Kocsis v. Delta Air Lines, Inc.
Filing
43
ORDER GRANTING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND GRANTING PLAINTIFF'S RULE 56(d) REQUEST FOR FURTHER DISCOVERY re 28 - Signed by JUDGE ALAN C KAY on 8/5/13. "For the foregoing reasons, the Court G RANTS summary judgment to Delta on Mr. Kocsis's federal and state law claims based on theories of disparate impact or "pattern-or-practice." The Court also, however, GRANTS Mr. Kocsis's request for further discovery, as to his fe deral and state law claims based on a theory of disparate treatment. Delta's Motion for SummaryJudgment is DEEMED WITHDRAWN as regards these claims. The parties shall continue to engage in discovery until the discovery deadline of September 13, 2013. After September 13, 2013, but by, at the latest, September 27, 2013, Delta may file a renewed motion for summary judgment if it so wishes. The Court will set the schedule for any further briefing at that time." (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Balint Kocsis shall be served by first class mail at the address of record on August 6, 2013.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
BALINT KOCSIS,
Plaintiff,
v.
DELTA AIR LINES, INC.,
Defendant.
) Civ. No. 12-00423 ACK BMK
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ORDER GRANTING IN PART DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT AND GRANTING PLAINTIFF’S
RULE 56(d) REQUEST FOR FURTHER DISCOVERY
For the following reasons, the Court hereby GRANTS IN
PART Delta’s Motion for Summary Judgment. The Court GRANTS
summary judgment to Delta on Mr. Kocsis’s claims based on
theories of disparate impact or “pattern-or-practice.” The Court
also, however, GRANTS Mr. Kocsis’s request for further discovery
as to his claims based on a theory of disparate treatment. As to
those claims, Delta’s Motion is DEEMED WITHDRAWN, and the parties
shall proceed with discovery as set forth below.
PROCEDURAL BACKGROUND
Plaintiff Balint Kocsis claims that Defendant Delta Air
Lines unlawfully discriminated against him because of his age.
Mr. Kocsis, who is appearing pro se, filed his
Complaint in this Court on July 27, 2012. (Dkt. No. 1.) Delta
filed an Answer on October 9, 2012. (Dkt. No. 7.) On June 13,
2013, Delta filed the instant Motion for Summary Judgment (Dkt.
No. 28), which was supported by a concise statement of facts and
various declarations and exhibits (Dkt. No. 29 (“Delta CSF”)).
Mr. Koscis initially filed an opposition on July 2, 2013 (Dkt.
No. 34), but then filed an Amended Opposition on July 8, 2013
(Dkt. No. 36 (“Opp.”)), which was supported by a concise
statement of facts and various declarations and exhibits (Dkt.
No. 37 (“Kocsis CSF”)). The Amended Opposition was timely, and
the Court will consider it. Delta filed a Reply in support of its
Motion on July 15, 2013. (Dkt. No. 38.) A hearing on Delta’s
Motion was held on July 29, 2013. (Dkt. No. 42.)
FACTUAL BACKGROUND1/
Mr. Kocsis was hired by Northwest Airlines as a flight
attendant in 1989. (Delta CSF ¶ 2.) In 2004, he was promoted to
the position of “Purser,” the most senior flight attendant on a
given flight. (Id. ¶ 10.) In 2008, Northwest and Delta merged,
and Mr. Kocsis became an employee of Delta, still as a Purser.
(Id. ¶¶ 3, 10; Kocsis CSF ¶ 3.)
When customers on a Delta flight buy duty-free items,
the flight attendants collect payment from the customers and
place the cash and credit card receipts in sealed, tamper-proof
envelopes. (Delta CSF ¶ 5.) The flight attendants bring their
individual envelopes to the Purser, who places them in a Master
Deposit Envelope (“MDE”), seals the MDE, and deposits it at a
“drop safe” upon landing. (Id. ¶¶ 5-7.)
1/
The facts as recited in this order are for the purpose of
disposing of the current motion and are not to be construed as
findings of fact that the parties may rely on in future
proceedings.
2
Delta’s duty-free program is handled by a Miami-based
company called DFASS. (Id. ¶ 4.) On August 30, 2010, DFASS
reported to Junichi Takao, Mr. Kocsis’s supervisor, that some
MDEs were missing that Mr. Kocsis should have deposited at Narita
International Airport in Tokyo. (Id. ¶ 17; Takao Decl. ¶ 8.)
Later in November, Mr. Takao received a forwarded email
originating from DFASS, which stated that more than twenty MDEs
for which Mr. Kocsis was responsible - totaling more than $8,000
- had not been deposited over the preceding few months. (Takao
Decl. ¶¶ 14-16.) Mr. Takao contacted Mr. Kocsis, who responded
that he had made all of the deposits correctly, and that there
could be a problem at Narita. (Id. ¶¶ 17-18; see Kocsis CSF
¶ 19.) In fact, the list of missing deposits included five
flights on which Mr. Kocsis was not even working. (Kocsis Decl.
¶ 3.) Given Mr. Kocsis’s explanation for the missing envelopes,
Delta developed a “dual audit procedure” whereby a DFASS employee
and a Delta employee would check the deposit safe at Narita
together. (Bell Decl. ¶¶ 26-27.)
The dual audits performed in January 2011 found that
three MDEs attributable to Mr. Kocsis were missing from the
Narita deposit safe. (Fukuoka Decl. ¶¶ 9-10.) Only MDEs
attributable to Mr. Kocsis were missing. (Id. ¶ 11.) One missing
MDE was numbered 463051, and the other two were numbered 462455.
(Id. ¶ 10.)2/
2/
The declaration of Kiyomi Fukuoka, the Delta employee who
(continued...)
3
When Mr. Takao told Mr. Kocsis in an email that
“January deposits were not received,” Mr. Kocsis responded that
he had deposited all his January 2011 MDEs at either Narita or
Honolulu Airports. (Kocsis Decl. ¶ 6; see Kocsis CSF Ex. O.) He
told Mr. Takao that he could provide copies of all his January
receipts. (Kocsis CSF Ex. O.) Mr. Takao forwarded this statement
to his direct supervisor, Bobbie Bell. (Delta CSF Ex. I.)
In February 2011, Ms. Bell communicated with Debbie
Bunch, a Delta in-flight services employee at Honolulu, and
another employee there; they told Ms. Bell that they did not
receive Mr. Kocsis’s missing MDEs. (Bell Decl. ¶¶ 36-37.)3/ On
February 25, 2011, Ms. Bell and Mr. Takao jointly drafted a
memorandum recommending that Delta fire Mr. Kocsis. (Takao Decl.
