Yingling V. SK Foods LP, et al

Filing 27

SCHEDULING ORDER signed by Magistrate Judge Gary S. Austin on 2/6/2009. Discovery Deadlines - Initial Disclosures: February 13, 2009, Non-Expert: October 1, 2009, Expert Disclosures: December 1, 2009, Supp. Expert Discl.: January 7, 2010, Expert Discovery: March 5, 2010; Motion Deadlines -Non-Dispositive: March 19, 2010, Dispositive: May 14, 2010; Settlement Conference set for 7/7/2010 at 10:00 AM in Courtroom 7 (SMS) before Magistrate Judge Sandra M. Snyder; Pretrial Conference set for 6/30/2010 at 03:30 PM in Courtroom 10 (GSA) before Magistrate Judge Gary S. Austin; Jury Trial set for 10/5/2010 at 09:00 AM in Courtroom 10 (GSA) before Magistrate Judge Gary S. Austin. (Esteves, C)

1 2 3 4 5 6 7 8 9 RANDY YINGLING, 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I. 26 February 4, 2009. 27 28 1 Date of Scheduling Conference ) ) ) Plaintiff, ) ) v. ) ) ) SK FOODS, LP, SK FOODS, INC., SCOTT ) SALYER and DOES I - XX, ) ) ) Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ____________________________________ 1: 08-cv-01262 GSA SCHEDULING ORDER (Fed.R.Civ.P 16) Discovery Deadlines: Initial Disclosures: February 13, 2009 Non-Expert: October 1, 2009 Expert Disclosures: December 1, 2009 Supp. Expert Discl.: January 7, 2010 Expert Discovery: March 5, 2010 Motion Deadlines: Non-Dispositive: March 19, 2010 Dispositive: May 14, 2010 Pre-Trial Conference: June 30, 2010 at 3:30 p.m. Courtroom 10 (GSA), 6th Floor Trial: October 5, 2010 at 9:00 a.m. Courtroom 10 (GSA), 6th Floor 10-15 Day Jury Trial Settlement Conference: July 7, 2010 at 10:00 a.m. Courtroom 7 (SMS), 6th Floor

U N IT E D STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA

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II.

Appearances of Counsel Daniel M. Kopfman appeared telephonically on behalf of Plaintiff Randy

Yingling. Brian P. Maschler appeared telephonically on behalf of Defendants SK Foods, LP, and SK Foods, Inc. III. 1. The Pleadings Plaintiff's Contentions Plaintiff asserts claims of wrongful termination in violation of public policy, breach of employment contract-wrongful termination, age discrimination, and retaliation. 2. Defendants' Contentions Defendants contend Plaintiff's termination was not motivated by retaliation, nor did Defendants discriminate against Plaintiff on the basis of his age. Defendants deny Plaintiff's contentions regarding complaints he purportedly made to Defendants while in their employ. Defendants contend that Plaintiff was terminated for failing to perform at the expected standard and for continuing behavioral issues. Additionally, Defendants contend multiple complaints were lodged regarding Plaintiff and his job performance. Defendants contend that Plaintiff's employment was terminable at will, and there was no employment contract, oral or written, express or implied. IV. A. Factual Summary Uncontested Facts: 1. Plaintiff was employed by Defendant SK Foods, LP, SK Foods, Inc.

during the relevant time periods. 2. Plaintiff was terminated from his employment on or about September 29,

3.

At the time of termination, Plaintiff was fifty-six years of age.

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the workplace. older workers. employment.

4.

On December 17, 2007, a right to sue notice was issued to Plaintiff by the

California Department of Fair Employment and Housing after Plaintiff filed a complaint with the agency. 5. On June 3, 2008, a right to sue notice was issued to Plaintiff by the Equal

Opportunity Commission after Plaintiff filed a complaint with the agency. B. Contested Facts: 1. a. From Plaintiff's Perspective: Plaintiff's employment by Defendant was governed by an employment

contract not to terminate except upon good cause. b. c. Plaintiff was terminated from his employment without justifiable cause. Plaintiff's age was a factor in Defendant's decision to terminate his

d.

Since Plaintiff's termination his job duties have been performed by a

substantially younger individual who did not complain of discrimination, harassment, and illegal activities. e. Defendant has a pattern and practice of terminating the employment of

f.

