Hukman v. Southwest Airlines Co.

• Court: District Court, S.D. California
• Decided: August 22, 2019
• Docket: 3:18-cv-01204
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 9 10 11 UNITED STATES DISTRICT COURT 12 SOUTHERN DISTRICT OF CALIFORNIA 13 14 SHEIDA HUKMAN, pro se Case No.: 18-CV-1204-GPC-RBB

15 Plaintiff, ORDER GRANTING MOTION FOR 16 SUMMARY JUDGMENT vs. 17 [ECF No. 42] 18 SOUTHWEST AIRLINES CO.,

19 Defendant. 20

22 Before the Court is Southwest Airlines Co.’s (“Defendant” or “SWA”) Motion for 23 Summary Judgment. ECF No. 42. The motion has been fully briefed. On May 1, 2019, 24 Sheida Hukman (“Plaintiff”), who is appearing pro se, filed her first response in 25 opposition to the motion for summary judgment. ECF No. 58. Plaintiff filed an amended 26 response in opposition to Defendant’s motion for summary judgment on May 6, 2019. 27 ECF No. 53. Defendant filed a reply in support of the motion for summary judgment on 28 July 24, 2019, ECF No. 57, and Plaintiff subsequently filed a second amended opposition 1 to the motion for summary judgment. ECF No. 59. In light of Plaintiff’s pro se status, 2 the Court allowed Plaintiff to file several amended oppositions and permitted a sur-reply 3 from Defendant, which was lodged with the Court on August 5, 2019. ECF No. 63.1 4 Pursuant to Civil Local Rule 7.1(d)(1), the Court finds the matter suitable for 5 adjudication without oral argument. Upon consideration of the moving papers and for the 6 reasons set forth below, the Court GRANTS Defendant Southwest Airlines’ motion for 7 summary judgment in its entirety. 8 9 FACTUAL BACKGROUD2 10 A. Plaintiff’s Employment and Job Duties with Defendant 11 Plaintiff Sheida Hukman identifies as a Middle Eastern female of Kurdish descent 12 from Iraq. ECF No. 1; Complaint. In May of 2016, Hukman applied to work for 13 Defendant Southwest Airlines in the positions as a Customer Service Agent and 14 Customer Service Supervisor. ECF No. 57-2 at 4; Plaintiff’s Statement of Undisputed 15 Facts. Subsequently, Plaintiff interviewed with Shawn Hulette for the Customer Service 16 Agent position on May 20, 2016 and with recruiter Patricia Lyson, Chad Larimore, and 17 Mr. Hulette for the Customer Service Supervisor position on May 27, 2016. 18 Plaintiff was not offered the role of Customer Service Supervisor. Instead, on June 19 30, 2016, Plaintiff received a contingent offer of employment with Defendant for a Full- 20 Time Customer Service Agent position at the San Diego Airport. Id. Plaintiff accepted 21 the offer on June 30, 2016 with a hire date of July 18, 2016. Id. On her hire date, 22

23 1 The Court is aware that Plaintiff filed a joint motion to strike Defendant’s sur-reply on August 19, 24 2019. ECF No. 67. Plaintiff does not legally sufficient articulate reasons for Defendants’ sur-reply to 25 be stricken. Given that Defendants’ sur-reply was timely and expressly permitted by this Court in accordance to the Court’s order granting Plaintiff’s motion to file a second amended opposition, the 26 Court will DENY Plaintiff’s motion to strike. 2 The facts as recited in this order are for the purpose of disposing of the current motion and are not to be 27 construed as findings of fact that the parties may rely on in future proceedings. The Court has set forth these facts based on the Defendant’s statement of undisputed facts and has made note, when applicable, 28 1 Plaintiff acknowledged that her employment and position included a 180-day 2 probationary period, which was intended to evaluate whether new employees fit in. Id. To 3 graduate into the role of a Full-Time Customer Service Agent, Plaintiff was required to 4 satisfactorily complete the 180-day probationary period, which included training and 5 multiple evaluative steps throughout the process. Id. 6 During the probationary period, Plaintiff’s employment was governed by the 7 Collective Bargaining Agreement between Southwest Airlines and the International 8 Association of Machinists and Aerospace Workers (“IAM”), AFL-CIO (“CBA”). As a 9 probationary employee, Plaintiff was expressly excluded from the CBA’s grievance 10 procedures in accordance with the bargaining agreement, which provided that “nothing in 11 this Agreement shall extend grievance rights concerning discipline or discharge to an 12 employee during his probationary period.” Id. 13 In her role as a probationary Customer Service Agent, Plaintiff’s job duties 14 included: providing friendly service to and maintaining positive relationships with all 15 internal and external Customers, working in a cooperative spirit to ensure the success of 16 SWA, providing legendary Customer Service to people desiring to travel, use cargo, or 17 baggage service by attending to their needs, greeting and handling Customers in a polite 18 and friendly manner, dealing with mishandled Customers as a result of oversales, delayed 19 or cancelled flights, lost, delayed, or damaged luggage and resolving such problems 20 quickly and within guidelines established by SWA. Id; ECF No. 42-5 at 293-94; Ex. 13. 21 Customer Service Agents were also required to possess the “ability to work well with 22 others as part of a team, meet the public, and work under stressful situations.” Id. at 146- 23 47. Plaintiff also acknowledged receipt and review of SWA’s Basic Principles of 24 Conduct. Id. at 266-67; Ex. 23. According to the SWA Basic Principles of Conduct, 25 Plaintiff could be penalized and terminated for violations of the prohibition against 26 “[i]nsubordinate conduct or refusing to follow a work order or any act of 27 insubordination.” Id. at 266; Ex. 23. 28 B. Plaintiff’s New Hire Training with Defendant 1 Upon her hiring, Plaintiff was provided with training at both the San Diego Airport 2 and in Dallas, TX, where SWA is headquartered. ECF No. 42 at 11; ECF No. 42-5 at 3 148-52. SWA employee training lasts approximately six weeks and includes classroom 4 instruction at Southwestern Adventist University (“SWAU University”), followed by on 5 the job training with a trainer, training at Defendant’s Dallas headquarters, and additional 6 follow-up training at the station. Id. at 11-12. During the training process, new hires 7 receive training on topics that include employee policies, hazmat, station emergency 8 programs, and customer service security measures. Id. at 12. It was common practice at 9 SWA to first provide employees a week of training at SWAU University and then 10 provide two weeks of “on-the-job” training with a trainer at the airport. Id. See also ECF 11 No. 42-5 at 499-500. 12 During her training at the San Diego Airport, which began on July 24, 2016, 13 Plaintiff was assigned to trainer Michael Klatt. Id. By her own accord, Plaintiff contends 14 that Mr. Klatt was a “really good” trainer “for me.” Id. As part of the training process, 15 Mr. Klatt provided training for new hires with respect to the “mechanisms of the 16 computer, policies of the company, how to execute the customer service, the check-in 17 process, and the customer service skills needed to facilitate [Southwest Airlines’] 18 customers.” Id. Mr. Klatt trained Plaintiff during her first week of work at the airport. 19 On the second week of on-the-job training, Plaintiff worked at the ticket counter. Id. 20 During the third week of Plaintiff’s training, she was assigned as a “counter assist,” a 21 different portion of the training that is not linked with a trainer. Id. Plaintiff alleges that 22 Mr. Klatt was also assigned to train another employee, who Plaintiff contends was 23 Hispanic. ECF No. 57-1, SWA Undisputed Statement of Facts at 11. 24 C. Plaintiff’s Performance and Interpersonal Challenges at SWA 25 During her introductory period of contingent employment with Southwest Airlines, 26 Hukman was involved in interpersonal disputes with other employees which were cited 27 as a contributing factor for her termination. 28 i. The Uniform Incident 1 The first incident occurred fifty-seven days into Plaintiff’s employment and related 2 to Southwest’s uniform ordering process. Id. at 12. New hires at SWA are typically 3 given a set of standard uniform pieces which are ordered from Lands End. Id. In 2016, 4 the standard set included six bottoms, six tops, two belts, and a jacket. Id. ECF No. 42- 5 5. Additional items were to be ordered at the new hires’ expense. Id. On September 12, 6 2016, Plaintiff ordered her uniform from SWA employee Taylor Farson, who entered the 7 orders for new hires. When Plaintiff attempted to exchange and order several optional 8 pieces via e-mail, Ms. Farson informed Plaintiff that she would be responsible for paying 9 for the items, since Southwest would only pay for the required uniform pieces. ECF No. 10 42-5 at 134-36. In response, Plaintiff remarked to Ms. Farson, “If you don’t want to 11 order than then it’s OK. I am not going to back and forth … I will see you on Thursday to 12 explain.” Id. Hukman Depo. II, 366:17-367:13; Ex. 12. 13 Following the email interaction, Ms. Farson reported the issue to Chad Larimore 14 and requested a meeting with Plaintiff and another manager. As a result, on September 15 15, 2016, Plaintiff, Ms. Farson, and Frank McGinley met and discussed the approved and 16 allotted uniform quota outlined in the Ground Ops Employee Handbook. ECF No. 42-5 at 17 269; Ex. 32. At this time, Plaintiff raised concerns about her co-worker, Jules Alviz, 18 claiming that Ms. Alviz threatened her by telling Plaintiff to be careful because Plaintiff 19 was on probation. ECF No. 42-1 at 13; ECF No. 42-3 at 10-11. Plaintiff described this 20 comment as “threatening’ because Plaintiff believed that Ms. Alviz could terminate her 21 employment. ECF No. 42-3 at 10-11. 22 During this conversation, Mr. Larimore informed Plaintiff that although Ms. Alviz 23 was a senior agent, she could not terminate Plaintiff’s employment. Id. Plaintiff 24 proceeded to say that she thought Ms. Alviz was a “bad agent” and described Ms. Alviz 25 as a poor performer. Id. Mr. Larimore informed Plaintiff that claims of threatening 26 behavior are taken very seriously at SWA and encouraged Plaintiff to work harmoniously 27 and professionally with Ms. Alviz. Id; Larimore Decl., ¶ 10. 28 1 On September 16, 2016, another meeting took place between Plaintiff, Mr. 2 Larimore, and IAM representative Lorena Todd to follow-up on the concerns that 3 Plaintiff had voiced the day prior about Ms. Alviz. ECF No. 42-3. at 10-11. Plaintiff 4 proceeded to insist that the meeting with Ms. Farson took place because Ms. Alviz had 5 turned Ms. Farson against Plaintiff. Plaintiff also “made it clear that she didn’t care for 6 Jules [Alviz] and that she felt that this whole incident came about only because Jules 7 created it.” Id. Plaintiff also repeatedly contended that Ms. Alviz was “a problem,” a 8 “bad agent,” and “not a good person.” Id. Because Plaintiff incorrectly believed that the 9 conversation about the uniform understanding was a product of Ms. Alviz’s doing, Mr. 10 Larimore reiterated that the meeting that occurred with Ms. Farson “was set up only 11 because of the uniform misunderstanding and not because of anything to do with [Ms. 12 Alviz].” Id. Plaintiff did not agree and continued to assert that “this all came about 13 because of [Ms. Alviz].” Id. 14 Following the meeting, Mr. Larimore discussed the interaction with SWA’s 15 Employee Relations and based on the information provided by Plaintiff, determined no 16 further action was needed. Id. ¶ 10. At no time during either meeting did Plaintiff 17 complain of any allegedly discriminatory or harassing conduct on the basis of her 18 national origin. 19 ii. Plaintiff’s Response to Performance Feedback 20 SWA requires audits, including Soft Skills Audits, for all customer service 21 employees with the goal of performing one audit per employee per month. ECF No. 42- 22 5., Riddle Depo. at 451-453. These Soft Skills Audits are carried out by Customer 23 Service Supervisors who observe the employee from different vantage points, including 24 standing next to or on the other side of the employee or walking in front of the employee 25 to read body language and to listen to the employee. Id. In conducting the audits, 26 Customer Service Supervisors evaluate if employees are smiling, outgoing, and friendly. 27 Id. The ultimate purpose of the Soft Skills audit was to provide coaching and feedback to 28 employees on interpersonal areas. Id. 1 On September 25, 2016, Randall Riddle conducted a Soft Skills Audit of Plaintiff’s 2 job performance. Id. at 451. During the Soft Skills Audit, Mr. Riddle observed that 3 Plaintiff was “not outgoing, not friendly, and did not smile.” Id. at 451-54. Following 4 the completion of the Soft Skills Audit, Plaintiff was presented with the Counter and 5 Curbside Soft Skills Audit that was completed by Mr. Riddle. Id. at 270. Mr. Riddle 6 reviewed the document with Plaintiff after he observed her job performance. The 7 document provided in part that: 8 [Plaintiff] did not display a welcoming, friendly demeanor and rarely smiled. Her eye contact with our customers is not consistent. She does not acknowledge each 9 customer as they approach her position nor does she try using their names. At the 10 end of each transaction she does not use any pleasantries or thank them. Check in process is efficient. Would like to see her confirm # of bags and destination. In 11 full uniform and looks professional. Please discontinue wearing your sweater over 12 the shoulders.

