Wade v. Starbucks Corp. CA5 ( 2022 )

Filed 2/9/22 Wade v. Starbucks Corp. CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
MADDIE WADE,
F079838
Plaintiff and Appellant,
(Super. Ct. No. 18CECG02779)
v.
STARBUCKS CORPORATION et al., OPINION
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Fresno County. Kimberly
Gaab, Judge.
Peter Law Group, Arnold P. Peter, Eyal Farahan; Impact Fund, Lindsay Nako,
David S. Nahmias, for Plaintiff and Appellant.
Ehlert Hicks and Allison L. Ehlert for California Employment Lawyers
Association as Amicus Curiae on behalf of Plaintiff and Appellant.
LAMBDA Legal Defense & Education Fund, Sasha Buchert and Ethan Rice;
National Center for Lesbian Rights, Julie Wilensky and Asaf Orr, as Amicus Curiae on
behalf of Plaintiff and Appellant.
Sheppard, Mullin, Richter & Hampton, Tracey A. Kennedy, Brett D. Young, for
Defendants and Respondents.
-ooOoo-
Plaintiff Maddie Wade filed a discrimination, harassment, and wrongful
constructive discharge action against her former employer, Starbucks Corporation, and
former store manager, Dustin Guthrie. Wade alleged (1) Guthrie subjected her to
discrimination and harassment based on her gender identity after she informed him that
she had been diagnosed with gender dysphoria and was transgender and would be starting
a gender-affirming transition from male to female; and (2) she was forced to resign from
Starbucks as a result of Guthrie’s discriminatory and harassing conduct. The trial court
granted summary judgment in favor of Starbucks and Guthrie as to all of Wade’s claims.
Wade appealed. We affirm.
PROCEDURAL HISTORY
Wade filed the complaint underlying this action in the Fresno County Superior
Court on July 26, 2018. Wade’s complaint alleged (1) wrongful constructive termination
in violation of public policy, as to Starbucks; (2) discrimination on the basis of sex,
gender, gender identity, and/or gender expression in violation of the Fair Employment
and Housing Act (FEHA; Gov. Code, § 12940, subd. (a), et seq.), as to Starbucks; (3)
harassment on the basis of sex, gender, gender identity, and/or gender expression in
violation of FEHA, as to Starbucks and Guthrie; and (4) intentional infliction of
emotional distress (IIED), as to Starbucks and Guthrie. Wade’s complaint also sought
punitive damages.
Following substantial discovery, including a deposition of Wade spanning two
days and a deposition of Guthrie, defendants moved for summary judgment, or in the
alternative, summary adjudication, as to Wade’s claims and her request for punitive
damages. Guthrie’s motion as to the two causes of action against him and the claim for
punitive damages, was filed on March 7, 2019, and Starbucks’s separate motion as to all
the causes of action and the claim for punitive damages, was filed on March 28, 2019.
Wade filed oppositions to the motions on May 6 and 9, 2019, respectively; she attached a
2.
detailed personal declaration to both oppositions. Both defendants filed replies on June
6, 2019.
On June 11, 2019, the trial court held a hearing on the motions, having previously
issued a tentative ruling granting defendants’ motions for summary judgment on all four
causes of action. On July 3, 2019, the trial court issued its final order granting summary
judgment in favor of defendants on all of Wade’s claims. The court entered judgment for
defendants on July 19, 2019.
FACTS
On review of summary judgment, we view the facts in the light most favorable to
plaintiff as the losing party below. (Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879,
884, fn. 5.)
A. Wade Was Employed by Starbucks
Wade began working as a barista at a Starbucks store in Fresno, in October 2009.
Five years later, in 2014, she was promoted to shift supervisor. Wade transferred to a
different Starbucks store in November 2016. Her new store was located at the
intersection of Herndon and Milburn Avenues in Fresno.
In July 2017, Dustin Guthrie became the store manager at the Herndon and
Milburn Starbucks store. According to Wade, she and Guthrie quickly developed a
positive relationship with one another, and Wade considered Guthrie a “ ‘work friend.’ ”
Wade began to further develop her skills as a shift supervisor under Guthrie, and
she gave him several “thank you” notes and “on-the-spot cards” during the time they
worked together.1 Wade wrote sincere, positive comments in the cards because “in a lot
of ways, [Guthrie] was a good manager.” For example, Wade wrote Guthrie a note
stating: “I couldn’t ask for a better manager. I appreciate you to the fullest. Thanks for
1 Wade explained in her deposition that “on-the-spot cards” are used to congratulate
coworkers when “they do things right,” and to encourage them.
3.
everything – Matt.”2 In another note, Wade wrote: “I like your style and you are a
perfect fit for [the store] … I appreciate you – Matt.” Other notes state, “Thanks for
always doing what you can do to help,” “I’m happy to have you as our manager,” “You
are a great manager,” and “I appreciate you,” among other similar comments. Wade also
contributed to a “thank you” gift for Guthrie and inscribed a card as follows: “Hey, I
appreciate everything you’ve done for this store and the people in it. You are hands
down the best manager I have ever had an opportunity to work with in my entire
Starbucks [career]. Thank you for everything, [you’re] the best.” Wade told Guthrie that
she wanted to advance her career at Starbucks and aspired to be promoted to assistant
manager; Guthrie was generally supportive of Wade’s interest in further developing her
skills. Guthrie had offered to assist Wade in taking an assessment or undergoing training
for the assistant manager role.
B. Wade Was Diagnosed With Gender Dysphoria and Informed Guthrie
of Her Plan to Transition
On approximately October 1, 2017, Wade told Guthrie she had been diagnosed
with gender dysphoria and planned to transition to female. In a declaration attached to
her opposition papers, Wade noted: “I was born and lived as a male until late 2017, and I
was diagnosed with ‘gender dysphoria’ in or about October 2017.”
Wade was the first transgender individual Guthrie was aware of ever meeting, and
he had no idea what to expect when it came to Wade’s transition. The day after their
conversation, Guthrie told Wade “he was having a hard time wrapping his head around
the fact of transitioning.” But he told her that her positive impact on the store helped him
feel differently about her transition.
Wade did not provide Guthrie with many details during their conversation about
her plan to transition. Guthrie and Wade did, however, discuss accommodations,
2 Wade was formerly known as Matthew (“Matt”) Wade.
4.
including whether Wade wanted to change her shifts or adjust her responsibilities in order
to focus on her gender transition. Guthrie asked Wade to inform him as to time off
needed for doctor’s appointments or any other issues related to her transition, so he could
adjust her schedule accordingly. Guthrie was supportive during the October 2017
conversation in which Wade informed him she was planning to transition and told Wade
he wanted to help her through the process she was embarking on as best as he could.
Wade testified that, during her October 2017 conversation with Guthrie, she had
touched upon the question of her name as part of her transition. Wade suggested she be
called “Maddie,” but left the issue “open-ended” because it was “no big deal.” Wade
indicated to Guthrie that it would be fine “[i]f [he] would just refrain from calling [her]
Matt and male pronouns.” Wade did not present as female at work during her transition.
Wade explained in her deposition: “I didn’t expect anybody to just convert to calling me
‘Maddie,’ especially when I didn’t look like Maddie yet.” Wade further noted in her
deposition: “So all I asked was for people to try to avoid calling me Matt, if possible, and
try to avoid male pronouns. That was the only thing I asked of anybody there.”
Almost the entire time that Wade worked at the Herndon and Milburn Starbucks,
after beginning her transition, Wade used the name “Matt” on her nametag at the store;
toward the end of her time there, Wade used the name “Maddie” on her nametag. She
also used her given legal name to sign Starbucks work-related paperwork. To the extent
Wade wrote on-the-spot notes and cards to Guthrie after beginning her transition—which
Wade said was “probably” the case—she signed those “Matt” as well. Wade explained
in her deposition why she signed the cards in that way; she said, “that’s what I was going
by at that time, as far as my legal name.” Wade added: “I understood that – you know, it
was kind of weird at the time to expect anybody to call me Maddie, but I just [p]referred
that they not use male pronouns or call me Matt.”
5.
C. As Wade Proceeded With Her Gender Transition, Her Interactions
With Guthrie Changed and Became More Limited
As Wade’s transition proceeded, Wade began to take time off, and often needed to
leave prior to the end of her assigned shifts, to attend to matters connected to her
transition. Wade would have a barista cover for her in her absence; this was not ideal for
the store’s operations as baristas are not qualified to perform all functions of a shift
supervisor. Guthrie spoke to Wade about these issues and explained he wanted to move
her to later shifts so she could complete her shifts and scheduled hours. In the weeks or
early months following the beginning of Wade’s transition, Guthrie kept Wade’s
scheduled hours mostly the same after factoring in her scheduled time off, but
experimented with changing her scheduled starting and ending times to later in the day.
Wade did not object to the change in her schedule initially; when she complained after a
few weeks, Guthrie “stopped having her scheduled to close.”
As for the number of hours Wade worked weekly, Guthrie testified at deposition:
“I did my best to schedule [Wade] as many hours as I possibly could. There is always a
fluctuation in business.” Guthrie testified that, as reflected in time, attendance, and
scheduling records, after the holiday season ended, he reduced Wade’s hours, based on
the store’s changed business needs. Guthrie noted he reduced the hours of other
employees at the same time. Wade testified at deposition she had been working, on
average, approximately 36 to 38 hours per week leading up to her transition. However,
several weeks after her October 1, 2017 conversation with Guthrie, her scheduled hours
dipped under 30 hours a week and remained under 36 hours per week over the next few
months. The lowest number of hours that Wade worked in a week during that period was
23 hours. Wade did not complain to Partner Resources (Starbucks’s human resources
department) about her scheduled hours.3 At another point in her deposition, Wade noted
that sometime around February 2018, her hours went up again. Wade also contended in a
3 Starbucks employees are internally referred to as “partners.”
6.
declaration attached to her opposition papers that Guthrie did not bring up or follow
through on the issue of an assessment for an assistant manager position.
Wade testified that Guthrie treated her “[u]nfairly” in the months after she told
him she was transitioning. Wade described Guthrie as someone who was often in a
grumpy mood with everyone in the store. Guthrie would “leer” at, or give bad looks to,
homeless people in the store and would also be short with, and give dirty looks to, all
store employees, when he was in bad mood. Wade referred to Guthrie’s bad looks or
dirty looks as “leering.” Guthrie would be in a bad mood “probably two or three times a
week,” and since he wore “his emotions on his sleeve,” others would suffer for it. “If [an
employee] got on his bad side during one of those times, [the grumpiness] was directed
towards [that employee].” Wade was not on the receiving end “so much.” However,
Wade noted: “I got some pretty dirty looks several times, and I believe that a lot of
things [Guthrie] said [were] inappropriate, including [to] me and including things that he
[said] to other people as well.” For example, Guthrie would threaten to write up “a whole
staff of people on the floor for leaving cup sleeves and cup lids on a counter, slightly in a
disarray order.” In fact, Guthrie generally had “a bad demeanor while talking to people.”
