Andrea Van Scoy, etal v. New Albertson's, Inc., etal
Filing
160
ORDER signed by Judge Morrison C. England, Jr on 6/28/2011 ORDERING that Defendant has not established as a matter of law that Plaintiffs claims, as set forth in their First Cause of Action, are barred by the applicable statute of limitations. Since Defendant must necessarily make that showing in order to prevail pursuant to the terms of their motions, Defendants 128 130 Motions for Summary Judgment are hereby DENIED.(Duong, D)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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ANDREA VAN SCOY, LYNDA
AZEVEDO, DIANA MURDOCK,
CHRISTINA CARNES; MINA
JO GUERRERO, MIRACLE
JOHNSON, ROSANNE LAZUKA,
PATRICIA LOGAN, TERESA
LYON, THERESA ORTH, and
MARA GRACE SMITH,
No. 2:08-cv-02237-MCE-KJM
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Plaintiffs,
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MEMORANDUM AND ORDER
v.
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NEW ALBERTSON’S INC.,
ALBERTSON’S, INC., SAVE-MART
SUPERMARKETS, INC., LUCKY’S
INC.,
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Defendants.
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----oo0oo----
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Defendant Save Mart Supermarkets Inc., as successor in
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interest to Albertson’s, Inc. and Albertsons, LLC (“Defendant”),
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has filed two motions for summary judgment in this matter.
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first is directed solely to the claims made by Plaintiff Andrea
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Van Scoy.
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///
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The
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The second challenges the claims brought by the remaining active
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Plaintiffs, Lynda Azevedo, Diana Murdock, Christina Carnes, Mina
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Jo Guerrero, Miracle Johnson, Rosanne Lazuka and Theresa Orth.1
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Summary adjudication as to individual claims being made by the
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various plaintiffs; instead, both notices of motion simply seek
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“summary judgment as to all claims”.
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the motions, the Court’s inquiry must necessarily focus on
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whether any portion of Plaintiffs’ claims survive.
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Consequently, in ruling on
The dominant argument advanced in both motions is
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Defendant’s contention that Plaintiffs’ claims are barred by the
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six-month statute of limitations generally applicable to claims
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falling within the purview of the Labor Management Relations Act,
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29 U.S.C. § 141, et seq. (“LMRA”).
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argument in claiming that Plaintiffs’ claims fail in their
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entirety.
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burden in establishing as a matter of law that said limitations
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period expired, the instant motions must be denied.2
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Both Motions depend on that
Because the Court finds that Defendant has not met its
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Several other initially named Plaintiffs, including Teresa
Lyon and Mara Grace Smith, have since been dismissed. The
remaining Plaintiff not the subject of these motions, Patricia
Logan, is, according to counsel, in the process of being
voluntarily dismissed from this litigation.
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Because oral argument was not deemed to be of material
assistance, this matter was submitted on the briefs. E.D. Cal.
Local Rule 230(g).
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BACKGROUND
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Plaintiffs, who were white employees of Defendant’s Store
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7254 in Vallejo, California, allege they were subjected to so-
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called “reverse” discrimination at the hands of their African-
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American store manager, Lois Douglas, who is claimed to have
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discriminated, harassed and retaliated against them because they
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were not African-American. Plaintiffs filed suit on March 20,
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2008 in the Solano County Superior Court after previously filing
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a total of 19 complaints with the California Department of Fair
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Employment and Housing (“DFEH”) in March and April of 2007.
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Plaintiffs allege, inter alia, harassment, retaliation and
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discrimination in violation of the California Fair and Employment
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and Housing Act, California Government Code § 12940, et seq.
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(“FEHA”).
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According to Plaintiffs, after Lois Douglas transferred to
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Store 7254 as Store Manager in June of 2005, the atmosphere at
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the store changed markedly.
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acted in a discriminatory fashion by favoring African-American
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employees in such areas as work assignments and scheduling,
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promoting African-Americans with less seniority, and holding
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Plaintiffs to a stricter standard of conduct than African-
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American employees.
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Douglas began a campaign of harassment and intimidation which
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created a hostile work environment with the intention of forcing
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Plaintiffs to resign or to transfer to other stores.
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¶ 20.
