383 F. Supp. 3d 1032
S.D. Cal.2019Background
- Helen Chisolm, an African‑American woman born in 1946, worked as a 7‑Eleven Field Consultant (Grade 23) from 1999 until her March 2018 termination; the role required extensive physical activity.
- She sustained knee, shoulder, neck, and back injuries (2012–2013), took medical leave beginning November 2013, and by August 2016 was released to work with permanent restrictions preventing Field Consultant duties.
- While on leave she applied and interviewed for a Senior Real Estate Representative (SRER) Grade 24 position in late 2016/early 2017; Jeffrey Tucker selected another candidate (Bobbie King).
- 7‑Eleven maintained Chisolm on leave for over four years, informed her in January 2018 there were no Grade 23 (or lower) openings in San Diego/Las Vegas that could be reasonably accommodated, gave her 60 days to obtain a position, and terminated her in March 2018.
- Chisolm filed EEOC/DFEH charges alleging age, race, disability, retaliation, multi‑factor FEHA violations, failure to prevent, and wrongful termination; 7‑Eleven moved for summary judgment on all claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Disability discrimination — non‑selection for SRER | Tucker and interviewer were "turned off" when she disclosed disability; this shows disability animus | No direct evidence of animus; legitimate nondiscriminatory reason (other candidate better qualified/interviewed stronger) | Grant: no admissible direct evidence; McDonnell Douglas applied; defendant met burden; plaintiff failed to show pretext |
| Failure to accommodate (reassignment / extend leave) | 7‑Eleven should have placed her into an open position or extended leave until placement | 7‑Eleven provided over four years leave and searched for vacancies; no vacant Grade‑23 (or lower) jobs she could perform | Grant: employer provided reasonable accommodation (extended leave); no vacant qualified positions so reassignment not required |
| Failure to engage in interactive process | Employer gave the "run‑around" and failed to engage in good faith | Employer continuously communicated about restrictions, openings, and options while on leave | Grant: interactive process occurred; plaintiff identified no reasonable accommodation that employer failed to consider |
| Age & race discrimination — non‑selection for SRER | Younger white comparators (e.g., Tucker) were promoted; alleged ageist comments and disparate treatment | No evidence comparators were similarly situated; defendant articulated legitimate reasons for selection | Grant: plaintiff failed to make prima facie case and failed to show pretext |
| Age & race discrimination — termination | Termination motivated by age/race | Termination due to inability to perform Field Consultant duties and no available qualified vacancies | Grant: plaintiff not qualified for role; cannot show discrimination or pretext |
| Retaliation — non‑selection and termination | Complaints to EEOC/DFEH and prior litigation led to adverse actions | Temporal gaps and lack of evidence connecting protected activity to decisions; no proof employer received Jan. 2018 DFEH complaint before firing | Grant: temporal gaps too long; no causal link shown; Jan. 2018 complaint not shown to have been served before termination |
| Multi‑factor FEHA claim (age, race, disability, retaliation) | Combination claim based on same underlying acts | Duplicative of prior FEHA claims | Grant: claim dismissed as duplicative |
| Failure to prevent discrimination & wrongful termination (public policy) | Employer failed to prevent and wrongfully terminated under public policy | These claims are derivative of FEHA claims which fail | Grant: derivative claims fail with underlying FEHA claims |
Key Cases Cited
- Celotex Corp. v. Catrett, 477 U.S. 317 (summary judgment burdens and evidence rules)
- Anderson v. Liberty Lobby, 477 U.S. 242 (genuine dispute and materiality standard for summary judgment)
- McDonnell Douglas Corp. v. Green, 411 U.S. 792 (burden‑shifting framework for discrimination claims)
- Guz v. Bechtel Nat'l, Inc., 24 Cal.4th 317 (California adoption of McDonnell Douglas under FEHA)
- Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248 (employer's burden to articulate legitimate nondiscriminatory reasons)
- National R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (use of prior acts as background evidence despite statute of limitations)
- Yanowitz v. L'Oréal USA, Inc., 36 Cal.4th 1028 (continuing violation doctrine under FEHA)
- Van Asdale v. Int'l Game Tech., 577 F.3d 989 (limits on applying sham affidavit rule)
- Kennedy v. Allied Mut. Ins. Co., 952 F.2d 262 (sham affidavit doctrine)