Surrell v. California Water Service Co.

• Decision Date: 11 March 2008
• Docket Number: No. 06-15400.,06-15400.
• Citation: 518 F.3d 1097
• Parties: Rosetta SURRELL, Plaintiff-Appellant, v. CALIFORNIA WATER SERVICE CO., a corporation; Yvonne Pile-Cox, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

518 F.3d 1097

Rosetta SURRELL, Plaintiff-Appellant, v. CALIFORNIA WATER SERVICE CO., a corporation; Yvonne Pile-Cox, Defendants-Appellees.

No. 06-15400.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 5, 2007.

Filed March 11, 2008.

Daniel L. Mitchell, Law Office of Daniel L. Mitchell, Alameda, CA, for the appellant.

Raymond F. Lynch, Amy L. Keyser, Hanson Bridgett Marcus Vlahos & Rudy, LLP, San Francisco, CA, for the appellee.

Appeal from the United States District Court for the Eastern District of California; Frank C. Damrell, District Judge, Presiding. D.C. No. CV-04-02143-FCD/JFM.

Before: D.W. NELSON and STEPHEN REINHARDT, Circuit Judges, and LOUIS F. OBERDORFER,^* Senior District Judge.

OBERDORFER, Senior District Judge:

Rosetta Surrell brought numerous federal and state discrimination and retaliation claims against her employer, California Water Service Co. ("Cal Water"), and her former supervisor, Yvonne Pile-Cox ("Cox"). The district court granted summary judgment to both Defendants. We affirm.

I. BACKGROUND

Cal Water is a wholly owned subsidiary of California Water Service Group, a privately owned company that provides water service to businesses and consumers in communities throughout California. Surrell, an African-American woman, began employment as a customer-service representative in the company's Stockton District in January 1997. Cox was the Office Manager and Surrell's supervisor. Surrell's job duties included answering phones, performing data entry, filing records, and dispatching work orders. In 1998, Surrell bid on and received, based on her seniority at Cal Water, a higher-level customer-service position. At all times during her employment with Cal Water, she was a member of the Utility Workers Union of American AFL-CIO, which had a collective-bargaining agreement with Cal Water. Under this agreement, vacant or newly created positions were open for bid by current employees and filled based on seniority. But temporary jobs that would not last longer than 120 days were filled at management's discretion, without regard to seniority. The agreement also provided that Cal Water could submit employees to drug testing if they appeared impaired.

In April 2001, Surrell was in a car accident. Because of her injuries, she had difficulty lifting her hands above her head and could not do household chores. She was taking Vicodin at this time. Cal Water granted her a leave of absence. She had expected to return to work by July 1, 2001, but the pain persisted, and Cal Water granted her further medical leave through the rest of the year.

In early 2002, when Surrell was still on medical leave, Cox announced that she was going to retire, creating an opening for the Office Manager position. This vacancy was posted within the company in February 2002, and several Cal Water employees applied. After the top two candidates declined to accept an offer for the position, Cal Water looked for outside applicants. Surrell requested and was allowed to be included in the process.

On April 4, 2002, while her application for Office Manager was pending, Surrell returned to work. Her doctor had provided a letter stating that she was able to do a full workload without restrictions, but she was still taking numerous prescription drugs as needed for her injuries.

Also in April 2002, Surrell requested but was denied training for the Head Cashier position, which was to be available for five days in June 2002 while the Head Cashier was on vacation. (The parties refer to this on-the-job training for another position as "cross-training.") At the time of Surrell's request, Cal Water had a substantially increased workload because it was changing to a new computer system and had just taken over a new billing operation. Accordingly, there was no formal cross-training program in place; employees would simply informally train with other employees if they had time after completing their job. In June 2002, Surrell learned that Cal Water was cross-training Denise Holt for the position. Cox testified that Cal Water chose to train Holt for the position because she had already informally learned a portion of that job on her own and therefore required less training than Surrell would have required. Holt, a younger, white co-worker with less seniority than Surrell, filled in at the Head Cashier position for this five-day period. In July 2002, the Union filed a grievance, stating that Surrell "was unfairly passed over for opportunities in crosstraining after repeatedly requesting to be crosstrained." Excerpts of Record ("ER") at 196. The complaint was denied at the first stage of the grievance process, and it was not taken to arbitration.

Also in July 2002, Cal Water chose not to promote Surrell to the Office Manager position. Instead, Cal Water hired Regina Coe, a younger, white, female applicant. Coe was a trained accountant with a B.S. in Business Administration and had five years of management and accounting experience.

