Sarah Hansen Colwell v. Costco Wholesale Corporation

• Court: District Court, D. Arizona
• Decided: March 19, 2026
• Docket: 2:24-cv-00310
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Sarah Hansen Colwell, No. CV-24-00310-PHX-ROS

10 Plaintiff, ORDER

11 v.

12 Costco Wholesale Corporation,

13 Defendant. 14 15 Before the Court is Defendant Costco Wholesale Corporation’s Motion for 16 Summary Judgment (Doc. 29), to which Plaintiff responded (Doc. 34), and Defendant 17 replied (Doc. 36). Defendant supports its Motion with a Statement of Facts (Doc. 30, SOF), 18 and Plaintiff supports her Response with a Controverting Statement of Facts (Doc. 35, 19 CSOF). Defendant’s Motion will be decided without oral argument. See LRCiv 7.2(f). 20 For the reasons that follow, the Court will deny Defendant’s Motion for Summary 21 Judgment. 22 I. BACKGROUND 23 All facts set forth below are undisputed or not subject to reasonable dispute based 24 on proffered admissible evidence unless otherwise noted. 25 Plaintiff Sarah Hansen Colwell is a Black woman of Middle Eastern national origin 26 who has been employed by Defendant Costco Wholesale Corporation (“Costco”) since 27 2016. On March 21, 2016, Plaintiff submitted an application for a pharmacist position with 28 a Costco store in Mesa, Arizona (“Mesa Pharmacy”). (SOF ¶ 13.) Rick Kautz, the 1 pharmacy manager for the Mesa Pharmacy since 2012, informed Plaintiff he could not hire 2 her at that time because she had not yet obtained her pharmacy license, inviting Plaintiff to 3 apply again once she obtained her license. (Id. ¶ 14.) 4 In fall 2016, after Plaintiff obtained her pharmacy license, she contacted Kautz again 5 about a position at the Mesa Pharmacy. (Id. ¶ 15.) At that time, there were no full-time or 6 part-time pharmacist positions available, so on October 26, 2016, Kautz decided to hire 7 Plaintiff as a Limited Part-Time Pharmacist (“LPT”). (Id. ¶¶ 16–17.) Costco’s Employee 8 Agreement classifies LPTs as “non-exempt Pharmacists who work infrequently or on call 9 and are not guaranteed a minimum number of hours per pay period.” (Id. ¶ 5.) In practice, 10 this means Costco does not guarantee LPTs a minimum number of hours or shifts. (Id. ¶ 11 7.) But unlike full- or part-time pharmacists, LPTs are not limited to their specific Costco 12 location and may pick up shifts at other Costco pharmacies in need of coverage.1 (Id. ¶ 12.) 13 As the manager of the Mesa Pharmacy, Kautz is responsible for setting the schedule 14 for pharmacists, and he regularly schedules LPTs on Saturdays because most LPTs have 15 other work commitments on weekdays. (Id. ¶¶ 9–10.) Other than Saturday shifts, Kautz 16 schedules LPTs on an “as needed” basis, such as when a full- or part-time pharmacist is 17 out on leave or on days he expects will be particularly busy. (Id. ¶ 11.) 18 Throughout Plaintiff’s employment at the Mesa Pharmacy, Kautz offered her every 19 Saturday shift. (Id. ¶ 26.) Plaintiff would also pick up various weekday shifts at the Mesa 20 Pharmacy; her availability was somewhat limited by work commitments at other 21 pharmacies, but Plaintiff provided Kautz with her weekly schedule so he would know what 22 days she was available. (Id. ¶¶ 29–31.) 23 In January 2017, Kautz began assigning Plaintiff the Monday shift after one of the 24 part-time pharmacists took paternity leave, and Kautz continued regularly scheduling 25 Plaintiff for Monday shifts even after the part-time pharmacist returned to work. (Id. ¶ 32.) 26 Unlike with Saturday shifts, these Monday shifts would ordinarily require Plaintiff and

27 1 Plaintiff objects to this statement, asserting Kautz once told Plaintiff she needed to be “committed to his store” after becoming frustrated that Plaintiff covered a shift at another 28 store for a pharmacist on maternity leave. (CSOF ¶ 12.) However, the general statement regarding LPTs’ ability to pick up shifts at other stores is not disputed. 1 Kautz to work together. (CSOF ¶ 94.) 2 In March 2017, Plaintiff was hired as a part-time pharmacist at Medmetrics 3 Compounding Pharmacy. (SOF ¶ 36.) At Medmetrics, Plaintiff was scheduled to work two 4 to three days a week, thus limiting her availability with the Mesa Pharmacy to around three 5 days per week, excluding Tuesdays and Wednesdays. (Id. ¶¶ 37–38.) Kautz thereafter 6 continued to offer Plaintiff shifts at the Mesa Pharmacy on Saturdays and Mondays, as well 7 as occasional weekday shifts based on her availability and the Mesa Pharmacy’s needs. (Id. 8 ¶ 39.) 