1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

* These motions were determined to be suitable for decision

without oral argument. L.R. 78-230(h).

1 Defendants move to strike Plaintiff’s opposition and

supporting documents since Plaintiff failed to timely serve his

opposition as required by Local Rule 78-230(c). (Mot. to Strike

filed Oct. 17, 2005.) Although Plaintiff did not timely serve his

opposition, Defendants have not shown justification for striking

the opposition. Therefore, Defendants’ motion to strike is denied.

1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

JAVIER RAIGOZA, ) 02:04-cv-1208-GEB-KJM

)

Plaintiff, ) ORDER*

)

v. )

)

ARAMARK UNIFORM SERVICES, INC.; )

ARAMARK UNIFORM SERVICES; ARAMARK; )

ARAMARK CORPORATION; ARAMARK )

UNIFORM AND CAREER APPAREL, INC.; )

MICHAEL BRODEUR; BILL VERVALIN; )

KERM HANSEN; JACOB VERVALIN, )

)

Defendants. )

 )

Each Defendant moves for summary judgment or partial summary

judgment on Plaintiff’s claims. Plaintiff opposes each motion.1

BACKGROUND

Plaintiff is an employee of Aramark Uniform and Career

Apparel, Inc. Plaintiff alleges federal and state law claims against

Defendants Aramark Uniform Services, Inc.; Aramark Uniform Services;

Case 2:04-cv-01208-GEB -KJM Document 93 Filed 12/22/05 Page 1 of 23
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

2 The standards applicable to motions for summary judgment

are well known, and need not be repeated here. See Reitter v. City

of Sacramento, 87 F. Supp. 2d 1040, 1042 (E.D. Cal. 2000).

2

Aramark; Aramark Corporation; Aramark Uniform and Career Apparel, Inc.

(collectively “Aramark”); Michael Brodeur (“Brodeur”); Bill Vervalin

(“Vervalin”); Kerm Hansen (“Hansen”); and Jacob Vervalin (“Jacob”). 

DISCUSSION2

I. Retaliation in violation of 42 U.S.C. § 2000e against

Aramark

Aramark seeks summary judgment on Plaintiff’s retaliation

claim, brought under 42 U.S.C. § 2000e (“Title VII”). To establish a

prima facie case of retaliation, Plaintiff must show that (1) he

engaged in protected activity, (2) the employer subjected him to an

adverse employment action, and (3) there was a causal link between the

protected activity and the employer’s action. Bergene v. Salt River

Project Agric. Improvement and Power Dist., 272 F.3d 1136, 1140-41

(9th Cir. 2001). If Plaintiff establishes a prima facie case, the

burden shifts to Aramark to articulate a legitimate, nondiscriminatory reason for the adverse employment action. Id. If

Aramark provides such a reason, the burden shifts back to Plaintiff to

show that the proffered reason is pretext for retaliation. Id.

Plaintiff has established the first element of a prima facie

case because he engaged in protected activities. It is undisputed

that Plaintiff engaged in protected activities when he called the

company “hotline” on May 15, 2003, and June 4, 2003, to complain about

discrimination and harassment by Defendants. (Defs.’ P & A at 29;

Pl.’s Opp’n at 16; Brodeur Decl. ¶ 28.) Plaintiff also engaged in

protected activity when he filed Charges of Discrimination against

Case 2:04-cv-01208-GEB -KJM Document 93 Filed 12/22/05 Page 2 of 23
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

3

Defendants with the Equal Employment Opportunity Commission (“EEOC”)

and California Department of Fair Employment and Housing on

July 10, 2003, and on April 21, 2004. (Raigoza Decl. ¶¶ 22, 28.) Ray

v. Henderson, 217 F.3d 1234, 1240 n.3 (9th Cir. 2000) (indicating that

filing a complaint with the EEOC is a protected activity). 

Plaintiff has not identified the adverse employment action

element of his retaliation claim with any specificity. Rather,

Plaintiff has merely described in his declaration a number of actions

taken by the Defendants after May 15, 2003. Each of these actions are

examined below. 

A. Delayed in returning to work

Plaintiff alleges that Brodeur prohibited him from working

for two days when he tried to return to work after being on medical

leave and that this prohibition constituted retaliation. (Raigoza

Decl. ¶ 25.) Brodeur counters declaring that it took him two days to

obtain confirmation that Plaintiff could safely drive Aramark’s

trucks, following Plaintiff’s return to work from medical leave for an

eye injury and for burning his right hand. (Brodeur Decl. ¶ 32.) 

Plaintiff argues Brodeur should have allowed him to return

to work on November 24, 2003, when he provided two doctor’s notes. 

(Raigoza Decl. ¶ 25, Ex. E.) However, the note concerning Plaintiff’s

eye injury stated, “[Plaintiff] has some permanent scaring in the left

eye” for which he had a doctor’s appointment during the week of

November 26, 2003. (Raigoza Decl. Ex. D.) The note concluded that

Plaintiff could “still do all normal activities.” (Id.) Brodeur

declares that he was unsure what the phrase “all normal activities”

meant and since he had concerns as to whether Plaintiff could safely

drive a 22-foot truck, he needed further confirmation that Plaintiff’s

Case 2:04-cv-01208-GEB -KJM Document 93 Filed 12/22/05 Page 3 of 23
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

4

eye injury would not impair him from safely operating Aramark’s truck. 

