Bourg v. Aetna Inc., 1:13-CV-00955-LJO-BAM

JODI A. BOURG, Plaintiff,

v. AETNA INC., AETNA GLOBAL BENEFITS,AETNA INTERNATIONAL INC., and DOES 1-100, Defendants.

1:13-CV-00955-LJO-BAM

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

Dated: August 12, 2013

ORDER ON MOTION FOR SUMMARY

JUDGMENT

(Doc. 8)

INTRODUCTION

Plaintiff Jodi A. Bourg ("Bourg") brought an action for wrongful termination and breach of contract against Defendants Aetna Inc., Aetna Global Benefits, Aetna International, and Does 1 through 100 ("Defendants"). Currently before the court is Defendants' motion for summary judgment. Having considered the parties' arguments and the entire record, the Court GRANTS Defendants' motion for summary judgment.

BACKGROUND

Bourg was employed by Defendants from approximately September 8, 1981 to her termination in 2011. At the time she was terminated, Bourg's title was AGB Account Manager for the Pacific/Northwest region.

During her employment with Defendants, Bourg alleges that she had a medical condition that entitled her to protected status under Cal. Gov. Code § 12940, et seq. Bourg also alleges that Defendants knew of her medical condition.

Bourg was born on June 29, 1953, and was over age of 40 at the time of her termination.

Bourg took medical leaves of absence from her employment with the Defendants from October 2008 to December 2008, from December 2009 to February 2010, and from September 2010 through November 2010. After Bourg returned from her leave of absence in November 2010, her manager informed her that her position as AGB Account Manager was being eliminated. Her manager stated that all of the approximately fifteen account managers were ranked, and that Bourg was ranked the lowest, but he denied having knowledge of the ranking criteria.

On February 2, 2011, Bourg received a written memorandum from Defendants stating that she "will no longer have a position with" Defendants, that her "last day of service will be February 6, 2011," and that "[t]his action is intended to be permanent." (Doc. 8 Exh. B). The memorandum also stated that Bourg's salary will be continued for nine weeks following her last day of service, and that she will be eligible for regular employee benefits during that period. The memorandum further stated that, if Bourg had not obtained another position with Defendants by the end of the salary continuation period, Bourg will be eligible to receive severance pay. The memorandum listed her "salary continuation start date" as February 7, 2011, her "salary continuation end date" as April 10, 2011, and her "employment termination date (if waiver not received)" as April 11, 2011.

Defendants allege that Bourg no longer reported for work following her last day of service on February 6, 2011.

On March 15, 2011, Bourg filed a charge of discrimination under the Fair Employment and Housing Act ("FEHA"), Cal. Gov. Code §12900, et seq., with the Department of Fair Employment and Housing ("DFEH"). In her FEHA charge, Bourg stated that, on or around February 4, 2011, she was laid off, denied employment, and denied accommodation by Defendants because of age, disability, and medical condition. Bourg received a right to sue notice from the DFEH on March 15, 2011.

Bourg brought this action for wrongful termination and breach of contract against Defendants in Fresno County Superior Court on February 22, 2013. Defendants removed the action to this Court on June 21, 2013 on the basis of diversity jurisdiction. On June 28, 2013, Defendants filed the instant motion for summary judgment. Defendants argue that each of Bourg's claims is time-barred. Defendants also move this Court to compel arbitration of Bourg's claims if the Court deniesDefendants' motion for summary judgment. Bourg filed an opposition on July 19, 2013, and Defendants filed a reply on August 1, 2013.

DISCUSSION

Motion for Summary judgment

A. Fed. R. Civ. P 56

1. Legal Standard

Fed. R. Civ. P. 56(b) permits a "party against whom relief is sought" to seek "summary judgment on all or part of the claim." "A district court may dispose of a particular claim or defense by summary judgment when one of the parties is entitled to judgment as a matter of law on that claim or defense." Beal Bank, SSB v. Pittorino, 177 F.3d 65, 68 (1st Cir. 1999).

Summary judgment is appropriate when there exists no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c)(2); Matsushita Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Assn., 809 F.2d 626, 630 (9th Cir. 1987). The purpose of summary judgment is to "pierce the pleadings and assess the proof in order to see whether there is a genuine need for trial." Matsushita Elec., 475 U.S. at 586, n. 11; International Union of Bricklayers v. Martin Jaska, Inc., 752 F.2d 1401, 1405 (9th Cir. 1985).