9 Sometime in September 2017, Plaintiff shared with Kautz and other coworkers at 10 the Mesa Pharmacy that she did not get along with one of her brothers. (CSOF ¶ 51.) 11 Defendant maintains, and Plaintiff disputes, that Plaintiff specifically joked that her brother 12 “was probably a terrorist.” (Id.) 13 On November 27, 2017, Plaintiff again mentioned her brother, and one of her 14 coworkers, Josh Webber, made a comment along the lines of “is that the terrorist?” (SOF 15 ¶ 52.) That afternoon, Plaintiff told Kautz and the coworker, Josh Webber, that she did not 16 find the “terrorist” jokes funny and wanted them to stop. (Id. ¶ 53.) Plaintiff estimates that 17 Kautz had regularly called her a “terrorist”—rather than just her brother—on at least ten 18 occasions since she joined the Mesa Pharmacy a year prior, and Webber had done so 19 roughly five times. (CSOF ¶ 51.) This incident on November 27, 2017, was the first time 20 Plaintiff voiced any concern with these comments to Kautz and Webber or asked them to 21 stop; after this conversation, there were no further “terrorist” comments. (SOF ¶¶ 54–55.) 22 On November 28, 2017, Plaintiff submitted a complaint to the General Manager of 23 the Mesa Costco, Lori Smith, alleging Kautz harassed and discriminated against her by 24 calling her a terrorist and telling Plaintiff she “possessed a terrorist tongue.” (Id. ¶¶ 56–57.) 25 Smith immediately opened an investigation per Costco policy and interviewed Plaintiff the 26 same day, November 28. (Id. ¶ 61.) After interviewing Plaintiff, Smith also interviewed 27 Kautz on November 28; Kautz admitted only that there had been some unprofessional 28 conversations being held in the pharmacy but he denied making any “terrorist” comments. 1 (Id. ¶¶ 62–63.) Costco’s investigation into Plaintiff’s allegations found that there had been 2 no comments directed at Plaintiff because of her race or national origin but that Kautz had 3 failed to meet the expectations of his management position by participating in inappropriate 4 conversations in the workplace and for his failure to address the inappropriate conduct of 5 his subordinates.2 (Id. ¶¶ 63–64.) 6 On December 1, 2017, Smith issued Kautz an Employee Counseling Notice for 7 “failure to perform work as required.” (Id. ¶ 65.) Smith met with Kautz on December 5, 8 2017, to review Costco’s investigation findings and conduct expectations. (Id. ¶ 66.) On 9 December 9, 2017, Smith met with Plaintiff to discuss Costco’s investigation findings and 10 told Plaintiff that Costco had taken corrective action to prevent any future problems with 11 Kautz’s conduct. (Id. ¶ 67.) 12 After Costco concluded its investigation, Plaintiff alleges Kautz “significantly 13 reduced the amount of shifts he was offering for [her].” (Id. ¶ 72.) Specifically, Kautz 14 reassigned a shift on Thursday, December 28, 2017, for which Kautz had already 15 confirmed Plaintiff’s availability and instead gave the shift to a “floating” LPT—an LPT 16 who, unlike Plaintiff, was not assigned to the Mesa Costco location. (CSOF ¶ 92.) 17 Furthermore, Kautz thereafter stopped scheduling Plaintiff for the Monday shifts that he 18 had regularly scheduled her for since January 2017. (Id. ¶ 94.) 19 In February 2018, because she had lost shifts at Costco since December 2017, 20 Plaintiff began working full-time with Medmetrics, the compounding pharmacy where she 21 had previously worked part-time, after Medmetrics promoted her to Pharmacy Manager. 22 (Id. ¶¶ 74, 78.) Plaintiff informed Kautz sometime in February 2018 that she would no 23 longer be available for weekday shifts at the Mesa Pharmacy. (Doc. 30-1 at 10; SOF ¶ 75.) 24 Occasionally, Plaintiff worked at Medmetrics on Saturdays from 9 a.m. to 1 p.m., but she 25 continued to work at Costco on Saturday afternoons. (CSOF ¶ 74.) 26 On March 5, 2018, Plaintiff submitted a charge with the EEOC and the Arizona 27 2 Plaintiff disputes whether the investigation’s findings were made by Smith or Kyle 28 Hoffman, the Personnel Manager at the Mesa Costco who was not part of the investigation. (CSOF ¶¶ 63–64.) 1 Civil Rights Division alleging discrimination and retaliation. (Doc. 30-2 at 61.) 2 On October 20, 2023, the EEOC issued a determination letter finding “reasonable 3 cause to believe [Costco] violated Title VII when it subjected Charging Party to harassment 4 because of her national origin and retaliated against her for complaining about national 5 origin-based harassment by denying her the opportunity to work additional shifts.” (Doc. 6 1-1 at 4.) The EEOC thereafter issued Plaintiff a notice of right to sue on November 27, 7 2023. (Id. at 7.) 