ORDER RE: MOTION FOR SUMMARY JUDGMENT OR SUMMARY ADJUDICATION
I. INTRODUCTION
Dеfendant CCA of Tennessee, LLC (erroneously sued as California City Correction Center) has filed a motion for summary judgment or summary adjudication in the alternative pursuant to Federal Rule of Civil Procedure 56. For reasons discussed below, summary adjudication shall be granted as to the second and fourth causes of action for wrongful termination in violation of public policy and retaliation; sum
II. FACTS AND PROCEDURAL BACKGROUND
On February 22, 2011, plaintiff Anita Washington (hereinafter referred to as “Plaintiff’) filed the third and final iteration of her first amended complaint against defendants California City Correction Center, CCA of Tennessee, LLC and Does 1 to 20, asserting causes of action for (1) discrimination, (2) wrongful termination in violation of public policy, (3) failure to prevent discrimination, (4) retaliation, (5) intentional infliction of emotional distress and (6) defamation. The first through fifth causes of action were asserted against CCA of Tennessee, LLC; the sixth cause of action was asserted against all defendants.
“8. John Guzman was the Chief of Security for Defendant and he was Plaintiffs immediate supervisor at all times mentioned herein. John Guzman, Warden Gilkey and Warden Sugrue were the managing agents and officers for CCA at this facility. In 2004 Guzman communicated his dislike for Plaintiff because of her race and told Plaintiff that she [sic] did not like black women. Plaintiff is a black woman. From 2004, Mr. Guzman was continuously abusive of Plaintiff. Guzman would continuously harass plaintiff on a daily basis about her work performance and how the warden was upset with her. Guzman would continuously tell Plaintiff that he was dissatisfled with Plaintiffs work performance. Guzman told Plaintiff that she ‘needed to improve being a sergeant over the officers in transport.’ Plaintiff then asked Guzman why Warden Gilkey was dissatisfied with Plaintiffs work performance and what Plaintiff did that caused Warden to be acting out toward her. Guzman told Plaintiff that, ‘He did not know,’ but that Plaintiff better get it together or she would be demoted, move-out [sic] of transport or even fired.”
Plaintiff further alleged:
“Plaintiff then had a meeting with Warden Gilkey and talked with him on why he was upset with Plaintiffs work performance, as a sergeant. Plaintiff then told the [sic] Warden Gilkey what Guzman had told her and how Guzman was constantly harassing her about how Warden Gilkey was upset with Plaintiffs work performance and how Warden Gil-key was watching Plaintiff. Warden Gil-key replied and told Plaintiff that he was not upset with Plaintiff, that he had no problems with Plaintiffs work performance. The warden then told Plaintiff that she hvas a good officer, to keep up the good work.’ And that if he had a problem, he would confront Plaintiff himself and would not send Guzman to do it.”
Plaintiff further alleged:
“9. Even After [sic] this incident, Guzman continued his constant harassment of Plaintiff. The harassment was constant. Guzman would constantly tell Plaintiff that if she could not do the job, ‘get out,’ find another job post. Guzman would constantly tell Plaintiff how herco-workers were saying that Plaintiff ‘was hard to work with,’ that Plaintiff ‘wasn’t doing her job, putting things on them, that I should be doing or have done myself.’ Guzman would also constantly tell Plaintiff that her co-workers were saying that they were not going to work with Plaintiff, that Guzman needed to talk to Plaintiff or they are putting in for another post because of Plaintiff. Plaintiff questioned the alleged co-workers and not one said that they had said that to Guzman. The co-workers said, ‘That is was [sic] Guzman, who did not want Plaintiff in transport and for Plaintiff to watch her back because Guzman was trying to get rid of Plaintiff.”
Plaintiff further alleged:
“10. Guzman was also continuously telling Plaintiff that the medical staff was also complaining about working with Plaintiff. Guzman would tell Plaintiff that she was hard to work with, accusing Plaintiff of making and setting up wrong dates and times, for medical appointments and releasing incomplete medical files of inmates, and not scheduling right appointments for medical ailments for the inmates. Constant complaining from the medical staff about Plaintiff, said Guzman. Plaintiff went to the medical supervisor Mrs. Ramos and medical staff, and asked Med/Super Ramos about the problems. Ramos told Plaintiff that he [sic] had not received any complaints about Plaintiff and that there were no written incident statements from the staff or her complaining about Plaintiff. Ramos confirmed that she had a good professional working relationship with her and her staff.”
