Mayo v. Recycle to Conserve
Filing
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MEMORANDUM and ORDER granting in part and denying in part 9 Motion for Summary Judgment signed by Judge William B. Shubb on 6/10/11. (Kaminski, H)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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Plaintiff,
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NO. CIV. 2:10-629 WBS EFB
EDISON MAYO,
MEMORANDUM AND ORDER RE:
MOTION FOR SUMMARY JUDGMENT
OR, IN THE ALTERNATIVE,
SUMMARY ADJUDICATION OF CLAIMS
v.
RECYCLE TO CONSERVE, INC.,
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Defendant.
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Plaintiff Edison Mayo brought this action alleging race
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discrimination and retaliation against defendant Recycle to
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Conserve, Inc. (“RTC”).
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pursuant to Federal Rule of Civil Procedure 56.
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I.
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Defendant now moves for summary judgment
Factual and Procedural Background
Plaintiff, who is African-American, was a truck driver
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for defendant or its predecessor from 1997 or 1998 to October 30,
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2009, when he was involuntarily terminated.
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(Docket No. 24); Bolanos Decl. ¶ 3, Ex. 2 (plaintiff’s employee
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separation notice) (Docket No. 25).)
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(Mayo Decl. ¶ 2
Defendant purportedly
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terminated plaintiff because he was involved in a second driving
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accident in violation of defendant’s accident policy.
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Decl. in Supp. of Def.’s Mot. (“Odahl Decl.”) ¶¶ 4-11 (Docket No.
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9-4); McMullin Decl. in Supp. of Def.’s Mot. (“McMullin Decl.”)
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¶¶ 3-6 (Docket No. 9-5).)
(Odahl
Defendant, a nationwide company with multiple
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facilities, employed plaintiff at its Stockton, California,
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facility, at which fifteen to twenty employees worked.
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Decl. in Supp. of Def.’s Mot. (“Kennaday Decl.”) Ex. A (“Mayo
(Kennaday
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Dep. Tr.”) at 73:4-6, 74:14 (Docket No. 9-6).)
Plaintiff was one
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of only three drivers employed at that facility and the only
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African-American driver.
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Stockton facility were also African-American.
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Mayo Dep. Tr. at 73:24-74:2.)
Two non-driver employees at the
(Odahl Decl. ¶ 3;
In 2006 or 2007, defendant hired a Caucasian mechanic,
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Elwood Lindsey,1 for the Stockton facility.
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Lindsey, whose responsibilities included servicing plaintiff’s
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truck, called plaintiff names such as “coon-ass” and “coon-ass
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nigger.”
(Mayo Decl. ¶ 3.)
(Original2 Mayo Decl. ¶¶ 3-4 (internal quotation marks
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The record contains two spellings of this name: Lindsey
and Lindsay. Because declarations submitted by defendant use
“Lindsey,” (see Docket Nos. 9-4, 9-5), the court will also use
this spelling.
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At the hearing on defendant’s motion, plaintiff
requested, and the court granted, additional time to oppose the
motion. (Docket No. 21.) Plaintiff then filed a new opposition
memorandum, a new declaration by plaintiff, a new declaration by
plaintiff’s counsel, and a statement of undisputed facts.
(Docket Nos. 22-25). Defendant filed a new reply memorandum,
supplemental evidentiary objections, and a new reply regarding
its statement of undisputed facts. (Docket No. 26.) The court
then took the motion under submission.
The new declaration by plaintiff is nearly identical to
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omitted) (Docket No. 10); see also Mayo Dep. Tr. at 53:23-55:1,
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57:21-58:10 (discussing name calling); id. at 52:2-15 (describing
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incident in which Lindsey threw chain at plaintiff’s feet instead
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of handing it to plaintiff); Serpa Decl. ¶ 6 (“On many occasions
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[Lindsey] would engage in the practice of bringing things to
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[plaintiff] and then dropping them at his feet, and then looking
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at [plaintiff] like [plaintiff] needed to pick it up.”) (Docket
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No. 11); Mayo Dep. Tr. at 53:23-55:1 (describing incident in
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which plaintiff went into the shop and Lindsey “cuss[ed]
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[plaintiff],” called him “[c]oon ass,” told him to get out of the
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shop, “thr[ew] things,” “slamm[ed]” his toolbox, and “shoved in
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doors”).)
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Plaintiff states that Lindsey called him names such as
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“coon-ass” and “coon-ass nigger” “very, very often” and
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specifically recalls at least ten times.
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3 (internal quotation marks omitted in first and second
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quotations).)
(Original Mayo Decl. ¶
A co-employee, Joseph Serpa, states that Lindsey
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the declaration by plaintiff originally submitted in opposition
to the motion, with only one significant difference: Plaintiff’s
original declaration states that Lindsey called him “coon-ass”
and “coon-ass nigger,” whereas the new declaration states only
that Lindsey called him “coon-ass.” (Compare Original Mayo Decl.
¶ 3 (Docket No. 10), with Mayo Decl. ¶ 3 (Docket No. 24).)
It is not clear whether plaintiff intended his new
declaration to be the same as the original declaration or to
supplement or amend it. The court is guided by plaintiff’s
counsel’s citation to the original declaration in the new
opposition memorandum, specifically the “coon-ass nigger” term.
(Pl.’s Mem. in Opp’n at 3:22-23 (“He was called a ‘coon-ass
nigger’ . . . .”) (Docket No. 22).) Thus, the court will treat
both the original and new declarations as operative.
The court will treat the declaration by plaintiff’s coemployee Joseph Serpa, (Docket No. 11), as still operative, even
though plaintiff did not file it for a second time, because
plaintiff’s counsel cites Serpa’s declaration in the new
opposition memorandum. (Pl.’s Mem. in Opp’n at 3:22-25.)
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would “always talk badly about [plaintiff]” and referred to him
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as a “lazy, no-good nigger” approximately five to ten times in
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Serpa’s presence.
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omitted in second quotation).)
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(Serpa Decl. ¶ 3 (internal quotation marks
According to plaintiff, Lindsey also failed to properly
service plaintiff’s truck:
[H]e never repaired my truck in a timely fashion, and he
often did poor work repairing my truck.
In many
instances, he simply refused to undertake needed repairs
and I had to do the repairs myself or get the help of
other employees. Things that went wrong with the truck
included changing lights on the truck. As a driver, I
was not supposed to do my own repairs. But [Lindsey]
refused to make these repairs on my truck. And on those
occasions when he did actually perform the repairs, it
took a very long time, days and weeks, for him to do the
repairs.
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(Mayo Decl. ¶ 4; see also Mayo. Dep. Tr. at 60:13-62:6
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(describing one occasion in which plaintiff was not able to use a
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particular truck for approximately three weeks because Lindsey
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did not repair it).)
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Plaintiff claims that the Caucasian drivers received
better repairs:
I would see the white drivers take their trucks in for
repair, and then I would see the trucks come out of the
repair shop after repairs were done. From this, I am
able to conclude that their trucks were repaired, whereas
my truck never went into the repair shop to begin with,
despite my request for repairs.
