Mayo v. Recycle to Conserve, No. 2:2010cv00629 - Document 27 (E.D. Cal. 2011)
Court Description: MEMORANDUM and ORDER granting in part and denying in part 9 Motion for Summary Judgment signed by Judge William B. Shubb on 6/10/11. (Kaminski, H)
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Mayo v. Recycle to Conserve Doc. 27 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 13 Plaintiff, 14 15 NO. CIV. 2:10-629 WBS EFB EDISON MAYO, MEMORANDUM AND ORDER RE: MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF CLAIMS v. RECYCLE TO CONSERVE, INC., 16 Defendant. / 17 18 ----oo0oo---- 19 Plaintiff Edison Mayo brought this action alleging race 20 discrimination and retaliation against defendant Recycle to 21 Conserve, Inc. (“RTC”). 22 pursuant to Federal Rule of Civil Procedure 56. 23 I. 24 Defendant now moves for summary judgment Factual and Procedural Background Plaintiff, who is African-American, was a truck driver 25 for defendant or its predecessor from 1997 or 1998 to October 30, 26 2009, when he was involuntarily terminated. 27 (Docket No. 24); Bolanos Decl. ¶ 3, Ex. 2 (plaintiff’s employee 28 separation notice) (Docket No. 25).) (Mayo Decl. ¶ 2 Defendant purportedly 1 Dockets.Justia.com 1 terminated plaintiff because he was involved in a second driving 2 accident in violation of defendant’s accident policy. 3 Decl. in Supp. of Def.’s Mot. (“Odahl Decl.”) ¶¶ 4-11 (Docket No. 4 9-4); McMullin Decl. in Supp. of Def.’s Mot. (“McMullin Decl.”) 5 ¶¶ 3-6 (Docket No. 9-5).) (Odahl Defendant, a nationwide company with multiple 6 7 facilities, employed plaintiff at its Stockton, California, 8 facility, at which fifteen to twenty employees worked. 9 Decl. in Supp. of Def.’s Mot. (“Kennaday Decl.”) Ex. A (“Mayo (Kennaday 10 Dep. Tr.”) at 73:4-6, 74:14 (Docket No. 9-6).) Plaintiff was one 11 of only three drivers employed at that facility and the only 12 African-American driver. 13 Stockton facility were also African-American. 14 Mayo Dep. Tr. at 73:24-74:2.) Two non-driver employees at the (Odahl Decl. ¶ 3; In 2006 or 2007, defendant hired a Caucasian mechanic, 15 16 Elwood Lindsey,1 for the Stockton facility. 17 Lindsey, whose responsibilities included servicing plaintiff’s 18 truck, called plaintiff names such as “coon-ass” and “coon-ass 19 nigger.” (Mayo Decl. ¶ 3.) (Original2 Mayo Decl. ¶¶ 3-4 (internal quotation marks 20 21 22 23 1 The record contains two spellings of this name: Lindsey and Lindsay. Because declarations submitted by defendant use “Lindsey,” (see Docket Nos. 9-4, 9-5), the court will also use this spelling. 2 24 25 26 27 28 At the hearing on defendant’s motion, plaintiff requested, and the court granted, additional time to oppose the motion. (Docket No. 21.) Plaintiff then filed a new opposition memorandum, a new declaration by plaintiff, a new declaration by plaintiff’s counsel, and a statement of undisputed facts. (Docket Nos. 22-25). Defendant filed a new reply memorandum, supplemental evidentiary objections, and a new reply regarding its statement of undisputed facts. (Docket No. 26.) The court then took the motion under submission. The new declaration by plaintiff is nearly identical to 2 1 omitted) (Docket No. 10); see also Mayo Dep. Tr. at 53:23-55:1, 2 57:21-58:10 (discussing name calling); id. at 52:2-15 (describing 3 incident in which Lindsey threw chain at plaintiff’s feet instead 4 of handing it to plaintiff); Serpa Decl. ¶ 6 (“On many occasions 5 [Lindsey] would engage in the practice of bringing things to 6 [plaintiff] and then dropping them at his feet, and then looking 7 at [plaintiff] like [plaintiff] needed to pick it up.”) (Docket 8 No. 11); Mayo Dep. Tr. at 53:23-55:1 (describing incident in 9 which plaintiff went into the shop and Lindsey “cuss[ed] 10 [plaintiff],” called him “[c]oon ass,” told him to get out of the 11 shop, “thr[ew] things,” “slamm[ed]” his toolbox, and “shoved in 12 doors”).) 13 Plaintiff states that Lindsey called him names such as 14 “coon-ass” and “coon-ass nigger” “very, very often” and 15 specifically recalls at least ten times. 16 3 (internal quotation marks omitted in first and second 17 quotations).) (Original Mayo Decl. ¶ A co-employee, Joseph Serpa, states that Lindsey 18 19 20 21 22 23 24 25 26 27 28 the declaration by plaintiff originally submitted in opposition to the motion, with only one significant difference: Plaintiff’s original declaration states that Lindsey called him “coon-ass” and “coon-ass nigger,” whereas the new declaration states only that Lindsey called him “coon-ass.” (Compare Original Mayo Decl. ¶ 3 (Docket No. 10), with Mayo Decl. ¶ 3 (Docket No. 24).) It is not clear whether plaintiff intended his new declaration to be the same as the original declaration or to supplement or amend it. The court is guided by plaintiff’s counsel’s citation to the original declaration in the new opposition memorandum, specifically the “coon-ass nigger” term. (Pl.’s Mem. in Opp’n at 3:22-23 (“He was called a ‘coon-ass nigger’ . . . .”) (Docket No. 22).) Thus, the court will treat both the original and new declarations as operative. The court will treat the declaration by plaintiff’s coemployee Joseph Serpa, (Docket No. 11), as still operative, even though plaintiff did not file it for a second time, because plaintiff’s counsel cites Serpa’s declaration in the new opposition memorandum. (Pl.’s Mem. in Opp’n at 3:22-25.) 3 1 would “always talk badly about [plaintiff]” and referred to him 2 as a “lazy, no-good nigger” approximately five to ten times in 3 Serpa’s presence. 4 omitted in second quotation).) 5 6 7 8 9 10 11 12 (Serpa Decl. ¶ 3 (internal quotation marks According to plaintiff, Lindsey also failed to properly service plaintiff’s truck: [H]e never repaired my truck in a timely fashion, and he often did poor work repairing my truck. In many instances, he simply refused to undertake needed repairs and I had to do the repairs myself or get the help of other employees. Things that went wrong with the truck included changing lights on the truck. As a driver, I was not supposed to do my own repairs. But [Lindsey] refused to make these repairs on my truck. And on those occasions when he did actually perform the repairs, it took a very long time, days and weeks, for him to do the repairs. 13 (Mayo Decl. ¶ 4; see also Mayo. Dep. Tr. at 60:13-62:6 14 (describing one occasion in which plaintiff was not able to use a 15 particular truck for approximately three weeks because Lindsey 16 did not repair it).) 17 18 19 20 21 Plaintiff claims that the Caucasian drivers received better repairs: I would see the white drivers take their trucks in for repair, and then I would see the trucks come out of the repair shop after repairs were done. From this, I am able to conclude that their trucks were repaired, whereas my truck never went into the repair shop to begin with, despite my request for repairs. 22 23 24 25 (Supplemental Mayo Decl. ¶ 3 (Docket No. 17).) In the summer of 2007 or 2008, plaintiff first complained about Lindsey to the general manager of the Stockton 26 27 28 4 1 facility, Sean Odahl,3 a Caucasian. 