Marvel v. Walgreen Co.

• Decision Date: 25 January 2023
• Docket Number: C093806
• Parties: ROBERT R. MARVEL, Plaintiff and Appellant, v. WALGREEN CO. et al., Defendants and Respondents
• Court: California Court of Appeals Court of Appeals

ROBERT R. MARVEL, Plaintiff and Appellant,
v.
WALGREEN CO. et al., Defendants and Respondents

C093806

California Court of Appeals, Third District, Yolo

January 25, 2023

NOT TO BE PUBLISHED

(Super. Ct. No. CV-2019-707)

HULL, Acting P. J.

SUMMARY OF THE APPEAL

Plaintiff Robert R. Marvel brought an action alleging defendant Walgreen Co. (Walgreens) discriminated against him based on his race and national origin after they fired him for allegedly using the term "wetback" when speaking with defendant Irma Moreno (with Walgreens, defendants). He also alleged that both Moreno and Walgreens defamed him when reporting that he used the word "wetback" when speaking with

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Moreno. Marvel insists he never used the work "wetback" and that he instead used the term "wet vac." Defendants brought a motion for summary judgment, which the trial court granted. The trial court then entered a judgment in defendants' favor. Plaintiff appeals. We affirm the judgment.

FACTS AND HISTORY OF THE PROCEEDINGS

A. Marvel's Employment and Walgreens's Anti-Discrimination Policy

Marvel was employed as a senior maintenance mechanic for Walgreens at its distribution center (center) in Woodland, California. He was an at-will employee who understood he could resign from his job at any time or Walgreens could terminate his employment with or without cause and without notice. Marvel says his national origin is American.

Walgreens maintains an anti-discrimination and harassment policy that prohibits unwelcome comments or conduct based on an individual's protected class. Identified protected classes include race and national origin (policy). Epithets and slurs are within the scope of prohibited verbal harassment. An employee who is found to have violated the policy is subject to discipline up to and including termination.

When Brenda Merriweather, a human resources generalist, testified on behalf of Walgreens as a person most knowledgeable, she stated the policy "can be considered [a] zero tolerance" policy against harassing and discriminatory behavior in the workplace. Merriweather said the policy applies to everyone who works in the center.

B. Interactions Between Marvel and Moreno

1. Call for Help with a Spill

On December 3, 2018, Marvel received a radio call from an unknown caller requesting assistance to clean up an oatmeal spill in an area of the center known as C-1 ("Charlie One"). In his deposition, Marvel testified the person calling from C-1 was

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looking for someone to bring a "wet vac" to clean up the spill. Marvel called the utilities department and spoke with Moreno who performed janitorial duties. She agreed to help. Marvel also testified in his deposition that the person calling from C-1 heard Marvel ask Moreno if she could help clean up the spill, but the person who was calling said, "no" and said the workers in C-1 just needed someone to bring them a wet vac. Marvel testified that he then returned to what he had been doing before the call came in.

2. First Discussion in the Break Room and Report to Alvarado

Later in the day Marvel was in the break room. Again according to Marvel's deposition testimony, he was there to see if Willis Leih, a colleague, would need Marvel to take over watching the work of two contractors who worked for a company called EMCOR who were repairing a pipe that had burst in the ceiling the prior weekend. Marvel saw Moreno in the break room, and she told him that when she arrived at C-1 earlier, "the person" gave her a broom to clean up the spill.

Marvel and Moreno gave different versions what they each said to the other during this conversation.

On the one hand, Marvel said when Moreno told Marvel the person in C-1 had handed her a broom and wanted her to clean up the oatmeal spill, Marvel responded, "no, he wanted someone to bring him a wet vac." Marvel testified when he responded to Moreno's statement, "she repeated it again, so I repeated the same answer."

On the other, Moreno wrote in a declaration, "Mr. Marvel walked into the break room towards me. As he was walking towards me, he was clapping his hands and saying in a loud voice, 'Irma, you're doing a marvelous job, thank you, thank you!' I asked him if he was saying that to me because I had cleaned up the spill in Charlie One. I heard Mr. Marvel respond, 'I just sent any wetback to clean up.' I was shocked. I asked him, 'Mr. Robert Marvel, what are you saying to me?' I again heard him say, 'I just sent any wetback to clean up.' I asked him, 'Are you saying this because I came on Saturday to

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clean up the water that spilled?' I said this because I wanted to be sure I had heard him correctly. I heard him say for the third time, 'I just sent any wetback to clean up.' I was very hurt, insulted and offended by what Mr. Marvel said to me. I felt that he was making fun of me. I was born in Mexico which makes me of Mexican descent.... I gave him two chances to clarify what he was saying, but each time, he repeated the same statement." Moreno gave a similar version of events in her deposition.

