Fulton v. Ulta Beauty ( 2020 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 MICHAEL J. FULTON, Case No.: 18-cv-00889-AJB-WVG 11 Plaintiff, ORDER: 12 v. (1) GRANTING IN PART AND 13 ULTA BEAUTY; and DOES 1-30, DENYING IN PART DEFENDANT’S Inclusive, 14 MOTION FOR SUMMARY Defendants. JUDGMENT; 15 16 (2) GRANTING DEFENDANT’S APPLICATION TO FILE 17 CONFIDENTIAL DOCUMENTS IN 18 SUPPORT OF DEFENDANT’S MOTION FOR SUMMARY 19 JUDGMENT UNDER SEAL; 20 (3) GRANTING PLAINTIFF’S 21 APPLICATION TO FILE 22 CONFIDENTIAL DOCUMENTS IN SUPPORT OF PLAINTIFF’S 23 OPPOSITION TO DEFENDANT’S 24 MOTION FOR SUMMARY JUDGMENT; 25 26 (4) GRANTING DEFENDANT’S APPLICATION TO SEAL 27 CONFIDENTIAL DOCUMENTS IN 28 SUPPORT OF DEFENDANT’S 1 REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT; AND 2 3 (5) DENYING DEFENDANT’S MOTION FOR JUDGMENT ON THE 4 PLEADINGS 5 6 (Doc. Nos. 35, 37, 44, 61, 72) 7 8 Presently before the Court are Defendant’s motion for summary judgment, (Doc. 9 No. 37), Defendant’s application to file confidential documents in support of Defendant’s 10 motion for summary judgment under seal, (Doc. No. 35), Plaintiff’s application to file 11 confidential documents in support of Plaintiff’s opposition to Defendant’s motion for 12 summary judgment, (Doc. No. 44), Defendant’s application to seal confidential documents 13 in support of Defendant’s reply in support of motion for summary judgment, (Doc. No. 14 61), and Defendant’s motion for judgment on the pleadings, (Doc. No. 72.) As will be 15 explained further below, the Court GRANTS in part and DENIES in part Defendant’s 16 motion for summary judgment, GRANTS Defendant’s application to file confidential 17 documents under seal, GRANTS Plaintiff’s application to file confidential documents 18 under seal, GRANTS Defendant’s application to seal confidential documents, and 19 DENIES Defendant’s motion for judgment on the pleadings as moot. The Court will 20 address each motion in turn. 21 I. DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 22 BACKGROUND 23 Defendant Ulta Salon, Cosmetics & Fragrance, Inc. (“Defendant” or “Ulta”) is a 24 nationwide retailer of beauty products and services. (Doc. No. 37-1 at 7.) Ulta hired 25 Michael Fulton (“Plaintiff”) after he applied for a position as a District Manager in Nevada. 26 (Id.) Plaintiff then transferred to a District Manager position in San Diego. (Id.) Plaintiff’s 27 employment was terminated on September 19, 2017 for poor work performance. (Id.) 28 At the outset of Plaintiff’s employment, Plaintiff received training regarding the 1 District Manager position, which included Ulta’s procedures and protocols to reduce 2 shrink, Guest Experience Manager (“GEM”), replenishment, loyalty, services, and staffing 3 and scheduling. (Id. at 9.) Ulta alleges that one of the key metrics of Plaintiff’s performance 4 was the shrink rate in his district, which measured the percent of inventory that was lost, 5 stolen, or otherwise missing. (Id.) However, Plaintiff alleges that three most important 6 statistics (from which District Manager bonuses were determined and paid) were (1) actual 7 retail sales compared to budgeted retail sales, (2) actual retail sales of certain specified 8 high-margin items compared to budgeted sales for those items, and (3) actual salon sales 9 compared to budgeted salon sales. (Doc. No. 46 at 9.) 10 Plaintiff’s mid-year review for the period of February 16, 2016 through July 31, 11 2016 stated that his “[p]erformance fully meets standards and expectations.” (Doc. No. 44, 12 Ex. 3.) “[Plaintiff] is progressing as expected toward achieving goals, with results that 13 occasionally exceed expectations in various areas.” (Id.) Plaintiff’s annual review for the 14 period February 1, 2016 through January 31, 2017 stated that same. (Doc. No. 44, Ex. 4.) 15 On April 14, 2017, he was awarded a bonus and stock options. (Doc. No. 46 at 10.) 16 However, his mid-year review also stated that his sales and shrink were his largest 17 areas of improvement. (Doc. No. 37-1 at 10.) Plaintiff agreed, writing in his review that his 18 “biggest opportunity continues to be shrink and impact on this metric.” (Fulton Depo., Ex. 19 6.) Plaintiff’s end of year review rated Plaintiff as only “sometimes meets expectations” in 20 three of the four goals: shrink, services, and GEM. (Id.) Plaintiff finished the 2016 fiscal 21 year in the bottom 30% of district managers, ranking 56 in overall performance as 22 compared to all 80 district managers in Ulta nationwide. (Shaw Decl., Ex. 18.) 