MEMORANDUM AND ORDER RE: MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF CLAIMS
Plaintiff Edison Mayo brought this action alleging race discrimination and retaliation against defendant Recycle to Conserve, Inc. ("RTC"). Defendant now moves for summary judgment pursuant to Federal Rule of Civil Procedure 56.
I. Factual and Procedural Background
Plaintiff, who is African-American, was a truck driver for defendant or its predecessor from 1997 or 1998 to October 30, 2009, when he was involuntarily terminated. (Mayo Decl. ¶ 2 (Docket No. 24); Bolanos Decl. ¶ 3, Ex. 2 (plaintiff's employee separation notice) (Docket No. 25).) Defendant purportedly terminated plaintiff because he was involved in a second driving accident in violation of defendant's accident policy. (Odahl Decl. in Supp. of Def.'s Mot. ("Odahl Decl.") ¶¶ 4-11 (Docket No. 9-4); McMullin Decl. in Supp. of Def.'s Mot. ("McMullin Decl.")
¶¶ 3-6 (Docket No. 9-5).)
Defendant, a nationwide company with multiple facilities, employed plaintiff at its Stockton, California, facility, at which fifteen to twenty employees worked. (Kennaday Decl. in Supp. of Def.'s Mot. ("Kennaday Decl.") Ex. A ("Mayo Dep. Tr.") at 73:4-6, 74:14 (Docket No. 9-6).) Plaintiff was one of only three drivers employed at that facility and the only African-American driver. Two non-driver employees at the Stockton facility were also African-American. (Odahl Decl. ¶ 3; Mayo Dep. Tr. at 73:24-74:2.)
In 2006 or 2007, defendant hired a Caucasian mechanic, Elwood Lindsey,*fn1 for the Stockton facility. (Mayo Decl. ¶ 3.) Lindsey, whose responsibilities included servicing plaintiff's truck, called plaintiff names such as "coon-ass" and "coon-ass nigger." (Original*fn2 Mayo Decl. ¶¶ 3-4 (internal quotation marks omitted) (Docket No. 10); see also Mayo Dep. Tr. at 53:23-55:1, 57:21-58:10 (discussing name calling); id. at 52:2-15 (describing incident in which Lindsey threw chain at plaintiff's feet instead of handing it to plaintiff); Serpa Decl. ¶ 6 ("On many occasions [Lindsey] would engage in the practice of bringing things to [plaintiff] and then dropping them at his feet, and then looking at [plaintiff] like [plaintiff] needed to pick it up.") (Docket No. 11); Mayo Dep. Tr. at 53:23-55:1 (describing incident in which plaintiff went into the shop and Lindsey "cuss[ed] [plaintiff]," called him "[c]oon ass," told him to get out of the shop, "thr[ew] things," "slamm[ed]" his toolbox, and "shoved in doors").)
Plaintiff states that Lindsey called him names such as "coon-ass" and "coon-ass nigger" "very, very often" and specifically recalls at least ten times. (Original Mayo Decl. ¶ 3 (internal quotation marks omitted in first and second quotations).) A co-employee, Joseph Serpa, states that Lindsey would "always talk badly about [plaintiff]" and referred to him as a "lazy, no-good nigger" approximately five to ten times in Serpa's presence. (Serpa Decl. ¶ 3 (internal quotation marks omitted in second quotation).)
According to plaintiff, Lindsey also failed to properly service plaintiff's truck:
[H]e never repaired my truck in a timely fashion, and he often did poor work repairing my truck. In many instances, he simply refused to undertake needed repairs and I had to do the repairs myself or get the help of other employees. Things that went wrong with the truck included changing lights on the truck. As a driver, I was not supposed to do my own repairs. But [Lindsey] refused to make these repairs on my truck. And on those occasions when he did actually perform the repairs, it took a very long time, days and weeks, for him to do the repairs. (Mayo Decl. ¶ 4; see also Mayo. Dep. Tr. at 60:13-62:6 (describing one occasion in which plaintiff was not able to use a particular truck for approximately three weeks because Lindsey did not repair it).)
Plaintiff claims that the Caucasian drivers received better repairs:
I would see the white drivers take their trucks in for repair, and then I would see the trucks come out of the repair shop after repairs were done. From this, I am able to conclude that their trucks were repaired, whereas my truck never went into the repair shop to begin with, despite my request for repairs.
(Supplemental Mayo Decl. ¶ 3 (Docket No. 17).)
In the summer of 2007 or 2008, plaintiff first complained about Lindsey to the general manager of the Stockton facility, Sean Odahl,*fn3 a Caucasian. (Mayo. Dep. Tr. at 51:6-7.) The parties agree that plaintiff complained to Odahl, but disagree on whether plaintiff complained that Lindsey's conduct related to plaintiff's race.
Plaintiff claims that he complained to Odahl that Lindsey "was racist against" plaintiff:
O'Dahl and I actually talked about how [Lindsey] was racist against me. In fact, O'Dahl told me that [Lindsey] was racist, and had some kind of mental problem, and that I should just "stay away" from him. We discussed this on at least three or four occasions when I would complain about [Lindsey].
