Chisolm v. 7-Eleven, Inc.

• Decision Date: 23 May 2019
• Docket Number: Case No.: 18cv893-MMA (MDD)
• Parties: Helen CHISOLM, Plaintiff, v. 7-ELEVEN, INC., a Texas Corporation, Defendant.
• Court: U.S. District Court — Southern District of California

383 F.Supp.3d 1032

Helen CHISOLM, Plaintiff,

v.7-ELEVEN, INC., a Texas Corporation, Defendant.

Case No.: 18cv893-MMA (MDD)

United States District Court, S.D. California.

Signed May 23, 2019

John Bernard Alexander, III, Joshua M. Arnold, Alexander Krakow Glick LLP, Los Angeles, CA, for Plaintiff.

Candice T. Zee, Vedder Price, Dana Lee Peterson, Duwayne Andre Carr, Seyfarth Shaw, Los Angeles, CA, Youlet Ovrahim, Seyfarth Shaw LLP, San Francisco, CA, for Defendant.

ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

HON. MICHAEL M. ANELLO, United States District Judge

Plaintiff Helen Chisolm ("Plaintiff") brings this employment discrimination action against Defendant 7-Eleven, Inc. ("Defendant" or "7-Eleven"). Plaintiff alleges seven claims for: (1) age discrimination in violation of California's Fair Employment and Housing Act ("FEHA"), Cal. Gov't Code § 12940(a) ; (2) race discrimination in violation of FEHA, Cal. Gov't Code § 12940(a) ; (3) disability discrimination, including failure to accommodate and engage in an interactive process, in violation of FEHA, Cal. Gov't Code § 12940, et seq. ; (4) retaliation in violation of FEHA, Cal. Gov't Code § 12940(h) ; (5) FEHA violation based on a combination of protected factors, including age, race, disability/perceived disability, and retaliation, Cal. Gov't Code § 12900, et seq. ; (6) failure to prevent discrimination and retaliation in violation of FEHA, Cal. Gov't Code § 12940(k) ; and (7) wrongful termination in violation of public policy. See Doc. No. 1 (hereinafter "Compl.").

Defendant moves for summary judgment as to all of Plaintiff's claims. See Doc. No. 25. In the alternative, Defendant moves to limit Plaintiff's recoverable damages at trial. See id. Plaintiff filed an opposition to Defendant's motion, to which Defendant replied. See Doc. Nos. 28, 32.¹ The Court found the matter suitable for determination on the papers and without oral argument pursuant to Civil Local Rule 7.1.d.1. See Doc. No. 33. For the reasons set forth below, the Court GRANTS Defendant's motion for summary judgment.

BACKGROUND ²

Plaintiff is an African-American woman who was born in 1946. Plaintiff was hired by 7-Eleven's predecessor on July 10, 1978, as a Field Representative. Plaintiff left the company in 1984 but returned to 7-Eleven in Las Vegas in 1996 as a Field Consultant. In 1999, Plaintiff transferred to San Diego. Plaintiff was employed by 7-Eleven as a Field Consultant in San Diego from 1999 to March 2018.

Plaintiff's duties as a Field Consultant involved overseeing a group of 7-Eleven stores across Southern California and Southern Nevada to assist franchisees with store operations, including displays and merchandising. The Field Consultant position required extensive walking, stooping, bending, reaching, and stretching. As a Field Consultant, Plaintiff was a salary Grade 23.

While merchandising in a franchisee's store in 2012, Plaintiff sustained a knee injury

and suffered a meniscal tear. Plaintiff sustained additional injures in an on-the-job car accident in 2013 and suffered injuries to her shoulder, neck, back, and knees. As a result, Plaintiff took a medical leave of absence from 7-Eleven beginning in November 2013. Plaintiff ultimately underwent a right knee replacement surgery and a surgery on her left shoulder, in addition to other forms of treatment.

On March 2, 2016, Michael Kelsey, a Leave of Absence Specialist who performed work for 7-Eleven, reached out to Plaintiff to discuss her work status. See Plaintiff Dep. II, Ex. 20.³ Plaintiff's doctors provided her with permanent work restrictions resulting from her work-related injuries. Kelsey requested Plaintiff submit a current copy of her resume so 7-Eleven could evaluate her qualifications for other available positions. See Plaintiff Dep. I, Ex. 8.

In May 2016, Plaintiff informed Kelsey that she was scheduled to undergo an additional surgery on her right knee and reiterated that her status is still "permanent and stationary." Plaintiff Dep. I, Ex. 4. Plaintiff further noted that due to her work restrictions, she "cannot return to the position of Field Consultant, and must have a position that fits those limitations." Id.

