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Baker v. Walgreens Arizona Drug Co.

United States District Court, D. Arizona

June 8, 2016

Karen M. Baker, Plaintiff,
v.
Walgreens Arizona Drug Company, Defendant.

          ORDER

          James A. Teilborg Senior United States District Judge

         Pending before the Court are cross-motions for summary judgment filed by Plaintiff Karen M. Baker, (Doc. 44), and Defendant Walgreens Arizona Drug Company. (Doc. 45). The parties’ motions come in response to the Court’s May 6, 2016, Order finding that the Court would exercise supplemental jurisdiction over Plaintiff’s state law “wrongful termination” claim pursuant to Title 28 U.S.C. § 1367 (2012). (Doc. 43). Having considered the parties’ filings, the Court now rules on the pending motions.[1]

         I.

         In its April 18, 2016, Order the Court set forth in detail the factual allegations underlying Plaintiff’s lawsuit. (Doc. 40 at 1-5). The Court need not do so again. For purposes of adjudicating the pending cross-motions for summary judgment, it is sufficient to note the following procedural developments.

         On April 18, 2016, the Court granted Defendant summary judgment on Plaintiff’s federal law claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq, (“Title VII”), and the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq., (“ADEA”). (Doc. 40 at 7-22). The Court also found, reading pro se Plaintiff’s pleading liberally, that the Complaint contained a state law claim of “wrongful termination, ” (id. at 22-23), but that further factual development was necessary to determine whether the Court had original jurisdiction under 28 U.S.C. § 1332, or whether the Court had discretion to exercise supplemental jurisdiction under 28 U.S.C. § 1367. (Id. at 23).

         On May 6, 2016, after considering the parties’ briefing on subject matter jurisdiction, the Court found that original jurisdiction did not exist, but that in its discretion the Court would exercise supplemental jurisdiction over the state law claim, as it was “part of the same controversy as [Plaintiff’s] federal law discrimination claims, and that judicial efficiency w[ould] be promoted by hearing the claim.” (Doc. 43 at 2). Because Plaintiff’s Complaint and her subsequent filings failed to provide any substance as to what sort of state law “wrongful termination” claim was alleged, the Court further found that Plaintiff’s claim was best characterized as a violation the Arizona Employment Protections Act (“APEA”), pursuant to A.R.S. § 23-1501(3)(b) (2014), for violations of the Arizona Civil Rights Act (“ACRA”). (Id.) Finally, in light of the Court’s decision to exercise supplemental jurisdiction over the state law claim, coupled with “the ambiguities about the nature of the claim in the original Complaint, ”[2] the Court amended its Fed.R.Civ.P. 16(b) Scheduling Order and permitted each party file dispositive motions by Friday, May 20, 2016. (Id. at 3).

         Both parties filed a motion for summary judgment on Plaintiff’s remaining claim on May 20, 2016. (Doc. 44; Doc. 45). Neither party filed a timely response opposing summary judgment, [3] nor did either party request oral argument. Having set forth the pertinent procedural background, the Court turns to the pending motions.

         II.

         The Court’s April 18, 2016, Order set forth in full the applicable legal standard for a Fed.R.Civ.P. 56(a) motion for summary judgment where one party is a pro se litigant. (Doc. 40 at 5-7). The Court need not recite the full standard again. Summary judgment is only appropriate where there is no genuine issue of material fact, Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986), and as a pro se litigant, the Court must liberally construe Plaintiff’s pleadings, Franklin v. Murphy, 745 F.2d 1221, 1235 (9th Cir. 1984) (citation omitted), and her burden to overcome summary judgment in this employment discrimination action is minimal. Diaz v. Eagle Produce, Ltd., 521 F.3d 1201, 1207 (9th Cir. 2008) (quoting Chuang v. Univ. of Cal. Davis, Bd. of Trs., 225 F.3d 1115, 1124 (9th Cir. 2000)).

         III.

         A. Plaintiff’s Motion for Summary Judgment

         The Court begins by addressing Plaintiff’s motion. (Doc. 44). Having reviewed the motion liberally, the Court finds it to be insufficient to entitle Plaintiff to judgment as a matter of law. Plaintiff’s motion is primarily a re-telling of facts contained in Plaintiff’s opposition to Defendant’s earlier motion for summary judgment, (Doc. 26), and rests on three factual allegations. The Court will address each in turn.

         First, Plaintiff recounts in detail the incident involving the customer who tendered five dollars as partial payment for the transaction that ultimately led to Plaintiff’s termination. (Doc. 44 at 2-4). Plaintiff denies that she stole the customer’s money, and alleges that Luis Palomo, the manager at the store where Plaintiff worked, “fabricated this lie of theft, and then terminated Plaintiff’s employment.” (Id. at 6, 7). The Court, however, previously noted that it was unable “to identify a viable cause of action under the [Arizona Employment Protection Act (“AEPA”)] for making false accusations about an employee.” (Doc. 43 at 2). Plaintiff has yet to point to anywhere in the statute that authorizes such a claim, and to the extent that the allegation supports a claim of discrimination on the basis of race and age, the Court finds it to be a “conclusory statement without factual support” in the record. Plaintiff has proffered no evidence to support the allegation, and absent some corroboration in the record, the Court need not consider it. Surrell v. Cal. Water Serv., 518 F.3d 1097, 1103 (9th Cir. 2008) (citation omitted). Even accepting Plaintiff’s conclusory claim, she has still proffered nothing to show that other similarly situated employees were treated differently than she was. See Baker v. Walgreens Ariz. Drug. Co., No. CV-15-00342-PHX-JAT, 2016 U.S. Dist. LEXIS 51503, at *13 (D. Ariz. April 18, 2016) (finding that the record did not contain “even a modicum of evidence to support [Plaintiff’s] claim”).

         Next, Plaintiff asserts that the Arizona Department of Economic Security (“ADES”) investigated Plaintiff’s unemployment claim, and found that Plaintiff was entitled to unemployment insurance due to the fact she was “discharged because [her] employer was not satisfied with [her] work” and not due to negligence or carelessness. (Doc. 44 at 10). Plaintiff also cites to a brief discussion with an ADES Unemployment Insurance Consultant where she informed the consultant that there was a delay between the incident that led to Plaintiff’s termination and the actual date of termination. (Id. at 6). These facts, however, pertain to what appears to be an investigation as to whether Plaintiff was eligible to collect unemployment. ADES is the state agency that handles applications for and dissemination of unemployment benefits. Prebula v. Arizona Dep’t of Economic Sec., 672 P.2d 978, 980 (D. Ariz. 1983). The ADES investigation determined that Plaintiff was not “negligent” or “careless” and did not ...


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