ORDER RE: DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Plaintiff Zane Hardin ("Plaintiff") has been an employee of Defendant Wal-Mart ("Defendant") for several years. Broadly, Plaintiff alleges that Defendant discriminated against and harassed him on the basis of age and physical disability, and then retaliated against him when he asserted his rights.
Plaintiff originally filed this case in state court on March 20, 2008; it was removed to federal court on diversity jurisdiction. The active complaint is the third amended complaint, which includes fourteen causes of action. The remaining claims are: employment discrimination, retaliation, harassment, and denial of reasonable accommodation in violation of California's Fair Employment and Housing Act ("FEHA"); violation of California's Business & Professions Code §17200; violation of California Civil Code §51; intentional infliction of emotional distress; breach of contract; promissory estoppel; conversion; negligent infliction of emotional distress; wrongful demotion; and defamation.
Summary judgment is appropriate when it is demonstrated that there exists 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); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970); Fortyune v. American Multi-Cinema, Inc., 364 F.3d 1075, 1080 (9th Cir. 2004). The party seeking summary judgment bears the initial burden of informing the court of the basis for its motion and of identifying the portions of the declarations (if any), pleadings, and discovery that demonstrate an absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). A fact is "material" if it might affect the outcome of the suit under the governing law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986); Thrifty Oil Co. v. Bank of America Nat'l Trust & Savings Assn, 322 F.3d 1039, 1046 (9th Cir. 2002). A dispute is "genuine" as to a material fact if there is sufficient evidence for a reasonable jury to return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006).
Where the moving party will have the burden of proof on an issue at trial, the movant must affirmatively demonstrate that no reasonable trier of fact could find other than for the movant. Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). Where the non-moving party will have the burden of proof on an issue at trial, the movant may prevail by presenting evidence that negates an essential element of the non-moving party's claim or by merely pointing out that there is an absence of evidence to support an essential element of the non-moving party's claim. See James River Ins. Co. v. Schenk, P.C., 519 F.3d 917, 925 (9th Cir. 2008). If a moving party fails to carry its burden of production, then "the non-moving party has no obligation to produce anything, even if the non-moving party would have the ultimate burden of persuasion." Nissan Fire & Marine Ins. Co. v. Fritz Companies, 210 F.3d 1099, 1102-03 (9th Cir. 2000). If the moving party meets its initial burden, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The opposing party cannot "'rest upon the mere allegations or denials of [its] pleading' but must instead produce evidence that 'sets forth specific facts showing that there is a genuine issue for trial.'" Estate of Tucker v. Interscope Records, 515 F.3d 1019, 1030 (9th Cir. 2008).
The evidence of the opposing party is to be believed, and all reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Stegall v. Citadel Broad, Inc., 350 F.3d 1061, 1065 (9th Cir. 2003). Nevertheless, inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. See Juell v. Forest Pharms., Inc., 456 F.Supp.2d 1141, 1149 (E.D. Cal. 2006); UMG Recordings, Inc. v. Sinnott, 300 F.Supp.2d 993, 997 (E.D. Cal. 2004). "A genuine issue of material fact does not spring into being simply because a litigant claims that one exists or promises to produce admissible evidence at trial." Del Carmen Guadalupe v. Agosto, 299 F.3d 15, 23 (1st Cir. 2002); see Galen v. County of Los Angeles, 477 F.3d 652, 658 (9th Cir. 2007); Bryant v. Adventist Health System/West, 289 F.3d 1162, 1167 (9th Cir. 2002). Further, a "motion for summary judgment may not be defeated ...by evidence that is 'merely colorable' or 'is not significantly probative.'" Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986); Hardage v. CBS Broad. Inc., 427 F.3d 1177, 1183 (9th Cir. 2006). Additionally, the court has the discretion in appropriate circumstances to consider materials that are not properly brought to its attention, but the court is not required to examine the entire file for evidence establishing a genuine issue of material fact where the evidence is not set forth in the opposing papers with adequate references. See Southern Cal. Gas Co. v. City of Santa Ana, 336 F.3d 885, 889 (9th Cir. 2003). If the non-moving party fails to produce evidence sufficient to create a genuine issue of material fact, the moving party is entitled to summary judgment. See Nissan Fire & Marine Ins. Co. v. Fritz Companies, 210 F.3d 1099, 1103 (9th Cir. 2000).
