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United States District Court, Northern District of California

May 20, 2003


The opinion of the court was delivered by: Susan Illston, United States District Judge


Summary judgment against plaintiff and in favor of defendants has been entered. Accordingly, judgment is hereby entered in favor of defendants Sunset Scavenger Company and Norcal Waste Systems, Inc. and against plaintiff Juan Ibarra.


On May 16, 2003 the Court heard argument on various motions in this case. Having carefully considered the arguments of counsel and the papers submitted, the Court hereby DENIES plaintiffs motion for a continuance and extension of the discovery cut-off; GRANTS defendants' motion for summary judgment; GRANTS defendants' request for judicial notice; declines to rule on defendants' objections to plaintiff s evidence in support of plaintiff s opposition to defendants' summary judgment motion; GRANTS defendants' application for injunctive relief; and GRANTS defendants' application for fees.


Plaintiff Juan Ibarra ("Ibarra") was employed as a shop foreman and mechanic by defendant Sunset Scavenger Co. ("Sunset") between approximately July 1979 and August 2000. First Am. Compl. ¶ 8. According to Ibarra, Sunset is a subsidiary of defendant Norcal Waste Systems ("Norcal"). Id. at ¶ 2. Ibarra's employment at Sunset was governed by the terms of a collective bargaining agreement between Sunset and his union, the Sanitary Truck Drivers and Helpers Union, Local No. 350.

Between April and July, 1999, Ibarra was arrested three times for alcohol-related driving incidents On June 22, 1999, after the second alcohol-related arrest involving an injury-producing accident in a company-owned truck, Ibarra was suspended for six months. According to Sunset, Ibarra rear-ended another car while driving the truck without permission and under the influence of alcohol. He then signed a Return to Work Agreement, as provided for in the Collective Bargaining Agreement. Under the Return to Work Agreement, Ibarra was to enter a chemical dependency treatment program and submit to an alcohol and/or controlled substance test before returning to work after six months. Ibarra's suspension was extended in December 1999 because Sunset claims that it learned that the Department of Motor Vehicles had suspended his driver's license after the third alcohol-related driving arrest in July, 1999. On August 25, 2000, Ibarra still did not have a driver's license, and he was terminated pursuant to the terms of the collective-bargaining agreement which provided for termination of employees who were unable to regain their licenses within six months. First Am. Compl. at ¶ 17.

Ibarra filed suit in this Court alleging employment discrimination on the basis of his race, national origin, medical handicap, mental condition, and his disability, alcoholism. Ibarra asserted causes of action for: (1) violation of the Americans with Disabilities Act; (2) violation of 42 U.S.C. § 2000e et seq. (Title VII); (3) violation of California Government Code §§ 12940 et seq. (FEHA); (4) wrongful termination in violation of public policy; (5) breach of contract; and (6) fraud. In January 2002 this Court granted defendants' motion to dismiss Ibarra's fifth and sixth causes of action, and to dismiss in part Ibarra's third and fourth cause of action on the grounds that alcoholism is not a medical condition under FEHA.

Plaintiffs amended complaint continued to plead causes of action for breach of contract and fraud despite the Court's January 2002 dismissal of those causes of action. In April 2002, this Court granted a second motion to dismiss those causes of action as preempted under the Labor Management Relations Act. The Court struck plaintiff's cause of action for medical condition discrimination under FEHA and a cause of action for violation of public policy which was predicated on the FEHA violation from plaintiff's complaint.

The causes of action which remain in plaintiffs complaint and are the subject of this motion for summary judgment are as follows: (1) the first cause of action alleging unlawful suspension and terminator in violation of the Americans with Disabilities Act, related to plaintiff s disability, alcoholism; (2) the second cause of action alleging discrimination based on national origin and disability under 42 U.S.C. § 2000; (3) the third cause of action alleging discrimination based on disability and race in violation of FEHA; and (4) the fourth cause of action alleging wrongful termination on the basis that terminating plaintiff because of his disability and race violates public policy. These causes of action are the subject of defendants' present motion for summary judgment.


