Moore v. Gilead Sciences

Filed 5/17/06 Moore v. Gilead Sciences CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

APPEAL from a judgment of the Superior Court of Los Angeles County, Richard L. Fruin, Judge. Affirmed.

Portner Law Offices and Michael G. Portner for Plaintiff and Appellant.

Jackson Lewis, Joel P. Kelly, and Angela M. Duerden for Defendant and Respondent.

_________________________

Alma Moore appeals from the judgment entered after the trial court granted summary judgment in favor of her former employer Gilead Sciences, Inc. (Gilead) in Moore's action for wrongful termination, discrimination and retaliation in violation of the Fair Employment and Housing Act (FEHA) (Gov. Code, § 12940, subds. (a), (h)). We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Gilead is a worldwide biopharmaceutical company with a manufacturing facility located in San Dimas. Moore, an African-American woman, began working at Gilead's San Dimas plant as a temporary employee in 1999 and a full-time employee in December 2000. She was employed initially as a manufacturing technician I and then as a packaging technician I from February 2001 until her termination on June 18, 2003; her job duties included inspecting empty vials for defects, labeling vials of pharmaceuticals, placing vials in boxes moving along a conveyor belt, verifying packages were complete and weighing completed packages.

Gilead's immediate supervisor throughout her employment at Gilead was Jackie Brumfield, also an African-American woman. Brumfield was responsible for managing the packaging department at the San Dimas facility, including training of packaging department employees.

1. Moore's Dissatisfaction with Training and Promotion Opportunities

Beginning in February 2001 Brumfield instituted cross-training in the packaging department to familiarize all employees with the various operations and machines in the department. The five employees in the department with the most seniority were trained first. Moore was not part of this initial training group. Brumfield then coordinated training of all other employees in the department, using the more senior employees as trainers.

Sometime in 2002 five packaging department employees, including Moore, requested training on the Avery labeling machine, which Brumfield described as difficult and complicated to operate. Brumfield told them that individual training on the machine, rather than training as a group, would be more productive. All five employees agreed the fairest way to assign training was by drawing lots. Moore drew number five, which meant she would be trained last.

After several employees who had drawn lower numbers began training on the labeling machine, Moore complained to Brumfield, saying she believed it was unfair that she would be trained last. Moore also complained to Brumfield on several other occasions that she was not receiving training on specific machines or job tasks in the packaging department as quickly as she wanted. Other employees also complained to Brumfield about the slow pace of training. When hearing those complaints, Brumfield typically explained only a limited amount of time could be devoted to training during working shifts because training required interruption of the production line.

Moore also spoke to Brumfield about her eligibility for promotion to packaging technician II. Brumfield told Moore she needed to complete her training and also needed to improve her cooperation with colleagues and her job attitude.

2. The Investigation of Possible Time-card Fraud and Moore's Discharge

a. The initial investigation

On Saturday evening, June 7, 2003, Brumfield told Victoria Duncan-Smith, Gilead's senior human resources generalist (and also an African-American woman), there was a possible discrepancy in certain employee time records submitted that day; Brumfield indicated Moore and Susana Meza, a Latina, may have been involved. The following Monday Brumfield told Duncan-Smith that Lisa Lara, the lead packaging technician in Brumfield's department, suspected Moore had falsified Meza's time records for June 7, 2003. Brumfield also reported she had conducted a preliminary review of Gilead's computerized time records and electronic door-access reports and believed Meza could not have logged herself in at the time indicated (5:16 a.m.) because the access badge report for that day showed Meza first entering the building 16 minutes later (5:32 a.m.). Brumfield said she was concerned Meza's time records had been manipulated.

In response to this information Duncan-Smith initiated an internal investigation of possible time-card fraud. Duncan-Smith ultimately determined Meza had telephoned Moore at work and asked Moore to log her into Gilead's time-keeping system before Meza arrived at the Gilead offices. Moore agreed to Meza's request and used a computer terminal in the manufacturing office area to log Meza in. Over the course of the next week Moore and Meza attempted to coordinate their descriptions of their actions on June 7, 2003; but innumerable inconsistencies in their accounts, as well as contradictions between their versions of events and records from Gilead's electronic time-keeping system, led Duncan-Smith to the inevitable conclusion Meza and Moore had falsified time records and then lied to Duncan-Smith to conceal their misconduct.

Duncan-Smith initially interviewed Lara on June 9, 2003 and asked her to describe what she saw and heard while working in the packaging department on June 7, 2003. Lara told Duncan-Smith she answered a telephone call from Meza at approximately 5:10 a.m., passed the telephone at Meza's request to Moore and saw and heard Moore whispering on the phone for approximately one minute. Lara also saw Moore write something on a piece of paper; Moore then ended the telephone call and left the packaging workroom. Lara also left the workroom, noticed the computerized time system read 5:12 a.m. and, while outside her work area speaking to another employee, saw Moore returning to the packaging area from the area near the manufacturing office. After she returned to the packaging workroom, Lara asked Moore if Meza planned to come into work. Moore answered, â€