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Plaintiffs claim that Ms. Douglas
Compl., ¶ 18.
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Plaintiffs further claim that
Id. at
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Beginning in early 2006, various Store 7254 employees
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complained to both union representatives, and directly to
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Defendant’s human resources representative Donna Breitenbach,
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about Douglas’ near daily harassment and intimidation of non-
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black employees, misuse of discipline and writeups to threaten
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employees and the resulting tension filled, hostile work
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atmosphere.
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filed Carnes Decl., ECF No. 54, ¶ 48; see also Lazuka Decl., ECF
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No. 51, ¶ 29.3
See Pls.’ Supp. Response; 3:9-14, citing previously
Defendant thereafter conducted its own internal
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investigation which culminated in an initial August 2006 report
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prepared by Ms. Breitenbach.
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citing Def.’s Breitenbach Decl., ECF No. 42, Ex. A.
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thereafter implemented a plan of action that included removing
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Ms. Douglas from issuing discipline to store employees, tasking
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managers with assisting in the interview and hiring process for
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job applicants, and sending Ms. Douglas for outside training
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aimed at improving her communication skills.
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ECF No. 42, ¶ 8.
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See Pls.’ Supp. Response, 3:14-20,
Defendant
Breitenbach Decl.,
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Plaintiffs have requested that the Court judicially notice
certain declarations and exhibits, including the Lazuka and
Sanchez declarations previously filed in connection with earlier
summary judgment motions filed by Defendant in this matter. That
request was unopposed and is granted, although unnecessary since
a district court can itself judicially notice pleadings from
earlier proceedings in the same case. See, e.g., Enterprise Bank
v. Magna Bank of Missouri, 92 F.3d 743, 746 n.3 (8th Cir. 1996);
Asdar Group v. Pillsbury, Madison & Sutro, 99 F.3d 289, 290 n.1
(9th Cir. 1996). The Court further notes that Defendant has also
requested, pursuant to Federal Rule of Evidence 201(b), that the
Court judicially notice various documents relating to Plaintiffs’
administrative proceedings before the DFEH. That request is also
unopposed and is granted.
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According to Plaintiffs, those measures still failed to
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curtail Ms. Douglas’ alleged abuses, and, as stated above, the
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eleven originally-named Plaintiffs in this case filed a total of
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19 complaints with DFEH in March and April of 2007 which alleged,
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inter alia, discrimination, retaliation, and hostile work
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environment claims against Ms. Douglas and Defendant.
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those grievances were filed, Defendant undertook further
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investigation beginning in May of 2007.
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Confidential Investigation Summary prepared by Defendant on
After
According to a
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May 17, 2007, a total of 40 additional interviews were conducted
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in conjunction with that further investigation.
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Report, Store 7254 remained “extremely dysfunctional” and the
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“worst [the author of the Report] had experienced in... 20+ years
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of investigation.”
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to Def.’s Decl. Of Monica Sanchez, ECF No. 43-1, p. 6.
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According to the Report, despite the investigation and
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recommendations of August of 2006,
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According to the
See Confidential Investigation Summary, Ex. A
“[t]he employees feel their issues were not resolved.
Local 5 does not feel the issues were resolved, and are
ongoing. The complaints appear to be the same or very
similar to the previous complaints from 1-2 years ago.”
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Id. at p. 7.
The Report went on to discuss an “action plan for
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resolution” that included meeting with the DFEH to discuss the 19
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complaints as well as follow-up meetings with union
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representatives, the transfer of Lois Douglas and other employees
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away from Store 7254, as well as meetings and retraining (as
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deemed appropriate) involving the remainder of Store 7254's
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staff.
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Id.
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There was no indication in the Report that these ongoing measures
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designed to address Plaintiffs’ claims had terminated or
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otherwise ended.
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Defendant was continuing to work towards a resolution of their
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complaints through the time the instant action was filed in March
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of 2008.
To the contrary, according to Plaintiffs,
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STANDARD
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The Federal Rules of Civil Procedure provide for summary
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judgment when “the pleadings, depositions, answers to
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interrogatories, and admissions on file, together with
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affidavits, if any, show that there is no genuine issue as to any
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material fact and that the moving party is entitled to a judgment
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as a matter of law.”
