Case 3:17-cv-06748-WHO Document 144 Filed 12/30/19 Page 1 of 28
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`UNITED STATES DISTRICT COURT
`
`NORTHERN DISTRICT OF CALIFORNIA
`
`DEMETRIC DI-AZ, et al.,
`
`Plaintiffs,
`
`v.
`
`TESLA, INC., et al.,
`
`Case No. 3:17-cv-06748-WHO
`
`
`ORDER ON MOTIONS FOR
`SUMMARY JUDGMENT
`
`Re: Dkt. Nos. 85, 91, 92, 116, 117, 118,
`
`Defendants.
`
`119, 120, 124, 125, 131, 135
`
`
`
`
`
`The facts of this racial discrimination and harassment case are as complex and overlapping
`
`as the employment structure the defendants have fabricated. According to plaintiffs (and father
`
`and son) Owen Diaz and Demetric Di-az, the Tesla, Inc. factory in Fremont, California—where
`
`they worked in 2015 and 2016—was a hotbed of racial hostility where they frequently heard the n-
`
`word from supervisors and fellow employees. Owen Diaz brings harassment and discrimination
`
`claims against Tesla, CitiStaff Solutions, Inc. (his temporary staffing agency), and nextSource,
`
`Inc. (the liaison between Tesla and CitiStaff); Demetric Di-az brings claims only against Tesla.1
`
`Before me are the defendants’ motions for summary judgment. Material facts are in
`
`dispute whether plaintiffs faced severe and pervasive racial harassment in the workplace and
`
`whether Tesla, its staffing agency, and the on-scene liaison are joint employers. Owen Diaz did
`
`not rebut defendants’ evidence that he failed to return to work as promised after a leave, so his
`
`other employment-related discrimination claims fail. For the reasons set forth below, I will grant
`
`the motions in part and deny them in part. This case will proceed to trial.
`
`
`1 On December 18, 2019, I granted the parties’ stipulation to dismiss defendant West Valley
`Staffing Group, Di-az’s staffing agency. Dkt. No. 138.
`
`
`
`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
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 3:17-cv-06748-WHO Document 144 Filed 12/30/19 Page 2 of 28
`
`
`
`A. Relationships between the Defendants
`
`BACKGROUND
`
`Before describing the environment at the Tesla factory that a jury could conclude was
`
`hostile in violation of 42 U.S.C. section 1981, it is necessary to discuss the employment structure
`
`Tesla created. I will start with defendant CitiStaff, which admits to being Owen Diaz’s employer.
`
`It is a temporary staffing agency that provides contractors to clients for temporary work
`
`throughout California, including through a partnership with nextSource. Ledesma Decl. ¶ 2;
`
`McGinn Depo. 22:13-15. The application individuals fill out to become CitiStaff employees
`
`includes CitiStaff policies, from sexual harassment to job abandonment. De Leon Depo 40:2-15.
`
`New employees receive an Employee Handbook containing an anti-harassment policy that “sets
`
`forth examples of prohibited conduct including, but not limited to, the use of derogatory
`
`comments, statements, or innuendo in the workplace and requires employees to report conduct
`
`believed to violate this policy.” Ledesma Decl. ¶ 3. Monica De Leon is the CitiStaff
`
`representative for Northern California. She handles onboarding and processes applications to
`
`ensure that candidates have “read and signed all [CitiStaff’s] policies.” De Leon Depo. 166:7-14.
`
`CitiStaff did not have an employee on-site at the Tesla factory during Diaz’s time there; instead,
`
`he and other contractors were told to contact their staffing supervisor with any problems at work.
`
`Ledesma Decl. ¶ 2. De Leon tells contractors that if they have questions or concerns they can also
`
`call or email her. See De Leon Depo. 163:24-164:8.2
`
`Defendant nextSource is a service provider that functions as a liaison between staffing
`
`agencies such as CitiStaff and nextSource’s clients, including defendant Tesla. Jackson Depo.
