Carolina v. JPMorgan Chase Bank NA ( 2021 )

Case 2:19-cv-05882-DWL Document 44 Filed 11/17/21 Page 1 of 37 1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Helena Carolina, No. CV-19-05882-PHX-DWL 10 Plaintiff, ORDER 11 v. 12 JPMorgan Chase Bank NA, et al., 13 Defendants. 14 15 In this action, Helena Carolina (“Plaintiff”) asserts a pair of related employment 16 discrimination claims against her former employer, JPMorgan Chase Bank, N.A. 17 (“JPMC”), and her former JPMC supervisor, Jason Tidd (together, “Defendants”). Now 18 pending before the Court is Defendants’ motion for summary judgment. (Doc. 33.) For 19 the following reasons, the motion is granted. 20 BACKGROUND 21 I. Factual History 22 The facts below are taken from the parties’ summary judgment submissions and 23 other documents in the record. The facts are uncontroverted unless otherwise noted.1 24 In June 2011, JPMC hired Plaintiff. (Doc. 33-1 at 58.) Plaintiff is “Asian (non- 25 white) by race; Indonesian by national origin” and “was the only Asian and the only 26 1 Plaintiff objects to all of Defendants’ summary judgment exhibits on authentication 27 and/or hearsay grounds. (Doc. 40 at 1-6.) As discussed below, these objections are 28 unavailing. Thus, throughout this fact section the Court will only note when Plaintiff contests the substance—not the admissibility—of an assertion. Case 2:19-cv-05882-DWL Document 44 Filed 11/17/21 Page 2 of 37 1 Indonesian on [her] team the entire time [she] worked” for JPMC. (Doc. 40-1 at 3 ¶¶ 2, 5.) 2 Between her hiring date and late 2017, Plaintiff was placed on a performance action 3 plan (Doc. 33-1 at 44) and subjected to three “documented discussions”2 in which she was 4 warned, respectively, of unsatisfactory performance, tardiness, and potential legal 5 violations (id. at 45-47). A 2015 scorecard explained that Plaintiff’s year was “very 6 successful” but also noted that Plaintiff “had several complaints registered with violations” 7 and that Plaintiff was experiencing “ongoing issues with FDCPA [Fair Debt Collections 8 Practices Act] violations” that “expose Chase to law suits because we’re violating state 9 laws when the violations happened.” (Id. at 48.) 10 On September 10, 2017, Plaintiff transferred to JPMC’s Home Lending Recovery 11 division and began working as a Recovery Senior Specialist III. (Id. at 15-16.) Plaintiff 12 described her work in the Home Lending Recovery division as “very challenging,” “more 13 challenging than other departments at [JPMC],” because JPMC is “ready to write off” 14 defaulted loans. (Id. at 16-17.) Plaintiff was tasked with trying “to recover the account 15 and then contact with the customer, negotiate how to handle the balance, what they want 16 to do with that account, and so before they write-off, we negotiate first, how far we allow 17 the customer to make the payment to make the account current again.” (Id. at 18.) 18 Shortly after her transition to the Home Lending Recovery division, Plaintiff was 19 generally viewed as a capable new member, even if supervisors saw room for 20 improvement. In Plaintiff’s annual performance review for 2017, which was issued by 21 Tidd on December 20, 2017, Tidd gave Plaintiff a “strong” rating in the Business Results 22 category, noting that Plaintiff “achieved goal 1st month on the floor” and “picks up on 23 things quickly and will continue to grow in this area,” but gave Plaintiff only an “on track” 24 rating in the Client/Customer Focus Category, noting that Plaintiff “needs to slow down 25 and try to help customer. Sometimes she gets going way to[o] quick and doesn’t hear what 26 27 2 According to evidence proffered by Plaintiff, “a documented discussion is a verbal 28 discussion” that is “treated as a lesser form of discipline than a written warning.” (Doc. 40-1 at 122, 131.) -2- Case 2:19-cv-05882-DWL Document 44 Filed 11/17/21 Page 3 of 37 1 they truly need.” (Doc. 40-1 at 9.) In the section entitled Manager Comments, Tidd 2 summarized: “Overall [Plaintiff] has been a good addition to the recovery area. She has 3 really picked up on things quickly and taken off. She does need to slow down and listen 4 to customers. I will continue to work with her and help her improve in this area.” (Id. at 5 10.) 6 Beginning in 2018, things took a turn for the worse. As discussed below, between 7 April 2018 and October 2018, Plaintiff was involved in five separate incidents in which 8 she was accused of performance-related errors and misconduct: 9 ▪ First, on April 18, 2018, Tidd issued Plaintiff a formal written warning for hanging 10 up on a caller who had requested an escalation to management. (Doc. 33-1 at 55 [Plaintiff 11 “was observed by our QA [quality assurance] Group . . . not following our QA procedures. 12 Third Party asked to speak to someone else and [Plaintiff] did not attempt to transfer to 13 escalations and proceeded to disconnect call.”].)3 The warning stated that Plaintiff’s 14 “unsatisfactory performance continues to expose the bank to risk and negatively impact 15 our customer experience.” (Id.) 16 ▪ Second, on August 13, 2018, Tidd had a conversation with Plaintiff in which he 17 corrected her for failing to verify the Social Security number of a customer, providing an 18 incorrect payment amount, and improperly escalating a caller to management. (Doc. 33-1 19 at 60.)4 20 21 3 It is undisputed that the written warning was given. Plaintiff contests Defendants’ characterization of the call and requests an adverse inference as to the call’s contents. 22 Those arguments are discussed infra. 23 4 Although the records provided by Defendants characterize this August 13, 2018 24 conversation as a “coaching” (Doc. 33-1 at 60), Plaintiff asserts in a declaration that “Tidd never characterized these interactions with me as ‘coaching’ and he did not wait around to 25 have me ask or tell my side of the story” (Doc. 40-1 at 5 ¶ 29). This dispute over how to 26 characterize the August 13, 2018 conversation is irrelevant—regardless of whether it qualified as a “coaching,” it is undisputed that Tidd had a conversation with Plaintiff about 27 mistakes she had committed during a phone call with a client, and Plaintiff does not argue 28 (or, at least, does not develop the argument in any coherent fashion) that her termination was improper because it could only be based on formal coachings. -3- Case 2:19-cv-05882-DWL Document 44 Filed 11/17/21 Page 4 of 37 1 ▪ Third, on September 19, 2018, Tidd had a conversation5 with Plaintiff in which 2 he corrected her for failing to “fill document for deal out properly.” (Id.) 3 ▪ Fourth, on October 26, 2018, Plaintiff took a call from a JPMC branch manager 4 named Krista Foley. As reflected in the transcript of the call (Doc. 33-1 at 66-72),6 Foley 5 began by explaining that she had been working with Juan Talavera, one of Plaintiff’s co- 6 workers, to assist a client. (Id. at 66.) Plaintiff responded that Talavera was unavailable 7 but she would try to help. (Id.) After some discussion, Plaintiff tried to transfer Foley to 8 Talavera’s phone number, but Talavera did not answer the phone. (Id. at 67-68.) Plaintiff 9 continued to help Foley, but after speaking to the client (who was in Foley’s office), 10 Plaintiff stated that “this account won’t go through,” asked for “the best way to reach” 11 Foley, promised to take various steps to pass along Foley’s inquiry to Talavera, and 12 announced that “I cannot take this payment” and “I need to leave . . . .” (Id. at 69.) Plaintiff 13 continued to help Foley before again saying that she “need[ed] to leave right away, right 14 now, I’m already behind three minutes.” (Id. at 70.) Foley responded, “Well I—I can’t— 15 I need you to do it, because I won’t have [the client] here . . . .” (Id.) Plaintiff replied, 16 “Because why?” before emphasizing for the third time that “I need to leave, I’m already 17 three minutes behind. I need to leave right away.” (Id.) Foley then agreed to speak to 18 Plaintiff’s supervisor, only for Plaintiff to respond “No, my supervisor’s already leaving 19 too, my teammate too are leaving 2:30. So the only way I’ll be transfer to Juan. Juan will 20 be late night today, give me a second.” (Id.) However, after Plaintiff discovered that 21 Talavera was unavailable, she said, “Juan’s leaving too. So we’re already out of the office 22 right now. So what are you going to do[?]” (Id.) Foley then asked, “So you don’t want— 23 you don’t want to help me anymore because you were supposed to leave three minutes 24 ago?” (Id.) After Plaintiff responded by explaining why the payment was not going 25 5 Once again, although the parties dispute whether this conversation qualified as a 26 “coaching” (compare Doc. 33-1 at 60 with Doc. 40-1 at 5 ¶ 29), Plaintiff doesn’t dispute 27 the substance or existence of the conversation. 6 28 It is undisputed that the call occurred and that the transcript of the call is accurate. Plaintiff only contests Defendants’ characterization of the call. -4- Case 2:19-cv-05882-DWL Document 44 Filed 11/17/21 Page 5 of 37 1 through and why it would not be a problem for Foley to work with Talavera at a later date, 2 Foley asked, “So, instead of changing it for me over the phone right now, because you need 3 to leave for the day, I need to email Juan, and he’s going to do it per my email, without 4 discussing it with the customer, is what you’re telling me.” (Id.) Plaintiff agreed, and 5 Foley responded “Okay. I’ll be reporting this to upper management. This is absolutely 6 ridiculous. We stay behind for customers on a regular basis, so the fact that you want to 7 walk out the door to go home, and my customer is sitting at my desk, is absolutely 8 ridiculous to me. This should be corrected immediately while the customer is sitting at my 9 desk.” (Id. at 70-71.) Following this exchange, Plaintiff ultimately helped Foley, but Foley 10 still submitted the following internal complaint to JPMC’s employee feedback team after 11 the call was complete: 12 I am incredibly embarrassed and upset with how I was treated by a 13 department that was more worried about getting out of work on time than with helping me resolve a customer issue while the customer was at my desk. 14 She told me she was out 3 minutes ago and asked me to email another guy. 15 I asked to talk to the supervisor and was told they were leaving too and that they were all leaving. I demanded she help me and that it was absolutely 16 crazy that she was trying to hang up on me when I had a client at my desk so 17 she did relent but this is unacceptable. 18 (Doc. 33-1 at 64.) 19 ▪ Fifth, on October 29, 2018, Tidd had a conversation7 with Plaintiff in which he 20 corrected her for making non-factual statements to a customer that could violate the law. 21 (Id. at 74.) 