“If he was upset about anything, even that had nothing to do with the store, he would
come in and have that showing to everybody as well.”
Guthrie and Wade would work together at the store “usually at least four days a
week … 20, 30 minutes apiece a day,” adding up to “probably two, three hours, in total, a
week.” They also “worked on the floor together pretty often during peak hours,” a two-
hour window. As Wade’s transition proceeded, in addition to “cutting [her] hours,”
Guthrie “interacted with [her] less.” Wade noted: “We had – went from communicating
nearly every day to communicating maybe once a week.” She added: “I mean, we would
talk on average before that, at least for 30, 40 minutes a day just in passing, and certain
information and stuff like that. After that, I was lucky if I were to talk to him for 20
minutes in a week.” Wade also described an incident when Guthrie was upset over the
7.
way a mop bucket had been tossed in a sink. Wade explained: “It was about a mop
bucket that was being stored upside down. He had a thing, saying that he was mad at
people for throwing the mop bucket in there and not putting it – placing it in there nicely,
I guess.” Guthrie was “complaining about it” and “threatening to get people in trouble.”
Wade testified: “He threatened to write me up, and my whole crew, for that night.” One
time Guthrie asked Wade to “help find out a solution to a problem,” but then told her,
“ ‘How does that help?’ ”
In light of Guthrie’s attitude and demeanor, Wade asked him about her
performance, but Guthrie said she was “doing fine.” In December 2017, Wade asked
Guthrie for confirmation that she was meeting expectations. Guthrie assured her she was
meeting expectations and confirmed he had no complaints about her performance. In late
December 2017, or early January 2018, Guthrie asked whether Wade wanted to take a
step back from her career goals to focus on her transition. Wade responded she was
ready for both and wanted more work hours, to which Guthrie responded, “okay, we’ll
figure it out.” In late January or early February 2018, Wade wrote Guthrie a letter in
which she again sought reassurance about her performance and suggested it might be best
for her to work fewer hours (although she did not really want that outcome); Guthrie did
not respond to the letter.
While Wade wore, for most of her time at Guthrie’s store, a nametag reflecting the
name, “Matt,” indicating she was going by that name at work, many, but not all, of her
coworkers referred to her as Maddie. Wade testified at deposition that Guthrie never
referred to her as “Maddie,” or used female pronouns to refer to her.
Wade noted at deposition that she had great coworkers, who were “really
supportive” of her transition. Wade also confirmed that she had never heard Guthrie
make any anti-transgender statements at any point before her October 1, 2017 discussion
with him about beginning her transition. Similarly, Guthrie never made any anti-
transgender comments at any point after Wade began her transition. Wade also testified
8.
she had never heard from anybody else that Guthrie made any type of negative comments
about her and her transition. Wade confirmed that Guthrie never touched her
inappropriately. Guthrie also never suspended her or gave her any corrective action.
Wade said at deposition that Guthrie was the only person at Starbucks who
mistreated her during her employment (although she had other types of complaints about
other Starbucks personnel). Wade reiterated that Guthrie was the only person at
Starbucks who treated her differently because of her gender identity. Wade demurred
when asked whether she would “describe any of [Guthrie’s] conduct as outrageous”;
rather, she said, “there was times that he did things unprofessionally.” When asked
whether Guthrie’s conduct could be described as “extreme,” Wade said yes, and pointed
to the incident when Guthrie threatened to write up “the whole staff on the floor about a
mop bucket being put into the sink in a way that he said was wrong when it was correct.”
Wade also pointed to the incident when Guthrie had found “lids or something stored
incorrectly somewhere on the side of a thing, [and had said] if I ever find this again, the
whole staff is going to get written up.” When pressed for any other examples of extreme
behavior by Guthrie, Wade responded, “just [his] facial expressions, leering, having a bad
attitude towards situations he finds undesirable.”
D. Starbucks’s “Best Practices” Guidelines Regarding Transgender
Employees
After learning of Wade’s plans to transition, Guthrie sought guidance from his
district manager Alissa S. regarding Wade’s situation. Alissa sent Guthrie recently
released “best practices” guidelines for supporting transgender employees: Workplace
Guidelines for Supporting Transgender Partners (workplace guidelines or guidelines).
Guthrie told Alissa that Wade had not discussed specifics “to really set anything in
motion,” but had wanted to make Guthrie aware of her situation and Guthrie was doing
the same as to Alissa. Guthrie recollected he and Wade verbally discussed her needs,
9.
including Wade’s requests for time off for appointments and patience through her
transition process.
The stated purpose of Starbucks’s workplace guidelines is to “support Starbucks
culture of belonging, diversity and inclusion, and provide best practice information on
how to support a partner who is going through a gender transition in the workplace,” as
“discrimination against transgender individuals is strictly prohibited.”
The workplace guidelines define terms such as “gender expression,” “gender
identity,” “transgender person,” “gender transition,” and “known as” name. With regard
to “known as name,” the guidelines state: “A partner may commonly use and be known
by another name or nickname rather than the legal name. When provided by the partner,
some of Starbucks systems will display the ‘known as’ name for the partner’s
convenience, including the Point of Sale system, the Partner Hub, the partner card, etc. A
partner does not need a legal name change or any official documentation to change the
‘known as’ name.” The guidelines explain: “To submit a ‘known-as’ name, partners
may access My Partner Info (MPI) and edit their own personal information.” The
guidelines add: “Managers should assist partners when new names are needed on
documentation or other identifiers as the result of a name change, such as helping the
partner secure a new access badge, name badge, desk name plate, etc.” The guidelines
also direct all employees to contact the Partner Contact Center at a phone number
provided, with any questions on updating names.
The guidelines suggest that partners undergoing a transition in the workplace
should engage various “stakeholders to help plan and support the transition, such as
Partner Resources, a representative from Starbucks Pride Alliance Network, or other co-
workers or key contacts,” and to “[b]e prepared to help educate others, including the
supervisor, on what to expect and specific needs.” The guidelines also suggest that
partners undergoing a transition in the workplace should “[p]lan transition details” with
10.
the supervisor, including “[w]hat changes will be needed for records, systems and
signage, and when.”
Similarly, the guidelines provide “best practice ideas for managers to consider in
supporting a partner who is undergoing a gender transition in the workplace.” Managers
may consider, “[w]ith the [affected] partner’s input, develop[ing] a plan with the partner
to support the transition, that may include: [¶] [d]ate of the transition, e.g., the first day
of the change in gender presentation, name and pronoun usage[;] [¶] [p]referred
pronouns[;] [¶] … [a]ny planned time off for medical treatment, if known[;] [¶] [w]hat
changes will be needed for records, systems and signage, and when to submit requests[;]
[¶] … [w]hether an educational training session … before the date of transition may be of
benefit.” The guidelines also suggest that, after the transition has occurred, managers
“[l]ead by example” and “use the partner’s new name and pronouns in all official and
unofficial communications.”
At deposition, Wade noted with respect to Starbucks’s policies regarding
transgender employees: “They do have some bit of guidelines. They [also] offer
additional coverage when it comes to surgical procedures, things like that. And it’s an
inclusive workplace, so yeah. They – they do protect transgender individuals at
Starbucks.”
E. Wade Transferred From Guthrie’s Store and Took a Leave of Absence
for Facial Surgery
In late January or early February 2018, Wade talked to Joy G., the manager of a
Starbucks store at Barstow and Blackstone Avenues, about transferring to Joy’s store.4
Around mid-February 2018, Wade’s transfer request was approved by all concerned,
including Guthrie, Joy, and the district manager. Wade had discussed her transition with
4 The record reflects that the name of the manager of the Starbucks store at Barstow
and Blackstone Avenues was Joy H. However, since the parties and the trial court refer
to Joy H. as Joy G., so do we.
11.
Joy, who was supportive and “backed” Wade’s decision to transfer. Joy approved
Wade’s transfer even though Wade planned to immediately take, and upon the transfer
taking effect did take, an extended leave of absence for facial feminization surgery
related to her transition.
Wade’s transfer to the Barstow and Blackstone Starbucks store took effect on
March 14, 2018. Wade went on leave from March 11, 2018 to May 7, 2018; her leave
included an initial two weeks of personal leave followed by six weeks of medical leave.
Prior to her transfer, on January 25, 2018, Wade had texted Guthrie, “Thanks Dustin, you
are awesome. I’m happy to be part of this team as well. I have never seen a store on par
with what we have here.” On Wade’s last day of work at the Herndon and Milburn store,
Guthrie organized a small send-off gathering and bought a cake for Wade. While Wade
was on her leave of absence, Guthrie organized a store celebration dinner; he invited
Wade to the dinner with him and her former coworkers. Wade accepted the invitation
and attended the event.
F. Wade Returned to Work After Her Leave of Absence and Resigned
Three Weeks Later
Wade returned to work from her leave in early May 2018 and resigned three
weeks later. About one week after she returned from leave, Wade asked Joy to set up a
meeting with the new district manager, Tatiana S., about Guthrie’s alleged mistreatment
of Wade. Joy reached out to Tatiana on Wade’s behalf but also suggested Wade speak
with Guthrie directly, a suggestion that Wade declined. Tatiana contacted Wade via text
message to set up a meeting. Wade responded with her availability, but Tatiana did not
get back to her right away. When Wade did not hear back from Tatiana for about one
week, she abruptly resigned, without notice, on June 5, 2018. Wade acknowledged she
had not attempted to contact another Starbucks representative, such as Partner Resources
(Starbucks’s human resources).
12.
Wade was happy with her coworkers at the new store but was unhappy with the
way Joy ran the store and handled various administrative issues; the store staff “had made
several complaints about [Joy]” up the chain, even before Wade got there. Wade
explained, in her deposition and in her subsequent declaration, the reasons for her
resignation: (1) Joy had suggested Wade talk to Guthrie and also contacted the new
district manager, Tatiana, on Wade’s behalf, but Wade, who declined to talk to Guthrie,
was not able to promptly meet with Tatiana to discuss her concerns about Guthrie; (2)
Joy ignored company policy on certain administrative matters unrelated to Wade’s
transgender status (for example, Joy did not have a proper protocol for employees to
access the store’s safes and had not fixed a broken store alarm system); (3) Wade had
“accumulated stress,” including from her ongoing and “partial” recovery from “facial
feminization surgery”; and (4) Joy brushed off concerns brought to her attention about
issues in the store, none of which pertained to any misconduct by Starbucks employees
(along with raising various administrative concerns, Wade had complained about the
behavior of some customers who had referred to her as “sir” and “man”).