III. Statement of Material Facts
A. Defendants' Statement of Undisputed Material Facts
1. Wal-Mart store number 2985 in Fresno, California hired Plaintiff on November 26, 2001 as an hourly Sporting Goods Sales Associate. (UNDISPUTED)
2. Plaintiff continues to be employed by Wal-Mart store 2985 as Sporting Goods Sales Associate. He has been on a Leave of Absence since September 21, 2011. (UNDISPUTED) [It is undisputed Zane presently has 4th Stage Cancer, and the trial was advanced because of this.]
3. On December 10, 2010, plaintiff filed his Third Amended Complaint. Following Wal-Mart's Motion to Dismiss/Strike parts thereof, the 7th, 9th, 12th, 14th and 15th causes of action were dismissed. The remaining causes of action are: (1) violation of FEHA; (2) violation of CA Business & Professions Code § 17200; (3) violation of CA Civil Code § 51 ("Unruh Act"); (4) intentional infliction of emotional distress; (5) breach of contract; (6) promissory estoppel; (8) conversion; (10) negligent infliction of emotional distress; (11) wrongful demotion; (13) defamation. (UNDISPUTED)
4. In his Second Amended Complaint and discovery responses plaintiff alleges to have applied for numerous Department Manager positions between 2001 and 2004. (UNDISPUTED)
5. Plaintiff's Third Amended Complaint alleges in its first cause of action under FEHA that he was discriminatorily denied promotions based on his age and/or disability. (UNDISPUTED)
6. Plaintiff also testified in January 2010 that he last applied for a Department Manager position on November 14, 2004. (UNDISPUTED)
7. Wal-Mart's internal business records indicate that plaintiff's last application for promotion was August 28, 2004 for the position of Department Manager for Department 8 (Pets), for which he interviewed on September 1, 2004.
8. On February 9, 2008 Plaintiff filed a Fair Employment and Housing Act (hereinafter "FEHA") administrative charge against Wal-Mart alleging a denial of promotion based on age and disability. (UNDISPUTED)
9. Almost three and half years lapsed between the last alleged denial of promotion in November 2004 and the filing of Plaintiff's FEHA charge in 2008. (DISPUTED)
10. After Wal-Mart filed its MSJ, plaintiff filed a Declaration in July 2010 in support of his opposition to the MSJ for the first time alleging that he "probably" applied for a department manager position in 2007 and updated his Third Amended Complaint accordingly. (UNDISPUTED)
11. Plaintiff testified again in December 2011 that he could not recall when he applied for Stationary Department Manager position. He could not recall the year of the application, who vacated the position, what manager he applied with, who received the promotion, and could identify nobody who could confirm that he applied for such a position at any time between date of hire and the present. (DISPUTED)
12. In 2005, Wal-Mart instituted the Career Preferences system which resulted in automating the promotions process such that hourly Associates had to pre-register their career advancement interests on this computerized system. The Associate uses the system to research different positions, set current interests and set future goals. Only those who expressed their interest in a position could be considered for a position once the position became available. (DISPUTED)
13. To be considered, internal applicants must have indicated their interest in the open positions through the Career Preference system and meet the minimum requirements to remain on the Qualified and Interested Applicant Listing. If an applicant has not indicated his/her preference for promoting to certain positions, he/she will not be eligible to apply or considered an applicant for an open position. (UNDISPUTED)
14. Wal-Mart's records of Mr. Hardin status in the Career Preference system indicate plaintiff's never identified or added any position to which he wished to be promoted to his Career Preference profile Therefore, Wal-Mart business records indicated he did not apply for any promotions during and after 2005, when the Career Preferences system was implemented. In addition, the "Interview notes" section of his profile contains no data.
15. Plaintiff admits he is aware that job applications must now be submitted on a computer system. He admits he does not recall using the Career Preferences system or logged onto Wal-Mart's computer system to apply for a job promotion. (UNDISPUTED)
16. All Associates are required to take a "Computer Based Learning" (CBL) course about the Career Preferences system. Wal-Mart's CBL system electronically records the CBL courses Associates complete. (UNDISPUTED)
Mr. Hardin's CBL Report as maintained in the regular course of business and printed as of March 17, 2011 indicates that Mr. Hardin was provided with the training about the Career Preference system's requirement by the Course "Career Preference" on March 18, 2006, and the "Career Pref for Mgmt Positions" on April 26, 2007.
