he had discussions with her [24] about a “pretty severe ethical issue” where she reportedly threatened to do a “hit piece” on 25 her mortgage company. Plaintiff argues “[t]he alleged statement to Elwood by an unidentified person at some unidentified mortgage company is hearsay and inadmissible [26] for purposes of this motion.” ECF No. 49 at 11. The objection is OVERRULED because 27 the evidence is not being offered for the truth of the matter asserted, but for its effect on Elwood. Plaintiff’s other objection, i.e. “descriptions of what a video allegedly depicts is [28] 1 respect to her claim that Elwood “discounted” her qualifications, Plaintiff argues that “all” 2 of her “highly positive performance evaluations were ignored by KFMB’s management 3 when deciding whether to select [her] for the four full-time positions.”13 Id. at 11. In 4 support, Plaintiff points to Elwood’s deposition testimony that he did not recall looking at 5 Plaintiff’s performance evaluations as part of the hiring process, and that the evaluations 6 played no role in his hiring decision because Abshier “was a better candidate.” ECF No. 7 49-4 at 144:4-12. 8 KFMB does not dispute that Plaintiff’s performance evaluations from 2012 through 9 2018 were “overall positive,” ECF No. 45-1 at 11, or that Elwood did not review them 10 before deciding not to select Plaintiff. Moreover, Plaintiff is entitled to the rational 11 inference that multiple past positive reviews of her performance in the part-time 12 Assignment Editor position support her qualifications to perform a full-time Assignment 13 Editor position. Accordingly, while Plaintiff has not produced evidence that Elwood 14 discounted Plaintiff’s “qualifications” all together, she has produced evidence that Elwood 15 did not consult documents that would have likely supported Plaintiff’s qualifications for 16 the position. Again, however, without some evidence regarding Abshier’s qualifications 17 (or lack thereof), the fact that Plaintiff was qualified for the position is not evidence that 18 she was more qualified than Abshier or that Elwood’s reasons are pretextual. It merely 19 supports her prima facie case that she was qualified for the position. See Chisolm v. 720 Eleven, Inc., 383 F. Supp. 3d 1032, 1063 (S.D. Cal. 2019), aff’d, 814 F. App’x 194 (9th 21 Cir. 2020) (faulting the plaintiff for admitting she did not know other candidates’ 22 qualifications, and for failing to submit evidence of their qualifications to support her 23 allegation that she had more experience). It is also not reasonable to infer that evidence 24 regarding Abshier’s qualifications, if produced, would show that Abshier was less qualified [26] 27 13 Plaintiff also claims that “KFMB’s motion ignores its own documents prepared by [Plaintiff’s] supervisors (the multiple evaluations from 2012 through 2018 showing they [28] 1 than Plaintiff. Accordingly, Plaintiff’s claim that that Elwood “discounted” her 2 qualifications does not show pretext. 3 With respect to Plaintiff’s allegation that Elwood “falsely claim[ed] she was 4 ‘unreliable,’” Plaintiff argues KFMB’s HR Director “ordered a false record of 5 ‘unreliability due to calling in sick too much’ be placed in [Plaintiff’s] personnel file, which 6 was used by management to justify denying the promotions.” ECF No. 49 at 5. During his 7 deposition, Elwood cited “reliability issues” as one of the reasons Plaintiff was not selected 8 for the position, but he did not elaborate, and Plaintiff’s counsel apparently did not inquire 9 as to what reliability issues Elwood was referring to. Accordingly, Plaintiff has not shown 10 that Elwood’s rationale regarding Plaintiff’s “reliability issues” was pretextual based on an 11 allegedly “false record.” 12 Third, Plaintiff argues she should have been selected because (1) Plaintiff was a 13 “current” employee while Abshier was a “fill-in” employee, and (2) Plaintiff was “entitled 14 to preference as a regular employee according to their supervisor, Elwood.” ECF No. 49 at 15 15. Without some evidence as to what “fill-in” employees actually did, Abshier’s status as 16 a “fill-in” employee does not, by itself, suggest that Abshier was not “a far superior 17 candidate,” “more competent at the mechanics of the job of being an assignment editor,” 18 “far more reliable,” “excellent at everything she did,” or “a star performer.” Indeed, 19 Plaintiff admits that Abshier’s evaluation on a purely “fill-in” basis was “slightly better.” [20] Id. Additionally, Elwood testified that promoting internally was something “we tried to do, 21 if we could” and that it was “preferrable to promote from within.” ECF No. 49-4 at 141:422 6. Elwood did not testify that Plaintiff was “entitled to preference” because she was a 23 “regular” employee, or that selecting Abshier was not considered a promotion “from 24 within.” Accordingly, Plaintiff has not met her burden of showing that KFMB’s proffered 25 reasons for not selecting her for the 2017 Assignment Editor position are pretexts for 26 discrimination, or that the totality of evidence permits a rational inference and triable issue 27 that KFMB’s actual motive was discriminatory with respect to the position. See Guz, 24 28 Cal. 4th at 361-62. 1 ii. 2018 Digital Content Producer 2 The parties do not dispute that Plaintiff, who was 62-years-old at the time, was 3 passed over in 2018 for a Digital Content Producer position in favor of 28-year-old Jarrett 4 Wright. ECF No. 45-1 at 14. In support of its decision, KFMB relies on deposition 5 testimony from Mitch Gruber, who testified that he “spoke with her and told her about the 6 position,” but it was an “informational meeting” and “did not include a typical interview 7 period.” ECF No. 45-5 at 6:8-14, 7:14-16. Gruber testified that Wright was selected for the 8 position because: (1) “[h]e would have been the best candidate for the job, meeting the 9 criteria we were looking for,” id. at 8:21-22; (2) “he had the writing skillset, the video 10 editing skillset, the image;” (3) “[h]e had worked with a content management system, 11 which was something we were looking for;” and (4) “he had a strong desire to be part of a 12 digital content team,” id. at 9:3-7.14 13 With respect to Plaintiff, Gruber testified, “I don’t recall the specifics that I knew of 14 her qualifications.” Id. at 9:11-12. He also said he did not recall the “specific words that 15 were said.” Id. at 10:6:7. Gruber nonetheless testified: 16 What I can recall from meeting with her and going over the job – or the skillsets and the job – duties we were looking for, I don’t remember seeing a [17] match, and I don’t remember seeing a true interest in being part of the – a 18 digital news team. . . . What I recall from that meeting was her desire to be a full-time employee at KFMB, not a desire to be on this specific team or type [19] – or area of digital news content. . . . [M]y take-away was that her interest was 20 about the full-time position – this is my personal take-away from talking with her – versus the actual job functions that we were hiring for. That is what I [21] can best recall. [22] Id. at 9:11-10:13. [23] In her opposition, Plaintiff points to a page of the employee handbook stating that [25] 26 14 KFMB also cites to a declaration by Gruber in which Gruber purportedly noted that 27 Wright “had been performing all of the technical functions” of the Digital Content Editor position for the weather department and that Wright “had a reputation for being a team [28] 1 “[p]osted positions are open to all qualified employees,” ECF No. 49-4 at 125, and an 2 “EEO Compliance Report” listing Plaintiff as one of the applicants, id. at 42. Plaintiff 3 argues that “Gruber thought [Plaintiff] had never applied” and “[t]he evidence showing 4 [Plaintiff] did apply for the position, but was not interviewed or considered for the job by 5 the hiring manager, Gruber, permits the inference KFMB violated its policy [that] posted 6 positions are open to all qualified employees.” ECF No. 49 at 16. 7 “A plaintiff may . . . . raise a triable issue of pretext through evidence that an 8 employer’s deviation from established policy or practice worked to her disadvantage.” 9 Earl, 658 F.3d at 1117. “But such a deviation must be considered in context and may not 10 always be sufficient to infer a discriminatory motive.” Merrick v. Hilton Worldwide, Inc., [11] 867 F.3d 1139, 1149 (9th Cir. 2017) (citing Guz, 24 Cal. 4th at 365 ). Plaintiff has shown 12 sufficient evidence, at least to infer, that company policy her entitled to a formal interview 13 for the Digital Content Producer position, and not just an “informational interview.” 14 However, this fact does not allow for the inference that KFMB’s alleged failure to comply 15 with the policy worked to her disadvantage. Plaintiff does not argue, for example, that had 16 she been formally interviewed, Gruber would have had a different opinion of her, which 17 would have led him to select her over Wright. Accordingly, this alleged policy deviation 18 does not show that Gruber’s reasons for not hiring Plaintiff were pretextual. 