Whitsitt v. Amazon.Com et al

Filing 79

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 6/27/19 RECOMMENDING that Motion for Summary Judgment 67 be granted; These Findings and Recommendations are submitted to U.S. District Judge Troy L. Nunley; Objections to these F&Rs due within fourteen days. (Mena-Sanchez, L)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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WILLIAM J. WHITSITT,

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Plaintiff,

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No. 2:14-cv-00416-TLN-CKD PS

v.

FINDINGS AND RECOMMENDATIONS

AMAZON.COM, et al.,

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Defendants.

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Before the court is defendant Amazon.com’s (“defendant”) motion for summary judgment

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against plaintiff. (ECF No. 67.) Defendant’s motion for summary judgment came on regularly

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for hearing on June 13, 2019. Chandra Andrade appeared for defendant. Plaintiff did not appear.

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Upon review of the documents in support and opposition and good cause appearing therefor, THE

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COURT FINDS AS FOLLOWS:

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I.

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Procedural History and Relevant Allegations
Plaintiff alleges the following claims in his second amended complaint: age

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discrimination, retaliation, wrongful public policy termination, privacy violations, and intentional

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infliction of emotional distress arising from his work at an Amazon fulfillment center as a

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temporary non-exempt employee of defendant SMX (“SMX”). (ECF No. 13.) Plaintiff further

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alleges that Amazon discriminatorily failed to hire him directly from an application he allegedly

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submitted in 2013, before he was hired by SMX, in violation of the Age Discrimination in
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Employment Act (“ADEA”). This court dismissed the case sua sponte for failure to state a claim

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before defendant appeared. On September 20, 2016, the Ninth Circuit affirmed in part, reversed

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in part, and remanded, finding that this court had properly dismissed all of plaintiff’s claims other

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than his ADEA claim against defendant based on failure to hire. (ECF No. 23.) On remand, this

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court issued an order that “this action will proceed solely against defendant Amazon.com on

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plaintiff’s claim for age discrimination based on failure to hire.” (ECF No. 24.)

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Plaintiff alleges the following against defendant regarding his ADEA claim for failure to

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hire. Plaintiff is over the age of 40. (ECF No. 13 at 4.) Plaintiff was not hired by defendant and

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saw “all hired as way Considerably Younger and less Qualified.” (Id. at 3.) Plaintiff reported

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this to defendant’s human resources on October 17, 2013, November 13, 2013, and December 1,

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2013. (Id.) Plaintiff alleges that he was well qualified “for any open position at Amazom.com

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[sic]” and has “extensive real life experience in Manufacturing, General Warehousing, Quality

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Control and Reporting to Government Agencies and Law and Legal Affairs.” (Id. at 4.) Plaintiff

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applied for a position by filling out and completing an “Amazon Online Application” on or about

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August 10, 2013. (ECF No. 13 at 4.) Plaintiff believes he was “deliberately and intentionally

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singled out and denied employment by direct hire” by defendant as a result of his age. (Id.)

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Plaintiff noticed “only about 10 or so Workers over the age of 45 out of some 600 amazon

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Employee Workers.” (Id.)

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II.

Legal Standard for a Summary Judgment Motion

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Summary judgment is appropriate when it is demonstrated that there “is no genuine

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dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.

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Civ. P. 56(a). A party asserting that a fact cannot be disputed must support the assertion by

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

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electronically stored information, affidavits or declarations, stipulations (including those made for

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purposes of the motion only), admissions, interrogatory answers, or other materials . . . .” Fed. R.

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Civ. P. 56(c)(1)(A).

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Summary judgment should be entered, after adequate time for discovery and upon motion,
against a party who fails to make a showing sufficient to establish the existence of an element
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essential to that party’s case, and on which that party will bear the burden of proof at trial. See

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Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “[A] complete failure of proof concerning an

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essential element of the nonmoving party’s case necessarily renders all other facts immaterial.”

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Id. at 323.

