Fernandes et al v. TW Telecom Holdings Inc.

Filing 31

ORDER signed by Judge Garland E. Burrell, Jr on 5/22/15 ORDERING that Defendant's Motion for Summary Judgment 23 is GRANTED and this action shall be closed. CASE CLOSED(Mena-Sanchez, L)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ANDREW FERNANDES,

11

Plaintiff,

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13

No. 2:13-CV-02221-GEB-CKD

v.

ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT

TW TELECOM HOLDINGS INC.,

14

Defendant.

15
16
Defendant

17

on

tw

telecom

19

under

20

termination

21

(“wrongful

22

alternative summary adjudication of issues. Further, Defendant

23

seeks summary judgment on what it contends are claims alleged

24

under

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Plaintiff responds that he has not alleged a claim under either

26

section. Therefore, Defendant has not shown that this portion of

27

its motion presents a controversy requiring judicial decision.

§

claim

6310,
alleged

termination

California

and

Labor

Plaintiff’s

under

claim”).

Code

retaliation

sections

28
1

California

California

Defendant

6403

claim

summary

judgment

Code

California

seeks

18

Labor

Plaintiff’s

(“Defendant”)

also

and

public
seeks

6404;

alleged
wrongful
policy
in

the

however,

I. FACTUAL BACKGROUND1

1
2

Plaintiff

alleges

in

his
him

as

retaliated

4

complaints

he

5

following

6

because of those complaints: (1) he was removed from a bonus

7

program; (2) his motor vehicle records were requested; (3) his

8

merit based salary increases were discontinued; (4) he was not

9

allowed

adverse

to

his

superiors.

retaliatory

attend

training

actions

result

Defendant

wrongfully

to

a

that

3

made

against

Complaint

Plaintiff
were

programs;

(5)

taken

he

of

safety

asserts

the

against

him

was

verbally

10

disciplined; (6) his “master key” was taken from him; (7) his

11

employment was terminated; and (8) Defendant refused to re-hire

12

him after his termination.

13

Defendant hired Plaintiff in October 2009 to work as a

14

Network Technician on the Western Regional Long Haul Network.

15

(Decl. Kevin O’Connor ISO Def.’s Mot. Summ. J. (“O’Connor Decl.”)

16

¶

17

“regeneration sites,” which house equipment that Defendant uses

18

to

19

(O’Connor Decl. ¶¶ 5, 7.) Plaintiff and four other employees were

20

supervised by Operations Manager Dave Shelton. (O’Connor Decl. ¶

21

6.)

6,

ECF

amplify

No.

23-5.)

signals

His

position

traveling

through

involved

fiber

traveling

optic

22

cables.

II. LEGAL STANDARD

23

to

A party is entitled to summary judgment if
“the movant shows that there is no genuine
dispute as to any material fact and the
movant is entitled to summary judgment as a
matter of law.” . . . The moving party has
the burden of establishing the absence of a

24
25
26
1

27
28

Defendant asserts hearsay objections to portions of Plaintiff’s
deposition testimony on which Plaintiff relies in opposition to the motion;
however, these objections need not be decided because the referenced testimony
does not concern a matter germane to this order.

2

1

genuine dispute of material fact.

2

City of Pomona v. SQM N. Am. Corp., 750 F.3d 1036, 1049 (9th Cir.

3

2014) (quoting Fed. R. Civ. P. 56(a)) (citing Celotex Corp. v.

4

Catrett, 477 U.S. 317, 323 (1986)). “A fact is ‘material’ when,

5

under the governing substantive law, it could affect the outcome

6

of the case.” Thrifty Oil Co. v. Bank of Am. Nat’l Trust & Sav.

7

Ass’n, 322 F.3d 1039, 1046 (9th Cir. 2003) (quoting Anderson v.

8

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A “dispute about

9

a material fact is ‘genuine,’ . . . if the evidence is such that

10

a

reasonable

11

party.” Anderson, 477 U.S. at 248.

