Brazill v. California Northstate College of Pharmacy, LLC et al
Filing
34
ORDER signed by Senior Judge William B. Shubb on 6/4/13 ORDERING that California Northstate College of Pharmacy, LLC's #29 Motion for Summary Judgment is DENIED as to plaintiff's ADEA, FEHA and wrongful termination claims and GRANTED as to plaintiff's FCA claim. California Northstate University, LLC's #29 Motion for Summary Judgment is GRANTED. (Manzer, C)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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----oo0oo---11
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BRADLEY BRAZILL,
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NO. CIV. 2:12-1218 WBS GGH
Plaintiff,
MEMORANDUM AND ORDER RE: MOTION
FOR SUMMARY JUDGMENT OR,
ALTERNATIVELY, PARTIAL SUMMARY
JUDGMENT
v.
CALIFORNIA NORTHSTATE COLLEGE OF
PHARMACY, LLC, CALIFORNIA
NORTHSTATE UNIVERSITY, LLC, and
DOES 1 through 10, inclusive,
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Defendants.
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/
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----oo0oo---Plaintiff Bradley Brazill brings this action against
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defendants California Northstate College of Pharmacy, LLC
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(“College”), and California Northstate University, LLC (“CNU”),
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arising from defendants’ allegedly wrongful conduct related to
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the termination of plaintiff’s employment.
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claims: (1) age discrimination under the Age Discrimination in
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Employment Act (“ADEA”), 29 U.S.C. §§ 621-634; (2) age
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discrimination under the California Fair Employment and Housing
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Plaintiff brings four
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Act (“FEHA”), Cal. Gov’t Code §§ 12900-12996; (3) retaliation
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under the False Claims Act (“FCA”), 31 U.S.C. § 3730(h); and (4)
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wrongful termination in violation of public policy on the basis
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of violations of the ADEA, FEHA, and FCA.
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(Docket No. 10.)
Presently before the court is defendants’ motion for
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summary judgment or, alternatively, partial summary judgment
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pursuant to Federal Rule of Civil Procedure 56.
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I.
(Docket No. 29.)
Factual and Procedural Background
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The College is a private pharmacy college located in
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Rancho Cordova, California.1
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8).)
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is its Vice President and Director of Operations, (Fong Decl. ¶ 1
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(Docket No. 29-12).)
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as Chair of the Department for Clinical and Administrative
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Sciences.
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two years old at the time.
(Cheung Decl. ¶ 2 (Docket No. 29-
Alvin Cheung is its President, (id. ¶ 1), and Norman Fong
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In April 2009, the College hired plaintiff
(Brazill Decl. ¶ 3 (Docket No. 30-2).)
He was fifty-
(Id.)
During his employment, plaintiff came to believe that
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College students were using federal student aid from Davenport
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University to pay for College expenses.2
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Besides discussing his concerns about this practice with other
(See id. ¶ 15.)
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CNU was formed on December 19, 2011. (Cheung Decl. ¶ 7
(Docket No. 29-8).) It is a separate entity from the College.
(Id.) Defendants contend that because CNU was formed after
plaintiff was hired, it cannot be his employer. Defendants then
argue that because each of the statutes under which plaintiff
brings claims imposes liability only on an aggrieved party’s
employer, summary judgment must be granted in CNU’s favor on all
of plaintiff’s claims. Plaintiff does not oppose CNU’s motion.
(Opp’n at 1:21 n.1 (Docket No. 30).) CNU’s motion for summary
judgment will therefore be granted.
2
Defendants’ objections to the evidence underlying this
fact on the grounds of hearsay, foundation, relevance, and the
sham affidavit rule are overruled.
2
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College employees, plaintiff told his supervisor, Dean David
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Hawkins, several times that the practice was “illegal.”3
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However, he never expressed his concerns about the issue to
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President Cheung or Vice President Fong.
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(“Brazill Dep.”) at 141:7-13, 142:4-8 (Docket No. 29-5); Cheung
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Decl. ¶ 12; Fong Decl. ¶¶ 3-4.)
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(Id.)
(Munoz Decl. Ex. 10
President Cheung made the decision to terminate
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plaintiff in July 2011.
(Cheung Decl. ¶¶ 13, 16.)
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President Cheung, the basis for this decision was that plaintiff
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created a conflict of interest by hiring faculty to work in his
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private pharmacy, treated another faculty member inappropriately,
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and vented his frustrations about the College’s administration
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during a visit from an accreditation organization.
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13.)
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¶ 3.)
Plaintiff was terminated on July 15, 2011.
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According to
(See id. ¶
(Brazill Decl.
After plaintiff’s termination, Dean Hawkins hired Sonya
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Frausto, an assistant professor, to fill plaintiff’s former
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position as Chair of the Department for Clinical and
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Administrative Sciences.
20
Dep.”) at 56:8-13 (Docket No. 29-5).)
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old at the time.
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56:8-13 (Docket No. 29-6).)
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position was interim or permanent.
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25
(See Munoz Decl. Ex. 12 (“Hawkins
She was thirty-six years
(See Munoz Decl. Ex. 13 (“Frausto Dep.”) at
The parties dispute whether her
Sometime later, Dean Hawkins replaced Frausto with
James Palmieri, another faculty member at the College.
(See id.
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Defendants’ objections on the grounds of hearsay,
foundation, and relevance to the evidence underlying this fact
are overruled.
