(PS) Bunio v. Victory Packaging, L.P.

• Court: District Court, E.D. California
• Decided: September 1, 2020
• Docket: 2:18-cv-00897
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 VINCE BUNIO, No. 2:18-cv-897-KJM-EFB PS 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 VICTORY PACKAGING, L.P., 15 Defendant.

17 18 This case was before the court on February 5, 2020, for hearing on defendant Victory 19 Packaging, L.P.’s motion for summary judgment or, in the alternative, partial summary judgment 20 (ECF No. 22) and plaintiff’s motion under Federal Rule of Civil Procedure (“Rule”) 56(d) to 21 defer consideration of defendant’s motion (ECF No. 24).1 Attorneys Lara de Leon and Paul 22 Smith appeared on behalf of defendant; plaintiff appeared pro se. 23 At the hearing, the court granted plaintiff’s Rule 56(d) request to postpone resolution of 24 the summary judgment motion and provided him until February 21, 2020 to obtain evidence from 25 third-party Michael Michelucci and to file a brief addressing how any obtained evidence defeats 26 defendant’s motion for summary judgment. See ECF No. 30. Plaintiff has since submitted a 27 1 This case, in which plaintiff is proceeding pro se, is before the undersigned pursuant to 28 Eastern District of California Local Rule 302(c)(21). See 28 U.S.C. § 636(b)(1). 1 letter explaining that he was not able to obtain any additional evidence.2 Plaintiff does not seek 2 additional time to conduct discovery, and defendant’s motion for summary judgment is now 3 ready for decision. For the reasons provided below, it is recommended defendant’s motion be 4 granted. 5 I. Background 6 According to the complaint, plaintiff began working as a sales representative for 7 defendant in December 2014. Compl. (ECF No. 1-2) ¶ 7. At that time, plaintiff was 60 years old. 8 Id. During the interview process, management allegedly asked plaintiff how many more years he 9 intended to work before retiring. Id. ¶ 8. Plaintiff explained that he intended to work for at least 10 another 15 years and hoped to make at least $400,000 a year in commissions, which management 11 stated he would be able to achieve with the company’s training and support. Id. ¶¶ 8, 9. 12 Plaintiff claims, however, that after he commenced his employment, he was assigned only 13 three items to sell—tape, corrugated products, and packing film—and did not receive proper 14 training and support. Id. ¶¶ 10-11. Instead, defendant allegedly implemented a policy devoting 15 all training and support to employees referred to as “Titans”—which are individuals in their mid- 16 twenties with college degrees and, preferably, a background in sports. Id. ¶¶ 12-13. The policy 17 allegedly was part of defendant’s Chief Operating Officer’s plan to cease hiring “old” sales 18 representatives and instead grow the sales division with “Titans.” Id. ¶ 13. 19 On March 1, 2016, plaintiff’s employment was terminated purportedly due to poor 20 performance and productivity. Id. ¶¶ 16, 27. Plaintiff claims that his performance and 21 productivity were artificially deflated due to defendant’s decision to focus training efforts on the 22 younger “Titans,” while failing to provide him and other older individuals similar training and 23 support. Id. ¶¶ 27-28-29. Accordingly, he claims that his termination was motivated, at least in 24 part, by his age. Id. ¶ 16.