8 II. LEGAL STANDARD 9 Summary judgment is granted if the pleadings and supporting documents, viewed 10 in the light most favorable to the nonmoving party, “show that there is no genuine issue as 11 to any material fact and that the moving party is entitled to judgment as a matter of law.” 12 Fed. R. Civ. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The 13 moving party bears the initial responsibility of presenting the basis for its motion and 14 identifying those portions of the record that it believes demonstrates the absence of a 15 genuine issue of material fact. Celotex, 477 U.S. at 323. The nonmoving party must then 16 point to specific facts establishing there is a genuine issue of material fact for trial. Id. 17 At summary judgment, the Court considers only admissible evidence. See Fed. R. 18 Civ. P. 56(c)(1)(B). When considering a motion for summary judgment, a court should not 19 weigh the evidence or assess credibility; instead, “the evidence of the non-movant is to be 20 believed, and all justifiable inferences are to be drawn in his favor.” Anderson v. Liberty 21 Lobby, Inc., 477 U.S. 242, 255 (1986). A genuine issue of material fact exists “if the 22 [admissible] evidence is such that a reasonable jury could return a verdict for the non- 23 moving party.” Id. at 248. In ruling on the motion for summary judgment, the Court will 24 construe the evidence in the light most favorable to the nonmoving party. Barlow v. 25 Ground, 943 F.2d 1132, 1135 (9th Cir. 1991). 26 III. ANALYSIS 27 Defendant moves for summary judgment on both of Plaintiff’s claims: Title VII race 28 and national origin discrimination and Title VII retaliation. Should the Court not dismiss 1 all of Plaintiff’s claims, Defendant alternatively moves for summary judgment on 2 Plaintiff’s claim for punitive damages. 3 A. Title VII Discrimination 4 Under Title VII of the Civil Rights Act of 1964, it is unlawful for an employer “to 5 fail or refuse to hire or to discharge any individual, or otherwise to discriminate against 6 any individual with respect to [her] compensation, terms, conditions, or privileges of 7 employment” on account of the employee’s race or national origin. 42 U.S.C. § 2000e- 8 2(a)(1). To survive summary judgment on a discrimination claim, a plaintiff must “create 9 a triable issue of fact regarding discriminatory intent.” Alozie v. Ariz. Bd. of Regents, 431 10 F. Supp. 3d 1100, 1111 (D. Ariz. 2020) (quoting Habib v. Matson Navigation Co., 694 F. 11 App’x 499, 500–01 (9th Cir. 2017)). To meet this burden, a plaintiff may produce “direct 12 or circumstantial evidence demonstrating that a discriminatory reason more likely than not 13 motivated” the adverse employment action; or alternatively, a plaintiff may rely on the 14 McDonnell Douglas burden-shifting framework to raise a rebuttable presumption of 15 discrimination.3 Pac. Shores Props., LLC v. City of Newport Beach, 730 F.3d 1142, 1158 16 (9th Cir. 2013). 17 It is undisputed Plaintiff belongs to a protected class. But Defendant argues 18 Plaintiff’s discrimination claim fails because she cannot show (1) an adverse employment 19 action nor (2) similarly situated individuals outside her protected class who were treated 20 more favorably. 21 1. Adverse Employment Action 22 First, Plaintiff’s alleged “significant” reduction in shifts constitutes an adverse

23 3 To establish a prima facie case under McDonnell Douglas, a plaintiff must show: (1) they belong to a protected class; (2) they were qualified for their position; (3) they were subject 24 to an adverse employment action; and (4) similarly situated individuals outside their protected class were treated more favorably. McDonnell Douglas Corp. v. Green, 411 U.S. 25 792, 802 (1973). “The burden of production, but not persuasion, then shifts to the employer to articulate some legitimate, nondiscriminatory reason for the challenged action.” Chuang 26 v. Univ. of Cal. Davis, Bd. of Trustees, 225 F.3d 1115, 1123–24 (9th Cir. 2000) (citing McDonnell Douglas, 411 U.S. at 802)). “If the employer does so, the plaintiff must show 27 that the articulated reason is pretextual ‘either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that 28 the employer’s proffered explanation is unworthy of credence.’” Id. at 1124 (quoting Tex. Dep’t of Cmty. Affs. v. Burdine, 450 U.S. 248, 256 (1981)). 