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United States District Court, N.D. California

July 16, 2004.

JESSE A. BENTA, Plaintiff,

The opinion of the court was delivered by: SUSAN ILLSTON, District Judge


Summary judgment in favor of defendant and against plaintiff has been granted. Accordingly, judgment is entered in favor of defendant and against plaintiff.


  On July 16, 2004 the Court heard argument on defendant's motion for summary judgment. Defendant appeared through counsel; no appearance was made by plaintiff or his counsel. Having carefully considered the arguments of the parties and the papers submitted, the Court GRANTS defendant's motion for summary judgment.


  Plaintiff Jesse Benta is a former employee of defendant Pacific Park Management, Inc. ("Pacific Park"), who worked as a valet parking attendant and cashier at San Francisco General Hospital since approximately June 1998, and at the same location for a predecessor of Pacific Park since approximately 1996. 1st Am. Compl. at 1-2. Defendant Pacific Park is a minority-owned company operating parking garages in San Francisco. Def.'s Mot. at 5. Pacific Park employs 68 individuals, 39 of whom are over the age of 40. Tadesse Decl. at ¶ 17.

  While at Pacific Park, Benta had numerous problems with his employment. Benta was terminated on or about April 20, 2001 for fighting at work, though he was later reinstated. Id. at ¶ 6. From August 6, 2003 until August 20, 2003, Benta was suspended from employment because of multiple instances of rude and obnoxious behavior towards customers and violent behavior toward customers, and once for throwing a parking permit at a doctor at San Francisco General Hospital. Id. at ¶ 7.

  During Benta's suspension, parking garage management received a copy of an email written by Officer Hardy of the San Francisco Deputy Sheriff's Department stating that Officer Hardy had observed Benta acting violently on several occasions and thought he had an "anger management issue." Id. at ¶ 9. In response to Officer Hardy's concerns, management wrote a letter advising Benta of this letter and advising him to obtain a "fitness for duty letter" from a licensed health care provider regarding whether Benta had "anger management issues" that might "erupt in the workplace." Id. at ¶ 10. Management never received such a letter from Benta. Id. at ¶ 11.

  On or about August 14, 2003, Benta filed a grievance with his labor union, the International Brotherhood of Teamsters, regarding his suspension. Id. at ¶ 8. Benta's suspension ended on August 20, 2003, and he was required to return to work. Id. Benta did not return to work at that point. Id. at ¶ 11. At the hearing on the grievance, the labor union Adjustment Board ruled that Pacific Park Management was justified in suspending Benta. Id. at ¶ 16. The Adjustment Board also ruled that Benta had failed to file a subsequent grievance questioning the propriety of the "fitness of duty letter" requested by Pacific Park. Id. Finally, the Board found that Benta had abandoned his job and voluntarily quit by not returning to work on August 20, 2003. Id.

  Plaintiff alleged two causes of action against Pacific Park in his First Amended Complaint: (1) wrongful harassment and discrimination based on disability, and (2) wrongful discrimination based on age.

  Now before the Court is defendant's motion for summary judgment.


  Summary judgment is proper where there is no genuine issue as to any material fact, and 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, 106 S.Ct. 2548, 2552 (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. 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, citing 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 Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356 (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 (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.


  The is the last in a series of motions by defendant to which plaintiff has not responded. Months ago, defendant moved to compel answers to its initial set of interrogatories. No response was received from plaintiff. By order dated April 5, 2003, defendant's motion to compel discovery was granted and plaintiff was ordered to file and serve complete answers to the interrogatories by April 19, 2004. No sanctions were imposed at that time but the Court stated that it would reconsider issuing sanctions should plaintiff's response to the interrogatories be less that full, complete and timely.

  By letter dated April 27, 2004, defendant filed a Subsequent Motion to Compel Answers to Interrogatories and Request for Sanctions, Monetary and Terminating. In its letter brief, defendant represented that plaintiff had not filed answers as ordered, nor had plaintiff's counsel responded in any way to defendant's efforts to assure compliance with the order. Defendant requested sanctions, including terminating sanctions and an award of attorneys' fees and costs for the preparation of discovery motions. Plaintiff did not respond in any way to the Subsequent Motion to Compel.

  By order dated May 18, 2004, the Court granted the Subsequent Motion to Compel. Plaintiff was ordered to file and serve complete answers to defendant's interrogatories by May 31, 2004. Plaintiff was informed that if he did not do so, he would be precluded from presenting in this case any evidence concerning any of the topics included in the interrogatories. Plaintiff was also ordered to pay to defense counsel $750.00, as partial payment of fees and costs required to prosecute the two motions to compel. Plaintiff never answered the interrogatories or paid the costs.

  A Case Management Conference was held on May 28, 2004. All parties were on notice of the conference. Counsel for defendant appeared; counsel for plaintiff did not. By order dated June 3, 2004, plaintiff's counsel was ordered to reimburse defendant an additional $750.00 on or before June 11, 2004. Plaintiff has not done so.

  Now defendant moves for summary judgment on the grounds that plaintiff cannot satisfy any element of intent necessary to maintain an action for employment discrimination. Plaintiff has not filed any opposition to defendant's motion and has therefore not offered any evidence challenging the factual assertions made by defendant. While facts must be regarded in the light most favorable to the non-moving party, in the absence of any opposition by plaintiff, the Court must review the facts as presented by defendant. Additionally, given plaintiff's failure to respond to the interrogatories, he is precluded from offering evidence regarding any topics listed in them, which covered virtually all of the elements of plaintiff's claims.

  Defendant correctly states that in employment discrimination cases, a plaintiff suing for discrimination on the basis of disparate treatment must produce evidence that the employer intentionally discriminated against him in violation of applicable laws. Such a prima facie case of employment discrimination can be established by evidence creating an inference of discriminatory motives or simply by showing that others not in plaintiff's protected class were treated more favorably. Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir. 1994); Warren v. City of Carlsbad, 58 F.3d 439, 442 (9th Cir. 1995). The requisite degree of proof necessary to establish a prima facie case for Title VII and ADEA claims on summary judgment is minimal and does not even rise to the level of a preponderance of the evidence. Wallis, 26 F.3d at 889.

  In the present case, plaintiff has offered no evidence of any kind to support his allegations. Consequently, he has not established a prima facie case for employment discrimination. Moreover, defendant has carefully supplied declarations establishing the negative of virtually all elements of the plaintiff's claims.

  Regarding plaintiff's two specific allegations of discrimination — based on disability and age — the Court does not find evidence of either. Allegations that plaintiff was discriminated against on the basis of his "disabilities" remain simply that — allegations. Plaintiff has offered no evidence of any disability and is, at this point, precluded from doing so. Regarding discrimination as to age, plaintiff has offered no evidence in support of this allegation either. Defendant's declaration that 39 of 68 employees of Pacific Park are over the age of 40 is sufficient evidence that defendant did not discriminate on the basis of age.

  Based on the lack of evidence supporting plaintiff's allegations of disability and age discrimination, the Court GRANTS defendant's motion for summary judgment.


  For the foregoing reasons and for good cause shown, the Court hereby GRANTS defendant's motion for summary judgment. [Docket # 28]



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