Walsh v. Johnson Controls, Inc.

Filing 43

ORDER RE 28 29 MOTIONS FOR SUMMARY JUDGMENT AND ADVANCEMENT OF TRIAL AND PRETRIAL CONFERENCE DATES by Judge Alsup. (whalc1, COURT STAFF) (Filed on 6/18/2018)

1
2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7
FOR THE NORTHERN DISTRICT OF CALIFORNIA
8
9
MARK WALSH,

11
For the Northern District of California

United States District Court

10

12
13

No. C 17-03055 WHA

Plaintiff,
ORDER RE MOTIONS FOR
SUMMARY JUDGMENT AND
ADVANCEMENT OF TRIAL
AND PRETRIAL CONFERENCE
DATES

v.
JOHNSON CONTROLS, INC.,

14

Defendant.
/

15
16

INTRODUCTION

17

In this employment-discrimination action, both parties move for summary judgment on a

18

portion of plaintiff’s claims. For the reasons below, plaintiff’s motion for summary judgment is

19

DENIED. Defendant’s motion for summary judgment is GRANTED IN PART AND DENIED IN

20

PART.

21
22

STATEMENT
Defendant Johnson Controls, Inc. (formerly Cal-Air) hired plaintiff Mark Walsh, a white

23

male, around 2003. At the time, Walsh was 43 years old. Throughout his employment, Walsh

24

worked at JCI’s Santa Rosa branch. He belonged to the Sheet Metal Workers’ International

25

Association, Local Union No. 104 and payroll classified him as a sheet metal worker. Walsh

26

claims, however, that he worked as a project manager. His responsibilities included installing

27

and servicing materials used in HVAC systems, as well as project management tasks such as

28

sales and procurement. The parties dispute the amount of time Walsh spent on these respective
tasks (Worrell Decl. ¶¶ 5–6; Walsh Decl. ¶¶ 13–15).

1

In May 2013, Walsh injured his right shoulder while moving a heavy toolbox at work.

2

A few days later, Walsh began to work from home while he received medical treatment and

3

awaited a referral to an orthopedic surgeon. In July 2013, Walsh stopped working altogether

4

and went on medical leave in anticipation of his upcoming shoulder surgery (Walsh Decl. ¶¶

5

2–3).

6

JCI began to restructure its Santa Rosa branch in late 2012, phasing out the fabrication

7

and assembly of HVAC systems and eliminating union positions. By September 2013, JCI had

8

completely outsourced its sheet metal fabrication function from its Santa Rosa branch. Per

9

JCI’s policy, however, employees on disability leave could stay employed until their benefits
expired, at which point JCI would evaluate whether other work existed in the company that the

11
For the Northern District of California

United States District Court

10

employee could perform. As a result, Walsh was the only sheet metal journeyman still

12

employed in Santa Rosa in September 2013 (Worrell Decl. ¶¶ 9–10).

13

In November 2013, Walsh’s doctor cleared him to return to work on modified sedentary

14

duty. Walsh informed JCI that he could perform non-physical activities and asked whether or

15

not JCI had available work. Walsh did not receive a response. Throughout 2014 and 2015,

16

Walsh continued to send JCI regular emails explaining changes in his work restrictions.

17

Although Walsh requested that JCI let him know if any work existed within his restrictions, no

18

such work was available. Other than one email in August 2015, JCI did not respond to Walsh’s

19

updates (Walsh Decl. ¶¶ 4–7; Worrell Decl. ¶ 11).

20

In November 2015, Walsh’s doctor determined that Walsh had reached “maximum

21

medical improvement,” and cleared him to return to work with permanent restrictions on certain

22

physical activities. Walsh informed JCI of this development in a December 2015 email,

23

explaining that he was “ready to return to work right away” and asking that JCI contact him to

24

discuss returning to work (Worrell Decl. ¶ 12; JCI Exh. 8; Walsh Decl. ¶ 8).

