Nathan Barr v. Autozoners, LLC; Autozone, Inc.; Dwayne Johnson; and Does 1 to 100, inclusive

• Court: District Court, E.D. California
• Decided: February 2, 2026
• Docket: 2:23-cv-02319
• Status: Unknown

Opinion

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8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 NATHAN BARR, No. 2:23-cv-02319 WBS AC 13 Plaintiff, 14 v. MEMORANDUM AND ORDER RE: 15 DEFENDANTS’ MOTION FOR AUTOZONERS, LLC; AUTOZONE, SUMMARY JUDGMENT 16 INC.; DWAYNE JOHNSON, and DOES 1 to 100, inclusive, 17 Defendants. 18 19 20 ----oo0oo---- 21 Plaintiff Nathan Barr brought this employment 22 discrimination action under California’s Fair Employment & 23 Housing Act, Cal. Gov. Code § 12940, et seq. (“FEHA”), against 24 defendants Autozoners, LLC and AutoZone, Inc. (together, 25 “Autozone”); Dwayne Johnson; and Does 1 to 100, inclusive. 26 (Docket No. 1-1.) Defendants now move for summary judgment, or, 27 in the alternative, partial summary judgment. (Docket No. 24.) 28 1 Plaintiff Nathan Barr began working as a customer 2 service representative at Autozone in March 2022. (Docket No. 1- 3 1 (“Compl.”) at 6.) Relevant to his claims here, plaintiff is a 4 gay, African American man. (Id. at 7.) 5 In or around April 2022, Barr and his supervisor, 6 Dwayne Uhl1, were engaged in a conversation regarding food. 7 (Id.) During this conversation, Uhl, a “Caucasian male,” 8 allegedly told Barr that he “kn[ew] [Barr’s] kind likes 9 watermelon.” (Id.) Barr was “deeply offended” by Uhl’s comment. 10 (Id.) 11 Shortly thereafter, Barr reported Uhl’s comment to a 12 manager, Tyra Mariscal, who responded by stating “oh that’s just 13 how [Uhl] jokes.” (Id.; Docket No. 24-1 at 6.) Uhl continued to 14 make inappropriate remarks: Upon overhearing a conversation Barr 15 was having with another coworker regarding his boyfriend, Uhl 16 allegedly “looked at Barr with disgust” and said “ew, you’re gay, 17 you’re not supposed to be gay.” (Compl. at 7.) Barr reported 18 this incident to Mariscal, too. (Id. at 8.) 19 On another occasion, Barr was discussing with his 20 coworkers how he was unable to eat due to a toothache. (Id.) 21 Uhl interjected by saying “well I know you can eat some fried 22 chicken or watermelon.” (Id.) In distress, Barr reported this 23 comment to Mariscal, who informed him that he could take the rest 24

25 1 In his complaint, plaintiff refers to his supervisor as “Dwayne Johnson.” (See Compl.) Defendants refer to “Dwayne 26 Johnson” as “Dwayne Uhl” in their motion for summary judgment 27 (see Docket No. 24-1), and plaintiff in turn refers to “Dwayne Johnson” as “Dwayne Uhl” in his opposition (see Docket No. 26.) 28 The court refers to plaintiff’s supervisor as “Dwayne Uhl.” 1 of the day off and agreed to pay him for the remainder of his 2 shift. (Id.) 3 Lastly, Barr alleges that, while he was standing at a 4 cash register, Uhl told him that he “look[s] like [he] would have 5 a cousin named Shaniqua.” (Id.) 6 After receiving “no response from his supervisors” 7 regarding his complaints of Uhl’s comments, on July 6, 2022, Barr 8 wrote a letter detailing the “harassment he had been subjected 9 to” to district manager Devin Galyean. (Id.) Barr also 10 discussed Uhl’s comments with Galyean directly; during this 11 conversation, Barr stated that he would be willing to transfer to 12 Autozone locations in South Sacramento. (Docket No. 26 at 13.) 13 Galyean, in turn, emailed human resources manager Isaac Chavez 14 about Uhl’s behavior. (Id.) 15 Barr alleges that, after complaining of Uhl’s 16 misconduct to Galyean, he was involuntarily transferred to an 17 Autozone store in Folsom, California, with a longer commute to- 18 and-from his residence. (Compl. at 8; Docket No. 26 at 15.) He 19 requested Galyean to reassign him to a more convenient Autozone 20 location, but after “waiting for weeks” for such a transfer, he 21 was “forced to resign from his position at Autozone.” (Compl. at 22 8.) The instant action followed. 