1 employment action.4 Defendant concedes that Plaintiff’s shifts were decreased after she 2 complained to Kautz and Costco about Kautz’s discriminatory comments. However, 3 Defendant argues this decrease in shifts was “immaterial” because Plaintiff, as an LPT, 4 “was not guaranteed any shifts at Costco, much less a full- or part-time position; that her 5 shifts depended on her own availability; and that throughout her employment, her 6 availability was limited by her full-time employment at other pharmacies.” (Doc. 36 at 2.) 7 Thus, Defendant argues, “even if an immaterial change in hours could be an adverse action, 8 Plaintiff’s shifts were a function of her unavailability, not discrimination.” (Id.) 9 Defendant does not explain why the Court should accept as true the allegation that 10 Plaintiff was “unavailable,” even prior to February 2018 when she went full-time at 11 Medmetrics. Moreover, Defendant mistakenly conflates Plaintiff’s prima facie burden with 12 the showing necessary to create a triable issue of pretext. Defendant’s proffered 13 nondiscriminatory reason to reduce Plaintiff’s shifts—her alleged scheduling conflicts with 14 other jobs—does not overcome Plaintiff’s position that Defendant “significantly” reduced 15 her shifts after she objected to the discriminatory “terrorist” comments. It is also not 16 controlling that LPTs are generally not guaranteed any number of shifts. For nearly a year, 17 Plaintiff had been regularly scheduled for the Monday shift. When Kautz abruptly stopped 18 scheduling Plaintiff on Mondays, Plaintiff contends her shifts were reduced. This is

19 4 In her Complaint, Plaintiff alleges two adverse actions under her discrimination claim: the reduction in shifts and a hostile work environment. (Doc. 1 ¶¶ 57–58.) In its Motion for 20 Summary Judgment, Defendant argues Plaintiff’s discrimination claim fails under both theories. (Doc. 29 at 9–14.) But in her Response, Plaintiff only addresses the hostile work 21 environment theory. (Doc. 34 at 4–7.) Thus, in its Reply, Defendant argues Plaintiff waived the issue entirely and Defendant “is entitled to summary judgment on Plaintiff’s disparate 22 treatment claim.” (Doc. 36 at 3–4.) Because Plaintiff’s discrimination claim encompasses both adverse actions, dismissal is inappropriate as her reduction in shifts is sufficient for 23 the discrimination claim to survive. See Hodge v. McDonough, No. 21-16392, 2023 WL 6532642, at *2 (9th Cir. Oct. 6, 2023) (“[A] Title VII plaintiff can allege multiple adverse 24 employment actions and need only prove one to prevail.” (citing Ray v. Henderson, 217 F.3d 1234, 1243–44 (9th Cir. 2000))); see also Rother v. NYS Dep’t of Corr. & Cmty. 25 Supervision, 970 F. Supp. 2d 78, 92 (N.D.N.Y. 2013) (noting “a hostile work environment constitutes an adverse employment action” for a discrimination claim (citing Alfano v. 26 Costello, 294 F.3d 365, 373 (2d Cir. 2022))); Murphy v. Bd. of Educ. of Rochester City Sch. Dist., 273 F. Supp. 2d 292, 312 (W.D.N.Y. 2003) (“Hostile work environment claims 27 are merely a subset of disparate treatment claims.” (citing Fitzgerald v. Henderson, 251 F.3d 345, 356 (2d Cir.2001)));; Doe By and Through Doe v. Petaluma City Sch. Dist., 949 28 F. Supp. 1415, 1423–25 (N.D. Cal. 1996) (discussing hostile work environment as a “species of ‘disparate treatment’ or ‘intentional discrimination’”). 1 sufficient to establish Plaintiff suffered an adverse employment action. 2 2. Similarly Situated Comparators 3 Second, Plaintiff need not show evidence of similarly situated comparators to 4 survive summary judgment. This requirement is only for claims that rely on the McDonnell 5 Douglas burden-shifting framework to raise a rebuttable inference of discriminatory 6 motive. As the Ninth Circuit has explained:

7 Our cases clearly establish that plaintiffs who allege disparate treatment under statutory anti-discrimination laws need not demonstrate the existence 8 of a similarly situated entity who or which was treated better than the plaintiffs in order to prevail. Proving the existence of a similarly situated 9 entity is only one way to survive summary judgment on a disparate treatment claim. A plaintiff does not, however, have to rely on the McDonnell Douglas 10 approach to create a triable issue of fact regarding discriminatory intent in a disparate treatment case. Instead, he may “simply produce direct or 11 circumstantial evidence demonstrating that a discriminatory reason more likely than not motivated” the defendant and that the defendant’s actions 12 adversely affected the plaintiff in some way.