17. Plaintiff claims that his attorney's September 15, 2007 pre-suit demand letter which demands Plaintiff be promoted, constitutes a job application. (DISPUTED)
18. Plaintiff alleges in his Third Amended Complaint that Wal-Mart managers denied him the right to park in the designated Disabled Persons Parking spot on days be worked, and days that he was at Wal-Mart as a customer". (UNDISPUTED)
19. Plaintiff testified that his disability stems from a back injury on October 24,2004. Plaintiff has a mobile disabled placard for his car and a disabled license plate on his motorcycle. (UNDISPUTED)
20. Plaintiff contends that the alleged denial of disabled parking is a failure to reasonably accommodate a disabled person, in violation of FEHA. (UNDISPUTED)
21. Plaintiff contends that the alleged denial of disabled parking violates California Business & Professions Code § 17200 and California Civil Code § 51. (UNDISPUTED)
22. Wal-Mart has a policy which requires its associates to park in a designated area of the parking lot for the purpose of providing its customers with the most convenient spots and not to impede customers' access. (UNDISPUTED)
23. Wal-Mart's parking policy (PD-28) allows for accommodations to associates who have disabilities. (DISPUTED)
24. Fresno store 2985 has an uncovered parking lot that faces the store's front door ("front parking lot"). Disabled parking spaces available to disabled customers and disabled Associates are located in a row of parking spaces closest to the store's front door.
25. Store 2985 also has a Tire Lube & Express ("TLE") Department which is located on the backside of the store. There are three (3) uncovered parking spaces near the TLE Department, one of which is a designated disabled parking space. Wal-Mart's parking policy states that a "Facility Manager will designate areas for Associate parking at each facility, including parking for Associates with disabilities". (UNDISPUTED)
26. Plaintiff was made aware of Wal-Mart's parking policy (PD-28) at orientation. (DISPUTED)
27. Plaintiff testified that there are "30 or 40 disabled spaces in front of the store". (UNDISPUTED)
28. Wal-Mart requires all Associates who are scheduled to work to enter/exit through the front doors of the store unless their car is being serviced by TLE. The policy applies equally to plaintiff's store and has applied since plaintiff's date of hire. (DISPUTED)
29. When Donald Wallis managed the store, all associates at store 2985 were made aware of Wal-Mart's policy that they must enter/exit through the front door on days they are scheduled to work unless they are having their vehicle serviced by the Tire Lube & Express department or work for TLE. (DISPUTED)
30. Plaintiff testified that the only Associates he has seen using the TLE entrance to enter/exit the store are TLE Associates. (UNDISPUTED)
31. Plaintiff testified that Wal-Mart Assistant Manager, Michael Nash, spoke to him about not parking in the disabled parking spots. (UNDISPUTED)
32. Plaintiff's TAC alleges Robbie Alvarado threatened to fire him if he parked in the TLE's disabled parking space. (UNDISPUTED)
33. Alvarado testified that he simply asked plaintiff not to park his motorcycle in the TLE department parking spaces. Alvarado testified he did not know whether plaintiff was disabled, and did not recall whether he was using the single disabled parking space. Alvarado testified that he did not recall the interaction involving disability. Alvarado testified that he simply asked plaintiff on the salesfloor to move his vehicle from TLE parking. He testified that Associates are to enter/exit through the front door. He testified that plaintiff asked only if he could move it right away, Alvarado agreed, and that plaintiff moved his vehicle without discussion. Alvarado denies threatening to fire plaintiff. Alvarado testified that if he asked him to move from the disabled TLE parking space, he would have at most asked him to move to a disabled parking space in the front parking lot. (DISPUTED)
34. Michael Nash and Robbie Alvarado are Assistant Managers at Plaintiff's store. (UNDISPUTED)
35. The alleged parking-related conversations took place in mid-2007. (DISPUTED)
36. According to a letter written by Plaintiff to Store Manager Mike Gillam on May 15 2007, Nash first spoke to Plaintiff about parking his vehicle in the parking lot designated for customers obtaining services from the store's TLE department. (UNDISPUTED)
37. Nash asked Plaintiff not to park in the TLE Department's parking, and Plaintiff informed him that he was parking in the Department's disabled parking space and had the right to do so. (DISPUTED)
38. Plaintiff testified Nash stated that he (Nash) "understood" his right to park in a disabled space. (UNDISPUTED)
39. Plaintiff testified he told Nash that he would park in the front parking lot and did so. (UNDISPUTED IN PART)
40. Plaintiff alleges Nash asked if Plaintiff could park in the spaces closest to the disabled spaces. (UNDISPUTED)
41. Plaintiff testified he parked in the store's front parking lot, in the disabled spaces for three days. (UNDISPUTED)
42. After three days, Plaintiff resumed parking in the TLE's disabled space. (UNDISPUTED)
43. Plaintiff informed Store Manager Mike Gillam of the conversation and Gillam did not stop Plaintiff from continuing to park in a disabled space. (UNDISPUTED)
44. Plaintiff also testified that management offered that plaintiff could park his motorcycle on the sidewalk, closer to the front door than the disabled parking spaces.
