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ROGER J. TOMCZAK, Plaintiff,
SAFEWAY, INC., Defendant.
No. C-96-1365 SI
August 26, 1997, Decided
For ROGER J. TOMCZAK, Plaintiff: Norman I. Lustig, Law Offices of Norman I. Lustig, Walnut Creek, CA.

For SAFEWAY, INC., defendant: William F. Murphy, Lucy E. Bettis, Andrea E. Kelly, Dillingham & Murphy, San Francisco, CA.

On August 8, 1997, the Court heard argument on defendant's motion for summary judgment. Having considered the arguments of counsel and the papers submitted, the Court hereby GRANTS the motion.


Plaintiff Roger Tomczak filed an amended complaint on December 13, 1996, alleging nine causes of action: 1) discrimination in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. sec. 12102(2); 2) retaliation in violation of the ADA; 3) discrimination in violation of the California Fair Employment and Housing Act ("FEHA"); 4) violation of plaintiff's privacy rights under the California Constitution; 5) breach of contract; 6) breach of the covenant of good faith and fair dealing; 7) violation of public policy; 8) defamation; and 9) invasion of privacy. Defendant now moves for summary judgment on each of plaintiff's claims.

The allegations of the complaint are based on the following relevant facts. *fn1 Plaintiff is a Meat Merchandiser for Safeway, Inc. During a retail clerk's strike in April 1995, plaintiff and other management employees were required to work in Safeway's retail stores performing some of the duties of striking workers. During the strike, plaintiff was required to assume meat cutting duties and meat department supervisory duties at several different Safeway stores. On April 13, 1995, following reports from other store managers that plaintiff was behaving strangely and was working unsafely in the stores, Safeway management dispatched two security investigators to the store where plaintiff was working.

The investigators spoke with plaintiff and observed that he had dilated pupils, a runny nose and was perspiring. When asked, plaintiff told the investigators that he had taken several over-the-counter and several prescription medications for his allergies and other physical ailments. At the time, plaintiff could not remember all the medications he had taken, nor did he know all of their possible side effects.

Plaintiff was then asked to submit to a urine drug screening test. Initially, plaintiff agreed to the test, but when a consent form could not be located quickly, plaintiff left the premises and went home. The following day, plaintiff visited his physician who verified that plaintiff was ill and authorized plaintiff's sick leave from work.

After returning to work from sick leave on May 16, 1995, plaintiff was placed on paid administrative leave pending further investigation. On June 2, 1995, plaintiff submitted to a drug screening test which showed no use of illegal drugs. In early August, 1995 plaintiff was advised by Safeway that he could return to work, but that because he had left work without notification on more than one occasion, he would be demoted to Meat Department Manager.

Plaintiff provided verification that he was physically unable to perform the work of a Meat Department Manager, and negotiations between plaintiff's attorney and Safeway management resulted in the demotion being rescinded. Plaintiff returned to work as a Meat Merchandiser on or about December 1, 1995. At that time, a Notice of Corrective Action relating to plaintiff's walking off the job *fn2 was placed in plaintiff's personnel file.


The Federal Rules of Civil Procedure provide for summary adjudication when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c).

In a motion for summary judgment, "if the party moving for summary judgment meets its initial burden of identifying for the court those portions of the materials on file that it believes demonstrate the absence of any genuine issues of material fact," the burden of production then shifts so that "the nonmoving party must set forth, by affidavit or as otherwise provided in Rule 56, 'specific facts showing that there is a genuine issue for trial.'" T.W. Elec. Service, Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986)); Kaiser Cement Corp. v. Fischbach & Moore, Inc., 793 F.2d 1100, 1103-04 (9th Cir.), cert. denied, 479 U.S. 949, 93 L. Ed. 2d 384, 107 S. Ct. 435 (1986).

A moving party who will not have the burden of proof at trial need only point to the insufficiency of the other side's evidence, thereby shifting to the nonmoving party the burden of raising genuine issues of fact by substantial evidence. T.W. Electric, 809 F.2d at 630 citing Celotex, 477 U.S. at 323; Kaiser Cement, 793 F.2d at 1103-04.

In judging evidence at the summary judgment stage, the Court does not make credibility determinations or weigh conflicting evidence, and draws all inferences in the light most favorable to the nonmoving party. T.W. Electric, 809 F.2d at 630-31 (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986)); Ting v. United States, 927 F.2d 1504, 1509 (9th Cir. 1991).