23 I. Legal Standard 24 Summary judgment is proper “if the pleadings, the 25 discovery and disclosure materials on file, and any affidavits 26 show that there is no genuine issue as to any material fact and 27 that the movant is entitled to judgment as a matter of law.” Fed. 28 1 R. Civ. P. 56(c). A material fact is one that could affect the 2 outcome of the suit, and a genuine issue is one that could permit 3 a reasonable jury to enter a verdict in the non-moving party's 4 favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 5 (1986). 6 The party moving for summary judgment bears the initial 7 burden of establishing the absence of a genuine issue of material 8 fact, which they can satisfy by presenting evidence that negates 9 an essential element of the non-moving party's case. See Celotex 10 Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). 11 “Once the moving party meets its initial burden, the 12 non-moving party must “go beyond the pleadings and by her own 13 affidavits, or by ‘the depositions, answers to interrogatories, 14 and admissions on file,’ designate ‘specific facts showing that 15 there is a genuine issue for trial.’” Burch v. Regents of Univ. 16 of California, 433 F. Supp. 2d 1110, 1125 (E.D. Cal. 2006) 17 (Shubb, J.) (quoting Celotex Corp., 477 U.S. at 324). 18 II. Plaintiff’s FEHA Claims 19 Plaintiff brings four claims against defendants under 20 FEHA: (1) discrimination on the bases of race/color and sexual 21 orientation; (2) hostile work environment on the bases of 22 race/color and sexual orientation; (3) retaliation for engaging 23 in protected activity; and (4) failure to prevent discrimination, 24 retaliation, and harassment. (Docket No. 1-1.) Defendants move 25 for summary judgment on each claim. (Docket No. 24.) 26 a. Discrimination Claim 27 To establish a prima facie case for discrimination 28 1 under FEHA, Barr “must provide evidence that (1) he was a member 2 of a protected class, (2) he was qualified for the position he 3 sought or was performing competently in the position he held, (3) 4 he suffered an adverse employment action, such as termination, 5 demotion, or denial of an available job, and (4) some other 6 circumstance suggests discriminatory motive.” Guz v. Bechtel 7 Nat. Inc., 24 Cal. 4th 317, 355, 8 P.3d 1089, 1113 (2000). 8 The parties dispute whether Barr suffered an adverse 9 employment action. (Compare Docket No. 24-1 at 10-16 with Docket 10 No. 26 at 25-27.) An adverse employment action is one that 11 “materially affects the terms, conditions, or privileges of 12 employment.” Jones v. Lodge at Torrey Pines P'ship, 42 Cal. 4th 13 1158, 1168, 177 P.3d 232 (2008) (citation modified). “An adverse 14 employment action is not limited to ‘ultimate’ employment acts, 15 such as hiring, firing, demotion or failure to promote, but also 16 includes the entire spectrum of employment actions that are 17 reasonably likely to adversely and materially affect an 18 employee's job performance or opportunity for career 19 enhancement.” Washington v. California City Correction Ctr., 871 20 F. Supp. 2d 1010, 1028 (E.D. Cal. 2012) (Ishii, J.) (citation 21 modified). That said, “the mere fact that an employee is 22 displeased by an employer's act or omission does not elevate that 23 act or omission to the level of a materially adverse employment 24 action.” Thomas v. Dep't of Corr., 77 Cal. App. 4th 507, 511, 91 25 Cal. Rptr. 2d 770 (2000). 26 Barr argues that Autozone’s alleged failure to transfer 27 him to a different store location and constructive discharge from 28 1 his position constitute adverse employment actions. (See Docket 2 No. 26 at 25-27.) He also alleges that the reduction in work 3 hours he experienced after he complained of Uhl’s behavior 4 constitutes an adverse employment action. (See Compl. at 8.) 5 None of Barr’s theories avails. 