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(Supplemental Mayo Decl. ¶ 3 (Docket No. 17).)
In the summer of 2007 or 2008, plaintiff first
complained about Lindsey to the general manager of the Stockton
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facility, Sean Odahl,3 a Caucasian.
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The parties agree that plaintiff complained to Odahl, but
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disagree on whether plaintiff complained that Lindsey’s conduct
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related to plaintiff’s race.
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(Mayo. Dep. Tr. at 51:6-7.)
Plaintiff claims that he complained to Odahl that
Lindsey “was racist against” plaintiff:
O’Dahl and I actually talked about how [Lindsey] was
racist against me.
In fact, O’Dahl told me that
[Lindsey] was racist, and had some kind of mental
problem, and that I should just “stay away” from him. We
discussed this on at least three or four occasions when
I would complain about [Lindsey].
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(Mayo Decl. ¶ 7; see also Mayo Dep. Tr. at 50:4-51:24, 58:20-22
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(discussing complaining about Lindsey’s “racist way” to Odahl),
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52:16-53:20 (discussing complaining to Odahl about the chain
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incident), 53:21-54:5, 55:2-7 (discussing complaining to Odahl
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about Lindsey telling plaintiff to leave the shop).
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Dep. Tr. at 55:2-7 (acknowledging that in complaining to Odahl
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about Lindsey telling plaintiff to leave the shop he did not tell
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Odahl that Lindsey called him “coon ass”), 58:20-22
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(acknowledging that he never told anyone in management that
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Lindsey had said “coon ass”).
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took a statement from him and Lindsey’s mistreatment continued.
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(Mayo Decl. ¶ 7.)
But see Mayo
Plaintiff states that Odahl never
Plaintiff also reported to Odahl on five or six
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occasions that Lindsey did not properly service plaintiff’s
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truck.
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(discussing complaining to Odahl about Lindsey’s failure to
(Mayo Decl. ¶ 6; see also Mayo Dep. Tr. at 60:13-62:9
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Plaintiff and Serpa’s declarations incorrectly spell
Odahl’s name as “O’Dahl.”
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repair truck for three weeks).)
According to plaintiff, Odahl
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never took a statement from plaintiff and “would always only say
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‘I will talk to him’ or ‘I will take care of it.’” (Mayo Decl. ¶
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6.)
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properly repair his truck despite his complaints to Odahl.
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Not only did Odahl fail to take a statement from
Plaintiff claims that Lindsey continued to refuse to
(Id.)
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plaintiff when he complained about Lindsey’s failure to repair
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his truck, plaintiff also perceived that Odahl was “getting
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annoyed”: “It’s just the way he was acting when I would come in
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and complain about this.
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it.”
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(describing Odahl’s responses to multiple complaints about
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Lindsey’s failure to repair truck for three weeks).)
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I’ll take care of it.
It’s nothing to
(Mayo Dep. Tr. at 60:11-15; see also id. at 61:14-21
With respect to Lindsey’s authority and relationship
with Odahl, plaintiff states:
[Lindsey] always tried to tell everyone what to
always tried to tell me what to do. He acted
supervisor.
O’Dahl never countermanded
[Lindsey’s] orders. Thus, to me it was like I
supervisors: both [Lindsey] and O’Dahl.
do. He
like my
any of
had two
I got the feeling that [Lindsey] and O’Dahl were close
friends. . . . They often talked together privately and
could be seen socializing at the yard.
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(Mayo Decl. ¶¶ 9-10.)
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that Lindsey “acted like he was the boss, like he had authority
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over Sean O’Dahl. [Lindsey] would often try and give us orders
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and tell us what to do.”
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Serpa, plaintiff’s co-employee, states
(Serpa Decl. ¶ 3.)
In his declaration, Odahl acknowledges that plaintiff
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complained to him about Lindsey “on several occasions.”
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Decl. ¶ 7.)
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Lindsey’s conduct was related to plaintiff’s race:
(Odahl
Odahl states that plaintiff did not complain that
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The nature of Mr. Mayo’s complaints were that he and Mr.
Lindsey were having a disagreement of some sort, or that
Mr. Lindsey was not fixing his truck as quickly as Mr.
Mayo would like.
Mr. Mayo never advised me that Mr.
Lindsey had made any comments of a racial nature to him,
nor did Mr. Mayo indicate that he believed Mr. Lindsey’s
actions toward him were based upon his race.
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(Id.)
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responded to those “several” complaints that Odahl acknowledges
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he received.
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Odahl’s declaration does not address how, if at all, he
In addition to his termination, plaintiff points to
other instances in which Odahl discriminated against him based on
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race during the course of his employment.
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Lindsey and Odahl “tried to blame [plaintiff] for allowing the
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truck to overheat and not bringing it in sooner.”
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5.)
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drivers better routes and better trucks.
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Plaintiff claims that
(Mayo Decl. ¶
Plaintiff also claims that Odahl assigned the Caucasian
(Id. ¶¶ 13-15.)
In August of 2005, defendant implemented a policy
related to accidents:
Simply stated, if you are involved in two (2) accidents
involving property damage or injury while operating
company equipment, your employment may be terminated.
This is in addition to the existing “zero-tolerance” drug
policy, which includes the provision that a positive
result from a single post-accident drug test can result
in termination as well.
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(McMullin Decl. Ex. A.)
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expressly contemplate whether an accident was a fault or no-fault
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accident, the “may” in the policy’s language suggests that
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termination was permissive following two accidents.
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While the policy does not appear to
In June of 2007, plaintiff was involved in an accident
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in which “the box” fell off of his truck when he turned left at a
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traffic light.
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evidence that Robert Standert, not Odahl, was the general manager
(Odahl Decl. ¶ 4, Ex. A.)
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It appears from the
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of the Stockton facility at the time of the first accident.
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While plaintiff testified that he understood that the accident
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counted as one accident under the accident policy, he testified
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that he did not think that after the 2007 accident a second
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accident could result in his termination.
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were that the accident was not his fault because “the box” was
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not appropriate for the truck and “there were other people that
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had plenty of accidents that were not terminated.”
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Dep. Tr. 21:10-23:25 (discussing first accident).)
Plaintiff’s reasons
(See Mayo
On October 13, 2009, plaintiff was involved in a second
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accident in which the “tractor jackknifed into the attached
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trailer.”
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27:13-25 (discussing second accident); Mayo Decl. ¶¶ 13-14
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(same)).
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the speed limit, at twenty-five miles per hour, and breaking as
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he approached a red light in wet or rainy conditions.
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Plaintiff’s position is the accident was not his fault because
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the breaks were faulty and locked when he pressed them.
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(Odahl Decl. ¶ 5, Ex. B; see also Mayo Dep. Tr. at
The accident occurred when plaintiff was driving below
Plaintiff refused to drive the truck back to the
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facility and Lindsey was dispatched to inspect the truck and
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drive it back.
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Lindsey had worked on the truck and had told plaintiff everything
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was “fine.”