The evidence presented by the parties must be admissible. Fed. R. Civ. P. 56(e). Conclusory, speculative testimony in affidavits and moving papers is insufficient to raise genuine issues of fact and defeat summary judgment. See Falls Riverway Realty, Inc. v. Niagara Falls, 754 F.2d 49 (2nd Cir. 1985); Thornhill Pub. Co., Inc. v. GTE Corp., 594 F.2d 730, 738 (9th Cir. 1979). Hearsay statements found in affidavits are inadmissible. See, e.g., Fong v. American Airlines, Inc., 626 F.2d 759, 762-63 (9th Cir. 1980). The party who will have the burden of proof must persuade the Court that it will have sufficient admissible evidence to justify going to trial.


1. ADA and FEHA Claims.

Plaintiff contends that he is "disabled" as defined by the ADA, 42 U.S.C. sec. 12102(2), 29 C.F.R. sec. 1630.2(g)(3), 29 C.F.R. sec. 1630.2(1)(3), and 29 C.F.R. sec. 1630.3(b)(3), because he is an individual regarded by defendant as having a physical impairment that substantially limits one or more of his major life activities. Plaintiff argues that he is within the "regarded as" definition of disabled because during 1995 and thereafter, defendant falsely regarded and treated plaintiff as if he were an illegal drug user. Plaintiff alleges that because of defendant's perception that he was an illegal drug user, he was subjected to barring from the workplace, attempted demotion, "house arrest," *fn3 a formal disciplinary letter, and a diminution in income. *fn4

Defendant argues that it did not perceive or regard plaintiff as having a disability under the ADA or FEHA. Safeway contends that it was only seeking reasonable assurances that no illegal drugs were being used in the workplace, and that medication taken by an employee did not pose a threat to his health and safety or the health and safety of others. Defendant argues that neither the ADA or FEHA prohibits the acts taken by Safeway under the circumstances.

a. The Drug Screening Test.

The ADA, through implementing regulations and Interpretive Guidance published by Congress, provides that individuals erroneously perceived to be illegal drug users are not automatically excluded from the protections of the ADA. 29 C.F.R. sec. 1630, App. (1630.3(a-c)). However, "employers are entitled to seek reasonable assurances that no illegal use of drugs is occurring or has occurred recently . . . ." Id. Thus, requiring plaintiff to submit to a drug screening test is not, in itself, actionable under the ADA.

b. Defendant's Alleged Discriminatory Acts.

In addition to the drug screening, plaintiff alleges that defendant Safeway discriminated against him on the basis of its perception of his disability by placing him on administrative leave, attempting to demote him and placing a disciplinary letter in his personnel file.

Defendant contends that even if plaintiff can state a prima facie case of "perceived as" discrimination under the ADA, Safeway has met its burden of articulating a legitimate non-discriminatory reason for its actions; and that plaintiff should therefore be required to provide specific evidence that the employer's reasons are a pretext for discrimination. See McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1981); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 508-10, 125 L. Ed. 2d 407, 113 S. Ct. 2742 (1993); Wallis v. J.R. Simplot Co., 26 F.3d 885, 890-91 (9th Cir. 1994); see also DeLuca v. Winer Industries, Inc., 53 F.3d 793, 797 (7th Cir. 1995) (applying McDonnell Douglas analysis in ADA case). Under the McDonnell Douglas line of cases, a plaintiff is required to raise an inference that a challenged employment action had a discriminatory basis. *fn5 Burdine, 450 U.S. at 253.

Defendant argues that there were legitimate non-discriminatory reasons for the actions taken. Safeway contends that plaintiff was placed on administrative leave because he was perceived as behaving erratically and dangerously in the work environment, and the leave was aimed at protecting all involved while Safeway waited for the results of plaintiff's drug screening test. Further, Safeway contends that plaintiff's doctors did not forward his medical records or verification that plaintiff was fit to return to work until late July 1995. Defendant also argues that its decision to demote plaintiff was based on plaintiff having walked off the job without first contacting his supervisor on two occasions; and that the decision to demote plaintiff was not based on any perception that plaintiff was in fact an illegal drug user.

Plaintiff makes no argument that his being placed on administrative leave pending the results of the drug screening was pretextual. However, plaintiff argues that the fact that Safeway waited until early August 1995 to attempt to demote him for incidents that occurred in 1993 and April 1995, shows that the offered non-discriminatory justification for the attempted demotion is mere pretext.

