ORDER ON DEFENDANTS’ SUMMARY JUDGMENT MOTION (Doc. 24)
Introduction
Dеfendants Autozoners, LLC. (“Auto-Zone”) and Rick Torres (“Mr. Torres”) (collectively “defendants”) move for summary judgment against plaintiff Richard Gathenji (“Mr. Gathenji”). Mr. Gathenji, an Autozone employee, asserts ten claims against defendants for race and national origin discrimination, harassment, and retaliation. Defendants contend that the uncontroverted evidence establishes that Mr. Gathenji’s demotion was legitimate and based on a non-discriminatory reason; Mr. Gathenji’s harassment and retaliation claims fail; Mr. Gathenji failed to exhaust administrative remedies as to his claims against Mr. Torres; and Mr. Gathenji is unable to pursue punitive damages. Mr. Gathenji opposed the motion successfully to establish a prima facie case for discrimination, but failed to establish his harassment and retaliation claims. In addition, while Mr. Gathenji exhausted administrative remedies against Mr. Torres, he may not pursue exemplary damages against defendants. Accordingly, this Court GRANTS in part and DENIES in part defendants’ summary judgment motiоn.
Background 1
Autozone hired Mr. Gathenji, an African American male of Kenyan origin, on October 17, 2003. Mr. Gathenji was placed into the Manager-in-Training Program immediately. Upon completion of the Manager-in-Training Program, then district manager Dave Clark (“Mr. Clark”) promoted Mr. Gathenji to store manager at Store No. 3311 on November 23, 2003. Mr. Gathenji worked as store manager until July 1, 2007, when he was demoted to parts sales manager by district manager Mr. Torres.
Mr. Gathenji’s Claims
Mr. Gathenji’s discrimination, harassment, and retaliation claims arise from his treatment by Mr. Torres. Mr. Gathenji contends that his first few years as store manager passed without incident. After Mr. Torres replaced Mr. Clark as district manager in August 2005, however, Mr. Torres discriminated against and harassed Mr. Gathenji. Mr. Gathenji claims that almost immediately after Mr. Torres became district manager, Mr. Gathenji was subjected to Mr. Torres’ unwarranted verbal and written reprimands; differential treatment with respect to the severity and manner of disciplinary actions imposed for
Loss Prevention Audits and Reports
As store manager, Mr. Gathenji was responsible for minimizing inventory losses to theft and mismanagement. Gathenji Depo., pp. 37-38; Fonseca Deck, ¶ 4; Gonzalez Deck, ¶ 4. Mr. Gathenji’s responsibilities as an Autozone store manager required him to fill out paperwork on a daily, weekly, and monthly basis and to make daily cash drops into a safe. In addition, Autozone requires store managers to pass loss prevention audits and prepare loss prevention reports.
A store manager’s loss prevention performance is measured by the district manager who performs the loss prevention audit. Torres Deck, ¶ 6. A loss prevention audit consists of a pre-printed form that is filled out by the district manager. Id. The loss prevention audit measures the effectiveness of the store’s inventory control procedures using a number of objective and subjective factors related to paperwork control, store organization and cleanliness. The audit metrics included, among others, the store manager’s next day review, money safe logs, footprints on the profit and loss statement, and overstock audit. Mr. Gathenji contends that Mr. Torres treated him differently from other store managers on his loss prevention audits and reports in a number of ways, as described below:
Manager’s Same Day Report and Loss Prevention Form
Mr. Torres penalized Mr. Gathenji for initialing, rather than signing, his Manager’s Same Day Report. Gathenji Depo., p. 118. Mr. Torres allowed other managers, including Mr. Fonseca and Mr. Gonzalez, to initial the form without incident or disciplinary action. Fonseca Deck, ¶ 5.
Similarly, Mr. Torres penalized Mr. Gathenji’s loss prеvention audit twenty points for initialing it, rather than signing it with a full signature. Gathenji Depo., p. 116. Mr. Gathenji did not penalize other district managers for initialing the report. Id.
