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Nielsen v. Trofholz Technologies

November 1, 2010

JASON NIELSEN, PLAINTIFF,
v.
TROFHOLZ TECHNOLOGIES, INC., A CALIFORNIA CORPORATION, ANDREW PARKER, AN INDIVIDUAL, BRENNA PEDONE, AN INDIVIDUAL, YVONNE GLENN, AN INDIVIDUAL, TROY GLENN, AN INDIVIDUAL AND DOES 1-10, INCLUSIVE, DEFENDANTS.



MEMORANDUM AND ORDER RE: MOTION FOR SUMMARY JUDGMENT

Plaintiff Jason Nielsen brought this action alleging that defendants Trofholz Technologies, Inc. ("TTI"), Andrew Parker, Brenna Pedone, Yvonne Glenn, and Troy Glenn discriminated against him based on gender and disability, retaliated against him, created a hostile work environment, and wrongfully terminated him. Defendants now move for summary judgment on all claims pursuant to Federal Rule of Civil Procedure 56.

I. Standard

Summary judgment is proper "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law."

Fed. R. Civ. P. 56(c). A material fact is one that could affect the outcome of the suit, and a genuine issue is one that could permit a reasonable jury to enter a verdict in the non-moving party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The party moving for summary judgment bears the initial burden of establishing the absence of a genuine issue of material fact and can satisfy this burden by presenting evidence that negates an essential element of the non-moving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Alternatively, the moving party can demonstrate that the non-moving party cannot produce evidence to support an essential element upon which it will bear the burden of proof at trial.

Id.

Once the moving party meets its initial burden, the non-moving party "may not rely merely on allegations or denials in its own pleading," but must go beyond the pleadings and, "by affidavits or as otherwise provided in [Rule 56,] set out specific facts showing a genuine issue for trial." Fed. R. Civ. P. 56(e); Celotex Corp., 477 U.S. at 324; Valandingham v. Bojorquez, 866 F.2d 1135, 1137 (9th Cir. 1989). In its inquiry, the court must view any inferences drawn from the underlying facts in the light most favorable to the nonmoving party, but may not engage in credibility determinations or weigh the evidence. Anderson, 477 U.S. at 255; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

II. Evidentiary Objections

"A trial court can only consider admissible evidence in ruling on a motion for summary judgment." Orr v. Bank of Am., NT & SA, 285 F.3d 764, 773 (9th Cir. 2002) (citing Fed. R. Civ. P. 56(e) and Beyene v. Coleman Sec. Servs., Inc., 854 F.2d 1179, 1181 (9th Cir. 1988)). Plaintiff has filed twenty-six evidentiary objections to evidence defendants submitted in support of their motion for summary judgment (Docket No. 47) and defendants have filed twenty-six evidentiary objections of their own. (Docket No. 60.)

"[T]o survive summary judgment, a party does not necessarily have to produce evidence in a form that would be admissible at trial, as long as the party satisfies the requirements of Federal Rules of Civil Procedure 56." Fraser v. Goodale, 342 F.3d 1032, 1036-37 (9th Cir. 2003) (citing Block v. City of Los Angeles, 253 F.3d 410, 418-19 (9th Cir. 2001)). Even if the non-moving party's evidence is presented in a form that is currently inadmissible, such evidence may be evaluated on a motion for summary judgment so long as defendants' objections could be cured at trial. See Burch v. Regents of the Univ. of Cal., 433 F. Supp. 2d 1110, 1119-20 (E.D. Cal. 2006).

The parties primarily target each others' statements of undisputed facts, attacking the phrasing of the statements and not the underlying evidence upon which they are made. Statements of undisputed facts are not evidence, the admissibility of which can be challenged under the Federal Rules of Evidence, but summaries of the material facts contained in the cited evidence, which the court reviews independently. See Local Rule 260; see also Perma Research & Dev. Co. v. Singer Co., 410 F.2d 572, 579 (2d Cir. 1969) (holding that objections to an affidavit submitted on a motion for summary judgment "must be precise" and "specify which parts of the . . . affidavit should be striken and why"); Charles Alan Wright et al., 10B Federal Practice & Procedure § 2738 (2010) ("[A] motion to strike should specify the objectionable portions of the affidavit and the grounds for each objection."). Consequently, those objections attacking the statements of undisputed fact are not well taken and are overruled.

