Wesley Reed, Jr v. First Student, Inc. et al

Filing 41

ORDER re: Defendant's Motion for Summary Judgment, or in the Alternative, Partial Summary Judgment 28 by Judge Ronald S.W. Lew. The Court GRANTS in part and DENIES in part Defendant's Motion for Summary Judgment 28 . Specifically, the Court DENIES summary judgment as to Plaintiffs public policy and FEHA age discrimination and failure to prevent discrimination causes of action but GRANTS summary judgment for the punitive damages claim. (jre)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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12 WESLEY REED, JR.,
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Plaintiff,

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v.
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16 FIRST STUDENT, INC.,
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Defendant.
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CV 16-5483-RSWL-FFMx
ORDER re: Defendant’s
Motion for Summary
Judgment, or in the
Alternative, Partial
Summary Judgment [28]

Plaintiff Wesley Reed, Jr. (“Plaintiff”) brings the

22 following Action against Defendant First Student, Inc.
23 (“Defendant”), a school bus transportation company, for
24 alleged age discrimination.

Plaintiff claims that

25 Defendant did not hire him because he was seventy-six
26 years old at the time he applied to be a bus driver.
27 Compl. ¶ 8, ECF No. 1-1, Ex. A.
28

Currently before the Court is Defendant’s Motion
1

1 for Summary Judgment, or in the Alternative, Partial
2 Summary Judgment (“Motion”) [28].

Based on the

3 evidence presented, there is a genuine issue of
4 material fact as to whether Defendant discriminated and
5 failed to prevent discrimination against Plaintiff
6 based on his age; however, punitive damages are
7 unwarranted as a matter of law.

Having reviewed all

8 papers submitted pertaining to this Motion, the Court
9 NOW FINDS AND RULES AS FOLLOWS: the Court GRANTS in
10 part and DENIES in part Defendant’s Motion [28].
11

I. BACKGROUND

12 A.

Factual Background

13

Plaintiff is a Los Angeles resident, who was

14 seventy-six years old at the time of the events giving
15 rise to Plaintiff’s causes of action.

Compl. ¶¶ 1, 8;

16 Decl. of Wesley Reed Jr. (“Reed Decl.”)1 ¶¶ 1, 3.
17 Defendant is a transportation company providing school
18 bus services nationwide, including in Los Angeles.
19 Decl. of Dedra Valentine (“Valentine Decl.”) ¶ 2, ECF
20 No. 28-2.
21

In order to drive for Defendant, applicants must

22 submit the following documentation: (1) a driver’s
23 license; (2) a medical clearance form; (3) a first aid
24 card; and (4) a school bus certificate.

Id. ¶ 4; Decl.

25
26
27
28

1

Defendant incorrectly argues that Plaintiff’s Declaration
must be disregarded because he failed to sign the document under
penalty of perjury. See Def.’s Evid. Objs. 2:17-19, ECF No. 304. On the contrary, Plaintiff signed his Declaration under oath,
so the Court may properly consider it. Reed Decl. 4:7-15.
2

1 of Christina H. Hayes (“Hayes Decl.”), Ex. B
2 (“Valentine Dep.”) at 35:15-36:6, ECF No. 28-1.

To

3 obtain school bus certificates, individuals must pass a
4 written test and a behind-the-wheel test administered
5 by the California Highway Patrol (“CHP”), as well as
6 pass a medical examination.
7 Valentine Dep. 35:15-36:1.

Valentine Decl. ¶ 5;
Defendant claims to hire

8 every applicant who submits these four documents.
9 Valentine Dep. 36:2-6, 42:5-9.
10

On August 8, 2014, Plaintiff filled out an

11 application to become a bus driver for Defendant.
12 Decl. ¶ 4, Ex. A.

Reed

Plaintiff completed Defendant’s

13 requisite training for the CHP’s written and behind14 the-wheel tests in November 2014.

Id. ¶¶ 5-6.

15 Plaintiff passed both examinations that month.
16 Valentine Decl. ¶¶ 9, 11.

However, the CHP informed

17 Plaintiff it could not issue him a school bus
18 certificate because the Department of Motor Vehicles
19 needed to clear his background check first.
20 Decl., Ex. A (“Reed Dep.”) at 90:22-91:8.

