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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---11 12 BRADLEY BRAZILL, 13 14 15 16 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, 17 Defendants. 18 / 19 20 21 ----oo0oo---Plaintiff Bradley Brazill brings this action against 22 defendants California Northstate College of Pharmacy, LLC 23 (“College”), and California Northstate University, LLC (“CNU”), 24 arising from defendants’ allegedly wrongful conduct related to 25 the termination of plaintiff’s employment. 26 claims: (1) age discrimination under the Age Discrimination in 27 Employment Act (“ADEA”), 29 U.S.C. §§ 621-634; (2) age 28 discrimination under the California Fair Employment and Housing 1 Plaintiff brings four 1 Act (“FEHA”), Cal. Gov’t Code §§ 12900-12996; (3) retaliation 2 under the False Claims Act (“FCA”), 31 U.S.C. § 3730(h); and (4) 3 wrongful termination in violation of public policy on the basis 4 of violations of the ADEA, FEHA, and FCA. 5 (Docket No. 10.) Presently before the court is defendants’ motion for 6 summary judgment or, alternatively, partial summary judgment 7 pursuant to Federal Rule of Civil Procedure 56. 8 I. (Docket No. 29.) Factual and Procedural Background 9 The College is a private pharmacy college located in 10 Rancho Cordova, California.1 11 8).) 12 is its Vice President and Director of Operations, (Fong Decl. ¶ 1 13 (Docket No. 29-12).) 14 as Chair of the Department for Clinical and Administrative 15 Sciences. 16 two years old at the time. (Cheung Decl. ¶ 2 (Docket No. 29- Alvin Cheung is its President, (id. ¶ 1), and Norman Fong 17 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 18 College students were using federal student aid from Davenport 19 University to pay for College expenses.2 20 Besides discussing his concerns about this practice with other (See id. ¶ 15.) 21 1 22 23 24 25 26 27 28 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 1 College employees, plaintiff told his supervisor, Dean David 2 Hawkins, several times that the practice was “illegal.”3 3 However, he never expressed his concerns about the issue to 4 President Cheung or Vice President Fong. 5 (“Brazill Dep.”) at 141:7-13, 142:4-8 (Docket No. 29-5); Cheung 6 Decl. ¶ 12; Fong Decl. ¶¶ 3-4.) 7 (Id.) (Munoz Decl. Ex. 10 President Cheung made the decision to terminate 8 plaintiff in July 2011. (Cheung Decl. ¶¶ 13, 16.) 9 President Cheung, the basis for this decision was that plaintiff 10 created a conflict of interest by hiring faculty to work in his 11 private pharmacy, treated another faculty member inappropriately, 12 and vented his frustrations about the College’s administration 13 during a visit from an accreditation organization. 14 13.) 15 ¶ 3.) Plaintiff was terminated on July 15, 2011. 16 According to (See id. ¶ (Brazill Decl. After plaintiff’s termination, Dean Hawkins hired Sonya 17 Frausto, an assistant professor, to fill plaintiff’s former 18 position as Chair of the Department for Clinical and 19 Administrative Sciences. 20 Dep.”) at 56:8-13 (Docket No. 29-5).) 21 old at the time. 22 56:8-13 (Docket No. 29-6).) 23 position was interim or permanent. 24 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. 26 27 28 3 Defendants’ objections on the grounds of hearsay, foundation, and relevance to the evidence underlying this fact are overruled. 3 1 at 58:23-24.) Palmieri was fifty-one years old at the time of 2 his appointment. 3 II. (Vera Decl. ¶ 14 (Docket No. 29-10).) Legal Standard 4 Summary judgment is proper “if the movant shows that 5 there is no genuine dispute as to any material fact and the 6 movant is entitled to judgment as a matter of law.” 7 P. 56(a). 8 of the suit, and a genuine issue is one that could permit a 9 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 10 favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 11 (1986). 12 burden of establishing the absence of a genuine issue of material 13 fact and can satisfy this burden by presenting evidence that 14 negates an essential element of the non-moving party’s case. 15 Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). 16 Alternatively, the moving party can demonstrate that the 17 non-moving party cannot produce evidence to support an essential 18 element upon which it will bear the burden of proof at trial. 19 Id. The party moving for summary judgment bears the initial 20 Once the moving party meets its initial burden, the 21 burden shifts to the non-moving party to “designate ‘specific 22 facts showing that there is a genuine issue for trial.’” 23 324 (quoting then-Fed. R. Civ. P. 56(e)). 24 the non-moving party must “do more than simply show that there is 25 some metaphysical doubt as to the material facts.” 26 Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). 27 “The mere existence of a scintilla of evidence . . . will be 28 insufficient; there must be evidence on which the jury could 4 Id. at To carry this burden, Matsushita 1 reasonably find for the [non-moving party].” 2 Anderson, 477 U.S. at 252. 3 In deciding a summary judgment motion, the court must 4 view the evidence in the light most favorable to the non-moving 5 party and draw all justifiable inferences in its favor. 6 255. 7 and the drawing of legitimate inferences from the facts are jury 8 functions, not those of a judge . . . ruling on a motion for 9 summary judgment . . . .” 10 11 12 Id. at “Credibility determinations, the weighing of the evidence, Id. III. Discussion A. Age Discrimination The ADEA prohibits an employer from discriminating 13 against an employee who is at least forty years of age because of 14 that person’s age. 15 FBL Fin. Servs., Inc., 557 U.S. 167, 175-78 (2009) (in a 16 disparate treatment action, plaintiff must prove that his age was 17 the cause in fact of the adverse employment action). 18 imposes liability on an employer for discharging an employee over 19 forty years of age because of that person’s age. 20 §§ 12926(b), 12940(a); see Harris v. City of Santa Monica, 56 21 Cal. 4th 203, 232 (2013) (plaintiff must prove discrimination was 22 a substantial motivating factor in employment decision). 23 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 24 judgment on a disparate treatment claim. 