G. After Wade’s Employment Ended, She Became Aware of Social Media
Posts Made by Guthrie That Reflected Conservative Social and
Political Views As Well As Disparaging Treatment of Transgender
Issues
Wade attached, to her complaint, approximately 10 social media posts that Guthrie
had made over the course of several years, ending in November 2017. The posts covered
many political topics, including gender identity issues. Wade testified she was
completely unaware of Guthrie’s social media accounts and posts until after her
employment with Starbucks had ended. After Wade resigned from Starbucks, Wade’s
boyfriend, in June 2018, found and showed her the posts. Wade testified Guthrie never
made any comments to her at work along the lines of those reflected in the social media
posts.
13.
The posts at issue were mostly tweets or memes and political images that Guthrie
reposted on his own social media accounts. For example, on October 9, 2014, Guthrie
tweeted: “Gender is not now, nor has it ever been a preference.” On February 14, 2016,
Guthrie posted three tweets or memes deriding the former Olympian and transgender
public figure, Caitlyn Jenner, using her prior male name; one meme questioned whether
Jenner was a woman and another tweet or meme observed Jenner “just wanted to cross
dress without being judged.” On September 21, 2017, Guthrie posted a meme consisting
of an image of John Wayne superimposed with the following statement: “Cutting off
your pecker doesn’t make you a woman[.] It just makes you a guy that cut off his damn
pecker.” (Unnecessary capitalization omitted.) On November 29, 2017, Guthrie
retweeted a political meme about “leftist logic” that mocked the assertedly“leftist”
notions that “men are inherently dangerous, and women are better, and men can be
women, and we should let men in the women’s room, and women shouldn’t carry guns
because only police should have them, and police are racist lunatics who murder unarmed
civilians in broad daylight.” (Unnecessary capitalization omitted.) There were other
tweets and posts in a similar vein.
Guthrie described the social media posts as “a sick joke that [he] shared.”
Guthrie’s social media use was part of his “personal life” and Guthrie did not make the
posts to offend transgender persons; it never crossed Guthrie’s mind “specifically that a
Starbucks employee would see [them].”
H. Wade’s Assessment of the Emotional Impact She Suffered
Wade described the emotional toll of Guthrie’s alleged conduct as follows: “Well,
I mean, it took away all of my security for transition. It took away all of my income. I
have a car that I – I can’t make payments on … I had to put, basically, my life on the
sidelines. As well as, you know, I lost all my medical care … [and] … my therapist.…
And I also missed out on my surgery revisions, because I lost my coverage. So now I’m
going to have to pay for another surgery instead of it being totalled [sic] into what I
14.
already paid to them.” Wade added: “I’ve been struggling with a lack of self-confidence
since then.… [¶] … I’ve still been quite anxious and depressed.” Asked to elaborate on
any emotional distress she suffered, Wade stated: “Anxiety. I mean, I – lack of – kind of
lost some confidence. I mean, I lost my job essentially and kind of my ability to be able
to work in a customer-facing job, pretty much.” Wade testified that around the time she
resigned, she had obtained a referral for work stress therapy from her gender therapist but
did not actually seek the therapy because she resigned and did not have insurance.
DISCUSSION
I. Summary Judgment: Standard of Review
Any party may move for summary judgment in an action if it is contended that the
action has no merit. (Code Civ. Proc., § 437c, subd. (a).)
“Summary judgment is granted when there is no triable issue as to any material
fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc.,
§ 437c, subd. (c).) This court reviews de novo the trial court’s decision to grant summary
judgment and we are not bound by the trial court’s stated reasons or rationales.
[Citation.] [¶] In reviewing a motion for summary judgment, we accept as undisputed
fact only those portions of the moving party’s evidence that are uncontradicted by the
opposing party. In other words, the facts alleged in the evidence of the party opposing
summary judgment and the reasonable inferences that can be drawn therefrom are
accepted as true.” (Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997,
1001 (Hersant).) “We liberally construe the evidence in support of the party opposing
summary judgment and resolve doubts concerning the evidence in favor of that party.”
(Conroy v. Regents of University of California (2009) 45 Cal.4th 1244, 1249-1250.)
“[F]rom commencement to conclusion, the party moving for summary judgment
bears the burden of persuasion that there is no triable issue of material fact and that he is
entitled to judgment as a matter of law. That is because of the general principle that a
party who seeks a court’s action in his favor bears the burden of persuasion thereon. (See
15.
Evid. Code, § 500.) There is a triable issue of material fact if, and only if, the evidence
would allow a reasonable trier of fact to find the underlying fact in favor of the party
opposing the motion in accordance with the applicable standard of proof…. [A] plaintiff
bears the burden of persuasion that ‘each element of’ the ‘cause of action’ in question has
been ‘proved,’ and hence that ‘there is no defense’ thereto. (Code Civ. Proc., § 437c,
subd. (o)(1).) A defendant bears the burden of persuasion that ‘one or more elements of’
the ‘cause of action’ in question ‘cannot be established,’ or that ‘there is a complete
defense’ thereto. (Id., § 437c, subd. (o)(2).)” (Aguilar v. Atlantic Richfield Co. (2001) 25
Cal.4th 826, 850, fns. omitted.)
“[S]ummary judgment law in this state [no] longer require[s] a defendant moving
for summary judgment to conclusively negate an element of the plaintiff’s cause of
action…. All that the defendant need do is to ‘show[] that one or more elements of the
cause of action … cannot be established’ by the plaintiff. (Code Civ. Proc., § 437c, subd.
(o)(2).)” (Aguilar v. Atlantic Richfield Co., supra, at p. 853, fn. omitted.)
II. Wade’s Wrongful Constructive Discharge Claim Against Starbucks
A. Applicable Legal Framework
“Employment relationships are generally terminated by resignation or discharge.
[Citation.] An employee voluntarily severs the relationship by resignation; the employer
does so by actual discharge.” (Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238,
1244 (Turner).) “Actual discharge carries significant legal consequences for employers,
including possible liability for wrongful discharge. In an attempt to avoid liability, an
employer may refrain from actually firing an employee, preferring instead to engage in
conduct causing him or her to quit. The doctrine of constructive discharge addresses
such employer-attempted ‘end runs’ around wrongful discharge and other claims
requiring employer-initiated terminations of employment.” (Ibid.)
“Constructive discharge occurs when the employer’s conduct effectively forces an
employee to resign. Although the employee may say, ‘I quit,’ the employment
16.
relationship is actually severed involuntarily by the employer’s acts, against the
employee’s will. As a result, a constructive discharge is legally regarded as a firing
rather than a resignation.” (Turner, supra, 7 Cal.4th at pp. 1244-1245.) “Under the
cases, an employee cannot simply ‘quit and sue,’ claiming he or she was constructively
discharged. The conditions giving rise to the resignation must be sufficiently
extraordinary and egregious to overcome the normal motivation of a competent, diligent,
and reasonable employee to remain on the job to earn a livelihood and to serve his or her
employer. The proper focus is on whether the resignation was coerced, not whether it
was simply one rational option for the employee.” (Id. at p. 1246.) “ ‘There appears to
be no disagreement [in the cases] that one of the essential elements of any constructive
discharge claim is that the adverse working conditions must be so intolerable that any
reasonable employee would resign rather than endure such conditions.’ ” (Id. at p. 1247.)
“The essence of the test is whether, under all the circumstances, the working
conditions are so unusually adverse that a reasonable employee in plaintiff’s position
‘ “ ‘would have felt compelled to resign.’ ” ’ ” (Turner, supra, 7 Cal.4th at pp. 1247,
1248 [“[T]he cases are in agreement that the standard by which a constructive discharge
is determined is an objective one—the question is ‘whether a reasonable person faced
with the allegedly intolerable employer actions or conditions of employment would have
no reasonable alternative except to quit.’ ”].) Finally, “[a] constructive discharge is the
practical and legal equivalent of a dismissal—the employee’s resignation must be
employer-coerced, not caused by the voluntary action of the employee or by conditions or
matters beyond the employer’s reasonable control.” (Id. at pp. 1248, 1250 [“a wrongful
discharge claim may prevail only if an employee can show the employer, or those
representing the employer, either created or knowingly permitted working conditions to
remain intolerable”].)
Our Supreme Court summed up the law of constructive discharge as follows: “In
order to establish a constructive discharge, an employee must plead and prove, by the
17.
usual preponderance of the evidence standard, that the employer either intentionally
created or knowingly permitted working conditions that were so intolerable or aggravated
at the time of the employee’s resignation that a reasonable employer would realize that a
reasonable person in the employee’s position would be compelled to resign. [¶] For
purposes of this standard, the requisite knowledge or intent must exist on the part of
either the employer or those persons who effectively represent the employer, i.e., its
officers, directors, managing agents, or supervisory employees.” (Turner, supra, 7
Cal.4th at p. 1251.) Our Supreme Court further held: “Standing alone, constructive
discharge is neither a tort nor a breach of contract, but a doctrine that transforms what is
ostensibly a resignation into a firing. Even after establishing constructive discharge, an
employee must independently prove a breach of contract or tort in connection with
employment termination in order to obtain damages for wrongful discharge.” (Ibid.)
B. Background: Trial Court’s Ruling
The trial court found there was no triable issue of material fact as to Wade’s
wrongful constructive termination claim and granted Starbucks’s motion for summary
judgment as to that claim. The trial court stated:
“When asked why she resigned, plaintiff said: (1) she was not able to meet
with Tatiana [S.]; (2) [Joy] ignored company policy on several issues (none
relating to plaintiff’s alleged mistreatment regarding her gender identity);
(3) plaintiff had accumulated stress that resulted from her recovery from
facial feminization surgery; and (4) [Joy] brushed off concerns brought to
her attention by employees (again, none relating to plaintiff’s alleged
mistreatment). Plaintiff did not resign due to any mistreatment by
coworkers at her new store. Rather, plaintiff disagreed with how [Joy] ran
her store and felt she could not work in such an environment.