25

In February 2016, Christine Worrell, a member of JCI’s human resources department,

26

and Steven Kallan, a branch service manager, held calls with Walsh about coming back to

27

work. They discussed Walsh’s former job duties and his doctor’s restrictions. By then,

28

however, no open positions existed in Santa Rosa which Walsh qualified for and could perform.
2

1

Rather than terminate Walsh immediately, JCI gave Walsh 30 days to review and apply for any

2

other available position in the company (Worrell Decl. ¶¶ 13–19; Second Walsh Decl. ¶¶ 3–7).1

3

That month, Walsh applied for two open positions: one as a project manager and the

4

other as a service truck manager. Walsh lacked the industry experience and educational

5

qualifications required for the project-manager position. Although Walsh met the minimum

6

qualifications for the service-truck-manager position, he did not get the job. During a pre-

7

screening interview, a JCI recruiter determined that Walsh ranked as the least-qualified

8

applicant (Duchesneau Decl. ¶¶ 10–17; Coplai Decl. ¶¶ 4–9; Worrell Decl. ¶¶ 20–22).

9

In May 2016, JCI terminated Walsh’s employment. Upon his termination, Walsh did
not receive any pay for accrued vacation time. That same month, Walsh filed a complaint with

11
For the Northern District of California

United States District Court

10

the Department of Fair Employment and Housing, alleging that JCI had failed to provide him

12

with a reasonable accommodation, failed to engage in a good faith interactive process, and

13

discriminated against him based on disability. DFEH sent Walsh a right-to-sue letter in April

14

2017, after which Walsh initiated this action in state court. JCI timely removed the action.

15

Both parties now move for summary judgment on a portion of Walsh’s claims. Walsh also

16

moves for summary judgment on one of JCI’s affirmative defenses (Dkt. Nos. 1, 28–29).

17

ANALYSIS

18

Summary judgment is proper where the pleadings, discovery, and affidavits show that

19

there is “no genuine dispute as to any material fact and the movant is entitled to judgment as a

20

matter of law.” FRCP 56(a). Material facts are those which may affect the outcome of the case.

21

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). There is “a high standard for the

22

granting of summary judgment in employment discrimination cases.” Schnidrig v. Columbia

23

Mach., Inc., 80 F.3d 1406, 1410 (9th Cir. 1996). Our court of appeals “require[s] very little

24

evidence to survive summary judgment in a discrimination case, because the ultimate question

25

is one that can only be resolved through a ‘searching inquiry’ — one that is most appropriately

26

conducted by the factfinder, upon a full record.” Ibid. (citation and internal quotation marks

27

omitted).

28
1

The parties dispute whether these conversations began in January 2016, rather than in February.

3

1

1.

FAILURE TO PROVIDE REASONABLE ACCOMMODATION.

2

Walsh asserts that JCI failed to reasonably accommodate his physical disability after his

3

2013 work injury. The elements of a prima facie claim for failure to make reasonable

4

accommodations are: (1) the plaintiff has a disability covered by FEHA; (2) the plaintiff is

5

qualified to perform the essential functions of the position; and (3) the employer failed to

6

reasonably accommodate the plaintiff’s disability. Scotch v. Art Inst. of Cal. — Orange Cnty.,

7

Inc., 173 Cal. App. 4th 986, 1009–10 (2009). Both parties move for summary judgment on this

8

claim.2

9

The parties agree that Walsh had a disability covered by FEHA, but dispute whether or
not Walsh could perform the essential functions of his job. In a 2016 complaint to the

11
For the Northern District of California

United States District Court

10

Department of Fair Employment and Housing, Walsh stated under penalty of perjury: “I was in

12

agreement that I cannot perform the essential functions of my job as the Sheet Metal Worker

13

Foreman Manager/Lead.” Walsh’s current declaration, however, claims that this admission was

14

merely a “typo.” At the hearing on the parties’ cross-motions for summary judgment, plaintiff

15

elaborated. He testified that he had not personally typed the narrative in the DFEH complaint,

16

but rather reviewed and signed the complaint after it was written by a DFEH consultant. Walsh

17

further testified that he had simply misread the portion of the complaint at issue before he

18

signed it.

