Day v. Sears Holdings Corp., Case No. CV 11–09068 MMM (PJWx).

• Court: United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
• Citation: 930 F.Supp.2d 1146
• Docket Number: Case No. CV 11–09068 MMM (PJWx).
• Parties: Neva DAY, an individual, Plaintiff, v. SEARS HOLDINGS CORPORATION; Sears Holdings Management Corporation; Sears, Roebuck and Company; Sears Outlet Stores, LLC, and Does 1–100, inclusive, Defendants.
• Decision Date: 13 March 2013

930 F.Supp.2d 1146

Neva DAY, an individual, Plaintiff,
v.
SEARS HOLDINGS CORPORATION; Sears Holdings Management Corporation; Sears, Roebuck and Company; Sears Outlet Stores, LLC, and Does 1–100, inclusive, Defendants.

Case No. CV 11–09068 MMM (PJWx).

United States District Court,
C.D. California.

March 13, 2013.

[930 F.Supp.2d 1154]

Anahit Galstyan, Andrew James Kazakes, Edward Yun, Mark Weidmann, Weidmann and Yun PC, Los Angeles, CA, for Plaintiff.

Alden J. Parker, Chelcey Emiko Lieber, Weintruab Genshlea Chediak Tobin & Tobin, Shauna N. Correia, Bullicant Houser Bailey PC, Sacramento, CA, for Defendant.

ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
MARGARET M. MORROW, District Judge.

On October 6, 2011, Neva Day filed this action against Sears Holdings Corporation, Sears Holdings Management Corporation, Sears, Roebuck & Co., Sears Outlet Stores, LLC, and certain fictitious defendants.¹ Day pled eleven causes of action: (1) gender discrimination in violation of the Fair Employment and Housing Act (“FEHA”); (2) gender discrimination in violation of public policy; (3) retaliation for complaints of gender discrimination in violation

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of FEHA; (4) retaliation for complaints of gender discrimination in violation of public policy; (5) retaliation for complaints of sexual harassment in violation of FEHA; (6) retaliation for complaints of sexual harassment in violation of public policy; (7) wrongful termination in violation of public policy based on complaints of health and/or safety; (8) violation of California Labor Code § 232.5; (9) wrongful termination in violation of public policy based on violation of Labor Code § 232.5; (1 0) failure to take reasonably necessary steps to prevent discrimination, harassment, and retaliation in violation of FEHA; and (11) failure to take immediate appropriate action to stop unlawful harassment.² The action was removed to this court on November 1, 2011.³ On October 19, 2012, defendants filed a motion for summary judgment on all of Day's claims or alternatively, partial summary judgment.⁴ Day opposes defendants' motion.⁵

I. BACKGROUND

Day was a regional sales director for Sears Outlet from approximately June 2009 to October 4, 2010.⁶ Sears Outlet president Jamie Brooks made the decision to hire Day.⁷ At all relevant times, Day reported to Brooks and was directly supervised by Vance Rea, the national sales director for Sears Outlet.⁸

A. The Grant Investigation

On August 18, 2010, Day spoke to Rea concerning issues she had with Mark Grant, the national training manager for Sears Outlet.⁹ Day told Rea that Gregory Wold, a district manager for Sears Outlet, had complained about Grant's behavior.¹⁰ According to Wold, Grant made repeated remarks to him regarding women's bodies and Grant's extramarital affairs.¹¹ Day also conveyed to Rea reports that Grant and Casey Calderwood, another upper-level manager at Sears Outlet, had driven while intoxicated during a business trip.¹² As national sales director, it was Rea's responsibility to conduct an initial investigation regarding complaints and determine whether they merited the initiation of a formal human resources investigation. ¹³ Rea asked that Day obtain a written statement

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from Wold; ¹⁴ instead of doing so, Day herself prepared and sent a written statement to Rea on August 25, 2010. Day's statement described observations and reports of Grant's inappropriate behavior, including “picking up women” and “excessive drinking” while on business trips.¹⁵ Rea gave Day's email to Chris Jemo, a human resources officer.¹⁶ He also sent Day an email, in which he advised that the company was investigating the matters she reported, and that because all company investigations were confidential, she should not discuss the investigation or the subject of the allegations with anyone else.¹⁷