Weekly Recaps, Vendor Merchandise Reports, and Score Changes
Mr. Torres penalized Mr. Gathenji if his weekly recaps were incomplete or not up-to-date. Gathenji Depo., p. 133. Mr. Torres signed off on other managers’ weekly recap reports, however, even when they were incomplete or insufficient. Gathenji Depo., p. 131; Peraza Deck, ¶ 4; Huchason Deck, ¶ 7; Fonseca Deck, ¶ 6; Campos Deck, ¶ 4. Similarly, Mr. Torres approved other managers’ incomplete vendor merchandise reports, whereas he would penalize Mr. Gathenji if his vendor merchandise report was incomplete. Gathenji Depo., p. 134. Moreover, Mr. Torres would work with other store managers to fix their audits before signing off on them and asked other store managers to doctor the results to receive a рassing score. Fonseca Deck, ¶ 6; Campos Deck, ¶ 4. Mr. Torres never extended this courtesy to Mr. Gathenji.
Audit Visits and Advance Notice
Mr. Torres would audit other stores every 90 days or every 60 days, but he audited Mr. Gathenji’s store every month. Gathenji Depo., pp. 35-36; Torres Depo., p. 34. In addition, Mr. Torres’ audit of Mr. Gathenji’s store was unannounced.
Mr. Gathenji claims that Mr. Torres also pre-informed multiple district managers that regional district manager Phil Lester would be visiting the region for a cheсk-up. Mr. Gathenji reports that all of the store managers he spoke with — Joanne Grove, Patrick Ray, and Rudy Rosetta — told him that Mr. Torres gave them advanced notice that Mr. Lester would be coming to the district. Gathenji Depo., p. 107. Mr. Gathenji received no such notice.
Overstock
Mr. Torres penalized Mr. Gathenji if one item out of 100 boxes of items was out of place. Gathenji Depo., pp. 76-79, 87-88, 124-25. Mr. Fonseca and Mr. Gonzalez, however, were never penalized by Mr. Torres notwithstanding the fact that their overstock areas were more disorderly than Mr. Gathenji’s overstock area. Gathenji Depo., p. 125.
Inventory Matrix
Mr. Gathenji was treated differently with regard to completing the inventory matrix. Generally, Mr. Torres allowed any member of management to complete the inventory matrix, including assistant managers. Huchason Deck, ¶ 8. As such, Keith Huchason (“Mr. Huchason”), an assistant manager who worked under Mr. Hernandez, was allowed by Mr. Torres to complete the inventory matrix for Mr. Hernandez. Id. When Mr. Huchason wаs employed under Mr. Gathenji, however, Mr. Torres required Mr. Gathenji to complete the inventory matrix. Id. Mr. Torres never allowed Mr. Huchason to complete the inventory matrix for Mr. Gathenji. Id.
Staffing Issues
Insufficient Staff
According to Mr. Gathenji, Mr. Torres harassed and discriminated against Mr. Gathenji in terms of his staff. Mr. Torres repeatedly denied Mr. Gathenji’s requests for additional help or additional hours. Gathenji Depo., pp. 90-93. Mr. Torres approved other managers to get help from extra staff members when they met the “1 for 100” store sales quota; however, Mr. Gathenji was never approved for extra help on the many occasions he met that quota. Gathenji Depo., p. 88. In addition, Mr. Torres regularly approved other store managers’ requests to give their part-time employees extra hours during high sales weeks, but always denied Mr. Gathenji’s requests to grant additional hours to his employees. Gathenji Depo., p. 90. Rather than provide more help, Mr. Torres required Mr. Gathenji to cut the hours of his employees during high sales weeks. Id. Under Mr. Clark’s supervision, Mr. Gathenji sometimes received help for his store; under Mr. Torres’ supervision, Mr. Gathenji never received extra help. Id.
Transferring employees
Mr. Torres transferred two parts sales managers to Mr. Gathenji’s store after those employees received notices that their employment would be terminated. Gathenji Depo., p. 140. This was against procedure and Mr. Torres did not transfer any such employees to any other store. Id.
Insufficient Training Time
Mr. Torres allowed Mr. Gathenji only 24 hours to train a parts sales manager. Gathenji Depo., p. 140. No other district manager was given that short time frame to train a parts sales manager. Id.