19 Plaintiff also argues she had “vastly superior qualifications for the position than 20 Wright” and “Wright had virtually none of the listed qualifications and [Plaintiff] had them 21 all.” ECF No. 49 at 16, 17. With respect to her qualifications, Plaintiff argues, and KFMB 22 does not dispute, that the “main” qualification of the position was “the ability to react and 23 disseminate breaking news quickly.” Id. at 16 (citing ECF No. 45-13 at 2). Plaintiff also 24 points out, and KFMB does not genuinely dispute,15 that on her performance evaluations [26] 27 15 KFMB argues that Plaintiff’s statement that “KFMB thought and knew [Plaintiff] was highly competent and experienced in . . . . breaking news” is a self-serving “interpretation.” [28] 1 Plaintiff was always rated as “outstanding” and “exceeds job requirements” in the category 2 of “breaking news.” See ECF No. 49-4 at 9, 13, 16, 19, 22, 25, 28, 81. 3 With respect to Wright’s qualifications, Plaintiff argues (1) “Wright had virtually 4 zero qualifications in breaking news; he had been a weekend news editor and was a weather 5 producer,” and (2) “[h]is ‘breaking news’ experience was limited to traffic accidents.” ECF 6 No. 49 at 16. In support of this claim, Plaintiff cites Wright’s deposition testimony in which 7 he described his job duties as a weekend news editor prior to 2013, and as a full-time 8 weather producer from 2013 to 2018. ECF No. 45-7. However, Wright did not say he had 9 “virtually zero qualifications in breaking news.” To the contrary, he testified his work did 10 involve breaking news. Id. at 6:12-16. Wright testified: 11 So I dealt with traffic which, in the morning, as you know, is very pivotal, so if there were any accidents, that is considered breaking news so I would be in [12] charge of sending the chopper to the area and relaying what the chopper says 13 to people in the studio. I was the middle man for that. 14 Id. at 6:19-24. 15 Based on the above, Plaintiff has shown, at most, that a genuine dispute over whether 16 her breaking news qualifications were superior or “vastly” superior to Wright’s given that 17 Wright’s breaking news experience was apparently limited to traffic accidents. However, 18 it appears this dispute is not material to the issue of pretext because Plaintiff does not argue 19 that she is more qualified in any of the other areas listed in the job description, such as 20 “maintaining and updating our station’s digital platforms and mobile presence, editing 21 television scripts and wire copy for digital publication, editing video and images and 22 managing live streaming video.” See ECF No. 45-13 at 2. Moreover, Wright’s breaking 23 news qualifications were not cited as a reason for selecting Wright over Plaintiff, and 24 Plaintiff does not address any of the specific reasons Gruber gave for selecting Wright, 25 such as his writing, video, and image “skillset,” his experience working with a “content [27] interpretation, that she was always rated as “outstanding” or “exceeds job requirements” in [28] 1 management system,” or his “strong desire to be part of a digital content team.” 2 Accordingly, Plaintiff has not shown that any of the particular reasons given by Gruber are 3 unworthy of credence because they were internally inconsistent or otherwise not 4 believable. 5 iii. 2019 Evening Assignment Editor Position 6 The parties do not dispute that Plaintiff, who was 62-years-old at the time, was 7 passed over in May 2019 for an evening Assignment Editor position in favor of 32-year8 old Stacy Garcia. ECF No. 45-1 at 16. In support of its decision, KFMB relies on the 9 deposition testimony of (1) Barbara Richards, Managing Editor; (2) Timothy O’Brien, 10 Senior Executive Producer; and (3) Mario Escovedo, Assignment Desk Manager. KFMB 11 states that all three individuals were “involved in the hiring decision . . . , although the 12 decision was ultimately up to O’Brien. Id. 13 With respect to Plaintiff’s interview, Richards testified that he had a “negative 14 impression” of Plaintiff’s interview, and she did a “really bad job,” because (1) “[s]he said 15 her motivation for getting the job was to work full-time and make more money,” and (2) 16 “[s]he wasn’t prepared for the interview [and] hadn’t thought about qualities she would 17 bring to the position or ideas of what she would do with that position.” ECF No. 45-6 at 18 14-15. O’Brien similarly testified that Plaintiff interviewed “poorly” because “she gave me 19 absolutely no reason to hire her” and “[t]he only reason she gave me for why she’s 20 interviewing for the position was that she needed a full-time job.” Id. at 5-6. 