Burke v. Starbucks Coffee Company, No. 2:2009cv01920 - Document 32 (E.D. Cal. 2010)

Court Description: ORDER granting 16 Motion for Summary Judgment signed by Judge Garland E. Burrell, Jr on 12/9/2010. Judgment shall be entered in favor of Defendant. CASE CLOSED (Waggoner, D)
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Burke v. Starbucks Coffee Company Doc. 32 1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE EASTERN DISTRICT OF CALIFORNIA 7 8 BRITTA BURKE, Plaintiff, 9 10 11 12 13 v. STARBUCKS COFFEE COMPANY, DOES 1-10 Defendants. ________________________________ ) ) ) ) ) ) ) ) ) ) ) 2:09-cv-01920-GEB-GGH ORDER GRANTING DEFENDANT STARBUCKS’ MOTION FOR SUMMARY JUDGMENT 14 15 Defendant Starbucks Coffee Company (“Starbucks”) moves for 16 summary judgment on all claims in Plaintiff Britta Burke’s (“Burke”) 17 Complaint. I. Legal Standard 18 19 A party seeking summary judgment “initially bears the burden 20 of proving the absence of a genuine issue of material fact.” In re 21 Oracle Corp. Sec. Litig., --- F.3d ----, 2010 WL 4608794 at *5 (9th Cir. 22 2010). If this burden is satisfied, “the non-moving party must come 23 forth with evidence from which a jury could reasonably render a verdict 24 in the non-moving party's favor.” Id. “Where disputed issues of material 25 fact exist, . . . [a]ll reasonable inferences must be drawn in favor of 26 the non-moving party.” Bryan v. McPherson, 608 F.3d 614, 619 (9th Cir. 27 2010) (citations omitted). 28 1 Dockets.Justia.com 1 Further, under Local Rule 260: “Each motion for summary 2 judgment . . . shall be accompanied by a ‘Statement of Undisputed Facts’ 3 that . . . enumerate[s] discretely each of the specific material facts 4 relied upon in support of the motion.” L.R. 260(a). This statement is 5 required to be supported by citations to “the particular portions of any 6 pleading, affidavit, deposition, interrogatory answer, admission, or 7 other document relied upon to establish that fact.” Id. 8 also prescribes: 9 10 11 12 13 14 15 16 Local Rule 260 Any party opposing a motion for summary judgment or summary adjudication shall reproduce the itemized facts in the Statement of Undisputed Facts and admit those facts that are undisputed and deny those that are disputed, including with each denial a citation to the particular portions of any pleading, affidavit, deposition, interrogatory answer, admission, or other document relied upon in support of that denial. The opposing party may also file a concise ‘Statement of Disputed Facts,’ and the source thereof in the record, of all additional material facts as to which there is a genuine issue precluding summary judgment or adjudication. L.R. 260(b). 17 If the nonmovant does not “specifically . . . [controvert duly 18 supported] facts identified in the [movant’s] statement of undisputed 19 facts,” the nonmovant “is deemed to have admitted the validity of the 20 facts contained in the [movant’s] statement.” Beard v. Banks, 548 U.S. 21 521, 527 (2006)) (finding that a party opposing summary judgment who 22 “fail[s] [to] specifically challenge the facts identified in the [moving 23 party’s] statement of undisputed facts . . . is deemed to have admitted 24 the validity of [those] facts . . . .”). 25 II. Uncontroverted Facts, Plaintiff’s Claims, and Procedural History 26 “Burke was involved in a [non employment-related] car accident 27 at around 12:30 a.m. on October 28, 2008.” (Separate Statement of 28 Undisputed Facts in Supp. of Defendant Starbucks Corporation’s Mot. for 2 1 Summ. J. or, in the Alternative, Partial Summ. J. (“Def.’s SUF”) ¶ 14.) 2 At the time of the car accident, Burke was employed as a Barista at a 3 Starbucks location in Sacramento, California. Id. ¶ 3. Burke reported 4 for her scheduled shift at Starbucks on October 31, 2008. Id. ¶ 30. 5 During this shift, Burke informed a supervisor that “she was hit by a 6 drunk driver, totaled her car, had pain in her back and legs, and that 7 she was on the right medication and could go into work.” Id. ¶ 27. Burke 8 also told her coworkers she might not be “as fast as them.” (Dep. of 9 Britta Burke (“Burke Depo”) 80:14-15.) Burke fully completed her shift 10 on October 31, 2008, and also fully completed her work shifts on 11 November 1, 2008, and November 2, 2008. Id. ¶ 30. The three work shifts 12 “total[ed] over 17 hours.” Id. 13 “Burke was scheduled to work from 2:45 p.m. until 10:15 p.m. 14 on November 3, 2008. She did not report to work on that day [;and, she] 15 did not inform Starbucks, prior to or during her shift, that she would 16 not be reporting to work.” Id. ¶ 43. Two of Burke’s supervisors called 17 Burke on November 3, 2008, “regarding her failure to show up for her 18 shift” and left messages asking Burke to return their calls. Id. ¶¶ 44- 19 45. “Burke never responded.” Id. One of the supervisors also called 20 Burke on November 4, 2008, and left a message asking Burke “to call him 21 and let him know if she intended to report to her November 5, 7, 8, and 22 9 shifts.” Id. ¶ 46. The supervisor “also stated that he would assign 23 these shifts to other [employees] and leave [Burke] off the schedule for 24 the coming week . . . if he did not hear from [Burke] on the same day.” 25 Id. The supervisor “did not hear from Burke. Therefore, he found 26 coverage for Burke’s November 5, 7, 8, and 9 shifts. He also did not 27 assign Burke to any shifts for the week starting November 10, 2008 28 3 1 . . . . Burke did not report to work on November 5, 7, 8, or 9, 2008.” 