Gnanasigamani v. SGS Testcom, Inc.

Filing 49

ORDER signed by District Judge Kimberly J. Mueller on 5/17/17: Defendant's motion for summary judgment is GRANTED in full. This case is CLOSED. This order resolves ECF Nos. 27 and 34. (Kaminski, H)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 AMALRAJ GNANASIGAMANI, 12 Plaintiff, 13 14 No. 2:15-cv-01931-KJM-EFB v. ORDER SGS TESTCOM, INC., 15 Defendant. 16 17 This case is before the court on plaintiff Amalraj Gnanasigamani’s suit against 18 19 former employer SGS Testcom, Inc., for retaliation and racial discrimination. Defendant moves 20 for summary judgment. At hearing on defendant’s motion, Richard Gray and Britney Torres 21 appeared for defendant and Vicki Cody appeared for plaintiff. ECF No. 42. As explained below, 22 the court GRANTS defendant’s motion for summary judgment. 23 I. PROCEDURAL HISTORY 24 Plaintiff filed the original complaint against SGS Testcom on June 24, 2015 and 25 the operative First Amended Complaint on June 10, 2016. ECF Nos. 1, 19. The operative first 26 amended complaint presents four claims: (1) retaliatory termination in violation of California 27 Labor Code section 1102.5; (2) retaliatory termination in violation of California’s False Claims 28 Act, California Government Code section 12650, et seq.; (3) wrongful termination in violation of 1 1 public policy; and (4) unlawful racial discrimination in violation of 42 U.S.C. § 1981. See 2 generally ECF No. 19. On December 30, 2016, defendant moved for summary judgment on 3 plaintiff’s claims. Mot., ECF No. 27.1 Plaintiff opposed. Opp’n, ECF No. 28. Defendant 4 replied. Reply, ECF No. 30. 5 II. FACTUAL BACKGROUND 6 SGS Testcom (SGS) is a national company with an office in Rancho Cordova, 7 California. Christopher Marlow Decl. (Marlow Decl.) ¶ 2, ECF No. 27-6. 2 The Rancho Cordova 8 office is responsible for providing information technology (IT) and help desk support to the 9 California Bureau of Automotive Repair’s (BAR) smog check program. Id. The program 10 implements an initiative through which BAR records vehicle smog checks conducted in 11 California. Id. ¶ 5. Smog check facilities throughout the state obtain certificates from the BAR, 12 complete the checks, and report them back to the BAR. Id. 13 A. 14 Plaintiff’s Employment and Smog Program Plaintiff began working at the Rancho Cordova office in 2005 as a contractor, 15 became an ETL developer3 in 2007, and then a database administrator in 2009 until he was 16 terminated in 2014. UMF No. 2. As a database administrator, plaintiff was responsible for 17 maintaining the IT system used to assess the smog check certificates, as well as continually 18 monitoring and updating the IT system. Marlow Decl. ¶ 5. While a database administrator, 19 plaintiff’s supervisor was IT Operations Manager Christopher Marlow. UMF No. 3. Marlow’s 20 supervisor was Program Manager Michael Earl. UMF No. 4. 21 22 23 1 On January 17, 2017, the court dismissed defendant’s motion without prejudice for failure to meet and confer with plaintiff. ECF No. 29. Defendant filed a meet and confer certification on February 3, 2017, ECF No. 34, so the court relies on the previously filed motion. 24 2 25 26 27 28 As explained below, Marlow is plaintiff’s supervisor. Undisputed Material Fact (UMF) No. 3, ECF No. 28-3. 3 Although the parties do not define the acronym, “ETL” appears to stand for “extract, transform, and load.” An ETL developer extracts data from a data source, transforms it, and loads it into a database or data warehouse. See “Extract, transform, load,” Wikipedia (last visited May 16, 2017). 2 1 In 2014, SGS began implementing a new software program to provide assistance 2 to the BAR smog program. UMF No. 6. The new software system, referred to as “CalVis,” 3 allowed new smog check stations to be added to the SGS IT system database on a continual basis. 4 Marlow Decl. ¶¶ 11, 12. 5 B. 6 Plaintiff’s Termination Defendant contends from May to August 2014 plaintiff engaged in a series of 7 actions warranting termination. On May 29, Michael Earl gave plaintiff a written warning for 8 failing to address IT configuration errors over a weekend while plaintiff was an on-call database 9 administrator. Pl.’s Dep. at 105:7–106:4. Plaintiff argues he could not address the configuration 10 errors because he was addressing a parallel IT issue that same weekend. ECF No. 30–1 at 3. 