The opinion of the court was delivered by: Anthony W. Ishii Chief United States District Judge
ORDER GRANTING DEFENDANT TIME WARNER TELECOM HOLDINGS INC.'S MOTION FOR SUMMARY JUDGMENT
Plaintiff Felipe Montoya ("Montoya") has sued Defendant Time Warner Telecom Holdings, Inc., ("TWT") asserting claims for age discrimination under the California Fair Employment and Housing Act ("FEHA"), (Cal. Gov. Code Section 12900), wrongful termination in violation of public policy, defamation, and unfair business practice. TWT moves for summary judgment. As discussed below, Defendant's motion will be granted, as the court finds that the undisputed evidence shows that TWT acted for legitimate, non-discriminatory reasons.
Montoya was originally hired in 1998 by a company called GST. Thereafter, TWT bought out GST. TWT delivers communication packages, including long distance and high speed internet to business customers in many states, including California. Montoya was employed as a Network Technician for TWT at the Fresno office. As a Network Technician, Montoya was responsible for installing, servicing, and maintaining communication network systems. Arnold Baltis ("Baltis") was Montoya's supervisor until Baltis was replaced by David Yates ("Yates"), a former Central Office Technician. From approximately March 2005 to March 2006, Montoya reported directly to Kevin McDaniel ("McDaniel"), the Operations Director, who oversaw the Fresno office. See Pl. Dep. 76:24-77:10. Montoya testified that he had no problems working with McDaniel as his direct supervisor. See Pl. Dep. 77:11-14.
In March 2006, TWT created an Operations Manager position to oversee all technicians. The Operations Manager reported to McDaniel. Yates, who also reported to McDaniel, applied for the position, but Montoya did not. See Pl. Dep. 50:23-25; McDaniel Dep. 122:9-20. Yates was hired as Operations Manager in March 2006. See Pl. Dep. 50:23-25; McDaniel Dep. 122:9-20. At this point, Yates became Montoya's supervisor and McDaniel remained Yates' supervisor. See McDaniel Dec. ¶ 3. Montoya testified that he had no problems working with Yates as a peer, and he considered Yates a friend. See Pl. Dep. 49:14-18, 73:14-16, 77:11-14. Plaintiff, however, admits that on one occasion, Yates was discussing Montoya's attendance with him and Montoya admits he told Yates to "fuck off" or he may have said "fuck you." See DUMF No. 2; Pl. Dep. 56:6-24. On another occasion, Yates asked Montoya to call a TWT employee in the company's National Operations Center ("NOC"), and Montoya responded via e-mail "talking to him already ... get with the plan." See Daniel Handman ("Handman") Decl., Exh. H. During the relevant time period, Meredith Mackert ("Mackert") was the human resources director at TWT.
B. Montoya's Performance and First Written Warning
Montoya alleges he was employee of the month in June 2006. McDaniel testified that he approved Montoya for merit based increases, while McDaniel was Montoya's supervisor. See McDaniel Dep. 115:25-116:6. Both Yates and McDaniel gave Montoya positive performance reviews as recently as August 1, 2006. See Yates Dep. 29:25-30:5; McDaniel Dep. 144:12-18. TWT asserts that in August 2006, Montoya's work performance began to decline. On August 7, 2006, Montoya and two other, younger TWT technicians were sent to install hardware for a TWT client. See Pl. Dep. 115:24-116:6. Montoya testified that he and his colleagues did not pay "to[o] much attention" to the installation instructions. See Handman Decl. Exh. E. Montoya and his colleagues installed different fuses than called for in the instructions because "it was common practice in the previous years." See Handman Decl. Ex. E. On August 16, 2006, the hardware that was installed became non-operational because the wrong size fuses were installed. See Yates Dep. 66:3-67:18. Yates declared that he gave a verbal warning to all three employees for the faulty installation. See Yates Decl. ¶ 4.*fn2
On August 18, 2006, a service outage occurred for an entirely different TWT customer in the Fresno area. See Yates Dep. 73:6-74:5. Yates reviewed a "trouble ticket" from a software monitoring program on the TWT network (the "Net-X system")*fn3 , which indicated that Montoya had caused the unplanned service outage. See Yates Dep. 72:7-11, 74:3-22. Montoya admitted that he caused the unplanned service outage but maintains it was an accident. See Handman Decl., Exh. E.
TWT asserts that Montoya failed to detect the August 18, 2006 service outage on the NetX system because he did not log into Net-X. See DUMF Nos. 11-13. Before the August 18, 2006 outage, Yates told Montoya that he was expected to log into Net-X three times a day. See Yates Dep. 35:4-14; 36:14-18.*fn4 Montoya admitted "I will admit to not signing into Net-X at the time in question." See DUMF No.12; Pl. Dep. 124:9-13; Handman Decl. Ex. E.*fn5
On August 22, 2006, Montoya was given a written warning, reprimanding him for his conduct with respect to the August 7, 2006 and August 18, 2006 unplanned outages. See Pl. Dep. 121:13-122:6; McDaniel Dep. 51:22-52:1-5; McDaniel Decl., ¶7, Exh. C. Yates and McDaniel met with Plaintiff to discuss the written warning. See McDaniel Dep. 55:10-56:10; Yates Decl. ¶5. Mackert was on the phone for the written warning discussion. See McDaniel Dep. 57:8-17. Montoya asked Yates "why he had said that I had done this [caused the first outage]," and that Yates responded that Montoya had put in the wrong fuses. See Pl. Dep. 129:22-130:13. Montoya responded to Yates, "[i]t's the fuses we have been using for years." See Pl. Dep. 129:22-130:13. Montoya alleges that he remembers nothing more of the conversation. See Pl. Dep. 129:22-130:13. Yates and McDaniel both testified that they presented Montoya with the written warning, discussed both outages with Montoya, and asked Montoya if he understood the warning, which he acknowledged that he did and invited Montoya to offer any comments he had and Montoya opted not to do so. See DUMF Nos.17-18.