13 Pac. Shores Props., 730 F.3d at 1158 (citation modified). 14 Here, Plaintiff does not need to rely on the McDonnell Douglas framework, as she 15 offers direct or circumstantial evidence—including Kautz repeatedly calling her a 16 “terrorist,” with the final comment shortly before her shift reduction, as well as her EEOC 17 determination letter—that a discriminatory reason more likely than not motivated the 18 adverse employment action. Thus, Plaintiff’s failure to show similarly situated comparators 19 is irrelevant. 20 B. Title VII Retaliation 21 The McDonnell Douglas burden-shifting framework applies to Title VII retaliation 22 claims. Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018, 1035 (9th Cir. 2006) (citing 23 Yartzoff v. Thomas, 809 F.2d 1371, 1376 (9th Cir. 1987)). “To establish a prima facie case 24 of retaliation, a plaintiff must demonstrate: (1) a protected activity; (2) an adverse 25 employment action; and (3) a causal link between the protected activity and the adverse 26 employment action.” Id. at 1034–35 (citing Steiner v. Showboat Operating Co., 25 F.3d 27 1459, 1464 (9th Cir.1994)). If the employer proffers a legitimate, nonretaliatory reason for 28 its action, the plaintiff must then show the articulated reason is pretextual because it is 1 unworthy of credence or because a retaliatory reason more likely than not motivated the 2 action. Yartzoff, 809 F.2d at 1377. 3 It is undisputed Plaintiff engaged in protected activity when she filed her November 4 2017 HR complaint. Defendant argues Plaintiff’s retaliation claim fails because she did not 5 suffer an adverse employment action and, even if she had suffered an adverse action, cannot 6 show causation. 7 1. Adverse Employment Action 8 First, Plaintiff has demonstrated she suffered an adverse employment action when 9 her shifts were cut. Defendant argues this was not “a materially adverse change to the terms 10 and conditions of her employment,” (Doc. 29 at 13), but Defendant errs by using the 11 narrower definition for adverse actions used in the discrimination context. The definition 12 of an adverse action in retaliation claims is broader than for discrimination claims, 13 encompassing any action that is “reasonably likely to deter employees from engaging in 14 protected activity.” Ray v. Henderson, 217 F.3d 1234, 1243 (9th Cir. 2000); see Burlington 15 N. & Santa Fe Rwy. Co. v. White, 548 U.S. 53, 60–63 (2006); Campbell v. Haw. Dep’t of 16 Educ., 892 F.3d 1005, 1021 (9th Cir. 2018) (“Title VII retaliation claims may be brought 17 against a much broader range of employer conduct than substantive claims of 18 discrimination.”). 19 Defendant does not dispute Plaintiff suffered a decrease of two to four shifts per 20 month, instead arguing this was not adverse because Plaintiff’s position was not guaranteed 21 a minimum number of hours or shifts per week and Plaintiff worked even fewer hours after 22 transferring to the Tucson Costco pharmacy in 2019 without seeking more shifts. Neither 23 contention is controlling, as the inquiry does not concern the deterrent effect on this 24 particular Plaintiff who already engaged in protected activity. See, e.g., Manning v. Bolden, 25 102 F. App’x 904, 905 (6th Cir. 2004) (“The standard for ‘adverse action’ is an objective 26 one and it is irrelevant whether a particular plaintiff was deterred from engaging in 27 protected conduct because he suffered an adverse action.”); Kardasz v. Spranger, No. 17- 28 CV-10937, 2019 WL 1989021, at *8 (E.D. Mich. May 6, 2019) (“The question is not 1 whether Plaintiff was deterred from engaging in the protected activity as a result of the 2 adverse action. Rather, the question is whether a future person would be deterred from 3 engaging in the same protected activity as a result of the adverse action.”) Instead, the 4 Court must consider whether Plaintiff’s shift reduction after her complaint is the sort of 5 action that might reasonably deter any employee from filing complaints, lest they suffer a 6 similar shift reduction. Here, the Court finds it is reasonably likely a loss of two to four 7 shifts per month would deter employees from engaging in protected activity. 