11 Plaintiff cites to no portion of the record establishing this disputed fact. In any event, plaintiff 12 does not dispute he received the warning from Earl, and the court treats this fact as undisputed. 13 See Huynh v. J.P. Morgan Chase & Co., No. 06–0001, 2008 WL 2789532, at *15 (D. Ariz. July 14 17, 2008) (construing defendant’s material fact as undisputed when plaintiff did not cite to record 15 in support of a dispute). 16 Slightly more than two months later, on August 7, Chris Marlow asked plaintiff to 17 restore SGS data that had been corrupted. Pl.’s Depo. at 134:10–139:1.4 Marlow requested 18 plaintiff find the corrupted data as soon as possible to avoid further corruption. Id. Plaintiff 19 attempted to find the corrupted data, but he did so during a non-maintenance window, a time 20 period when SGS handles a high volume of smog-reporting activity sent in from facilities 21 throughout California. Id.; Marlow Decl. ¶ 8. Defendant contends plaintiff’s conduct in this 22 respect violated company policy and placed a “significant burden on the [CalVis] system,” which 23 led to an outage for five to ten minutes during peak hours. Marlow Decl. ¶ 14. Defendant points 24 to evidence suggesting this outage hurt their reputation with the BAR. Id. 25 26 27 28 4 Defendant provides excerpts of plaintiff’s deposition, ECF No. 27-7, and the full deposition has been lodged with the court. 3 1 On August 12, plaintiff made IT configuration adjustments, and he did so again 2 during a non-maintenance window. Pl.’s Dep. at 144:22–159:7. Defendant contends plaintiff’s 3 conduct caused another system outage, which lasted thirty minutes during peak hours. Marlow 4 Decl. ¶ 15. 5 Regarding the August 7 system crash, plaintiff disputes the scope of his 6 contribution to the system outage. He points to his own deposition testimony suggesting any 7 changes to the system could be, and often were, done at various times throughout the day with 8 minimal impact. Pl.’s Dep. at 134:10–24. Plaintiff also points to evidence suggesting the outage 9 occurred because the CalVis developer added two million rows of data to the system without 10 notifying the plaintiff. PUMF No. 6; Pl’s. Dep. at 147:14–18. Nothing in the record shows 11 plaintiff received a warning for this conduct. 12 Regarding the August 12 system crash, plaintiff also disputes the scope of his 13 contribution to the outage. He points again to his own deposition testimony suggesting the outage 14 occurred after Michael Earl added thousands of smog check stations to the CalVis system without 15 advance warning, which strained the efficiency of the program. Pl.’s Dep. at 139:1–25. And 16 again, nothing in the record shows plaintiff received a warning for this conduct. 17 On August 12, 2014, after the system crash on that date, defendant terminated 18 plaintiff’s employment. Marlow Decl. ¶ 16. In a video conference with plaintiff, as plaintiff 19 explains, Marlow told him BAR had concluded plaintiff did not know how to “manage [his] own 20 application,” which prompted his termination. Pl.’s Dep. at 132:21–25, 159:20–23; see also 21 Marlow Decl. ¶ 17. Michael Earl participated in and concurred with the termination decision. 22 UMF No. 10. 23 C. Plaintiff’s Evidence of Discrimination 24 Plaintiff contends he was terminated under racially discriminatory circumstances. 25 To support his contention, plaintiff first points to his own deposition testimony explaining SGS’s 26 three-warning then termination policy. Specifically, SGS had a practice of giving three warnings 27 and terminating employment after seeing no improvement. Pl.’s Dep. at 221:14–18. Plaintiff 28 4 1 was terminated after one warning. Id. On the other hand, plaintiff says a Caucasian co-worker 2 continued to work at SGS despite three warnings. Id. at 221:1–223:4. 3 Defendant also points to plaintiff’s deposition testimony, noting plaintiff’s 4 concession that SGS’s termination policy included flexible disciplinary measures that are 5 discretionary with management, and thereby not as rigid as plaintiff otherwise contends. Id. at 6 267:10–268:23. Defendant also notes plaintiff conceded he had no first-hand knowledge of the 7 warnings his Caucasian co-worker purportedly received. Id. at 221:8–225:17. 8 III. 9 LEGAL STANDARDS A court will grant summary judgment “if . . . there is no genuine dispute as to any 10 material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). 11 The “threshold inquiry” is whether “there are any genuine factual issues that properly can be 12 resolved only by a finder of fact because they may reasonably be resolved in favor of either 13 party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). 