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principal purposes of Rule 56 is to dispose of factually
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unsupported claims or defenses.
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477 U.S. 317, 325 (1986).
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moving party
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Fed. R. Civ. P. 56(c).
One of the
Celotex Corp. v. Catrett,
Under summary judgment practice, the
“always bears the initial responsibility 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.”
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Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting
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Rule 56(c).
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If the moving party meets its initial responsibility, the
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burden then shifts to the opposing party to establish that a
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genuine issue as to any material fact actually does exist.
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Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
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585-587 (1986); First Nat’l Bank v. Cities Ser. Co., 391 U.S.
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253, 288-289 (1968).
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In attempting to establish the existence of this factual
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dispute, the opposing party must tender evidence of specific
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facts in the form of affidavits, and/or admissible discovery
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material, in support of its contention that the dispute exists.
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Fed. R. Civ. P. 56(e).
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the fact in contention is material, i.e., a fact that might
The opposing party must demonstrate that
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affect the outcome of the suit under the governing law, and that
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the dispute is genuine, i.e., the evidence is such that a
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reasonable jury could return a verdict for the nonmoving party.
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Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 251-52
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(1986); Owens v. Local No. 169, Assoc. of Western Pulp and Paper
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Workers, 971 F.2d 347, 355 (9th Cir. 1987).
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“before the evidence is left to the jury, there is a preliminary
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question for the judge, not whether there is literally no
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evidence, but whether there is any upon which a jury could
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properly proceed to find a verdict for the party producing it,
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upon whom the onus of proof is imposed.”
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251 (quoting Improvement Co. v. Munson, 14 Wall. 442, 448, 20 L.
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Ed. 867 (1872)).
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moving party has carried its burden under Rule 56(c), its
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opponent must do more than simply show that there is some
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metaphysical doubt as to the material facts ... Where the record
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taken as a whole could not lead a rational trier of fact to find
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for the nonmoving party, there is no ‘genuine issue for trial.’”
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Matsushita, 475 U.S. at 586-87.
Stated another way,
Anderson, 477 U.S. at
As the Supreme Court explained, “[w]hen the
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ANALYSIS
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In rejecting Plaintiffs’ Motion to Remand this lawsuit back
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to Solano County Superior Court, where it was originally filed on
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March 20, 2008, the Court found that Plaintiffs’ claims of
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discrimination, harassment and retaliation in violation of the
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Fair Employment and Housing Act, California Government Code
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§ 12940, et seq. (“FEHA”), as stated in Plaintiffs’ First Cause
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of Action,4 were preempted by the LMRA inasmuch as interpretation
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of the collective bargaining agreement was necessary to assess
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the viability of Plaintiffs’ claims that they were subjected to
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unwarranted and/or discriminatory decisions pertaining to work
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assignments, promotions, transfers and discipline.
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ECF No. 92, filed December 13, 2010.
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See Order,
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Plaintiffs’ Motion to Remand challenged only the Court’s
subject matter jurisdiction over the state claims for
discrimination, harassment and retaliation, and Defendant’s
Opposition was limited to the contention that claims relating to
promotions and shift assignments necessarily required the
interpretation of the applicable collective bargaining agreement,
and accordingly were preempted. While those claims fall squarely
within the purview of Plaintiffs’ First Cause of Action, they do
not specifically implicate Plaintiffs’ remaining FEHA claims for
disability discrimination and failure to accommodate (the Fourth
and Fifth Causes of Action, respectively). Consequently, the
Court’s previous findings with respect to preemption pertained
only to the First Cause of Action. Any inference contained in
the Court’s December 13, 2010 Order (ECF No. 92) to the contrary
is hereby rejected in accordance with the provisions of Federal
Rule of Civil Procedure 54(b), which permits the Court to revise
an order at any time before all pending claims have been
adjudicated through the entry of judgment.
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It is undisputed that the claims of all remaining Plaintiffs
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include allegations made pursuant to the First Cause of Action.
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Defendant’s papers make it equally clear that its efforts to
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obtain judgment as a matter of law as to those claims hinge, in
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part if not in whole, on whether or not the claims are in fact
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barred by the applicable statute of limitations.