Mr. Gathenji was forced to transfer some of his employees to others stores that were in a “deplorable condition” to clean them up. Gathenji Depo., p. 87. Mr. Gathenji’s store was never in such poor condition. Id. Nevertheless, Mr. Torres’ standards for cleanliness for Mr. Gathenji’s store was much higher that those for other store managers. Id. at 87-88. Sоmetimes, Mr. Torres required Mr. Gathenji to clean other stores personally. Id.
Management Meetings
Attendance
Mr. Torres never excused Mr. Gathenji from attending meetings. Gathenji Depo., p. 101. Mr. Gathenji was required to attend management meetings and request permission to leave early to pick up his daughter. Id. When he did request, Mr. Torres did not grant Mr. Gathenji permission to leave early to pick up his daughter from day care. Mr. Gathenji was unable to find someone else to pick up his daughter, and he was late. Id. at 101-02.
By contrast, Mr. Torres excused other store managers from attending the management meetings. David Hernandez (“Mr. Hernandez”) never attended personally a management meeting from 2006 through June 2007. Gathenji Depo., p. 98. Sometimes, Mr. Hernandez would appear telephonically to these meetings, but his attendance was irregular. Id. Mr. Torres also excused Mr. Fonseca and Mr. Gonzales from attending management meetings.
Belittling Mr. Gathenji
Sandra Fonseca (“Ms. Fonseca”), a former Autozone store manager, witnessed Mr. Torrеs “verbally abuse” Mr. Gathenji. S. Fonseca Deck, ¶ 8. During management meetings, Mr. Torres would belittle Mr. Gathenji by telling him that he was too slow and that his sales were not good. Id. Additionally, Mr. Torres spoke to Mr. Gathenji in a condescending manner. Id.
George Campos (“Mr. Campos”), another former Autozone store manager, also witnessed Mr. Torres’ treatment of Mr. Gathenji at management meetings. According to Mr. Campos, Mr. Torres unfairly criticized Mr. Gathenji at store manager meetings. Campos Deck, ¶¶ 1-3. Mr. Torres belittled Mr. Gathenji despite his “well-kept store and high sales.” Id. Other store managers, with fewer sales, were never belittled by Mr. Torres. Id.
Nasty Comment
Mr. Torres made a “nasty comment” about Mr. Gathenji’s family photograph to Mr. Gathenji’s assistant, Ashley Davis (“Ms. Davis”). Gathenji Depo., p. 147. Ms. Davis refused to tell Mr. Gathenji the substance of the nasty comment. Id. Mr. Gathenji took his family photograph home after Mr. Torres made the nasty comment. Id.
Demotion
Mr. Gathenji contends that although other stores had more shrink and less sales, he was demoted while оther district managers were allowed to keep their positions. Gathenji Depo., p. 139. Although Mr. Torres transferred three other district managers to different stores who experienced performance issues, Mr. Torres demoted Mr. Gathenji. Id.
In addition, Mr. Gathenji disputes the reasons for his demotion. Mr. Gathenji contends that although Mr. Torres penalized Mr. Gathenji for “lack of store growth,” there was clear store growth as documented by published quarterly and monthly statistical reports. Huchason, Deck, ¶ 9.
Post-demotion Complaints
After Mr. Gathenji was demoted, Mr. Gathenji complained to Autozone’s Employee Relations Department and Regional
Mr. Gathenji filed a complaint of discrimination with California’s Department of Fair Employment and Housing (“DFEH”) on September 11, 2007. On September 10, 2008, DFEH issued Mr. Gathenji a right-to-sue notice.
Current Employment
Mr. Gathenji continues to be employed at Autozone.
Defendants’ Opposition
Defendants argue that Mr. Gathenji was demoted for a non-discriminatory purpose. Defendants assert that after several performance issues, corrective actions and placement into a Performance Improvement Plan, Mr. Gathenji was demoted based on his continued failure to improve his performance. In addition, defendants contend that Mr. Gathenji was demoted because he failed to protect his store’s assets. To support these assertions, defendants offer the following evidence:
Poor Performance
Defendants contend that Mr. Gathenji’s claims are primarily based on the fact that Mr. Torres gave him poor scores on his loss prevention audits and discipline. Defendants argue out that Mr. Gathenji’s adverse employment action was caused by his poor performance. Defendants point out that corrective measures were taken to improve Mr. Gathenji’s performance prior to the demotion.