3
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at 58:23-24.)
Palmieri was fifty-one years old at the time of
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his appointment.
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II.
(Vera Decl. ¶ 14 (Docket No. 29-10).)
Legal Standard
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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
Fed. R. Civ.
A material fact is one that could affect the outcome
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favor.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
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(1986).
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burden of establishing the absence of a genuine issue of material
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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.
The party moving for summary judgment bears the initial
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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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Id. at
To carry this burden,
Matsushita
1
reasonably find for the [non-moving party].”
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Anderson, 477 U.S.
at 252.
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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,
Id.
III. Discussion
A.
Age Discrimination
The ADEA prohibits an employer from discriminating
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against an employee who is at least forty years of age because of
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that person’s age.
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FBL Fin. Servs., Inc., 557 U.S. 167, 175-78 (2009) (in a
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disparate treatment action, plaintiff must prove that his age was
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the cause in fact of the adverse employment action).
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imposes liability on an employer for discharging an employee over
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forty years of age because of that person’s age.
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§§ 12926(b), 12940(a); see Harris v. City of Santa Monica, 56
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Cal. 4th 203, 232 (2013) (plaintiff must prove discrimination was
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a substantial motivating factor in employment decision).
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29 U.S.C. §§ 623(a)(1), 631(a); see Gross v.
FEHA
Cal. Gov’t Code
There are two ways for a plaintiff to avoid summary
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judgment on a disparate treatment claim.
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produce direct evidence of discrimination, see Enlow v.
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Salem-Keizer Yellow Cab Co., 389 F.3d 802, 812 (9th Cir. 2004),
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or may proceed under the burden-of-proof and production framework
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established in McDonnell Douglas Corp. v. Green, 411 U.S. 792,
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The plaintiff may
1
794 (1973), see Shelley v. Geren, 666 F.3d 599, 607 (9th Cir.
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2012) (noting that “nothing in Gross overruled our cases
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utilizing this framework to decide summary judgment motions in
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ADEA cases”).3
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interpreting FEHA because of its similarity to the ADEA.
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Bechtel Nat’l, Inc., 24 Cal.4th 317, 354 (2000).
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claims, courts use the McDonnell Douglas burden-shifting
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framework and other federal employment law principles.4
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Schechner v. KPIX-TV, 686 F.3d 1018, 1023 (9th Cir. 2012); Earl
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v. Nielsen Media Research, Inc., 658 F.3d 1108, 1112 (9th Cir.
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2011).
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California courts look to federal precedent when
Guz v.
To analyze FEHA
See
Plaintiff and defendants analyze plaintiff’s claims of
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discrimination based on age under the McDonnell Douglas
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framework.
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a prima facie case of age discrimination.
Under that framework, plaintiff must first establish
Shelley, 666 F.3d at
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Only at trial does the plaintiff have the burden of
proving that age was the cause in fact of the adverse employment
action. Shelley, 666 F.3d at 608.
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The parties did not address whether Harris effected any
change in the court’s analysis of a FEHA age-discrimination claim
at the summary judgment stage. Harris was a mixed-motives case.
At trial, the defendant asked for an instruction that if the jury
found a mix of discriminatory and legitimate motives, it could
avoid liability by proving that a legitimate motive alone would
have led it to make the same decision to terminate plaintiff.
Harris, 56 Cal. 4th at 211. The California Supreme Court noted
that “[i]n FEHA employment discrimination cases that do not
involve mixed motives, we have adopted the three-stage
burden-shifting test established by McDonnell Douglas . . . .”
Id. at 215. Because there is no evidence before the court at
this stage that suggests a mixed motive on the part of the
College, it proceeds under the McDonnell Douglas framework for
the purposes of resolving the instant motion. See McFarland v.
Sears Holdings Mgmt., C 11-4587 PJH, 2013 WL 1333720, at *3 (N.D.
Cal. Mar. 29, 2013) (applying McDonnell Douglas framework to FEHA
claim post-Harris). This is consistent with the Ninth Circuit’s
practice, noted above, of applying the framework to decide
summary judgment motions on ADEA claim after Gross.
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608.
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defendants to articulate a legitimate nondiscriminatory reason
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for the adverse employment action.
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“demonstrate that there is a material genuine issue of fact as to
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whether the employer’s purported reason is pretext for age
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discrimination.”
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If successful, the burden of production shifts to
Id.
Plaintiff then must
Id.
To make out a prima facie case of age discrimination,
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plaintiff must show that he: (1) was a member of the protected
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class (aged forty or older); (2) was performing his job
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satisfactorily; (3) was discharged; and (4) was replaced by a
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substantially younger employee with equal or inferior
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qualifications.
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U.S. 133, 142 (2000); Rose v. Wells Fargo & Co., 902 F.2d 1417,
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1421 (9th Cir. 1990).
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1.
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The parties dispute whether plaintiff can satisfy the
Reeves v. Sanderson Plumbing Prods., Inc., 530
Plaintiff’s Prima Facie Case
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second and fourth elements of the prima facie case.
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second factor, defendants argue that plaintiff was not performing
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his job satisfactorily for the same reasons that allegedly
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prompted his termination: he created a conflict of interest by
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hiring faculty to work in his private pharmacy, treated another
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faculty member inappropriately, and vented his frustrations about
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the College’s administration during a visit from an accreditation
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organization.