Plaintiff further alleged:
“11. In 2005/2006, Guzman told Plaintiff that the Transport Officers were complaining about working with Plaintiff on the airlift trips. Guzman would continuously complain to Plaintiff that her co-workers on the airlifts told him that Plaintiff was not doing her job, not communicating, not giving information and not working as a team. Guzman said, the officers were tired of Plaintiff acting like ‘you’re better than they are,’ and how Plaintiff ‘was not doing anything.’ That the co-worker wanted to switch Plaintiff out with a different Officer In Charge (OIC) for the airlifts. Plaintiff went to her co-workers and confronted them with what Guzman had said. The co-workers all said that, they did not have any complaints against Plaintiff on the airlifts, and that they did not go to Guzman and complain. The coworkers all said, “If the warden or captain and records department was not complaining or writing me up, [ ] then Plaintiff should know that it was Guzman who was doing all the complaining.” The coworkers told Plaintiff that Guzman had told them that he did not Plaintiff [sic] in transport anymore. Guzman became upset after he realized that Plaintiff spoke to the Transport Staff about his false allegations and removed Plaintiff from the airlift trips and put Plaintiff in charge of the medical runs, scheduling and paperwork, as a set up [sic] to terminate Plaintiffs employment.”
Plaintiff further alleged:
“12. In October 2007, Plaintiff was demoted to Corrections Officer. Plaintiff had complained to Mr. Guzman to stop his racial discriminatory practices and he refused to do so and instead continue [sic] his pattern of discriminatory practices against Plaintiff. In or around September or October 2008, Plaintiff asked Mr. Guzman that she not be placed in transit because the high blood pressure medication she was taking made her drowsy. Plaintiff was placed in transit anyways and was demoted to the position of Correction Officer by Mr. Guzman because Plaintiff was allegedlydrowsy in transit. After Plaintiff complained about the discriminatory act of Guzman, she was subjected to retaliation in the form of false accusations of inappropriate relationship with an inmate and giving away equal or value [sic] to an inmate. The allegation against Plaintiff was that an inmate stated that someone namеd Ana had a sexual relation with him. Plaintiffs name is Anita not Ana, but Plaintiff was singled out for investigations and harassment. Plaintiff was subsequently terminated on March 4, 2009, because of these false allegations motivated solely by racial discrimination and retaliation.”
Plaintiff further alleged that on or about January 27, 2009, she filed a “Charge of Discrimination with the California Department of Fair Employment and Housing [DFEH] based upon retaliation,” and that on or about January 29, 2009, DFEH “issued a Notice of Right-to Sue letter.” On March 20, 2012, CCA of Tennessee, LLC (hereinafter referred to as “Defendant”) filed its motion for summary judgment or summary adjudication in the alternative pursuant to Federal Rule of Civil Procedure 56. Plaintiff filed her opposition to Defendant’s motion for summary judgment or summary adjudication on April 3, 2012. On April 16, 2012, Defendant filed its reply to Plaintiffs opposition.
