Hayden v. Potter, No. 3:2006cv00923 - Document 38 (S.D. Cal. 2010)
Court Description: ORDER granting 30 Defendant's Motion for Summary Judgment. Signed by Judge John A. Houston on 09/30/10. (jpp) Modified on 9/30/2010 to replace image per ct, nef resent to all parties. (jpp) (mam).
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Hayden v. Potter Doc. 38 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 ) ) ) Plaintiff, ) v. ) JOHN E. POTTER, Postmaster General, ) ) United States Postal Service, ) ) Defendant. ) GLEN D. HAYDEN, Civil No. 06CV0923 JAH(NLS) ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT [Doc. No. 30] INTRODUCTION 17 Pending before the Court is Defendant’s motion for summary judgment. The motion 18 is fully briefed by the parties. After a thorough review of the parties’ submissions, and for the 19 reasons set forth below, this Court GRANTS Defendant’s motion for summary judgment. 20 BACKGROUND 21 Plaintiff, Glen D. Hayden, is a United States Postal Service (“USPS”) automotive 22 technician or mechanic. See Notification of Personal Action, Def’s Exh. A at 4. (Doc. No. 30- 23 2). He began working for the USPS as a mechanic on May 14, 1994. Id. Plaintiff primarily 24 worked at the Margaret Sellers Post Office (“MLS”) during his time with the USPS. Hayden 25 Depo. at 37, 38, 43, 45, Deft’s Exh. B (Doc. No. 30-2). Plaintiff received awards, recognitions 26 and outstanding supervisor evaluations during 1994, and 1995. Id. at 47 - 48. 27 In 1998, Plaintiff filed a claim with the Equal Employment Opportunity (“EEO”) which 28 resulted in a settlement. See Settlement Agreement Form, Def’s Exh. V (Doc. No. 30-5). He 06cv0923 Dockets.Justia.com 1 filed a second complaint in 1999 which was dismissed after Plaintiff missed a deadline. Hayden 2 Depo. at 26. 3 On June 30, 2000, supervisor Tony Esqueda overheard Plaintiff joking about not 4 “enlisting in the Gay Rights Parade unless it was open season” and called Plaintiff into his 5 office. See Letter of Warning, Pla’s Exh. E. (Doc. No. 32-2). Plaintiff maintains Esqueda yelled 6 at him and Plaintiff asked for a union representative for the meeting. See Hayden Depo. at 99. 7 Esqueda issued a letter of warning for unacceptable conduct dated August 18, 2000. See Letter 8 of Warning, Pla’s Exh. E. Later, the union filed a grievance and the letter was removed from 9 Plaintiff’s file. See Hayden Depo. at 111. On the same day as the incident involving Plaintiff 10 joking, Plaintiff returned to MLS and requested three hours of sick leave. See Letter of 11 Warning, Def’s Exh. C (Doc. No. 30-3). His supervisor, Roy Morgan, denied the request and 12 asked for supporting medical documentation. Id. Plaintiff said he had no opportunity to see 13 a medical professional because he recently started to feel ill. See Hayden Depo at 39, 40. 14 Morgan issued a letter of warning for failure to follow instructions. Id. at 37. The union filed 15 a grievance and the letter was subsequently removed. Id. at 41. 16 On September 13, 2000, Morgan spoke with Plaintiff about an allegedly unauthorized 17 work order written by Plaintiff. See Notice of 7-Day Calendar Suspension, Def’s Exh. E (Doc. 18 No. 30-3). Plaintiff claims Morgan berated him in front of his peers and Plaintiff admits to 19 calling his boss “an idiot.” Id.; Hayden Decl. ¶ 7. Morgan issued a proposed 7-day suspension 20 for unacceptable conduct/failure to follow instructions dated October 17, 2000. See Notice of 21 7-Day Calendar Suspension. The union filed a grievance and the notice was removed from his 22 file in 2003. See Step One Settlement Agreement, Pla’s Exh. I (Doc. No. 32-2). 23 Plaintiff was scheduled to work on July 4, 2001, however he left a voice mail message 24 that morning stating that he could not work because of an emergency. See Hayden Depo. at 25 62. Plaintiff’s emergency was a problem with his pond and expensive koi fish. See id. Morgan 26 issued a notice of 7-day suspension for failing to report to work as scheduled dated July 31, 27 2001. See Id. The union filed a grievance, the notice of suspension was reduced to a letter of 28 warning and Plaintiff received his pay for the day. See Notice of Seven Day Suspension, Pla’s 2 06cv0923 1 Exh. J (Doc. No. 32-2). The letter was eventually rescinded. See id. at 63. 