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summary judgment as to Plaintiffs’ complaint in its entirety,
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which as stated above Defendant seeks through the two motions now
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before the Court,5 necessarily fails unless Defendant shows that
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the statute of limitations precludes the claims made pursuant to
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the First Cause of Action.
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Therefore
Since the Court has determined that the allegations
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contained within the First Cause of Action are preempted by the
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LMRA, the statute of limitations applicable to claims brought
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under the LMRA becomes the starting point of the Court’s
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analysis.
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within Section 301 of the LMRA itself.
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DelCostello v. Int’l Bhd. of Teamsters, 462 U.S. 151, 161-62
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(1983).
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like the case at bar, where Plaintiffs’ original claims are found
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to be preempted by the LMRA, a six-month statute of limitation
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applies.
Congress did not specify a statute of limitations
29 U.S.C. § 185;
The Ninth Circuit has agreed, however, that in a lawsuit
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While the Court recognizes that Plaintiffs argue as a
preliminary matter that Defendant’s motions are untimely, it
rejects that argument and will determine both motions on their
merits. Defendant’s motions were filed with sufficient time to
be heard before the dispositive motion cutoff of April 29, 2011
and were initially calendared for April 28, 2011. Although that
hearing date was ultimately unavailable and the motions had to be
continued to the next available hearing date (May 5, 2011), that
does not render Defendant’s motions untimely under the
circumstances.
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Cook v. Lindsay Olive Growers, 911 F.2d 233, 237 (9th Cir. 1990).
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Neither party herein disputes that a six-month statute inures
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generally to LMRA claims.
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relevant period should be applied to this particular case.
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They part ways, however, on how the
In its initial moving papers, Defendant simply cites to the
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six-month statute of limitations without demonstrating how that
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period operates to bar Plaintiffs’ particular claims.
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its reply, and after Plaintiffs opposed Defendant’s statute of
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limitations argument on grounds that Defendant had not
Not until
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demonstrated how the statute applied, did Defendant, citing
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Madison v. Motion Picture Set Painters and Sign Writers Local
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729, 132 F. Supp. 2d 1244, 1261 (C.D. Cal. 2000), assert that a
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claim under the LMRA necessarily accrues when the Plaintiffs
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learned of the wrongful conduct about which he or she complains.
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Arguing that many of Plaintiffs’ claims occurred as early as
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2006, Defendant contends that the statute for pursuing those
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claims had expired as much as two years before the present
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lawsuit was filed, despite the pendency internal grievances and
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administrative complaints lodged by Plaintiffs in the intervening
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period.
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Because Defendant’s reply indicated for the first time just
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how the purported statutory bar applied to preclude each of the
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Plaintiff’s claims, the Court ordered supplemental briefing in
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order to afford Plaintiffs the opportunity to respond to these
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newly-proferred arguments.
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Plaintiffs, while not disputing the applicability of a six-
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month statute, not surprisingly argue the statute should be
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tolled during the period Plaintiffs’ complaints were under
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investigation by Defendant and/or the subject of administrative
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proceedings under FEHA.
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that the investigative reports prepared by Defendant itself
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indicate that efforts to address and remediate Plaintiffs’
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concerns occurred up until the time this action was filed in
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March of 2008.
As set forth above, Plaintiffs maintain
Citing the Ninth Circuit’s decision in Galindo v.
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Stoody Co., 793 F.2d 1502 (9th Cir. 1986), Plaintiffs maintain
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that such an ongoing process tolls the period during the entire
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period prior to the filing of the complaint, since to do
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otherwise would penalize employees “for seeking to resolve
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[their] dispute through the grievance process before filing a
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suit in federal court.”
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other decision “would undercut the national policy favoring
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nonjudicial resolution of labor disputes.”
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where a resort to grievances procedures ultimately proves futile,
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there is “no accrual of the claim for the purposes of the
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limitation period as long as plaintiffs were making a valid,
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timely, and nonfrivolous attempt” to pursue their remedies “in
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reasonable good faith.”
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Id. at 1510.
Id.
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As the court explains, any
Consequently, even
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Defendant has produced no evidence to rebut Plaintiffs’
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contention that the internal investigation into their complaints
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remained ongoing up until the filing of this lawsuit.
