Muhammad v. Sams Club

Filing 27

ORDER and FINDINGS AND RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 12/15/2014 RECOMMENDING that the 21 Motion for Summary Judgment be granted; RECOMMENDING that judgment be entered for the defendant; ORDERING the defendant to fi le a brief statement within three (3) days, indicating whether or not it consents to the jurisdiction of the Magistrate Judge for all purposes pursuant to 28 U.S.C. § 636(c); VACATING all scheduled dates and deadlines; STAYING all pleading, motion practice and discovery in this action pending final resolution of the findings and recommendations; REFERRING this matter to Judge Troy L. Nunley; ORDERING that any objections be filed within fourteen (14) days. (Michel, G)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DANIAL A. MUHAMMAD,

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Plaintiff,

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No. 2:14-cv-0213-TLN-KJN PS

v.

ORDER AND

SAMS CLUB,

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FINDINGS AND RECOMMENDATIONS
Defendant.

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INTRODUCTION
Presently pending before the court is a motion for summary judgment filed by defendant

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Sam’s West, Inc. (erroneously sued as Sams Club, as subsidiary of Wal-Mart Stores, Inc.). (ECF

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No. 21.)1 Plaintiff Danial A. Muhammad filed opposition briefs to defendant’s motion, and

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defendant filed a reply brief. (ECF Nos. 24, 25, 26.)2 After carefully considering the parties’

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written briefing, the court’s record, and the applicable law, the court recommends that

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defendant’s motion for summary judgment be GRANTED.

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This action proceeds before the undersigned pursuant to E.D. Cal. L.R. 302(c)(21) and 28
U.S.C. § 636(b)(1).
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The motion was submitted without oral argument upon the record and written briefing filed by
the parties.
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BACKGROUND

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Plaintiff was employed as a membership associate of defendant from October 2, 2010,

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until October 10, 2011. (Complaint, ECF No. 1 [“Compl.”] ¶¶ 5, 7; Charge of Discrimination,

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ECF No. 21-1 at 4-5 [“Charge”].) According to plaintiff, he is “an Asian from the Fiji Islands,”

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and “[h]is religion is Muslim.” (Compl. ¶ 5; see also Charge.) Plaintiff claims that defendant

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discriminated and retaliated against plaintiff throughout his employment based on plaintiff’s race,

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color, national origin, religion, and for filing a complaint against his supervisor concerning such

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matters, thus creating a hostile work environment for plaintiff. (Compl. ¶¶ 5, 10, 12, 15; Charge.)

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Specifically, plaintiff asserts that he was forced to “purchase business attire to wear on the

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job, although there were no employee regulations requiring the purchase of special attire for

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[plaintiff’s] position”; he was denied the opportunity to apply for a supervisor position, and a

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“Caucasian, non-Muslim, non-Pacific Islander female employee” was then hired for that position;

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he was given a written warning for an “unbalanced cash register”; he was prevented from

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reviewing a video recording of an incident where plaintiff was accused of “accepting a returned

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generator with the gasoline tank 1/8 full,” even though a “Black, non-Muslim, non-Pacific

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Islander” employee was permitted to see a video tape concerning an alleged cash register incident

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involving that employee; and he was accused of “making inappropriate remarks to a homosexual

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coworker,” although the coworker allegedly told defendant that plaintiff had said nothing

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inappropriate. (Compl. ¶ 5; see also Charge.) Plaintiff was ultimately discharged on October 10,

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2011, for violation of a “coaching policy.” (Compl. ¶ 5; Charge.)3

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Subsequently, plaintiff filed an administrative charge of discrimination based on race,
religion, national origin, and retaliation with the California Department of Fair Employment and

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In his complaint, plaintiff alleges that he was discharged on October 10, 2010. (Compl. ¶ 7.)
However, other portions of the complaint contain allegations of discriminatory conduct in 2011
(Compl. ¶ 5), and the administrative charge of discrimination filed by plaintiff indicates that he
was discharged in October 2011 and that the latest act of discrimination took place on October 10,
2011 (see Charge). Thus, the court concludes that the October 10, 2010 reference is likely an
inadvertent clerical error, and that plaintiff was actually discharged on October 10, 2011.

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Housing (“DFEH”). (Compl. ¶¶ 6, 16; see also Charge.)4 The charge was signed by plaintiff on

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April 4, 2013, and received by the agency on April 9, 2013. (Charge.) On May 6, 2013, the

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DFEH issued a notice indicating that plaintiff’s charge would be handled by the United States

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Equal Employment Opportunity Commission (“EEOC”), and that DFEH was closing its case on

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the basis of “processing waived to another agency.” (See May 6, 2013 DFEH Notice to

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Complainant and Respondent, ECF Nos. 24 at 5 & 25 at 5 [“DFEH Notice”].) The DFEH notice

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also informed plaintiff of his right to sue defendant under California’s Fair Employment and

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Housing Act (“FEHA”). (Id.) Thereafter, on October 24, 2013, the EEOC sent plaintiff a

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“Dismissal and Notice of Rights,” indicating that:

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The EEOC issues the following determination: Based upon its
investigation, the EEOC is unable to conclude that the information
obtained establishes violations of the statutes. This does not certify
that the respondent is in compliance with the statutes. No finding is
made as to any other issues that might be construed as having been
raised by this charge.

