FINDINGS & RECOMMENDATIONS
This action, in which plaintiff is proceeding in propria persona, was referred to the undersigned pursuant to Local Rule 72-302(c)(21). Pending before the court is defendant's January 25, 2011 motion for summary judgment. Following plaintiff's second failure to file an opposition or statement of non-opposition to defendant's motion pursuant to Local Rule 230(c), plaintiff was granted a third and final opportunity to file a response on or before June 15, 2011. See Doc. No. 25. On May 17, 2011, plaintiff filed a statement of non-opposition to defendant's motion.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff filed this employment discrimination suit against defendant Staples, Inc. ("Staples") on January 26, 2010. It is proceeding on a first amended complaint ("FAC") filed January 29, 2010 and brought pursuant to (1) Title VII of the Civil Rights Act, 42 U.S.C. § 2000(e) et seq.; (2) the California Fair Employment and Housing Act, Cal. Gov't Code § 12940 et seq.; (3) Cal. Bus. & Prof. Code § 17200 for unfair competition; (4) wrongful termination; (5) fraud; (6) negligent misrepresentation; and (7) defamation. Plaintiff seeks compensatory, statutory and punitive damages, as well as declarative and injunctive relief.
Plaintiff's FAC is premised on allegations of race discrimination. Plaintiff, who is of Chinese descent, began his employment with Staples on or about January 2005 as a part-time Material Handler. FAC at 4-5. On or about January 2007, plaintiff interviewed for a position as Manager of IT Global Infrastructure Western Region. Id. at 5-6. The managed region was comprised of the U.S. Western Region and the Asia Pacific Region. Id. at 6. Plaintiff was informed that he "was a good fit for the position" after participating in a telephonic interview with Staples. Id. at 6. Approximately three days after a face-to-face interview, plaintiff learned that he and another individual, Doug Fagan, were both promoted to the position. Id. Due to the size of the Western Region, Staples divided the area into two distinct regions and assigned plaintiff to manage the Asia Pacific Region and Fagan to manage the U.S. Western Region. Id. On or about August 2007, Fagan was promoted to Sr. Manager with plaintiff reporting directly to him. Id. at 7.
Since February 2008, plaintiff alleges that Fagan has been verbally abusive, rude and would routinely shout and scream at him; this behavior was not exhibited in the presence of other individuals. FAC at 7-8. Fagan also allegedly referred to plaintiff in derogatory terms with reference to his ethnic background. See id. at 8.
Plaintiff claims that despite positive performance reviews, Fagan placed plaintiff on a 90-day Performance Improvement Plan ("PIP") on or about June 2008. FAC at 8-9. Plaintiff asserts that as a result of the PIP, his weekly meetings with his direct reports were monitored; he was advised to provide updates on his projects (which he claims were previously very positively received); and he did not receive responses to emails sent to individuals in senior management and Human Resources. Id. at 9-10.
On September 3, 2008, plaintiff's employment with Staples was terminated. FAC at 11. Staples cites plaintiff's poor work performance as the reason for his termination. Plaintiff claims that his termination was not for cause. Id.
Federal Rule of Civil Procedure 56(a) provides that "[t]he court
shall grant summary judgment if the movant shows that 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).*fn1
A shifting burden of proof governs motions for summary
judgment under Rule 56. Nursing Home Pension Fund, Local 144 v. Oracle
Corp. (In re Oracle Corp. Sec. Litig.), 627 F.3d 376, 387 (9th Cir.
2010). Under summary judgment practice, the moving party always 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 (1986) (quoting then-numbered Fed. R. Civ. P. 56(c)). "Where the non-moving party bears the burden of proof at trial, the moving party need only prove that there is an absence of evidence to support the non-moving party's case." In re Oracle Corp. Sec. Litig., 627 F.3d at 387 (citing Celotex Corp., 477 U.S. at 325); see also Fed. R. Civ. P. 56 advisory committee's notes to 2010 amendments (recognizing that "a party who does not have the trial burden of production may rely on a showing that a party who does have the trial burden cannot produce admissible evidence to carry its burden as to the fact").
If the moving party meets its initial responsibility, the opposing party must establish that a genuine dispute as to any material fact actually does exist. SeeMatsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986). To overcome summary judgment, the opposing party must demonstrate the existence of a factual dispute that is both material, i.e., it affects the outcome of the claim under the governing law, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Fortune Dynamic, Inc. v. Victoria's Secret Stores Brand Mgmt., Inc., 618 F.3d 1025, 1031 (9th Cir. 2010), and genuine, i.e., "'the evidence is such that a reasonable jury could return a verdict for the nonmoving party,'" FreecycleSunnyvale v. Freecycle Network, 626 F.3d 509, 514 (9th Cir. 2010) (quoting Anderson, 477 U.S. at 248). A party opposing summary judgment must support the assertion that a genuine dispute of material fact exists by: "(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations . . . , admissions, interrogatory answers, or other materials; or (B) showing 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."*fn2 Fed. R. Civ. P. 56(c)(1)(A)-(B). However, the opposing party "must show more than the mere existence of a scintilla of evidence." In re Oracle Corp. Sec. Litig., 627 F.3d at 387 (citing Anderson, 477 U.S. at 252).
In resolving a summary judgment motion, the evidence of the opposing party is to be believed. SeeAnderson, 477 U.S. at 255. Moreover, all reasonable inferences that may be drawn from the facts placed before the court must be viewed in a light most favorable to the opposing party. SeeMatsushita, 475 U.S. at 587; In re Oracle Corp. Sec. Litig., 627 F.3d at 387. However, to demonstrate a genuine factual dispute, 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 (citation omitted).
Staples seeks summary judgment on plaintiff's entire complaint for, inter alia, failure to exhaust administrative remedies; failure to set forth a prima facie case; failure to show that Staples' termination of plaintiff's employ was pretextual; and failure to show a causal connection between a protected activity and an adverse employment action. In support, Staples submits plaintiff's performance reviews which evidence defendant's dissatisfaction with plaintiff's work performance; the declaration of Mark Mervine, plaintiff's direct supervisor, who declares that plaintiff was fired due to his failure to adequately perform the requirements of his position; and the ...