23 In February 2017, Plaintiff was transferred to San Diego. In April 2017, all of the 12 24 Ulta districts were assigned to a new regional vice president, Alyssa Shaw. (Doc. No. 46 25 at 10.) On May 23, 2017, Plaintiff alleges that Shaw told him that she thought it would be 26 fine if Ulta had all female management employees in her region. (Id. at 11.) By June 2017, 27 the shrink rates for stores in Plaintiff’s district had increased nearly twofold, and the shrink 28 rate in the Temecula store went from -2.44 in January 2017 to -4.62 in June 2017. (Shaw 1 Decl., Ex. 4.) 2 On July 19, 2017, Plaintiff’s San Marcos’ store received an inventory result of 3 3.15%, which was over the stores -2% shrink goal, and a nearly 60% increase over its 4 previous inventory results at the end of 2016. (Shaw Decl., Ex. 6.) On July 26, 2017, 5 Plaintiff’s Hemet store received a 33.75% audit score, meaning the Hemet store satisfied 6 only 33.75% of the evaluated expectations. (Shaw Decl., Ex. 1.) On August 4, 2017, Shaw 7 gave Plaintiff a written warning regarding his poor job performance. (Shaw Decl., Exs. 1, 8 6, 8, 3.) The warning explained that a further decline in operational behaviors, such as 9 shrink, in his district would result in further actions up to and including termination. (Id. at 10 Ex. 6.) 11 However, Plaintiff alleges that as of August 2, 2017, Plaintiff’s district was number 12 one in California in actual retail sales compared to budgeted retail sales and actual prestige 13 retail sales compared to budgeted prestige sales. (Doc. No. 46 at 11.) Plaintiff’s district was 14 number three in California in actual salon sales to budgeted salon sales. (Id.) In May 2017, 15 Shaw presented Plaintiff with two corporate awards for his excellent performance. (Id.) 16 Also in May 2017, Shaw asked Plaintiff to be the California region’s “culture champion,” 17 a position awarded to high-performing district managers. (Id.) On August 30, 2017, one of 18 the stores that Plaintiff supervises earned an Ulta “Official Seal of Awesomeness” award. 19 (Id.) However, on August 18, 2017, Shaw issued a written warning discussion because 20 Plaintiff’s stores had the highest shrink rate in the country. (Shaw Decl., Ex. 1.) Plaintiff 21 assured Shaw that the stores could be fixed in the next 5 days. (Id.) 22 On September 19, 2017, Ulta terminated Plaintiff for poor performance. (Id.) 23 Defendant alleges that at the time of Plaintiff’s termination he was the worst performing 24 district manager in the entire company nationwide. (Id., Ex. 13.) Plaintiff alleges that Shaw 25 made the decision to terminate Plaintiff alone and stated that he was not performing well. 26 (Doc. No. 44, Ex. 9.) 27 On April 4, 2018, Plaintiff filed his complaint in the Superior Court of San Diego. 28 (Doc. No. 1.) On May 8, 2018, Defendant removed the civil action to this Court. (Id.) On 1 March 29, 2019, Plaintiff was granted leave to amend his complaint. (Doc. No. 25.) 2 Plaintiff filed his amended complaint on April 8, 2019. (Doc. No. 26.) On April 22, 2019, 3 Defendant filed an answer. (Doc. No. 27.) Thereafter, Defendant filed the instant motion 4 for summary judgment on September 23, 2019. (Doc. No. 37.) On March 15, 2020, 5 Defendant then filed the instant motion for judgment on the pleadings. (Doc. No. 72.) This 6 Order follows. 7 LEGAL STANDARD 8 Summary judgment is appropriate under Federal Rule of Civil Procedure 56 if the 9 moving party demonstrates the absence of a genuine issue of material fact and entitlement 10 to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A fact 11 is material when, under the governing substantive law, it could affect the outcome of the 12 case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is genuine if a 13 reasonable jury could return a verdict for the nonmoving party. Id. 14 A party seeking summary judgment bears the initial burden of establishing the 15 absence of a genuine issue of material fact. Celotex Corp., 477 U.S. at 323. The moving 16 party can satisfy this burden in two ways: (1) by presenting evidence that negates an 17 essential element of the nonmoving party’s case; or (2) by demonstrating the nonmoving 18 party failed to establish an essential element of the nonmoving party’s case on which the 19 nonmoving party bears the burden of proving at trial. Id. at 322–23. “Disputes over 20 irrelevant or unnecessary facts will not preclude a grant of summary judgment.” T.W. Elec. 21 Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987). 