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If the moving party meets its initial responsibility, the burden then shifts to the opposing

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party to establish that a genuine issue as to any material fact actually does exist. See Matsushita

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Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the

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existence of this factual dispute, the opposing party may not rely upon the allegations or denials

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of their pleadings but is required to tender evidence of specific facts in the form of affidavits,

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and/or admissible discovery material, in support of its contention that the dispute exists or show

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that the materials cited by the movant do not establish the absence of a genuine dispute. See Fed.

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R. Civ. P. 56(c); Matsushita, 475 U.S. at 586 n.11. The opposing party must demonstrate that the

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fact in contention is material, i.e., a fact that might affect the outcome of the suit under the

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governing law, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv.,

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Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is

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genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving

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party, see Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 1987).

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In the endeavor to establish the existence of a factual dispute, the opposing party need not

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establish a material issue of fact conclusively in its favor. It is sufficient that “the claimed factual

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dispute be shown to require a jury or judge to resolve the parties’ differing versions of the truth at

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trial.” T.W. Elec. Serv., 809 F.2d at 630. Thus, the “purpose of summary judgment is to ‘pierce

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the pleadings and to assess the proof in order to see whether there is a genuine need for trial.’”

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Matsushita, 475 U.S. at 587 (quoting Fed. R. Civ. P. 56(e) 1963 advisory committee’s note).

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In resolving the summary judgment motion, the evidence of the opposing party is to be

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believed. See Anderson, 477 U.S. at 255. All reasonable inferences that may be drawn from the

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facts placed before the court must be drawn in favor of the opposing party. See Matsushita, 475

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U.S. at 587. Nevertheless, inferences are not drawn out of the air, and it is the opposing party’s

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obligation to produce a factual predicate from which the inference may be drawn. See Richards
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v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244–45, 1247 (E.D. Cal. 1985), aff’d, 810 F.2d

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898, 902 (9th Cir. 1987). Finally, to demonstrate a genuine issue, the opposing party “must do

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more than simply show that there is some metaphysical doubt as to the material facts . . . . Where

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the record taken as a whole could not lead a rational trier of fact to find for the non-moving party,

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there is no ‘genuine issue for trial.’” Matsushita, 475 U.S. at 586–87 (citation omitted).

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The burden-shifting framework outlined in McDonnell Douglas Corp. v. Green, 411 U.S.

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792 (1973), governs actions for retaliation under the ADEA. Shelley v. Geren, 666 F.3d 599, 607

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(9th Cir. 2012). Under this framework, if the employee establishes a prima face case of

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retaliation, the employee has justified a presumption of retaliation, and the burden of production

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shifts to the employer to articulate a legitimate, nondiscriminatory reason for its allegedly

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retaliatory conduct. Metoyer v. Chassman, 504 F.3d 919, 931 n.6 (9th Cir. 2007). If the

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employer satisfies this burden of production, the presumption of unlawful discrimination “drops

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out of the picture.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 510–11 (1993). The employee

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must then provide evidence that creates a genuine issue of material fact concerning whether the

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employer’s proffered nondiscriminatory reason is merely pretext. Dominguez–Curry v. Nev.

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Transp. Dep’t, 424 F.3d 1027, 1037 (9th Cir. 2005) (citing Coleman v. Quaker Oats Co., 232

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F.3d 1271, 1282 (9th Cir. 2000)). Despite the burden shifting, the ultimate burden of proof

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remains on the plaintiff to show that the employer discriminated against him on the basis of age.

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Coleman, 232 F.3d at 1280–81.

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III.

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Evidentiary Objections
Pursuant to Rule 56(c) of the Federal Rules of the Civil Procedure, “an affidavit or

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declaration used to support or oppose a motion must be made on personal knowledge, set out

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facts that would be admissible in evidence, and show that the affiant or declarant is competent to

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testify on the matters stated.”

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Defendant raises thirty-three evidentiary objections to plaintiff’s evidence in opposition to

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summary judgment. (ECF No. 77.) The court will not address any objections to evidence on the

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ground that the evidence is irrelevant, speculative, or constitutes an improper legal conclusion

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because it may rely only on relevant evidence in addressing the motion. Burch v. Regents of
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Univ. of Cal., 433 F. Supp. 2d 110, 119 (E.D. Cal. 2006) (stating that relevance objections are

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redundant because a court cannot rely on irrelevant facts in resolving a summary judgment

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motion). The court will resolve other objections only to the extent it finds the disputed evidence

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has any bearing on the issues before it. Schwarz v. Lassen Cnty. ex rel. the Lassen Cnty Jail, No.