(Brodeur Decl. ¶ 32.) Plaintiff has not presented evidence that this

legitimate reason is pretextual. Therefore, this action cannot serve

as a basis for a retaliation claim. 

B. Reassignment of route

Plaintiff alleges that while on medical leave his route was

unfairly assigned to another driver and was only reassigned to him

after he complained to his union. (Raigoza Decl. ¶ 25.) Brodeur

counters by declaring that Plaintiff’s route was assigned to another

driver because Plaintiff had been on leave for more than twelve weeks,

and Brodeur believed there was no obligation to keep Plaintiff’s route

available to him for more than twelve weeks. (Brodeur Decl.

¶¶ 7, 33.) Plaintiff has presented no evidence that this explanation

is pretextual. Therefore, this action cannot serve as a basis for a

retaliation claim. 

C. Failed to recognize Plaintiff for “writing-up” sale

Plaintiff alleges he was denied a commission and sales

credit for the North Valley Car Care account in retaliation for his

protected activities. (Raigoza Decl. ¶ 26.) Plaintiff admits he was

not entitled to a commission for this sale, but complains he was

denied sales credit when he was not recognized as “the one that wrote

it up.” (Raigoza Decl. ¶ 26; Depo. Raigoza at 142:9-18, 145:1-7.) 

Assuming the failure to recognize Plaintiff for this write-up was an

adverse employment action, Aramark has presented a legitimate, nondiscriminatory reason for the action. The North Valley Car Care

account was a “national account” and according to company policy no

salesperson receives sales credit or commissions for sales to a

“national account.” (Depo. Raigoza at 143:9-14; Brodeur Decl. ¶ 38.) 

Case 2:04-cv-01208-GEB -KJM Document 93 Filed 12/22/05 Page 4 of 23
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

3 Plaintiff also engaged in protected activity on

April 21, 2004. However, that protected activity is immaterial

since it occurred after the retaliatory act alleged here.

5

Plaintiff has not presented evidence that this legitimate reason is

pretextual. Therefore, this complaint cannot serve as a basis for a

retaliation claim. 

D. Failed to accommodate physical therapy sessions

Plaintiff alleges he was prevented from attending prescribed

physical therapy sessions. (Raigoza Decl. ¶ 27.) Assuming this

constitutes an adverse employment action, Plaintiff must present

evidence of a causal link between his protected activities and the

action that prevented him from attending physical therapy sessions. A

causal link may be inferred from the proximity in time between the

protected conduct and the adverse employment action. Ray, 217 F.3d

at 1245; Passantino v. Johnson & Consumer Prods., Inc., 212

F.3d 493, 507 (9th Cir. 2000)(stating “when adverse employment

decisions are taken within a reasonable period of time after

complaints of discrimination have been made, retaliatory intent may be

inferred”). Plaintiff’s protected activities occurred on

May 15, 2003, June 4, 2003, and July 10, 2003, but the alleged adverse

employment action was taken after Plaintiff was injured on

January 5, 2004.3 The nearly six-month gap between the protected

activities and alleged adverse action is too long to reasonably infer

that the adverse employment action is causally related to the

protected activities. Since Plaintiff has presented no other evidence

of a causal connection, this action cannot serve as a basis for a

retaliation claim. 

E. Accused of stealing towels

Case 2:04-cv-01208-GEB -KJM Document 93 Filed 12/22/05 Page 5 of 23
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

4 Plaintiff declares that Brodeur “harassed and subjected

[him] to retaliation . . . with respect to the Craig Hall account.”

But Plaintiff has not identified any actions other than Brodeur’s

inquiry, discussed above, in support of his assertion. 

6

Additionally, Plaintiff alleges he was falsely accused of

stealing towels. (Raigoza Decl. ¶ 29.) Aramark counters this

allegation with Plaintiff’s own deposition testimony and the

declarations of Brodeur and Dean Baugh (“Baugh”).

Plaintiff admitted in his deposition testimony that he took

towels not designated for his route without permission. (Depo.

Raigoza at 296:1-297:12, 301:17-24.) Baugh declares that he saw

Plaintiff put those towels on his truck and that the towels were not

removed before Plaintiff left on his route. (Depo. Baugh

at 21:8-22:4.) Baugh declares he informed Brodeur of what he saw. 

(Id.) Brodeur declares he inspected Plaintiff’s truck when Plaintiff

returned and did not find the towels on Plaintiff’s truck. (Brodeur

Decl. ¶ 39.) Brodeur then questioned Plaintiff about the towels and

Plaintiff denied taking them or knowing where they were. (Brodeur

Decl. ¶¶ 30, 40.) The declarations of Brodeur and Baugh provide a

legitimate, non-discriminatory reason for probing Plaintiff about

possible towel theft. Since Plaintiff has not presented evidence that

the reason presented by Aramark is pretextual, Plaintiff cannot use

this action as a basis for a retaliation claim.

