1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 TALA RUSSELL, Case No. 18-cv-04525-EMC

8 Plaintiff, ORDER GRANTING DEFENDANT’S 9 v. MOTION FOR SUMMARY JUDGMENT 10 KRONOS INCORPORATED, Docket No. 55 11 Defendant.

12 13 Plaintiff Tala Russell has filed an employment discrimination case against her former 14 employer Kronos Inc. The specific claims she has asserted are as follows: 15 • Sex discrimination in violation of FEHA and Title VII (claims 1 and 7). 16 • National origin discrimination in violation of FEHA and Title VII (claims 2 and 8). 17 • Race discrimination in violation of FEHA and Title VII (claims 3 and 9).1 18 • Retaliation in violation of FEHA and Title VII (claims 4 and 10). 19 • Failure to prevent discrimination and harassment in violation of FEHA (claim 5). 20 • Wrongful discharge in violation of public policy (claim 6). 21 Currently pending before the Court is Kronos’s motion for summary judgment. Kronos 22 asks for summary judgment on all causes of action. 23 I. FACTUAL & PROCEDURAL BACKGROUND 24 The evidence submitted by the parties reflects as follows. (Where there are disputes of 25 fact, or evidentiary objections in need of ruling, they are so noted.) 26

27 1 Ms. Russell has asserted only discrete claims for sex discrimination, national origin 1 Ms. Russell is a Hispanic woman. See Burton Decl., Ex. 211 (Russell Depo. at 18). She 2 worked for Kronos from approximately September 2013 to July 2017 (almost four fiscal years2) as 3 a Senior Sales Executive. Kronos terminated Ms. Russell purportedly because of poor 4 performance. The decision to terminate was made by her direct supervisor, Chris Lipscomb, with 5 the approval of Human Resources and Mr. Lipscomb’s superiors (Tony Lombardi and Robert 6 Kennedy). See Cullen Decl. ¶ 9. 7 For Ms. Russell’s first year of employment with Kronos (FY2014), there is no evidence in 8 the record about her performance.3 9 For Ms. Russell’s second year of employment (FY2015), it appears that she achieved 66% 10 of her annual quota. See Cullen Decl., Ex. 178 (draft LOC). Her direct supervisor at the time, 11 Mike Solomon gave her a performance review that included some positives but also included 12 some criticisms. His overall rating for her performance was “Inconsistent.” Hudson Decl., Ex. 63 13 (Performance Review at 10). 14 For Ms. Russell’s third year of employment (FY2016), Ms. Russell achieved 95% of her 15 quota. See Russell Decl. Ex. 194 (FY2016 Worldwide Sales Rankings). Kronos maintains, 16 however, that quota attainment is not the only metric on which a sales executive’s performance is 17 measured. See Cullen Decl. ¶ 8; Lipscomb Decl. ¶ 28. Kronos also asserts that the 95% quota 18 attainment for FY2016 is misleading because it includes split commissions. According to Kronos, 19 if two deals (with DirecTV and U.K. Celesio) are excluded because they involved split 20 commissions, then Ms. Russell’s quota attainment for FY2016 is actually 32%. See Lipscomb 21 Decl., Ex. 164 (Mr. Lipscomb’s notes); Cullen Decl. ¶ 7 & Ex. 170 (email). Kronos adds that, 22 even if only the U.K. Celesio deal is excluded (i.e., Ms. Russell disputes that the DirecTV deal 23 involved a split commission), her quota attainment is only about 63%. See Cullen Decl., Ex. 178 24 2 Kronos operates on a fiscal year that begins on October 1 and ends on September 30. See 25 Lipscomb Decl. ¶¶ 3, 5.

26 3 In her opposition, Ms. Russell claims that she achieved 121% of her annual quota for FY2014, see Opp’n at 2, but she does not cite to any evidence in support. See Carmen v. S.F. Unified Sch. 27 Dist.,

