Ronald Pineda v. Abbott Laboratories Inc. ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 20 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RONALD PINEDA, No. 19-55019
Plaintiff-Appellant, D.C. No.
2:18-cv-03395-SVW-RAO
v.
ABBOTT LABORATORIES INC., DBA MEMORANDUM*
Abbott Nutrition, DBA Abbott Sales,
Marketing Distribution Co., a corporation; et
al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding
Argued and Submitted August 19, 2020
Pasadena, California
Before: BERZON and COLLINS, Circuit Judges, and KATZMANN,** Judge.
Ronald Pineda appeals the district court’s denial of his motion to remand to
state court and dismissal on summary judgment of his claims that Abbott
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Gary S. Katzmann, Judge for the United States Court
of International Trade, sitting by designation.
Laboratories (“Abbott”) failed to accommodate his disabilities, discriminated
against him on the basis of age and disability, and engaged in retaliation. We have
jurisdiction under 28 U.S.C. § 1291. We review de novo the district court’s denial
of the motion to remand, Briggs v. Merck Sharp & Dohme, 796 F.3d 1038, 1047
(9th Cir. 2015), and the district court’s grant of summary judgment, Sonner v.
Schwabe N. Am., Inc., 911 F.3d 989, 992 (9th Cir. 2018). We affirm the district
court’s denial of remand and grant of summary judgment on the reasonable
accommodation, disability discrimination, and retaliation claims under the Fair
Employment and Housing Act (“FEHA”). We reverse summary judgment on the
age discrimination claim.
1. The district court properly held that Abbott met its burden of showing
that Pineda did not sufficiently plead harassment and intentional infliction of
emotional distress (“IIED”) claims against Alex Mazzenga, the only non-diverse
defendant. The district court thus properly denied the motion to remand to state
court because diversity was complete. 28 U.S.C. § 1332.
Pineda failed to allege facts in his complaint sufficient to plead a harassment
claim. Mazzenga’s alleged conduct arose “out of the performance of necessary
personnel management duties,” Janken v. GM Hughes Elecs., 46 Cal. App. 4th 55,
63–64 (1996), and did not rise to the level of the pervasive hostility recognized by
the California Supreme Court in Roby v. McKesson Corp., 47 Cal. 4th 686, 709
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(2009), as modified (Feb. 10, 2010). Additionally, Pineda did not allege facts
sufficient to plead the outrageous conduct required for a claim of IIED. See Cole
v. Fair Oaks Fire Prot. Dist., 43 Cal. 3d 148, 160 (1987).
The district court ruled on the motion for remand on the basis of the
complaint before it. Pineda cites no case law requiring the district court to allow
Pineda to amend his complaint with respect to the fraudulently joined, non-diverse
defendant upon denial of remand. We affirm the district court’s denial of remand
to state court.
2. The district court properly granted summary judgment for Abbott on
Pineda’s reasonable accommodation claim. It is undisputed that, following
Pineda’s traumatic brain injury, Abbott provided Pineda with eleven out of twelve
accommodations requested during the interactive process. Pineda argues that
Abbott failed to provide the twelfth requested accommodation, four-hour work
days for a period of six weeks. The record, however, makes clear that Abbott
accommodated a four-hour work day for an initial two-week period, after which
Pineda’s doctor cleared him to return to full-time work. Pineda testified that he did
not disagree with what his doctor wrote. The record, therefore, establishes that
Pineda did not need the full requested accommodation of six weeks of part-time
work, and thus that Abbott did not unreasonably deny it. We affirm the district
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court’s grant of summary judgment for Abbott on the reasonable accommodation
claim.
3. The district court properly granted summary judgment for Abbott on
Pineda’s disability discrimination claim. Pineda made a sufficient showing that he
suffered from a disability and is otherwise qualified for his position, but he failed
to present a genuine issue of material fact as to whether “he was subjected to
adverse employment action because of his disability.” Faust v. Cal. Portland
Cement Co., 150 Cal. App. 4th 864, 886 (2007) (quoting Deschene v. Pinole Point
Steel Co., 76 Cal. App. 4th 33, 44 (1999)).