Assuming that plaintiff has made a prima facie case of disparate treatment under the ADA, *fn6 defendant has offered evidence which provides legitimate non-discriminatory reasons for the actions taken. Defendant has provided testimony from professional investigators and several Safeway managers which confirms that plaintiff was displaying behavior that might reasonably be related to drug use, or adverse side effects of drug interaction. See Def. Stmt. Of Undisputed Facts, Exhs. C, E, F, G. Having produced this evidence, the burden returns to plaintiff to produce specific evidence that the non-discriminatory reasons given by the employer are a pretext for discrimination. Hicks, 509 U.S. at 508-10.

In response to defendant's justifications, plaintiff merely asserts that if Safeway's actions were not discriminatory, they would not have waited until early August 1995, three and one-half months after the incident, to attempt to demote plaintiff. However, plaintiff provides no evidence that defendant had acted more quickly in similar circumstances involving employees that were not "perceived as" illegal drug users. Indeed, plaintiff provides no evidence of different procedures which would indicate that Safeway's alleged delay in attempting to demote him was out of the ordinary. The Court finds that plaintiff has not met his burden in rebutting defendant's legitimate non-discriminatory reasons for the action taken. Accordingly, defendant's motion for summary judgment as to the ADA and FEHA discrimination claims is hereby GRANTED.

2. Retaliation Claims.

Plaintiff alleges that defendant retaliated against him because of his complaints about discriminatory treatment. Defendant counters that plaintiff has not exhausted his administrative remedies with respect to the retaliation claim; and in any event, does not satisfy the requirements for establishing a prima facie case of retaliation.

a. Exhaustion.

Defendant contends that this Court lacks subject matter jurisdiction over plaintiff's retaliation claims under both the ADA and FEHA because plaintiff failed to include the retaliation claims in his EEOC complaint. Further, defendant argues that the retaliation claims are not reasonably related to the discrimination allegations in the EEOC charge, and thus are not within the scope of the discrimination claims over which this Court does have jurisdiction.

For the purposes of this motion, the Court will assume that plaintiff's retaliation claims are within the scope of the EEOC complaint. Thus, the Court address defendant's substantive arguments for summary judgment on the retaliation claims.

b. Adverse Employment Action.

To make out a prima facie case of discriminatory retaliation, a plaintiff must show that (1) he engaged in protected behavior; (2) he was subjected to an adverse employment action; and (3) there was a causal link between the protected activity and the employer's action. See Wrighten v. Metropolitan Hospitals, Inc., 726 F.2d 1346, 1354 (9th Cir. 1984).

Plaintiff contends that he complained that defendant was taking unwarranted action against him based on the erroneous perception that he was an illegal drug user, and that Safeway retaliated against him because of his complaints about his treatment. In response to these complaints plaintiff alleges that Safeway continued to keep him under "house arrest," sought to demote him, and placed a disciplinary letter in his personnel file.

While plaintiff's complaints to his employer about discriminatory treatment can be construed as a protected activity, *fn7 plaintiff has not suffered an adverse employment action as required under Wrighten.


First, plaintiff's allegation regarding an attempted demotion is not a cognizable denial of a term, condition or privilege of employment constituting an adverse employment action. See Connell v. Bank of Boston, 924 F.2d 1169, 1179 (1st Cir. 1991); Ruffino v. State Bank and Trust Co., 908 F. Supp. 1019, 1044 (D. Mass. 1995). Here, plaintiff was not actually demoted and has made no argument that the terms, conditions and benefits of his employment included being free from an "attempted demotion."

In addition, plaintiff contends that the "Notice of Corrective Action," related to plaintiff's two instances of leaving the work-place at critical times without notifying his supervisor, is actionable as a retaliatory adverse employment action. However, as defendant argues, a disciplinary letter to a personnel file, without more, is insufficient to constitute and adverse employment action. See Rivers v. Baltimore Dept. of Recreation, 1990 U.S. Dist. 51 F.E.P Cases 1886, 1894 (D. Md. 1990) (holding that question of whether letter to personnel file may have future repercussions is "far too speculative to constitute an adverse employment action.").

The Court also finds that plaintiff's contention that he was held under "house arrest" by defendant is untenable. The evidence indicates that defendant merely reminded plaintiff that while on paid administrative leave, he would need to be reachable during normal business hours. Such a requirement does not deprive plaintiff of any term, condition or benefit of employment. *fn8

Thus, the Court finds that plaintiff has not established a prima facie case of retaliation, and defendant's motion for summary judgment on the retaliation claims is hereby GRANTED. *fn9

3. Privacy Claims.

Plaintiff contends that defendant Safeway's treatment "broadcasting and publishing" allegations that plaintiff was under the influence of drugs, constitutes a violation of plaintiff's right to privacy under the common law, and the California Constitution.

