Herron v. Peri & Sons Farms, Inc.

Filing 40

ORDER granting 31 Motion for Summary Judgment. The clerk shall enter judgment accordingly. Signed by Judge Howard D. McKibben on 5/13/2014. (Copies have been distributed pursuant to the NEF - KR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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WILLIAM HERRON,

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Plaintiff,
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vs.
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PERI & SON’S FARMS, INC.,
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Defendant.
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_________________________________ )

3:13-cv-00075-HDM-VPC
ORDER

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Plaintiff William Herron (“plaintiff”) has filed a complaint
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asserting disability discrimination and failure to accommodate
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against defendant Peri & Son’s Farms (“defendant”).

Before the

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court is the defendant’s motion for summary judgment on plaintiff’s
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claims (#31).

Plaintiff has opposed (#37), and defendant has

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replied (#38).
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Facts
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On December 5, 2011, plaintiff applied for an open maintenance
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mechanic position with defendant.

(See Def. Mot. Summ. J. Ex. 2).

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In applying for the position, plaintiff submitted a resume
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representing that he had a Certificate of Completion from the
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Arizona Automotive Institute and that he was ASE certified in

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engine repair, front-end alignment, and air-conditioning.

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Plaintiff was interviewed by Paul Giannotta, who would become his

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supervisor.

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process, plaintiff represented that he was a “journeyman mechanic,”

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which meant “he could fix just about everything.”

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(Id. Ex. 3 (Giannotta Dep. 6)).

(Id.)

During the interview

(Id. at 7).

Plaintiff was hired and began working for defendant on or

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about December 8, 2011.

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Giannotta began noticing that plaintiff was not as skilled as he

(See Pl. Opp’n Ex. 1).

Shortly after,

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had represented himself to be; in his opinion, plaintiff took more

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time than expected on routine jobs and declined or was unable to do

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repair work he should have been able to do. (Def. Mot. Summ. J. Ex.

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3 (Giannotta Dep. 7-8, 37, 40-41); id. Ex. 4 (Giannotta Decl. 1-

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2)).

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change the oil on a skid steer and would sometimes take all day to

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complete what was typically a one- to two-hour job.

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Summ. J. Ex. 3 (Giannotta Dep. 7-8, 37)).

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claims that plaintiff would repeatedly try to send vehicles to the

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Chevrolet dealership for costly repairs that Giannotta believed

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plaintiff should have been able to diagnose and resolve himself.

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(Id. at 40-41; id. Ex. 4 (Giannotta Decl. 2)).

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observed plaintiff making what Giannotta believed to be excessive

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personal calls during work time.1

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(Giannotta Decl. 2)).

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For example, Giannotta asserts that plaintiff could not

(Def. Mot.

In addition, Giannotta

Finally, Giannotta

(Def. Mot. Summ. J. Ex. 4

Plaintiff asserts that he was not hired to service skid steers

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That plaintiff was actually making several personal phone calls
during work time appears to be supported by his telephone records. (See
Def. Mot. Summ. J. 6-8 (citing Exs. 3, 5 & 12)).

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and that he was supposed to be trained on them when work was slow.

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(Pl. Opp’n (Herron Decl. 2); see also Def. Mot. Summ. J. Ex. 5

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(Herron Dep. 163-64))).

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normal to perform work, but does not respond to the assertion that

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he sent work to the Chevrolet dealership that he should have been

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able to complete himself.

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plaintiff explains his cell phone use by asserting that he had been

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told to use his cell phone until the company issued him one, that

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he used the cell phone to order parts, and that he used his hands-

He denies that it took him longer than

(Pl. Opp’n (Herron Decl. 2)).

Finally,

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free Bluetooth device to make personal calls so he could continue

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working.

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(Id.)

In mid-January, Giannotta asked plaintiff to perform some

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“dash work.”

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Opp’n (Herron Decl. 1)).

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the work because of his back.

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Dep. 60-61); Pl. Opp’n (Herron Decl. 1)).

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and did not make plaintiff do the job.

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(Herron Dep. 59-61)).

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(See Def. Mot. Summ. J. Ex. 5 (Herron Dep. 48); Pl.
Plaintiff told Giannotta he could not do
(Def. Mot. Summ. J. Ex. 5 (Herron
Giannotta said “okay”

(Def. Mot. Summ. J. Ex. 5

Two days later, on January 17, 2012, Giannotta terminated

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plaintiff.

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claims that Giannotta told him he was being laid off because of

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budget cuts.