2 In July 2001, Plaintiff’s supervisor issued new work rules to decrease chatting in the 3 workplace and a new rule to place work orders on his desk before employees took a break. See 4 Hayden Depo. at 49 - 50. On August 21, 2001, Plaintiff and Stephen LaPuzza, a co-worker, 5 were late for their scheduled break and Plaintiff placed his work order on top of his tool box. 6 See id. at 50-51. Morgan issued letters of warning dated August 3, 2001 to Plaintiff and 7 LaPuzza for failure to follow instructions. See Letter of Warning, Def’s Exh. G (Doc. No. 30- 8 3). The union filed a grievance and the letter was removed from Plaintiff’s file on November 9 9, 2001. See iId. 10 On June 25, 2001, Plaintiff reported for jury duty at the San Diego County Superior 11 Court. See Notice of Removal, Def’s Exh. H at 1 (Doc. No. 30-3). On August 22, 2001, 12 Plaintiff was told jury selection would begin on September 4, 2001 and that this process might 13 take several days, and if chosen, many months because the case was complex. See id. Plaintiff 14 reported for jury selection on September 4, 2001. See iId. Plaintiff did not report to work from 15 September 4, 2001 to September 7, 2001, and did not call in. See id. Plaintiff mistakenly 16 went in for jury duty on September 4, 2001 at 9:00 a.m. when his report time was 1:30 p.m. 17 See Hayden Decl. ¶ 11. Plaintiff served the full day on September 5, 2001, and September 6, 18 2001, but was dismissed after a few hours on September 7, 2001. See Notice of Removal. 19 Plaintiff returned to work on September 10, 2001, but he turned in an incomplete attendance 20 certification sheet. Id. 21 Defendant issued a notice of removal for submitting false and misleading information 22 for the sole purposes of obtaining approved leave and payment for time for Plaintiff did not 23 work or serve as a juror. See Notice of Removal. The union filed a grievance and Plaintiff came 24 back to work after approximately forty-five days, in January 2002. See Hayden Depo. at 58. 25 Plaintiff filed an EEO claim in 2002 and 2004 alleging retaliatory acts by the USPS. On 26 April 26, 2006, Plaintiff filed his complaint alleging that the his employer engaged in retaliatory 27 activity because of his EEO claim filed in 1998. See Complaint (Doc. No. 1). On August 18, 28 2009, Defendant filed this motion for summary judgment. On October 20, 2009, Plaintiff filed 3 06cv0923 1 the opposition and Defendant filed a response on October 26, 2009. The matter was taken 2 under submission without oral argument pursuant to Local Rule 7.1. DISCUSSION 3 4 I. Legal Standard 5 Summary judgment is properly granted when “there is no genuine issue as to any 6 material fact and ... the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. 7 P. 56(c). Entry of summary judgment is appropriate “against a party who fails to make a 8 showing sufficient to establish the existence of an element essential to that party’s case, and on 9 which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 10 322 (1986). The party moving for summary judgment bears the initial burden of establishing 11 an absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. Where the party 12 moving for summary judgment does not bear the burden of proof at trial, it may show that no 13 genuine issue of material fact exists by demonstrating that “there is an absence of evidence to 14 support the non–moving party’s case.” Id. at 325. The moving party is not required to produce 15 evidence showing the absence of a genuine issue of material fact, nor is it required to offer 16 evidence negating the moving party’s claim. Lujan v. National Wildlife Fed’n, 497 U.S. 871, 17 885 (1990); United Steelworkers v. Phelps Dodge Corp., 865 F.2d 1539, 1542 (9th Cir. 1989). 18 “Rather, the motion may, and should, be granted so long as whatever is before the District 19 Court demonstrates that the standard for entry of judgment, as set forth in Rule 56(c), is 20 satisfied.” Lujan, 497 U.S. at 885 (quoting Celotex, 477 U.S. at 323). 21 Once the moving party meets the requirements of Rule 56, the burden shifts to the party 22 resisting the motion, who “must set forth specific facts showing that there is a genuine issue for 23 trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). Without specific facts to 24 support the conclusion, a bald assertion of the “ultimate fact” is insufficient. See Schneider v. 25 TRW, Inc., 938 F.2d 986, 990-91 (9th Cir. 1991). A material fact is one that is relevant to an 26 element of a claim or defense and the existence of which might affect the outcome of the suit. 27 The materiality of a fact is thus determined by the substantive law governing the claim or 28 defense. Disputes over irrelevant or unnecessary facts will not preclude a grant of summary 4 06cv0923 1 judgment. T.W. Electrical Service, Inc. v. Pacific Electrical Contractors Ass’n, 809 F.2d 626, 2 630 (9th Cir. 1987) (citing Anderson, 477 U.S. at 255). 