¶ 25.)
On March 7, 2011, Mr. Takao met Mr. Kocsis upon
returning from a trip and placed him on unpaid leave. (Kocsis
Decl. ¶ 7.) Mr. Kocsis states that during this meeting Mr. Takao
told him that another, similarly-aged4/ Purser, Kevin Griffin,
(...continued)
conducted the “dual audit,” appears to contain a typographic
error, incorrectly identifying one of the MDEs numbered 462455 as
“62455.” (Fukuoka Decl. ¶ 10.) The correct numbering is given
elsewhere in the declaration. (See id. ¶ 11 & Ex. H.)
3/
At the hearing on Delta’s Motion, Mr. Kocsis asserted
that Ms. Bell had testified during his grievance appeal hearing
that she did not speak to Ms. Bunch until March 2011. Mr. Kocsis
has offered no admissible evidence to support this assertion,
however.
4/
In his written filings, Mr. Kocsis confusingly referred
(continued...)
4
had previously been caught stealing Delta property, and that
Delta’s management had been angry when Ms. Bell and Mr. Takao
decided not to fire Mr. Griffin. (Id.)
In March 2011, after Mr. Kocsis was placed on leave,
Ms. Bell once again checked the Narita and Honolulu deposit logs
and communicated with Ms. Bunch and the other Delta employee in
Honolulu, who again told her that they had not received the
missing MDEs from Mr. Kocsis. (Bell Decl. ¶¶ 45-50.)
On March 20, 2011, and again on March 22, 2011,
Mr. Kocsis sent an email to Ms. Bell, Mr. Takao, and others,
which detailed extensive problems he saw in Delta’s MDE deposit
system and included a list of his January 2011 deposits. (Kocsis
CSF Ex. K.) The list includes MDEs # 463051 and # 462455 and
indicates that he deposited these MDEs in Honolulu and received
signed receipts. (Id.) It also notes that MDE # 462455 was
deposited inside another MDE. (Id.) Ms. Bell replied on March 23,
2011, stating that Delta did not take Mr. Kocsis’s status lightly
and was reviewing the MDEs and logsheets, and that “[w]e have
also reviewed the HNL logsheets and do not find the funds
received at this location either.” (Id.)
On around March 25, 2011, Delta approved Ms. Bell and
Mr. Takao’s recommendation to fire Mr. Kocsis. (Bell Decl. ¶ 51.)
(...continued)
to Mr. Griffin as “similarly-situated,” a legal term with a
specific, different meaning in the context of employment
discrimination claims. Mr. Kocsis clarified his argument at the
hearing on Delta’s Motion.
5
Ms. Bell and Mr. Takao fired Mr. Kocsis on March 30, 2011. (Delta
CSF ¶ 28.) When Mr. Kocsis asked why he was being fired, he was
handed a sheet of paper listing the three missing MDEs from
January 2011. (Kocsis Decl. ¶ 8.)5/ Mr. Kocsis was then 52 years
old. (See Delta CSF ¶ 3.)
Mr. Kocsis strongly disputed, and continues strongly to
dispute, whether any MDEs in his charge ever went missing. He
states that he was never given the chance before he was fired to
present full explanations to Mr. Takao or Ms. Bell, and that both
supervisors refused to look at his receipts for the supposedly
missing MDEs from January 2011. (Kocsis Decl. ¶¶ 7-8.) In his
declaration supporting his Opposition, he explains as follows
regarding each envelope:
First, Mr. Kocsis agrees that he failed to deposit MDE
# 463051 in Narita, but explains that he inadvertently forgot to
do so. (Id. ¶ 4.) He realized his mistake during his return
flight to Honolulu. (Id.) When he reached Honolulu, he deposited
the MDE with Debbie Bunch, and Ms. Bunch signed a receipt for
him. (Id.; see Kocsis CSF Ex. J at 2 (receipt # 463051
(signed)).)
5/
Ms. Bell and Mr. Takao’s memorandum recommending
termination, however, discussed the earlier allegedly missing
MDEs as well as the three January deposits, and both managers
state that they decided to fire Mr. Kocsis in part because of his
“history of missing MDEs.” (Delta CSF Ex. K; Bell Decl. ¶ 57;
Takao Decl. ¶ 34.) Mr. Kocsis’s termination letter merely states
generally “you did not deposit company funds from your Duty Free
sales.” (Delta CSF Ex. P.)
6
Second, MDE # 462455 was a single envelope provided for
a round trip (two flights) from Nagoya to Guam and back again on
January 23, 2011. (Id. ¶ 5.) Mr. Kocsis had already sealed the
MDE for the round trip just before landing in Nagoya when one of
the flight attendants realized she had forgotten to hand in some
of the cash and credit card receipts she had collected. (Id.)
Mr. Kocsis tore open the MDE so that the attendant could add her
deposit. (Id.) Mr. Kocsis kept the torn MDE, intending to find an
extra envelope on a later flight to put the torn one into. (Id.)
He did not find an extra envelope, but taped up the torn MDE.
(Id.) On January 28, 2011, he entered MDE # 462455 onto the
deposit log in Narita, but then changed his mind about depositing
it and again decided to see if he could obtain an extra envelope
on his return flight to Honolulu. (Id.) He again could not find
an extra envelope, so he placed the torn-and-taped MDE inside the
MDE for his return flight to Honolulu (MDE # 462209) and
deposited both MDEs at Honolulu, where he again received
receipts. (Id.; see Kocsis CSF Ex. J. at 3-4 (receipts # 462455
(notations unclear) and # 462209 (initialed)).)
Mr. Kocsis appealed his termination through Delta’s
internal grievance process, but the decision was upheld. (Delta
CSF ¶¶ 29, 32.) During the appeal proceeding, Ms. Bell
investigated the receipt that Mr. Kocsis presented for MDE
# 462209. (Bell Decl. ¶¶ 59-63.) She found that MDE # 462209 had
been deposited, but did not find the contents of MDE # 462455
inside it. (Id. ¶¶ 62-63.) She concluded once more that
7
Mr. Kocsis had not deposited MDE # 462455 at Honolulu. (Id.
¶ 63.)