22 That same day, Tidd submitted a recommendation for termination (“RFT”) of 23 Plaintiff to JPMC’s human resources (“HR”) department. (Id.) In it, Tidd “recommended 24 that [Plaintiff] be terminated from employment because of Unsatisfactory Performance 25 specifically in the area of customer experience.” (Id.) He noted that, since the April 2018 26 27 7 As with the earlier conversations, although the parties dispute whether this 28 conversation qualified as a “coaching” (compare Doc. 33-1 at 74 with Doc. 40-1 at 5 ¶ 29), Plaintiff doesn’t dispute the substance or existence of the conversation. -5- Case 2:19-cv-05882-DWL Document 44 Filed 11/17/21 Page 6 of 37 1 written warning, Plaintiff had received an October 26, 2018 internal complaint and an 2 October 29, 2018 coaching on unrelated issues. (Id.) He concluded that Plaintiff’s 3 “unsatisfactory performance continues to expose the bank to risk and negatively impact the 4 customer experience. Therefore termination of employment is recommended.” (Id.) 5 Later that same day, Plaintiff was terminated. (Id. at 76.) 6 On October 31, 2018, Plaintiff called the HR department to appeal her termination. 7 (Id. at 88.) Plaintiff “stated she felt threatened by her manager.” (Id.) An HR 8 representative “asked what [Plaintiff] meant by that.” (Id.) Plaintiff “stated her manager 9 treated her differently. [Plaintiff] did not provide any examples and stated . . . she just feels 10 that way[] as others made the same errors.” (Id.) Because Plaintiff continued to dispute 11 her termination, the issue was “triag[ed] to HR Investigations.” (Id.) 12 Between November 15, 2018, and December 10, 2018, a JPMC HR investigator, 13 Carrie McKenzie, conducted interviews with Plaintiff (twice), Tidd (twice), Home Lending 14 Recovery division leader Rick Ivie, and Plaintiff’s co-worker Esther Baca. (Id. at 78-86.) 15 McKenzie also “listened to the [two] calls that [led] to [Plaintiff’s] termination.” (Id. 16 at 78.) 17 On November 30, 2018, Plaintiff called JPMC to “speak to our legal partners about 18 her case” because she was “expecting more timely resolution of her case” and also 19 mentioned that she planned to escalate to the Equal Employment Opportunity Commission 20 (“EEOC”), “however she wants to give [JPMC] the opportunity to resolve her concern.” 21 (Id. at 85.) JPMC “advised the case is actively being worked.” (Id. at 85.) 22 On December 10, 2018, McKenzie concluded that “[Plaintiff] was terminated for 23 [two] specific calls that occurred, one caused a formal complaint and one violated 24 regulations for collections. [Plaintiff] alleged that her manager treated her differently but 25 gave no specific examples of this. Additionally, the witness that [Plaintiff] provided [i.e., 26 Baca] corroborated that [Plaintiff] had performance issues, she was struggling to follow 27 policy and that [Plaintiff] was not treated differently by her manager . . . Tidd.” (Id. at 77.) 28 McKenzie explained that she had met with Tidd and Ivie and “the calls that triggered the -6- Case 2:19-cv-05882-DWL Document 44 Filed 11/17/21 Page 7 of 37 1 RFT were listened to as well. The information listed on the RFT is factual according to 2 what the investigator heard on the call recordings.” (Id.) 3 That same day, McKenzie informed Plaintiff that “her RFT stands as there was no 4 evidence that was provided that shows what is on the RFT is inaccurate.” (Id.) 5 II. Procedural History 6 On December 11, 2018, Plaintiff asserts that she formalized a charge of 7 discrimination with the EEOC. (Doc. 1 ¶ 42.)8 8 On February 12, 2019, Plaintiff asserts that she amended her charge to include 9 national origin discrimination. (Id. ¶ 43.) 10 On September 24, 2019, Plaintiff asserts that she received a notice of suit rights 11 from the EEOC. (Id. ¶ 44.) 12 On December 23, 2019, Plaintiff filed the complaint. (Doc. 1.) 13 On April 21, 2021, Defendants moved for summary judgment. (Doc. 33.) 14 On June 7, 2021, Plaintiff filed her response. (Doc. 40.) 15 On July 2, 2021, Defendants filed a reply. (Doc. 43.) Neither side requested oral 16 argument. 17 DISCUSSION 18 I. Evidentiary Issues 19 Plaintiff argues that all 10 of Defendants’ proffered summary judgment exhibits are 20 inadmissible because they are unauthenticated and that some also contain inadmissible 21 hearsay. (Doc. 40 at 2-3.) Additionally, Plaintiff seeks an “adverse inference” based on 22 Defendants’ failure to produce a recording of the April 2018 call. (Id.) The Court will 23 address those evidentiary issues before proceeding to the merits. 24 … 25 … 26 27 8 Although Defendants deny the bulk of the assertions in paragraphs 42-45 of the 28 complaint, Defendants don’t argue that Plaintiff’s complaint is untimely or otherwise defective for failure to exhaust administrative remedies. -7- Case 2:19-cv-05882-DWL Document 44 Filed 11/17/21 Page 8 of 37 1 A. Authenticity 2 i. The Parties’ Arguments 3 Plaintiff raises a “global objection” to “unauthenticated evidence.” (Doc. 40 at 1.) 4 According to Plaintiff, “Defendants failed to provide any authenticated evidence to support 5 their Motion as required by Rule 56. Even the included deposition transcript contains no 6 executed court reporter certificate . . . and the remaining exhibits are just naked hearsay 7 with no affidavit or declaration authenticating them or laying any foundation. This is fatal 8 to the Motion under Rule 56(c)(2).” (Id. at 1-2.) 9 In response, Defendants provide a copy of the court reporter’s certification for the 10 deposition transcript (Doc. 43-1), which they contend became available only recently (Doc. 11 43 at 2 n.1), and argue more broadly that a declaration or affidavit is not always required 12 to support a summary judgment motion. (Doc. 43 at 2.) Defendants contend that “under 13 Rule 901 of the Federal Rules of Evidence, ‘evidence sufficient to support a finding that 14 [an] item is what the proponent claims it is’ satisfies the requirement for authenticating 15 evidence. Such evidence includes a certified copy of a deposition transcript, or excerpt 16 therefrom, and deposition testimony of a witness with knowledge testifying ‘that an item 17 is what it is claimed to be.’” (Id.) Defendants also assert that, in her deposition, Plaintiff 18 authenticated “her performance records; her termination notice; a transcript of the call she 19 handled leading to her termination; H.R.’s investigation of her complaint; and [JPMC’s] 20 anti-discrimination and anti-harassment policy.” (Id. at 2-3.) Finally, Defendants argue 21 that “Plaintiff cannot refute that the evidence is admissible and authenticated when she 22 even includes it as exhibits to her Response.” (Id. at 3.) 23 ii. Analysis 24 “A trial court can only consider admissible evidence in ruling on a motion for 25 summary judgment.” Orr v. Bank of Am., NT & SA, 285 F.3d 764, 773 (9th Cir. 2002), 26 superseded by rule on other grounds as recognized in Dinkins v. Schinzel, 362 F. Supp. 3d 27 916 (D. Nev. 2019). Nevertheless, “[a]t summary judgment, ‘a party does not necessarily 28 have to provide evidence in a form that would be admissible at trial.’” Nevada Dep’t of -8- Case 2:19-cv-05882-DWL Document 44 Filed 11/17/21 Page 9 of 37 1 Corr. v. Greene, 648 F.3d 1014, 1018-19 (9th Cir. 2011) (citation omitted). Although a 2 party “is not required to produce evidence in a form that would be admissible at trial, [it] 3 must show that [it] would be able to present the underlying facts in an admissible manner 4 at trial.” De La Torre v. Merck Enters., Inc., 540 F. Supp. 2d 1066, 1075 (D. Ariz. 2008). 5 See also 2 Gensler, Federal Rules of Civil Procedure, Rules and Commentary, Rule 56, 6 at 165 (2021) (“[T]he party offering the material must either (1) show that the material is 7 admissible as presented; or (2) explain the admissible form that is anticipated.”). 8 One component of admissibility is authenticity, which is governed by Rule 901 of 9 the Federal Rules of Evidence. Under Rule 901(a), “the proponent must produce evidence 10 sufficient to support a finding that the item is what the proponent claims it is.” Examples 11 of permissible authentication methods include “Testimony of a Witness with Knowledge” 12 to establish that an item is what it is claimed to be, see Rule 901(b)(1), and “Distinctive 13 Characteristics and the Like,” which may authenticate evidence based on “the appearance, 14 contents, substance, internal patterns, or other distinctive characteristics of the item, taken 15 together with all the circumstances,” see Rule 901(b)(4). With this background in mind, 16 the Court turns to the 10 exhibits that were attached to Defendants’ motion. 17 a. Transcript of Plaintiff’s Deposition (Exhibit 1) 18 Plaintiff argues that her deposition transcript is unauthenticated it “contains no 19 executed court reporter certificate.” (Doc. 40 at 1-2.) This was a reasonable objection at 20 the time it was made—the certification Defendants submitted with their motion was 21 unsigned (Doc. 33-1 at 41) and the Ninth Circuit has stated that “[a] deposition or an extract 22 therefrom is authenticated in a motion for summary judgment when it identifies the names 23 of the deponent and the action and includes the reporter’s certification that the deposition 24 is a true record of the testimony of the deponent.” Orr, 285 F.3d at 774. But Defendants 25 remedied this omission by submitting the completed certification page with their reply 26 (Doc. 43-1) and explaining why that page was unavailable at the time they filed their 27 motion (Doc. 43 at 2 n.1). Exhibit 1 is thus properly authenticated. 28 … -9- Case 2:19-cv-05882-DWL Document 44 Filed 11/17/21 Page 10 of 37 1 b. Exhibits 2-10 2 Plaintiff contends that “the remaining exhibits are just naked hearsay with no 3 affidavit or declaration authenticating them or laying any foundation.” (Doc. 40 at 2.) 4 Notably, Plaintiff does not cite any case law to support her contention that an affidavit or 5 declaration is always necessary to authenticate summary judgment exhibits. (Id.) In 6 response, Defendants cite Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986), and 7 Coverdell v. Dep’t of Soc. & Health Services, State of Wash., 834 F.2d 758, 768 (9th Cir. 8 1987), to argue that Rule 56 does not always require an affidavit. (Doc. 42 at 2.) 9 Defendants are correct. Although it is unclear why Defendants have chosen to 10 pursue the unusual approach of authenticating their summary judgment exhibits without a 11 declaration or affidavit, and although this approach has caused confusion and led to the 12 needless expenditure of resources, there is nothing that prevents Defendants from pursuing 13 it. See, e.g., Jeffries v. Las Vegas Metro. Police Dep’t, 713 F. App’x 549, 550 (9th Cir. 14 2017) (“The seven exhibits attached to the Department’s [summary judgment] motion 15 could be authenticated and provided in an admissible form at trial and the district court did 16 not err by considering the evidence. Deputy Owens authenticated Exhibits A and C by 17 personal knowledge through his deposition testimony.”); AT&T Corp. v. Overdrive, Inc., 18 2006 WL 3392746, *5 (N.D. Ohio 2006) (denying motion to strike certain summary 19 judgment exhibits, even though they were not accompanied by a certificate of authenticity, 20 because they were “authenticated by Fassett’s deposition testimony”); Iraheta v. Lam Yuen, 21 LLC, 2013 WL 6713219, *4 n.4 (D. Md. 2013) (“[A]ffidavits are not the only way a 22 document may be authenticated for summary judgment.”). 