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1 Plaintiff also alleges claims against Sprint Communications

Company, L.P. This defendant has moved for summary judgment

premised on the declaration of DeAnna Dresel that it had no

employees and plaintiff never worked for it. Plaintiff has

objected to the declaration as without foundation and hearsay.

That objection appears well-taken and accordingly the motion must

be denied.

1

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

ALICIA ALO,

NO. CIV. S-04-1904 LKK/JFM

Plaintiff,

v. O R D E R

SPRINT; SPRINT COMMUNICATIONS

COMPANY, a Delaware corporation;

and U.S. TELECOM, INC., a

Delaware corporation,

Defendants.

 /

Plaintiff brings this action against her former employer,

Sprint United Management Company.1 She alleges age discrimination,

sex discrimination, medical condition discrimination, harassment

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26 2 Facts are undisputed unless otherwise noted. 

2

and retaliation. These claims are premised on both federal and

state law. The matter is before the court on defendants’ motion

for summary judgment. I decide the motion based on the papers and

pleadings filed herein and after oral argument.

I.

FACTS2

Plaintiff’s allegations stem from her termination of

employment with Sprint. Plaintiff is a fifty-five year old woman

who began working for defendant approximately 21 years ago. Def.’s

SUF, 1. Under defendants’ retirement plan, plaintiff was entitled

to begin receiving retirement benefits when her age, plus the

number of years she had been working for defendants totaled the sum

of “76", this is known in the company as the “Rule of 76.” See

Employee Retirement Benefit Plan, Pl.’s Opp’n, Ex. 13. 

In 2002, plaintiff worked in the Carrier Transport division

of the Billing Department of Sprint. Def.’s SUF, 2. In mid-2002,

plaintiff was transferred from the Carrier Transport division to

the Data Retros division. Def.’s SUF, 3. Both divisions were

under the supervision of the Director of Billing Services, DeAnna

Dresel and it was her decision to transfer plaintiff, Def.’s SUF,

5. Plaintiff was told that her job duties would remain the same,

despite the transfer. Def.’s SUF, 6. Plaintiff maintains that in

reality the job responsibilities of the two jobs were different and

that plaintiff was not told of her new job duties until after she

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3 The court notes that the citation to Ex. 2 (referenced in

plaintiff’s response to defendant’s SUF, 6) does not contain

support for the asserted fact. The court cannot find evidentiary

support for this alleged fact in the record. As the Seventh

Circuit has aptly remarked " [j]udges are not like pigs, hunting

for [buried] truffles . . . ." United States v. Dunkel, 927 F.2d

955-56 (7th Cir. 1991).

4 The court does not have a copy of the full LINK

evaluations. The court takes the parties’ general characterization

3

allegedly made mistakes on the new job. Pl.’s Opp’n, Ex. 2.3

In October of 2002, plaintiff received a copy of her

performance review, known within the company as a “LINK.” The LINK

is a process by which the company rates an employee’s performance,

addresses future performance and discusses the employee’s progress

in the company. See Pl.’s Opp’n, Ex. 1. 

Plaintiff objected to the contents of the LINK review. 

Specifically, plaintiff contested whether a mistake that cost the

company $6 million dollars was attributable to her. Defendant

removed the assertion of a mistake from plaintiff’s LINK and

apologized; however, the LINK was again modified, and this time it

attributed to plaintiff a separate $2.6 million mistake. See Pl.’s

Opp’n, Exs. 4 & 5. Through the end of 2002 and into 2003,

plaintiff challenged the LINK review. See Def.’s SUF 8; Pl. Opp’n,

Ex. 6. 

In April of 2003, plaintiff received a final LINK performance

evaluation and objected to the contents of that as well. Pl.’s

Opp’n, Ex. 7; Def’s SUF, 8-10. In at least two areas, plaintiff’s

job performance was rated as “less effective” and the evaluation

also discussed the asserted $2.6 million mistake.4

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of the contents of the LINK as sufficient for purposes of the

instant motion.

4

Between 2002 and the fall of 2004, plaintiff attempted to

address her concerns by confronting multiple supervisors at 

various levels of authority. Many e-mails were exchanged about

plaintiff’s objections to her LINK evaluation. See Def.’s SUF, 9

& 10; Pl.’s Opp’n, Exs. 6-8. 