6 i. Transfer 7 Barr states in his opposition to Autozone’s motion for 8 summary judgment that “issues of fact” exist as to whether he was 9 “offered a transfer” and “contacted about a transfer.” (Docket 10 No. 26 at 26.) But Barr admits at least twice that he was 11 transferred to a different Autozone location, which he worked at 12 for one day. (Compl. at 8; Docket No. 26-2 at 17.) 13 It is difficult to conceive of how this transfer to 14 another location – which Barr himself requested – constitutes an 15 adverse employment action. While Barr complains that the 16 Autozone store to which he was transferred to was “very 17 inconvenient” (Docket No. 26 at 15), this store was a mere 2.3 18 miles farther from Barr’s residence than his preferred store 19 (Docket No. 26-2 at 17-18), and Barr does not argue that his 20 responsibilities were in any way diminished upon his transfer. 21 See, e.g., McRae v. Dep't of Corr. & Rehab., 142 Cal. App. 4th 22 377, 393, 48 Cal. Rptr. 3d 313, 325 (2006) (“A transfer is not an 23 adverse employment action when it is into a comparable position 24 that does not result in substantial and tangible harm.”); Nidds 25 v. Schindler Elevator Corp., 113 F.3d 912, 919 (9th Cir. 1996) 26 (declining to find adverse employment action where employee was 27 transferred to service route including “allegedly high-crime” 28 1 area); cf. E.E.O.C. v. Sw. Furniture of Wisconsin, LLC, 703 F. 2 Supp. 2d 971, 975 (D. Ariz. 2010) (in Title VII context, “an 3 increase in commute resulting from a transfer does not, in and of 4 itself, constitute an adverse employment action.”)2. 5 Accordingly, Barr has failed to establish that his 6 transfer constituted an adverse employment action. 7 ii. Constructive Discharge 8 Barr next argues that his constructive discharge from 9 Autozone constituted an adverse employment action. To “establish 10 a constructive discharge, an employee must plead and prove, by . 11 . . [a] preponderance of the evidence . . ., that the employer 12 either intentionally created or knowingly permitted working 13 conditions that were so intolerable or aggravated at the time of 14 the employee's resignation that a reasonable employer would 15 realize that a reasonable person in the employee's position would 16 be compelled to resign.” Turner v. Anheuser-Busch, Inc., 7 Cal. 17 4th 1238, 1251, 876 P.2d 1022, 1029 (1994). “[T]he standard by 18 which a constructive discharge is determined is an objective one— 19 the question is whether a reasonable person faced with the 20 allegedly intolerable employer actions or conditions of 21 employment would have no reasonable alternative except to quit.” 22 Id. at 1248 (citation modified). 23 “An employee may not simply ‘quit and sue,’ claiming to 24 2 “Claims of discrimination under FEHA and Title VII may be 25 assessed under the same standards, because Title VII and FEHA operate under the same guiding principles.” Eaglesmith v. Ray, 26 No. 2:11-cv-00098 JAM, 2011 WL 4738338, at *2 (E.D. Cal. Oct. 6, 27 2011) (citing Kohler v. Inter-Tel Technologies, 244 F.3d 1167, 1172-73 (9th Cir. 2001)). Case law interpreting Title VII is 28 thus relevant here. 1 have been constructively discharged”; instead, “[t]he facts must 2 support a finding that the resignation was ‘coerced,’ rather than 3 ‘simply one rational option for the employee.’” Vasquez v. 4 Franklin Mgmt. Real Est. Fund, Inc., 222 Cal. App. 4th 819, 827, 5 166 Cal. Rptr. 3d 242, 247 (2013) (quoting Turner, 7 Cal. 4th at 6 1246). Further, to establish constructive discharge, “[a] 7 plaintiff must allege that the discriminatory conduct was severe 8 and pervasive, not just offhand comments or isolated incidents.” 9 Hwang v. Nat'l Tech. & Eng'g Sols. of Sandia, LLC, No. 20-cv- 10 08551 SK, 2022 WL 3566444, at *8 (N.D. Cal. Aug. 18, 2022), 11 aff'd, No. 22-16396, 2024 WL 208139 (9th Cir. Jan. 19, 2024). 12 Barr alleges that, on four occasions, Uhl made racist 13 or homophobic comments towards him at work. (See generally 14 Compl.). While Uhl’s comments are reprehensible, these 15 “separate, isolated incidents are insufficient to create such 16 intolerable working conditions needed to sustain a constructive 17 discharge claim,” Rizvanovic v. Amazon.com Servs., LLC, No. 1:21- 18 CV-01804 JLT CDB, 2024 WL 1886495, at *7 (E.D. Cal. Apr. 30, 19 2024), especially when viewed in conjunction with Barr’s 20 subsequent transfer to a location free from Uhl (see Compl. at 21 8). 