Plaintiff was released by her doctors to return to work with restrictions in August 2016. See Plaintiff Dep. I, Ex. 5. Plaintiff again indicated that she was unable to return to the Field Consultant position, "but can accept positions with limited walking and kneeling, etc." Id. Plaintiff informed Kelsey that she saw a posting on 7-Eleven's job posting website for a Senior Real Estate Representative ("SRER") position with the company and believed she could manage this position with her current limitations. See id.

Plaintiff applied for a SRER position while on leave. Plaintiff interviewed with Jeffrey Tucker and Teresa Opsahl, but Tucker was the sole decision-maker for the SRER position. The SRER position was a Grade 24 position and would have been a promotion for Plaintiff. Tucker ultimately selected a woman named Bobbie King for the position at the end of January 2017.

Plaintiff visited 7-Eleven's job posting website regularly and was unable to identify any positions, aside from the SRER position, that she was interested in and that she believed she was qualified for and could be transferred to in light of her work restrictions. See Plaintiff Dep. II at 245-46.⁴

Plaintiff filed a charge with the Equal Employment Opportunity Commission ("EEOC") in March 2017 claiming age, race, sex, and disability discrimination in connection with 7-Eleven's failure to hire her for the SRER position. See Plaintiff Dep. I, Ex. 14. In September 2017, the EEOC issued a Dismissal and Notice of Rights letter, and closed its file on the charge. Plaintiff Dep. I, Ex. 15.

On January 9, 2018, Kelsey emailed Plaintiff and advised her that "[c]urrently[ ] there is no available position at Grade 23 or lower in San Diego or Las Vegas that could be modified with a reasonable accommodation to physically require only light walking and allow the employee to primarily work from home." Plaintiff Dep. II, Ex. 33. 7-Eleven provided Plaintiff sixty (60) days to apply for and return to work for 7-Eleven. See id. Plaintiff responded to Kelsey's email, and inquired as to whether 7-Eleven would only consider her for positions that are Grade 23 or lower. See id. Kelsey informed Plaintiff that she would be considered for "any opportunity that she applied for." Kelsey Dep. at 40. Plaintiff did not apply for any other positions with 7-Eleven.

"Plaintiff filed an amended complaint with the [Department of Fair Employment and Housing ("DFEH") ] on January 30, 2018. The DFEH issued an immediate right to sue notice on the same day." Compl. ¶ 28. Plaintiff filed an additional amended complaint with the DFEH on April 10, 2018, and the DFEH issued an immediate right to sue notice that same day. See id.

7-Eleven terminated Plaintiff's employment in March 2018. Id. ¶ 10. Plaintiff commenced the instant action on May 9, 2018. See Compl. Plaintiff seeks economic, non-economic, and punitive damages. See id.

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 party seeking summary judgment bears the initial burden of establishing the basis of its motion and of identifying the portions of the declarations, pleadings, and discovery that demonstrate absence of a genuine issue of material fact. Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party has "the burden of showing the absence of a genuine issue as to any material fact, and for these purposes the material it lodged must be viewed in the light most favorable to the opposing party." Adickes v. S. H. Kress & Co. , 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). A fact is material if it could affect the outcome of the suit under applicable law. See Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute about a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the non-moving party. See id.

The party opposing summary judgment cannot " ‘rest upon the mere allegations or denials of [its] pleading’ but must instead produce evidence that ‘sets forth specific facts showing that there is a genuine issue for trial.’ " Estate of Tucker v. Interscope Records, Inc. , 515 F.3d 1019, 1030 (9th Cir. 2008) (quoting Fed. R. Civ. P. 56(e) ). However, the Ninth Circuit has made clear that "it should not take much for plaintiff in a discrimination case to overcome a summary judgment motion." Nigro v. Sears, Roebuck and Co. , 784 F.3d 495, 499 (9th Cir. 2015). "This is because the ultimate question is one that can only be resolved through a searching inquiry—one that is most appropriately conducted by a factfinder, upon a full record." Id. (internal quotation marks and citation omitted).

DISCUSSION

I. Defendant's Evidentiary Objections

As a preliminary matter, Defendant objects to several documents submitted in connection with Plaintiff's opposition to the instant motion. See Doc. No. 32-4. Specifically, Defendant seeks to exclude: (1) an email dated March 4, 2018, from Plaintiff to Kelsey, attached to the declaration of Joshua Arnold (Doc. No. 28-2, hereinafter "Arnold Decl.") as Exhibit 24; (2) the declaration of Fe Demasco in its entirety, attached to the declaration of Joshua Arnold as Exhibit 28; and (3) several excerpts of Plaintiff's declaration, attached to the declaration of Joshua Arnold as Exhibit 29. The Court ordered supplemental briefing on the objections to give Plaintiff an opportunity to respond. Plaintiff filed a supplemental brief on May 9, 2019, and ...