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No. 29-1).)
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As to the
(See Mem. in Supp. of Mot. at 11:23-14:4 (Docket
To satisfy the second element, plaintiff offers
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evidence that he received a four percent merit increase in pay in
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2010 and that his supervisor rated his performance as good to
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excellent.5
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79:18-19.)
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whether he was performing his job satisfactorily.
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therefore finds that plaintiff has satisfied the second element
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of the prima facie case.
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533 n.5 (9th Cir. 1981) (“In establishing a prima facie case,
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[plaintiff] need only produce substantial evidence of
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satisfactory job performance sufficient to create a jury question
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on this issue.”).
10
(Brazill Decl. ¶ 4; Hawkins Dep. at 26:22-27:9,
Plaintiff’s proffer gives rise to a dispute of fact
The court
See Douglas v. Anderson, 656 F.2d 528,
As to the fourth element, both parties seem to agree
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that to determine whether a plaintiff has been replaced by a
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substantially younger employee, a court should look to the age of
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the plaintiff’s permanent replacement.
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a reluctance to allow an employer to defeat the employee’s prima
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facie case by pointing to the fact that it replaced plaintiff
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with a temporary, or interim, employee who fell within the same
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protected class.6
Indeed, courts have shown
The question of whether an employee is
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The court does not rely on Hawkins’ testimony for the
fact that plaintiff received a raise, but instead for the point
that had plaintiff received a raise, it would be merit-based.
Defendants’ objections to Hawkins’ testimony are therefore
overruled.
6
See McCarthy v. N.Y. City Technical Coll., 202 F.3d
161, 165 (2d Cir. 2000) (“Replacement by an older person may not
necessarily be fatal to an age discrimination claim if, for
example, a plaintiff can show that his age was the true
motivation and the older replacement was hired temporarily as a
means of insulating defendant from ADEA liability.”); Greene v.
Safeway Stores, Inc., 98 F.3d 554, 561 (10th Cir. 1996)
(concluding a fifty-two year old plaintiff, who was replaced by a
fifty-seven year old employee, presented sufficient evidence that
the plaintiff’s age was a motivating factor in his termination,
where there was sufficient evidence to infer that the replacement
was hired to be a defense against any age discrimination claim by
the plaintiff); Alphin v. Sears, Roebuck & Co., 940 F.2d 1497,
8
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temporary or permanent, however, is always relative.
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employment relationship lasts forever, and in a sense all
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employment, like everything else, is temporary.
4
No
Here, it is not the employer who attempts to defeat
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plaintiff’s prima facie case by pointing to the age of his
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immediate replacement.
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court to consider Frausto as his replacement for purposes of
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establishing a prima facie case.
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court perceives the distinction between temporary and permanent
Rather, it is the employee who asks the
In these circumstances, the
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employment to be less significant.
Although some courts in these
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kinds of cases have still looked only to the age of the permanent
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replacement,7 other courts have considered the age of the
13
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15
16
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1499–1501 (11th Cir. 1991) (finding a fifty-year old plaintiff
established a prima facie case of age discrimination, despite
being replaced by an older employee, where he was told that he
had been around “too long,” was “too old,” and was “making too
much money” and the older replacement employee resigned after
only one day and was replaced by a twenty-four year old trainee).
7
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25
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27
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See Lewis v. St. Cloud State Univ., 467 F.3d 1136 (8th
Cir. 2006) (where dean of university alleging age discrimination
was temporarily replaced by an associate dean six-and-a-half
years younger and permanently replaced by a man only two-and-ahalf years younger, the court explained that the former dean
could not establish a prima facie case because “the important
datum here is the age of the person whom the [u]niversity chose
as [his] permanent replacement”); Potera-Haskins v. Gamble, 519
F. Supp. 2d 1110, 1118-19 (D. Mont. 2007) (female plaintiff
alleging sex discrimination could not make prima facie case where
permanent replacement was also female, even though temporary
replacement was male, because a national search to find best
qualified person was both reasonable and necessary); Sheets v.
Nat’l Computer Sys., Inc., Civ. No. 3-99-30091, 2000 WL 33364120,
at *6 (S.D. Iowa Dec. 7, 2000) (“The limited case law in this
area suggests the Court should look to the permanent replacement
employee, not the temporary fill-in.”); Ashagre v. Southland
Corp., 546 F. Supp. 1214, 1219 (S.D. Tex. 1982) (in Title VII
race discrimination case, looking to permanent replacement rather
than temporary replacement in determining whether prima facie
case was established).
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temporary replacement for purposes of determining whether
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plaintiff has made a prima facie case.8
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replaces the plaintiff with either a temporary or permanent
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employee outside of the plaintiff’s protected category, an
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inference of discriminatory intent may arguably be drawn.
Where the employer
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Here, the court concludes that whether Frausto is to be
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considered a temporary or permanent replacement of plaintiff is a
8
disputed issue of ultimate fact which is subject to conflicting
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interpretations.
According to the evidence proffered by
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defendants, Dean Hawkins had responsbility for finding a
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replacement for plaintiff.
12
57:24-58:1.)
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this happens, we have to appoint an interim department chair
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while we search for a full-time department chair.”
15
55:19-21.)
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the position, Frausto testified that she accepted it on a
17
temporary basis while Dean Hawkins searched for a permanent
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replacement.