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was not his fault and that the breaks were faulty, plaintiff
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states that he was told by another driver that the “sub-hauler”
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who assumed that route and truck following plaintiff’s accident
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refused to drive the truck until the breaks were fixed, and they
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were then fixed.
Plaintiff claims that a week before the accident
(Mayo Decl. ¶ 13.)
As evidence that the accident
Plaintiff and the other drivers had also
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previously discussed that the truck had problems.
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Plaintiff states that when he returned to the facility
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on the day of the second accident Odahl told plaintiff “that it
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was likely the case that the truck just malfunctioned, and that
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the brakes locked up.”
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Supervisor’s Incident Investigation Report places the blame on
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plaintiff:
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(Id. ¶ 13.)
Nonetheless, Odahl in his
Excessive braking in rainy conditions was the cause of
this accident. Of which the driver operating the vehicle
has total control. Given the fact that another driver
operated this very same vehicle after the incident in the
same rainy conditions safely, [sic] indicates that
excessive breaking and possible negligence was the root
cause of the accident.
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(Odahl Decl. Ex. B.)
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not find any mechanical problems with the truck.
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According to Odahl’s report, Lindsey did
(Id.)
Plaintiff claims he was not aware during the days
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following the accident that he could be terminated.
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Decl. ¶ 16.)
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over two weeks following the accident and to train a new driver.
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(Id.)
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the accident:
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(See Mayo
Defendant allowed plaintiff to continue driving for
However, Odahl initiated plaintiff’s termination following
Following Mr. Mayo’s second accident, I determined that
Mr. Mayo had violated RTC’s two-accident policy and
recommended that his employment be terminated based upon
his violation of that policy. I made my recommendation
to Robert McMullin, RTC’s President.
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(Odahl Decl. ¶ 6.)
Based upon Odahl’s recommendation, president
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of defendant, Robert McMullin, approved the termination of
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plaintiff.
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approved the termination based on plaintiff’s violation of the
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accident policy.
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following the accident, Odahl informed plaintiff of his
(McMullin Decl. ¶¶ 3-5.)
(Id.)
McMullin states that he
On October 30, 2009, over two weeks
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termination.
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termination meeting.)
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(See generally Mayo Dep. Tr. 45:1-46:19 (discussing
Plaintiff claims that the accident policy was applied
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differently to him than to other drivers.
Plaintiff’s
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declaration states that he is “personally aware” of four
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accidents involving Caucasian driver Ralph Lantz and a failed
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drug test following one of them, four accidents involving
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Caucasian driver Kevin Christian,4 including one in which
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Christian “ran his truck into [plaintiff’s] vehicle,” and several
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accidents involving Caucasian mechanic Lindsey driving
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defendant’s trucks.
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“backed into [plaintiff] with his truck into [plaintiff’s]
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company truck.”
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not even take a statement from him following the two accidents in
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which his vehicle was hit.
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applied unevenly and states that only Lantz was involved in one
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accident following implementation of the policy.
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8.)
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(Mayo Decl. ¶ 11.)
(Id. ¶ 12.)
On one occasion, Lindsey
Plaintiff claims that defendant did
Odahl disagrees that the policy was
(Odahl Decl. ¶
On March 16, 2010, plaintiff filed the instant action.
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(Docket No. 2.)
Plaintiff alleges claims for race discrimination
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and retaliation pursuant to Title VII of the Civil Rights Act of
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1964.
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also alleges a claim for violation of California Labor Code
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section 1102.5(c).
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II.
See 42 U.S.C. §§ 2000e-2(a)(1), 2000e-3(a).
Plaintiff
See Cal. Labor Code § 1102.5(c).
Discussion
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The record contains multiple spellings of this name:
Christian, Christiansen, and Christianson. Plaintiff’s
declaration uses “Christian.” The court will also use
“Christian.”
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Summary judgment is proper “if the movant shows that
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there is no genuine dispute as to any material fact and the
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movant is entitled to judgment as a matter of law.”
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P. 56(a).
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of the suit, and a genuine issue is one that could permit a
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reasonable jury to enter a verdict in the non-moving party’s
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favor.
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(1986).
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burden of establishing the absence of a genuine issue of material
Fed. R. Civ.
A material fact is one that could affect the outcome
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
The party moving for summary judgment bears the initial
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fact and can satisfy this burden by presenting evidence that
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negates an essential element of the non-moving party’s case.
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Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
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Alternatively, the moving party can demonstrate that the
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non-moving party cannot produce evidence to support an essential
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element upon which it will bear the burden of proof at trial.
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Id.
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Once the moving party meets its initial burden, the
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burden shifts to the non-moving party to “designate ‘specific
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facts showing that there is a genuine issue for trial.’”
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324 (quoting then-Fed. R. Civ. P. 56(e)).
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the non-moving party must “do more than simply show that there is
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some metaphysical doubt as to the material facts.”
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Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
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“The mere existence of a scintilla of evidence . . . will be
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insufficient; there must be evidence on which the jury could
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reasonably find for the [non-moving party].”
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at 252.
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Id. at
To carry this burden,
Matsushita
Anderson, 477 U.S.
In deciding a summary judgment motion, the court must
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view the evidence in the light most favorable to the non-moving
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party and draw all justifiable inferences in its favor.
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255.
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and the drawing of legitimate inferences from the facts are jury
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functions, not those of a judge . . . ruling on a motion for
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summary judgment . . . .”
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Id. at
“Credibility determinations, the weighing of the evidence,
A.
Id.
Evidentiary Objections
Federal Rule of Civil Procedure 56, as amended on
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December 1, 2010, now states that “[a] party may object that the
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material cited to support or dispute a fact cannot be presented
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in a form that would be admissible in evidence.”
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56(c)(2).
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explain that an objection to evidence on a motion for summary
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judgment “functions much as an objection at trial, adjusted for
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the pretrial setting.
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that the material is admissible as presented or to explain the
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admissible form that is anticipated.”
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notes on 2010 amendments.
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judgment evidence based on the “sham affidavit rule.”5
Fed. R. Civ. P.
The Advisory Committee notes to the amended rule
The burden is on the proponent to show
Id. advisory committee’s
A party may also object to summary
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“The general rule in the Ninth Circuit is that a party
cannot create an issue of fact by an affidavit contradicting his
prior deposition testimony.” Kennedy v. Allied Mut. Ins. Co.,
952 F.2d 262, 266 (9th Cir. 1991). “[I]f a party who has been
examined at length on deposition could raise an issue of fact
simply by submitting an affidavit contradicting his own prior
testimony, this would greatly diminish the utility of summary
judgment as a procedure for screening out sham issues of fact.”
Id. (quoting Foster v. Arcata Assocs., Inc., 772 F.2d 1453, 1462
(9th Cir. 1985)) (alteration in original) (internal quotation
marks omitted).
The sham affidavit rule may be invoked only if a
district court makes “a factual determination that the
contradiction was actually a ‘sham’” and “the inconsistency
between a party’s deposition testimony [or interrogatory
response] and subsequent affidavit . . . [is] clear and
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Following the filing of defendant’s thirteen objections
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to plaintiff’s original declaration and eight objections to
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plaintiff’s co-employee Serpa’s declaration, (Docket No. 15-1),
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the court continued the hearing and allowed plaintiff to file a
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response to the objections.