1. Summary judgment

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 a judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party, however, 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. See id. at 325.

The burden then shifts to the non-moving party to "designate `specific facts showing that there is a genuine issue for trial.'" Id. at 324 (quoting Fed.R.Civ.P. 56(e)). To carry this burden, the non-moving party 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 (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 (1986).

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. "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 ruling on a motion for summary judgment." Id.

2. Discrimination under the ADA, Title VII and FEHA

The burden-shifting method of proof set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 802-05 (1973), governs plaintiff's claims of race discrimination. That process requires the plaintiff first to establish a prima facie case of discrimination or retaliation. See Wallis v. J.R. Simplot, 26 F.3d 885, 889-91 (9th Cir. 1994). Once a plaintiff has put forth a prima facie case, the burden then shifts to the defendant to offer a legitimate, nondiscriminatory reason for its adverse employment action. Once the defendant articulates such a reason, the plaintiff must then offer evidence to show that the defendant's proffered reason is a pretext for discrimination or retaliation for protected activity. See Wallis, 26 F.3d at 891; Warren v. City of Carlsbad, 58 F.3d 439, 442 (9th Cir. 1995).

California relies on decisions interpreting federal nondiscrimination statutes to interpret the FEHA. See Bradley v. Harcourt, Brace and Co., 104 F.3d 267, 272 (9th Cir. 1996). Thus courts' analyses of federal discrimination claims apply equally to the analogous FEHA claims.

To put forth a prima facie case of employment discrimination, plaintiff must show that (1) he belongs to a protected class; (2) he was subjected to an adverse employment action by his employer; and (3) others who were similarly situated and not within his protected class were treated more favorably than he was. McDonnell Douglas Corp. v. Green, 411 U.S. at 802.

The Americans with Disabilities Act prohibits discrimination against a qualified individual with a disability, 42 U.S.C. § 12112(a). "To survive a motion for summary judgment, a plaintiff in an ADA case must be able to show sufficient facts to meet his or her burden of production of evidence on each element of the prima facie case." Willis v. Pacific Maritime Ass'n, 162 F.3d 561,565 (9th Cir. 1998). An employee pursuing a claim under the ADA must therefore show (1) that he is a disabled person within the meaning of the ADA; (2) that he is qualified, with or without reasonable accommodation, to perform the essential functions of the job that he holds; and (3) that he has suffered an adverse employment decision because of his disability. See id.

Once a plaintiff meets this burden of production, the employer must offer a legitimate, nondiscriminatory reason for the adverse employment decision. See Reeves v. Sanderson Plumbing Products, Inc., 120 S.Ct. 2097, 2105 (2000); Collings v. Longview Fibre Co., 63 F.3d 828, 833-34 (9th Cir. 1995); Smith v. Barton, 914 F.2d 1330, 1340 (9th Cir. 1990). If the employer meets this burden, then the plaintiff must produce "specific, substantial evidence" that the proffered reason is pretextual. Collings, 63 F.3d at 834 (citation and internal quotation marks omitted). The plaintiff bears the ultimate burden of establishing that she has been discriminated against on the basis of a disability. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506-11 (1993). However, the trier of fact may infer the existence of a discriminatory motive from the plaintiff's proof that the employer's proffered explanation is false. See Reeves, 120 S.Ct. at 2108-09.


Plaintiff's motion for a continuance and to extend the deadline for discovery
As a preliminary matter, this Court must decide plaintiffs motion for a continuance and to extend the discovery cut-off. By order dated April 9, 2003, this Court denied plaintiffs April 3, 2003 ex parte application for an extension of the discovery deadline and a continuance of the trial date Plaintiffs ex parte application sought the extension and continuance for the same reasons that plaintiff sets forth in his motion for a continuance of trial and extension of discovery which is presently before the Court.

