Bright v. Mercer Advisors, Inc.

Filing 47

ORDER granting 40 Motion for Summary Judgment. The Clerk of the Court is directed to terminate this action. (See document for further details). Signed by Judge G Murray Snow on 4/20/11.(LAD)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Eric W. Bright,
Plaintiff,

10
11

vs.

12
Mercer Advisors Inc.,
13
Defendant.
14

)
)
)
)
)
)
)
)
)
)
)
)

No. 09-cv-2196-PHX-GMS
ORDER

15
16
Pending before the Court is a Motion for Summary Judgment (Doc. 40) filed by
17
Defendant Mercer Advisors, Inc. (“Mercer”). For the reasons set forth below, the Court
18
grants Defendant’s motion.
19
BACKGROUND
20
Plaintiff Eric W. Bright (“Bright”) filed a Complaint alleging retaliation,
21
discrimination in violation of Title VII of the Civil Rights Act of 1964, and breach of
22

contract.1 Plaintiff began working for Mercer as a Mail Room Manager in December 2007.

23
24
25
26
27
28

1

Local Rule of Civil Procedure 56.1(b) requires a “party opposing a motion for
summary judgment [to] file a statement, separate from that party’s memorandum of law,
setting forth: (1) for each paragraph of the moving party’s separate statement of facts, a
correspondingly numbered paragraph indicating whether the party disputes the statement of
fact set forth in that paragraph and a reference to the specific admissible portion of the record
supporting the party’s position if the fact is disputed; and (2) any additional facts that
establish a genuine issue of material fact.” “Each additional fact must be set forth in a

1

(Doc. 41). Plaintiff’s duties included managing Mercer’s mail room and distribution

2

operations; creating a system for inbound and outbound packages; assisting other

3

departments with large printing and binding projects; and generally assisting other

4

departments as needed.

5

On July 28, 2008, Jennifer Lewis, Concierge Department Manager, questioned

6

Plaintiff in a series of emails about some packages that had been mis-shipped by Plaintiff’s

7

department. Plaintiff thought Ms. Lewis was “nitpicky” and demonstrating “rude action”

8

toward him so he confronted her in person. (Doc. 41, Ex. B at 69:24 to 72:6, 72:22 to 73:3,

9

73:22 to 74:14). Thereafter, Plaintiff told Greg Cox in Human Resources that Ms. Lewis was

10

“either singling [him] out or harassing [him] or something.” (Id. at 74:15-21). The day after

11

the incident, Plaintiff sent an email to his supervisor, Chris Weill, stating that he was walking

12

off the job as a result. A few days later, on August 1, 2008, Plaintiff complained to Ralph

13

Ujano, Executive Vice President of Professional Services, about Ms. Lewis.

14

Around the same time, some Mercer employees found that their iPods were missing

15

from their desks. Mr. Cox told Plaintiff that Mercer had reason to suspect that one of its part-

16

time employees, Parker Duncan, the son of Bryan Duncan, Vice President of Professional

17

Services - West, may have been responsible for the missing iPods. Parker Duncan was

18

terminated on August 15, 2008. Bright suspects that Bryan Duncan fired him on February

19

11, 2009 because he mistakenly believed that Plaintiff was somehow responsible for his

20

son’s termination from Mercer.

21

On February 10, 2009, Nancy Somers, OnTrack Customer Support Technician, told

22
23
24
25
26
27
28

separately numbered paragraph and must refer to a specific admissible portion of the record
where the fact finds support.” (Id.). Under Rule 56.1(b), the moving party’s separate
statement of facts must be “deemed admitted . . . if not specifically controverted by a
correspondingly numbered paragraph in the opposing party’s separate statement of facts.”
Plaintiff has failed to provide a controverting statement of facts that either disputes
Defendant’s statement of facts or references specific admissible portions of the record that
establish a genuine issue of material fact. Accordingly, the Court must treat Defendant’s
statement of facts as admitted for purposes of this motion.
-2-

1

Plaintiff in an email that “[i]t’s becoming extremely important to get the 40 manuals ASAP.”

2

(Doc. 41, Ex. B at 110: 8-23, Ex. M). Plaintiff responded, “[i]f we seem to be running a little

3

slow for your time frame, the printers and the binding machine are open for your use.” (Doc.