14 The moving party bears the initial burden of showing the district court “that there 15 is an absence of evidence to support the nonmoving party’s case.” Celotex Corp. v. Catrett, 16 477 U.S. 317, 325 (1986). The burden then shifts to the nonmoving party, which “must establish 17 that there is a genuine issue of material fact . . . .” Matsushita Elec. Indus. Co. v. Zenith Radio 18 Corp., 475 U.S. 574, 585 (1986). In carrying their burdens, both parties must “cit[e] to particular 19 parts of materials in the record . . . ; or show [] that the materials cited do not establish the 20 absence or presence of a genuine dispute, or that an adverse party cannot produce admissible 21 evidence to support the fact.” Fed. R. Civ. P. 56(c)(1); see also Matsushita, 475 U.S. at 586 22 (“[the nonmoving party] must do more than simply show that there is some metaphysical doubt as 23 to the material facts”). Moreover, “the requirement is that there be no genuine issue of material 24 fact . . . . Only disputes over facts that might affect the outcome of the suit under the governing 25 law will properly preclude the entry of summary judgment.” Anderson, 477 U.S. at 247–48. 26 In deciding a motion for summary judgment, the court draws all inferences and 27 views all evidence in the light most favorable to the nonmoving party. Matsushita, 475 U.S. at 28 587-88; Whitman v. Mineta, 541 F.3d 929, 931 (9th Cir. 2008). “Where the record taken as a 5 1 whole could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine 2 issue for trial.’” Matsushita, 475 U.S. at 587 (quoting First Nat’l Bank of Ariz. v. Cities Serv. 3 Co., 391 U.S. 253, 289 (1968)). 4 IV. DISCUSSION 5 Defendant moves for summary judgment on all claims. See Mot. at 8–13. 6 Plaintiff contends material disputes of fact preclude summary judgment for each claim. See 7 Opp’n at 6–8. The court reviews the record on each claim below. 8 9 10 11 A. California Labor Code Section 1102.5 Defendant contends plaintiff has not established he engaged in “protected activity” under California Labor Code section 1102.5. Mot. at 7. “California’s general whistleblower statute,” codified in section 1102.5, “reflects 12 the broad public policy interest in encouraging workplace whistle-blowers to report unlawful acts 13 without fearing retaliation.” McVeigh v. Recology S.F., 213 Cal. App. 4th 443, 468 (2013) 14 (internal citations omitted). Section 1102.5 provides, in relevant part, 15 16 17 18 19 20 An employer . . . shall not make, adopt, or enforce any rule, regulation, or policy preventing an employee from disclosing information to a government or law enforcement agency . . . if the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation. . . Cal. Lab. Code § 1102.5(a). To establish a prima facie case of whistleblower retaliation under section 1102.5, a 21 plaintiff must show (1) he engaged in a protected activity, (2) his employer subjected him to an 22 adverse employment action, and (3) there is a causal link between the two. Mokler v. Cnty. of 23 Orange, 157 Cal. App. 4th 121, 138 (2007). Defendant’s motion attacks the first element of 24 plaintiff’s prima facie case, challenging whether he engaged in protected activity. Accordingly, 25 the court reviews what “protected activity” means in this context. 26 “Protected activity” means disclosure of conduct the whistleblower reasonably 27 believes amounts to a violation of state or federal law. Patten v. Grant Joint Union High Sch. 28 Dist., 134 Cal. App. 4th 1378, 1385 (2005), see Edgerly v. City of Oakland, 211 Cal. App. 4th 6 1 1191, 1202 (2012) (“[s]ection 1102.5 of the Labor Code requires that to come within its 2 provisions, the activity disclosed by an employee must violate a federal or state law, rule or 3 regulation); Mueller v. Cty. of L.A., 176 Cal. App. 4th 809, 821 (2009) (same). 