The court may grant a request to stay summary judgment and an extension of the discovery deadline if the party opposing summary judgment needs additional time to discover "facts essential to justify the party's opposition." Fed.R.Civ.P. 56(f). Although a formal motion under Rule 56(f) is not always necessary, "references in memoranda and declarations to a need for discovery do not qualify as motions under Rule 56(f)." Brae Transp., Inc., v. Coopers & Lybrand, 790 F.2d 1439, 1443 (9th Cir. 1986). The party opposing summary judgment bears the burden of showing "what facts she hopes to discover to raise a material issue of fact." Hancock v. Montgomery Ward Long Term Disability Trust, 787 F.2d 1302,1306 n. 1 (9th Cir. 1986). The party seeking additional discovery also bears the burden of showing that the evidence sought exists. Denial of a Rule 56(f) application is proper when it is clear that the evidence sought is almost certainly nonexistent or is the object of pure speculation. See Volk v. D.A. Davison & Co., 816 F.2d 1406 1416 (9th Cir. 1987).

Plaintiffs counsel's declaration in support of this request states that plaintiffs counsel only recently learned that a more "narrowly tailored" subpoena to the Department of Motor Vehicle (DMV) would "reveal information that is crucial to plaintiffs case." Decl. of Stanley Hilton for Extension of Discovery Cutoff al 2, paragraph 5. Plaintiff's declaration states that due to his upcoming surgery he will require two to six weeks of recuperation. The Court assumes that plaintiff is submitting that he will be unable to take the DMV deposition until his recuperation is complete.

This case was filed in July, 2001. Non-expert discovery in this action closed on March 31, 2003. Plaintiff had from the fall of 2001 to March 31, 2003 to conduct discovery. In that time plaintiff should have determined whom to depose and conducted those depositions.

Plaintiff does not explain with specificity what further discovery would yield. Harris v. Duty Free Shoppers Ltd. Partnership, 940 F.2d 1272, 1276 (9th Cir. 1991). Nor does plaintiff provide any reason to believe that as yet undiscovered documents would change the outcome of this summary judgment motion. Plaintiffs counsel's vague reference to "crucial" information is an insufficient basis for extension of the discovery cut-off and continuance of trial. Accordingly, plaintiffs motion for extension of the discovery cut-off and for a continuance is DENIED.

2. Defendants' motion for summary judgment

A. Defendants' argument

Defendants argue that this Court should grant summary judgment for the following reasons: (1) Sunset Scavenger Company and Norcal Waste Systems are not joint employers, and Norcal is entitled to summary judgment because Sunset had control over the actions taken against plaintiff; (2) Sunset did not have a duty to accommodate the loss of plaintiff's driving privileges because accommodating that suspension is not an accommodation of plaintiff's alcoholism, but rather an accommodation of the criminal consequences of plaintiff s conduct; (3) plaintiff failed to exhaust administrative remedies regarding his suspension because he only described his termination on the EEOC charge form; (4) plaintiff lacks direct evidence that he was discriminated against because of his ethnicity; (5) plaintiff fails to establish the elements of a prima facie case of race discrimination; (6) plaintiff fails to refute the nondiscriminatory reasons stated by defendants for his suspension and ultimate termination, that he committed misconduct and did not have a license as required by Section 27 of the collective bargaining agreement; and (7) to the extend that plaintiff still alleges a disparate impact case, defendants argue that plaintiff has not made out a prima facie case and that defendants have established that they suspended and terminated plaintiff due to business necessity.

Defendants argue that plaintiff was suspended for driving a company vehicle while intoxicated crashing that vehicle; causing property damage and personal injury; and failing to make a full, honest report to his employer about the accident. See Jamison Decl. Defendants argue that plaintiff was terminated pursuant to Section 27 of the collective bargaining agreement, which had been in place since June 1997 and which required that all employees have the class of driver's license necessary to do their job. Supp. Response to Plaintiffs First Set of Special Interrogatories at 7:16-20. That agreement stated, "[a]ll employees must be in possession of a valid California driver's license of the proper class needed to perform the employee's job duties." Supp. Resp. to Plaintiffs First Set of Interrogatories at 4:18. Defendants argue that plaintiffs inability to get a valid driver's license was the reason for his termination.