4

41, Ex. M). On the same day, Bryan Duncan asked Plaintiff to produce the 40 manuals by

5

a certain date. Plaintiff responded, via email, that this was just another opportunity to

6

disrespect the Shipping Department. He further stated, “I’ll take it to [President Dave]

7

Barton, and if necessary I’ll go to the State of Arizona. Nobody tries to save this company

8

money more than me. You are also welcome to stop using this department altogether.” (Id.).

9

After sending the email, Plaintiff went to Mr. Ujano’s office and used “inappropriate

10

language” that was “deplorable in nature,” and threatened to do bodily harm to Bryan

11

Duncan. (Doc. 1, ¶ 29; Doc. 41, Ex. B at 114:19 to 115:5, 116: 1-13). Plaintiff then walked

12

out of Ujano’s office and left the building before the workday was over. The next day,

13

Plaintiff returned to the office, refused requests by Human Resources to speak with him,

14

returned the company property in his possession, and never returned to Mercer.

15
16

DISCUSSION
I. Legal Standard

17

Summary judgment is appropriate if the evidence, viewed in the light most favorable

18

to the nonmoving party, demonstrates “that there is no genuine issue as to any material fact

19

and that the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(c)(2).

20

Substantive law determines which facts are material and “[o]nly disputes over facts that

21

might affect the outcome of the suit under the governing law will properly preclude the entry

22

of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “A fact

23

issue is genuine ‘if the evidence is such that a reasonable jury could return a verdict for the

24

nonmoving party.’” Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002)

25

(quoting Anderson, 477 U.S. at 248). When the nonmoving party “bear[s] the burden of proof

26

at trial as to an element essential to its case, and that party fails to make a showing sufficient

27

to establish a genuine dispute of fact with respect to the existence of that element, then

28

summary judgment is appropriate.” Cal. Architectural Bldg. Prods., Inc. v. Franciscan
-3-

1

Ceramics, Inc., 818 F.2d 1466, 1468 (9th Cir. 1987) (citing Celotex Corp. v. Catrett, 477

2

U.S. 317, 322–23 (1986)).

3

II. Analysis

4

A. Counts 1 & 2: Retaliation Claims

5

Within Counts 1 and 2, Plaintiff sets forth three separate retaliation claims.

6

Specifically, Plaintiff alleges that he was terminated in retaliation for 1) complaining to Mr.

7

Ujano that Ms. Lewis, the Registration Department Supervisor, was singling him out for

8

unfavorable treatment (Doc. 1, ¶¶ 18–22); 2) making a written complaint to Mr. Bryan

9

Duncan that Ms. Somers had singled him out, and that he was going to seek an investigation

10

through Mercer’s CEO or an agency of the State of Arizona authorized to investigate charges

11

of discrimination (Id. at ¶¶ 25–34); and 3) because Mr. Bryan Duncan mistakenly believed

12

that Plaintiff was responsible for the termination of his son from Mercer. (Id. at ¶¶ 35–52).

13

To make a prima facie case of retaliation, Plaintiff must produce evidence that 1) he

14

engaged in a protected activity, 2) Defendant subjected him to a materially adverse action,

15

and 3) that there was a causal link between the protected activity and the adverse action. See

16

Vasquez v. Cnty. of L.A., 349 F.3d 634, 642 (9th Cir. 2003). Defendant seeks summary

17

judgment on all of Plaintiff’s retaliation claims by asserting that Bright has failed to establish

18

the first prong – engagement in a protected activity.2

19

Protected activity includes the filing of a charge or a complaint, or providing

20

testimony regarding an employer’s alleged unlawful practices, as well as engaging in other

21

activity intended to “oppose[ ]” an employer’s discriminatory practices. 42 U.S.C. § 2000e-

22

3(a). In addition, the plaintiff must make some showing sufficient for a reasonable trier of

23

fact to discern that the defendant was made aware that the plaintiff had engaged in protected

24
25
26
27
28

2

With respect to the first retaliation claim, Defendant additionally claims that Bright
has failed to establish the second prong – that Mercer subjected Plaintiff to an adverse
employment action as a result of his complaining to Mr. Ujano about Ms. Lewis’
discriminatory practices. In light of the Court granting summary judgment on the basis of the
Plaintiff’s failure to establish the first prong of retaliation, it is unnecessary to discuss the
second prong.
-4-

1

activity. See Raad v. Fairbanks N. Star Borough Sch. Dist., 323 F.3d 1185, 1197 (9th Cir.