25 2 In the letter’s final paragraph, plaintiff states that he does not have the resources or legal 26 knowledge to pursue this action to trial. He also refers to his letter as a “withdrawal letter.” Plaintiff, however, has not moved to voluntarily dismiss this matter, nor have the parties’ filed a 27 stipulation for voluntary dismissal. See Fed. R. Civ. P. 41(a) (once a motion for summary judgment has been filed, an action may be voluntarily dismissed only stipulation of dismissal 28 signed by all appearing parties or leave of court) 1 The complaint alleges three state law claims: (1) age discrimination in violation of 2 California Fair Employment and Housing Act; (2) wrongful termination in violation of public 3 policy; and (3) failure to prevent discrimination in violation of California Government Code 4 § 12940(k).3 Id. at 7-13. 5 II. Summary Judgment Standard 6 Summary judgment is appropriate when there is “no genuine dispute as to any material 7 fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Summary 8 judgment avoids unnecessary trials in cases in which the parties do not dispute the facts relevant 9 to the determination of the issues in the case, or in which there is insufficient evidence for a jury 10 to determine those facts in favor of the nonmovant. Crawford–El v. Britton, 523 U.S. 574, 600 11 (1998); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–50 (1986); Nw. Motorcycle Ass’n v. 12 U.S. Dep’t of Agric., 18 F.3d 1468, 1471–72 (9th Cir. 1994). At bottom, a summary judgment 13 motion asks whether the evidence presents a sufficient disagreement to require submission to a 14 jury. 15 The principal purpose of Rule 56 is to isolate and dispose of factually unsupported claims 16 or defenses. Celotex Cop. v. Catrett, 477 U.S. 317, 323-24 (1986). Thus, the rule functions to 17 “‘pierce the pleadings and to assess the proof in order to see whether there is a genuine need for 18 trial.’” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) 19 (quoting Fed. R. Civ. P. 56(e) advisory committee’s note on 1963 amendments). Procedurally, 20 under summary judgment practice, the moving party bears the initial responsibility of presenting 21 the basis for its motion and identifying those portions of the record, together with affidavits, if 22 any, that it believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 23 U.S. at 323; Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001) (en banc). If the moving 24 party meets its burden with a properly supported motion, the burden then shifts to the opposing 25 party to present specific facts that show there is a genuine issue for trial. Fed. R. Civ. P. 56(e); 26 Anderson, 477 U.S. at 248; Auvil v. CBS “60 Minutes”, 67 F.3d 816, 819 (9th Cir. 1995). 27 3 This action, which was originally filed in the Sacramento County Superior Court, was 28 removed to this court based on diversity jurisdiction. ECF No. 1. 1 A clear focus on where the burden of proof lies as to the factual issue in question is crucial 2 to summary judgment procedures. Depending on which party bears that burden, the party seeking 3 summary judgment does not necessarily need to submit any evidence of its own. When the 4 opposing party would have the burden of proof on a dispositive issue at trial, the moving party 5 need not produce evidence which negates the opponent’s claim. See e.g., Lujan v. National 6 Wildlife Fed’n, 497 U.S. 871, 885 (1990). Rather, the moving party need only point to matters 7 which demonstrate the absence of a genuine material factual issue. See Celotex, 477 U.S. at 323- 8 24 (“[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue, a 9 summary judgment motion may properly be made in reliance solely on the ‘pleadings, 10 depositions, answers to interrogatories, and admissions on file.’”). Indeed, summary judgment 11 should be entered, after adequate time for discovery and upon motion, against a party who fails to 12 make a showing sufficient to establish the existence of an element essential to that party’s case, 13 and on which that party will bear the burden of proof at trial. See id. at 322. In such a 14 circumstance, summary judgment must be granted, “so long as whatever is before the district 15 court demonstrates that the standard for entry of summary judgment . . . is satisfied.” Id. at 323. 16 To defeat summary judgment the opposing party must establish a genuine dispute as to a 17 material issue of fact. This entails two requirements. First, the dispute must be over a fact(s) that 18 is material, i.e., one that makes a difference in the outcome of the case. Anderson, 477 U.S. at 19 248 (“Only disputes over facts that might affect the outcome of the suit under the governing law 20 will properly preclude the entry of summary judgment.”). Whether a factual dispute is material is 21 determined by the substantive law applicable for the claim in question. Id. If the opposing party 22 is unable to produce evidence sufficient to establish a required element of its claim that party fails 23 in opposing summary judgment. “[A] complete failure of proof concerning an essential element 24 of the nonmoving party’s case necessarily renders all other facts immaterial.” Celotex, 477 U.S. 25 at 322. 