Hayes
In January

21 or February 2015, Plaintiff finally received his school
22 bus certificate (the “School Bus Certificate”).

Id. at

23 97:12-16.
24

Plaintiff and Defendant dispute what happened

25 next—although it is undisputed that Defendant never
26 hired Plaintiff.

Valentine Dep. 86:6-11.

Plaintiff

27 claims he brought the School Bus Certificate, as well
28 as the other required documents, to Defendant in March
3

1 2015.

Reed Decl. ¶ 7, Ex. B.

Defendant’s Safety

2 Supervisor, Dedra Valentine (“Valentine”)—who was also
3 responsible for hiring drivers—contends that she does
4 not recall Plaintiff ever submitting the School Bus
5 Certificate, and there is no record of one in his file.
6 Valentine Decl. ¶ 12; Pl.’s Stmt. of Undisputed Facts
7 (“Pl.’s SUF”) ¶ 8, ECF No. 30-3.
8 B.

Procedural Background

9

On June 16, 2016, Plaintiff filed his Complaint in

10 the Los Angeles County Superior Court [1-1].

Defendant

11 removed the case to this Court on July 22, 2016 [1].
12 Plaintiff alleges the following claims against
13 Defendant: (1) age discrimination in violation of the
14 Fair Employment and Housing Act (“FEHA”); (2) age
15 discrimination in violation of public policy; and
16 (3) failure to do everything reasonably necessary to
17 prevent discrimination, harassment, and retaliation
18 from occurring in violation of FEHA.
19

Compl. ¶¶ 16-52.

Defendant filed the instant Motion on August 8,

20 2017 [28-3].
21 22, 2017 [29].

Plaintiff filed his Opposition on August
Defendant’s Reply followed on August

22 29, 2017 [30].
23

II. DISCUSSION

24 A.

Legal Standard

25

Federal Rule of Civil Procedure 56(a) states that a

26 “court shall grant summary judgment” when the movant
27 “shows that there is no genuine dispute as to any
28 material fact and the movant is entitled to judgment as
4

1 a matter of law.”

The party moving for summary

2 judgment has the initial burden of proof to show “no
3 genuine dispute as to any material fact.”

Id.; see

4 also In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387
5 (9th Cir. 2010)(citing Celotex Corp. v. Catrett, 477
6 U.S. 317, 323 (1986)).

“A party asserting that a fact

7 cannot be . . . genuinely disputed must support the
8 assertion by: citing to particular materials in the
9 record.”

Fed. R. Civ. P. 56(c)(1)(A).

“In determining

10 any motion for summary judgment . . . , the Court may
11 assume that the material facts as claimed and
12 adequately supported by the moving party are admitted
13 to exist without controversy except to the extent that
14 such material facts are (a) included in the ‘Statement
15 of Genuine Disputes’ and (b) controverted by
16 declaration or other written evidence filed in
17 opposition to the motion.”
18

C.D. Cal. R. 56-3.

Where the non-moving party bears the burden of

19 proof at trial, the moving party need only prove that
20 there is an absence of evidence to support the non21 moving party’s case.

In re Oracle, 627 F.3d at 387.

22 If the moving party meets this burden, the burden then
23 shifts to the non-moving party to produce admissible
24 evidence showing a triable issue of fact.

Id.; Nissan

25 Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099,
26 1102-03 (9th Cir. 2000).
27 //
28 //
5

1 B.

Discussion

2

1.

3
4

Evidentiary Objections
a.

Plaintiff’s Evidentiary Objections

Plaintiff objects to portions of the Declaration of

5 Dedra Valentine [28-2] and Defendant’s Statement of
6 Undisputed Facts [28-4].

ECF No. 29-5.

First,

7 Plaintiff objects that Valentine lacks personal
8 knowledge as to when the CHP issues school bus
9 certificates to drivers and to Valentine’s and her co10 worker McGee’s positions at Defendant’s company.
11 Evid. Objs. ¶¶ 1-2, 6, ECF No. 29-5.