8 2. Causation 9 Second, Plaintiff has met her burden to show causation.5 Without direct evidence, a 10 plaintiff may still prove causation with “circumstantial evidence such as the employer’s 11 knowledge of the protected activities and the proximity in time between the protected 12 activity and the adverse action.” Dawson v. Entek Int’l, 630 F.3d 928, 936 (9th Cir. 2011). 13 Here, Plaintiff has proffered evidence of causation based on Kautz’s knowledge of her 14 protected activity and the proximity in time: Kautz received a counseling notice informing 15 him of Plaintiff’s complaint on December 11, 2017, and Kautz thereafter reassigned 16 Plaintiff’s shift for December 28, 2017, for which she had already confirmed her 17 availability. 18 Furthermore, as with her discrimination claim, Plaintiff’s EEOC determination 19 letter found reasonable cause to believe Defendant “retaliated against her for complaining 20 about national origin-based harassment by denying her the opportunity to work additional 21 shifts.” (Doc. 1-1 at 4.) The EEOC’s finding, while not a “free pass through summary 22 judgment,” is “highly probative” evidence supporting Plaintiff’s retaliation claim. 23 Mondero v. Salt River Project, 400 F.3d 1207, 1215 (9th Cir. 2005). Taken together, 24 Plaintiff has sufficiently established a triable issue of fact regarding a causal link between 25 her protected activity and her reduction in shifts. 26 5 Again, Defendant argues Plaintiff fails to show causation because “the evidence clearly 27 shows that the ‘but-for’ cause for the decrease in Plaintiff’s shifts was her own availability based on her other work commitments.” (Doc. 36 at 9.) However, given Plaintiff’s evidence 28 of retaliatory motive, Defendant’s argument is more conceivably relevant to whether Plaintiff can show this legitimate reason is pretextual. 1 C. Pretext 2 Because Plaintiff’s discrimination and retaliation claims are interrelated, the Court 3 will consider whether Plaintiff has established a triable issue of pretext as to both claims 4 simultaneously.6 5 Defendant asserts “Plaintiff has no evidence, much less specific and substantial 6 evidence, that Kautz did not offer her more shifts” for discriminatory or retaliatory reasons 7 “because the sole reason, as Kautz consistently explained, was her own scheduling 8 conflicts.” (Doc. 29 at 10.) Specifically, Defendant contends “the only reason Costco did 9 not offer Plaintiff additional work hours was because starting in February 2018, Plaintiff 10 could not work more than one or two days per week due to her full-time employment at 11 other pharmacies.” (Id.) 12 Because Defendant has articulated a legitimate, nondiscriminatory reason for the 13 adverse action, Plaintiff “must show that the articulated reason is pretextual ‘either directly 14 by persuading the court that a discriminatory [or retaliatory] reason more likely motivated 15 the employer or indirectly by showing that the employer’s proffered explanation is 16 unworthy of credence.’” Chuang v. Univ. of Cal. Davis, Bd. of Trustees, 225 F.3d 1115, 17 1124 (9th Cir. 2000) (quoting Tex. Dep’t of Cmty. Affs. v. Burdine, 450 U.S. 248, 256 18 (1981)). 19 Under Title VII, “a plaintiff may not defeat a defendant’s motion for summary 20 judgment merely by denying the credibility of the defendant’s proffered reason for the 21 challenged employment action” or by “relying solely on the plaintiff’s subjective belief 22 that the challenged employment action was unnecessary or unwarranted.” Cornwell, 439 23 F.3d at 1028 n.6. “A plaintiff may meet the burden to show pretext using either direct or 24 circumstantial evidence.” Coghlan v. Am. Seafoods Co. LLC, 413 F.3d at 1090, 1094–95 25 (9th Cir. 2005).