, 1031 (9th Cir. 2001) (stating that “[t]he district court need not examine the 1 (draft LOC). In response, Ms. Russell argues that “there is no written requirement that a sales 2 executive must complete the deals alone to be successful.” Opp’n at 2. 3 In or about October 2016, i.e., following the close of FY2016, Ms. Russell’s direct 4 supervisor at the time, Mr. Solomon, drafted a Letter of Concern (“LOC”) regarding Ms. Russell’s 5 performance. See Cullen Decl., Ex. 178 (LOC); Cullen Decl., Ex. 177 (email). In the draft LOC, 6 Mr. Solomon questioned her sales productivity (based on her quota attainments for the prior two 7 years) and also her “pipeline” development (i.e., possible deals). The LOC was never issued 8 because Mr. Solomon resigned thereafter and “it was felt the matter should wait for plaintiff’s new 9 supervisor to assume his or her post.” Cullen Decl. ¶ 6. 10 In addition, in or about October 2016, Kronos reorganized the “vertical” (i.e., line of 11 business) in which Ms. Russell worked. More specifically, Kronos created a new subvertical, 12 “targeting larger accounts with an international footprint,” and “[s]everal sales executives, 13 including Tommy Chacko, were promoted to a Global Account Manager at that time.” Lombardi 14 Decl. ¶ 5. The restructuring resulted in the transfer of three of Ms. Russell’s accounts to Mr. 15 Chacko. The three accounts were McKesson, Microsoft, and Teletech. 4 See Lombardi Decl. ¶ 5. 16 According to Ms. Russell, the transfer of the three accounts was a major factor in her sales 17 numbers going down. However, she testified at her deposition that she did not have any reason to 18 believe that the transfer of the accounts had anything to do with her sex or ethnicity.5 See Hudson 19 Decl., Ex. 190 (Russell Depo. at 41-42). 20 For the McKesson account, Ms. Russell continued to do work even after the transfer of the 21 account to Mr. Chacko – through approximately March 2017. See Russell Decl., Ex. 207 (emails). 22 Ms. Russell’s direct supervisor at the time (Mr. Lombardi) told Ms. Russell that she would be 23 entitled to split commissions with Mr. Chacko for the first three quarters of FY2017. See 24 4 At the hearing, Ms. Russell asserted that Mr. Chacko was a Global Account Manager for one 25 year only and then reverted back to his prior position as a Sales Executive, keeping the McKesson account with him. Although there is evidence that Mr. Chacko was only a Global Account 26 Manager for one year, see Chacko Reply Decl. ¶ 1, there is no evidence about what happened with the McKesson account after he was no longer a Global Account Manager. 27 1 Lombardi Decl. ¶¶ 6-7. Ms. Russell was ultimately fired at the end of 3Q FY2017 before any 2 McKesson deals actually closed and thus she never received any split commissions. See Russell 3 Decl., Ex. 207 (emails). According to Ms. Russell, Mr. Chacko deliberately delayed in closing the 4 McKesson deals in order to deprive her of the split commissions. Mr. Chacko, however, denies 5 such. See, e.g., Chacko Reply Decl. ¶ 3 (testifying that “[t]he notion that I would deliberately 6 delay . . . in order to avoid sharing a commission is absurd” because, “[a]s anyone involve[d] in 7 sales understands, securing the customer’s signature on a contract is the only effective assurance 8 that a sale will occur”); Chacko Reply Decl. ¶ 5 (testifying about the “[m]any factors caus[ing] the 9 closing of the McKesson contract to be delayed”). Mr. Chacko is not a named defendant and he is 10 not alleged to be a decisionmaker here. 11 Mr. Lipscomb became Ms. Russell’s direct supervisor in or about February 2017. See 12 Lombardi Decl. ¶ 10. Approximately a month later, in March 2017, Mr. Lipscomb told Ms. 13 Russell that she “would be more suited to take a customer service role.” Hudson Decl., Ex. 46 14 (Ms. Russell’s notes). In April 2017, Mr. Lipscomb began to work with Human Resources on a 15 LOC regarding Ms. Russell’s performance. See Lipscomb Decl. ¶ 13. According to Mr. 16 Lipscomb, there were several considerations that led to his conclusion that a LOC was necessary. 17 For example, Ms. Russell’s quota attainment at the time was below 12% (2Q FY2017 had just 18 closed). See Lipscomb Decl. ¶ 4. Also, Ms. Russell’s opportunities in the pipeline were not 19 qualified and were not progressing through sales stages. See Lipscomb Decl. ¶ 6; see also 20 Lombardi Decl. ¶ 9 (testifying that a qualified opportunity is “an opportunity where a prospect has 21 an actual need for a product or service offered by Kronos, and there is a reasonable probability that 22 that prospect will actually purchase from Kronos”). Sales productivity and pipeline development 23 were issues that had also been identified by both of Ms. Russell’s prior direct supervisors, Mr. 24 Solomon (who authored the draft LOC discussed above) and Mr. Lombardi. See Lombardi Decl. 25 ¶ 9 (discussing pipeline development). 26 Mr. Lipscomb issued the LOC to Ms. Russell on April 13, 2017. Areas of concern 27 identified on the LOC included sales productivity (based on quota attainment for the year) and 1 On June 2, 2017, Mr. Lipscomb issued a performance improvement plan (“PIP”) to Ms. 2 Russell, purportedly because her performance continued to be poor. See Lipscomb Decl., Ex. 20 3 (PIP); Lipscomb Decl., 127 (email). In the PIP, Mr. Lipscomb set certain performance goals for 4 Ms. Russell to obtain by July 14, 2017 (i.e., just after 3Q FY2017). For example, “[a] minimum 5 quota attainment of 75% YTD is expected.” Lipscomb Decl., Ex. 20. Also, “[e]xpect a pipeline 6 of 3x annual quota (with movement through stages) and forecast of minimum 80% of quota as 7 well (monthly & quarterly).” Lipscomb Decl., Ex. 20. Ms. Russell suggests that these were 8 unrealistic goals. 9 Shortly before the PIP review period was to close, Mr. Lipscomb communicated with 10 Human Resources about Ms. Russell’s performance. He noted, inter alia, that her quota 11 attainment for FY2017 remained quite low. See Lipscomb Decl., Ex. 164 (Mr. Lipscomb’s notes) 12 (indicating 9% for Q1, 1% for Q2, and 7% for Q3). He also indicated that Ms. Russell’s forecast 13 for Q4 was questionable. See Lipscomb Decl., 164; see also Lipscomb Decl. ¶¶ 26, 29 (indicating 14 that two opportunities identified by Ms. Russell never closed). 15 The decision to terminate Ms. Russell was made by Mr. Lipscomb with the approval of 16 Human Resources and his two superiors, Mr. Lombardi (who had been Ms. Russell’s direct 17 supervisor for a brief period of time) and Mr. Kennedy. According to Mr. Lipscomb,