Without recounting each e-mail, it is undisputed that

plaintiff’s complaints about her LINK review generally centered

around “serious disagreements with the notes and ratings” contained

in the LINK as well as the attribution of the asserted $2.6 million

dollar mistake to her. See, e.g., Pl.’s Opp’n, Ex. 7. Plaintiff

asserts that no one met with her to address her objections to the

LINK report. Pl.’s Opp’n, Ex. 3. 

As of May 2003, among plaintiff's concerns that she contends

were unaddressed were that her 2002 LINK was finalized without

discussion with her, that her ratings were changed from "effective"

to "less effective", causing her to lose a merit increase, and that

she was not supposed to be rated in her position that started after

September 2, 2003, but she was rated anyway. Pl.’s Opp’n, Ex. 3.

Plaintiff also expressed concerns that her “20 years tenure with

Sprint is now threatened by this violation of the Performance

Management and Link Review Process.” Id. 

In July of 2003, e-mails were exchanged between supervisors

that plaintiff would be again rated as “less effective” in the 2003

LINK review process. Pl.’s Opp’n, Ex. 20. 

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5

On July 31, 2003, plaintiff received a written “verbal

warning.” Pl.’s Opp’n, Ex. 23. The warning stated, in effect, that

despite weekly meetings with her supervisor, plaintiff was not

meeting the requirements of her position and that she needed to

improve her performance. Id. Plaintiff objected to the warning.

Pl.’s Opp’n, Ex. 29. More e-mails were exchanged between

supervisors about whether plaintiff’s failure to improve her

performance warranted the next level of sanctions, a written

warning. One of these e-mails, dated September 5, 2003, contained

the following statement: “[Plaintiff] want's (sic) it escalated.

However, it has reached it's level of escalation and it's final.

If we go down the path of corrective action, and she ends up being

terminated - she can file a claim for retaliation - we will deal

with that if we need to.” Pl.’s Opp’n, Ex. 31. 

On September 8, 2003, plaintiff received a second written

warning. This warning contained a discussion of how plaintiff

failed to make improvement and that she was expected to show

“sustained improved performance” as well as attend weekly one-onone meetings. Pl.’s Opp’n, Ex. 33. 

On September 11, 2003, plaintiff maintains that she performed

research regarding the work she was told she had completed

improperly, found she did it correctly and felt harassed. At this

point, plaintiff became upset and fainted at work. Pl.’s Opp’n,

Decl. of Alicia Alo. 

Plaintiff went to an Emergency Room and was advised to see her

primary care physician the next day. Id. On September 12, 2003,

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5 Plaintiff had seen Dr. Sabin several times from June 2,

2003 through September 12, 2003 and told Dr. Sabin that her chief

complaint was a harassing work environment. Pl.’s Opp’n, Ex. 36.

Plaintiff told her doctor that she had worked for Sprint for 20

years, is 3 years short of retirement and they are "trying to get

rid of her" and "rob her of her retirement." Id.

6

Dr. Alicia Sabin diagnosed plaintiff as suffering from depression

incident to her work environment. Pl.’s Opp’n, Ex. 36. 5 

Plaintiff was on medical leave from September 2003 through January

2, 2004. When plaintiff reported to work on January 2, 2004, she

was advised by a supervisor that she was not going to continue

working at Sprint and that she would have to return home and wait

to hear from her direct supervisor regarding her work status.

Pl.’s Opp’n, Decl. of Alicia Alo. On January 5, 2004, plaintiff

received a call from her supervisor, advising plaintiff that she

had been fired. Id.

II.

STANDARDS

Summary judgment is appropriate when it is demonstrated that

there exists no genuine issue as to any material fact, and that the

moving party is entitled to judgment as a matter of law. Fed. R.

Civ. P. 56(c); See also Adickes v. S.H. Kress & Co., 398 U.S. 144,

157 (1970); Sicor Limited v. Cetus Corp., 51 F.3d 848, 853 (9th

Cir. 1995).

Under summary judgment practice, the moving party

[A]lways bears the initial responsibility of

informing the district court of the basis for

its motion, and identifying those portions of

"the pleadings, depositions, answers to

interrogatories, and admissions on file,

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7

together with the affidavits, if any," which

it believes demonstrate the absence of a

genuine issue of material fact.