`
`16:1-8. When Tesla informs nextSource of its need for a particular service, nextSource contacts
`
`its suppliers to request individuals with the skills required to meet that need. Id. at 18:4-13;
`
`McGinn Depo. 20:2-12, 20:22-25 (noting that agencies recruit and onboard individual workers).
`
`
`2 According to one colloquy during De Leon’s deposition: “Q: Did CitiStaff have a requirement
`that its contractors contact the CitiStaff personnel like yourself when it comes to complaints of
`harassment? Or can CitiStaff contractors make the complaints directly to the clients? A: So they
`would be able to report to me as well. And if for some reason they can’t get ahold of me and they
`felt they needed to tell their supervisor -- they tell their supervisor about it, then yeah, yes.” De
`Leon Depo. 162:12-16.
`
`2
`
`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
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 3:17-cv-06748-WHO Document 144 Filed 12/30/19 Page 3 of 28
`
`
`
`Once an individual is placed at the Tesla factory, Tesla gives them an orientation, directs their
`
`day-to-day activities, and determines their rate of pay. See Diaz Depo. 81:24-82:10; McGinn
`
`Depo. 20:19-22. NextSource facilitates “information flow”: it communicates Tesla’s needs or
`
`wishes to suppliers, and it provides a technology platform where contract workers enter their
`
`timesheets for Tesla’s approval. McGinn Depo. 19:20-20:1, 24:4-23. Once timesheets have been
`
`approved, nextSource prepares a consolidated bill for Tesla. Id. at 131:14-132:4. Tesla pays
`
`nextSource, nextSource pays the staffing agencies, and the staffing agencies pay individual
`
`contractors. Id.
`
`Wayne Jackson was nextSource’s program manager during the time period in question,
`
`meaning that he acted as a liaison between Tesla and the contractors at the Tesla factory. Jackson
`
`Depo. 15:18-25, 22:2-4, McGinn Depo. 42:19-43:7. When there was an issue with a contracted
`
`employee, Jackson alerted the relevant agency along with Tesla.3 See Jackson Depo. 19:12-24
`
`(noting that “usually one of the first things [he] did” was to alert the agency), 19:25-20:18 (noting
`
`that he would alert Tesla’s HR department), 40:10-13, 68:23-69:13; see also McGinn Depo. 43: 2-
`
`7 (indicating that Jackson would “communicate to the -- either party to the client side or to the
`
`supplier side, based on the facts”).4 He might gather facts at Tesla’s request and communicate
`
`those facts to the staffing agency so that it could investigate. See McGinn Depo. 43:3-7; Jackson
`
`Depo. 19:12-24, 24:14-24. Jackson was the highest-level nextSource employee at the Tesla
`
`factory when the plaintiffs worked there. McGinn Depo. 43:19-22.
`
`While working at Tesla, contractors are expected to comply with its safety rules and anti-
`
`harassment and discrimination policies.5 Quintero Depo. 19:10-25; Heisen Depo. 70:1-9, 72:5-18.
`
`When an incident occurs at a Tesla factory, policy requires supervisors to inform their managers
`
`and HR. Heisen Depo. 78:1-10, 79:7-15; Marconi Depo. 52:3-6, 118:4-21 (noting that she would
`
`
`3 Diaz was aware he could talk to Jackson of nextSource. Diaz Depo. 131:23-132:8.
`
` 4
`
` Jackson testified that Monica De Leon of CitiStaff “was really very difficult to reach.” Jackson
`Depo. 96:7-15. Erin Marconi of Tesla HR recalled “having to push on behalf of Tesla to get
`things from [nextSource].” Marconi Depo. 107:10-22.
`
` Tesla also expects that agencies will train employees on these issues. Heisen Depo. 75:21-22.
