Martinez v. Costco Wholesale Corp., Case No.: 19CV1195-GPC(WVG)

481 F.Supp.3d 1076

Marisa MARTINEZ, an individual, Plaintiff,

v.COSTCO WHOLESALE CORPORATION, an unknown business entity; and Does 1 through 25, inclusive, Defendant.

Case No.: 19CV1195-GPC(WVG)

United States District Court, S.D. California.

Signed August 21, 2020

Joshua D. Gruenberg, Benjamin S. Silver, Law Offices of Joshua D. Gruenberg, San Diego, CA, for Plaintiff.

Matthew Scott McConnell, Sieun J. Lee, Tara Wilcox, Sheppard, Mullin, Richter & Hampton, LLP, San Diego, CA, for Defendant.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT

[DKT NO. 21.]

Gonzalo P. Curiel, United States District Judge Before the Court is Defendant Costco Wholesale Corporation's motion for partial summary judgment filed on June 5, 2020. (Dkt. No. 21.) On July 10, 2020, Plaintiff filed a response, and on July 24, 2020, Defendant filed a reply. (Dkt. Nos. 23, 25.) After a review of the briefs, supporting documentation, and the applicable law, the Court GRANTS in part and DENIES in part Defendant's motion for partial summary judgment.

Procedural Background

On June 26, 2019, the case was removed to this Court. (Dkt. No. 1.) Plaintiff Marisa Martinez ("Plaintiff" or "Marisa") filed a complaint against Defendant Costco Wholesale Corporation ("Defendant" or "Costco"), her former employer, on state law claims for (1) discrimination on the basis of a physical disability pursuant to California Government Code section 12940(a) ; (2) failure to accommodate pursuant to California Government Code section 12940(m) and California Code of Regulations, title 2, section 11068(a) ; (3) failure to engage in the interactive process pursuant to California Government Code section 12940(n) and California Code of regulations, title 2, section 11069(a) ; (4) retaliation and wrongful constructive termination pursuant to California Government Code section 12940(h) ; (5) failure to prevent discrimination pursuant to California Government Code section 12940(k) ; (6) retaliation pursuant to California Labor Code section 1102.5 ; (7) negligent supervision; and (8) intentional infliction of emotional distress. (Dkt. No. 1-2, Compl.) Defendant moves for partial summary judgement on all causes of action except for her second claim for failure to accommodate. (Dkt. No. 21.)

FACTUAL BACKGROUND

1. Plaintiff's Employment at Costco

Plaintiff was employed at Costco since 1993 until her resignation in March 2019. (Dkt. No. 23-1, P's Response to D's SSUF, Nos. 1, 46.) In October 1993, Defendant hired Plaintiff as a front-end clerk at its Kearny Mesa location. (Dkt. No. 21-5, McConnell Decl., Ex. 1, Martinez Depo. at 73:13-21.) In 1997, Plaintiff moved to Defendant's San Diego Regional Office to work as an Inventory Control Specialist ("ICS") for five years. (Id. at 74:7-18.) In 2002, Plaintiff became an Assistant Buyer for another five years and was promoted to Buyer in the Mexico Buying-Softlines Department in February 2007. (Id. at 74:19-75:15.) Both Assistant Buyer and Buyer were management-level positions. (Id. at 99:9-14.)

As a Buyer, Plaintiff reported to General Merchandise Manager ("GMM") Julie Daleo ("Daleo") who supervised Plaintiff for 12 years and provided her annual performance evaluations. (Dkt. No. 23-4, Gruenberg Decl., Ex. 2, Daleo Depo. at 19:19-20:4.) Daleo testified that Plaintiff was an employee who "did an excellent job" and had a "great relationship with the home office, imports departments, and international teams." (Id. at 20:15-18; 38:14-18.) Daleo reported to Vice President GMM, Steve Mantanona ("Mantanona"). (Dkt. No. 23-1, P's Response to D's SSUF, No. 7.) Daleo and Mantanona were both involved in the decision to hire Plaintiff as a buyer. (Dkt. No. 23-4, Gruenberg Decl., Ex. 2, Daleo Depo at 19:13-18.) Beginning in March 2018, Mantanona reported to Executive Vice President Russ Miller ("Miller"), who replaced retiring Dennis Zook ("Zook"). (Dkt. No. 23-1, P's Response to D's SSUF, No. 8.)

The job posting for the Buyer position at the time Plaintiff became a Buyer provided the following description: "Identifies product, and negotiates terms of purchase and delivery for items to be sold in U.S. outlets of a membership warehouse chain. Tracks item performance. Oversees and directs activities of Assistant Buyer and Inventory Control Specialist. Travels to attend trade shows, location openings, and business meetings." (Dkt. No. 21-5, D's App'x, Ex. 6 at 278.) As it related to travel duties, the job posting also provided: "Travels by air and auto for 3-5 day trips 6-10 times per year, with occasional trips of 7-10 days, to attend trade shows, location openings, regional meetings, factory tours, and other business meetings." (Id. )