4 In Patten, for example, the California Court of Appeals concluded a jury could 5 find a school principal engaged in protected activity by disclosing the school’s unauthorized use 6 of public assets to state legislators. Patten, 134 Cal. App. 4th at 1385. The disclosure of this 7 conduct, juxtaposed with plaintiff’s belief that the school’s expenditures were illegitimate, raised 8 a triable issue of fact regarding protected activity. Id. On the other hand, “protected activity” did 9 not encompass the following disclosures: (1) accusations to district superiors that a male physical 10 education teacher was peering into the girls’ locker room, (2) accusations to superiors that the 11 male science teacher made certain off-color remarks, or (3) requests for additional staff to keep 12 the campus safe. Id. at 1382. These disclosures, although made by a government employee to a 13 government agency, “indisputably encompassed only the context of internal personnel matters 14 involving a supervisor and her employee, rather than the disclosure of a legal violation.” Id. at 15 1384–85. Because these disclosures were made in an exclusively internal administrative context, 16 they did not show a belief on the principal’s part that she was disclosing a “violation of state or 17 federal law in any sort of whistleblowing context, as required for a section 1102.5[] 18 whistleblowing action.” Id. at 1385. Summary judgment was denied in part. Id. at 1391. 19 Here, plaintiff contends defendant’s new system, which was designed to report 20 California smog data to the BAR, was defective and lacking in capacity to manage the “thousands 21 of smog transactions which occur in California on a daily basis.” Opp’n at 3–4. Plaintiff further 22 contends he engaged in protected activity by repeatedly voicing his concerns to “his managers” 23 about deficiencies in the CalVis system. Id. at 7. Plaintiff cites no evidence showing he “voiced 24 concerns” about the CalVis system to anyone, and the court need not comb the record for a reason 25 to deny summary judgment. Gordon v. Virtumundo, Inc., 575 F.3d 1040, 1058 (9th Cir. 2009). 26 Even if plaintiff had produced evidence of his complaints, he has not identified 27 any violation of law of which he complained. Plaintiff’s complaints are more akin to “internal 28 personnel matters . . . rather than the disclosure of a legal violation.” Patten, 134 Cal. App. 4th 7 1 at 1384–85. Even construing any evidence in plaintiff’s favor, no reasonable jury could find 2 plaintiff engaged in “protected activity” within the meaning of section 1102.5. Summary 3 judgment is GRANTED on this claim. 4 5 B. California False Claims Act Retaliatory Termination Defendant contends that summary judgment is warranted on this claim because 6 plaintiff has not established “protected activity” within the meaning of the California False 7 Claims Act (CFCA). Mot. at 11. Plaintiff contends his “repeated efforts to help his employer 8 avoid having a system that failed” constitute “protected activity,” precluding a grant of summary 9 judgment. Opp’n at 7. 10 To sustain a retaliation claim under the CFCA, the plaintiff must point to evidence 11 showing (1) he was engaged in protected activity; (2) the employer knew he was engaged in such 12 conduct; and (3) the employer retaliated against him because of the conduct. Mendiondo v. 13 Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008) (discussing California False 14 Claims Act). To establish “protected activity,” the plaintiff must show he in good faith believed, 15 and a reasonable employee in the same or similar circumstances might believe, the employer is 16 possibly committing fraud against the government. Id.; Moore v. Cal. Inst. of Tech. Jet 17 Propulsion Lab., 275 F.3d 838, 846 (9th Cir. 2002). Because the Ninth Circuit looks to the 18 federal False Claims Act to assess the California analog, see Mendiondo, 521 F.3d at 1104, this 19 court looks to Ninth Circuit decisions based on the federal False Claims Act to determine the 20 showing needed to establish “protected activity.” 21 In Moore, the Ninth Circuit held that where a government contractor submitted for 22 payment a report omitting information directly contradicting a claim made to the government, the 23 plaintiff engaged in “protected activity” by submitting a false claims complaint against the 24 contractor to the government Inspector General’s Office. 