After receiving Day's email, Jemo began a formal human resources investigation concerning the complaints against Grant.¹⁸ On August 30, 2010, Jemo and Day met in Denver, Colorado, where Jemo was conducting an unrelated sexual harassment investigation.¹⁹ At the meeting, Jemo requested additional, more specific details regarding Day's complaints. ²⁰ On September 10, 2010, Day sent Jemo an email with additional information.²¹ Jemo responded, stating that the information still lacked specifics, and that Day needed to provide “details around name[s] of associates,” and a “paragraph by paragraph” breakdown that identified which employees had made which complaints.²² Jemo stated that Day was “interfering in a company investigation” by not providing the details he requested.²³ He also reminded Day that the investigation was confidential and should not be discussed with anyone other than Jemo and Rea. ²⁴

On September 16, 2010, Jemo interviewed Day in person concerning the Grant investigation.²⁵ Between September 22 and 30, Jemo interviewed thirteen other witnesses, including Wold, Rea, and Grant.²⁶ Jemo ultimately concluded that Grant had acted unprofessionally and prepared a Documentation of Performance Issues warning.²⁷ Grant was required to demonstrate improvement in four general categories: “Professional Demeanor;” “Interaction with Female Associates;” “Professional Language and Subjects;” and

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“Behavior Away from the Store.” ²⁸ The warning was signed by both Grant and Rea.²⁹

B. The Day Investigation

On September 1, 2010, while the Grant investigation was ongoing, Day had a conversation with Margaret Lawless, the Director of Soft–Lines for Sears Outlet.³⁰ Day told Lawless she was concerned with Rea's handling of her complaint, and questioned his integrity and trustworthiness.³¹ Day asserts she specifically said she could not provide names or details regarding her complaint because there was an ongoing investigation.³²

Following this conversation, Lawless advised Brooks that Day had initiated a conversation with her regarding a human resources investigation.³³ Brooks instructed Lawless to advise Rea that Day had expressed concerns. ³⁴ On September 9, at Rea's request, Lawless prepared a written statement detailing the conversation that took place between her and Day. ³⁵ In her report, Lawless stated that Day asked whether she knew of the statement Day had given Rea regarding “an individual.” ³⁶ Lawless stated that Day expressed frustration with the fact that her complaint had been given to human resources despite her wish that it remain confidential. ³⁷ Although Day did not identify the individuals whose complaints she relayed, she did remind Lawless of a business meeting they had had in Texas in which Grant and Calderwood rented a car and drove around to “experience the night life in Dallas.” ³⁸

Jemo subsequently opened an investigation to determine whether Day had breached defendants' policy that human resources investigations are confidential by speaking with Lawless.³⁹ On September 16, 2010, Jemo and a witness interviewed Day regarding the Grant investigation.⁴⁰ At both the beginning and the end of the interview, Jemo reminded Day to maintain confidentiality with respect to the investigation.⁴¹ During the interview, Day was asked whether she had talked with anyone regarding the Grant investigation; Day did not state that she had spoken with Lawless.⁴²

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On September 20, 2010, Day was again interviewed by Jemo, as well as by Don Strand, a regional human resources director, and Pamela Fowler, director of human resources consultants for Sears Holdings Management Corp. ⁴³ During this interview, Day signed an “Associate Acknowledgment” form, which stated that “[a]ssociates who breach confidentiality are subject to disciplinary action, up to and including termination.” ⁴⁴ Day was again asked on September 20 whether she had spoken with anyone regarding the Grant investigation.⁴⁵ She once again did not report that she had spoken with Lawless; it was not until later in the interview, after the questioners had moved on to a new topic, that Day volunteered that she had spoken with Lawless.⁴⁶

On September 30, 2010, William O'Malley, director of corporate investigations, was asked to conduct independent interviews concerning whether Day had breached defendants' confidentiality policy.⁴⁷ O'Malley concluded that she had, and reported his findings to Fowler and Brooks.⁴⁸ On October 4, 2010, following completion of the Day investigation, Brooks and Fowler advised Day that they were terminating her employment because she had violated defendants' confidentiality policy.⁴⁹ Susan Leach, vice president of human resources operations, reviewed the termination decision and the evidence supporting

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it and concluded that Day's termination was consistent with company policy and was warranted.⁵⁰

II. DISCUSSION A. Legal Standard Governing Motions for Summary Judgment

A motion for summary judgment must be granted when “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R.Civ.Proc. 56(c). A party seeking summary judgment bears the initial burden of informing the court of the basis for its motion and of identifying those portions of the pleadings and discovery responses that demonstrate the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (“[T]he substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.... [S]ummary judgment will not lie if the dispute about a material fact is ‘genuine,’ that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party”).

Where the moving party will...