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 ...