United States District Court, N.D. California
October 24, 2005.
JOSEPH F. GUERIN, Plaintiff,
GENENTECH, INC., Defendant.
The opinion of the court was delivered by: JEFFREY WHITE, District Judge
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
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
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 employer).
The evidence marshaled by Defendant indicates that NetVersant was
Plaintiff's employee and that, under the totality of the
circumstances, Genentech did not exercise sufficient control to
create joint employer liability.*fn1
Because Plaintiff has failed to demonstrate that Genentech
acted as a joint employer, the Court need not address the merits
of Plaintiff's contentions that he was terminated because of his
race or age in violation of Title VII, the ADEA, FEHA, or the
Unruh Civil Rights Act. However, for the sake of completeness, the Court finds that
Plaintiff has failed on the merits to make out a claim for
C. Plaintiff's Race Discrimination Claims Do Not Survive
Plaintiff brings a claim for race discrimination and contends
that Genentech asked that he be removed from their account
because of his race. In order to make a claim for discrimination,
Plaintiff must establish that he suffered an adverse employment
action that was motivated by intentional discriminatory animus.
See, e.g., Guz v. Bechtel National, Inc., 24 Cal.4th 317,
First, Plaintiff must establish a prima facie case of
discrimination. See Guz, 24 Cal.4th at 351-54. Whether
Plaintiff can meet his burden to establish a prima facie case of
discrimination is a matter of law to be determined by the court.
Caldwell v. Paramount Unified School District,
41 Cal. App. 4th 189, 201 (1995). If Plaintiff establishes a prima facie case, the
burden then shifts to Defendant to articulate a legitimate,
nondiscriminatory reason for its employment decision. Then, in
order to prevail, Plaintiff must demonstrate that the employer's
alleged reason for the adverse employment decision was a pretext
for another, discriminatory motive. See Guz,
24 Cal.4th at 351-54; see also Villiarimo v. Aloha Island Air, Inc.,
281 F.3d 1054, 1061 (9th Cir. 2002). Plaintiff may establish a prima facie
case of discrimination by demonstrating that (1) he belongs to a
statutorily protected class; (2) he applied for and was qualified
for an available position; (3) he suffered an adverse employment
decision despite his qualifications; and (4) the position
remained open or another person, typically outside of Plaintiff's
protected class, was hired instead. See, e.g., Diaz v. American
Telephone & Telegraph, 752 F.2d 1356, 1359-1362 (9th Cir. 1985).
The only significant difference in the FEHA analysis is that in
order to establish a prima facie case, Plaintiff must, in
addition to the first three elements, demonstrate some other
circumstance that suggests discriminatory motive. See, e.g.,
Guz, 24 Cal.4th at 355.
1. Prima Facie Case.
At summary judgment, the degree of proof necessary to establish
a prima facie case is "minimal and does not even need to rise to
the level of a preponderance of the evidence." Lyons v. England, 307 F.3d 1092, 1112 (9th Cir. 2002) (quoting
Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir. 1994)).
Plaintiff contends that his supervisor, Mr. Gromoff, "was
constantly undermining [him] by reassigning [his] staff,
countermanding [his] instructions, sabotaging [his] work by
delaying delivery of floor plans and information, denigrating
[him] to others, and barring him from meetings." (Opp. Br. at 3.)
Without citation to the record, Plaintiff maintains that a
"racial motive can be inferred from the vehement hostility of Mr.
Because the standard for establishing a prima facie case is so
minimal, the Court will assume for the sake of argument that
Plaintiff has made a prima facie showing.
2. Genentech Has Demonstrated Legitimate Business Reasons for
Terminating Plaintiff's Assignment.
Even if Plaintiff could successfully establish a prima facie
case of either race or age discrimination, the undisputed facts
demonstrate that Genentech had a legitimate business reasons to
terminate Plaintiff's assignment. The undisputed record indicates
that Plaintiff failed to follow directions, failed to staff his
projects efficiently, and repeatedly mistreated his staff and the
employees of other Genentech vendors. (Acton Decl., Ex. S (Coffin
Depo. at 38-39, 47-49); Ex. T (Gromoff Depo. at 49); Ex. R
(Callison Depo. at 31-36); Declaration of George Gromoff, ¶¶
4-10, Exs. F-H; Hartung Decl., ¶¶ 5-12, Exs. A-E.) Failure to
perform in accordance with the standards set by the customer is
sufficient to constitute a legitimate business reason for
termination from the assignment. See Hersant v. Dept. of Social
Services, 57 Cal. App. 4th 997, 1007-1010 (1997). Plaintiff's
arguments that Genentech's complaints about his performance were
making a mountain of a molehill and were unsupported, pernicious,
trifling and petty are unavailing. (Opp. Br. at 8.) The record is
replete with complaints regarding Plaintiff's performance.
Defendant has met its burden of demonstrating legitimate business
reasons for terminating Plaintiff's assignment.