Corrective Actions
Defendants submit that Mr. Gathenji received five corrective actions for job performance related issues from October 10, 2006 until his July 1, 2007 demotion. These corrective actions took place on the following dates and for the following reasons (Torres Deck, ¶¶ 15-24, Exhs. A-M):
• October 10, 2006: Mr. Gathenji scored 49% on his loss prevention audit for a second consecutive time. A passing score is 85%.
• February 8, 2007: Autozone noted that Mr. Gathenji violated his loss prevention duties by failing to secure a money drop.
• February 9, 2007: Mr. Gathenji received a loss prevention audit score of 63%.
• April 20, 2007: Mr. Gathenji received a loss prevention audit score of 69%.
• May 11, 2007: Mr. Gathenji failed to maintain store merchandise properly. Although Mr. Gathenji had an opportunity to do so, Mr. Gathenji failed to comment on his audits.
Performance Improvement Plan
On March 28, 2007, Autozone placed Mr. Gathenji on a Performance Improvement Plan. Autozone gave Mr. Gathenji several dates by which to improve in deficient areas. Gathenji Depo., pp. 157-58; Torres Deck, ¶ 19, Exh. F. Autozone contends that Mr. Gathenji failed to improve after placement on the performance improvement plan.
Demotion
Mr. Torres demoted Mr. Gathenji to parts sales manager because he failed loss prevention audits and continued to perform poorly in his responsibilities. Torres Deck, ¶ 23.
Post-Demotion Vacation
Following his demotion, Mr. Gathenji improperly cashed out a week of his vacation pay by scheduling “vacation” to occur
Non-disparate Treatment
Mr. Torres contends that he audited each Autozone store and treated all store manager fairly.
Management Meetings
Mr. Torres admits that from time to time, a manager was absent from one of the management meetings. Torres Deck, ¶ 5. Mr. Torres declares, however, that when a manager wаs absent, that manager would provide Mr. Torres with advance notice of the absence and an acceptable excuse. Id. Mr. Torres submits that Mr. Hernandez had a medical excuse for missing meetings during the relevant period. Id.
Mr. Gathenji responds that he is aware of more than one instance in which a manager was allowed to miss a meeting without excuse and without disciplinary consequences from Mr. Torres. Gathenji Depo., pp. 97, 102, 103. Moreover, Mr. Gathenji maintains that even when he had an acceptable excuse, such as the need to pick up his child, Mr. Torres denied Mr. Gathenji’s request. Id.
Other Demotions
Mr. Torres points out that he previously demoted Mr. Fonseca from store manager to parts sales manager for poor performance. Torres Deck, ¶ 21.
Loss Prevention Audits
Mr. Torres required all managers to pass loss prevention audits and to maintain the security of their cash deposits. Torres Deck, ¶ 14; Fonseca Deck, ¶ 4; Gonzales Deck, ¶ 4. Both Mr. Gonzales and Mr. Fonseca have lost points for failing to do adequate weekly recaps on occasions in the past. Torres Deck, ¶¶ 7-8; Fonseca Deck, ¶¶ 5-6; Gonzales Deck, ¶¶ 5-6.
Mr. Torres further contends that he performed loss prevention audits at regular intervals at all stores. Torres Deck, ¶¶ 10-12.
Procedural History
Mr. Gathenji initiated this action on December 19, 2008. Proceeding on his amended complaint filed September 21, 2009, Mr. Gathenji asserts the following causes of action against defendants:
1. Race discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2. (“Title VII”);
2. National origin discrimination in violation of Title VII;
3. Harassment in violation of Title VII;
4. Retaliation in violation of Title VII;
5. Race discrimination in violation of the Civil Rights Act of 1866, 42 U.S.C. § 1981;
6. Race discrimination in violation of California Government Code § 12940 (“FEHA”)
7. National origin discrimination in violation of California’s FEHA;
8. Failure to Prevent in violation of FEHA;
9. Harassment in violation of FEHA; and
10. Retaliation in violation of FEHA.
Defendants moved for summary judgment on December 18, 2009 and set a hearing date for March 10, 2010. Mr. Gathenji opposed the motion on February 24, 2010. Defendants failed to file a timely reply. This Court found this motion suitable for decision without a hearing, vacated the Mаrch 10, 2010 hearing pursuant to Local Rule 230(g), and issues the following order.