On December 20, 2006, Yates received a call from the NOC advising him that an alarm had gone off indicating that service had been shut down for five TWT customers. See Yates Dep. 87:23-88:10; Yates Decl. ¶6. In total, service was down for these five TWT customers, including a hospital, for at least 20 minutes. See Pl. Dep. 164:6-9; Yates Dep. 58:10-59:3, 91:7-10. On December 20, 2006, Montoya was "in the equipment trying to see if [he] could get visibility to the network." See Handman Decl., Exh. F. By "in the equipment," Montoya was referring to the equipment that went down and caused an outage for five TWT customers. See Pl. Dep.167:7-20. Yates requested assistance from the NOC to determine the cause of the outage. See Yates Decl. ¶ 7. The NOC reported to Yates that the outage could be traced to the IP address assigned to Montoya's computer. See Carl Gard Decl. ¶ 2, Exh. A. Based on the NOC's report, and given Yates' knowledge that he and Montoya were the only TWT employees present in the Fresno office at the time, Yates concluded that Montoya was responsible for causing the outage. See Yates Dep. 61:7-12, 64:6-10; Yates Decl. ¶6.*fn6
On January 5, 2007, Yates and McDaniel met with Montoya and gave Montoya a final written warning for causing the December 20, 2006 unplanned service outage. See Pl. Dep. 151:25-152:17; Yates Decl. ¶ 8. Mackert participated in the meeting by telephone. See Yates Decl. ¶ 8. The final written warning stated: "Please be advised that failure to comply with this warning or violation of any company policy will not be tolerated. You are expected to show immediate and sustained improvements in the concerns outlined above. Failure to comply will result in further disciplinary action, up to and including termination." See McDaniel Dec. ¶ 7, Exhibit D.
D. January 5, 2007 Incident
Montoya had been responsible for installing a number of services for Western Fleet, a TWT customer. See Pl. Dep. 173:24-174:4, 174:25-175:9. On January 5, 2007, Yates received a call from Western Fleet, who informed him that their fax line was not working. See Yates Decl. ¶9. Yates asked Montoya to go to the customer location to fix the fax line. See Handman Decl., Exh. G. Montoya maintains that he went to the customer site, fixed the fax line, and assured Western Fleet individuals that "the service was ready for them." See Handman Decl., Exh. G. Yates testified that on January 9, 2007, he learned that the fax line was still not working. See Yates Decl. ¶9. Yates concluded that Montoya failed to correct the fax line because Western Fleet complained to TWT that their line was still not working after Yates had instructed Montoya to service the line. See DUMF Nos. 28-31; Yates Decl. ¶9-10.*fn7 Ultimately, Yates sent a different technician to correct the problem. See Yates Dep. 28:25-29:3; Pl. Dep. 172:22-173:11.
E. January 8, 2007 Incident
TWT asserts that soon after Montoya was given the final written warning, Montoya violated TWT's policies on safekeeping company property. On January 8, 2007, Plaintiff left his TWT-provided laptop in his TWT-provided truck overnight at his home. The truck was broken into, and the laptop was stolen. See Pl. Dep. 39:24-40:11. TWT asserts that on December 2, 2005, McDaniel sent an email to all technicians who reported to him, including Montoya, which stated: "If you have a laptop, take it home with you EVERYDAY! No exceptions! When you get home, take it out of your truck, and into the house with you. If you have test equipment in your truck, remove it as well, and place inside your home." See McDaniel Decl. ¶4, Exh. A; McDaniel Dep. at 22:2-10. TWT contends that on June 1, 2006, TWT sent an email to all technicians nationally that attached a "Field Operations Tool and Test Equipment Security Policy." See McDaniel Decl. ¶5, Exh. B. That security policy provided, "No company PC's or laptops may be left in a company vehicle overnight. No test equipment or tools with a value over $5000 may be left in a company vehicle overnight." See McDaniel Decl. ¶ 5, Exh. B.*fn8 Montoya admits that failure to safeguard his company property "was an error on my part." See Pl. Dep. 40:12-15.
TWT asserts that after the January 5, 2007, and January 8, 2007, incidents, McDaniel and Yates made the decision to recommend that the company terminate Montoya's employment. See DUMF No. 37. McDaniel and Yates spoke with Mackert and explained Montoya's work-related issues. See DUMF No. 37-38. Mackert concluded that McDaniel and Yates' termination recommendation was warranted, and she approved Montoya's termination. See DUMF No. 39. On January 12, 2007, Montoya was called into a meeting with Yates, McDaniel, Mackert (who attended by telephone), and Jeff Jarvis*fn9 (who also attended by telephone). See Pl. Dep.168:19-169:10. At this meeting, Montoya was given a termination letter. Id. McDaniel and Yates contend that Montoya was terminated for the reasons set forth in the written warning, the final written warning and the termination letter, namely ...