Monica Barnett v. Costco Wholesale Corporation

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MONICA BARNETT,
Plaintiff-Appellant,
v.
COSTCO WHOLESALE CORPORATION,
Defendant-Appellee.
No. 22-55550
D.C. No.
2:20-cv-04896-ODW-JEM
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Otis D. Wright II, District Judge, Presiding
Submitted August 24, 2023**
Pasadena, California
Before: RAWLINSON and BRESS, Circuit Judges, and ZOUHARY,***
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Jack Zouhary, United States District Judge for the
Northern District of Ohio, sitting by designation.
FILED
SEP 26 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Monica Barnett, a Costco employee for nearly three decades, suffered a
workplace injury in November 2017, eventually leading to her resignation in August
2019. She now appeals the district court order granting Costco summary judgment
and dismissing her seven discrimination claims brought under the California Fair
Employment and Housing Act (“FEHA”).
We review de novo a district court order granting summary judgment. Lowry
v. City of San Diego, 858 F.3d 1248, 1254 (9th Cir. 2017) (en banc). Summary
judgment evidentiary issues and district court enforcement of briefing protocols are
reviewed for abuse of discretion. See Clare v. Clare, 982 F.3d 1199, 1201 (9th Cir.
2020); Christian v. Mattel, Inc., 286 F.3d 1118, 1129 (9th Cir. 2002). We have
jurisdiction under 28 U.S.C. § 1291 and affirm.
1. The district court did not abuse its discretion by excluding Barnett’s
Federal Civil Rule 30(e) deposition changes and her “Statement of Genuine Disputes
and Additional Undisputed Facts” for violating the district court’s case management
order. First, Barnett’s proposed deposition changes greatly exceed the scope
allowed under Rule 30(e) and the district court properly declined to consider them.
See Hambleton Bros. Lumber Co. v. Balkin Enters., Inc., 397 F.3d 1217, 1225 (9th
Cir. 2005) (noting that “[t]he Rule cannot be interpreted to allow one to alter what
was said under oath . . . [a] deposition is not a take home examination”) (citation
omitted). Second, the district court acted well within its discretion in excluding

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Barnett’s filing, which failed to comply with the case-management order. See Ready
Transp., Inc. v. AAR Mfg., Inc., 627 F.3d 402, 404 (9th Cir. 2010) (“It is well
established that district courts have inherent power to control their docket.”) (cleaned
up).
2. The district court properly found Barnett failed to establish an adverse
employment action. Under California law, failure to accommodate or engage cannot
constitute an adverse employment action. See Doe v. Dep’t of Corrs. & Rehab., 43
Cal. App. 5th 721, 736 (2019) (“[A] failure to reasonably accommodate an
employee’s disability—which is a separate cause of action under FEHA []—can[not]
qualify as the adverse action underlying a discrimination or retaliation claim.”).
And, in any event,1 Barnett still falls short because, as explained below, Costco
provided reasonable accommodations.
Likewise, Barnett cannot show constructive discharge qualifying as an
adverse employment action. She worked only seven shifts as an optical assistant—
a position that all parties agree accommodated her medical restrictions. She opted
to resign because the job was “tedious and difficult” and “she didn’t understand it.”
These reasons are insufficient to show objectively intolerable conditions necessary
1 Barnett’s Motion To Take Judicial Notice (Dkt. 11) is granted. However,
these publicly available forms from the California Department of Fair Employment
and Housing do not change the outcome in this case. These intake forms are
designed to gather information from lay employees; they are not agency guidance
with supporting legal analysis.

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to support her claim of constructive discharge under California law. See Gibson v.
Aro Corp., 32 Cal. App. 4th 1628, 1637 (1995) (holding that working conditions
must be “so intolerable or aggravated at the time of the employee’s resignation that
. . . a reasonable person in the employee’s position would be compelled to resign”)
(citation omitted).
Because Barnett failed to demonstrate an underlying adverse employment
action, the district court properly dismissed her claims for discrimination, retaliation,
failure to prevent discrimination and retaliation, and wrongful termination.
3. The district court did not err in finding Barnett failed to establish her claims
that Costco refused to accommodate her work restrictions or engage in the
interactive process. Barnett claims Costco refused to engage in good faith, “forced”
her to remain on medical leave, and required her to be “100% healed” before
returning to work. These assertions are unsupported by the record. The undisputed
record demonstrates that Costco held three job assessment meetings, sent Barnett
134 available positions over more than eight months, and placed Barnett in an
optical-assistant position that accommodated her limitations. See Raine v. City of
Burbank, 135 Cal. App. 4th 1215, 1224 (2006) (noting that “California law is
emphatic that an employer has no affirmative duty to create a new position to
accommodate a disabled employee”).

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4. Because the district court properly dismissed each of Barnett’s substantive
claims, the derivative claims for declaratory judgment and punitive damages fail as
well.
AFFIRMED.

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