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2:10–cv–3048 MCE CMK, 2013 WL 5425102, at *13 (E.D. Cal. Sep. 27, 2013) (noting that

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extensive evidentiary objections undercut the goals of judicial efficiency and avoiding costly

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litigation); Olenicoff v. UBS AG, No. SACV 08–1029 AG (RNBx), 2012 WL 1192911, at *7

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(C.D. Cal. Apr. 1, 2012) (“[o]n motions with voluminous objections, ‘it is often unnecessary and

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impractical for a court to methodically scrutinize each objection and give a full analysis of each

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argument raised.’” (quoting Capitol Records, LLC v. BlueBeat, Inc., 765 F. Supp. 2d 1198, 1200

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n.1 (C.D. Cal. 2010))).

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Defendant objects to plaintiff’s evidence that he applied for a position and received

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confirmation from defendant’s website “confirming his application was accepted and that his

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Resume also was downloaded and both timely accepted.” (ECF No. 77 at 4–7 (objection nos. 2–5

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(citing Whitsitt Affidavit at 1:21–25).) Defendant argues that these statements, inter alia, lack

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foundation and contradict prior sworn interrogatory responses.

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The court interprets defendant’s objection as a request that the court deem plaintiff’s

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affidavit a “sham” under the “sham affidavit” or “Foster-Radobenko” rule, which “applies to

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conflicts between affidavits and interrogatory responses as well as deposition testimony.” Sch.

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Dist. No. 1J, Multnomah Cty., Or. v. ACandS, Inc., 5 F.3d 1255, 1264 (9th Cir. 1993). “[T]he

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Radobenko court was concerned with ‘sham’ testimony that flatly contradicts earlier testimony in

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an attempt to ‘create’ an issue of fact and avoid summary judgment.” Kennedy v. Allied Mut.

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Ins. Co., 952 F.2d 262, 266–67 (9th Cir. 1991). In making this determination, the court should

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decide whether the actions “were the result of an honest discrepancy, a mistake, or the result of

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newly discovered evidence.” Id. at 267. Also, if the affiant gives a plausible excuse for the

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contradiction, the affidavit might not be deemed a sham. Jack v. Trans World Airlines, Inc., 854

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F. Supp. 654, 660 (N.D. Cal. 1994).

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Here, the court notes a distinct change in plaintiff’s position. In his discovery responses,
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plaintiff states that he never heard back from defendant after submitting an application. (ECF No.

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68-2 at 2; ECF No. 68-1 at 2.) However, in his affidavit opposing summary judgment, plaintiff

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now claims that he received a confirmation email from defendant after submitting an application.

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(ECF No. 75 at 3.) This affidavit does more than explain plaintiff’s discovery responses

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regarding what happened after he submitted an application—it flatly contradicts them with no

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explanation for the discrepancy. This type of position change supports a finding that plaintiff’s

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affidavits submitted with his opposition conflict with earlier discovery responses and were

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generated solely in an attempt to create a genuine issue of material fact. Sch. Dist. No. 1J, 5 F.3d

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at 1264 (explaining that “a party should not be able to substitute an affidavit alleging helpful facts

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for earlier [discovery responses] harmful to its case in order to avoid summary judgment”).

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Similarly, the affidavit of plaintiff’s friend, Kevin O’Keefe, submitted with plaintiff’s

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opposition, fails to create a genuine issue of material fact as to whether plaintiff received

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communication from defendant following submission of an application. Just as a party who

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opposes a summary judgment motion may not contradict his sworn statements with his own

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declaration, he may not use somebody else’s declaration for that purpose. School Dist. No. 1J, 5

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F.3d at 1264–65. Furthermore, Mr. O’Keefe provides no basis for his knowledge of emails

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plaintiff received in his personal email account.

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For these reasons, the court finds that plaintiff’s affidavit regarding communications from

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defendant is a sham affidavit generated solely to create a genuine issue of material fact.

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IV.