22 Once the moving party establishes the absence of a genuine issue of material fact, 23 the burden shifts to the nonmoving party to set forth facts showing a genuine issue of a 24 disputed fact remains. Celotex Corp., 477 U.S. at 330. When ruling on a summary 25 judgment motion, a court must view all inferences drawn from the underlying facts in the 26 light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. Ltd. v. Zenith 27 Radio Corp., 475 U.S. 574, 587 (1986). 28 / / / 1 DISCUSSION 2 The Court will address each basis of Defendant’s motion for summary judgment in 3 the following sections.1 4 A. Disparate Treatment Claims 5 Defendant argues that Plaintiff cannot establish a prima facie case of discrimination. 6 (Doc. No. 37-1 at 17.) To establish a prima facie case of discrimination, courts analyze a 7 discrimination claim under the McDonnell Douglas burden-shifting framework. Young v. 8 United Parcel Service, Inc., 135 S.Ct. 1338, 1345 (2015). Under the McDonnell Douglas 9 framework, “a plaintiff alleging disparate treatment under Title VII must first establish a 10 prima facie case of discrimination.” Chuang v. Univ. of Cal. Davis, Bd. of Trustees, 225 11 F.3d 1115, 1123 (9th Cir. 2000). In order to establish a prima facie case, plaintiff must 12 show that (1) he belongs to a protected class; (2) he was qualified for the position; (3) he 13 was subject to adverse employment action; and (4) similarly situated individuals outside 14 his protected class were treated more favorably. Id. “The burden of production, but not 15 persuasion, then shifts to the employer to articulate some legitimate, nondiscriminatory 16 reason for the challenged action.” Id. at 1123–24. If the employer meets this burden of 17 production, then plaintiff must show that the articulated reason is pretextual. Id. at 1124. 18 First, Plaintiff argues that summary judgment should be denied on the basis that 19 intent and motive are “not determinable on paper.” Nazir v. United Airlines, Inc., 178 Cal. 20 App. 4th 423, 286 (2009). However, the Nazir court found, “[w]e take no position on this 21 criticism but do observe that many employment cases present issues of intent, and motive, 22 23 1 Plaintiff requests judicial notice of the following exhibits: (1) Ulta’s 2019 Form 10-k, filed with the United States Securities and Exchange Commission; (2) Ulta’s 2016 Form 10-k, filed with the United 24 States Securities and Exchange Commission; and (3) Ulta’s 2015 Form 10-k, filed with the United 25 States Securities and Exchange Commission. (Doc. No. 46-6.) Federal Rule of Evidence 201 states that a “court may judicially notice a fact that is not subject to reasonable dispute because it: (1) is generally 26 known within the trial court’s territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b). These documents 27 are filings with the United States Securities and Exchange Commission and are subject to judicial notice. See Dreiling v. Am. Exp. Co., 458 F.3d 942, 946 n.2 (9th Cir. 2006). Accordingly, the Court GRANTS 28 1 and hostile working environment, issues not determinable on paper.” Id. at 331. 2 Accordingly, the Nazir court did not hold that summary judgment is precluded simply on 3 the basis that issues of intent and motive are involved. Accordingly, Plaintiff’s argument 4 on this point is unpersuasive. 5 It is not undisputed that Plaintiff is a member of a protected class. Next, Defendant 6 argues that Plaintiff’s claims fail because he cannot establish that he was competently 7 performing his job in a satisfactory manner, and that there are no circumstances suggesting 8 that Plaintiff’s termination was based on discriminatory motive. (Doc. No. 37-1 at 17.) 