Plaintiff's complaints of sexual harassment observed in the workplace

were a motivating factor in Defendant's decision to terminate Plaintiff's employment. g. Plaintiff's complaints of Defendant's unlawful activities were a motivating

factor in Defendant's decision to terminate Plaintiff's employment. h. Defendant did not take all steps necessary to prevent or correct

discrimination and harassment. i. Plaintiff complained to Defendant about sexual harassment he observed in

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j.

Plaintiff complained about numerous unlawful activities during his

2. a. b.

From Defendant's Perspective: Plaintiff's former employment at SK Foods, LP was terminable at will. There did not exist any employment contract, either written or oral,

express or implied, between Plaintiff and his former employer, SK Foods, LP. c. d. Plaintiff was terminated because of job performance. Plaintiff was advised of his employer's expectations with respect to job

responsibilities and performance in the areas on which he needed to improve. e. Before Plaintiff's employment was terminated, SK Foods had received

multiple complaints about Plaintiff's job performance and behavior. f. g. Plaintiff's age played no part in his termination. The person who assumed Plaintiff's job responsibilities after Plaintiff's

termination is well over forty years old. h. to his termination. i. Plaintiff's purported complaints about harassment or alleged misconduct Plaintiff did not complain about sexual harassment or legal violations prior

were not a factor in SK Foods, LP's decision to terminate his employment. V. Summary of Legal Issues The Plaintiff's legal issues are set forth in his complaint, and are summarized as

Plaintiff contends that Defendants' decision to terminate him was, in part, motivated by his age, in violation of California Government Code § 12941, et seq. and/or 29 U.S.C. § 621. et seq.; and/or in retaliation for complaining about and opposing sexual harassment, in violation of California Government Code § 12940, et seq. Plaintiff further

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contends that his termination was an unlawful breach of the employment contract, and a violation of public policy. VI. Consent to the Magistrate Judge The parties have consented in writing to conduct all further proceedings in this case, including trial, before the Honorable Gary S. Austin, U.S. Magistrate Judge. (28 U.S.C. § 636(c).) As a result, on or about December 9, 2008, the Honorable Anthony W. Ishii, U.S. District Judge, issued a consent order reassigning the matter to Magistrate Judge Gary S. Austin for all purposes. VII. Discovery Plan and Cut-Off Date The parties shall exchange initial disclosures pursuant to Federal Rule of Civil Procedure 26 on or before February 13, 2009. The parties are ordered to complete all discovery pertaining to non-experts on or before October 1, 2009. The parties are directed to disclose all expert witnesses, in writing, on or before December 1, 2009. The parties shall also disclose all supplemental experts on or before January 7, 2010. The written designation of experts shall be made pursuant to Fed. R. Civ. P. Rule 26(a)(2)(A) and (B) and shall include all information required thereunder. Failure to designate experts in compliance with this order may result in the Court excluding the testimony or other evidence offered through such experts that are not disclosed pursuant to this order. The parties are directed to complete all expert discovery on or before March 5, 2010. The provisions of Fed. R. Civ. P. 26 (b)(4) and (5) shall apply to all discovery relating to experts and their opinions. Experts must be fully prepared to be examined on all subjects and opinions included in the designation. Failure to comply will result in the imposition of sanctions, which may include striking expert designation and preclusion of expert testimony. VIII. Pre-Trial Motion Schedule All Non-Dispositive Pre-Trial Motions, including any discovery motions, shall be filed no later than March 5, 2010. Non-dispositive motions are heard on Fridays at 9:30 a.m.,

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before the Honorable Gary S. Austin, United States Magistrate Judge in Courtroom 10. Counsel must comply with Local Rule 37-251 with respect to discovery disputes or the motion will be denied without prejudice and dropped from calendar. In scheduling such motions, the Magistrate Judge may grant applications for an order shortening time pursuant to Local Rule 6-142(d). However, if a party does not obtain an order shortening time, the notice of motion must comply with Local Rule 37-251. Counsel or pro se parties may appear and argue non-dispositive motions by telephone, providing a written request to so appear is made to the Magistrate Judge's Courtroom Clerk no later than five (5) court days before the noticed hearing date. In the event that more than one party requests to appear by telephone then it shall be the obligation of the moving part(ies) to arrange and originate a conference call to the court. All Dispositive Pre-Trial Motions shall be filed no later than May 14, 2010, and heard in Courtroom 10 before the Honorable Gary S. Austin, United States Magistrate Judge. In scheduling such motions, the parties shall comply with Local Rules 78-230 and 56-260. IX. Pre-Trial Conference Date The pre-trial conference will be held on June 30, 2010, at 3:30 p.m. in Courtroom 10 before the Honorable Gary S. Austin, United States Magistrate Judge. The parties are ordered to file a Joint Pretrial Statement pursuant to Local Rule 16-281(a)(2). The parties are further directed to submit a digital copy of their pretrial statement in Word Perfect X31 format, directly to Judge Austin's chambers by email at [e-mail]. The parties' attention is directed to Rules 16-281 and 16-282 of the Local Rules of Practice for the Eastern District of California, as to the obligations of counsel in preparing for the pre-trial conference. The Court will insist upon strict compliance with those rules.