19

A party cannot create a genuine issue of material fact to survive summary judgment by

20

contradicting his earlier version of the facts. Block v. City of Los Angeles, 253 F.3d 410, 419

21

n.2 (9th Cir. 2001). While Walsh’s claimed mistake is dubius, it is not sufficiently clear from

22

the current record that his declaration should be disregarded as a sham. There accordingly

23

remains a factual dispute as to whether Walsh could perform the essential functions of his old

24

job.

25

Nevertheless, his claim fails on summary judgment. Holding a job open while an

26

employee seeks treatment for a medical condition can be a reasonable accommodation. Jensen

27
2

28

The parties dispute whether Walsh’s “claims” for failure to reasonably accommodate, failure to
engage in the interactive process, and termination in violation of public policy were properly pled in the
complaint. Because summary judgment is clearly proper, this order addresses the merits of these claims.

4

1

v. Wells Fargo Bank, 85 Cal. App. 4th 245, 263 (2000). Here, the undisputed evidence is that

2

JCI held Walsh’s job open for three years while he was out on medical leave and receiving

3

treatment for his shoulder. Walsh argues that he should have been provided light-duty work

4

instead. But an employer need not provide an accommodation that would pose an undue

5

hardship on business operations, Cal. Gov. Code § 12940(m), and Walsh points to no evidence

6

suggesting that such light-duty work was available during the relevant period. The summary

7

judgment record instead shows the absence of such work. Walsh therefore cannot show that

8

JCI failed to provide a reasonable accommodation.

asserts that a sales job was available. But Duchesneau did not so testify. He instead testified

11
For the Northern District of California

Relying on the testimony of Marc Duchesneau (JCI’s FRCP 30(b)(6) witness), Walsh

10

United States District Court

9

that at some unknown time JCI was “looking for somebody to handle sales in Santa Rosa,” but

12

that he did not know whether JCI “ever had the business to support that.” The declaration of

13

Bill Rogers, a former JCI employee, gets Walsh no further. Rogers explained that JCI never

14

replaced a fired sales representative in 2012, but added the important qualification that he

15

“do[es] not recall the exact status of efforts to fill that position and whether, or at what exact

16

points in time there was a ‘Request to Hire’ requested and approved for the position.” At the

17

hearing on these motions, Walsh’s counsel confirmed that these two items were the sole basis

18

for Walsh’s claim that a sales job existed. Counsel also acknowledged that “extrapolation”

19

from these vague items was necessary to support that claim. Without more, Walsh has failed to

20

raise a triable issue of whether or not JCI had alternative light-duty work available after

21

November 2013.

22

The undisputed evidence further shows that when Walsh reached “maximum medical

23

improvement” at the end of 2015, he did not qualify for any vacant positions. Again, by then,

24

all sheet-metal-worker positions in Santa Rose had been eliminated. JCI accordingly allowed

25

Walsh to apply for any other open position in the company. Walsh applied for two jobs. It is

26

undisputed that he did not meet the minimum qualifications for the project-manager position. It

27

is also undisputed that, although Walsh met the minimum qualifications for the service-truck-

28

manager position, he was the least qualified candidate to apply.
5

1

Walsh’s counsel confirmed these concessions at the hearing but attempted to shift the

2

Court’s attention to the earlier time period — referred to by counsel as the “black hole” when

3

there was radio silence from JCI — between November 2013 and February 2016. As explained

4

above, however, Walsh has failed to raise a triable issue as to whether or not light-duty work

5

was available during that time.

6
7

JCI’s motion for summary judgment on Walsh’s claim for failure to accommodate is
accordingly GRANTED. Walsh’s motion for summary judgment on this claim is DENIED.3

8

2.

