Joyce E. McRoberts vs. AT&T, Inc.

Joyce E. McRoberts vs. AT&T, Inc.

Nature of Proceeding: Motion for Summary Judgment and/or Adjudication

Filed By: Simpson, David B.

Defendants Pacific Bell Directory and AT&T, Inc.’s Motion for Summary Judgment, or
in the Alternative for Summary Adjudication of Issues is GRANTED.

The notice of motion does not provide notice of the Court’s tentative ruling system as
required by with C.R.C., Rule 3.1308 and Local Rule 1.06(D). Local Rules for the
Sacramento Superior Court are available on the Court’s website at
Counsel for moving party
is ordered to notify opposing party immediately of the tentative ruling system
and to be available at the hearing, in person or by telephone, in the event
opposing party appears without following the procedures set forth in Local Rule
1.06(B).

Defendants’ Request for Judicial Notice is GRANTED.

The Court rules on defendants’ evidentiary objections as follows: objections nos. 1-22,
29-35 are SUSTAINED; the remainder are OVERRULED, on the grounds set forth in
the formal order.

The Court rules on plaintiff’s evidentiary objections as follows: objections nos. 1-10 are
OVERRULED.

Continuance for Additional Discovery

Plaintiff’s request for continuance for additional discovery is DENIED. Although plaintiff submits the Declaration of Bolanos in Connection With Request for Additional
Discovery, plaintiff has made no noticed motion or ex parte request to the Court to
continue the hearing date for the motion for summary judgment on the grounds that
facts essential to justify opposition may exist but cannot, for reasons stated, then be
presented. C.C.P., sec. 437c(h) Even construing the declaration alone as such a
motion, it is apparent that plaintiff has not been diligent in seeking the requested
discovery. (Cooksey v. Alexakis (2004) 123 Cal.App.4th 246, 257.) The complaint was
filed in May 2011; plaintiff has been aware of the identities of the other employees for
years, yet failed to act diligently to conduct discovery to establish their ages. The
interrogatories to which plaintiff seeks a response were only served on April 20, 2016,
and the responses are not yet due. The discovery cut-off date is May 14, 2016. Trial is
set for June 13, 2016. The request for a continuance is therefore denied.

Pleadings

Plaintiff Joyce E. McRoberts’ Complaint sets forth five causes of action against
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defendants: the 1 for age discrimination, the 2 for violation of Labor Code, sec.
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1400, et seq., the 3 for breach of collective bargaining agreement, the 4 for unfair
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labor practices and the 5 for intentional infliction of emotional distress. The 3 and 4th
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causes of action are not alleged against moving parties. The 5 cause of action was
dismissed with prejudice by plaintiff on June 19, 2015.

Material Facts

As of March 1, 2010, Plaintiff Joyce McRoberts was employed as a Directory Sales
Representative in Pacific Bell Directory’s (“PBD”) Gold River office. (MF 1)

In 2007, PBD made the decision to consolidate all of its telephone sales jobs in all of
its offices Statewide, into two large call centers, one in Riverside for the Southern
California Telephone Sales Reps and one in Pleasanton for the Northern California
Telephone Sales Reps. (MF 3)

In 2010, the last two Telephone Sales Reps workgroups, which included Plaintiff’s
workgroup, were relocated to Pleasanton. On March 2, 2010, plaintiff received
advance written notification that her job was being relocated from Gold River to
Pleasanton. (MF 4-5)

Every Northern California Telephone Sales Rep, including Plaintiff, was being
consolidated into the Pleasanton call center for operational and managerial efficiency.
(MF 6, 8) The decision to relocate the Telephone Sales Reps from Gold River to
Pleasanton was totally unrelated to anyone’s age. (MF 7, 9)

At the time the Gold River Telephone Sales Reps were notified of their relocations to
Pleasanton, no employees, young or old, had been hired in Pleasanton to fill or take
their jobs. (MF 10) Any Telephone Sales Rep who wanted to relocate to Pleasanton on
May 24, 2010 was allowed to. (MF 11)

On March 23, 2010, Gold River Telephone Sales Reps who did not wish to relocate to
Pleasanton were given the alternative of an Early Departure Option, with a
supplementary lump sum payment. (MF 24) Plaintiff received written notice of the
Early Departure Option, and elected not to relocate to Pleasanton but to accept the
Early Departure Option. (MF 24-27)

On March 2, 2010, the average age of a Gold River Telephone Sales Rep was 45.2
years old. (MF 13) On July 12, 2010, the average age of PBD’s Northern California
Advertising Support Associates whose jobs were relocated to Anaheim was 49.4 years
old. The average age of the Gold River Graphic Designers whose jobs were relocated
to Anaheim was 50.3 years. (MF 14-15)

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Summary adjudication of the 1 for age discrimination is GRANTED.