3 When making this determination, the court must view all inferences drawn from the 4 underlying facts in the light most favorable to the nonmoving party. See Matsushita Elec. 5 Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). “Credibility determinations, 6 the weighing of evidence, and the drawing of legitimate inferences from the facts are jury 7 functions, not those of a judge, [when] ... ruling on a motion for summary judgment.” 8 Anderson, 477 U.S. at 255. 9 II. Analysis 10 Title VII makes it is unlawful for an employer to discriminate against employees who file 11 charges with the Equal Employment Opportunity Commission (“EEOC”). 42 U.S.C.A. § 12 2000e-3(a). To survive summary judgment on a Title VII retaliation claim, an employee must 13 make a prima facie showing that: (1) he engaged in protected activity; (2) he was subjected to 14 an adverse employment action; and (3) there is a causal connection between the two. Surrell 15 v. California Water Serv. Co., 518 F.3d 1097, 1108 (9th Cir. 2008). 16 Once the plaintiff establishes a prima facie case of discrimination, the burden shifts to 17 the defendant to “articulate a legitimate, nondiscriminatory reason for the employment 18 decision.” Leong v. Potter, 347 F.3d 1117, 1124 (9th Cir. 2003) (citing McDonnell Douglas 19 Corp. v. Green, 411 U.S. 792, 802 (1973)). 20 If the defendant is able to make this showing, the burden shifts back to the plaintiff to On a summary 21 show that the reason offered is merely a pretext for discrimination. Id. 22 judgment motion, plaintiff may establish pretext through direct evidence of the employer’s 23 discriminatory motive or circumstantial evidence that shows that the employer’s proffered 24 explanation is unworthy of credence. See Bodett v. CoxCom, Inc., 366 F.3d 736, 743 (9th Cir. 25 2004). Direct evidence is “evidence, which, if believed, proves the fact [of discriminatory 26 animus] without inference or presumption.” Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 27 1221 (9th Cir. 1998). “When direct evidence is unavailable . . . and the plaintiff proffers only 28 circumstantial evidence that the employer’s motives were different from its stated motives, 5 06cv0923 1 ‘specific’ and ‘substantial’ evidence of pretext [is required] to survive summary judgment.” 2 Payne v. Norwest Corp., 113 F.3d 1079, 1080 (9th Cir. 1997). 3 A. Timeliness 4 Defendant argues that “all of the actions about which Plaintiff complains, except the 5 removal and the non-selection for promotion, are discrete acts and are time-barred.” Doc. No. 6 30-2 at 17. Defendant contends Plaintiff was required to seek EEO counseling within 45 days 7 of the alleged discriminatory action per 29 C.F.R. § 1614.105(a)(1)1. Defendant maintains, 8 with respect to Plaintiff’s 2002 EEO Complaint, Plaintiff contacted an EEO counselor on 9 November 30, 2001 and, therefore, all discrete acts alleged in support of the claim must have 10 occurred on or before October 16, 2001. He argues the following discrete acts are untimely 11 because they fall outside the 45 day period: the August 18, 2000, Letter of Warning; the August 12 17, 2000, Letter of Warning; the October 17, 2001 Proposed 7-Day Suspension; the July 31, 13 2001, Notice of 7-Day Suspension; and the August 3, 2001, Letter of Warning. 14 15 Plaintiff argues all previous incidents of discrimination should be considered to evaluate the timely and actionable issues in this case. 16 The Supreme Court in National R,R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002) 17 considered under what circumstances a Title VII plaintiff may file suit on events the fall outside 18 the 180 or 300 day time period for filing a charge with the EEOC. The Court held a plaintiff 19 is precluded for recovering for discrete acts of discrimination or retaliation that occur outside 20 the statutory time period. Id. at 105. The Court further determined employees are not barred 21 from “filing charges about related discrete acts so long as the acts are independently 22 discriminatory and charges addressing those acts are themselves timely filed. Nor does the 23 statute bar an employee from using the prior acts as background evidence in support of a timely 24 claim.” Id. at 113. 