The opinion of the court was delivered by: Oliver W. Wanger United States District Judge
SCHEDULING CONFERENCE ORDER Discovery Cut-Off: 6/15/09 Non-Dispositive Motion Filing Deadline: 6/30/09 Dispositive Motion Filing Deadline: 7/15/09 Settlement Conference Date: 6/30/09 10:00 Ctrm. 10 Pre-Trial Conference Date: 9/21/09 11:00 Ctrm. 3 Trial Date: 11/3/09 9:00 Ctrm. 3 (JT-12 days)
Date of Scheduling Conference. September 5, 2008
1. Plaintiff Arnold Betschart was employed for over 18 years for defendant Gordon Trucking, Inc., until he was involuntarily terminated on or about June 6, 2007. He first worked in Pacific, Washington headquarters, and then became director of regional operations in Turlock, California starting February 13, 1995, where he established a terminal, hired the driving and non-driving staff, established a maintenance facility and staffed and ran it, and got the overall business up and running in California. He remained in this position until May 31, 2006, when he was involuntarily removed from the position and moved into the position of director of maintenance/operations. His base pay remained the same in the new position, but he lost eligibility for incentive pay. Therefore, it was a demotion. Then on June 6, 2007, he was involuntarily terminated from his employment. Plaintiff had a history of favorable feedback, positive evaluations, pay raises, and bonuses.
2. At the time of his termination, plaintiff was 59 years old. When he was demoted, he was replaced by someone in his 30s. When he was terminated, he was replaced by a person also in his 30s. Discriminatory ageist remarks were made by Steve Gordon, the Chief Operating Officer of defendant when he announced plaintiff's demotion. Other ageist remarks were directed, as well, at plaintiff by the person who replaced him when he was terminated; and previously, other ageist remarks were also directed at him.
3. Plaintiff had had heart surgery and hip replacement surgery, and was disabled at the time of his termination. His wife had, and still has, cancer, and his stepson, who he is raising and who was covered on the defendant's health plan, has cerebral palsy. Defendant's health plan was a plan in which defendant ended picking up most medical costs for its employees and their dependents out of its own pocket; and it had paid substantial health expenses for plaintiff and his family, and anticipated paying substantial additional ones, and defendant had made remarks indicating concern over these expenses it was incurring and would continue to incur for plaintiff and his family.
4. Defendant also had made negative remarks about plaintiff's disabilities.
5. Plaintiff contends he was demoted and transferred, denied incentive pay in conjunction therewith, and terminated (a) related to his age, in violation of the Age Discrimination in Employment Act, 29 U.S.C. §§ 623 et seq., (b) related to disability, in violation of the Americans with Disabilities Act for violation of 29 U.S.C. § 12112 et seq., (both related to plaintiff's own disabilities and related to the known disabilities of persons [his wife and stepson] with whom the employee (plaintiff) is known to have a relationship or association - see 42 U.S.C. § 12112(b)(4); (c) in violation of the Employment Retirement Income Security Act, and specifically for violation of 29 U.S.C. § 1140, including, without limitation, related to his entitlement to benefits covered by ERISA and his employer's desire to deny him and not pay for these benefits, and/or in retaliation for his having exercised his right to participate in an ERISA-covered health insurance plan, and an expectation of what the benefits would be which he would receive in the future, and/or with the purpose of interfering with the statement of a right to which he had become entitled under an ERISA-covered employee benefits plan, and/or based on his laying claim to and/or seeking to qualify for vested or unvested benefits under an ERISA-covered employee benefit plan. Basically, he was becoming a very costly employee in terms of health benefits (which were paid for directly by the employer -the employer was essentially self-insured), and to a lesser degree, the 401(k) plan of the employer.
6. Plaintiff also alleges that in wrongfully transferring and demoting plaintiff, denying him incentive pay, and terminating him, defendant also violated the California Fair Employment and Housing Act's provisions on age discrimination and disability discrimination, as well as engaged in tortious wrongful adverse public actions against public policy.
7. Plaintiff seeks past and future economic loss according to proof, damages for emotional distress, humiliation, embarrassment, mental anguish, shame, loss of enjoyment of life, pain, and suffering, and injury to reputation, according to proof, and punitive and exemplary damages according to proof. Plaintiff will also seek equitable relief as may be appropriate, including, without limitation, reinstatement and/or front pay, appropriate seniority, promotions and pay raises, appropriate expungement of his employment records, and removal and correction of any adverse effects of defendant's unlawful conduct. Plaintiff will also seek an award of reasonable attorneys' fees and costs. As to the ADEA claim, plaintiff also seeks an award of an additional amount as and for liquidated damages equal to the economic damages awarded in the matter.
1. Mr. Betschart began his employment with Gordon Trucking in August, 1988, and thereafter voluntarily resigned on March 15, 1994. Thereafter, Gordon Trucking approached Mr. Betschart and re-hired him on February 13, 1995, to operate a new terminal in Modesto/Turlock, California.
2. Importantly, most of plaintiff's allegations of discrimination allegedly took place prior to Gordon Trucking re-hiring him! Unfortunately for Mr. Betschart, a storm of personal issues related to him and his wife divorcing, his ailing mother passing away, and subsequent issues with his brother over their mother's estate, and other related matters led Mr. Betschart to lose the initiative, drive and enthusiasm that characterized his earlier employment. He simply lost interest in working. To that end, Mr. Betschart was counseled several times regarding his performance deficiencies as the manager.
3. Therefore, for its part, Gordon Trucking, in an effort to accommodate a cherished employee, transferred plaintiff from operations to maintenance, at the same salary and benefits. However, with this transfer, Mr. Betschart continued to show little interest in his duties or his performance. Accordingly, after a series of efforts to encourage his improvement, and with no further recourse, on June 6, 2007, he was terminated for non-performance.
4. With respect to Mr. Betschart's specific allegations, Gordon Trucking categorically denies anyone in management made ageist remarks to or about him, and denies any and all allegations about disability discrimination related to his and/or his new family's medical condition (Betschart remarried after he and his first wife divorced). Indeed, Mr. Betschart, his new wife and stepson were treated at all times as any other employee and his/her family relative to employment, evaluations, compensation and benefits. Moreover, and in fact, all of Gordon Trucking's employee medical benefits are administered by a fair, impartial, and independent third party administrator. Thus, Gordon Trucking looks forward to the facts coming to light to refute these meritless claims.
II. Orders Re Amendments To Pleadings
1. The parties do not anticipate amending the pleadings at this time.
A. Admitted Facts Which Are Deemed Proven Without Further Proceedings
1. Plaintiff is a citizen of the United States, a resident of the Eastern District of California at all times relevant, from August of 1988, with an interruption from April 13, 1994, to February 13, 1995. His employment with the company ended in June of 2007.
2. Gordon Trucking, Inc., is a Washington corporation licensed to do business as a commercial trucking firm in the State of California.
3. At the time Plaintiff left Defendant's employment, he was director of maintenance operations.
4. On May 31, 2006, Plaintiff was reassigned. Plaintiff contends this was a demotion.
5. Plaintiff's reassignment involved a change of title from director of regional operations to director of maintenance operations.
6. It is anticipated that certain basic facts about Plaintiff and Plaintiff's employment history, including, without limitation, the dates of his employment, his job titles, the dates of changes in his job titles, his pay history, the benefits he was entitled to, what amount of medical expenses the employer paid for Plaintiff as part of the health plan, Plaintiff's date of birth, the date he was transferred, what ratings were written down on his performance valuations, the date of his termination, who ...