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October 24, 2005.

JOSEPH F. GUERIN, Plaintiff,
GENENTECH, INC., Defendant.

The opinion of the court was delivered by: JEFFREY WHITE, District Judge


Now before the Court is the motion for summary judgment filed by Defendant Genentech, Inc. ("Genentech"). Having carefully considered the parties' arguments, the relevant legal authority, and having had the benefit of oral argument, the Court hereby GRANTS Defendant's motion for summary judgment.


  Plaintiff Joseph Guerin, a 55-year-old African American, was employed by NetVersant which contracted with Defendant Genentech to provide telecommunications related services. During his employment with NetVersant, Plaintiff was deployed as the on-site account manager for the Genentech account. After a little over one year in the position, Genentech asked to terminate the customer relationship and to have NetVersant provide an alternate account manager. NetVersant subsequently terminated Plaintiff's employment.

  Plaintiff brings suit against Genentech alleging race and age discrimination under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e, et seq.; the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621 et seq.; California's Fair Employment and Housing Act ("FEHA"), Cal. Gov. Code § 12940, et. seq.; and California's Unruh Civil Rights Act, Cal. Civil Code § 51, et seq.

  The Court will address the additional specific facts as required in the analysis.


  A. Standards Applicable to Motions for Summary Judgment.

  A principal purpose of the summary judgment procedure is to identify and dispose of factually unsupported claims. Celotex Corp. v. Cattrett, 477 U.S. 317, 323-24 (1986). Summary judgment is proper when 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 judgment as a matter of law." Fed.R.Civ.P. 56(c). "In considering a motion for summary judgment, the court may not weigh the evidence or make credibility determinations, and is required to draw all inferences in a light most favorable to the non-moving party." Freeman v. Arpaio, 125 F.3d 732, 735 (9th Cir. 1997).

  The party moving for summary judgment bears the initial burden of identifying those portions of the pleadings, discovery, and affidavits that demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. An issue of fact is "genuine" only if there is sufficient evidence for a reasonable fact finder to find for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). A fact is "material" if it may affect the outcome of the case. Id. at 248. If the party moving for summary judgment does not have the ultimate burden of persuasion at trial, that party must produce evidence which either negates an essential element of the non-moving party's claims or that party must show that the non-moving party does not have enough evidence of an essential element to carry its ultimate burden of persuasion at trial. Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000). Once the moving party meets his or her initial burden, the non-moving party must go beyond the pleadings and, by its own evidence, "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). In order to make this showing, the non-moving party must "identify with reasonable particularity the evidence that precludes summary judgment." Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996). In addition, the party seeking to establish a genuine issue of material fact must take care to adequately point a court to the evidence precluding summary judgment because a court is "`not required to comb the record to find some reason to deny a motion for summary judgment.'" Carmen v. San Francisco Unified School Dist., 237 F.3d 1026, 1029 (9th Cir. 2001) (quoting Forsberg v. Pacific Northwest Bell Telephone Co., 840 F.2d 1409, 1418 (9th Cir. 1988)). If the non-moving party fails to point to evidence precluding summary judgment, the moving party is entitled to judgment as a matter of law. Celotex, 477 U.S. at 323.

  B. Plaintiff's Employment Discrimination Claims Fail Because Genentech Was Not His Employer.

  Two or more employers may be considered "joint employers" if both employers control the terms and conditions of employment of the employee. Swallows v. Barnes & Noble Book Stores, Inc., 128 F.3d 990, 993 n. 4 (6th Cir. 1997) (citing NLRB v. Browning-Ferris Indus. of Pa., 691 F.2d 1117, 1123 (3d Cir. 1982)). In determining whether the two employing entities may be considered "joint employers," the following factors have been considered: (1) the nature and degree of control over the employees; (2) day-to-day supervision, including discipline; (3) authority to hire and fire the employee and set conditions of employment; (4) power to control pay rates or methods of payment; (5) control of the employee records, including payroll. See Torres-Lopez v. May, 111 F.3d 633, 639-640 (9th Cir. 1997); see also Wynn v. National Broadcasting Co., Inc., 234 F. Supp. 2d 1067, 1093-94 (2002).

  Plaintiff has not demonstrated that Defendant Genentech had any authority to control, discipline, hire or fire, pay or keep employee records for him. NetVersant hired Plaintiff, paid his wages and benefits and, ultimately, made the decision to terminate his employment. (Declaration of Nicole L. Acton ("Acton Decl.") ¶¶ 5-6, Exs. K, L, J (Guerin Depo. at 70-71, 58-59, 74-76, 94-95, 189, 193); Ex. Y (Thompson Depo. at 41-43); Declaration of Leo Hartung ("Hartung Decl.") ¶¶ 5-10, 12, Exs. A-E.) In his opposition, without citation to the record, Plaintiff asserts that Genentech had the power to hire and fire NetVersant employees, extensively controlled those employees, negotiated wage rates and set employee tasks. (Opp. Br. at 7.) Plaintiff concedes that Genentech did not have control of payroll records, but contends that it "did have control of virtually everything else pertinent to the employment." (Id.)

  Although the record does indicate that Genentech was a part of the interviewing process for choosing the NetVersant account manager for its site, there is no evidence in the record submitted by either party, indicating that Genentech maintained control over NetVersant's employees, including control over the hiring or firing of employees, conditions of employment, rates or methods of payment, employee records or payroll. Similarly, there is no evidence in the record before the Court indicating that Genentech exercised control over the day-to-day management of NetVersant's employees, with the exception of setting standards and expectations for its independent consultants. See Moreau v. Air France, 356 F.3d 942, 951 (9th Cir. 2004) (holding that an airline's necessary oversight of work performed by contractors was insufficient to convert airline to status as joint ...

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