19
see also Hawkins Dep. at 55:8-13.)
20
the other department chair and the associate deans.
(See Hawkins Dep. at 55:22-56:9,
He explained that “what we do when something like
(Id. at
After no other faculty expressed interest in assuming
(See Frausto Dep. at 15:12-17, 16:7-8, 136:12-18;
Dean Hawkins was assisted by
(Hawkins
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27
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See Tuttle v. Metro. Gov’t of Nashville, 474 F.3d 307,
317-18 (6th Cir. 2007) (“We find that the fourth element of the
prima facie case in an age discrimination case can be met even
where the new hire, who is a member of the non-protected class,
has the title of ‘temporary’ employee. In cases where the new
hire takes on the plaintiff’s former job responsibilities, merely
designating the new hire ‘temporary’ will not defeat the fourth
element.”); Cyprian v. Auburn Univ. Montgomery, 799 F. Supp. 2d
1262, 1280 (M.D. Ala. 2011) (where terminated plaintiff’s duties
were initially split by one temporary employee belonging to her
protected class and another temporary employee outside her
protected class, plaintiff could demonstrate that she was
replaced, at least in part, by a person outside her protected
class for purposes of the prima facie case).
10
1
Dep. at 58:5-7.)
2
After a period of time and “having met and talked to
3
[Palmieri] several times, [Dean Hawkins] realized that he would
4
serve the college well by taking on the position of department
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chair . . . .”
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Palmieri to plaintiff’s former position on, what he testified to
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be, a permanent basis.
8
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(Id. at 58:12-15.)
Dean Hawkins then appointed
(Id. at 58:8-24.)
On the other hand, plaintiff contends that the College
replaced Frausto with Palmieri only after he complained to the
10
Equal Employment Opportunity Commission (“EEOC”) and the
11
Department of Fair Employment and Housing (“DFEH”) about age
12
discrimination.
13
filed his age discrimination claims with the EEOC and DFEH in
14
January and February of 2012.9
15
it is clear that Frausto was appointed to the chair position on
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August 1, 2011, no party has indicated to the court exactly when
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Palmieri assumed the position.10
18
(could not recall how long Frausto was in the interim position,
19
but may have been six months).)
20
(Opp’n at 8:23-25 (Docket No. 30).)
(Brazill Decl. ¶ 13.)
Plaintiff
Although
(See Hawkins Dep. at 59:21-22
Plaintiff also argues that “Palmieri was installed
21
rather quickly compared to how [p]laintiff was hired.”
(Opp’n at
22
9:1.)
23
testimony that “having met and talked to [Palmieri] several
24
times, I realized that he would serve the college well by taking
Plaintiff draws this conclusion from Dean Hawkins’
25
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27
28
Defendants’ objections on the grounds of foundation and
relevance to the evidence underlying this fact are overruled.
10
The emails from student Chike Okolo,(Brazill Decl. Exs.
B, C), do not establish when Palmieri was appointed to the chair
position.
11
1
on the position of department chair, which he willingly did.”
2
(Hawkins Dep. at 58:12-15.)
3
when he was hired for the same position, he met with Dean Hawkins
4
several times, gave a presentation to the faculty, faculty
5
provided feedback on his appointment, Dean Hawkins recommended
6
the hire, and then the College president and Board of Trustees
7
approved the recommendation.
8
(describing what would have been the process for hiring
9
plaintiff).)
Plaintiff notes that, in contrast,
(Id. at 19:22-25, 21:6-18
It is unclear whether Dean Hawkins’ statement
10
regarding Palmieri is intended to be a complete description of
11
how Palmieri was hired.
12
with the evidence of plaintiff’s complaints to the EEOC and DFEH-
13
-does allow for the inference that the College quickly replaced
14
Frausto with Palmieri once it became concerned that plaintiff was
15
alleging that he had been terminated because of his age.
16
that, it might also be inferred that Frausto’s position was
17
really permanent and only later labeled “temporary” to avoid
18
charges of age-based discrimination.
19
However, the statement--in conjunction
From
The College responds that it “undertook a thoughtful
20
application and interview process to select” Palmieri.
(Mem. in
21
Supp. of Mot. at 14:19-20.)
22
began looking for a permanent replacement for plaintiff after his
23
termination.
24
however, offers no evidence of such a process or a of search
25
immediately commencing for someone to permanently replace
26
///
27
///
28
///
It also argues that it immediately
(Reply at 3:14-19 (Docket No. 31).)
12
The College,
1
plaintiff after it placed Frausto in his former position.11
2
absence of such evidence is consistent with the inference that
3
Frausto was intended to be plaintiff’s permanent replacement.
4
The
Considering the evidence in the light most favorable to
5
plaintiff, as the court must, there is a question of fact that
6
Frausto--who is substantially younger than plaintiff--was really
7
a permanent replacement for plaintiff and was only given the
8
“interim” title so that the College could insulate itself from
9
charges of age discrimination.
By raising this factual issue,
10
plaintiff has produced enough evidence to meet the fourth element
11
of the prima facie case.
12
885, 889 (9th Cir. 1994) (“The requisite degree of proof
13
necessary to establish a prima facie case for . . . ADEA claims
14
on summary judgment is minimal and does not even need to rise to
15
the level of a preponderance of the evidence.”).