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(Herron Decl. 2)).

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he was being “let . . . go because it wasn’t working out.” (Def.

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Mot. Summ. J. Ex. 3 (Giannotta Dep. 15)).

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he was subject to a 90-day probationary period. (Id. Ex. 5 (Herron

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Dep. 82)).

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probationary period.

(Def. Mot. Summ. J. Ex. 5 (Herron Dep. 62)).

Plaintiff

(Def. Mot. Summ. J. Ex. 5 (Herron Dep. 62); Pl. Opp’n
Giannotta denies this, saying he told plaintiff

Plaintiff concedes that

At the time plaintiff was terminated, he was within the

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A few weeks later, defendant posted an open mechanic position

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on Craigslist. (Id. Ex. 5 (Herron Dep. 62); id. Ex. 14).

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asserts the advertised position was his position, and that he was

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replaced by someone who did not have a disability and who did not

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request an accommodation.

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Plaintiff

After terminating plaintiff, defendant discovered that his

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resume contained what it alleges to be several material

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misrepresentations about his qualifications and work history.

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First, while the resume stated that plaintiff had a Certificate of

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Completion from the Arizona Automotive Institute after studying

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there for a full year (Def. Mot. Summ. J. Ex. 2), plaintiff admits

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he attended the Institute for only about four months and did not

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receive any certificate of completion, (id. Ex. 5 (Herron Dep.

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139).

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engine repair, front-end alignment, and air-conditioning (id. Ex.

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2), but his engine and front-end certificates had, admittedly,

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lapsed at the time he submitted his resume.2 (See id. Ex. 6; id.

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Ex. 5 (Herron Dep. 129-31).

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former employer from his resume because he thought the employer

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would give him a bad reference.

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Dep. 144-45)).

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at some of his prior employers, thereby obscuring periods of

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unemployment, time spent working for employers plaintiff chose not

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to list, and time spent owning his own business.

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45)).

Second, the resume stated plaintiff was ASE certified in

Third, plaintiff excluded at least one

(Def. Mot. Summ. J. Ex. 5 (Herron

Finally, plaintiff misrepresented the time he spent

(See id. at 140-

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The evidence also strongly suggests that plaintiff did not have and
had never had any air-conditioning certificate.

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Standard
“The court shall grant summary judgment if the movant shows

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that there is no genuine issue as to any material fact and the

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movant is entitled to judgment as a matter of law.”

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P. 56(a).

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issue of material fact lies with the moving party, and for this

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purpose, the material lodged by the moving party must be viewed in

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the light most favorable to the nonmoving party.

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Kress & Co., 398 U.S. 144, 157 (1970); Martinez v. City of Los

Fed. R. Civ.

The burden of demonstrating the absence of a genuine

Adickes v. S.H.

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Angeles, 141 F.3d 1373, 1378 (9th Cir. 1998).

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fact is one that affects the outcome of the litigation and requires

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a trial to resolve the differing versions of the truth.

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Sheet Metal Workers Int’l Ass’n, 804 F.2d 1472, 1483 (9th Cir.

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1986); S.E.C. v. Seaboard Corp., 677 F.2d 1301, 1306 (9th Cir.

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1982).

A material issue of

Lynn v.

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Once the moving party presents evidence that would call for

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judgment as a matter of law at trial if left uncontroverted, the

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respondent must show by specific facts the existence of a genuine

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issue for trial.

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250 (1986).

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sufficient evidence favoring the nonmoving party for a jury to

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return a verdict for that party.

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colorable, or is not significantly probative, summary judgment may

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be granted.”

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of evidence will not do, for a jury is permitted to draw only those

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inferences of which the evidence is reasonably susceptible; it may

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not resort to speculation.”

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F.2d 946, 952 (9th Cir. 1978); see also Daubert v. Merrell Dow

Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

“[T]here is no issue for trial unless there is

If the evidence is merely

Id. at 249-50 (citations omitted).

“A mere scintilla

British Airways Bd. v. Boeing Co., 585

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Pharmaceuticals, Inc., 509 U.S. 579, 596 (1993) (“[I]n the event

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the trial court concludes that the scintilla of evidence presented

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supporting a position is insufficient to allow a reasonable juror

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to conclude that the position more likely than not is true, the

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court remains free . . . to grant summary judgment.”).

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“[i]f the factual context makes the non-moving party’s claim of a

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disputed fact implausible, then that party must come forward with

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more persuasive evidence than otherwise would be necessary to show

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there is a genuine issue for trial.”