2 Id. Burke was terminated on November 11, 2008 “for violating Starbucks 3 Attendance and Punctuality Policy and abandoning her job.” Id. ¶ 47. 4 Burke alleges in her Complaint that Starbucks violated 5 California’s Fair Employment and Housing Act (“FEHA”) by failing to 6 engage her in an interactive process concerning injuries she received in 7 the 8 accommodation concerning those injuries; discriminating against her 9 because of a disability resulting from those injuries; and retaliating 10 against her because of her requests to engage in an interactive process 11 and because she requested a reasonable accommodation. Burke also alleges 12 a Whistleblower Retaliation claim under California Labor Code section 13 1102.5(b), and a claim for intentional infliction of emotional distress. 14 Burke also alleged a FEHA medical condition discrimination 15 claim, which she abandoned in her opposition brief to Starbucks’ summary 16 judgment motion; therefore, this claim is dismissed. automobile 17 18 accident; failing to provide her a reasonable III. Discussion A. FEHA Claims 19 Starbucks argues it is entitled to summary judgment on Burke’s 20 FEHA claims since each claim is premised on Starbucks’ knowing that 21 Burke had a disability, and the uncontroverted facts show that Starbucks 22 did not know Burke had a disability. 23 FEHA proscribes “an employer’s intentionally discriminatory 24 act against an employee because of . . . [the employee’s] disability . 25 . . .” Scotch v. Art Inst. of California-Orange Cnty., Inc., 173 Cal. 26 App. 4th 986, 1002 (2009). “An employee cannot demand clairvoyance of 27 [her] employer.” 28 426, 443, (2007). “It is an employee’s responsibility to understand his King v. United Parcel Serv., Inc., 152 Cal. App. 4th 4 1 or her own physical or mental condition well enough to present the 2 employer at the earliest opportunity with a concise list of restrictions 3 which must be met to accommodate the employee.” Jensen v. Wells Fargo 4 Bank, 85 Cal. App. 4th 245, 266 (2000). “While knowledge of the 5 disability can be inferred from the circumstances, knowledge will only 6 be imputed to the employer when the fact of disability is the only 7 reasonable interpretation of the known facts. Vague or conclusory 8 statements revealing an unspecified incapacity are not sufficient to put 9 an employer on notice of its obligations under [FEHA].” Brundage v. 10 Hahn, 11 omitted). 57 Cal. App. 4th 228, 237 (1997) (citation and quotations 12 Starbucks presents the following statement of undisputed facts 13 in support of its position that Burke did not have a known disability: 14 Burke stated she had pain in her back and legs but could work if she was 15 on the right medication, and Burke worked three consecutive shifts in 16 full after the accident. (Def.’s SUF ¶¶ 27, 30.) 17 is no evidence that Burke provided further details of her injuries, or 18 told her supervisors that her injuries prevented her from performing 19 employment duties. Starbucks argues there 20 Burke argues she made it “abundantly clear to [a supervisor] 21 that she was injured from a head-on auto collision, that she was 22 experiencing pain in her neck, back, legs, and dizziness and light- 23 headedness, that she would need to be ‘moving more slowly’ at work and 24 that she would be unable to engage in more strenuous activities such as 25 move [sic] tables, chairs, and umbrellas.” (Separate Statement in Opp. 26 to Mot. for Summ. J./Adjudication (“Pl.’s SUF”) ¶ 28.) Burke relies on 27 the following portions of her deposition testimony as support for her 28 arguments that she told a supervisor about her disability: 5 1 Q. A. What did you tell [your supervisor]? The same thing about the car accident. 3 Q. A. So you told him that your car was totaled? Yes. 4 Q. 5 A. You told him that you were hit by a drunk driver? Yes. 6 Q. 7 A. 8 Q. 9 A. That you were on the right medication and could still come into work? Yes. 10 Q. A. What else did you tell him? I think that was it; that sums it up. Q. A. What was [the supervisor’s] response? The same as [another supervisor’s], worried, concern, supportive, understanding. 