13 Id. After reviewing the document, Plaintiff began to speak loudly and argue with Mr. 14 Riddle, accusing of him of being a “liar” and claiming that it was “not a valid 15 documentation.” ECF No. 42-3 at 13-14; Hukman Depo. II, 408:11-17; 409:13-410:19; 16 Ex. 33. Employee Wendy Meinung was brought in to intervene because of Plaintiff’s 17 agitated response and Hukman ultimately refused to sign the document. Id. at 14; Riddle 18 Depo. 16:21-13; Hukman Depo. II, 408:3-10. 19 iii. Termination of Plaintiff’s Employment with SWA 20 Because of these incidents – and because Plaintiff was not open to constructive 21 criticism, refused to acknowledge the feedback provided to her through the Soft Skills 22 Audit process, and did not work well in a team environment, Plaintiff’s employment with 23 Defendant ended on September 26, 2016 after seventy-one days with SWA. ECF No. 42- 24 3 at 13; Adams Depo. 10:20-11:1; 15:23-16:7; Larimore Decl. ¶ 11; Ex. C. On the 25 morning of her termination, Mr. Larimore detailed the concerns and incidents in an email 26 to other SWA employees: 27 All – 28 1 We have had a series of incidents with New Hire CSA Sheida Hukman that have led us to determine she is not fit for Southwest Airlines. There have been 2 some concerns almost from the start of her employment, which included concerns 3 from her Instructor in DAL for Initial Training.

4 Here are a list of issues to date: 5 • She had a series of emails back and forth with SAN SWAU Instructor Taylor regarding uniforms. Sheida was dismissive and disrespectful with 6 Taylor during these emails and subsequent conversations. MCS Frank & 7 Taylor met with Sheida to discuss and clarify the uniform issues. A DLE was issued to document the conversation. She was not receptive to the 8 conversation was questions why she was being addressed. 9 • During the presentation of her 50-day evaluation, she was (sic) did not agree with the comments of the evaluation. She was defiant with CSSII Bruce 10 who delivered the eval, and refused to sign the evaluation. I met with her 11 following the refusal to sign. I when (sic) over the eval point-by-point and explained where each area she needs improvement had merit. Her main 12 sticking point was that we included the feedback we had received from the 13 DAL SWAU Instructor. She felt that because it didn’t happen here, it should have (sic) included. I explained that it was all part of her 50-day 14 evaluation period. She stated that she still disagreed with the eval. I have 15 notes from our conversation saved in a document at work. 16 • She has falsely accused another CSA of threatening her. She went to IAM Rep Lorena and requested a meeting with me. Sheila, Lorena, MCS Julie 17 and myself met with her. Her claims of threats were not found to be 18 credible. I contacted Christine Stewart from ER to discuss her claims, she agreed that there were baseless and no further investigation was necessary. 19 Notes from that meeting are attached as well. 20 Based on her behavior and attitude, past and present, we will be releasing her from 21 probation as soon you are able to review the documentation and we have your 22 approval. Thanks.

23 ECF No. 42-3 at 13-14. That same day, Plaintiff met with employees Irvin Adams, 24 Manager of Customer Service, and Theresa Nolten. ECF No. 42-3; Hukman Depo. II, 25 416:16-417:11. During the meeting, Plaintiff was presented with, but refused to sign the 26 acknowledgement of receipt of, a Failure to Pass Probation document, which confirmed 27 the reason for the conclusion of her employment: 28 1 As you are aware, the Contract provides that a new Employee must serve a probationary period of a predetermined length of time in order that the Employee 2 has the opportunity to demonstrate his or her qualifications and ability to adapt to 3 Company policies and procedures. The probationary period affords the Company an opportunity to evaluate your qualifications and ability to perform tasks 4 assigned, as well as your commitment to the goals of Southwest Airlines. 5 Based on observations of your job performance, we have concluded that you are 6 not suitable for this job. Your employment is terminated as a result of your failure 7 to pass probation.