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allowed defendant to file a reply to plaintiff’s response.6
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(Docket No. 19.)
(Docket Nos. 16-18.)
The court
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1.
Plaintiff’s Original Declaration
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Defendant objects to statements in plaintiff’s original
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declaration pursuant to evidentiary rules governing personal
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knowledge, relevance, hearsay, legal conclusions, conclusory
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statements, and sham affidavits.
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governing personal knowledge and hearsay, the court sustains in
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full objections 3 and 7 and sustains in part objections 4-5, 8,
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and 9 to plaintiff’s original declaration.7
Based on evidentiary rules
The court overrules
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unambiguous.” Van Asdale v. Int’l Game Tech., 577 F.3d 989, 998
(9th Cir. 2009) (quoting Kennedy, 952 F.2d at 267) (internal
quotations marks omitted in first quotation). Accordingly, “the
non-moving party is not precluded from elaborating upon,
explaining or clarifying prior testimony elicited by opposing
counsel on deposition; minor inconsistencies that result from an
honest discrepancy, a mistake, or newly discovered evidence
afford no basis for excluding an opposition affidavit.” Messick
v. Horizon Indus., Inc., 62 F.3d 1227, 1231 (9th Cir. 1995).
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Defendant withdrew in part objection 2 to plaintiff’s
original declaration. Plaintiff withdrew plaintiff’s
objectionable statement in response to objection 12.
Defendant withdrew objection 1 to Serpa’s declaration.
Plaintiff expressly withdrew a statement in response to objection
2. The court finds that plaintiff implicitly withdrew Serpa’s
statements in response to objections 6-8 because plaintiff did
not respond to the objections despite expressly acknowledging
these three objections in his response.
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The court sustains the objections to the following
statements in plaintiff’s original declaration: (1) “[a]nother
driver also drove the truck, Kevin Christian, and it continued to
have problems” and “Kevin Christian is Caucasian, and he was not
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defendant’s objections to plaintiff’s original declaration in all
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other respects.
While the court declines to address each objection in
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detail, two statements, objections to which the court overrules,
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are particularly important to defendant’s motion and warrant
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analysis.
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based on the sham affidavit rule:
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First, defendant objects to the following statement
O’Dahl and I actually talked about how [Lindsey] was
racist against me.
In fact, O’Dahl told me that
[Lindsey] was racist, and had some kind of mental
problem, and that I should just “stay away” from him. We
discussed this on at least three or four occasions when
I would complain about [Lindsey].
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(Original Mayo Decl. ¶ 7.)
Defendant fails to recognize that, while plaintiff
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testified that he did not use the “exact words,” he told Odahl
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that “[Lindsey] was coming at [plaintiff] in a negative way, in
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a, in a racist way.”
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Plaintiff also testified that he told Odahl that Lindsey was
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saying things “he shouldn’t be saying” and “talking to
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[plaintiff] in a, in a bad way,” and that Odahl just told him to
(Id. at 50:6-11 (emphasis added).)
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even blamed for causing the problem”; (2) “[i]f a white driver
went to O’Dahl and asked for a repair or a different truck, the
white driver would get the work done”; (3) “O’Dahl never . . .
took any action against [Lindsey in response to my complaints
about repairs]”; (4) “whenever I brought my problems to O’Dahl
about [Lindsey’s failure to repair my truck], he never did
anything for me”; (5) “nothing was ever done [in response to my
complaints to Odahl that Lindsey was racist against me]: no
investigation, . . ., nothing”; (6) “O’Dahl never took any action
against [Lindsey] for anything he did to me”; (7) “[t]he company
did nothing [when Kevin Christian ran his truck into my vehicle].
. . . Nothing was ever done about it [when Lindsey had several
accidents driving company trucks]”; and (8) “no report was ever
made [when Lindsey ran his truck into plaintiff’s company
truck].” (Original Mayo Decl. ¶¶ 5-7, 10-12, 16.)
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not “worry about him, just play him off, stay away from him the
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best [plaintiff] [could].”
3
counsel asked if plaintiff “just” told Odahl that Lindsey was
4
“making negative comments,” plaintiff agreed but added: “You
5
know, [Odahl] got my point on how I said it.
6
what I was talking about. . . . His response was, you know, just
7
stay away from him, that’s kind of how he is.”
8
25.)
9
that Lindsey “was racist against” plaintiff is not in direct
(Id. at 50:1-3.)
When defendant’s
I mean, he knew
(Id. at 50:15-
In sum, plaintiff declaration statement that he told Odahl
10
contradiction to his deposition testimony.
11
Decl. ¶ 7.)
12
(See Original Mayo
Moreover, the number of times that plaintiff complained
13
about Lindsey’s racism, three or four times according to
14
plaintiff’s original declaration, is not in direct contradiction
15
to his deposition testimony.
16
precluded from elaborating upon, explaining or clarifying prior
17
testimony elicited by opposing counsel on deposition.”
18
v. Horizon Indus., Inc., 62 F.3d 1227, 1231 (9th Cir. 1995).
19
Second, defendant objects to plaintiff’s statement
“[T]he non-moving party is not
Messick
20
relating to Lantz’s and Christian’s accidents based on the sham
21
affidavit rule, personal knowledge, and hearsay:
22
23
24
25
26
27
28
I personally know of two other drivers who had two
accidents and were not terminated under the two accident
rule. They were white drivers. The two other drivers
are Ralph and Kevin Christian. Ralph had at least four
accidents that I am personally aware of, and had failed
a drug test after one of the accidents. But he was not
terminated. Kevin Christian had four accidents as well.
(Original Mayo Decl. ¶ 11.)
Defendant’s sham affidavit rule objection is based on
plaintiff providing a different number of accidents involving
15
1
Lantz and Christian at the deposition.
2
party is not precluded from elaborating upon, explaining or
3
clarifying prior testimony elicited by opposing counsel on
4
deposition.”
5
However, “the non-moving
Messick, 62 F.3d at 1231.
The court declines to find that plaintiff lacks
6
personal knowledge when plaintiff testified at the deposition
7
that Lantz and Christian told him about their accidents.
8
Mayo Dep. Tr. at 68:13-15, 69:8-10.)
9
declaration following defendant’s objections, plaintiff also
(See
In his supplemental
10
states: “I talked with these other drivers about their accidents.
11
We talked when we were at the yard, or on break.”
12
Mayo Decl. ¶ 5.)
13
that the accidents in fact occurred, plaintiff has personal
14
knowledge that Lantz and Christian told him about their
15
accidents.
16
(Supplemental
While plaintiff may not have personal knowledge
Lastly, with respect to whether plaintiff’s statement
17
contains inadmissible hearsay, there appears to be a number of
18
ways in which the evidence could be presented in an admissible
19
form at trial.
20
declaration: “I also know that these individuals do not want to
21
jeopardize their place in the company, but that if they are
22
forced to testify, that they would testify truthfully about their
23
accidents.”