9 Here, Plaintiff ranked in the bottom thirtieth percentile in overall performance nationwide 10 for the fiscal year of 2016. (Shaw Decl., Ex. 18.) Further, Plaintiff was given a performance 11 review regarding this deficient performance. (Id. at Ex. 1, Ex. 6.) Plaintiff’s performance 12 continued to decline in 2017. (Id. at Ex. 1.) Plaintiff’s stores failed to meet expectations for 13 inventory loss. (Id.) On August 4, 2017, Plaintiff received a warning regarding his poor 14 performance. (Senesi Decl., Ex. 6, Ex. 1.) Plaintiff even admitted that there were “major 15 opportunities” that need to be fixed in his district. (Id. at Ex. 6.) Plaintiff admits that he did 16 not fix the issues to Ulta’s satisfaction. (Id. at Ex. 1, Ex. 6, Ex. 4.) When Plaintiff was 17 terminated on September 19, 2017, he was the worst performing district manager in the 18 entire company. He had the highest rate of inventory loss in the company and was ranked 19 last out of all the district managers nationwide for overall performance for four out of the 20 prior five months. (Id. at Ex. 1, Ex. 2, Ex. 4, Ex. 6.) 21 Plaintiff argues that his performance was excellent. Plaintiff asserts the following 22 evidence to rebut Defendant’s argument that Plaintiff’s performance was poor: that Ulta’s 23 shrink metrics do not track internal versus external shrink, one of the stores in Plaintiff’s 24 district had suffered a large loss of inventory due to a break-in and burglary, Plaintiff’s 25 district had four new stores, Ulta’s shrink contentions are simply false, the older stores in 26 his district had very high historical shrink rates before he took over that district, and one of 27 his stores shortly before his termination earned an Ulta Beauty “Official Seal of 28 Awesomeness” award for reducing shrink. (Doc. No. 46 at 24–25.) However, these facts 1 are all solely based on Plaintiff’s declaration to his opposition of this summary judgment. 2 Plaintiff argues that discriminatory motive exists as Defendant openly states that it 3 employs 92 percent females. (Doc. No. 46 at 18, Ex. 10.) Furthermore, Plaintiff argues that 4 statements by his supervisor Alyssa Shaw, prove discriminatory motive. Shaw allegedly 5 told Plaintiff that she thought an all-female management team was fine, and she also asked 6 him what it would take for him to resign. (Id. at 19, Fulton Dec. ¶ 13.) Here, Shaw was the 7 one to ultimately make the decision to terminate Plaintiff. The Ninth Circuit has 8 “repeatedly held that a single discriminatory comment by plaintiff’s supervisor or 9 decisionmaker is sufficient to preclude summary judgment for the employer.” Dominguez- 10 Curry v. Nev. Transp. Dep’t, 424 F.3d 1027, 1038 (9th Cir. 2005). Accordingly, Plaintiff 11 has established that there are material facts in dispute on motive. 12 Furthermore, Plaintiff has offered evidence that establishes a dispute of material fact 13 for determining whether Plaintiff’s reason for termination was pretextual. Plaintiff alleges 14 that he was given only a few work days to make any necessary improvements prior to his 15 termination. (Doc. No. 46 at 27.) Further, Plaintiff alleges that he was told that shrink was 16 not among the top metrics Ulta Beauty instructed Plaintiff to monitor. While Plaintiff was 17 likely not performing excellent, his reviews did show he was meeting expectations in 18 certain categories. Defendant argues that he was provided adequate time to correct his 19 issues and that he was given warnings. However, these are material factual disputes that 20 must be decided by the trier of fact. Accordingly, the Court DENIES summary judgment 21 on Plaintiff’s disparate treatment claims. 22 B. Disparate Impact Claims 23 Plaintiff’s disparate impact claim fails because a disparate impact case must be 24 supported by statistical evidence. The Ninth Circuit has “recognized the necessity of 25 statistical evidence in disparate impact cases.” Budnick v. Town of Carefree, 518 F.3d 26 1109, 1118 (9th Cir. 2008) (citing Pottenger v. Potlatch Corp., 329 F.3d 740, 749 (9th Cir. 27 2003)). Furthermore, “[a] plaintiff who fails to allege facts at the pleading stage or produce 28 statistical evidence demonstrating a causal connection cannot make out a prima facie case 1 of disparate impact.” Texas Dept. of Housing and Cmty. Affairs v. Inclusive Communities 2 Project, Inc., 135 S.Ct. 2507, 2523 (2015). Here, in a concurrently filed Order, the Court 3 has determined that Plaintiff’s expert will be excluded for being unreliable. Accordingly, 4 Plaintiff is unable to establish any evidence of causation, and therefore, cannot establish a 5 prima facie case of disparate impact. Thus, the Court GRANTS Defendant’s motion for 6 summary judgment on Plaintiff’s disparate impact claims. 