12

could

return

a

verdict

for

the

nonmoving

A party asserting that a fact cannot be or is
genuinely disputed must support the assertion
by . . . citing to particular parts of
materials in the record . . . or . . .
showing that the materials do not establish
the absence or presence of a genuine dispute,
or that an adverse party cannot produce
admissible evidence to support the fact.

13
14
15
16
17

jury

Fed. R. Civ. P. 56(c)(1).
Summary judgment “evidence must be viewed in the light

18
19

most

20

inferences must be drawn in favor of that party.” Sec. & Exch.

21

Comm’n v. Todd, 642 F.3d 1207, 1215 (9th Cir. 2011) (citing

22

Johnson v. Paradise Valley Unified Sch. Dist., 251 F.3d 1222,

23

1227 (9th Cir. 2001)).

24
25
26
27
28

favorable

to

the

nonmoving

party,

and

all

However,
if
the
nonmovant
does
not
“specifically
.
.
.
[controvert
duly
supported] facts identified in the [movant’s]
statement of undisputed facts,” the nonmovant
“is deemed to have admitted the validity of
the
facts
contained
in
the
[movant’s]
statement.” Beard v. Banks, 548 U.S. 521, 527
(2006). A district court has “no independent
duty ‘to scour the record in search of a
3

reasonable

1

genuine issue of triable fact.’”

2

Simmons v. Navajo Cnty., Ariz., 609 F.3d 1011, 1017 (9th Cir.

3

2010) (quoting Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir.

4

1996)).
III. DISCUSSION

5

Defendant argues its motion should be granted because

6
7

it

had

a

legitimate

8

action that Plaintiff asserts it took against him.
“When

9

a

non-retaliatory

plaintiff

reason

alleges

for

each

retaliatory

adverse

employment

10

termination . . . , and the defendant seeks summary judgment,

11

California

12

Douglas Corp. v. Green, 411 U.S. 792 (1973).” Loggins v. Kaiser

13

Permanente Intern., 151 Cal. App. 4th 1102, 1108-09 (2007). Under

14

this burden shifting construct, Plaintiff has the initial burden

15

of establishing a prima facie case of retaliation or wrongful

16

termination, and if successful, the burden shifts to Defendant,

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“to offer a legitimate, nonretaliatory reason for the adverse

18

employment action. If [Defendant] produces a legitimate reason

19

for the adverse employment action, . . . the burden shifts back

20

to [Plaintiff] to prove intentional retaliation.” Yanowitz v.

21

L’Oreal

22

omitted, emphasis added).

23
24
25
26
27
28

follows

USA,

Inc.,

the

36

burden

Cal.

shifting

4th

1028,

analysis

1042

of

(2005)

McDonnell

(citations

[If
Defendant
demonstrates
a
legitimate
nonretaliatory
reason
for
its
conduct,
Plaintiff] must “offer substantial evidence
that [Defendant’s] stated nondiscriminatory
reason for the adverse action was untrue or
pretextual, or [alternatively, Plaintiff can
defeat Defendant’s motion by identifying
facts showing Defendant] . . . acted with a
discriminatory animus . . . such that a
reasonable trier of fact could conclude that
[Defendant] engaged in [retaliatory action or
4

1

wrongful termination].”