“As stated in Turner[, supra, 7 Cal.4th 1238], constructive discharge
occurs when working conditions were so intolerable or aggravated ‘at the
time of the employee’s resignation that a reasonable employer would
realize that a reasonable person in the employee’s position would be
compelled to resign.’ ([Id.] at [p.] 1251.) Certainly[,] the history of what
plaintiff experienced over time has an impact and is relevant. But, in this
case, Guthrie is the only person plaintiff alleges to have mistreated her in
18.
any way. Starbucks honored plaintiff’s request to be removed from Guthrie
in granting her request to transfer to [Joy’s] store. Plaintiff left Guthrie and
his store March 11, 2018. Plaintiff was then on leave for eight weeks, and
returned to work at a new location, free of Guthrie. Plaintiff resigned three
weeks later after experiencing difficulties with the way the Barstow
location was managed. Accordingly, about 11 weeks went by between
plaintiff’s successful removal of herself from the one person who
purportedly discriminated against her and her decision to end her
employment with Starbucks. Plaintiff fails [to] raise a triable issue as to
whether her working conditions were so intolerable ‘at the time of [her]
resignation that [she] would be compelled to resign.’ ([Id.] at p. 1251.)
“Moreover, an employee’s ‘resignation must be employer-caused[;]’
thus, the employer ‘must know about [the intolerable working conditions]
and fail to remedy the situation in order to force the employee to resign.’
([Turner, supra, 7 Cal.4th] at pp. 1249-1250.) To the extent that the
working conditions under Guthrie were intolerable, Starbucks remedied the
situation by granting plaintiff’s request to transfer. Eleven weeks passed
between the last time plaintiff worked under Guthrie and her abrupt
resignation.
“Additionally, the evidence shows that the conditions at Guthrie’s
store were not so intolerable. There was testimony of some ‘leering’ and
intimidating behavior by Guthrie, but this was directed at all employees,
not just plaintiff. Plaintiff’s main problem with Guthrie was his failure to
use the proper pronouns based on plaintiff’s gender identity. While
plaintiff did ask Guthrie and other employe[e]s to call her Maddie and
refrain from using male pronouns, plaintiff herself describes an equivocal
request. She testified, ‘I left it open-ended because I don’t want to make
anybody feel like I’m trying to force them to call me something. So I asked
that, respectfully, I be called Maddie, if that’s okay. If not, no big deal. If
you would just refrain from calling me Matt and male pronouns.’
[Citation.] As plaintiff describes the request, the court cannot conclude that
this was a request that, if not honored, would result in an intolerable or
hostile work environment. [¶] … [¶]
“Finally, plaintiff’s communications during her transitioning period,
during which she was allegedly harassed by Guthrie, indicate that the
atmosphere was not intolerable. On January 25, 2018, co-worker Zaire [D.]
texted Guthrie in a group text, ‘Dustin your [sic] awesome! Nobody’s
perfect but all you can do is try. No other team I rather be on! Thank you
Dustin for all your hard work and being there for us all.’ Plaintiff replied,
‘agreed, I finally got a chance to sit down and read this. Thanks Dustin you
are awesome. I’m happy to be a part of this team as well. I have never
19.
seen a store on par with what we have here.’ [Citation]. Plaintiff’s own
words show that Guthrie’s workplace conduct was not intolerable.”
C. Analysis
Wade contends the trial court erred in granting summary judgment as to her
wrongful constructive discharge claim because there are triable issues of material fact
with respect to this claim. We conclude no rational fact finder could find that, under all
the circumstances, Wade’s working conditions at Starbucks were “so intolerable or
aggravated at the time of [her] resignation” that “a reasonable person in [her] position
would be compelled to resign.” (Turner, supra, 7 Cal.4th at p. 1251.) Accordingly, we
affirm the trial court’s disposition as to Wade’s wrongful constructive discharge claim.
In light of the record, it is undisputed that Wade testified the only Starbucks
employee who “actually mistreat[ed]” her during her employment was Guthrie. Further,
it is undisputed that Wade requested and was granted a transfer to a different Starbucks
store than the one managed by Guthrie; was permitted to take an eight-week leave during
which she underwent facial feminization surgery; and thereafter returned to work at the
new Starbucks store (one not managed by Guthrie). Wade admittedly did not experience
any alleged harassment by the manager or employees at the new store (albeit she was
unhappy with the management style of her new store manager, Joy G., and had various
complaints about her in that context). Thus, during approximately the last three months
of her employment, Wade did not work with the one person who allegedly mistreated her.
Indeed, Wade explained she resigned due to disagreements regarding how her new store
manager operated the store and because she was unable to promptly meet with the new
district manager to discuss Guthrie’s alleged misconduct. Joy, the manager of the store to
which Wade transferred, had been supportive of Wade in their discussions regarding
Wade’s transfer and, once Wade returned to work, reached out to the district manager on
Wade’s behalf. The district manager, in turn, promptly made an initial contact with
20.
Wade but a meeting had not yet been scheduled. In the meantime, there was no prospect
Wade would be required to interact with Guthrie in the workplace ever again.
Here, “under all the circumstances,” Wade’s working conditions were not so
intolerable “at the time of [her] resignation” that a reasonable person in her position
would be compelled to resign. (Turner, supra, 7 Cal.4th at pp. 1247, 1248, 1251.) Since
no reasonable finder of fact could so conclude, there was no triable controversy as to
whether Wade was constructively discharged and, in turn, the trial court properly granted
summary judgment as to Wade’s wrongful constructive discharge claim. We are not
persuaded to the contrary by Wade’s contentions on appeal.
III. Wade’s Discrimination Claim Against Starbucks
A. Applicable Legal Framework
FEHA prohibits discrimination in compensation or in terms, conditions, or
privileges of employment because of “race, religious creed, color, national origin,
ancestry, physical disability, mental disability, medical condition, genetic information,
marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or
veteran and military status.” (Gov. Code, § 12940, subd. (a); McCaskey v. California
State Automobile Assn. (2010) 189 Cal.App.4th 947, 979 (McCaskey) [“FEHA makes it
unlawful to take adverse action toward an employee ‘because of’ his or her membership
in a protected classification.”]; Heard v. Lockheed Missiles & Space Co. (1996) 44
Cal.App.4th 1735, 1748 [“An employer will be liable for intentional discrimination if it is
shown that its employment decision was premised upon an illegitimate criterion.”].) “A
claim asserting a violation of this provision is a ‘disparate treatment’ claim.” (McCaskey,
supra, at p. 979.) The elements of such a claim have been identified as “ ‘(1) the
employee’s membership in a classification protected by the statute; (2) discriminatory
animus on the part of the employer toward members of that classification; (3) an action
by the employer adverse to the employee’s interests; (4) a causal link between the
21.
discriminatory animus and the adverse action; (5) damage to the employee; and (6) a
causal link between the adverse action and the damage.’ ” (Ibid.)
In many disparate treatment cases, especially those where the employer seeks
summary judgment, the primary elements in serious contention tend to be “the existence
of discriminatory animus and a causal link between it and the challenged action.”
(McCaskey, supra, 189 Cal.App.4th at p. 979.) “Proof of these elements ‘is likely to
depend on circumstantial evidence, since they consist of subjective matters only the
employer can directly know, i.e., his attitude toward the plaintiff and his reasons for
taking a particular adverse action.” (Ibid.) As discussed below, the courts have therefore
fashioned special rules for adjudicating employment discrimination claims both at trial
and in the context of summary judgment.
1. Standards Applicable to Discrimination Claims at Trial
“Because of the similarity between state and federal employment discrimination
laws, California courts look to pertinent federal precedent when applying our own
statutes.” (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354 (Guz).) “ ‘California
has adopted the three-stage burden-shifting test established by the United States Supreme
Court for trying claims of [employment] discrimination….’ [Citation.] [¶] ‘This so-
called McDonnell Douglas test reflects the principle that direct evidence of intentional
discrimination is rare, and that such claims must usually be proved circumstantially.
Thus, by successive steps of increasingly narrow focus, the test allows discrimination to
be inferred from facts that create a reasonable likelihood of bias and are not satisfactorily
explained.’ ” (Wills v. Superior Court (2011) 195 Cal.App.4th 143, 159 (Wills); see
McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792; see also Mixon v. Fair
Employment & Housing Com. (1987) 192 Cal.App.3d 1306, 1317 [“In most cases, the
complainant will be unable to produce direct evidence of the employer’s intent.
Consequently certain rules regarding the allocation of burdens and order of presentation
22.
of proof have developed in order to achieve a fair determination of ‘the elusive factual
question of intentional discrimination.’ ”].)
“At trial, the McDonnell Douglas test places on the plaintiff the initial burden to
establish a prima facie case of discrimination.” (Guz, supra, 24 Cal.4th at pp. 354-355.)
“The elements of a prima facie case of unlawful discrimination vary depending upon the
facts.” (Cucuzza v. City of Santa Clara (2002) 104 Cal.App.4th 1031, 1038 (Cucuzza);
McCaskey, supra, 189 Cal.App.4th at p. 979 [components of prima facie case of
discrimination “vary with the nature of the claim”].) Generally, the plaintiff can meet his
or her burden of establishing a prima facie case of discrimination by presenting evidence
that demonstrates, even circumstantially or by inference, that (1) he or she belongs to the
relevant protected classes or was perceived as belonging to them; (2) he or she was
performing his or her job satisfactorily; (3) he or she suffered an adverse employment
action such as termination; and (4) there was a causal connection between the adverse
action and his or her protected classifications. (Moore v. Regents of University of
California (2016) 248 Cal.App.4th 216, 235 (Moore); Jensen v. Wells Fargo Bank (2000)
85 Cal.App.4th 245, 254; Guz, supra, 24 Cal.4th at p. 355 [a prima facie case typically
requires evidence establishing that “(1) [the plaintiff] was a member of a protected class,
(2) he was qualified for the position he sought or was performing competently in the
position he held, (3) he suffered an adverse employment action, such as termination,
demotion, or denial of an available job, and (4) some other circumstance suggests
discriminatory motive”].)
To establish a prima facie case, a plaintiff must show “ ‘ “ ‘actions taken by the
employer from which one can infer, if such actions remain unexplained, that it is more
likely than not that such actions were “based on a [prohibited] discriminatory
criterion.” ’ ” ’ ” (Reid v. Google, Inc. (2010) 50 Cal.4th 512, 520, fn. 2.) The prima
facie burden is light; the evidentiary requirements are not onerous. (Moore, supra, 248
23.
Cal.App.4th at p. 235.) “Generally, an employee need offer only sufficient circumstantial
evidence to give rise to a reasonable inference of discrimination.” (Ibid.)