21 With respect to Garcia’s interview, Escovedo states in a declaration: (1) “Garcia was 22 very professional and poised in her interview, and performed very well;” (2) “despite 23 facing three relatively senior managers (O’Brien, Richards, and myself), Garcia was calm 24 and collected throughout the interview;” (3) “[s]he spoke articulately and with passion 25 about her experience and interest in the role;” (4) “[h]er interview also showed how well 26 she handled herself under pressure;” (5) he was “also impressed by Garcia’s experience 27 with digital news; and (6) her “qualities and experience, as enumerated above, made her a 28 stand-out candidate among the approximately sixty (60) candidates that applied for the 1 evening Assignment Desk Editor position.” ECF No. 45-17 at 3 ¶¶ 7-9, 11. 2 With respect to Garcia’s performance and qualifications, Escovedo testified in his 3 deposition that he told O’Brien that: 4 [S]he was doing this job over at our competition station. She had a great reputation for handling breaking news, managing the crews. She was [5] managing two stations over there, the Mexican-speaking reporters, the 6 Spanish-speaking reporters and the KNSD crews. She was bilingual. It would have been a good get, to pull a star player like her off the other team. And she [7] was very well qualified and had a great, you know, reputation as – as being a 8 good assignment editor. 9 ECF No. 45-4 at 34-35. Richards testified that Garcia was “working the exact same job at 10 one of our biggest competitors . . . . She was part of that job, handled more crews at night 11 than we had. She had experience and, yeah, she was more qualified.” ECF No. 45-6 at 1612 17. Richards also testified that “[t]he full-time night position is much more responsibility . 13 . . . than the nighttime weekend assignment position. There’s more crews [and] you’re in 14 charge of more newscasts.” Id. at 20:10-14. 15 In her opposition, Plaintiff makes some arguments that are similar to those she made 16 with respect to the other positions. First, Plaintiff argues that the 2019 evening Assignment 17 Editor Position, as well as the morning Assignment Editor Position discussed below, “were 18 the same jobs on different shifts that [Plaintiff] had been performing part-time, but had 19 routinely worked the full-time shifts since 2012 and as recently as early 2019.” ECF No. 20 49 at 17. In support, Plaintiff cites emails showing that in January 2019 Plaintiff agreed to 21 work some full-time weekday day shifts in addition to her part-time Friday through Sunday 22 schedule. ECF No. 49-4 at 56-57 (“We have spoken to Jane and Bobbi and they are set to 23 back-fill for the short term.”). Plaintiff also cites a 2018 performance evaluation in which 24 her supervisor, Cooper-Chadwick, reportedly stated that if a full-time assignment editor 25 position opened up, Plaintiff “could easily handle it.” ECF No. 45-9 at 5. Again, however, [27] 16 KFMB also provides a declaration by Escovedo that Garcia was nominated for an Emmy [28] 1 whether Plaintiff could “easily handle” the full-time position does not go to whether 2 Plaintiff was more qualified than Garcia so that it can be rationally inferred that the specific 3 reasons proffered by KFMB for not selecting Plaintiff were pretextual. 4 Second, Plaintiff argues she “should have been promoted without the job being 5 posted.” ECF No. 49 at 17. Plaintiff then cites the December 2018 Cornetta email chain 6 discussing the potential promotion of Escovedo in which an HR employee stated, “I do not 7 feel that we should post this promotion.” ECF No. 49-4 at 47. Plaintiff argues that “[u]nder 8 KFMB’s preference policy to promote regular employees, a trier of fact could conclude 9 that [Plaintiff], who had been backing up the full-time Assignment Editors since 2012, 10 should have been given the position without posting the job[.]” ECF No. 49 at 18. Again, 11 however, this argument does not go to whether Plaintiff was more qualified than Garcia. It 12 goes to whether KFMB had a policy of automatically selecting internal “back-up” 13 employees for promotions. Based on what Plaintiff has provided, however, it is not 14 reasonable to infer that KFMB had such a policy, or that if it did, that it violated the policy. 