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). "[W]here the

nonmoving party will bear the burden of proof at trial on a

dispositive issue, a summary judgment motion may properly be made

in reliance solely on the 'pleadings, depositions, answers to

interrogatories, and admissions on file.'" Id. Indeed, summary

judgment should be entered, after adequate time for discovery and

upon motion, against a party who fails to make a showing sufficient

to establish the existence of an element essential to that party's

case, and on which that party will bear the burden of proof at

trial. See id. at 322. "[A] complete failure of proof concerning

an essential element of the nonmoving party's case necessarily

renders all other facts immaterial." Id. In such a circumstance,

summary judgment should be granted, "so long as whatever is before

the district court demonstrates that the standard for entry of

summary judgment, as set forth in Rule 56(c), is satisfied." Id.

at 323.

If the moving party meets its initial responsibility, the

burden then shifts to the opposing party to establish that a

genuine issue as to any material fact actually does exist.

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

586 (1986); See also First Nat'l Bank of Ariz. v. Cities Serv. Co.,

391 U.S. 253, 288-89 (1968); Sicor Limited, 51 F.3d at 853. 

In attempting to establish the existence of this factual

dispute, the opposing party may not rely upon the denials of its

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8

pleadings, but is required to tender evidence of specific facts in

the form of affidavits, and/or admissible discovery material, in

support of its contention that the dispute exists. Fed. R. Civ.

P. 56(e); Matsushita, 475 U.S. at 586 n.11; See also First Nat'l

Bank, 391 U.S. at 289; Rand v. Rowland, 154 F.3d 952, 954 (9th Cir.

1998). The opposing party must demonstrate that the fact in

contention is material, i.e., a fact that might affect the outcome

of the suit under the governing law, Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986); Owens v. Local No. 169, Assoc. of

Western Pulp and Paper Workers, 971 F.2d 347, 355 (9th Cir. 1992)

(quoting T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n,

809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is genuine,

i.e., the evidence is such that a reasonable jury could return a

verdict for the nonmoving party, Anderson, 477 U.S. 248-49; see

also Cline v. Industrial Maintenance Engineering & Contracting Co.,

200 F.3d 1223, 1228 (9th Cir. 1999).

In the endeavor to establish the existence of a factual

dispute, the opposing party need not establish a material issue of

fact conclusively in its favor. It is sufficient that "the claimed

factual dispute be shown to require a jury or judge to , 04-

1993resolve the parties' differing versions of the truth at trial."

First Nat'l Bank, 391 U.S. at 290; See also T.W. Elec. Serv., 809

F.2d at 631. Thus, the "purpose of summary judgment is to 'pierce

the pleadings and to assess the proof in order to see whether there

is a genuine need for trial.'" Matsushita, 475 U.S. at 587

(quoting Fed. R. Civ. P. 56(e) advisory committee's note on 1963

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9

amendments); see also International Union of Bricklayers & Allied

Craftsman Local Union No. 20 v. Martin Jaska, Inc., 752 F.2d 1401,

1405 (9th Cir. 1985).

In resolving the summary judgment motion, the court examines

the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any. Rule

56(c); See also In re Citric Acid Litigation, 191 F.3d 1090, 1093

(9th Cir. 1999). The evidence of the opposing party is to be

believed, see Anderson, 477 U.S. at 255, and all reasonable

inferences that may be drawn from the facts placed before the court

must be drawn in favor of the opposing party, see Matsushita, 475

U.S. at 587 (citing United States v. Diebold, Inc., 369 U.S. 654,

655 (1962) (per curiam)). Nevertheless, inferences are not drawn

out of the air, and it is the opposing party's obligation to

produce a factual predicate from which the inference may be drawn.

See Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45

(E.D. Cal. 1985), aff'd, 810 F.2d 898, 902 (9th Cir. 1987).

Finally, to demonstrate a genuine issue, the opposing party

"must do more than simply show that there is some metaphysical

doubt as to the material facts. . . . Where the record taken as a

whole could not lead a rational trier of fact to find for the

nonmoving party, there is no 'genuine issue for trial.'"

Matsushita, 475 U.S. at 587 (citation omitted).

////

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6 The federal statute commences at 29 U.S.C § 623(a)(1) while

the state statute is found at Cal. Gov’t Code §§ 621 et seq.