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Relevant Facts
Defendant submitted declarations from Troy Gulbrandson, Piyush Khengar, Christina

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Matthews, and defense counsel Chandra Andrade in support of its motion for summary judgment.

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Khengar is an Amazon.com, Inc. employee and currently works on the implementation of

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integrations between third-party recruiting software and defendant’s information technology

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systems. (ECF No. 67-3 at ¶ 2.) Gulbrandson is a recruiting systems analyst for Amazon

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Corporate LLC. (ECF No. 69 at ¶2.) Defendant’s recruiting system for exempt positions, iCIMS,

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only notifies defendant’s recruiting personnel that an applicant is ready for consideration once

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that applicant applies to a specific job posting through their profile. (ECF No. 67-3 at ¶ 4; ECF
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No. 69 at ¶ 4.) Absent an affirmative act of applying for a specific job posting, iCIMS does not

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trigger review or action by Amazon recruiting personnel. (Id.) Defendant’s recruiting system

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does not include fields for applicants to input ages or dates of birth. (ECF No. 67-3 at ¶ 5; ECF

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No. 69 at ¶ 5.) iCIMS automatically sends standardized correspondence to applicants at different

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stages of the application process. (ECF No. 69 at ¶ 6.) Gulbrandson performed searches in

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iCIMS in February 2017, February 2019, and March 2019 for “Whitsitt,” which searches returned

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a profile that was created on July 31, 2013 with an uploaded resume that was never tied to a

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specific job posting. (Id. at ¶ 8, Ex. A.)

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Matthews is an Amazon.com Services, Inc. employee responsible for performing record

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searches and analyzing the data and functionality of defendant’s non-exempt applicant tracking

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systems software. (ECF No. 67-4 at ¶ 2.) Defendant started migrating applicant data from its old

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applicant tracking system, Taleo, to its new applicant tracking system, Salesforce, in 2013. (Id. at

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¶ 3.) Record searching within Salesforce captures records originally created in Taleo as well as

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records created in Salesforce. (Id.) Matthews performed searches in Salesforce on February 23,

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2017 and February 20, 2019 for “William Whitsitt, Will Whitsitt, and Bill Whitsitt,” which

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searches did not return any record of an application. (Id. at ¶ 4.) From July 2013 forward, Taleo

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automatically sent a confirmation email to applicants when an application was submitted. (Id. at

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¶ 5.)

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Plaintiff admitted in his responses to defendant’s request for admissions that he does not

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believe that anyone from Amazon.com contacted him about his application and resume he

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submitted on defendant’s employment site. (ECF No. 68-2 at 2.) Plaintiff also stated in response

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to interrogatories that he “never heard back from Amazon.com” and it “never responded to” him.

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(ECF No. 68-1 at 2.) Plaintiff states in his affidavit in opposition to the motion that he filled out

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an application, downloaded his resume, and received confirmation that it was received. Plaintiff

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claims he received an email confirmation that he deleted several years ago by accident as

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“unnecessary.” (ECF No. 75 at 3.) Plaintiff’s affidavit also states that defendant’s “application

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asked [plaintiff] for [his] date of birth.” (ECF No. 75 at 5:4.) As noted above, however,

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plaintiff’s affidavit directly contradicts his interrogatory responses regarding receiving a
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confirmation email from defendant. Even if plaintiff’s affidavit is not considered a sham

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affidavit, however, the self-serving nature of the affidavit affords it little deference here and fails

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to establish plaintiff applied for a specific position that put defendant on notice that his

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application was ready for consideration or provided defendant with his age.

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V.

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Analysis
Defendant moves for summary judgment on the grounds that (1) plaintiff never applied

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for a specific position, and (2) even if he had, plaintiff’s application would not have included his

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age and the decision-maker was therefore unaware plaintiff was over 40. (ECF No. 67-1 at 5.)

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Defendant argues that because of this, it cannot have discriminated against plaintiff based on his

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age for a position he never applied for. In opposition, plaintiff argues he filled out an application

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and downloaded his resume and received confirmation that it was received. Plaintiff claims he

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received an email confirmation that he deleted several years ago by accident as unnecessary.