Moreover,

Blue Ridge Ins. Co. v.

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Stanewich, 142 F.3d 1145, 1149 (9th Cir. 1998) (citing Cal.

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Architectural Bldg. Prods., Inc. v. Franciscan Ceramics, Inc., 818

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F.2d 1466, 1468 (9th Cir. 1987)).

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unsupported by factual data cannot defeat a motion for summary

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judgment.

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Conclusory allegations that are

Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989).

If the nonmoving party fails to present an adequate opposition

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to a summary judgment motion, the court need not search the entire

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record for evidence that demonstrates the existence of a genuine

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issue of fact.

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F.3d 1026, 1029-31 (9th Cir. 2001) (holding that “the district

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court may determine whether there is a genuine issue of fact, on

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summary judgment, based on the papers submitted on the motion and

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such other papers as may be on file and specifically referred to

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and facts therein set forth in the motion papers”).

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court need not “scour the record in search of a genuine issue of

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triable fact,” but rather must “rely on the nonmoving party to

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identify with reasonable particularity the evidence that precludes

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summary judgment.”

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1996) (quoting Richards v. Combined Ins. Co., 55 F.3d 247, 251 (7th

See Carmen v. San Francisco Unified Sch. Dist., 237

The district

Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir.

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Cir.1995)).

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an opportunity to assist the court in understanding the facts.

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if the nonmoving party fails to discharge that burden–for example

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by remaining silent–its opportunity is waived and its case

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wagered.”

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(6th Cir. 1992).

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Analysis

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“[The nonmoving party’s] burden to respond is really
But

Guarino v. Brookfield Twp. Trustees, 980 F.2d 399, 405

Plaintiff’s first amended complaint (#12) asserts two claims
under the Americans with Disabilities Act: (1) disability

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discrimination; and (2) failure to provide a reasonable

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accommodation.3

42 U.S.C. § 12112.

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Defendant moves for summary judgment on the following grounds:

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(1) plaintiff cannot demonstrate he was a qualified individual with

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a disability; (2) plaintiff cannot show he was terminated because

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of his disability; (3) plaintiff cannot establish he was denied a

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reasonable accommodation; and (4) plaintiff failed to exhaust his

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administrative remedies with respect to his reasonable

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accommodation claim.

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Plaintiff asserts that he was a qualified individual with a

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disability and that there is an issue of fact as to whether he was

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terminated because of his disability.

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oppose summary judgment on his failure to accommodate claim.

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I. Disability Discrimination

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He does not in any way

Under the Americans with Disabilities Act, “[n]o covered

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entity shall discriminate against a qualified individual on the

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basis of disability in regard to job application procedures, the

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Plaintiff’s claim of retaliation was stricken by the court’s order
dated December 12, 2013 (Doc. #27).

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hiring, advancement, or discharge of employees, employee

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compensation, job training, and other terms, conditions, and

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privileges of employment.”

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Douglas burden shifting framework applies in disability

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discrimination cases.

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237 F.3d 1080, 1093 (9th Cir. 2001).

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must first establish a prima facie case of discrimination.

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at 1090-93.

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plaintiff’s employer to provide a legitimate, nondiscriminatory

42 U.S.C. § 12112.

The McDonnell-

See Snead v. Metro. Prop. & Cas. Ins. Co.,
Accordingly, the plaintiff
See id.

Once he has done so, the burden shifts to the

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reason for the adverse employment action.

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employer provides such a reason, the burden shifts back to the

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plaintiff to show the employer’s stated reason is pretextual.

See id. at 1093.

If the

Id.

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A. Prima Facie Case

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To establish a prima facie case of disability discrimination,

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plaintiff must show: (1) he is disabled under the ADA; (2) he is a

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“qualified individual with a disability”; and (3) he was

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discriminated against “because of” the disability.

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Parcel Serv., Inc., 511 F.3d 974, 988 (9th Cir. 2007).

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Bates v. United

1. Disability
For the purposes of this motion, defendant does not challenge
plaintiff’s alleged disability.

(See Def. Mot. Summ. J. 2 n.1).

2. Qualified Individual with Disability

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To satisfy this prong, the plaintiff must show “he can perform

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the job’s essential functions either [with or] without a reasonable

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accommodation.”

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means “that the individual satisfies the requisite skill,

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experience, education and other job-related requirements of the

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position” and “with or without reasonable accommodation can perform

Bates, 511 F.3d at 994.