F. Harassed about Craig Hall account

Plaintiff alleges that he was “harassed and subject to . . .

retaliation” when Brodeur asked Plaintiff about the truth of something

a customer, Roger Hoss (“Hoss”), claimed Plaintiff said.4 (Raigoza

Decl. ¶ 30.) Brodeur’s declaration about this matter reveals that

Hoss, the owner of Craig Hall, informed Brodeur that he had problems

Case 2:04-cv-01208-GEB -KJM Document 93 Filed 12/22/05 Page 6 of 23
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

7

with the service Plaintiff was providing and that when Hoss asked

Plaintiff about product inventory Plaintiff responded “no habla

ingles.” (Brodeur Decl. ¶ 41.) Plaintiff rejoins he did not use

the words “no habla ingles” to anyone at the Craig Hall account. 

(Id.) Brodeur admits that he “spoke with [Plaintiff] about Hoss’[s]

criticism,” but states Plaintiff was not disciplined because of Hoss’s

complaint. (Id. at 42.) The mere fact that Brodeur spoke to

Plaintiff about Hoss’s complaint is not an adverse employment action

because it is not “reasonably likely to deter employees from engaging

in protected activity.” Ray, 217 F.3d at 1243. Even if Brodeur’s

action was an adverse employment action, Hoss’s complaint is a

legitimate reason for Brodeur’s action and Plaintiff has not presented

evidence of pretext. Therefore, this incident may not serve as a

basis for a retaliation claim.

G. Harassed about “route book”

Plaintiff alleges that he was “harassed and subject[ed] to 

. . . retaliation with respect to a ‘route book.’” (Raigoza Decl.

¶ 31.) Specifically, Plaintiff states that Vervalin harassed and

retaliated against him “by wanting to give [Plaintiff] a written

warning.” (Id.) Plaintiff’s bald assertion that Vervalin wanted to

give him a written warning does not constitute an adverse employment

action.

However, Vervalin acknowledges that he verbally reprimanded

Plaintiff for his failure to complete a route book. (Decl. Vervalin

¶ 20.) Assuming that this reprimand constitutes an adverse employment

action, Aramark has presented legitimate reason for the reprimand. 

Vervalin declares that completing a route book is one of Plaintiff’s

job duties and he requested that Plaintiff complete his route book

Case 2:04-cv-01208-GEB -KJM Document 93 Filed 12/22/05 Page 7 of 23
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

5 Plaintiff disputes this point in his declaration.

(Raigoza Decl. ¶ 31.) However, Plaintiff states in his deposition

testimony that he knows of no other employees who did not complete

route books as requested. (Raigoza Depo. at 250:2-13.)

Accordingly, no genuine issue of fact exists. Disc Golf Ass’n,

Inc. v. Champion Discs, Inc., 158 F.3d 1002, 1008 (9th

Cir. 1998)(“A party cannot create a triable issue of fact, and thus

survive summary judgment, merely by contradicting his or her own

sworn deposition testimony with a later declaration.”)

8

within two weeks. (Id. at ¶ 19.) More than four weeks after the

request, Plaintiff had not completed his route book. (Id. at ¶ 20.) 

At that time Plaintiff was the only employee to have not completed a

route book.5 (Id.) Plaintiff’s failure to complete his route book is

a legitimate reason for the reprimand. Therefore, this incident may

not serve as a basis for a retaliation claim. 

H. Harassed about Pelican Roost account

Plaintiff alleges that he was “harassed, unfairly accused,

and retaliated against when the [Pelican Roost] account was lost.” 

(Raigoza Decl. ¶ 32.) However, other than these conclusory assertions

Plaintiff has not identified what acts were taken against him in

relation to the Pelican Roost account. Therefore, this incident may

not serve as a basis for a retaliation claim. 

I. Harassed about timecard keeping

Plaintiff alleges that he was “harassed and subjected to

. . . retaliat[ion] with respect to his timecard and timekeeping” by

Lew Allison’s (“Allison”) “harassing discussion.” (Raigoza Decl.

¶ 33.) Assuming the discussion about which Plaintiff complains

constitutes an adverse employment action, Aramark has presented a

legitimate reason for it. Allison declares that Plaintiff incorrectly

recorded his time on his timecard. (Allison Decl. ¶ 11.) Plaintiff

admits that he incorrectly recorded time on his timecard. (Depo.

Case 2:04-cv-01208-GEB -KJM Document 93 Filed 12/22/05 Page 8 of 23
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

9

Raigoza at 261:9-262:23.) Plaintiff’s inaccurate time keeping is a

legitimate reason for Allison’s action. Plaintiff has presented no

evidence that this explanation is pretextual. Therefore, this

incident may not serve as a basis for a retaliation claim. 

J. Harassed and denied accommodation regarding subpoena

Plaintiff alleges he was “harassed and haggled” by Allison

and Brodeur about Plaintiff’s responding to a subpoena from the Glen

County District Attorney when they denied him a day off from work to

respond to the subpoena and then required documentation for his

absence from work. (Raigoza Decl. ¶ 34, 35.) The evidence presented

by Aramark, however, establishes that Plaintiff was permitted to leave

work early in order to appear in court as required by the subpoena. 