18 [t]he decision to terminate Plaintiff in July of 2017 was not a one- dimensional decision based on just plaintiff’s quota attainment in 19 fiscal year 2017. We looked at the entire picture, and considered other factors, including the following: (1) plaintiff had worked for 20 Kronos as a Senior Sales Executive since 2013, and therefore had almost four years to build her pipeline; (2) plaintiff was assigned to 21 a mature vertical, the Services and Distribution vertical; (3) during FY 2017 plaintiff had not demonstrated progress in moving 22 opportunities in her pipeline through the various sales stages; as of July of 2017, it did not appear that any significant sales were on the 23 horizon; (4) I had personally observed plaintiff’s performance during numerous sales meetings, and her performance was 24 unimpressive; she often exhibited a serious lack of preparation and planning, as well as a lack of attention and participation in the 25 meetings; (5) although plaintiff had nominally achieved 95% of her quota in FY 2016, this was the only year she came close to 26 achieving her quota, and she did so only because of major transactions on which another sales representative was, at a 27 minimum, a major contributor; and (6) plaintiff’s forecasting of 1 Lipscomb Decl. ¶ 31. The decision to terminate was communicated to Ms. Russell on July 17, 2 2017. See Lipscomb Decl. ¶ 30. 3 Ms. Russell was replaced by a woman. See Cullen Decl. ¶ 12. 4 II. DISCUSSION 5 A. Legal Standard 6 Federal Rule of Civil Procedure 56 provides that a “court shall grant summary judgment 7 [to a moving party] if the movant shows that there is no genuine dispute as to any material fact and 8 the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). An issue of fact is 9 genuine only if there is sufficient evidence for a reasonable jury to find for the nonmoving party. 10 See Anderson v. Liberty Lobby, Inc.,

(1986). “The mere existence of a 11 scintilla of evidence . . . will be insufficient; there must be evidence on which the jury could 12 reasonably find for the [nonmoving party].”

