Brown v. Cemex, Inc.

Opinion

----oo0oo---- BRIAN BROWN, No. 2:22-cv-02128 WBS DB Plaintiff, v. MEMORANDUM AND ORDER RE: MOTION FOR SUMMARY JUDGMENT CEMEX, INC.; CEMEX CONSTRUCTION MATERIALS PACIFIC, LLC; and DOES 1 to 10, Defendants. ----oo0oo---- Plaintiff Brian Brown brings three claims under the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., and two claims under California’s Fair Employment and Housing Act (“FEHA”), Cal. Gov. Code § 12900 et seq., all of which relate to allegations that defendant CEMEX Construction Materials Pacific, LLC1 (“Cemex”) refused to hire plaintiff 1 Plaintiff initially also sued CEMEX, Inc., which is the parent corporation of CEMEX Construction Materials Pacific, LLC. The parties now agree that the parent entity is not a proper because of his disability. (Compl. (Docket No. 1).) Defendant now moves for summary judgment on all claims. (Mot. (Docket No. 25-1).) As the parties are familiar with the relevant facts, procedural history, and legal standard, the court will not recite them in detail here. I. Evidentiary Objections The court first addresses the serial relevance, foundation, and hearsay objections that defendant raises against plaintiff’s witnesses’ declarations and accompanying documents. (See Docket Nos. 37, 38.) As a preliminary matter, the court will disregard any objections that are duplicative of the summary judgment standard. Under Federal Rule of Evidence 401, evidence is relevant if it “has any tendency to make a fact more or less probable” and that fact “is of consequence in determining the action.” Fed. R. Evid. 401. The action before the court now is a motion for summary judgment. On summary judgment, the court determines whether the evidence presented, viewed in the light most favorable to the non-moving party, creates a “genuine dispute as to any material fact” that must be resolved at trial. Fed. R. Civ. P. 56(a). The court must therefore consider, and only consider, evidence bearing on (1) facts that are (2) material. If the evidence offered does not bear on a material fact (e.g., comprises baseless speculation, bears on a legal conclusion, or

35 at 6.) Accordingly, the court will dismiss all claims as asserted against CEMEX, Inc. with prejudice. bears on a fact not necessary to dispose of any claim), it is by definition not relevant to the present action for summary judgment. Sandoval v. Cnty. of San Diego, 985 F.3d 657, 665 (9th Cir. 2021) (“[O]bjections for relevance are generally unnecessary on summary judgment because they are “‘duplicative of the summary judgment standard itself.’ . . . [P]arties briefing summary judgment motions would be better served to ‘simply argue’ the import of the facts reflected in the evidence rather than expending time and resources compiling laundry lists of relevance objections.”) (citing Burch v. Regents of Univ. of Cal., 433 F. Supp. 2d 1110, 1119 (E.D. Cal. 2006) (Shubb, J.)). Additionally, “if the contents of a document can be presented in a form that would be admissible at trial -- for example, through live testimony by the author of the document -- the mere fact that the document itself might be excludable hearsay provides no basis for refusing to consider it on summary judgment.” Id. at 666. The court will therefore overrule defendant’s relevance, foundation, and hearsay objections. Plaintiff’s, Haymore’s, and Webdell’s declarations -- the declarations to which defendant objects -- all state that the respective declarant has personal knowledge of all of the facts comprising his declaration and supporting documents included with it. (Docket Nos. 35-8 ¶ 1; 35-7 ¶ 1; 35-15 ¶ 1.) There is therefore no concern that this evidence cannot be presented in admissible form at trial. This is especially true regarding plaintiff’s notes recounting his own interview; the court can envision no circumstances under which plaintiff would, as a legal matter, be barred from offering his personal, percipient testimony about what he said and heard during his interview were the case to proceed to trial. Absent any challenges to the substantive authenticity or reliability of these declarations or documents, the court will not categorically exclude them from its analysis of defendant’s motion because of the form in which they are currently presented.2 II. Disability Discrimination Under ADA and FEHA (Claims 1-4) Both parties agree that the McDonnell Douglas burden- shifting framework for analyzing intentional discrimination claims, first set forth by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), applies to plaintiff’s disability discrimination claims brought under the ADA and FEHA. (Mot. at 20-21 & n.5; Opp’n (Docket No. 35) at 4-5.) See Kannan v. Apple, Inc., No. 20-17211, 2022 WL 3973918, at *1 (9th Cir. Aug. 31, 2022) (applying McDonnell Douglas framework to ADA and FEHA claims); Schechner v. KPIX–TV, 686 F.3d 1018, 1023 (9th Cir. 2012) (“California applies the McDonnell Douglas burden-shifting framework and other federal employment law principles when interpreting the FEHA.”). This court has previously explained how the McDonnell Douglas framework applies in the summary judgment context: “Under [McDonnell Douglas], the plaintiff must first establish a prima facie case, which requires the employee to show he or she (1) suffered from a disability, (2) was otherwise qualified to do his