15 Plaintiff does not, for example, argue that employees performing a position part-time are 16 the same as “back-up” employees, or that she was the only employee performing that 17 position part-time. Additionally, the fact that KFMB may not have wanted to post, and in 18 fact did not post, one particular position into which a “back-up” employee was promoted, 19 does not establish the reasonableness of an inference that Plaintiff should have been 20 selected for this particular full-time position, and therefore, KFMB’s reasons for not 21 selecting Plaintiff are pretextual. Plaintiff does not, for example, argue that she was as 22 qualified for the 2019 evening Assignment Editor position as Escovedo was for the position 23 into which he was promoted, that the positions were comparable, or that the circumstances 24 of the positions becoming available are comparable. 25 Plaintiff also argues there is contrary evidence to the claims by O’Brien, Escovedo 26 and Richards that “Garcia was a superior candidate to [Plaintiff] because of her interview, 27 experience and being bilingual.” ECF No. 49 at 18. In support of this argument, Plaintiff 28 points to several pieces of evidence. First, Plaintiff points to her own testimony that 1 Richards said “she knew me so well because she had worked with me for so many years, 2 she knew what I was capable of. She said she didn’t have any other candidate that excited 3 her as much at that time” and “they had not received any resume that jumped out at them.” 4 ECF No. 49-4 at 199:7-10. Second, Plaintiff points to her testimony that O’Brien told her 5 she did not get the job because the candidate they chose was “more digitally oriented.” Id. 6 at 201:12-14. Plaintiff also cites her answer to an interrogatory in which she stated that 7 O’Brien told her the selected candidate was “more digitally inclined or oriented.” ECF No. 8 45-7 at 32. Third, Plaintiff points to Garcia’s “sparse” interview notes stating, inter alia, 9 “social not a priority at NBC.” ECF No. 49-4 at 68. Fourth, Plaintiff points to a job 10 description for the Assignment Editor position listing, as “job details,” “content generation 11 and management as well as social medial content” and “maintaining a presence on social 12 media, creating unique digital content.” ECF No. 49-4 at 61. The job description also lists 13 “checks Twitter, Facebook and other local news sources for story ideas” as a job 14 responsibility. Id. Fifth, Plaintiff points to her positive performance evaluations regarding 15 her social media skills. ECF No. 49 at 9-10. In her January 2018 performance evaluation, 16 for example, it was noted that “[y]ou are connected to social media in such an up-to-date 17 manner it never fails to impress. Twitter, Facebook, and PulsePoint are all media you use 18 to full advantage in your job.” ECF No. 45-8 at 2. In her May 2019 performance evaluation, 19 its states “per John Chadwick: I would add great social media and internet skills, including 20 Facebook, Twitter, and PulsePoint. Nothing gets by you.” ECF No. 45-0 at 4. Finally, 21 Plaintiff points out that “being bilingual was not a job qualification.” ECF No. 49 at 18. In 22 reply, KFMB does not meaningfully dispute or even address any of these facts. 23 Drawing all inferences in Plaintiff’s favor, and without making any credibility 24 determinations, Plaintiff has provided undisputed evidence that O’Brien told Plaintiff she 25 was not hired because Garcia was “more digitally oriented,” even though Plaintiff had 26 highly positive performance reviews of her social media skills, and it was noted in Garcia’s 27 interview notes that “social” was “not a priority” at Garcia’s place of employment. When 28 viewed in the light most favorable to Plaintiff, O’Brien’s alleged statement is not only 1 inconsistent with the interview notes and comments in Plaintiff’s performance reviews, but 2 is inconsistent with the reasons KFMB states in its motion. The fact that Roberts also 3 allegedly made highly encouraging comments to Plaintiff regarding her standing in the 4 selection process compared to other candidates, and the fact that this was the third time in 5 two years Plaintiff was not selected for a position in favor of a substantially younger person, 6 adds