. At the summary judgment stage, evidence 13 must be viewed in the light most favorable to the nonmoving party and all justifiable inferences 14 are to be drawn in the nonmovant’s favor. See

. 15 Where a defendant moves for summary judgment based on a claim for which the plaintiff 16 bears the burden of proof, the defendant need only by pointing to the plaintiff’s failure “to make a 17 showing sufficient to establish the existence of an element essential to [the plaintiff’s] case.” 18 Celotex Corp. v. Catrett,

(1986); see also Fontenot v. Upjohn Co.,

(5th Cir. 1986) (stating that, “if the movant bears the burden of proof on an issue, 20 either because he is the plaintiff or as a defendant he is asserting an affirmative defense, he must 21 establish beyond peradventure all of the essential elements of the claim or defense to warrant 22 judgment in his favor”) (emphasis omitted). 23 B. Sex Discrimination 24 Ms. Russell brings claims for sex discrimination pursuant to Title VII as well as FEHA. 25 Under Title VII, where a plaintiff claims sex discrimination on the basis of disparate 26 treatment, she may establish her case by using the McDonnell Douglas framework6 or by simply 27 1 producing direct or circumstantial evidence demonstrating that a discriminatory reason more likely 2 than not motivated the defendant. See Reynaga v. Roseburg Forest Prods.,

(9th 3 Cir. 2017). 4 Similarly, where a plaintiff brings a sex discrimination claim under FEHA, she may rely 5 on the McDonnell Douglas framework. See Moore v. Regents of Univ. of Cal.,

(2016) (stating that, “[b]ecause a plaintiff does not often possess or obtain direct 7 evidence that an illegitimate criterion was a substantial factor in a particular employment decision, 8 California has adopted the three-stage burden shifting test for discrimination claims set forth in 9 McDonnell Douglas”). 10 In the instant case, Ms. Russell relies on the McDonnell Douglas framework for her sex 11 discrimination claim – as well as for her other disparate treatment claims. Under that framework, 12 a plaintiff may establish a prima facie case of employment discrimination by showing (1) that she 13 is a member of a protected class; (2) that she was qualified for the position and was performing the 14 job satisfactorily; (3) that she experienced an adverse employment action; and (4) that similarly 15 situated individuals outside the protected class were treated more favorably (or that there are other 16 circumstances surrounding the adverse employment action that give rise to an inference of 17 discrimination). See Hawn v. Exec. Jet Mgmt.,

(9th Cir. 2010).

18 If the plaintiff establishes a prima facie case, then [t]he burden of production, but not persuasion, . . . shifts to the employer to 19 articulate some legitimate, nondiscriminatory reason for the challenged action. If defendant meets this burden, [the] plaintiff[] 20 must then raise a triable issue of material fact as to whether the defendant’s proffered reasons for [the] termination [or other adverse 21 employment action] are mere pretext for unlawful discrimination. 22

.

23 “[A] plaintiff can prove pretext in two ways: (1) indirectly, by showing that the employer’s proffered explanation is ‘unworthy of 24 credence’ because it is internally inconsistent or otherwise not believable, or (2) directly, by showing that unlawful discrimination 25 more likely motivated the employer.” “All of the evidence [as to pretext] – whether direct or indirect – is to be considered 26 cumulatively.”

27 Where the evidence of pretext is circumstantial, rather than direct, tempered by [the Ninth Circuit’s] observation that, in the context of 1 Title VII claims, the burden on plaintiffs to raise a triable issue of fact as to pretext is “hardly an onerous one.” 2 3 Noyes v. Kelly Servs.,

(9th Cir. 2007). 4 1. Prima Facie Case 5 In the pending motion for summary judgment, Kronos assumes that Ms. Russell has 6 enough evidence to make out a prima facie case of sex discrimination under McDonnell Douglas. 7 See Mot. at 17. Kronos argues, nevertheless, that it is entitled to summary judgment because it 8 had legitimate nondiscriminatory reasons for terminating Ms. Russell, and Ms. Russell has failed 9 to raise a triable issue of material fact as to whether those reasons are mere pretext for unlawful 10 discrimination. 11 Because Kronos assumes that Ms. Russell has satisfactorily established a prima facie case, 12 the Court shall also make that assumption. That being said, it is doubtful whether the evidence of 13 record in fact supports a prima facie case of sex discrimination. Although Ms. Russell asserts that 14 similarly situated men were treated more favorably, she does not identify any specific men in her 15 papers, see Opp’n at 5 (arguing only that “[s]everal other employees outside of Plaintiff’s 16 protected class failed to meet their quotas for fiscal year 2016 and 2017 and they were not 17 terminated”), and her chart at Exhibit 203 (attached to her declaration) does not provide enough 18 information to indicate that any of the men listed on the chart were similarly situated “‘in all 19 material respects.’”7 Beck v. UFCW, Local 99,