“If, at trial, the plaintiff establishes a prima facie case, a presumption of
discrimination arises,” which, if not answered by the employer, is mandatory—it requires
judgment for the plaintiff. (Guz, supra, 24 Cal.4th at p. 355.) “Accordingly, at this trial
stage, the burden shifts to the employer to rebut the presumption by producing admissible
evidence, sufficient to ‘raise[ ] a genuine issue of fact’ and to ‘justify a judgment for the
[employer],’ that its action was taken for a legitimate, nondiscriminatory reason.” (Id. at
pp. 355-356.) “[T]he employer may dispel the presumption merely by articulating a
legitimate, nondiscriminatory reason for the challenged action.” (McCaskey, supra, 189
Cal.App.4th at p. 980; Wills, supra, 195 Cal.App.4th at p. 159 [burden on employer to
articulate a legitimate, nondiscriminatory reason for its employment decision is not
onerous and is generally met by presenting admissible evidence showing the reason for
its decision].)
Should the employer sustain this burden and the presumption of discrimination
disappear, the plaintiff must meet his or her “ultimate obligation” of proving that the
reason for the adverse action was intentional discrimination. (Hersant, supra, 57
Cal.App.4th at p. 1003 [an employee alleging discrimination must ultimately prove that
the adverse employment action was taken based on his or her protected status]; Guz,
supra, 24 Cal.4th at p. 356.) Thus, the plaintiff is then given “the opportunity to attack
the employer’s proffered reasons as pretexts for discrimination, or to offer any other
evidence of discriminatory motive. [Citations.] In an appropriate case, evidence of
dishonest reasons, considered together with the elements of the prima facie case, may
permit a finding of prohibited bias.” (Guz, supra, at p. 356; Wills, supra, 195
Cal.App.4th at p. 160 [“The plaintiff may satisfy this burden by proving the legitimate
reasons offered by the defendant were false, creating an inference that those reasons
served as a pretext for discrimination.”].) The “ultimate issue is decided on all the
24.
evidence” (Hersant, supra, at p. 1003), and “[t]he ultimate burden of persuasion on the
issue of actual discrimination remains with the plaintiff.” (Guz, supra, at p. 356.)
2. Summary Judgment in the Context of a Discrimination Claim
The “system of shifting burdens” encompassed by the McDonnell Douglas test
that is applied in discrimination cases, “necessarily establishes the basic framework for
reviewing motions for summary judgment in such cases.” (Hersant, supra, 57
Cal.App.4th at p. 1002.)
“A [defendant employer’s] summary judgment motion ‘ “slightly modifies the
order of [the McDonnell Douglas] showings.” ’ [Citation.] Consequently, [the defendant
has] the initial burden to either (1) negate an essential element of [the plaintiff’s] prima
facie case [citation] or (2) establish a legitimate, nondiscriminatory reason for [the
adverse employment action].” (Wills, supra, 195 Cal.App.4th at p. 160.)
“ ‘[T]o avoid summary judgment [once the employer makes the foregoing
showing], an employee claiming discrimination must offer substantial evidence that the
employer’s stated nondiscriminatory reason for the adverse action was untrue or
pretextual, or evidence the employer acted with a discriminatory animus, or a
combination of the two, such that a reasonable trier of fact could conclude the employer
engaged in intentional discrimination.’ [Citation.] [¶] ‘As several federal courts have
stated: “The [employee] cannot simply show that the employer’s decision was wrong or
mistaken, since the factual dispute at issue is whether discriminatory animus motivated
the employer, not whether the employer is wise, shrewd, prudent, or competent.” ’ ”
(Wills, supra, 195 Cal.App.4th at p. 160, italics added.)
The requisite analysis was summed up in Moore, supra, 248 Cal.App.4th at page
236, as follows: “ ‘ “ ‘In [summary judgment motion] proceedings, the trial court will be
called upon to decide if the plaintiff has met his or her burden of establishing a prima
facie case of unlawful discrimination. If the employer presents admissible evidence
either that one or more of plaintiff’s prima facie elements is lacking, or that the adverse
25.
employment action was based on legitimate, nondiscriminatory factors, the employer will
be entitled to summary judgment unless the plaintiff produces admissible evidence which
raises a triable issue of fact material to the defendant’s showing. In short, by applying
McDonnell Douglas’s shifting burdens of production in the context of a motion for
summary judgment, “the judge [will] determine whether the litigants have created an
issue of fact to be decided by the jury.” ’ … Thus, ‘ “[a]lthough the burden of proof in a
[discrimination] action claiming an unjustifiable [adverse employment action] ultimately
rests with plaintiff …, in the case of a motion for summary judgment or summary issue
adjudication, the burden rests with the moving party to negate the plaintiff’s right to
prevail on a particular issue…. In other words, the burden is reversed in the case of a
summary issue adjudication or summary judgment motion.” ’ ” ’ ”
“ ‘Whether judgment as a matter of law is appropriate in any particular case will
depend on a number of factors. These include the strength of the plaintiff’s prima facie
case, the probative value of the proof that the employer’s explanation is false, and any
other evidence that supports the employer’s case.’ ” (Guz, supra, 24 Cal.4th at p. 362,
italics added.)
“In order to raise an issue as to the employer’s credibility, the employee must set
forth specific facts demonstrating ‘such weaknesses, implausibilities, inconsistencies,
incoherences, or contradictions in the employer’s proffered legitimate reasons for its
action that a reasonable factfinder could rationally find them “unworthy of credence.” ’ ”
(Cucuzza, supra, 104 Cal.App.4th at p. 1038.) “ ‘[S]peculation cannot be regarded as
substantial responsive evidence.’ ” (Ibid.; Kerr v. Rose (1990) 216 Cal.App.3d 1551,
1564 [a plaintiff’s “ ‘suspicions of improper motives … primarily based on conjecture
and speculation’ ” are clearly not sufficient to raise a triable issue of fact to withstand
summary judgment].)
“In discrimination cases, proof of the employer’s reasons for an adverse action
often depends on inferences rather than on direct evidence. ‘An inference is a deduction
26.
of fact that may logically and reasonably be drawn from another fact or group of facts
found or otherwise established in the action.’ (Evid. Code, § 600, subd. (b).) Thus, even
though we may expect a plaintiff to rely on inferences rather than direct evidence to
create a factual dispute on the question of motive, a material triable controversy is not
established unless the inference is reasonable. And an inference is reasonable if, and
only if, it implies the unlawful motive is more likely than defendant’s proffered
explanation.” (Cucuzza, supra, 104 Cal.App.4th at p. 1038, italics added.) The temporal
proximity of the adverse action, by itself, does not create a triable issue of fact as to
whether the employer’s articulated reason was pretextual. (Loggins v. Kaiser
Permanente Internat. (2007) 151 Cal.App.4th 1102, 1112.) “If plaintiff fails to produce
substantial responsive evidence to demonstrate a material triable controversy, summary
judgment is properly granted.” (Cucuzza, supra, 104 Cal.App.4th at p. 1039.)
B. Background: Trial Court’s Ruling
The trial court found there was no triable issue of material fact as to Wade’s claim
that she suffered an adverse employment action because of her gender identity and
granted Starbucks’s motion for summary judgment as to that claim. The trial court
stated:
“Plaintiff’s second cause of action is for discrimination on the basis
of sex, gender, gender identity, and/or gender expression in violation of
Government Code section 12940, subdivision (a). Plaintiff must establish
that (1) she belongs to the relevant protected classes or was perceived as
belonging to them; (2) she was performing her job satisfactorily; (3) she
suffered an adverse employment action such as termination, demotion, or
denial of an available job; and (4) there is a causal connection between the
adverse action and her protected classifications. (Guz[, supra,] 24 Cal.4th
[at pp.] 354-356.)
“In employment discrimination claims, ‘[t]he burden-shifting system
requires the employee first establish a prima facie case of …
discrimination. If the employee does so, the employer is required to offer a
legitimate non-[discriminatory] reason for the adverse employment action.
27.
If it does not, then the employee prevails.’ (Hersant[, supra,] 57
Cal.App.4th [at p.] 1002.)
“Starbucks contests the third and fourth elements. Starbucks
contends that the only adverse employment action asserted by plaintiff is
her constructive discharge. As addressed above, there was no constructive
discharge. Plaintiff’s opposition does not directly argue that there was any
other adverse employment action.
“There is mention, however, of reduction in working hours and
elimination of plaintiff from a training program [or assessment]. Neither
party addresses whether this constitutes an adverse employment action.
Regarding the training program, plaintiff does not present clear evidence on
this point. It was apparently a goal of [plaintiff] to train for an assistant
manager position, and there may have been some discussion about it with
Guthrie, but ‘Guthrie never contacted [plaintiff] again about the Assistant
Manager training program.’ [Citation.] Without more information about
this program, the court cannot find a triable issue as to an adverse
employment action. Was it a formal program? Was plaintiff required to
apply for it? Did plaintiff apply or even explicitly request to participate in
it? It seems that it simply was something that was in contemplation at one
point, but that over the course of a few weeks nothing happened with it.
Plaintiff does not show that there was any actual employment action in this
regard.
“The evidence is vague regarding the reduction in hours, as well.
Guthrie testified that all employees’ hours were reduced due to a slow-
down, apparently after the 2017 year-end holidays. The moving papers
provide no documentary evidence of plaintiff’s hours in comparison to the
hours of other employees, but there is also no objection to Guthrie’s
testimony.
“The opposition is supported by a declaration from plaintiff, in
which she states that her hours were reduced from about 38 hours per week
to as little as 23.5 hours in a week. But she says nothing of whether other
employees’ hours were reduced, as well. The opposition also references
deposition testimony from two co-workers on the issue of hours reduction.
Zaire [D.] testified that, at some unspecified point, plaintiff’s hours were
cut, but nobody else’s hours were cut. Zaire [D.] stated he knew her hours
were cut because he saw everybody’s schedule. Rachel [S.] testified that
plaintiff’s hours were cut (she did not say to what extent), which she knew
because she saw everyone’s schedule. But Rachel [S.] said nothing about
other employees’ hours.
28.
“The evidence on whether only plaintiff’s hours were cut is vague
and unsupported by clear documentary evidence. But, inasmuch as there
are no objections, the court concludes that plaintiff has presented evidence
that only her hours were cut. However, there still is no clear evidence as to
the extent of the reduction in hours or how long it lasted. Moreover, there
must be a causal connection between the adverse action and plaintiff’s
protected classification. (Guz, supra, 24 Cal.4th at pp. 354-356.) Plaintiff
offers only speculation that her hours were reduced because of her gender
identity. Such speculation is insufficient to establish a prima facie case of
[discrimination]. (See Salazar v. Upland Police Dept. (2004) 116
Cal.App.4th 934, 941 [‘An assertion … based solely on conjecture and
speculation is insufficient to avoid summary judgment.’].) Plaintiff does
present evidence of multiple anti-trans social media posts by Guthrie.