The evidence of the party opposing summary judgment is to be believed and all reasonable inferences that may be drawn from the facts before the court must be drawn in favor of the opposing party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Matsushita, 475 U.S. at 587. The inquiry is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251252.

To carry its burden of production on summary judgment, a moving party "must either produce evidence negating an essential element of the nonmoving party's claim or defense or show that the nonmoving party does not have enough evidence of an essential element to carry its ultimate burden of persuasion at trial." Nissan Fire & Marine Ins. Co. v. Fritz Companies, Inc., 210 F.3d 1099, 1102 (9th Cir. 2000); see, High Tech Gays v. Defense Indus. Sec. Clearance Office, 895 F.2d 563, 574(9th Cir. 1990). "[T]o carry its ultimate burden of persuasion on the motion, the moving party must persuade the court that there is no genuine issue of material fact." Nissan Fire, 210 F.3d at 1102; see, High Tech Gays, 895 F.2d at 574. "As to materiality, the substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248.

"If a moving party fails to carry its initial burden of production, the nonmoving party has no obligation to produce anything, even if the nonmoving party would have the ultimate burden of persuasion at trial." Nissan Fire, 210 F.3d at 1102-1103. "If, however, a moving party carries its burden of production, the nonmoving party must produce evidence to support its claim or defense." Nissan Fire, 210 F.3d at 1103; see High Tech Gays, 895 F.2d at 574. "If the nonmoving party fails to produce enough evidence to create a genuine issue of material fact, the moving party wins the motion for summary judgment." Id. at 1103; see, Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) ("Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make the showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.")

"But if the nonmoving party produces enough evidence to create a genuine issue of material fact, the nonmoving party defeats the motion." Id. "The amount of evidence necessary to raise a genuine issue of material fact is enough 'to require a jury or judge to resolve the parties' differing versions of the truth at trial.'" Aydin Corp. v. Loral Corp., 718 F.2d 897, 902 (9th Cir. 1983) (quoting First Nat'l Bank v. Cities Service Co., 391 U.S. 253, 288-289 (1968)). "The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient." Anderson, 477 U.S. at 252.

"In cases that involve ... multiple causes of action, summary judgment may be proper as to some causes of action but not as to others, or as to some issues but not as to others, or as to some parties, but not as to others." Barker v. Norman, 651 F.2d 1107, 1123 (5th Cir.1981); see also Robi v. Five Platters, Inc., 918 F.2d 1439 (9th Cir.1990); Cheng v. Commissioner Internal Revenue Service, 878 F.2d 306, 309 (9th Cir.1989). A court "may grant summary judgment as to specific issues if it will narrow the issues for trial." First Nat'l Ins. Co. v. F.D.I.C., 977 F.Supp. 1051, 1055 (S.D. Cal.1977).

2. Analysis

Defendants seek summary judgment of Bourg's claims on the basis that they are time-barred. The parties agree that Bourg's common law wrongful discharge claims and breach of contract claim are each subject to a two-year statute of limitations period. The Court agrees. Cal. Code Civ. P. §§ 335.1, 339. See also, Mathieu v. Norrell Corp., 115 Cal. App. 4th 1174, 1189 n. 14 (Cal. Ct. App. 2004) ("Effective January 1, 2003, the statute of limitations was changed to two years.").

The parties only contest when the limitations period for Bourg's claims began to run. Defendants contend that Bourg's claims accrued on February 6, 2011, Bourg's final day of service with Defendants. Bourg argues that her claims accrued on April 11, 2011, when her salary continuation period ended. Because Bourg filed her complaint on February 22, 2013, Bourg's claims must have accrued on or after February 22, 2011 for her complaint to be timely.

i. Wrongful Termination in Violation of Public Policy

Bourg alleges that Defendants terminated her due to her medical condition and her age in violation of public policy.

California law recognizes a tort cause of action for wrongful termination in violation of public policy. Tameny v. Atlantic Richfield Co, 27 Cal. 3d 167, 172 (1980) ("[A]n employer's traditional authority to discharge an at-will employee may be limited by statute ... or by considerations of public policy."). There can be no right to terminate for an...