(FEHA). Claims under California’s FEHA are subject to the same

analytical framework because the objective of the statutes are the

same. Horn v. Cushman & Wakefield Western, Inc, 72 Cal.App.4th

798, 805 (1999).

10

III.

ANALYSIS

A. AGE DISCRIMINATION

Plaintiff’s cause of action alleging age discrimination is

premised on both the federal and state statutes prohibiting such

conduct.6 The Age Discrimination Employment Act makes it "unlawful

for an employer . . . to fail or refuse to hire or to discharge any

individual or otherwise discriminate against any individual with

respect to his compensation, terms, conditions, or privileges of

employment, because of such individual's age." 29 U.S.C. 

§ 623(a)(1). 

When a plaintiff alleges disparate treatment based on age,

liability depends on whether the protected trait actually motivated

the employer’s decision. Hazen Paper Co. v. Biggens, 507 U.S. 604,

610 (1993). McDonnell Douglas and subsequent decisions have

“established an allocation of the burden of production and an order

for the presentation of proof in discriminatory-treatment cases.”

St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506 (1993). 

Accordingly, upon a motion for summary judgment: 

The plaintiff must first establish a prima facie case of

discrimination. If the plaintiff establishes a prima

facie case, the burden then shifts to the defendant to

articulate a legitimate nondiscriminatory reason for its

employment decision. Then, in order to prevail, the

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7 While it is clear that plaintiff ultimately bears the

burden of persuasion, Costa v. Desert Palace, 299 F.3d 838, 855

(9th Cir. 2002), aff’d, 539 U.S. 90 (2003), it is important not to

confuse that issue with the requisites for defeating a motion for

summary judgment.

8 Although the cases addressing the issue sometimes reflect

confusion, nothing in the substantive law nor in the McDonnell

Douglas shifting burden mode of analysis modifies Fed. R. Civ. P.

56 nor the standards relating to the disposition of motions brought

pursuant to that section. 

11

plaintiff must demonstrate that the employer's alleged

reason for the adverse employment decision is a pretext

for another motive which is discriminatory.

Nidds v. Schindler Elevator Corp., 113 F.3d 912, 916 (9th Cir.

1996)(quoting Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th

Cir. 1994)).7

I. Prima Facie Case

To establish a prima facie case of age discrimination, the

plaintiff must tender evidence that she is (1) within the protected

class of individuals over forty years of age, (2) that she was

qualified for her position, (3) that she was discharged, and (4)

that a younger person with equal or inferior qualifications

replaced her. Nidds v. Schindler Elevator Corp., 113 F.3d 912 (9th

Cir. 1996); Hersant v. Dep't of Soc. Serv., 57 Cal.App.4th 997,

1003 (1997). The burden on the plaintiff at this point is not

onerous. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248

(1981).8

Plaintiff clearly establishes a prima facie case. First,

because she was over forty at the time she was fired, plaintiff is

a member of the protected class. Second, plaintiff’s testimony is

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12

that she was performing competently. Thus, even though she

received negative feedback on the LINK evaluations, the contents

of which she disputed, there is evidence that plaintiff was

qualified for her position. Third, plaintiff was discharged. And

fourth, several of the employees that remained in the Billings

department were younger and had either equal or inferior skills.

ii. Legitimate Nondiscriminatory Reasons for Termination

Upon plaintiff’s showing, it now becomes defendant’s burden

to articulate a legitimate, nondiscriminatory reason for its

actions. The burden is merely one of production, and the

“defendant need not persuade the court that it was actually

motivated by the proffered reasons.” Texas Dept. of Community

Affairs v. Burdine, 450 U.S. 248, 254 (1981).

Here, defendants have offered a nondiscriminatory reason for

plaintiff’s termination. Specifically, defendants claim that

plaintiff was let go because of her poor job performance, Def.’s

Reply to Opp’n at 3:1-2, and the LINK review provides an

evidentiary basis for that assertion.

iii. Pretext

Under the McDonnell Douglas mode of analysis, the burden now

shifts to plaintiff to introduce evidence that the defendants’

reasons were pretextual. The Supreme Court has stated that at this

stage “a plaintiff's prima facie case, combined with sufficient

evidence to find that the employer's asserted justification is

false, may permit the trier of fact to conclude that the employer

unlawfully discriminated.” Reeves v. Sanderson Plumbing Products,

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13

530 U.S. 133, 148 (2000). Accordingly, because the burden on the

plaintiff at summary judgment is not heavy, see, e.g., Pottenger

v. Potlatch Corp., 329 F.3d 740, 746 (9th Cir. 2003), upon the

tender of evidence to that effect, summary judgment should be

denied. Id.; See also Coghlan v. American Seafoods Co. LLC., 413

F.3d 1090, 1097 (9th Cir. 2005)(“in many cases where the evidence

is sufficient for a rational trier of fact to conclude that the

employer is lying about its reason for firing or demoting the

plaintiff, summary judgment will be inappropriate on that basis

alone because a jury could reasonably view the employer's lie as

evidence of its guilt.”)