B. Plaintiffs argument

Plaintiff argues in opposition that plaintiff's suspension was based on his race and disability and that the license requirement was enforced in a discriminatory manner against plaintiff because of his race and disability. Plaintiffs Opp. at 12:5-10. Plaintiff claims that many workers who do not have such licenses, or who have had their licenses suspended, have been permitted to remain in defendants' employ in non-driving positions.

Plaintiff submits that he performed his job duties well and that this statement is corroborated by defendants' deposition testimony. Morales at 40; Bianchi at 99:20-25 (In answer to a question about his opinion of plaintiff s work, Bianchi answered, "Very good. Excellent."). Plaintiff contests facts presented by defendant — that plaintiff lied to defendants regarding the accident. Instead, plaintiff argues that he was unaware of the cause of the accident because he lost consciousness. "I knew nothing of the accident until I saw the truck." Decl. at para. 9.

Plaintiff submits deposition testimony from defendants admitting that other employees with medical conditions that prevented them from obtaining drivers licenses were accommodated and argues that he too should have been accommodated. Plaintiff provides support in the record for his contention that some employees' disabilities were accommodated through a grandfathering clause in Section 27, which exempted certain employees from its requirements at the time of its enactment, and other employees were exempted after the enactment of Section 27 for various reasons, including disability. See also Defs' Supp. Response to Plaintiffs First Set of Special Interrogatories at 6:1-16. Plaintiff argues that defendants failed to accommodate him because of his race and disability.

C. Discrimination based on race, nationality and ethnic origin
Plaintiffs race discrimination claim does not survive summary judgment. Plaintiff fails to put forth a prima facie case of race discrimination as required under the Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981) burden-shifting analysis. Plaintiff has testified that from 1980 until his suspension in June 1999 he did not perceive race discrimination in his employment. See Exh. F to Fliegel Decl. in Support of Mot. for Summary Judgment, Deposition of Juan Ibarra at 60:16-20.*fn1 Plaintiffs only allegations of race discrimination are that Section 27 was enforced disparately and that plaintiff was terminated because of his race, because the company did not want Latinos to reach management positions, and plaintiff was due to be promoted. Plaintiff produces no evidence of ongoing racial discrimination toward him during the more than twenty-year period in which he worked for Sunset, and plaintiffs discriminatory enforcement contention is not supported by the record.

Defendants' Supplemental Responses regarding the race and ethnicity of employees suspended for having an accident in a company vehicle does not present evidence which gives rise to an inference of intentional discrimination. A total of 22 Caucasian employees as compared to 28 Latino employees were suspended for not having licenses following the enactment of Section 27. To survive summary judgment on his race discrimination claims plaintiff must show that others similarly situated to plaintiff were treated better because they were not Latino. See Defs' Mem. in Support of Mot. at 21:8 Fliegel; Decl.; exh. E at 14:10-21. This Court has thoroughly reviewed defendants' responses to plaintiffs discovery requests regarding the race of other employees who were either suspended or terminated because they were not licensed. The record does not show any clear race-based pattern associated with these suspensions and terminations.

Plaintiff also introduces evidence that management is dominated by whites to support his theory that defendant's actions were based on plaintiffs race and intended to prevent plaintiff from moving into a management position. Defendants' responses to special interrogatories provide a numerical breakdown of the number of company employees by race. They also provide a numerical breakdown by race of the number of managers. Defs' Responses at 9:21-26. This breakdown shows that Latinos composed 11% of management in 1999 and 3% of management in 2000.

Evidence of numerical differences in the number of Latinos and Caucasians in management alone, is far from sufficient to establish a prima facie case. Plaintiff has not shown the number of Latinos who applied for management positions, or the relationship between the numbers plaintiff presents and the actions taken against plaintiff. See Aragon v. Republic Silver State Disposal,. 292 F.3d 654, 658 n. 6 (9th Cir. 2002) ("statistical evidence in and of itself, rarely suffices to rebut an employer's nondiscriminatory reason for its decision").