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(October 24, 2013 Dismissal and Notice of Rights, ECF No. 1 at 9 [“EEOC Notice”]; see also

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Compl. ¶ 8.) The EEOC notice further notified plaintiff of his right to sue defendant under Title

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VII of the Civil Rights Act of 1964, as amended (“Title VII”). (EEOC Notice.)

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Subsequently, on January 23, 2014, plaintiff commenced this action in federal district

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court. (ECF No. 1.) Liberally construed, plaintiff asserts claims under Title VII and the FEHA

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for employment discrimination and retaliation based on race, color, national origin, and religion.

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The instant motion for summary judgment followed.

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The court takes judicial notice of plaintiff’s administrative charge of discrimination submitted
along with defendant’s motion, given that the charge is a public record and that its existence “is
not subject to reasonable dispute because it…can be accurately and readily determined from
sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b); see also Reyn’s
Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006) (courts may take
judicial notice of court filings and other matters of public record). Indeed, plaintiff has not
disputed the authenticity or accuracy of the charge of discrimination, and references the charge in
his complaint. For these same reasons, the court also takes judicial notice of the May 6, 2013
DFEH notice submitted by plaintiff along with his opposition briefs, and the October 24, 2013
EEOC notice attached to plaintiff’s complaint. However, such judicial notice is limited to the
existence of the documents, their dates of filing/issuance, and the fact that certain allegations or
statements were made in the documents. The court does not assume the truth of the allegations or
statements made in those documents.
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DISCUSSION

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Legal Standard for Summary Judgment Motions

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Federal Rule of Civil Procedure 56(a) provides that “[a] party may move for summary

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judgment, identifying each claim or defense--or the part of each claim or defense--on which

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summary judgment is sought.” It further provides that “[t]he court shall grant summary judgment

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if the movant shows that there is no genuine dispute as to any material fact and the movant is

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entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).5 A shifting burden of proof

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governs motions for summary judgment under Rule 56. Nursing Home Pension Fund, Local 144

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v. Oracle Corp. (In re Oracle Corp. Sec. Litig.), 627 F.3d 376, 387 (9th Cir. 2010). Under

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summary judgment practice, the moving party:

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always bears the initial responsibility of informing the district court
of the basis for its motion, and identifying those portions of “the
pleadings, depositions, answers to interrogatories, and admissions
on file, together with the affidavits, if any,” which it believes
demonstrate the absence of a genuine issue of material fact.

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Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting then-numbered Fed. R. Civ. P.

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56(c)). “Where the non-moving party bears the burden of proof at trial, the moving party need

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only prove that there is an absence of evidence to support the non-moving party’s case.” In re

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Oracle Corp. Sec. Litig., 627 F.3d at 387 (citing Celotex Corp., 477 U.S. at 325); see also Fed. R.

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Civ. P. 56 advisory committee’s notes to 2010 amendments (recognizing that “a party who does

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not have the trial burden of production may rely on a showing that a party who does have the trial

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burden cannot produce admissible evidence to carry its burden as to the fact”).

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If the moving party meets its initial responsibility, the opposing party must establish that a

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genuine dispute as to any material fact actually exists. See Matsushita Elec. Indus. Co. v. Zenith

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Radio Corp., 475 U.S. 574, 585-86 (1986). To overcome summary judgment, the opposing party

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must demonstrate the existence of a factual dispute that is both material, i.e., it affects the

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outcome of the claim under the governing law, see Anderson v. Liberty Lobby, Inc., 477 U.S.

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Federal Rule of Civil Procedure 56 was revised and rearranged effective December 10, 2010.
However, as stated in the Advisory Committee Notes to the 2010 Amendments to Rule 56, “[t]he
standard for granting summary judgment remains unchanged.”
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242, 248 (1986); Fortune Dynamic, Inc. v. Victoria’s Secret Stores Brand Mgmt., Inc., 618 F.3d

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1025, 1031 (9th Cir. 2010), and genuine, i.e., “‘the evidence is such that a reasonable jury could

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return a verdict for the nonmoving party,’” FreecycleSunnyvale v. Freecycle Network, 626 F.3d

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509, 514 (9th Cir. 2010) (quoting Anderson, 477 U.S. at 248). A party opposing summary

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judgment must support the assertion that a genuine dispute of material fact exists by: “(A) citing

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to particular parts of materials in the record, including depositions, documents, electronically

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stored information, affidavits or declarations, stipulations . . . , admissions, interrogatory answers,

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or other materials; or (B) showing that the materials cited do not establish the absence or presence

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of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the

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fact.”6 Fed. R. Civ. P. 56(c)(1)(A)-(B). However, the opposing party “must show more than the

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mere existence of a scintilla of evidence.” In re Oracle Corp. Sec. Litig., 627 F.3d at 387 (citing

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Anderson, 477 U.S. at 252).