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(ECF No. 75 at 3.) Plaintiff further argues that he was asked for his age when he submitted an

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application. (Id. at 5.)

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Under the ADEA, employers may not “fail or refuse to hire . . . any individual [who is

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forty years old or older] or otherwise discriminate against any individual with respect to his

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compensation, terms, conditions, or privileges of employment, because of [that] age.” 29 U.S.C.

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§ 623(a)(1). To establish an age discrimination claim, plaintiff must show he experienced an

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adverse employment action; in other words, Plaintiff must show “that he applied and was

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qualified for a job for which the employer was seeking applicants, [and] . . . that, despite his

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qualifications, he was rejected.” McDonnell Douglas, 411 U.S. at 802.

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Here, although plaintiff argues in his opposition he received an email confirmation that he

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deleted several years ago, he did not provide any evidence of submitting a specific job application

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with defendant except for his affidavit that states, “I William Whitsitt, did Apply for Permanent

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position with Amazon.” (ECF No. 75 at 3 (emphasis omitted).) Plaintiff also provides an

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affidavit signed by Kevin Ryan O’Keefe stating he witnessed plaintiff “applying for Amazon.com

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. . . [and] getting a confirmation from that website confirming his application was accepted and

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that his Resume also was downloaded and both timely accepted.” (ECF No. 75 at 13:11–12.)
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Mr. O’Keefe’s affidavit does not provide any facts upon which he bases his observations.

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Defendant maintains that it has no record of plaintiff’s application. (ECF No. 67-1 at 6–7.)

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Plaintiff’s mere assertion in his opposition that he applied for an unidentified position is

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insufficient to create a genuine dispute of material fact on this issue. Plaintiff provides only

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vague references to an application combined with his statement that he uploaded his resume,

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which fails to establish a dispute regarding whether an application for a specific job position was

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submitted. Plaintiff states that he filled out an application, downloaded his resume, and received

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confirmation that it was received. (ECF No. 75 at 3.) Defendant’s evidence confirms that

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plaintiff did create an account and uploaded his resume on July 31, 2013. (ECF No. 67-1 at 6.)

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However, the issue, which is not squarely addressed by plaintiff’s affidavit, is whether plaintiff

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applied for a specific job that would have put defendant on notice of his application. (See id. at 6

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(explaining that defendant’s recruiting system for exempt positions only notifies defendant’s

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recruiting personnel that an applicant is ready for consideration once that applicant applies to a

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specific job posting through their profile).)

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Without further evidence, plaintiff’s self-serving testimony is insufficient to defeat

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summary judgment because he fails to provide any facts showing that he applied for a specific

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position that put defendant on notice that his application was ready for consideration. See

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McDonnell Douglas, 411 U.S. at 802 (plaintiff must show that he applied for a job for which the

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employer was seeking applicants); see also Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888

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(1990) (explaining that the object of Rule 56 “is not to replace conclusory allegations of the

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complaint or answer with conclusory allegations of an affidavit”); Villiarimo v. Aloha Island Air,

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Inc., 281 F.3d 1054, 1061 (9th Cir. 2002) (explaining that “this court has refused to find a

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‘genuine issue’ where the only evidence presented is ‘uncorroborated and self-serving’

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testimony” (emphasis added) (quoting Kennedy v. Applause, Inc., 90 F.3d 1477, 1481 (9th Cir.

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1996))); Nigro v. Sears, Roebuck & Co., 784 F.3d 495, 497 (9th Cir. 2015) (explaining that

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although a court may not disregard a piece of evidence at the summary judgment stage solely

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based on its self-serving nature, a self-serving declaration does not always create a genuine issue

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of material fact for summary judgment and the district court “can disregard a self-serving
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declaration that states only conclusions and not facts that would be admissible evidence”); FTC v.

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Publ’g Clearing House, Inc., 104 F.3d 1168, 1171 (9th Cir. 1997) (noting that “conclusory, self-

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serving affidavits” and “statements in []briefs” that lack “detailed facts and any supporting

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evidence, [are] insufficient to create a genuine issue of material fact”).