8 ECF No. 42-5 at 271; Ex. 34. Mr. Adams also told Plaintiff “[a]nd it’s not working. And 9 we have to let you go.” ECF No. 42-5 at 114. During this meeting, Plaintiff began 10 speaking louder and she repeatedly threatened to sue Mr. Adams in federal court for 11 harassment and discrimination because Mr. Adams was a “white American” and the 12 supervisors were “white Americans” as well. ECF No. 42-5 at 473-74. Plaintiff also 13 demanded to speak with Station Manager Tom Starr, but was told that Mr. Starr was 14 unavailable. Id. Plaintiff also claimed that SAN Above the Wing supervisor Bruce 15 Christmas was discriminatory towards her and called her a “shish kabob” the other night. 16 Id. Enraged, Plaintiff further alleged that Customer Service Agents Al Alviz and Jules 17 Alviz called Plaintiff a “shishkabob” once or twice at the ticket counter. 18 Plaintiff admits that Mr. Adams made no comments about Plaintiff’s national 19 origin, accent, or race during the exit interview. ECF No. 42-5 at 114-16. Plaintiff also 20 acknowledges that Ms. Nolten made no comments about Plaintiff’s national origin or 21 accent in the interview. During her employment with SWA, Id. Plaintiff further 22 confirms that no one at the meeting said anything to Plaintiff about being Middle Eastern. 23 During her employment with SWA, Plaintiff did not raise any complaints about any 24 unalleged unfair or inappropriate treatment because of her national origin or race. Id. 25 After Plaintiff’s agitated reaction during the termination meeting, she was escorted out. 26 iv. Plaintiff’s Equal Employment Opportunity Commission Charge and 27 Filing of the Present Lawsuit 28 1 On November 19, 2016, Plaintiff filed a Charge of Discrimination against SWA 2 with the California Department of Fair Employment and Housing (“DFEH”) and the 3 Equal Employment Opportunity Commission (“EEOC”), alleging discrimination based 4 on national origin and retaliation. ECF No. 42-5 at 272; Ex. 35. On March 27, 2017, the 5 EEOC issued Plaintiff a Dismissal and Notice of Rights, contending that “[b]ased upon 6 its investigation, the EEOC is unable to conclude that the information obtained 7 establishes violations of the statutes.” ECF No. 42-5 at 272; Ex. 36. The Dismissal and 8 Notice of Rights confirms that for Title VII claims, Plaintiff “may file a lawsuit against 9 the respondent(s) under federal law based on this charge in federal or state court” and that 10 Plaintiff’s lawsuit “must be filed within 90 days of [ ] receipt of this notice; or your 11 right to sue based on this charge will be lost.” Id. (Emphasis in original). Id. The Notice 12 of Suit Rights also provides that “this will be the only notice of dismissal and of your 13 right to sue that we will send you” and noted that the “time limit for filing suit based on a 14 claim under state law may be different.” Id. Plaintiff received the notice on April 7, 15 2017. Id. 16 Plaintiff commenced this action on November 27, 2017 in state court. Defendants 17 removed the action to this court on June 8, 2018. In her Complaint, Plaintiff alleges eight 18 causes of action: (1) Discrimination under Title VII of the Civil Rights Act of 1964 19 (“Title VII”); (2) Retaliation in violation of Title VII; (3) Retaliation in violation of the 20 California Fair Employment and Housing Act (“FEHA”); (4) Denial of hiring as a 21 supervisor in violation of Title VII; (5) Denial of proper training as a customer service 22 agent in violation of Title VII; (6) Harassment in violation of Title VII; (7) Failure to stop 23 discrimination and harassment; and (8) Wrongful termination in violation of public 24 policy. See generally, ECF No. 1-2, Plaintiff’s Complaint. 25 LEGAL STANDARD 26 A) Summary Judgment Under Federal Rule of Civil Procedure 56 27 Federal Rule of Civil Procedure (“Rule”) 56 empowers courts to enter summary 28 judgment on factually unsupported claims or defenses, and thereby “secure the just, 1 speedy and inexpensive determination of every action.” Celotex Corp. v. Catrett, 477 2 U.S. 317, 325, 327 (1986). Summary judgment should be granted if the “pleadings, 3 depositions, answers to interrogatories, and admissions on file, together with the 4 affidavits, if any, show that there is no genuine issue as to any material fact and that the 5 moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). 6 A fact is material when it affects the outcome of the case. Anderson v. Liberty 7 Lobby, Inc., 477 U.S. 242, 248 (1986). The “mere existence of some alleged factual 8 dispute between the parties will not defeat an otherwise properly supported motion for 9 summary judgment; the requirement is that there be no genuine issue of material fact.” 10 Scott v. Harris, 550 U.S. 372, 380 (2007) (citation omitted) (emphasis in original). A 11 genuine issue of material fact exists if “a reasonable jury could return a verdict for the 12 nonmoving party.” United States v. Arango, 670 F.3d 988, 992 (9th Cir. 2012) (quoting 13 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986)). Conversely, “[w]here the 14 record taken as a whole could not lead a rational trier of fact to find for the nonmoving 15 party, there is no genuine issue for trial.” Scott, 550 U.S. at 380. 16 The moving party bears the initial burden of demonstrating the absence of any 17 genuine issues of material fact. Celotex, 477 U.S. at 323. The moving party can satisfy 18 this burden by demonstrating that the nonmoving party failed to make a showing 19 sufficient to establish an element of his or her claim on which that party will bear the 20 burden of proof at trial. Id. at 322-23. If the moving party fails to bear the initial burden, 21 summary judgment must be denied and the court need not consider the nonmoving 22 party’s evidence. Adickes v. S.H. Kress & Co., 398 U.S. 144, 159-60 (1970). 23 Once the moving party has satisfied this burden, the nonmoving party cannot rest 24 on the mere allegations or denials of his pleading, but must “go beyond the pleadings and 25 by her own affidavits, or by the ‘depositions, answers to interrogatories, and admissions 26 on file’ designate ‘specific facts showing that there is a genuine issue for trial.’” Celotex, 27 477 U.S. at 324. The non-moving party must “do more than simply show that there is 28 some metaphysical doubt as to the material facts.” Sluimer v. Verity, Inc., 606 F.3d 584, 1 587 (9th Cir. 2010). If the non-moving party fails to make a sufficient showing of an 2 element of its case, the moving party is entitled to judgment as a matter of law. Id. at 3 325. 4 When evaluating a motion for summary judgment, the court must “view[ ] the 5 evidence in the light most favorable to the nonmoving party.” Fontana v. Haskin, 262 6 F.3d 871, 876 (9th Cir. 2001). The court may not, however, engage in credibility 7 determinations, weighing of evidence, or drawing of legitimate inferences from the facts 8 as those functions are for the trier of fact. Anderson, 477 U.S. at 255. Accordingly, if 9 “reasonable minds could differ as to the import of the evidence,” summary judgment will 10 be denied. Anderson v. Liberty Lobby, Inc., 477 U.S. at 250-51 (1986). 11 B) Special Considerations for Pro Se Litigants 12 The Ninth Circuit has repeatedly cautioned that pro se litigants must be treated 13 with liberality. See, e.g., Waters v. Young, 100 F.3d 1437, 1441 (9th Cir. 1996) (“As a 14 general matter, this court has long sought to ensure that pro se litigants do not unwittingly 15 fall victim to procedural requirements that they may, with some assistance from the court, 16 be able to satisfy.”) As such, courts have often “held pro se pleadings to a less stringent 17 standard than briefs by counsel and reads pro se pleadings generously, ‘however 18 inartfully pleaded.’” Davis v. Silva, 511 F.3d 1005, 1009 n.4 (9th Cir. 2008). Thus, pro 19 se litigants are afforded the benefit of the doubt in order to “ensure[ ] meaningful access 20 to the courts.” Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998) (en banc). 21 Nonetheless, pro se litigants must follow the same rules of procedure and 22 substance that govern other litigants. King v. Atiyeh, 814 F.2d 55, 567 (9th Cir. 1987); 23 see also Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam). And in giving liberal 24 interpretation to a pro se complaint, the court is not permitted to “supply essential 25 elements of the claim that were not initially pled.” Ivey v. Bd. of Regents of the Univ. of 26 Alaska, 673 F.2d 266, 268 (9th Cir. 1982). Nor is the court required to provide a non- 27 prisoner pro se litigant with notice of the summary judgment rules. Bias v. Moynihan, 28 508 F.3d 1212, 1223 (9th Cir. 2007). “Ignorance of court rules does not constitute 1 excusable neglect, even if the litigant appears pro se.” Swimmer v. IRS, 811 F.2d 1343, 2 1345 (9th Cir. 1987). As with pleadings drafted by lawyers, a court need not accept as 3 true unreasonable inferences or conclusory legal allegations cast in the form of factual 4 allegations. W. Min. Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). 5 DISCUSSION 6 A) Plaintiff’s Federal Claims Under Title VII 7 Plaintiff brings her first, second, fourth, fifth, and sixth causes of action under Title 8 VII on the basis that she was discriminated against because of her national origin during 9 her hiring, employment, and subsequent termination with Defendant. See ECF No. 1-2; 10 Complaint at 11. SWA challenges these causes of action on statute of limitations 11 grounds and on the merits. The Court addresses these arguments in turn. 12 i) Statute of Limitations for Plaintiff’s Title VII Claims 13 Defendant contends that all of Plaintiff’s causes of actions premised on Title VII 14 are time-barred due to Plaintiff’s failure to timely file her Complaint. Specifically, 15 Defendant avers that “[f]or Title VII [. . .] claims, a Plaintiff must file within 90 days of 16 receipt of a right-to-sue letter.” Gamble v. Kaiser Foundation Health Plan, Inc., 348 F. 17 Supp. 3d 1003, 1022 (N.D. Cal. 2018). Moreover, Defendant notes that Plaintiff’s EEOC 18 notice, which issued on March 29, 2017, and marked as received on April 7, 2017, 19 provided that Plaintiff’s Title VII claims “must be filed within 90 days of [ ] receipt of 20 this notice; or your right to sue based on this charge will be lost.” Id. (Emphasis in 21 original). Based on the Dismissal of Notice of Rights from the EEOC, Defendant 22 proffers that Plaintiff was required to file her lawsuit by June 28, 2017. Since Plaintiff 23 commenced this action in state court on November 27, 2017, Defendant avers that 24 Plaintiff’s late filing is inexcusably fatal to her Title VII claims. 25 Plaintiff does not dispute that she received a right to sue notice from the EEOC that 26 was issued on March 29, 2017. Plaintiff also does not contest that her right to sue notice 27 instructed her to file a lawsuit within 90 days of her receipt of the notice if she intended 28 to bring to bring any Title VII claims. Plaintiff further agrees that she filed her complaint 1 on November 27, 2017. However, Plaintiff argues that her Title VII claims are timely 2 because she filed her complaint in state court and was therefore not subject to the statute 3 of limitations set forth in the EEOC right to sue notice. As such, Plaintiff submits that 4 her claims cannot be time-barred because she had brought them in state court within one 5 year of the notice. 6 The Court agrees with Defendant that Plaintiff’s Title VII claims are time-barred. 7 The Dismissal and Notice of Rights that Plaintiff received from the EEOC made clear 8 through multiple unambiguous instructions, in all-capital letters and underlined with bold 9 typeface, that Plaintiff was required to file her lawsuit within ninety days of receipt of the 10 notice to comply with the statute of limitations for Title VII claims. ECF No. 42-5 at 11 274-75; Ex. 36. The notice further clarifies that “in order to avoid any question that you 12 did not act in a timely manner, it is prudent that your suit be filed within 90 days of the 13 date this Notice was mailed to you (as indicated where the Notice is signed) or the date 14 of the postmark, if later.” Id at 275. (Emphasis in original). Thus, Plaintiff cannot argue 15 that she had inadequate notice of the ninety-day deadline to file her lawsuit. In addition, 16 it appears that Plaintiff has filed at least three additional Title VII lawsuits that entail the 17 same administrative requirements as here. ECF No. 42-1 at 18. See Hukman v. U.S. 18 Airways/American Airlines, et al. 2:17cv-00742-JS (E.D. Penn.); see also Hukman v. 19 Communication Worker of America, et al. 2:17-cv-00741-JS (E.D. Penn.); Hukman v. 20 Alaska Airlines CV18-01104-PHX-DLR (D. Az.). A review of the evidentiary record 21 uncovers no basis for equitable tolling and Plaintiff has not put forth this argument. And 22 finally, Plaintiff is mistaken that her Title VII claims are timely simply because she filed 23 her action in state court. Since Plaintiff elected to bring claims under Title VII, she was 24 required to comply with the statute of limitations applicable to Title VII claims, 25 regardless of the forum in which she chose to initiate her lawsuit. 26 The law is clear on this matter. In Iniguez v. Boyd Corp., 2009 WL 2058529, *5-6 27 (E.D. Cal. July 13, 2009), a plaintiff’s Title VII claims filed in state court were time 28 barred because Plaintiff filed his complaint more than ninety days after receipt of the 1 right to sue notice. See also Ioane v. Hawaii, 2001 WL 399465 (9th Cir. Apr. 18, 2001). 2 This limitations period has been strictly enforced against pro se and represented litigants 3 alike. See Payan v. Aramark Management Service Ltd. Partnership, 495 F.3d 1119, 1127 4 (9th Cir. 2007) (where the Ninth Circuit affirmed a district court’s decision to grant 5 summary judgment for defendant against a pro se plaintiff on the basis that plaintiff’s 6 claims on the basis were untimely because they were filed three days beyond the ninety- 7 day period). Here, Plaintiff similarly chose to bring claims under Title VII, which are 8 strictly bound by the deadline prescribed in her EEOC right to sue letter. The fact that 9 Plaintiff filed her complaint in state court – and that it was later removed to this court – 10 does not alter the federal nature of her claims. Although Plaintiff arguably had until July 11 6, 2017 to bring a lawsuit based on the letter’s date received stamp,3 she did not file her 12 complaint until November 27, 2017. Accordingly, the Court finds that Plaintiff’s delay in 13 bringing her lawsuit – nearly eight months after her right-to-sue notice was issued – 14 constitutes independent grounds to render her Title VII claims incurably time-barred. As 15 such, the Court GRANTS Defendant’s Motion for Summary Judgment with respect to 16 Plaintiff’s first, second, fourth, fifth, and sixth causes of action under Title VII. 17 ii) The Merits of Plaintiff’s Causes of Action for Discrimination Under 18 Title VII Based on National Origin (Count 1) 19 Even if Plaintiff’s Title VII claims were not time barred, the Court also finds that 20 Plaintiff’s Title VII causes of action fail as a matter of law. To establish a prima facie 21 case of discrimination on the basis of national origin, Plaintiff must prove that: (1) [s]he 22 belongs to a protected class; (2) [s]he was qualified for the position; (3) [s]he was subject 23