Here, plaintiff advances several reasons that undermine

defendants’ legitimate nondiscriminatory reason and therefore

creates a genuine issue of material fact as to whether defendants’

stated reason is a pretext for discrimination. 

Plaintiff maintains that she was performing her job at a

satisfactory level, and disputes the accuracy of the negative

performance reviews she received prior to her termination. See

Pl.’s Opp’n, Decl. of Alicia Alo. It is perhaps not without

significance that it appears that only as plaintiff got older and

approached retirement did she began to receive negative performance

reviews. Again, it may be significant that plaintiff was wrongly

accused of a mistake that cost the company $6 million dollars.

Indeed, it was only when plaintiff challenged the accusation that

defendants removed any mention of the $6 million dollar mistake

from the performance review. Soon thereafter, however, plaintiff

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9 It seems self-evident that firing an older worker in order

to deprive her of her retirement benefits falls comfortably within

the prohibition against age discrimination since only older workers

would be subject to such conduct. See ADEA, 29 U.S.C. § 623(a)(1).

14

was accused of a second and separate $2.6 million dollar mistake.

Pl.’s Opp’n, Decl. of Alicia Alo. Plaintiff contested both of

these alleged mistakes and claims that neither mistake was

attributable to her. Id. 

Plaintiff also challenged the negative comments on her

performance reviews. She told her supervisors that she was worried

that her twenty year tenure with the company was threatened. Id.

Plaintiff explained that she was never told exactly what she was

doing wrong in her job and that the negative comments in her LINK

evaluations failed to explain what plaintiff was doing wrong. Id.

Finally, plaintiff claims that when she was transferred to the new

unit within the Carrier group, she was never given any guidelines

on how to perform her new job until she would make alleged

mistakes. Id. 

It is undisputed that the negative performance reviews

occurred as plaintiff was getting older and only a few years from

retirement and the vesting of her pension plan.9 Finally, it is

also undisputed that of the thirty eight employees terminated from

plaintiff’s division, twenty seven of those terminated were over

the age of forty (40). Mot. for Summ. J., Decl. of Jeffery S. Gray

at 4:2.

Taken together, all the above suggests that there is

sufficient evidence for a rational trier of fact to conclude that

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10 The distinction is that harassing claims require conduct

of sufficient gravity as to cause an alteration in the conditions

of employment. Reno v. Baird, 18 Cal.4th 640, 646 (1998); Aguilar

v. Avis Rent A Car System, Inc., 21 Cal.4th 121 (1999).

15

the employer’s tendered justification is mere pretext. Proof that

the defendant's explanation is unworthy of credence is “one form

of circumstantial evidence that is probative of intentional

discrimination . . . .” Reeves v. Sanderson Plumbing Products,

Inc., 530 U.S. 133, 134 (2002), and “once the employer's

justification has been eliminated, discrimination may well be the

most likely alternative explanation, especially since the employer

is in the best position to put forth the actual reason for its

decision.” Reeves, 530 U.S. at 134. Accordingly, summary

judgment for defendants is inappropriate and the motion must be

denied.

B. HARASSMENT

Plaintiff argues that defendants harassed her in the form of

blaming her for mistakes she was not responsible for and telling

plaintiff to stop protesting her LINK reviews. See Opp’n to Mot.

for Summ. J. at 23:6-19.

Harassment is, of course, a form of discrimination. Here, it

appears that plaintiff may be asserting that the alleged harassing

incidents are simply evidence of her more general claim of

discrimination.10 However, plaintiff does not explain how the

harassment she suffered was connected to her age, sex, or medical

disability. Instead, plaintiff seems to suggest a more general

type of personal harassment that is not linked to discrimination.

