The opinion of the court was delivered by: Hon. Anthony J. Battaglia U.S. District Judge
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT AS TO THE REMAINING FMLA CLAIM [Doc. No. 106.]
Plaintiff Wilfredo A. Golez, proceeding pro se and in forma pauperis, filed a fourth amended complaint against Defendant John E. Potter, the United States Postmaster General, alleging violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16; the Rehabilitation Act of 1973, 29 U.S.C. § 794a; and the Family Medical Leave Act ("FMLA"), 29 U.S.C. § 2601. On October 17, 2011, the Court granted Defendant's motion for partial summary judgment as to the Title VII and rehabilitation claims and as to the FMLA claim regarding any events prior to May 5, 2006. (Dkt. No. 113.) Before the Court is Defendant's second motion for partial summary judgment filed on July 25, 2011 regarding the remaining FMLA claim. (Dkt. No. 106.) The motion is submitted on the papers without oral argument, pursuant to Civil Local Rule 7.1(d)(1). After a review of the briefs, supporting documentation, and applicable law, the Court GRANTS in part and DENIES in part Defendant's second motion for partial summary as to the FMLA claim regarding any incidents after May 5, 2006.
On May 5, 2009, Plaintiff filed a complaint against Defendant Potter. (Dkt. No. 1.) On September 14, 2009, Plaintiff filed a first amended complaint. (Dkt. No. 15.) On December 8, 2009, Defendant filed a motion to dismiss the first amended complaint. (Dkt. No. 22.) Before the motion to dismiss was fully briefed, on February 22, 2010, Plaintiff filed a motion for leave to file a second amended complaint. (Dkt. No. 30.) On February 24, 2010, the Court granted Plaintiff's motion for leave to file a second amended complaint and denied Defendant's motion to dismiss as moot. (Dkt. No. 34.) On February 24, 2010, a second amended complaint was filed. (Dkt. No. 35.) On March 5, 2010, Plaintiff filed a motion for leave of court to file an addendum to the second amended complaint. (Dkt. No. 37.) On March 12, 2010, the Court construed that motion as a motion for leave to file a third amended complaint which was granted. (Dkt. No. 38.) A third amended complaint was filed on March 29, 2010. (Dkt. No. 39.) On April 9, 2010, Defendant filed a motion to dismiss. (Dkt. No. 42.) On April 21, 2010, Plaintiff filed a motion for leave of court to file a fourth amended complaint. (Dkt. No.
44.) On April 23, 2010, the Court denied Plaintiff's request for leave to file a fourth amended complaint and set a briefing schedule on the motion to dismiss. (Dkt. No. 45.) On July 12, 2010, the Court granted Defendant's motion to dismiss and motion to strike and granted in part and denied in part Plaintiff's motion for leave to file a fourth amended complaint. (Dkt. No. 56.) On August 6, 2010, Plaintiff filed a fourth amended complaint. (Dkt. No. 57.) An answer was filed on August 18, 2010. (Dkt. No. 59.) On August 20, 2010, Plaintiff filed a motion for temporary restraining order which was denied on August 23, 2010. (Dkt. No. 62.)
On February 10, 2011, Defendant filed a motion for partial summary judgment, or alternatively, motion to dismiss. (Dkt. No. 81.) On February 22, 2011, Plaintiff filed a motion for leave of court to amend the fourth amended complaint which was denied on February 28, 2011. (Dkt. Nos. 86, 87.) On March 14, 2011, the case was transferred to the undersigned judge. (Dkt. No. 89.) Plaintiff filed an opposition on March 18, 2011 and Defendant filed a reply on March 29, 2011. (Dkt. Nos. 92, 93.) On October 17, 2011, the Court granted Defendant's motion for partial summary judgment as to the Title VII and rehabilitation claims and as to the FMLA claims regarding any events prior to May 5, 2006. (Dkt. No. 113.)
On July 25, 2011, Defendant filed a second motion for partial summary judgment as to the remaining FMLA claims regarding any events after May 5, 2006. On December 20, 2011, Plaintiff filed an opposition to the motion for partial summary judgment. (Dkt. No. 131.) Defendant filed a reply on January 9, 2012. (Dkt. No. 132.)
Plaintiff was employed as a custodian with the United States Postal Service from February 16, 1998 to July 4, 2008 when his employment was terminated. (Fourth Amended Complaint ("FAC") ¶ 6.) Plaintiff's disciplinary issues started in November 2004. (Id. ¶ 10.)
According to the fourth amended complaint, Defendant suspended Plaintiff for seven days from April 30 to May 6, 2005 for irregular attendance at work. (Id. ¶ 17.) On July 28, 2005, Plaintiff was suspended for fourteen days for irregular attendance. (Id. ¶ 19.) On February 2, 2006, Defendant reduced his suspension to a "paper suspension with no loss of pay" through a pre-arbitration settlement. ¶ 21.)
In November 2005, after discussing his attendance issues with his supervisor, he was told that "[i]t was business and if Plaintiff could not be there, Plaintiff might as well not be there." (Id. ¶ 9.)
On May 9, 2006, Plaintiff received a notice of proposed removal. (Id. ¶ 24.) Shortly thereafter, Plaintiff submitted a letter of rebuttal to the "EEO and APWU." (Id. ¶ 25.) Around June 15, 2006, Defendant rescinded the proposed letter of removal. (Id. ¶ 26.)