24
original declaration states that he observed first-hand one of
25
Christian’s accidents because Christian “ran his truck into
26
[plaintiff’s] vehicle.”
27
28
First, plaintiff states in his supplemental
(Supplemental Mayo Decl. ¶ 5.)
Second, plaintiff’s
(Original Mayo Decl. ¶ 7.)
Third, Lantz’s and Christian’s out of court statements
about their accidents could be admissible as an admission by a
16
1
party-opponent.
2
that a statement is not hearsay if it is offered against a party
3
and is “a statement by the party’s agent or servant concerning a
4
matter within the scope of the agency or employment, made during
5
the existence of the relationship.”
6
Federal Rule of Evidence 801(d)(2)(d) provides
Fed. R. Evid. 801(d)(2)(d).
Fourth, even if the statements were not admissions by a
7
party-opponent, plaintiff could offer them for the limited
8
purpose of showing that defendant was on notice of the accidents,
9
not for the truth of the matter asserted, i.e., whether the
10
accidents in fact occurred.
See id. 801(c).
11
2.
Serpa’s Declaration
12
Defendant objects to statements in the declaration of
13
plaintiff’s co-employee Serpa based on evidentiary rules
14
governing hearsay, personal knowledge, and conclusory statements.
15
The court sustains the contested objections, objections 3-5, for
16
lack of personal knowledge.
17
3.
18
In connection with its new reply, defendant filed
Supplemental Objections
19
“supplemental” objections to plaintiff’s new declaration, Serpa’s
20
declaration, and plaintiff’s counsel’s new declaration, although
21
defendant acknowledges that the objections only “reiterate its
22
evidentiary objections in relation to the ‘new,’ but
23
substantially unchanged, submissions by Plaintiff.”
24
Supplemental Evidentiary Objections at 1:21-22 (Docket No. 26-
25
2).)
26
(Def. RTC’s
Defendant’s objections to plaintiff’s new declaration
27
merely repeat the same objections it made to plaintiff’s original
28
declaration, which is understandable because the two declarations
17
1
are nearly identical.
The only truly supplemental objection to
2
plaintiff’s new declaration is based on the assumption that
3
plaintiff’s original declaration has been superseded.
4
RTC’s Supplemental Evidentiary Objections at 4:14-5:1 (objecting
5
to plaintiff’s statement that Lindsey called him “coon ass”
6
because plaintiff’s original declaration states that plaintiff
7
called him “coon-ass” and “coon-ass nigger”).)
8
plaintiff’s counsel cites the original declaration in his new
9
opposition memorandum, (see Pl.’s Mem. in Opp’n at 3:22-23
(See Def.
However, because
10
(Docket No. 22)), the court treats both plaintiff’s original and
11
new declaration as operative.
12
Defendant’s objections to Serpa’s declaration are
13
identical to objections upon which the court has previously
14
ruled.
The only other truly supplemental objection is to
15
16
plaintiff’s counsel’s new declaration statement8 describing an
17
attached exhibit.
18
sustains this objection.
19
B.
20
Based on the original document rule, the court
Merits
Plaintiff’s claims for race discrimination and
21
retaliation under Title VII are subject to the McDonnell Douglas
22
burden-shifting analysis used at summary judgment to determine
23
whether there are triable issues of fact for resolution by a
24
jury.
See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
25
26
27
28
8
Plaintiff’s counsel states: “plaintiff discovered a
court-filed document from San Joaquin County Superior Court in
which one of the company’s Caucasian drivers, Kevin Christian,
was involved in an accident while on company time, and using a
company truck, causing property damage . . . .” (Bolanos Decl. ¶
6 (Docket No. 25).)
18
1
2
3
4
5
6
Under McDonnell Douglas,
a plaintiff must first establish a prima facie case of
discrimination [or other illegal conduct]. The burden
then shifts to the employer to articulate a legitimate,
nondiscriminatory reason for its employment action. If
the employer meets this burden, the presumption of
intentional discrimination [or other illegal conduct]
disappears, but the plaintiff can still prove disparate
treatment
by,
for
instance,
offering
evidence
demonstrating that the employer’s explanation is
pretextual.
7
8
Raytheon Co. v. Hernandez, 540 U.S. 44, 50 n.3 (2003) (citations
9
omitted).
“[A] plaintiff can prove pretext in two ways: (1)
10
indirectly, by showing that the employer’s proffered explanation
11
is ‘unworthy of credence’ because it is internally inconsistent
12
or otherwise not believable, or (2) directly, by showing that
13
unlawful discrimination more likely motivated the employer.”9
14
Chuang v. Univ. of Cal. Davis, Bd. of Trustees, 225 F.3d 1115,
15
1127 (9th Cir. 2000) (quoting Godwin v. Hunt Wesson, Inc., 150
16
F.3d 1217, 1220 (9th Cir. 1998)).
17
1.
18
Plaintiff has the burden of establishing a prima facie
Race Discrimination
19
20
21
22
23
24
25
26
27
28
9
Earlier case law suggests that circumstantial evidence
to show pretext must be “specific” and “substantial.” See e.g.,
Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1222 (9th Cir. 1998).
The “specific” and “substantial” evidence requirement has been
questioned in light of Desert Palace, Inc. v. Costa, 539 U.S. 90
(2003), in which the Supreme Court recognized that circumstantial
evidence may be “more certain, satisfying and persuasive than
direct evidence.” Id. at 100; see Cornwell v. Electra Cent.
Credit Union, 439 F.3d 1018, 1030-31 (9th Cir. 2006) (questioning
the continued viability of Godwin and “conclud[ing] that in the
context of summary judgment, Title VII does not require a
disparate treatment plaintiff relying on circumstantial evidence
to produce more, or better, evidence than a plaintiff who relies
on direct evidence”); McGinest v. GTE Serv. Corp., 360 F.3d 1103,
1124 (9th Cir. 2004) (holding that a disparate treatment
plaintiff can defeat summary judgment motion relying on
circumstantial evidence).
19
1
case by showing that “(1) he is a member of a protected class;
2
(2) he was qualified for his position; (3) he experienced an
3
adverse employment action; and (4) similarly situated individuals
4
outside his protected class were treated more favorably, or other
5
circumstances surrounding the adverse employment action give rise
6
to an inference of discrimination.”
7
Co., 358 F.3d 599, 603 (9th Cir. 2004).
8
held that a plaintiff’s burden in establishing a prima facie case
9
of discrimination is “minimal.”
10
F.3d 1090, 1094 (9th Cir. 2005).
Peterson v. Hewlett-Packard
The Ninth Circuit has
Coghlan v. Am. Seafoods Co., 413
Plaintiff is an African-American who was terminated,
11
12
thus satisfying the first and third elements for prima facie race
13
discrimination.
14
the second element, which requires that he was qualified for his
15
position, because “Plaintiff was not performing competently at
16
the time of his termination.
17
accidents which damaged Company property and which violated RTC’s
18
two-accident policy.”10
19
at 5:12-14 (Docket No. 9-1).)
Defendant argues that plaintiff does not satisfy
Specifically, Plaintiff had two
(Mem. of P. & A. in Supp. of Def.’s Mot.