24 25 3 When it is unclear as to when a Plaintiff’s received her right-to-sue notice, some courts have used three-day, five-day, or seven-day presumption periods after the date of issuance to establish the date of 26 receipt. See Payan v. Aramark Management Services Ltd. Partnership, 495 F.3d 1119, 1124-26 (9th Cir.) (2007). In the briefing papers, Defendant appears to suggest that the date of issuance of the EEOC 27 notice – March 29, 2017 – also serves as the date of receipt. However, in this case, the Court will use the “received” stamp marked on the letter of April 7, 2017 – a full nine days after the issuance of the 28 1 to an adverse employment action; and (4) similarly situated individuals outside [her] 2 protected class were treated more favorably.” Chuang v. Univ. of Cal. Davis, Bd. Of 3 Trustees, 225 F.3d 1115, 1123 (9th Cir. 2000) (citing McDonnell Douglas Corp. v. 4 Green, 411 U.S. 792 (1973)). If a Plaintiff fails to allege “specific facts” to establish a 5 prima facie case for discrimination, a Defendant is entitled to summary judgment. 6 Palmer v. U.S., 794 F.2d 534, 536-39 (9th Cir. 1986). But if Plaintiff establishes a prima 7 facie case of discrimination, the burden shifts to SWA to articulate “some legitimate non- 8 discriminatory reason for the challenged action.” Chuang, 225 F.3d at 1123-1124. If 9 SWA again meets this burden, then Plaintiff must show that the articulated reasons were 10 pretext for another discriminatory motive. 11 To support her claims, Plaintiff points to several instances of conduct: (1) that she 12 was not hired as a supervisor because of her ethnicity; (2) that she was “purposely” 13 provided with the wrong uniform size as a result of discrimination; (3) that her 14 supervisor, Mr. Randall Riddle, conducted a “false” audit of her work that was based on 15 discrimination and “his own opinion;” (4) that Plaintiff was treated differently from other 16 similar situated probationary employees; (5) that she was harassed and threatened by 17 other employees based on her national origin; (6) and that she was terminated “without an 18 investigation” in retaliation for protected actions.” Id. 19 Turning to the substance of Plaintiff’s Title VII national origin discrimination 20 claims, the Court finds that Plaintiff has failed to present specific and sufficient evidence 21 of national origin discrimination. The parties do not dispute that Plaintiff is a member of 22 a protected class with respect to her national origin. However, the parties disagree 23 whether Plaintiff has established the remaining elements of a prima facie case of 24 discrimination. Plaintiff’s claims of discrimination are confounding, unsupported and 25 warrant summary judgment in favor of Defendant. 26 1. Defendant’s Decision Not to Hire Plaintiff as a Customer Service 27 Supervisor 28 Beginning with SWA’s decision not to hire Plaintiff as a Customer Service 1 Supervisor, there is no genuine issue of material fact that Defendant’s actions were not 2 motivated by Plaintiff’s national origin. In her Complaint, Plaintiff contends that she was 3 denied employment by Defendant as a supervisor because of her national origin. See 4 ECF No. 1-2; Complaint at 13. This discrimination claim in Count I overlaps with 5 Plaintiff’s Fourth Cause of Action – denial of hiring in violation of Title VII. As such, 6 the Court will address them together. 7 Without providing any factual support, Plaintiff contends that she was not selected 8 for the supervisor position because “they don’t like somebody who has an accent.” ECF 9 No. 42-5 at 16; Hukman Depo. I, 179:16-180:6. Plaintiff bases this theory on the belief 10 that her interview “went very well” and she “answered all the questions accurately as a 11 successful customer service supervisor who had a lot of experience.” ECF No. 1-2 at 4. 12 Moreover, Plaintiff asserts that she was qualified for the position because she “Belong to 13 a Racial Minority” and that SWA discriminated against her when they – despite allegedly 14 informing her that they typically promoted supervisors internally – “hired individuals 15 from outside the company who doesn’t have an Airline experience and was not qualified 16 for the position.” Id. 17 As a starting point, SWA maintains that Plaintiff’s claims lack any factual support 18 whatsoever. In addition, SWA notes that Plaintiff has admitted that no one at SWA told 19 her they did not like her accent. SWA also points to Hukman’s candidate evaluation for 20 the SAN CSSII – or San Diego Customer Service Supervisor – position, which states: 21 “Sheida has a lot of experience – but very low key – unable to really sell herself as a 22 leader at SWA. She never had challenges with her senior employees. Anything she 23 would request of them, they would comply. She appeared very nervous, soft spoken, and 24 timid in her interview. She wasn’t as competitive as our other candidates.” ECF No. 42- 25 5 at 277, Ex. 39. In that same evaluation form, interviewer Pat Lyson also unequivocally 26 chose not to recommend her for the position. Id. Defendant notes that the evaluation 27 review was utterly silent as to Plaintiff’s national origin. Id. Defendant argues that 28 Plaintiff has failed to offer any support for her claim that she was qualified for the 1 Customer Service Supervisor position, subjected to an adverse employment action, or 2 presented any “specific facts” that SWA’s decision not to hire her as a supervisor was 3 motivated by her national origin. Accordingly, Defendant avers that summary judgment 4 is warranted. 5 Assuming that Plaintiff was qualified to serve as customer service supervisor, she 6 has failed to offer facts to show that she was treated differently from similarly situated 7 individuals. She offers no facts to support the claim that SWA hired unqualified or less- 8 qualified individuals for the supervisor position. Plaintiff’s bald contentions are 9 thoroughly unsupported and are textbook examples of conclusory allegations. Plaintiff’s 10 mere belief that her interview “went very well” and her subjective conviction that her 11 background was suitable for the position are insufficient to establish that she was entitled 12 to the supervisory position or discriminated against based upon national origin. Cf. Arya 13 v. CalPERS, 943 F. Supp. 2d 1062, 1070 (C.D. Cal. 2013) (plaintiff’s “subjective belief 14 that defendant’s agents intentionally misrepresented his eligibility for [a retirement 15 program] because they identified his accent and last name as being Iranian and sought to 16 discriminate against him based on his national origin is entirely speculative.”) In 17 addition, Plaintiff’s admissions that no one at SWA made any comments about Plaintiff’s 18 accent, ethnicity, or national origin during the hiring process cut against her attempts to 19 establish any discriminatory basis for Defendant’s actions. Thus, summary judgment on 20 the merits is warranted on this claim. 21 2. Plaintiff’s Cause of Action for Denial of Proper Training 22 Next, Plaintiff contends that Defendant denied her proper training as required for 23 her role as a Customer Service Agent because of her Iraqi national origin. ECF No. 1-2; 24 Complaint at 13. Specifically, Plaintiff contends that she was forced to work by herself 25 at the ticket counter during her second week of training and did not receive the same 26 amount of “one-on-one” training time as other new hires. Plaintiff suggests this was 27 “done purposely, you know, by Southwest Airlines, so I could make a mistake or 28 something so they could fire me immediately.” ECF 42-5 at 79. This discrimination 1 claim embedded in Count One is the same as Plaintiff’s Fifth Cause of Action – that she 2 was denied proper training as a customer service agent in violation of Title VII – and as 3 such, the Court will address them simultaneously. 4 Once again, Defendant submits that Plaintiff has “proffered no evidence to 5 establish that she was provided any training that was different or less than training 6 provided to other new hires.” ECF No. 42 at 27. 7 The Court agrees. Plaintiff has not provided any evidence showing that her training 8 was qualitatively less or different than the training provided to others. Nothing in the 9 record shows that Plaintiff received training that was outside the norm of the standard 10 training process at SWA. Plaintiff’s own training schedule shows that she was provided 11 classroom training at SWAU University, on-the-job training at San Diego Airport, and 12 training at Defendant’s Dallas headquarters for approximately six weeks. And in the 13 parties’ statements of undisputed facts, Plaintiff agrees that Mr. Klatt “provided training 14 for new hire employees regarding the ‘mechanisms of the computer, policies of the 15 company, how to execute customer service, the check-in process, and the customer 16 service skills needed to facilitate the customers of Defendant.’” ECF No. 57-1 at 22-23; 17 see also EF No. 42-5 at 428-429. Plaintiff has also offered no evidence – beyond her 18 unsubstantiated belief that another Hispanic employee4 was provided more training – 19 which shows that other new hires had more favorable training schedules or received more 20 training time than she did. And finally, there is absolutely no evidence that could support 21 Plaintiff’s meritless allegation that SWA purposefully conspired and forced her to work 22 without a trainer – simply so that they could orchestrate her termination when she made 23 mistakes. As such, Plaintiff has failed to proffer evidence creating a genuine issue of 24 material fact that she was denied proper training due to her national origin and summary 25

