Ramirez v. Pep Boys et al, No. 2:2016cv04407 - Document 30 (D. Ariz. 2018)
Court Description: ORDER granting Defendant's 24 Motion for Summary Judgment. ORDERED the Clerk of Court shall enter judgment accordingly and terminate this action. Signed by Judge Diane J Humetewa on 8/14/2018. (LFIG)
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Ramirez v. Pep Boys et al 1 Doc. 30 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Roberto Ramirez, Plaintiff, 10 11 ORDER v. 12 No. CV-16-04407-PHX-DJH Pep Boys, et al., 13 Defendants. 14 15 16 17 18 19 This matter is before the Court on Defendant’s Motion for Summary Judgment 20 (Doc. 24). Plaintiff filed a Response (Doc. 28) and Defendant filed a Reply (Doc. 29). 21 For reasons stated below, the Motion will be granted. 22 Plaintiff filed his pro se Complaint on December 15, 2016. (Doc. 1). The 23 Complaint is in narrative form and is two pages long. The Complaint alleges, somewhat 24 indirectly, numerous causes of action including violations of Title VII of the Civil Rights 25 Act of 1964 for employment discrimination on the basis of race, color, religion, gender, 26 and national origin. The Complaint further alleges age discrimination in violation of the 27 Age Discrimination in Employment Act of 1967 and discrimination in violation of the 28 American’s with Disabilities Act of 1990. (Doc. 1). Dockets.Justia.com 1 I. 2 Background The case arises from the October 13, 2016, dismissal of Plaintiff from employment 3 with Defendant.1 4 paragraph in his narrative Complaint. Plaintiff states in his Complaint that he was told 5 that he would be promoted once a position opened up. (Doc. 1 at 1). He claims that his 6 assistant manager Cryssi Campos (“Campos”) yelled at him and reported him to manager 7 Donald Akins. Plaintiff claims the reports made to Akins were false and made in 8 retaliation for multiple complaints that Plaintiff called in to management. (Doc. 1). 9 Plaintiff further claims he was “forced to work with no lunches, forced to do heavier 10 work, bathroom restrictions, changing my schedule and not notifying me, trying to make 11 false customer complaints, being forced to go home and human resources trying to cover 12 it up, injuring being over worked, injury from moving away from push cart falling with 13 battery, diagnosed with depression and anxiety from work environment.” (Doc. 1 at 2). 14 These statements are the extent of the factual allegations alleged by Plaintiff. The extent of the facts alleged by Plaintiff are contained in one 15 In its Motion for Summary Judgment, Defendant argues that Plaintiff was hired in 16 January 2015 as a customer service advisor.2 (Doc. 24 at 2). Defendant contends that 17 Plaintiff received the Pep Boys Associate Employment Guide (“Handbook”) upon his 18 hiring. Plaintiff signed the Handbook, acknowledging that he had read it and that he 19 agreed to abide by its policies. (SOF ¶ 5).3 The Handbook addresses circumstances that 20 may lead to the termination of an associate. This includes, “[a]ny violation of [Pep 21 Boys’] policy, including misconduct, harassment, and any act that is deemed not to be in 22 the best interest of the [Pep Boys].” (SOF ¶ 4). Plaintiff was also provided with an 23 Attendance & Punctuality Policy (the “Attendance Policy”). (SOF ¶ 7). This policy 24 states that failure to “notify your supervisor in advance of your scheduled work shift 25 1 26 27 Defendant claims that Plaintiff incorrectly identified it as “Pep Boys, Autoplus, Icahn Enterprises, L.P.,” while its appropriate name is “The Pep Boys – Manny, Moe & Jack of California,” which is the operating entity of the store Plaintiff was employed. 2 Plaintiff’s Response does not disagree with any of the facts asserted by Defendant. 3 Statement of Facts in Support of Defendant’s Motion for Summary Judgment (Doc. 25). 28 -2- 1 when you’re late or not coming to work,” may result in “disciplinary action, including 2 termination.” (Id.) 3 Defendant alleges that on September 13, 2015, Plaintiff began arguing with 4 management in front of customers and was issued an Initial Performance Counseling on 5 September 15, 2015. (SOF ¶ 12). Plaintiff acknowledged in his deposition that this 6 confrontation occurred. (Id.) Defendant also alleges that between February 16, 2016 and 7 July 14, 2016, Plaintiff was tardy 23 times in violation of the Attendance Policy. (SOF ¶ 8 28). Moreover, between March 12, 2016 and July 14, 2016, Plaintiff had nine unexcused 9 absences in violation of the attendance policy. (Id.) As a result of these attendance 10 issues, Plaintiff was issued a Repeated Notice of Performance Counseling on July 15, 11 2016. (SOF ¶ 27). Subsequent to receiving the second Notice, Plaintiff showed up to 12 work more than thirty minutes late on July 19, 20, 22, and 24, 2016. (SOF ¶ 30). As a 13 result of these continued late arrivals, he was issued a Final Notice on July 26, 2016. 