[Citation.] However, Guthrie never made any anti-trans or negative
comments about plaintiff or her transition, in or out of work. [Citation.]
Plaintiff was not aware of Guthrie’s social media posts until after plaintiff’s
employment with Starbucks ended. [Citation.] Guthrie’s posts were not
connected to his employment in any way. (See Gov. Code, § 12940(j)(1));
Myers v. Trendwest Resorts, Inc. (2007) 148 Cal.App.4th 1403 [there is no
liability where alleged incidents of harassment took place outside
workplace and [were] not related to employer’s interests].) Accordingly, it
is entirely speculative that there was any causal connection between the
reduction in hours and plaintiff’s gender identity.
“Thus, the motion is granted as to the second cause of action.”
C. Analysis
We affirm the trial court’s conclusion that there is no triable issue of material fact
as to Wade’s discrimination claim and that summary judgment is therefore proper as to
this claim; our analysis, however, differs from that of the trial court.
Wade’s entire argument, in her opposition to Starbucks’s motion for summary
judgment as to Wade’s discrimination claim, was two sentences long: “Starbucks’[s]
summary judgment argument as to Plaintiff’s cause of action for discrimination is based
on the same faulty premise that the Court should ignore everything that Plaintiff was
subjected to prior to her transfer to the Barstow Location. [Citation.] And, for the same
reason discussed above, the motion should be denied as there is a triable issue issued [sic]
based on the accumulation of incidents and events, not just those at the Barstow
29.
Location.” At oral argument, Wade’s counsel conceded that the McDonnell Douglas
burden-shifting test was the controlling standard for resolving Starbucks’s motion as to
Wade’s discrimination claim.
Wade now argues, for the first time on appeal, that the McDonnell Douglas test is
not applicable because there is direct evidence of discrimination in the record. (See Trop
v. Sony Pictures Entertainment, Inc. (2005) 129 Cal.App.4th 1133, 1144-1145 (Trop)
[McDonnell Douglas burden-shifting test applies in discrimination cases except in the
rare instance where there is direct evidence of discriminatory motive]; DeJung v.
Superior Court (2008) 169 Cal.App.4th 533, 550 [“ ‘ “McDonnell Douglas test is
inapplicable where the plaintiff presents direct evidence of discrimination” ’ ”] (DeJung);
see Title VII and the California Fair Employment and Housing Act, Cal. Practice Guide
Employment Litigation, Ch. 7-A, § 452 [“If the direct evidence of a biased motivation is
‘substantial,’ plaintiffs can establish a prima facie case without proceeding under the
McDonnell Douglas burden-shifting analysis.”]; Morgan v. Regents of University of
California (2000) 88 Cal.App.4th 52, 67-68 (Morgan) [“Where a plaintiff offers direct
evidence of discrimination that is believed by the trier of fact, the defendant can avoid
liability only by proving the plaintiff would have been subjected to the same employment
decision without reference to the unlawful factor.”].)
Wade has waived the argument that the McDonnell Douglas test is inapplicable,
and, in any event, as discussed below, there is no direct evidence of discrimination in the
record. (See American Continental Ins. Co. v. C. & Z Timber Co. (1987) 195 Cal.App.3d
1271, 1281 [“[P]ossible theories that were not fully developed or factually presented to
the trial court cannot create a ‘triable issue’ on appeal.”]; Ernst v. Searle (1933) 218 Cal.
233, 240-241 [“A party is not permitted to change his position and adopt a new and
different theory on appeal. To permit him to do so would not only be unfair to the trial
court, but manifestly unjust to the opposing litigant.”].) We will therefore analyze
30.
Starbucks’s motion for summary judgment as to Wade’s discrimination claim with
reference to the McDonnell Douglas test.
As noted above, to prevail on a disparate treatment claim at trial, the plaintiff has
the burden of establishing a prima facie case of discrimination: “he or she was a member
of a protected class; was qualified for the position he sought [or was performing
competently in the position held]; suffered an adverse employment action, and there were
circumstances suggesting that the employer acted with a discriminatory motive.” (Jones
v. Department of Corrections and Rehabilitation (2007) 152 Cal.App.4th 1367, 1379-
1380.) In a defense motion for summary judgment, the defendant must show the plaintiff
cannot establish one of these elements or that there were one or more legitimate,
nondiscriminatory reasons underlying the adverse employment action.
Here, there is no dispute that plaintiff, on account of her transgender status, was a
member of a protected class and that she was performing satisfactorily in her position in
Guthrie’s store. Starbucks contested only whether Wade suffered any adverse
employment action and whether any such action was motivated by Wade’s gender
identity.
As to the element requiring an adverse employment action, as discussed above,
wrongful constructive discharge is not at issue here. Wade contends she was not
provided an opportunity to take an assessment or participate in a training program for an
assistant manager position, and argues, for the first time on appeal, that this constitutes an
adverse employment action. There is only vague and conclusory evidence on this point.
As explained in the trial court’s ruling, without more information about the assessment or
ostensible training program and Wade’s qualifications for it, there is no triable issue as to
an adverse employment action in this context—it cannot be established that there was an
official employment action whereby Wade was actually denied a promotional
opportunity.
31.
Wade also posits, for the first time on appeal, that the fact that, approximately two
months after Wade informed Guthrie she was transitioning, Guthrie reduced the number
of hours per week that Wade worked at the store, constitutes an adverse employment
action. In light of Starbucks’s limited treatment of this issue, we will assume, without
deciding, that the reduction of Wade’s hours was an adverse employment action.
However, we agree with the trial court that the testimonial evidence regarding the
reduction in Wade’s weekly working hours is vague and unsupported by documentary
evidence. Wade testified her hours began to be reduced towards the end of 2017 but said
nothing as to whether the hours of other employees were also reduced. Although two of
Wade’s coworkers, Zaire D. and Rachel S., testified that Wade’s hours were cut, they did
not specify the extent of the reduction, when the reduction occurred, whether it was
consistent over a period of time, what period was at issue, or the length of the period at
issue. As to whether the hours of other workers were also cut during the applicable, if
unspecified, timeframe, Zaire indicated the hours of other workers were not cut. But, as
to the basis for this conclusion, Zaire stated, “[W]hen you work there, you just know.
Like, you know.”
In this case, the question whether summary judgment was properly granted on
Wade’s discrimination claim may be resolved by examining whether Wade sufficiently
raised triable issues of fact to dispute Starbucks’s asserted legitimate, nondiscriminatory
reason for reducing her hours. It is not necessary for us to address whether Wade stated a
prima facie claim to the effect that Guthrie had a discriminatory motive, related to her
protected status, for reducing her hours. Even assuming Wade made the required prima
facie showing as to this claim, for Wade to survive summary judgment and ultimately
prevail on this claim, she would have to raise triable issues of material fact and later
prove that the purportedly legitimate reason for the reduction in her hours was merely
pretextual. We conclude she failed to raise a triable issue of fact material to Starbucks’s
32.
showing, and Starbucks’s summary judgment motion was properly granted as to this
claim.
As stated above, to avoid summary judgment, an employee must offer substantial
evidence that the employer’s stated legitimate reason for the adverse employment action
was false, or evidence that the employer acted with a discriminatory animus, or a
combination of these, such that a reasonable trier of fact could conclude, under the
governing standard of proof, that the employer engaged in prohibited conduct. (See
Hersant, supra, 57 Cal.App.4th at pp. 1004-1005.) Starbucks met its initial burden of
producing substantial evidence of a legitimate, nondiscriminatory reason for reducing
Wade’s hours. Guthrie testified: “I did my best to schedule [Wade] as many hours as I
possibly could. There is always a fluctuation in business.” Guthrie also explained that
Wade’s hours were reduced on account of a business slowdown as the holiday season
wound down. Guthrie testified that the hours of other employees, including the other
shift supervisors, also went down at that time. Wade has not produced specific evidence
to undercut or contradict Guthrie’s testimony that the hours of other workers were
reduced contemporaneously or in fairly close temporal proximity with the reduction in
Wade’s hours. While Zaire D. indicated that the hours of other workers did not go down,
his statement is very general, lacks relevant details, and is completely nonspecific as to
the timeframe applicable to his testimony (the latter lapse is additionally significant
because, after Wade began her transition, she periodically took time off in connection
with her transition and there was no indication Zaire had accounted for those periods).
Moreover, the stated basis for Zaire’s statement that other workers’ hours were not cut
was essentially that he “just kn[e]w,” vitiating its probative value.
Since Starbucks presented a legitimate reason for the reduction in Wade’s hours,
that is, fluctuation in business, “[a]t that point the presumption of unlawful discrimination
‘simply drops out of the picture.’ [Citation.] [¶] Consequently, the burden shifted to
[Wade] to ‘produce “substantial responsive evidence” that the employer’s showing was
33.
untrue or pretextual. [Citation.]’ [Citations.] ‘To avoid summary judgment, [the
plaintiff] “must do more than establish a prima facie case and deny the credibility of the
[defendant’s] witnesses.” [Citation.] [He] must produce “specific, substantial evidence
of pretext.” [Citation.]’ [Citation.] We emphasize that an issue of fact can only be
created by a conflict of evidence. It is not created by speculation or conjecture.” (Horn
v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 807.)
As to whether Guthrie’s stated reasons for reducing Wade’s weekly working hours
masked an illegal motive, Wade contends there was direct and circumstantial evidence to
show that Guthrie acted with discriminatory intent in reducing her hours, which evidence
renders his stated reasons pretextual. (See DeJung, supra, 169 Cal.App.4th at p. 553 [a
plaintiff may establish pretext by presenting direct evidence to show that a discriminatory
reason more likely motivated the employer or by presenting indirect evidence to show
that the employer’s proffered explanation is unworthy of credence].)
Wade argues evidence of Guthrie’s social media posts that spanned several years
and included memes that were disparaging of transgender persons and transgender issues
constitutes direct evidence that Guthrie acted with a discriminatory motive. (See Godwin
v. Hunt Wesson, Inc. (9th Cir. 1998) 150 F.3d 1217, 1221 [“When the plaintiff offers
direct evidence of discriminatory motive, a triable issue as to the actual motivation of the
employer is created even if the evidence is not substantial.”].) We reject the contention
that evidence of Guthrie’s social media posts constitutes direct evidence of
discriminatory motive. (Trop, supra, 129 Cal.App.4th at p. 1145 [“Direct evidence is
evidence which proves a fact without inference or presumption.”].) Guthrie’s social
media posts related to his personal life, that is, time when he was off work; did not
concern or refer to any Starbucks employee; and did not implicate or contain any
reference to the workplace. Wade testified that Guthrie never made any disparaging
comments regarding transgender persons or transgender issues, at work; nor was Wade
aware of any negative comments made by Guthrie about her transition or gender identity.