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The term “qualified”

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the essential functions of such position.”

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“The determination of whether an individual with a disability is

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qualified is to be made at the time of the employment decision.”

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Id. Pt. 1630, App. to § 1630.2(m).

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of production in establishing which job functions are essential.

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Samper v. Providence St. Vincent Med. Ctr., 675 F.3d 1233, 1237

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(9th Cir. 2012).

29 C.F.R. § 1630.2(m).

The defendant bears the burden

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Defendant argues that plaintiff cannot show he was qualified

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for the position because he did not possess the skill, education,

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or other job-related requirements of the position.

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arguing that plaintiff could not adequately perform the job

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consistent with its expectations, defendant asserts that plaintiff

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did not have a “certificate of completion from a certified

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technical school or equivalent” – a requirement of the job.4

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Because plaintiff did not have the required certificate, defendant

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argues, he was not qualified for the job.

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Trustees of Boundary County School Dist. No. 101, 666 F.3d 561 (9th

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Cir. 2011) (recognizing that a teacher whose teaching certificate

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had lapsed was not qualified for the position she had held because

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Idaho law required all teachers to have the proper certificate).5

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In addition to

See Johnson v. Bd. of

There is no disputed issue of fact as to whether plaintiff had
a certificate of completion from a certified technical school.

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While the job posting plaintiff responded to is not on the record,
plaintiff testified that the jobs posted by defendant after he was
terminated had the “same identical writeup” that he had responded to. (Def.
Mot. Summ. J. Ex. 5 (Herron Dep. 174-75)).
Those jobs required a
certificate of completion from a certified technical school or equivalent.
(See id. Exs. 14 & 20).
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Although Johnson involved a failure to accommodate claim and not an
unlawful termination claim, the definition of “qualified” is the same for
both types of claims and thus Johnson’s reasoning applies here.

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Plaintiff admits he did not.

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Dep. 139).

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“equivalent” option because he had ASE certificates.

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presents no evidence to support his counsel’s conclusory assertion

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that his ASE certificates might be equivalent to a certificate of

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completion from a certified technical school.

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no triable issue of fact as to whether he was qualified under the

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equivalent option.

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(Def. Mot. Summ. J. Ex. 5 (Herron

Plaintiff suggests he was qualified under the
However, he

There is therefore

Plaintiff appears to argue that because this job requirement

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was not legally mandated as was the teaching certificate in

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Johnson, it is not relevant in assessing whether he was qualified.

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However, plaintiff has cited no authority in support of the

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argument, and nothing in Johnson suggests that the teaching

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certificate requirement was relevant only because it was legally

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required.

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to teach was made a job requirement by the state’s Board of

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Education.

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limit the phrase “job-related requirements” to legally mandated

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requirements.

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Rather, it was relevant because the legal authorization

Nor does the EEOC Guidance on which Johnson relies

3. Discrimination Because of Disability
Defendant also argues that plaintiff cannot show he was

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terminated because of his disability.

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contends that Giannotta had legitimate reasons for terminating

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plaintiff, that there is no evidence that he knew plaintiff had a

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disability, and that plaintiff has no admissible evidence to rebut

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Giannotta’s assertions.

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show that plaintiff was not terminated because of his disability,

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the court does not need to decide this issue.

Specifically, defendant

While there is substantial evidence to

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Because plaintiff has not satisfied all the elements of his

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prima facie case, summary judgment is therefore appropriate.

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addition, even if plaintiff could show that issues of material fact

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exist on his prima facie case, there are no issues of material fact

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on whether defendant had a legitimate, nondiscriminatory reason for

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terminating plaintiff.

In

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B. Legitimate, Nondiscriminatory Reason

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Giannotta asserts that he terminated plaintiff based on his

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poor performance.

(Def. Mot. Summ. J. Ex. 3 (Giannotta Dep. 17-

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18)).

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that he should have been able to do.

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plaintiff’s back condition played no part in his decision to

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terminate him.

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id. Ex. 4 (Giannotta Decl. 10)).

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and did perform the essential functions of his position and that

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Giannotta told him he was doing a good job and never counseled him

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about his performance.

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claims he told plaintiff “good job” only on isolated assignments

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and that overall his performance was not good.

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Ex. 3 (Giannotta Dep. 41-42)).

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failure to counsel plaintiff to improve his job performance does

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not demonstrate that he was performing satisfactorily because

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plaintiff was within the 90-day probationary period and as such

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defendant was under no obligation to attempt to improve his

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performance.