2 You told him that you had pain in your back and your legs? Yes. 11 12 13 . . . . 14 Q. 15 Did you personally tell each of [your coworkers at Starbucks] that you were in a car accident? Yeah. 16 A. 17 Q. A. Did you –- what did you tell them? Well, I explained I was in a car accident; hence, you know, I’m working the best I can under these circumstances, letting my team know what to expect. Q. A. What did you tell them what to expect? [sic] That I was injured so if I wasn’t as fast as them to understand. Or manager or just –- for the same reason if someone is sick, you have to let everyone know. Q. Did anybody complain about you not working –strike that. Did you think during those three shifts that you were not working as fast as you normally worked? Did anyone complain or did I know? 18 19 20 21 22 23 24 25 A. 26 Q. 27 A. Did you think that you were not working as fast as you normally were? Yes 28 Q. How much slower were you? 6 1 A. Just a little bit slower. I mean, it’s not –you stand in front of –- you know, but standing for long periods of times gets tough when you’re in an accident. Q. A. So what did you do? So I –- I went through it. I worked through the pain. Q. Were there any tasks that you normally before the accident you could do [sic], but after the accident you could not do while you were working at Starbucks during those three shifts? Yeah. 2 3 4 5 6 7 8 A. 9 Q. A. What were they? Like bringing in the furniture from outside, the tables and chairs. Q. A. What else? Umbrellas. Heavy Umbrellas. That was about it. Anything heavy lifting or strenuous, they just wouldn’t let me do it. Q. A. Who wouldn’t let you do? My co-workers. Q. A. Do you remember who wouldn’t let you do those? No, it would have just been anybody that I worked with. 10 11 12 13 14 15 16 17 (Burke Depo. 78:4-20, 80:6-81:23.) 18 This deposition testimony does not support Burke’s arguments 19 that she told a supervisor she was unable to move certain furniture, or 20 had other work limitations. Instead, this testimony supports Starbucks’ 21 factual position that Burke only mentioned that she had pain in her back 22 and legs. Therefore, Burke has not presented evidence from which it 23 could reasonably be inferred that Starbucks knew or should have known 24 that Burke suffered from a physical and/or mental condition that made 25 work difficult for her. See Arteaga, 163 Cal. App. 4th at 347 (finding 26 “a reasonable employer would conclude that [plaintiff’s] pain was not 27 disabling” when plaintiff did not describe the “kind of pain” or “degree 28 of pain” he experienced); Avila, 165 Cal. App. 4th at 1249 (“Informing 7 1 [the employer] merely that plaintiff had been hospitalized was not 2 sufficient to put [the employer] on notice that plaintiff was suffering 3 from a qualifying disability.”). For the stated reasons, Starbucks’ 4 summary judgment motion on Burke’s FEHA claims alleging that Starbucks 5 failed to engage in an interactive process with her, failed to provide 6 her with a reasonable accommodation, and subjected her to disability 7 discrimination is granted. 8 Starbucks also argues it is entitled to summary judgment on 9 Burke’s FEHA unlawful retaliation claim. Burke alleges in her Complaint 10 that Starbucks retaliated against her because of her following protected 11 activity: “requesting a reasonable amount of time to recover from the 12 injuries 13 attempting “to engage in the interactive process with Starbucks”; and, 14 “ask[ing] [Starbucks] for a reasonable accommodation.” (Pl.’s Compl. ¶ 15 32.) Burke also argued at the hearing on the motion that she suffered a 16 retaliatory adverse employment action when Starbucks terminated her for 17 working on a date she was not scheduled to work. she sustained in the collision with the drunk driver;” 18 Starbucks argues it terminated Burke’s employment based on a 19 legitimate, nonretaliatory reason and cites the following statement of 20 undisputed facts as support for its argument: Burke was scheduled to 21 work on November 3, 2008, but did not report that day or inform 22 Starbucks that she would not be reporting. (Def.’s SUF ¶ 43.) Burke’s 23 supervisors called her on November 3 and 4, 2008, and left messages 24 regarding her failure to show up for her shift. Id. ¶¶ 44-46. When 25 Burke’s supervisor, Adrian Sanchez (“SM Sanchez”), called Burke and 26 again left her a message on November 4, 2008, 27 28 SM Sanchez stated that Burke had missed her shift the day before and [he] asked her to call him and let him know if she intended to report to her November 5, 7, 8, and 9 shifts. SM Sanchez also 8 1 2 3 4 5 6 7 8 stated that he would assign these shifts to other partners and leave her off the schedule for the coming week (week of November 10) if he did not hear from her on the same day. SM Sanchez did not hear from Burke. Therefore, he found coverage for Burke’s November 5, 7, 8, and 9 shifts. Having not heard back from Burke, SM Sanchez consulted with district manager Nancy Beal and submitted an electronic partner action notice (“EPAN”) to terminate Burke’s employment for violating Starbucks Attendance and Punctuality Policy and abandoning her job. SM Sanchez forward-dated [Burke’s] official termination date to November 11, 2008 in Starbucks EPAN system to allow time for Burke’s final check to arrive at the store and for him to inform Burke of her termination. 