To show he was subjected to an adverse employment action because of his
disability, Pineda points to (1) a supervisor’s criticism of him for sighing, (2) a
supervisor’s comments on his performance at meetings, (3) an email from his
supervisor that his medical leave put him further behind on performance, (4) an
alleged deficiency in Abbott’s discrimination investigation with respect to failing
to interview his supervisor, and (5) Abbott’s termination of him after his medical
leaves. However, it is undisputed that the supervisor was unaware of any disability
when criticizing Pineda for sighing; nothing in the comments about meeting
performance by a second supervisor suggested disability discrimination; and the
email was a true factual statement and expressed support for Pineda during a tough
time, context which Pineda failed to include in his briefs. The alleged procedural
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misstep in the investigation falls far short of showing discrimination based on
disability, pertained to a different disability than the one at issue immediately prior
to his termination, and was far in time from the termination. Lastly, it is
undisputed that Abbott initiated the first performance improvement plan, the
precursor to his termination, before Pineda took medical leave and informed
Abbott of his disabilities. Pineda presents no record evidence raising a genuine
issue as to whether any of Abbott’s comments or actions were discriminatory
toward his disabilities, and more importantly, presents no record evidence tying the
adverse employment action, termination, to the disability at issue in late 2016 and
early 2017, his traumatic brain injury. We thus affirm the district court on this
claim.
4. The district court properly granted summary judgment for Abbott on
Pineda’s retaliation claims because Abbott established that no genuine issue of
material fact exists as to whether Pineda could make a showing of pretext.
Even assuming arguendo that Pineda made a prima facie case, we conclude
that the district court correctly held that he failed to raise a triable issue of fact as to
whether Abbott’s proffered non-retaliatory motive, poor performance, was a
pretext for retaliation. As evidence of pretext, Pineda points to his supervisor’s
role in his termination, alleged defects in Abbott’s investigations into his
complaints, allegations that younger employees were treated differently, Abbott’s
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alleged failure to train his supervisor on retaliation policies, the timing of his
termination, and his history of strong performance. Pineda, however, does not
point to any evidence that his poor performance reviews did not predate the
protected activity or that Abbott did not investigate all his complaints but one
(which was far-removed in time from his termination and was made to a supervisor
instead of to Employee Relations). The protected activity responded to two
strongly negative performance evaluations; such evaluations, the record indicates,
are usually followed by discipline or termination, negating an inference of
pretextual retaliation for the post-evaluations protected activity.
Lastly, to establish pretext, Pineda points to a history of strong performance.
But that history involved accomplishments prior to and during 2011, well before
the protected activity.
As there is no record evidence presenting a genuine issue of material fact as
to whether Abbott took an adverse employment action against Pineda in retaliation
for protected activity, we affirm the grant of summary judgment for Abbott on the
retaliation claim.
5. The district court erred by granting summary judgment for Abbott on
Pineda’s age discrimination claim. Pineda made a prima facie showing as to age
discrimination, and genuine disputes of material fact exist as to pretext on that
claim.
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Pineda has satisfied the first three criteria for a prima facie case of age
discrimination under the FEHA. Pineda was over 40 and suffered an adverse
employment action, and Abbott does not challenge his ability to “demonstrate
some basic level of competence at his . . . job . . . based on objective, rather than
subjective, criteria.” Sandell v. Taylor-Listug, Inc., 188 Cal. App. 4th 297, 321–22
(2010).