Plaintiff’s complaint alleges that defendants engaged in a scheme to rid itself of older
workers including plaintiff under the auspices of legitimate employee relocation.

“Disparate treatment” is intentional discrimination against one or more persons on
prohibited grounds. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354, fn. 20.)

Prohibited discrimination may also be found on a theory of “disparate impact,” i.e., that
regardless of motive, a facially neutral employer practice or policy, bearing no manifest
relationship to job requirements, in fact had a disproportionate adverse effect on
members of the protected class. (E.g., Griggs v. Duke Power Co. (1971) 401 U.S. 424,
43; City and County of San Francisco v. Fair Employment & Housing Com. (1987) 191
Cal. App. 3d 976, 985-986.) (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354,
fn. 20.)

To establish a prima facie case of disparate impact, a plaintiff need only demonstrate
that a particular practice disproportionately impacts persons in a protected status
classification; the plaintiff need not show the employer harbored any discriminatory
intent. (E.g., Griggs v. Duke Power Co. (1971) 401 U.S. 424, 431; City and County of
San Francisco v. Fair Employment & Housing Com. (1987) 191 Cal. App. 3d 976, 985-
986.) Disparate impact discrimination involves employment practices that are ” ‘facially
neutral in their treatment of different groups but that in fact, fall more harshly on one
group than another and cannot be justified by business necessity.’ ” (Hazen Paper Co.
v. Biggins (1993) 507 U.S. 604, 609.) Pleading statistical disparities is insufficient.
Watson v Fort Worth Bank & Trust (1988) 487 U.S. 977, 994. A theory of disparate
impact will only succeed where, regardless of motive, a facially neutral employer
practice or policy, bearing no manifest relationship to job requirements, in fact had a
disproportionate adverse effect on members of the protected class.” Carter v CB
Richard Ellis, Inc. (2004) 122 Cal App.4th 1313, 1321.

California has adopted the three-stage McDonnell Douglas burden-shifting test
established by the United States Supreme Court for trying claims of discrimination,
including age discrimination, based on a theory of disparate treatment. (Guz, supra, 24
Cal.4th at 354.) First, plaintiff must provide evidence that (1) she was a member of a
protected class, (2) she was qualified for the position she sought or was performing
competently in the position he held, (3) she suffered an adverse employment action,
such as termination, demotion, or denial of an available job, and (4) some other
circumstance suggests discriminatory motive.

Then the burden shifts to the employer to provide evidence to rebut the presumption of
discrimination by producing admissible evidence, sufficient to establish that the
employer’s action was taken for a legitimate, nondiscriminatory reason.

Of course, “A defendant employer’s motion for summary judgment slightly modifies the order of these showings. If…the motion for summary judgment relies in whole or in
part on a showing of nondiscriminatory reasons for the discharge, the employer
satisfies its burden as a moving party if it presents evidence of such nondiscriminatory
reasons that would permit a trier of fact to find, more likely than not, that they were the
basis for the termination.[citations] To defeat the motion, the employee must then
adduce or point to evidence raising a triable issue, that would permit a trier of fact to
find by a preponderance that intentional discrimination occurred.” (Kelly v. Stamps.com
Inc. (2005) 135 Cal.App.4th 1088, 1097-1098.)

If the employer sustains this burden, the presumption of discrimination disappears.
The plaintiff must then have the opportunity to attack the employer’s proffered reasons
as pretexts for discrimination, or to offer any other evidence of discriminatory motive. (
Id.)