25 Therefore, the previous discrete actions are not actionable because they are untimely, but 26 may be considered as background evidence to support Plaintiff’s claim. Accordingly, to the 27 28 29 C.F.R. § 1614.105(a)(1) states: “An aggrieved person must initiate contact with a counselor within 45 days of the date of the matter alleged to be discriminatory.” 1 6 06cv0923 1 extent Plaintiff is seeking relief based on the untimely act, the motion is GRANTED. The 2 Court, however, will considered the acts in support of Plaintiff’s timely claim for the notice of 3 removal. As such, the two discrete acts upon which Plaintiff may seek relief are the Notice of 4 Removal relevant to his 2002 EEO complaint and the non-selection for promotion relevant to 5 his 2004 EEO complaint. 6 B. Prima Facie Case 7 It is undisputed that Plaintiff engaged in protected activity when he filed an EEO claim 8 in 1998, and thus satisfies the first element of a prima facie case. Plaintiff contends that he 9 satisfies the second element because he faced adverse employment action, namely the notice 10 of removal and his non-selection for promotion and submits sufficient evidence. See Notice of 11 Removal, Pla’s Exh. O; Pacheco Decl. ¶ 13, Pla’s Exh. W (Doc. No. 32-5). Defendant argues 12 Plaintiff fails to satisfy the third element, the causal connection between the protected activity 13 and the adverse employment action. 14 To establish a causal connection, a plaintiff must proffer evidence sufficient to raise an 15 inference that such causal link exists. Yartzoff v. Thomas, 809 F.2d 1371, 1376 (9th Cir. 16 1987). This evidence includes an “employer’s knowledge that the plaintiff engaged in protected 17 activities and the proximity in time between the protected action and the allegedly retaliatory 18 employment decision.” Id. 19 Defendant argues Plaintiff has no direct evidence of retaliation, which is usually in the 20 form of clearly discriminatory or retaliatory statements or actions by the employer. Defendant 21 contends that the comments2 that Plaintiff points to as being clearly retaliatory should be 22 construed not as probative of a retaliatory animus, but rather a stray remark that shows a 23 personal dislike for Plaintiff, which is a legally permissible basis for the employment decision. 24 Plaintiff does not dispute this argument. 25 Defendant further argues that Plaintiff does not have any indirect evidence of the casual 26 27 28 Plaintiff refers to the following comments made by management: (1) C.B. Bingham told him to “get off the property” because he would never be promoted; (2) Mark Anderson told him to quit; and (3) another supervisor told him he did not understand why “they” were harassing Plaintiff. 2 7 06cv0923 1 link, thus Plaintiff does not establish a prima facie case. Defendant contends that too much 2 time has passed between Plaintiff’s charges and the employment decisions: three years elapsed 3 between Plaintiff’s 1998 charge and his removal, and five years elapsed between the 1998 4 charge and his non-selection for promotion. Defendant argues the lack of temporal proximity, 5 in and of itself, disproves any inference of casual connection. The Court is not persuaded by 6 this argument. Although an extended period between the protected activity and adverse 7 employment action without any other indirect evidence of discrimination fails to give rise to 8 causation, lack of temporal proximity alone does not disprove a causal connection. See 9 Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1065 (9th Cir. 2002) (Finding “a nearly 10 18-month lapse between the protected activity and an adverse employment action is simply too 11 long , by itself, to give rise to an inference of causation.”). 12 Defendant also maintains Plaintiff cannot show that Roy Morgan, Richard Fellows, and 13 Steve Pacheco, the supervisors who made the employment decisions, had any knowledge of 14 Plaintiff’s 1998 EEO claim and this knowledge is essential to demonstrating a causal link. All 15 three involved in the employment decisions unequivocally state in their declarations that they 16 had no knowledge. See Morgan EEO Investigative Affidavit, Def’s Exh. AB at 291; Fellows 17 EEO Investigative Affidavit, Def’s Exh. AC at 294; Pacheco Decl. ¶ 16, Def’s Exh. S at 212. 18 Thus, Defendant contends Plaintiff cannot show there was retaliatory animus motivating the 19 employment decisions at issue. 