26 Second, the dispute must be genuine. In determining whether a factual dispute is genuine 27 the court must again focus on which party bears the burden of proof on the factual issue in 28 question. Where the party opposing summary judgment would bear the burden of proof at trial on 1 the factual issue in dispute, that party must produce evidence sufficient to support its factual 2 claim. Conclusory allegations, unsupported by evidence are insufficient to defeat the motion. 3 Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Rather, the opposing party must, by affidavit 4 or as otherwise provided by Rule 56, designate specific facts that show there is a genuine issue 5 for trial. Anderson, 477 U.S. at 249; Devereaux, 263 F.3d at 1076. More significantly, to 6 demonstrate a genuine factual dispute the evidence relied on by the opposing party must be such 7 that a fair-minded jury “could return a verdict for [him] on the evidence presented.” Anderson, 8 477 U.S. at 248, 252. Absent any such evidence there simply is no reason for trial. 9 The court does not determine witness credibility. It believes the opposing party’s 10 evidence and draws inferences most favorably for the opposing party. See id. at 249, 255; 11 Matsushita, 475 U.S. at 587. Inferences, however, are not drawn out of “thin air,” and the 12 proponent must adduce evidence of a factual predicate from which to draw inferences. American 13 Int’l Group, Inc. v. American Int’l Bank, 926 F.2d 829, 836 (9th Cir. 1991) (Kozinski, J., 14 dissenting) (citing Celotex, 477 U.S. at 322). If reasonable minds could differ on material facts at 15 issue, summary judgment is inappropriate. See Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th 16 Cir. 1995). On the other hand, “[w]here the record taken as a whole could not lead a rational trier 17 of fact to find for the nonmoving party, there is no ‘genuine issue for trial.’” Matsushita, 475 18 U.S. at 587 (citation omitted); Celotex, 477 U.S. at 323 (if the evidence presented and any 19 reasonable inferences that might be drawn from it could not support a judgment in favor of the 20 opposing party, there is no genuine issue). Thus, Rule 56 serves to screen cases lacking any 21 genuine dispute over an issue that is determinative of the outcome of the case. 22 III. Discussion 23 A. FEHA 24 Plaintiff first claims that he was terminated because of his age in violation of the FEHA. 25 ECF No. 1-2 at 7-9. Under the California FEHA, employers are prohibited from discharging 26 employees based on their age. Merrick v. Hilton Worldwide, Inc., 867 F.3d 1139, 1145 (9th Cir. 27 2017). In assessing age discrimination claims under the FEHA, California courts have adopted 28 the three-part burden shifting test articulated by the United States Supreme Court in McDonnell 1 Douglas Corp. v. Green, 411 U.S. 792 (1973). Guz v. Bechtel Nat. Inc., 24 Cal. 4th 317, 354 2 (2000). Under that test, the initial burden is on the plaintiff to establish a prima facie case of age 3 discrimination. Merrick, 867 F.3d at 1145. Id. If that showing is made, the burden then shifts to 4 the employer to articulate a legitimate, non-discriminatory reason for its decision. Id. at 1145-46. 5 Once the employer does so, the plaintiff bears the burden of proving that the articulated reason 6 was merely pretext for a discriminatory motive. Id. at 1146. 7 1. Prime Facie Case 8 To establish a prime facie case of age discrimination under the FEHA, plaintiff must 9 submit evidence establishing “he was (1) at least forty years old, (2) performing his job 10 satisfactorily, (3) discharged, and (4) either replaced by substantially younger employees with 11 equal or inferior qualifications or discharged under circumstances otherwise giving rise to an 12 inference of discrimination.” Id. at 1146; see Schechner v. KPIX–TV, 686 F.3d 1018, 1023 (9th 13 Cir. 2012); Diaz v. Eagle Produce Ltd. P’ship, 521 F.3d 1201, 1207 (9th Cir. 2008). 14 Here, plaintiff has submitted no evidence in opposition to defendant’s motion. Although 15 plaintiff is not required to produce direct evidence of discrimination, at a minimum he must 16 produce some evidence from which a jury could reasonably infer that discriminatory animus 17 motivated its actions. Wallis v. J.R. Simplot Co., 26 F.3d 885, 889-90 (9th Cir. 1994). Because 18 he has failed to make that showing, defendant is entitled to summary judgment on plaintiff’s 19 FEHA claim. 20 2. Legitimate, Non-Discriminatory Reason 21 Further, even assuming a prime facie case defendant has submitted evidence 22 demonstrating that plaintiff’s employment was terminated for legitimate, non-discriminatory 23 reasons. Specifically, defendant’s evidence reflects that plaintiff’s employment was terminated as 24 part of a reduction-in-workforce, under which plaintiff was selected for termination due to poor 25 performance. 