2 Defendant’s objections regarding plaintiff’s failure to provide the court with complete deposition transcripts are moot, as all of the relevant transcripts have since been lodged in complete form with the court. (See Docket Nos. 24, 40.) or her job, and (3) was subjected to adverse employment action because of the disability. If the plaintiff establishes a prima facie case, the burden shifts to the employer to rebut the presumption by producing admissible evidence, sufficient to raise a genuine issue of fact that its action was taken for a legitimate, nondiscriminatory reason. If the employer sustains this burden, the presumption of discrimination disappears, and the plaintiff must then show the employer’s proffered reasons as pretexts for discrimination, or offer any other evidence of discriminatory motive.” Thomsen v. Georgia-Pac. Corrugated, LLC, 190 F. Supp. 3d 959, 969 (E.D. Cal. 2016) (citations and quotations omitted). Here, plaintiff fails to establish his prima facie case because the court, in viewing the record in a light most favorable to plaintiff, cannot find any evidence that suggests a causal link between plaintiff’s disability and defendant’s ultimate decision not to hire him. While “[t]he burden of establishing a prima facie case of disparate treatment is not onerous,” plaintiff still needs to show that “[]he applied for an available position for which []he was qualified, but was rejected under circumstances which give rise to an inference of unlawful discrimination.” Texas Dep’t of Cmty. Affs. v. Burdine, 450 U.S. 248, 253, (1981)3; see also Phipps v. Gary Drilling Co., 722 F. 3 The Burdine Court further elaborates on the significance of the prima facie case: “The prima facie case serves an important function in the litigation: it eliminates the most common nondiscriminatory reasons for the plaintiff’s rejection. [. . .] [T]he prima facie case raises an inference of discrimination only because we presume these acts, if Supp. 615, 619 (E.D. Cal. 1989) (Coyle, J.) (“This initial burden, however, is not an insubstantial one -- the prima facie case must be supported by evidence that gives rise to an inference of unlawful discrimination. Failure to produce specific facts that establish the existence of a prima facie case renders a grant of summary judgment appropriate. Mere assertions of discriminatory motive and intent are inadequate. [. . .] In other words, the evidence must be sufficient to identify actions which, if unexplained, give rise to an inference of discriminatory conduct.”) (citations and quotations omitted). Plaintiff’s own account of the interview process, taken at full face value, fails to provide any circumstantial evidence even hinting at discriminatory intent. Plaintiff’s interview notes, which postdate the actual interview by ten months, recount the detailed answers that he alleges to have given in response to the panel’s interview questions; directly challenge the veracity of Ramirez’s contemporaneous notes on plaintiff’s answers; express feeling positive about his prospects immediately thereafter; and finally speculate that “I AM LEFT TO WONDER IF THE FACT THAT I HAVE A DISABILITY AUTOMATICALLY PLACED ME IN THE ‘TROUBLE MAKER’ CATEGORY. PERHAPS, CEMEX SIMPLY DID NOT WANT TO DEAL WITH A PERSON WHO MAY REQUIRE ACCOMODATIONS IN THE WORK PLACE.” (Docket No. 35-9 at 3.) However, plaintiff offers nothing further to substantiate that suspicion. (Cf. Docket No. 25-3 at 45 (Q: “During the interview process with CEMEX INC., did

