The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge
ORDER GRANTING SUMMARY JUDGMENT IN PART; DENYING NO. 3, SUMMARY JUDGMENT IN PART; AND SCHEDULING FINAL PRETRIAL CONFERENCE AND TRIAL
Pending is Defendant's motion for summary judgment since Plaintiff's motion for reconsideration of the summary judgment ruling in Defendant's favor was granted. Defendant seeks summary judgment on all claims in Plaintiff's Complaint; the claims concern Plaintiff's termination from employment with Defendant. (ECF No. 21.) Plaintiff opposes the motion.
A party seeking summary judgment bears the initial burden of demonstrating the absence of a genuine issue of material fact for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). "A fact is 'material' when, under the governing substantive law, it could affect the outcome of the case." Thrifty Oil Co. v. Bank of Am. Nat. Trust & Sav. Ass'n, 322 F.3d 1039, 1046 (9th Cir. 2003) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). An issue of material fact is "genuine" when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.
When the defendant is the moving party and is seeking summary judgment on one or more of a plaintiff's claims, [The defendant] has both the initial burden of production and the ultimate burden of persuasion on [the motion]. In order to carry its burden of production, the [defendant] must either produce evidence negating an essential element of the [plaintiff's claim] or show that the [plaintiff] does not have enough evidence of an essential element to carry its ultimate burden of persuasion at trial. In order to carry its ultimate burden of persuasion on the motion, the [defendant] must persuade the court that there is no genuine issue of material fact.
Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Cos., Inc., 210 F.3d 1099, 1102 (9th Cir. 2000) (citations omitted). If the moving party satisfies its initial burden, "the non-moving party must set forth, by affidavit or as otherwise provided in [Federal] Rule [of Civil Procedure] 56, specific facts showing that there is a genuine issue for trial." T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987) (citation and internal quotation marks omitted). The "non-moving plaintiff cannot rest upon the mere allegations or denials of the adverse party's pleading but must instead produce evidence that sets forth specific facts showing that there is a genuine issue for trial." Estate of Tucker ex rel. Tucker v. Interscope Records, Inc., 515 F.3d 1019, 1030 (9th Cir. 2008) (citation and internal quotation marks omitted).
Further, Local Rule 260(b) requires:
Any party opposing a motion for summary judgment or summary adjudication [must] reproduce the itemized facts in the [moving party's] Statement of Undisputed Facts and admit those facts that are undisputed and deny those that are disputed, including with each denial a citation to the particular portions of any pleading, affidavit, deposition, interrogatory answer, admission, or other document relied upon in support of that denial.
If the non-movant does not "specifically . . . [controvert duly supported] facts identified in the [movant's] statement of undisputed facts," the non-movant "is deemed to have admitted the validity of the facts contained in the [movant's] statement." Beard v. Banks, 548 U.S. 521, 527 (2006).
Because a district court has no independent duty to scour the record in search of a genuine issue of triable fact, and may rely on the nonmoving party to identify with reasonable particularity the evidence that precludes summary judgment, . . . the district court . . . [is] under no obligation to undertake a cumbersome review of the record on the [nonmoving party's] behalf.
Simmons v. Navajo Cnty., Arizona, 609 F.3d 1011, 1017 (9th Cir. 2010) (citation and internal quotation marks omitted).
Evidence must be viewed "in the light most favorable to the non-moving party," and "all reasonable inferences" that can be drawn from the evidence must be drawn "in favor of [the non-moving] party." Nunez v. Duncan, 591 F.3d 1217, 1222-23 (9th Cir. 2010).
Defendant "processes, distributes, and delivers corporate-identity work uniforms as well as facility services products[.]" (Statement of Undisputed Facts ("SUF") ¶ 1.) Defendant "employs Service Sales Representatives ('SSR') to service its customers by delivering clean uniforms and other industrial products to a customer's business and also picking up soiled garments for laundry, repair or replacement." Id. ¶ 2. "Typically, each SSR is assigned a particular customer route that he or she services each week in order to develop continuing customer relationships with [Defendant's] customers." Id. "Plaintiff was employed by [Defendant] as an SSR, servicing a route, from September 8, 2003 until August 3, 2009." Id. ¶ 8. In 2006, Plaintiff "transferred . . . to [Defendant's] Sacramento, California facility #622 (hereinafter 'Location 622')[.]" Id. ¶ 10.