III. LEGAL STANDARD
“A party may move for summary judgment, identifying each claim or defense— or the part of each claim or defense — on which summary judgment is sought. The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The moving party bears the initial burden of “informing the district court of the basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323,
IV. DISCUSSION
A. FEHA claims — Plaintiffs first through fourth causes of action assert claims of racial discrimination, wrongful termination in violation of public policy, failure to prevent discrimination and retaliation, respectively. The first, third and fourth causes of action are statutory claims
1. Summary judgment principles applicable in the context of employment discrimination claims — FEHA provides in pertinent part: “It is an unlawful employment practice ... [¶] (a) For an employer, because of the race ... of any person, to refuse to hire or employ the person or to refuse to select the person for a training program leading to employment, or to bar or to discharge the person from employment or from a training program leading to employment, or to discriminate against the person in compensation or in terms, conditions, or privileges of employinent.” Cal. Gov.Code, § 12940. “ ‘Race ... ’ includes a perception that the person has ... [that] characteristic ] or ... is associated with a person who has, or is perceived to have, ... [that] characteristic].” Cal. Gov.Code, § 12926(n). “Because state and federal employment discrimination laws are similar, California courts look to federal precedent when interpreting FEHA. Guz v. Bechtel Nat’l, Inc.,
“Under the three-part McDonnell Douglas test, the plaintiff bears the initial burden of establishing a prima facie case of employment discrimination.” Earl, supra,
This order of proof applies, however, only when discrimination claims are tried before a court or a jury. See Guz, supra,
2. Exhaustion of administrative remedies—Defendant contends as an initial matter that summary adjudication should be granted in its favor as to Plaintiffs three statutory FEHA causes of action (the first, third and fourth causes of action for discrimination, failure to prevent discrimination and retaliation, respectively) because Plaintiff failed to exhaust her administrative remedies with DFEH prior
Having reviewed the pleadings of record and all competent and admissible evidence submitted, the Court first finds there are genuine issues of material fact as to whether Plaintiff exhausted her administrative remedies on the discrimination and failure to prevent discrimination claims. Plaintiffs administrative complaint, filed with DFEH on January 26, 2009, alleged in pertinent part as follows: “I believe that on or about [¶] 05/27/08 to present [¶] respondent California City Correctional Center [¶] Has subjected me to wrongful investigation of inappropriate behavior [¶] because of my race [¶] African-American [¶] in violation of the California Fair Employment and Housing Act.” Notwithstanding the fact that Plaintiff filed her complaint on a preprinted DFEH form entitled “Complaint for Discrimination” and checked a box indicating race as the cause of the discrimination, such allegations are clearly sufficient to encompass claims of discrimination. See Roby v. McKesson,
The allegations in the administrative complaint were also sufficient to encompass claims of retaliation. The Fourth District of the California Court of Appeal recently observed in Wills, supra, 195 Cal.
In her administrative complaint, Plaintiff did not invoke the term “retaliation” or some variation thereof, nor did she ever file a supplement to the complaint designating retaliation under FEHA (Cal. Gov.Code, § 12940, subd. (h)) as a distinct claim separate and apart from her claim of discrimination. Nevertheless, Plaintiff alleged Defendant subjected her to a wrongful investigation of inappropriate behavior because of her race. Plaintiff subsequently alleged in her civil complaint that Defendant retaliated against her by wrongfully investigating her behavior after she complained to Defendant about Guzman’s racially motivated discrimination. In the Court’s view, a charge an employer has retaliated against an employee by wrongfully investigating her after she complains about racial discrimination is subsumed within, and thus “like and reasonably related” to, the more general claim the employer has subjected the employee to a wrongful investigation because of her race. Wills, supra,
In the Court’s view, the retaliation alleged in Plaintiffs civil complaint would also havе been encompassed within the scope of any administrative investigation
In its motion, Defendant contends the FEHA claims are barred because Plaintiff never alleged a termination in her administrative complaint, even though the claims “stem primarily from her allegedly unlawful termination.” Defendant further contends no termination could have been uncovered in an administrative investigation given Plaintiff was not terminated until March 2009, or approximately two months after she filed her administrative complaint. If Plaintiffs claims were premised exclusively on her termination (i.e., a termination was the only adverse employment action alleged by Plaintiff), the Court would be inclined to agree with Defendant. As Defendant correctly observes, Plaintiff did not allege a termination in her administrative complaint, and the only evidence in the record to suggest DFEH was ever informed of any misconduct related to Plaintiffs termination is her declaration, attached as an exhibit to the opposition, wherein she testifies as follows: “I was informed on January 13, 2009 that I have lost my job by the investigators from the [Department of Justice]. I then contacted the department of fair employment and housing [sic] over the telephone and reported the discrimination and harassment and that I was informed that I had been terminated. The complaint was prepared by staff of the DFEH over the telephone and then transmitted to me for my signature.” As the parties are no doubt aware, “oral statements made to DFEH before filing an administrative complaint are not sufficient to еxhaust administrative remedies.” Wills, supra,