22 Moreover, the facts do not support that Barr’s 23 resignation was “coerced,” instead of “simply one rational 24 option.” See Vasquez, 222 Cal. App. 4th at 827. On July 12, 25 2022 -- six days after he complained of Uhl’s comments to Galyean 26 -- Barr was hired by Goodwill for a full-time position at a 27 higher hourly salary than he received at Autozone. (Docket No. 28 1 26-2 at 6, 19-20.) Barr ceased showing up for shifts at any 2 Autozone location the following day. (Id. at 20.) Considered 3 together, these facts suggest that Barr’s resignation was not 4 “coerced”; rather, Barr selected the “rational option” of 5 resigning from his employment at Autozone for a higher-paying job 6 elsewhere. See Vasquez, 222 Cal. App. 4th at 837. 7 Accordingly, Barr has not established that he was 8 constructively discharged from his position at Autozone. 9 iii. Reduction in Hours 10 In his complaint, Barr briefly alleges that after he 11 raised concerns about Uhl’s comments, his work hours were 12 reduced. (Compl. at 8.) While “[a] reduction in work hours may 13 constitute an adverse employment action,” Violan v. On Lok Senior 14 Health Servs., No. 12–cv–05739 WHO, 2013 WL 6907153, at *7 (N.D. 15 Cal. Dec. 31, 2013) (collecting cases), Barr admits that his work 16 hours regularly varied and that he incurred his peak work hours 17 shortly after complaining of Uhl’s behavior. (Docket No. 26-2 at 18 21-22.) Thus, any alleged fluctuation in Barr’s work hours did 19 not constitute an adverse employment action here. 20 Because Barr has failed to establish an adverse 21 employment action, his discrimination claim fails. See Guz, 24 22 Cal. 4th at 355; see also Brown v. New York Life Ins. Co., 147 F. 23 App'x 640, 642 (9th Cir. 2005) (affirming district court’s 24 dismissal of FEHA discrimination claim because plaintiff suffered 25 no adverse employment action). 26 b. Hostile Work Environment Harassment Claim 27 “To establish a prima facie case of harassment,” Barr 28 1 must show that “(1) []he is a member of a protected class; (2) 2 []he was subjected to unwelcome harassment; (3) the harassment 3 was based on h[is] protected status; (4) the harassment 4 unreasonably interfered with h[is] work performance by creating 5 an intimidating, hostile, or offensive work environment; and (5) 6 defendants are liable for the harassment.” Galvan v. Dameron 7 Hosp. Assn., 37 Cal. App. 5th 549, 563, 250 Cal. Rptr. 3d 16, 28 8 (2019). The parties dispute only whether Barr has shown that the 9 conduct he experienced amounted to a hostile work environment. 10 (Docket Nos. 24-1 at 16-20; 26 at 16-20.) 11 Under FEHA, “an employee claiming harassment based upon 12 a hostile work environment must demonstrate that the conduct 13 complained of was severe enough or sufficiently pervasive to 14 alter the conditions of employment and create a work environment 15 that qualifies as hostile or abusive to employees because of 16 their” protected status. Miller v. Dep't of Corr., 36 Cal. 4th 17 446, 462, 115 P.3d 77, 87 (2005). 18 The California legislature amended the California 19 Government Code to provide that, as of January 1, 2019, “[a] 20 single instance of harassing conduct is sufficient to create a 21 triable issue regarding the existence of a hostile work 22 environment if the harassing conduct . . . unreasonably 23 interfered with the plaintiff’s work performance or created an 24 intimidating, hostile, or offensive working environment,” and 25 that “[h]arassment cases are rarely appropriate for disposition 26 on summary judgment.” Cal. Gov. Code. §§ 12923(b), (e). In 27 light of these recent amendments, “[a] California appellate court 28 1 applying section 12923 has held that cases that focused on the 2 ‘concerted pattern of harassment of a repeated, routine or a 3 generalized nature’ [are] no longer good law in determining what 4 conduct creates a hostile work environment on a summary judgment 5 motion.” Wilson v. City of Fresno, 763 F. Supp. 3d 1073, 1102 6 (E.D. Cal. 2025) (Sherriff, J.) (quoting Beltran v. Hard Rock 7 Licensing, Inc., 95 Cal. App. 5th 865, 135, 315 Cal. Rptr. 842, 8 855 (2023)). 