See Wallis v. J.R. Simplot Co., 26 F.3d
16
2.
Nondiscriminatory Reasons
17
Because plaintiff has established a prima facie case of
18
age discrimination, the burden of production now shifts to
19
plaintiff’s employer, the College, to articulate a legitimate
20
nondiscriminatory reason for his termination.
21
at 608.
22
decision to terminate plaintiff.
23
inappropriately vented his frustrations with the College’s
24
administration during a visit by an accreditation organization;
25
(2) that plaintiff created a conflict of interest by hiring
Shelley, 666 F.3d
The College identifies three explanations for its
They are (1) that plaintiff
26
11
27
28
Hawkins’ testimony describing what the College would do
in a situation where a department chair was terminated is not
evidence of when he began the search to fill plaintiff’s
position. (See Hawkins Dep. at 55:19-21.)
13
1
faculty to work in his private pharmacy; and (3) that plaintiff
2
retaliated against an employee.
3
articulating these explanations, the College has satisfied its
4
burden of producing a legitimate, nondiscriminatory reason for
5
its adverse employment action.
6
persuasion and must show that the College’s proffered reasons are
7
pretext.
8
1115, 1127 (9th Cir. 2000).
9
10
(See Cheung Decl. ¶ 14.)
By
Plaintiff retains the burden of
Chuang v. Univ. of Cal. Davis, Bd. of Trs., 225 F.3d
3.
Pretext
Plaintiff may prove pretext “either directly by
11
persuading the court that a discriminatory reason more likely
12
motivated the employer or indirectly by showing that the
13
employer’s proffered explanation is unworthy of credence.”
14
•Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1220 (9th Cir. 1998)
15
(quoting Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248,
16
256 (1981)); see Coghlan v. Am. Seafoods Co. LLC., 413 F.3d 1090,
17
1094 (9th Cir. 2005).
18
If plaintiff offers indirect evidence that “tends to
19
show that the employer’s proffered motives were not the actual
20
motives because they are inconsistent or otherwise not
21
believable,” such evidence must be “specific” and “substantial”
22
in order to create a triable issue of fact as to whether the
23
College had a discriminatory motivation.
24
1222; see Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018,
25
1029 (9th Cir. 2006).
26
Godwin, 150 F.3d at
In contrast, if plaintiff offers direct evidence of
27
discriminatory motive, he can show there is a triable issue as to
28
the actual motivation of the College, even if the evidence is
14
1
“very little.”
2
marks and citation omitted) (explaining that direct evidence is
3
that which proves discriminatory animus without inference or
4
presumption).
5
Godwin, 150 F.3d at 1221 (internal quotation
The court first considers plaintiff’s indirect
6
evidence.
7
inappropriately vented his frustrations with the College’s
8
administration during a visit by an accreditation organization,
9
President Cheung testified that when the Western Association of
10
Schools and Colleges (“WASC”) visited the College as part of the
11
accreditation process in October of 2010, plaintiff
12
inappropriately expressed his opinion that the College was not
13
providing his department with sufficient faculty.
14
¶ 13.)
15
First, with regard to the claim that plaintiff
(Cheung Decl.
Plaintiff responds that his observations were well
16
founded and states that he “did not act inappropriately in front
17
of WASC, nor did [he] tell Dean Hawkins that [he] acted
18
inappropriately.”
19
the administration’s failure to provide enough resources to hire
20
sufficient faculty to support the College’s experiential
21
education program stymied its full development.
22
163:6-164:9.)
23
believe that the administration had given him as much support in
24
hiring faculty as they should have, even though additional
25
faculty were needed to conduct the program.
26
36:14-24.)
27
he merely agreed with the statement of the director of
28
experiential education who reported that the College did not have
(Brazill Decl. ¶ 7.)
He offers evidence that
(Brazill Dep. at
Dean Hawkins likewise testified that he did not
(Hawkins Dep. at
Plaintiff also explains that while meeting with WASC,
15
1
adequate resources to meet the needs of fourth-year students.12
2
(Brazill Decl. ¶ 7.)
3
Second, with regard to the claim that plaintiff created
4
a conflict of interest by hiring faculty members, whose work
5
plaintiff oversaw at the College, to work in his private
6
pharmacy, plaintiff notes that other faculty were working
7
additional jobs.
8
those other moonlighting opportunities created the conflict that
9
concerned the College administration, namely that the faculty
10
member would be “evaluating the chair and getting paid by the
11
chair to work in his or her pharmacy.”
12
98:19-20; see id. at 97:23-98:16.)
13
that the College attempted other, less drastic, steps, such as
14
instructing plaintiff not to employ the faculty members in his
15
pharmacy, prior to deciding to terminate him.
16
In response, the College explains that none of
(Hawkins Dep. at
It does not appear, however,
Third, with regard to the claim that plaintiff
17
retaliated against an employee, according to President Cheung,
18
plaintiff had asked another faculty member, Dr. Grant Lackey,
19
about investing in his pharmacy.
20
Lackey declined to invest, the College believed that plaintiff
21
began retaliating against him by reporting two incidents in June
22
2011 to the College’s human resources department involving
23
allegedly inappropriate conduct by Lackey.
24
The director of human resources at the College, Jasmin Vera, also
25
stated that plaintiff was in her “office at least once per week,
(Cheung Decl. ¶ 13.) After
(Vera Decl. ¶ 7.)