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Generally, in resolving a motion for summary judgment, the evidence of the opposing

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party is to be believed. See Anderson, 477 U.S. at 255. Moreover, all reasonable inferences that

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may be drawn from the facts placed before the court must be viewed in a light most favorable to

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the opposing party. See Matsushita, 475 U.S. at 587; Walls v. Cent. Contra Costa Transit Auth.,

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653 F.3d 963, 966 (9th Cir. 2011). However, a “non-movant’s bald assertions or a mere scintilla

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of evidence in his favor are both insufficient to withstand summary judgment.” Fed. Trade

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Comm’n v. Stefanchik, 559 F.3d 924, 929 (9th Cir. 2009). To demonstrate a genuine factual

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dispute, the opposing party “must do more than simply show that there is some metaphysical

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doubt as to the material facts...Where the record taken as a whole could not lead a rational trier of

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fact to find for the non-moving party, there is no ‘genuine issue for trial.’” Matsushita, 475 U.S.

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at 586-87 (citation omitted).

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Analysis

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Defendant first contends that plaintiff’s Title VII and FEHA claims are barred, because

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plaintiff did not file his administrative charge of discrimination within the statutory time periods
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“The court need consider only the cited materials, but it may consider other materials in the
record.” Fed. R. Civ. P. 56(c)(3).
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and thus failed to timely exhaust his administrative remedies. That argument has merit.
Title VII prohibits an employer from “fail[ing] or refus[ing] to hire or [] discharg[ing] any

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individual, or otherwise [] discriminat[ing] against any individual with respect to his [or her]

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compensation, terms, conditions, or privileges of employment, because of such individual’s race,

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color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). In turn, the FEHA prohibits

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an employer from refusing to hire or discharging a person, or discriminating against a person in

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compensation, terms, conditions, or privileges of employment, based on, among other grounds,

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race, religious creed, color, and national origin. Cal. Gov’t Code § 12940(a).

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A plaintiff must exhaust his or her administrative remedies before filing a Title VII or

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FEHA claim in court. Rodriguez v. Airborne Express, 265 F.3d 890, 896 (9th Cir. 2001). “Title

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VII requires aggrieved persons to file a complaint with the EEOC ‘within one hundred and eighty

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days after the alleged unlawful employment practice occurred.’” Delaware State College v.

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Ricks, 449 U.S. 250, 256 (1980) (citing 42 U.S.C. § 2000e-5(e)). Under certain circumstances,

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such as when a charge is initially filed with an appropriate state agency, the period to file with the

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EEOC may be extended up to 300 days. Id. at n.7. The FEHA requires a claimant to file a charge

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with the DFEH within one year of the alleged unlawful conduct. Cal. Gov’t Code § 12960(d); see

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also Rodriguez, 265 F.3d at 896.

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In this case, it is undisputed that plaintiff was discharged from his employment with

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defendant on October 10, 2011, which was also the date on which the last act of alleged

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employment discrimination took place. (See Compl. ¶ 5; Charge.) Furthermore, it is undisputed

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that plaintiff subsequently filed his administrative charge of discrimination on April 9, 2013.

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(See Compl. ¶ 6; Charge.) Thus, given that plaintiff filed his administrative charge more than

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500 days after the last act of alleged discrimination took place, it is clear that plaintiff failed to

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timely exhaust administrative remedies for both his Title VII and FEHA claims.

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Even assuming, without deciding, that the statutory time limits to file an administrative

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charge under Title VII and the FEHA are subject to equitable doctrines, such as waiver, estoppel,

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and tolling, plaintiff has provided no evidence in opposition to defendant’s motion for summary

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judgment suggesting that these doctrines could plausibly save plaintiff’s claims. By way of
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example, there is no evidence in the record that plaintiff acted diligently, but was misled by

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representatives of the EEOC or DFEH, or by defendant, as to the applicable filing deadlines; nor

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is there evidence that plaintiff was somehow unable to discover the basis of his claims prior to the

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applicable filing deadlines.7

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In his opposition, plaintiff appears to argue that the EEOC and/or DFEH would not have

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accepted his administrative charge if it was untimely. However, that argument lacks merit,

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because the administrative agency’s acceptance and/or investigation of an untimely charge is not

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binding on the court with respect to the question of timeliness. Graves v. University of Michigan,