23 Aside from the lack of an affidavit, Plaintiff does not develop any argument as to 24 why the specific documents proffered by Defendants are inauthentic. Indeed, Plaintiff 25 attaches many of the same exhibits to her summary judgment response. This is not the first 26 time Plaintiff’s counsel has engaged in this tactic. White v. Home Depot USA Inc., 2018 27 WL 704328, *4 (D. Ariz. 2018) (noting that plaintiffs’ counsel, who is also Plaintiff’s 28 counsel in this action, “globally object[ed] to the business records cited by Defendant in its - 10 - Case 2:19-cv-05882-DWL Document 44 Filed 11/17/21 Page 11 of 37 1 motion” but “[t]hese objections lack specificity” and “Plaintiffs rely on several of the same 2 documents in their Response . . . that they object to when offered by Defendant”). At any 3 rate, because Plaintiff does not develop her authenticity challenge in any depth, the Court 4 deems it forfeited. Cf. Sandoval v. Cnty. of San Diego, 985 F.3d 657, 666 (9th Cir. 2021) 5 (district court erred by sustaining “unexplained generalized objections” to summary 6 judgment evidence). 7 Finally, in an abundance of caution, the Court also clarifies that it is satisfied as to 8 the authenticity of Defendants’ proffered exhibits. Specifically: 9 Performance Records (Doc. 33-1 at 44-48 [Exhibit 2]): During her deposition, 10 Plaintiff testified that all documents in Exhibit 2 are what Defendants claim them to be. 11 Thus, these documents are authenticated under Rule 901(b)(1). Specifically, the 12 Performance Action Plan dated October 19, 2012 (Doc. 33-1 at 44) is authenticated by 13 Plaintiff’s testimony at transcript pages 40 and 45 (id. at 19, 24); the Documented 14 Discussion dated February 27, 2013 (id. at 45) is authenticated by Plaintiff’s testimony at 15 transcript page 41 (id. at 20); the Documented Discussion dated May 7, 2013 (id. at 46) is 16 authenticated by Plaintiff’s testimony at transcript page 43 (id. at 22); the Documented 17 Discussion dated April 14, 2015 (id. at 47) is authenticated by Plaintiff’s testimony at 18 transcript pages 45-46 (id. at 24-25); and the Mid-Year Customer Assistance Specialist 19 Scorecard (id. at 48) is authenticated by Plaintiff’s testimony at transcript page 47 (id. at 20 26). 21 2018 Annual Review (Doc. 33-1 at 50 [Exhibit 3]): It does not appear that Plaintiff 22 explicitly authenticated the 2018 annual review during her deposition, nor was it proffered 23 by Plaintiff in her response. All the same, under Rule 901(b)(4), “documents . . . could be 24 authenticated by review of their contents if they appear to be sufficiently genuine.” Orr, 25 285 F.3d at 778 n.24. In Orr, the Ninth Circuit noted that district courts have authenticated 26 letters “by the linkage between the dates of postmarks and defendant’s location on the days 27 [the] letters [were] mailed” and a diary “by reviewing its contents.” Id. The Court observes 28 that the 2018 Annual Review is marked as “For JPMC Internal Use Only” and identifies - 11 - Case 2:19-cv-05882-DWL Document 44 Filed 11/17/21 Page 12 of 37 1 Tidd as Plaintiff’s manager. It is also formatted identically to the 2017 Annual Review, 2 which as discussed below, Plaintiff authenticated in her deposition. Accordingly, the 2018 3 annual review is authenticated by its distinctive characteristics under Rule 901(b)(4). 4 Regardless, the Court did not rely on the 2018 Annual Review for purposes of the 5 substantive analysis in Part II below. 6 2017 Annual Review (Doc. 33-1 at 52 [Exhibit 3]): During her deposition, Plaintiff 7 testified that the document proffered by Defendants as her 2017 Annual Review is what 8 Defendants claim it to be. (Doc. 33-1 at 29.) Accordingly, this document is authenticated 9 under Rule 901(b)(1). 10 Written Warning dated April 18, 2018 (Doc. 33-1 at 55-56 [Exhibit 4]): In the 11 declaration supporting her response to the motion for summary judgment, Plaintiff stated 12 that Exhibit 4 is what Defendants claim it to be. (Doc. 40-1 at 4 ¶ 17, 6 ¶ 48.) Plaintiff 13 also submitted another copy of the same document as an exhibit in support of her response. 14 (Doc. 40-1 at 288-89.) Accordingly, there is no legitimate dispute over the authenticity of 15 this document. 16 Internal Termination Records (Doc. 33-1 at 58-60 [Exhibit 5]): In Maljack 17 Productions, Inc. v. GoodTimes Home Video Corp., 81 F.3d 881, 889 n.12 (9th Cir. 1996), 18 the Ninth Circuit ruled that the authentication requirement was satisfied where the 19 documents at issue, many of which were printed on the plaintiff’s letterhead, were 20 produced in discovery and offered into evidence by the defendant. Here, as there, 21 Defendants produced these termination records in a way that makes obvious that 22 Defendants created them. Additionally, Plaintiff herself seeks to offer them into evidence. 23 (Doc. 40-1 at 333-36.) Accordingly, there is no legitimate dispute over the authenticity of 24 these documents. 25 Internal Correspondence (Doc. 33-1 at 62-64 [Exhibit 6]): The distinctive 26 characteristics of Exhibit 6 suggest that it is authentic. The email header indicates that 27 Tidd forwarded this correspondence to McKenzie, who Exhibit 9 shows was the JPMC 28 employee who investigated Plaintiff’s appeal. Some participants in the correspondence - 12 - Case 2:19-cv-05882-DWL Document 44 Filed 11/17/21 Page 13 of 37 1 have detailed signatures suggesting that they are JPMC employees and each participant has 2 a JPMC email address. The underlying “Submission Verbatim” also appears to be 3 authentic: it identifies Plaintiff’s employee ID as F434365, which is established throughout 4 the proffered evidence, and it refers to a series of events that are explained in more detail 5 by the transcript, proffered as Exhibit 7. Because all of this corroborating evidence has 6 itself been separately found to be authenticated, the “appearance, contents, [and] substance 7 . . . of the item, taken together with all of the circumstances,” authenticate this exhibit under 8 Rule 901(b)(4). 9 Transcript of Call (Doc. 33-1 at 66-72 [Exhibit 7]): In the declaration supporting 10 her response to the motion for summary judgment, Plaintiff concedes that Exhibit 7 is what 11 Defendants claim it to be. (Doc. 40-1 at 6 ¶ 40.) Accordingly, there is no legitimate 12 dispute over the authenticity of this document. 13 Recommendation for Termination (Doc. 33-1 at 74 [Exhibit 8]): In the declaration 14 supporting her response to the motion for summary judgment, Plaintiff concedes that 15 Exhibit 8 is what Defendants claim it to be. (Doc. 40-1 at 5 ¶ 34.) Accordingly, there is 16 no legitimate dispute over the authenticity of this document. 17 Internal Termination Appeal Records (Doc. 33-1 at 76-89 [Exhibit 9]): During her 18 deposition, Plaintiff testified that Exhibit 9 is what Defendants claim it to be. (Doc. 33-1 19 at 35.) Accordingly, this document is authenticated under Rule 901(b)(1). 20 JPMC Policy (Doc. 33-1 at 91-98 [Exhibit 10]): During her deposition, Plaintiff 21 testified that Exhibit 10 is what Defendants claim it to be. (Doc. 33-1 at 22.) Accordingly, 22 this document is authenticated under Rule 901(b)(1). 23 B. Hearsay 24 Plaintiff raises a series of undeveloped “hearsay and double hearsay” objections to 25 Sections I.D, I.E, and I.F of Defendants’ motion for summary judgment. (Doc. 40 at 4-6.) 26 Defendants respond, in similarly undeveloped fashion, that “the evidence in support of 27 Defendants’ Motion is admissible under the hearsay exceptions as party admissions, 28 business records, and/or evidence not being offered for the truth of the matter asserted but - 13 - Case 2:19-cv-05882-DWL Document 44 Filed 11/17/21 Page 14 of 37 1 offered to show the effect on the listener, namely Plaintiff’s supervisor, Mr. Jason Tidd, or 2 Human Resources.” (Doc. 43 at 3.) 3 In Sandoval, the Ninth Circuit addressed a similar situation. There, the defendants 4 “submitted boilerplate one-word objections for ‘relevance,’ ‘hearsay,’ and ‘foundation’ to 5 several pieces of evidence important to Plaintiff’s case . . . .” 985 F.3d at 665. Although 6 the district court sustained those objections, the Ninth Circuit reversed, holding that the 7 undeveloped and conclusory nature of the objections meant that it was an abuse of 8 discretion to sustain them: 9 Because the defendants did not explain the [hearsay] objections, we are largely reduced to guessing at the arguments underlying them. One 10 possibility is that the defendants objected on the ground that the documents 11 themselves would not be admissible at trial because they are out-of-court statements offered for their truth. But at the summary judgment stage, we do 12 not focus on the admissibility of the evidence’s form. We instead focus on 13 the admissibility of its contents. If the contents of a document can be presented in a form that would be admissible at trial—for example, through 14 live testimony by the author of the document—the mere fact that the 15 document itself might be excludable hearsay provides no basis for refusing to consider it on summary judgment. 16 17 Here, the objected-to documents either reflect the personal knowledge of individuals who could be called to testify at trial or will likely be admissible 18 at trial under exceptions to the hearsay rule. For example, Plaintiff’s expert 19 witnesses can testify about the opinions expressed in their expert reports, and the deputies and medical examiner can testify about the personal 20 observations reflected in their official reports. To the extent the police reports recount statements made by the defendants in this case, they would 21 be admissible as non-hearsay statements of a party opponent. Hearsay 22 therefore provided no basis for excluding the objected-to documents in their entirety. And to the extent the defendants intended to object to only parts of 23 the documents, their unexplained generalized objections were insufficient to 24 raise such an objection. 25 Id. at 666. 26 Here, as in Sandoval, Plaintiff raises “boilerplate,” “unexplained,” and 27 “generalized” objections to hearsay. Additionally, unlike in Sandoval, where the objecting 28 parties at least purported to object to specific documents, Plaintiff only objects to sections - 14 - Case 2:19-cv-05882-DWL Document 44 Filed 11/17/21 Page 15 of 37 1 of the motion for summary judgment. Plaintiff does not even identify specific exhibits, 2 much less statements, to which she objects. The Court can only speculate that Plaintiff 3 meant to object to some statements within Exhibits 5-10, which is the evidence mentioned 4 in Sections 1.D through 1.F, on the basis that they are out-of-court statements offered for 5 their truth. But hearsay arguments are notoriously fact-specific, in that a single statement 6 might, or might not, be hearsay for several different reasons depending on what the 7 statement is offered to prove. And Exhibits 5-10 contain hundreds of statements to which 8 Plaintiff might be objecting. For this reason alone, Plaintiff’s hearsay objections are 9 overruled. See also United States v. Sineneng-Smith, 140 S. Ct. 1575, 1579 (2020) (“In 10 our adversarial system of adjudication, we follow the principle of party presentation . . . . 