26
27
28
12
Defendants’ objections on the grounds of foundation,
relevance, and improper opinion testimony to the evidence
underlying this fact are overruled.
16
1
if not more, wanting Dr. Lackey to be fired, or some other form
2
of punitive action taken against him.”
3
(Id.)
After investigating Lackey’s purported misconduct, Vera
4
found the claims against him to be unsubstantiated and concluded
5
that plaintiff was retaliating against him.
6
reported that she learned in early July 2011 that although
7
another faculty member purportedly told an off-color joke,
8
plaintiff did not report that incident and chose not to reprimand
9
that individual.
10
(Id. ¶ 8.)
She also
(Id. ¶ 9.)
Plaintiff explains that the potential partnership
11
between them did not affect his treatment of Lackey, especially
12
because Lackey was still considering becoming a partner two days
13
before plaintiff’s termination.13
14
Plaintiff further explains that he only reported Lackey’s making
15
offensive jokes to the College’s resources department after Dean
16
Hawkins told him to report the conduct.14
17
denies complaining to Vera on a weekly basis about Lackey or
18
requesting that he be fired or investigated.
19
20
(Brazill Decl. ¶ 9.)
(Id. ¶ 8.)
He also
(Id.)
Plaintiff’s account of his treatment of Lackey could
give rise to the inference that, contrary to the College’s
21
13
22
23
24
25
26
27
28
Defendants’ objections on the grounds of foundation,
relevance, hearsay, and improper opinion testimony to the
evidence underlying this fact are overruled. The sham affidavit
rule does not apply here because there is no inconsistency
between plaintiff’s testimony that he and his wife had decided
that Lackey would be an inappropriate business partner, (Brazill
Dep. at 187:17-24), and plaintiff’s later testimony that he never
advised Lackey that he had rejected him as a partner and that
their discussions stopped after plaintiff was terminated,
(Brazill Decl. ¶ 9).
14
Defendants’ objections on the grounds of foundation,
relevance, hearsay, and improper opinion testimony to the
evidence underlying this fact are overruled.
17
1
contention, plaintiff did not treat Lackey differently than any
2
other faculty members.
3
of fact as to whether the College’s final reason for firing
4
plaintiff is worthy of credence.
5
Such an inference creates a genuine issue
“‘[F]undamentally different justifications for an
6
employer’s action . . . give rise to a genuine issue of fact with
7
respect to pretext since they suggest the possibility that
8
neither of the official reasons was the true reason.’”
9
Republic Silver State Disposal Inc., 292 F.3d 654, 661 (9th Cir.
Aragon v.
10
2002) (quoting Washington v. Garrett, 10 F.3d 1421, 1434 (9th
11
Cir. 1994)).
12
untenable explanation to its reasons for terminating plaintiff
13
casts doubt over the overall credibility of its reasons.
14
gives rise to the inference that the College is attempting to
15
dissemble a discriminatory motive for terminating plaintiff with
16
other plausible justifications.
17
Similarly, the College’s inclusion of a potentially
In other words, it suggests pretext.
It
Plaintiff’s
18
circumstantial evidence is thus sufficient to raise a genuine
19
issue of material fact whether the College’s nondiscriminatory
20
explanations were the true reason for his termination or whether
21
they were merely guises for a discriminatory motive.
22
Even if plaintiff had not produced sufficient
23
circumstantial evidence of pretext to create a triable issue as
24
to the actual motivation of the College, he has presented
25
sufficient direct evidence of discrimination to do so.
26
evidence of discrimination, plaintiff points to his testimony
27
that he learned from two administrative assistants that President
28
Cheung had stated in a meeting that he preferred working with
18
As direct
1
younger workers who had energy and could keep up with him.
2
(Brazill Dep. at 74:11-20.)
3
President Cheung state this alleged preference.
4
75:1.)
5
President Cheung felt that one of Dean Hawkins’ assistants was
6
too old and attempted to replace her with a younger assistant.
7
(Id. at 79:4-18.)
8
Hawkins’ assistant was too old.
9
Brazill did not personally hear
(Id. at 74:21-
Plaintiff also testified that Dean Hawkins told him that
He did not hear President Cheung say that Dean
(Id. at 79:19-21.)
“A trial court can only consider admissible evidence in
10
ruling on a motion for summary judgment.”
11
& SA, 285 F.3d 764, 773 (9th Cir. 2002); see Fed. R. Civ. Pro.
12
56(e).
13
assistants told him constitutes double hearsay.
14
Cheung’s statement may fall within an exception to the hearsay
15
rule, see Fed. R. Evid. 801(d)(2)(D) (statement is not hearsay
16
when offered against an opposing party and “was made by the
17
party’s agent or employee on a matter within the scope of that
18
relationship and while it existed”), the assistants’ recounting
19
of President Cheung’s alleged bias does not.
20
Orr v. Bank of Am., NT
Plaintiff’s testimony regarding what the administrative
While President
The other evidence, however, could be presented in
21
admissible form at trial.
In Nesbit v. Pepsico, Inc., 994 F.2d
22
703 (9th Cir. 1993), the Ninth Circuit held that a supervisor’s
23
comment that “‘[w]e don’t necessarily like grey hair” in a
24
meeting “was uttered in an ambivalent manner and was not tied
25
directly to [the plaintiff’s] termination” and thus “[wa]s at
26
best weak circumstantial evidence of discriminatory animus”
27
toward the plaintiff.