`3
`
` 5
`
`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
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 3:17-cv-06748-WHO Document 144 Filed 12/30/19 Page 4 of 28
`
`
`
`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
`
`expect Quintero to inform her about racist comments). Upon learning of an incident, Tesla HR
`
`would inquire about the contractor’s comfort level and then connect the contractor to the HR
`
`representative in the relevant agency. Marconi Depo. 58:3-9. Tesla relied on agencies to conduct
`
`investigations involving their employees, but Tesla’s HR department communicated and
`
`collaborated with the relevant agency to ensure that the issue was resolved. Heisen Depo. 112:8-
`
`18, 170:9-15; Marconi Depo. 59:8-21 (noting that her preference “would not be to interview
`
`someone else’s employee, especially not without them present”), 87:20-25 (noting that she would
`
`expect the agency to keep her informed on the findings of an investigation). Tesla generally
`
`trusted the thoroughness of an agency’s investigation process. See Marconi Depo. 59:1-5 (“-- if
`
`West Valley investigated it and came back and said there wasn’t actually an issue, I’m going to
`
`believe that West Valley did their investigation thoroughly and if there was something to address,
`
`addressed it.”).
`
`Tesla has authority to exclude contract employees from the property and to end the
`
`contract with an individual. Heisen Depo. 170:16-22; De Leon Depo. 118:10-20; see De Leon
`
`Depo. 110:6-111:19 (testifying, “let’s just say in the case the client tells us that a contractor has
`
`violated a harassment policy or any policy, more than likely the client is going to end the person’s
`
`assignment”). De Leon did not have the authority to end a CitiStaff employee’s assignment;
`
`instead, she would have to follow up with HR. De Leon Depo. 160:11-16. Only the agency could
`
`actually terminate an individual worker. Jackson Depo. 40:17-23 (noting that he could
`
`recommend termination, but the final decision rested with the agency). NextSource and Tesla
`
`were permitted to issue warnings to CitiStaff employees and give them performance evaluations.
`
`De Leon Depo. 65:8-66:1.
`
`
`
`Various Tesla employees worked with and supervised contract workers during the time
`
`period in question. In his role as contract services supervisor, Edward Romero escalated concerns
`
`or complaints to the right people. Romero Depo. 88:3:11. Within Tesla, that meant manager
`
`Victor Quintero or someone from Human Resources. Id. at 88:16-19. Where issues involved
`
`contract workers, Quintero informed their representative or account manager for them to handle it.
`
`Id. at 88:17-22.
`
`4
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 3:17-cv-06748-WHO Document 144 Filed 12/30/19 Page 5 of 28
`
`
`
`B. Plaintiffs’ Employment and Assignments
`
`Diaz was recruited and hired on June 2, 2015. On that day, he signed CitiStaff’s sexual
`
`harassment policy and abandonment/walk-off policy.6 Diaz Depo. 95:6-21, Ex. 33. He was
`
`immediately assigned to work at Tesla’s Fremont, California factory, and he began working as an
`
`elevator operator. Diaz Depo. 90:6-11. In that role he loaded heavy material from one floor onto
`
`the elevator and then unloaded it onto another floor as part of the construction of cars. Id. at
`
`90:14-21; Romero Depo. 68:15-69:8. Tesla provided elevator operators with safety equipment.
`
`Quintero Depo. 21:16-25. All individuals who worked in the Tesla factory had to take safety
`
`orientation class. Quintero Depo. 19:22-25. Diaz’s first supervisor was Tom Kawasaki, who
`
`promoted him; later he reported to Edward Romero. Diaz Depo. 81:5-6, 18-20; see Kawasaki
`
`Depo. 63:5-18.
`
` On June 24, 2015 Diaz became team lead, meaning that he assumed more responsibility
`
`and worked with other departments more often. Romero Depo. 76:7-23. Leads were expected to
`
`move product efficiently and responsibly and to have “good communication, a spirit of
`
`cooperation, an ability to resolve issues that came along that might impede the movement of
`
`materials.” Id. at 78:5-11.
`
`C. Owen Diaz’s Experiences of Racism at the Factory
`
`According to Diaz, he frequently experienced racism at the Tesla factory. He testified that
`
`two supervisors and around eight to ten employees called him the n-word. Diaz Depo. 55:4-17.