2

2003); EEOC v. Crown Zellerbach Corp., 720 F.2d 1008 (9th Cir. 1983). Despite his

3

suggestion in the pleadings, Bright has presented absolutely no evidence that indicates that

4

he ever complained to Mercer or to anyone else about race discrimination until he filed his

5

EEOC Complaint. Indeed, Bright specifically admitted in his deposition that he never raised

6

the issue of race discrimination or racial harassment with anyone during the course of his

7

employment at Mercer. See Doc. 41, Ex. B, 72:13-21, 74:15-21, 143:11-14.

8

Specifically, with regard to his first claim, Plaintiff alleges that Mercer retaliated

9

against him for complaining to Mr. Ujano that Ms. Lewis had singled him out for unmerited

10

complaints. (Doc. 1, ¶¶ 18–25). Plaintiff alleges that the series of emails Ms. Lewis sent him

11

about packages that had been mis-shipped by Plaintiff’s department were “nitpicky” and

12

demonstrated “rude action” toward him. (Doc. 41, Ex. B, 69:24 to 72:6). Plaintiff

13

subsequently told Greg Cox in Human Resources and Mr. Ujano that Ms. Lewis was “either

14

singling [him] out or harassing [him] or something.” However, Plaintiff admits in his

15

deposition testimony that he never told either Mr. Cox or Mr. Ujano that anything Ms. Lewis

16

did had anything to do with Plaintiff’s race. (Id. at 72:13-21, 74:15-21, 131:12-16). Plaintiff

17

further testified that after his meeting with Mr. Cox, in which Mr. Cox agreed to talk with

18

Ms. Lewis about the issue, Ms. Lewis stopped the short, rude behavior toward him. (Id. at

19

74:15 to 75:13, 130:3-13). Plaintiff’s assertion that “bigotry is subtle” and that he “just

20

kn[e]w [Ujano] didn’t like [him] from that point on,” without more, does not constitute an

21

unlawful employment practice. (Id. at 131:6-8).

22

Similarly, with respect to his second retaliation claim, Plaintiff asserts that his

23

protected activity was his written complaint to Mr. Duncan that Ms. Somers engaged in a

24

discriminatory act against him, and that he was going to seek an investigation through

25

Mercer’s CEO or an agency of the State of Arizona authorized to investigate charges of

26

discrimination. (Doc. 1, ¶ 25–34). However, in his own deposition, Plaintiff again admits

27

that he never raised the issue of race discrimination or an investigation by an agency of the

28

State of Arizona authorized to investigate such charges in his communication with Mr.
-5-

1

Duncan, and nothing in Plaintiff’s email to Mr. Duncan refers to Plaintiff’s race or color.

2

(Doc. 41, Ex. M). Moreover, Plaintiff admits that he never told Mr. Ujano that Ms. Somers

3

discriminated against him because of his race, and that he never raised the issue of race with

4

Mr. Ujano either. (Doc. 41, Ex. B, 134:10-22).

5

Finally, with respect to his third retaliation claim, Plaintiff alleges that he was

6

terminated “in retaliation for Mr. Duncan’s unsubstantiated beliefs that Parker was

7

terminated for a theft issue.” (Doc. 1, ¶ 49). Plaintiff alleges that he was denied the right to

8

participate in any follow-up investigation regarding Parker’s termination and to convey that

9

Parker was actually terminated in good standing and for lack of work. (Id. at ¶ 50). Again,

10

Plaintiff’s allegation fails to identify any protected activity under Title VII. Furthermore,

11

Plaintiff admitted under oath that this retaliation claim was not based on racial harassment

12

or discrimination, confirming instead that “it has nothing to do with race.” (Doc. 41, Ex. B.

13

136:7 to 137:20).

14

These answers at Bright’s deposition are conclusive admissions that he did not make

15

a race-based complaint prior to his Commission charge. The deposition evidence

16

unambiguously compels the conclusion that Bright had not engaged in a “protected activity”

17

until he filed his EEOC Complaint on April 7, 2009, nearly two months after leaving Mercer.

18

Bright has the obligation to show by a preponderance of the evidence that his engagement

19

in protected activity under § 2000e-3 was one of the reasons for the alleged adverse

20

employment action, and that but for such an activity he would not have faced such action.