26 6 Plaintiff’s discrimination claim does not rely on the McDonnell Douglas burden-shifting framework, so in making her prima facie case, Plaintiff has already satisfied her burden to 27 refute Defendant’s proffered legitimate motive. See McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1123 (9th Cir. 2004) (noting that a plaintiff not relying on McDonnell Douglas 28 nevertheless must produce some evidence of discriminatory or retaliatory intent that counters a defendant’s proffered explanation). 1 “Direct evidence is evidence ‘which, if believed, proves the fact [of discriminatory 2 or retaliatory purpose] without inference or presumption.’” Id. at 1095 (quoting Godwin v. 3 Hunt Wesson, Inc., 150 F.3d 1217, 1221 (9th Cir.1998)). “Direct evidence typically 4 consists of clearly sexist, racist, or similarly discriminatory statements or actions by the 5 employer.” Id.; see, e.g., Godwin, 150 F.3d at 1221 (supervisor stated he “did not want to 6 deal with [a] female”); Cordova v. State Farm Ins., 124 F.3d 1145, 1149 (9th Cir.1997) 7 (deeming “direct” evidence that the employer had referred to an employee other than the 8 plaintiff as a “dumb Mexican”). “Because direct evidence is so probative, the plaintiff need 9 offer ‘very little’ direct evidence to raise a genuine issue of material fact.” Coghlan, 413 10 F.3d at 1095 (quoting Godwin, 150 F.3d at 1221). When relying on indirect, circumstantial 11 evidence to show pretext, “that evidence must be specific and substantial to defeat the 12 employer’s motion for summary judgment.” E.E.O.C. v. Boeing Co., 577 F.3d 1044, 1049 13 (9th Cir. 2009) (quoting Coghlan, 413 F.3d at 1095). This “specific and substantial” 14 standard, however, “is tempered by [the Ninth Circuit’s] observation that a plaintiff’s 15 burden to raise a triable issue of pretext is hardly an onerous one.” France v. Johnson, 795 16 F.3d 1170, 1175 (9th Cir. 2015). 17 Here, Plaintiff has met her burden to show pretext by offering sufficient direct 18 evidence and specific and substantial circumstantial evidence by which a reasonable jury 19 could find Defendant was motivated by discriminatory or retaliatory reasons. Plaintiff’s 20 EEOC determination letter is itself “highly probative” evidence that Defendant 21 discriminated and retaliated against Plaintiff. See Mondero, 400 F.3d at 1215. Kautz’s 22 alleged “terrorist” comments toward Plaintiff serve as direct evidence of discriminatory 23 animus. See Coghlan, 413 F.3d at 1095. Additionally, Plaintiff has specific and substantial 24 circumstantial evidence that Kautz acted with retaliatory motive given the short proximity 25 in time between when Kautz received notice of Plaintiff’s complaint and when he began 26 reducing her shifts. See Dawson, 630 F.3d at 936. 27 Moreover, Plaintiff’s evidence also indirectly shows pretext by casting doubt on 28 Defendant’s proffered explanation as unworthy of credence. Defendant argues Kautz 1 stopped assigning Plaintiff the Monday shifts because of her own limited availability. But 2 Kautz allegedly reassigned Plaintiff’s shift for December 28, 2017, after Plaintiff had 3 already confirmed her availability and at least one month before Plaintiff informed Kautz 4 of her new full-time position with Medmetrics. What is more, this shift was reassigned to 5 a “floating” LPT, despite Defendant’s practice to give priority to a non-floating LPT like 6 Plaintiff who was assigned to that particular store. See Earl v. Nielsen Media Rsch., Inc., 7 658 F.3d 1108, 1117 (9th Cir. 2011) (“A plaintiff may also raise a triable issue of pretext 8 through evidence that an employer’s deviation from established policy or practice worked 9 to her disadvantage.”). 10 Defendant argues Plaintiff cannot overcome the same-actor inference to establish 11 pretext. The Court disagrees. “[W]here the same actor is responsible for both the hiring 12 and the [adverse employment action], and both actions occur within a short period of time, 13 a strong inference arises that there was no discriminatory action.” Coghlan, 413 F.3d at 14 1096 (quoting Bradley v. Harcourt, Brace & Co., 104 F.3d 267, 270–71 (9th Cir. 1996)). 15 Defendant argues this inference applies because Kautz was the individual who decided to 16 hire Plaintiff roughly a year before he allegedly engaged in an adverse employment action. 