Plaintiff argues that defendant's conduct in holding the interview concerning plaintiff's possible drug use in a non-private setting (the store manager's office) and the broad search around the store premises to locate a drug test consent form, violated plaintiff's privacy rights. *fn10

Defendant contends that under California law, "sufficient publicity" is an essential element of plaintiff's privacy claims, and is not met here. Defendant argues that there was no publication to the general public, and that Safeway's communication to its employees concerning this matter is privileged.

Privacy claims such as those alleged in this case require a showing of "sufficient publicity -- communication to the public in general or to a large number of persons as distinguished from one individual or a few." Cabanas v. Gloodt Associates, 942 F. Supp. 1295, 1310 (E.D. Cal. 1996) (citing Kinsey v. Macur, 107 Cal.App.3d 265, 165 Cal. Rptr. 608 (1980)). Here, the evidence indicates that there was no disclosure of any allegations against plaintiff or the specifics of the investigation to the general public. Plaintiff complains that the interview was performed in an unlocked office, and that when a drug test consent form could not be found, defendant made an "obvious search" for the form at the store. However, plaintiff offers no evidence that any of these acts resulted in communication of private matters to the general public or a large number of persons. Moreover, as is argued by defendant, the evidence indicates that "disclosures" made by Safeway were made only to Safeway employees, and as such are privileged under California law. Cal. Civ. Code sec. 47(c); see e.g., Deaile v. General Telephone, 40 Cal.App.3d 841, 849-850, 115 Cal. Rptr. 582 (1974). *fn11

Thus, the evidence does not support plaintiff's invasion of privacy claims, and defendant's motion for summary judgment on the privacy claims *fn12 is hereby GRANTED. *fn13

4. Breach of Contract.

Plaintiff alleges that Safeway breached its promise that plaintiff would not be terminated, demoted or punitively transferred without just cause. Plaintiff contends that defendant breached the contract by "demoting and punitively transferring" plaintiff to a store in a "newly created district much further from plaintiff's home than was his previous district," and by refusing to pay him a full bonus for calendar year 1995. Plaintiff argues that the basis of this implied promise was a statement made to him by a supervisor when he was offered the position of Meat Merchandiser. According to plaintiff, the statement made was: "you do the job [satisfactorily] and you will stay employed."

a. Termination/Demotion.

Even if the Court were to agree that statements made to plaintiff before he accepted the Meat Merchandiser position amounted to an enforceable contract, the statement referred to by plaintiff relates only to grounds for termination. There is no argument by plaintiff in this case that he was actually terminated. Indeed, although Safeway management sought to demote plaintiff at one point, the demotion never actually happened, and plaintiff currently holds the same Meat Merchandiser position. Thus, plaintiff has not been terminated or demoted, and cannot allege breach of a "good cause" employment contract.

b. Punitive Transfer.

Although plaintiff testified that Safeway management made statements indicating their willingness to attempt to keep plaintiff working in stores close to his home (see Pln. Depo. 22:18-21, 26:4-24, 27:14-25, 30:19-31:20), plaintiff offers no significant evidence of firm promises or assurances that he would always be assigned close to home. Moreover, plaintiff offers no evidence that Safeway management did not make reasonable efforts to assign plaintiff to the store of his choice. Thus, even if the statements made to plaintiff by management were held to be enforceable promises, plaintiff has not presented any evidence that those promises were breached. The mere act of transfer, without more, cannot support a breach of contract claim in this case.

The California Supreme Court has held that it "will not enforce vague promises about the terms and conditions of employment that provide no definable standards for constraining an employer's inherent authority to manage its enterprise." Scott v. Pacific Gas & Electric Co., 11 Cal.4th 454, 473, 904 P.2d 834 (1996). Accordingly, on these facts, plaintiff cannot support a claim for breach of contract on the issue of "punitive transfer."

c. 1995 Bonus.

Plaintiff contends that Safeway breached its contract with plaintiff by failing to pay him a "full" bonus for the calendar year 1995. Defendant explains that bonuses are paid based on an employee's achievement of performance objectives, the company's achievement of objectives, and at the company's discretion as influenced by the totality of the circumstances.