Standard of Review
On summary judgment, a court must decide whether there is a “genuine issue as
To establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor, but “must do more than simply show that there is some metaphysical doubt as to the material facts.”
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp.,
Discussion
Federal and State Discrimination
Mr. Gathenji asserts multiple federal and state discrimination claims: (1) race discrimination in violation of Title VII (first cause of action); (2) national origin discrimination in violation of Title VII (second cause of action); (3) race discrimination in violation of 42 U.S.C. § 1981 (fifth cause of action)
2
; (4) race discrimination in violation of California’s FEHA (sixth cause of action); and (5) national origin discrimination in violation of FEHA (sev
Under the burden-shifting framework of Title VII and FEHA, Mr. Gathenji must establish a prima facie case of discrimination in the workplace by demonstrating that he: (1) was a member of a pi-otected class; (2) performed his job in a competent manner; (3) suffered an adverse employment action; and (4) the action occurred under circumstances suggesting discriminatory motive (i.e. person outside of the protected class was treated more favorably).
McDonnell Douglas,
If Mr. Gathenji establishes his prima facie case, the burden shifts to Auto-Zone to rebut the presumption of discrimination.
McDonnell Douglas,
If
Autozone
meets its
burden, the presumption of discrimination raised by the prima facie case “simply drops out of the piсture.”
St. Mary’s,
Mr. Gathenji’s Prima Facie Case
Protected Class
Mr. Gathenji undisputedly is a member of а protected class under the definitions of both race and national origin. “Race” is interpreted broadly to mean classes of persons identifiable because of their ancestry or ethnic characteristics.
Saint Francis College v. Al-Khazraji,
Performed in Competent Manner
Defendants argue that Mr. Gathenji’s “performance was so poor ... that AutoZone could have terminated him with ample justification.” Def. Memo., p. 6. To support the argument, however, defendants rely on unsupported or irrelevant facts. Defendants argue that Mr. Gathenji “failed to make a $300 cash deposit forcing Torres to search his store on his hands and knees to find the lost deposit” and Mr. Gathenji “failed a walk-through by the regional manager about whom Plaintiff has no complaint.” Id. Defendants fail to support these assertions, however, with citations to the record and these facts are not contained in defendants’ statement of facts. Moreover, defendants argue that Mr. Gathenji performed incompetently because he cashed out five vacation days on his regular days off. Whether Mr. Gathenji took vacation days during his regularly scheduled weekends after he was demoted to parts sales manager is inapposite to whether Mr. Gathenji worked competently as a store manager. Thus, defendants fail to establish that Mr. Gathenji worked incompetently as a store manager before he was demoted.
In addition, and based on the evidence, this Court rejects defendants’ argument that Mr. Gathenji’s loss prevention audit failures establish conclusively his poor job performance. Mr. Gathenji presents evidence that Mr. Torres gave other store managers passing scores even if their overstock was completely disorganized and the paperwork was incomplete or missing. Gathenji Deck, ¶ 5; Huchason Deck, ¶¶ 6-8; Peraza Deck, ¶¶4-5. Mr. Torres corrected and completed other store managers loss prevention report, but did not do so for Mr. Gathenji. Peraza Deck, ¶¶ 1-3. Mr. Gathenji presented evidence that demonstrates, if viewed in a light most favorable to Mr. Gathenji, that Mr. Torres held Mr. Gathenji to higher standards than other district managers, set up Mr. Gathenji for failure by controlling staffing issues, and deducted points from Mr. Gathenji in an unfair manner. Two former store managers declare that Mr. Torres allowed them to fix errors on the audit report before he signed off, or that he signed off on their reports even if they were incomplete or insufficient. Accordingly, there are questions of fact as to whether Mr. Gathenji’s loss prevention audit failures
Mr. Gathenji asserts that he performed his duties competently and professionally while employed at Autozone, and became a valued member of Autozone’s organization. Mr. Gathenji points out that for years, Mr. Gathenji worked as an Autozone store manager without incident. Mr. Gathenji did not have alleged performance issues until Mr. Torres became the district manager. In addition, Mr. Gathenji argues, despite Mr. Torres’ attempts to harass, discrimination against, and retaliate against Mr. Gathenji, Mr. Gathenji is still employed by Autozone.
