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Lewis Kim, An Individual v. Liberty Mutual Group

November 4, 2011


The opinion of the court was delivered by: Hon. Otis D. Wright, II United States District Judge




Currently before the Court is Defendant, Liberty Mutual Group, Inc.'s ("Defendant"), Motion for Summary Judgment. (Dkt. No. 43.) After careful consideration, the Court deems the matter appropriate for decision without oral argument, and vacated the September 19, 2011 hearing. See Fed. R. Civ. P. 78 ("Rule ___"); L.R. 7-15. For the following reasons, the Court GRANTS Defendant's Motion.


Defendant hired Plaintiff, Lewis Kim ("Plaintiff"), as a Sales Representative and as an at-will employee for its El Monte Office on May 24, 2006. (Def.'s Statement of Uncontroverted Facts ("SUF"), Dkt. No. 43-2, Nos. 1-3, 5-7.) During his employment, Plaintiff alleges to have applied for two managerial positions in San Diego and Ontario, California on October 2007 and January 2008 respectively. (Compl. ¶¶ 9-10.) While Defendant claims to not have any record of Plaintiff's application for the San Diego position, the internal job posting for these positions stated: "Qualified candidates will possess sales experience, supervisory experience, and same or related industry experience. Previous sales and sales management experience is required." (SUF No. 23.) Further, because a successful candidate would be required to "[d]evelop and improve the performance of the sales management team to achieve established goals," the internal job posting for this position required "proven success with prior sales or related experience . . ." in property, casualty and life insurance products. (SUF No. 24.) According to Plaintiff, both positions were offered to "less experienced and less qualified non-minority Liberty Mutual employee[s]." (Compl. ¶ 9.)

Plaintiff, however, lacked experience managing employees at an insurance company. (SUF Nos. 25-28.) In addition, Plaintiff never was a trainer, never sought out a role in public relations, never developed production standards, and failed to meet his sales targets. (Id.) For example, Plaintiff was required to sell thirteen insurance policies in 2007 but sold zero during that year. (SUF Nos. 29-30.) Consequently, Plaintiff was not offered these positions in San Diego and Ontario, and Defendant announced the promotion of successful candidates on November 19, 2007 and March 6, 2008. (SUF Nos. 51-52.)

Defendant maintains written policies prohibiting discrimination on the basis of protected categories recognized by federal and state law, including race and national origin. (SUF No. 12.) The employee handbook also requires employees to promptly report any discrimination to his or her immediate supervisor, manager or a human resources representative. (SUF No. 13.) Likewise, Defendant allowed employees to report complaints by way of its "Liberty Listens" program, which provides a formal procedure through which an employee could communicate directly with the Employee Relations department located at Liberty's home office in Boston. (SUF No. 16.) Plaintiff did not take advantage and complain of the alleged discrimination through these established reporting mechanisms. (SUF Nos. 17-21.)

Plaintiff alleges that shortly after he filed charges against Defendant with the DFEH, Defendant audited Plaintiff's book of business. (See Compl. ¶ 11.) Notwithstanding Plaintiff's allegations, it was found that Plaintiff cancelled and rewrote policies making it appear he had generated new business. (SUF No. 45.) Particularly, Plaintiff cancelled existing accounts, changed the names of the policyholders, and opened new accounts with the same policyholders. (Id.) Despite Plaintiff's contention that his primary goal was to cross-sell and retain the customer, he admitted that he received new business credit for these accounts, which caused him to receive related commission payments. (SUF No. 49.) Consequently, Plaintiff was terminated on April 15, 2008. (Compl. ¶ 12.) Plaintiff subsequently filed charges with the California Department of Fair Employment and Housing ("DFEH") on April 6, 2009, and received his "right to sue" notice. (SUF No. 55; Compl. ¶ 6.)