2 The parties agree that plaintiff complained to Odahl, but 3 disagree on whether plaintiff complained that Lindsey’s conduct 4 related to plaintiff’s race. 5 6 7 8 9 (Mayo. Dep. Tr. at 51:6-7.) Plaintiff claims that he complained to Odahl that Lindsey “was racist against” plaintiff: O’Dahl and I actually talked about how [Lindsey] was racist against me. In fact, O’Dahl told me that [Lindsey] was racist, and had some kind of mental problem, and that I should just “stay away” from him. We discussed this on at least three or four occasions when I would complain about [Lindsey]. 10 11 (Mayo Decl. ¶ 7; see also Mayo Dep. Tr. at 50:4-51:24, 58:20-22 12 (discussing complaining about Lindsey’s “racist way” to Odahl), 13 52:16-53:20 (discussing complaining to Odahl about the chain 14 incident), 53:21-54:5, 55:2-7 (discussing complaining to Odahl 15 about Lindsey telling plaintiff to leave the shop). 16 Dep. Tr. at 55:2-7 (acknowledging that in complaining to Odahl 17 about Lindsey telling plaintiff to leave the shop he did not tell 18 Odahl that Lindsey called him “coon ass”), 58:20-22 19 (acknowledging that he never told anyone in management that 20 Lindsey had said “coon ass”). 21 took a statement from him and Lindsey’s mistreatment continued. 22 (Mayo Decl. ¶ 7.) But see Mayo Plaintiff states that Odahl never Plaintiff also reported to Odahl on five or six 23 24 occasions that Lindsey did not properly service plaintiff’s 25 truck. 26 (discussing complaining to Odahl about Lindsey’s failure to (Mayo Decl. ¶ 6; see also Mayo Dep. Tr. at 60:13-62:9 27 3 28 Plaintiff and Serpa’s declarations incorrectly spell Odahl’s name as “O’Dahl.” 5 1 repair truck for three weeks).) According to plaintiff, Odahl 2 never took a statement from plaintiff and “would always only say 3 ‘I will talk to him’ or ‘I will take care of it.’” (Mayo Decl. ¶ 4 6.) 5 properly repair his truck despite his complaints to Odahl. 6 Not only did Odahl fail to take a statement from Plaintiff claims that Lindsey continued to refuse to (Id.) 7 plaintiff when he complained about Lindsey’s failure to repair 8 his truck, plaintiff also perceived that Odahl was “getting 9 annoyed”: “It’s just the way he was acting when I would come in 10 and complain about this. 11 it.” 12 (describing Odahl’s responses to multiple complaints about 13 Lindsey’s failure to repair truck for three weeks).) 14 15 16 17 18 19 20 I’ll take care of it. It’s nothing to (Mayo Dep. Tr. at 60:11-15; see also id. at 61:14-21 With respect to Lindsey’s authority and relationship with Odahl, plaintiff states: [Lindsey] always tried to tell everyone what to always tried to tell me what to do. He acted supervisor. O’Dahl never countermanded [Lindsey’s] orders. Thus, to me it was like I supervisors: both [Lindsey] and O’Dahl. do. He like my any of had two I got the feeling that [Lindsey] and O’Dahl were close friends. . . . They often talked together privately and could be seen socializing at the yard. 21 (Mayo Decl. ¶¶ 9-10.) 22 that Lindsey “acted like he was the boss, like he had authority 23 over Sean O’Dahl. [Lindsey] would often try and give us orders 24 and tell us what to do.” 25 Serpa, plaintiff’s co-employee, states (Serpa Decl. ¶ 3.) In his declaration, Odahl acknowledges that plaintiff 26 complained to him about Lindsey “on several occasions.” 27 Decl. ¶ 7.) 28 Lindsey’s conduct was related to plaintiff’s race: (Odahl Odahl states that plaintiff did not complain that 6 1 The nature of Mr. Mayo’s complaints were that he and Mr. Lindsey were having a disagreement of some sort, or that Mr. Lindsey was not fixing his truck as quickly as Mr. Mayo would like. Mr. Mayo never advised me that Mr. Lindsey had made any comments of a racial nature to him, nor did Mr. Mayo indicate that he believed Mr. Lindsey’s actions toward him were based upon his race. 2 3 4 5 (Id.) 6 responded to those “several” complaints that Odahl acknowledges 7 he received. 8 9 Odahl’s declaration does not address how, if at all, he In addition to his termination, plaintiff points to other instances in which Odahl discriminated against him based on 10 race during the course of his employment. 11 Lindsey and Odahl “tried to blame [plaintiff] for allowing the 12 truck to overheat and not bringing it in sooner.” 13 5.) 14 drivers better routes and better trucks. 15 16 17 18 19 20 Plaintiff claims that (Mayo Decl. ¶ Plaintiff also claims that Odahl assigned the Caucasian (Id. ¶¶ 13-15.) In August of 2005, defendant implemented a policy related to accidents: Simply stated, if you are involved in two (2) accidents involving property damage or injury while operating company equipment, your employment may be terminated. This is in addition to the existing “zero-tolerance” drug policy, which includes the provision that a positive result from a single post-accident drug test can result in termination as well. 21 (McMullin Decl. Ex. A.) 22 expressly contemplate whether an accident was a fault or no-fault 23 accident, the “may” in the policy’s language suggests that 24 termination was permissive following two accidents. 25 While the policy does not appear to In June of 2007, plaintiff was involved in an accident 26 in which “the box” fell off of his truck when he turned left at a 27 traffic light. 28 evidence that Robert Standert, not Odahl, was the general manager (Odahl Decl. ¶ 4, Ex. A.) 7 It appears from the 1 of the Stockton facility at the time of the first accident. 2 While plaintiff testified that he understood that the accident 3 counted as one accident under the accident policy, he testified 4 that he did not think that after the 2007 accident a second 5 accident could result in his termination. 6 were that the accident was not his fault because “the box” was 7 not appropriate for the truck and “there were other people that 8 had plenty of accidents that were not terminated.” 9 Dep. Tr. 21:10-23:25 (discussing first accident).) Plaintiff’s reasons (See Mayo On October 13, 2009, plaintiff was involved in a second 10 11 accident in which the “tractor jackknifed into the attached 12 trailer.” 13 27:13-25 (discussing second accident); Mayo Decl. ¶¶ 13-14 14 (same)). 15 the speed limit, at twenty-five miles per hour, and breaking as 16 he approached a red light in wet or rainy conditions. 17 Plaintiff’s position is the accident was not his fault because 18 the breaks were faulty and locked when he pressed them. 19 (Odahl Decl. ¶ 5, Ex. B; see also Mayo Dep. Tr. at The accident occurred when plaintiff was driving below Plaintiff refused to drive the truck back to the 20 facility and Lindsey was dispatched to inspect the truck and 21 drive it back. 22 Lindsey had worked on the truck and had told plaintiff everything 23 was “fine.” 24 was not his fault and that the breaks were faulty, plaintiff 25 states that he was told by another driver that the “sub-hauler” 26 who assumed that route and truck following plaintiff’s accident 27 refused to drive the truck until the breaks were fixed, and they 28 were then fixed. Plaintiff claims that a week before the accident (Mayo Decl. ¶ 13.) As evidence that the accident Plaintiff and the other drivers had also 8 1 previously discussed that the truck had problems. 