Plaintiffs numerical comparisons of suspensions and terminations of whites and non-whites, taken together with the evidence about the racial composition of Sunset's management, are not sufficient to give rise to the inference of discrimination based on race that plaintiff requires to establish a prima facie case of race discrimination. Defendant has made a request for judicial notice of EEOC numbers documenting the number of Latinos in management positions in the Bay Area. The Court takes judicial notice of the EEOC documents submitted by defendant.*fn2 The Court notes that the EEOC records reflect numbers quite similar to those cited by plaintiff. Plaintiffs statistics are inadequate to raise an inference of discrimination.

Even if plaintiff had put forth a prima facie case of race discrimination, plaintiff has not put forth any evidence at all to show that defendants' legitimate, nondiscriminatory reason is false. When plaintiff has made out a prima facie case, the burden then shifts to the defendant to offer a legitimate, nondiscriminatory reason for its adverse employment action. Once the defendant articulates such a reason, the plaintiff must then offer evidence to show that the defendant's proffered reason is a pretext for discrimination or retaliation for protected activity. See Wallis, 26 F.3d at 891; Warren v. City of Carlsbad, 58 F.3d 439, 442 (9th Cir. 1995).

Defendant Sunset Scavenger Company has submitted a letter from Kathleen Jamison, who made the decision to suspend plaintiff. The reasons set forth in Ms. Jamison's letter for the suspension are that defendant drove the company vehicle without authorization; incurred an arrest for drunk driving while driving the company vehicle; caused an avoidable accident in the vehicle that resulted in injury to a person and property damage; and failed to properly report the accident. See Exh. C. to the Decl of Kathleen Jamison, a letter to plaintiff dated June 24, 1999. Robert Bianchi, defendant's friend and supervisor, submitted that the reason that defendant was terminated was because he was unable to obtain a license as required by the collective bargaining agreement. Decl. of Robert Bianchi at 2:1-6. The record is utterly lacking in direct or circumstantial evidence that would be sufficient to create a genuine issue of material fact as to whether the adverse job actions taken against plaintiff were based on race discrimination.

Accordingly, defendants' motion for summary judgment on plaintiffs race discrimination claims under FEHA and Title VII is GRANTED.

D. Disability discrimination

California courts use federal decisions regarding the ADA to interpret FEHA's analogous provisions. Accordingly, this Court's analysis of the ADA claim applies to the FEHA claim as well. See Brown v. Lucky Stores, Inc., 246 F.3d 1182 (9th Cir. 2000).

Plaintiff's disability discrimination claims do not survive summary judgment. Plaintiff has alleged that defendant discriminated against plaintiff because of his disability, alcoholism. Defendants do not dispute that plaintiff's alcoholism is a disability. Assuming for the purposes of this motion that plaintiff's alcoholism satisfies the ADA's definition of disability,*fn3 the Court finds that no reasonable jury could conclude that plaintiff was suspended or terminated because he is an alcoholic. Plaintiff has submitted no evidence to dispute the employer's explanation that plaintiff was suspended because he committed misconduct and terminated because he was not able to comply with the drivers' license requirement which was part of the collective-bargaining agreement.

Plaintiff had an accident while driving drunk in a company vehicle for which he was suspended for six months in June 1999. Plaintiffs suspension was extended when he was unable to regain his commercial driver's license, and pursuant to the terms of the collective bargaining agreement, plaintiff was eventually terminated in August, 2000 for being unable to regain his license by that time. The collective bargaining agreement provided that employees whose licenses were suspended would be suspended from work until they regained their licenses and that if their licenses were not regained within six months, those employees would be terminated. See Jamison Decl., Exh. C at Section 27.

