United States District Court, D. Arizona
Karen M. Baker, Plaintiff,
Walgreens Arizona Drug Company, Defendant.
A. Teilborg Senior United States District Judge
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
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
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).
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,
” 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).
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,  nor did either party request oral
argument. Having set forth the pertinent procedural
background, the Court turns to the pending motions.
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)).
Plaintiff’s Motion for Summary Judgment
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.
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 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