If WordPerfect X3 is not available to the parties then the latest version of WordPerfect or any other word processing program in general use for IBM compatible personal computers is acceptable. 6

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X.

Trial Date The trial will be held on October 5, 2010, at 9:00 a.m. in Courtroom 10 before

the Honorable Gary S. Austin, United States Magistrate Judge. A. B. This is a jury trial. Parties' Estimate of Trial Time: 10-15 days.

The parties' attention is directed to Local Rules of Practice for the Eastern District of California, Rule 16-285. XI. Settlement Conference A Settlement Conference is scheduled for July 7, 2010, at 10:00 a.m. in Courtroom 7 before the Honorable Sandra M. Snyder, United States Magistrate Judge. Unless otherwise permitted in advance by the Court, the attorneys who will try the case shall appear at the Settlement Conference with the parties and the person or persons having full authority to negotiate and settle the case on any terms2 at the conference. CONFIDENTIAL SETTLEMENT CONFERENCE STATEMENT At least five (5) court days prior to the Settlement Conference the parties shall submit, directly to Judge Snyder's chambers by e-mail to [e-mail], a Confidential Settlement Conference Statement. The statement should not be filed with the Clerk of the Court nor served on any other party, although the parties may file a Notice of Lodging of Settlement Conference Statement Each statement shall be clearly marked "confidential" with the date and time of the Settlement Conference indicated prominently thereon.

Insurance carriers, business organizations, and governmental bodies or agencies whose settlement agreements are subject to approval by legislative bodies, executive committees, boards of directors or the like shall be represented by a person or persons who occupy high executive positions in the party organization and who will be directly involved in the process of approval of any settlement offers or agreements. To the extent possible the representative shall have the authority, if he or she deems it appropriate, to settle the action on terms consistent with the opposing party's most recent demand. 7

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The Confidential Settlement Conference Statement shall include the following: A. A brief statement of the facts of the case. B. A brief statement of the claims and defenses, i.e., statutory or other grounds upon which the claims are founded; a forthright evaluation of the parties' likelihood of prevailing on the claims and defenses; and a description of the major issues in dispute. C. A summary of the proceedings to date. D. An estimate of the cost and time to be expended for further discovery, pretrial and trial. E. The relief sought. F. The party's position on settlement, including present demands and offers and a history of past settlement discussions, offers and demands. Should the parties desire a settlement conference, they will jointly request one of the court, and one will be arranged. In making such request, the parties are directed to notify the court as to whether or not they desire the undersigned to conduct the settlement conference or to arrange for one before another judicial officer. XII. Request for Bifurcation, Appointment of Special Master, or other Techniques to Shorten Trial The parties have not requested bifurcation; however, Defendants reserve the right to bifurcate in the event such bifurcation will serve judicial economy. XIII. Related Matters Pending There are no related matters currently pending. XIV. Compliance with Federal Procedure All counsel are expected to familiarize themselves with the Federal Rules of Civil Procedure and the Local Rules of Practice of the Eastern District of California, and to keep abreast of any amendments thereto. The Court must insist upon compliance with these Rules if it is to efficiently handle its increasing case load and sanctions will be imposed for failure to follow

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the Rules as provided in both the Federal Rules of Civil Procedure and the Local Rules of Practice for the Eastern District of California. XV. Effect of this Order The foregoing order represents the best estimate of the court and counsel as to the agenda most suitable to dispose of this case. The trial date reserved is specifically reserved for this case. If the parties determine at any time that the schedule outlined in this order cannot be met, counsel are ordered to notify the court immediately of that fact so that adjustments may be made, either by stipulation or by subsequent status conference. Stipulations extending the deadlines contained herein will not be considered unless they are accompanied by affidavits or declarations, and where appropriate attached exhibits, which establish good cause for granting the relief requested. Failure to comply with this order may result in the imposition of sanctions. IT IS SO ORDERED. Dated: 6i0kij

February 6, 2009

/s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE

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