3. Discrimination cause of action — The Court now turns to the causes of action, beginning with discrimination. As a threshold matter, Defendant attempts to meet its initial burden on summary judgment by arguing Plaintiff cannot establish all four elements of a prima facie case of discrimination based on race. As noted above, to establish a prima facie case of discrimination, “the plaintiff must provide evidence that (1) he was a member of a protected class, (2) he was qualified for the position he sought or was performing competently in the position he held, (3) he suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests discriminatory motive.” Guz, supra,
Having reviewed the pleadings of record and all competent and admissible evidence submitted, the Court first finds Defendant has met its initial burden. Defendant refers to Plaintiffs deposition testimony and various documentary exhibits as support for its contention Plaintiff was not performing competently in her position. At her deposition, Plaintiff testified she had received a disciplinary notice from her supervisors sometime in 2005 for unprofessional conduct in dealing with an inmate. Plaintiff explained the way she had handled herself — “[getting] into a situation with an inmate on a transport, which led to an argument”— was deemed to be unprofessional, resulting in several dаys’ suspension without pay. This incident was documented in a “CCA Employee Problem Solving Notice” dated September 7, 2005, stating Plaintiff had been involved in an altercation with an inmate at High Desert Medical Group and had admitted to arguing with him and stepping on his leg restraints. The notice further found Plaintiff had violated Defendant’s Code of Conduct (CCA Policy 3-3) and recommended she be suspended for five days and demoted to Correctional Officer. At her deposition, Plaintiff further testified she received a “CCA Facility Employee Problem Solving Notice” from her supervisors dated September 17, 2007. The record shows the notice was issued to Plaintiff for a situation occurring on March 23, 2007, during which Plaintiff was found to have been asleep and inattentive on duty while escorting an inmate to dialysis treatment. The notice further recommended Plaintiff be suspended and demoted. In the Court’s view, the foregoing evidence is sufficient to demonstrate at least one of the elements of Plaintiffs prima facie case — that she was performing competently in the position she held — is lacking.
The Court further finds Defendant has met its burden by showing Plaintiffs demotion was based on legitimate, nondiscriminatory factors. See Guz, supra,
“A plaintiff may demonstrate pretext in either of two ways: (1) directly, by showing that unlawful discrimination more likely than not motivated the employer; or (2) indirectly, by showing that the employer’s proffered explanation is unworthy of credence because it is internally inconsistent or otherwise not believable.” Earl, supra,
In a declaration submitted with the opposition, Plaintiff testifies: “In 2004, Guzman communicated his dislike for me and told me that he did not like black women. I am a black woman. From 2004, Guzman was continuously abusive towards me. Guzman would continuously harass me on a daily basis about my work performance and how the warden was upset with me. Guzman would continuously tell me that he was dissatisfied with my work performance.” Plaintiff further testifies: “Guzman would constantly tell me that if I could not do the job, ‘get out,’ find another job post.” Plaintiff further testifies: “In October 2007, I was demoted to Corrections Officer. I had complained to Mr. Guzman to stop his racial discriminatory practices and he refused to do so and instead continue [sic] his pattern of discriminatory practices against me. In or around September or October 2008, I asked Mr. Guzman not to place me in transit because the high blood pressure medication I was taking made me drowsy. He placed me in transit anyways and I was demoted to the position of Correction [sic] Officer by Mr. Guzman[.]” Guzman’s derogatory comment about black women,
4. Failure to prevent discrimination cause of action — Defendant further moves for summary adjudication of Plaintiffs cause of action for failure to prevent discrimination, contending that where there has been no discrimination, there can be no claim for failure to prevent it. Under FEHA, it is an unlawful employment practice “[flor an employer ... to fail to take all reasonable steps to prevent discrimination ... from occurring.” Cal. Gov.Code, § 12940, subd. (k). “One such reasonable step, and one that is required in order to ensure a discrimination-free work environment, is a prompt investigation of [a] discrimination claim.” California Fair Employment and Housing Commission v. Gemini Aluminum Corporation,