26 4 The Court notes that Plaintiff reached a conclusion about the other employee’s ethnicity based on her 27 perception that the woman did not have an accent when she spoke Spanish. As such, the Court is uncertain as to the national origin of the other employee, but recognizes that this fact is immaterial to the 28 1 judgment on this claim is warranted on the merits. 2 3. Plaintiff’s Discrimination Claims Based on Her Termination 3 Plaintiff claims that she was discriminated against based on her national origin 4 when her employment with Defendant was terminated. See ECF No. 1-2; Complaint at 5 11. However, Hukman has failed to present evidence creating a genuine issue of material 6 fact that her termination was due to discrimination. 7 a. Whether Plaintiff Was Qualified for Her Position 8 As a probationary Customer Service Agent, Plaintiff was required to maintain a 9 positive relationship with customers, work in a cooperative spirit to ensure the success of 10 SWA, and greet customers in a polite and friendly manner. The undisputed record shows 11 that Plaintiff actively did not demonstrate the ability to “work well with others as part of 12 a team [ . . . ] and work under stressful situations,” skills required by the job description 13 for a Customer Service Agent. ECF No. 42-5 at 98; Hukman Depo. II, 377:16-378:14; 14 Ex. 13. Moreover, Plaintiff’s concerning interactions with Ms. Farson and Mr. Riddle – 15 which resulted in disciplinary meetings and write-ups – suffice as examples of Plaintiff’s 16 inability to work well with others, maintain positive relationships, and work 17 cooperatively with others. See Pivirotto v. Innovative Systems, Inc., 191 F.3d 344, 353 18 (3rd Cir. 1999) (“If a plaintiff cannot prove that she was qualified for a position [ . . . ] it 19 is clear why her discrimination case should fail.”) 20 The above facts support the conclusion that Plaintiff was not qualified to perform 21 the responsibilities of a Customer Service Agent. 22 b. Whether Plaintiff was Treated Differently from Similarly 23 Situated Individuals Outside of Her Protected Class 24 Assuming Plaintiff could establish that she was qualified for her position, her 25 prima facie for discrimination would still fail because she has offered no evidence 26 supporting that other similarly situated individuals outside of her protected class were 27 treated differently. In the context of termination, Plaintiff must show that her termination 28 “occurred under circumstances giving rise to an inference of discrimination.’” Coleman 1 v. Quaker Oats Co., 232 F.3d 1271, 1281 (9th Cir. 2000) (quoting Rose v. Wells Fargo & 2 Co., 902 F.2d 1417, 1421 (9th Cir. 1990). 3 Plaintiff has provided no evidence that other probationary employees with different 4 national origins were treated better than she was. The Court can identify only one 5 instance where Plaintiff suggests that she was treated differently from any individuals. 6 Specifically, Plaintiff claims that “Ms. Farson been going around investigating the 7 Plaintiff, to set her up for a permanent termination to help the flight attendant Ms. 8 Williams-Anderson to continue to commit illegal activity, because She is Caucasian and 9 the Plaintiff is Kurdish and not allowed to complain about Caucasian even if she is 10 involved in committing illegal activity.” ECF No. 1-2; Complaint at 7. However, this 11 assertion is just one in a string of allegations involving an individual Laura Williams- 12 Anderson who is referred to throughout the Complaint as someone who had “Learned the 13 art of invisibility” and was informing SWA employees that Plaintiff was a “terrorist.” Id. 14 at 4, 6. Other than these fanciful claims, there is no evidence suggesting that Hukman was 15 treated less favorably than others based on her national origin. 16 c. Whether Defendant Terminated Plaintiff’s Employment for 17 Legitimate Non-Discriminatory Reasons 18 If Plaintiff were able to establish a prima facie case of discrimination – which, as 19 discussed above, she cannot – the burden shifts to SWA to articulate “some legitimate 20 non-discriminatory reason for the challenged action.” Chuang, 225 F.3d at 1123-1124. 21 If Defendant meets this burden, then Plaintiff must show that the articulated reasons were 22 pretext for another discriminatory motive. Defendant has presented two categories of 23 reasons for Hukman’s termination: (1) her inability to work with others in accordance 24 with her job performance requirements; and (2) her insubordination and unprofessional 25 behavior in response to constructive criticism. 26 There is no genuine issue of material fact that SWA’s actions were not motivated 27 by Hukman’s national origin. The record shows that SWA terminated Plaintiff following 28 her failure to pass probation because of her poor job performance, insubordination, and 1 repeated unprofessional incidents with other employees. Courts have long recognized 2 that inadequate job performance constitutes a legitimate, non-discriminatory reason for 3 terminating an employee’s employment. Aragon v. Repub. Silver State Disposal, Inc., 4 292 F.3d 654, 660-61 (9th Cir. 2002) (affirming summary judgment in favor of an 5 employer that chose to terminate a plaintiff’s employment for working too slowly in a 6 Title VII discrimination case); see also Bradly v. Harcourt, Brace and Co., 104 F.3d 267, 7 270 (9th Cir. 1996) (affirming summary judgment in favor of an employer that provided 8 evidence of plaintiff’s poor performance). 9 Defendant relies on a number of documented and undisputed examples which 10 substantiate Plaintiff’s poor job performance. First, Plaintiff was called in for a meeting 11 with supervisors to address her interactions with Ms. Farson about the uniform 12 purchasing policy. ECF No. 42-3 at 13-14. During that meeting, Plaintiff was dismissive 13 and blatantly unreceptive to feedback about the interpersonal issues and repeatedly 14 sought to blame others who were uninvolved. She also began accusing other employees 15 – without support – of threatening her. Next, Plaintiff was defiant and argumentative in 16 response to her 50-day evaluation. She openly disagreed with the supervisor and refused 17 to sign the evaluation. Id. After her Soft Skills Audit, Plaintiff refused to acknowledge 18 any suggested areas of improvement and reacted unprofessionally to any constructive 19 feedback and criticism in the audit. During the meeting, Plaintiff reacted 20 unprofessionally, raised her voice and accused the supervisor of being a liar, and refused 21 to change her demeanor when another supervisor was brought in to intervene. Once 22 again, Plaintiff refused to sign the audit report, claiming that it was not a valid 23 documentation. Id. And finally, Plaintiff admits that she had interpersonal issues and 24 altercations with other staff members, including Taylor Farson and Jules Alviz, which 25 resulted in multiple meetings with management. Over the course of these proceedings, 26 Plaintiff has never denied any of these incidents. And although Plaintiff was 27 reprimanded and reminded repeatedly of her duty to work professionally with her co- 28 workers, Plaintiff continued to have insubordinate interactions with her coworkers. 1 Despite these numerous infractions, Hukman alleges that she was terminated for 2 her national origin alone. She argues that she received accolades for her job performance 3 and “excellent performance evaluations” that “Southwest Airlines refused to Produce.” 4 ECF No. 53 at 17-18. In addition, Hukman “denies ever not being Friendly,” and 5 “worked well with all passengers and Co-workers.” Id. To illustrate her argument, 6 Plaintiff avers that “no Complaint was filed” against her and that she was never given 7 negative feedback. Id. 8 The Court finds that the record comprehensively contradicts Plaintiff’s 9 unsupported assertions about her job performance. Conversely, there is an abundance of 10 evidence that suggests that Defendant had “concerns [about Plaintiff] almost from the 11 start of her employment.” ECF No. 42-3 at 13. Moreover, courts have found that a 12 Plaintiff’s “subjective personal judgments of [her] own competence alone do not raise a 13 genuine issue of material fact.” Coleman v. Quaker Oats Co., 232 F.3d 1271, 1285 (9th 14 Cir. 2000). As such, Plaintiff’s unsubstantiated claims about her performance cannot 15 stack up against the heavy weight of the evidence supporting Plaintiff’s repeated 16 instances of poor performance and insubordinate behavior. And finally, Plaintiff herself 17 acknowledges that no one gave her any reasons for her termination other than she was not 18 a “good fit” and could not pass the probationary period. ECF No. 42-5, Hukman Depo. 19 II, 444:14-19. Accordingly, the Court concludes that Defendant has articulated legitimate 20 non-discriminatory performance-based reasons for Plaintiff’s discharge. 21 d. Pretext for Discrimination Claims 22 As discussed above, Defendant has met its burden by articulating a legitimate 23 reason for Plaintiff’s termination. In such circumstances, the presumption of unlawful 24 discrimination “simply drops out of the picture,” St. Mary’s Honor Ctr. v. Hicks, 509 25 U.S. 502, 511 (1993), and under the McConnell-Douglas burden-shifting framework, 26 Hukman would now bear the burden of persuading the Court that the stated reason for the 27 discharge was false and the true reason for the discharge was discrimination on the basis 28 of her national origin. To do so, Plaintiff must “do more than establish a prima facie case 1 and deny the credibility of the [defendant’s] witnesses.” Walls v. J.R. Simplot Co., 26 2 F.3d 885, 890 (9th Cir. 1994) (citation omitted). While the Court has found that Plaintiff 3 has failed to establish her prima facie case, for the sake of completeness, the Court also 4 concludes that Hukman has failed to offer sufficient evidence of pretext. 5 To establish pretext, Plaintiff must present “specific and substantial evidence that 6 [Defendant’s] reasons are really a pretext for [national origin] discrimination.” Aragon, 7 292 F.3d at 661. However, Plaintiff cannot prove pretext by showing that Defendant’s 8 acts were “foolish or trivial or even baseless.” Johnson v. Nordstrom, Inc., 260 F.3d 27, 9 733 (9th Cir. 2001). Courts only require that “an employer honestly believed its reason 10 for its action.” Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1063 (9th Cir. 2002) 11 (internal quotations omitted). And “[m]ere assertions of discriminatory motive and intent 12 [. . .] are inadequate” to support a claim of disparate treatment on the basis of national 13 origin.” Foster v. Arcata Assocs., Inc., 772 F.2d 1453, 1459 (9th Cir. 1985), overruled 14 on other grounds by Kennedy v. Allied Mut. Ins. Co., 952 F.2d 262 (9th Cir. 1991); Ray v. 15 Tandem Computers, Inc., 63 F.3d 429, 434 (5th Cir. 1995). In keeping with all 16 discrimination cases, “[p]roof of discriminatory motive is critical.” Int’l Bhd. Of 17 Teamsters v. U.S., 431 U.S. 325, 344 n.15 (1977). 18 Hukman has produced no meaningful evidence indicating either that SWA’s 19 explanation was false or that her superiors at SWA harbored discriminatory animus 20 towards her because of her national origin. Hukman’s claims that she had been 21 performing her job adequately and that she worked well with her co-workers are not 22 supported by the record. Moreover, an employee’s subjective personal judgments of her 23 own competence alone do not raise a genuine issue of material fact. Schuler v. Chronicle 24 Broadcasting Co., Inc., 793 F.2d 1010, 1011 (9th Cir. 1986). In addition, Plaintiff does 25 not dispute the occurrence of any of the incidents that Defendant identified. When asked 26 to explain the ways she felt discriminated against or treated inappropriately, Plaintiff 27 offers – in both her Complaint and deposition testimony – vague conclusory conjectures, 28 suspicions, and references to the woman named Laura Williams Anderson: “They 1 discriminated against me because – because not what Laura Williams what she told them 2 because of my national origin, because they are – you know, they discriminate. That’s in 3 their head and in their mind.” ECF No. 42-5 at 85. Plaintiff further opines that if Laura 4 Williams Anderson had not said anything about her being “a terrorist,” she would still be 5 working at Southwest Airlines. Id. at 4-5.5 6