consideration of impermissible factors. Id. at 253-54 (citations and quotations omitted) (emphases added). anyone in a hiring or management level position make any comment to you, regardless of how seemingly insignificant, regarding your disability and/or their impression of your ability to do your job?” A: “NO”).) Plaintiff also seems to suggest that his low score is itself circumstantial evidence of discriminatory intent: “The fact [that defendant] gave [plaintiff] a low score in his interview is not a cure-all for discrimination. It is the discrimination.” (Opp’n at 9.) However, this not only begs the question; it misstates the relevant law. Setting aside possible subjective disagreements about how plaintiff performed, even the employer’s own objectively incorrect application of its internal process, is, without more, insufficient to establish the causal element of a prima facie discrimination case. See Jantz v. DeJoy, No. 222CV04702SVWRAO, 2023 WL 3555493 (C.D. Cal. Apr. 6, 2023) (“[E]ven if Defendant had incorrectly applied its own hiring standards or should have recognized that Plaintiff’s degrees and trainings merited a score higher than 0[], Plaintiff cannot simply show the employer’s decision was wrong, mistaken, or unwise [to establish a prima facie case of discrimination].”) (citations and quotations omitted) (emphases added); Weil v. Citizens Telecom Servs. Co., LLC, 922 F.3d 993, 1003 (9th Cir. 2019) (“[T]he plaintiff still must produce evidence, not just pleadings or argument. An employee’s self-assessment of his performance, though relevant, is not enough on its own to raise a genuine issue of material fact.”). As a final resort, plaintiff presents discrepancies in the record relating to whether Mr. Ramirez knew of plaintiff’s disability prior to the interview as themselves evidencing discriminatory intent. (See Opp’n at 10-11.) The discrepancies do no such thing. First, an employer’s mere knowledge of an employee’s disability does not, without more, establish a prima facie case of discrimination.4 Second, defendant’s actual knowledge of plaintiff’s disability during the interview process is not in dispute -- neither party disputes that at least Mr. Skulick, the Vice President of Operations for Cemex, knew about plaintiff’s disability beforehand. (See Docket No. 25-3 at 74.) And third, even if the court were to grant plaintiff’s assertions that Mr. Ramirez visited Teichert prior to the sale, met plaintiff, noticed his prosthetic during that meeting, recalled both this encounter and the fact of plaintiff’s disability leading up to plaintiff’s interview, and subsequently lied about all of this at deposition (Pl.’s Additional Undisputed Material Facts (Docket No. 35-1) Nos. 40-55), all that plaintiff would achieve is to undermine Mr. Ramirez’s credibility as a fact witness. Whether or not Mr. Ramirez lied about the pre-sale visit is immaterial to plaintiff’s instant claims because nothing in plaintiff’s account of that visit and his interactions with 4 See, e.g., Chisolm v. 7-Eleven, Inc., 383 F. Supp. 3d 1032, 1050-52 (S.D. Cal. 2019), aff’d, 814 F. App’x 194 (9th Cir. 2020) (summary judgment granted for defendant employer, as prima facie case not established even though disability disclosed during interview); Mattsson v. Home Depot, Inc., No. 11CV0533 AJB BLM, 2012 WL 2342948, at *2-3 (S.D. Cal. June 20, 2012) (termination a day after learning of medical condition not enough to establish prima facie case). Cf. McInteer v. Ashley Distribution Servs., Ltd., 40 F. Supp. 3d 1269 (C.D. Cal. 2014) (prima facie case established circumstantially by evidence showing, e.g., failure to apply standardized progressive discipline policy). nnn nnn ene ene EE IE IEE IIE OS I OD EE

Cemex personnel, like the rest of plaintiff’s case, suggests any kind of discriminatory intent that defendant brought to bear on its decision not to hire him. Accordingly, the court will grant summary judgment for defendant on plaintiff’s first four claims for disability discrimination under the ADA and FEHA,. ITI. Failure to Engage in FEHA Interactive Process (Claim 5) Both parties agree to the dismissal of plaintiff’s fifth claim, which alleges that defendant failed to participate in the FEHA’s interactive process. (See Mot. at 19-20; Opp’n at 6; Reply (Docket No. 36) at 7-8.) Accordingly, the court will dismiss this claim with prejudice. IT IS THEREFORE ORDERED that defendant’s motion for summary judgment (Docket No. 25) be, and the same hereby is, GRANTED. The clerk of court shall enter judgment for defendant and close the case. Dated: July 9, 2024 betta 2d. bt-—~ UNITED STATES DISTRICT JUDGE