14 (Id.) 15 On July 27, 2016, Plaintiff was seen by a physician and was referred for a 16 neurological examination. (SOF ¶ 33). On August 11, 2016, Plaintiff underwent a 17 neurological examination and was advised to undergo CT imaging and to attend physical 18 therapy. (SOF ¶ 34). Plaintiff did not follow through with this treatment plan. (SOF ¶ 19 35). On August 16, 2016, Plaintiff filed a Charge of Discrimination with the EEOC 20 alleging that Defendant was discriminating against him based on his sex, disability, and 21 national origin. (SOF ¶ 36). The EEOC issued its notice of dismissal of Plaintiff’s 22 Charge of Discrimination on September 8, 2016. (SOF ¶ 39).4 23 Plaintiff did not attend scheduled work shifts on October 9, 12, and 13, 2016, and 24 did not provide a doctor’s note or other reason for missing those shifts. (SOF ¶ 37). 25 Based on the cumulative nature of his attendance issues in violation of the Handbook and 26 Attendance Policies, Plaintiff was terminated on October 13, 2016. (Id.) 27 .... 28 4 These facts were not alleged by Plaintiff in his Complaint, but were provided by Defendant in its briefing on the present Motion. -3- 1 II. Summary Judgment Legal Standards 2 The Court must grant summary judgment “if the movant shows that there is no 3 genuine dispute as to any material fact and the movant is entitled to judgment as a matter 4 of law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-323 5 (1986); Jesinger v. Nevada Fed. Credit Union, 24 F.3d 1127, 1130 (9th Cir. 1994). The 6 materiality requirement means “[o]nly disputes over facts that might affect the outcome 7 of the suit under the governing law will properly preclude the entry of summary 8 judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Substantive law 9 determines which facts are material. Id. The dispute must also be genuine, meaning the 10 “evidence is such that a reasonable jury could return a verdict for the nonmoving party.” 11 Id. at 242. The Court determines whether there is a genuine issue for trial but does not 12 weigh the evidence or determine the truth of matters asserted. Jesinger, 24 F.3d at 1131. 13 The moving party bears the initial burden of identifying the portions of the record, 14 including pleadings, depositions, answers to interrogatories, admissions, and affidavits 15 that it believes demonstrate the absence of a genuine issue of material fact. Celotex 16 Corp., 477 U.S. at 323. If the moving party meets its initial burden, the opposing party 17 must establish the existence of a genuine dispute as to any material fact. See Matsushita 18 Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-586 (1986). There is no issue 19 for trial unless there is sufficient evidence favoring the non-moving party. Anderson, 477 20 U.S. at 249. “If the evidence is merely colorable or is not significantly probative, 21 summary judgment may be granted.” Id. at 249-250. However, the evidence of the non- 22 movant is “to be believed, and all justifiable inferences are to be drawn in his favor.” Id. 23 at 255. A plaintiff cannot create a genuine issue for trial based solely upon his subjective 24 beliefs. Bradley v. Harcourt, Brace & Co., 104 F.3d 267, 270 (9th Cir. 1996). 25 III. Analysis 26 Defendant moves for summary judgment on all of Plaintiff’s claims, arguing that 27 there are no material facts in dispute and that it is entitled to judgment as a matter of law. 28 As an initial matter, the Court notes that Plaintiff filed a handwritten Response to the -4- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Motion. (Doc. 28). In total, the Response states as follows: “Evidence of all situations will ask the court to no [sic] dismiss my case.” (Id.) Attached to the Response are a number of text messages that appear to be between Plaintiff and other employees of the Defendant related to other employees allegedly being late for work, but it is not clear to the Court as to who these messages are between. (Doc. 28). Moreover, Plaintiff did not list out claims separately in his Complaint. (Doc. 1). Therefore, it is not exactly clear which claims he is bringing in this litigation. Plaintiff’s Complaint fails to clearly identify causes of action showing he is entitled to relief. The Court, however, must hold pro se pleadings to less stringent standards than pleadings drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). Out