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11 Of course this order would in no way preclude plaintiff

from tendering evidence of the allegedly harassing incidents in

support of her claim of discrimination.

12 The court notes that the plaintiff’s brief is not evidence

and the plaintiff’s declaration is silent of the subject of

previous warnings.

16

Title VII is not a general civility code for the workplace and does

not, for better or worse, prohibit all employment-related verbal

harassment. Oncale v. Sundowner Offshore Services, Inc., 523 U.S.

75 (1998). For these reasons, summary judgment is granted on any

action premised on harassment.11

C. RETALIATION

Plaintiff alleges that defendants unlawfully retaliated

against her for “engag[ing] in the protected activity of protesting

the manner in which her performance review was handled. ” Pl.’s

Opp’n to Mot. for Summ. J. at 20: 10-12. Plaintiff’s brief asserts

that “once this protected activity took place, plaintiff was

subjected to the adverse actions of receiving her first verbal and

written warnings in 20 years . . . .” Id. at 13-14.12

To survive a motion for summary judgment, plaintiff must first

show (1) involvement in a protected activity, (2) an adverse

employment action, and (3) a causal link between the two.

McAlindin v. County of San Diego, 192 F.3d 1226, 1238 (9th Cir.

1999). “Thereafter, the burden of production shifts to the

employer to present legitimate reasons for the adverse employment

action. Once the employer carries this burden, plaintiff must

demonstrate a genuine issue of material fact as to whether the

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reason advanced by the employer was a pretext.” Id.

In this context, “protected activity” requires the plaintiff

must have protested conduct prohibited by law such as age

discrimination. Implicit in the definition of actionable informal

complaints is that the employer must be aware of the protected

conduct and that a plaintiff must have made clear that her

opposition to the employer's practices was based on grounds of

discrimination and not merely a dispute concerning employer conduct

which is not the subject of legal constraint. See Gifford v.

Atchison, T. & S.F.R. Co., 685 F.2d 1149, 1155 (9th Cir. 1982);

Jurado v. Eleven-Fifty Corp., 813 F.2d 1406, 1411-12 (9th Cir.

1987).

The question is whether there is any evidence to support

plaintiff’s claim that her objections to the LINK and the warnings

she received was premised on her assertion that they were motivated

by age discrimination and that her employer knew it. Although the

plaintiff has failed to marshal any evidence, two bits appear to

exist. First is the fact that plaintiff suggested to her

supervisors that she was concerned with whether they were trying

to destroy her twenty years of seniority with the company and the

fact that she was approaching retirement. See n. 9. Second was the

e-mail between supervisors which reads “If we go down the path of

corrective action, and she ends up being terminated - she can file

a claim for retaliation - we will deal with that if we need to.”

Pl.’s Opp’n to Mot. for Summ. J., Ex. 31. It is, to say the least,

unclear what the supervisors thought the claim of retaliation would

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13 Whether the inference is reasonable has caused the court

some pause. It is important, however, to remember that the court

is not engaged in fact finding, but only in the discovery of a

genuine dispute. 

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address. Given the requirement that the court draw all reasonable

inferences in favor of the non-moving party, it appears proper that

the court draw the inference that the references were to age

discrimination.13 Given the inference, it would appear that there

is evidence that the employer was aware that plaintiff was

objecting to the treatment she was receiving not just because it

was unfair (a non-cognizable claim), but because it was based in

age discrimination.

Once plaintiff makes a prima facie case, the analysis of the

other factors parallels the McDonnell Douglas analysis addressed

above, resulting in the same conclusion, i.e. that summary

judgment must be denied. 

D. SEX DISCRIMINATION

Plaintiff’s sex discrimination claims are not detailed in the

complaint or explained in the plaintiff’s opposition to the motion

for summary judgment. Defendants argue that the claim must fail

for lack of a cognizable harm. Def.’s Mot. for Summ. J. at 9:15-

22. 

Upon review of the facts, it appears that at one point,

plaintiff commented in her deposition that she believed defendants

were nicer to six specific male employees. Def.’s Mot. for Summ.

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14 These were the only facts that the court discovered to

support plaintiff’s sex discrimination claim. 

15 Because of the similarity between state and federal

employment discrimination laws, California courts look to pertinent

federal precedent when applying our own statutes." Guz v. Bechtel

National, Inc., 24 Cal.4th 317, 354 (2000). 