9 This is not the “rare[]” instance in which a harassment 10 case is “appropriate for disposition on summary judgment.” Cal. 11 Gov. Code § 12923(e). Uhl, a supervisor in Barr’s work 12 environment, told Barr that he knew Barr’s “kind likes 13 watermelon,” (Compl. at 7), expressed disgust at Barr being gay 14 and told Barr that he was “not supposed to be gay,” (id.), told 15 Barr that he could “eat some fried chicken or watermelon,” 16 (Compl. at 8), and told Barr that he “look[ed] like [he] would 17 have a cousin named Shaniqua,” (id.). Courts in this circuit 18 have declined to grant summary judgment in favor of employers on 19 FEHA harassment claims when confronted with similar 20 circumstances. See, e.g., Wilson, 763 F. Supp. 3d at 1102 21 (declining to grant summary judgment in favor of employer where 22 supervisor made several racially derogatory comments to 23 subordinate); Batiste v. City of Richmond, No. 22-cv-01188 AMO, 24 2023 WL 8191088, at *5 (N.D. Cal. Nov. 27, 2023), motion for 25 relief from judgment denied, No. 22-cv-01188 AMO, 2024 WL 1485843 26 (N.D. Cal. Apr. 4, 2024) (declining to grant summary judgment in 27 favor of employer where coworkers, including supervisor, called 28 1 plaintiff racially derogatory nickname multiple times); Few v. 2 Lenovo (United States), Inc., No. 4:20-cv-03115 KAW, 2021 WL 3 5973053, at *9-10 (N.D. Cal. Dec. 14, 2021) (declining to grant 4 summary judgment in favor of employer where employee made three 5 racially derogatory comments to African American plaintiff, 6 including asking him whether he liked “sweet tea with [his] fried 7 chicken”). 8 Accordingly, the court will deny Autozone’s motion for 9 summary judgment as to Barr’s FEHA harassment claim. 10 c. Retaliation Claim 11 FEHA’s retaliation provision provides that it is 12 unlawful “[f]or any employer . . . or person to discharge, expel, 13 or otherwise discriminate against any person because the person 14 has opposed any practices forbidden under this part or because 15 the person has filed a complaint, testified, or assisted in any 16 proceeding under this part.” Cal. Gov. Code § 12940(h). “To 17 establish a prima facie case of retaliation, a plaintiff must 18 show that []he engaged in a protected activity, that []he was 19 thereafter subjected to adverse employment action by h[is] 20 employer, and there was a causal link between the two.” Addy v. 21 Bliss & Glennon, 44 Cal. App. 4th 205, 217, 51 Cal. Rptr. 2d 642, 22 649 (1996) (citation modified). 23 As discussed with regard to his discrimination claim, 24 Barr has failed to establish that he was subjected to an adverse 25 employment action at any point during his employment with 26 Autozone. Thus, his retaliation claim fails, too. See id.; see 27 also Thomas v. Spencer, 294 F. Supp. 3d 990, 1000 (D. Haw. 2018) 28 1 (finding plaintiff’s retaliation claim failed at summary judgment 2 stage due to lack of adverse employment action). 3 d. Failure to Prevent Claim 4 Autozone argues that because Barr’s discrimination, 5 harassment, and retaliation claims fail, “he cannot proceed on 6 his derivative claim for failure to prevent FEHA violations.” 7 (Docket No. 24-1 at 20.) A “failure to prevent” claim under FEHA 8 is “essentially derivative” of the underlying claim. Achal v. 9 Gate Gourmet, Inc., 114 F. Supp. 3d 781, 804 (N.D. Cal. 2015) 10 (citation modified). Correspondingly, because Barr’s harassment 11 claim survives, so, too, does his failure to prevent harassment 12 claim. See id.; see also Wilson, 763 F. Supp. 3d at 1109 13 (finding that because plaintiff’s FEHA retaliation and harassment 14 claims survived summary judgment, plaintiff’s failure to prevent 15 retaliation and harassment claim also survived summary judgment). 