Pl.’s

To the extent

12 Valentine asserts what typically or generally happens
13 with respect to the CHP’s issuance of school bus
14 certificates, Valentine Decl. ¶¶ 5, 10, the Court
15 SUSTAINS Plaintiff’s objections because Valentine lacks
16 personal knowledge of the usual procedures since she
17 does not work for the CHP, Pl.’s Evid. Objs. ¶¶ 1-2;
18 Fed. R. Evid. 602.

On the other hand, Valentine has

19 personal knowledge and foundation about her own job
20 duties, as well as her co-worker’s, such as not being
21 an officer, director, or manager of Defendant.

See

22 Valentine Decl. ¶ 15; Self-Realization Fellowship
23 Church v. Anada Church of Self-Realization, 206 F.3d
24 1322, 1330 (9th Cir. 2000)(“Personal knowledge can be
25 inferred from an affiant’s [employment] position.”
26 (citations omitted)).

As such, the Court OVERRULES

27 Plaintiff’s objections to this evidence.
28 Objs. ¶ 6.

Pl.’s Evid.

Plaintiff also objects to Valentine’s
6

1 explanation of Defendant’s Employee Handbook as
2 irrelevant.

Id. ¶ 5.

Because the Employee Handbook

3 tends to make it less likely that Defendant failed to
4 take steps to prevent discrimination, it is relevant to
5 Plaintiff’s third cause of action.
6 401.

See Fed. R. Evid.

Thus, the Court OVERRULES Plaintiff’s objection

7 on relevance grounds.
8

As to Defendant’s Statement of Undisputed Facts,

9 Plaintiff objects to paragraph 23: “Plaintiff admits
10 that he was not issued a School Bus Certificate by the
11 CHP due to his failure to clear the background check.”
12 Id. ¶ 7.

The Court SUSTAINS as moot Plaintiff’s

13 argument that it mischaracterizes the testimony because
14 the Court only relies on the deposition transcript
15 itself.

Plaintiff also objects on relevance grounds to

16 Defendant’s statement that Plaintiff’s trainer, McGee,
17 was over sixty years old and 35% of individuals hired
18 as bus drivers for Defendant were over the age of
19 forty.

Id. ¶¶ 8-9; Def.’s SUF ¶¶ 38, 44.

The Court

20 OVERRULES these objections because these paragraphs are
21 relevant to show that age was not a factor in
22 Defendant’s hiring practices.
23

Finally, in his Opposition, Plaintiff objects to

24 “any new evidence that [D]efendant attempts to submit
25 in any reply.”

Pl.’s Opp’n to Def.’s Mot. for Summ. J.

26 (“Opp’n”) 14:4-5, ECF No. 29.

Per Local Rule 7-10,

27 Defendant could file declarations or other rebuttal
28 evidence in connection with its Reply.
7

With the Reply,

1 Defendant filed the Declaration of O. Mishell P. Taylor
2 (“Taylor Declaration”) [30-1] authenticating and
3 including Defendant’s Response to Plaintiff’s Requests
4 for Admission, Set One.

This evidence rebuts

5 Plaintiff’s introduction in his Opposition of
6 Defendant’s Response to Plaintiff’s Requests for
7 Admission, Set Two, by providing a more complete
8 picture of Defendant’s admissions.
9 106.

See Fed. R. Evid.

Thus, the Court OVERRULES Plaintiff’s objection

10 to the Taylor Declaration.
11
12

b.

Defendant’s Evidentiary Objections

Defendant objects to portions of the following

13 evidence: (1) the Declaration of Wesley Reed, Jr. [2914 2]; (2) the Deposition of Wesley Reed, Jr. [29-1, Ex.
15 1]; (3) the Deposition of Dedra Valentine [29-1, Ex.
16 2]; (4) the Deposition of Cleo McGee [29-1, Ex. 3];
17 (5) the Deposition of Mustapha Karam [29-1, Ex. 4]; and
18 (6) the use of Defendant’s Supplemental Response to
19 Plaintiff’s Special Interrogatories, Set Two [29-1, Ex.
20 5].
21

ECF No. 30-4.
The Court can overrule Defendant’s evidentiary

22 objections because they “are boilerplate and devoid of
23 any specific argument or analysis as to why any
24 particular exhibit or assertion in a declaration should
25 be excluded.”