21

See Kauffman v. Sidereal Corp., 695 F.2d 343, 345 (9th Cir. 1982). He has failed to do so

22

here. Plaintiff’s complaints about short, rude or otherwise disrespectful emails directed at his

23

department, which are not based on unlawful unemployment practices proscribed by Title

24

VII, are not “protected activities” within the meaning of Title VII’s retaliation provisions.

25

See Jurado v. Eleven-Fifty Corp., 813 F.2d 1406, 1411 (9th Cir. 1987) (plaintiff’s complaints

26

about radio show format change were based on personal reasons, not discriminatory reasons).

27

Additionally, it would be unreasonable to conclude that Mercer could discern that Plaintiff’s

28

complaints were based on his belief that Defendant was engaging in race discrimination or
-6-

1

harassment under Title VII. Because Plaintiff has offered no evidence that he engaged in

2

protected activity under Title VII to satisfy the first element of a prima facie case of

3

retaliation, Defendant is entitled to summary judgment on these claims.

4

B. Count 3: Race Discrimination

5

Plaintiff claims he was terminated illegally because of his race and seeks to recover

6

damages pursuant to Title VII. Title VII of the Civil Rights Act of 1964 prohibits

7

employment discrimination on account of race. 42 U.S.C. § 2000e-2(a) (“It shall be an

8

unlawful employment practice for an employer . . . to discharge any individual . . . because

9

of such individual’s race, color, religion, sex, or national origin.”). As the Supreme Court set

10

forth in McDonnell Douglas, there are four elements a plaintiff must satisfy in order to

11

establish a prima facie case of racial discrimination. McDonnell Douglas Corp. v. Green,

12

411 U.S. 792 (1973). “[T]he plaintiff must show that (1) he belongs to a protected class; (2)

13

he was qualified for the position; (3) he was subject to an adverse employment action; and

14

(4) similarly situated individuals outside his protected class were treated more favorably.”

15

Id.; Moran v. Selig, 447 F.3d 748, 753 (9th Cir. 2006). The proof required to establish the

16

prima facie case is “minimal and does not even need to rise to the level of a preponderance

17

of the evidence.” Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir. 1994). Nevertheless,

18

Plaintiff “must offer evidence that ‘give[s] rise to an inference of unlawful discrimination,’

19

either through the framework set forth in McDonnell Douglas or with direct or circumstantial

20

evidence of discriminatory intent.” Vasquez, 349 F.3d at 640. In the event that the plaintiff

21

is able to establish a prima facie case, “the burden of production, but not persuasion” then

22

shifts to the defendant to offer a legitimate non-discriminatory reason for the employment

23

action. Chuang v. Univ. of Cal.-Davis, 225 F.3d 1115, 1123–24 (9th Cir. 2000). If the

24

employer is able to articulate a non-discriminatory reason, the burden shifts back to the

25

plaintiff, who must be “afforded a fair opportunity to show that [the] stated reason for [the

26

challenged action] was in fact pretext.” McDonnell Douglas, 411 U.S. at 804. If the plaintiff

27

wishes to show indirectly that the employer’s reason is “unworthy of credence,” the

28

plaintiff’s evidence must be “specific” and “substantial” in order to create a triable issue.
-7-

1

Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1222 (9th Cir. 1998). The Ninth Circuit has

2

refused to find a “genuine issue” where the only evidence presented is “uncorroborated and

3

self-serving” testimony. Kennedy v. Applause, Inc., 90 F.3d 1477, 1481 (9th Cir. 1996).

4

Defendant contends that Plaintiff has not established a prima facie case of racial

5

discrimination under McDonnell Douglas because he has not demonstrated that he was

6

subject to an adverse employment action or that similarly situated individuals outside his

7

protected class were treated more favorably. To show that the employees allegedly receiving

8

more favorable treatment are similarly situated, Plaintiff “must demonstrate, at least, that [he

9

is] similarly situated to those employees in all material respects.” Moran, 447 F.3d at 755.

10

Individuals are similarly situated when “they have similar jobs and display similar conduct.”

