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BYRNES v. LOCKHEED-MARTIN

December 28, 2005.

TOM BYRNES, Plaintiff,
v.
LOCKHEED-MARTIN, INC., DEIRDRE WONG, LARRY MAYER, JIM SCHNEPP, ET AL., Defendants.



The opinion of the court was delivered by: RONALD WHYTE, District Judge

ORDER GRANTING DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT AND GRANTING DEFENDANTS' MOTION FOR SANCTIONS
Tom Byrnes ("Byrnes") has sued Lockheed-Martin, Inc. ("Lockheed") for (1) employment discrimination, (2) wrongful termination of employment in violation of public policy, (3) breach of contract, (4) fraud and deceit, (5) defamation, and (6) intentional infliction of emotional distress. Byrnes has also sued Deirdre Wong ("Wong"), Larry Mayer ("Mayer"), and Jim Schnepp ("Schnepp"), Lockheed employees (collectively with Lockheed, "defendants"), for defamation and intentional infliction of emotional distress. Defendants move for summary judgment on all causes of action. In addition, Wong, Mayer and Schnepp move for sanctions under Federal Rule of Civil Procedure 11 ("Rule 11"). Byrnes opposes defendants' motions. The court has read the moving and responding papers and considered the arguments of counsel. For the reasons set forth below, the court grants both the motions for summary judgment and the motion for sanctions.

I. BACKGROUND

  Lockheed hired Byrnes in 1988 as a Systems Planning Engineer. Schnepp Decl. Supp. Mot. Summ. J ("Schnepp Decl.") Ex. B. Since 2000, Schnepp supervised Byrnes. Id. at ¶ 2. Byrnes led a project known as IDMT. Id. In order to staff the IDMT project, Byrnes worked with personnel from another department. Wong was one such individual. Id. She worked for Mayer's department. Id.

  Defendants assert that Byrnes sexually harassed Wong. Around December 2002, he gave her a card and an orchid. Byrnes had written in the card "I consider our friendship as beautiful (and fragile) as this orchid. I hope that both will continue to grow and flower in the future." Sprinkle Decl. Supp. Mot. Summ. J ("Sprinkle Decl.") Ex. A. In Byrnes' deposition, he testified that he would complement Wong on her body because "she goes to the gym all the time, and you know, if she doesn't want people to comment on her body style, you know, then why does she go to the gym and work out all the time?" Byrnes Depo. at 153:9-12. For Christmas that year, he gave her a diamond and ruby ring. Id. at 145:2-17. On February 26, 2002 he fixed a computer problem for her. He emailed her and asked "for the simplest of rewards — will you allow me to follow you up the stairs again? Please?" Sprinkle Decl. Ex. 9.

  Lockheed claims that it became aware of the situation between Byrnes and Wong in February 2003, when Byrnes sent a memo to Schnepp asking for him to remove Wong from the IDMT project. Byrnes Depo. at 388:11-14. According to Schnepp, he became curious because Byrnes had always spoken highly of Wong. Schnepp Decl. ¶ 3. Schnepp contends that he spoke to Wong, who informed him about Byrnes' advances. Id. Schnepp claims that he told Byrnes not to contact Wong. Id. at ¶ 4. Nevertheless, in September 2003, Byrnes confronted Wong. He told her that he "was tired of being complained about . . . and it's doing her no good to continue complaining." Byrnes Depo. at 347:5-350:3. According to Lockheed, Wong reported this conversation to Mayer because Schnepp was out of the office. Mayer reprimanded Byrnes, telling him that he was not to go near Wong "in any way, shape, or form." Id. at 350:15-17. On September 8, 2003 Byrnes wrote a memo to Schnepp. Sprinkle Decl. Ex. 19. Byrnes informed Schnepp that he believed that Mayer was trying to take over the IDMT project. Id. He wrote: "A caution: the next time Mayer engages me in any way, whether under color of your authority or not, I will consider it an act of aggression and respond accordingly." Id. Byrnes asked Schnepp either to transfer the IDMT project to Mayer or instruct him not to interfere with Byrnes' work. Id. Schnepp then met with Byrnes. During the meeting, Byrnes became angry, and told Schnepp that "this is why people go postal." Byrnes Depo. at 112:22-113:20. According to Lockheed, a few weeks before the meeting, a Lockheed employee at a plant in Meridian Mississippi had killed several co-workers. In light of that event, Schnepp reported Byrnes' statement to company security and upper management. Schnepp Decl. ¶ 5.

  On September 16, 2003 Byrnes went on medical leave. According to Lockheed, it has a company policy not to discipline employees who are on medical leave. Schnepp Decl. ¶ 6. On February 18, 2004 Lockheed received a letter from Byrnes' doctor stating that Byrnes would be able to return to work on March 1, 2004 with one limitation: "that Mr. Byrnes cannot have any business or professional interactions with Mr. Larry Mayer." Sprinkle Decl. Ex. 31. Lockheed claims that, after receiving the letter, it both resumed its investigation into Byrnes' alleged misconduct and began to search for a position that met Byrnes' demand. Schnepp Decl. ¶ 7. Lockheed contends that its investigation revealed that Byrnes had engaged in conduct that warranted that his employment be terminated. Id. Lockheed fired Byrnes effective May 7, 2004.