2

Doubt v. NCR Corp., at *5 (N.D. Cal. Aug. 7, 2014) (emphasis

3

added) (quoting Reeves v. MT Transp. Inc., 186 Cal. App. 4th 666,

4

673 (2010)). “An employee in this situation can not simply show

5

that

6

Rather,

7

implausibilities,

8

contradictions in the employer’s proffered legitimate reasons for

9

its actions that a reasonable factfinder would rationally find

10

them unworthy of credence . . . and hence infer that the employer

11

did not act for the . . . non-[retailiatory] reasons.” Dep’t of

12

Fair Emp’t & Hous. v. Lucent Tech., Inc., 642 F.3d 728, 746 (9th

13

Cir. 2011) (quoting Morgan v. Regents of the Univ. of Cal., 88

14

Cal. App. 4th 52, 75 (2000)) (first and second alterations in

15

original).

the

16

employer’s
the

decision

employee

was

must

wrong,

mistaken,

demonstrate

inconsistencies,

such

or

unwise.

weaknesses,

incoherencies,

or

23

When an employer moves for summary judgment,
however, “the burden is reversed . . .
because the defendant who seeks summary
judgment bears the initial burden. Thus, [t]o
prevail on summary judgment, [the employer
is] required to show either that (1) [the]
plaintiff could not establish one of the
elements of the [prima facie] . . . claim or
(2) there was a legitimate nondiscriminatory
reason for its decision . . . . If the
employer meets its burden, the discharged
employee must demonstrate either that the
defendant’s showing was in fact insufficient
or . . . that there was a triable issue of
fact material to the defendant’s showing.”

24

Lawler v. Montblanc N. Am., LLC, 704 F.3d 1235, 1242 (9th Cir.

25

2012) (quoting Dep’t of Fair Emp’t & Hous. v. Lucent Techs.,

26

Inc., 642 F.3d 728, 745-46 (9th Cir. 2011)).

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21
22

Defendant

27
28

Plaintiff

could

states

prove

a

in

its

prima

facie
5

motion
case

that
of

it

assumes

retaliation

and

1

wrongful termination, and that it therefore premises its motion

2

on what it asserts are the legitimate non-retaliatory reasons for

3

the employment actions about which Plaintiff complains.

4

A.

Plaintiff’s assertion that he was wrongfully removed

5

from a Bonus Program

6

Defendant

argues

it

should

be

granted

summary

7

adjudication on Plaintiff’s assertion that he was removed from a

8

bonus

9

contending

program

in

retaliation

Plaintiff

was

for

his

mistakenly

safety

enrolled

complaints,

in

the

wrong

10

program. (Def. Mem. P. & A. ISO Mot. Summ. J. (“Mot.”) 15:3-17,

11

ECF No. 23-1.) Defendant supports this position with portions of

12

the declaration of Marianne Stauber, who worked for Defendant as

13

a Commission Analyst. Stauber declares that Plaintiff had been

14

initially

15

unknown reasons,” and when this “mis-assign[ment] was realized in

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June 2012, the error was corrected by reassigning Plaintiff to

17

the correct bonus program. (Decl. Marianne Stauber ISO Def.’s

18

Mot. Summ. J. (“Stauber Decl.”)

19

“assigned

Plaintiff
since

to

the

argues

wrong

Program

.

.

.

.

for

¶¶ 5-6, ECF No. 23-6.)

this

Defendant’s

Bonus

explanation

“company

pretext

was

to

for

20

retaliation

21

employees of [changes to their bonus program] annually; yet no

22

one ‘caught’ [the] error [concerning Plaintiff’s bonus program]

23

until after Plaintiff made his safety reports.” (Pl. Opp’n 10:15-

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17.) In support of his position, Plaintiff cites portions of his

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deposition testimony that state “[e]very year, [the Defendant]

26

would send out a new [bonus] package that every employee . . .

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would have to sign.” (Decl. Robert L. Boucher ISO Pl’s Opp’n

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Def.’s Mot. Summ. J. (“Boucher Decl.”) Ex. B, (“Fernandes Dep.
6

policy

is

inform

1

Tr.”) 39:13-17, ECF No. 27-5).

2

It

is

uncontroverted2

that

by

the

time

Plaintiff’s

3

bonus program was reassigned in 2012 he had already reported

4

safety issues. (Def. Resp. Pl.’s Add’l Statement of Undisp. Facts

5

(“Pl. SUF”) ¶ 1, ECF No. 28-2.) However, “temporal proximity, by

6

itself . . . does not create a triable fact as to pretext.”