It was not until an email dated August 29, 2018 and formally in a memorandum on November 8, 2018 that Plaintiff was informed that travel to Mexico three times a year was an essential duty of her position. (Dkt. No. 23-3, Gruenberg Decl., Ex. 1, Martinez Depo. at 306:5-11; Dkt. No. 21-5, D's App'x, Ex. 8 at 283; id. , Ex. 14 at 302-03.) However, during the 12 years she was a buyer, Plaintiff stated she competently performed her job duties despite only going to Mexico seven times. (Id. at 306:19-307:8.) She explained she received high marks on her reviews and made her numbers without having to go down to Mexico three times a year. (Id. at 308:3-13.) There were other buyers who had not been to Mexico in eight and five years, yet they were not challenged for not traveling to Mexico. (Id. at 308:12-309:7.) Daleo similarly testified that Plaintiff had been able to conduct her work competently by communicating with the staff in Mexico as well as buyers through email, messaging, phone, Facetime, and/or Zoom. (Dkt. No., 23-4, Gruenberg Decl., Ex. 2, Daleo Depo. at 104:16-105:2.) Daleo stated Plaintiff was able to perform most of her essential job functions without having to travel to Mexico. (Id. at 201:16-202:16.)

2. Plaintiff's Disability and Travel Concerns

According to her doctor on January 17, 2019, Plaintiff was diagnosed with "a significant history of severe anxiety with panic attacks." (Dkt. No. 21-5, D's App'x, Ex. 19 at 322.) In that letter, her doctor reported that Plaintiff "has an extreme fear of travel to Mexico which is exacerbating her panic attacks." (Id. ) On November 19, 2018, Plaintiff was first diagnosed with depression. (Dkt. No. 23-1, P's Response to D's SSUF, No. 64.)

Plaintiff testified that Michelle Martinez, the GMM's Assistant, knew she had anxiety and hypertension and Daleo, the GMM, knew she had anxiety, and they both knew she had a medical diagnosis of anxiety but Plaintiff does not recall when she informed them. (Dkt. No. 23-3, Gruenberg Decl., Ex. 1, Martinez Depo. at 193:6-8; 194:1-18.) But they knew about her diagnosis before November 26, 2018. (Id. at 286:18-25.) Mantanona knew she was nervous as he would call her "Nervous Nellie" all the time, so she assumed he knew she had anxiety. (Id. at 193:11-15; 287:2-10.) In addition, when Plaintiff did presentations, she would tell him she was "nervous" but acknowledged that she did not tell him she had a medical diagnosis of anxiety. (Id. at 193:16-25.)

Daleo testified she learned that Plaintiff suffered from anxiety 12 years ago and knew she was fearful of her safety while traveling to Mexico due to the heightened crimes against business travelers. (Dkt. No. 23-4, Gruenberg Decl., Ex. 2, Daleo Depo. at 17:17-21; 45:16-46:23.) She testified that before Mantanona denied her request for travel to New York on August 29, 2018, he knew that Plaintiff did not want to travel to Mexico due to safety concerns. (Dkt. No. 23-4, Gruenberg Decl., Ex. 2, Daleo Depo. at 71:13-73:6.)

Mantanona testified that he first learned that Plaintiff suffered from anxiety in January or February 2019. (Dkt. No. 21-5, McConnell Decl., Ex. 3, Mantanona Depo. at 21:2-7.) He also stated he did not make a comment about her nervousness to present in August 2016 in front of upper management, denied making a comment during a trip to Mexico that people should not mess with Plaintiff because she was scared to be there, and denied making the "Nervous Nellie" comment. (Id. at 21:8-24.)

As a Buyer for twelve years, Plaintiff had traveled to Mexico seven times. (Dkt. No. 23-3, Gruenberg Decl., Ex. 1, Martinez Depo. at 306:19-307:2.) Plaintiff testified that, at some point during her time as Buyer and during a trip to Mexico with Zook and Mantanona, "the fourth car in [her] caravan got boxed in and stopped and held up by gunpoint and robbed." (Id. at 130:3-12.). Plaintiff testified that she first raised safety concerns about travel to Mexico with Mantanona in 2010 due to the reported unrest in the country. (Dkt. No. 23-3 at 31, Gruenberg Decl., Ex. 1, Martinez Depo. at 115:13-25). At that time, Plaintiff approached Mantanona separately after a trip had been cancelled and asked about policies and procedure Costco had in place if something were to happen, but he blew her off and said nothing was going to happen. (Id. at 115:24-116:15.) On another occasion, Mantanona made fun of her and told people not to mess with Marisa because she was scared of being in Mexico. (Id. at 116:16-24.)

3. Acts of Alleged Discrimination and Retaliation

On August 20, 2018, Plaintiff submitted a travel authorization form for a trade show in New York from October 8-11, 2018 for approval by Daleo and Mantanona. (Dkt. No. 23-3, Gruenberg Decl., Ex. 1, Martinez Depo. at 105:13-106:12; 107:9-25; Dkt. No. 21-5, D's App'x, Ex. 7 at 180.) On August 28, 2018, Daleo informed Plaintiff that Mantanona was not going to approve any of her travel until she goes to Mexico. (Dkt. No. 23-3, Gruenberg Decl., Ex. 1, Martinez Depo. at 108:4-16; Dkt. No. 23-4, Gruenberg Decl., Ex. 2, Daleo Depo. at 66:17-25.) At that time, Plaintiff was the only member of the buying staff that Mantanona told he would not approve travel until they arranged travel to Mexico. (Dkt. No. 23-4, Gruenberg Decl., Ex. 3, Mantanona Depo. at...