2 Plaintiff states that when he returned to the facility 3 on the day of the second accident Odahl told plaintiff “that it 4 was likely the case that the truck just malfunctioned, and that 5 the brakes locked up.” 6 Supervisor’s Incident Investigation Report places the blame on 7 plaintiff: 8 (Id. ¶ 13.) Nonetheless, Odahl in his Excessive braking in rainy conditions was the cause of this accident. Of which the driver operating the vehicle has total control. Given the fact that another driver operated this very same vehicle after the incident in the same rainy conditions safely, [sic] indicates that excessive breaking and possible negligence was the root cause of the accident. 9 10 11 12 (Odahl Decl. Ex. B.) 13 not find any mechanical problems with the truck. 14 According to Odahl’s report, Lindsey did (Id.) Plaintiff claims he was not aware during the days 15 following the accident that he could be terminated. 16 Decl. ¶ 16.) 17 over two weeks following the accident and to train a new driver. 18 (Id.) 19 the accident: 20 21 22 (See Mayo Defendant allowed plaintiff to continue driving for However, Odahl initiated plaintiff’s termination following Following Mr. Mayo’s second accident, I determined that Mr. Mayo had violated RTC’s two-accident policy and recommended that his employment be terminated based upon his violation of that policy. I made my recommendation to Robert McMullin, RTC’s President. 23 (Odahl Decl. ¶ 6.) Based upon Odahl’s recommendation, president 24 of defendant, Robert McMullin, approved the termination of 25 plaintiff. 26 approved the termination based on plaintiff’s violation of the 27 accident policy. 28 following the accident, Odahl informed plaintiff of his (McMullin Decl. ¶¶ 3-5.) (Id.) McMullin states that he On October 30, 2009, over two weeks 9 1 termination. 2 termination meeting.) 3 (See generally Mayo Dep. Tr. 45:1-46:19 (discussing Plaintiff claims that the accident policy was applied 4 differently to him than to other drivers. Plaintiff’s 5 declaration states that he is “personally aware” of four 6 accidents involving Caucasian driver Ralph Lantz and a failed 7 drug test following one of them, four accidents involving 8 Caucasian driver Kevin Christian,4 including one in which 9 Christian “ran his truck into [plaintiff’s] vehicle,” and several 10 accidents involving Caucasian mechanic Lindsey driving 11 defendant’s trucks. 12 “backed into [plaintiff] with his truck into [plaintiff’s] 13 company truck.” 14 not even take a statement from him following the two accidents in 15 which his vehicle was hit. 16 applied unevenly and states that only Lantz was involved in one 17 accident following implementation of the policy. 18 8.) 19 (Mayo Decl. ¶ 11.) (Id. ¶ 12.) On one occasion, Lindsey Plaintiff claims that defendant did Odahl disagrees that the policy was (Odahl Decl. ¶ On March 16, 2010, plaintiff filed the instant action. 20 (Docket No. 2.) Plaintiff alleges claims for race discrimination 21 and retaliation pursuant to Title VII of the Civil Rights Act of 22 1964. 23 also alleges a claim for violation of California Labor Code 24 section 1102.5(c). 25 II. See 42 U.S.C. §§ 2000e-2(a)(1), 2000e-3(a). Plaintiff See Cal. Labor Code § 1102.5(c). Discussion 26 4 27 28 The record contains multiple spellings of this name: Christian, Christiansen, and Christianson. Plaintiff’s declaration uses “Christian.” The court will also use “Christian.” 10 1 Summary judgment is proper “if the movant shows that 2 there is no genuine dispute as to any material fact and the 3 movant is entitled to judgment as a matter of law.” 4 P. 56(a). 5 of the suit, and a genuine issue is one that could permit a 6 reasonable jury to enter a verdict in the non-moving party’s 7 favor. 8 (1986). 9 burden of establishing the absence of a genuine issue of material Fed. R. Civ. A material fact is one that could affect the outcome Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 The party moving for summary judgment bears the initial 10 fact and can satisfy this burden by presenting evidence that 11 negates an essential element of the non-moving party’s case. 12 Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). 13 Alternatively, the moving party can demonstrate that the 14 non-moving party cannot produce evidence to support an essential 15 element upon which it will bear the burden of proof at trial. 16 Id. 17 Once the moving party meets its initial burden, the 18 burden shifts to the non-moving party to “designate ‘specific 19 facts showing that there is a genuine issue for trial.’” 20 324 (quoting then-Fed. R. Civ. P. 56(e)). 21 the non-moving party must “do more than simply show that there is 22 some metaphysical doubt as to the material facts.” 23 Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). 24 “The mere existence of a scintilla of evidence . . . will be 25 insufficient; there must be evidence on which the jury could 26 reasonably find for the [non-moving party].” 27 at 252. 28 Id. at To carry this burden, Matsushita Anderson, 477 U.S. In deciding a summary judgment motion, the court must 11 1 view the evidence in the light most favorable to the non-moving 2 party and draw all justifiable inferences in its favor. 3 255. 4 and the drawing of legitimate inferences from the facts are jury 5 functions, not those of a judge . . . ruling on a motion for 6 summary judgment . . . .” 7 “Credibility determinations, the weighing of the evidence, A. Id. Evidentiary Objections Federal Rule of Civil Procedure 56, as amended on 8 9 Id. at December 1, 2010, now states that “[a] party may object that the 10 material cited to support or dispute a fact cannot be presented 11 in a form that would be admissible in evidence.” 12 56(c)(2). 13 explain that an objection to evidence on a motion for summary 14 judgment “functions much as an objection at trial, adjusted for 15 the pretrial setting. 16 that the material is admissible as presented or to explain the 17 admissible form that is anticipated.” 18 notes on 2010 amendments. 19 judgment evidence based on the “sham affidavit rule.”5 Fed. R. Civ. P. The Advisory Committee notes to the amended rule The burden is on the proponent to show Id. advisory committee’s A party may also object to summary 20 21 22 23 24 25 26 27 28 5 “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.” Kennedy v. Allied Mut. Ins. Co., 952 F.2d 262, 266 (9th Cir. 1991). “[I]f a party who has been examined at length on deposition could raise an issue of fact simply by submitting an affidavit contradicting his own prior testimony, this would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact.” Id. (quoting Foster v. Arcata Assocs., Inc., 772 F.2d 1453, 1462 (9th Cir. 1985)) (alteration in original) (internal quotation marks omitted). The sham affidavit rule may be invoked only if a district court makes “a factual determination that the contradiction was actually a ‘sham’” and “the inconsistency between a party’s deposition testimony [or interrogatory response] and subsequent affidavit . . . [is] clear and 12 Following the filing of defendant’s thirteen objections 1 2 to plaintiff’s original declaration and eight objections to 3 plaintiff’s co-employee Serpa’s declaration, (Docket No. 15-1), 4 the court continued the hearing and allowed plaintiff to file a 5 response to the objections. 