7

Arteaga v. Brink’s, Inc., 163 Cal. App. 4th 327, 334 (2008).

8

Therefore, this portion of Defendant’s motion is granted.

9

B.

10

Requesting Plaintiff’s Motor Vehicle Records
Defendant

argues

its

motion

should

be

granted

on

11

Plaintiff’s assertion that its request for access to his motor

12

vehicle records were retaliatory, since the requests were made

13

according to company policy. (Mot. 15-16.)

14

The following uncontroverted facts concern this issue.

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Defendant operated a driver-safety program and, as part of the

16

program, its insurance broker sends the company an annual list of

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employees from whom it recommends Defendant obtain motor vehicle

18

records to ensure that its employees’ records do not contain

19

violations that disqualify them from driving on the job. (SUF ¶¶

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8-10.)

Based

on

the

list,

Steve

Frenette,

who

worked

in

21
22
23
24
25
26
27
28

2

The word “uncontroverted” refers to facts that are either admitted
or are “deemed” uncontroverted since they have not been controverted with
specific facts as requires by Local Rule 260, which states:
Any party opposing a motion for summary judgment or
summary adjudication [must] reproduce the itemized
facts in the [moving party’s] Statement of Undisputed
Facts and admit those facts that are undisputed and
deny those that are disputed, including with each
denial a citation to the particular portions of any
pleading, affidavit, deposition, interrogatory answer,
admission, or other document relied upon in support of
that denial.

7

1

Defendant’s

2

identified

3

‘unacceptable,’

4

needed.’” Plaintiff’s name appeared on the insurance broker’s

5

list in 2010 and 2011. (SUF ¶¶ 11, 13, 19.) On both occasions,

6

Plaintiff was classified as “borderline” and Frenette requested

7

either a copy of or access to Plaintiff’s motor vehicle records.

8

(SUF ¶¶ 14-15, 19-20.) On both occasions, Plaintiff’s records did

9

not contain any violation that disqualified him from driving on

10

Risk

Management

employees
(2)

into

Department,
one

of

‘borderline,’

“classif[ies]

the

categories:

(1)

three

and

(3)

‘more

information

the job. (SUF ¶¶ 17-8 23.)

11

Plaintiff responds that the request for his records

12

“was different” from requests Defendant made to other employees;

13

however, he does not support this conclusory assertion.

14

& A. ISO Pl.’s Opp’n Def.’s Mot. Summ. J. (“Opp’n”) 8:23-25, ECF

15

No. 27.)
Defendant

16

a

legitimate

18

Plaintiff

19

pretext for retaliation. Therefore, this portion of Defendant’s s

20

motion is granted.

22

has

not

Plaintiff’s

identified

motor

nondiscriminatory

reason

C.

requesting

shown

17

21

for

has

(Mem. P.

evidence

vehicle

that

this

records

and

reason

was

Excluding Plaintiff from Merit-Based Salary Increases
Defendant

argues

its

motion

should

be

granted

on

23

Plaintiff’s assertion that Defendant discontinued his merit-based

24

pay

25

supports its position with the following uncontroverted facts:

26

Defendant used a computer program to determine the merit-based

27

salary increases for its employees, and

28

merit-based

increases

pay

in

retaliation

increase

for

within
8

his

the

safety

complaints

and

Plaintiff received a

range

calculated

by

the

1

computer program for each year he worked for Defendant. (SUF ¶¶

2

28-30.)

3
4

Plaintiff

does

not

respond

to

this

portion

of

the

motion. Therefore, this portion of Defendant’s motion is granted.

5

D.

Refusing to Send Plaintiff to Training

6

Defendant

argues

its

motion

should

be

granted

on

7

Plaintiff’s assertion that it refused to send him to Infinera

8

training in retaliation for his safety complaints, asserting this

9

training was not a requirement for Plaintiff’s position. It is

10

uncontroverted

11

Technician did not require Infinera training. (SUF ¶ 32.)