Mr. Gathenji acknowledges that corrective actions were taken against him before he was demoted, but contends that Mr. Torres unfairly scored his loss prevention audits. A store manager’s loss prevention performance is measured by the district manager who performs the loss prevention audit. Torres Deck, ¶ 6. Thus, Mr. Gathenji argues that he failed his loss prevention audited based of Mr. Torres’ discriminatory actions, not because of his poor performance. Mr. Gathenji reports that these loss prevention audit “failures” include missing signatures on otherwise-completed paperwork lack of verification on completed special orders. Mr. Gathenji claims that Mr. Torres failed him if there was one single misplaced item in over 100 boxes of overstock.
Based on the evidence presented and the argument of the parties, this Court finds that Mr. Gathenji establishes that he worked as a store manager competently for purposes of this motion. Mr. Gathenji presents evidence that Mr. Gathenji worked at the same level or better than other store managers in the district who were not disciplined for their performance. In addition, there questions of fact as to whether the loss prevention audits are an objective measure of job performance and whether Mr. Torres’ evaluation of Mr. Gathenji was objective. Accordingly, Mr. Gathenji carries his burden on this element of his prima facie case.
Adverse Employment Action
Autozone undisputedly demoted Mr. Gathenji from store manager to parts sales manager. To establish this element, Mr. Gathenji must show a “materially adverse change in the terms or conditions of employment because of the employer’s actions.”
Michael v. Caterpillar Fin’l Servs. Corp.,
Discriminatory Motive
Mr. Gathenji establishes discriminatory motive by presenting evidence that “others not in [his] protected class were treated more favorably.”
Washington v. Garrett,
Defendants’ Purported NonDiscriminatory Reasons for Action
Having presented evidenсe to satisfy each element, Mr. Gathenji establishes a prima facie case for federal and state discrimination based on race and national origin. The burden shifts now shifts to Autozone to rebut the presumption of discrimination.
McDonnell Douglas,
Defendants satisfy their burden to rebut the presumption. Defendants present evidence that Mr. Gathenji’s demotion was legitimate. Defendants point to the uncontroverted evidence that Mr. Gathenji received failing marks on five loss prevention audits. Defendants placed Mr. Gathenji on a performance improvement plan to give him additional time to improve. Mr. Gathenji was demoted after he continued to fail his loss prevention audits after being placed on the performance improvement plan. Mr. Gathenji does not oppose defendants’ contention that based on the evidence, defendants carry their burden to establish that Mr. Gathenji was demoted for a legitimate business purpose based on his poor рerformance.
Plaintiffs’ Argument of Pretext
Because Autozone rebutted the presumption of discrimination, the burden shifts back to Mr. Gathenji to establish that Autozone’s stated reasons for the adverse employment action was pretext for unlawful discrimination.
Bradley,
To oppose this motion, Mr. Gathenji need only show that the “claimed factual dispute be shown to require a jury or judge to resolve the parties’ differing versions of the truth at trial.”
First National Bank of Arizona,
Mr. Gathenji establishes that a genuine issue of fact exists as to his discrimination claims. Mr. Gathenji has shown through his deposition and declara
Federal and State Harassment
Mr. Gathenji claims harassment in violation of Title VII (third cause of action) and FEHA (ninth cause of action). California’s FEHA “explicitly prohibits an employer from harassing an employee on the basis of race ... or ethnicity.”
Dee v. Vintage Petroleum, Inc.,
A harassment claim is distinct from a claim of discrimination.
Roby v. McKesson Corp.,
verbal epithets or derogatory comments, physical interference with freedom ofmovement, derogatory posters or cartoons, and unwanted sexual advances ... [HJarassment consists of a type of conduct not necessary to perform a supervisory job. Instead, harassment consists of conduct outside the scope of necessary job performance, conduct presumably engaged in for personal gratification, because of meanness or bigotry, or for other personal motives. Harassment is not conduct of a type necessary for management of the employer’s business or performance of the supervisory’s employee’s job.