`
`He estimated that the two supervisors, one of whom was Ramon Martinez, used the n-word more
`
`than 60 times. Id. at 55:18-56:11. For example, Martinez once said, “I hate you n------s,” and he
`
`twice said, “Go back to Africa.” Id. at 63:15-22, 68:7-10. Diaz also saw graffiti, including the n-
`
`word, inside about four bathrooms. Id. at 48:2-11, 50:15-17. The following incidents also
`
`occurred at the factory.
`
`1.
`
`July 31, 2015
`
`On July 31, 2015 Diaz and that fellow elevator operator Judy Timbreza got into an
`
`
`6 There is no evidence in the record that Diaz received a policy specific to racial harassment.
`5
`
`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
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 3:17-cv-06748-WHO Document 144 Filed 12/30/19 Page 6 of 28
`
`
`
`argument and appeared as though they were about to fight. Kawasaki Depo. 42:16-22. Tesla
`
`supervisor Tamotsu Kawasaki separated the two and then asked Diaz, Timbreza, and witnesses
`
`what had happened.7 Kawasaki Depo. 42:16-22, 81:16-23. Diaz reported that Timbreza called
`
`him racial slurs, including the n-word.8 Kawasaki Depo. 42:13-18, 81:24-82:4. Witnesses
`
`confirmed that Timbreza had used racial slurs toward Diaz. Id. at 81:24-82:4. After confirming
`
`that Timbreza was the aggressor and that he had behaved inappropriately, Kawasaki sent Timbreza
`
`home. Id. at 45:2-15, 82:1-4. That same day, Kawasaki sent Romero and Quintero an email about
`
`the incident. Kawasaki Depo. 37:17-24, 47:22-48:1. Soon after that, Romero came to speak to
`
`Kawasaki about the incident. Kawasaki shared all the information he had gathered and then
`
`passed responsibility for next steps to Romero. See id. at 47:22-48:10; Romero Depo. 152:4-21.
`
`Romero determined that a verbal warning was appropriate because (according to Romero)
`
`witnesses were not able to confirm what Timbreza had said. Romero Depo. 156:5-21. Several
`
`agreed that Timbreza had a “tendency to kid around excessively.” See id.; Organ Decl. Ex. E
`
`(contemporaneous email from Romero to Quintero). The warning explained to Timbreza “his
`
`need to treat his fellow team members with dignity and respect.” Romero Depo. 162:11-23
`
`(quoting an email). The Tesla supervisors agreed that if he engaged in similar conduct, he would
`
`be terminated. Id. at 162:19-21. Diaz did not see Timbreza again after that.9 Diaz Depo. 232:10-
`
`15.
`
`2.
`
`October 17, 2015
`
`On October 17, 2015, Diaz reported to Romero that he had a negative incident with Ramon
`
`Martinez, his supervisor at Tesla who was hired by Chartwell, a different staffing agency.10 Diaz
`
`Depo. 132:16-24; Organ Decl. Ex. K (email from Diaz to Jackson); see also Kawasaki Depo.
`
`
`7 Both Timbreza and Kawasaki were temporary workers employed by a staffing agency other than
`CitiStaff. See Jackson Depo. 56:10-16.
`
` 8
`
` Kawasaki also testified that he heard the n-word “thrown around” at the Tesla factory,
`distinguishing between its use “casually” and its use with a certain tone. Kawasaki Depo. 76:7-23.
`9 Kawasaki testified that he was not aware of why Timbreza stopped working at Tesla only a few
`days later. See Kawasaki Depo. 92:6-20.
`
`10 Martinez made a complaint about Diaz the same day.
`6
`
`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
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 3:17-cv-06748-WHO Document 144 Filed 12/30/19 Page 7 of 28
`
`
`
`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
`
`65:10-25 (indicating that he had received an email because he was off on the day in question).