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J., Dep. of Alicia Alo at 236:20-24.14

Given the paucity of facts to support this claim and given

that plaintiff did not address the cause of action in her

opposition, defendants are entitled to summary judgment on the sex

discrimination claim.

E. MEDICAL CONDITION DISCRIMINATION UNDER THE ADA & FEHA

Plaintiff maintains that she suffered from a mental

disability, specifically, depression and stress bought on by her

work environment. Plaintiff maintains that she was discriminated

against based on this condition. Pl.’s Opp’n at 22:3-10. 15

To state a prima facie case under the ADA where a motion for

summary judgment has been made, a plaintiff must tender evidence

that (1) she is a disabled person within the meaning of the ADA;

(2) she is a qualified individual, meaning she can perform the

essential functions of her job; and (3) that her employer

terminated her because of her disability. Nunes v. Wal-Mart

Stores, Inc., 164 F.3d 1243, 1246 (9th Cir. 1999). 

Under the ADA, “disability” is defined as “a physical or

mental impairment that substantially limits one or more of the

major life activities of the individual.” 42 U.S.C. § 12102(2)(A).

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The applicable federal regulations list three factors to be

considered in determining whether an individual is substantially

limited in a major life activity: “(i) The nature and severity of

the impairment; (ii) The duration or expected duration of the

impairment; and (iii) The permanent or long term impact, or the

expected permanent or long term impact of or resulting from the

impairment.” 29 C.F.R. Pt. 1630.2(j)(2).

In the case at bar, plaintiff was first diagnosed with

depression and anxiety in July 2003, roughly two months prior to

her fainting spell and five months prior to the termination of her

employment. Pl.’s Opp’n, Dep. of Alicai Sabin, M.D., Ex. 36. In

July, plaintiff was also placed on medication to treat depression.

Id. After plaintiff fainted in September, she was on “medical

disability” from work for three months. Id.

Depression may be a disability within the meaning of the ADA.

See Doe v. Region 13 Mental Health-Mental Retardation Commission,

704 F.2d 1402 (5th Cir. 1983); and Pritchard v. Southern Co.

Services, 92 F.3d 1130, 1132 (11th Cir. 1996)(defining disability

as a “physical or mental impairment”). 

Here, at least for the purpose of the instant motion,

defendants make no claim that plaintiff was not disabled. Rather,

they rely on the presence of a legitimate nondiscriminatory reason

for the discharge. For the same reasons noted above, the court

concludes that there is a genuine dispute as to defendants’ motive,

and accordingly the motion must be denied. 

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F. DISCRIMINATION IN VIOLATION OF THE UNRUH ACT

Plaintiff also cites the California Unruh Civil Rights Act as

a grounds for relief. The Unruh Act provides that:

All persons within the jurisdiction of this state are

free and equal, and no matter what their sex, race,

color, religion, ancestry, national origin, . . . are

entitled to the full and equal accommodations,

advantages, facilities, privileges, or services in all

business establishments of every kind whatsoever.

Cal. Civ. Code § 51.

The Unruh Act prohibits discrimination “by a ‘business

establishment’ in the course of furnishing goods, services or

facilities to its clients, patrons or customers.” Alcorn v. Anbro

Eng'g, Inc., 2 Cal.3d 493, 500 (1970). The Unruh Act does not,

however, apply to allegations of discrimination in employment. Id.;

See also Rojo v. Kliger, 52 Cal.3d 65, 77 (1990) (holding that the

Unruh Act has no application to employment discrimination). For

this reason, plaintiff’s claim under the Unruh Act is not

cognizable and summary judgment must be granted for defendants. 

For the aforementioned reasons, the court hereby ORDERS as

follows: 

1. Defendants’ motion for summary judgment as to

plaintiff’s age discrimination claim is DENIED. 

2. Defendants’ motion for summary judgment as to

plaintiff’s retaliation claim is DENIED.

3. Defendants’ motion for summary judgment as to plaintiff’s

medical disability claim in DENIED. 

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4. Defendants’ motion for summary judgment as to all the

other causes of action listed in the complaint is GRANTED. 

IT IS SO ORDERED. 

DATED: January 10, 2006

/s/Lawrence K. Karlton 

LAWRENCE K. KARLTON

SENIOR JUDGE

UNITED STATES DISTRICT COURT

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