7 C. Failure to Prevent Discrimination in Violation of FEHA and Wrongful Termination 8 Each of Plaintiff’s two remaining claims are derivative of his discrimination claims. 9 Because Plaintiff’s disparate treatment claim will survive this summary judgment motion, 10 the argument that Defendant should be rewarded summary judgment on the basis that the 11 disparate treatment claims would be dismissed are moot. 12 Defendant further argues that it took steps to prevent discrimination. Under the 13 FEHA, an employer is required to take “reasonable steps” to prevent discrimination. Cal. 14 Gov’t Code § 1290(k). Reasonable steps an employer may take include: (1) “the 15 establishment and promulgation of antidiscrimination policies”; (2) “the implementation 16 of effective procedures to handle complaints and grievances regarding discrimination”; and 17 (3) “a prompt investigation of the discrimination claim.” California Fair Empl. & Hous. 18 Comm’n v. Gemini Aluminum Corp., 122 Cal. App. 4th 1004, 1024–25 (2004). Here, 19 Defendant received a pre-trial settlement offer. Plaintiff alleges that Defendant never 20 investigated the claim and has not provided evidence to the same. Plaintiff was provided 21 with Ulta’s antidiscrimination policies and procedures that state to report discrimination 22 and it will investigate complaints of discrimination. However, the fact that Plaintiff was 23 provided with these policies does not mean that they were not violated. Accordingly, the 24 Court DENIES summary judgment on Plaintiff’s claim for failure to prevent 25 discrimination in violation of FEHA. 26 Plaintiff’s wrongful termination claim is based on his allegation of disparate 27 treatment. Since the Court has found issues of material fact in regard to his disparate 28 treatment claims, the Court DENIES summary judgment on Plaintiff’s wrongful 1 termination claim. 2 D. Objections Filed by Plaintiff 3 Plaintiff filed an objection to the evidence submitted by Defendant in support of its 4 motion for summary judgment. (Doc. No. 47.) However, pursuant to the Court’s Civil Case 5 Procedures Section II.A., “[o]bjections relating to the motion should be set forth in the 6 parties opposition or reply. No separate statement of objections will be allowed.” 7 Accordingly, Plaintiff’s objections were not considered by this Court and are hereby 8 ordered to be STRICKEN from the Court’s docket. 9 II. DEFENDANT’S APPLICATION TO FILE CONFIDENTIAL DOCUMENTS 10 IN SUPPORT OF DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 11 UNDER SEAL 12 Defendant requests that the Court seal the following documents: (1) Exhibit 1 to the 13 Declaration of Danielle Lee filed in support of Defendant’s Motion for Summary 14 Judgment; (2) Exhibits 2-18 to the Declaration of Alyssa Shaw filed in support of 15 Defendant’s Motion for Summary Judgment; (3) documents attached as Exhibit 6 and bates 16 numbered Ulta_Fulton00412, 421-422, and 451-455 of the Declaration of Blair Senesi filed 17 in support of Defendant’s Motion for Summary Judgment; (4) documents attached as 18 depositions exhibits to Exhibit 1 of the Declaration of Blair Senesi filed in support of 19 Defendant’s Motion for Summary Judgment; (5) documents attached as deposition exhibits 20 to Exhibit 1 of the Declaration of Blair Senesi filed in support of Defendant’s Motion for 21 Summary Judgment. (Doc. No. 35 at 2–3.) 22 Courts have historically recognized a “general right to inspect and copy public 23 records and documents, including judicial records and documents.” Nixon v. Warner 24 Commc’ns, Inc., 435 U.S. 589, 597 & n.7 (1978). “Unless a particular court record is one 25 ‘traditionally kept secret,’ a ‘strong presumption in favor of access’ is the starting point.” 