11 [W]e rely on the parties to frame the issues for decision and assign to courts the role of 12 neutral arbiter of matters the parties present.”). 13 Finally, in an abundance of caution, the Court has reviewed Exhibits 5-10 and 14 concludes each exhibit contains statements that “either reflect the personal knowledge of 15 individuals who could be called to testify at trial or will likely be admissible at trial under 16 exceptions to the hearsay rule.” Sandoval, 985 F.3d at 666. Indeed, many of the documents 17 recount Plaintiff’s statements, which are party-opponent admissions under Rule 801(d)(2), 18 and to the extent certain documents (such as Exhibit 7) recount conversations between 19 Plaintiff and others, the others’ statements could be offered for the non-hearsay purpose of 20 establishing context for Plaintiff’s statements. Cf. United States v. Whitman, 771 F.2d 21 1348, 1351-52 (9th Cir. 1985) (“Shove . . . recorded his conversations with Robert when 22 they planned Raymond’s murder. The district court admitted these tapes into evidence and 23 played them for the jury. Appellant contends that Shove’s statements are inadmissible 24 hearsay . . . [but] Shove’s statements were not admitted for their truth but to enable the jury 25 to understand Robert’s taped statements . . . . There was no error in admitting Shove’s 26 recorded statements.”). Perhaps there is a serious hearsay problem lurking somewhere 27 within some exhibit, but if so, it was Plaintiff’s burden to identify it. 28 In short, large swaths of each document “can be presented in a form that would be - 15 - Case 2:19-cv-05882-DWL Document 44 Filed 11/17/21 Page 16 of 37 1 admissible at trial . . . . Hearsay therefore provide[s] no basis for excluding the objected-to 2 documents in their entirety. And to the extent [Plaintiff] intended to object to only parts of 3 the documents, [her] . . . unexplained generalized objections [are] insufficient to raise such 4 an objection.” Sandoval, 985 F.3d at 666. 5 C. Adverse Inference 6 One of Defendants’ proffered exhibits is the written warning that Plaintiff received 7 in April 2018 for hanging up on a caller who had requested an escalation to management. 8 (Doc. 33-1 at 55.) In her response to Defendants’ motion, Plaintiff asserts that because 9 Defendants never produced a recording of the underlying call and there is a dispute over 10 whether the caller was a customer, the Court should impose an “adverse inference . . . that 11 Tidd lied about the nature of the call to justify issuing Plaintiff’s April 2018 written 12 warning.” (Doc. 40 at 2-3.) Notably, Plaintiff does not identify the rule (if any) that would 13 support the imposition of such a sanction. (Id.) Further complicating things, Defendants’ 14 reply does not directly address Plaintiff’s sanction request—to the extent it discusses the 15 April 2018 call at all, it merely notes that Plaintiff’s current description of that call 16 contradicts the description she provided during her deposition. (Doc. 43 at 5.) 17 Plaintiff’s request for an adverse-inference sanction is both procedurally deficient 18 and substantively meritless. The first procedural problem is that Plaintiff tucked her 19 request into her response to Defendants’ summary judgment motion. This is not an 20 appropriate way to seek the affirmative relief of an adverse-inference sanction. Rule 21 7(b)(1) of the Federal Rules of Civil Procedure provides that “[a] request for a court order 22 must be made by motion.” No such motion was filed here. Cf. Mannion v. Ameri-Can 23 Freight Sys. Inc., 2020 WL 417492, *4 (D. Ariz. 2020) (“There are sound reasons to require 24 a party seeking spoliation sanctions in federal court to file a pretrial motion for sanctions 25 . . . .”). 26 The second, related procedural problem is that Plaintiff did not attempt to identify 27 the rule or legal doctrine that would authorize the imposition of an adverse-inference 28 sanction under these circumstances. Under Rule 7(b)(1)(B), “[t]he motion must . . . state - 16 - Case 2:19-cv-05882-DWL Document 44 Filed 11/17/21 Page 17 of 37 1 with particularity the grounds for seeking the order.” Here, such particularity is lacking. 2 Finally, due to the undeveloped nature of Plaintiff’s request, it is impossible to 3 conclude that she has established an entitlement to relief on the merits. The materials 4 attached to Plaintiff’s response suggest the recording of the April 2018 call was stored in 5 some sort of electronic format. (Doc. 40-1 at 141 [Q: “Where is that call recorded?” A: 6 “It’s recorded in our call system.”].) Thus, the recording presumably qualifies as 7 electronically stored information (“ESI”). If Defendants destroyed this piece of ESI, 8 Plaintiff’s request for an adverse-inference sanction would be governed by 37(e) of the 9 Federal Rules of Civil Procedure. See generally Fed. Trade Comm’n v. Noland, 2021 WL 10 3857413, *5-6 (D. Ariz. 2021) (“Rule 37(e) was completely rewritten in 2015 to provide a 11 nationally uniform standard for when courts can give an adverse inference instruction, or 12 impose equally or more severe sanctions, to remedy the loss of ESI. . . . A court cannot 13 rely on its inherent authority (or state law) when deciding whether sanctions based on the 14 loss of ESI are appropriate—the standards supplied by Rule 37(e) are exclusive.”) (cleaned 15 up). However, under Rule 37(e), Plaintiff would be required to make a series of specific 16 showings, including showings as to when the ESI was destroyed, whether litigation was 17 reasonably foreseeable at the time of destruction, and whether the ESI can be restored or 18 replaced through additional discovery. Id. Plaintiff makes no effort to address all of these 19 required elements. 20 Meanwhile, if Defendants simply failed to produce this piece of ESI (but it 21 otherwise still exists), Plaintiff’s request for an adverse-inference sanction would governed 22 by other rules. For example, Rule 37(b)(2)(A) authorizes a range of sanctions, including 23 an adverse-inference sanction, for violating an order to provide discovery. See, e.g., Higgs 24 v. Costa Crociere S.P.A. Co., 969 F.3d 1295, 1304-07 (11th Cir. 2020); Liss v. Exel Transp. 25 Servs., Inc., 2008 WL 370886, *5 (D. Ariz. 2008). However, Plaintiff makes no effort to 26 establish that Defendants violated a court order by failing to produce the recording—it is 27 unclear whether she ever propounded a discovery request for the recording9 and the docket 28 9 The transcript of Plaintiff’s administrative hearing for unemployment benefits, - 17 - Case 2:19-cv-05882-DWL Document 44 Filed 11/17/21 Page 18 of 37 1 reveals that she never filed a motion to compel related to this issue or otherwise brought a 2 discovery dispute to the Court’s attention. Meanwhile, Rule 37(c)(1)(C) authorizes “other 3 appropriate sanctions” against a party that “fails to provide information . . . as required by 4 Rule 26(a) or (e) . . . unless the failure was substantially justified or is harmless,” but 5 Plaintiff makes no effort to establish that Defendants were required to produce the 6 recording under Rule 26(a) or Rule 26(e) and offers no briefing on the issues of substantial 7 justification and harmlessness. Additionally, the scheduling order in this case provided 8 that, “[a]bsent extraordinary circumstances, the court will not entertain fact discovery 9 disputes after the deadline for completion of fact discovery . . . .” (Doc. 14 at 4.) Thus, 10 Plaintiff could not stay silent throughout the discovery process about a dispute related to 11 the discoverability of the recording of the April 2018 call, then belatedly raise such a 12 dispute—and rely on it as the basis for a request for an adverse-inference sanction—in 13 response to a summary judgment motion. 14 For these reasons, Plaintiff’s request for an adverse-inference sanction related to the 15 April 2018 call is denied. To the extent there are material disputes of fact related to the 16 April 2018 call, those disputes will, of course, be resolved in Plaintiff’s favor due to her 17 status as the non-movant at summary judgment. But a request for an adverse-inference 18 sanction is different from a request for application of traditional summary judgment 19 standards. 20 … 21 22 which Plaintiff attached as Exhibit 14 to her response, suggests that Plaintiff sent a letter to JPMC on January 23, 2019 “asking for the recording” of the April 2018 call. (Doc. 40- 23 1 at 381.) Plaintiff also alludes to this letter in her declaration. (Id. at 6 ¶ 49.) This letter, 24 to be clear, was not a discovery request made as part of this case, which Plaintiff did not initiate until December 2019. (Doc. 1.) Meanwhile, when Tidd was asked during his 25 deposition in this case whether he had “been able to access” the recording of the April 2018 26 call “since the lawsuit” began, he answered that he hadn’t “tried” to access the recording “because [he] wasn’t asked to.” (Doc. 40-1 at 142-43.) The implication is that Tidd never 27 looked for the recording because Plaintiff never asked for it during the discovery process. 28 Plaintiff has not, at any rate, submitted any evidence that she submitted such a discovery request to Defendants. - 18 - Case 2:19-cv-05882-DWL Document 44 Filed 11/17/21 Page 19 of 37 1 II. Motion For Summary Judgment 2 A. Legal Standard 3 “The court shall grant summary judgment if [a] movant shows that there is no 4 genuine dispute as to any material fact and the movant is entitled to judgment as a matter 5 of law.” Fed. R. Civ. P. 56(a). “A fact is ‘material’ only if it might affect the outcome of 6 the case, and a dispute is ‘genuine’ only if a reasonable trier of fact could resolve the issue 7 in the non-movant’s favor.” Fresno Motors, LLC v. Mercedes Benz USA, LLC, 771 F.3d 8 1119, 1125 (9th Cir. 2014). The court “must view the evidence in the light most favorable 9 to the nonmoving party and draw all reasonable inference in the nonmoving party’s favor.” 10 Rookaird v. BNSF Ry. Co., 908 F.3d 451, 459 (9th Cir. 2018). “Summary judgment is 11 improper where divergent ultimate inferences may reasonably be drawn from the 12 undisputed facts.” Fresno Motors, 771 F.3d at 1125 (internal quotation marks omitted). 13 Thus, “the trial judge’s summary judgment inquiry as to whether a genuine issue exists will 14 be whether the evidence presented is such that a jury applying that evidentiary standard 15 could reasonably find for either the plaintiff or the defendant.” Anderson v. Liberty Lobby, 16 Inc., 477 U.S. 242, 255 (1986). 