(9th Cir. 2007). For example, 20 the chart does not indicate how long any of the men had worked at Kronos. Also, while the chart 21 provides information about the men’s quota attainments for FY2016 and part of FY2017, it does 22 not provide information about their forecasts for Q4 FY2017; nor does the chart provide 23

24 7 Kronos has objected to Exhibit 203 on the basis that it is not admissible evidence. See Reply at 13 (arguing that “[i]t is unclear why Plaintiff is relying on her purported summary of Kronos 25 records” as she “has made no showing that the originals are unavailable”; “[t]o the extent Plaintiff might argue that Exhibit 203 is admissible as a summary of voluminous writings under Rule 1006, 26 Plaintiff has not offered to make the source materials available, and is presumably unable to do so”). But evidence may be presented in a form that is not admissible at trial so long as it could 27 ultimately be capable of being put in admissible form. See Fed. R. Civ. P. 56(c)(2) (providing that 1 information about the men’s quota attainments for FY2015. Thus, there is no evidence that the 2 male comparators failed to meet quota attainments for three straight years. Nor does the chart 3 speak to any of the men’s pipeline development. Notably, Ms. Russell’s replacement was female 4 – a member of the same protected group – so her replacement is not a comparable. 5 2. Pretext 6 In any event, based on the record before the Court, Kronos has offered evidence to support 7 its claim that it had nondiscriminatory reasons for terminating Ms. Russell – i.e., her performance 8 was a problem for the last three years (out of four total) that she worked for Kronos (FY2015, 9 FY2016, and FY2017). Notably, Ms. Russell had three different direct supervisors during her 10 time at Kronos (Mr. Solomon, Mr. Lombardi, and Mr. Lipscomb), and each of them identified 11 problems with performance, both in terms of quota attainment and pipeline development. 12 Ms. Russell maintains that the asserted reason for termination was actually a pretext for a 13 discriminatory motive, but Ms. Russell has failed to raise a triable issue of fact on pretext. 14 Although the burden on Ms. Russell to raise a triable issue of fact is not onerous, she still is 15 required to provide “specific” and “substantial” facts showing a genuine issue for trial. Noyes, 16

