The opinion of the court was delivered by: Gregory G. Hollows U. S. Magistrate Judge
ORDER AND FINDINGS AND RECOMMENDATIONS
Previously pending on this court's law and motion calendar for September 25, 2008, was defendants' motion for summary judgment, filed August 25, 2008. Counsel Ernest Malaspina appeared at the hearing on behalf of defendants. Plaintiff appeared in pro se, and filed an opposition which the court will also construe as a motion to withdraw admissions.*fn1
For the reasons that follow, plaintiff's motion to withdraw his admissions is granted in part. It is recommended that defendants' motion for summary judgment be granted in part and denied in part.
The verified complaint alleges that in March 2006 plaintiff was interviewed but not hired for two positions advertised by defendant Vinotheque Wine Cellars. With the assistance of Worknet, plaintiff had filed an employment application with Vinotheque to fill the position of Finish Cabinet Maker (requiring a minimum of two years experience) or Cutter and Cabinet Worker (requiring a minimum of six months experience). Plaintiff then had six years of experience. On Friday, March 10, 2006, Vinotheque's hiring manager, defendant Mark Tanner, called plaintiff and they agreed upon an interview date of March 17. Plaintiff and Tanner were acquainted because they had previously worked together at Romic Environmental Technologies, where Tanner was in charge of employee records. Plaintiff states that Tanner knew plaintiff was over 40 years of age. On March 17, Tanner interviewed plaintiff for a period of 25 minutes, took him on a 20-minute tour of the cabinet-making facilities, and spoke with him for another 15 minutes. In the closing conversation, Tanner asked plaintiff his age, to which plaintiff responded "51." Tanner purportedly stated, "If you do not hear from me within the next two weeks then I will have hired a younger person than you," then quickly stated, "I mean another person."
The complaint alleges that when plaintiff did not hear from Tanner, he telephoned Vinotheque and was told the positions had been filled. Plaintiff then sent defendants three letters dated March 29, March 31, and April 5, 2006, respectively. In these letters, plaintiff makes the assumption that a younger person was hired, and asks defendants to hire plaintiff or face legal action. In a responsive letter dated March 31, 2006, defendants' counsel wrote in pertinent part:
I am in receipt of your letters dated March 29, 2006 and March 31, 2006. To be quite direct, your allegations are baseless. . . .Vinotheque denies any wrongdoing whatsoever in connection with your interview for employment or any other component of its hiring process.
Plaintiff maintains that at least one job remained open at Vinotheque until June 19, 2006.
The complaint makes the following claims against both defendants: (1) discrimination in hiring in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq.; (2) retaliation violation of the ADEA; and (3) intentional infliction of emotional distress, a state law claim. Plaintiff seeks statutory, compensatory and punitive damages.
On January 16, 2008, the district judge adopted the undersigned's findings and recommendations and dismissed defendant Mark Tanner from plaintiff's first claim under the ADEA (age discrimination in hiring); dismissed plaintiff's second claim of retaliation for engaging in a protected activity, in its entirety; and permitted plaintiff's third claim, intentional infliction of emotional distress, to proceed against both defendants.
On August 25, 2008, defendants filed the instant motion for summary judgment, seeking judgment based on requests for admissions to which plaintiff did not respond, and alternatively based on the merits. For the reasons which follow, plaintiff's motion to withdraw admissions will be granted in part. The court finds that only five requests for admissions will be deemed admitted. Taking those five admissions into consideration for purposes of the motion on the merits, the court finds that summary judgment should be denied on plaintiff's ADEA claim in regard to both positions for which plaintiff applied. Summary judgment should be granted on plaintiff's claim for intentional infliction of emotional distress.
II. SUMMARY JUDGMENT STANDARDS UNDER RULE 56
The "purpose of summary judgment is to 'pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356 (1986) (quoting Fed. R. Civ. P. 56(e) advisory committee note to 1963 amendment). Summary judgment is appropriate "if . . . there is no genuine issue as to any material fact, and . . . the moving party is entitled to judgment as a matter of law." Rule 56(c). Disputed facts must be material (affecting the outcome of the suit under the governing law), and genuine (supported by evidence permitting a reasonable jury to return a favorable verdict). Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510 (1986).
[A]lways bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553 (1986) (quoting Rule 56(c)).
The moving party without the burden of proof at trial may rely "solely on the pleadings, depositions, answers to interrogatories, and admissions on file." Id. (citations omitted.) That party need only point to the absence of a genuine material factual issue, and is not required to produce evidence negating the opponent's claim. Id. at 323-24; Lujan v. National Wildlife Fed'n, 497 U.S. 871, 885, 110 S.Ct. 3177, 3187 (1990).
When the moving party meets its responsibility, the burden shifts to the opposing party. Matsushita, 475 U.S. at 586, 106 S.Ct. at 1356. The opposing party then must submit "significant probative evidence" on each element of his claims on which he bears the burden at trial.*fn2 Barnett v. Centoni, 31 F.3d 813, 815 (9th Cir. 1994). Unverified denials in pleadings are insufficient. Neither can conclusory statements defeat a properly supported motion. Scott v. Rosenberg, 702 F.2d 1263, 1271-72 (9th Cir. 1983). Rather, specific facts in the form of affidavits or admissible discovery material must be submitted. Rule 56(e); Matsushita, 475 U.S. at 586 n.11, 106 S.Ct. at 1356 n.11.
The opposing party need not conclusively establish any fact. To demonstrate a genuine dispute, however, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts. . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial." Matsushita, 475 U.S. at 587, 106 S.Ct. at 1356 (citation omitted). In other words, the evidence must demonstrate that a trial is required to resolve the parties' differing versions of the truth.
T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 631 (9th Cir. 1987).
The court believes the evidence of the opposing party, Anderson, 477 U.S. at 255, 106 S.Ct. at 2513, and draws all reasonable inferences in its favor, Matsushita, 475 U.S. at 587, 106 S.Ct. at1356. Nevertheless, inferences are not drawn out of the air, and the opposing party must produce a factual predicate from which to draw an ...