`
`Martinez got in Diaz’s face with his fists balled up. See Romero Depo. 107:5-17. Jackson of
`
`nextSource interviewed both Diaz and Martinez about the incident. Jackson Depo. See 65:2-25,
`
`67:2-17. It was his practice to take notes to document interviews and then send them to the
`
`relevant agencies.11 Id. at 67:2-17. Jackson could not recall exactly what actions he took in this
`
`case, but he might have spoken with Chartwell or CitiStaff. Id. at 62:1-13.
`
`Tesla HR learned about the incident on October 20. Marconi Depo. 109:1-12. Because in
`
`Tesla’s view, the incident involved “all nextSource employees,” it expected nextSource to conduct
`
`the investigation. See id. at 109:10-18, 110:1-6.
`
`3.
`
`November 5, 2015
`
`On November 5, 2015, Diaz got into a verbal dispute with Rothaj Foster, another African
`
`American CitiStaff employee assigned to work at Tesla. Diaz Depo. 141:17-19; De Leon Depo.
`
`67:17-22. During that dispute Foster, who was being aggressive, said he was going to shoot Diaz
`
`and threatened Diaz’s car. Id. at 141:20-21; De Leon Depo. 139:1-5. Diaz reported the incident to
`
`Romero. Diaz Depo. 141:22-23. After Romero had corroborated the incident, he called security
`
`and had Foster removed from the Tesla premises to prevent any more problems between him and
`
`Diaz. Romero Depo. 199:2-6, 200:14-22; see also Marconi Depo. 116:13-25 (noting that the
`
`correct procedure was followed in response to this incident).
`
`Diaz did not report the interaction to CitiStaff; instead, CitiStaff learned about it from
`
`Jackson of nextSource. De Leon Depo. 163:1-5; see also id. at 163:7-10 (“Q: And why did thy
`
`report to you; do you know? A: Since [Diaz] was a CitiStaff contractor, that is why they reported
`
`to me as well.”). When De Leon learned about it, she followed up with both Diaz and Foster by
`
`phone to understand what had happened.12 See id. at 122:8-123:4. When De Leon spoke with
`
`Diaz, he indicated that he was comfortable going back to work in the same position. De Leon
`
`
`11 Although he testified that it was his practice to take notes on his nextSource laptop, Jackson did
`not have a copy of any notes. Jackson Depo. 67:18-68:11.
`
`12 Diaz also allowed Chartwell to speak with Diaz, but she was not aware of whether they
`investigated the incident. De Leon Depo. 144:1-6.
`7
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 3:17-cv-06748-WHO Document 144 Filed 12/30/19 Page 8 of 28
`
`
`
`Depo. 139:13-24. When De Leon spoke with Foster, he admitted to raising his voice but denied
`
`making any threats.13 De Leon Depo. 140:18-23. Foster’s assignment with Tesla was terminated,
`
`and Diaz had no further interactions with him.14
`
`4.
`
`January 22, 2016
`
`On January 22, 2016, Diaz emailed Romero in the morning about an incident that had
`
`occurred the previous evening. Organ Decl. Ex. O (email from Diaz). He wrote that as he was
`
`working, he saw a drawing on the cardboard bale he was about to move: “It was a picture of a
`
`cartoon depicting a black face person with a bone in his hair with the caption under it saying
`
`booo.” Id. The image resembled racist cartoons from the 1920s and 1930s, and Diaz understood
`
`“Booo” to mean “Jigaboo.” Diaz Depo. 146:6-10, 20-25. He wrote that his “stomach dropped.”
`
`He called the recycling team lead and sent him a text of the picture. Diaz wrote that Martinez’s
`
`behavior was not new and “because nothing has been done, it seem[ed] that his behavior [was]
`
`getting worse.” He attached a picture of the image to the email.
`
`Martinez admitted to drawing the picture but said that he was “just playing.” See Romero
`
`Depo. 109:16-24, 114:20-115:1. He told Diaz, “You people can’t take a joke.” Diaz Depo. 155:6-
`
`7. Quintero of Tesla instructed Romero of Tesla to meet with Martinez and Diaz. Quintero Depo.