United States v. HIV Cat Canyon, Inc.,

26 213 F. Supp. 3d 1249, 1257 (C.D. Cal. 2016); see also
27 Stonefire Grill, Inc. v. FGF Brands, Inc., 987 F. Supp.
28 2d 1023, 1033 (C.D. Cal. 2013)(refusing to “scrutinize
8

1 each objection and give a full analysis of identical
2 objections”); Amaretto Ranch Breedables v. Ozimals,
3 Inc., 907 F. Supp. 2d 1080, 1081 (N.D. Cal. 2012)
4 (“This Court need not address boilerplate evidentiary
5 objections.” (citation omitted)); Capitol Records, LLC
6 v. BlueBeat, Inc., 765 F. Supp. 2d 1198, 1200 n.1 (C.D.
7 Cal. 2010)(noting that “it is often unnecessary and
8 impractical” to scrutinize “boilerplate recitations of
9 evidentiary principles or blanket objections” (citation
10 omitted)).

Moreover, upon review of the objected-to

11 evidence and Defendant’s bases for its objections,
12 Defendant’s evidentiary objections are OVERRULED [30-4]
13 either because the objections are without merit or
14 because the Court does not rely on the objected-to
15 evidence.

Where the Court relies on particular

16 evidence, the reasons for overruling the pertinent
17 objections will be delineated.
18
19
20

2.

Defendant’s Motion is GRANTED in part and
DENIED in part [28]

Defendant seeks summary judgment in its favor as to

21 all three of Plaintiff’s causes of action.
22 for Summ. J. (“Mot.”) 1:25-27, ECF No. 28-3.

Def.’s Mot.
In his

23 Complaint, Plaintiff alleges the following claims:
24 (1) age discrimination in violation of FEHA; (2) age
25 discrimination in violation of public policy; and
26 (3) failure to prevent discrimination, harassment, and
27 retaliation in violation of FEHA.
28 The Court discusses each in turn.
9

Compl. ¶¶ 16-52.

1
2

a.

Age Discrimination in Violation of FEHA

Under California’s burden-shifting framework for

3 FEHA claims,2 the plaintiff must first establish a prima
4 facie case of discrimination by showing the following:
5 (1) the plaintiff is within a protected class; (2) the
6 plaintiff applied for and was qualified for the job;
7 (3) the plaintiff suffered an adverse employment
8 action, such as denial of an available job; and
9 (4) other circumstances giving rise to an inference of
10 age discrimination.

Guz v. Bechtel Nat’l Inc., 8 P.3d

11 1089, 1113 (Cal. 2000).

If the plaintiff satisfies the

12 prima facie case, the defendant must rebut the
13 presumption of discrimination with a legitimate,
14 nondiscriminatory reason for the action.
15 (citations omitted).

Id. at 1114

Then, the plaintiff may attack

16 the defendant’s proffered reasons as pretextual or
17 offer other evidence of discriminatory motive.

Id.

18 (citations omitted).
19
20

i.

Plaintiff’s Prima Facie Case

Here, Plaintiff was seventy-six years old when he

21 applied to be a bus driver for Defendant, Reed Decl.
22 ¶ 3, placing him within a protected class because he
23 was over forty years old, see Schechner v. KPIX-TV, 686
24
25

2

“California courts interpreting FEHA often look to federal

26 cases interpreting the Age Discrimination in Employment
Act . . . and Title VII of the Civil Rights Act.”

Nidds v.

27 Schindler Elevator Corp., 113 F.3d 912, 916 (9th Cir. 1996).
Accordingly, this Court relies “on such cases where helpful.”
28 Id.
10

1 F.3d 1018, 1023 (9th Cir. 2012)(citation omitted).
2 Thus, Plaintiff has satisfied the first prima facie
3 element.
4

Second, Plaintiff applied to become a bus driver

5 for Defendant.
6 ¶ 6.

Reed Decl. ¶ 4, Ex. A; Valentine Decl.

The parties agree that to qualify for the bus

7 driver position, Plaintiff needed to submit his School
8 Bus Certificate.

Mot. 6:14-16; Opp’n 10:26-3.

