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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 ...

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