Even if plaintiff had put forth a prima facie case of discrimination, defendant has successfully rebutted that prima facie case by presenting legitimate, nondiscriminatory reasons for its actions. See Collings v. Longview Fibre Co., 63 F.3d 828, 833-34 (9th Cir. 1995). No reasonable jury could find that the evidence put forth by plaintiff raises a material question of fact about whether defendants' stated reasons are pretext.

Defendants' legitimate nondiscriminatory reason for plaintiffs first suspension is that plaintiff engaged in misconduct, driving while drunk and crashing a company truck. California courts have distinguished between adverse employment actions for misconduct and adverse employment actions taken because of a disability. See LaBrucherie v. The Regents of the University of California, 1995 U.S.Dist.Lexis 12763 (N.D.Cal. 1995) (court held that plaintiff was not terminated for his alcoholism, but was terminated for being unable to report to work on time because he was incarcerated following a DUI). In LaBrucherie, the court stated, "to hold plaintiffs DUI resulted entirely from his alcoholism (as plaintiff argues) would insulate plaintiff and other similarly-situated alcoholics from the consequences of such criminal conduct, because non-alcoholics who drove drunk, were convicted, and incarcerated, would lose their jobs with no . . . relief . . . while alcoholics could keep their jobs arguing protection under the ADA." Id. at 16.

In Newland v. Dalton, 81 F.3d 304 (9th Cir. 1996), the court held that the employer's termination of an alcoholic employee for firing an assault rifle in a bar was a termination based on the employee's misconduct, not on his disability. The Newland plaintiff argued that his conduct resulted from his alcoholism, and that his termination was discriminatory. The court held that while alcoholism is a "recognized handicap" alcoholics "are still responsible for conduct that would otherwise result in their termination." Id.

No reasonable jury could find that plaintiff's first suspension was due to plaintiff's alcoholism, rather than the defendant's stated reason, plaintiffs accident in the company truck while drunk driving. Plaintiff himself admits that the company knew about plaintiffs alcoholism throughout plaintiffs employment and that he did not suffer any adverse job actions until he drove drunk in the company truck. The timing of the defendant's suspension, following on the heels of his drunk-driving arrest, raises a very strong inference that defendant's stated reason for that suspension, that plaintiff drove drunk and crashed the company vehicle, is not pretext.

Similarly, no reasonable jury could find that the subsequent extension of plaintiff s suspension and his termination were due to plaintiffs disability. Defendant's stated reason for plaintiffs eventual termination is that plaintiff was unable to obtain a driver's license. Plaintiffs direct supervisor, Robert Bianchi, stated in his declaration, "Mr. Ibarra was unable to regain his license in the time allowed by the CBA. For that reason I made the decision to end Mr. Ibarra's employment." Decl. of Robert Bianchi in Support of Motion for Summary Judgment at 2:1-2. Plaintiff has submitted no evidence to support his claim that the driver's license requirement as applied to defendant is pretext for discrimination.

Plaintiff argues that defendant had a legal obligation to accommodate his disability by waiving the driver's license requirement. Section 27 does contain a provision stating that the employer will make all reasonable efforts to ensure that employees who are unable to comply with the license requirement due to a medical condition can continue to work. However, the employer's decision not to accommodate plaintiff by waiving the license requirement is not actionable under the ADA. The law does not require that the employer relax its job requirements to accommodate alcoholics. "The ADA expressly authorizes an employer to hold an employee who is an alcoholic to `the same qualification standards for employment or job performance and behavior that such [employer] holds other employees, even if any unsatisfactory performance or behavior is related to the alcoholism of such employee.'" Davis v. Safeway, 1996 U.S. Dist. Lexis 6916, (N.D.Cal. 1996) quoting 42 U.S.C. § 12114(c)(4) (stating that "A covered entity may hold an employee who engages in the illegal use of drugs or who is an alcoholic to the same qualification standards for employment or job performance and behavior that such entity holds other employees, even if any unsatisfactory performance or behavior is related to the drug use or alcoholism of such employee"). See also Flynn v. Raytheon Co., 868 F. Supp. 383, 385-387 (Mass. 1994) (rejecting the argument that an alcoholic employee who showed up to work intoxicated could avail himself of the reasonable accommodation provision).