6 allowed defendant to file a reply to plaintiff’s response.6 7 (Docket No. 19.) (Docket Nos. 16-18.) The court 8 1. Plaintiff’s Original Declaration 9 Defendant objects to statements in plaintiff’s original 10 declaration pursuant to evidentiary rules governing personal 11 knowledge, relevance, hearsay, legal conclusions, conclusory 12 statements, and sham affidavits. 13 governing personal knowledge and hearsay, the court sustains in 14 full objections 3 and 7 and sustains in part objections 4-5, 8, 15 and 9 to plaintiff’s original declaration.7 Based on evidentiary rules The court overrules 16 17 18 19 20 21 unambiguous.” Van Asdale v. Int’l Game Tech., 577 F.3d 989, 998 (9th Cir. 2009) (quoting Kennedy, 952 F.2d at 267) (internal quotations marks omitted in first quotation). Accordingly, “the non-moving party is not precluded from elaborating upon, explaining or clarifying prior testimony elicited by opposing counsel on deposition; minor inconsistencies that result from an honest discrepancy, a mistake, or newly discovered evidence afford no basis for excluding an opposition affidavit.” Messick v. Horizon Indus., Inc., 62 F.3d 1227, 1231 (9th Cir. 1995). 6 22 23 24 25 26 27 28 Defendant withdrew in part objection 2 to plaintiff’s original declaration. Plaintiff withdrew plaintiff’s objectionable statement in response to objection 12. Defendant withdrew objection 1 to Serpa’s declaration. Plaintiff expressly withdrew a statement in response to objection 2. The court finds that plaintiff implicitly withdrew Serpa’s statements in response to objections 6-8 because plaintiff did not respond to the objections despite expressly acknowledging these three objections in his response. 7 The court sustains the objections to the following statements in plaintiff’s original declaration: (1) “[a]nother driver also drove the truck, Kevin Christian, and it continued to have problems” and “Kevin Christian is Caucasian, and he was not 13 1 defendant’s objections to plaintiff’s original declaration in all 2 other respects. While the court declines to address each objection in 3 4 detail, two statements, objections to which the court overrules, 5 are particularly important to defendant’s motion and warrant 6 analysis. 7 based on the sham affidavit rule: 8 9 10 First, defendant objects to the following statement O’Dahl and I actually talked about how [Lindsey] was racist against me. In fact, O’Dahl told me that [Lindsey] was racist, and had some kind of mental problem, and that I should just “stay away” from him. We discussed this on at least three or four occasions when I would complain about [Lindsey]. 11 12 13 (Original Mayo Decl. ¶ 7.) Defendant fails to recognize that, while plaintiff 14 testified that he did not use the “exact words,” he told Odahl 15 that “[Lindsey] was coming at [plaintiff] in a negative way, in 16 a, in a racist way.” 17 Plaintiff also testified that he told Odahl that Lindsey was 18 saying things “he shouldn’t be saying” and “talking to 19 [plaintiff] in a, in a bad way,” and that Odahl just told him to (Id. at 50:6-11 (emphasis added).) 20 21 22 23 24 25 26 27 28 even blamed for causing the problem”; (2) “[i]f a white driver went to O’Dahl and asked for a repair or a different truck, the white driver would get the work done”; (3) “O’Dahl never . . . took any action against [Lindsey in response to my complaints about repairs]”; (4) “whenever I brought my problems to O’Dahl about [Lindsey’s failure to repair my truck], he never did anything for me”; (5) “nothing was ever done [in response to my complaints to Odahl that Lindsey was racist against me]: no investigation, . . ., nothing”; (6) “O’Dahl never took any action against [Lindsey] for anything he did to me”; (7) “[t]he company did nothing [when Kevin Christian ran his truck into my vehicle]. . . . Nothing was ever done about it [when Lindsey had several accidents driving company trucks]”; and (8) “no report was ever made [when Lindsey ran his truck into plaintiff’s company truck].” (Original Mayo Decl. ¶¶ 5-7, 10-12, 16.) 14 1 not “worry about him, just play him off, stay away from him the 2 best [plaintiff] [could].” 3 counsel asked if plaintiff “just” told Odahl that Lindsey was 4 “making negative comments,” plaintiff agreed but added: “You 5 know, [Odahl] got my point on how I said it. 6 what I was talking about. . . . His response was, you know, just 7 stay away from him, that’s kind of how he is.” 8 25.) 9 that Lindsey “was racist against” plaintiff is not in direct (Id. at 50:1-3.) When defendant’s I mean, he knew (Id. at 50:15- In sum, plaintiff declaration statement that he told Odahl 10 contradiction to his deposition testimony. 11 Decl. ¶ 7.) 12 (See Original Mayo Moreover, the number of times that plaintiff complained 13 about Lindsey’s racism, three or four times according to 14 plaintiff’s original declaration, is not in direct contradiction 15 to his deposition testimony. 16 precluded from elaborating upon, explaining or clarifying prior 17 testimony elicited by opposing counsel on deposition.” 18 v. Horizon Indus., Inc., 62 F.3d 1227, 1231 (9th Cir. 1995). 19 Second, defendant objects to plaintiff’s statement “[T]he non-moving party is not Messick 20 relating to Lantz’s and Christian’s accidents based on the sham 21 affidavit rule, personal knowledge, and hearsay: 22 23 24 25 26 27 28 I personally know of two other drivers who had two accidents and were not terminated under the two accident rule. They were white drivers. The two other drivers are Ralph and Kevin Christian. Ralph had at least four accidents that I am personally aware of, and had failed a drug test after one of the accidents. But he was not terminated. Kevin Christian had four accidents as well. (Original Mayo Decl. ¶ 11.) Defendant’s sham affidavit rule objection is based on plaintiff providing a different number of accidents involving 15 1 Lantz and Christian at the deposition. 2 party is not precluded from elaborating upon, explaining or 3 clarifying prior testimony elicited by opposing counsel on 4 deposition.” 5 However, “the non-moving Messick, 62 F.3d at 1231. The court declines to find that plaintiff lacks 6 personal knowledge when plaintiff testified at the deposition 7 that Lantz and Christian told him about their accidents. 8 Mayo Dep. Tr. at 68:13-15, 69:8-10.) 9 declaration following defendant’s objections, plaintiff also (See In his supplemental 10 states: “I talked with these other drivers about their accidents. 11 We talked when we were at the yard, or on break.” 12 Mayo Decl. ¶ 5.) 13 that the accidents in fact occurred, plaintiff has personal 14 knowledge that Lantz and Christian told him about their 15 accidents. 