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553 F. Supp. 532, 534 (E.D. Mich. 1982) (“[I]n non-federal employee cases, the EEOC’s decision

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to process an untimely charge is not binding on this court.”); Corbin v. Pan American World

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Airways, Inc., 432 F. Supp. 939, 943-44 (N.D. Cal. 1977) (noting that the EEOC’s decision to

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process a charge is a factor in determining the timeliness of that charge, but that the court makes

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its own independent de novo evaluation); Goldman v. Sears, Roebuck & Co., 607 F.2d 1014,

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1017 (1st Cir. 1979) (same); see also Williams v. City of Belvedere, 72 Cal. App. 4th 84, 93

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(1999) (rejecting argument that the DFEH’s issuance of a right-to-sue letter renders an untimely

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charge timely). Although it does not appear that the Ninth Circuit Court of Appeals has squarely

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addressed the issue, it signaled its likely agreement with the above-cited authorities when it ruled

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on a related issue in Rodriguez as follows:
We do not, however, accept Rodriguez’s view that the mere
acceptance of an amendment by DFEH is conclusive that the
amendment relates back. In the several federal cases addressing
relation back of amended EEOC charges, the agency’s acceptance
of an amended charge did not end the exhaustion analysis. In each
of these cases, the court conducted its own de novo analysis of
whether the amendment related back, and gave no apparent weight
to the fact that the EEOC had accepted and filed the amendment.
We adopt the same approach here.

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Rodriguez, 265 F.3d at 898-99 (internal citations omitted).

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To the contrary, the underlying factual allegations outlined in the Charge, as well as in
plaintiff’s complaint in this action, were plainly known to plaintiff at least as of the time of his
discharge on October 10, 2011.
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Consequently, although the EEOC and/or DFEH in this case elected to accept and process

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plaintiff’s charge, the charge’s untimeliness, to which defendant strongly objects, is readily

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apparent from the undisputed facts before the court. Indeed, it is not even a close question.

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Moreover, the EEOC and DFEH provided no reasoning or analysis concerning the timeliness of

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plaintiff’s charge, and may well simply have overlooked the issue. Under these circumstances,

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the court, in conducting a de novo analysis, gives little weight to any finding of timeliness by the

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EEOC and/or DFEH, and instead finds, for the reasons outlined above, that the charge was

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untimely filed.

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In sum, the court concludes that both plaintiff’s Title VII and FEHA claims are barred,

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because plaintiff did not file his administrative charge of discrimination within the statutory time

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limits, and thus failed to timely exhaust his administrative remedies. Therefore, defendant is

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entitled to summary judgment on all plaintiff’s claims on that basis. In light of that conclusion, it

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is unnecessary to reach and consider the merits of defendant’s remaining arguments.

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Miscellaneous

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On March 10, 2014, plaintiff filed a designation of consent to the jurisdiction of a United

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States Magistrate Judge for all purposes pursuant to 28 U.S.C. § 636(c). (ECF No. 6.) However,

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the court’s record indicates that defendant has not yet filed a consent/decline form. Accordingly,

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the court directs defendant to file a brief statement indicating whether or not it consents to the

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jurisdiction of the undersigned for all purposes pursuant to 28 U.S.C. § 636(c) within three (3)

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days of this order. Importantly, defendant is under no obligation to so consent, and the

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consent/decline designation merely assists the court in determining how the case should be

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processed.

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CONCLUSION

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Accordingly, for the reasons outlined above, IT IS HEREBY RECOMMENDED that:

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1. Defendant’s motion for summary judgment (ECF No. 21) be granted.

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2. Judgment be entered for defendant.

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IT IS ALSO HEREBY ORDERED that:

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1. Within three (3) days of this order, defendant shall file a brief statement indicating
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whether or not it consents to the jurisdiction of the undersigned for all purposes

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pursuant to 28 U.S.C. § 636(c).

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2. All scheduled dates and deadlines in this action are vacated. If necessary, the court
will reschedule case deadlines at a later date.
3. All pleading, motion practice, and discovery in this action are stayed pending final

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resolution of the findings and recommendations. Other than objections to the findings

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and recommendations or non-frivolous motions seeking emergency relief, the court

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will not entertain further motions or amended pleadings until the findings and

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recommendations are resolved.

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The above-mentioned findings and recommendations are submitted to the United States

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District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within

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fourteen (14) days after being served with these findings and recommendations, any party may

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file written objections with the court and serve a copy on all parties. Such a document should be

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captioned “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the

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objections shall be served on all parties and filed with the court within fourteen (14) days after

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service of the objections. The parties are advised that failure to file objections within the

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specified time may waive the right to appeal the District Court’s order. Turner v. Duncan, 158

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F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153, 1156-57 (9th Cir. 1991).

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IT IS SO ORDERED AND RECOMMENDED.
Dated: December 15, 2014

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