16 e. Punitive Damages 17 To obtain punitive damages on his surviving claims, 18 Barr must prove by “clear and convincing evidence” that an 19 “officer, director, or managing agent” of Autozone “authorized or 20 ratified the wrongful conduct for which the damages are awarded 21 or was personally guilty of oppression, fraud, or malice.” Cal. 22 Civ. Code §§ 3294(a), (b). Barr argues that Galyean and Chavez 23 were managing agents who ratified Uhl’s wrongful conduct. (See 24 Docket No. 26 at 21-24.) 25 “Corporate liability for punitive damages depends on 26 the extent to which an employee exercises substantial 27 discretionary authority over decisions that ultimately determine 28 1 corporate policy, rather than on an employee's managerial level.” 2 Almanza v. Wal-Mart Stores, Inc., No. 06-0553 WBS GGH, 2007 WL 3 2274927, at *4 (E.D. Cal. Aug. 7, 2007). Thus, to demonstrate 4 that an employee is a managing agent, a plaintiff seeking 5 punitive damages must “show that the employee exercised 6 substantial discretionary authority over significant aspects of a 7 corporation’s business.” White v. Ultramar, Inc., 21 Cal. 4th 8 563, 577, 981 P.2d 944, 954 (1999). “[M]ere supervisory status” 9 is insufficient. Id. at 575. Rather, a managing agent’s 10 decisionmaking must “determine[] corporate polic[ies],” id. at 11 567, that “affect a substantial portion of the company and that 12 are the type likely to come to the attention of corporate 13 leadership.” Roby v. McKesson Corp., 47 Cal. 4th 686, 715, 219 14 P.3d 749, 767 (2009), as modified (Feb. 10, 2010) (elaborating on 15 White, 21 Cal. 4th 563). “The question of whether a corporate 16 employee” constitutes a managing agent “is highly factual.” 17 Barrous v. BP P.L.C., No. 10-cv-02944 LHK, 2011 WL 4595205, at 18 *16 (N.D. Cal. Oct. 3, 2011). 19 At this stage, triable issues of fact remain regarding 20 whether Galyean or Chavez possessed the requisite “discretionary 21 authority” over “formal” corporate policies that “affect a 22 substantial portion of the company.” See Roby, 47 Cal. 4th at 23 715. As to Galyean, Barr argues that because the court in White 24 found that a manager who oversaw eight stores and sixty-five 25 employees was a managing agent, Galyean must also be a managing 26 agent because he oversaw more stores and employees and was also 27 tasked with enforcing corporate policy at the stores he 28 nnn enn nnn enn non nnn en EE I OD supervised (Docket No. 26 at 22). See White, 21 Cal. 4th at 577. And as to Chavez, Barr argues that he could propose changes to certain written policies and procedures based on a statement he made during his deposition (see Docket Nos. 26 at 23, 26-2 at ° 23), suggesting his ability to dictate corporate policies, see ° Roby, 47 Cal. 4th at 715. Further, the court observes that both employees’ titles included the word “manager.” Cf. Barrous, 2011 WL 4595205, at *17 (noting that employee’s title as “manager,” ° among other things, “could give rise to the inference that he is 10 a managing agent.”). Absent additional, factual information regarding Galyean’s and Chavez’s precise duties and their authorities tS inherent to such duties, the court cannot conclude that no genuine issues of material fact exist as to whether these employees were managing agents of Autozone. Accordingly, the re court will deny defendants’ motion for summary judgment as to plaintiff’s punitive damages claim. IT IS THEREFORE ORDERED that defendants’ motion for summary judgment (Docket No. 24) be, and the same hereby is, 20 GRANTED as to plaintiff’s discrimination and retaliation claims. IT IS FURTHER ORDERED that defendants’ motion for summary judgment (Docket No. 24) be, and the same hereby is, DENIED as to plaintiff’s harassment, failure to prevent 28 harassment, and punitive damages claims. °° Dated: February 2, 2026 tleom ah. A. be—~ 26 WILLIAM B. SHUBB 27 UNITED STATES DISTRICT JUDGE 28 15