In the interest of brevity, as the parties are aware of the substance of their objections and the grounds asserted in support of each objection, the court will not review the substance or grounds of all the objections here. For the purposes of this motion, plaintiff's objections 14-15, 19, and 20 are sustained on hearsay grounds and objections 16-17 are sustained on personal knowledge grounds; the rest are overruled. All of defendants' objections to the evidence cited in Plaintiff's Separate Statement of Undisputed Facts are overruled.

III. Relevant Facts

Plaintiff worked for TTI beginning in 2004 (Griffin Decl. Ex. D ("Yvonne Dep.") at 163:22-25), and became a program manager in 2007. (Griffin Decl. Ex. C ("Nielsen Dep.") at 24:20-22.) Defendant Andrew Parker became plaintiff's immediate supervisor in December of 2007. (Nielsen Dep. at 48:5-7.)

Plaintiff first suspected that Parker was engaging in an affair with Louann Kelsheimer, another employee at TTI, in May of 2009. (Id. at 148:5-149:3.) Kelsheimer was a project coordinator at TTI, and did not have any of the same job responsibilities as plaintiff, nor did she report to plaintiff or Parker. (Id. at 152:3-4, 220:20-221:6; Griffin Decl. Ex. I ("Kelsheimer Dep.") at 10:9-12, 11:13-15, 14:14-17:23, 21:14-21, 21:24-22:2, 23:4-25:2, 42:25-43:1.) Plaintiff suspected that Parker and Kelsheimer were involved in a romantic relationship because he observed Kelsheimer "float[ing] around like a butterfly," Parker offloading Kelsheimer's responsibilities onto plaintiff, and distant flirting between the two. (Nielsen Dep. at 149:16-150:2, 151:4-20.)

Plaintiff approached defendant Brenna Pedone, the manager of Human Resources, near the end of June of 2008 regarding his suspicions about the relationship. (Id. 159:1-5, 187:21-188:5, 224:23-225:13, 226:8-17.) Plaintiff claims that he also complained to Pedone on July 23, 2008. (Id. at 188:6-13, 229:19-230:21, 231:25-232:17.) After some investigation, Pedone reported the rumor to defendant Yvonne Glenn, the president of TTI, who reported it to defendant Troy Glenn, the vice president, without telling him the source of the rumor. (Griffin Decl. Ex. F ("Pedone Dep.") at 126:1-128:1, 139:22-140:5; Yvonne Dep. at 240:24-241:22, 242:2-20.) In August of 2008, without telling him the source of the rumor, Troy pulled Parker aside and told him anything happening between him and Kelsheimer had better stop. (Griffin Decl. Ex. E ("Troy Dep.") at 106:23-107:9, 107:22-108:18.)

In June or July of 2008, Kevin Hayashi, another employee at TTI, told plaintiff about and later provided him with sexually suggestive emails between Kelsheimer and Parker. (Nielsen Dep. at 188:17-189:6, 189:19-190:25.) Jon Rauer, the IT manager at TTI, confirmed the existence of the emails to plaintiff and told him they alluded to something sexual in nature, but neither he nor Hayashi reported the e-mails to TTI management. (Griffin Decl. Ex. H ("Rauer Dep.") at 8:16-17, 16:22-17:7, 17:25-18:23.)