12

that

Plaintiff

argues

this

pretext

2009,

16

certification

17

ultimately not able to attend the training, and that he was the

18

only Network Technician on the Western Regional Long Haul Route

19

who did not attend the training. (Fernandes Dep. Tr. 185:15-

20

186:1.)

21

deposition testimony from Defendant’s Operations Manager named

22

O’Connor who testified that Plaintiff’s co-workers who attended

23

the training did not report the same type of safety concerns that

24

Plaintiff reported. (O’Connor Dep. Tr. 13:3-7 (referring to Mike

25

Hoppe);

26

(referring to a document indicating Jack Blair found “no critical

27

issues”).

program

113:20-25

him

he

at

the

Infinera

also

supports

(referring

to

would

his

be

his

for

15

told

with

Network

testimony, where he testified that when he was hired in October

Plaintiff

position

is

a

14

Shelton

his

explanation

as

retaliation

28

supports

responsibilities

13

Dave

and

Plaintiff’s

able

School,

position

Chris

deposition

to
that

by

Cogill);

take
he

citing

a
was

to

153:12-20

Plaintiff has shown that his co-workers were permitted
9

1

to attend Infinera training, but Plaintiff’s evidence does not

2

“demonstrate

3

legitimate reason[] for its actions that [could be the basis for]

4

a reasonable factfinder [to] rationally find [it] unworthy of

5

credence,”

6

training was not necessary for Plaintiff’s job responsibilities.

7

Lucent Tech., Inc., 642 F.3d at 746.

in

[a]

weaknesses

light

of

.

the

.

.

in

[Defendant’s]

uncontroverted

fact

that

proffered

Infinera

8

Since Plaintiff failed to identify substantial evidence

9

showing Defendant’s stated reason for refusing to send him to

10

Infinera training was pretext for retaliation, this portion of

11

Defendant’s motion is granted.

12

E.

Verbally Disciplining Plaintiff for Reporting Safety

13

Concerns

14

Defendant

argues

its

motion

should

be

granted

on

15

Plaintiff’s assertion that his supervisor retaliated against him

16

by verbally disciplining him for speaking to a third-party vendor

17

about

18

managerial discretion to instruct [Plaintiff] to work through

19

[safety] issue[s] with [him] rather than [a third party].” (Mot.

20

17:26-18:2.) Defendant supports its position with a portion of

21

the declaration of its Senior Operations Director, who declares

22

that Plaintiff was supposed to “report[] . . . issues up the

23

chain of command” within the company. (O’Connor Decl. ¶¶ 7, 9.)

safety

24
25
26

issues,

since

“it

was

within

[his

supervisor’s]

Plaintiff did not respond to this evidence. Therefore,
this portion of Defendant’s motion is granted.
F.

Taking Plaintiff’s “Master Key”

27

Defendant argues it is entitled to summary adjudication

28

on Plaintiff’s assertion that his master key, which opened all
10

1

rooms

2

retaliation for his safety complaints, since the key was taken by

3

another employee who needed to use it. (Mot. 18:5-10; O’Connor

4

Decl. ¶¶ 16-18.) Defendant supports its position citing portions

5

of the declaration of O’Connor, where O’Connor declares that in

6

April

7

including “management of the Western Regional Long Haul Network”

8

but that at the time, he “did not have a key that enabled . . .

9

access” to sites along the Western Regional Long Haul Network

at

each

2011,

of

regeneration

he

received

Sacramento,”

was

additional

asked

job

from

him

in

responsibilities,

north

11

obtain [Plaintiff’s] ‘master key’ so that [he] could make a copy

12

and use it on [his] visits to the regeneration sites along the

13

Western

14

(O’Connor Decl. ¶¶ 8, 17-18.)

