Schaffer v. GTE, Inc.

40 F. App'x 552

Opinions

MEMORANDUM

**

Mary Beth Schaffer appeals the summary judgment in favor of her former employer, Verizon Data,¹ and supervisors Roger Schueller, and Chris Poehlman. For the reasons that follow, we affirm. Subject matter jurisdiction.

At the time of removal to federal court, Schaffer’s complaint had alleged a violation of the Consolidated Omnibus Budget Reconciliation Act (“COBRA”), codified at 29 U.S.C. § 1161 et seq. Because Schaffer’s complaint presented a federal question on its face, the removal of both her federal and state law claims was proper. See 28 U.S.C. §§ 1331, 1441(a) & (c).

Schaffer’s subsequent amendment of her complaint to eliminate the federal question did not deprive the district court of jurisdiction over Schaffer’s state law claims. See Sparta Surgical Corp. v. Nat’l Ass’n of Secs. Dealers, Inc., 159 F.3d 1209, 1213 (9th Cir.1998) (providing that “a plaintiff may not compel remand by amending a complaint to eliminate the federal question upon which removal was based”). Accordingly, the district court had subject matter jurisdiction.

Summary judgment in favor of the defendants.²

A. Schaffer’s second cause of action

Schaffer’s second cause of action alleges gender discrimination on the part of Verizon and Schueller in violation of the Fair Employment and Housing Act (“FEHA”) (Cal. Gov.Code § 12900 et seq.). Schaffer alleges that her employer discriminated against her by denying her certain training opportunities; berating her for failing to follow work-related procedure; providing her with a less desirable cubicle than her male counterparts; denying her Internet access; denying her access to a company vehicle; and paying her less than her male counterparts.

Schaffer’s complaints about her cubicle, lack of Internet access, lack of access to a company vehicle, and denial of training fail because the conduct complained of does not constitute adverse employment action. See Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1220 (9th Cir.1998) (observing that in order to make prima facie claim for gender discrimination under FEHA, plaintiff must show, inter alia, that employer subjected plaintiff to an adverse employment action); Soldinger v. Northwest Airlines Inc., 51 Cal.App.4th 345, 58 Cal.Rptr.2d 747, 760 (Cal.Ct.App.1996). Schaffer neither alleges facts nor adduces evidence showing how this conduct had any material, let alone a substantial and detrimental, effect upon her employment. See Thomas v. Dep’t of Corrections, 77 Cal.App.4th 507, 91 Cal.Rptr.2d 770, 773 (Cal.Ct.App.2000) (holding that, in order to state cause of action for discrimination under FEHA, plaintiff must allege conduct amounting to “adverse employment action” by alleging facts that evidence “both a substantial and detrimental effect” upon plaintiffs employment).³ Similarly, work-related reprimands directed to employees by management do not amount to adverse employment action. See Khachikian v. Dewy Ins. of Tech., No. 01CV05935, 2002 WL 84149, at *8 (C.D.Cal. Jan.14, 2002)

Schaffer has made out a prima facie case, however, with respect to her pay discrimination claim. See Godwin, 150 F.3d at 1220. Schaffer alleged that two male employees, her husband, and a Mr. Weiss, both of whom were hired to perform the same job as Schaffer, were offered salaries of $50,000 per year whereas Schaffer was offered only $45,000 per year.

If the plaintiff makes a prima facie showing, then the burden shifts to the defendant to articulate a nondiscriminatory reason for the allegedly discriminatory conduct. Godwin, 150 F.3d at 1220. Here, Verizon met this burden by establishing that it sets a “salary range” for each open position. In deciding where in the salary range to place a new employee, Verizon takes into account the new hire’s background and experience as well as the prior salary. Verizon established that, at the time of her hire, appellant was earning $30,000 per year. By contrast, her husband had been earning $38,000 per year, and Mr. Weiss was earning $60,000 per year. With respect to background and experience, Verizon also proved that appellant had less relevant technical experience than the two males. Most significantly, Schaffer lacked experience with “Banyan Vines” — a sophisticated software system used by Verizon to network computers.

The burden then fell on Schaffer to show that Verizon’s reasons were merely a pretext for discrimination. Because Schaf-fer’s evidence of pretext is entirely circumstantial, Schaffer must produce both “substantial” and “specific” evidence of pretext. See Godwin, 150 F.3d at 1221-22 (holding that plaintiff may show pretext by either (1) offering “very little” direct evidence of discriminatory motive, or (2) offering “specific” and “substantial” circumstantial evidence tending to show that the employer’s proffered motives were not the employer’s actual motives).

Schaffer relies almost exclusively on her complaint and on her own declaration (which essentially amounts to a restatement of her complaint) as evidence of pretext. This type of opinion evidence is not sufficient to defeat the defendants’ motion for summary judgment. See McGlinchy v. Shell Chem. Co., 845 F.2d 802, 809 (9th Cir.1988) (“The declarations appellants submitted when seeking reconsideration of summary judgment merely restated the pleadings ... Federal Rule 56(e) does not allow a party to oppose summary judgment on the pleadings themselves.”)