3. Plaintiff Fails to Raise an Issue of Disputed Fact
Because Defendant presents evidence demonstrating a legitimate
nondiscriminatory reason for the termination, Plaintiff bears the
burden of demonstrating that Defendant's articulated reason is pretextual. Plaintiff may do so "either 
directly by persuading the court that a discriminatory reason
more likely motivated the employer or  indirectly by showing
that the employer's proffered explanation is unworthy of
credence." Merrick v. Farmers Ins. Group, 892 F.2d 1434, 1437
(9th Cir. 1990) (internal cites and quotations omitted).
Although Plaintiff fails to identify any specific evidence in
his opposition to Genentech's motion for summary judgment, and it
is not the district court's task to scour the record in search of
a genuine issue of material fact, the Court has reviewed the
record submitted by both parties. See Keenan v. Allan,
91 F.3d 1275, 1279 (9th Cir. 1996) (citation omitted). Plaintiff
apparently alleges race discrimination based on the testimony of
remarks made by Callison, an Operations Analyst at Genentech and
overheard by Gromoff, a Senior Supervisor. Plaintiff allegedly
overheard Callison make a comment to Gromoff at the copy machine
about "some 10,000 people named George that happened to be
black." (Acton Decl., Ex. J (Guerin Depo. at 114, 198-200).) It
is clear from the record that the overheard remarks were made in
reference to a civil rights era documentary about the history of
African Americans in the United States. (Acton Decl., Ex. AA
(Jerez Depo. at 89-90).)
First, because of the context in which the remarks by Callison
were made, there is no evidence of racial animus. Second, because
neither Callison nor Gromoff were the decisionmakers involved in
the decision to terminate the customer representative
relationship, their remarks are inadequate to demonstrate racial
animus. "[S]tatements by nondecisionmakers, nor statements by
decisionmakers unrelated to the decisional process itself,
[cannot alone] suffice to satisfy the plaintiff's burden in this
regard." McGinest v. GTE Service Corp., 360 F.3d 1103, 1138
(9th Cir. 2004), citing Price Waterhouse v. Hopkins,
490 U.S. 228, 277 (1989) (O'Connor, J., concurring). Lastly, the comment
is too isolated and vague to establish discriminatory bias.
Ambiguous stray remarks cannot establish pretext. See Mondero v.
Salt River Project, 400 F.3d 1207, 1213 (9th Cir. 2005) (holding
that stray remarks not acted upon or communicated to a decision
maker are insufficient to establish pretext); see also Merrick,
892 F.2d at 1438 (same). A single stray remark, without other
substantial evidence, is insufficient to withstand summary judgment. See Mangold v.
California Public Utilities Commission, 67 F.3d 1470, 1477 (9th
Beside the unsupported allegation that "racial motive can be
inferred from the vehement hostility of Mr. Gromoff" based on the
complaints regarding Plaintiff's performance, Plaintiff fails to
set forth any direct evidence to persuade the court that a
discriminatory reason more likely motivated the employer or any
indirect evidence tending to demonstrate that the employer's
proffered explanation is unworthy of credence. See Merrick,
892 F.2d at 1437. Therefore, the Court grants summary judgment on
Plaintiff's allegations of discrimination based on race.
D. Plaintiff's Age Discrimination Claims Do Not Survive
Plaintiff also brings a claim for age discrimination and
contends that Genentech asked that he be removed from their
account because of his age. The ADEA makes it "unlawful for an
employer . . . to fail or refuse to hire or to discharge any
individual [who is at least 40 years of age] . . . because of
such individual's age." Id. at §§ 623(a), 631(a). To succeed on
his claim, Plaintiff must demonstrate that age actually motivated
Defendant's decision to terminate him. See Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. 133, 141 (2000).
Plaintiff again bears the initial burden of establishing a
prima facie case of discrimination. If he establishes a prima
facie case, the burden then shifts to the defendant to articulate
a legitimate nondiscriminatory reason for its employment
decision. Then, in order to prevail, Plaintiff must demonstrate
that Defendant's alleged reason for the adverse employment
decision is a pretext for another motive which is discriminatory.
See Schnidrig v. Columbia Machine, Inc., 80 F.3d 1406, 1409
(9th Cir. 1996) (citation omitted). Guerin may establish a prima
facie case either by direct evidence of discriminatory intent or
by circumstantial evidence demonstrating he was "(1) a member of
the protected class (age 40-70); (2) performing his job in a
satisfactory manner; (3) discharged; and (4) replaced by a
substantially younger employee with equal or inferior
qualifications." See Schnidrig, 80 F.3d at 1410; see also
Nidds v. Schindler Elevator Corp., 113 F.3d 912, 917 (9th Cir.
1997). 1. Prima Facie Case and Legitimate, Nondiscriminatory Reason
Plaintiff asserts that Genentech discriminated against him
because of his age based upon a single remark by Gromoff to Ms.
