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March 31, 1997


The opinion of the court was delivered by: EDWARD


 Defendant International Business Machines ("IBM") moves, pursuant to Rule 56, F.R.Civ.P., for summary judgment on Plaintiff's First Amended Complaint ("the Complaint"). For the reasons set forth below, IBM's Motion for Summary Judgment is GRANTED.


 The following facts are undisputed. Plaintiff has been an employee of IBM since 1984, and continues to work for IBM as a Senior Production Operator. Plaintiff contends that IBM (1) discriminated against him on the basis of race and national origin in violation of the California Fair Employment & Housing Act ("FEHA") (Cal. Gov. Code § 12940) and 42 U.S.C. § 1981; (2) breached an employment contract with him; and (3) breached the implied covenant of good faith and fair dealing. *fn1" Plaintiff's claims are based on three incidents: (1) an altercation with a co-worker, Bill Wedell, which Plaintiff believes IBM handled in an unfair manner; (2) a practical joke played on Plaintiff by another co-worker in connection with which Plaintiff was reprimanded for using profanity; and (3) a March 1995 meeting with Stan Gudmundson, Plaintiff's manager, during which Gudmundson allegedly reprimanded Plaintiff for harassing co-workers. In addition, Plaintiff appears to claim that Gudmundson failed to take appropriate action in response to alleged harassment of Plaintiff by co-workers. Plaintiff also appears to claim that a performance appraisal he received unfairly rated him as a "3" ("meets requirements--contributor") rather than a "2" ("exceeds requirements--high contributor").


 Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Rule 56(c), Fed.R.Civ.P. The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986). However, the moving party has no burden to negate or disprove matters on which the non-moving party will have the burden of proof at trial. The moving party need only point out to the court that there is an absence of evidence to support the non-moving party's case. Celotex, 477 U.S. at 325, 106 S. Ct. at 2554.

 The burden then shifts to the non-moving patty to "designate 'specific facts showing that there is a genuine issue for trial.'" Id. at 324, 106 S. Ct. at 2553 (quoting Rule 56(e)). To carry this burden, the non-moving patty must "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986). "The mere existence of a scintilla of evidence . . . will be insufficient; there must be evidence on which the jury could reasonably find for the [non-moving party]." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202 (1986). Evidence that "is merely colorable, or is not significantly probative," is not sufficient to avoid summary judgment. Id. at 249-250, 106 S. Ct. at 2511.

 Summary judgment cannot be granted where a genuine dispute exists as to any material fact. Rule 56(c), F.R.Civ.P. A "material" fact is one which might affect the outcome of the case under the applicable law. Anderson, 477 U.S. at 248, 106 S. Ct. at 2510. A dispute about a material fact is genuine if a reasonable jury could return a verdict for the non-moving party. Id. In deciding a motion for summary judgment, the evidence is viewed in the light most favorable to the non-moving party, and all justifiable inferences are to be drawn in its favor. Id. at 255, 106 S. Ct. at 2513. Moreover, "credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge [when] he is ruling on a motion for summary judgment." Id.



 IBM moves for summary judgment on Plaintiff's First and Second Causes of Action under FEHA and 42 U.S.C. § 1981, respectively, for discrimination on the basis of race and national origin on the ground that Plaintiff can neither set forth a prima facie case of discrimination under these statutes nor show that IBM's legitimate business reasons for the actions it took were pretextual.

 Claims of employment discrimination under FEHA and § 1981 are subject to a shifting burden analysis. See Bradley v. Harcourt, Brace & Co., 104 F.3d 267, 270 (9th Cir. 1996) (setting out shifting burdens applicable to Title VII and FEHA claims); University of Southern California v. Superior Court, 222 Cal. App. 3d 1028, 1035, 272 Cal. Rptr. 264 (1990) (FEHA is evaluated under law interpreting Title VII cases); Williams v. Edward Apffels Coffee Co., 792 F.2d 1482, 1484 (9th Cir. 1986) (standards for reviewing Title VII and § 1981 claims are identical). Initially, the plaintiff bears the burden of establishing a prima facie case of discrimination. If the plaintiff succeeds in establishing a prima facie case, the burden then shifts to the defendant to produce evidence of a legitimate, non-discriminatory motive for the action of which the plaintiff complains. If the defendant carries this burden, then the plaintiff must demonstrate that the legitimate reasons offered by the defendant are not the true reasons, but a pretext for ...

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