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Plaintiff has not met his burden of presenting specific, internally consistent evidence that

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defendant’s alleged reasons for not hiring plaintiff are a pretext for a discriminatory motive.

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Indeed, plaintiff offers no evidence showing that he applied for a specific position with defendant

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or that he provided his age to defendant. He does not possess a copy of the website message

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stating an application for a specific job was received or an email from defendant confirming

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receipt of his application (as opposed to confirmation that he created a profile). (ECF No. 75 at

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3:14–16.) Importantly, as discussed above, plaintiff provides inconsistent statements as to

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whether he ever even received communications from defendant following submission of his

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resume. (Compare ECF No. 68-1 at 2 (plaintiff’s interrogatory response stating “I never heard

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back from Amazon.com”) and ECF No. 68-2 at 2 (plaintiff’s responses to request for admissions,

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admitting that he does not believe that anyone from Amazon.com contacted him about his

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application and resume he submitted on defendant’s employment site) with ECF No. 75 at 3

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(stating plaintiff received an “email confirmation” after downloading his resume)); See Nigro,

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784 F.3d at 498 (explaining that uncorroborated and self-serving testimony may be sufficient to

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establish a genuine dispute of fact where it is internally consistent).

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In sum, defendant met its burden to show that plaintiff cannot present a prima facie case

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of age discrimination under the ADEA because he cannot establish that he applied for a specific

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job with defendant that put defendant’s recruiting personnel on notice that an application was

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ready for consideration. Plaintiff has not created a genuine dispute of material fact that he applied

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for a position and, therefore, fails to meet the second element of the McDonnell Douglas

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framework. See McDonnell Douglas, 411 U.S. at 802 (holding that to establish a claim for

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discrimination, a plaintiff must demonstrate that he actually “applied and was qualified for” the

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position).

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Even assuming arguendo plaintiff did submit an application for a specific position,
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defendant presented evidence showing that its application software does not require an

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applicant’s age and defendant therefore could not have been aware of plaintiff’s age. (ECF No.

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69 at ¶ 5; ECF No. 67-3 at ¶ 5.) Plaintiff again provides no evidence other than a self-serving

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affidavit claiming defendant’s “application asked [plaintiff] for [his] date of birth.” (ECF No. 75

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at 5:4.) However, plaintiff provides no other evidence to support his self-serving statement, and

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his resume that he claims was uploaded provides no indication of his age. (ECF No. 69-1.)

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Evidence presented by the nonmoving party that only provides “some metaphysical doubt as to

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the material facts,” Matsushita, 475 U.S. at 586, such as a “scintilla of evidence” or evidence that

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is “merely colorable” or “not significantly probative,” Anderson, 477 U.S. at 249–50, 252, does

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not make an issue of material fact genuine. Plaintiff again has not created a genuine dispute of

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material fact that he provided his age when he applied for an unidentified position and, therefore,

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fails to meet this element under McDonnell Douglas. Shelley, 666 F.3d at 608 (explaining that a

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prima facie case of age discrimination “requires evidence adequate to create an inference that an

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employment decision was based on an illegal discrimination criterion”). Even if the court were to

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assume that defendant received an application from plaintiff, defendant asserts that it would not

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have been aware of plaintiff’s age and cannot therefore have discriminated against plaintiff based

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on his age. These assertions are supported with unrefuted documentary evidence. Defendant has

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therefore established non-discriminatory reasons for not hiring plaintiff.

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In sum, the ultimate burden of proof remains on the plaintiff to show that defendant

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discriminated against him on the basis of age. Coleman, 232 F.3d at 1280–81. Plaintiff has not

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done so here. On this record, plaintiff has failed to create a triable issue of fact as to the elements

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of and ADEA claim. Thus, summary judgment should be granted as to plaintiff’s ADEA claim.

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Accordingly, IT IS HEREBY RECOMMENDED that defendant’s motion for summary
judgment (ECF No. 67) be granted.

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These findings and recommendations are submitted to the United States District Judge

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

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after being served with these findings and recommendations, plaintiff may file written objections

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with the court and serve a copy on all parties. Such a document should be captioned “Objections
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to Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file

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objections within the specified time may waive the right to appeal the District Court’s order.

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Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: June 27, 2019

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