  II. ANALYSIS

  A. Summary Judgment Standard

  Summary judgment is proper when there is no genuine issues as to any material fact and the movant is entitled judgment as a matter of law. See Fed.R.Civ. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). This court must regard as true the non-moving party's evidence, if supported by affidavits or other evidentiary material. Id. at 324. Where the moving party does not bear the burden of proof on the issue at trial, it may discharge its burden of showing that no genuine issue of material fact remains by demonstrating that "there is an absence of evidence to support the nonmoving party's case." Id. at 325. If the moving party shows an absence of evidence to support the non-moving party's case, the burden shifts to the opposing party to produce "specific evidence, through affidavits or admissible discovery material, to show that the dispute exists." Bhan v. NME Hospitals, Inc., 929 F.2d 1404, 1409 (9th Cir. 1991).

  Unfortunately, Byrnes appears to have misunderstood the summary judgment standard. Byrnes' entire evidentiary submission in opposition to defendants' motions consists of his declaration:
I have in my possession numerous facts contained in documents and from other sources which show that a campaign of slander and libel was perpetrated against me. For example, I understand from documents and personal observations that defendant Wong, defendant Schnepp, and defendant Mayer had more than one discussion regarding purported charges of sexual harassment against me, how such charges should be handled or managed, and what effect such charges might produce.
* * *
Documentation produced by the defense confirmed my beliefs that defendant Mayer had produced confidential reports and emails which contained speculation that I might be a sexual harasser or an unstable or dangerous person.
* * *
Much of the written documentation already provided by the defense has validated the allegations regarding the true intentions and methods used by defendants.
Byrnes Decl. Supp. Opp. Mot. Summ. J. ("Byrnes Decl.") ¶¶ 3, 9, 14. As defendants correctly note, Byrnes' contention that he "ha[s] in [his] possession numerous facts contained in documents" that support his legal claims is insufficient. "A trial court can only consider admissible evidence in ruling on a motion for summary judgment." Orr v. Bank of America, 285 F.3d 764, 773 (9th Cir. 2002). Byrnes' attempt to prove what these "documents" say through nothing more than his own testimony suffers from numerous evidentiary flaws.*fn1 Although Byrnes' attorney makes numerous factual allegations in his opposition motions, he does not cite any declaration or deposition testimony to substantiate his claims. "[A] party cannot manufacture a genuine issue of material fact merely by making assertions in its legal memoranda." Varig Airlines v. Walter Kiddle & Co., Inc., 690 F.2d 1235, 1238 (9th Cir. 1982). Accordingly, Byrnes has no admissible evidence to support his claims. As explained below, he cannot meet his summary judgment burden. B. Discrimination Claims
  Byrnes first asserts that Lockheed fired him because of his age and disability.*fn2 According to Byrnes, Lockheed's conduct violated the California Fair Employment and Housing Act ("FEHA"), Cal. Gov't Code §§ 12940 et seq. The FEHA forbids employers from discriminating against employees because of their race or firing them for engaging in protected behavior:
It shall be an unlawful employment practice . . .
* * *
(a) For an employer, because of the . . . physical disability, mental disability, . . . [or] age . . . of any person, . . . to refuse to select the person for a training program leading to employment, or to bar or to discharge the person from employment or from a training program leading to employment, or to discriminate against the person in compensation or in terms, conditions, or privileges of employment.
Cal. Gov. Code § 12940(a). To succeed on his FEHA claims, Byrnes must first establish a prima facie case of discrimination. See, e.g., Guz v. Bechtel Nat. Inc., 24 Cal. 4th 317, 355 (2000). If Byrnes meets this burden, he creates a presumption of discrimination which Lockheed can rebut by "articulating some legitimate, non-discriminatory reason" for its employment decisions. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If Lockheed does so, Byrnes must present "specific, substantial evidence" that Lockheed's reasons are pretextual. Guz, 24 Cal. 4th at 356.

  1. Age Discrimination

  Byrnes argues that Lockheed harassed and fired him because of his age. However, in order to bring a civil action under FEHA, Byrnes must exhaust his administrative remedies See Romano v. Rockwell Int'l, Inc., 14 Cal. 4th 479, 492 (1996). Specifically, he must file a written charge with the Department of Fair Employment and Housing ("DFEH"). "The scope of the written administrative charge defines the permissible scope of the subsequent civil action." Rodriguez v. Airborne Express, 265 F.3d 890, 896 (9th Cir. 2001). Here, Byrnes' DFEH complaint did not allege that Lockheed discriminated against him on the basis of his age:
I believe that I was denied a reasonable accommodation because of my disability (diabetes/stress) and terminated because of my disability and in retaliation for requesting a reasonable accommodation. My belief is based on the following: A. On September 16, 2003 I was placed on an extended medical leave of absence for work-related psychiatric issues.
B. On approximately February 25, 2004 I provided my employer with a doctor's note indicating that I could return to work on March 1, 2004 with a reasonable accommodation (no business of professional interactions ...

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