17 A party moving for summary judgment “bears the initial responsibility of informing 18 the district court of the basis for its motion, and identifying those portions of ‘the pleadings, 19 depositions, answers to interrogatories, and admissions on file, together with the affidavits, 20 if any,’ which it believes demonstrate the absence of a genuine issue of material fact.” 21 Celotex, 477 U.S. at 323. “In order to carry its burden of production, the moving party 22 must either produce evidence negating an essential element of the nonmoving party’s claim 23 or defense or show that the nonmoving party does not have enough evidence of an essential 24 element to carry its ultimate burden of persuasion at trial.” Nissan Fire & Marine Ins. Co. 25 v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000). “If . . . [the] moving party carries its 26 burden of production, the nonmoving party must produce evidence to support its claim or 27 defense.” Id. at 1103. 28 … - 19 - Case 2:19-cv-05882-DWL Document 44 Filed 11/17/21 Page 20 of 37 1 B. Count One 2 In Count One of her complaint, which is a Title VII claim against JPMC, Plaintiff 3 alleges that she is “a member of a protected class: race, Asian, national origin, Indonesian” 4 and was “subject[ed] to unlawful discrimination in that she was held to a different standard 5 than [her] non-Asian, non-Indonesian co-workers by her supervisor—disparate treatment 6 because of her race and national origin. Plaintiff’s termination was a fruit of the unlawful 7 discrimination evidenced by Plaintiff’s supervisor.” (Doc. 1 ¶¶ 48-50.) And in her 8 summary judgment briefing, Plaintiff elaborates on her theory of liability as follows: 9 “Plaintiff . . . followed complicated policies, even when her co-workers did not, yet her 10 status as the only Asian/Indonesian on her team made her a target of her manager . . . [who] 11 lied about policy violations to HR and others (including under oath), held Plaintiff to a 12 higher standard than her co-workers, and ultimately recommended and approved Plaintiff’s 13 termination by stacking inappropriate and uncommunicated discipline.” (Doc. 40 at 1.) 14 Title VII makes it unlawful for an employer to “discriminate against any individual 15 with respect to his compensation, terms, conditions, or privileges of employment, because 16 of such individual’s race . . . or national origin.” 42 U.S.C. § 2000e–2(a)(1). “Title VII 17 prohibits both intentional discrimination (known as ‘disparate treatment’) as well as, in 18 some cases, practices that are not intended to discriminate but in fact have a 19 disproportionately adverse effect on minorities (known as ‘disparate impact’).” Ricci v. 20 DeStefano, 557 U.S. 557, 577 (2009). “A person suffers disparate treatment in his 21 employment when he or she is singled out and treated less favorably than others similarly 22 situated on account of race.” Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018, 1028 23 (9th Cir. 2006). 24 The parties agree that Count One is governed by the legal framework established 25 in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). “Under McDonnell 26 Douglas, a plaintiff alleging disparate treatment under Title VII must first establish a prima 27 facie case of discrimination. Specifically, the plaintiff must show that (1) [she] belongs to 28 a protected class; (2) [she] was qualified for the position; (3) [she] was subject to an adverse - 20 - Case 2:19-cv-05882-DWL Document 44 Filed 11/17/21 Page 21 of 37 1 employment action; and (4) similarly situated individuals outside [her] protected class were 2 treated more favorably.” Chuang v. Univ. of California Davis, Bd. of Trustees, 225 F.3d 3 1115, 1123-24 (9th Cir. 2000) (cleaned up). “As a general matter, the plaintiff in an 4 employment discrimination action need produce very little evidence in order to overcome 5 an employer’s motion for summary judgment. This is because the ultimate question is one 6 that can only be resolved through a searching inquiry—one that is most appropriately 7 conducted by a factfinder, upon a full record. . . . Under the McDonnell Douglas 8 framework, [t]he requisite degree of proof necessary to establish a prima facie case for 9 Title VII . . . on summary judgment is minimal and does not even need to rise to the level 10 of a preponderance of the evidence.” Id. (citations and quotation marks omitted). 11 Here, Defendants concede that Plaintiff “is a member of a protected class (Asian as 12 race, and Indonesian by national origin) and did suffer adverse employment action 13 (termination).” (Doc. 33 at 6.) Thus, Defendants only dispute “the second [and] fourth 14 elements of [Plaintiff’s] prima facie case—that she was satisfactorily performing her job 15 and meeting JPMC’s expectations, and that she was treated any less favorably than her 16 peers.” (Id.) The Court will address the fourth element because, as discussed below, it is 17 dispositive. 18 i. Similarly Situated Employees Who Were Treated More Favorably 19 Defendants argue that Plaintiff “fails to identify alleged ‘comparators’ to meet her 20 prima facie burden. She alleges her co-workers were treated more favorably, but then she 21 concedes that they lack the type of performance concerns she exhibited: she has no 22 knowledge that the alleged comparators had performance issues with call avoidance, 23 calling customer’s place of employment or UDAAP10 violations. She has never spoken to 24 them about their discipline or if they have even received any disciplined for similar 25 conduct. Such differences are fatal to [Plaintiff’s] claim.” (Doc. 33 at 8.) 26 Plaintiff responds by asserting that “[o]ther individuals were not disciplined for 27 28 10 Defendants assert that “UDAAP” refers to “unfair or deceptive act or practice.” (Doc. 33 at 4.) - 21 - Case 2:19-cv-05882-DWL Document 44 Filed 11/17/21 Page 22 of 37 1 similar behavior.” (Doc. 40 at 9.) The first comparator identified by Plaintiff is Juan 2 Talavera, who she contends “committed multiple serious breaches of policy, including one 3 warning for disseminating sexually-explicit material to co-workers and a documented 4 discussion for criticizing a customer’s choice of religious hold music as ‘unethical.’” (Doc. 5 40 at 9.) The second comparator identified by Plaintiff is Chris Grinage, who she contends 6 “was accused of making sexual sounds around co-worker Esther Baca, and it does not 7 appear he was even the recipient of a documented discussion, much less a written warning, 8 even though Ms. Baca was still uncomfortable around him a week later. [Grinage] also 9 made mistakes identical to Plaintiff without a ‘coaching.’” (Id.) Finally, Plaintiff cross- 10 references the portion of her declaration in which she states that unspecified other “co- 11 workers” would “hang up on angry individuals, even though they were actually customers 12 or authorized third parties,” yet none of those unspecified co-workers “were ever[] 13 disciplined for hanging up on customers.” (Doc. 40-1 ¶¶ 22-23.) 14 In reply, Defendants identify various reasons why Talavera and Grinage cannot be 15 considered similarly situated comparators. (Doc. 43 at 6-7.) 16 The Court agrees with Defendants that Plaintiff has failed to proffer evidence 17 sufficient to create a triable issue of fact concerning the fourth prong of the McDonnell 18 Douglas test. At the prima facie stage, a plaintiff may show either that similarly situated 19 individuals outside her protected class were treated more favorably or “other circumstances 20 surrounding the adverse employment action give rise to an inference of discrimination.” 21 Peterson v. Hewlett-Packard Co., 358 F.3d 599, 603 (9th Cir. 2004). Thus, Defendants 22 are incorrect to argue that, as a categorical rule, “failure to identify a comparator is fatal.” 23 (Doc. 33 at 8.) Nevertheless, where (as in this case) a plaintiff has chosen “to accept the 24 framework requiring she point to evidence of similarly situated individuals . . . the Court 25 focuses on that issue.” Resnick v. Sebelius, 2014 WL 11497800, *3 (D. Ariz. 2014), aff’d 26 sub nom. Resnick v. Burwell, 648 F. App’x 714 (9th Cir. 2016). See also Hawn v. Exec. 27 Jet Mgmt., Inc., 615 F.3d 1151, 1156 (9th Cir. 2010) (no error for the district court to 28 “focus[] on whether similarly-situated persons received more favorable treatment” rather - 22 - Case 2:19-cv-05882-DWL Document 44 Filed 11/17/21 Page 23 of 37 1 than “look[] more broadly at whether the record as a whole gave rise to an inference of 2 discrimination” because “the inference of discrimination that is central to plaintiffs’ case” 3 “relies on a comparison between themselves and a group of female employees”). Here, 4 Plaintiff’s claim is premised on the theory that she was “she was treated differently than 5 her non-Asian, non-Indonesian co-workers” because “[o]ther individuals were not 6 disciplined for similar behavior.” (Doc. 40 at 8-9.) She also identifies her own prima facie 7 burden as proving that “she was treated different than her non-Asian, non-Indonesian co- 8 workers.” (Id. at 8.) Thus, the Court will focus on Plaintiff’s proffered comparators, 9 Talavera and Grinage. 10 A valid comparator must be “similarly situated” to and “treated more favorably” 11 than the plaintiff. The Ninth Circuit has stated that “individuals are similarly situated when 12 they have similar jobs and display similar conduct.” Vasquez v. Cnty. of Los Angeles, 349 13 F.3d 634, 641 (9th Cir. 2003). “The employees need not be identical, but must be similar 14 in material respects. Materiality depends on the context and is a question of fact that cannot 15 be mechanically resolved. . . . It is not an unyielding, inflexible requirement that requires 16 near one-to-one mapping between employees because one can always find distinctions in 17 performance histories or the nature of the alleged transgressions.” Earl v. Nielsen Media 18 Rsch., Inc., 658 F.3d 1108, 1114-15 (9th Cir. 2011) (citations and internal quotation marks 19 omitted). 20 Talavera. The undisputed evidence establishes that Talavera was a JPMC employee 21 and a co-worker of Plaintiff in the Home Lending Recovery division. (Doc. 40-1 at 112.) 22 Plaintiff has also submitted evidence that Talavera was subjected to discipline three times: 23 (1) a written warning from manager Tracie Evans in January 2012, because Talavera 24 “opened a template for a customer when he did not have the proper documentation to move 25 to modification review status” (id. at 358); (2) a written warning from manager Trey 26 Hickey in December 2007 for “forwarding an email . . . with sexually explicit content to 27 his teammates [which was] in direct violation of Chase’s Harassment-Free Workplace 28 policy” (id. at 361); and (3) a documented discussion from manager Jose Gutierrez in - 23 - Case 2:19-cv-05882-DWL Document 44 Filed 11/17/21 Page 24 of 37 1 January 2017 after Talavera was “placed on hold and during the hold time there was 2 religious music playing in the background. . . . Talavera suggested to the authorize[d] third 3 party that they should not play that type of music because it was unethical and the next 4 person should not have to listen to that type of music” (id. at 363). Additionally, Plaintiff 5 states in her declaration that Talavera once “gave completely wrong payment information 6 to Christa Foley, without ever being disciplined for that.” (Doc. 40-1 at 6 ¶¶ 43-44.) 