During the grievance proceedings and appeals,
Mr. Kocsis did not claim that Delta had discriminated against him
because of his age. (Delta CSF ¶ 33.) Mr. Kocsis testified during
his deposition that after he was fired, however, he spoke to a
Delta Purser, Muriel Baker, who told him that she had complained
to Delta’s corporate security officer, John O’Dwyer, at least
three times about a flight attendant called Henry Kashfi who she
had caught stealing duty-free deposits, but that Mr. Kashfi had
not been fired. (See Kocsis CSF, Ex. C (“Kocsis Dep.”) at 278:4282:3.) Mr. Kocsis believes based on an entry he saw on the
website Facebook that Mr. Kashfi is eleven years younger than
him. (Id. at 278:14-18.) Mr. Kocsis also testified at his
deposition that he heard from New York-based flight attendants
that it was “common knowledge” that Mr. Kashfi had been stealing
duty-free deposits for years. (Id. at 283:17-285:16.)
Mr. Kocsis filed an EEOC charge alleging age
discrimination in September 2011. (Delta CSF ¶ 33.) The EEOC
charge was dismissed on March 22, 2012. (Id. ¶ 35.)
STANDARD
I.
Motion for Summary Judgment
A party may move for summary judgment on any claim or
defense - or part of a claim or defense - under Federal Rule of
Civil Procedure (“Rule”) 56. Summary judgment “should be granted
‘if the movant shows that there is no genuine dispute as to any
8
material fact and the movant is entitled to judgment as a matter
of law.’” Maxwell v. Cnty. of San Diego, 697 F.3d 941, 947 (9th
Cir. 2012) (quoting Fed. R. Civ. P. 56(a)). Under Rule 56, a
“party asserting that a fact cannot be or is genuinely disputed
must support the assertion,” either by “citing to particular
parts of materials in the record” or by “showing that the
materials cited do not establish the absence or presence of a
genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact.” Fed. R. Civ.
P. 56(c)(1).
The substantive law determines which facts are
material; “only disputes over facts that might affect the outcome
of the suit under the governing law properly preclude the entry
of summary judgment.” Nat’l Ass’n of Optometrists & Opticians v.
Harris, 682 F.3d 1144, 1147 (9th Cir. 2012). “The mere existence
of some alleged factual dispute between the parties will not
defeat an otherwise properly supported motion for summary
judgment; the requirement is that there be no genuine issue of
material fact.” Scott v. Harris, 550 U.S. 372, 380 (2007)
(citation omitted).
A genuine issue of material fact exists if “a
reasonable jury could return a verdict for the nonmoving party.”
United States v. Arango, 670 F.3d 988, 992 (9th Cir. 2012)
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247
(1986)). Conversely, “[w]here the record taken as a whole could
not lead a rational trier of fact to find for the nonmoving
9
party, there is no genuine issue for trial.” Scott, 550 U.S. at
380.
The moving party has the burden of persuading the court
as to the absence of a genuine issue of material fact. Avalos v.
Baca, 596 F.3d 583, 587 (9th Cir. 2010). If the moving party
satisfies its burden, the nonmoving party “must do more than
simply show that there is some metaphysical doubt as to the
material facts.” Sluimer v. Verity, Inc., 606 F.3d 584, 587 (9th
Cir. 2010). The nonmoving party must present evidence of a
“genuine issue for trial,” Fed. R. Civ. P. 56(e), that is
“significantly probative or more than merely colorable,” LVRC
Holdings LLC v. Brekka, 581 F.3d 1127, 1137 (9th Cir. 2009)
(citation omitted). Summary judgment will be granted against a
party who fails to demonstrate facts sufficient to establish “an
element essential to that party’s case and on which that party
will bear the burden of proof at trial.” Parth v. Pomona Valley
Hosp. Med. Ctr., 630 F.3d 794, 798-99 (9th Cir. 2010) (citation
omitted).
When evaluating a motion for summary judgment, the
court must “view the facts and draw reasonable inferences in the
light most favorable to the party opposing the summary judgment
motion.” Scott, 550 U.S. at 378. The court may not, however,
weigh conflicting evidence or assess credibility. In re Barboza,
545 F.3d 702, 707 (9th Cir. 2008).6/ Accordingly, if “reasonable
6/
Nonetheless, a “conclusory, self-serving affidavit” that
lacks detailed facts and supporting evidence may not create a
(continued...)
10
minds could differ as to the import of the evidence,” summary
judgment will be denied. Anderson, 477 U.S. at 250–51.
II.
Special Considerations for Pro Se Litigants
The Ninth Circuit has repeatedly cautioned that pro se
litigants must be treated with liberality. See, e.g., Waters v.
Young, 100 F.3d 1437, 1441 (9th Cir. 1996) (“As a general matter,
this court has long sought to ensure that pro se litigants do not
unwittingly fall victim to procedural requirements that they may,
with some assistance from the court, be able to satisfy.”) Thus,
when considering a motion for summary judgment against a pro se
plaintiff, the Court must consider as evidence the pro se party’s
contentions offered in motions and pleadings, where such
contentions are based on personal knowledge and set forth facts
that would be admissible in evidence, and where the pro se party
attested under penalty of perjury that the contents of the
motions or pleadings are true and correct. Jones v. Blanas, 393
F.3d 918, 923 (9th Cir. 2004).
Nonetheless, pro se litigants must follow the same
rules of procedure that govern other litigants. King v. Atiyeh,
814 F.2d 565, 567 (9th Cir. 1987). “Ignorance of court rules does
not constitute excusable neglect, even if the litigant appears
pro se.” Swimmer v. IRS, 811 F.2d 1343, 1345 (9th Cir. 1987). The
6/
(...continued)
genuine issue of material fact. F.T.C. v. Neovi, Inc., 604 F.3d
1150, 1159 (9th Cir. 2010).“The general rule in the Ninth Circuit
is that a party cannot create an issue of fact by an affidavit
contradicting his prior deposition testimony.” Yeager v. Bowlin,
693 F.3d 1076, 1080 (9th Cir. 2012).
11
court is not required to provide a non-prisoner pro se litigant
with notice of the summary judgment rules. Bias v. Moynihan, 508
F.3d 1212, 1223 (9th Cir. 2007).
DISCUSSION
I.
Federal Claims Under the ADEA
The ADEA makes it unlawful for an employer to
discriminate “because of [an] individual’s age.” 29 U.S.C.
§ 623(a)(1). The prohibition is “limited to individuals who are
at least 40 years of age.” Id. § 631(a).
An ADEA age discrimination claim may be supported by
either direct or circumstantial evidence. Sheppard v. David Evans
& Assocs., 694 F.3d 1045, 1049 (9th Cir. 2012). Direct evidence
is “evidence of conduct or statements by [decision-makers] that
may be viewed as directly reflecting the alleged discriminatory
attitude.” Enlow v. Salem-Keizer Yellow Cab Co., 389 F.3d 802,
812 (9th Cir. 2004). Here, Mr. Kocsis does not present any direct
evidence of age discrimination. Rather, he argues that age
discrimination can be inferred from the way that Delta allegedly
treated another employee, who was younger than Mr. Kocsis but
otherwise similarly situated.