Thompson, a senior manager, to the effect that Plaintiff may have
tended to forget things because of his age and the general
corporate culture of the workplace. Again, assuming Plaintiff has
made out a prima facie case of age discrimination, Genentech has
identified legitimate business reasons for terminating the
customer relationship with him. Again, failure to perform in
accordance with the standards set by the customer is sufficient
to constitute a legitimate, nondiscriminatory business reason for
termination from the assignment. See Hersant,
57 Cal. App. 4th at 1007-1010.
The burden then shifts to Plaintiff to demonstrate that the
reason for the adverse employment decision was a pretext for
another, discriminatory motive.
2. Plaintiff Fails to Raise an Issue of Disputed Fact
To demonstrate pretext, Plaintiff relies on a statement made by
Gromoff regarding Plaintiff's alleged loss of memory due to his
age. (Rogers Decl., Ex. 3 (Williams Depo. at 47).) Plaintiff
admits that the comment about his age was an isolated instance.
(Acton Decl., Ex. J (Guerin Depo. at 113-14).) The Ninth Circuit
has held that similar kinds of statements were merely "stray"
remarks and, thus, were insufficient to create a genuine issue of
fact regarding age discrimination. See Merrick, 892 at 1438-39
(holding that hiring supervisor's statement that he hired a
younger employee over plaintiff because he was "bright,
intelligent, knowledgeable young man" was a stray remark
insufficient to create an inference of age discrimination); see
also Coleman v. Quaker Oats Co., 232 F.3d 1271, 1284-85 (9th
Cir. 2000) (holding that employer's statement that plaintiff was
not "young and promotable" did not give rise to suspicions of age
discrimination); Nesbit v. Pepisco, 994 F.2d 703, 705 (9th Cir.
1993) (holding that employer's statement that "[w]e don't
necessarily like grey hair" did not support inference of
discriminatory motive). Gromoff's alleged statement, an isolated
instance and a vague remark, does not create an inference of age
discrimination. Accordingly, this evidence is insufficient to
create a genuine issue of fact regarding pretext. Plaintiff also contends that the corporate culture at Genentech
was somehow youthful, by asserting that supervisors wore
younger-looking clothes and encouraged a youthful environment by
sponsoring musical acts such as Stevie Wonder and Earth, Wind and
Fire to play on campus. (Acton Decl., Ex. J (Guerin Depo. at
109-112).) Evidence of a supervisor's fashion or musical
preferences is of no probative value whatsoever and does not
create a genuine issue of fact tending to demonstrate that
demonstrate that Defendant's alleged reason for the adverse
employment decision is a pretext for another, discriminatory
motive. See Schnidrig, 80 F.3d at 1409.
E. The Unruh Act Claim Fails as a Matter of Law.
Plaintiff also brings claims for race and age discrimination
under California's Unruh Civil Rights Act. Cal. Civ. Code § 51,
et seq. The Unruh Act provides:
All persons within the jurisdiction of this state are
free and equal, and no matter what their sex, race,
color, religion, ancestry, national origin, . . . are
entitled to the full and equal accommodations,
advantages, facilities, privileges, or services in
all business establishments of every kind whatsoever.
Cal. Civ. Code § 51. The Unruh Act prohibits discrimination "by a
`business establishment' in the course of furnishing goods,
services or facilities to its clients, patrons or customers."
Alcorn v. Anbro Eng'g, Inc., 2 Cal.3d 493, 500 (1970). The
Unruh Act does not, however, apply to allegations of
discrimination in employment. Id.; see also Rojo v. Kliger,
52 Cal.3d 65, 77 (1990) (holding that the Unruh Act has no
application to employment discrimination). "It is reasonably
plain from Rojo, Alcorn and other cases on the subject that
`employment discrimination' claims not covered by the Unruh Act
are confined to claims by an employee against his employer, or
against an entity in the position of the employer." Alch v.
Superior Court, 122 Cal. App. 4th 339
, 392-93 (2004). The Unruh
Act only applies to business establishments in the context of the
supply of services or facilities to clients, patrons, or
customers, not when the establishment serves in the position of
the employer. The gravamen of Plaintiff's complaint is
discrimination in employment, not the supply of services.
Therefore, the Unruh Act is inapplicable. Furthermore, even if
applicable, summary judgment is proper on Plaintiff's Unruh Act
claims as, based on the foregoing analysis, Plaintiff is unable
to establish intentional discrimination on the basis of age or
race. See Harris v. Capital Growth Investors XIV, 52 Cal.3d 1142, 1175 (1991) (holding that a plaintiff
seeking to establish a case under the Unruh Act must plead and
prove intentional discrimination in public accommodations in
violation of the terms of the Act).
For the foregoing reasons, the Court hereby GRANTS Defendant's
motion for summary judgment. Judgment shall be entered against
Plaintiff and in favor of Defendant.
IT IS SO ORDERED.
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