20 Plaintiff argues Fellows was aware of the EEO activities because he supplied Plaintiff 21 with the tools that were part of the 1998 settlement agreement. Also, Plaintiff contends 22 Pacheco was aware of the EEO charges because Plaintiff filed his 2002 EEO claim when 23 Pacheco worked along side Plaintiff as VMF manager, and the claim included charges of 24 harassment for retaliation of the 1998 EEO claim and several employees were interviewed 25 regarding the claims. 26 supervisors during the time the two worked together. 27 28 Additionally, Plaintiff maintains he was publically berated by his In reply, Defendant contends Plaintiff relies on unfounded speculation which is insufficient to survive the motion for summary judgment. 8 06cv0923 1 Evidence that the employer was aware that the employee engaged in protected activity 2 is essential to a causal link between the protected activity and adverse employment action. See 3 Cohen v. Fred Meyer, Inc., 686 F.2d 793, 796, (9th Cir. 1982). Morgan clearly states the 4 notice of removal was proposed and performed by Fellows. See Morgan EEO Investigative 5 Affidavit at 289. As such, Morgan’s lack of knowledge of the protected activity does not appear 6 to be relevant to Plaintiff’s claims. Although Fellows declares he was unaware of the 1998 EEO 7 activity, Plaintiff provides evidence that Fellows may have been aware, because he asked Fellows 8 to provide him the tools required by the settlement agreement. See Hayden Decl. ¶ 5. The 9 reasonable inference from this evidence presents a genuine issue of material fact as to whether 10 Fellows had knowledge of Plaintiff’s protected activity. 11 Plaintiff’s statements that Pacheco worked with him when Plaintiff filed the EEO claim 12 in 2002 and employees were interviewed as to the claim, and Plaintiff was publically berated 13 are insufficient to demonstrate or even provide a reasonable inference that Pacheco was aware 14 of the protected activity. As such, Plaintiff fails to show a causal link for his non-selection for 15 promotion claim and, therefore fails to meet his burden of making a prima facie showing. 16 Defendant is entitled to summary judgment on the claim. 17 C. Pretext 18 Because Plaintiff establishes a prima facie case for retaliation as to his claim for the notice 19 of removal, the burden shifts to the Defendant to prove that the reasons for the adverse 20 employment decisions was legitimate and nondiscriminatory. McDonnell Douglas Corp., 411 21 U.S. at 802. If Defendant meets this burden, Plaintiff must “then show that the articulated 22 reasons are pretextual ‘either directly by persuading the [fact-finder] that a discriminatory 23 reason more likely motivated the employer or indirectly by showing that the employer’s 24 proffered explanation is unworthy of credence.” E.E.O.C. v. Boeing Co., 577 F.3d 1044, 1049 25 (9th Cir. 2009) (quoting Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 256 26 (1981). A proffered explanation is “unworthy of credence” if it is “internally inconsistent or 27 otherwise not believable.” Chuang v. Univ. of Cal. Davis, Bd. of Trs., 225 F.3d 1115, 1127 28 (9th Cir. 2000). The court “require[s] very little [direct] evidence to survive summary 9 06cv0923 1 judgment”, but circumstantial evidence must be “specific and substantial to defeat the 2 employer’s motion for summary judgment.” Lam v. Univ. of Hawaii, 40 F.3d 1551, 1564 (9th 3 Cir. 1994); Coghlan v. Am. Seafoods Co. LLC, 413 F.3d 1090, 1095 (9th Cir. 2005). 4 Defendant argues that Plaintiff was removed from his position because he was absent 5 without leave and management believed Plaintiff intentionally submitted false and misleading 6 information to receive jury duty pay for time not spent working or serving on a jury. 7 Defendant also contends that Plaintiff violated USPS Employee and Labor Relations Manual, 8 § 516.43 because he did not report to work for the balance of his shift when the court excused 9 him early enough to report to work and complete the tour.3 Defendant contends that even if 10 management was mistaken about Plaintiff’s intent, that it was a honest mistake and Plaintiff’s 11 failure to punch in and out at critical times, and Plaintiff’s noncompliance with the state court’s 12 attendance certification procedures supported their reasonably mistaken belief. Furthermore, 13 Defendant argues that management followed the union contract in making their decision to 14 issue a notice of removal, the natural step following three letters of warning and two notices of 15 7-day suspension. Thus the facts do not support a pretext. 