25 produce direct evidence of discrimination, see Enlow v. 26 Salem-Keizer Yellow Cab Co., 389 F.3d 802, 812 (9th Cir. 2004), 27 or may proceed under the burden-of-proof and production framework 28 established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 5 The plaintiff may 1 794 (1973), see Shelley v. Geren, 666 F.3d 599, 607 (9th Cir. 2 2012) (noting that “nothing in Gross overruled our cases 3 utilizing this framework to decide summary judgment motions in 4 ADEA cases”).3 5 interpreting FEHA because of its similarity to the ADEA. 6 Bechtel Nat’l, Inc., 24 Cal.4th 317, 354 (2000). 7 claims, courts use the McDonnell Douglas burden-shifting 8 framework and other federal employment law principles.4 9 Schechner v. KPIX-TV, 686 F.3d 1018, 1023 (9th Cir. 2012); Earl 10 v. Nielsen Media Research, Inc., 658 F.3d 1108, 1112 (9th Cir. 11 2011). 12 California courts look to federal precedent when Guz v. To analyze FEHA See Plaintiff and defendants analyze plaintiff’s claims of 13 discrimination based on age under the McDonnell Douglas 14 framework. 15 a prima facie case of age discrimination. Under that framework, plaintiff must first establish Shelley, 666 F.3d at 16 3 17 18 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. 4 19 20 21 22 23 24 25 26 27 28 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. 6 1 608. 2 defendants to articulate a legitimate nondiscriminatory reason 3 for the adverse employment action. 4 “demonstrate that there is a material genuine issue of fact as to 5 whether the employer’s purported reason is pretext for age 6 discrimination.” 7 If successful, the burden of production shifts to Id. Plaintiff then must Id. To make out a prima facie case of age discrimination, 8 plaintiff must show that he: (1) was a member of the protected 9 class (aged forty or older); (2) was performing his job 10 satisfactorily; (3) was discharged; and (4) was replaced by a 11 substantially younger employee with equal or inferior 12 qualifications. 13 U.S. 133, 142 (2000); Rose v. Wells Fargo & Co., 902 F.2d 1417, 14 1421 (9th Cir. 1990). 15 1. 16 The parties dispute whether plaintiff can satisfy the Reeves v. Sanderson Plumbing Prods., Inc., 530 Plaintiff’s Prima Facie Case 17 second and fourth elements of the prima facie case. 18 second factor, defendants argue that plaintiff was not performing 19 his job satisfactorily for the same reasons that allegedly 20 prompted his termination: he created a conflict of interest by 21 hiring faculty to work in his private pharmacy, treated another 22 faculty member inappropriately, and vented his frustrations about 23 the College’s administration during a visit from an accreditation 24 organization. 25 No. 29-1).) 26 As to the (See Mem. in Supp. of Mot. at 11:23-14:4 (Docket To satisfy the second element, plaintiff offers 27 evidence that he received a four percent merit increase in pay in 28 2010 and that his supervisor rated his performance as good to 7 1 excellent.5 2 79:18-19.) 3 whether he was performing his job satisfactorily. 4 therefore finds that plaintiff has satisfied the second element 5 of the prima facie case. 6 533 n.5 (9th Cir. 1981) (“In establishing a prima facie case, 7 [plaintiff] need only produce substantial evidence of 8 satisfactory job performance sufficient to create a jury question 9 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 11 that to determine whether a plaintiff has been replaced by a 12 substantially younger employee, a court should look to the age of 13 the plaintiff’s permanent replacement. 14 a reluctance to allow an employer to defeat the employee’s prima 15 facie case by pointing to the fact that it replaced plaintiff 16 with a temporary, or interim, employee who fell within the same 17 protected class.6 Indeed, courts have shown The question of whether an employee is 18 19 20 21 22 23 24 25 26 27 28 5 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 1 temporary or permanent, however, is always relative. 2 employment relationship lasts forever, and in a sense all 3 employment, like everything else, is temporary. 4 No Here, it is not the employer who attempts to defeat 5 plaintiff’s prima facie case by pointing to the age of his 6 immediate replacement. 7 court to consider Frausto as his replacement for purposes of 8 establishing a prima facie case. 9 court perceives the distinction between temporary and permanent Rather, it is the employee who asks the In these circumstances, the 10 employment to be less significant. Although some courts in these 11 kinds of cases have still looked only to the age of the permanent 12 replacement,7 other courts have considered the age of the 13 14 15 16 17 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 18 19 20 21 22 23 24 25 26 27 28 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). 9 1 temporary replacement for purposes of determining whether 2 plaintiff has made a prima facie case.8 3 replaces the plaintiff with either a temporary or permanent 4 employee outside of the plaintiff’s protected category, an 5 inference of discriminatory intent may arguably be drawn. Where the employer 6 Here, the court concludes that whether Frausto is to be 7 considered a temporary or permanent replacement of plaintiff is a 8 disputed issue of ultimate fact which is subject to conflicting 9 interpretations. According to the evidence proffered by 10 defendants, Dean Hawkins had responsbility for finding a 11 replacement for plaintiff. 12 57:24-58:1.) 13 this happens, we have to appoint an interim department chair 14 while we search for a full-time department chair.” 15 55:19-21.) 16 the position, Frausto testified that she accepted it on a 17 temporary basis while Dean Hawkins searched for a permanent 18 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 21 8 22 23 24 25 26 27 28 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 5 chair . . . .” 6 Palmieri to plaintiff’s former position on, what he testified to 7 be, a permanent basis. 8 9 (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 16 August 1, 2011, no party has indicated to the court exactly when 17 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 9 26 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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