(Depo. Raigoza 210:23-211:2; Allison Decl. ¶ 13.) Further, Plaintiff

admits that he was not permitted to take the entire day off because

Aramark was “short-handed” that day. (Depo. Raigoza 208:22-209:6.) 

Plaintiff also admits that documentation is required for time taken

off work. (Id. 216:21-24.) Because, legitimate reasons exist for the

actions of Allison and Brodeur which Plaintiff has not shown to be

pretextual, these alleged incidents may not serve as a basis for a

retaliation claim. 

K. “Most Wanted” Poster

Plaintiff also alleges “he was depicted like a criminal in

[a] poster which was posted in public view.” (Raigoza Decl. ¶ 36.) 

Assuming this action constitutes an adverse employment action, Aramark

has identified a legitimate reason for the action. Allison declares

that the poster was part of an effort to boost the sales of low

performing employees and that Plaintiff was depicted as “Aramark’s

Most Wanted” because he ranked lowest in overall sales performance at

Case 2:04-cv-01208-GEB -KJM Document 93 Filed 12/22/05 Page 9 of 23
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

10

the Chico depot. (Decl. Allison ¶ 5.) Allison declares that

Plaintiff’s picture appeared along with pictures of four other low

performing employees at the Chico depot and that similar posters were

displayed at the Aramark depot in Redding as part of Aramark’s effort

to boost sales. (Id.) Plaintiff has not offered any evidence to

establish that the reason presented by Aramark is pretextual. 

Therefore, this act of alleged retaliation may not serve as a basis

for a claim.

L. Denied commission on Orland Sand & Gravel account

Plaintiff also alleges that Brodeur “took the Orland Sand &

Gravel account away from [him]” and denied him commissions on sales

made to the account. (Raigoza Decl. ¶ 37.) Plaintiff, however, has

presented no evidence of a causal link between this action and his

protected activities. Nor has Plaintiff provided the date on which

this alleged action occurred from which a causal link could be

inferred. Therefore, Plaintiff has failed to establish a prima facie

case of retaliation based on this action.

M. Harassed about Albatross account 

Plaintiff alleges he was “berated and harassed by [] Brodeur

for not servicing [the Albatross] account, although [he] had been told

by numerous people . . . not to service this non-paying customer.” 

(Raigoza Decl. ¶ 38.) However, other than these conclusory assertions

Plaintiff has not identified what acts were taken against him in

relation to the Albatross account. Further, Plaintiff has presented

no evidence of a causal link between this action and his protected

activities. Nor has Plaintiff provided the date on which this alleged

action occurred from which a causal link could be inferred. 

Case 2:04-cv-01208-GEB -KJM Document 93 Filed 12/22/05 Page 10 of 23
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

11

Therefore, Plaintiff has failed to establish a prima facie case of

retaliation based on this action.

N. Failed to send “encouraging messages”

Plaintiff alleges that Brodeur did not give him “encouraging

messages” when other employees were “provided these communications.” 

(Raigoza Decl. ¶ 39.) This is not an adverse employment action

because it is not likely to deter employees from engaging in protected

activities. See Manatt v. Bank of America, NA, 339 F.3d 792, 803 (9th

Cir. 2003) (“Mere ostracism in the workplace is not grounds for a

retaliation claim . . . .”). Therefore, it cannot serve as a basis

for a retaliation claim.

O. Hostile Work Environment

Finally, Plaintiff argues that he was subjected to a hostile

work environment and that this constitutes a retaliatory adverse

employment action. (Pl.’s Opp’n at 30.) Subjecting an employee to a

hostile work environment because he engaged in protected activity can

serve as a basis for a retaliation claim. Ray, 217 F.3d at 1245. 

Plaintiff argues that each alleged action, discussed above, asserted

as a basis for his retaliation claim, also supports a finding that he

was subjected to a hostile work environment in retaliation for his

protected activities.

However, Plaintiff, may not support his hostile work

environment-based retaliation claim with actions for which an

unrebutted legitimate reason has been established. See Noviello v.

City of Boston, 398 F.3d 76, 93 (1st Cir. 2005) (indicating that

injurious or offensive acts committed with a legitimate purpose are

not inherently wrong and should not be considered in the hostile work

environment analysis). Therefore, only four alleged actions may be

Case 2:04-cv-01208-GEB -KJM Document 93 Filed 12/22/05 Page 11 of 23
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

6 Aramark offered legitimate reasons for not paying

Plaintiff a commission on the Orland & Sand and Gravel account, but

Plaintiff has disputed that showing.

12

considered in the hostile work environment analysis since Plaintiff

failed to rebut the legitimate reasons presented by Aramark as to all

the other alleged actions offered by Plaintiff in support of his

retaliation claim. The four alleged actions which may be considered

are: (1) the harassment relating to the Pelican Roost account, (2) the

harassment relating to the Albatross account, (3) the failure to

accommodate Plaintiff’s physical therapy sessions, and (4) the failure

to pay Plaintiff a commission on the Orland Sand & Gravel account.6

Although Plaintiff declares he was “harassed” in relation to

the Pelican Roost and Albatross accounts, he provides no facts as to

the nature or extent of this alleged harassment, or the dates of the

alleged harassment. Plaintiff’s “purely conclusory [declarations] of

alleged [harassment concerning these accounts lack] concrete, relevant

particulars,” and are thus insufficient to withstand summary judgment. 