9

Both parties also move for summary judgment on Walsh’s claim that JCI failed to

FAILURE TO ENGAGE IN THE INTERACTIVE PROCESS.

engage in the interactive process. FEHA makes it unlawful for an employer “to fail to engage

11
For the Northern District of California

United States District Court

10

in a timely, good faith, interactive process with an employee or applicant to determine effective

12

reasonable accommodations, if any, in response to a request for reasonable accommodation by

13

an employee or applicant with a known physical or mental disability or known medical

14

condition.” Cal. Gov’t Code § 12940(n). To prevail on a Section 12940(n) claim, an employee

15

must identify a reasonable accommodation that would have been available at the time the

16

interactive process should have occurred. Nealy v. City of Santa Monica, 234 Cal. App. 4th

17

359, 379 (2015); Nadaf-Rahrov v. Neiman Marcus Grp., Inc., 166 Cal. App. 4th 952, 984

18

(2008).

19

Walsh argues that until February 2016, JCI “did nothing” after learning that Walsh

20

could return for limited work in November 2013. As explained above, however, Walsh cites no

21

evidence suggesting that JCI had any light-duty work available. Instead, the undisputed

22

evidence shows that JCI accommodated Walsh by allowing him to remain on paid medical

23

leave while he obtained treatment for his injury. Because Walsh fails to identify an alternative

24

reasonable accommodation that would have been available, there is no genuine issue of material

25

fact concerning Walsh’s claim for failure to engage in the interactive process. JCI’s motion for

26
27
28

3
Walsh’s papers extensively assert attorney argument without citations to the evidentiary record.
FRCP 56(c) requires that “[a] party asserting that a fact cannot be or is genuinely disputed must support the
assertion by . . . citing to particular parts of materials in the record.” District courts are not tasked with scouring
the record in search of a genuine issue of triable fact. Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996).

6

1

summary judgment on this claim is GRANTED. Walsh’s motion for summary judgment on this

2

claim is DENIED.

3

Walsh also moves for summary judgment on JCI’s affirmative defense that Walsh failed

4

to actively engage in the interactive process, but puts forth no argument or evidence to support

5

his motion. Walsh’s motion for summary judgment as to JCI’s affirmative defense is

6

accordingly DENIED.

7

3.

8

Walsh also claims that JCI violated FEHA by discriminating against him based on

9

DISABILITY DISCRIMINATION.

disability. California has adopted the three-stage burden-shifting test from McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973), for FEHA discrimination claims. Guz v. Bechtel Nat’l,

11
For the Northern District of California

United States District Court

10

Inc., 24 Cal. 4th 317, 354 (2000). Under this framework, the plaintiff has the initial burden to

12

establish a prima facie case of discrimination. This burden requires the plaintiff to identify an

13

action taken by the employer that, if unexplained, gives rise to an inference of discrimination.

14

If the plaintiff meets his burden at the first step, “the burden shifts to the employer to rebut the

15

presumption.” In the third step, the plaintiff has the opportunity to attack the employer’s

16

proffered reasons as pretext for discrimination. Id. at 354–56.

17

This order assumes, without deciding, that Walsh can establish a prima facie case for his

18

disability discrimination claim. He has not, however, raised a triable issue of pretext or

19

otherwise demonstrated a discriminatory motive for his termination, as now discussed.

20

JCI offers a legitimate, nondiscriminatory reason for Walsh’s termination. JCI explains

21

that it terminated Walsh because it had eliminated all sheet-metal-worker positions from Santa

22

Rosa in 2013. When Walsh returned from medical leave in 2016, JCI allowed Walsh to apply

23

for any available position in the company. Walsh did not meet the minimum qualifications for

24

the project-manager position to which he applied, and while he met the minimum qualifications

25

for the service-truck-manager position, he was the least-qualified applicant. JCI’s stated

26

reasons for Walsh’s termination and the supporting evidence rebut a prima facie case of

27

discrimination.