(Mayo Decl. ¶ 7; see also Mayo Dep. Tr. at 50:4-51:24, 58:20-22 (discussing complaining about Lindsey's "racist way" to Odahl), 52:16-53:20 (discussing complaining to Odahl about the chain incident), 53:21-54:5, 55:2-7 (discussing complaining to Odahl about Lindsey telling plaintiff to leave the shop). But see Mayo Dep. Tr. at 55:2-7 (acknowledging that in complaining to Odahl about Lindsey telling plaintiff to leave the shop he did not tell Odahl that Lindsey called him "coon ass"), 58:20-22 (acknowledging that he never told anyone in management that Lindsey had said "coon ass"). Plaintiff states that Odahl never took a statement from him and Lindsey's mistreatment continued. (Mayo Decl. ¶ 7.)
Plaintiff also reported to Odahl on five or six occasions that Lindsey did not properly service plaintiff's truck. (Mayo Decl. ¶ 6; see also Mayo Dep. Tr. at 60:13-62:9 (discussing complaining to Odahl about Lindsey's failure to repair truck for three weeks).) According to plaintiff, Odahl never took a statement from plaintiff and "would always only say 'I will talk to him' or 'I will take care of it.'" (Mayo Decl.¶6.) Plaintiff claims that Lindsey continued to refuse to properly repair his truck despite his complaints to Odahl. (Id.)
Not only did Odahl fail to take a statement from plaintiff when he complained about Lindsey's failure to repair his truck, plaintiff also perceived that Odahl was "getting annoyed": "It's just the way he was acting when I would come in and complain about this. I'll take care of it. It's nothing to it." (Mayo Dep. Tr. at 60:11-15; see also id. at 61:14-21 (describing Odahl's responses to multiple complaints about Lindsey's failure to repair truck for three weeks).)
With respect to Lindsey's authority and relationship with Odahl, plaintiff states:
[Lindsey] always tried to tell everyone what to do. He always tried to tell me what to do. He acted like my supervisor. O'Dahl never countermanded any of [Lindsey's] orders. Thus, to me it was like I had two supervisors: both [Lindsey] and O'Dahl.
I got the feeling that [Lindsey] and O'Dahl were close friends. . . . They often talked together privately and could be seen socializing at the yard. (Mayo Decl. ¶¶ 9-10.) Serpa, plaintiff's co-employee, states that Lindsey "acted like he was the boss, like he had authority over Sean O'Dahl. [Lindsey] would often try and give us orders and tell us what to do." (Serpa Decl. ¶ 3.)
In his declaration, Odahl acknowledges that plaintiff complained to him about Lindsey "on several occasions." (Odahl Decl. ¶ 7.) Odahl states that plaintiff did not complain that Lindsey's conduct was related to plaintiff's race:
The nature of Mr. Mayo's complaints were that he and Mr. Lindsey were having a disagreement of some sort, or that Mr. Lindsey was not fixing his truck as quickly as Mr. Mayo would like. Mr. Mayo never advised me that Mr. Lindsey had made any comments of a racial nature to him, nor did Mr. Mayo indicate that he believed Mr. Lindsey's actions toward him were based upon his race. (Id.) Odahl's declaration does not address how, if at all, he responded to those "several" complaints that Odahl acknowledges he received.
In addition to his termination, plaintiff points to other instances in which Odahl discriminated against him based on race during the course of his employment. Plaintiff claims that Lindsey and Odahl "tried to blame [plaintiff] for allowing the truck to overheat and not bringing it in sooner." (Mayo Decl. ¶ 5.) Plaintiff also claims that Odahl assigned the Caucasian drivers better routes and better trucks. (Id. ¶¶ 13-15.)
In August of 2005, defendant implemented a policy related to accidents:
Simply stated, if you are involved in two (2) accidents involving property damage or injury while operating company equipment, your employment may be terminated.
This is in addition to the existing "zero-tolerance" drug policy, which includes the provision that a positive result from a single post-accident drug test can result in termination as well. (McMullin Decl. Ex. A.) While the policy does not appear to expressly contemplate whether an accident was a fault or no-fault accident, the "may" in the policy's language suggests that termination was permissive following two accidents.
In June of 2007, plaintiff was involved in an accident in which "the box" fell off of his truck when he turned left at a traffic light. (Odahl Decl. ¶ 4, Ex. A.) It appears from the evidence that Robert Standert, not Odahl, was the general manager of the Stockton facility at the time of the first accident. While plaintiff testified that he understood that the accident counted as one accident under the accident policy, he testified that he did not think that after the 2007 accident a second accident could result in his termination. Plaintiff's reasons were that the accident was not his fault because "the box" was not appropriate for the truck and "there were other people that had plenty of accidents that were not terminated." (See Mayo Dep. Tr. 21:10-23:25 (discussing first accident).)
On October 13, 2009, plaintiff was involved in a second accident in which the "tractor jackknifed into the attached trailer." (Odahl Decl. ¶ 5, Ex. B; see also Mayo Dep. Tr. at 27:13-25 (discussing second accident); Mayo Decl. ¶¶ 13-14 (same)). The accident occurred when plaintiff was driving below the speed limit, at twenty-five miles per hour, and breaking as he approached a red light in wet or rainy conditions. Plaintiff's position is the accident was not his fault because the breaks were faulty and locked when he pressed them.
Plaintiff refused to drive the truck back to the facility and Lindsey was dispatched to inspect the truck and drive it back. Plaintiff claims that a week before the accident Lindsey had worked on the truck and had told plaintiff everything was "fine." (Mayo Decl. ¶ 13.) As evidence that the accident was not his fault and that the breaks were faulty, plaintiff states that he was told by another driver that the "sub-hauler" who assumed that route and truck following plaintiff's accident refused to drive the truck until the ...