to the reasonableness of a possible inference by a trier of fact that KFMB’s proffered 7 reasons for not selecting Plaintiff are pretextual. Accordingly, Plaintiff has met her burden 8 of showing pretext with respect to the 2019 evening Assignment Editor position.17 9 iv. 2019 Morning Assignment Editor Position 10 Finally, the parties do not dispute that in July 2019, Plaintiff, who was 63 years old 11 at the time, was not selected for a morning Assignment Editor Position in favor of two 12 other candidates. ECF No. 45-1 at 17-18. KFMB states that even though Plaintiff applied 13 for the position, she was not interviewed “given the proximity to the May 2019 full-time 14 evening Assignment Editor requisition.” ECF No. 45-1 at 18. Additionally, KFMB argues 15 that “Escovedo and Richards did not think Plaintiff was a serious candidate for this role 16 because she had just recently told Escovedo that she could not even work the morning desk 17 shift.” Id. In support, KFMB attaches a 2019 email to Plaintiff from Escovedo telling her 18 she was “down” to work the morning desk shift on July 4th and 5th from 2:00 a.m. to 10:30 19 a.m., to which Plaintiff responded, “I won’t be able to fill the hours of the morning desk 20 shift you’ve requested due to a conflict with my second job as care giver to my niece. I am 21 available weekdays for dayside or nightside shifts as well as the weekend nightside shift.” [23] 24 17 In its reply, KFMB includes a list of objections to various portions of Plaintiff’s 25 declaration. ECF No. 52 at 13-14. However, KFMB does not otherwise clarify where these portions of Plaintiff’s declaration fit into Plaintiff’s argument, and it is not apparent from [26] the list. To the extent Plaintiff objects to out of court statements by KFMB employees upon 27 which the Court relies, the objections are OVERRULED as party admissions. To the extent the material to which KFMB objects is not referenced or relied on in this Order, the [28] 1 ECF No. 45-14 at 2. KFMB also cites the deposition testimony of Escovedo, who stated, 2 “I recall that she said she couldn’t – just stated she could not work early morning shifts.” 3 ECF No. 45-4 at 44:11-13. KFMB also cites testimony from Richards that she received 4 “feedback” that Plaintiff “didn’t want to do the morning shift anymore” and “[s]he was 5 unavailable for that.” ECF No. 45-6 at 21:11-14. 6 KFMB states the position was initially offered to Byran Holt because he had “over 7 a decade experience in the industry and was working as an Assignment Editor for KFMB’s 8 competitor, NBC,” but after he declined, the position was offered to 32-year-old Rachel 9 Pederson.18 ECF No. 45-1 at 18. KFMB states that Pederson was selected because she had 10 an undergraduate degree in broadcast and electronic communication arts from San 11 Francisco State University. Id. KFMB also cites Escovedo’s testimony regarding Pederson 12 that: 13 She had experience working at the assignment desk at KGTV, which was also one of our competitors, and at her current position was a website builder. And [14] she was quite apt at social media skills, posting and that sort of thing. She hit 15 a home run on her interview. We walked out of the interview and [Roberts] said, ‘How can you not hire her? That was great.’ And I agreed. And combined [16] with her desk experience, we felt she was a good candidate. [17] Id. at 18-19. KFMB also provides a declaration from Escovedo stating: [18] 19 Pederson provided great answers to our questions about her technical skills. She was also articulate, poised, positive, and, like Garcia, performed well [20] under pressure. Based on my observations, as well as Pederson’s 21 qualifications and experience, I felt she was the best candidate for the role of morning Assignment Desk editor and offered her the role after Holt declined. [22] ECF No. 45-17 ¶ 17. [23] In opposition, Plaintiff points to evidence showing: (1) Pederson had less than two [24] years of part-time experience in broadcast media, but the job posting stated “minimum two [25] years assignment desk experience preferred;” (2) Pederson had not worked in broadcast [28] 1 media for seven years before the job was posted and was not employed in mid-2019; (3) 2 the “minimal” interviews notes indicated only that Pederson “creates websites for 3 companies;” and (4) Pederson was terminated in September 2019 and the position was not 4 posted again. ECF Nos. 49-4 at 59, 70; 49-1 at 5. Plaintiff argues “[t]he stark disparity 5 between Pederson’s qualifications for the Assignment Editor position, less than two years 6 part-time experience, and [Plaintiff’s] 30 plus years in the broadcast media business and 7 seven years performing as an Assignment Editor at KFMB at a high level, is striking.” ECF 8 No. 49 at 19. In reply, KFMB repeats its argument that Pederson “‘hit a home run on her 9 interview,’ while [Plaintiff] had just essentially disqualified herself by recently telling 10 Escovedo she could not even work the shift the role was scheduled for, and had performed 11 poorly in another interview just weeks prior.” ECF No. 52 at 6. 