Schaffer does, however, set forth some specific evidence in support of her pay discrimination claim. Schaffer points to, inter alia, a Verizon job description and the declaration of her husband, both of which she claims demonstrate that Banyan experience was not really a requirement of the job for which she was hired.

Nonetheless Schaffer’s proffered evidence is insufficient to show pretext on the part of Verizon. First, Schaffer’s characterization of the evidence is misleading. For example, although Schaffer correctly observes that the Verizon job description does not mention Banyan experience as a job requirement, she fails to observe that the job description explicitly states: “This description provides a brief outline of the position responsibilities and is not intended to be all inclusive of all aspects of the position.” Even if we were to find that Schaffer’s evidence supported her position, however, we would nevertheless reject her challenge because the circumstantial evidence adduced by Schaffer, though specific, is not substantial enough to demonstrate pretext. See Godwin, 150 F.3d at 1221-22. Accordingly, we affirm the summary judgment in favor of Verizon on Schaffer’s gender discrimination claim.

Summary judgment in favor of defendant Sehueller on the gender discrimination claim was also free from error because, under Reno v. Baird, 18 Cal.4th 640, 76 Cal.Rptr.2d 499, 957 P.2d 1333, 1347 (Cal.1998), supervisors may not be sued individually under FEHA for alleged discriminatory acts.

B. Schaffer’s third cause of action

Schaffer’s third cause of action alleges pregnancy discrimination by Verizon. Schaffer contends that she was not provided “adequate accomodation for her pregnancy in that Defendants continued to expect Plaintiff, as a condition of employment, to move 60 lb. bins ... and Defendants threatened] Plaintiff with adverse employment impacts if she continued in not moving the heavy bins.”

Schaffer fails to point to any evidence tending to show that her employer discriminated against her, let alone that her employer discriminated against her on the basis of her pregnancy. To the contrary, the evidence strongly suggests that Schaffer’s employer made concessions to Schaffer on account of her pregnancy. For example, Schaffer testified in her deposition that when she told her supervisor that she was pregnant and did not want to lift computer servers, the supervisor agreed that Schaffer did not need to do any lifting. The district court did not err in granting Verizon summary judgment.

C. Schaffer’s fifth and sixth causes of action

Schaffer’s fifth and sixth causes of action allege wrongful constructive termination in violation of public policy and tortious wrongful termination in violation of public policy. These claims fail for two reasons. First, Schaffer fails to point to any evidence tending to show that the defendants violated public policy. See Lagatree v. Luce, Forward, Hamilton & Scripps LLP, 74 Cal.App.4th 1105, 88 Cal. Rptr.2d 664, 669 (Cal.Ct.App.1999). Second, the working conditions alleged by Schaffer were not so extreme as to have compelled a reasonable employee to resign. See Cloud v. Casey, 76 Cal.App.4th 895, 90 Cal.Rptr.2d 757, 761 (Cal.Ct.App. 1999). The summary judgment in favor of defendants on these claims is affirmed.

D. Schaffer’s eighth, ninth and tenth causes of action

Schaffer’s eighth, ninth, and tenth causes of action allege negligent infliction of emotional distress, intentional infliction of emotional distress, and negligence. The infliction of emotional distress claims fail because, under California law, claims for negligent and intentional infliction of emotional distress made within the context of the employment relationship are within the exclusive remedy provisions of the California Workers’ Compensation Act.⁴ See Cole v. Fair Oaks Fire Protection Dish, 43 Cal.3d 148, 233 Cal.Rptr. 308, 729 P.2d 743, 750 (Cal.1987) (“[W]hen the misconduct attributed to the employer is actions which are a normal part of the employment relationship, such as demotions, pro-motions, criticism of work practices, and frictions in negotiations as to grievances, an employee suffering emotional distress causing disability may not avoid the exclusive remedy provisions of the Labor Code by characterizing the employer’s decisions as manifestly unfair, outrageous, harassment, or intended to cause emotional disturbance resulting in disability.”); Haynal v. Target Stores, No. 96-1599-K(RBB), 1996 WL 806706, at *6 (S.D.Cal. Dec.9, 1996).

Similarly, Schaffer’s negligence claim fails because claims for negligence are within the exclusive remedy provisions of the California Workers’ Compensation Act. See Coit Drapery Cleaners v. Sequoia Ins. Co., 14 Cal.App.4th 1595, 18 Cal.Rptr.2d 692, 699 (Cal.Ct.App.1993); see also Hay-nal, 1996 WL 806706, at *6 (holding that employee’s negligence claims brought against employer, arising from conduct occurring in course of employment, were barred by workers’ compensation laws).

Additionally, a necessary element of a claim for intentional infliction of emotional distress is outrageous conduct by the defendant. Schaffer fails to allege outrageous conduct by the defendants. See Janken v. GM Hughes Elecs., 46 Cal. App.4th 55, 53 Cal.Rptr.2d 741, 756 (Cal. Ct.App.1996); Ankeny v. Lockheed Missiles & Space Co., 88 Cal.App.3d 531, 151 Cal.Rptr. 828, 831 (Cal.Ct.App.1979). We affirm the summary judgment in favor of defendants on these claims.