17 (Doc. 29 at 11.) Assuming the same-actor inference applies, here a jury could find this 18 inference is overcome because Plaintiff has presented both direct and circumstantial 19 evidence of the same actor’s discriminatory or retaliatory motives nearly a year after 20 Plaintiff’s hiring, which is sufficient to raise a triable issue of pretext on her discrimination 21 and retaliation claims. See, e.g., Villareal v. Chubb & Son, Inc., No. SACV 11-0674 DOC, 22 2012 WL 3151254, at *8 (C.D. Cal. July 31, 2012) (“In Coghlan, the plaintiff presented a 23 case of discrimination that was entirely circumstantial and did not at all serve to refute the 24 legitimate nondiscriminatory reason proffered by defendants. Here, . . . Plaintiff provides 25 both direct and circumstantial evidence of discrimination such that a rational factfinder 26 could determine that the same-actor inference was overcome.” (citation omitted)). 27 D. Punitive Damages 28 Defendant alternatively moves for summary judgment on Plaintiff’s claim for 1 punitive damages. Under Title VII, punitive damages may be awarded “if the complaining 2 party demonstrates the respondent engaged in a discriminatory practice . . . with malice or 3 with reckless indifference to the federally protected rights of an aggrieved individual.” 42 4 U.S.C. § 1981a(b)(1); see Kolstad v. Am. Dental Ass’n, 527 U.S. 526, 536 (1999) (“[I]n 5 the context of § 1981a, an employer must at least discriminate in the face of a perceived 6 risk that its actions will violate federal law to be liable in punitive damages.”); Ngo v. Reno 7 Hilton Resort Corp., 140 F.3d 1299, 1304 (9th Cir. 1998) (“Punitive damages may not be 8 awarded, however, where a defendant’s discriminatory conduct is merely ‘negligent in 9 respect to the existence of a federally protected right.’” (quoting Hernandez-Tirado v. 10 Artau, 874 F.2d 866, 870 (1st Cir. 1989))). However, “in the punitive damages context, an 11 employer may not be vicariously liable for the discriminatory employment decisions of 12 managerial agents where these decisions are contrary to the employer’s ‘good-faith efforts 13 to comply with Title VII.’” Kolstad, 527 U.S. at 545 (quoting Kolstad v. Am. Dental Ass’n, 14 139 F.3d 958, 974 (D.C. Cir. 1998) (Tatel, J., dissenting)). To prevail on a good faith 15 affirmative defense, “an employer must show not only that it has adopted an anti- 16 discrimination policy, but that it has implemented that policy in good faith.” Passantino v. 17 Johnson Consumer Prods., Inc., 212 F.3d 493, 517 (9th Cir. 2000). 18 Defendant argues the evidence shows “any alleged harassment or discrimination by 19 Kautz was contrary to Costco’s good faith efforts to comply with Title VII.” (Doc. 29 at 20 16.) Specifically, Defendant asserts “Costco promptly and thoroughly investigated the 21 allegations in Plaintiff’s November 2017 complaint, issued Kautz a Counseling Notice, and 22 ordered Kautz to repeat the Standard of Conduct for Managers training.” (Id.) 23 In response, Plaintiff disputes whether Costco in fact implemented its anti- 24 harassment policy in good faith. In particular, Plaintiff notes the clear language of Costco’s 25 anti-harassment policy forbids the use of “epithets, slurs, [and] negative stereotyping,” 26 (Doc. 30-1 at 17), conflicts with Costco’s “astounding conclusion” that “the allegations 27 against Mr. Kautz did not rise to the level of a policy violation.” (Doc. 34 at 7.) Thus, 28 Costco’s response to Plaintiff’s internal complaint was simply to “counsel” Kautz for being 1 || “unprofessional,” which involved Kautz being “retrained” on and “rereview[ing]” Costco’s 2|| policies. Ud.) Moreover, despite being allegedly referred to as a “terrorist,” Costco found 3 || there had been no comments directed at Plaintiff because of her race or national origin. 4 It is undisputed that Costco promptly investigated Plaintiff's internal complaint, 5 || (CSOF 4 61), and that this was the first time Plaintiff had raised any concerns regarding 6|| Kautz’s comments,’ (id. § 60). However, based on the admissible and undisputed evidence, 7 || areasonable jury could still find Costco’s compliance efforts were not in good faith. Costco 8 || undoubtedly adopted an anti-harassment policy, but there is a genuine dispute as to whether □□ its implementation of the policy here—by failing to find Kautz’s conduct constituted a || policy violation and disciplining him accordingly—was in good faith. 11 IV. CONCLUSION 12 Based on the foregoing, Plaintiff has created a triable issue of fact regarding her 13 | claims for discrimination, retaliation, and punitive damages. Accordingly, 14 IT IS ORDERED Defendant Costco Wholesale Corporation’s Motion for |} Summary Judgment (Doc. 29) is DENIED. 16 Dated this 19th day of March, 2026. 17 fo . 18 —

20 Senior United States District Judge 21 22 23 24 25 26 27\| 7 Plaintiff objects to this fact as immaterial. Although it may not be material to □□□□□□□□□□□ 28|| prior notice makes it more likely that Costeo's attempts to address Kaulz's □□□□□□□□□□ were in good faith.

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