275 F.3d at 845–46. The plaintiff’s 25 employer then proposed to eliminate plaintiff’s job title and transfer him to another group without 26 allowing him to complete several long-term projects. Id. at 842. From this, the court concluded 27 a jury could find the plaintiff had a good faith and reasonable belief that the defendant was 28 attempting to defraud the government in violation of the federal False Claims Act. Id. The court 8 1 also concluded a jury could find the employer’s “proposed” acts were “reasonably likely to deter 2 employees from engaging in activity protected under the False Claims Act,” and thereby could 3 find retaliatory conduct. Id. at 848. Accordingly, the plaintiff could proceed to trial with his 4 False Claims Act retaliation claim. Id. 5 Here, by contrast, plaintiff’s “repeated efforts to help his employer avoid having a 6 system that failed” does not constitute protected activity. See Opp’n at 7. Plaintiff does not 7 articulate or otherwise establish circumstances substantiating his belief that fraudulent activity 8 was afoot. While plaintiff points to defects in defendant’s system, at no point in his recitation of 9 material facts does plaintiff identify defendant’s submission of a false claim to the government or 10 other incidents of fraud against the government. Mendiondo, 521 F.3d at 1104. The SGS system 11 outages—a purported consequence of not heeding plaintiff’s “repeated efforts”—do not raise 12 plaintiff’s conduct to the level of “protected activity.” Tribble v. Raytheon Co., 414 F. App’x 98, 13 99 (9th Cir. 2011) (plaintiff’s statement that company product has “latent defect” without more, 14 did not rise to level of “protected activity”).5 15 16 Summary judgment is GRANTED on this claim. C. 17 Wrongful Termination in Violation of California Public Policy Plaintiff’s claim of wrongful termination in violation of public policy is based only 18 on his claims under section 1102.5 and the CFCA, FAC ¶ 44, neither of which have survived. 19 Accordingly, the derivative public policy claim must fail as well. See United States ex rel. Kelly 20 v. Serco, Inc., 846 F.3d 325, 336 (9th Cir. 2017) (district court’s determination that defendant did 21 not violate Labor Code section 1102.5 foreclosed plaintiff’s public policy claim based on a 22 violation of section 1102.5 as a matter of law); Tribble, 414 F. App’x at 99 (public policy claim 23 precluded where FCA claim dismissed). 24 25 26 27 Summary judgment is GRANTED on this claim. 5 This Ninth Circuit holding is persuasive, although not binding, on this court. Ninth Circuit Rule 36–3; see also, e.g., Johnson v. Nevada ex rel. Bd. of Prison Comm’rs, No. 11– 00487, 2013 WL 5428423, at *7 (D. Nev. Sept.26, 2013) (under Ninth Circuit Rule 36–3, unpublished Ninth Circuit opinions have “only persuasive rather than authoritative or precedential value.”). 28 9 1 D. 2 Section 1981 Racial Discrimination Finally, defendant moves for summary judgment on plaintiff’s racial 3 discrimination claim. Mot. at 12. In opposition, plaintiff states he has established the requisite 4 showing, contending that defendant contravened its own “three-warning then termination” policy 5 to keep a Caucasian co-worker after three warnings while firing plaintiff after only one. Opp’n at 6 5. 7 Under 42 U.S.C. § 1981, discrimination based on “ancestry or ethnic 8 characteristics” is prohibited. Fonseca v. Sysco Food Servs. of Ariz., Inc., 374 F.3d 840, 850 (9th 9 Cir. 2004) (internal citations omitted). In analyzing plaintiff’s race discrimination claim under 10 § 1981, the court applies “the same legal principles as those applicable in a Title VII disparate 11 treatment case.” Id. 12 In a Title VII case, the court applies a burden shifting framework, whereby the 13 plaintiff must first establish a prima facie case of discrimination, and the defendant must then 14 articulate a “legitimate, nondiscriminatory reason for its allegedly discriminatory [or retaliatory] 15 conduct.” Metoyer, 504 F.3d at 931 n.6 (brackets in original). The plaintiff may then defeat 16 summary judgment by satisfying the “usual standard of proof required” under Federal Rule of 17 Civil Procedure 56(c). Id. 18 To establish a prima facie case of discrimination, the plaintiff may show: (1) he 19 was a member of a protected class; (2) he was qualified for the position sought or was 20 competently performing in the position held; (3) he suffered an adverse employment action; and 21 (4) the action occurred under circumstances suggesting a discriminatory motive. McDonnell 22 Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Fonseca, 374 F.3d at 850. 23 To satisfy the fourth element, a plaintiff may show “an inference of discrimination 24 in whatever manner is appropriate in the particular circumstances.” Hawn v. Exec. Jet Mgmt., 25 Inc., 615 F.3d 1151, 1156 (9th Cir. 2010) (citing Diaz v. Am. Tel. & Tel., 752 F.2d 1356, 1361 26 (9th Cir. 1985)). Where, as here, the plaintiff’s case “relies on a comparison between” himself 27 and another racial group, plaintiff invokes a “similarly situated” theory of discrimination. Id. In 28 such a case, the court need only focus on the asserted “inference of discrimination . . . central to 10 1 plaintiff[’s] case” and need not look to any other circumstances “surrounding the adverse 2 employment action [that] give rise to an inference of discrimination.” Id. at 1156–57. 