To the extent that plaintiff compares the treatment he received from his employer to the employer's accommodations for employees with other disabilities who were allowed to work without driver's licenses, this comparison is inapposite. Defendant may well have obligations to accommodate employees with other disabilities by waiving its rules and regulations but those obligations do not extend to plaintiffs disability, alcoholism. Accordingly, because plaintiff failed to rebut the nondiscriminatory reason proffered by defendant for plaintiffs termination, and failed to demonstrate that defendants had a duty to accommodate which they breached, the Court must GRANT summary judgment for defendants on plaintiffs disability discrimination claim.*fn4

3. Defendants' application for injunctive relief and sanctions
Defendants argue that plaintiff has violated this Court's protective order by disclosing confidential information about third parties and that, in accordance with ¶ 65 of the Protective Order, the Court should strike all offending portions of plaintiff s declaration. Defs' App. for Inj. Relief and Sanctions at 1. Defendants argue that plaintiffs failure to file confidential information submitted as part of plaintiff's declaration in opposition to the motion for summary judgment under seal was reckless, in light of the letter sent from defendants to plaintiff prior to filing the summary judgment motion reminding plaintiff not to violate the protective order. See Exh. C to Cheng Decl. in Support of the Motion for Fees, etc., Letter from defense counsel to plaintiffs counsel regarding compliance with terms of the protective order. Defendants argue that plaintiffs conduct amounted to "willful disobedience" of a court order such that this Court should impose sanctions. Chambers v. Nasco Inc., 501 U.S. 32, 43 (1991). See also United States v. Nat'l Med. Enterprises. Inc., 792 F.2d 906,910 (9th Cir. 1986) (upholding sanctions for violation of a protective order).

Defendants request that in light of the alleged violation, this Court should strike paragraphs five and six of plaintiff s declaration and should grant defendants $720 in costs associated with bringing this motion. The Court sees no excuse for plaintiffs failure to note the privacy concerns of his co-workers and to comply with this Court's protective order. Accordingly, pursuant to the terms of this Court's July 12,2002 protective order, the Court GRANTS defendants' motion to strike paragraph 5 only and GRANTS defendants' motion for sanctions in the form of $250 to cover a portion of defendants' costs in bringing this motion.

4. Defendants' objections to plaintiffs' evidence

Defendants make several objections to the evidence submitted by plaintiff in support of plaintiff's opposition to the summary judgment motion. In a motion for summary judgment only admissible evidence may be considered by the Court. Fed.R.Civ.P. 56(c). Chiefly, defendants object to plaintiffs untimely submission of an amended declaration in support of his opposition brief. Defendants also base many of their objections on plaintiffs failure to properly authenticate documents attached to plaintiffs amended declarations. Further, defendants argue that plaintiff makes conclusory statements in his declaration and discusses irrelevant facts. Without deciding whether the evidence submitted by plaintiff that is attached to plaintiffs amended declaration is admissible, the Court finds that none of the facts in the record submitted by plaintiff create a genuine issue of material fact. Thus the question of whether those facts are admissible such that they may properly be considered on summary judgment is immaterial to the disposition of the summary judgment motion. Accordingly, this Court declines to rule on defendants' objections to plaintiff's evidence.


For the foregoing reasons, defendants' motion for summary judgment on plaintiffs remaining claims is GRANTED (Docket # 104); plaintiff's motion for a continuance and an extension of the discovery cut-off is DENIED (Docket # 114); the Court declines to rule on defendants' objections to plaintiff's evidence submitted in support of plaintiff's opposition to summary judgment (Docket # 128); defendants' request for judicial notice is GRANTED (Docket # 112); and defendants' motion to strike and request for attorneys' fees are GRANTED in part and DENIED in part (Docket # 131).


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