28
7

1

Walsh does not dispute that by 2013 all sheet-metal-journeyman positions had been

2

eliminated. Nor does Walsh dispute that he was unqualified for the two positions to which he

3

applied after returning from medical leave. Instead, Walsh argues that “the core of JCI’s

4

liability” is JCI’s failure to engage in the interactive process from November 2013 through

5

February 2016. This argument conflates Walsh’s disability discrimination claim with his claim

6

for failure to engage with the interactive process. Walsh makes no other effort to attack JCI’s

7

proffered nondiscriminatory reasons for his termination. JCI’s motion for summary judgment

8

on this claim is accordingly GRANTED.

9

4.

AGE DISCRIMINATION.

Walsh also claims JCI violated FEHA by discriminating against him based on age. The

11
For the Northern District of California

United States District Court

10

three-stage burden-shifting test described above also applies to his claim for age discrimination.

12

Guz, 24 Cal. 4th at 354. Here, Walsh fails at step one. To make a prima facie showing of age

13

discrimination, Walsh must prove: (1) that he was more than forty years of age, (2) that he was

14

performing competently in his position, (3) that he suffered an adverse employment action, and

15

(4) that some other circumstance suggests discriminatory motive for the adverse action. Sandell

16

v. Taylor-Listug, Inc., 188 Cal. App. 4th 297, 321 (2010).

17

Walsh’s opposition brief makes no argument in defense of his age discrimination claim.

18

Walsh elsewhere references that after his shoulder injury a portion of his job duties were taken

19

over by Kristine Walling, a younger JCI employee (Walsh Dep. 117:5–120:8). Walsh also

20

notes that JCI management had multiple conversations with Charlie Smith — a younger sheet

21

metal journeyman who ultimately left the company in 2014 — regarding alternative work

22

opportunities at JCI (Duchesneau Dep. 86:3–89:5). It would be unreasonable to conclude from

23

these items that Walsh’s termination in 2016 was due to intentional discrimination based on

24

age. JCI’s motion for summary judgment on Walsh’s age discrimination claim is accordingly

25

GRANTED.
TORTIOUS TERMINATION IN VIOLATION OF PUBLIC POLICY.

26

5.

27

Walsh agrees that his claim for tortious termination in violation of public policy is based

28

on the same facts and theories as his FEHA claims. Walsh’s derivative tort claim therefore fails
8

1

for the same reasons his FEHA claims fail. JCI’s motion for summary judgment on this claim is

2

GRANTED.
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS.

Walsh’s claim for intentional infliction of emotional distress rests solely on a string of

5

text messages received from a JCI employee on the evening of Walsh’s injury. To succeed on

6

this claim, Walsh must prove: (1) outrageous conduct; (2) an intent to cause or a reckless

7

disregard of the possibility of causing emotional distress; (3) severe or extreme emotional

8

distress; and (4) that the outrageous conduct proximately caused the emotional distress.

9

Symonds v. Mercury Sav. & Loan Ass’n, 225 Cal. App. 3d 1458, 1468 (1990). Walsh has failed

10

to put into the record any evidence to prove this claim. This order accordingly need not decide

11
For the Northern District of California

6.

4

United States District Court

3

whether the claim is barred by the exclusivity provision of California’s Workers’ Compensation

12

Act. JCI’s motion for summary judgment on Walsh’s claim for intentional infliction of

13

emotional distress is GRANTED.

14

7.

15

Walsh moves for summary judgment on his claim that JCI violated Section 227.3 of the

16

California Labor Code by failing to pay Walsh for accrued vacation days upon his termination.

17

Section 227.3 states, “whenever a contract of employment or employer policy provides for paid

18

vacations, and an employee is terminated without having taken off his vested vacation time, all

19

vested vacation shall be paid to him as wages.”

FAILURE TO PAY ACCRUED VACATION TIME.