7 Even construed in the light most favorable to Plaintiff, the evidence related to 8 Talavera fails to establish that he was “treated more favorably” than Plaintiff. As an initial 9 matter, it is unclear why Plaintiff believes the three incidents in which Talavera was 10 disciplined for misconduct (or subjected to a documented discussion in response to 11 misconduct) support her position. As noted, Plaintiff’s theory of liability is that “[o]ther 12 individuals were not disciplined for similar behavior.” (Doc. 40 at 9 [emphasis added].) 13 Thus, incidents of misconduct by co-workers that did prompt discipline are irrelevant. 14 This leaves Plaintiff’s contention that Talavera “gave completely wrong payment 15 information to Christa Foley, without ever being disciplined for that.” At summary 16 judgment, the Court assumes that Talavera’s actions were indeed against company policy 17 and Talavera was never disciplined. But Plaintiff does not assert, and the Court cannot 18 assume, that Talavera’s manager was aware of Talavera’s mistake yet failed to take action. 19 As noted, Plaintiff’s misconduct during the Foley call came to the attention of Plaintiff’s 20 supervisor, Tidd, only because Foley was sufficiently outraged by Plaintiff’s performance 21 to lodge an official complaint via JMPC’s internal complaint system. Foley’s complaint 22 did not contain any accusations of misconduct directed toward Talavera. Cf. Resnick, 2014 23 WL 11497800 at *4 (“Plaintiff submits no evidence in support of her claim that individuals 24 at Ft. Yuma knew of Dr. Smalley’s misconduct and took no action.”). 25 Moreover, even assuming (despite the lack of evidentiary support for the 26 assumption) that Talavera’s manager was aware that Talavera erred, this incident was far 27 different from the incident that provided the foundation for Plaintiff’s termination. At 28 most, Plaintiff has shown that Talavera made a mistake regarding payment terms—the - 24 - Case 2:19-cv-05882-DWL Document 44 Filed 11/17/21 Page 25 of 37 1 same sort of mistake that, when committed by Plaintiff, resulted in only verbal corrections 2 or coachings by Tidd. Plaintiff was ultimately terminated based on a series of violations, 3 including an instance in which she (at least in Tidd’s view) attempted to hang up on a 4 customer in need of assistance because she didn’t want to work late. Even accepting that 5 “[m]ateriality depends on the context and is a question of fact that cannot be mechanically 6 resolved” and that “one can always find distinctions in . . . the nature of the alleged 7 transgressions,” Earl, 658 F.3d at 1114-15 (citations and internal quotation marks omitted), 8 no reasonable juror could find that the transgressions were similar. Cf. Vasquez, 349 F.3d 9 at 641 (noting that alleged comparator was “not involved in the same type of offense” as 10 plaintiff and did not “engage in problematic conduct of comparable seriousness”). 11 See 11 also Leong v. Potter, 347 P.3d 1117, 1124 (9th Cir. 2003) (“Although these employees did 12 commit serious violations, it appears none amassed a record of misconduct comparable to 13 Leong’s. Leong’s record of reprimands and suspensions suggests that the Postal Service 14 is generous in affording employees ‘second chances,’ but USPS must be permitted to draw 15 the line somewhere.”); Wall v. Nat’l R.R. Passenger Corp., 718 F.2d 906, 909 (9th Cir. 16 1983) (“The three white employees who were not discharged for conduct similar to that for 17 which Wall was discharged had no prior disciplinary records. When warranted by the 18 circumstances, an employer may discipline repeat offenders more severely than first-time 19 offenders.”). 20 Defendants also contend that Talavera is not similarly situated because he “reports 21 to another supervisor, [and] Defendants cannot be held responsible for how another 22 supervisor may or may not have disciplined Mr. Talavera.” (Doc. 43 at 6.) Indeed, it is 23 24 11 Although Plaintiff asserts in her declaration that she “frequently heard [her] co- 25 workers hang up on angry individuals, even though they were actually customers or 26 authorized third parties—something I knew our policies absolutely never allowed” (Doc. 40-1 ¶¶ 22-23), she does not assert that Talavera in particular ever hung up on any caller, 27 much less an “angry” caller who was specifically a customer or authorized third party. 28 Accordingly, this vague assertion cannot establish Talavera as a similarly situated comparator who was treated more favorably than Plaintiff. - 25 - Case 2:19-cv-05882-DWL Document 44 Filed 11/17/21 Page 26 of 37 1 uncontested that, at all relevant times, Talavera did not report to Tidd.12 Although it is 2 error for a “district court to impose a strict ‘same supervisor’ requirement,” “the presence 3 or absence of a shared supervisor might be relevant in some cases.” Hawn, 615 F.3d at 4 1157-58. The absence of a shared supervisor is relevant here and provides yet another 5 reason for concluding that Talavera is not a valid comparator. “Different supervisors may 6 impose different standards of behavior, and a new supervisor may decide to enforce 7 policies that a previous supervisor did not consider important.” Rojas v. Florida, 285 F.3d 8 1339, 1344 (11th Cir. 2002). It is uncontested that Talavera’s alleged misconduct occurred 9 under three different managers, none of whom was Tidd. It is hard to imagine, and 10 “Plaintiff has not offered sufficient explanation,” how “misconduct occurring . . . under 11 entirely different supervisors” can make Talavera similarly situated. Resnick, 2014 WL 12 11497800 at *4. This is particularly true under the facts of this case, where Plaintiff’s 13 theory of liability is that Tidd alone engaged in the discriminatory conduct giving rise to 14 her claims. (Doc. 40 at 1 [“[Plaintiff’s] status as the only Asian/Indonesian on her team 15 made her a target of her manager Defendant Jason Tidd. Tidd lied about policy violations 16 to HR and others (including under oath), held Plaintiff to a higher standard than her co- 17 workers, and ultimately recommended and approved Plaintiff’s termination by stacking 18 inappropriate and uncommunicated discipline.”].) 19 Grinage. According to uncontested evidence, Grinage was a JPMC employee and 20 a co-worker of Plaintiff in the Home Lending Recovery division. (Doc. 40-1 at 112.) Like 21 Plaintiff, Grinage was managed by Tidd. (Id. at 367.) 22 Grinage was apparently never the subject of formal discipline, but Plaintiff points 23 to two incidents in an attempt to show that Grinage was treated more favorably despite 24 being similarly situated. First, Grinage was the subject of a complaint from Baca, who 25 asserted he was “making nasty noises (sexual noises) when he passes by her.” (Id. at 369.) 26 It is undisputed that JPMC did not discipline Grinage based on that complaint. (Id.) 27 12 28 In his deposition, Tidd mentions that he managed Talavera briefly (Doc. 40-1 at 111), but neither party suggests that Tidd was Talavera’s manager at relevant times. - 26 - Case 2:19-cv-05882-DWL Document 44 Filed 11/17/21 Page 27 of 37 1 Second, Plaintiff asserts that “Grinage also made mistakes identical to Plaintiff without a 2 ‘coaching.’” (Doc. 40 at 9.) She declares that “I . . . know that my co-worker Chris Grinage 3 failed to properly authenticate a customer via their social security number (something that 4 Tidd got very angry at me for when I handled a married couple on the phone and one 5 validated the social security number for the other), yet Tidd was nice to Chris Grinage and 6 simply helped him do better next time.” (Doc. 40-1 at 5 ¶ 31.) 7 As for the first incident, Plaintiff does not explain why Grinage’s “nasty noises” 8 should be considered “similar conduct” to hers. Vasquez, 349 F.3d at 641 (“[I]ndividuals 9 are similarly situated when they have similar jobs and display similar conduct.”). There is 10 no reason to assume a manager acting in good faith would address internal personnel 11 matters in the same manner as job-related performance matters. Even if Grinage had in 12 fact made sexual noises toward Baca, that behavior is too distinct from Plaintiff’s alleged 13 transgressions. 14 As for the second incident, Defendants argue that “[d]uring her deposition, Plaintiff 15 conceded that her alleged comparators lacked the type of performance concerns she 16 exhibits.” (Doc. 43 at 6.) But on the deposition pages that Defendants identify, Plaintiff 17 simply concedes that she was referring to Foley when describing “petty entitled, irate and 18 angry behaviors on behalf of the [JPMC] branch management.” (Doc. 33-1 at 36.) Is it 19 hard to understand how this concession establishes, as Defendants assert, that Plaintiff “has 20 no knowledge that the alleged comparators had performance issues with call avoidance, 21 calling customer’s place of employment, or UDAPP violations. She has also never spoken 22 to them about their discipline or if they have even received any discipline for similar 23 conduct.” (Doc. 43 at 6.) The Court has thoroughly reviewed Plaintiff’s deposition and 24 cannot find a concession that Talavera or Grinage lacked the type of performance concerns 25 she exhibited. 26 Given this backdrop, the Court accepts as true that Grinage “failed to properly 27 authenticate a customer via their social security number” and did not receive a “coaching,” 28 even though Tidd was aware of the error. (Doc. 40-1 at 5 ¶ 31.) But even if Grinage had - 27 - Case 2:19-cv-05882-DWL Document 44 Filed 11/17/21 Page 28 of 37 1 been similarly situated to and treated more favorably than Plaintiff in this case, Plaintiff 2 has identified only a single relevant incident involving Grinage, while Plaintiff’s record 3 reflects five relevant (i.e., performance-related) incidents.13 When a purported comparator 4 is a first-time offender and the plaintiff is a repeat offender, that sort of difference, 5 “standing alone, [is] likely is sufficient to render” them not “similarly situated.” Resnick, 6 2014 WL 11497800 at *4. See also Leong, 347 P.3d at 1124; Wall, 718 F.2d at 909. 7 Because no reasonable juror could find that Grinage is similarly situated, he is not 8 a valid comparator. And without a valid comparator, Plaintiff has failed to establish a 9 prima facie case under Title VII. 10 ii. Pretext 11 Even if Plaintiff had established the existence of a valid comparator (or “other 12 circumstances” giving rise to an inference of discrimination), and further assuming without 13 deciding that Plaintiff had satisfied the second McConnell Douglas prong (adequate job 14 performance), Defendants would still be entitled to summary judgment for the independent 15 reason that Plaintiff has failed to proffer sufficient evidence of pretext. 