`
`49:19-22. Chartwell, Martinez’s staffing agency, investigated Diaz’s complaint and interviewed
`
`both Martinez and Diaz within a few days of the incident. V. Martinez Decl. ¶¶ 4-7. It placed
`
`Martinez on “Corrective Action” from January 26, 2016 to December 31, 2016 and gave him a
`
`three-day suspension and a permanent warning. Id. ¶ 8; see Quintero Depo. 64:18-65:5 (indicating
`
`that the suspension was Jackson’s decision but that he agreed); Jackson Depo. 33:5-10, 88:14-17.
`
`Diaz forwarded his email to CitiStaff on the evening of January 22 because he “didn’t want
`
`
`13 Foster further told De Leon that he became angry because he felt Diaz, who was “very strong
`and very aggressive,” was being disrespectful toward him and abusing his power as a lead. De
`Leon Depo. 140:18-141:7.
`
`14 Because Foster wanted to keep his job at Tesla, De Leon reached out to nextSource to find out
`whether it would be possible for Foster to continue his assignment and simply be separated from
`Diaz. De Leon Depo. 239:10-22, 240:7-16.
`
`
`8
`
`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
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 3:17-cv-06748-WHO Document 144 Filed 12/30/19 Page 9 of 28
`
`
`
`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
`
`the situation to be covered up.”15 Diaz Depo. 161:11-162:4. De Leon “immediately took it up to
`
`HR” and informed her supervisors about it. De Leon Depo. 133:6-17. She then spoke with Diaz
`
`and asked him whether he was going to return to Tesla or whether he wanted to be moved to a
`
`different department. Id. at 133:21-134:7. Although Diaz was “upset and a little aggravated,” he
`
`said he would stay at Tesla in the same department. Id. De Leon told Diaz that HR would deal
`
`with the issue. Id. She also gave Chartwell consent to speak with Diaz. Id. at 134:5-7. The HR
`
`representative told De Leon that what she had done was good and that HR would handle the rest.
`
`Id. at 136:15-23.
`
`After learning about the January 25 incident, CitiStaff human resources manager Ludivina
`
`Ledesma told De Leon that he would investigate it. Ledesma Decl. ¶ 5. After De Leon told her
`
`that Chartwell had already investigated and disciplined the alleged harasser, Ledesma concluded
`
`that she “did not need to further investigate this complaint against a non-CitiStaff employee.” Id.
`
`According to Ledesma, prior to January 22, 2016, CitiStaff was unaware of the issues Diaz had
`
`experienced with Martinez or of any problems at the Tesla factory. Id. ¶ 6.
`
`D. Demetric Di-az’s Experiences of Racism at the Factory
`
`Demetric Di-az was an employee of West Valley Staffing Group during the time that he
`
`worked at Tesla.16 After his training, Di-az began in the day shift and then transitioned to the
`
`night shift a few weeks later. Di-az Depo. 101:4-18.
`
`Diaz reported to Javier Caballero during the night shift. Id. at 102:4-20. Caballero
`
`harassed him and used the n-word on the daily basis. Id. at 119:18-21. A few days after Di-az
`
`joined the night shift, the team was a little behind for their meal break and Caballero said, “All you
`
`n-----s need to hurry the fuck up.” Id. at 170-20-171:3. Another day when Demetric’s father
`
`Owen was in his department for lunch, Caballero said, “All you fucking n-----s – I can’t stand you
`
`mother fuckers.” Id. at 159:9-160:4. It was directed to his team of six, three of whom were
`
`African American. Id. at 160:19-161:8. Di-az also saw offensive graffiti in the bathrooms at the
`
`
`15 Jackson also informed Diaz’s staffing agency. Jackson Depo. 31:2-8 (noting that he could not
`remember whether Diaz worked for Chartwell or CitiStaff).
`
`16 The parties stipulated to dismiss West Valley as a defendant on October 28, 2019.