34.
Wade was the first transgender person Guthrie was aware of ever meeting and he told her
he wanted to support her as best as he could during her transition. The social media posts
do not directly show that Guthrie acted with discriminatory motive in cutting Wade’s
hours. (DeJung, supra, 169 Cal.App.4th at p. 550 [“Comments demonstrating
discriminatory animus may be found to be direct evidence if there is evidence of a causal
relationship between the comments and the adverse job action at issue.”].)
Furthermore, to the extent the social media posts constitute circumstantial
evidence of discriminatory motive, and, in turn, pretext, they amount to relatively weak
circumstantial evidence as they were made outside the workplace and did not reference or
relate to the workplace in any way. (See Morgan, supra, 88 Cal.App.4th at p. 69
[“Circumstantial evidence of ‘ “pretense” must be “specific” and “substantial” in order
to create a triable issue with respect to whether the employer intended to discriminate’ on
an improper basis.”]; Hersant, supra, 57 Cal.App.4th at pp. 1004-1005; also see, e.g.,
Texas Department of Community Affairs v. Burdine (1981) 450 U.S. 248, 256 [at trial, the
burden of establishing pretext can “merge[] with the ultimate burden of persuading [the
trier of fact] that [the plaintiff] has been the victim of intentional discrimination”].)
Next, Wade contends that Guthrie’s use of the name Matt and male pronouns to
refer to Wade, constitutes direct evidence that Guthrie acted with discriminatory motive
in reducing Wade’s hours. With respect to the issue of the names and pronouns used to
refer to Wade, Wade admitted at deposition that her request in this context was equivocal,
not explicit. Wade testified she left the issue “open-ended” because she did not “want to
make anybody feel like I’m trying to force them to call me something.” Wade further
testified that if people did not call her Maddie, it was “no big deal.” She indicated she
wanted people to “avoid calling [her] Matt, if possible, and try to avoid male pronouns.”
Wade broached this issue with Guthrie during their initial conversation about her plans to
start transitioning, but thereafter, during the relevant period, Wade continued to wear her
“Matt” nametag. The undisputed evidence indicates that Wade did not provide Guthrie
35.
with clear guidance on the issue and other employees also may have been unclear on
Wade’s preferences, at work, in this regard.
Given the lack of clear guidance, Guthrie’s conduct cannot be characterized as an
intentional violation of Wade’s express and exclusive preferences as to appropriate
names and pronouns for her, as she embarked on her transition. On the specific facts
applicable here, Guthrie’s use of the name Matt and male pronouns to refer to Wade was
not direct evidence that Guthrie reduced Wade’s hours because of discriminatory motive;
to the extent this evidence constitutes circumstantial evidence of discriminatory motive,
again on the specific facts applicable here, it amounts to relatively weak circumstantial
evidence. (Cf. Cal. Code Regs., tit. 2, § 11034, subd. (h)(3) [“If an employee requests to
be identified with a preferred gender, name, and/or pronoun, including gender-neutral
pronouns, an employer or other covered entity who fails to abide by the employee’s
stated preference may be liable under [FEHA].”)
Wade also contends that Guthrie’s failure to comply with Starbucks’s newly
released “best practices” workplace guidelines regarding transgender employees was
circumstantial evidence that he reduced Wade’s hours on account of a discriminatory
motive. Although Guthrie did not follow these “best practices” guidelines, he indicated
to Wade he would work with her so she could attend medical and other appointments and
Wade regularly took time off for this purpose.5
Finally, Wade relies on Guthrie’s distant demeanor, “leering,” and threats to write
up Wade and other employees as circumstantial evidence that Guthrie acted for
discriminatory reasons in reducing Wade’s hours. However, according to Wade herself,
Guthrie gave dirty looks to all employees when he was in a bad mood and threatened to
write up multiple employees for various things. In other words, Wade conceded that
Guthrie directed much of the conduct she found offensive at multiple employees apart
5 Wade also took leave of at least six weeks for facial feminization surgery (albeit
this leave commenced after her transfer to Joy G.’s store became effective).
36.
from herself (i.e., employees who were not transgender). While Wade testified that
Guthrie’s demeanor was less friendly after she informed him of her transition, Guthrie
bought her a cake and convened a going-away gathering for her at the time of her
transfer. Guthrie also invited Wade to a store celebration while Wade was on leave upon
transferring; Wade attended the store celebration.
Other relevant evidence showed that Wade texted Guthrie in January 2018,
expressing her happiness in being on his team and appreciation for the way the store was
run. Wade also contributed to a “thank you” gift for Guthrie and wrote a note describing
Guthrie as “hands down the best manager I have ever had an opportunity to work with in
my entire Starbucks [career].” Guthrie never took any corrective action against Wade
and assured her that he had no concerns about her performance. When Guthrie reduced
Wade’s hours as the holiday season wound down, he also contemporaneously, or in the
same general timeframe, reduced the hours of other workers. Wade noted in her
deposition, that sometime around February 2018, her hours went up again, indicating
Guthrie adjusted her hours upward after the post-holiday slowdown eased.
Considering all the evidence, we conclude Wade failed to adequately rebut
Starbucks’s showing that Wade’s hours were reduced on account of legitimate business
needs. A reasonable fact finder could not find, under the preponderance of the evidence
standard of proof, that, in reducing Wade’s hours, Guthrie acted with a discriminatory
motive. In turn, Starbucks has sustained its burden to show that no triable issue of
material fact exists as to Wade’s discrimination claim. (Cucuzza, supra, 104 Cal.App.4th
at p. 1039 [“If plaintiff fails to produce substantial responsive evidence to demonstrate a
material triable controversy, summary judgment is properly granted.”].) Summary
judgment is therefore warranted on this claim and we affirm the trial court’s ruling
granting summary judgment as to this claim.
37.
IV. Wade’s Harassment Claims Against Starbucks and Guthrie
A. Applicable Legal Framework
FEHA specifically prohibits harassment based on “race, religious creed, color,
national origin, ancestry, physical disability, mental disability, medical condition, genetic
information, marital status, sex, gender, gender identity, gender expression, age, sexual
orientation or veteran or military status.” (Gov. Code, § 12940, subd. (j)(1); Roby v.
McKesson Corp. (2009) 47 Cal.4th 686, 706-707 [“harassment focuses on situations in
which the social environment of the workplace becomes intolerable because the
harassment (whether verbal, physical, or visual) communicates an offensive message to
the harassed employee”; harassment “refers to bias that is expressed or communicated
through interpersonal relations in the workplace”].) Wade’s claim of harassment against
Starbucks and Guthrie is based on a “hostile work environment” theory, which applies
“where the harassment is sufficiently pervasive so as to alter the conditions of
employment and create an abusive work environment.” (Mokler v. County of Orange
(2007) 157 Cal.App.4th 121, 141 (Mokler), overruled on other grounds by (Lawson v.
PPG Architectural Finishes, Inc. (Jan. 27, 2022, No. S266001) ___Cal.5th___ [2022 Cal.
Lexis 312].)
“ ‘For [hostile work environment harassment] to be actionable, it must be
sufficiently severe or pervasive “to alter the conditions of [the victim’s] employment and
create an abusive working environment.” ’ ” (Fisher v. San Pedro Peninsula Hospital
(1989) 214 Cal.App.3d 590, 609 (Fisher).) To succeed on a FEHA harassment claim, a
plaintiff must prove, among other things, the following elements: (1) she was subjected
to verbal or physical conduct of a harassing nature that was based on her protected class;
and (2) the conduct was sufficiently severe or pervasive to create an objectively and
subjectively hostile work environment. (Fisher, supra, at pp. 608-609; see Cal. Code
Regs., tit. 2, § 11019, subd. (b)(1).) A “hostile work environment” has been described as
a workplace “ ‘permeated with “discriminatory intimidation, ridicule and insult,”
38.
[citation] that is “sufficiently severe or pervasive to alter the conditions of the victim’s
employment and create an abusive work environment.” ’ ” (Beyda v. City of Los Angeles
(1998) 65 Cal.App.4th 511, 517; Sheffield v. Los Angeles County Dept. of Social Services
(2003) 109 Cal.App.4th 153, 161 [it is “ ‘ “ ‘clear that conduct must be extreme to
amount to a change in the terms and conditions of employment’ ” ’ ”].)
“ ‘[T]he existence of a hostile work environment depends upon “the totality of the
circumstances.” [Citation.]’ [Citation.] ‘ “[W]hether an environment is ‘hostile’ or
‘abusive’ can be determined only by looking at all the circumstances. These may include
the frequency of the discriminatory conduct; its severity; whether it is physically
threatening or humiliating, or a mere offensive utterance; and whether it unreasonably
interferes with an employee’s work performance.” ’ ” (Fuentes v. AutoZone, Inc. (2011)
200 Cal.App.4th 1221, 1227 (AutoZone).) “ ‘[W]hile an employee need not prove
tangible job detriment to establish a [FEHA] harassment claim, the absence of such
detriment requires a commensurately higher showing that the sexually harassing conduct
was pervasive and destructive of the working environment.’ ” (Fisher, supra, 214
Cal.App.3d at p. 610.) “The requirement that the conduct be sufficiently severe or
pervasive to create a working environment a reasonable person would find hostile or
abusive is a crucial limitation that prevents [FEHA] harassment law from being expanded
into a ‘general civility code.’ ” (Jones v. Department of Corrections & Rehabilitation
(2007) 152 Cal.App.4th 1367, 1377, quoting Oncale v. Sundowner Offshore Services,
Inc. (1998) 523 U.S. 75, 81.)
Harassment is actionable under FEHA when there is “a pattern of continuous,
pervasive harassment,” giving rise to a hostile work environment that is both objectively
and subjectively offensive. (Fisher, supra, 214 Cal.App.3d at p. 611; AutoZone, supra,
200 Cal.App.4th at p. 1226.) Therefore, “a plaintiff who subjectively perceives the
workplace as hostile or abusive will not prevail under the FEHA, if a reasonable person
in the plaintiff’s position, considering all the circumstances, would not share the same
39.
perception.” (Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264,
284, italics added.) “Likewise, a plaintiff who does not perceive the workplace as hostile
or abusive will not prevail, even if it objectively is so.” (Ibid.) “Whether an employee
was subjected to a hostile work environment is ordinarily [a question] of fact.” (Rehmani
v. Superior Court (2012) 204 Cal.App.4th 945, 959.) “FEHA makes the employer
strictly liable for harassment by a supervisor.” (State Dept. of Health Services v.
