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.
IT IS SO ORDERED AND ADJUDGED. ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
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.
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
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.
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 ...