16 (Supplemental While plaintiff may not have personal knowledge Lastly, with respect to whether plaintiff’s statement 17 contains inadmissible hearsay, there appears to be a number of 18 ways in which the evidence could be presented in an admissible 19 form at trial. 20 declaration: “I also know that these individuals do not want to 21 jeopardize their place in the company, but that if they are 22 forced to testify, that they would testify truthfully about their 23 accidents.” 24 original declaration states that he observed first-hand one of 25 Christian’s accidents because Christian “ran his truck into 26 [plaintiff’s] vehicle.” 27 28 First, plaintiff states in his supplemental (Supplemental Mayo Decl. ¶ 5.) Second, plaintiff’s (Original Mayo Decl. ¶ 7.) Third, Lantz’s and Christian’s out of court statements about their accidents could be admissible as an admission by a 16 1 party-opponent. 2 that a statement is not hearsay if it is offered against a party 3 and is “a statement by the party’s agent or servant concerning a 4 matter within the scope of the agency or employment, made during 5 the existence of the relationship.” 6 Federal Rule of Evidence 801(d)(2)(d) provides Fed. R. Evid. 801(d)(2)(d). Fourth, even if the statements were not admissions by a 7 party-opponent, plaintiff could offer them for the limited 8 purpose of showing that defendant was on notice of the accidents, 9 not for the truth of the matter asserted, i.e., whether the 10 accidents in fact occurred. See id. 801(c). 11 2. Serpa’s Declaration 12 Defendant objects to statements in the declaration of 13 plaintiff’s co-employee Serpa based on evidentiary rules 14 governing hearsay, personal knowledge, and conclusory statements. 15 The court sustains the contested objections, objections 3-5, for 16 lack of personal knowledge. 17 3. 18 In connection with its new reply, defendant filed Supplemental Objections 19 “supplemental” objections to plaintiff’s new declaration, Serpa’s 20 declaration, and plaintiff’s counsel’s new declaration, although 21 defendant acknowledges that the objections only “reiterate its 22 evidentiary objections in relation to the ‘new,’ but 23 substantially unchanged, submissions by Plaintiff.” 24 Supplemental Evidentiary Objections at 1:21-22 (Docket No. 26- 25 2).) 26 (Def. RTC’s Defendant’s objections to plaintiff’s new declaration 27 merely repeat the same objections it made to plaintiff’s original 28 declaration, which is understandable because the two declarations 17 1 are nearly identical. The only truly supplemental objection to 2 plaintiff’s new declaration is based on the assumption that 3 plaintiff’s original declaration has been superseded. 4 RTC’s Supplemental Evidentiary Objections at 4:14-5:1 (objecting 5 to plaintiff’s statement that Lindsey called him “coon ass” 6 because plaintiff’s original declaration states that plaintiff 7 called him “coon-ass” and “coon-ass nigger”).) 8 plaintiff’s counsel cites the original declaration in his new 9 opposition memorandum, (see Pl.’s Mem. in Opp’n at 3:22-23 (See Def. However, because 10 (Docket No. 22)), the court treats both plaintiff’s original and 11 new declaration as operative. 12 Defendant’s objections to Serpa’s declaration are 13 identical to objections upon which the court has previously 14 ruled. The only other truly supplemental objection is to 15 16 plaintiff’s counsel’s new declaration statement8 describing an 17 attached exhibit. 18 sustains this objection. 19 B. 20 Based on the original document rule, the court Merits Plaintiff’s claims for race discrimination and 21 retaliation under Title VII are subject to the McDonnell Douglas 22 burden-shifting analysis used at summary judgment to determine 23 whether there are triable issues of fact for resolution by a 24 jury. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). 25 26 27 28 8 Plaintiff’s counsel states: “plaintiff discovered a court-filed document from San Joaquin County Superior Court in which one of the company’s Caucasian drivers, Kevin Christian, was involved in an accident while on company time, and using a company truck, causing property damage . . . .” (Bolanos Decl. ¶ 6 (Docket No. 25).) 18 1 2 3 4 5 6 Under McDonnell Douglas, a plaintiff must first establish a prima facie case of discrimination [or other illegal conduct]. The burden then shifts to the employer to articulate a legitimate, nondiscriminatory reason for its employment action. If the employer meets this burden, the presumption of intentional discrimination [or other illegal conduct] disappears, but the plaintiff can still prove disparate treatment by, for instance, offering evidence demonstrating that the employer’s explanation is pretextual. 7 8 Raytheon Co. v. Hernandez, 540 U.S. 44, 50 n.3 (2003) (citations 9 omitted). “[A] plaintiff can prove pretext in two ways: (1) 10 indirectly, by showing that the employer’s proffered explanation 11 is ‘unworthy of credence’ because it is internally inconsistent 12 or otherwise not believable, or (2) directly, by showing that 13 unlawful discrimination more likely motivated the employer.”9 14 Chuang v. Univ. of Cal. Davis, Bd. of Trustees, 225 F.3d 1115, 15 1127 (9th Cir. 2000) (quoting Godwin v. Hunt Wesson, Inc., 150 16 F.3d 1217, 1220 (9th Cir. 1998)). 17 1. 18 Plaintiff has the burden of establishing a prima facie Race Discrimination 19 20 21 22 23 24 25 26 27 28 9 Earlier case law suggests that circumstantial evidence to show pretext must be “specific” and “substantial.” See e.g., Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1222 (9th Cir. 1998). The “specific” and “substantial” evidence requirement has been questioned in light of Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003), in which the Supreme Court recognized that circumstantial evidence may be “more certain, satisfying and persuasive than direct evidence.” Id. at 100; see Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018, 1030-31 (9th Cir. 2006) (questioning the continued viability of Godwin and “conclud[ing] that in the context of summary judgment, Title VII does not require a disparate treatment plaintiff relying on circumstantial evidence to produce more, or better, evidence than a plaintiff who relies on direct evidence”); McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1124 (9th Cir. 2004) (holding that a disparate treatment plaintiff can defeat summary judgment motion relying on circumstantial evidence). 19 1 case by showing that “(1) he is a member of a protected class; 2 (2) he was qualified for his position; (3) he experienced an 3 adverse employment action; and (4) similarly situated individuals 4 outside his protected class were treated more favorably, or other 5 circumstances surrounding the adverse employment action give rise 6 to an inference of discrimination.” 7 Co., 358 F.3d 599, 603 (9th Cir. 2004). 8 held that a plaintiff’s burden in establishing a prima facie case 9 of discrimination is “minimal.” 10 Peterson v. Hewlett-Packard The Ninth Circuit has Coghlan v. Am. Seafoods Co., 413 F.3d 1090, 1094 (9th Cir. 2005). Plaintiff is an African-American who was terminated, 11 12 thus satisfying the first and third elements for prima facie race 13 discrimination. 