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Anthony v. Cellco Partnership

August 27, 2010


The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge


Defendant Cellco Partnership dba Verizon Wireless ("Verizon") moves for summary judgment on all claims in Plaintiff's complaint. Plaintiff alleges he was wrongfully terminated from Verizon on January 15, 2008, based on his disability and in retaliation for filing a California Family Rights Act ("CFRA") claim. Verizon argues Plaintiff was terminated for his inappropriate behavior at a company party on December 14, 2007.


When Plaintiff was terminated he worked as an operations manager for Verizon in Rancho Cordova, California. (First Amended Compl. ("FAC") ¶ 1.) Plaintiff attended a Verizon Wireless dinner for members of the Rancho Cordova leadership team on Friday, December 14, 2007, at Rascal's restaurant. (Statement of Undisputed Facts ("SUF") ¶ 11.) Before going to the dinner at Rascal's, Plaintiff "went to a pub alone and consumed two beers". (Id. ¶ 12.) He then "drove himself to Rascal's and consumed one martini," and partially consumed one beer before dinner commenced. (Id. ¶ 13.) The "fourth drink" "was removed from him because he was incapacitated." (Id.) During the dinner at Rascal's, Plaintiff "took food out of his mouth and threw it at other people, including the pregnant spouse of a supervisor; (ii) made inappropriate comments and noises at the table; (iii) barked and growled at the table; (iv) inappropriately touched his supervisor, Tamela Velazquez; (v) leaned on Velazquez and fell off his chair; (vi) was unconscious at the table; and (vii) urinated in the public parking lot and . . . on a Verizon Wireless supervisor." (Id. ¶ 16.) Plaintiff "admits that he has no recollection of the events that took place during the dinner on December 14, 2007", and "has no reason to believe that his co-workers were not telling the truth . . . ." (Id. ¶¶ 14, 17.)

Plaintiff visited the emergency room on Sunday, December 16, 2007, and told the medical staff he was "[v]ery exhausted" and physically and mentally "fatigued." (Id. ¶ 32.) A blood test taken on December 16, 2007 "showed that Plaintiff had THC (tetrahydrocannabinol) in his system and no other drug." (Id. ¶ 34.)

Plaintiff's diagnosis was "consistent with alcohol and marijuana intoxication" and a "[h]angover." (Id. ¶ 33.)

Plaintiff returned to work on Monday, December 17, 2007, at which time Plaintiff sent the following email, with the subject line "Apologies," to the Verizon "leadership team and their spouses":

Please accept my apologies for my unusual behavior at the Leadership dinner the other night. I was at a loss for why I behaved in such an unruly manner that I went to Kaiser on Saturday to have my blood checked for abnormalities; which, by the report, it did appear that I may have ingested something into my system.

At this point all I can do is ask you all to accept my apologies. (Id. ¶ 18; Nasser Decl. Ex. F.) Plaintiff also apologized "in-person to Donald Latimore" for "throwing food at Latimore's pregnant wife" and to his supervisor, Tamela Velasquez, for "touch[ing] her inappropriately." (SUF ¶¶ 20, 21.)

Verizon's policies concerning the consumption of alcohol and inappropriate behavior out of the office are codified in a guide entitled "Your Code of Conduct" ("Code of Conduct"). (Id. ¶ 3.) The Code of Conduct provides, in relevant part:

Verizon Wireless employees are required to treat customers, fellow employees and vendors with respect, dignity, honesty and fairness. It is Verizon Wireless' policy that threatening, insubordinate, violent or obscene behavior by any employee will not be tolerated. Conduct that encourages or permits an offensive or hostile work environment will not be allowed . . . . Unprofessional behavior or prohibited conduct that is harmful to the company's performance will not be tolerated . . . .

Although alcohol may be served at certain Verizon Wireless functions, events or business meetings if authorized by a department vice president or higher level senior manager, consumption at any such event is completely voluntary, should always be in moderation, and never in a manner that would embarrass or harm the company.

(SUF ¶¶ 5, 6; Nasser Decl. Ex. D.)

On December 19, Debria Hall ("Hall"), Director of West Area Operations and Velasquez's direct supervisor, "received an anonymous letter describing the events that took place at the December 14, 2007 dinner at Rascal's." (SUF ¶ 22.) Hall faxed the letter to Verizon Human Resources Associate Director Laura Wildemann and Human Resources Manager Veronica Browning ("Browning"). (Nasser Decl. Ex. L Hall Dep. 30:17-31:20.) On December 21, Verizon's Human Resources Department commenced an investigation, led by Browning, during which Plaintiff stated during an interview "he did not remember what happened [at the dinner] on December 14, 2007." (SUF ¶¶ 23-24.) "On January 3, 2008" Hall filled out and emailed to Browning a "termination or separation template" "recommending that [Plaintiff] be separated from ...

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