26 Kamakana v. City & Cty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (quoting Foltz 27 v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1135 (9th Cir. 2003)). In order to 28 overcome this strong presumption, a party seeking to seal a judicial record must articulate 1 compelling justifications for sealing that outweigh the public policies favoring disclosure. 2 See Kamakana, 447 F.3d at 1178–79. “In turn, the court must ‘conscientiously balance[] 3 the competing interests’ of the public and the party who seeks to keep certain judicial 4 records secret.” Id. at 1179 (citation omitted). 5 Defendant asserts that compelling reasons exist for filing these documents under seal 6 because they contain detailed financial information pertaining to Defendant’s business, 7 including the dollar amounts of the profits and losses of Ulta stores. Defendant also 8 contends that public disclosure of this information would likely provide competitors insight 9 into Defendant’s business operations. See Nixon, 435 U.S. at 589 (“[C]ourts have refused 10 to permit their files to serve as … sources of business information that might harm a 11 litigant’s competitive standing.”) (citations omitted); Leucadia, Inc. v. Applied Extrusion 12 Techs., Inc., 998 F.2d 157, 166 (3d Cir. 1993) (“Documents containing trade secrets or 13 other confidential business information may be protected from disclosure.”); Felix v. Davis 14 Moreno Const., Inc., No. CV F 07-0533 LJO GSA, 2008 WL 3009867, at *1 (E.D. Cal. 15 Aug. 1, 2008) (“Potential injury may result from disclosure of confidential and proprietary 16 business information, in that competitors could use such information ‘to duplicate 17 [plaintiffs’] products, compete for [their] customers, or interfere with [their] business plan 18 and thereby gain a competitive advantage in the marketplace.’”) 19 The Court agrees with Defendant and finds that despite the generally recognized 20 right to inspect records and documents in this country, Defendant has overcome this strong 21 presumption of access by providing compelling reasons to seal. See Nixon, 435 U.S. at 597 22 & n.7; see also Pintos v. Pac. Creditors Ass’n, 605 F.3d 665, 677–78 (9th Cir. 2010) 23 (holding that a “compelling reasons standard applies to most [motions to seal] judicial 24 records.”) (internal quotation marks omitted). 25 Accordingly, balancing the need for the public’s access to information and 26 Defendant’s interest in keeping this information private weighs strongly in favor of sealing. 27 Thus, the Court GRANTS Defendant’s motion to seal. (Doc. No. 35.) The Seal Clerk is 28 ORDERED to file these documents UNDER SEAL. 1 III. PLAINTIFF’S APPLICATION TO FILE CONFIDENTIAL DOCUMENTS 2 IN SUPPORT OF PLAINTIFF’S OPPOSITION TO DEFENDANT’S 3 MOTION FOR SUMMARY JUDGMENT 4 Plaintiff requests that the Court seal the following documents: (1) Exhibit 5: e-mail 5 dated August 27, 2017 from Michael Fulton to Alyssa Shaw and others at Ulta Beauty; (2) 6 Exhibit 8: Ulta Beauty Official Seal of Awesomeness awarded August 30, 2017 to Michael 7 Fulton and others; (3) Exhibit 9: excerpts from the Deposition of Alyssa Shaw dated 8 September 19, 2018; (4) Exhibit 12: e-mail dated July 10, 2017, from Alyssa Shaw 9 confirming $23,000 of stolen merchandise (at cost) from Ulta Beauty’s Hemet store; and 10 (5) Exhibit 13: shrink report for San Diego North showing total shrink as of May 2017 2.99 11 percent. (Doc. No. 44 at 2.) However, Plaintiff states that filing these documents under seal 12 is unwarranted but provides no support for this contention. (Id.) Plaintiff simply recites 13 Defendant’s arguments that compelling reasons do exist to file these documents under seal. 14 (See generally id.) 15 For the same reasons set forth above, the Court finds that despite the generally 16 recognized right to inspect records and documents in this country, Plaintiff has overcome 17 this strong presumption of access by providing compelling reasons to seal. See Nixon, 435 18 U.S. at 597 & n.7; see also Pintos, 605 F.3d at 677–78 (holding that a “compelling reasons 19 standard applies to most [motions to seal] judicial records.”) (internal quotation marks 20 omitted). 21 Accordingly, balancing the need for the public’s access to information and 22 Defendant’s interest in keeping this information private weighs strongly in favor of sealing. 