Superior Court (2003) 31 Cal.4th 1026, 1040-1041.)
B. Background: Trial Court’s Ruling
The trial court granted Starbucks’s motion for summary judgement as to Wade’s
harassment claim against Starbucks and Guthrie. The trial court ruled:
“The third cause of action, against both Starbucks and Guthrie, is for
harassment on the basis of sex, gender, gender identity, and/or gender
expression in violation of Government Code section 12940, subdivision
[(j)(1)]. Plaintiff must prove that (1) she was subjected to verbal or
physical conduct of a harassing nature that was based on her protected
class; and (2) the conduct was sufficiently severe or pervasive to create an
objectively and subjectively hostile working environment. (Fisher[, supra,]
214 Cal.App.3d [at pp.] 608-609.) To meet the ‘severe or pervasive’
standard for harassment, plaintiff must demonstrate that her workplace was
‘permeated with discriminatory intimidation, ridicule and insult that is
sufficiently severe or pervasive to alter the conditions of [her] employment
and create an abusive working environment.’ (Mokler[, supra,] 157
Cal.App.4th [at p.] 145; Fisher, supra, 214 Cal.App.3d at p. 609.)
“Guthrie never made any anti-trans comments or negative comments
about plaintiff’s transition or gender identity. [Citation.] The leering and
threats to write-up employees were directed at other non-trans employees,
and therefore are not linked to plaintiff’s gender identity. There is no
evidence that the reduction in hours related to plaintiff’s gender identity.
The cause of action appears primarily based Guthrie’s failure to use
pronouns corresponding to plaintiff’s gender identity, and Guthrie’s
apparent discomfort with and distance from plaintiff after she revealed her
diagnosis and intent to transition to female.
“Courts in cases involving much more severe conduct have held the
conduct not to constitute actionable harassment, including McCoy v. Pacific
Maritime Ass’n (2013) 216 Cal.App.4th 283, 293-294, where the grant of
40.
summary judgment in favor of the defendant employer was affirmed where
the plaintiff’s coworkers yelled at the plaintiff and called her stupid, stated
a woman had a ‘J-Lo ass,’ speculated about another employee’s sexual
relationship, and made crude gestures toward an employee with her back
turned. In Jones v. Department of Corrections and Rehabilitation (2007)
152 Cal.App.4th 1367, 1377-78, conduct was not severe or pervasive where
a female corrections officer was physically assaulted, sent to work in a tool
shed because male officers did not want her around, criticized daily, and
faced with openly hostile coworkers who spread rumors about her.
“In her deposition, plaintiff would not describe Guthrie’s conduct as
outrageous, only unprofessional. She did say his conduct was extreme, but
only in the sense of using intimidation in situations having nothing to do
with plaintiff in particular, or her gender identity. [Citation.] As referenced
above, on January 25, 2018, plaintiff wrote “ … Dustin you are awesome.
I’m happy to be a part of this team as well. I have never seen a store on par
with what we have here.” [Citation.] Plaintiff’s own words show that
Guthrie’s workplace conduct was not severe or pervasive.
“Plaintiff’s opposition argues that Guthrie failed to follow
Starbucks’[s] guidelines supporting transgender employees. The guidelines
provide that partners should be addressed by the pronoun that corresponds
to the partner’s gender identity. ‘Intentional or persistent refusal to identify
the partner by the pronoun of choice may violate Starbucks’[s] Anti-
Harassment Standard.’ [Citation.] However, Starbucks’[s] internal
policies do not set the standard for what constitutes harassment under the
Fair Employment and Housing Act. Plaintiff must prove [at trial] that she
was subjected to verbal or physical conduct of a harassing nature that was
based on her protected class, and that the conduct was sufficiently severe or
pervasive to create an objectively and subjectively hostile working
environment. (Fisher[, supra,] 214 Cal.App.3d [at pp.] 608-[6]09.) The
undisputed material facts show that Guthrie’s conduct did not create a
subjectively and objectively hostile work environment.
“The motions are therefore granted as to the third cause of action.”
(Emphasis in original.)
C. Analysis
Wade argues there are triable issues of fact as to whether Guthrie’s conduct
violated FEHA’s prohibition on workplace harassment on the basis of sex, gender, gender
identity, and gender expression. Starbucks contends, in response: “Wade’s harassment
claim fails because she cannot establish a prima facie case of harassment, as the alleged
41.
conduct was not severe or pervasive and did not interfere with her ability to do her job.
The trial court properly considered all the evidence before it, and, in doing so, determined
there was no triable issue of fact as to Wade’s harassment claim.” We affirm the trial
court.
Wade’s harassment claim encompasses, inter alia, the following alleged conduct:
(1) Guthrie reduced Wade’s weekly working hours; (2) Guthrie gave dirty looks to
employees and others, including Wade, on various occasions; (3) Guthrie threatened to
write up multiple employees for various things, including Wade and workers on her shift
teams; (4) Guthrie interacted with Wade less after she told him about her transition; (5)
Guthrie was less warm with Wade after she told him about her transition, and he would
look at her in a strange way; (6) Guthrie did not use the correct name and pronouns when
referring to Wade; and (7) Guthrie did not follow Starbucks’s newly released “best
practices” workplace guidelines for supporting transgender employees.
Here, as the trial court noted, much of the conduct of which Wade complains, such
as leering and threats to write-up employees, was directed at multiple employees and not
just Wade or transgender employees and was therefore not related to Wade’s gender
identity. Similarly, as discussed above, the evidence does not show that the reduction of
Wade’s weekly working hours towards the end of 2017 and beginning of 2018 was
related to her gender identity.
Wade contends that Guthrie’s use of the name Matt and male pronouns to refer to
her constitutes unlawful harassment. As discussed above, the undisputed evidence
indicates that Wade broached the issue of appropriate names and pronouns with Guthrie
ahead of starting her transition and did not provide clear guidance, leaving the issue
“open-ended.” Wade also continued to wear her “Matt” nametag at work. On the
specific facts applicable here, given the lack of clear guidance, Guthrie’s conduct cannot
be characterized as an intentional violation of Wade’s express and exclusive preferences
as to appropriate names and pronouns for her, as she embarked on her transition. (Cf.
42.
Cal. Code Regs., tit. 2, § 11034, subd. (h)(3) [“If an employee requests to be identified
with a preferred gender, name, and/or pronoun, including gender-neutral pronouns, an
employer or other covered entity who fails to abide by the employee’s stated preference
may be liable under [FEHA].”)
At deposition, Wade declined to describe Guthrie’s conduct with her as
outrageous; she used the term, unprofessional, to describe it. The only conduct on
Guthrie’s part that Wade considered extreme was related to an incident when Guthrie
threatened to write up multiple employees over the placement of a mop bucket in a sink.
Guthrie did not implement Starbucks’s “best practices” workplace guidelines with
respect to transgender employees. However, Guthrie was supportive when Wade
broached the issue of her transition with him and indicated to Wade that he would work
with her so she could attend medical and other appointments, and Wade regularly took
time off for this purpose. Guthrie also promptly informed the district manager of Wade’s
transition.
Guthrie never made any disparaging comments about transgender people at work
and Wade testified she was not aware of any negative comments by him toward her
during her transition. Guthrie never gave Wade any corrective action and repeatedly
assured Wade that he had no concerns about her performance at work. Wade enjoyed
working with her other coworkers. Wade sent Guthrie a text in January 2018, telling him
she was happy to be on his team and that Guthrie was “awesome.” On Wade’s last day,
Guthrie bought a cake and organized a small send-off for Wade. Guthrie also invited
Wade to a store celebratory dinner after Wade had transferred to another store and while
she was on leave; Wade accepted the invitation and attended the celebration.
Guthrie’s conduct did not constitute “a pattern of continuous, pervasive
harassment,” giving rise to a hostile work environment that is both objectively and
subjectively offensive. (Fisher, supra, 214 Cal.App.3d at p. 611.) We conclude there is
43.
no triable issue of material fact as to Wade’s harassment claim and the trial court
properly granted summary judgment as to this claim.
V. Wade’s Intentional Infliction of Emotional Distress Claims (IIED) Against
Starbucks and Guthrie
A. Applicable Legal Framework
The elements of an IIED claim are: “ ‘ “(1) extreme and outrageous conduct by
the defendant with the intention of causing, or reckless disregard of the probability of
causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional
distress; and (3) actual and proximate causation of the emotional distress by the
defendant’s outrageous conduct.” ’ ” (Christensen v. Superior Court (1991) 54 Cal.3d
868, 903.) “ ‘Conduct to be outrageous must be so extreme as to exceed all bounds of
that usually tolerated in a civilized community.’ ” (Ibid.) As for “severe emotional
distress,” this means “emotional distress of such substantial quantity or enduring quality
that no reasonable man in a civilized society should be expected to endure it.” (Fletcher
v. Western National Life Ins. Co. (1970) 10 Cal.App.3d 376, 396.)
B. Background: Trial Court’s Ruling
The trial court granted the summary judgment motions of Starbucks and Guthrie
as to Wade’s claims of IIED. Applying the above-delineated framework, the trial court
ruled:
“Here, even crediting plaintiff’s version of the facts as accurate,
there is no evidence of extreme and outrageous conduct. For the reasons
discussed above, the conduct alleged simply does not rise to that level.
Plaintiff’s oppositions do not actually address the intentional infliction of
emotional distress cause of action, or otherwise attempt to show that the
cause of action is viable.
“Nor is there evidence of severe emotional distress. Plaintiff’s only
claim for emotional distress directly relating to Guthrie’s conduct is that it
caused her anxiety and that she lost confidence and felt she could no longer
work in a customer-facing job. [Citation.] Anxiety alone is not sufficiently
intense or enduring so as to rise to the level of severe emotional distress.
44.
(Fletcher v. Western National Life Ins. Co. (1970) 10 Cal.App.3d 376,
397.) Severe emotional distress means highly unpleasant mental suffering
or anguish from socially unacceptable conduct, which entails such intense,
enduring and nontrivial emotional distress that ‘no reasonable man in a
civilized society should be expected to endure it.’ (Id. at p. 396.) [¶] … [¶]
“Accordingly, the motions are granted as to the fourth cause of
action.”
C. Analysis
We conclude there is no triable issue of material fact as to Wade’s IIED claims
against Starbucks and Guthrie and affirm the trial court’s ruling granting the defendants’
motions for summary judgment as to these claims.
DISPOSITION
The judgment is affirmed. Defendants to recover costs on appeal.
SMITH, J.
WE CONCUR:
HILL, P. J.
POOCHIGIAN, J.
45.