26 Defendant’s evidence reflects that plaintiff began working as a Local Sales Representative 27 (“LSR”) at defendant’s Tracy, California branch in December 2014. Decl. of Justyn Pak (ECF 28 No. 22-5) ¶¶ 2-3; Declaration of Holly Flaniken (ECF No. 22-14) ¶ 4. He was initially offered a 1 base salary with the expectation that after he generated enough sales, his compensation would 2 transition to being based solely of commissions from his sales. ECF No. 22-5 ¶ 3. But only two 3 months after commencing his employment, management recommended dismissing plaintiff due 4 to poor work performance. Decl. of Justyn Pak (ECF No. 22-5) ¶ 16, Ex. C. Defendant declined 5 to terminate plaintiff’s position at that time, instead deciding to give him given additional time to 6 improve his performance. Id. ¶ 17. 7 In February 2016, defendant began to implement a nationwide reduction-in-workforce 8 (“RIF”). As part of the RIF, 36 employees, including 12 LSRs, were let go. ECF No. 22-14 ¶ 12, 9 Ex. J. Three of the four LSRs at the Tracy branch, including plaintiff, were terminated. Id. ¶¶ 4. 10 Plaintiff was specifically selected for as part of the layoffs because he had not generated sufficient 11 sales to cover his salary despite working for defendant for more than a year. ECF No. 22-5 ¶ 34. 12 Management also concluded that his performance had not suggested he would be able to generate 13 greater sales in the future. Id. 14 This evidence is sufficient to show that defendant terminated plaintiff’s employment for a 15 legitimate, non-discriminatory reason. See Merrick, 864 F.3d at 1146 (“When an employer 16 discharges an employee during a RIF, it must give an individualized reason for laying off that 17 employee.”). Plaintiff has not refuted defendant’s evidence and has not provided the court 18 evidence upon which a reasonable jury could find for plaintiff. Accordingly, defendant is entitled 19 to summary judgment on plaintiff’s FEHA claim. 20 B. Wrongful Termination Claim 21 The complaint’s second claim alleges plaintiff’s employment was wrongfully terminated 22 in violation of public policy. ECF No. 1-2 at 12-12. 23 Under California law, an employee may maintain a cause of action against her employer 24 where the employer’s discharge of the employee contravenes fundamental public policy. Foley v. 25 Interactive Data Corp., 47 Cal. 3d 654, 666 (1988). To sustain a wrongful termination claim in 26 violation of public policy, plaintiff must establish that the dismissal violated a policy that is: (1) 27 fundamental; (2) beneficial for the public; and (3) embodied in a statute or constitutional 28 ///// 1 provision. Wynes v. Kaiser Permanente Hosps., 2011 WL 1302916, at *9 (E.D. Cal. Mar. 31, 2 2011) (citing Colores v. Bd. of Trustees, 105 Cal. App. 4th 1293, 1307 (2003)). 3 As discussed above, plaintiff has not submitted any evidence in opposition to defendant’s 4 motion. Accordingly, he fails to meet his burden of showing that there is genuine dispute as to 5 whether he was wrongfully terminated. 6 C. Violation of California Government Code § 12940(k) 7 Plaintiff’s last claim alleges defendant failed to prevent discrimination in violation of 8 California Government Code § 12940(k). ECF No. 1-2 at 12-13. 9 Section 12940(k) makes it unlawful “[f]or an employer . . . to fail to take all reasonable 10 steps to prevent discrimination.” Cal. Gov’t Code § 12940(k). To succeed on a claim for 11 violation of § 12940(k), a plaintiff must establish that 1) he “was subjected to discrimination, 12 harassment or retaliation; 2) defendant failed to take all reasonable steps to prevent 13 discrimination, harassment or retaliation; and 3) this failure caused plaintiff injury, damage, loss 14 or harm.” Alejandro v. ST Micro Elecs., 129 F. Supp. 3d 898, 913 (N.D. Cal. 2015) (quoting 15 Lelaind v. City & Cty. Of S.F., 576 F. Supp. 2d 1079, 1103 (N.D. Cal. 2008)). Because plaintiff 16 has not submitted any evidence, let alone evidence upon which a reasonable jury could render a 17 verdict in his favor, he cannot defeat summary judgment on this claim. 18 IV. Conclusion 19 Accordingly, it is hereby RECOMMENDED that: 20 1. Defendant’s motion for summary judgment (ECF No. 22) be granted; and 21 2. The clerk be directed to enter judgment in defendant’s favor and close the case. 22 These findings and recommendations are submitted to the United States District Judge 23 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 24 after being served with these findings and recommendations, any party may file written 25 objections with the court and serve a copy on all parties. Such a document should be captioned 26 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 27 ///// 28 ///// wOAOe ©. LO OING IVI EP Re MVOC Or POR Vv te PAY VI

1 || within the specified time may waive the right to appeal the District Court’s order. Turner v. 2 || Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Yist, 951 F.2d 1153 (9th Cir. 1991). 3 | DATED: September 1, 2020. ‘ tid, PDEA 5 EDMUND F. BRENNAN UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28