Forsberg v. Pacific Northwest Bell Telephone Co., 840 F.2d 1409, 1419

(9th Cir. 1988); see also Vasquez, 349 F.3d at 642-43 (disregarding

vague assertions that plaintiff was harassed since they lack “specific

factual allegations” of specific incidents of harassment). 

Regarding the remaining two alleged actions, Plaintiff

failed to present evidence from which reasonable inferences could be

drawn that these alleged actions have a causative connection to any of

Plaintiff’s protected activity. 

For the reasons stated, summary judgment is entered in favor

of Aramark on Plaintiff’s retaliation claims alleged under Title VII. 

Case 2:04-cv-01208-GEB -KJM Document 93 Filed 12/22/05 Page 12 of 23
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

7 It is assumed that Plaintiff has established subjective

hostility since he declares that the work environment caused him to

“suffer[] greatly.” (Raigoza Decl. ¶ 43.) 

13

II. Creation of a Racially Hostile Work Environment in violation

of Title VII against Aramark

Aramark seeks summary judgment on Plaintiff’s claim alleging

the creation of a racially hostile work environment in violation

Title VII. “To prevail on a hostile workplace claim premised on . . .

race . . . a plaintiff must show: (1) that he was subjected to verbal

or physical conduct of a racial . . . nature; (2) that the conduct was

unwelcome; and (3) that the conduct was sufficiently severe or

pervasive to alter the conditions of the plaintiff’s employment and

create an abusive work environment.” Vasquez v. County of Los

Angeles, 349 F.3d 634, 642 (9th Cir. 2003). Aramark argues that

summary judgment is appropriate because Plaintiff has not established

that he was subjected to sufficiently severe or pervasive racially

motivated conduct. “[T]o survive summary judgment, [Plaintiff] must

show the existence of a genuine factual dispute . . . as to whether a

reasonable [person in his situation] would find the workplace so

objectively and subjectively hostile as to create an abusive working

environment.” McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1112 (9th

Cir. 2004). 

To establish objective hostility Plaintiff has presented

evidence that Vervalin once referred to Plaintiff as “beaner” outside

of Plaintiff’s presence, that Vervalin once referred to Plaintiff as

“spic” outside of Plaintiff’s presence, and that Vervalin referred to

an African-American employee as “Black Crow.”7 (Raigoza Decl.

¶¶ 13, 20.) Plaintiff also indicates that between August 2002 and

Case 2:04-cv-01208-GEB -KJM Document 93 Filed 12/22/05 Page 13 of 23
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

8 Plaintiff also alleges that Brodeur’s inquiry into

whether Plaintiff responded to a customer’s question with the words

“no habla ingles,” is evidence of a racially hostile work

environment. (Raigoza Decl. ¶ 30.) As discussed in section III,

this inquiry has not been shown to have been racially motivated. 

14

July 2004 Vervalin engaged in the following racially motivated

conduct: taking a portion of Plaintiff’s bonus, taking credit for

Plaintiff’s sales, making sexual innuendos toward Plaintiff on one

occasion, and harassing Plaintiff.8 (Raigoza Decl. ¶¶ 9, 16, 17, 31.) 

The issue is whether Vervalin’s alleged comments and other actions

permit the reasonable inference that Plaintiff was subject to a

hostile work environment. See McGinest, 360 F.3d at 1116 n.9 (stating

that a racial slur may indicate that “other abusive remarks . . . were

also motivated by racial hostility”).

Although, there is no question that Vervalin’s alleged

utterances are offensive, the facts alleged by Plaintiff are

insufficient to reasonably infer that his workplace was objectively

hostile. Vervalin’s conduct, including the utterance of three racial

epithets over the course of two years, was not severe or pervasive

enough to create a racially hostile work environment. See

Vasquez, 349 F.3d at 643 (concluding the plaintiff had not shown an

objectively hostile work environment when a manager made two

derogatory statements to the plaintiff during a six-month period and

the plaintiff suffered other harassment over a one-year period). 

Therefore, summary judgment is entered in favor of Aramark on

Plaintiff’s racially hostile work environment claim, brought under

Title VII.

Case 2:04-cv-01208-GEB -KJM Document 93 Filed 12/22/05 Page 14 of 23
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

15

III. Racial Discrimination in the Making and Enforcement of

Contracts in violation of 42 U.S.C. § 1981 against Aramark,

Brodeur, and Vervalin

Aramark, Brodeur, and Vervalin seek summary judgment on

Plaintiff’s claim that they discriminated against him in the making

and enforcing of contracts because of his race in violation of 42

U.S.C. § 1981. To survive summary judgment Plaintiff must show that

Aramark, Brodeur, or Vervalin “acted with intent to discriminate”

against him based on his race. Mustafa v. Clark County Sch.