28
Schindler Elevator Corp., 113 F.3d 912, 919 (9th Cir. 1996)
Nesbit, 994 F.2d at 705; see also Nidds v.
19
1
(supervisor’s comment that he intended to get rid of “old timers”
2
did not create an inference of age discrimination because it was
3
not directed at plaintiff and was ambiguous because “it could
4
refer as well to longtime employees or to employees who failed to
5
follow directions as to employees over 40”).
6
In contrast, while here President Cheung’s comment
7
about Dean Hawkins’ assistant and his attempt to replace her with
8
a younger worker are not directly tied to plaintiff’s
9
termination, they constitute unambiguous evidence of
10
discriminatory animus connected to employment decisionmaking,
11
rather than mere evidence of discrimination “in the air.”
12
Harris, 56 Cal.4th at 231.
13
the College official who made the decision to terminate
14
plaintiff.
15
sufficient to create a triable issue whether the College’s
16
articulated reason for terminating plaintiff is pretextual.
17
Godwin, 150 F.3d at 1221 (9th Cir. 1998) (“When the plaintiff
18
offers direct evidence of discriminatory motive, a triable issue
19
as to the actual motivation of the employer is created even if
20
the evidence is not substantial.
21
be ‘very little.’”).
22
See
Significantly, President Cheung is
(Cheung Decl. ¶¶ 13, 16.)
Such direct evidence is
See
As we said in Lindahl, it need
Plaintiff has established a disputed issue of fact,
23
through either indirect or direct admissible evidence, as to
24
whether he was terminated because of his age.
25
College’s motion for summary judgment as to plaintiff’s claims
26
for age discrimination under the ADEA and FEHA must be denied.
27
28
B.
Accordingly, the
FCA: Retaliation
The FCA protects employees from being “discharged,
20
1
demoted, . . . or in any other manner discriminated against in
2
the terms and conditions of employment . . . because of lawful
3
acts done by the employee . . . in furtherance of an [FCA] action
4
. . . or other efforts to stop [one] or more violations of [the
5
FCA].”
6
requires proof of three elements: ‘(1) the employee must have
7
been engaging in conduct protected under the Act; (2) the
8
employer must have known that the employee was engaging in such
9
conduct; and (3) the employer must have discriminated against the
31 U.S.C. § 3730(h).15
“An FCA retaliation claim
10
employee because of her protected conduct.’”
11
rel. Cafasso v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1060
12
(9th Cir. 2011) (quoting U.S. ex rel. Hopper v. Anton, 91 F.3d
13
1261, 1269 (9th Cir. 1996)); see Mendiondo v. Centinela Hosp.
14
Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008).
15
United States ex
As evidence that he engaged in protected conduct under
16
the FCA, plaintiff states that he spoke several times with Dean
17
Hawkins about the practice of College students using federal
18
financial aid they received to pay for their expenses at
19
Davenport University to pay for College tuition and told the Dean
20
21
22
23
24
25
26
27
28
15
Congress recently made several changes to the
retaliation provision of the FCA. Effective May 20, 2009, the
Fraud Enforcement and Recovery Act of 2009, Pub. L. No. 111-21, §
4(d), 123 Stat 1617 (2009), amended § 3730(h) to protect
employees from being “discharged, demoted, . . . or in any other
manner discriminated against in the terms and conditions of
employment . . . because of lawful acts done by the employee . .
. in furtherance of other efforts to stop [one] or more
violations of this subchapter.” In an apparent measure to
correct the odd choice of the word “other,” the Dodd–Frank Wall
Street Reform and Consumer Protection Act, Pub. L. No. 111–203, §
1079A (c)(1), 124 Stat. 1376 (2010), again amended § 3730(h) to
protect employees who have acted “in furtherance of a[] [FCA]
action” or that have taken “other efforts” to stop violations of
the FCA.
21
1
that the practice is “illegal.”
2
Dep. at 193:7-9.)
3
Cyndi Porter, and employee Patty Erck “what they thought about
4
students using Davenport money to pay for College . . .
5
expenses.”16
6
71:2-72:14.)
7
Decl. ¶ 15; Brazill Dep. at 154:16-20.)
8
9
(Brazill Decl. ¶ 15; Brazill
He also asked the College’s Associate Dean,
(Brazill Decl. ¶ 15; Brazill Dep. at 67:19-68:21,
He asked the same to Registrar Lisa Erck.
(Brazill
Assuming that these actions constitute protected
activity under the FCA, plaintiff has not established a prima
10
facie case of retaliation.
11
months after he last approached Dean Hawkins about College
12
students using Davenport University financial aid to pay for
13
College expenses (Brazill Decl. ¶ 15.), he contends that the
14
temporal proximity between his protected activity and his
15
termination is alone sufficient to raise an inference that he was
16
terminated because of any protected activity.
17
13:23-25.)
18
Because plaintiff was fired two
(See Opp’n at
Plaintiff is wrong.
In the retaliation context, the Ninth Circuit has held
19
that when adverse employment decisions are taken within a close
20
proximity after protected activity has been made, causation may
21
be inferred.