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Defendant simply describes Plaintiffs’ complaints as simply
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“informal” and insufficient to toll the statute of limitations.
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Defendant cites language from a Second Circuit case, Legutko v.
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Local 816, Int’l Bhd. of Teamsters, et al., 853 F.2d 1046 (2d
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Cir. 1988), which finds that “[i]nformal correspondence should
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not toll the statute of limitations, otherwise, a plaintiff could
Instead,
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indefinitely delay resolution of Labor disputes merely by
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bombarding his union with tiresome requests....”
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(citing Sosbe v. Delco Electronics Div. of General Motors,
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830 F.2d 83, 87 (7th Cir. 1987)).
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that an indefinite postponement should be discouraged as
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“contrary to the public policy of prompt resolution”.... “and
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leav[ing] the procedure open to all of the vices which the
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statute of limitations was intended to eliminate.”
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Tootsie Roll Industries, Inc., 715 F.2d 299, 304 (7th Cir. 1983).
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Given the evidence before the Court, however, it cannot find
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as a matter of law either that Defendant’s internal investigation
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did not remain ongoing, or that Plaintiffs unreasonably relied on
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that process in attempting to resolve their differences with
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Defendant.
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Court, in the form of Defendant’s most recent May 17, 2007
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Confidential Investigation Summary, reveals on its face an
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“action plan for resolution” that includes multiple prospective
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action items and proposed meetings.
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Id. at 1054
Defendant correctly points out
Metz v.
To the contrary, the evidence that is before the
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This is a far cry from the situation before the court in Metz,
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where no grievance procedure had been undertaken at all, and
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where Metz’s alleged complaints had not resulted in any action
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being taken besides a single letter drafted by the union.
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301.
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the Legutko court’s holding that informal correspondence standing
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alone cannot toll the statute of limitations.
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hand, between Plaintiffs’ administrative complaints filed with
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the DFEH and Defendant’s ongoing investigation, with its
Id. at
Nor are the circumstances of the present matter amenable to
Here, on the other
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indication of further remedial action, the Court cannot say that
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Plaintiffs were not continuing to act reasonably, and in good
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faith, in resolving their dispute.
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Defendant’s own failure to rebut Plaintiffs’ contention that the
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investigation remained ongoing, there is no “indefinite delay” in
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this matter that dictates against tolling.
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186, supra, 853 F.2d at 1054.
Given that investigation, and
See Legutko v. Local
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While Plaintiffs arguably filed suit before Defendant’s
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investigation was concluded, that factor is not dispositive with
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respect to the timeliness of the instant action.
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be excused from exhausting internal remedies before bringing
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suit, where they believe that further pursuit of such remedies
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would be futile.
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(1981). Plaintiffs here claim, given the two-year period of time
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between the onset of investigation and the date suit was filed,
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that Defendant had more than enough time to resolve their claims
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internally before this action was commenced.
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Plaintiffs may
See, e.g., Clayton v. UAW, 451 U.S. 679, 689
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The propriety of that conclusion, as well as whether Plaintiffs
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reasonably and in good faith relied on Defendant’s internal
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investigation before ultimately deciding to file suit, are
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matters not amenable to resolution through summary judgment.
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This Court cannot determine as a matter of law that Plaintiffs’
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claims, as made in the First Cause of Action, are time barred.
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Defendant’s motions accordingly fail.
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CONCLUSION
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Defendant has not established as a matter of law that
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Plaintiffs’ claims, as set forth in their First Cause of Action,
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are barred by the applicable statute of limitations.
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Defendant must necessarily make that showing in order to prevail
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pursuant to the terms of their motions, Defendant’s Motions for
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Summary Judgment (ECF Nos. 128 and 130) are hereby DENIED.6
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Since
IT IS SO ORDERED.
Dated: June 28, 2011
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_____________________________
MORRISON C. ENGLAND, JR.
UNITED STATES DISTRICT JUDGE
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The Court recognizes that both parties have filed various
objections to the evidence submitted in connection with the
subject Motions. To the extent that objections have been raised
with respect to evidence cited or discussed in this Memorandum
and Order, those objections are overruled. Otherwise, the Court
declines to rule on any remaining objections since the evidence
in question was not germane to its decision herein.
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