20

A triable issue exists as to whether Walsh accrued paid vacation time while employed

21

by JCI. JCI’s general policy was that union members did not receive paid vacation outside of

22

their union agreement. And at the time of Walsh’s termination, human resources employee

23

Christine Worrell reviewed Walsh’s entitlement to any final pay and did not see any records

24

indicating that Walsh had any accrued vacation time (Second Worrell Decl. ¶ 27). Walsh, by

25

contrast, states that Jeff Crenshaw, then a JCI regional manager, advised Walsh that JCI would

26

award him fifteen days of paid vacation per year. Walsh says that documents produced in

27

discovery supports this paid vacation policy, but no such documents are submitted with his

28

motion (Walsh Decl. ¶ 16).
9

1

The documentary evidence that Walsh does submit — an email exchange between

2

himself and JCI human resources employee Joni Walbring — does not entitle him to summary

3

judgment. In this exchange, Walsh told Walbring that he had eight unused vacation days and

4

asked wether or not those days would be rolled over to the following year or whether the

5

vacation days could be used while Walsh was out on medical leave. Walbring responded:

6

“These will roll over. Unable to take vacation while on a leave of absence” (Walsh Exh. 8). It

7

is reasonable to infer from these emails that Walbring only confirmed JCI’s general policy

8

concerning vacation days, but did not confirm that Walsh had himself accrued paid vacation.

9

Walsh’s motion for summary judgment on this claim is accordingly DENIED.
Walsh also moves for summary judgment on his related claim for penalties and

11
For the Northern District of California

United States District Court

10

attorney’s fees under Section 203 of the California Labor Code. Section 203 allows an

12

employee to collect penalties and attorney’s fees where the employer willfully failed to pay

13

wages due. For the same reasons Walsh is not entitled to summary judgment on his claim for

14

unpaid vacation time, his motion for summary judgment on this claim is DENIED.

15

8.

16

JCI next moves for summary judgment on Walsh’s claim for breach of the covenant of

BREACH OF COVENANT OF GOOD FAITH AND FAIR DEALING.

17

good faith and fair dealing. “Breach of the covenant of good faith and fair dealing is nothing

18

more than a cause of action for breach of contract.” Habitat Tr. for Wildlife, Inc. v. City of

19

Rancho Cucamonga, 175 Cal. App. 4th 1306, 1344 (2009). This order accordingly treats

20

Walsh’s claim as one for breach of contract.

21

Walsh’s opposition provides no argument in support of this claim. He contends only

22

that “JCI violated the implied covenant of good faith and fair dealing stemming from the

23

employment agreement and the terms communicated to [him] by JCI Executive Jeff Crenshaw.”

24

In Walsh’s recent declaration, however, he states that Crenshaw agreed Walsh would receive

25

paid vacation days in addition to those provided through his union agreement. He further states

26

that JCI did “not honor” this agreement (Second Walsh Decl. ¶ 8). Pointing to Walsh’s

27

deposition testimony — where Walsh stated that JCI had not breached any oral or written

28

contract between them — JCI argues that this portion of Walsh’s declaration is a sham affidavit.
10

1

This order disagrees. These statements are not sufficiently inconsistent to warrant disregarding

2

Walsh’s declaration on summary judgment.

3

JCI cites Cleveland v. Policy Management Systems Corp., 526 U.S. 795 (1999), for the

4

proposition that a party cannot defeat summary judgment with a declaration that contradicts

5

prior sworn testimony, even when the prior sworn statement involves a legal conclusion.

6

Cleveland did not apply the sham affidavit rule, but instead addressed the legal effect of the

7

application for, or receipt of, disability benefits on an ADA claim. Recognizing that a party

8

cannot create a genuine issue of material fact by contradicting his own previous sworn

9

statement “without explaining the contradiction or attempting to resolve the disparity,” the
Supreme Court “believe[d] that a similar insistence upon explanation [was] warranted [] where

11
For the Northern District of California

United States District Court

10

the conflict involves a legal conclusion.” Here, however, no such contradictory statements

12

necessitate explanation. Lay people often fail to equate a “promise” or an “agreement” with a

13

“contract.”