When considering whether to grant summary judgment on
an ADEA claim that presents only circumstantial evidence of age
discrimination, district courts in this Circuit use the burdenshifting framework laid out by the Supreme Court in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). See Shelley v.
Geren, 666 F.3d 599, 607-08 (9th Cir. 2012). The plaintiff must
12
first present a prima facie case of age discrimination; if he
does so, the burden of production shifts to the defendant to
articulate a legitimate nondiscriminatory reason for its
employment decision. See Coleman v. Quaker Oats Co., 232 F.3d
1217, 1280–81 (9th Cir. 2000). If the employer successfully
articulates its legitimate reason, the burden of production
shifts back to the plaintiff, who must demonstrate that the
employer’s alleged reason for the adverse employment decision is
a pretext for another motive which is discriminatory. Id. Despite
the shifting burden of production, the ultimate burden of proof
remains always on the plaintiff to show that the employer
discriminated against him on the basis of age. Id.; Shelley, 666
F.3d at 608.
In this Circuit, a plaintiff may bring ADEA
discrimination claims under two theories: “disparate treatment”
or “disparate impact.” Sheppard, 694 F.3d at 1049 n.1. The
McDonnell Douglas burden-shifting framework described above
applies to both types of claim. See, e.g., Shelley, 666 F.3d at
608 (disparate treatment claim); Rose v. Wells Fargo. & Co., 902
F.2d 1417, 1424 (9th Cir. 1990) (disparate impact claim). Here,
Mr. Kocsis brings claims under both theories. The Court will
examine each theory separately.
A.
Disparate Treatment
A disparate treatment claim under the ADEA alleges that
“the employer simply treats some people less favorably than
others because of their [age].” Enlow, 389 F.2d at 811.
13
To establish a prima facie claim under the ADEA that he
was fired because of his age, the plaintiff must produce evidence
showing that he was: (1) at least 40 years old; (2) performing
his job satisfactorily; (3) discharged; and (4) either replaced
by a substantially younger employee with equal or inferior
qualifications or discharged under circumstances otherwise giving
rise to an inference of discrimination. Schechner v. KPIX-TV, 686
F.3d 1018, 1023 (9th Cir. 2012) (citation omitted). To survive
summary judgment, the plaintiff must present admissible evidence
as to all four elements of the prima facie claim. E.g., Shelley,
666 F.3d at 608.
It is undisputed that Mr. Kocsis was more than forty
years old when he was fired. Mr. Kocsis thus has clearly
demonstrated the first and third elements of the prima facie
claim. There is also substantial evidence that Mr. Kocsis
performed his job satisfactorily for more than 20 years, other
than the alleged theft (see Delta CSF Ex. J; Takao Decl. ¶ 7),
and Delta has presented no argument on this element of the claim.
Delta’s Motion focuses on the fourth element of the
prima facie claim; Delta argues that Mr. Kocsis has not met his
burden because he has presented no evidence that would be
admissible at trial showing that he was fired under circumstances
“giving rise to an inference of age discrimination.” Sheppard,
694 F.3d at 1049. An inference of discrimination may be
established by showing that other, younger employees were treated
14
more favorably than the plaintiff. O’Connor v. Consol. Coin
Caterers Corp., 517 U.S. 308, 312 (1996).
Here, Mr. Kocsis’s basis for inferring that Delta fired
him because of his age is a conversation he had with a Delta
Purser, Muriel Baker, who told him that she had repeatedly
reported a certain flight attendant, Henry Kashfi, for stealing
duty-free deposits, but that Mr. Kashfi was not fired or
disciplined. Mr. Kocsis believes based on workplace gossip that
many people at Delta knew that Mr. Kashfi routinely stole dutyfree deposits. Mr. Kocsis believes that Mr. Kashfi is eleven
years younger than Mr. Kocsis.
First, Delta argues that Mr. Kocsis’s allegations
regarding Henry Kashfi are simply irrelevant because Mr. Kashfi
had different supervisors from Mr. Kocsis. (Reply at 8.) Delta is
incorrect. The Ninth Circuit does not apply a rigid “same
supervisor” requirement in determining whether employees are
similarly situated; employees who had different supervisors but
who were subject to the same rules and standards may be similarly
situated. Earl v. Nielsen Media Research, Inc., 658 F.3d 1108,
1115 (9th Cir. 2011); see Hawn v. Executive Jet Mgmt., Inc., 615
F.3d 1151, 1157 (9th Cir. 2010) (In a Title VII case, “[i]t was
error for the district court to impose a strict ‘same supervisor’
requirement. . . . The employees' roles need not be identical;
they must only be similar ‘in all material respects.’” (citations
omitted)).
15
Second, Delta argues that all of the evidence
Mr. Kocsis has presented concerning Mr. Kashfi is hearsay. The
Court agrees in part and disagrees in part.
Federal Rule of Evidence 801(d)(2)(D) states that a
statement is not hearsay if it “is offered against an opposing
party” and “was made by the party’s agent or employee on a matter
within the scope of that relationship and while it existed.” The
burdens is on the party offering the statement to establish each
of these foundational facts. United States v. Chang, 207 F.3d
1169, 1176 (9th Cir. 2000).
To show these “foundational facts,” i.e., that
Ms. Baker was employed by Delta when she spoke to Mr. Kocsis and
that the scope of her employment encompassed the things she told
him, Mr. Kocsis has offered his own testimony and Ms. Baker’s
statements themselves. It is not clear whether Mr. Kocsis’s
testimony on this subject was made with personal knowledge. The
Ninth Circuit has held, however, that “out of court statements
may themselves be considered in determining the preliminary
question, under Rule 801(d)(2)(D) of the scope of [the agent’s]
employment duties.” Hilao v. Est. of Marcos, 103 F.3d 767, 775
(9th Cir. 1996). Moreover, Delta has not denied that Ms. Baker is
a Delta Purser and was one at the time she made these statements.
Under the circumstances, the Court finds that Mr. Kocsis has barely - raised an issue of material fact as to these
foundational facts.
16
Ms. Baker’s statements that she caught Mr. Kashfi
stealing duty-free payments, filed three complaints about it to
Delta, discussed the issue with Delta’s security officer, and
observed that Mr. Kashfi was not fired, are all arguably matters
within the scope of her employment as a Purser, which, as Delta
itself acknowledges, involves supervising other flight attendants
and collecting duty-free payments from them (see Delta CSF ¶¶ 58, 10). They are, therefore, arguably not hearsay.