16 “Establishing a prima facie case under McDonnell Douglas creates a presumption 17 that the plaintiff’s employer undertook the challenged employment action because of the 18 plaintiff’s race. To rebut this presumption, the defendant must produce admissible 19 evidence showing that the defendant undertook the challenged employment action for a 20 legitimate, nondiscriminatory reason.” Cornwell, 439 F.3d at 1028 (cleaned up). To meet 21 its resulting burden of production, a defendant must “introduce evidence which, taken as 22 true, would permit the conclusion that there was a nondiscriminatory reason for the adverse 23 action.” Bodett v. CoxCom, Inc., 366 F.3d 736, 742 (9th Cir. 2004) (emphases in original). 24 Defendants have met the low bar of introducing evidence that, taken as true, permits 25 the conclusion there was a nondiscriminatory reason for Plaintiff’s discipline and 26 27 13 This calculation includes the April 2018 written warning, the August 2018 28 conversation/coaching, the September 2018 conversation/coaching, the October 2018 incident with Foley, and the October 2018 conversation/coaching. - 28 - Case 2:19-cv-05882-DWL Document 44 Filed 11/17/21 Page 29 of 37 1 termination. In their motion for summary judgment, Defendants refer to “legitimate, 2 nondiscriminatory business reasons: i.e., delivering poor customer service and call 3 avoidance, violating JPMC internal policies; falsely telling a customer they could avoid a 4 premium; and initially refusing to help a branch manager, until she threatened to speak to 5 [Plaintiff’s] supervisor.” (Doc. 33 at 9.) And in their reply, Defendants somewhat reframe 6 the termination as being based on evidence that Plaintiff “hung up on a caller in April of 7 2018 and she repeatedly tried to get off the phone with a Bank Manager, who subsequently 8 lodged a complaint against her in October 2018.” (Doc. 43 at 7.) 9 The RFT written by Tidd on October 29, 2018 (Doc. 33-1 at 74) is the clearest 10 representation of JPMC’s rationale for terminating Plaintiff. That document recommends 11 terminating Plaintiff “because of Unsatisfactory Performance specifically in the area of 12 customer experience.” (Id.) It does not explicitly identify which incidents formed the basis 13 for the termination recommendation, but it mentions the April 2018 written warning for 14 “hanging up on a customer,” the October 26, 2018 call with Foley, and the October 29, 15 2018 coaching for making a non “factual statement” to a customer. (Id.) Assuming the 16 truth of these performance-related allegations would permit the conclusion that Plaintiff 17 was terminated for a legitimate, nondiscriminatory reason. See, e.g., Pottenger v. Potlatch 18 Corp., 329 F.3d 740, 746 (9th Cir. 2003) (performance-related concerns were a legitimate 19 nondiscriminatory reason); Peters v. Shamrock Foods Co., 2006 WL 141620, *8 (D. Ariz. 20 2006), aff’d, 262 F. App’x 30 (9th Cir. 2007) (same). 21 If the employer can articulate a legitimate nondiscriminatory motive for the 22 challenged action, the plaintiff “must show that the articulated reason is pretextual either 23 directly by persuading the court that a discriminatory reason more likely motivated the 24 employer or indirectly by showing that the employer’s proffered explanation is unworthy 25 of credence.” Chuang, 225 F.3d at 1124. Ultimately, “[p]roof that the defendant’s 26 explanation is unworthy of credence is simply one form of circumstantial evidence that is 27 probative of intentional discrimination, and it may be quite persuasive.” Reeves v. 28 Sanderson Plumbing Prods., 530 U.S. 133, 147 (2000). “[W]hen the plaintiff relies on - 29 - Case 2:19-cv-05882-DWL Document 44 Filed 11/17/21 Page 30 of 37 1 circumstantial evidence, the evidence must be ‘specific and substantial’ to defeat the 2 employer’s motion for summary judgment.” Cohglan v. Am. Seafoods Co., LLC, 413 F.3d 3 1090, 1096 (9th Cir. 2005). 4 On the issue of pretext, the parties’ arguments are as follows. Defendants assert that 5 “[b]eyond her subjective belief about her performance, [Plaintiff] has no evidence to 6 establish that Defendants’ legitimate nondiscriminatory reason for their employment 7 decisions are pretext.” (Doc. 33 at 9.) Plaintiff responds that “[t]he primary evidence of 8 pretext in this case is Jason Tidd’s series of false or evasive statements about the April 9 2018 situation, as well as those recounted in the termination document that he drafted and 10 approved. Simply put, at every turn, Jason Tidd exaggerated or falsified every report about 11 Plaintiff.” (Doc. 40 at 10.) Plaintiff also alludes to Defendants’ alleged “failure to properly 12 document [their] actions and reasons for [their] decision to terminate an employee,” 13 “failure to follow the employer’s own policy regarding documentation and discipline,” and 14 other “evidence that the reason for a termination is incorrect or lacks a factual basis.” (Id. 15 at 10-11.) Defendants reply that “not only is her allegation false, but even if taken as true, 16 . . . evidence purporting to show that the supervisor’s reason for taking employment actions 17 were ‘exaggerated’ or even ‘objectively false’ is not sufficient to show pretext.” (Doc. 43 18 at 8.) Defendants further contend that “it is undisputed that Plaintiff hung up on a caller, 19 which . . . gave rise to her written warning, regardless of whether the individual was a 20 customer, noncustomer, authorized or non-authorized, as Mr. Tidd explained in the written 21 warning. . . . Plaintiff has not shown how . . . Mr. Tidd has somehow failed to follow 22 JPMC’s policies. The policies specifically allow for progressive steps to be skipped as 23 warranted.” (Id. at 8-9.) Additionally, Defendants contend that, “as to the October 2018 24 call, the material facts supporting the issues with Plaintiff’s handling of that call are, 25 likewise, undisputed. . . . The transcript is clear by Plaintiff’s party admissions that she 26 attempted to refuse to assist the caller, citing overtime concerns, and it was only at the 27 caller’s insistence, and at the threat of supervisor intervention, that Plaintiff eventually 28 aided the caller in her request.” (Id. at 9.) - 30 - Case 2:19-cv-05882-DWL Document 44 Filed 11/17/21 Page 31 of 37 1 At the outset, the Court observes that Plaintiff’s position relies on circumstantial, 2 not direct, evidence of pretext. Thus, Plaintiff must proffer “specific” and “substantial” 3 circumstantial evidence of pretext to survive summary judgment. Cohglan, 413 F.3d at 4 1096. Plaintiff’s theories of pretext can be grouped into two categories: (1) “failure to 5 follow the employer’s own policy regarding documentation and discipline”; and (2) “false 6 or evasive statements” that were “exaggerated or falsified” or simply “incorrect or 7 lack[ing] a factual basis.” (Doc. 40 at 10-11.) The Court will address each in turn. 8 Failure To Follow Policy. Plaintiff cites two Ninth Circuit cases, Earl v. Nielsen 9 Media Rsch., Inc., 658 F.3d 1108, 1117 (2011), and Diaz v. Eagle Produce Ltd. P’ship, 10 521 F.3d 1201, 1204 (9th Cir. 2008), in support of her claim that an inference of pretext 11 arises from Defendants’ failure to follow internal policies. (Id. at 10.) This argument fails 12 because it is rests on a faulty factual premise—there is no evidence from which a 13 reasonable juror could find that Defendants did, in fact, deviate from applicable internal 14 policies when pursuing discipline against her. For example, although Plaintiff accuses 15 Tidd of “insist[ing] upon a written warning when HR recommended coaching Plaintiff in 16 April 2018” (id.), the evidence in the record establishes that HR did not inform Tidd that 17 he was required to provide a coaching (rather than a written warning) based on the incident. 18 To the contrary, although HR identified a “stern” coaching of Plaintiff as one option, it also 19 advised that “if the consistent process is to place on a [written warning] with the first 20 incident, then we would want to be consistent with that.” (Doc. 40-1 at 336.) Tidd was 21 further instructed to “speak with NLM14 to ensure this is the process” and “[a]dvised if so, 22 then draft the [written warning] and send to [HR] for review and approval.” (Id.) Put 23 simply, Plaintiff does not provide evidence that Tidd violated company policy by issuing 24 a written warning based on the April 2018 incident, or even that HR felt Tidd was 25 overreacting by issuing a written warning. HR suggested either a stern coaching or, if 26 providing a written warning was the “consistent process” in Tidd’s department, to speak 27 28 14 Tidd testified that “NLM” refers to “line manager,” i.e., his own manager. (Doc. 40-1 at 212.) - 31 - Case 2:19-cv-05882-DWL Document 44 Filed 11/17/21 Page 32 of 37 1 with his manager and seek approval from HR. Plaintiff has not proffered any evidence that 2 Tidd failed to follow these steps. 3 Plaintiff’s only other example of a purported deviation from internal policy was 4 when Tidd was “aggressive in pushing for discipline in September 2018, when HR did not 5 feel comfortable with it.” (Doc. 40 at 10.) But as with the previous example, this claim is 6 belied by the record. The document of Tidd’s conversation with HR on September 20, 7 2018 reveals that Tidd gave a detailed account of his concerns about Plaintiff’s 8 performance, including coachings that occurred as recently as the previous day, and HR 9 asked if other coachings had been tracked. (Doc. 40-1 at 333.) Tidd responded that there 10 were only two managers at the time, so they had not been “as diligent with tracking 11 coachings.” (Id.) HR advised Tidd to keep coaching and tracking the coaching record and 12 ultimately “advised [it] did not feel comfortable moving to next step in corrective action 13 with only one coaching captured since placed on the WW in April.” (Id.) Tidd 14 “understood.” (Id.) As this summary makes clear, Tidd did not propose discipline of any 15 kind during the call and did not object to HR’s seemingly unprompted assertion that further 16 corrective action was inappropriate at the time. Nowhere in this document, or in Tidd’s 17 deposition, is there evidence that Tidd was—as Plaintiff argues—“aggressive in pushing 18 for discipline” during this call. (Doc. 40 at 10.) Indeed, Tidd did not pursue additional 19 discipline against Plaintiff in the immediate aftermath of this call but instead waited until 20 after Plaintiff was involved in two additional incidents in late October 2018 (the Foley call 21 and the incident in which Plaintiff made non-factual statements to a customer that could 22 violate the law). No reasonable juror could construe this incident as evidence of Tidd’s 23 failure to follow internal policy related to documentation and discipline. 24 Exaggerated, False, Or Incorrect Statements. Next, Plaintiff asserts that Tidd’s 25 exaggerated, false, or incorrect statements are circumstantial evidence of pretext. (Doc. 40 26 at 10-11.) Plaintiff refers generally to her summary judgment exhibits 4, 5, 8, and 14 as 27 “exaggerated or falsified” by Tidd. (Id.) Those exhibits are the April 2018 written 28 warning, the October 2018 RFT, HR notes about Plaintiff, and the transcript of Plaintiff’s - 32 - Case 2:19-cv-05882-DWL Document 44 Filed 11/17/21 Page 33 of 37 1 unemployment hearing. Plaintiff also points to “the false statement in the written warning 2 and Tidd’s mischaracterization of the October 2018 calls” as “incorrect or lack[ing] a 3 factual basis.” (Id. at 10-11.) 