Moving party asserts that the evidence reflects a legitimate, nondiscriminatory reason
for the decision to relocate all of the Gold River Telephone Sales Rep jobs, including
plaintiff’s, to Pleasanton. The consolidation was undertaken for operational and
managerial efficiency, which would result in all of the telephone sales representatives,
statewide in California, consolidated under two roofs.

Moving party has met its burden of showing a legitimate, nondiscriminatory reason for
plaintiff’s separation. Here, the circumstances reflect that plaintiff was not singled out
for disparate treatment, based on her age. Every single Telephone Sales Reps
position in the Gold River office was relocated to Pleasanton, regardless of age.

Plaintiff fails to offer admissible evidence of pretext for discrimination, or to offer any
other evidence of discriminatory motive.

Plaintiff was not singled out; plaintiff offered no evidence to counter defendants’ age
statistics; plaintiff’s citation to evidence that only 25% of employees would relocate to
Pleasanton, does not establish that only younger workers would be willing to do so.

Plaintiff has not established that younger workers were hired in Pleasanton. Plaintiff
has deposed six of the replacement employees, who were ages 55, 33, 62, 36, 58 and
44 in 2010. The average age of the replacements was 48 years old, as compared to
the average age of plaintiff’s work group at 45.2 years old. This fails to raise an
inference of age discrimination.

Plaintiff’s allegation of a single local manager making reference to some employees as
“dinosaurs” because they were set in their ways and not flexible, does not establish
that the corporate decision to relocate all of the Tel Reps statewide was pretextual. An
isolated remark by a person not involved in the adverse employment decision “is
entitled to virtually no weight in considering whether the firing was pretextual or
whether the decision maker harbored discriminatory animus. (Slatkin v. Univ. of
Redlands (2001) 88 Cal.App.4th 1147, 1160.)

Summary adjudication of both disparate impact and disparate treatment age
discrimination is granted.

Summary adjudication of the 2nd for violation of Labor Code, sec. 1400, et seq. is
GRANTED.
Labor Code, § 1401 (a) provides in pertinent part that: “An employer may not order a
mass layoff, relocation, or termination at a covered establishment unless, 60 days
before the order takes effect, the employer gives written notice of the order to the
following: (1) The employees of the covered establishment affected by the order.”

Here, Defendant contends that Plaintiff cannot show a violation of the “60-days” notice
because the March 2, 2010 notice of relocation was 82 days prior to the May 24, 2010
effective date of the relocation.

However as the March 2, 2010 notice required that plaintiff inform Defendant by April
2, 2010 if she intended not to relocate and instead take a severance package, the
Court finds that the full 60 days’ required notice was not given to plaintiff. If the Labor
Code were to be interpreted as Defendant urges, notice would be sufficient if an
employer gave notice of relocation and required the employee to make a decision the
following day, so long as the relocation occurred 60 days after the notice. The Court
declines interpret the statute as such.

In the alternative, Labor Code, § 1402 (a) and (b) permits an employer who fails to
give notice as required by paragraph (1) of subdivision (a) of Section 1401 before
ordering a mass layoff, relocation, or termination to pay each employee entitled to
notice who lost his or her employment (1) Back pay and benefits up to a maximum of
60 days.

Plaintiff was paid her full wages and benefits from March 2, 2010 to May 21, 2010,
which exceeds the 60 day requirement.

Plaintiff’s contention in opposition that the Court’s March 7, 2013 order on demurrer
constitutes res judicata on this issue is not well taken. That finding was that the
complaint stated a cause of action, only. Generally, a pretrial ruling may not be given
issue-preclusive effect with respect to the merits of the action. ( Service Employees
International Union v. Hollywood Park, Inc. (1983) 149 Cal.App.3d 745, 756; Rebco
Development, Inc. v. Superior Court (1977) 67 Cal.App.3d 13, 16-17; Tiffany
Productions, Inc. v. Superior Ct. (1933) 131 Cal.App. 729, 734.)

The holding in Braden v. LSI Logic Corp. (N.D. Cal. 2004) 340 F.Supp.2d 1066, 1073,
based on the federal WARN act is similar to this action. There the court found that the
two-fold objectives of the WARN Act — notice and a continued stream of income — had
been met. Plaintiffs were given written notice of their layoff and their employment was
not terminated for sixty days. Plaintiffs were paid their regular pay and benefits during
the sixty-day period.