In July of 2008, plaintiff and Parker had a brief conversation during a car ride. (Nielsen Dep. at 163:10-164:7, 164:19-22, 165:20-166:6, 167:18-25.) They were discussing business contracts and accounts when Parker told plaintiff he needed to "get in line" and "quit causing ripples." (Id.) Plaintiff believed Parker was referring to plaintiff's report of the alleged relationship between Parker and Kelsheimer because of Parker's "tone" and "body language." (Id.) Parker denies having any knowledge that plaintiff told anyone at TTI about his alleged relationship with Kelsheimer until sometime after October 7, 2008. (Griffin Decl. Ex. G ("Parker Dep.") at 203:5-21, 210:23-211:6.)

Plaintiff alleges that Parker required him to create agendas for weekly division meetings and perform other administrative tasks not part of his job description beginning in January or February of 2008. (Nielsen Dep. at 152:17-25, 153:6-8, 153:14-154:5.) Plaintiff also alleges that Parker attempted to make him and other employees conduct product pricing, something that was not within their job responsibilities, in March through June of 2008, but that they fought back and Parker required Kelsheimer to do it instead. (Id. at 154:17-155:17, 158:14-18.) Plaintiff asserts that after June 2008, the only tasks Parker off-loaded from Kelsheimer to him were minimal. (Id. at 158:14-18.) Plaintiff is not aware of any job benefits that Kelsheimer received that he or anyone else did not. (Id. at 220:8-13, 221:4-222:4.) Plaintiff was aware of one other interoffice relationship but admits that there was nothing about that relationship that impacted his work environment. (Id. at 248:14-249:5.) He also believes that another employee, Lisa Salcedo, received employment benefits such as extra vacation days as a result of a relationship with a supervisor. (Id. at 253:23-255:2.) Plaintiff also admits that he was not denied any employment opportunities within TTI that were given to an employee who submitted to sexual advances. (Id. at 256:6-10.)

In 2008, TTI's contract with one of its recurring clients, California National Guard ("CNG"), was set to expire, so TTI prepared a bid for a new contract. (Parker Dep. at 89:13-91:11.) Plaintiff was in charge of managing TTI's relationship with CNG, and TTI's practice was to give the lead to the program manager on any proposals related to that employee's accounts. (Nielsen Dep. at 70:1-4, 72:21-73:9.)

On May 11, 2008, plaintiff was involved in a motorcycle accident and suffered broken bones and other injuries. (Nielsen Dep. at 114:3-115:4, 115:15-17, 126:20-127:12.) Plaintiff notified Parker of his motorcycle accident by e-mail at 12:48 a.m. the morning of May 12, 2008, and then notified Troy by e-mail at 8:09 a.m. (Nielsen Dep. at 115:24-116:15, 117:16-118:13, 119:1-16.) In his email to Troy, plaintiff stated, "[T]his will cause slight modification of how we run the proposal for CNG." (Id. Ex. 6.) Plaintiff remembers a conversation with Troy where Troy "allud[ed]" to the possibility of someone other than plaintiff taking the lead on the CNG proposal, but based on Troy's "body language and tone," plaintiff believed that his job would be in jeopardy if he did not take the lead. (Id. at 121:10-122:18.)

The only accommodation requested by plaintiff as a result of his injuries was voice recognition software, which he received. (Id. at 123:7-18, 124:17-22; Parker Dep. at 99:4-100:2; Pedone Dep. at 109:16-23, 110:21-25.) Yvonne also brought a digital voice recorder to plaintiff's house, and various co-workers offered plaintiff rides to and from the office. (Nielsen Dep. 124:23-125:6, 127:5-12.)

About halfway through the process of preparing the CNG proposal, Troy discovered that plaintiff had reorganized the outline of the proposal contrary to earlier discussions and determined that it had to be rewritten. (Troy Dep. at 144:8-145:17.) After TTI submitted the completed proposal, plaintiff admitted in an e-mail to the proposal team that he had "poorly lead [sic] a proposal team and it showed." (Nielsen Dep. 134:4-12, 135:11-21, Ex. 8.) TTI was ultimately awarded the CNG contract. (Parker Dep. at 101:8-10.)