7 5 The Court is aware that Plaintiff has filed lawsuits against three different airlines for actions that she 8 alleges involve a former coworker named Laura Williams Anderson. Plaintiff contends that she 9 previously worked at U.S. Airways with Ms. Williams Anderson and believes that Ms. Williams Anderson was also employed by Defendant when Plaintiff began her probationary employment. 10 Plaintiff has accused Ms. Williams Anderson of “Attempted Murder right after filling the Lawsuit Against SouthWest Airline in November 2017” and has unsuccessfully demanded information about 11 Ms. Williams Anderson from the FBI. ECF No. 50 at 34. On November 29, 2017, Plaintiff filed a police report about Ms. Williams Anderson, which stated: 12

13 “Hukman claimed her former co-worker Laura Williams-Anderson has put tracking device on her car to track her everywhere she goes. On 11/28/17 she left work around 0610 hours and pulled into 14 Wholefood grocery store because she was falling asleep at the wheel and woke up at 1245 hours and noticed Williams-Anderson in her car. She claimed Williams-Anderson put something in her car that 15 made her sleepy. She said she doesn’t know exactly what Williams-Anderson did to her. She said said Williams-Anderson carry around fake court order that she has guardianship over her, talks to her 16 employer which created problems and issue at work.” ECF No. 59-8 at 46. 17 Here, Plaintiff’s Title VII, retaliation, and harassment claims derive in large part from her belief that Ms. 18 Williams Anderson conspired with employees at SWA to discriminate against her for previously reporting that Ms. Williams Anderson – and other employees at American Airlines – practiced, among 19 other things, the “Art of Invisibility.” ECF No. 1-2 at 5. Throughout her deposition testimony, Plaintiff argues that Ms. Williams-Anderson “contacted the agents” to tell them that Plaintiff was a terrorist and 20 also contends that Ms. Laura Williams-Anderson specifically showed up at Plaintiff’s gate to call her a 21 “terrorist” at the San Diego Airport. ECF No. 42-5 at 86-87. In her Complaint, Plaintiff makes other numerous references to Ms. Williams Anderson: 22 (1) “[Taylor Farson] was instructed by the Station Manager Mr. Tom Starr to intentionally 23 discriminate, retaliate, and terminate the Plaintiff employment with Southwest Airline because Mr. Tom Starr was a Friend of a Southwest Airline Flight Attendant “ Ms. Laura Williams- 24 Anderson,” Caucasion “who committed Illegal Activity by smuggling herself, friends and family 25 members without listing Them in the manifest and introduce the Iranian to Airline Employees so, they could get the airline and airport information from the Airline Employee” worked for the 26 Iranian” , and Learned the art of invisibility.” Id. at 5. (2) “The Senior agent Ms. Jules Alvis Knew the policy and [ . . . ] in a threatening manner ‘be 27 careful You are in a probation , they are going to terminate your employment , because you took the Flight Attendant Ms. Laura Williams-Anderson to court to get an order of protection.’” Id. at 28 1 None of Plaintiff’s beliefs are supported by the record. In Arya v. CalPERS, an 2 Iranian employee alleged that his surname and accent gave rise to an inference of 3 discriminatory animus. 943 F. Supp. 2d 1062, 1070 (C.D. Cal. 2013). There, the Court 4 found that the plaintiff’s “subjective belief that defendant’s agents intentionally 5 misrepresented his eligibility for [a retirement program] because they identified his 6 accent and last name as being Iranian and sought to discriminate against him based on his 7 national origin is entirely speculative.” Id. As such, the Court granted the defendant’s 8 motion for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). 9 Id. Here, there is no evidence that shows Hukman was treated less favorably because of 10 her national origin or that her national origin played any role in SWA’s decision-making 11 process with regard to her termination. Plaintiff’s conjectures and suspicions about the 12 reasons for her termination strain credulity and are wholly devoid of evidentiary support. 13 The Court further notes that Plaintiff has provided no evidence to rebut SWA’s showing 14 that Plaintiff was fired for nondiscriminatory reasons. Thus, the Court finds that Plaintiff 15 cannot establish the reasons for her termination were pretextual. 16 iii. Plaintiff’s Second and Third Causes of Action for Retaliation Under Title 17 VII and FEHA 18 Plaintiff also brings retaliation claims under Title VII and the FEHA. Both Title 19 20 (3) “Mr. McGinley stated that Ms. Farson has been going around investigating the Plaintiff , to set 21 her up for a permanent termination to help the flight attendant Ms. Williams-Anderson to continue to commit illegal activity, because She is Caucasian and the Plaintiff is Kurdish and not 22 allowed to complain about Caucasian even if she is involved in committing illegal activity.” Id.