. None of Ms. Russell’s arguments on pretext is convincing. 17 For example, Ms. Russell argues that she did not, in fact, have three years in a row of low 18 quota attainment because her quota attainment for FY2016 was actually 95%. Ms. Russell admits 19 that her quota attainment of 95% includes one split commission, see Hudson Decl., Ex. 190 20 (Russell Depo. at 165) (upon being asked whether “most of the work [on the U.K. Celesio 21 account] was done by the U.K. team,” stating: “I would have to stay it was a fair balance[;] 22 [m]aybe they did a little bit more because they were actually on the ground and we were virtual”), 23 but asserts that she should not be penalized for a split commission, particularly because “there is 24 no written requirement that a sales executive must complete the deals alone to be successful.” 25 Opp’n at 2. The problem for Ms. Russell is that, even so, the fact remains that this was the only 26 year where she came close to meeting the quota requirement. The split commission explains why 27 that 95% year was not indicative of a solid performance in the context of her inferior performance 1 the ability of a sales executive to achieve sales individually”); Lipscomb Decl. ¶ 28 (same). 2 Kronos was evaluating Ms. Lipscomb’s performance over a period of several years. For FY2015, 3 her quota attainment was about 66% and her direct supervisor, Mr. Solomon, gave her an overall 4 rating of “Inconsistent.” Through Q3 FY2017 (i.e., when she was terminated), her quota 5 attainment was about 9%, and there is nothing to indicate that things were likely to improve for 6 Q4 FY2017 (even if Ms. Russell was trying her best to get more deals or close more deals). See 7 Lipscomb Decl. ¶ 31. 8 Ms. Russell’s attempts to counter Kronos’s evidence are unavailing. To the extent Ms. 9 Russell argues that her ability to achieve her quota for FY2017 was impacted by the transfer of 10 three of her accounts to Mr. Chacko in October 2016; at her deposition, she admitted that the 11 transfer of the accounts was not motivated by a discriminatory animus. Nor does her argument 12 explain her Q3 FY2017 attainment of only 9% of quota. Also, although Ms. Russell claims that 13 Mr. Chacko deliberately delayed in closing the McKesson deals to deprive her of split 14 commissions (which would have given her a higher quota attainment for FY2017), that seems 15 highly implausible given that that would put Mr. Chacko’s own commission at risk. But even if 16 he had done so, that would suggest at most that he was acting out of greed, not a discriminatory 17 motive; furthermore, even if he had a discriminatory motive, there is no evidence in the record that 18 Mr. Chacko had any role in the decision to terminate Ms. Russell. To the extent Ms. Russell 19 contends that unrealistic goals were being set for her, it is not entirely clear what she means by 20 this. If, for instance, she is suggesting that it was unrealistic for Kronos to set a 75% quota 21 attainment by the end of the PIP review period (mid-July 2017), see Lipscomb Decl., Ex. 20 (PIP), 22 she presents no evidence why that was an unrealistic goal. Finally, even though Ms. Russell 23 argues that Kronos should have given her to the end of FY2017 to try to meet her annual quota, 24 there is no evidence that Kronos had a policy or practice of affording its sales executives such an 25 opportunity – i.e., waiting until the end of a fiscal year to terminate an employee whose 26 performance was substandard. The speculative existence of such a policy or practice would be 27 highly doubtful as it would mean that Kronos could never fire any sales executive until the end of 1 Ms. Russell also overlooks the fact that quota attainment was not Kronos’s only measure 2 for her performance. Kronos also took into account that Ms. Russell had “almost four years to 3 build her pipeline,” “was assigned to a mature vertical,” and “had not demonstrated progress in 4 moving opportunities in her pipeline through the various sale stages.” Lipscomb Decl. ¶ 31. At 5 the hearing, Ms. Russell protested that sales cycles take several months so a pipeline cannot be 6 developed overnight. But even accepting this as true (the Court notes that Ms. Russell cited to no 7 evidence about sales cycles and their lengths in her papers), the fact remains that Kronos was 8 evaluating her pipeline development over the course of four years. Her three direct supervisors all 9 found her pipeline development a problem. She presents no evidence countering Kronos’s record 10 evidence. 11 Ms. Russell protests still that the asserted reason for her termination was pretextual 12 because Mr. Lipscomb (the main decisionmaker behind her termination) told her within two days 13 of becoming her supervisor that she was not cut out for the job. But even if this is true (Ms. 14 Russell did not claim this as a basis for pretext in her papers nor cite to any evidence in support), 15 the evidence of record reflects that concerns about Ms. Russell’s performance started well before 16 Mr. Lipscomb became her supervisor. As indicated above, Mr. Solomon, her first direct 17 supervisor, drafted a LOC in October 2016. Ms. Russell does not contend that Mr. Lipscomb was 18 unaware of her performance problems when he was her direct supervisor. 19 For the foregoing reasons, the Court concludes that Ms. Russell has failed to raise a triable 20 issue of fact regarding pretext. At best, Ms. Russell has “created only a weak issue of fact as to 21 whether [Kronos’s reason for her termination] was untrue,” and there is significant “evidence that 22 no discrimination . . . occurred,” Reeves v. Sanderson Plumbing Products, Inc.,

, 148 23 (2000). That evidence includes not only the evidence discussed above but also the fact that Ms. 24 Russell’s replacement was a woman and there is no indication that Kronos had a pattern or 25 practice of disciplining or firing women. 26 Left with this predicament, Ms. Russell asserts that “disparaging comments about women” 27 were made by: 1 . a man could have a baby”); 2 • Mr. Solomon (who “commented on the size of a woman’s breasts” about four times 3 and “also said that women weren’t too bright”); and 4 • Mr. Lipscomb (who “introduced Ms. Russell [during a meeting in March 2017] [as 5 having] ten kids” even though she does not have any children). 6 Opp’n at 5. But Mr. Chacko was a co-worker, not a supervisor, and there is no evidence he had 7 any influence on the relevant decisionmakers who approved her termination. Mr. Solomon was 8 not a part of the actual decision to terminate Ms. Russell (having resigned almost a year earlier). 9 And at best Mr. Lipscomb’s statement is the kind of “‘stray’ remark[] . . . insufficient to establish 10 discrimination.” Merrick v. Farmers Ins. Grp.,

, 1438-39 (9th Cir. 1990) 11 (indicating that “stray ‘remarks, . . . when unrelated to the decisional process, are insufficient to 12 demonstrate that the employer relied on illegitimate criteria, even when such statements are made 13 by the decisionmaker in issue’”); see also Nesbit v. Pepsico, Inc.,