9 10 Id. ¶¶ 46,47. 11 Burke counters these facts with her following statement of 12 undisputed facts: “[Burke] called the café and spoke with an employee, 13 who told her she was not scheduled to work on the 3rd. Instead, she was 14 written up for a ‘no call/no show’ for a purported shift on November 15 4th. However, Ms. Burke had called in and confirmed she was not 16 scheduled to work that day either.” (Pl.’s SUF ¶ 43.) Further, Burke 17 states in her statement of undisputed facts: “No Starbucks management 18 personnel called Ms. Burke from November 3rd through November 11th and 19 leave any messages [sic] because if they had, Ms. Burke’s parents would 20 have given her the messages.” Id. ¶ 44. Burke argues her following 21 deposition testimony supports her factual assertions in her statement of 22 undisputed facts: 23 Q. A: Do you remember if you were scheduled to work on the 4th? That would have been the day that was a no call/no show. Q. A. What do you mean? The 4th was the day that I called and they told me I did not work, which I obviously did work or apparently, and they told me I didn’t. Q. A. Did you work on the 4th? No. 24 25 26 27 28 . . . . 9 1 Q. A. Did you check any time before the 3rd, for example, in November 3rd, whether or not you had to work on November 3rd? Did I check with –- yes. Q. A. When did you call? I don’t remember. Q. A. Who did you talk to? I don’t remember. 2 3 4 5 6 . . . . 7 Q. 8 A. 9 How do you know [phone messages] would have been given to you [by Burke’s parents]? Because they would have. They would have told me if Starbucks called. 10 (Burke Depo. 89:16-25, 93:22-94:4, 126:10-13.) 11 Burke also testified during her deposition that “it is 12 possible” her parents received voicemails and did not inform her, and 13 also that she did not “know for sure” whether anyone from Starbucks 14 called her on November 3 or 4, 2008, because she did not personally 15 check to see if any voicemail messages were left. Id. 126:14-24. 16 Burke’s deposition testimony does not support Burke’s 17 statements of undisputed facts, and fails to controvert Starbucks’ facts 18 showing that Burke failed to report to work as scheduled on November 3, 19 2008, and that Burke’s supervisors called Burke and left messages 20 concerning this failure. Therefore, Starbucks has shown it had a 21 legitimate, nonretaliatory reason for terminating Burke, and Starbucks’ 22 motion for summary judgment is granted on Burke’s FEHA retaliation 23 claim. See Yanowitz v. L'Oreal USA, Inc., 36 Cal. 4th 1028, 1042 (2005) 24 (“If the employer produces a legitimate reason for the adverse 25 employment action, the presumption of retaliation drops out of the 26 picture, and the burden shifts back to the employee to prove intentional 27 retaliation.”) (quotation omitted). 28 10 1 B. Whistleblower Retaliation 2 Starbucks also seeks summary judgment on Burke’s Whistleblower 3 Retaliation claim. Burke alleges this claim under California Labor Code 4 section 1102.5(b). This claim is based on Burke’s allegation that she 5 opposed Starbucks’ action of taking her “off the schedule for the entire 6 month . . . .” (Pl.’s Compl. ¶¶ 35, 36.) However, Starbucks has shown 7 Burke was taken off the schedule because she failed to report to work 8 when scheduled to work. Therefore, Starbucks’ summary judgment motion on 9 Burke’s Whistleblower claim is granted. 10 C. Intentional Infliction of Emotional Distress 11 Starbucks also seeks summary judgment on Burke’s intentional 12 infliction of emotional distress (“IIED”) claim. Burke alleges this 13 claim is based on the allegations in her other claims on which Starbucks 14 has been granted summary judgment. Since there is no evidence supporting 15 the elements of an IIED claim, Starbucks’ summary judgment motion on 16 this claim is granted. 17 Burke also alleges a seventh claim for attorney’s fees and 18 costs. This claim is dismissed since it is dependent on Burke prevailing 19 on claims on which summary judgment has been granted in favor of 20 Starbucks. 21 IV. Conclusion 22 For the stated reasons, Starbucks’ motion for summary judgment 23 is granted. Judgment shall be entered in favor of Defendant. 24 Dated: December 9, 2010 25 26 27 GARLAND E. BURRELL, JR. United States District Judge 28 11