23 None of Hukman’s assertions about Ms. Williams Anderson have any evidentiary basis in the record. In fact, there is no evidence that suggests that any of the individuals involved in this matter are at all 24 acquainted with Ms. Williams Anderson. And moreover, the Court finds that many of Plaintiff’s claims 25 regarding invisibility and Ms. Williams Anderson cannot be construed as true, as they are fantastic and “defy reality as we know it.” See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (finding that “claims 26 about little green men, or the plaintiff’s recent trip to Pluto, or experiences in time travel” constitute fantastic allegations). As such, the Court concludes that Plaintiff has not presented any genuine issue of 27 material fact as to these implausible and wholly unsupported claims. Accordingly, the Court also GRANTS summary judgment with respect to these claims. 28 1 VII and the FEHA prohibit retaliation against an employee for opposing any practices 2 forbidden by these statutes. See 42 U.S.C. § 2000e-3(a); Cal. Gov’t Code § 12940(h). To 3 establish a prima facie case for retaliation under both federal and state law, Hukman must 4 prove that she (1) engaged in a protected activity; (2) suffered an adverse employment 5 action, and (3) can demonstrate the existence of a causal link between the protected 6 activity and the adverse action. Passantino v. Johnson & Johnson Consumer Prds., Inc., 7 212 F.3d 493, 506 (9th Cir. 2000); Lewis v. City of Benicia, 224 Cal. App. 4th 1519, 1533 8 (2014). Here, Plaintiff is unable to establish a prima facie case because she has shown 9 neither that she engaged in a protected activity nor that a causal nexus exists between any 10 alleged protected activity and her termination. 11 1. Whether Plaintiff Engaged in Protected Activity 12 To prevail on a claim of Title VII retaliation, Plaintiff must first demonstrate that 13 she engaged in a “statutorily protected expression.” E.E.O.C. v. Crown Zellerbach Corp., 14 720 F.2d 1008, 1012 (9th Cir. 1983). “Protected activity encompasses participation in 15 enforcing one’s rights under Title VII or opposition to an employer’s discriminatory 16 conduct under Title VII.” Arya, 943 F. Supp. 2d at 1071 (citing Learned v. City of 17 Bellevue, 860 F.2d 929, 932-933 (9th Cir. 1988)). Hukman must also prove “but-for” 18 causation, or in other words, that “the unlawful retaliation would not have occurred in the 19 absence of the alleged wrongful action or actions of the employer.” Univ. of Tex. Sw. 20 Med. Ctr. v. Nassar, 570 U.S. 338, 360-61 (2013). If Hukman is able to establish this 21 prima facie case, the burden would shift back to SWA to articulate a legitimate, non- 22 retaliatory reason for the adverse employment action. McDonnell Douglas Corp. v. 23 Green, 411 U.S. 792, 802 (1973). 24 Defendant argues that neither Plaintiff’s complaint – nor her deposition testimony 25 – offer any facts to suggest that she opposed any allegedly unlawful employment 26 practices in violation of Title VII throughout the course of her employment with 27 Defendant. According to SWA, Plaintiff’s admits that she did not complain prior to the 28 termination of her employment and rather that she only complained of harassment and 1 discrimination after she was advised of her termination. Absent any protected activity, 2 Defendant surmises that Plaintiff’s termination cannot be considered retaliatory as a 3 matter of law. 4 Plaintiff counters that she she “complained of Harassment and Retaliation Based 5 on National Origin to Mr. Larimore on September 15th, 2016 Various Times and also 6 complained various Times and also complained to Mr. irv Adams.” ECF No. 53 at 27. 7 In addition, Plaintiff points to her documented complaints about Ms. Jules Alviz on 8 September 15, 2016, when Plaintiff claims that Ms. Alviz threatened her by saying that 9 “You are on probation and you need to be careful of what you say.” Plaintiff also notes 10 that after she was informed of her termination, she notified Defendant that she had been 11 discriminated against and allegedly called a “shishkabob” by multiple co-worker. ECF 12 No. 42-5, Hukman Depo. II, 317:23-318:6. 13 Once again, the Court agrees with Defendant that Plaintiff cannot establish that she 14 engaged in a statutorily protected expression. First, it is well-established that “complaints 15 about personal grievance or vague or conclusory remarks that fail to put an employer on 16 notice as to what conduct it should investigate will not suffice to establish protected 17 conduct.” Yanowitz v. L’Oreal USA, Inc., 36 Cal. 4th 1028, 1047 (2005). Similarly, 18 “where there is no evidence the employer knew that the employee’s opposition was based 19 upon a reasonable belief that the employer was engaging in discrimination,” an 20 employee’s unarticulated belief that an employer has engaged in discrimination cannot 21 serve as grounds to establish protected conduct for a prima facie case of retaliation. Id. at 22 1046. 23 The Court finds that Plaintiff’s own testimony conclusively confirms that she never 24 complained about any allegedly discriminatory conduct during the duration of her 25 employment. ECF No. 42-5 at 116-20. Although it is undisputed that Plaintiff 26 complained about Ms. Alviz on September 15, 2016, the record shows that Plaintiff did 27 not allege until after her termination that Ms. Alviz’s statements were discriminatory in 28 nature. The record also proves that Plaintiff’s assertions about being called a 1 “shishkabob” did not occur until after her September 15, 2016 meeting with with Mr. 2 Larimore. See ECF No. 42-5, Hukman Depo. II, 317:23-318:6. As such, there is no 3 evidence that SWA was ever placed on notice about Plaintiff’s concerns or grievances 4 about possible discrimination until after she was advised of her termination. 5 Accordingly, Plaintiff has failed to establish that she engaged in protected activity during 6 the course of employment. Thus, Plaintiff’s prima facie case for retaliation fails on the 7 first prong.6 8 2. Whether Plaintiff Can Establish Pretext of Retaliation 9 Under Title VII, a plaintiff must prove that Defendant’s retaliation was the “but 10 for” cause of the adverse employment action. In other words, the Plaintiff must establish 11 “unlawful retaliation would not have occurred in the absence of the alleged wrongful 12 action or actions of the employer.” Univ. of Texas Southwestern Med. Ctr. v. Nassar, 133 13 S. Ct. 2517, 2532-34 (2013); Stilwell v. City of Williams, 831 F.3d 1234 (9th Cir. 2016). 14 If an employer proves that it would have taken the same adverse action regardless of a 15 retaliatory motive, then Plaintiff’s case for retaliation would still fail. 16 The FEHA similarly requires the plaintiff to prove either that the employer’s 17 legitimate, non-retaliatory reason is pretextual or that the challenged action resulted from 18 retaliatory animus. Joaquin v. City of Los Angeles, 202 Cal. App. 4th 1207, 1226 (2012). 19 Moreover, any circumstantial evidence of pretext must be “specific” and “substantial.”. 20 Bergene v. Salt River Project Agric. Improvement & Power Dist., 272 F.3d 1136, 1142 21 (9th Cir. 2001). 22 The Court has already found that Defendant’s proffered reasons for terminating her 23 employment cannot be construed as pretextual under her Title VII discrimination claims. 24