(9th 14 Cir. 1993) (concluding that a superior’s comment that “[w]e don’t necessarily like grey hair” “was 15 uttered in an ambivalent manner and was not tied directly to [the plaintiff’s] termination” and thus 16 was “at best weak circumstantial evidence of discriminatory animus”). 17 The Court thus grants Kronos’s motion for summary judgment on the sex discrimination 18 claims. 19 C. National Origin and Race Discrimination 20 The analysis of Ms. Russell’s claims of national origin and race discrimination is similar to 21 the analysis above on Ms. Russell’s claims of sex discrimination. That is, there are serious 22 questions as to whether Ms. Russell can even establish a prima facie case of national origin/race 23 discrimination given that her chart at Exhibit 203 does not provide enough information to suggest 24 that the Caucasian individuals listed on the chart were similarly situated in all material respects. 25 See Russell Decl., Ex. 203 (not indicating information about forecasts for Q4 FY2017, quota 26 attainments for FY2015, and pipeline development).8 But even assuming a prima facie case, 27 1 Kronos has offered nondiscriminatory reasons for terminating Ms. Russell – i.e., her performance 2 was problematic – and, for the reasons discussed above, Ms. Russell has failed to raise a triable 3 issue of fact on pretext/discriminatory intent. 4 D. Retaliation 5 In addition to Title VII and FEHA disparate treatment, Ms. Russell also brings Title VII 6 and FEHA retaliation claims. That is, Ms. Russell claims that Kronos retaliated against her after 7 she made complaints about sex, national origin, and/or race discrimination. See, e.g., Nilsson v. 8 City of Mesa,

(9th Cir. 2007) (noting that “Title VII prohibits, among other 9 things, retaliation against an employee for making a charge or otherwise participating in a Title 10 VII proceeding”). 11 To establish a prima facie case of retaliation under Title VII, a plaintiff

12 “must demonstrate that (1) she had engaged in a protected activity;” (2) the [defendant] subjected her “to an adverse employment action; 13 and (3) a causal link existed between the protected activity and the adverse employment action.” “If [the plaintiff] provides sufficient 14 evidence to show a prima facie case of retaliation, the burden then shifts to the [defendant] to articulate a legitimate, non-retaliatory 15 reason for its actions.” “If the [defendant] sets forth such a reason, [the plaintiff] bears the ultimate burden of submitting evidence 16 indicating that the [defendant’s] proffered reason is merely a pretext for a retaliatory motive.” 17 18 Nilsson v. City of Mesa,

(9th Cir. 2007). The same legal analysis applies to 19 FEHA retaliation claims. See, e.g., Flait v. N. Am. Watch Corp.,

(1992). 20 Ms. Russell’s retaliation claims are problematic for reasons similar to those articulated 21 above with respect to her disparate treatment claims – i.e., Kronos has articulated legitimate, 22 nonretaliatory reasons for terminating her and Ms. Kronos’s evidence of pretext is weak at best. 23 Furthermore, Ms. Russell’s retaliation claims lack merit for an independent reason. That 24 is, it cannot be said that Kronos terminated Ms. Russell because she engaged in protected activity; 25 the only evidence is that Ms. Russell made complaints about unfair treatment and not complaints 26 forecasts for Q4 FY2017, quota attainments for FY2015, and pipeline development is still lacking. 27 See also Beck,

(“[I]n general, we have upheld inferences of discriminatory motive 1 about sex, national origin, and/or race discrimination. See Siazon v. Hertz Corp., No. 17-cv- 2 05935-EMC,

, at *43-44 (N.D. Cal. Mar. 13, 2019) (granting 3 summary judgment to employer on plaintiff’s FEHA retaliation claim because plaintiff’s “counsel 4 conceded that [plaintiff] never complained to Hertz about age discrimination”); Mayfield v. Sara 5 Lee Corp., No. C 04-1588 CW,

, at *22-23 (N.D. Cal. Jan. 13, 2005) 6 (stating that, “to constitute protected activity, [plaintiff] must have alerted his employer to his 7 belief that discrimination, not merely unfair personnel treatment, had occurred”). Ms. Russell 8 admitted such in her deposition.

9 Q. To the extent you believe you were terminated in retaliation for raising issues, the only times you raised those issues were 10 the two conversations we have gone over, one with Patricia Cullen [of Human Resources] and one with Tony Lombardi? 11 A. Correct. 12 Q. Okay. And the conversation with Tony Lombardi, did you 13 ever say that you thought you were being discriminated against on the basis of some protected category, such as sex, 14 national origin, or ethnicity?