5. Retaliation cause of action — Defendant further moves for summary adjudication of the retaliation cause of action. “The elements of a claim for retaliation in violation of section 12940, subdivision (h), are ... (1) the employee’s engagement in a protected activity, i.e., ‘opposing] any practices forbidden under this part’; (2) retaliatory animus on the part of the employer; (3) an adverse action by the employer; (4) a causal link between the retaliatory animus and the adverse action; (5) damages; and (6) causation.” Mamou v. Trendwest Resorts, Inc.,
To' meet its initial burden, Defendant first cоntends the evidence fails to show Plaintiff engaged in any protected activity under FEHA. Having reviewed the pleadings of record and all competent and admissible evidence submitted, the
Defendant further suggests there are no genuine issues of material fact as to adverse employment actions. Not so. “[I]n order to establish either a discrimination or a retaliation claim, ‘an employee must demonstrate that he or she has been subjected to an adverse employment action that materially affects the terms, conditions, or privileges of employment!.]’ ” Jones v. Lodge at Torrey Pines Partnership,
Nevertheless, the Court further finds that, even assuming Plaintiff engaged in protected activity and suffered an adverse employment action, there are no genuine issues of material fact as to causality. “To show the requisite causal link, the plaintiff must present evidence sufficient to raise the inference that her protected activity was the likely reason for the adverse action. [Citations.] Essential to a causal link is evidence that the em
Even assuming Defendant knew of Plaintiffs complaint, there is no evidence, other than the temporal proximity between the complaint and the accusations, to suggest Defendant took action against Plaintiff because she complained. Plaintiff essentially cоncedes this in her opposition, but contends temporal proximity, by itself, is nonetheless sufficient to warrant an inference of retaliation. The Court disagrees. “The cases that accept mere temporary proximity between an employer’s knowledge of protected activity and an adverse employment action as sufficient evidence of causality to establish a prima facie case [of retaliation] uniformly hold that the temporal proximity must be ‘very close,’ O’Neal v. Ferguson Constr. Co.,
6. Wrongful termination cause of action — Defendant further contends summary adjudication should be granted as to Plaintiffs cause of action for wrongful termination in violation of the public policy embodied by FEHA’s anti-discrimination/retaliation provisions. “[W]hen an employer’s discharge of an employee violates fundamental principles of public policy, the discharged employee may maintain a tort action and recover damages traditionally available in such actions.” Tameny v. Atlantic Richfield Co.,
Having reviewed the pleadings of record and all competent and admissible evidence submitted, the Court first finds Defendant has met its initial burden by offering a legitimate, nondiscriminatory reason for its decision to terminate Plaintiffs employment. Defendant submits the declaration of Alfred Zavala, who testifies as follows:
“1. I am currently employed by CCA of Tennessee, LLC (‘CCA’) as an Investigator at the Nevada Southern Detention Center. I worked at CCA’s California City facility as a Special Investigative Agent from January 2007 through June 2010.... [¶] 2. In 2008, the federal Department of Justice (‘DOJ’) conducted an independent investigation into allegations involving Correctional Officer, Anita Washington, who worked at CCA’s California City facility. The investigation stemmed from regular monitoring of prerecorded inmate telephone conversations of an inmate Rabago stating that someone on the inside has been helping him out.”
Zavala further testifies:
“3. In connection with the investigation I assisted the DOJ with coordinating meetings with witnesses and transmitting relevant documents to the DOJ. However, I made no attempts, nor did anyone at CCA of which I am aware, to influence the investigation or bias the conclusions of the DOJ. [¶] 4. Following the investigation, David Loftus of the DOJ, provided a Report of Investigation to CCA.”
Defendant also submits the declaration of John Sugrue, who testifies as follows:
“1. I was formerly the Warden at CCA of Tennessee, LLC’s California City facility and held that position in March 2009 ____[¶] 2. CCA provides privately-managed corrections solutions to federal, state and local government. CCA operates the California City Correctional Center pursuant to a federal contract. [¶] ... [¶] 4. In or about March 24, 2009, the DOJ provided me with a Report of Investigation that sustained the allegations against Washington of inappropriate relationship with an inmate/giving anything of value to an inmate. I believed in good faith that the conclusions reached in the Report of Investigation were true.”
Sugrue further testifies:
“5. The DOJ’s findings confirming inappropriate relationship with an inmate and giving anything of value to an inmate against Washington were also sustainеd on or around March 24, 2009 by the Office of Internal Affairs, Federal Bureau of Prisons. [¶] 6. Based upon the Report of Investigation, and conclusions from the Department of Justice contained therein, I terminated Washington’s employment with CCA. [¶] 7. John Guzman was not consulted nor did he participate in the decision to terminate Plaintiff. [¶] 8. Washington’s race and gender played no role in my decision to terminate her employment with CCA.”