`9
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 3:17-cv-06748-WHO Document 144 Filed 12/30/19 Page 10 of 28
`
`
`
`Tesla factory. The graffiti had messages like “fuck you, n-----” and “you n-----s don’t belong
`
`here.” Id. at 154:4-6. Di-az stopped using that bathroom. Id. at 154:17-18.
`
`Di-az complained of his treatment on a few occasions. He told Caballero how the
`
`language made him feel, and Caballero essentially said, “You’re a temp, and if you don’t like it,
`
`you can get fired.” Id. at 161:18-22, 186:19-22; see also id. at 170:11-16 (noting that a member of
`
`Di-az’s team said there was nothing to do because Caballero was their supervisor). Di-az then
`
`reported the statement to Caballero’s supervisor, who did nothing, and finally to someone with
`
`Tesla HR. Id. at 162:2-10, 163:5-8. Di-az also reported issues17 to an individual from West
`
`Valley who was onsite at Tesla. Di-az Depo. 74:7-75:1, 75:18-21. That person said that he would
`
`investigate, but nothing came of Di-az’s complaint. Id. at 75:19-24. Di-az did not report the
`
`graffiti he saw in the bathroom. Id. at 154:10-18.
`
`E. Plaintiffs’ Assignments End
`
`1. Owen Diaz
`
`
`
`There are mixed reports of Diaz’s work performance while at Tesla. Kawasaki never
`
`experienced any issues with him as an elevator operator or as a lead. Kawasaki Depo. 63:5-18
`
`(noting that he would not have recommended Diaz for the lead position if he was unprepared). He
`
`never heard complaints about Diaz’s conduct. Id. at 63:19-25. According to Jackson of
`
`nextSource, however, “Owen was known as the kind of difficult elevator operator at the plant,”
`
`and there were “a lot” of complaints related to him. Jackson Depo. 110:2-13, 112:2-4, 112:22-
`
`113:1 (noting that the problem was Diaz’s “attitude” and that he was “very abrasive” toward
`
`coworkers). Jackson testified that Tesla’s safety inspector approached Diaz because he was not
`
`wearing his safety vest or the required steel-toed shoes. Jackson Depo. 108:5-10, 109:1-11. Diaz
`
`became confrontational with the safety person. Id. at 109:13-25. Romero also observed that Diaz
`
`struggled to get along with some people. Romero Depo. 81:17-24, 84:5-18. Some people did not
`
`like the way Diaz spoke to them, and one individual felt Diaz gossiped about him behind his back.
`
`See id. at 82:13-84:18. Other departments also complained about “him not being cooperative, him
`
`
`17 It is not clear from the excerpts in the record exactly which incident(s) Di-az reported to West
`Valley.
`
`10
`
`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
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 3:17-cv-06748-WHO Document 144 Filed 12/30/19 Page 11 of 28
`
`
`
`not communicating, shutting down.” Id. at 98:5-16.
`
`In March 2016, Diaz received approval to be away from work from March 4 to March 11
`
`because his mother had died. De Leon Depo. 150:12-25; Diaz Depo. 178:7-25. He failed to
`
`return to work when he was expected back on March 12. See Diaz Depo. 178:7-25. On March 18,
`
`2016, Jackson from nextSource emailed De Leon of CitiSource to let it know Tesla had ended
`
`Diaz’s assignment. De Leon Depo. 148:18-22, 149:20-24.
`
`When De Leon called Diaz to tell him the news, he was “mad, upset” and “cussing”
`
`because he wanted to continue working at Tesla, in part because he was making good money.18
`
`Id. at 149:3-11, 153:15-20. She told him not to return to the Tesla factory. Id. at 149:12-16. De
`
`Leon has since offered Diaz other positions where he could earn $16 per hour, but he has declined
`
`them. Id. at 157:11-25. Diaz remains a registered temporary employee with CitiStaff. Ledesma
`
`Decl. ¶ 7.
`
`2.