12 Plaintiff does not dispute, or even acknowledge, her statements to Escovedo that she 13 could not work early morning hours. Accordingly, Plaintiff has not met her burden of 14 showing that KFMB’s overall reason for not selecting her for the 2019 morning 15 Assignment Editor position, i.e. that she was not available to work early morning hour 16 shifts, was pretextual. 17 B. Failure to Prevent Age Discrimination 18 California Government Code section 12940(k) provides that “[i]t is an unlawful 19 employment practice . . . . [f]or an employer . . . . to fail to take all reasonable steps 20 necessary to prevent discrimination and harassment from occurring.” Courts have 21 interpreted “a failure to prevent discrimination claim [to be] essentially derivative of a 22 [FEHA] discrimination claim.” See Achal v. Gate Gourmet, Inc., 114 F. Supp. 3d 781 , 804 23 (N.D. Cal. 2015). To prevail on a claim for failure to prevent discrimination, a plaintiff 24 must show that: (1) she was subjected to discrimination; (2) the defendant failed to take all 25 reasonable steps to prevent discrimination; and (3) this failure caused the plaintiff to suffer 26 injury, damage, loss or harm. Leiland v. City & Cty. of S.F., 576 F. Supp. 2d 1079 , 1103 27 (N.D. Cal. 2008). 28 KFMB argues it is entitled to summary judgment on Plaintiff’s failure to prevent 1 claim because it had anti-discrimination policies that included procedures to handle 2 complaints and investigate discrimination claims. ECF No. 45-1 at 31. KFMB argues 3 “[t]here is no evidence that [Plaintiff] ever complained about age discrimination, so there 4 was simply nothing for KFMB to investigate.” Id. In support of this argument, KFMB cites 5 Cal. Fair Empl. & Hous. Comm’n v. Gemini Aluminum Corp., 122 Cal. App. 4th 1004 , 6 1024-25 (2004) in which the court found that failing to develop a complaint or grievance 7 procedure relating to discrimination is not taking “all” reasonable steps to prevent 8 discrimination. 9 Here, KFMB cites no case holding the existence of an anti-discrimination policy 10 containing a complaint and investigation procedure is, per se, sufficient to show that it took 11 “all reasonable steps necessary to prevent discrimination . . . . from occurring.” 12 Additionally, some courts have found that if a discrimination claim under FEHA survives, 13 so does a claim for failure to prevent discrimination. See, e.g., Debro v. Contra Costa Cmty. 14 Coll. Dist., No. 20-cv-08876-CRB, 2021 WL 5585592 , at *3 (N.D. Cal. Nov. 30, 2021); 15 Dixon v. XPO Logistics, LLC, No. 3:18-cv-2743-L-MDD, 2020 WL 7024639 , at *9 (S.D. 16 Cal. Nov. 30, 2020). However, in its opposition, Plaintiff does not address KFMB’s 17 argument with respect to her failure to prevent claim, and Plaintiff makes no attempt at 18 citing countervailing authority. Accordingly, because there is no indication that Plaintiff 19 complained of age discrimination prior to her resignation, summary judgment as to 20 Plaintiff’s failure to prevent discrimination claim is GRANTED. See Sanchez v. Loews 21 Hotels Holding Corp., No.: 19-cv-02084 W (MDD), 2021 WL 424288 , at *7 (S.D. Cal. 22 Feb. 8, 2021) (interpreting failure to prevent claim to require some kind of complaint by 23 the employee). 24 C. Constructive Termination 25 Constructive discharge occurs when, “looking at the totality of the circumstances, ‘a 26 reasonable person in [the employee’s] position would have felt that he was forced to quit 27 because of intolerable and discriminatory working conditions.’” Watson v. Nationwide Ins. 28 Co., 823 F.2d 360, 361 (9th Cir.1987) (quoting Satterwhite v. Smith, 744 F.2d 1380 , 1381 1 (9th Cir.1984)). The determination whether conditions were so intolerable and 2 discriminatory as to justify a reasonable employee’s decision to resign is normally a factual 3 question left to the trier of fact. Watson, 823 F.2d at 361 . However, to establish that he was 4 constructively discharged, a plaintiff must at least show some “‘aggravating factors,’ such 5 as a ‘continuous pattern of discriminatory treatment.’” Id. (quoting Satterwhite, 744 F.2d 6 at 1382). 