On the other hand, Mr. Kocsis’s understanding from
conversations with New York-based flight attendants that it was
“common knowledge” that Mr. Kashfi had been stealing “for years”
does not, based on the evidence currently before the Court, fall
into the same exception. Such a broad observation about
Mr. Kashfi’s work performance over a long period of time does not
appear to fall within the scope of a single flight attendant’s
employment duties. Similarly, Ms. Baker’s statement that
Mr. Kashfi “went unpunished” appears to be outside the scope of
her employment; Mr. Kocsis has presented no evidence that Pursers
in general or Ms. Baker in particular have any role in
disciplinary decisions. These statements are pure hearsay.7/
7/
Hearsay evidence may be considered at the summary
judgment stage if its contents would be admissible at trial.
Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003). For
example, a court may consider at the summary judgment stage
statements made in a diary, if the diary-writer has personal
knowledge of the facts alleged in the statement and could
properly testify to them at trial. Id. at 1036-37. Here, however,
Mr. Kocsis’s deposition testimony and statements in his
declaration regarding Mr. Kashfi would not be admissible at
trial, because, as Mr. Kocsis himself testified, Mr. Kocsis has
(continued...)
17
Mr. Kocsis has also presented no evidence that would be
admissible at trial as to Mr. Kashfi’s age. Mr. Kocsis testified
at deposition that he learned that Mr. Kashfi was eleven years
younger than him from the website Facebook.8/ This is, again,
hearsay. Thus, Mr. Kocsis has presented no admissible evidence
that the similarly-situated employee with whom he should be
compared is significantly younger than him.
Since Mr. Kocsis has not presented sufficient
admissible evidence to support the fourth element of his claim,
the Court would ordinarily grant summary judgment on this claim
to Delta. In this case, however, Mr. Kocsis has requested under
Rule 56(d) that the Court allow him to conduct further discovery
before ruling on the motion for summary judgment. Since
Mr. Kocsis requests further discovery as to all of his claims,
the Court will first address the merits of his other claims and
then discuss his Rule 56(d) request.
7/
(...continued)
no direct personal knowledge whatsoever of any of the facts he
reports concerning Mr. Kashfi. (See Kocsis Dep. at 282:24283:16.)
8/
Delta makes much of the fact that if Mr. Kashfi is indeed
eleven years younger than Mr. Kocsis, he would have been over
forty at the time Mr. Kocsis was fired. The Supreme Court has
noted, however, that in age discrimination cases the proper
inquiry is not whether the comparator employee is outside the
protected class, but whether he is significantly younger than the
plaintiff. See O’Connor, 517 U.S. at 312; Earl, 658 F.3d at 1116
(refuting employer’s argument that an employee who was 42 when he
committed policy violations could not be a proper comparator: “In
an age discrimination case, comparison with younger employees
within the protected class is not improper as a matter of
law . . . .”)
18
B.
Disparate Impact
A disparate impact claim challenges “employment
practices that are facially neutral in their treatment of
different groups but that in fact fall more harshly on one group
than another and cannot be justified by business necessity.”
Pottenger v. Potlatch Corp., 329 F.3d 740, 749 (9th Cir. 2003)
(quoting Int’l Bd. of Teamsters v. United States, 431 U.S. 324,
335 n.15 (1977)).
To establish a prima facie case of age discrimination
on the basis of disparate impact, the plaintiff must produce
evidence showing: (1) the occurrence of certain outwardly neutral
employment practices and (2) a significantly adverse or
disproportionate impact on persons of a particular age produced
by the employer’s facially neutral acts or practices. Id.
(citation omitted). The plaintiff need not show discriminatory
motive or intent. Rose, 902 F.2d at 1421.
A disparate impact claim “must challenge a specific
business practice.” Pottenger, 329 F.3d at 749. The Supreme Court
has explained: “[I]t is not enough to simply allege that there is
a disparate impact on workers, or point to a generalized policy
that leads to such an impact. Rather, the employee is responsible
for isolating and identifying the specific employment practices
that are allegedly responsible for any observed statistical
disparities.” Smith v. City of Jackson, 544 U.S. 228, 242 (2005)
(affirming grant of summary judgment). Moreover, the plaintiff
must show that he was subject to the particular employment
19
practice with the alleged disparate impact. Pottenger, 329 F.3d
at 750.
Here, Mr. Kocsis has not identified any specific,
facially neutral employment practice on which his claim is based.
Nor has he demonstrated that any of Delta’s policies had a
disproportionate impact on older employees in general. Indeed,
although he repeatedly claims that Delta had an “internal,
unpublished policy of discriminating against older, senior flight
attendants,” (Opp. at 1), Mr. Kocsis has presented no evidence of
any other employee over 40 who was discharged or adversely
treated by Delta.
C.
Retaliation
Delta in its motion presented arguments regarding an
ADEA retaliation claim. Mr. Kocsis’s complaint does not appear to
bring a retaliation claim, however, his opposition does not
mention one, and he did not present any arguments concerning
retaliation at the hearing on Delta’s Motion. The Court therefore
disregards these arguments.
II.
State Law Claims Under Hawaii Revised Statutes § 378-2
In addition to his federal claims, Mr. Kocsis brings
state-law claims under Hawai’i Revised Statute § 378-2. That
statute makes it “an unlawful discriminatory practice” for an
employer to fire or otherwise discriminate against an employee
“because of . . . age.” Haw. Rev. Stat. § 378-2(a)-(a)(1)(A).
Unlike the ADEA, the Hawaii state statute does not establish a
specific age group which it protects. Schefke v. Reliable
20
Collection Agency, Ltd., 32 P.3d 52 n.63 (Haw. 2001). The import
of the Hawai’i statute is, however, identical to that of the
ADEA, and the Hawaii Supreme Court has “looked to the
interpretations of analogous federal laws by the federal courts
for guidance.” Shoppe v. Gucci Am., Inc., 14 P.3d 1049, 1058
(Haw. 2000). Thus, to evaluate state-law age discrimination
claims under section 378-2, Hawaii courts follow the same
McDonnell Douglas burden-shifting framework used for federal ADEA
claims. E.g., French v. Haw. Pizza Hut, Inc., 99 P.3d 1046, 1057
(Haw. 2004).
There are three types of age discrimination claim under
Hawaii law: disparate treatment discrimination, pattern-orpractice discrimination, and disparate impact discrimination.
A.