However, plaintiff has pointed to
20
21
22
23
24
25
26
27
28
10
On its face, defendant’s argument that plaintiff is not
qualified is the same argument that it had a legitimate,
nondiscriminatory reason for terminating plaintiff: violation of
defendant’s accident policy. See, e.g., Gosho v. U.S. Bancorp
Piper Jaffray Inc., No. 00-1611, 2002 WL 34209804, at *3 (N.D.
Cal. Oct. 1, 2002) (defendant argued that plaintiff was not
qualified because plaintiff violated defendant’s policies).
However, defendant’s argument that plaintiff is not qualified is
slightly different because defendant seems to argue that even if
it did not have an accident policy, plaintiff would be
unqualified because he was performing incompetently, i.e., he was
at fault for his accidents.
Even if defendant’s qualification argument were
identical to its legitimate, nondiscriminatory reason, the court
would find that plaintiff has met his burden.
20
1
evidence suggesting that the accidents were not his fault.
2
Mayo Dep. Tr. 21:10-23:25, 27:13-25; Mayo Decl. ¶¶ 13-14.)
3
Moreover, with regards to his qualifications, plaintiff states:
4
5
6
7
(See
I am a truck driver with a Class A license in good
standing and all endorsements. I have been a certified
and licensed truck driver for approximately thirteen
years. During my entire career, I was never disciplined
or written-up [sic] and every year I always received a
raise. I also have received a bonus for good driving in
2006.
8
(Mayo Decl. ¶ 2.)
9
evidence to satisfy the second element of prima facie race
10
11
Thus, plaintiff has presented sufficient
discrimination.
Plaintiff has satisfied the final element of prima
12
facie race discrimination that “similarly situated individuals
13
outside his protected class were treated more favorably.”
14
Peterson, 358 F.3d at 603.
15
16
17
18
19
20
Plaintiff states in his declaration:
I personally know of two other drivers who had two
accidents and were not terminated under the two accident
rule. They were white drivers. The two other drivers
are Ralph and Kevin Christian. Ralph had at least four
accidents that I am personally aware of, and had failed
a drug test after one of the accidents. But he was not
terminated. Kevin Christian had four accidents as well.
In fact, on one occasion he ran his truck into my
vehicle. I had to take him to court for that. . . . No
statements were taken [by defendant]. Kevin Christian is
white.11
21
(Mayo Decl. ¶ 11.)
Plaintiff’s supplemental declaration adds
22
that plaintiff was told about these accidents by Lantz and
23
Christian “when [they] were at the yard, or on break.”
24
(Supplemental Mayo Decl. ¶ 5.)
Plaintiff claims that he “know[s]
25
26
27
28
11
Plaintiff also states that Lindsey was involved in
accidents. However, Lindsey was a mechanic and thus not
similarly situated to plaintiff. See Vasquez v. Cnty. of Los
Angeles, 349 F.3d 634, 641 (9th Cir. 2003) (“[I]ndividuals are
similarly situated when they have similar jobs and display
similar conduct.”).
21
1
that these individuals do not want to jeopardize their place in
2
the company, but that if they were forced to testify, that they
3
would testify truthfully about their accidents.”
4
(Id.)
To satisfy this final element of a prima facie race
5
discrimination claim, the evidence need only be “minimal.”
6
Coghlan, 413 F.3d at 1094.
7
adequate evidence to establish at the prima facie stage that
8
similarly situated employees were treated differently.
9
Singson v. Farber, No. C 09-5023, 2010 WL 5399217, at *10 (N.D.
10
Cal. Dec. 23, 2010) (holding that race discrimination plaintiff
11
who was disciplined for violating internal policy did not have to
12
provide “specific evidence of other individuals” who violated
13
policy and “who were treated differently” to establish a prima
14
facie case).
15
established a prima facie case of race discrimination.
16
Plaintiff has provided more than
See
Accordingly, the court finds that plaintiff has
Defendant has offered a legitimate, nondiscriminatory
17
reason for plaintiff’s termination.
Defendant presents evidence
18
that plaintiff was involved in two accidents in violation of
19
defendant’s accident policy.
20
Odahl, general manager of the Stockton facility, recommended
21
plaintiff’s termination and McMullin, president of defendant,
22
approved the termination.
23
McMullin Decl. Ex. A.)
24
that defendant terminated plaintiff because of his race “drops
25
out of the picture.”
26
F.3d 1018, 1032 (9th Cir. 2006) (quoting Reeves v. Sanderson
27
Plumbing Prods., Inc., 530 U.S. 133, 143 (2000)) (internal
28
quotation marks omitted).
Subsequent to the second accident,
(See Odahl Decl. ¶¶ 4-5, Exs. A-B;
Thus, the McDonnell Douglas presumption
Cornwell v. Electra Cent. Credit Union, 439
22
1
Plaintiff has presented sufficient evidence that
2
defendant’s proffered legitimate, nondiscriminatory reason is
3
pretextual.
4
was applied differently to two similarly situated Caucasians,
5
Lantz and Christian, as discussed above.
6
Los Angeles, 349 F.3d 634, 641 (9th Cir. 2003) (“A showing that
7
the County treated similarly situated employees outside Vasquez’s
8
protected class more favorably would be probative of pretext.”);
9
id. (“[I]ndividuals are similarly situated when they have similar
10
Plaintiff presents evidence that the accident policy
See Vasquez v. Cnty. of
jobs and display similar conduct.”).
11
In response to plaintiff’s claims, Odahl’s declaration
12
only offers qualified, conclusory statements about whether Lantz
13
and Christian were involved in accidents as defined under the
14
policy:
15
16
17
18
19
20
21
22
To my knowledge, no other driver at the Stockton facility
has been involved in two accidents involving property
damage or injury while operating Company equipment
following implementation of the two-accident policy,
other than Mr. Mayo. I understand that Mr. Mayo claims
that Mr. Lindsey, Mr. Christian, and Mr. Lantz were
involved in two accidents at some point in time. Mr.
Lindsey is not a driver and RTC’s two-accident policy
applies only to drivers. Moreover, to my knowledge, Mr.
Lindsey has not been involved in any accidents involving
injury or property damage since the two-accident policy
was implemented. Mr. Christiansen has not been involved
in any accidents following implementation of the
two-accident policy, and Mr. Lantz was involved in only
one accident following implementation of the two-accident
policy.
23
24
25
(Odahl Decl. ¶ 8.)
It does not appear that Odahl even has personal
26
knowledge on this issue.
It appears that Odahl was not the
27
facility’s general manager the entire period that the accident
28
policy had been in effect.
The policy was implemented in August
23
1
of 2005.
2
had been his supervisor for only two or three years.
3
Tr. at 18:6-8.)
4
his first accident in June of 2007 the general manager was
5
Standert, not Odahl.
6
from Standert, other former general managers, or declarations
7
from Lantz and Christian themselves.
8
been presented to the court.
9
When plaintiff was terminated in October of 2009, Odahl
(Mayo Dep.
