United States District Court, N.D. California
July 16, 2004.
JESSE A. BENTA, Plaintiff,
PACIFIC PARK MANAGEMENT INC., Defendant.
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 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
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
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
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 #
IT IS SO ORDERED.
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