14 the second element, which requires that he was qualified for his 15 position, because “Plaintiff was not performing competently at 16 the time of his termination. 17 accidents which damaged Company property and which violated RTC’s 18 two-accident policy.”10 19 at 5:12-14 (Docket No. 9-1).) Defendant argues that plaintiff does not satisfy Specifically, Plaintiff had two (Mem. of P. & A. in Supp. of Def.’s Mot. However, plaintiff has pointed to 20 21 22 23 24 25 26 27 28 10 On its face, defendant’s argument that plaintiff is not qualified is the same argument that it had a legitimate, nondiscriminatory reason for terminating plaintiff: violation of defendant’s accident policy. See, e.g., Gosho v. U.S. Bancorp Piper Jaffray Inc., No. 00-1611, 2002 WL 34209804, at *3 (N.D. Cal. Oct. 1, 2002) (defendant argued that plaintiff was not qualified because plaintiff violated defendant’s policies). However, defendant’s argument that plaintiff is not qualified is slightly different because defendant seems to argue that even if it did not have an accident policy, plaintiff would be unqualified because he was performing incompetently, i.e., he was at fault for his accidents. Even if defendant’s qualification argument were identical to its legitimate, nondiscriminatory reason, the court would find that plaintiff has met his burden. 20 1 evidence suggesting that the accidents were not his fault. 2 Mayo Dep. Tr. 21:10-23:25, 27:13-25; Mayo Decl. ¶¶ 13-14.) 3 Moreover, with regards to his qualifications, plaintiff states: 4 5 6 7 (See I am a truck driver with a Class A license in good standing and all endorsements. I have been a certified and licensed truck driver for approximately thirteen years. During my entire career, I was never disciplined or written-up [sic] and every year I always received a raise. I also have received a bonus for good driving in 2006. 8 (Mayo Decl. ¶ 2.) 9 evidence to satisfy the second element of prima facie race 10 11 Thus, plaintiff has presented sufficient discrimination. Plaintiff has satisfied the final element of prima 12 facie race discrimination that “similarly situated individuals 13 outside his protected class were treated more favorably.” 14 Peterson, 358 F.3d at 603. 15 16 17 18 19 20 Plaintiff states in his declaration: I personally know of two other drivers who had two accidents and were not terminated under the two accident rule. They were white drivers. The two other drivers are Ralph and Kevin Christian. Ralph had at least four accidents that I am personally aware of, and had failed a drug test after one of the accidents. But he was not terminated. Kevin Christian had four accidents as well. In fact, on one occasion he ran his truck into my vehicle. I had to take him to court for that. . . . No statements were taken [by defendant]. Kevin Christian is white.11 21 (Mayo Decl. ¶ 11.) Plaintiff’s supplemental declaration adds 22 that plaintiff was told about these accidents by Lantz and 23 Christian “when [they] were at the yard, or on break.” 24 (Supplemental Mayo Decl. ¶ 5.) Plaintiff claims that he “know[s] 25 26 27 28 11 Plaintiff also states that Lindsey was involved in accidents. However, Lindsey was a mechanic and thus not similarly situated to plaintiff. See Vasquez v. Cnty. of Los Angeles, 349 F.3d 634, 641 (9th Cir. 2003) (“[I]ndividuals are similarly situated when they have similar jobs and display similar conduct.”). 21 1 that these individuals do not want to jeopardize their place in 2 the company, but that if they were forced to testify, that they 3 would testify truthfully about their accidents.” 4 (Id.) To satisfy this final element of a prima facie race 5 discrimination claim, the evidence need only be “minimal.” 6 Coghlan, 413 F.3d at 1094. 7 adequate evidence to establish at the prima facie stage that 8 similarly situated employees were treated differently. 9 Singson v. Farber, No. C 09-5023, 2010 WL 5399217, at *10 (N.D. 10 Cal. Dec. 23, 2010) (holding that race discrimination plaintiff 11 who was disciplined for violating internal policy did not have to 12 provide “specific evidence of other individuals” who violated 13 policy and “who were treated differently” to establish a prima 14 facie case). 15 established a prima facie case of race discrimination. 16 Plaintiff has provided more than See Accordingly, the court finds that plaintiff has Defendant has offered a legitimate, nondiscriminatory 17 reason for plaintiff’s termination. Defendant presents evidence 18 that plaintiff was involved in two accidents in violation of 19 defendant’s accident policy. 20 Odahl, general manager of the Stockton facility, recommended 21 plaintiff’s termination and McMullin, president of defendant, 22 approved the termination. 23 McMullin Decl. Ex. A.) 24 that defendant terminated plaintiff because of his race “drops 25 out of the picture.” 26 F.3d 1018, 1032 (9th Cir. 2006) (quoting Reeves v. Sanderson 27 Plumbing Prods., Inc., 530 U.S. 133, 143 (2000)) (internal 28 quotation marks omitted). Subsequent to the second accident, (See Odahl Decl. ¶¶ 4-5, Exs. A-B; Thus, the McDonnell Douglas presumption Cornwell v. Electra Cent. Credit Union, 439 22 1 Plaintiff has presented sufficient evidence that 2 defendant’s proffered legitimate, nondiscriminatory reason is 3 pretextual. 4 was applied differently to two similarly situated Caucasians, 5 Lantz and Christian, as discussed above. 6 Los Angeles, 349 F.3d 634, 641 (9th Cir. 2003) (“A showing that 7 the County treated similarly situated employees outside Vasquez’s 8 protected class more favorably would be probative of pretext.”); 9 id. (“[I]ndividuals are similarly situated when they have similar 10 Plaintiff presents evidence that the accident policy See Vasquez v. Cnty. of jobs and display similar conduct.”). 11 In response to plaintiff’s claims, Odahl’s declaration 12 only offers qualified, conclusory statements about whether Lantz 13 and Christian were involved in accidents as defined under the 14 policy: 15 16 17 18 19 20 21 22 To my knowledge, no other driver at the Stockton facility has been involved in two accidents involving property damage or injury while operating Company equipment following implementation of the two-accident policy, other than Mr. Mayo. I understand that Mr. Mayo claims that Mr. Lindsey, Mr. Christian, and Mr. Lantz were involved in two accidents at some point in time. Mr. Lindsey is not a driver and RTC’s two-accident policy applies only to drivers. Moreover, to my knowledge, Mr. Lindsey has not been involved in any accidents involving injury or property damage since the two-accident policy was implemented. Mr. Christiansen has not been involved in any accidents following implementation of the two-accident policy, and Mr. Lantz was involved in only one accident following implementation of the two-accident policy. 