Defendant also submits the declaration of Ronald Thompson, who testifies as follows:
.“1. I was the Managing Director, Facility Operations, at CCA of Tennessee, LLC’s California City facility and held that position in March and April of 2009.... [¶] 3. On or about March 27, 2009, Plaintiff filed a grievance in connection with her termination on or about March 24, 2009. [¶] 4. I was responsible for looking into and handling the grievance related to her termination. During the course of my investigation I learned that the federal Department of Justice (‘DOJ’) had conducted an independent investigation into allegations involving Correctional Officer, Anita Washington, who worked at CCA’s California City facility.”
Thompson further testifies:
“5. During the investigation, I reviewed the DOJ Report of Investigation, and the underlying evidence, that sustained the allegations against Washington of inappropriate relationship with an inmate/giving anything of value to an inmate. I believed in good faith that the conclusions reached in the Report of Investigation was [sic] true. [¶] 6. The DOJ’s findings confirming inappropriate relationship with an inmate and giving anything of value to an inmate against Washington were also sustained on or around March 24, 2009 by the Office of Internal Affairs, Federal Bureau of Prisons. [¶] 7. Based upon my review of the Report of Investigation, and my belief in the conclusions contained therein, I upheld the Warden Surge’s [sic] decision to terminate Plaintiffs employment with CCA. [¶] 8. Washington’s race and gender played no role in my decision to uphold the termination decision.”
“When an employer is told of improper conduct at its workplace, the employer can lawfully ask: is the accusation true?” E.E.O.C. v. Total System Services, Inc.,
Plaintiff attempts to establish pretext indirectly by pointing to her declaration, wherein she testifies: “The allegation against me was that an inmate stated that someone named ‘Ana’ had a sexual relation with him. [¶] 13. My name is Anita and not ‘Ana.’ I was not the only African American employee working for CCA at that time and there was another employee named Ana Anderson also employed by CCA. [¶] 14. Despite this fact, I was singled out for investigations and harassment. No other employee was suspected by CCA to be the one aiding the inmate and or [sic] investigated for the allegations made.” From this, Plaintiff contends Defendant’s explanation is inherently unbelievable. The Court does not agree. Contrary to Plaintiff’s implication, the DOJ investigation was not based solely on the allegation that someone named Ana had had a sexual relationship with an inmate. The evidence shows the investigation was initiated based on an allegation that Plaintiff had allowed an. inmate to have additional meals without scanning his inmate identification card. The evidence further
Plaintiff further suggests that the temporal proximity between her complaint and termination is itself sufficient to create a genuine issue of material fact as to pretext. Problematically for Plaintiff, “[w]here the employee relies solely оn temporal proximity in response to the employer’s evidence of a nonretaliatory reason for termination, he or she does not create a triable issue as to pretext[.]” Arteaga v. Brink’s, Inc.,
C. Emotional distress claim— Lastly, Defendant moves for summary adjudication of the fifth cause of action for intentional infliction of emotional distress, contending there are no genuine issues of material fact as to extreme and outrageous conduct. “The elements of a cause of action for intentional infliction of emotional distress are: ‘ “(1) outrageous conduct by the defendant, (2) intention to cause or reckless disregard of the probability of causing emotional distress, (3) severe emotional suffering and (4) actual and proximate causation of the emotional distress.” ’ ” Wong v. Tai Jing,
Based on the foregoing, the motion of defendant CCA of Tennessee, LLC for summary judgment is DENIED. Summary adjudication in favor of defendant CCA of Tennessee, LLC is GRANTED as to the second and fourth causes of action for wrongful termination in violation of public policy and retaliation, respectively. Summary adjudication is DENIED as to the first, third and fifth causes of action for discrimination, failure to prevent discrimination and intentional infliction of emotional distress, respectively, and as to the prayer for punitive damages.
IT IS SO ORDERED.
Notes
. On February 28, 2011, Defendant filed a motion to dismiss the sixth cause of action for defamation pursuant to Federal Rule of Civil Procedure 12(b)(6). The Court (Wanger, J.) granted Defendant’s motion to dismiss on April 25, 2011,
. A plaintiff in a FEHA employment discrimination case may create genuine issues of material fact by offering direct or circumstantial evidence of discrimination. Guz, supra,
. The Court may cite unpublished California appellate decisions as persuasive authority. See Employers Ins. of Wausau v. Granite State Ins. Co.,