No damages have been incurred by plaintiff in violation of the WARN act, and
therefore no action will lie to recover damages. ( United States Liability Ins. Co. v.
Haidinger-Hayes, Inc. (1970) 1 Cal.3d 586, 59.)

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Summary adjudication of the 1 & 2 causes of action as to AT&T, Inc. is GRANTED.

Moving party asserts that plaintiff was employed by Pacific Bell Directory, not AT&T,
Inc., although AT&T, Inc. was a named defendant and both entities have filed Answers
to the Complaint.

AT&T, Inc. is a holding company which owned AT&T Yellow Pages Holdings LLC,
which was another holding company that owned Pacific Bell Directory. (UMF 43)
AT&T, Inc. observed all the corporate formalities. AT&T, Inc. has no operations and
no employees, no human resources or labor relations personnel. (UMF 47)

Pacific Bell Directory negotiated and entered into the collective bargaining agreement
with plaintiff’s union. (UMF 41) The operative collective bargaining agreement itself
identifies Plaintiff’s positions as Telephone Sales Reps as among those that are
“employees of Pacific Bell Directory.” (UMF 42)

Pacific Bell Directory was solely responsible for paying its own employees, making
employment decisions as to hiring, firing, promotions, relocations and consolidations
were conducted in-house by Directory’s own management and staffing department
without any interference from other entities, including AT&T Inc. (UMF 45-46)

AT&T never owned nor operated the Gold River office where Plaintiffs worked. AT&T
Inc. did not make the decision to consolidate the Northern California Telephone Sales
Reps, including plaintiff, to Pleasanton. (UMF 52-53)

Although plaintiff attempts to dispute MF nos. 36-64, her evidence fails to raise a
triable issue of material fact.

Summary adjudication of the 1st cause of action for age discrimination under FEHA
against AT&T, Inc. is GRANTED.

FEHA actions may only be brought against the employer. “Employer” is defined by
statute to include any person regularly employing five or more persons, or any person
acting as an agent of an employer, directly or indirectly. Gov. Code, § 12926(d).

Plaintiff has acknowledged that she was paid by Pacific Bell Directory, and was a
union member and her union had a collective bargaining agreement with Pacific Bell
Directory.

AT&T, Inc. is the holding company which owned AT&T Yellow Pages Holdings, LLC,
which was another holding company, which owned Pacific Bell Directory. Thus, AT&T,
Inc. is the parent of the parent of the subsidiary Pacific Bell Directory, which employed
plaintiff.

An employee who seeks to hold a parent corporation liable for the acts or omissions of
its subsidiary on the theory that the two corporate entities constitute a single employer
has a heavy burden to meet under both California and federal law. Corporate entities
are presumed to have separate existences, and the corporate form will be disregarded
only when the ends of justice require this result. (Mesler v. Bragg Management Co.
(1985) 39 Cal. 3d 290, 300 [alter ego liability]; Mid-Century Ins. Co. v. Gardner (1992)
9 Cal. App. 4th 1205, 121.) In particular, there is a strong presumption that a parent
company is not the employer of its subsidiary’s employees.”(Laird v. Capital
Cities/ABC (1998) 68 Cal.App.4th 727, 737.)

Here, plaintiff has failed to meet her burden, as she has provided no evidence that
AT&T, Inc. was involved in any way in the day to day operations of Pacific Bell
Directory. Plaintiff offers only speculation regarding “AT&T”, not even any evidence
regarding AT&T, Inc.
As AT&T, Inc. is legally not plaintiff’s employer, it cannot be liable for age
discrimination under FEHA.

Summary adjudication of the WARN Act against AT&T, Inc. is GRANTED.

Again, AT&T, Inc. has not been shown to be plaintiff’s direct employer. It did not own
or operate the Gold River office where plaintiff worked. It owned no facilities, as it was
only a holding company.

AT&T, Inc. was not Pacific Bell Directory’s parent corporation, but the parent of the
parent, AT&T Yellow Pages Holdings LLC.

All summary adjudication is granted on all causes of action, summary judgment is also
GRANTED as to both defendants.

The prevailing party is directed to prepare a formal order complying with C.C.P. §437c
(g) and C.R.C. Rule 3.1312.

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