9 Plaintiff attests that he delivered the School Bus
10 Certificate to Defendant’s employee, Valentine, who was
11 in charge of hiring trainees, in March 2015.
12 Decl. ¶ 7, Ex. B; Reed Dep. 98:25-101:3.

Reed

In contrast,

13 Valentine asserts that to her knowledge, Plaintiff
14 never submitted a school bus certificate to Defendant,
15 let alone returned after completing the behind-the16 wheel test in November 2014.
17 Valentine Dep. 146:6-22.

Valentine Decl. ¶ 12;

The Court cannot assess the

18 credibility of or weigh this evidence but must draw all
19 inferences in the light most favorable to Plaintiff to
20 determine whether there is a genuine issue of material
21 fact.

Soremekun v. Thrifty Payless, Inc., 509 F.3d

22 978, 984 (9th Cir. 2007).

When drawing all inferences

23 in Plaintiff’s favor, the Court finds no genuine issue
24 of material fact for trial; rather, Plaintiff submitted
25 his School Bus Certificate even though Valentine does
26 not remember as much.

Thus, Plaintiff was qualified

27 for the position.
28

As to the third prima facie element, Plaintiff
11

1 admits that Defendant offered him a conditional offer
2 of employment, contingent on Plaintiff’s receipt of a
3 school bus certificate.

Reed Dep., Ex. 3 at 5 (checked

4 box showing Defendant made a conditional employment
5 offer); Pl.’s Resp. to Def.’s Stmt. of Undisputed Facts
6 (“Pl.’s Resp. to Def.’s SUF”) ¶ 14, ECF No. 29-3.
7 Nevertheless, Plaintiff claims that when he followed up
8 on his application with Valentine after providing his
9 School Bus Certificate, she abruptly said, “Mr. Reed, I
10 have your paperwork.
11 61:16, 63:9-21.

I’ll call you.”

Reed Dep. 60:7-

Although Defendant did not explicitly

12 reject Plaintiff, Valentine admitted in her deposition
13 that Defendant did not hire Plaintiff.
14 86:6-11.

Valentine Dep.

Plaintiff has established this element by

15 showing he was not hired for the available position.
16

Lastly, Plaintiff offers evidence that the oldest

17 employee Defendant hired between August 4, 2014 and
18 April 20, 2015 was thirteen years younger than
19 Plaintiff.3
20 1.

Decl. of Mark Weidmann, Ex. 5, ECF No. 29-

The Ninth Circuit has considered a potential

21 thirteen-year age gap between the plaintiff and his
22
3

Defendant
23 evidence with hisobjects to Plaintiff’s inclusion of this
Opposition as irrelevant and unauthenticated.
Def.’s Evid. Objs. ¶ 33. It is relevant because it supports
24

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26
27
28

Plaintiff’s claim that Defendant did not hire Plaintiff based on
his age. Moreover, the evidence is Defendant’s interrogatory
answers, and Defendant “does not dispute the preparation of the
interrogatories.” Id. at 30 n.1. The document also appears to
be what Plaintiff’s attorney claims it to be in his Declaration.
Fed. R. Evid. 901. Because parties may rely on “materials in the
record, including . . . interrogatory answers,” Fed. R. Civ. P.
56(c)(1)(A), Defendant’s objections are OVERRULED.
12

1 replacement as support for the fourth element of the
2 FEHA prima facie case.

Santillan v. USA Waste of Cal.,

3 Inc., 853 F.3d 1035, 1044 (9th Cir. 2017).

“The fact

4 that one person in the protected class has lost out to
5 another person in the protected class is thus
6 irrelevant, so long as he has lost out because of his
7 age.”

O’Connor v. Consol. Coin Caterers Corp., 517

8 U.S. 308, 312 (1996).

Defendant counters with evidence

9 that Defendant employed an employee over the age of
10 sixty-nine within that time frame.
11 P. Taylor, Ex. A, ECF No. 30-1.

Decl. of O. Mishell

The inference most

12 favorable to Plaintiff is that Defendant discriminated
13 on the basis of age in its hiring, despite not
14 retention, decisions.