22
1094 (9th Cir. 2008); Villiarimo v. Aloha Island Air, Inc., 281
23
F.3d 1054, 1065 (9th Cir. 2002); Passantino v. Johnson & Johnson
24
Consumer Prods., Inc., 212 F.3d 493, 507 (9th Cir. 2000).
25
Ninth Circuit has found a prima facie case of causation, for
See, e.g., Davis v. Team Elec. Co., 520 F.3d 1080,
The
26
27
28
16
Defendants’ objections on the grounds of hearsay,
foundation, and relevance to the evidence underlying this fact
are overruled.
22
1
example, when adverse employment actions were taken more than two
2
months after an employee filed an administrative complaint, and
3
more than a month and a half after the employer’s investigation
4
ended.
5
to this general principle: “[T]emporal proximity alone is
6
insufficient to create a genuine issue of fact as to causal
7
connection where there is unrebutted evidence that the decision
8
maker did not have knowledge that the employee engaged in
9
protected conduct.”
Davis, 520 F.3d at 1094.
There is, however, an exception
Brungart v. BellSouth Telecomms., Inc., 231
10
F.3d 791, 799 (11th Cir. 2000); Thomas v. City of Beaverton, 379
11
F.3d 802, 812 n.4 (9th Cir. 2004) (“The employer’s awareness of
12
the protected activity is also important in establishing a causal
13
link.”); Maarouf v. Walker Mfg. Co., 210 F.3d 750, 755 (7th Cir.
14
2000) (mere proximity between complaints of discrimination and
15
termination insufficient to avoid summary judgment on plaintiff’s
16
retaliation claim where plaintiff could not raise a disputed
17
issue of fact as to whether the decision maker was aware of his
18
discrimination allegations at the time); Cohen v. Fred Meyer,
19
Inc., 686 F.2d 793, 797 (9th Cir. 1982) (no causal link where the
20
decision maker did not know that plaintiff had recently engaged
21
in protected activity).
22
There is no evidence from which a trier of fact could
23
find that plaintiff’s alleged protected activity played any role
24
in the decision to terminate him.
25
person with the decision-making power over whether plaintiff kept
26
his position.
27
the decision to terminate plaintiff).)
28
is that plaintiff never addressed his concerns about the tuition
President Cheung was the
(See Cheung Decl. ¶¶ 13, 16 (stating that he made
23
The undisputed evidence
1
scheme to President Cheung or Vice President Fong.
(Brazill Dep.
2
at 141:7-13, 142:4-8; Cheung Decl. ¶ 12; Fong Decl. ¶¶ 3-4.)
3
Dean Hawkins testified that he could not even recall whether
4
plaintiff brought his concerns to his attention.
5
at 50:3-5.)
6
testified that they were not aware that plaintiff had expressed
7
such concerns to Dean Hawkins or anyone else and that Dean
8
Hawkins did not tell them that plaintiff expressed such concerns.
9
(Cheung Decl. ¶ 12; Fong Decl. ¶ 5.)
(Hawkins Dep.
President Cheung and Vice President Fong both
Thus, there is no evidence
10
to oppose President Cheung’s testimony that when he terminated
11
plaintiff he did not know about plaintiff’s reports to Dean
12
Hawkins that the practice of some students of using Davenport
13
student aid to pay for College expenses is illegal.
14
Further, plaintiff has not offered any theory to
15
explain how President Cheung learned of his complaints, except to
16
assert that his lack of knowledge is “implausible,” (Opp’n at
17
13:13), and that plaintiff witnessed Vice President Fong telling
18
students that Davenport was an alternate way to pay for the
19
College, (Brazill Dep. at 151:18-25).
20
to offer any “non-speculative evidence of specific facts” to give
21
rise to any inference that President Cheung knew about his
22
complaints.
23
that President Cheung somehow found out about plaintiff’s
24
complaints, plaintiff has offered no evidence to give rise “to a
25
reasonable inference that it did in fact occur.”
26
rebut the evidence showing that President Cheung did not have
27
knowledge that plaintiff was engaged in protected conduct and
28
thus cannot rely on temporal proximity alone to create a genuine
Cafasso, 637 F.3d at 1061.
Plaintiff has also failed
24
While it is plausible
Id.
He did not
1
issue of fact as to causation.
2
for summary judgment as to plaintiff’s claim for retaliation
3
under the FCA must be denied.
4
C.
5
Accordingly, the College’s motion
Wrongful Termination in Violation of Public Policy
Because the court concludes that genuine issues of
6
material facts exist regarding plaintiff’s age discrimination
7
claims under the ADEA and FEHA, the court will deny the College’s
8
motion for summary judgment as to plaintiff’s claim for wrongful
9
termination in violation of public policy.
See Earl, 658 F.3d at
10
1118 (“Because [plaintiff’s] discrimination claim under FEHA
11
survives summary judgment, so too does her claim for wrongful
12
termination in violation of public policy.”).
13
IT IS THEREFORE ORDERED that California Northstate
14
College of Pharmacy, LLC’s motion for summary judgment be, and
15
the same hereby is, DENIED as to plaintiff’s ADEA, FEHA, and
16
wrongful termination in violation of public policy claims and
17
GRANTED as to plaintiff’s FCA claim.
18
IT IS FURTHER ORDERED that California Northstate
19
University, LLC’s motion for summary judgment be, and the same
20
hereby is, GRANTED.
21
DATED:
June 4, 2013
22
23
24
25
26
27
28
25
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