On August 7, 2008, Parker placed plaintiff on an unofficial performance improvement plan ("PIP"). (Nielsen Dep. at 169:21-170:4, 172:2-11, Ex. 9.) Parker identified areas where plaintiff needed to increase his performance and effectiveness, including meeting deadlines and improving communication. (Id. at 172:20-173:8, Ex. 9.) On October 7, 2008, plaintiff met with Parker and Pedone to discuss his PIP. (Id. at 232:23-233:9.) Parker pointed out specific examples of plaintiff's deficiencies, and indicated that plaintiff was still failing through continued missed deadlines and substandard performance. (Id. at 233:10-234:4; Parker Dep. at 154:12-155:22, 156:11-157:12, 159:13-160:19, 164:13-165:19, 166:7-11; Pedone Dep. at 148:6-19, 149:1-150:15.) At the meeting, Pedone allegedly told plaintiff that he should be performing at a higher level based on his salary (Nielsen Dep. at 234:1-4.), and Parker allegedly asked plaintiff to resign. (Id. at 173:18-20.)

Immediately after that meeting, plaintiff called Yvonne and met with her. For the first time, he told her about his belief that Parker was attempting to push him out of the company because of plaintiff's disclosure of Parker's alleged relationship with Kelsheimer. (Id. at 235:23-237:1, 237:16-19; Yvonne Dep. at 265:1-266:8, 296:6-23.) He also informed her for the first time about his belief that Parker and Kelsheimer were exchanging inappropriate e-mails. (Nielsen Dep. at 236:12-237:1, 237:16-19; Yvonne Dep. at 265:10-266:8.)

The next day, plaintiff presented a note from his physician indicating that he required a thirty-day medical leave of absence, which was granted. (Nielsen Dep. at 237:20-25, 238:5-10.) Plaintiff requested a second thirty-day leave the next month, which was also granted. (Id. at 242:20-25.) Under its leave policy, TTI generally has permitted leaves of absence for personal reasons for up to thirty-days, but has not permitted employees to take off more than sixty days. (Yvonne Dep. at 92:16-93:1, 93:6-20.)

During plaintiff's leave, TTI lost its single largest professional services contract. (Pedone Dep. at 170:17-172:25; Troy Dep. at 141:12-17.) As a result, TTI was forced to terminate a number of employees and substantially reorganize its workforce. (Id.) TTI eliminated all division director positions as well as several business development, engineering, and other professional services staff positions, and eliminated one of five program manager positions, which was plaintiff's position. (Pedone Dep. at 170:17-172:25; Troy Dep. at 126:11-25, 154:18-22; Yvonne Dep. at 254:8-13, 254:21-255:12.)

Following his two thirty-day leaves of absence, plaintiff requested a third leave, this time for sixty additional days. (Pedone Dep. at 162:14-21; Yvonne Dep. at 271:14-20.) Plaintiff contends that this request was granted. He provides a document purporting to grant leave signed by Sharlee Davis, the human resources coordinator; defendants contend that the document was not valid because Pedone, not Davis, had the authority to grant leave. (Mem. of P. & A. in Supp. of Pl.'s Opp'n to Defs.' Mot. for Summ. J. ("Pl.'s Opp'n") at 5, Ex. 28; see Pedone Dep. at 163:13-18, 165:22-166:8, 166:22-167:3.) Plaintiff also provides an "Employee Separation Report" dated December 30, 2008 (Pl.'s Opp'n Ex. 29), which states that his employment ended by "Voluntary Resignation" because he "failed to return from leave of absence." (Id.) Plaintiff alleges that, regardless of the explanation given in the Employee Separation Report, he was terminated on December 30, 2008. (Pl.'s Opp'n at 5.)

On April 8, 2009, plaintiff filed this action against defendants, alleging gender discrimination in violation of the Fair Employment and Housing Act ("FEHA"), Cal. Gov't Code ยง 12940; disability discrimination in violation of FEHA; retaliation in violation of FEHA; hostile work environment harassment in violation of FEHA; wrongful termination in violation of public policy; and sexual harassment in violation of Title VII. (Docket No. 1.) Defendants now move ...


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