Defendant also argues its

15 conditional offer of employment to Plaintiff undermines
16 any claim that Defendant did not want to hire Plaintiff
17 based on his age.

Def.’s Reply in Supp. of Def.’s Mot.

18 for Summ. J. (“Reply”) 4:17-19, ECF No. 30.

But again,

19 when considered in the light most favorable to
20 Plaintiff, this could have been an empty promise to
21 hire him.4
22
4

Plaintiff’s other
23 Opposition is irrelevant.evidence proffered in support of his
For instance, filing trainees’
applications by date of birth, as opposed to name, does not show
24

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26
27
28

age discrimination because “from birth date to birth date with
[Defendant’s] regular drivers you have to have ten hours,” so
“it’s easier to log that information on their training records.”
Valentine Dep. 63:3-21. Valentine’s abrupt or harsh tone of
voice towards Plaintiff does not show she was discriminating
against his age either. See Reed Dep. 58:16-62:4. Additionally,
the fact that Plaintiff’s trainer, McGee, walked some trainees,
but not Plaintiff, around the buses and gave different
13

1

Based on the foregoing, Plaintiff has established

2 his prima facie case under FEHA.
3

ii. Defendant’s Legitimate,

4

Nondiscriminatory Reason

5

If nondiscriminatory, Defendant’s reasons for not

6 hiring Plaintiff need not necessarily be wise or
7 correct.

Guz, 8 P.3d at 1115.

Legitimate reasons are

8 those “facially unrelated to prohibited bias, and
9 which, if true, would thus preclude a finding of
10 discrimination.”
11

Id. at 1115-16.

Pursuant to California Vehicle Code section

12 12517(a), “a person may not operate a schoolbus while
13 transporting pupils unless that person has in his or
14 her immediate possession . . . a certificate issued by
15 the department to permit the operation of a schoolbus.”
16 Because Defendant knew the CHP declined to issue
17 Plaintiff a school bus certificate and had no record
18 otherwise, Defendant claims it did not hire Plaintiff
19 as it believed Plaintiff’s operation of a bus would be
20 illegal.

Mot. 10:11-18.

This reason is legitimate and

21 nondiscriminatory as it is entirely unrelated to
22 Plaintiff’s age.

As such, Defendant has satisfied its

23
24
25
26
27
28

instructions to Plaintiff and another trainee about how to meet
oncoming traffic does not show that Defendant treated Plaintiff
unfavorably because of his age. See Reed Dep. 70:17-73:20.
Finally, an applicant’s, like Plaintiff’s, experience as a bus
driver was not part of Defendant’s considerations for hiring, as
Plaintiff admits that Defendant hires all applicants, with the
exception of Plaintiff, who submit the four required documents.
Pl.’s Resp. to Def.’s SUF ¶ 7.
14

1 burden under Guz.
2

iii. Plaintiff’s Pretext and

3
4

Discriminatory Motive Arguments
“[P]laintiff can survive summary judgment without

5 producing any evidence of discrimination beyond that
6 constituting his prima facie case, if that evidence
7 raises a genuine issue of material fact regarding the
8 truth of [Defendant’s] proferred reasons.”

Chuang v.

9 Univ. of Cal. Davis, Bd. of Trs., 225 F.3d 1115, 1127
10 (9th Cir. 2000)(citing Reeves v. Sanderson Plumbing
11 Prods., Inc., 530 U.S. 133 (2000)).

But there are

12 instances where no rational juror could conclude the
13 action was discriminatory although the plaintiff
14 established a prima facie case and provided sufficient
15 evidence to reject the defendant’s explanation for the
16 action.

Reeves, 530 U.S. at 148.

For instance, the

17 employer would be entitled to summary judgment “if the
18 record conclusively revealed some other,
19 nondiscriminatory reason for the employer’s decision,
20 or if the plaintiff created only a weak issue of fact
21 as to whether the employer’s reason was untrue and
22 there was abundant and uncontroverted independent
23 evidence that no discrimination had occurred.”
24

Id.

As discussed, Plaintiff’s only specific evidence of

25 age discrimination is that Defendant did not hire
26 Plaintiff despite his qualifications but hired someone
27 thirteen years his junior.