15 A. I – no.

16 Q. Same question as to Patricia Cullen: Did you ever tell Patricia Cullen that you thought you were being 17 discriminated against on the basis of sex, national origin, ethnicity, or some other protected status? 18 A. No. 19 Q. And I think you already testified you never told anyone at 20 Kronos that; right?

21 A. No.

22 Q. Correct?

23 A. Correct. 24 Hudson Decl., Ex. 190 (Russell Depo. at 239-40). 25 In her opposition, Ms. Russell protests that a plaintiff is not required to explicitly state that 26 she has been discriminated against on a protected basis and that there are no “magic words” a 27 plaintiff must invoke. While this is true, a plaintiff’s “‘communications to the employer [must] 1 an unlawful discriminatory manner.’” Yanowitz v. L’Oreal USA, Inc.,

, 1047 2 (2005) (emphasis added). According to Ms. Russell, her complaints to Ms. Cullen and Mr. 3 Lombardi conveyed that “she was [being] targeted.” Opp’n at 8. But one can be targeted by a 4 superior without there being any discrimination at play. Ms. Russell’s attempt to analogize her 5 case to Aparicio v. Comcast, Inc.,

(N.D. Cal. 2017), is unavailing. There, 6 the plaintiff complained not only that “he was being ‘targeted and being picked on’” but also that 7 “‘Management wants to fire us.’”

(emphasis added). Thus, the court held that, 8 “drawing all inferences in [the plaintiff’s] favor, it is reasonable to assume that by ‘us’ he meant 9 people like him, which could be Hispanics or people from El Salvador.”

No similar inference 10 can reasonably be drawn under the facts in this case. 11 E. Failure to Prevent Discrimination or Harassment 12 Ms. Russell’s claim for failure to prevent discrimination or harassment falls under FEHA. 13 See Cal. Gov’t Code § 12940(k) (providing that it is unlawful “[f]or an employer, labor 14 organization, employment agency, apprenticeship training program, or any training program 15 leading to employment, to fail to take all reasonable steps necessary to prevent discrimination and 16 harassment from occurring”).

17 In order to state a claim under § 12940(k), a plaintiff must show three elements: “1) plaintiff was subjected to discrimination, 18 harassment or retaliation; 2) defendant failed to take all reasonable steps to prevent discrimination, harassment or retaliation; and 3) this 19 failure caused plaintiff to suffer injury, damage, loss or harm.” Section 12940(k) applies to “an employer who knew or should have 20 known of discrimination or harassment” and “fail[s] to take prompt remedial action.” 21 22 Alejandro v. ST Micro Elecs., Inc.,

(N.D. Cal. 2015). 23 Ms. Russell’s claim for failure to prevent suffers from at least two problems: (1) her 24 underlying discrimination/retaliation claims lack merit for the reasons discussed above, see 25 Trujillo v. N. County Transit Dist.,

(1998) (concluding that 26 “[e]mployers should not be held liable to employees for failure to take necessary steps to prevent 27 such conduct, except where the actions took place and were not prevented”); and (2) there is no 1 discriminated against on protected grounds. 2 || F. Wrongful Discharge in Violation of Public Policy 3 Kronos argues that the claim for wrongful discharge in violation of public policy is 4 || derivative of Ms. Russell’s employment discriminations, and Ms. Russell does not argue to the 5 contrary. Thus, this claim falls with the other claims discussed above. 6 Il. CONCLUSION 7 For the foregoing reasons, the Court grants Kronos’s motion for summary judgment. 8 With this ruling, it appears that the only claims remaining in the case are Kronos’s 9 counterclaims (i.e., for violation of California Penal Code $$ 632 and 632.7 or, alternatively, 10 Massachusetts General Law, Chapter 272, § 99). See Docket No. 45 (counterclaims). Within a 11 week of the date of this order, Kronos shall file a statement as to whether it intends to proceed 12 with a trial on the counterclaims. If not, the Court shall direct the Clerk of the Court to enter a 5 13 || final judgment in accordance with this opinion. If so, then the parties shall prepare for a trial, 14 although the Court will likely adjust the parameters for trial given the limited claims remaining. 3 15 This order disposes of Docket No. 55. 16

= 17 IT IS SO ORDERED. 18 19 Dated: December 11, 2019 20 <4 7 ED M. CHEN United States District Judge 23 24 25 26 27 28