Disparate Treatment
The elements of a prima facie state-law claim for age
discrimination based on disparate treatment are different from
those of its federal analog. To establish a prima facie claim of
age discrimination under Hawaii state law, a plaintiff must
present evidence that: (1) he is a member of the protected class;
(2) he is qualified for the position in question; (3) he has
suffered some adverse employment action; and (4) the position in
question still exists. Shoppe, 14 P.3d at 1059; see also Reyes v.
HMA, Inc., Civ. No. 07-00229, 2008 WL 1883904, at *4-*5 (D. Haw.
Apr. 28, 2008) (discussing some of the inconsistencies between
Shoppe and the federal law it claims to apply and following
Shoppe’s statement of the prima facie elements).
21
Here, none of the elements of the state-law prima facie
claim appear to be in dispute. Mr. Kocsis was over forty years
old, was qualified for the position, and was fired. Delta
apparently still employs Pursers on its flights. Under the
framework laid out in Shoppe, Mr. Kocsis has presented a prima
facie claim, and the burden of production therefore now shifts to
Delta to articulate a legitimate, nondiscriminatory reason for
firing Mr. Kocsis. Shoppe, 14 P3d at 1059.
Delta presents competent evidence that it fired
Mr. Kocsis because it believed that MDEs for which he was
responsible went missing. (See, e.g., Delta CSF Ex. J
(termination recommendation); Bell Decl. ¶¶ 55-56; Takao Decl.
¶¶ 32-34.) Suspicion of theft is clearly a legitimate, nondiscriminatory reason to fire an employee. The burden of
production therefore shifts back to Mr. Kocsis to present
evidence that Delta’s alleged reasons for firing him were
pretextual. Shoppe, 14 P.3d at 1059.
Under Hawaii law, a plaintiff may establish pretext
“either directly by persuading the court that a discriminatory
reason more likely motivated the employer or indirectly by
showing that the employer’s proffered explanation is unworthy of
credence.” Hac. v. Univ. of Haw., 73 P.3d 46, 54 n.15 (Haw. 2003)
(quoting Shoppe, 14 P.3d at 1060).
Here, as discussed above in relation to Mr. Kocsis’s
federal claims, Mr. Kocsis has presented no direct evidence that
the decisionmakers at Delta held any discriminatory motivations.
22
He has presented admissible evidence that a Purser complained
about Mr. Kashfi stealing duty-free payments and that Mr. Kashfi
was not fired, but has failed to present admissible evidence that
Mr. Kashfi was significantly younger than Mr. Kocsis.
The Court therefore examines whether Mr. Kocsis has
presented any other evidence to show that Delta’s proffered
explanation for firing him is otherwise “unworthy of credence.”
Id. To prevail on this theory, the plaintiff must produce
sufficient evidence to show that there is a genuine issue of
material fact regarding the truth of the employer’s stated reason
for firing him. See Chuang v. Bd. of Trs., 225 F.3d 1115, 1127
(9th Cir. 2000) (discussing the meaning of the phrase “unworthy
of credence”).9/ The burden of persuasion that the employer
intentionally discriminated against the plaintiff remains with
the plaintiff. Shoppe, 14 P.3d at 1059-60.
On this issue, Delta presents declarations from
Ms. Bell and Mr. Takao, the two supervisors who decided to fire
Mr. Kocsis, stating that they both honestly believed at the time
9/
There is no doubt that Mr. Kocsis has presented evidence
which would raise a genuine question of fact as to whether he
actually did deposit the three January 2011 MDEs that allegedly
went missing. The Court notes for Mr. Kocsis’s benefit, however,
that in an employment discrimination case the truth of the
underlying allegations against the plaintiff are irrelevant, as
long as his employers actually believed them at the time that
they discharged him. See Villiarimo v. Aloha Island Air, Inc.,
281 F.3d 1054, 1063 (9th Cir. 2002) (“In judging whether [the
employer’s] proffered justifications were ‘false,’ it is not
important whether they were objectively false . . . . Rather,
courts only require that an employer honestly believed its reason
for its actions, even if its reason is foolish or trivial or even
baseless.” (citation omitted)).
23
they fired him that Mr. Kocsis had not deposited the missing MDEs
as he had claimed. (See Bell Decl. ¶ 55; Takao Decl. ¶ 32.)
Mr. Kocsis’s arguments rebutting this evidence fall into three
categories.
First, Mr. Kocsis argues that he repeatedly tried to
present receipts which would account for the three missing MDEs.
Ms. Bell states in her declaration that she personally
investigated the missing MDEs, that the MDEs were never
recovered, and that based on her investigation, she believed
Mr. Kocsis had stolen them. Ms. Bell’s declaration carefully
details her investigation, which included two exchanges with
Ms. Bunch, the Honolulu employee with whom Mr. Kocsis claimed to
have deposited the missing MDEs. Furthermore, Ms. Bell
investigated the signed receipt for MDE # 462209 which Mr. Kocsis
presented during his appeal process, but found that MDE # 462209
did not contain the missing money from MDE # 462455.
Ms. Bell’s declaration regarding her investigation of
the signed receipt is inconsistent with the documentary evidence,
however. Ms. Bell states that Mr. Kocsis only claimed that he had
given MDE # 462209 to Ms. Bunch in Honolulu “for the first time”
after he was fired, and therefore describes his presentation of
the signed receipt and explanation that MDE # 462455 was
contained within MDE # 462209 as a “new claim.” (Bell Decl.
¶¶ 59, 62.) The documentary evidence clearly shows, however, that
Mr. Kocsis offered to show his managers his receipts well before
he was terminated. In an email dated February 17, 2011, addressed
24
to Mr. Takao and forwarded to Ms. Bell, Mr. Kocsis stated that he
had deposited all his January MDEs at either Narita or Honolulu
and had obtained receipts. (Delta CSF Ex. I (email dated February
17, 2011: “All my deposits . . . for the month of January 2011
have been deposited in either the deposit safe in NRT or directly
at in-flight in HNL. I will provide you with my copy of the
receipts upon my return.”).) And in an email to Ms. Bell dated
March 22, 2011, Mr. Kocsis listed all of his January deposits;
the list includes the three MDEs that were allegedly missing and
notes that he had deposited them with in-flight services at
Honolulu and received signed receipts for them. (Id.) His list
also notes that he had deposited MDE # 462455 within another MDE.
(Id.) In sum, this was not a “new claim” and Mr. Kocsis did not
present his receipts for the first time only after he was fired.