"Plaintiff suffers from debilitating migraines . . . ." (Pl.'s Separate Statement of Undisputed and Additional Material Facts ("AUF") ¶ 2.) Plaintiff's migraines occasionally made her late for work because she had to wait for her medication to effectively minimize her symptoms. Id. "On November 20, 2008, Plaintiff made a request to [Defendant's] third party administrator for leave under the [Family Medical Leave Act ('FMLA')]" and in "a letter dated February 13, 2009," Plaintiff's "request for intermittent FMLA leave [was] approved from January 26, 2009 through January 26, 2010." (SUF ¶¶ 28, 30.) "Prior to making any formal request for FMLA leave . . . , [Defendant] had permitted Plaintiff to arrive late to work on account of her migraines." Id. ¶ 31.
"On January 27, 2009, Plaintiff received a verbal warning based on failure to service customers during regular business hours and related customer complaints." (SUF ¶ 22.) The warning states, "Shortly after we went to our new schedule of four ten[-]hour days, [Jacqueline] Mack and I had a discussion with you regarding finishing your route days at an appropriate time, [and] servicing all customers during regular business hours . . . ." (AUF ¶ 7; Stewart Dep. Ex. 24; Stewart Dep. 76:21-25.) The warning further states, "My expectation is that you will have all customers serviced by 5 PM daily. You need to be checked in and out of the plant at a reasonable time also, within 90 minutes of finishing servicing your customers, i.e., 6:30 PM." (AUF ¶ 7; Stewart Dep. Ex. 24.)
"As a solution to the customer service issues, Plaintiff proposed an accommodation [where] . . . another SSR [would] begin Plaintiff's route on days whe[n] she could not arrive at work on time and then [she would] . . . meet that SSR on the route once she arrived at work." (SUF ¶ 39; AUF ¶ 20.) However, Defendant said it "didn't want to do that," without explanation. (Stewart Dep. 116:25-117:2; AUF ¶ 20.) Defendant objects to this "fact" on the grounds that it "lacks foundation, and is conclusory." (Def.'s Objections to Pl.'s AUF ¶ 20.) However, this objection is overruled since Plaintiff's account of this conversation with her managers is uncontroverted.
"In February 2009, Plaintiff met with Mack, [the Human Resources Manager,] Grizelda Torrao, General Manager . . . at that time, Scott Wallace, Service Director, Scott Tricomo, Service Manager and Plaintiff's direct supervisor, and Elizabeth Santilli, a Regional Human Resources representative, to discuss performance deficiencies and to engage in additional dialogue related to possible accommodations." (SUF ¶ 34.) "At the time of the February 2009 meeting, [Defendant] had received . . . customer complaints related to Plaintiff servicing customers after they were closed or leaving product at the customer's back door." Id. ¶ 35.
"Plaintiff alleges that . . . Santilli told her that she would be fired if she showed up late to work again." (SUF ¶ 40.) "Santilli specified [to Plaintiff] that the position of SSR required a certain start time." (AUF ¶ 19.) Plaintiff testified that Santilli "stated that if I couldn't come to work on time and do the job that I was hired to do, that [Defendant] did not have any other positions for me, and they would -- that it was a bad time to be out of work." (Stewart Dep. 114:23-115:1.) Plaintiff also testified that Santilli "said there were others in the plant with worse conditions than mine that were able to make it to work on time." Id. 115:14-16. In response, "Plaintiff told [Defendant] that her tardiness was the result of migraine headaches and a change in medication from [injectable] form to tablet form." (SUF ¶ 37.)
After the February 2009 meeting, Santilli contacted Plaintiff's supervisors "to see if [Plaintiff's] start times had improved." (Tricomo Dep. 31:13-15.) Plaintiff "continued to [use her approved FMLA leave to] come in late when she experienced a migraine headache," but "for the most part her start times improved." (SUF ¶ 41; Tricomo Dep. 31:10.) "The February 2009 meeting with Santilli is the only time Plaintiff alleges she was told she would be fired for showing up late." (SUF ¶ 40.) Santilli "was not involved in conducting the [workforce reduction]" at Location 622 and she was ...