However, Plaintiff also

28 testified that Valentine told him, “Mr. Reed, I have
15

1 your paperwork.
2 63:9-21.

I’ll call you.”

Reed Dep. 60:7-61:16,

In her deposition, Valentine answered

3 affirmatively that she “never had a trainee who
4 submitted a driver’s license, a medical clearance form,
5 and a first aid form without submitting a school bus
6 certificate that [Valentine] made copies of.”5
7 Valentine Dep. 47:9-13.

Accordingly, when Valentine

8 told Plaintiff that she had his “paperwork,” the
9 inference in the light most favorable to Plaintiff is
10 that she meant the School Bus Certificate too.

Based

11 on this evidence, Plaintiff has raised a direct issue
12 of fact as to Defendant’s nondiscriminatory reason for
13 not hiring Plaintiff: whether Defendant truly had no
14 record of the School Bus Certificate.

Indeed, the

15 Court cannot make credibility determinations at the
16 summary judgment stage.

The evidence presented in this

17 case certainly does not conclusively reveal a
18 nondiscriminatory reason as a matter of law because
19 Defendant has not provided, for instance, record of
20 Plaintiff’s incomplete application.
21

In sum, the Court DENIES Defendant’s Motion as to

22 Plaintiff’s claim for age discrimination in violation
23
24
25
26
27
28

5

Defendant objects to Plaintiff’s use of this testimony as
irrelevant and inadmissible opinion, speculation, and conclusion.
Def.’s Evid. Objs. ¶ 16. However, Valentine’s statement is
relevant because it tends to make it more likely Plaintiff
submitted all the required documents. It is not an opinion,
speculation, or conclusion; rather, it is an assertion of fact
with respect to actual events, or lack thereof, during the course
of her employment. Thus, the Court OVERRULES Defendant’s
objections and considers the evidence.
16

1 of FEHA.
2

b.

3
4

Age Discrimination in Violation of Public
Policy

Because Plaintiff’s public policy cause of action

5 is based on FEHA and Plaintiff is proceeding on his
6 FEHA age discrimination claim, the Court DENIES
7 Defendant’s Motion as to this cause of action.

See

8 Stevenson v. Superior Court, 941 P.2d 1157, 1175 (Cal.
9 1997)(“[A]ssertion of a common law tort claim for
10 wrongful discharge in violation of the public policy
11 against age discrimination as articulated in the FEHA
12 is consistent with the legislative intent underlying
13 the FEHA.”).6
14

c.

Failure to Prevent Discrimination,

15

Harassment, and Retaliation in Violation

16

of FEHA

17

“A plaintiff seeking to recover on a failure to

18 prevent discrimination claim under FEHA must show that
19 (1) he was subjected to discrimination; (2) defendant
20 failed to take all reasonable steps to prevent
21
6

In its Motion, Defendant proposes that “California does

22 not recognize a common law claim for age discrimination.” Mot.
of unpublished federal cases
23 12:12-13. Defendant cites a coupleon all fours, but Strauss v.
as well as some cases that are not
24 A. L. Randall Co., 194 Cal. Rptr. 520, 524 (Ct. App. 1983) is
25
26
27
28

particularly problematic because the California Supreme Court
rejected the Strauss holding that there is no common law cause of
action for age discrimination. Stevenson, 941 P.2d at 1169.
Therefore, Defendant’s argument fails. Furthermore, contrary to
Defendant’s assertion, Plaintiff did address the public policy
claim in his Opposition, so he did not abandon it. See Opp’n
6:15-16 (noting issues of fact regarding the age discrimination
claims).
17

1 discrimination; and (3) this failure caused plaintiff
2 to suffer injury, damage, loss or harm.”

Achal v. Gate

3 Gourmet, Inc., 114 F. Supp. 3d 781, 804 (N.D. Cal.
4 2015)(citation omitted).

This claim essentially

5 derives from a FEHA discrimination claim.

Id.

Because

6 Plaintiff’s FEHA cause of action survives summary
7 judgment, the Court DENIES Defendant’s Motion as to
8 Plaintiff’s failure to prevent discrimination cause of
9 action as well.7

Rux v. Starbucks Corp., CV, 2007 WL

10 1470134, at *9 (E.D. Cal. May 18, 2007)(denying summary
11 judgment as to plaintiff’s failure to prevent
12 discrimination claim because plaintiff’s FEHA claim
13 survived summary judgment).
14
15

d.