16 Plaintiff, in opposition, argues that he never received any training or instruction before 17 attending jury duty or the proper protocol during jury duty service. Plaintiff contends that 18 other employees reported their jury duty in the same manner and yet, were not disciplined. 19 Plaintiff also argues that the letter of warning dated August 18, 2000 and the notice of 7-day 20 suspension dated October 17, 2000 should not have been used because the letter of warning 21 was supposed to be removed from Plaintiff’s file and the notice of 7-day suspension was to be 22 reduced to a letter of warning. Plaintiff also argues that his treatment was excessive in 23 comparison to other similarly situated employees, such as Aaron Medina, who worked the same 24 6:30 a.m. to 2:30 p.m. shift, but was told by his supervisor not to come into work when he 25 finished jury duty at 10:00 a.m. Plaintiff contends that Aaron Medina did not engage in 26 protected activity and did not receive a notice of removal for his conduct, nor was he 27 28 On September 7, 2001, management confirmed that Plaintiff was excused by the court at 10:30 a.m. See Notice of Removal. 3 10 06cv0923 1 reprimanded. 2 In response, Defendant argues that Aaron Medina did follow USPS protocol by calling 3 his supervisor to ask whether or not he should report to work after early dismissal from jury 4 duty. Defendant also contends that although none of the other employees received training 5 regarding the jury duty policy, almost half of the employees interviewed stated that they knew 6 that if an employee served for less than four hours, that the employee was to return to work. 7 Defendant also argues that the employees Plaintiff compares himself to are not similarly 8 situated because they did not have similar disciplinary records, thus they were not disciplined 9 in the same manner. 10 Defendant further argues Morgan and Fellows did not know at the time of their decision 11 that the letter of warning dated August 18, 2000, and the notice of 7-day suspension dated 12 October 17, 2000, were to be removed from Plaintiff’s file or reduced to a letter of warning, 13 respectively. Defendant also contends that even if management technically violated the union 14 contract it would not negate Plaintiff’s underlying conduct. 15 This Court finds Defendant presents legitimate, nondiscriminatory reasons for issuing 16 the notice of removal, namely Plaintiff’s absence without leave, supported by Plaintiff’s 17 incomplete time cards requesting pay for an eight-hour day pay for no work or jury service on 18 September 4, 2001 and September 7, 2001. Notice of Removal, Pla’s Exh. O (Doc. No. 32-2). 19 Upon investigating Plaintiff’s incomplete time cards, it was determined that Plaintiff only 20 served 4 hours of jury duty on September 4, 2001 and was excused from jury duty at 10:30 am 21 on September 7, 2001, and based on the results determined Plaintiff intentionally submitted 22 false and misleading information to receive pay for time not spent at jury duty or work. Id. 23 Plaintiff presents evidence that he was never told he needed to submit a form or call in 24 each day for jury duty and was not trained on the proper procedure for jury duty. See Hayden 25 Decl. ¶ 10. Plaintiff argues, but fails to present evidence that other employees logged their 26 27 28 11 06cv0923 1 hours the same, but were not disciplined.4 Plaintiff’s argument without support does not 2 qualify as “substantial” evidence to defeat summary judgment. See Coghlan, 413 F.3d at 1095. 3 Plaintiff fails to present a genuine issue of material fact as to whether Defendant’s reasons for 4 the notice of removal were pretextual. Accordingly, Defendant is entitled to judgment as to the 5 notice of removal claim. CONCLUSION AND ORDER 6 7 8 Based on the foregoing, IT IS HEREBY ORDERED Defendant’s motion for summary judgment is GRANTED. The Clerk of Court shall enter judgment accordingly. 9 10 DATED: September 29, 2010 11 JOHN A. HOUSTON United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Plaintiff cites to statements contained in Exhibit T in support of his argument. The record before the Court does not include an Exhibit T. After a thorough search of Plaintiff’s supporting documentation, the Court located two unsworn statements from other employees. In addition to being unsworn, neither statement says the employee logged his hours like Plaintiff but, unlike Plaintiff, was not disciplined. 4 27 28 12 06cv0923
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