(5) Schaffer’s eleventh cause of action

Schaffer’s eleventh cause of action charges Verizon with failure to provide a safe work environment in violation of California Labor Code section 6400-03. This claim fails because, under California law, a cause of action for failure to provide a safe work environment falls within the exclusivity provisions of the California Workers’ Compensation Act. See Gunnell v. Metrocolor Labs., Inc., 92 Cal.App.4th 710, 112 Cal.Rptr.2d 195, 197 (Cal.Ct.App.2001) (observing that California Workers’ Compensation Act provides the exclusive remedy for injuries caused by employer’s concealment of unsafe working conditions and violation of safety regulations).

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.

1 . At the time of Schaffer’s employment, "Verizon Data” was known as "GTE Data.” "GTE Data” changed its name to "Verizon Data” following the June 2000 merger of GTE with Bell Atlantic.

2 . Schaffer appeals the district court’s entry of summary judgment in favor of defendants with respect to her second, third, fifth, sixth, eighth, ninth, tenth and eleventh causes of action. In her opposition to the defendants' motion for summary judgment, Schaffer abandoned: (1) her first cause of action for violation of the Unruh Act; (2) her fourth cause of action for sexual harassment; and (3) her seventh cause of action for constructive termination. Accordingly, we do not address these three causes of action on appeal.

3 . According to the dissent, in Ray v. Henderson, 217 F.3d 1234 (9th Cir.2000), a Ninth Circuit case addressing what constitutes "adverse employment action” under Title VII (i.e., under federal law), this court "overruled” Thomas v. Department of Corrections, 77 Cal.App.4th 507, 91 Cal.Rptr.2d 770 (Cal.Ct.App.2000), a California state appellate court decision addressing what constitutes "adverse employment action” under FEHA (i.e., under California law). Ray did not overrule Thomas, and Thomas remains good law in California. See, e.g., Akers v. County of San Diego, 95 Cal.App.4th 1441, 116 Cal.Rptr.2d 602, 612 (Cal.Ct.App.2002) (agreeing with Thomas court that "to he actionable, the [employer’s conduct] must result in a substantial adverse change in the terms and conditions of the plaintiff’s employment” and concluding that an employer's conduct "constitutes actionable retaliation only if it had a substantial and material adverse effect on the terms and conditions of the plaintiff's employment”).

Further, when interpreting a California statute like FEHA in the absence of a federal question, this court is bound by decisions of the California Supreme Court which interpret FEHA, not by decisions of federal courts which interpret Title VII. See Vestar Dev. II, LLC v. Gen. Dynamics Corp., 249 F.3d 958, 960 (9th Cir.2001) ("When interpreting state law, federal courts are bound by decisions of the state’s highest court.”) (quoting Lewis v. Tel. Employees Credit Union, 87 F.3d 1537, 1545 (9th Cir. 1996)); Strother v. S. Cal. Per-manente Med. Group, 79 F.3d 859, 865 (9th Cir. 1996) (same).

Where, as here, the California Supreme Court has not yet addressed the particular issue of statutory interpretation with which we are confronted, "a federal court must predict how the highest state court would decide the issue using intermediate appellate court decisions, decisions from other jurisdictions, statutes, treatises, and restatements as guidance.” Strother, 79 F.3d at 865. In making our "prediction,” however, not all of these various legal authorities carry the same weight. Specifically, "[i]n the absence of convincing evidence that the state supreme court would decide differently, a federal court is obligated to follow the decisions of the state’s intermediate courts." Easyriders Freedom F.I.G.H.T. v. Hannigan, 92 F.3d 1486, 1494 n. 4 (9th Cir.1996) (citation and quotations omitted) (emphasis added).

Here, there is no convincing evidence that, in interpreting FEHA, the California Supreme Court would construe the phrase "adverse employment action” differently from the way in which California's intermediate appellate courts have construed that phrase. Nor does the mere fact that California state courts have, of their own volition, looked to federal court decisions interpreting Title VII to assist them in interpreting FEHA, see, e.g., Reno v. Baird, 18 Cal.4th 640, 76 Cal.Rptr.2d 499, 957 P.2d 1333, 1337 (Cal. 1998), somehow provide us with the power to substitute our own interpretation of a federal statute for an intermediate state appellate court's interpretation of an analogous state statute. Accordingly, we follow our own precedent, and decline to accept the dissent’s1- invitation to rewrite California law in our own image.

4 . The dissent’s discussion of the law on this point is simply irrelevant. As discussed above, Schaffer’s claims for wrongful termination in violation of public policy are insufficient to withstand defendants’ motion for summaiy judgment. Accordingly, although a plaintiff with a tort cause of action for wrongful termination in violation of public policy can recover emotional distress damages as a component of compensatory damages, Schaffer is unable to do so because she lacks a meritorious wrongful termination claim.