Dist., 157 F.3d 1169, 1180 (9th Cir. 1998). 

Vervalin argues that summary judgment is appropriate because

Plaintiff has not alleged an “affirmative act” by Vervalin and “cannot

show that Vervalin had any discriminatory intent.” (Defs.’ P & A

at 38.) However, Plaintiff has presented evidence that Vervalin

engaged in an affirmative act toward Plaintiff when Vervalin took a

portion of Plaintiff’s bonus and later returned it. (Raigoza Decl.

¶¶ 9-10.) This action constituted an adverse employment action. See

Univ. of Hawaii Prof’l Assembly v. Cayetano, 183 F.3d 1096, 1105-06

(9th Cir. 1999) (holding that receiving pay even a couple of days late

can seriously affect an employee’s financial situation and constitutes

substantial impairment under the Contracts Clause). 

Plaintiff has presented evidence that Vervalin acted with

discriminatory intent, pointing to Vervalin’s references to Plaintiff

as a “beaner” and “spic.” (Raigoza Decl. ¶¶ 13, 20.) Such racially

“[d]iscriminatory remark[s] may create an inference of discriminatory

motive” if there is “a sufficient nexus between the alleged

discriminatory remarks and the adverse employment [action].” 

Mustafa, 157 F.3d at 1180. Here Plaintiff presents evidence that

Case 2:04-cv-01208-GEB -KJM Document 93 Filed 12/22/05 Page 15 of 23
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

9 Defendants Aramark Uniform Services, Aramark, Aramark

Corporation, and Aramark Uniform and Career Apparel, Inc. seek

summary judgment on Plaintiff’s 42 U.S.C. § 1981 claim because

Plaintiff has not presented any evidence that he was employed by

them. (Defs.’ P & A at 21.) Defendants, however, have provided no

legal authority to support this argument. Accordingly, it is not

clear that the absence of this fact is fatal to Plaintiff’s 42

U.S.C. § 1981 claim against Defendants Aramark Uniform Services,

Aramark, Aramark Corporation, and Aramark Uniform and Career

Apparel, Inc. Therefore, the motion is denied. 

16

Vervalin made “ethnically biased remarks” and was in a “position of

authority” over Plaintiff. This evidence is sufficient to establish

the connection necessary for Plaintiff to survive summary judgment. 

Id. (“Evidence of ethnically biased remarks from a person in . . . a

position of authority are sufficient to allege the connection

necessary . . . to survive summary judgment.”) Therefore, Vervalin

and Aramark’s motion for summary judgment on Plaintiff’s claim that

they discriminated against him in the making and enforcing of

contracts because of his race in violation of 42 U.S.C. § 1981 is

denied.9

Brodeur argues summary judgment is appropriate because

Plaintiff has not presented evidence that he acted with racial animus. 

Plaintiff admitted in his deposition testimony that Brodeur never used

a racial slur or epithet. (Depo. Raigoza 14:18-21.) The only alleged

incident involving Brodeur that tangentially relates to Plaintiff’s

race is Brodeur’s question about the words “no habla ingles.” 

However, Brodeur’s inquiry into whether Plaintiff responded to a

customer’s concerns with the words “no habla ingles” does not evince

an ethnic bias on the part of Brodeur. A customer’s complaint about

the “no habla ingles” comment was the actual reason for the exchange

between Brodeur and Plaintiff. (Brodeur Decl. ¶ 41.) As such,

Brodeur’s question was not an “ethnically biased remark” that creates

Case 2:04-cv-01208-GEB -KJM Document 93 Filed 12/22/05 Page 16 of 23
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

17

an inference of discrimination under Mustafa. Therefore, summary

judgment is entered in favor of Brodeur on Plaintiff’s claim that he

discriminated against him in the making and enforcing of contracts

because of his race in violation of 42 U.S.C. § 1981. 

IV. Conspiracy to Deprive Plaintiff of Equal Protection of the

Law in violation of 42 U.S.C. § 1985

Defendants seek summary judgment on Plaintiff’s claim that

they conspired to deprive him of equal protection of the law in

violation of 42 U.S.C. § 1985. To prove this claim Plaintiff “must

show: (1) a conspiracy; (2) for the purpose of depriving [him] of the

equal protection of the laws; (3) an act in furtherance of the

conspiracy; (4) whereby [he was] either injured in his person or

property or deprived of a right or privilege of a United States

citizen.” Mustafa, 157 F.3d at 1181. Plaintiff has presented no

evidence from which a conspiracy could reasonably be inferred to exist

between any of the Defendants to deprive him of equal protection of

the law. Therefore, summary judgment is entered in favor of

Defendants on Plaintiff’s claim that they conspired to deprive him of

equal protection of the law in violation of 42 U.S.C. § 1985.

