Plaintiff's complaint alleges discrimination in employment based on national origin and sex, 42 U.S.C. § 2000e-2 (Title VII), age discrimination in employment, 29 U.S.C. § 621 (ADEA), and breach of the implied covenant of good faith and fair dealing.
On April 6, 2011, the court heard argument on defendant Amerisource Bergen's motion for summary judgment and plaintiff Pete Garcia's motion to continue the hearing on the motion to allow him to conduct additional discovery. Kristen Longo of Dooley, Herr, Peltzer & Richardson appeared for plaintiff; Matthew Farmer of Littler Mendelson appeared for defendant. At hearing, plaintiff's counsel confirmed, as indicated in his briefing, that plaintiff concedes his third cause of action is preempted by Section 301 of the Labor-Management Relations Act. The court thus addresses defendant's motion as to only the other, Title VII and ADEA causes of action.
I. Motion To Continue Summary Judgment
Plaintiff asks the court to continue or defer ruling on the motion for summary judgment to allow him to conduct additional discovery he says is crucial to the opposition for summary judgment.
Rule 56(d) of the Federal Rules of Civil Procedure permits a court to deny or continue determination of a motion for summary judgment "if a non-movant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition . . . ." Plaintiff's counsel has submitted a declaration averring that defendant has presented several declarations that characterize DEA Senior Diversion Investigator Brian Glaudel's reaction to a videotape allegedly showing plaintiff's theft of drugs in a manner different than Glaudel's own declaration and that, as a result, he needs to depose Glaudel. Counsel also avers he must depose plaintiff's union representative, because of defendant's claim that the union declined to challenge plaintiff's termination. Finally, counsel seeks to depose several other employees of Amerisource Bergen who were interviewed in connection with the investigation of plaintiff's alleged theft of drugs; he does not suggest what he hopes to learn from these employees except information "relevant to this action." Declaration of Leonard C. Herr (Herr Decl.), ECF No. 44-1.
Defendant has opposed the motion, noting that plaintiff's counsel called two days before his opposition to the motion for summary judgment was due, asking for a stipulation to an extension of time. Declaration of Ryan Eddings (Eddings Decl.), ECF No. 46 ¶ 7.*fn1 Defendant's counsel has also presented a copy of plaintiff's initial disclosure, dated February 25, 2010, which identifies the witnesses plaintiff only now seeks to depose as individuals likely to have discoverable information. Id. at 12-13. Finally, counsel notes that he took plaintiff's deposition in March 2010 and plaintiff mentioned a meeting with Mr. Glaudel and with his union representative, Mr. Skjelstad. Id. ¶¶ 5-6.
In order to justify a continuance or denial of summary judgment under Rule 56(d), a party must satisfy the following requirements:
(1) it has set forth in affidavit form the specific facts it hopes to elicit through further discovery; (2) the facts sought exist; and (3) the sought after facts are essential to oppose summary judgment.
Family Home and Finance Center v. Federal Home Loan Mortgage Corporation, 525 F.3d 822, 827 (9th Cir. 2008). The party seeking the continuance must also show that it diligently pursued previous opportunities for discovery. Qualls v. Blue Cross of California, Inc., 22 F.3d 839, 844 (9th Cir. 1994); compare Program Engineering, Inc. v. Triangle Publications, Inc., 634 F.2d 1188, 1193 (9th Cir. 1980) (motion improperly denied when party had "no previous opportunity to develop evidence . . . crucial to material issues in the case. . . .").*fn2
Plaintiff has not satisfied any of the requirements for a continuance. First, beyond a general description of his hope to explore the differences between Glaudel's own declaration and the other characterizations of Glaudel's investigation, he has not suggested what evidence he hopes to develop by deposing the union representative or plaintiff's co-workers. Second, he has completely neglected to suggest how this unidentified information will assist him in opposing summary judgment. Finally, he has utterly failed to demonstrate diligence, in light of the fact that he identified all of these deponents in his initial disclosures more than a year ago. Tatum v. City and County of San Francisco, 441 F.3d 1090, 1100 (9th Cir. 2006) (motion properly denied when declaration did not identify the specific facts discovery would reveal or how those facts were crucial to the opposition).
II. Summary Judgment Standards Under Rule 56
A court will grant summary judgment "if . . . there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). The "threshold inquiry" is whether "there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).*fn3 The moving party bears the initial burden of showing the district court "that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). The burden then shifts to the nonmoving party, which "must establish that there is a genuine issue of material fact . . . ." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585 (1986). In carrying their burdens, both parties must "cit[e] to particular parts of materials in the record . . .; or show  that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." FED. R. CIV. P. 56(c)(1); see also Matsushita, 475 U.S. at 586 ("[the nonmoving party] must do more than simply show that there is some metaphysical doubt as to the material facts"). Moreover, "the requirement is that there be no genuine issue of material fact . . . . Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 247-48 (emphasis in original).
In deciding a motion for summary judgment, the court draws all inferences and views all evidence in the light most favorable to the nonmoving party. Matsushita, 475 U.S. at 587-88; Whitman v. Mineta, 541 F.3d 929, 931 (9th Cir. 2008). "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no 'genuine issue for trial.'" Matsushita, 475 U.S. at 587 (quoting First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 289 (1968)).
III. Evidentiary Objections
A court may consider only admissible evidence in ruling on a motion for summary judgment. Orr v. Bank of America, NT & SA, 285 F.3d 764, 773 (9th Cir. 2002). Defendant objects to portions of plaintiff's declaration, while plaintiff objects to much of defendant's evidence. The court addresses relevance objections to the extent it will rely on the challenged evidence.
A. Exhibits A, B & C To Howie Declaration
Defendant has submitted the declaration of Ken Howie, the Human Resources Manager for defendant's Sacramento Distribution Center, along with three exhibits. Plaintiff objects that these three exhibits lack foundation. Defendant argues that they are business records.
Exhibit A is a seniority list that Howie created in 2008. He says "[p]art of my job duties require that I manage, create, update and maintain seniority lists for the Sacramento Distribution Center. Consequently, I have access to numerous seniority lists, from various points in time. . . . [¶] The closest seniority list in existence . . . to when Garcia's employment was terminated . . . is a list . . . I created on or about July 21, 2008, and maintain it in the ordinary course of business." Declaration of Ken Howie (Howie Decl.), ECF No. 38 ¶¶ 6-7. He also avers that the seniority ranking of union employees is important because a variety of benefits flow from the ranking. Id. ¶ 5.
To qualify as a business record under Rule 803(6) of the Federal Rules of Evidence, the record must meet two foundational facts: "'the writing is made or transmitted by a person with knowledge at or near the time of the incident recorded, and (2) the record is kept in the course of regularly conducted business activity.'" Sea-Land Service, Inc. v. Lozen International, LLC, 285 F.3d 808, 819 (9th Cir. 2002) (quoting United States v. Miller, 771 F.2d 1219, 1237 (9th Cir.1985)). Exhibit A qualifies as such a record.
Exhibits B and C are charts of employee demographic data that Howie compiled from information maintained by the company. Howie Decl. ¶¶ 10-12. Howie does not suggest that the business relies on these charts in any way and it appears that they were created simply as illustrative for purposes of this lawsuit. They do not qualify as business records and will not be considered. Clark v. City of Los Angeles, 650 F.2d ...