On August 22, 2002, supervisors, including Cox, observed Surrell at work and agreed that she appeared to be impaired and that her speech was slurred. Surrell had taken some of her prescription drugs, including Fiorinal, the night before, and admitted that her speech was slurred at work. Cal Water ordered her to submit to a drug test. The test showed the presence of Surrell's prescribed medication for her back injuries as well as the presence of cannabinoids (chemical compounds present in marijuana). Accordingly, under the collective-bargaining agreement, Cal Water offered Surrell two choices: either be discharged or enter a drug-rehabilitation program. Surrell chose to enter the rehabilitation program and returned to work in early October 2002.

Tragically, Surrell's son was murdered in December 2002. She took some time off and believed that she was ready to work again at the end of January 2003. During this period, she received some Demerol injections, was taking Valium each night to go to sleep, and was also taking Soma and Zanaflex.

She returned to work on January 29, 2003. When co-workers asked her about her son, she started crying, shaking, and suffered a migraine headache. She had taken Valium the night before and then took a Vicodin at work. Observing Surrell in what appeared to them to be an impaired state, Surrell's supervisors had Surrell drug tested again. The test returned positive for several substances. Surrell asserts that these substances were associated with her prescribed medications. Cal Water then placed her on administrative leave with full salary for approximately the next 10 months.

On July 9, 2003, Surrell filed a discrimination charge with the California Department of Fair Employment and Housing (the "State Employment Department"), alleging various discrimination claims against Cal Water. The State Employment Department provided her with a right-to-sue letter and advised her that she could obtain a federal right-to-sue letter from the Equal Employment Opportunity Commission (EEOC).

On December 9, 2003, Surrell informed Cal Water that she was unable to return to work due to her medical condition. She concluded that she was too emotionally scarred at that time and would not have been able to function. Surrell remained employed but on an unpaid leave of absence during which she received health benefits.

On July 6, 2004, Surrell filed suit in California state court against Cal Water and Cox, alleging numerous federal and state employment-discrimination claims based on race, sex, and age. On October 13, 2004, Defendants removed the suit to federal district court. On February 27, 2006, the district court granted summary judgment to Cal Water and Cox on all claims. Surrell v. Cal Water Serv. Co., No. 04-2143, 2006 WL 464079, 2006 U.S. Dist. LEXIS 7326 (E.D.Cal. Feb. 27, 2006). Cal Water and Cox later unsuccessfully moved for fees against Surrell.

Surrell brought this appeal of the district court's grant of summary judgment.

II. DISCUSSION

A. Standard of Review

We review de novo a district court's grant of summary judgment. Lovell v. Chandler, 303 F.3d 1039, 1052 (9th Cir. 2002). Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(c). Conclusory statements without factual support are insufficient to defeat a motion for summary judgment. Nat'l Steel Corp. v. Golden Eagle Ins. Corp., 121 F.3d 496, 502 (9th Cir.1997). A district court's exclusion of evidence at summary judgment will stand unless the court abused its discretion. Id.

B. Surrell's Claims

Surrell appeals the district court's grant of summary judgment on her (1) discrimination, retaliation, and hostile-work-environment claims under Title VII and 42 U.S.C. § 1981 (2003); and (2) physical-disability discrimination claim under the California Fair Employment and Housing Act.

1. Title VII and 42 U.S.C. § 1981 Claims

Title VII prohibits employers from discriminating against an individual based on race. 42 U.S.C. § 2000e-2(a)(1) (2003). Similarly, § 1981 prohibits discrimination in the "benefits, privileges, terms and conditions" of employment. 42 U.S.C. § 1981(b); Metoyer v. Chassman, 504 F.3d 919, 935 (9th Cir.2007). When analyzing § 1981 claims, we apply "the same legal principles as those applicable in a Title VII disparate treatment case." Id. at 930 (quoting Fonseca v. Sysco Food Servs. of Ariz. Inc., 374 F.3d 840, 850 (9th Cir.2004)). Title VII, however, "requires the plaintiff to exhaust administrative remedies, such as filing a claim with the EEOC . . . , before seeking a private action for damages, whereas § 1981 has no such requirement." Id. at 947 n. 11 (Bea, J., dissenting) (citing 42 U.S.C. § 2000e-5(f)). We discuss first the Title VII exhaustion question and then reach the merits of both Surrell's Title VII and § 1981 claims.

a. Exhaustion of Title VII Claims

A person...