As noted earlier, when plaintiff was involved in
Defendant has not submitted declarations
No documentary evidence has
A jury could reasonably infer that, if defendant’s
10
reason for terminating plaintiff was a violation of the accident
11
policy, defendant would not have permitted plaintiff to continue
12
driving for over two weeks and to train a new driver.
13
did defendant permit plaintiff to continue working as usual,
14
defendant did not even suggest to plaintiff that he could be
15
terminated under the accident policy.
Not only
16
Further, the notion that defendant had no choice but to
17
terminate plaintiff “may reasonably appear to be an overstatement
18
sounding in pretext.”
19
Civ. 08-1383 WBS KJM, 2009 WL 3644867, at *12 (E.D. Cal. Nov. 2,
20
2009).
21
providing that two accidents “may” result in termination.
22
(McMullin Decl. Ex. A.)
23
discretionary nature of the accident policy.
24
implies that he was required to recommend plaintiff’s termination
25
following plaintiff’s second accident.
26
Defendant’s president makes a similar implication.
27
¶ 4.)
Rosales v. Career Sys. Develop. Corp., No.
The accident policy appears to be discretionary,
Odahl does not even acknowledge the
28
24
Odahl’s declaration
(See Odahl ¶ 6.)
(See McMullin
Even if Odahl12 and McMullin had stated that they
1
2
decided to exercise their discretion under the accident policy
3
because plaintiff was at fault for his two accidents,13 the court
4
would still find sufficient evidence of pretext.
5
the blame on plaintiff in his Supervisor’s Incident Investigation
6
Report.
7
accident “that it was likely the case that the truck just
8
malfunctioned, and that the brakes locked up.”
9
13.)
Odahl placed
However, Odahl told plaintiff immediately after the
(Mayo Decl. ¶
Thus, a reasonable jury could find that defendant was not
10
actually motivated by plaintiff’s fault in light of these
11
inconsistent statements.
12
A reasonable jury could also find that Odahl did not
13
believe Lindsey when Lindsey essentially told Odahl that
14
plaintiff was at fault for the second accident.
15
for blaming plaintiff is what Lindsey had told Odahl following
16
the accident: Lindsey had been able to drive the truck back
17
safely to the facility and had not found mechanical problems.
Odahl’s basis
18
19
20
21
22
23
24
25
26
27
28
12
Defendant has not argued that Odahl’s motivation is not
imputed to McMullin, who approved Odahl’s recommendation to
terminate plaintiff. See Galdamez v. Potter, 415 F.3d 1015, 1026
n.9 (9th Cir. 2005) (“Title VII may still be violated where the
ultimate decision-maker, lacking individual discriminatory
intent, takes an adverse employment action in reliance on factors
affected by another decision-maker’s discriminatory animus.”).
Cf. Poland v. Chertoff, 494 F.3d 1174, 1182 (9th Cir. 2007) (“We
hold that if a subordinate, in response to a plaintiff's
protected activity, sets in motion a proceeding by an independent
decisionmaker that leads to an adverse employment action, the
subordinate’s bias is imputed to the employer if the plaintiff
can prove that the allegedly independent adverse employment
decision was not actually independent because the biased
subordinate influenced or was involved in the decision or
decisionmaking process.”).
13
In their declarations, Odahl and McMullin do not
mention fault.
25
1
However, Odahl knew that plaintiff had complained on three or
2
four occasions that Lindsey “was racist against” plaintiff and
3
had complained on five or six occasions that Lindsey failed to
4
properly service plaintiff’s truck.
5
to plaintiff and his co-employee Serpa, Odahl and Lindsey
6
appeared to be “close friends” and Odahl did not “countermand[]”
7
orders from Lindsey, who acted as if he had authority to make
8
orders.14
9
(Mayo Decl. ¶ 7.)
According
(Id. ¶¶ 9-10.)
Other evidence suggesting pretext includes Odahl’s
10
failure to respond to plaintiff’s complaints about the quality of
11
Lindsey’s truck repairs.
12
(explaining that a reasonable jury could conclude that
13
defendant’s CEO’s treatment of plaintiff, specifically a lack of
14
interaction with plaintiff, in the months preceding plaintiff’s
15
demotion, resulted from racial animus).
16
statement from plaintiff and even appeared to be annoyed by some
17
of plaintiff’s complaints.
18
to receive repairs for his truck continued following his
19
complaints to Odahl.
20
received repairs.
Odahl did not take a
Plaintiff states that his inability
On the other hand, the Caucasian drivers
(See Supplemental Mayo Decl. ¶ 3.)
Plaintiff also claims that Odahl gave the other drivers
21
22
See Cornwell, 439 F.3d at 1032
better routes and trucks.
According to plaintiff, the other
23
24
25
26
27
28
14
Additionally, if defendant based its termination of
plaintiff on plaintiff’s fault for the accident, a reasonable
jury could find that Lindsey made the determination that
plaintiff was at fault, and that Odahl did not make an
independent determination. Cf. Willis v. Marion Cnty. Auditor’s
Office, 118 F.3d 542, 548 (7th Cir. 1997) (indicating that, when
the decision-maker conducts an independent evaluation of the
employee’s alleged policy violations, the subordinate’s
discriminatory motive is not attributed to the employer).
26
1
drivers told him that they did not want the Cottage Bakery route
2
or the “very old trailer” assigned to that route.
3
Decl. ¶¶ 13-14.)
4
to take the route and trailer.
5
quit, plaintiff “had to assume” both that driver’s route and the
6
Cottage Bakery route.
7
decided to return, he was allowed to resume his old route and
8
plaintiff “was forced to again take the route none of the other
9
white drivers wanted,” the Cottage Bakery route.
(See Mayo
Plaintiff claims that Odahl “forced” plaintiff
(Id. ¶ 14.)
(Id. ¶ 15.)
When another driver
However, when that driver
(Id.)
10
Plaintiff was told by another driver after his second accident
11
that the “route was [later] assigned to a sub-hauler because none
12
of the other drivers wanted the route or to use the trailer.”
13
(Id. ¶ 14.)
14
In sum, plaintiff has presented evidence sufficient to
15
create a genuine issue of material fact regarding the motivation
16
behind his termination.
17
defendant’s motion for summary judgment as it relates to the race
18
discrimination claim.
19
2.
20
Defendant argues that plaintiff failed to exhaust his
Accordingly, the court will deny
Retaliation
21
retaliation claim.
“A person seeking relief under Title VII must
22
first file a charge with the [Equal Employment Opportunity
23
Commission [(“EEOC”)] within 180 days of the alleged unlawful
24
employment practice . . . .”
25
518 F.3d 1097, 1104 (9th Cir. 2008).
26
agreement, a charge filed with the [Department of Fair Employment
27
and Housing] is deemed constructively filed with the EEOC,
28
because the EEOC and DFEH cross-designate the other as its agent
Surrell v. Cal. Water Serv. Co.,
27
“Under [a] workshare
1
for the purpose of receiving charges.”
EEOC v. Dinuba Med.
2
Clinic, 222 F.3d 580, 585 (9th Cir. 2000).