Based on the foregoing, on April 2, 2010, Plaintiff instituted this action in state court.*fn1 (Dkt. No. 1, Exh. A.) Defendant removed the case to this Court on June 30, 2010. (Dkt. No. 1.) The Court set deadlines for fact discovery cut-off of September 2, 2011 and last date to hear motions of October 17, 2011 (modified subsequently to October 24, 2011). (Dkt. Nos. 17, 42.) Defendant filed its Motion for Summary Judgment on September 23, 2011.*fn2 (Dkt. No. 43.) Rather than filing Opposition papers, Plaintiff filed a Declaration pursuant to Rule 56(d) in lieu of an Opposition to Defendant's Motion on October 3, 2011. (Dkt. No. 47, ["Rule 56(d) Decl."].) On October 18, 2011, Plaintiff filed a Request for Leave to File Supplemental Briefing and Additional Declarations in Support of Plaintiff's Rule 56(d) Motion.*fn3 (Dkt. No. 56.)


Plaintiff proposes that the Court deny Defendant's Motion and allow the case to proceed to trial. Specifically, Plaintiff claims that there are several potential witnesses who will corroborate Plaintiff's contentions that Defendant maintains "a pattern and practice of discriminating against minorities, especially Asians, in failing to promote such minority employees . . . ." (Rule 56(d) Decl. at 1-2.) While these witnesses have been unwilling to attest to this contention for fear of retaliation, Plaintiff believes that their testimony will prove his case if subpoenaed during trial. (Id.) Defendant contends that Rule 56(d) cannot apply in this instance. (Reply at 3-4.) Even if the Rule applied, Defendant argues and the Court agrees that this case does not warrant postponement, much less denial, of Defendant's Motion. (Reply at 4.)

As an initial matter, the Court questions the propriety of Plaintiff's Rule 56(d) Motion in this instance. Generally, Rule 56(d) applies in cases where parties argue that the motion for summary judgment is premature because more time and further discovery are necessary to effectively file an Opposition. See, e.g., Thommeny v. Paramount Pictures Corp., et al., CV10-6951 VBF (FMOx), 2011 WL 2899340, at *2 (C.D. Cal. July 13, 2011) (finding that no good cause shown to either continue the motion for summary judgment, nor reopen discovery because the nearly one year of discovery was found sufficient). Plaintiff, here, does not seek further discovery, but rather, moves for a wholesale denial of Defendant's Motion because certain facts and testimony possibly will be presented during trial. Plaintiff, however, turns a blind eye to the purpose behind Rule 56(a) where the Court must grant "summary judgment if the movant shows that there is no genuine dispute as to any material fact." Accordingly, a trial may not be necessary and judicial resources conserved if no issues of disputed facts exist.

Nevertheless, if Rule 56(d) applies in this case, the party opposing summary judgment must show: (1) Facts indicating a likelihood that controverting evidence exists as to material fact; (2) Specific reasons why such evidence was not discovered or obtained earlier in the proceeding (i.e., good cause); (3) Steps or procedures by which the opposing party proposes to obtain such evidence within a reasonable time; and (4) An explanation of how those facts will suffice to defeat the pending summary judgment motion. See Tatum v. City & County of San Francisco, 441 F.3d 1090, 1101 (9th Cir. 2006). Here, Plaintiff fails to show that denial of Defendant's Motion is required under Rule 56(d). See Volk v. D.A. Davidson & Co., 816 F.2d 1406, 1416 (9th Cir. 1987) ("The burden is on the party seeking to conduct additional discovery to put forth sufficient facts to show that the evidence sought exists."). Here, Plaintiff merely argues that he is informed and believes based on his observations that there are former colleagues that will attest to Defendant's alleged pattern of discrimination against minorities. (See Rule 56(d), Decl. ¶ 2.) The Court, without more, cannot ascertain what any potential testimony will entail and how that testimony will likely controvert Defendant's contentions. See Margolis v. Ryan, 140 F.3d 850, 853 (9th Cir.1998) (quoting Garrett v. City and County of San Francisco, 818 F.2d 1515, 1518 (9th Cir.1987)) (In seeking such relief, "a party opposing summary judgment 'must make clear what information is sought and how it would preclude summary judgment.'"). In addition, Plaintiff would like this Court to believe that potential witnesses, who have been unwilling to provide testimony or even declarations during the course of litigation, will have a sudden change of heart and testify during trial. Although this Court may subpoena non-party witnesses to testify, its powers ...

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