The district court applied the wrong standard in holding that Pineda failed to
satisfy the fourth criterion, that the termination occurred under circumstances
suggestive of unlawful discrimination. See id. at 321. To satisfy the fourth prong
at the prima facie stage, the record evidence need only show that Pineda was
replaced by a substantially younger employee or that a genuine dispute exists as to
whether this was the case. See Nidds v. Schindler Elevator Corp., 113 F.3d 912,
917 (9th Cir. 1996); Sandell, 188 Cal. App. 4th at 321; Hersant v. Dep’t of Social
Services, 57 Cal. App. 4th 997, 1003 (1997). Here, the parties do not dispute that
Pineda “was replaced by a younger female—who is younger than forty—after he
was terminated.” Abbott, therefore, cannot meet its burden of showing that the
record does not support a prima facie case of age discrimination.
Because the parties do not dispute that Abbott can produce admissible
evidence to show the adverse employment action was taken for non-discriminatory
reasons and can thereby satisfy the second step of the McDonnell Douglas
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framework, we proceed to the third step: Did Pineda raise a triable issue of fact as
to whether Abbott’s proffered reason for terminating Pineda is pretext? See Earl v.
Nielsen Media Research, Inc., 658 F.3d 1108, 1112 (9th Cir. 2011); Guz v. Bechtel
Nat. Inc., 24 Cal. 4th 317, 355–56 (2000). By giving great weight to subjective,
cumulative performance reviews and failing to account for conflicting “me too”
evidence and accounts of bias, the district court erred in concluding that there was
no genuine dispute of material fact as to whether Abbott’s non-discriminatory
rationale was pretextual.
Complaints and performance evaluations are “often subjective” and may be
“motivated by discriminatory animus.” Sandell, 188 Cal. App. 4th at 316. The
record evidence demonstrates that, on some (but not all) objective criteria, Pineda
performed poorly, and Abbott is correct that such evidence could persuade a
reasonable jury to find that Abbott’s actions were not pretextual. But there is
additional evidence in the record that could lead a rational jury to find pretext, and
summary judgment was therefore improper.
For example, as to the negative evaluations, Pineda challenged some of the
examples set forth in his performance reviews at the time, but his supervisors did
not respond to his emails containing the challenges. Pineda also argued at the time
and maintains now that at least one of the goals set forth in his performance
improvement plan, conversion of the Kaiser account in the immediate future, was
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intended to set him up to fail. Although that goal was changed, a factfinder could
still infer a pretextual motive from the fact that it was established at the outset.
Additionally, “me too” evidence—here, declarations by other employees,
including two supervisors, alleging adverse employment actions against other
employees for discriminatory reasons—may “constitute substantial evidence
requiring reversal of [summary] judgment.” Johnson v. United Cerebral
Palsy/Spastic Children’s Found. of Los Angeles & Ventura Ctys., 173 Cal. App.
4th 740, 759 (2009). The record contains such evidence, although some of it was
qualified by the declarants in later declarations. Contrary to what Abbott suggests,
the submission of those later declarations does not eliminate the need for a trial to
sort out the importance of this evidence.
Similarly, an executive within the organization stated in a declaration that
she was instructed to “manage out” more senior, higher salaried employees who
were usually older—by inventing performance problems and assigning
unattainable goals. She later, in another declaration, retracted one paragraph of the
declaration and made statements qualifying other parts of her original declaration.
The conflicting accounts by the five declarants create a credibility question
regarding the weight to be accorded the contradictory evidence they provided, one
best suited for trial. Although Abbott asserts that the “me too” declarations are not
relevant because two of the declarants did not share any of Pineda’s supervisors,
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two of the declarants did share supervisors, and all of the declarations may offer
relevant information about organizational practices. The conflicting declarations
with “me too” evidence and evidence of biased policies, coupled with the
subjective nature of the performance evaluations, create a genuine issue of material
fact as to pretext for discriminatory animus such that summary judgment on the
age discrimination claim was improper.
For the foregoing reasons, the district court’s denial of remand to state court
is affirmed; the district court’s grant of summary judgment for Abbott as to the
reasonable accommodation, disability discrimination, and retaliation claims is
affirmed; and the district court’s grant of summary judgment as to the age
discrimination claim is reversed.
The parties shall bear their own costs on appeal.
AFFIRMED in part and REVERSED in part.
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