V. Hostile Work Environment in Violation of Cal. Gov’t Code

§ 12940 against Vervalin

Vervalin seeks summary judgment on Plaintiff’s claim against

him for a racially hostile work environment in violation of Cal. Gov’t

Code § 12940 (the “FEHA”). California has adopted the Title VII

standard for evaluating hostile work environment claims under the

FEHA. Aguilar v. Avis Rent a Car System, Inc., 21 Cal. 4th 121, 130

(1999). As discussed in section II above, Plaintiff has failed to

establish that Vervalin subjected him to a hostile work environment. 

Case 2:04-cv-01208-GEB -KJM Document 93 Filed 12/22/05 Page 17 of 23
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

18

Therefore, summary judgment is entered on behalf of Vervalin on

Plaintiff’s claim that he subjected him to a hostile work environment

in violation of the FEHA.

VI. Failure to Accommodate Injury in violation of the FEHA

Aramark seeks summary judgment on Plaintiff’s claim against

it for failure to accommodate his injury in violation of the FEHA. 

The elements of a failure to accommodate claim are: 1) that plaintiff

is a qualified individual, 2) that plaintiff has a disability covered

by the statute, and 3) that defendant failed to provide reasonable

accommodations for plaintiff’s disability. Jensen v. Wells Fargo

Bank, 85 Cal. App. 4th 245, 256-57 (2000). Aramark argues that

Plaintiff’s injury does not qualify as a disability under the statute,

and therefore summary judgment is appropriate.

Plaintiff alleges he suffered a leg injury at work on

January 5, 2004, that constitutes a disability. (Raigoza Decl. ¶ 27.) 

Plaintiff’s leg injury “does not qualify as a disability under the

statute unless it limits [Plaintiff’s] ability to participate in major

life activities.” Jensen, 85 Cal. App. 4th at 257 (internal quotation

marks omitted) (citations omitted). Plaintiff has failed to present

any evidence that his leg injury limited a major life activity. 

Plaintiff simply states that he was “negatively impacted” by the

injury and that his “walking legs [sic], lower back, and hip hurt

every day.” (Raigoza Decl. ¶ 27.) There is no evidence that

Plaintiff’s ability to walk or work, or engage in any other major life

activity was impaired. Therefore, summary judgment is entered on

behalf of Aramark on Plaintiff’s claim for failure to accommodate his

injury in violation of the FEHA.

Case 2:04-cv-01208-GEB -KJM Document 93 Filed 12/22/05 Page 18 of 23
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

19

VII. Retaliation in Violation of the FEHA against Brodeur

Brodeur seeks summary judgment on Plaintiff’s claim for

retaliation in violation of the FEHA. California has adopted the

Title VII standard for evaluating retaliation claims under the FEHA.

See Fisher v. San Pedro Peninsula Hosp., 214 Cal. App. 3d 590, 614

(1989). As discussed in section I above, Plaintiff has failed to

establish a basis for a retaliation claim under Title VII. Therefore,

summary judgment is entered on behalf of Brodeur on Plaintiff’s claim

that he retaliated against him in violation of the FEHA. 

VIII. Negligence in Violation of the FEHA against Aramark

Aramark seeks summary judgment on Plaintiff’s negligence

claim, brought under the FEHA. Aramark argues that Plaintiff’s claim

for negligence must fail because he has not established a claim for

harassment or discrimination under the FEHA. In order for a claim of

employer negligence under the FEHA to survive summary judgment, the

court must first find that a “foundational predicate of harassment or

discrimination” exists. See Trujillo v. North County Transit

Dist., 63 Cal. App. 4th 280, 289 (1998) (holding that "employers

should not be held liable to employees for failure to take necessary

steps to prevent such conduct, except where the actions took place and

were not prevented"); Tritchler v. County of Lake, 358 F.3d 1150, 1155

(9th Cir. 2004) (indicating that a finding of harassment or

discrimination under the FEHA is a predicate to a valid negligence

claim under the FEHA). As discussed in sections V, VI, and VII above,

summary judgment has been entered in favor of Defendants on all

Plaintiff’s FEHA claims for harassment and discrimination. Therefore,

summary judgment is entered on behalf of Aramark on Plaintiff’s claim

that it was negligent under the FEHA.

Case 2:04-cv-01208-GEB -KJM Document 93 Filed 12/22/05 Page 19 of 23
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

20

IX. Public Disclosure of Private Facts against Aramark and Jacob

Aramark and Jacob seek summary judgment of Plaintiff’s claim

for public disclosure of private facts. To prevail on this claim

Plaintiff must establish that there was a (1) public disclosure (2) of

a private fact (3) which would be offensive and objectionable to [a]

reasonable person and (4) which is not of legitimate public concern. 

Shulman v. Group W Productions, Inc., 18 Cal. 4th 200, 214 (1998). 

Plaintiff alleges that all the elements of this claim were met when

Jacob informed customers on Plaintiff’s route that Plaintiff suffered

from rectal bleeding and would not be returning to work. (Am. Compl.

¶¶ 44-45.) In support of this allegation Plaintiff testified in his

deposition that two business owners on his route told him that Jacob

said Plaintiff was “all f---ed up” and “sh-tting blood” and that as a

result he would not be returning to work. (Raigoza Depo.

at 242:6-24.)