Moreno tried to report her conversation with Marvel to the human resources department and asked to speak with Kara Jimenez, a human resources specialist who spoke Spanish. Because Jimenez had already left for the day, Moreno spoke with Julio Alvarado. She complained that Marvel had called her a "wetback."

In his declaration submitted in opposition to the motion, Marvel said he never used the word "wetback" when speaking to Moreno, and he has never used the word "wetback" to refer to another person at work.

3. Second Discussion in the Break Room

Moreno and Marvel gave slightly different versions of what happened later in the day, but they agree that toward the end of the day they again encountered one another in the break room and, during this conversation Moreno referred to herself as a "wetback."

According to Moreno's declaration, she tried to address the "hurtful comment [she] heard Mr. Marvel make earlier." To highlight her value as a person, she started by telling him about a house she was going to close on that night, and that she owned real property, including a coffee plantation in Mexico. "To emphasize that I had heard what Mr. Marvel had called me and that I did not like it, I sarcastically referred to myself as a 'wetback,' saying 'This wetback is waiting for her retirement. I'm going to go to Mexico. This wetback is going to sign some documents for my third house in the United States.' "

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In her deposition, Moreno admitted that she was angry when she spoke with Marvel the second time.

Marvel testified however, he was in the break room watching the EMCOR workers. Moreno came in and he asked her to mop up some water that had spilled from a hose, which she did. He testified that when he thanked her, she told him she was going to sign on her third house in America that night and she owned a house and coffee plantation in Mexico. He testified that when he said she was doing well for herself and seemed all set for retirement, she said, "not bad for a wetback." Marvel had no idea why she responded that way.

C. The Investigation into Marvel's Conduct

1. Management Request for an Investigation

On the morning of December 4, 2018, there was a meeting attended by members of a senior management group known as "Tier 4." They told Merriweather of Moreno's complaint and asked her to meet with Marvel, tell him about the complaint, and get a written statement from him. According to Merriweather's declaration, she was "notified" of an email Alvarado had sent to his supervisor, which said, "[o]n 12/3/2018 at approximately 16:05, Irma from Utilities came up to AP office and asked if Kara was in HR. I told her that she had just left for the day. She told me that she was very upset due to something that Bob Marvel had said to her. So prior to Irma coming up to AP, there was a little bit of water in the front break room right next to where the water leak incident happened not to [sic] long ago. Bob Marvel asked Irma to clean up the water but at the time she was busy, so Bob told Irma to get any WETBACK to clean up the water. She asked him to repeat himself and without hesitation he repeated for her to get him any WETBACK for clean up [sic]. Irma was very upset and offended."

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2. Meeting Between Merriweather and Marvel and Subsequent Phone Call

Merriweather met with Marvel on December 4, 2018, in the presence of his supervisor. During the meeting between Merriweather and Marvel, she asked him about conversations regarding spills in the break room the day before and if he heard any ethnically insensitive comments. In his deposition, Marvel testified he told Merriweather he had asked Moreno to clean up some water, and she had said she was on a break so he asked her to clean it up when she was finished. He later saw her mopping the water up.

Marvel also testified that he thought Merriweather's questions during the interview were open ended, and he was answering to the best of his ability. He said she was not explaining to him what was happening and Merriweather was vague to the point where he did not really know what she was talking about.

Marvel told Merriweather that Moreno had said," 'not bad for a wetback.'" During the meeting, Marvel wrote a statement. The first handwritten paragraph of the statement says, "I ask Irma [Moreno] to mop water in [b]reakroom area while I removed the hose. She said she was on [b]reak. I said ok. I took out the water hose[. W]hen I returned she was mopping the floor. I said thank you[;] I appreciate it. I told 4 or 5 others to be careful and watch their step because the floor is wet." Then he signed and dated the statement, and he wrote a second paragraph below his signature which says, "[a]t one point Irma was telling me she was buying her 3rd house tonight and she has her house in Mexico and her coffee farm and she said something...