11

Vasquez, 349 F.3d at 641. Employees in supervisory positions are generally deemed not to

12

be similarly situated to lower level employees. See id. (citing Ward v. Procter & Gamble

13

Paper Prods. Co., 111 F.3d 558, 560–61 (8th Cir. 1997)). In his Response, Plaintiff concedes

14

that he was not similarly situated to Kathy Larion, Chris Weill or Blake Larion, the three

15

individuals that he initially alleged were treated more favorably than him.3 (Doc. 42 at 10).

16

Because Plaintiff has conceded a required element for establishing race discrimination

17

pursuant to McDonnell Douglas, he cannot establish a prima facie case in this manner.

18

Instead, Plaintiff seeks to overcome summary judgment by establishing a prima facie

19

case through circumstantial evidence of discriminatory intent. (Doc. 42 at 10). “In lieu of

20

satisfying the elements of a prima facie case, a plaintiff may also ‘simply produce direct or

21

circumstantial evidence demonstrating that a discriminatory reason more likely than not

22

motivated’ the challenged decision.” Budnick v. Town of Carefree, 518 F.3d 1109, 1114 (9th

23

Cir. 2008) (citing McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1122–23 (9th Cir. 2004)).

24

Plaintiff appears to allege that discriminatory intent is circumstantially evident from the fact

25
26
27
28

3

In his Response Plaintiff states: “Plaintiff concedes Defendant’s argument under
Vasquez v. County of Los Angeles (9th Cir. 2003) 349 F.3d 634 concerning similarly situated
employees with similar jobs which is one of the prongs of McDonnell Douglas Corp. v.
Green (1973) 411 U.S. 492.”
-8-

1

that Defendant terminated Bright after he sent Bryan Duncan an email, dated February 10,

2

2009, that he would go to the CEO of the Company, and if necessary “the State of Arizona.”

3

(Doc. 42 at 10). Plaintiff further alleges that Defendant’s refusal to initiate or conduct an

4

investigation into Plaintiff’s allegations after he made two specific complaints gives rise to

5

an inference of unlawful discrimination. (Id.). However, in both his Response and his

6

deposition testimony Plaintiff repeatedly concedes that he never mentioned race in any of his

7

complaints or communications with Defendant. See Doc. 41, Ex. B, 72: 13-21, 74:15-21,

8

130:14 to 132:19, 134:10-22; see also Doc. 41, Ex. B, 143:11-14 (“Q: At any time in your

9

employment, did you ever communicate to the company that you believed you were being

10

discriminated against because of your race? A: No.”). In his Response, Bright further

11

explains that “while Plaintiff did not specifically state race in his attempt to complain,

12

Plaintiff did use phrases commonly associated with the protected class. He felt disliked. He

13

felt singled out. He complained of harassment.” (Doc. 42 at 10). Plaintiff’s subjective

14

feelings are insufficient to satisfy his burden of establishing that Defendant’s alleged

15

termination decision4 was more likely than not motivated by Plaintiff’s race. Plaintiff has

16

further failed to provide any evidence that Defendant’s alleged inaction in response to his

17

complaints was motivated by racial animus. Based on the absence of any evidence of

18

disparate treatment in the record, and Plaintiff’s admissions pursuant to Local Rule 56.1(b),

19

the Court cannot make an inference of unlawful discrimination under the McDonnell

20

Douglas framework or detect any direct or circumstantial evidence of discriminatory intent.

21
4

22
23
24
25
26
27
28

Defendant asserts that Plaintiff did not suffer an adverse employment action because
he abandoned his job on February 11, 2009. Indeed, Plaintiff’s deposition testimony supports
Defendant’s contention that no one at Mercer ever told him he was fired or terminated. (Doc.
41, Ex. B 108:15-17, 121:12-16). Plaintiff admitted that he refused multiple requests by
Jennifer Dale, Human Resources, to speak with her in her office, returned the company
property in his possession, drove away and never returned to Mercer. (Id. at 119:15 to
120:13, 121:7 to 122:25). Nevertheless, Plaintiff has submitted a document signed by his
supervisor at Mercer indicating that his termination, effective February 11, 2009, was
“involuntary.” (Doc. 42, Ex. A). The Court need not determine whether or not Plaintiff was
voluntarily or involuntarily terminated because his race discrimination claim fails for the
independent reasons set forth above.
-9-

1

Accordingly, summary judgment on Plaintiff’s race discrimination claim is proper.