25 26 6 Although Plaintiff’s prima facie case for discrimination fails on the first element of the claim – for failure to prove that she engaged in protected activity, the Court has already found that Defendant 27 articulated legitimate and non-retaliatory reasons for terminating Plaintiff’s employment. These legitimate and non-retaliatory reasons have already been identified and discussed at length in the Court’s 28 1 That same analysis is equally applicable here. Even if the Court were to assume in the 2 alternative that Plaintiff had engaged in protected activity, Hukman has not offered any 3 evidence – direct or circumstantial – that Defendant’s motivations in terminating her 4 employment for poor job performance gave rise to an inference of discrimination. As 5 discussed above, Plaintiff’s subjective disagreements with Defendant’s assessment of her 6 performance are insufficient to defeat summary judgment on this issue absent additional 7 evidence of pretext. Since there is no evidence to support a causal connection between 8 her alleged complaints and the termination of her employment, Plaintiff’s state and 9 federal retaliation claims cannot survive summary judgment as a matter of law. 10 iii. Plaintiff’s Sixth Cause of Action for Harassment 11 Plaintiff also raises harassment claims under Title VII and FEHA. To prevail, 12 Plaintiff must show not only that she was subjected to unwelcome verbal or physical 13 conduct of a protected characteristic, but also that the the conduct was severe or 14 pervasive enough to actually alter the conditions of Plaintiff’s employment such that they 15 created an abusive work environment. Faragher v. City of Boca Raton, 524 U.S. 775, 16 7786 (1998) (citing Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986); Vasquez 17 v. County of L.A., 349 F.3d 634, 642 (9th Cir. 2003) (affirming the dismissal of hostile 18 work environment claims on summary judgment). Although commonly alleged in 19 connection with sex and gender, a hostile work environment claim may also be based on 20 other protected characteristics such as race. Vasquez, 349 F.3d at 942 (considering 21 racially based harassment that created hostile work environment). Title VII hostile work 22 standards are equally applicable to claims under the FEHA. Lelaind v. City and Cnty. of 23 San Francisco, 574 F. Supp. 2d 1079 (N.D. Cal 2008). 24 As a preliminary matter, the Court notes that Plaintiff’s harassment claims derive 25 in part from her belief that the aforementioned Ms. Williams-Anderson engaged in a 26 conspiratorial effort with SWA to encourage other employees to harass Plaintiff for 27 reporting that Ms. Williams-Anderson practiced the “Art of Invisibility” and illegal 28 activity. The Court has already addressed why Plaintiff’s allegations should be denied on 1 their fantastical and unrealistic basis alone. However, in analyzing the remainder of 2 Plaintiff’s harassment claims, the Court will attempt to extricate her harassment claims 3 from those involving invisibility and the wholly unsubstantiated illegal activity of others. 4 Plaintiff points to several specific instances of alleged harassment throughout her 5 employment with SWA. First, Plaintiff alleges that Customer Service agents Al Alviz 6 and Jules Alviz called Plaintiff a “shishkabob” two times and one time respectively. ECF 7 No. 42-5 at 90. In addition, Plaintiff claims that on one occasion after the uniform 8 incident, Ms. Alviz pointed her finger at Plaintiff while stating, “You are on probation 9 and you need to be careful of what you say.” ECF No. 42-5 at 272. Next, Plaintiff 10 asserts that the day before the termination of her employment, Customer Service 11 Supervisor Randall Riddle mocked Plaintiff’s accent by “talking like” Plaintiff to 12 passengers while observing her for a Soft Skills Audit. ECF No. 42-5 at 23. And finally, 13 Plaintiff claims – for the first time in her opposition to Defendant’s motion for summary 14 judgment – that another supervisor, Mr. Christman, referred to her as a “shishkabob” 15 when she refused to sign her audit review. ECF No. 53 at 10, 24. 16 Plaintiff has provided shifting and vacillating accounts of when these statements 17 were made, by whom they were made, and exactly what was said.7 Plaintiff has 18 presented no corroborating evidence for any of these allegations. But even taking 19 Plaintiff’s disputed allegations as true, Plaintiff’s allegations do not rise to the level of 20 severe or pervasive harassment that would alter the conditions of her employment. 21 22 23 7 It is also established that “the general rule in the Ninth Circuit is that a party cannot create an issue of fact by an affidavit [or statement] contradicting his prior deposition testimony.” Yeager v. Bowlin, 693 24 F.3d 1076, 1080 (9th Cir. 2012); Van Asdale v. International Game Tech., 577 F.3d 989, 998 (9th Cir. 25 2009). During Plaintiff’s deposition testimony, she stated that she had already described all incidents of discrimination and did not identify that Mr. Christman used the term “shishkabob” in her deposition 26 testimony. ECF No. 42-5 at 85-86. Plaintiff’s statement that Mr. Christman also used the term “shishkabob” in her opposition improperly contradicts the relevant deposition testimony. And 27 moreover, the Court finds that conclusory and speculative testimony is insufficient to raise genuine issues of fact and defeat summary judgment. Thornhill Publ’g Co., Inc. v. GTE Corp., 594 F.2d 730, 28 1 To determine whether conduct was sufficiently severe or pervasive enough to 2 warrant liability, courts look to all the circumstances including the frequency of the 3 discriminatory conduct; its severity; whether it is physically threatening or humiliating, or 4 a mere offensive utterance; and whether it unreasonably interferes with an employee’s 5 work performance. Nichols v. Azteca Rest. Enter., Inc., 256 F.3d 864, 872 (9th Cir. 6 2001) (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993)). In addition, the 7 working environment must be both objectively hostile, as perceived by a reasonable 8 person, and subjectively hostile, as perceived by the plaintiff herself. Id. at 872-73 (citing 9 Faragher, 524 U.S. at 787 (1998). The law is well-settled that offhand comments and 10 isolated incidents, unless extremely serious, do not typically rise to the level of 11 discriminatory animus that would change the “terms and conditions” of a victim’s 12 employment. Clark County School Dist. v. Breeden, 532 U.S. 268, 271 (2002); 13 Faragher, 524 U.S. at 778; Vasquez v. County of Los Angeles, 37 F.3d 884, 893 (9th Cir. 14 2002). Rather, a plaintiff pursuing a harassment claim must show a pattern of repeated, 15 routine, or generalized harassment. Faragher, 524 U.S. at 787. 16 Plaintiff’s allegations of harassment do not rise to the standard for legally 17 actionable harassment under either Title VII or FEHA. Some of Plaintiff’s claims – such 18 as the accusation about Ms. Alviz’s cautionary words and Mr. Randall’s observations 19 during her audit – do not necessarily indicate animus based on Hukman’s national origin. 20 Even when viewing the evidence in the light most favorable to Hukman, all identified 21 instances of national origin harassment taken together show that Hukman was subjected 22 only to two or three offhand comments and isolated incidents of offensive conduct. 23 Based on the legal standards under Title VII and FEHA, no reasonable jury could find 24 that Plaintiff’s workplace was so “permeated with discriminatory intimidation, ridicule, 25 and insult [so] severe or pervasive [as] to alter the conditions of her employment and 26 create an abusive working environment.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 19-21 27 (1993); see Robles v. Agreserves, Inc., 158 F. Supp. 3d 952 (E.D. Cal. 2016) (finding that 28 plaintiff’s allegations that a Mexican supervisor called him a “stupid Mexican” almost 1 every day and asserting that he was “above all Mexicans” was not sufficiently severe or 2 pervasive enough to interfere with a “a reasonable employee’s work performance” and 3 seriously affect the “psychological well-being of an reasonable employee); see also 4 Manatt v. Bank of America, 339 F.3d 792 (9th Cir. 2003) (finding that co-workers’ 5 derogatory comments about Chinese people and communism, references to plaintiff as 6 “China woman,” imitations and mockery of the appearance of Asians by pulling their 7 eyes back with their fingers, and laughter at Plaintiff’s mispronunciations on account of 8 her Chinese ethnicity did not constitute conduct severe, repeated, or pervasive enough to 9 alter the conditions of Plaintiff’s employment); Vasquez v. County of Los Angeles, 307 10 F.3d 884, 893 (9th Cir. 2002) (finding no hostile environment discrimination where the 11 employee was told he had a “typical Hispanic macho attitude,” that he should work in the 12 field because “Hispanics do good in the field,” and was yelled at in front of others); 13 Kortan v. Cal. Youth Auth., 217 F.3d 1104, 1111 (9th Cir. 2000) (finding no hostile work 14 environment where the supervisor referred to females as “castrating bitches,” 15 “Madonnas,” or “Regina” in front of plaintiff on several occasions and directly called 16 plaintiff “Medea”). Compare Kang, 295 F.3d at 817 (finding that a Korean plaintiff 17 suffered national origin harassment where the employer verbally and physically abused 18 the plaintiff because of his race); Nichols v. Azteca Rest. Enters., 256 F.3d 864, 872-73 19 (9th Cir. 2001) (finding a hostile work environment where a male employee was called 20 “faggot” and “fucking female whore” by co-workers and supervisors at least once a week 21 and often several times per day). 22 As a matter of law, the isolated claims in this instant case that Plaintiff attributes to 23 her national origin animus do not come close to the type of pervasive and severe conduct 24 required under Title VII and FEHA that would change the terms and conditions of her 25 employment. Accordingly, the Court GRANTS summary judgment as to Plaintiff’s 26 claims of harassment. 27 B. Plaintiff’s Seventh Cause of Action for Failure to Stop Discrimination and 28 Harassment 1 Employers must take “all reasonable steps necessary to prevent discrimination and 2 harassment from occurring.” Cal. Gov’t Code § 12940(k); see also 42 U.S.C. § 2000e- 3 2(a)(1) (under Title VII). However, an employer is not liable to an employee for failing 4 to take reasonable steps to prevent discrimination unless the employee establishes that he 5 or she actually suffered discrimination. See Tritchler v. Cnty. of Lake, 358 F.3d 1150, 6 1154-55 (9th Cir. 2004) (“a finding of discrimination is required before a failure to 7 investigate a discrimination complaint would become actionable [. . . ] if there is no 8 discrimination, then the failure to investigate has no effect on the existence of a 9 discrimination-free workplace.”) (citing Trujillo v. N. Cnty. Transit Dist., 63 Cal. App. 4th 10 280, 288-89 (1998); Cozzi v. Cnty. of Marin, 787 F. Supp. 2d 1047, 1073 (N.D. Cal. 11 2011) (granting summary judgment on plaintiff’s failure to prevent harassment and 12 discrimination claim where plaintiff “has established no viable claim of discrimination or 13 harassment.”) 14 As discussed above, Plaintiff has not established viable discrimination or 15 harassment claims. SWA cannot be liable for preventing discrimination or harassment in 16 the absence of actual discrimination or harassment. Accordingly, the Court GRANTS 17 summary judgment in favor of the Defendant on Plaintiff’s causes of action for failure to 18 prevent discrimination or harassment. 19 C. Plaintiff’s Eighth Cause of Action for Wrongful Termination in Violation of 20 Public Policy 21 Plaintiff also raises a claim for wrongful termination in violation of public policy. 22 Specifically, Plaintiff contends that Defendant violated Title VII and the FEHA by 23 discriminating, harassing, and retaliating against her. Defendant counters by asserting 24 that since Plaintiff’s underlying claims for discrimination and harassment fail, her public 25 policy claims must necessarily fail. 26 Since the Court has already found that Plaintiff was not subject to unlawful 27 discrimination, harassment, or retaliation, Plaintiff’s claim for wrongful termination in 28 violation of public policy fails as a matter of law because no violation of public policy 1 occurred. See De Horney v. Bank of Am. Nat’l Trust & Sav. Assoc., 879 F.2d 459, 465 2 (9th Cir. 1989) (finding that when plaintiff’s underlying FEHA claim fails, the claim for 3 wrongful termination also fails). Accordingly, the Court finds that Defendant is entitled 4 to summary judgment on Plaintiff’s public policy claim. 5 D. Plaintiff’s Claim for Punitive Damages 6 Lastly, Plaintiff contends that she is entitled to punitive damages. To state a claim 7 for punitive damages, Plaintiff must show, by clear and convincing evidence, that an 8 officer, director, or managing agent of SWA acted with oppression, fraud, or malice, or 9 ratified such conduct. Cal. Civ. Code § 3294; Basich v. Allstate Ins. Co., 87 Cal. App. 10 4th 1112, 1118-19 (2001). Plaintiff’s claims for punitive damages are founded largely 11 through two assertions: (1) that Mr. Larimore, a station manager, committed “fraud” by 12 submitting a “false declaration to the Court, and (2) that Ms. Laura Williams-Anderson 13 “committed malice.” ECF No. 53 at 36. 14 Plaintiff’s punitive damages claims cannot survive summary judgment. First, 15 Plaintiff has offered no evidence that either Mr. Larimore or Ms. Williams Anderson are 16 officers, managing agents, or directors of SWA. Rather, the uncontroverted record 17 demonstrates that Mr. Larimore works at the local level at the San Diego Airport and has 18 never been an officer or director of SWA. ECF No. 42-3, Larimore Decl., ¶ 12. Mr. 19 Larimore does not set corporate policy, salaries, or salary raises and is not involved in 20 any managerial decisions at SWA. Id. Similarly, Plaintiff has provided even less 21 evidence about Ms. Williams-Anderson. Beyond an unsubstantiated police report and 22 fantastical personal allegations, Plaintiff not provided any proof that Ms. Williams- 23 Anderson has any involvement whatsoever with Plaintiff’s employment. And finally, the 24 standard for awarding punitive damages requires that “the evidence be so clear as to leave 25 no substantial doubt” and “sufficiently strong to command the unhesitating assent of 26 every reasonable mind.” Mock v. Mich. Millers Mut. Ins. Co., 4 Cal. App. 4th 306, 332- 27 33 (1992). In Real v. The Continental Group, Inc., the federal district court, applying 28 California law, held that an employee was not entitled to punitive damages because he | had failed to show that his employer — despite having willfully discriminated against her 2 and terminating her employment — was unable to establish the requisite malice, 3 oppression, or fraud required under California law. 627 F. Supp. 434, 448-49 (N.D. Cal. 4 1986). The Court finds that Plaintiff cannot come close to meeting this stringent > || standard. Accordingly, Plaintiffs claims for punitive damages cannot withstand 6 summary adjudication. CONCLUSION 8 For the foregoing reasons, the Court finds that the Plaintiff has failed to proffer 9 any genuine or triable issues as to any material fact for each of her claims. Accordingly, 10 || the Court GRANTS Defendant’s motion for summary judgment in its entirety. The 11 |! Court also DENIES Plaintiffs Motion to Strike the Sur-Reply, ECF No. 67, and 12 || DENIES AS MOOT the Joint Motion to Continue Hearing, ECF No. 66. The Clerk of 13 || Court is hereby directed to close this case. 14 15 Dated: August 22, 2019 7 sale 0x ( 16 Hon. Gonzalo P. Curiel 7 United States District Judge

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