Punitive Damages

Under California law, a plaintiff must provide

16 clear and convincing evidence of malice, oppression, or
17 fraud in order to maintain a claim for punitive
18 damages.

Cal. Civ. Code § 3294(a); Basich v. Allstate

19 Ins., 105 Cal. Rptr. 2d 153, 158 (Ct. App. 2001).

Even

20 assuming, as in the case at hand, the plaintiff
21 withstands summary judgment on his underlying claims,
22
7

right of action for
23 failureDefendant argues there is no private Mot. 13:19-23. But
to prevent discrimination claims.
24 numerous cases, including cases Defendant cites in its moving

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papers, have involved private individuals enforcing these claims.
See, e.g., Carter v. Cal. Dep’t of Veterans Affairs, 135 P.3d
637, 644 n.4 (Cal. 2006)(“[C]ourts have required a finding of
actual discrimination or harassment under FEHA before a plaintiff
may prevail under [a failure to prevent discrimination claim].”);
Veronese v. Lucasfilm Ltd., 151 Cal. Rptr. 3d 41, 61 (Ct. App.
2012)(discussing this “statutory tort action” plaintiff prevailed
on at trial).
18

1 he is not automatically entitled to punitive damages.
2 See, e.g., Mathieu v. Norrell Corp., 10 Cal. Rptr. 3d
3 52, 62, 65 (Ct. App. 2004)(although summary judgment in
4 defendant’s favor was not warranted for plaintiff’s
5 FEHA claim, it was for punitive damages).
6

According to Plaintiff, Defendant failed to meet

7 its burden as to punitive damages for two reasons:
8 (1) Defendant did not definitively state no officer,
9 director, or managing agent was involved in the hiring
10 decision; and (2) dismissing Plaintiff “because of his
11 age is clearly oppressive, and malicious and
12 [D]efendant providing a false reason for the failure to
13 hire is clearly fraudulent.”

Opp’n 13:28-14:2.

14 Defendant responds that “there is absolutely no
15 evidence in the record to establish that any decision
16 regarding Plaintiff’s employment was made by an
17 officer, director or managing agent” of Defendant.
18 Reply 12:7-9.

Indeed, Plaintiff admits that Valentine,

19 who is not an officer, director, or managing agent of
20 Defendant, makes the hiring decisions.

Pl.’s SUF ¶ 8.

21 To the extent Plaintiff claims his trainer, McGee
22 treated him unfairly, Plaintiff also admits he was not
23 an officer, director, or managing agent of Defendant.
24 Pl.’s Resp. to Def.’s SUF ¶ 59.

In refuting

25 Plaintiff’s second reason, Defendant notes that
26 Plaintiff merely speculates that Defendant did not hire
27 him based on his age.

Reply 12:2-3.

None of

28 Defendant’s employees ever made age-related comments to
19

1 Plaintiff, and Plaintiff generally felt his trainers
2 treated him fairly and that only Valentine spoke
3 abruptly with him once.

Reed Dep. 55:25-56:11, 60:7-

4 61:16.
5

The foregoing is not clear and convincing evidence

6 that Defendant acted maliciously, oppressively, or
7 fraudulently, and as discussed, punitive damages are
8 not warranted simply because Plaintiff satisfied his
9 prima facie case.

Thus, the Court GRANTS Defendant’s

10 Motion as to punitive damages.
11
12

III. CONCLUSION
Based on the foregoing analysis, the Court GRANTS

13 in part and DENIES in part Defendant’s Motion for
14 Summary Judgment [28].

Specifically, the Court DENIES

15 summary judgment as to Plaintiff’s public policy and
16 FEHA age discrimination and failure to prevent
17 discrimination causes of action but GRANTS summary
18 judgment for the punitive damages claim.
19 IT IS SO ORDERED.
20
21 DATED: September 26, 2016

s/ RONALD S.W. LEW

22

HONORABLE RONALD S.W. LEW
Senior U.S. District Judge

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