Janken v. GM Hughes Electronics,
Mr. Gathenji bases his harassment claims on conduct that is within the scope of Mr. Torres’ job duties. Mr. Gathenji does not dispute that his harassment claim is based primarily on the fact that Mr. Torres gave him poor scores on his loss prevention audits and discipline. PI. Separate Statement of Facts, Fact No. 32. Mr. Gathenji asserts that Mr. Torres’ harassment created a hostile work environment for him at Autozone, because he unfairly penalized him. Specifically, Mr. Gathenji argues that Mr. Torres harassed him when he was demoted him for “lack of store growth” notwithstanding the fact that there was significant growth in Mr. Gathenji’s store during the relevant time period. Moreover, Mr. Gathenji claims that on several occasions, Mr. Torres verbally abused, belittled, and criticized Mr. Gathenji in the presence of the other store managers. The alleged verbal abuse related to Mr. Torres’s comments about Mr. Gathenji’s store performance made at management meetings. While these allegations may be found discriminatory if based on improper motives, they do not state a claim for harassment:
[C]ommonly necessary personnel management actions such as hiring and firing, job or project assignments, office or work station assignments, promotion or demotion, performance evaluations, the provision of support, the assignment or nonassignment of supervisory functions, deciding who will or who will not attend meetings, deciding who will be laid off, and the like do not come within the meaning of harassment.
Reno,
Additionally, Mr. Gathenji fails to establish that the conduct was “sufficiently severe or pervasive to alter the conditions of the [plaintiffs] employment and create an abusive working environment.”
Meritor Savings Bank,
Mr. Gathenji’s harassment claim is based on conduct that Mr. Torres performed within the scope of his job duties as Mr. Gathenji’s supervisor. The demotion, loss prevention audit scores, and statements about Mr. Gathenji’s performance at management meetings constitute conduct related to business and personnel management. As such, the conduct does not fаll within the meaning of harassment. In addition, the conduct is not as pervasive or severe as to reach the level of harassment by reasonable, objective standards. Accordingly, defendants are entitled to summary adjudication in their favor on Mr. Gathenji’s harassment claims.
Retaliation
Mr. Gathenji asserts claims for retaliation in violation of Title VII (fourth cause of action) and FEHA (tenth cause of action). To establish a prima facie case of retaliation under state and federal law, Mr. Gathenji must prove that: (1) he engaged in a protected activity; (2) he suffered an adverse employment action; and (3) a causal link existed between the protected activity and the adverse employment action.
Cohen v. Fred Meyer, Inc.,
Based on these standards, Mr. Gathenji must establish that he suffered an adverse employment action that was caused by a “statutorily protected expression.”
E.E.O.C. v. Crown Zellerbach Corp.,
Failure to Prevent
Defendants’ failure to prevent (eighth cause
of
action) argument is based on their position that Mr. Gathenji’s discrimination and harassment claims fails. Defendants argue that Mr. Gathenji’s failure to prevent harassment and discrimination claims fail because Mr. Gathenji “has not established that he suffered harassment or discrimination.” To the extent that Mr.
Failure to Exhaust
Defendants contend that Mr. Gathenji’s claims against Mr. Torres fail because Mr. Gathenji failed to exhaust his administrative remedies against Mr. Torres. To raise FEHA claims against Mr. Torres, Mr. Gathenji must exhaust administrative remedies. “To allow a complainant to sue individuals in a state court against a FEHA cause of action without having brought them into the scope of the comprehensive administrative process by naming them as perpetrators of discrimination at the outset would undermine the purposes of the fair employment statute.”
Cole v. Antelope Valley Union High Sch. Dist.,
California’s administrative remedy exhaustion requirement is not as rigid as defendants submit. “The function of an administrative complaint is to provide the basis for the investigation into an employee’s claim of discrimination against an employer, and not to limit access to the courts.”
Cole,
Mr. Gathenji satisfied FEHA’s exhaustion requirement. Although he did not name Mr. Torres in the caption, Mr. Gathenji named Mr. Torres in the body of his DFEH complaint. Under the “particulars” of his claim, Mr. Gathenji wrote that “Rick Torres, District Manager, told me I was written and demoted for performance problems.” Mr. Gathenji continues:
I believe I was subjected to disparate treatment based on my race and national origin (African). My belief is based on the following:
A. On or about 04/07 I was given two write-ups for performance problems (detаils on file with DFEH), non-African Managers with same performance were not reprimanded as I was.