`
`Demetric Di-az
`
`In October 2015, two months after he began working at Tesla, Di-az reported the factory
`
`and learned that his contract had ended and his badge would no longer work. Di-az Depo. 144:12-
`
`17. He did not receive an explanation. Id. at 145:1-6. Di-az believes he was fired because of his
`
`complaints about the racist treatment he experienced. Id. at 190:3-13. After his threats, Caballero
`
`“made sure [Di-az] got fired.” Id.
`
`Although Di-az was initially told that he was eligible for another work assignment, his
`
`staffing representative stopped returning his calls. Id. at 145:12-23. His experience at Tesla made
`
`Di-az feel as if he lost himself. Id. at 201:13-23. He felt dehumanized and like less than a man.
`
`Id. He began eating less and stopped wanting to be around his peers and family. Id. at 202:12-
`
`203:21.
`
`LEGAL STANDARD
`
`Summary judgment on a claim or defense is appropriate “if the movant shows that there is
`
`no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
`
`
`18 De Leon testified that Diaz started out making $16 per hour but received a raise to $18 per hour
`at some point. De Leon Depo. 157:3-9.
`
`11
`
`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
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 3:17-cv-06748-WHO Document 144 Filed 12/30/19 Page 12 of 28
`
`
`
`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
`
`law.” Fed. R. Civ. P. 56(a). In order to prevail, a party moving for summary judgment must show
`
`the absence of a genuine issue of material fact with respect to an essential element of the non-
`
`moving party’s claim, or to a defense on which the non-moving party will bear the burden of
`
`persuasion at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the movant has
`
`made this showing, the burden then shifts to the party opposing summary judgment to identify
`
`“specific facts showing there is a genuine issue for trial.” Id. The party opposing summary
`
`judgment must present affirmative evidence from which a jury could return a verdict in that
`
`party’s favor. Anderson v. Liberty Lobby, 477 U.S. 242, 257 (1986).
`
`On summary judgment, the court draws all reasonable factual inferences in favor of the
`
`non-movant. Id. at 255. In deciding the motion, “[c]redibility determinations, the weighing of the
`
`evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a
`
`judge.” Id. However, conclusory and speculative testimony does not raise genuine issues of fact
`
`and is insufficient to defeat summary judgment. See Thornhill Publ’g Co., Inc. v. GTE Corp., 594
`
`F.2d 730, 738 (9th Cir. 1979).
`
`DISCUSSION
`
`The plaintiffs did not oppose defendants’ motions for summary judgment on the following
`
`claims: (i) against Tesla, Unruh Civil Rights Act claims (Oppo. Tesla 2); (ii) against nextSource,
`
`Bane Act, NIED, IIED, negligent hiring, retention, and supervision, and constructive discharge
`
`claims (Oppo. NextSource 5); (iii) against CitiStaff, retaliation claims under Section 1981 and
`
`California Labor Code § 1102.5, negligent hiring, retention, and supervision, constructive
`
`discharge in violation of public policy (Reply 2, 11-12, 14), and NIED and IIED (October 23,
`
`2019 hearing). The motions for summary judgment on those claims are GRANTED.
`
`As relevant for this Order, the following remains. Owen Diaz brings claims under section
`
`1981 against all three defendants. He brings Ralph Act claims against nextSource and CitiStaff
`
`and Bane Act claims against CitiStaff. Demetric Di-az asserts various causes of action only
`
`against Tesla, which moves for summary judgment on his claim for punitive damages.
`
`I.
`
`SECTION 1981 CLAIMS
`
`42 U.S.C. section 1981 prohibits racial discrimination in the making and enforcement of
`
`12
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 3:17-cv-06748-WHO Document 144 Filed 12/30/19 Page 13 of 28
`
`
`
`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
`
`private contracts. Runyon v. McCrary, 427 U.S. 160, 168 (1976). CitiStaff and nextSource raise
`
`several challenges to Diaz’s section 1981 claims, chief among them that Diaz lacks evidence to
`
`suppor