of an abundance of caution, the Court will analyze all of the causes of action that Plaintiff references in his Complaint. Plaintiff did not file a controverting statement of facts or separate statement of facts with his Response to Defendant’s Motion for Summary Judgment. Accordingly, the Court will construe the limited number of factual allegations contained in the Complaint as an affidavit in opposition to the summary judgment motion. See Jones v. Blanas, 393 F.3d 918, 923 (9th Cir. 2004) (allegations in a pro se plaintiff’s verified pleadings must be considered as evidence in opposition to summary judgment); Schroeder v. McDonald, 55 F.3d 454, 460 (9th Cir. 1995) (verified complaint may be used as an affidavit opposing summary judgment if it is based on personal knowledge and sets forth specific facts admissible in evidence). 21 22 23 24 25 26 27 28 A. Title VII Discrimination Claims Plaintiff’s Complaint references a number of causes of action, including for national origin, race, religion and age based discrimination. (Doc. 1). As an initial matter, Plaintiff testified during his deposition that Defendant did not discriminate against him on the bases of race, color, national origin or religion. (SOF ¶ 40-42). Additionally, with regard to his age discrimination claim, Plaintiff stated during his deposition, “I really don’t know why that’s there.” (SOF, Ex. 1 page 47). Plaintiff subsequently stated that he does not have a claim for age discrimination against Defendant when -5- 1 acknowledging that he is only 37 years old. (Id. at 48). 2 The Court finds that there are no material facts in dispute and that as a matter of 3 law, Defendant is entitled to summary judgment on Plaintiff’s claims of national origin, 4 race, religion and age-based discrimination. 5 B. 6 Plaintiff’s Complaint also mentions the Americans with Disabilities Act (the 7 “ADA”), and appears to allege that the Defendant violated the ADA in failing to 8 accommodate his alleged disability. (Doc. 1). The ADA provides that “[n]o covered 9 entity shall discriminate against a qualified individual with a disability because of the ADA Discrimination Claim 10 disability….” 42 U.S.C. § 12112(a). 11 treatment of a disabled employee but also a failure to make “reasonable 12 accommodations” for that employee. 42 U.S.C. §§ 12112(b)(4), (b)(5)(A). Once an 13 employer becomes aware of an employee’s need for accommodation, it must engage in 14 an “interactive process” with the employee to identify and implement reasonable 15 accommodations. Humphrey v. Mem’l Hosps. Ass'n, 239 F.3d 1128, 1137 (9th Cir. 16 2001). The interactive process requires communication and good-faith exploration of 17 possible accommodations between employers and individual employees, and neither side 18 can delay or obstruct the process. Barnett v. U.S. Air, 228 F.3d 1105, 1114-15 (9th Cir. 19 2000). Discrimination includes not only the unequal 20 As an initial matter, Plaintiff does not allege any facts in his Complaint that he had 21 a medical condition that would qualify under the ADA. Moreover, Plaintiff does not 22 allege in his Complaint that Defendant was aware of the alleged medical condition and 23 failed to accommodate that condition. (Doc. 1). Plaintiff has offered no evidence that 24 Defendant failed to engage in the interactive process in good faith that supports his 25 failure to accommodate claim. Even had Plaintiff met his burden, the evidence provided 26 by Defendant shows that Plaintiff attended an initial appointment with a provider, failed 27 to attend his specialist appointment, and continued working and performed all of the tasks 28 that he was ordinarily tasked with performing. (Doc. 24). Plaintiff has not disputed any -6- 1 of these facts. 2 The Court finds that there are no material facts in dispute as to this claim and that 3 as a matter of law, Defendant is entitled to summary judgment on Plaintiff’s ADA 4 discrimination claim. 5 C. 6 Independent of whether discrimination has occurred, Title VII forbids employers 7 from retaliating against an employee who seeks to bring discrimination claims against the 8 employer. 42 U.S.C. § 2000e-3(a); 29 U.S.C. § 215(a)(3). 9 retaliation under Title VII requires the plaintiff show: (1) she engaged in a protected 10 activity, (2) she suffered an adverse employment decision, and (3) there was a causal link 11 between the protected activity and the adverse employment decision. Villiarimo, 281 12 F.3d at 1064. To bring a retaliation claim under 29 U.S.C. § 215(a)(3), an employee must 13 have given the employer “fair notice that an employee is making a complaint that could 14 subject the employer to a later claim or retaliation.” 