23 24 25 (Odahl Decl. ¶ 8.) It does not appear that Odahl even has personal 26 knowledge on this issue. It appears that Odahl was not the 27 facility’s general manager the entire period that the accident 28 policy had been in effect. The policy was implemented in August 23 1 of 2005. 2 had been his supervisor for only two or three years. 3 Tr. at 18:6-8.) 4 his first accident in June of 2007 the general manager was 5 Standert, not Odahl. 6 from Standert, other former general managers, or declarations 7 from Lantz and Christian themselves. 8 been presented to the court. 9 When plaintiff was terminated in October of 2009, Odahl (Mayo Dep. As noted earlier, when plaintiff was involved in Defendant has not submitted declarations No documentary evidence has A jury could reasonably infer that, if defendant’s 10 reason for terminating plaintiff was a violation of the accident 11 policy, defendant would not have permitted plaintiff to continue 12 driving for over two weeks and to train a new driver. 13 did defendant permit plaintiff to continue working as usual, 14 defendant did not even suggest to plaintiff that he could be 15 terminated under the accident policy. Not only 16 Further, the notion that defendant had no choice but to 17 terminate plaintiff “may reasonably appear to be an overstatement 18 sounding in pretext.” 19 Civ. 08-1383 WBS KJM, 2009 WL 3644867, at *12 (E.D. Cal. Nov. 2, 20 2009). 21 providing that two accidents “may” result in termination. 22 (McMullin Decl. Ex. A.) 23 discretionary nature of the accident policy. 24 implies that he was required to recommend plaintiff’s termination 25 following plaintiff’s second accident. 26 Defendant’s president makes a similar implication. 27 ¶ 4.) Rosales v. Career Sys. Develop. Corp., No. The accident policy appears to be discretionary, Odahl does not even acknowledge the 28 24 Odahl’s declaration (See Odahl ¶ 6.) (See McMullin Even if Odahl12 and McMullin had stated that they 1 2 decided to exercise their discretion under the accident policy 3 because plaintiff was at fault for his two accidents,13 the court 4 would still find sufficient evidence of pretext. 5 the blame on plaintiff in his Supervisor’s Incident Investigation 6 Report. 7 accident “that it was likely the case that the truck just 8 malfunctioned, and that the brakes locked up.” 9 13.) Odahl placed However, Odahl told plaintiff immediately after the (Mayo Decl. ¶ Thus, a reasonable jury could find that defendant was not 10 actually motivated by plaintiff’s fault in light of these 11 inconsistent statements. 12 A reasonable jury could also find that Odahl did not 13 believe Lindsey when Lindsey essentially told Odahl that 14 plaintiff was at fault for the second accident. 15 for blaming plaintiff is what Lindsey had told Odahl following 16 the accident: Lindsey had been able to drive the truck back 17 safely to the facility and had not found mechanical problems. Odahl’s basis 18 19 20 21 22 23 24 25 26 27 28 12 Defendant has not argued that Odahl’s motivation is not imputed to McMullin, who approved Odahl’s recommendation to terminate plaintiff. See Galdamez v. Potter, 415 F.3d 1015, 1026 n.9 (9th Cir. 2005) (“Title VII may still be violated where the ultimate decision-maker, lacking individual discriminatory intent, takes an adverse employment action in reliance on factors affected by another decision-maker’s discriminatory animus.”). Cf. Poland v. Chertoff, 494 F.3d 1174, 1182 (9th Cir. 2007) (“We hold that if a subordinate, in response to a plaintiff's protected activity, sets in motion a proceeding by an independent decisionmaker that leads to an adverse employment action, the subordinate’s bias is imputed to the employer if the plaintiff can prove that the allegedly independent adverse employment decision was not actually independent because the biased subordinate influenced or was involved in the decision or decisionmaking process.”). 13 In their declarations, Odahl and McMullin do not mention fault. 25 1 However, Odahl knew that plaintiff had complained on three or 2 four occasions that Lindsey “was racist against” plaintiff and 3 had complained on five or six occasions that Lindsey failed to 4 properly service plaintiff’s truck. 5 to plaintiff and his co-employee Serpa, Odahl and Lindsey 6 appeared to be “close friends” and Odahl did not “countermand[]” 7 orders from Lindsey, who acted as if he had authority to make 8 orders.14 9 (Mayo Decl. ¶ 7.) According (Id. ¶¶ 9-10.) Other evidence suggesting pretext includes Odahl’s 10 failure to respond to plaintiff’s complaints about the quality of 11 Lindsey’s truck repairs. 12 (explaining that a reasonable jury could conclude that 13 defendant’s CEO’s treatment of plaintiff, specifically a lack of 14 interaction with plaintiff, in the months preceding plaintiff’s 15 demotion, resulted from racial animus). 16 statement from plaintiff and even appeared to be annoyed by some 17 of plaintiff’s complaints. 18 to receive repairs for his truck continued following his 19 complaints to Odahl. 20 received repairs. Odahl did not take a Plaintiff states that his inability On the other hand, the Caucasian drivers (See Supplemental Mayo Decl. ¶ 3.) Plaintiff also claims that Odahl gave the other drivers 21 22 See Cornwell, 439 F.3d at 1032 better routes and trucks. According to plaintiff, the other 23 24 25 26 27 28 14 Additionally, if defendant based its termination of plaintiff on plaintiff’s fault for the accident, a reasonable jury could find that Lindsey made the determination that plaintiff was at fault, and that Odahl did not make an independent determination. Cf. Willis v. Marion Cnty. Auditor’s Office, 118 F.3d 542, 548 (7th Cir. 1997) (indicating that, when the decision-maker conducts an independent evaluation of the employee’s alleged policy violations, the subordinate’s discriminatory motive is not attributed to the employer). 26 1 drivers told him that they did not want the Cottage Bakery route 2 or the “very old trailer” assigned to that route. 3 Decl. ¶¶ 13-14.) 4 to take the route and trailer. 5 quit, plaintiff “had to assume” both that driver’s route and the 6 Cottage Bakery route. 7 decided to return, he was allowed to resume his old route and 8 plaintiff “was forced to again take the route none of the other 9 white drivers wanted,” the Cottage Bakery route. (See Mayo Plaintiff claims that Odahl “forced” plaintiff (Id. ¶ 14.) (Id. ¶ 15.) When another driver However, when that driver (Id.) 10 Plaintiff was told by another driver after his second accident 11 that the “route was [later] assigned to a sub-hauler because none 12 of the other drivers wanted the route or to use the trailer.” 13 (Id. ¶ 14.) 14 In sum, plaintiff has presented evidence sufficient to 15 create a genuine issue of material fact regarding the motivation 16 behind his termination. 17 defendant’s motion for summary judgment as it relates to the race 18 discrimination claim. Accordingly, the court will deny 19 2. 20 Defendant argues that plaintiff failed to exhaust his Retaliation 21 retaliation claim. “A person seeking relief under Title VII must 22 first file a charge with the [Equal Employment Opportunity 23 Commission [(“EEOC”)] within 180 days of the alleged unlawful 24 employment practice . . . .” 