3 “Whether two employees are similarly situated is ordinarily a question of fact.” 4 Id. at 1157 (internal citations omitted). The employees’ roles need not be identical; they must 5 only be similar “in all material respects.” Id. Generally, the Ninth Circuit has determined 6 “individuals are similarly situated when they have similar jobs and display similar conduct.” Id. 7 (citing Vasquez v. Cty. of L.A., 349 F.3d 634, 641 (9th Cir. 2003)). In Earl v. Nielsen Media 8 Research, Inc., for example, employees were “similarly situated” where they repeatedly violated 9 similar policies. 658 F.3d 1108, 1113 (9th Cir. 2011). In Vasquez, on the other hand, employees 10 were not similarly situated where the type and severity of alleged offenses were dissimilar. 349 11 F.3d at 641. 12 With these standards in mind, the court assesses the evidence at bar, such as it is. 13 1. 14 Here, plaintiff is a native of India, Pl.’s Dep. 221:4, is a racial minority, and is Prima Facie Case 15 thereby part of a protected class for purposes of his claim, satisfying the first element, 16 McDonnell, 411 U.S. at 800. Regarding the competent performance prong, plaintiff contends his 17 superiors consistently recognized him as highly qualified and productive, Opp’n at 3, but cites to 18 no supporting evidence. Even assuming plaintiff satisfied the second element, he cannot prevail 19 as discussed below. It is not disputed that plaintiff satisfies the third prong of the prima facie 20 showing; his termination amounts to an adverse employment action. Little v. Windermere 21 Relocation, Inc., 301 F.3d 958, 970 (9th Cir. 2002). 22 Regarding the fourth prong, however, plaintiff has not presented evidence from 23 which a reasonable jury could conclude plaintiff’s termination occurred under discriminatory 24 circumstances. Plaintiff points to evidence showing a Caucasian co-worker remained employed 25 after three warnings while plaintiff was fired after one. Pl.’s Dep. at 221:1–223:4. But plaintiff 26 has produced no evidence showing his co-worker had a similar job, engaged in similar conduct, 27 or violated similar rules, such that plaintiff’s termination occurred under circumstances showing 28 he was “similarly situated.” See Vasquez, 349 F.3d at 641; see Hawn, 615 F.3d at 1152 (key 11 1 inquiry is whether “employees were similarly situated”). Plaintiff concedes he does not actually 2 know the circumstances surrounding the three warnings the other employee received, or any 3 details regarding SGS’s decision to keep his co-worker. Pl.’s Dep. at 222:18–21. Plaintiff also 4 concedes that while he worked at SGS he witnessed other Caucasian co-workers being fired, but 5 he did not know the reasons underlying their termination. Id. at 229:12–19. 6 Belatedly, plaintiff has cited to the deposition testimony of David Waters, a 7 software developer for SGS. Waters Dep. at 37:24–39:20, 62:23–65:22.6 But this testimony does 8 not establish that plaintiff and his co-worker were similarly situated, or that plaintiff was 9 otherwise terminated under discriminatory circumstances. In the deposition excerpt, Waters 10 discusses the effects system outages had on SGS and smog check stations. Id. at 37:24–39:20. In 11 a second excerpt, Waters reviews another employee’s termination after that employee caused a 12 system outage. Id. at 62:23–65:22. If anything, this second excerpt undermines rather than 13 bolsters plaintiff’s position; that another employee was terminated the day after he caused system 14 outages suggests plaintiff’s termination was not an aberration. Moreover, nowhere in the record 15 is the race of the other employee Waters mentions identified, meaning a jury would be left to 16 speculate impermissibly regarding the circumstances surrounding that termination. Nelson v. 17 Pima Cmty. Coll., 83 F.3d 1075, 1081–82 (9th Cir. 1996). 18 The evidence before the court, taken as a whole, precludes a reasonable jury 19 conclusion that plaintiff was subject to racial discrimination. Plaintiff has not raised a genuine 20 dispute sufficient to leave open the possibility of his establishing a prima facie case. 21 2. 