7 Plaintiff argues “[t]he evidence of aggravating factors are the unwarranted written 8 warning for alleged excessive absences (that a trier of fact could find was false and 9 contrived) and the reduction of [Plaintiff’s] hours.” ECF No. 49 at 21. Plaintiff explains: 10 On December 17, 2018, after the retirement of Cooper-Chadwick, KFMB planned to promote Escovedo. However, this would leave a full-time [11] Assignment Editor position vacant. Rather than promote one of the two part12 time Assignment Editors, [Plaintiff] or Morton, to full-time, KFMB decided to give [Plaintiff] and Morton two weekday shifts in addition to their weekend [13] shifts. The additional shifts resulted in [Plaintiff] working essentially a full14 time schedule. So, in September 2019 it was clear she would exceed 1,560 hours for the year (which triggered benefits from KFMB) unless her hours [15] were drastically cut. [Plaintiff’s] hours were drastically cut to 20 per week 16 beginning in September 2019 to prevent her from being entitled to benefits, which made it impossible for her to meet expenses. She asked for additional [17] hours, but never got any, so she resigned in January 2020 when she got a full18 time job elsewhere. 19 Id. at 20 (internal citations to the record omitted). 20 Here, there is a dispute, genuine or not, that Plaintiff’s written warning for alleged 21 excessive absences was unwarranted, false, or contrived. Plaintiff does not point to any 22 evidence supporting this argument. Moreover, even if it is true, a false written warning 23 regarding absences is not, by itself and as a matter of law, such an intolerable and 24 discriminatory working condition that it would force a reasonable person to resign. 25 Additionally, it is not reasonable to infer, as Plaintiff argues, that after her hours 26 were increased to “essentially a full-time schedule,” as she admittedly desired, her hours 27 were so “drastically” cut to 20 hours per week so that it made it “impossible for her to meet 28 expenses,” and therefore, she was “forced” to quit. The only reasonable inference based on 1 ||the totality of circumstances is that Plaintiff desired a full-time position, was given 2 || additional hours so that she essentially had a full-time position for several months in 2019, 3 ||and then had her schedule reduced back to 20 hours per week. Plaintiff does not point to 4 || any evidence suggesting her previous part-time work schedule was significantly more than 5 ||20 hours per week. Furthermore, the cases cited by KFMB are persuasive, and Plaintiff 6 || does not attempt to distinguish them or cite countervailing authority. See King v. AC & R 7 || Advert., 65 F.3d 764, 768 (9th Cir. 1995) (change to at-will employee status, reduction in 8 || managerial responsibilities, and reduction in compensation is not sufficiently intolerable); 9 || Turner v. Anheuser-Busch, Inc., 7 Cal. 4th 1238, 1247 (1994) (“[A] poor performance 10 || rating or a demotion, even when accompanied by reduction in pay, does not by itself trigger 11 ||a constructive discharge.”); see also Gibson v. Aro Corp., 32 Cal. App. 4th 1628 , 1635 12 ||(1995) (finding that under Turner “a demotion with a cut in pay does not create the kind of 13 aggravated or intolerable circumstances that would compel a reasonable employee to quit 14 || his job”). Accordingly, there is no genuine dispute, and KFMB is entitled to judgment as a 15 || matter of law, that Plaintiff was not forced to quit because of intolerable and discriminatory 16 || working conditions. 17 IV. CONCLUSION 18 Based on the above, KFMB’s Motion for Summary Judgment [ECF No. 45] on 19 || Plaintiff's age discrimination claim is GRANTED with respect to the 2017 Assignment 20 || Editor Position, and the 2019 evening and morning Assignment Editor positions, but is 21 || DENIED with respect to the 2018 Digital Content Producer position. KFMB’s Motion for 22 ||Summary Judgment with respect to Plaintiff's failure to prevent age discrimination and 23 || constructive termination claims is GRANTED. 24 IT IS SO ORDERED. 25 ||Dated: March 8, 2022 NO 26 No) 27 Honorable Linda Lopez 38 United States District Judge