15

Plaintiff

Long

he

taken

10

Regional

so

site,

Haul

responds

Plaintiff’s

Network

that

north

O’Connor’s

supervisor

of

“to

Sacramento.”

statements

are

16

pretext for retaliation since O’Connor did not actually inspect

17

the regeneration sites “until about one year [after Plaintiff’s

18

master key was taken and] well after Plaintiff was terminated.”

19

(Opp’n 19:20-22.) However, this argument is conclusory since the

20

testimony Plaintiff cites does not evince that O’Connor failed to

21

perform a site inspection until one year after Plaintiff turned

22

in his master key. Therefore, this portion of Defendant’s motion

23

is granted.

24

G. Terminating Plaintiff’s Employment

25

Defendant

argues

its

motion

should

be

granted

on

26

Plaintiff’s assertion that his termination was retaliatory, since

27

Plaintiff

28

restructure the Long Haul Team and his position was outsourced in

was

terminated

as

part

11

of

a

larger

decision

to

1

an effort to reduce costs.

2

Plaintiff

responds

that

this

stated

reason

for

his

3

termination is a pretextual mask that conceals the retaliatory

4

reason

5

[outsourced]...,

6

Blair,”

7

Regional Long Haul Network. (Opp’n 11:9-15.) Plaintiff supports

8

his

9

Senior Operations Director for the Western Regional Long Haul

for

with

position

termination

but

whom

given

to

Plaintiff

with

portions

[another

previously

of

the

worked

on

declaration

the

of

Defendant’s

13

Network,” including Jack Blair, and Plaintiff, (O’Connor Decl. ¶

14

6); Plaintiff also argues it is uncontroverted that in August

15

2012, Defendant terminated all employees in Plaintiff’s position

16

except Jack Blair. (SUF ¶¶ 45-46.) Plaintiff further argues that

17

the decision was retaliatory since Plaintiff and Blair worked on

18

the same routes, and Plaintiff reported several violations while

19

Blair

20

portions of O’Connor’s deposition testimony in support of this

21

position; O’Connor testified that Plaintiff and Blair both worked

22

at

23

critical

24

reported “batteries that were failing . . . Marviar units that

25

require[d] cleaning and changing of filters . . . [and] fire

26

extinguishers

27

153:17-154:10.)

reported

Klamath
issues”

.

to

none.

oversee

Falls

(Opp’n

at

that

[Defendant]

the

Western

20:20-23.)

regeneration
the

site

require[d]

a

site

few

2009

Plaintiff

and

through

employed

Regional

months

recharge.”

of

Western

employees]

.

fall

Jack

12

2012,

the

not

named]

employee

was

approximately

mid-August

“[f]rom

“job

11

the

that

his

Network,

.

declares

since

10

28

who

his

Blair
before

(O’Connor

[four

Long

Haul

cites

“found

to

no

Plaintiff

Dep.

Tr.

Defendant replies that Blair was “retained to fill the
12

1

position of Network Specialist” after the reorganization “[b]ased

2

on his experience and qualifications,” (Mot. 18:25-26), and that

3

Plaintiff’s

4

Blair’s qualifications for the position. (Def. Reply SIO Mot.

5

Summ. J. (“Reply”) 16:17-20; 16:24-17:1, ECF No. 28) (emphasis

6

added.) Defendant supports its position by citing to portions of

7

Plaintiff’s deposition testimony, in which Plaintiff testifies

8

Blair “was better than all of us [at computer stuff] . . . [and]

9

had

10

the

deposition

most

testimony

seniority

and

reveals

the

that

training

he

on

acknowledged

[the

relevant

platform.]” (Pl. Dep. Tr. 60:9-12.)