“Even when an employee seeks judicial relief for claims
3
4
not listed in the original EEOC charge, the complaint
5
‘nevertheless may encompass any discrimination like or reasonably
6
related to the allegations of the EEOC charge.’”
7
Oakland Unified Sch. Dist., 291 F.3d 632, 636 (9th Cir. 2002)
8
(quoting Oubichon v. N. Am. Rockwell Corp., 482 F.2d 569, 571
9
(9th Cir. 1973)).
Freeman v.
Allegations are “reasonably related” if they
10
either “fell within the scope of the EEOC’s actual investigation
11
or an EEOC investigation which can reasonably be expected to grow
12
out of the charge of discrimination.”
13
Maui Police Dep’t, 276 F.3d 1091, 1100 (9th Cir. 2002)) (internal
14
quotation marks omitted).
15
factors as the alleged basis of the discrimination, dates of
16
discriminatory acts specified within the charge, perpetrators of
17
discrimination named in the charge, and any locations at which
18
discrimination is alleged to have occurred.”
19
B.K.B., 276 F.3d at 1100).
20
Id. (quoting B.K.B. v.
“[I]t is appropriate to consider such
Id. (quoting
Here, defendant has provided a copy of the
21
administrative complaint filed with the DFEH.
22
Ex. C.)
23
was terminated because of his race and age.
24
not allege termination in retaliation for engaging in protected
25
activity.
26
(Kennaday Decl.
The complaint filed with the DFEH alleged that plaintiff
The complaint did
The court finds that an investigation into whether
27
plaintiff was terminated to retaliate against plaintiff for
28
engaging in protected activity could not “reasonably be expected
28
1
to grow out of the charge” that defendant terminated plaintiff
2
because of his race.
3
276 F.3d at 1100).
4
VII retaliation claim.
5
00-3301SI, 2001 WL 1658289, at *6 (N.D. Cal. Dec. 6, 2001) (“The
6
claim of retaliation is not like or reasonably related to the
7
allegations in his EEOC charge, which focused solely on his claim
8
that he was harassed and discharged based on his race.”); Barron
9
v. United Air Lines, Inc., No. C 92 1364, 1993 WL 140630, at *6
Freeman, 291 F.3d at 636 (quoting B.K.B.,
Thus, plaintiff has not exhausted his Title
See Latu v. Am. Airlines, No. C
10
(N.D. Cal. Apr. 20, 1993); see also Miles v. Dell, Inc., 429 F.3d
11
480, 492 (4th Cir. 2005); Wallin v. Minn. Dep’t of Corr., 153
12
F.3d 681, 688 (8th Cir. 1998); Beane v. Agape Mgmt. Servs., Inc.,
13
C/A No. 3:08-3445, 2009 WL 2476629, at *3 (D.S.C. Aug. 11, 2009);
14
Donald v. BWX Techs., Inc., Civil No. 6:09CV00028, 2009 WL
15
2170170, at *3 (W.D. Va. July 21, 2009); Figueroa v. Riverbay
16
Corp., No. 06 CIV. 5364, 2006 WL 3804581, at *5 (S.D.N.Y. Dec.
17
22, 2006); Dowlatpanah v. Wellstar Douglas Hosp., Civil Action
18
No. 1:05-CV-2752, 2006 WL 4093123, at *13 (N.D. Ga. Dec. 5, 2006)
19
(magistrate judge’s findings and recommendations), adopted by No.
20
1:05-cv-2752, 2007 WL 639875 (Feb. 26, 2007); Hudgens v. Wexler &
21
Wexler, 391 F. Supp. 2d 634, 649 (N.D. Ill. 2005).
22
Under some facts, retaliation can be reasonably related
23
to discrimination based on race.
24
340 F.3d 735, 748 (8th Cir. 2008) (noting in dicta that an
25
allegation in an administrative complaint that defendant wanted
26
to terminate plaintiff because she could only work 40 hours per
27
week because of her “condition” arguably provides notice that
28
retaliatory discharge is alleged); Amin v. Akzo Nobel Chems.,
29
Cf. Russell v. TG Mo. Corp.,
1
Inc., 282 Fed. App’x 958, 961 (2d Cir. 2008) (holding that
2
because relevant evidence of defendant’s stated reason for
3
discharging plaintiff would include performance reviews, which
4
included documents in which plaintiff complained that defendant
5
engaged in discriminatory practices, the EEOC investigation into
6
discharge based on national origin would “reasonably be expected
7
to assess whether his complaints to Akzo of discrimination on
8
that basis played a role in Akzo’s decision to discharge him”);
9
Hudson v. Chertoff, No. C05-01735RSL, 2007 WL 2288062, at *7
10
(W.D. Wash. Aug. 3, 2007) (“Plaintiff’s unsworn declaration and
11
formal complaint contain a multitude of references to concerns
12
that he was terminated in response to his efforts to obtain
13
accommodations for his disability.”), aff’d on other grounds, 304
14
Fed. App’x 540 (9th Cir. 2008).
15
There are no such facts here, however.
Plaintiff makes
16
no meaningful attempt to argue that the administrative complaint
17
for termination based on race is reasonably related to a claim
18
for termination based on retaliation.
19
incorrectly describes the content of the administrative complaint
20
and argues that the incorrect version of the administrative
21
complaint “clearly relates” to his retaliation claim: “Here,
22
Mayo’s complaint about persistent race discrimination even in the
23
face of repeated complaints clearly relates to a claim for
24
retaliation for opposing race discrimination.”
25
Opp’n at 12:26-13:1.)
26
complaint only alleged that he had been terminated because of his
27
race; plaintiff’s administrative complaint did not allege
28
“persistent race discrimination.”
Instead, plaintiff
(Pl.’s Mem. in
However, plaintiff’s administrative
30
The administrative complaint
1
also makes no mention of plaintiff complaining to defendant about
2
race discrimination.
3
reasonably related to plaintiff’s administrative complaint and
4
thus plaintiff did not exhaust his administrative remedies, the
5
court will grant summary judgment in favor of defendant on this
6
claim.
Because the retaliation claim is not
7
3.
8
Section 1102.5(c) provides that “[a]n employer may not
9
Violation of California Labor Code Section 1102.5
retaliate against an employee for refusing to participate in an
10
activity that would result in a violation of state or federal
11
statute, or a violation or noncompliance with a state or federal
12
rule or regulation.”
13
not presented evidence that he refused “to participate in an
14
activity that would result in a violation of state or federal
15
statute, or a violation or noncompliance with a state or federal
16
rule or regulation.”
17
defendant’s motion for summary judgment as to this claim.
18
Cal. Labor Code § 1102.5(c).
Id.
Plaintiff has
Accordingly, the court will grant
IT IS THEREFORE ORDERED that defendant’s motion for
19
summary judgment be, and the same hereby is, GRANTED with respect
20
to plaintiff’s claims for Title VII retaliation and violation of
21
California Labor Code section 1102.5(c) and DENIED with respect
22
to plaintiff’s claim for Title VII race discrimination.
23
DATED:
June 10, 2011
24
25
26
27
28
31
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