Moreover, Mr. Kocsis states in his declaration that
when he was first suspended he asked Mr. Takao for the chance to
explain the allegedly missing deposits and was denied, and that
during the meeting in which he was fired he again told Ms. Bell
and Mr. Takao that he had signed receipts for the allegedly
missing MDEs, but was not allowed to present them. (Kocsis Decl.
¶¶ 7, 8.) Mr. Kocsis also presents evidence that this refusal was
inconsistent with his manager’s past practice; when Delta
previously questioned the whereabouts of two other MDEs which he
25
had deposited late,10/ he was allowed to present his signed
receipts. (Kocsis Decl. ¶ 3; see Opp. at 6-7.)
Second, Mr. Kocsis argues that Delta has not shown that
the missing money was never recovered because it has not produced
documents to substantiate that factual claim. Mr. Kocsis is
incorrect. Ms. Bell’s sworn affidavit states that the money was
never recovered, and Mr. Kocsis has presented no evidence that
would call that particular statement into question.
Third and finally, Mr. Kocsis argues that Ms. Bell and
Mr. Takao fired him because they were afraid of repercussions
from Delta’s head office if they did not take the opportunity to
fire an older member of their workforce. Mr. Kocsis states that
Mr. Takao told him while suspending him that the decision to
suspend Mr. Kocsis was not his, and that Mr. Takao himself would
have conducted a more thorough investigation and allowed
Mr. Kocsis the chance to explain himself. (Kocsis Decl. ¶ 7.)
Mr. Kocsis also states that Mr. Takao told Mr. Kocsis that he and
Ms. Bell had previously made Delta’s management angry by failing
to fire Kevin Griffin, another, similarly-aged Purser who had
been alleged to have been stealing. (Id.)
10/
Mr. Kocsis explains the background to this incident namely that he was late depositing these MDEs because he had been
called away from work to see his terminally-ill mother – in his
Opposition, but does not do so in his Declaration. The Court
reminds Mr. Kocsis that unsworn factual statements made in a
brief are not evidence; if Mr. Kocsis wishes the Court to
consider one of his factual statements as evidence, he must
include it in a declaration signed under penalty of perjury.
26
In its Reply, Delta argued that the Court should
disregard Mr. Kocsis’s evidence concerning Mr. Griffin on the
grounds that Mr. Kocsis was making these allegations “for the
first time” and that they conflicted with his deposition
testimony. (Reply at 3-4 (“Plaintiff’s failure to raise
Mr. Griffin as a comparator until now is disingenuous and cannot
be considered for purposes of defeating summary judgment.”).)
Delta’s counsel conceded at the motion hearing, however, that
Mr. Kocsis had in fact discussed Mr. Griffin during his
deposition.
Like Ms. Baker’s statements discussed above,
Mr. Takao’s statements concerning Mr. Griffin are at least
arguably admissible against Delta under Federal Rule of Evidence
801(d)(2)(D), as statements of a party-opponent. Mr. Kocsis’s
declaration and arguments are not at all clear, however, as to
what Mr. Takao actually said, versus what Mr. Kocsis inferred
from his statements. Most importantly, it is not clear whether
Mr. Takao actually said anything to imply that Delta was angry
because Mr. Griffin was an older employee, rather than, as
Delta’s counsel argues, because Delta “is committed to a theftfree environment.” (Reply at 4.)
B.
Pattern-or-Practice & Disparate Impact
When bringing a state-law employment discrimination
claim under a “pattern-or-practice” theory, “a plaintiff must
prove, by circumstantial or direct evidence, that an employer’s
past actions evidence a pattern of illegal discrimination against
27
a protected class.” Shoppe, 14 P.3d at n.2 (citations omitted).
Under a “disparate impact” theory, “a plaintiff must prove
statistically that a certain employment practice has a disparate
impact on a protected class.” Id. at n.3. Here, as discussed
above, Mr. Kocsis has presented no evidence regarding adverse
employment actions taken against any other Delta employee, much
less any employee who could also fall within the protected class
for an age discrimination claim.
III. Request for Further Discovery
For the reasons stated above, the Court would
ordinarily grant summary judgment to Delta on, at least,
Mr. Kocsis’s federal claims and his state law claims on a theory
of disparate impact or “pattern-or-practice.” In this case,
however, Mr. Kocsis requests more time for discovery so that he
may seek further evidence to oppose Delta’s motion. (Kocsis Decl.
¶¶ 12-13.) Under Federal Rule of Civil Procedure 56(d)11/, a
district court may postpone ruling on a summary judgment motion
to allow for further discovery where the non-moving party needs
“additional discovery to explore facts essential to justify the
party’s opposition.” Jones v. Blanas, 393 F.3d 918, 930 (9th Cir.
2004). The Ninth Circuit has noted that although Rule 56(d) on
its face gives district courts “the discretion to disallow
discovery where the non-moving party cannot yet submit evidence
supporting its opposition, the Supreme Court has restated the
11/
Former Rule 56(f) became Rule 56(d) under the 2010
amendments to the Rules.
28
rule as requiring, rather than merely permitting, discovery
‘where the nonmoving party has not had the opportunity to
discover information that is essential to its opposition.’”
Metabolife Int’l, Inc. v. Wornick, 264 F.3d 832, 846 (9th Cir.
2001) (emphasis added) (quoting Anderson, 477 U.S. at 250 n.5).
A.
Form of Request
Ordinarily, a Rule 56(d) request must be made in a
separate motion or formal request. See, e.g., Brae Transp., Inc.
v. Coopers & Lybrand, 790 F.2d 1439, 1443 (9th Cir. 1986).
“References in memoranda and declarations to a need for discovery
do not qualify as motions under Rule 56[(d)].” Lane v. Dep’t of
Interior, 523 F.3d 1128, 1134 n.4 (9th Cir. 2008). The Ninth
Circuit has, however, allowed certain filings not formally
denominated as Rule 56(d) requests to adequately raise the issue
of additional discovery. Id. (citing Garrett v. City & Cnty. of
S.F., 818 F.2d 1515, 1518 (9th Cir. 1987)). Here, Mr. Kocsis is
appearing pro se, and the Court will construe paragraphs 12 and
13 of Mr. Kocsis’s affidavit attached to his opposition as a Rule
56(d) request for further discovery.
B.
Merits of Request
To obtain a continuance under Rule 56(d), the party
opposing a motion for summary judgment must make “(a) a timely
application which (b) specifically identifies (c) relevant
information, (d) where there is some basis for believing that the
information sought actually exists.” Blough v. Holland Realty,
29
Inc, 574 F.3d 1084, 1091 n.5 (9th Cir. 2009) (citation omitted).
The Court will address each of these elements in turn.
1.