Plaintiff, having worked approximately five months during calendar year 1995, has not shown any evidence that a pro-rated bonus breached any agreement between himself and his employer. Moreover, in light of the uncontested evidence that plaintiff received no bonus in 1992 or 1993 for various reasons, and that bonuses were reduced across the board in 1994 to provide resources for base salary increases in other positions, there is significant evidence that no such contract to pay a "full" bonus existed between plaintiff and Safeway. Accordingly, plaintiff cannot support a claim for breach of contract as it relates to his 1995 bonus.

5. Breach of the Covenant of Good Faith and Fair Dealing.

Plaintiff contends that all of the actions outlined above also constituted a breach of Safeway's implied covenant of good faith and fair dealing. For all the reasons set out above, these plaintiff has presented insufficient evidence to raise genuine issues of fact as to this claim. Brandt v. Lockheed Missiles & Space Co., 154 Cal.App.3d 1124, 1129, 201 Cal. Rptr. 746 (1984); see also Foley v. Interactive Data, 47 Cal.3d 654, 683-84, 254 Cal. Rptr. 211, 765 P.2d 373 (1988). Accordingly, defendant's motion for summary judgment on the implied covenant claim is hereby GRANTED.


For the above reasons and for good cause shown, defendant's motion for summary judgment is hereby GRANTED.


Dated: August 26, 1997.


United States District Judge


In accordance with this Court's Order Granting Defendant's Motion for Summary Judgment dated August 11, 1997, judgment is hereby entered in favor of defendant Safeway, Inc. and against plaintiff Roger J. Tomczak.


Dated: August 26, 1997.


United States District Judge


*fn1 Plaintiff objects to all of defendant's "undisputed material facts": "The Plaintiff herein objects that each and every purported one of the 'undisputed material facts' stated by the defendant is disputed by the Plaintiff for the purposes of this motion." (Pln. Opp., p. 1) This objection is disingenuous, since many of the listed facts are either taken from allegations in the complaint or are otherwise clearly undisputed. In any event, the Court has gleaned its understanding of the facts almost exclusively from plaintiff's complaint and opposition brief.

*fn2 The notice letter indicated that future instances of leaving the job without notifying a supervisor would not be tolerated.

*fn3 Plaintiff's claim of "house arrest" relates to the requirement by his employer that, while on paid administrative leave, plaintiff should be available by telephone contact during normal business hours.

*fn4 Plaintiff's claim of income diminution is based on Safeway's decision to pay plaintiff a partial bonus because of his absence from work from April to December 1995.

*fn5 In order to make out a disparate treatment claim, a plaintiff must prove that he was intentionally treated less favorably because of his membership in the protected group. See U.S. Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 715, 75 L. Ed. 2d 403, 103 S. Ct. 1478 (1983). To establish a prima facie case of disparate treatment, the plaintiff must offer evidence that

"give[s] rise to an inference of unlawful discrimination." Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253-54, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981).

*fn6 See Holihan v. Lucky Stores, Inc., 87 F.3d 362, 365 (9th Cir. 1996).

*fn7 The retaliation provision of the ADA provides:

No person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this chapter.

42 U.S.C. sec. 12203(a).

*fn8 Even if the Court were to find that such a requirement constituted an adverse action, plaintiff offers no evidence that such a requirement was retaliatory as opposed to being a requirement which is imposed on all employees on paid administrative leave.

*fn9 In addition, since plaintiff's claim for violation of public policy (Seventh Claim), is directly tied to his allegations regarding the violation of the ADA and FEHA, defendant's motion for summary judgment on the public policy violation claim is also GRANTED.

*fn10 Plaintiff alleges that the interview was conducted in the store manager's office in the retail store and that the door was closed but not locked. Plaintiff claims that "in the Safeway social context" this amounted to a public broadcast of management's concerns. In particular, plaintiff argued that the door should have been locked, to prevent other employees from entering it, and surmised that Safeway left the door unlocked solely to protect itself against a claim of false imprisonment. (Pln. Oppo., p. 5) In light of the other charges made in this complaint, such a concern on Safeway's part would have been well taken.

*fn11 Plaintiff complains that other Safeway employees have since made remarks to him alluding to the drug test incident. Plaintiff offers no evidence suggesting that such remarks were prompted by any action on the part of Safeway management apart from the incident involving the interview itself.

*fn12 Plaintiff uses the same alleged publication by Safeway as the basis for his defamation claims. In light of the finding that defendant's statements were privileged, defendant's motion for summary judgment on the defamation claim is also GRANTED.

*fn13 Defendant also argues that plaintiff's invasion of privacy claims are barred by Workers' Compensation exclusivity. The Court need not reach this issue.