11

Plaintiff’s statement that Blair had not reported any

12

critical safety issues at the Klamath Falls regeneration site

13

several

14

substantial evidence that Plaintiff’s termination was pretext for

15

retaliation since Plaintiff offers no evidence from which the

16

reasonable

17

identified—expired batteries and fire extinguishers and filters

18

that needed to be changed—would be considered “critical” or that

19

they

20

Further, Plaintiff presented no evidence that he should have been

21

retained instead of Bair to fill the role of Network Specialist,

22

especially in light of Plaintiff’s own testimony acknowledging

23

Blair’s experience and skill.

24

Therefore,

25

before

inference

existed

when

can

Blair

this

Plaintiff

be

drawn

inspected

portion

reported

that

the

of

issues

the

is

safety

site

issues

months

Defendant’s

not

he

earlier.

motion

is

granted.

26

H. Refusing to Re-Hire Plaintiff After Termination

27
28

months

Defendant argues it is entitled to summary adjudication
on

Plaintiff’s

assertion

that
13

it

refused

to

rehire

him

in

1

retaliation for his safety complaints, asserting Plaintiff was

2

considered for each position to which he applied, but in each

3

instance “a more qualified candidate was selected.”

4

16.)

5

Plaintiff

counters

that

his

(Mot. 19:15-

personnel

“file

now

6

contains the no-rehire ‘termination checklist,’” conveying he is

7

not

8

(Opp’n 12:17-18; see also Pl. SUF ¶ 32.)

eligible

9

for

re-hire

Defendant

because

replies

that

of

unprofessional

there

is

no

conduct.

evidence

this

10

termination checklist impacted his job applications since of the

11

three jobs for which Plaintiff interviewed, “two of the . . .

12

hiring

13

checklist was placed in Plaintiff’s file, and the third hiring

14

manager “testified that he had no knowledge . . . [Plaintiff] was

15

ineligible for re-hire.” (Reply 21:16-23, ECF No. 28.) In support

16

of its position, Defendant cites to the declaration of its Senior

17

Recruiter and Talent Acquisitions Operations Manager named David

18

Schow who declares that Plaintiff had three interviews and that

19

in each instance he was not ultimately offered the job, but “was

20

marked . . . as being ‘consider for future,’ meaning that there

21

was nothing—other than a more qualified candidate—that prevented

22

[Plaintiff] from being selected.” Decl. David Schow ISO Def.’s

23

Mot. Summ. J. (“Schow Decl.”)

24

Schow also declares that on August 20, 2010, two of the hiring

25

managers with whom Plaintiff interviewed “requested approval to

26

hire [another applicant] for the position,” and on October 1,

27

2010, the third “requested approval to hire [another applicant]

28

for the position.” (Schow Decl. ¶¶ 10, 14, 18.)

managers

made

their

decision

before”

the

termination

¶¶ 11, 15, 19, ECF No. 23-3.)

14

1

The

“termination

checklist”

in

Plaintiff’s

file

is

2

dated August 22, 2012, evincing that it was not in his file when

3

on August 20, 2012 two of the three managers decided to hire a

4

different applicant and therefore could not have impacted their

5

decisions. (Burt Decl. ¶ 5 Ex. D (“Termination Checklist”), ECF

6

No. 23-8.) Further, the third manager declares that at the time

7

he requested permission to hire a different applicant, he “had no

8

knowledge

9

[Defendant].” (Decl. Robert Steckler ISO Def.’s Mot. Summ. J.

10

that

[Plaintiff]

was

ineligible

for

re-hire

with

(“Steckler Decl.”) ¶ 10, ECF No. 23-7.)

11

Defendant presented a legitimate non-retaliatory reason

12

for

declining

to

re-hire

Plaintiff,

and

Plaintiff

has

not

13

presented evidence showing that the termination checklist in his

14

file actually influenced any of the hiring managers. Therefore,

15

this portion of Defendant’s motion is granted.
IV. CONCLUSION

16

For the stated reasons, Defendant’s summary judgment

17
18

motion is GRANTED and this action shall be closed.

19

Dated:

May 22, 2015

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