Monica Barnett v. Costco

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 26, 2023
• Docket: 22-55550
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 26 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MONICA BARNETT, No. 22-55550

Plaintiff-Appellant, D.C. No. 2:20-cv-04896-ODW-JEM v.

COSTCO WHOLESALE CORPORATION, MEMORANDUM*

Defendant-Appellee.

Appeal from the United States District Court for the Central District of California Otis D. Wright II, District Judge, Presiding

Submitted August 24, 2023** Pasadena, California

Before: RAWLINSON and BRESS, Circuit Judges, and ZOUHARY,***

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Jack Zouhary, United States District Judge for the Northern District of Ohio, sitting by designation. Monica Barnett, a Costco employee for nearly three decades, suffered a

workplace injury in November 2017, eventually leading to her resignation in August

2019. She now appeals the district court order granting Costco summary judgment

and dismissing her seven discrimination claims brought under the California Fair

Employment and Housing Act (“FEHA”).

We review de novo a district court order granting summary judgment. Lowry

v. City of San Diego, 858 F.3d 1248, 1254 (9th Cir. 2017) (en banc). Summary

judgment evidentiary issues and district court enforcement of briefing protocols are

reviewed for abuse of discretion. See Clare v. Clare, 982 F.3d 1199, 1201 (9th Cir.

2020); Christian v. Mattel, Inc., 286 F.3d 1118, 1129 (9th Cir. 2002). We have

jurisdiction under 28 U.S.C. § 1291 and affirm.

1. The district court did not abuse its discretion by excluding Barnett’s

Federal Civil Rule 30(e) deposition changes and her “Statement of Genuine Disputes

and Additional Undisputed Facts” for violating the district court’s case management

order. First, Barnett’s proposed deposition changes greatly exceed the scope

allowed under Rule 30(e) and the district court properly declined to consider them.

See Hambleton Bros. Lumber Co. v. Balkin Enters., Inc., 397 F.3d 1217, 1225 (9th

Cir. 2005) (noting that “[t]he Rule cannot be interpreted to allow one to alter what

was said under oath . . . [a] deposition is not a take home examination”) (citation

omitted). Second, the district court acted well within its discretion in excluding

2 Barnett’s filing, which failed to comply with the case-management order. See Ready

Transp., Inc. v. AAR Mfg., Inc., 627 F.3d 402, 404 (9th Cir. 2010) (“It is well

established that district courts have inherent power to control their docket.”) (cleaned

up).

2. The district court properly found Barnett failed to establish an adverse

employment action. Under California law, failure to accommodate or engage cannot

constitute an adverse employment action. See Doe v. Dep’t of Corrs. & Rehab., 43

Cal. App. 5th 721, 736 (2019) (“[A] failure to reasonably accommodate an

employee’s disability—which is a separate cause of action under FEHA []—can[not]

qualify as the adverse action underlying a discrimination or retaliation claim.”).

And, in any event,1 Barnett still falls short because, as explained below, Costco

provided reasonable accommodations.

Likewise, Barnett cannot show constructive discharge qualifying as an

adverse employment action. She worked only seven shifts as an optical assistant—

a position that all parties agree accommodated her medical restrictions. She opted

to resign because the job was “tedious and difficult” and “she didn’t understand it.”

These reasons are insufficient to show objectively intolerable conditions necessary

1 Barnett’s Motion To Take Judicial Notice (Dkt. 11) is granted. However, these publicly available forms from the California Department of Fair Employment and Housing do not change the outcome in this case. These intake forms are designed to gather information from lay employees; they are not agency guidance with supporting legal analysis.

3 to support her claim of constructive discharge under California law. See Gibson v.

Aro Corp., 32 Cal. App. 4th 1628, 1637 (1995) (holding that working conditions

must be “so intolerable or aggravated at the time of the employee’s resignation that

. . . a reasonable person in the employee’s position would be compelled to resign”)

(citation omitted).

Because Barnett failed to demonstrate an underlying adverse employment

action, the district court properly dismissed her claims for discrimination, retaliation,

failure to prevent discrimination and retaliation, and wrongful termination.

3. The district court did not err in finding Barnett failed to establish her claims

that Costco refused to accommodate her work restrictions or engage in the

interactive process. Barnett claims Costco refused to engage in good faith, “forced”

her to remain on medical leave, and required her to be “100% healed” before

returning to work. These assertions are unsupported by the record. The undisputed

record demonstrates that Costco held three job assessment meetings, sent Barnett

134 available positions over more than eight months, and placed Barnett in an

optical-assistant position that accommodated her limitations. See Raine v. City of

Burbank, 135 Cal. App. 4th 1215, 1224 (2006) (noting that “California law is

emphatic that an employer has no affirmative duty to create a new position to

accommodate a disabled employee”).

4 4. Because the district court properly dismissed each of Barnett’s substantive

claims, the derivative claims for declaratory judgment and punitive damages fail as

well.

AFFIRMED.