Jacob argues that Plaintiff’s claim must fail because there

was no “public disclosure.” In order for the “public disclosure”

element to be satisfied there must be “communication to the public in

general or to a large number of persons as distinguished from one

individual or a few.” Porten v. Univ. of San Francisco, 64 Cal.

App. 3d 825, 828 (1976). Plaintiff has provided evidence that Jacob

made the alleged statements to six individuals. (Raigoza Depo.

at 238:8-240:8.) Aramark and Jacob argue that there is evidence that

fewer than six people heard the alleged statements. Even if six

individuals heard the statements Jacob allegedly made, Plaintiff has

failed to show that there was a “public disclosure” in this case. 

Communication to six individuals is not communication to a “large

number of persons.” Moreover, the communication was to only two

Case 2:04-cv-01208-GEB -KJM Document 93 Filed 12/22/05 Page 20 of 23
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

21

groups of people--the Plaintiff’s cousin and her husband and a family

that operated a restaurant Plaintiff serviced. These communications

were not made to “the public in general or to a large number of

persons.” Therefore summary judgment is entered in favor of Aramark

and Jacob on Plaintiff’s claim for public disclosure of private facts. 

X. False Light against Aramark and Jacob

Aramark and Jacob seek summary judgment of Plaintiff’s claim

for false light. To prevail on this claim Plaintiff must show that

(1) Jacob disclosed to one or more persons information about or

concerning Plaintiff that was presented as factual but that was

actually false or created a false impression about him; (2) the

information was understood by one or more persons to whom it was

disclosed as stating or implying something highly offensive that would

have a tendency to injure Plaintiff’s reputation; (3) by clear and

convincing evidence, Jacob acted with constitutional malice; and (4)

Plaintiff was damaged by the disclosure. Solano v. Playgirl,

Inc., 292 F.3d 1078, 1082 (9th Cir. 2002) (citing Fellows v. Nat’l

Enquirer, Inc., 42 Cal. 3d 234 (1986)). Jacob argues that summary

judgment is appropriate because the information allegedly communicated

was not false, nor was it highly offensive.

The statements allegedly made by Jacob would reasonably

create two distinct impressions in the mind of a person who heard

them. The first is that Plaintiff suffered from a medical condition

that caused rectal bleeding. And the second is that Plaintiff would

not be returning to work. The first impression made by the alleged

statements is clearly not false. Plaintiff admitted in his deposition

testimony that while on medical leave he suffered from rectal

bleeding. (Raigoza Depo. 243:10-15.) The second impression is not

Case 2:04-cv-01208-GEB -KJM Document 93 Filed 12/22/05 Page 21 of 23
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

22

necessarily true. Jacob has presented no evidence that Plaintiff was

not going to return to work when he took medical leave. However, that

false impression (that Plaintiff would not be returning to work) is

not so “highly offensive” that it would injure Plaintiff’s reputation. 

Therefore summary judgment is entered in favor of Aramark and Jacob on

Plaintiff’s claim for false light. 

XI. Slander against Aramark and Jacob

Aramark and Jacob seek summary judgment on Plaintiff’s claim

for slander. “Slander is a false and unprivileged publication, orally

uttered . . . which: . . . [i]mputes in him the present existence of

an infectious, contagious, or loathsome disease; [t]ends directly to

injure him in respect to his office, profession, trade or business,

either by imputing to him general disqualification in those respects

which the office or other occupation peculiarly requires, or by

imputing something with reference to his office, profession, trade, or

business that has a natural tendency to lessen its profits; . . . or

[w]hich, by natural consequence, causes actual damage." Cal. Civ.

Code § 46. There can be no recovery for slander without a falsehood. 

Baker v. Los Angeles Herald Examiner, 42 Cal. 3d 254, 259 (1986). 

Plaintiff alleges that Jacob “made a false oral statement

regarding [Plaintiff]” which indicated “that [Plaintiff] had a

loathsome disease and [Plaintiff] is unqualified and/or unfit to

perform his [job].” (Am. Compl. ¶¶ 104, 106.) Aramark and Jacob

argue that summary judgment is appropriate because the alleged

statements are true, and if false they did not damage Plaintiff. 

As discussed above, the alleged statements about Plaintiff’s

medical condition were true. As such the statements are not

actionable as slander. The alleged statement about Plaintiff not ever

Case 2:04-cv-01208-GEB -KJM Document 93 Filed 12/22/05 Page 22 of 23
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

23

returning to work is not one which could reasonably be found to damage

Plaintiff’s reputation or cause him any actual harm. Therefore

summary judgment is entered in favor of Aramark and Jacob on

Plaintiff’s claim for slander. 

CONCLUSION

For the stated reasons, summary judgment is entered on

behalf of Defendants on all of Plaintiff’s claims, except Plaintiff’s

claim against Aramark and Vervalin for discrimination in the making

and enforcement of contracts alleged under 42 U.S.C. § 1981.

IT IS SO ORDERED.

Dated: December 21, 2005

/s/ Garland E. Burrell, Jr.

GARLAND E. BURRELL, JR.

United States District Judge

Case 2:04-cv-01208-GEB -KJM Document 93 Filed 12/22/05 Page 23 of 23