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Plaintiff could not perform tasks he was asked to do and
Giannotta asserts that

(Def. Mot. Summ. J. Ex. 3 (Giannotta Dep. 23-24);
Plaintiff asserts that he could

(Pl. Opp’n Herron Decl. 2).

Giannotta

(Def. Mot. Summ. J.

Defendant further argues that its

Defendant has provided a legitimate, nondiscriminatory reason

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for plaintiff’s termination.

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employed by defendant, he did not perform as required.

In the short time that plaintiff was

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Plaintiff

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provides no evidence to rebut this assertion beyond his conclusory

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and self-serving declaration.

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are compelling in this case in light of the undisputed evidence

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that plaintiff’s resume, which formed the basis for the decision to

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hire him, misrepresented his qualifications and work history in

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several material respects.

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facie case had been met, defendant has provided a legitimate,

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nondiscriminatory reason for its action.

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plaintiff to produce evidence that the stated reason was pretext.

Defendant’s reasons for termination

Accordingly, even if plaintiff’s prima

The burden is thus on the

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C. Pretext

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Pretext may be shown either indirectly, by showing the

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employer’s proffered explanation is unworthy of credence because it

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is internally inconsistent or otherwise not believable, or

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directly, by showing that unlawful discrimination more likely

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motivated the employer. Lyons, 307 F.3d at 1113.

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evidence must be specific and substantial.

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Circumstantial

Id.

Plaintiff appears to argue that pretext is evident from: (1)

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the close temporal proximity between his claim of disability and

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his termination; (2) his assertion that Giannotta told him he was

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being laid off due to budget cuts but within weeks the position had

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been re-posted; and (3) his replacement by a person without a

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disability.

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Even assuming all of plaintiff’s allegations in this regard

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are true, they do not constitute specific and substantial evidence

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of pretext in the context of this case.

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defendant for less than two months and was still on probation when

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he was terminated.

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plaintiff’s claimed assertion of disability and his termination is

Plaintiff was employed by

The close temporal proximity between

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therefore of limited probative value in this case and is not

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specific or substantial evidence of pretext.

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essentially undisputed evidence that plaintiff was not performing

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the tasks as required – and that he made frequent personal calls

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during work time – defendant had a legitimate, nondiscriminatory

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reasons for the decision to terminate plaintiff during his

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probationary period.

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assessment of plaintiff’s skills is supported by the undisputed

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fact that plaintiff misrepresented his qualifications and work

Further, given the

Again, the legitimacy of defendant’s

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history in applying for the position.

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present sufficient evidence to create an issue of material fact on

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the issue of pretext.

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granted on plaintiff’s claim of disability discrimination.

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II. Failure to Accommodate

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Plaintiff has failed to

Accordingly, summary judgment will be

Under 42 U.S.C. § 12112(b)(5)(A), discrimination includes “not

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making reasonable accommodations to the known physical or mental

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limitations of an otherwise qualified individual with a disability

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who is an applicant or employee, unless such covered entity can

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demonstrate that the accommodation would impose an undue hardship

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on the operation of the business of such covered entity.”

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disability discrimination, plaintiff must establish that he was a

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qualified individual able to perform the essential functions of the

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position with or without reasonable accommodation.

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F.3d at 1237.

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qualified individual, his failure to accommodate claim fails.

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Furthermore, plaintiff essentially concedes in his opposition that

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summary judgment should be granted when he admits he was given the

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only accommodation he requested (Pl. Opp’n 4) and does not identify

As with

See Samper, 675

Because plaintiff has not established he was a

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any other accommodation that was requested and denied.

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under circumstances not present here, an employer is not liable

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where the employee has not requested a reasonable accommodation.

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See Brown v. Lucky Stores, Inc., 246 F.3d 1182, 1188 (9th Cir.

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2001).

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qualified individual and has not identified any failure by

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defendant to accommodate his alleged disability, summary judgment

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will be granted on plaintiff’s claim of failure to accommodate.6

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Conclusion

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Except

Accordingly, because plaintiff has not established he was a

The defendant’s motion for summary judgment (#31) is GRANTED.
The clerk of the court shall enter judgment accordingly.

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IT IS SO ORDERED.

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DATED: This 13th day of May, 2014.

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____________________________
UNITED STATES DISTRICT JUDGE

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Because the court grants summary judgment on the merits, it does not
reach defendant’s argument that plaintiff failed to exhaust this claim.

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