15 Performance Plastics Corp., 563 U.S. 1, 13 (2011). 16 expressions of discontent” are usually not sufficient to constitute fair notice. Lambert v. 17 Ackerley, 180 F.3d 997, 1007 (9th Cir. 1999). 18 decision amounts to an adverse employment action.” 19 Permanente Med. Grp., 79 F.3d 859, 869 (9th Cir. 1996). Retaliation Claims A prima facie case of Kasten v. Saints-Gobain An employee’s “amorphous Moreover, “not every employment Strother v. S. California 20 Plaintiff’s retaliation claim appears to stem from his receiving Performance 21 Counseling Notices from his employer and not to his ultimate termination. (Doc. 1). 22 Plaintiff states in his Complaint that Campos “wrote me up with manager donald akins in 23 falsely write ups made up for retaliations for calling…district managers and human 24 resources…of many complaints I called in.” (Doc. 1). 25 Defendant asserts that the first Notice given to Plaintiff was a result of his arguing 26 with management in front of a customer and in violation of the Handbook. (Doc. 24). In 27 his deposition, Plaintiff does not dispute that he was arguing in front of a customer. 28 Rather, he asserts that he should not have been given a Notice for that behavior, and -7- 1 instead that it was in some way retaliatory. Plaintiff alleges no facts to show that 2 Defendant’s actions were retaliatory. See Strother, 79 F.3d at 869. Plaintiff admits that 3 he has no facts, other than his subjective belief, to support his retaliation claim. 4 Moreover, Plaintiff has not disputed Defendant’s reasons for giving Plaintiff the Notices. 5 (Doc. 28). 6 7 The Court finds that there are no material facts in dispute and that as a matter of law, Defendant is entitled to summary judgment on Plaintiff’s retaliation claim. 8 D. 9 Under Title VII, a plaintiff may establish a prima facie discrimination claim by 10 showing direct evidence of discriminatory intent or by establishing that “(1) she belongs 11 to a protected class; (2) she was qualified for the position; (3) she was subjected to an 12 adverse employment action; and (4) similarly situated men were treated more favorably, 13 or her position was filled by a man.” Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 14 1062 (9th Cir. 2002); see also McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 15 (1973). To directly prove discriminatory animus, the evidence, if believed, should not 16 require inference or presumption. Vasquez v. City of Los Angeles, 349 F.3d 634, 640 (9th 17 Cir. 2003). “Individuals are similarly situated when they have similar jobs and display 18 similar conduct.” Id. at 641. The jobs in question need not be identical, but they must be 19 similar “in all material respects.” Moran v. Selig, 447 F.3d 748, 755 (9th Cir. 2006). Gender-based Discrimination 20 The basis for Plaintiff’s gender discrimination claim is his belief that Karissa 21 Arroyo, a female, was promoted to the position of Assistant Service Manager over him. 22 (SOF ¶ 24). He has provided no facts or other evidence to support this claim in his 23 Complaint and as stated above he did not file a substantive response to the Motion for 24 Summary Judgment. (Doc. 28). Moreover, in his deposition, Plaintiff admitted that he 25 had no evidence to support his gender discrimination claim other than his subjective 26 belief that Ms. Arroyo was promoted because she was “eye candy.” (SOF ¶ 25-26). 27 Plaintiff’s subjective belief alone cannot create a genuine issue of material fact for trial. 28 See Bradley v. Harcourt, Brace & Co., 104 F.3d 267, 270 (9th Cir. 1996); see also -8- 1 Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1222 (9th Cir. 1998) (“evidence of 2 ‘pretense’ must be ‘specific’ and ‘substantial’ in order to create a triable issue with 3 respect to whether the employer intended to discriminate on the basis of sex.”). Plaintiff 4 has not presented any evidence, other than his subjective beliefs, that Defendant 5 discriminated against him based on his gender. The Court finds that there are no material 6 facts in dispute and that as a matter of law, Defendant is entitled to summary judgment on 7 Plaintiff’s claim of gender discrimination. 8 Accordingly, 9 IT IS HEREBY ORDERED that Defendant’s Motion for Summary Judgment 10 11 12 13 (Doc. 24) is GRANTED. IT IS FURTHER ORDERED that the Clerk of Court shall enter judgment accordingly and terminate this action. Dated this 14th day of August, 2018. 14 15 16 Honorable Diane J. Humetewa United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28 -9-
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