23 Thus, the Court GRANTS Plaintiff’s motion to seal. (Doc. No. 44.) The Seal Clerk is 24 ORDERED to file these documents UNDER SEAL. 25 / / / 26 / / / 27 / / / 28 / / / 1 IV. DEFENDANT’S APPLICATION TO SEAL CONFIDENTIAL DOCUMENTS 2 IN SUPPORT OF DEFENDANT’S REPLY IN SUPPORT OF MOTION FOR 3 SUMMARY JUDGMENT 4 Defendant requests that the Court seal the following documents: (1) Exhibit A to the 5 Supplemental Declaration of Alyssa Shaw filed in support of Defendant’s Reply in Support 6 of Defendant’s Motion for Summary Judgment; (2) Exhibit B to the Supplemental 7 Declaration of Alyssa Shaw filed in support of Defendant’s Reply in Support of 8 Defendant’s Motion for Summary Judgment; (3) Exhibit C to the Supplemental 9 Declaration of Alyssa Shaw filed in support of Defendant’s Reply in Support of 10 Defendant’s Motion for Summary Judgment; and (4) the redacted portions of the 11 Supplemental Declaration of Alyssa Shaw filed in support of Defendant’s Reply in Support 12 of Defendant’s Motion for Summary Judgment. (Doc. No. 61 at 2–3.) 13 Defendant asserts that compelling reasons exist to file these documents under seal 14 since these documents contain detailed performance and financial information pertaining 15 to Defendant’s business, including the dollar amounts of the profits and losses of Ulta 16 stores in San Diego, and in California, and nationally. (Doc. No. 61 at 4.) Plaintiff asserts 17 that Defendant has not met its burden because it does nothing more than speculate that its 18 business interests might be harmed if the documents are not filed under seal. (Doc. No. 66 19 at 2.) Further, Plaintiff contends that the documents are several years old and could not 20 harm Defendant’s business. (Id. at 3.) The documents do contain Defendant’s retail sales 21 goals, the methods by which Defendant monitors retail sales, stores’ financial and 22 operational successes, customer satisfaction information, and information regarding the 23 performance of specific Ulta stores. 24 Based on the foregoing, the Court finds that despite the generally recognized right 25 to inspect records and documents in this country, Plaintiff has overcome this strong 26 presumption of access by providing compelling reasons to seal. See Nixon, 435 U.S. at 597 27 & n.7; see also Pintos, 605 F.3d at 677–78 (holding that a “compelling reasons standard 28 applies to most [motions to seal] judicial records.”) (internal quotation marks omitted). ] Accordingly, balancing the need for the public’s access to information and 2 || Defendant’s interest in keeping this information private weighs strongly in favor of sealing. 3 || Thus, the Court GRANTS Defendant’s motion to seal. (Doc. No. 61.) The Seal Clerk is 4 || ORDERED to file these documents UNDER SEAL. 5 ||V. DEFENDANT’S MOTION FOR JUDGMENT ON THE PLEADINGS 6 Defendant moves for judgment on the pleadings to dismiss Plaintiff's fourth and 7 causes of action for disparate impact under the California Fair Employment and 8 ||Housing Act (“‘FEHA”) (California Government Code § 12940, et seq.) and Title VII of 9 || Federal Civil Rights Act of 1964 (Title VI, 42 U.S.C. § 2000e) on the basis that Plaintiff 10 || failed to exhaust his administrative remedies with the DFEH and the EEOC. 11 As explained above, the Court is granting Defendant’s motion for summary 12 ||judgment on the fourth and sixth causes of action for disparate impact. Thus, the Court 13 || DENIES Defendant’s motion for judgment on the pleadings as moot. 14 CONCLUSION 15 Based on the foregoing, the Court GRANTS in part and DENIES in part 16 ||Defendant’s motion for summary judgment, GRANTS Defendant’s application to file 17 ||confidential documents under seal, GRANTS Plaintiff's application to file confidential 18 ||documents under seal, GRANTS Defendant’s application to seal confidential documents, 19 ||and DENIES Defendant’s motion for judgment on the pleadings as moot. The Seal Clerk 20 |/is hereby ORDERED to file the requested documents UNDER SEAL. Furthermore, the 21 ||Court ORDERS that Plaintiff’s objections to evidence submitted by Defendant in support 22 its motion for summary judgment, (Doc. No. 47), be STRICKEN from the Court’s 23 || docket. 24 || IT ISSO ORDERED. |!Dated: August 27, 2020 © er : 26 Hon. Anthony J.Battaglia 27 United States District Judge 28 14