Timeliness
Mr. Kocsis filed his request within the time allowed by
the Federal Rule of Civil Procedure and the Local Rules for an
opposition to a motion for summary judgment. The Court finds that
Mr. Kocsis’s request was timely. See Ashton-Tate Corp. v. Ross,
916 F.2d 516, 519-20 (9th Cir. 1990) (request timely if made
prior to the summary judgment hearing).
2.
Specifically Identifies
When requesting further discovery under Rule 56(d),
“[i]t is not enough to rely on vague assertions that discovery
will produce needed, but unspecified, facts.” Naoko Ohno v. Yuko
Yasuma, ___ F.3d ___ , 2013 WL 3306351, at *23 n.29 (9th Cir.
July 2, 2013) (quoting Stearns Airport Equip. Co. v. FMC Corp.,
170 F.3d 518, 535 (5th Cir. 1999)).
Here, Mr. Kocsis’s request for further discovery
indicates that he may seek further, unspecified, documentary
evidence and interrogatory responses from Delta, and may wish to
depose Muriel Baker, John O’Dwyer, and Junichi Takao.
Mr. Kocsis’s request does not identify any specific facts or
documents that he intends to obtain through this discovery. He
states merely that he “believes that further discovery will
provide further sufficient evidence to deny” Delta’s summary
judgment motion. (Kocsis Decl. ¶ 13.) This exceptionally vague
statement does not meet the standard required of Rule 56(d)
30
requests. Construing the statement generously, as befits
Mr. Kocsis’s pro se status, however, the Court can infer from
Mr. Kocsis’s other allegations and arguments that he wishes to
question Muriel Baker and John O’Dwyer about Henry Kashfi’s
dismissal, and Junichi Takao about his statement that he and
Ms. Bell were afraid of repercussions from Delta’s head office if
they did not fire Mr. Kocsis. The Court may also infer that
Mr. Kocsis wishes to obtain documentary evidence on these same
topics, as well as on the thoroughness of Ms. Bell’s
investigation.
3.
Relevant Facts
The evidence sought by a Rule 56(d) request must be
relevant to the movant’s opposition – that is, the moving party
must show that the evidence sought “would prevent summary
judgment.” Getz v. Boeing Co., 654 F.3d 852, 868 (9th Cir. 2011)
(citation omitted). Since Mr. Kocsis has not specified what
evidence he seeks to discover, the Court must rely on its own
inferences, which are discussed above. Testimony obtained from
Muriel Baker and John O’Dwyer and related documentary evidence
concerning Mr. Kashfi would be relevant to Mr. Kocsis’s
opposition. A deposition of Mr. Takao about his reasons for
firing Mr. Kocsis
- and particularly about his statements
concerning Mr. Griffin - and documents concerning Ms. Bell’s
investigation could yield evidence relevant to Mr. Kocsis’s
arguments concerning pretext.
31
4.
Existing Facts
“[D]enial of a Rule 56[(d)] application is proper where
it is clear that the evidence sought is almost certainly
nonexistent or is the object of pure speculation.” Campbell, 138
F.3d at 779-80. There is no reason to infer that any of the
evidence discussed above does not exist.
5.
Diligence in Discovery
Finally, the district court may deny further discovery
if the requesting party failed to pursue discovery diligently in
the past. Nidds v. Schindler Elevator Corp., 113 F.3d 912, 921
(9th Cir. 1997); see, e.g., Trans-Tec Asia v. M/V Harmony
Container, 518 F.3d 1120, 1133 (9th Cir. 2008). As noted above,
the Supreme Court has interpreted Rule 56(d) as requiring the
court to allow further discovery where the requesting party “has
not had the opportunity to discover information” essential to its
opposition. Metabolife, 264 F.3d at 846 (emphasis added) (quoting
Anderson, 477 U.S. at 250 n.5).
This action has been pending since July 27, 2012. There
is no evidence that Mr. Kocsis has attempted during the last year
to take the deposition of any of the three witnesses he now
claims he wishes to depose. Mr. Kocsis also complains that one of
Delta’s discovery responses was inadequate, but the response was
served more than three months ago, and Mr. Kocsis did not file a
motion to compel or otherwise raise the issue with this Court
until now. (See Reply, Hara Decl. ¶¶ 3-4, 11.)
32
In sum,
Mr. Kocsis’s pursuit of discovery cannot fairly be characterized
as diligent.
C.
Conclusion as to Rule 56(d) Request
Mr. Kocsis’s proposed further discovery does not seek
evidence that would support claims based on disparate impact or
“pattern-or-practice.” The Court grants summary judgment to Delta
on any such claims.
Mr. Kocsis’s proposed further discovery does, however,
seek evidence relevant to his claims based on a theory of
disparate treatment. Given that Mr. Kocsis has not pursued
discovery diligently and has failed to set out what further facts
he seeks with any specificity, the Court is reluctant to grant
his Rule 56(d) request. In consideration of his pro se status,
however, the Court will grant the request. Delta’s Motion for
Summary Judgment is therefore deemed withdrawn as to these
claims, and the parties shall proceed with relevant discovery as
set forth below.
CONCLUSION
For the foregoing reasons, the Court GRANTS summary
judgment to Delta on Mr. Kocsis’s federal and state law claims
based on theories of disparate impact or “pattern-or-practice.”
The Court also, however, GRANTS Mr. Kocsis’s request for further
discovery, as to his federal and state law claims based on a
theory of disparate treatment. Delta’s Motion for Summary
Judgment is DEEMED WITHDRAWN as regards these claims. The parties
shall continue to engage in discovery until the discovery
33
deadline of September 13, 2013.12/ After September 13, 2013, but
by, at the latest, September 27, 2013, Delta may file a renewed
motion for summary judgment if it so wishes. The Court will set
the schedule for any further briefing at that time.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, August 5, 2013
________________________________
Alan C. Kay
Sr. United States District Judge
Kocsis v. Delta Air Lines, Inc., Civ. No. 12-00423 ACK BMK, Order
Granting in Part Defendant’s Motion for Summary Judgment and
Granting Plaintiff’s Rule 56(d) Request for Further Discovery
12/
The discovery deadline is less than six weeks away. The
Court therefore notes for Mr. Kocsis’s benefit as a pro se that
it is possible to ask the Court to extend such deadlines - but
“only for good cause.” Fed. R. Civ. P. 16(b)(4) (emphasis added).
The Court reminds Mr. Kocsis – as the Court discussed with him at
the hearing - that he must pursue discovery diligently. His
failure to do so will not constitute “good cause” for extending
the deadline.
34
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