B. On or about 06/27/07 I was subjected to demotion for performance problems. Non-African Managers with same or similar performance are not demoted as I was.
Through the body of the DFEH complaint, Mr. Torres was made aware of the charges against him in the administrative proceeding.
See Martin v. Fisher,
Punitive Damages
To recover punitive damages, Mr. Gathenji must establish “through clear and convincing evidence” that defendants acted with “oppression, fraud, or malice.” Cal. Civ.Code section 3294. “Clear and convincing evidence” is evidence “sufficient to support a finding of high probability.”
Waits v. Frito-Lay, Inc.,
Although Mr. Gathenji raises issues of fact as to his discrimination claim, he fails to carry his burden to establish his demand for punitive damages. The evidence is not “so clear as to leave no substantial doubt” that Mr. Torres acted with intent to cause injury to Mr. Gathenji, or acted with a conscious disregard for Mr. Gathenji’s rights. When viewed in a light most favorable to Mr. Gathenji, the evidence demonstrates that Mr. Torres treated Mr. Gаthenji differently and unfairly. When viewed under a heightened standard, however, the Court cannot find that the evidence is “sufficiently strong to command the unhesitating assent of every reasonable mind.” The Court cannot find that the “nasty comment” is basis for exemplary damages. Mr. Gathenji does not state the content of the “nasty comment” and does not know the content. Moreover, Mr. Torres denies making the “nasty comment.” Thus, a finding of discriminatory motive based on race or ethnic origin requires the fact-finder to take an inferential leap and make a credibility finding favorable from Mr. Gathenji. Such a determination is far from clear. In addition, while Mr. Gathenji and other store managers submit evidence as to Mr. Torres’ disparate treatment of Mr. Gathenji, defendants offer evidence by Mr. Torres and other store managers to the contrary. Moreover, Mr. Gathenji does not dispute that he received failing loss prevention audits and does not dispute the basis for those failures. Mr. Gathenji admits, fоr example, that he failed to sign fully the reports and that there were items out of place in his overstock. Thus, Mr. Gathenji does not submit that Mr. Torres fraudulently failed him; he argues that Mr. Torres was more lenient with others and overlooked other store managers’ deficient performance. Under these circumstances, a fact-finder may find reasonably that Mr. Torres acted without racial animus and with a non-discriminatory, business purpose to demote Mr. Gathenji. Simply put, while Mr. Gathenji raises questions of fact as to his discrimination claims, he fails to establish a “high probability” that he will recover on them. Accordingly, Mr. Gathenji may not pursue an award for punitive damages.
Conclusion
For the foregoing reasons, this Court:
1. GRANTS summary adjudication in favor of defendants and against Mr. Gathenji on Mr. Gathenji’s claims for:
a. harassment in violation of Title VII (third cause of action) and FEHA (ninth cause of action);
b. retaliation in violation of Title VII (fourth cause of action) and FEHA (tenth cause of action);
c. failure to prevent harassment (eighth causе of action); and
d. punitive damages; and
2. DENIES summary adjudication as follows:
a. Mr. Gathenji’s claims for discrimination: race discrimination in violation of Title VII (first cause of action); national origin discrimination in violation of Title VII (second cause of action); race discrimination in violation of 42 U.S.C. § 1981 (fifth cause of action); race discrimination in violation of California’s FEHA (sixth cause of action); and national origin discrimination in violation of FEHA (seventh cause of action);
b. Mr. Gathenji’s failure to prevent discrimination claim (eighth cause of action); and
c. based on defendants’ failure to exhaust argument.
IT IS SO ORDERED.
Notes
. The Court relies on the evidence presented by the parties in the record and cites to the most relevant for purposes of deciding this motion.
. The parties’ arguments focus on Mr. Gathenji’s Title VII and FEHA claims; neither party discussed Mr. Gathenji’s Civil Rights Act of 1866, 42 U.S.C. § 1981 claim. Having failed to discuss the law on this claim, and because the court evaluates 42 U.S.C. § 1981 claims the same as Title VII claims,
Manatt v. Bank of America,