22 Even if plaintiff has sufficiently established a prima facie case of discrimination to Defendant’s Termination Reason 23 survive summary judgment in that respect, defendant argues three events indisputably supported 24 its decision to fire plaintiff: (1) on May 29, 2014, plaintiff failed to address database errors over 25 the holiday weekend while on call as a database administrator, Mot. at 6; (2) on August 7, 2014, 26 27 28 6 Plaintiff presented this evidence for the first time at hearing. Because defendant had a chance to respond at hearing, see ECF No. 43, the court addresses this late offered evidence here. See Wood v. Kinetic Sys., Inc., 766 F. Supp. 2d 1080, 1086 (D. Idaho 2011) (finding no error in allowing party’s new argument when opposing party had opportunity to respond). 12 1 plaintiff caused a system outage lasting approximately five to ten minutes during peak hours 2 because he mined database logs during a non-maintenance window in violation of defendant’s 3 policy, id.; (3) on August 12, 2014, plaintiff caused another system outage lasting approximately 4 thirty minutes and during peak hours, id. at 7. Defendant contends the second outage was 5 attributed to plaintiff’s attempts to create a system fix upon instruction, but he then implemented 6 the system fix without informing anyone or obtaining management approval. Id. 7 It is undisputed that plaintiff did not address database errors while on call on May 8 29, 2014; and that his conduct on August 7 and August 12 contributed, at least in part, to two 9 system wide crashes. Pl.’s Dep. at 105:7–106:4; Marlow Decl. ¶¶ 8, 14. These crashes, in turn, 10 precluded defendant from sending and receiving smog check certificates, which had the potential 11 to result in monetary fines imposed by the BAR. Marlow Decl. ¶ 6. Defendant has presented 12 “legitimate, nondiscriminatory reason[s] for its allegedly discriminatory [or retaliatory] conduct.” 13 Metoyer, 504 F.3d at 931 n.6. The burden thus shifts to plaintiff to establish evidence of pre-text. 14 Id. 15 3. 16 Once the defendant provides “some legitimate, nondiscriminatory reason for the 17 challenged action,” the plaintiff to prevail must show “the articulated reason is pretextual either 18 directly by persuading the court that a discriminatory reason more likely motivated the employer 19 or indirectly by showing that the employer’s proffered explanation is unworthy of credence.” 20 Villiarimo, 281 F.3d at 1062 (internal citations omitted). Although a plaintiff may rely on 21 circumstantial evidence to show pretext, such evidence must be both “specific and substantial.” 22 Id. A showing that defendant treated similarly situated employees outside plaintiff’s protected 23 class more favorably would be probative of pretext. Vasquez, 349 F.3d at 641. 24 Evidence of Pretext As recounted above, plaintiff has not established the Caucasian co-worker to 25 whom he compares himself was similarly situated. Therefore, he must identify “specific and 26 substantial” evidence persuading the court that defendant’s explanation is unworthy of credence. 27 Villiarimo, 281 F.3d at 1062. 28 13 1 Plaintiff points to evidence showing his supervisor Mike Earl, leader of the 2 development team and a decision maker with respect to plaintiff’s termination, was partially 3 responsible for the August 12 system outage. Pl’s Dep. at 147:14–148:13. At his deposition, 4 plaintiff testified Earl added an inordinate amount of stations to the CalVis system without 5 notifying plaintiff, which caused the system to shut down during peak hours. Id. 6 Plaintiff’s limited evidence does not rebut defendant’s explanation for his 7 termination. Courts require only that “an employer honestly believe its reason for its actions, 8 even if its reason is foolish or trivial or even baseless.” Villiarimo, 281 F.3d at 1063 (internal 9 citations omitted). Plaintiff has not presented evidence that defendant did not believe its 10 proffered reasons. Id. (“[plaintiff] presented no evidence that [defendant] did not honestly believe 11 its proffered reasons.”). In the absence of evidence of pretext or evidence that plaintiff was 12 terminated while a “similarly situated” co-worker was not, summary judgment on this claim is 13 GRANTED. 14 V. SUMMARY AND CONCLUSION 15 16 Defendant’s motion for summary judgment is GRANTED in full. This case is CLOSED. 17 This order resolves ECF Nos. 27 and 34. 18 IT IS SO ORDERED. 19 DATED: May 17, 2017. 20 21 UNITED STATES DISTRICT JUDGE 22 23 24 25 26 27 28 14

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