2

C. Breach of Contract

3

Based on his Complaint, it is not readily apparent to the Court whether Plaintiff’s

4

breach of contract claim is based on Defendant’s alleged retaliation against him for

5

complaining of racial harassment or rather Defendant’s alleged refusal to initiate and conduct

6

an investigation into Plaintiff’s claims. Plaintiff merely quotes Section 1.3 of the Mercer’s

7

Employee Handbook, titled “Reporting Harassing Conduct to Mercer,” and asserts that

8

“Defendant openly breached its own agreement with Plaintiff.” (Doc. 1, ¶ 76). In his

9

Response, Plaintiff clarifies that Mercer breached its contract with him by refusing to initiate

10

and conduct an investigation into his claims. (Doc. 42 at 15). A liberal reading of Plaintiff’s

11

Complaint suggests that he complained to a Mercer supervisor regarding two incidents: 1)

12

on July 29 and August 1, 2008, Plaintiff complained to Mr. Cox and Mr. Ujano respectively

13

regarding Ms. Lewis’ “rude” emails concerning the mis-shipping of her department’s

14

packages, and 2) on February 10, 2009, Plaintiff wrote to Mr. Duncan and explained to Mr.

15

Ujano in person that Ms. Somers had engaged in discriminatory acts against him. With

16

respect to the first incident, Plaintiff testified that after he complained to Mr. Cox in Human

17

Resources about Ms. Lewis, Mr. Cox told Plaintiff that he would talk with her and if the

18

issue was not resolved he would meet with Plaintiff and Ms. Lewis. (Doc. 41, Ex. B at 74:15

19

to 75:3). Plaintiff testified that, thereafter, Ms. Lewis stopped exhibiting the short, rude

20

behavior toward him. (Id. at 75:4-13, 130:3-13). Thus, Plaintiff has failed to create a genuine

21

issue of material fact regarding Mercer’s alleged failure to address his complaint against Ms.

22

Lewis.

23

Even if the Court construes Plaintiff’s February 10, 2009 communication with Mr.

24

Duncan and Mr. Ujano as a complaint, Plaintiff’s own admissions undermine his claim.

25

Plaintiff admits that in response to Mr. Duncan’s emails asking Plaintiff to produce 40

26

manuals by a certain date, Plaintiff wrote an email to Mr. Duncan stating that this was just

27

another opportunity to disrespect the Shipping Department. (Doc. 41, Ex. M). He further

28

threatened to file a complaint with the CEO or the “State of Arizona”. (Id.). After sending
- 10 -

1

the email, Plaintiff entered Mr. Ujano’s office and used “inappropriate language” that was

2

“deplorable in nature” and threatened to do bodily harm to Mr. Duncan. (Doc. 1, ¶ 29; Doc.

3

41, Ex. B, 114:19 to 115:5, 116:1-13). Plaintiff further admits to walking out of Mr. Ujano’s

4

office and leaving the building even though the workday was not over. (Doc. 41, Ex. B at

5

134:13-22). The next day, Plaintiff returned to the office, refused requests to meet with

6

Human Resources, returned company property he possessed, and never returned to Mercer.

7

(Id. at 119:15 to 120:13, 121:7 to 122:25). Thus, based on Plaintiff’s own admissions there

8

is no triable issue of fact as to whether Mercer failed to initiate an investigation into his

9

second complaint.

10

Even if the Court construes Plaintiff’s breach of contract claim to stem from Mercer’s

11

alleged retaliation against Plaintiff for complaining of harassment, this claim is merely a

12

restatement of Plaintiff’s retaliation claims and does not survive summary judgment for the

13

same reasons set forth above. See discussion supra section II.A. Plaintiff has not satisfied his

14

burden of creating a triable issue of fact to rebut Defendant’s documented evidence that

15

Mercer did act on Plaintiff’s non-harassment complaints. Accordingly, Defendant is entitled

16

to summary judgment on Plaintiff’s breach of contract claim.

17
18
19

CONCLUSION
Plaintiff has not raised any issues of material fact to support his claims of retaliation,
discrimination and breach of contract.

20
21
22

IT IS THEREFORE ORDERED that Defendant’s Motion for Summary Judgment
(Doc. 40) is GRANTED.

23

The Clerk of the Court is directed to terminate this action.

24

DATED this 20th day of April, 2011.

25
26
27
28
- 11 -