On October 10, 2006, Plaintiff returned to work and received an investigative interview dated October 9, 2006 for not reporting an on-the-job injury. (Id. ¶ 29.) On November 28, 2006, Defendant conducted an investigative interview regarding Plaintiff's continuing unauthorized absences. (Id. ¶ 33.) On November 29, 2006, Plaintiff received a Proposed Removal from employment for his unauthorized absences. (Id. ¶ 34.) On December 4, 2006, Plaintiff submitted a rebuttal to the proposal. (Id. ¶ 35.) On December 28, 2006, Defendant reduced the discipline to a fourteen-day suspension, which was to remain on his record for eighteen months, until June 2008. (Id. ¶ 37.)
In April and May 2008, Plaintiff was late six times. (Id. ¶ 40.) Plaintiff claims he called the supervisor's cell phone to inform him of the delay but the calls were ignored. (Id.) On May 11, 2008, Plaintiff received an emergency call about his mother's health and looked for the supervisor in his office to inform him but he was not there. (Id. ¶ 42, 43.) Plaintiff clocked out to lunch when he left. (Id. ¶
On June 2, 2008, Plaintiff received a Notice of Proposed Removal for "Failure to Follow Instructions" to notify his workplace of his absences. (D's Notice of Lodgment ("NOL"), Ex. 3.) On June 11, 2008, Plaintiff delivered his attorney's letter to Defendant. (P's NOL, Ex. 5 at pgs. 41-42*fn1 .) On June 20, 2008, Plaintiff rejected a proposal by Defendant of a "Last Chance Employment Agreement" provided that Plaintiff withdraw all claims filed. (FAC ¶¶ 54, 55.) On July 3, 2008, Plaintiff was issued a Notice of Decision of Termination by Defendant. (D's NOL, Ex. 4.) On July 4, 2008, Plaintiff was escorted out of the Facility. (FAC ¶ 58.)
Legal Standard pursuant to Federal Rule of Civil Procedure 56 Federal Rule of Civil Procedure 56 empowers the Court to enter summary judgment on factually unsupported claims or defenses, and thereby "secure the just, speedy and inexpensive determination of every action." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 327 (1986). Summary judgment is appropriate if the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). A fact is material when it affects the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The moving party bears the initial burden of demonstrating the absence of any genuine issues of material fact. Celotex Corp., 477 U.S. at 323. The moving party can satisfy this burden by demonstrating that the nonmoving party failed to make a showing sufficient to establish an element of his or her claim on which that party will bear the burden of proof at trial. Id. at 322-23. If the moving party fails to bear the initial burden, summary judgment must be denied and the court need not consider the nonmoving party's evidence. Adickes v. S.H. Kress & Co., 398 U.S. 144, 159-60 (1970).
Once the moving party has satisfied this burden, the nonmoving party cannot rest on the mere allegations or denials of his pleading, but must "go beyond the pleadings and by her own affidavits, or by the 'depositions, answers to interrogatories, and admissions on file' designate 'specific facts showing that there is a genuine issue for trial.'" Celotex, 477 U.S. at 324. If the non-moving party fails to make a sufficient showing of an element of its case, the moving party is entitled to judgment as a matter of law. Id. at 325. "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 Elec. Indus. Co. v. Zenith Radio 475 U.S. 574, 587 (1986). In making this determination, the court must "view the evidence in the light most favorable to the nonmoving party." Fontana v. Haskin, 262 F.3d 871, 876 (9th Cir. 2001). The Court does not engage in credibility determinations, weighing of evidence, or drawing of legitimate inferences from the facts; these functions are for the trier of fact. Anderson, 477 U.S. at 255.
"A document filed pro se is 'to be liberally construed,' and 'a pro se complaint, however in artfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.'" Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). However, a pro se litigant must comply with procedural rules. King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). In addition, a nomoving party's failure to comply with the rules does not excuse the moving party's duty to demonstrate its entitlement to judgment as a matter of law. Martinez v. Stanford, 323 F.3d 1178, 1182 (9th Cir. 2003). A moving party under Rule 56 must affirmatively show that there are no genuine issues as to any material fact and they were entitled to judgment as a matter of law. Id. at 1183.
The Ninth Circuit has observed that "[a]t the summary judgment stage, we do not focus on the admissibility of the evidence's form. We instead focus on the admissibility of its contents." Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003) (evidence which could be made admissible at trial may be considered on summary judgment). The nonmoving party need not produce evidence "in a form that would be admissible at trial in order to avoid summary judgment." F.D.I.C. v. N.H. Ins. Co., 953 F.2d 478, 485 (9th Cir. 1991) (because Defendant failed to object to the admission of documents, the court considered the documents in a Rule 56 motion despite the fact that the evidence was presented in a form that would not be admissible at trial) (quotation omitted).
A. Statute of Limitations
In the previous motion for summary judgment which was filed prior to the conclusion of discovery, Defendant liberally construed the statute of limitations and argued that any events occurring before May 5, 2006*fn2 must be time-barred by the three-year statute of limitations which requires a showing of a willful violation. In the instant motion, Defendant argues that after having conducted discovery, Plaintiff lacks any evidence that the challenged decisions were willful violations under the FMLA. Therefore, the two year statute of limitations applies and any events alleging FMLA violations prior to May 5, 2007 must be barred. The incidents include the following:
1) October 9, 2006 investigative interview (FAC ¶¶ 11, 69, 77); 2) November 28, 2006 investigative interview ...