14

There accordingly remains a triable issue of material fact as to whether JCI agreed to

15

provide Walsh with vacation days separate and apart from his union agreement. There also

16

remains a triable issue of material fact as to whether JCI breached this agreement by failing to

17

pay Walsh for accrued vacation days upon his termination. JCI’s motion for summary

18

judgment on this claim is DENIED.

19

9.

20

Summary judgment is appropriate as to Walsh’s claim for punitive damages. A plaintiff

PUNITIVE DAMAGES.

21

is entitled to punitive damages if he can show by clear and convincing evidence that the

22

defendant is guilty of malice, fraud or oppression. Cal. Civ. Code § 3294. Walsh again fails to

23

provide any argument or point to any evidence in support of his claim, asserting only that there

24

exists “sufficient evidence of malice, oppression, and the conscious disregard of [his] rights to

25

warrant the punitive damages claim.” JCI’s motion for summary judgment as to Walsh’s claim

26

for punitive damages is accordingly GRANTED.

27
28
11

1

10.

2

Walsh objects to Ryan Pederson’s interview notes — which reflect comments made by

3

Walsh during the interview for the service-truck-manager position — as inadmissible hearsay.

4

These notes are out-of-court written assertions offered for the truth of the matter asserted.

5

Walsh’s objection is accordingly SUSTAINED.

6

OBJECTIONS TO EVIDENCE AND REQUEST FOR JUDICIAL NOTICE.

JCI raises numerous evidentiary objections to the declaration of Mark Walsh submitted

7

in opposition to JCI’s motion for summary judgment. JCI objects to the following statement for

8

lack of foundation and lack of personal knowledge: “Both Christine Walling and Charlie Smith

9

worked on projects that I had been doing at the time of my injury and continued with some of
that work after I requested to come back to work in November, 2013.” Walsh’s declaration

11
For the Northern District of California

United States District Court

10

fails to explain how he has personal knowledge of these facts given that he was out on medical

12

leave at the time. The objection is accordingly SUSTAINED.

13

JCI similarly objects to the following statement on the grounds that it lacks relevance,

14

foundation, and personal knowledge: “Charlie Smith, who was my East Bay Counter-part with

15

much the same skills and background continued with JCI out of the Hayward Office until

16

February 2018. He developed some of his own work as I did. He had discussions before he

17

retired about other positions within JCI.” Again, Walsh’s declaration fails to explain how he

18

has personal knowledge of these facts given that he was out on medical leave during the

19

relevant period. The objection is accordingly SUSTAINED.

20

JCI’s remaining objections to the Walsh declaration are OVERRULED.

21

Finally, JCI requests judicial notice of a workers’ compensation appeals board

22

compromise and release, which is a matter of public record. FRE 201 permits judicial notice of

23

facts not subject to reasonable dispute and “capable of accurate and ready determination by

24

resort to sources whose accuracy cannot be reasonably questioned.” Walsh does not oppose

25

JCI’s request for judicial notice. It is accordingly GRANTED.
CONCLUSION

26
27
28

For the reasons stated above, JCI’s motion for summary judgment is GRANTED IN PART
AND DENIED IN PART.

Walsh’s motion for summary judgment is DENIED.
12

1

Walsh’s counsel has alerted the Court to his unavailability during the currently-

2

scheduled trial dates. Accordingly, the pretrial conference in this matter is advanced to JULY

3

18, 2018, at 2:00 P.M. The trial in this matter is also advanced and shall begin on JULY 30,

4

2018, at 7:30 A.M. The trial schedule and time limits shall be set at the final pretrial conference.

5
6

IT IS SO ORDERED.

7
8

Dated: June 18, 2018.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

9

11
For the Northern District of California

United States District Court

10

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
13