4 Plaintiff is correct that, as a legal matter, an inference of pretext may arise when an 5 employer furnishes false reasons for an adverse employment action. But it is not enough 6 to prove that a stated reason was false in fact—an inference of pretext arises only when an 7 employer was aware of the reason’s falseness and proffered it anyway. See, e.g., Reeves, 8 530 U.S. at 147 (“In appropriate circumstances, the trier of fact can reasonably infer from 9 the falsity of the explanation that the employer is dissembling to cover up a discriminatory 10 purpose. Such an inference is consistent with the general principle of evidence law that 11 the factfinder is entitled to consider a party’s dishonesty about a material fact as 12 ‘affirmative evidence of guilt.’”) (emphasis added); Westendorf v. West Coast Contractors 13 of Nevada, 712 F.3d 417, 425 (9th Cir. 2013) (Rawlinson, J., concurring in part and 14 dissenting in part) (“If the employee presents no evidence that the employer did not believe 15 its proffered justification, summary judgment in favor of the employer is warranted.”); 16 Coghlan v. Am. Seafoods Co. LLC., 413 F.3d 1090, 1097 (9th Cir. 2005) (“In many cases 17 where the evidence is sufficient for a rational trier of fact to conclude that the employer is 18 lying about its reason for firing or demoting the plaintiff, summary judgment will be 19 inappropriate on that basis alone because a jury could reasonably view the employer’s lie 20 as evidence of its guilt.”) (emphasis added); Villiarimo v. Aloha Island Air, Inc., 281 F.3d 21 1054, 1063 (9th Cir. 2002) (“[I]t is not important whether [Defendant’s proffered 22 justifications] were objectively false . . . . Rather, courts require that an employer honestly 23 believed its reason for its actions, even if its reason is foolish or trivial or even baseless.”) 24 (quotation marks omitted). 25 Because analytical energy is properly focused on the RFT—the clearest example of 26 JPMC’s “stated reasons for termination”—the Court will analyze each of the three stated 27 reasons to determine whether Plaintiff has proffered evidence that Defendants knew them 28 to be false. - 33 - Case 2:19-cv-05882-DWL Document 44 Filed 11/17/21 Page 34 of 37 1 Tidd first noted that Plaintiff “was placed on a written warning on (4/18/18) for 2 hanging up on a customer.” (Doc. 33-1 at 74.) It is undisputed that Plaintiff hung up on 3 someone, that Defendants’ QA team alerted Tidd of the hang-up, and that Plaintiff received 4 a written warning. (Id. at 67.) However, it is unclear whether the caller was a customer. 5 In her interview with HR, Plaintiff referred to the caller as a “customer” (id. at 86), but 6 during her deposition, she referred to the caller as a “noncustomer” (id. at 67), and 7 Plaintiff’s written warning only describes the caller as a “third party” (id. at 55). 8 Nevertheless, even assuming the caller was a non-customer, no reasonable juror could 9 conclude this episode serves as evidence of pretext. Even if Tidd incorrectly described the 10 April 2018 caller as a “customer,” a manager could reasonably discipline an employee for 11 hanging up on a caller, “irate” or not. Additionally, Tidd was responding to a referral from 12 QA, which shows that an independent observer (who is not accused of discrimination) 13 concluded that Plaintiff’s conduct during the call was improper before Tidd was even privy 14 to it. Finally, Plaintiff does not proffer any evidence that Tidd was aware the caller was a 15 non-customer but intentionally misrepresented the caller’s status as a pretext to discipline 16 her. 17 The next reference in the RFT is to Plaintiff’s October 29, 2018 coaching “for 18 calling POE numbers and possible UDAAP violations on the same loan number: telling 19 the customer if you pay right now you will not receive a 10% premium. This is a trigger 20 statement used to make a customer take action. However, it is not a factual statement.” 21 (Doc. 33-1 at 74.) Tidd asserts that the putative violation was “identified . . . by an external 22 third party to the situation. [Smith] brought it to my attention. . . . She listened to the call 23 during her [supervisor quality assurance], brought it to my attention . . . .” (Doc. 40-1 at 24 221.) 25 Because the parties fail to address this episode in their briefing, the Court will set 26 forth its understanding of what, according to the RFT, led to the October 29, 2018 coaching. 27 First, Tidd states that Plaintiff called a customer’s place of employment. In their motion, 28 Defendants assert that such calls are prohibited by company policy (Doc. 33 at 4), but - 34 - Case 2:19-cv-05882-DWL Document 44 Filed 11/17/21 Page 35 of 37 1 Plaintiff proffers evidence that “the customer had specifically authorized me to call him at 2 his POE which is not a policy violation.” (Doc. 40-1 at 6 ¶ 37.) 3 Second, Tidd mentions a “possible UDAAP violation.” (Doc. 33-1 at 74.) In brief, 4 when JPMC reaches a settlement with a customer, the customer is issued a “settlement in 5 full” letter. (Doc. 40-1 at 221-227.) That “SIF” letter contains a due date for payment. 6 (Id.) If the due date passes without full payment, JPMC applies a 10% premium to the 7 settled debt. (Id.) Only managers can waive the premium. (Id.) In his deposition, Tidd 8 asserted that Plaintiff was “advising [the client] that she could waive it if they paid right 9 now.” (Id. at 222.) Plaintiff’s counsel asked: “Well, you don’t—you don’t say in your 10 coaching that she used the word ‘waive,’ correct?” (Id.) Tidd responded, “I guess we 11 could wordsmith it any way you want; but at the end of the day, it says the same thing.” 12 (Id.) However, Plaintiff now submits evidence that she “simply informed this particular 13 customer that he could avoid that premium if he continued to make his previously-agreed 14 payments timely.” (Id. at 6 ¶ 38.) 15 Tidd’s deposition and Plaintiff’s declaration create a legitimate factual dispute about 16 whether “telling the customer if you pay right now you will not receive a 10% premium” 17 is inaccurate or otherwise violative of JPMC policy—a reasonable juror could view the 18 statement either as a promise that Plaintiff herself would waive the premium or as a 19 description of the customer’s savings if he adhered to his SIF letter. At summary judgment, 20 the Court must resolve this factual dispute in Plaintiff’s favor and find that her statement 21 to the caller was accurate and did not violate company policy. This finding, in turn, which 22 would make Tidd’s RFT statement to the contrary inaccurate. But Plaintiff, again, does 23 not proffer evidence that Tidd was misrepresenting his understanding of JPMC policy. 24 And it is uncontested that Smith—who is not accused of discrimination—raised the 25 putative violation to Tidd, which further undermines any suggestion that Tidd was lying 26 when he described the call as violative of company policy. 27 The final citation in the RFT is to Foley’s complaint, which was sent to Tidd on the 28 same day he gave the UDAAP coaching—October 29, 2018. It is undisputed that Tidd - 35 - Case 2:19-cv-05882-DWL Document 44 Filed 11/17/21 Page 36 of 37 1 accurately reproduced, nearly verbatim, Foley’s complaint in the RFT. (Compare Doc. 33- 2 1 at 74 with id. at 64.) Additionally, any reasonable juror would agree that the complaint 3 was “accurate,” as Tidd described it to be. After reviewing the transcript, it is inescapably 4 clear that Plaintiff took great pains to avoid helping Foley until Foley threatened to report 5 her behavior. (See generally Doc. 33-1 at 66-72.) 6 Plaintiff’s conduct during the call with Foley, standing alone, would serve as a 7 nondiscriminatory reason to discipline and terminate her that cannot be viewed as pretext. 8 First, the transcript of the call displays—with all due respect to Plaintiff—a flagrant lack 9 of interest in assisting customers. No reasonable juror could read the transcript otherwise. 10 As with the QA team’s referral of the April 2018 hang-up, Foley herself is not accused of 11 discriminating against Plaintiff, but was nevertheless so concerned about the interaction 12 that she filed a formal internal complaint. And Anuj Jain, who is also not accused of 13 discriminating against Plaintiff, described the call as “concerning” before it was forwarded 14 to Tidd for his review. (Doc. 33-1 at 63.) 15 There is a final reason why Plaintiff has not proved pretext: the temporal proximity 16 between Plaintiff’s termination and the Foley call. In Diaz v. Eagle Produce Ltd. 17 Partnership, 521 F.3d 1201 (9th Cir. 2008), the Ninth Circuit analyzed an age 18 discrimination claim. When discussing pretext, the Court noted the existence of “evidence 19 that [plaintiff] caused significant damage to [defendant’s] property over the course of 20 several years . . . [and a] February 2002 incident alone resulted in $10,000 in repairs. That 21 [manager] fired [plaintiff] the day after that incident leaves little doubt that the property 22 damage, rather than age, motivated [manager’s] decision.” Id. at 1214. Here, Plaintiff was 23 fired on the same day that Tidd received Foley’s complaint. 24 In sum, Defendants have proffered legitimate nondiscriminatory reasons for 25 Plaintiff’s discipline and termination. Plaintiff has, in turn, failed to proffer evidence from 26 which a reasonable juror could conclude those reasons were pretextual. Accordingly, 27 Defendants are entitled to summary judgment on Plaintiff’s Title VII claim. 28 … - 36 - Case 2:19-cv-05882-DWL Document 44 Filed 11/17/21 Page 37 of 37 1 C. Count Two 2 In Count Two of the complaint, Plaintiff asserts a racial discrimination claim under 3 42 U.S.C. § 1981 against JPMC and Tidd. 4 The “legal principles guiding a court in a Title VII dispute apply with equal force in 5 a § 1981 action.” Manatt v. Bank of Am., 339 F.3d 792, 797-98 (9th Cir. 2003). See also 6 EEOC v. Inland Marine Indus., 729 F.2d 1229, 1233 n. 7 (9th Cir. 1984) (“A plaintiff must 7 meet the same standards in proving a § 1981 claim that he must meet in establishing a . . . 8 claim under Title VII . . . .”). Because Plaintiff’s burden in establishing a § 1981 claim is 9 identical to or weightier than her Title VII burden,15 and she does not argue that one claim 10 would survive if the other should fail, Defendants are also entitled to summary judgment 11 on Plaintiff’s § 1981 claim. 12 Accordingly, 13 IT IS ORDERED that Defendants’ motion for summary judgment (Doc. 33) is 14 granted. 15 IT IS FURTHER ORDERED that the Clerk enter judgment accordingly and 16 terminate this action. 17 Dated this 16th day of November, 2021. 18 19 20 21 22 23 24 25 26 27 15 The Supreme Court recently held that plaintiffs bringing a § 1981 claim must plead 28 and prove that race was the but-for cause of discrimination; mixed-motive claims are not available. Comcast Corp. v. Nat’l Ass’n of Afr. Am.-Owned Media, 140 S. Ct. 1009 (2020). - 37 -