25 518 F.3d 1097, 1104 (9th Cir. 2008). 26 agreement, a charge filed with the [Department of Fair Employment 27 and Housing] is deemed constructively filed with the EEOC, 28 because the EEOC and DFEH cross-designate the other as its agent Surrell v. Cal. Water Serv. Co., 27 “Under [a] workshare 1 for the purpose of receiving charges.” EEOC v. Dinuba Med. 2 Clinic, 222 F.3d 580, 585 (9th Cir. 2000). “Even when an employee seeks judicial relief for claims 3 4 not listed in the original EEOC charge, the complaint 5 ‘nevertheless may encompass any discrimination like or reasonably 6 related to the allegations of the EEOC charge.’” 7 Oakland Unified Sch. Dist., 291 F.3d 632, 636 (9th Cir. 2002) 8 (quoting Oubichon v. N. Am. Rockwell Corp., 482 F.2d 569, 571 9 (9th Cir. 1973)). Freeman v. Allegations are “reasonably related” if they 10 either “fell within the scope of the EEOC’s actual investigation 11 or an EEOC investigation which can reasonably be expected to grow 12 out of the charge of discrimination.” 13 Maui Police Dep’t, 276 F.3d 1091, 1100 (9th Cir. 2002)) (internal 14 quotation marks omitted). 15 factors as the alleged basis of the discrimination, dates of 16 discriminatory acts specified within the charge, perpetrators of 17 discrimination named in the charge, and any locations at which 18 discrimination is alleged to have occurred.” 19 B.K.B., 276 F.3d at 1100). 20 Id. (quoting B.K.B. v. “[I]t is appropriate to consider such Id. (quoting Here, defendant has provided a copy of the 21 administrative complaint filed with the DFEH. 22 Ex. C.) 23 was terminated because of his race and age. 24 not allege termination in retaliation for engaging in protected 25 activity. 26 (Kennaday Decl. The complaint filed with the DFEH alleged that plaintiff The complaint did The court finds that an investigation into whether 27 plaintiff was terminated to retaliate against plaintiff for 28 engaging in protected activity could not “reasonably be expected 28 1 to grow out of the charge” that defendant terminated plaintiff 2 because of his race. 3 276 F.3d at 1100). 4 VII retaliation claim. 5 00-3301SI, 2001 WL 1658289, at *6 (N.D. Cal. Dec. 6, 2001) (“The 6 claim of retaliation is not like or reasonably related to the 7 allegations in his EEOC charge, which focused solely on his claim 8 that he was harassed and discharged based on his race.”); Barron 9 v. United Air Lines, Inc., No. C 92 1364, 1993 WL 140630, at *6 Freeman, 291 F.3d at 636 (quoting B.K.B., Thus, plaintiff has not exhausted his Title See Latu v. Am. Airlines, No. C 10 (N.D. Cal. Apr. 20, 1993); see also Miles v. Dell, Inc., 429 F.3d 11 480, 492 (4th Cir. 2005); Wallin v. Minn. Dep’t of Corr., 153 12 F.3d 681, 688 (8th Cir. 1998); Beane v. Agape Mgmt. Servs., Inc., 13 C/A No. 3:08-3445, 2009 WL 2476629, at *3 (D.S.C. Aug. 11, 2009); 14 Donald v. BWX Techs., Inc., Civil No. 6:09CV00028, 2009 WL 15 2170170, at *3 (W.D. Va. July 21, 2009); Figueroa v. Riverbay 16 Corp., No. 06 CIV. 5364, 2006 WL 3804581, at *5 (S.D.N.Y. Dec. 17 22, 2006); Dowlatpanah v. Wellstar Douglas Hosp., Civil Action 18 No. 1:05-CV-2752, 2006 WL 4093123, at *13 (N.D. Ga. Dec. 5, 2006) 19 (magistrate judge’s findings and recommendations), adopted by No. 20 1:05-cv-2752, 2007 WL 639875 (Feb. 26, 2007); Hudgens v. Wexler & 21 Wexler, 391 F. Supp. 2d 634, 649 (N.D. Ill. 2005). 22 Under some facts, retaliation can be reasonably related 23 to discrimination based on race. 24 340 F.3d 735, 748 (8th Cir. 2008) (noting in dicta that an 25 allegation in an administrative complaint that defendant wanted 26 to terminate plaintiff because she could only work 40 hours per 27 week because of her “condition” arguably provides notice that 28 retaliatory discharge is alleged); Amin v. Akzo Nobel Chems., 29 Cf. Russell v. TG Mo. Corp., 1 Inc., 282 Fed. App’x 958, 961 (2d Cir. 2008) (holding that 2 because relevant evidence of defendant’s stated reason for 3 discharging plaintiff would include performance reviews, which 4 included documents in which plaintiff complained that defendant 5 engaged in discriminatory practices, the EEOC investigation into 6 discharge based on national origin would “reasonably be expected 7 to assess whether his complaints to Akzo of discrimination on 8 that basis played a role in Akzo’s decision to discharge him”); 9 Hudson v. Chertoff, No. C05-01735RSL, 2007 WL 2288062, at *7 10 (W.D. Wash. Aug. 3, 2007) (“Plaintiff’s unsworn declaration and 11 formal complaint contain a multitude of references to concerns 12 that he was terminated in response to his efforts to obtain 13 accommodations for his disability.”), aff’d on other grounds, 304 14 Fed. App’x 540 (9th Cir. 2008). 15 There are no such facts here, however. Plaintiff makes 16 no meaningful attempt to argue that the administrative complaint 17 for termination based on race is reasonably related to a claim 18 for termination based on retaliation. 19 incorrectly describes the content of the administrative complaint 20 and argues that the incorrect version of the administrative 21 complaint “clearly relates” to his retaliation claim: “Here, 22 Mayo’s complaint about persistent race discrimination even in the 23 face of repeated complaints clearly relates to a claim for 24 retaliation for opposing race discrimination.” 25 Opp’n at 12:26-13:1.) 26 complaint only alleged that he had been terminated because of his 27 race; plaintiff’s administrative complaint did not allege 28 “persistent race discrimination.” Instead, plaintiff (Pl.’s Mem. in However, plaintiff’s administrative 30 The administrative complaint 1 also makes no mention of plaintiff complaining to defendant about 2 race discrimination. 3 reasonably related to plaintiff’s administrative complaint and 4 thus plaintiff did not exhaust his administrative remedies, the 5 court will grant summary judgment in favor of defendant on this 6 claim. Because the retaliation claim is not 7 3. 8 Section 1102.5(c) provides that “[a]n employer may not 9 Violation of California Labor Code Section 1102.5 retaliate against an employee for refusing to participate in an 10 activity that would result in a violation of state or federal 11 statute, or a violation or noncompliance with a state or federal 12 rule or regulation.” 13 not presented evidence that he refused “to participate in an 14 activity that would result in a violation of state or federal 15 statute, or a violation or noncompliance with a state or federal 16 rule or regulation.” 17 defendant’s motion for summary judgment as to this claim. 18 Cal. Labor Code § 1102.5(c). Id. Plaintiff has Accordingly, the court will grant IT IS THEREFORE ORDERED that defendant’s motion for 19 summary judgment be, and the same hereby is, GRANTED with respect 20 to plaintiff’s claims for Title VII retaliation and violation of 21 California Labor Code section 1102.5(c) and DENIED with respect 22 to plaintiff’s claim for Title VII race discrimination. 23 DATED: June 10, 2011 24 25 26 27 28 31
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