45. Nash reminded Plaintiff about their previous conversation and Plaintiff asserted that he was going to park in a disabled space, which is what he continued to do.
46. As for Plaintiff's allegation that Nash ordered him not to park in the disabled space while shopping as a customer, Plaintiff states that the entire interaction involved Nash noting that Plaintiff was not to park in a disabled space, and Plaintiff not responding to Nash's comment and walking by. (UNDISPUTED)
47. Plaintiff's Third Amended Complaint alleges that "Wal-Mart retaliates by arbitrarily reducing his work hours and changing his schedule" and specifically that after the 2007 disabled parking exchange, Nash arbitrarily changed his hours. Plaintiff alleges that changes in hours constituted retaliation and harassment under FEHA (first cause of action). (UNDISPUTED)
48. Plaintiff's time clock archives for 2006 confirm that he consistently worked an average of approximately 30 hours a week during the weeks he was scheduled to work. (Plaintiff took a leave of absence in January, February and Saturday of 2006).
49. Plaintiff alleges that he was retaliated against in reduction of hours. (UNDISPUTED)
50. Plaintiff testified that he remained a full-time associate in 2007. (UNDISPUTED)
51. Plaintiff's time clock archives for 2007 confirm that he consistently worked an average of approximately 30 hours a week during the weeks he was scheduled to work. (UNDISPUTED)
52. Plaintiff's time clock archives for 2008 and 2009 confirm that he worked an average of approximately 30 hours per week during the weeks he was scheduled. (UNDISPUTED)
53. Plaintiff asserts that a prior agreement with former Store Manager Wallis entitled him to maintain full-time status if he works at minimum 28 hours, entitles him to maintain a 7:00 a.m. to 4:00 p.m. schedule, and entitles him to maintain eligibility for spousal health insurance coverage. (UNDISPUTED)
54. On March 29, 2006, Plaintiff indicated his preferred availability for scheduling as limited to between 7:00 a.m. and 4:00 p.m. and indicated his unavailability on Sundays, Mondays and Tuesdays. (UNDISPUTED)
55. Plaintiff testified that his alleged agreement was not contemporaneously documented by the alleged parties to the alleged agreement. Plaintiff testified that before the March 2006 Availability, there was nothing in writing about the alleged agreement. (DISPUTED)
56. Plaintiff alleges that the March 2006 Availability 'confirmed' his prior alleged agreement with Store Manager Wallis that allegedly promised him full-time status and guaranteed him 28 hours of scheduled work per week between the designated hours, and full-time status. (DISPUTED)
57. The March 2006 Availability states in pre-typed language: "This form is no guarantee of a shift or minimum number of hours." (DISPUTED)
58. The pre-typed language on the March 2006 Availability has not been crossed out or changed on the March 2006 Affidavit. (DISPUTED)
59. There is no language, typed or written, on the March 2006 Availability that states that Plaintiff will retain full time status or maintain eligibility for spousal health coverage. (DISPUTED)
60. Plaintiff alleges that in exchange for Wal-Mart (allegedly) agreeing to provide plaintiff with full-time status if he continued to work 28 hours/week at minimum, providing his wife health insurance and allowing him to log those hours during certain schedule of certain days/hours per week, that plaintiff offered Wal-Mart "an employee that can do the job, show up on time, and not cause problems". (UNDISPUTED)
61. Plaintiff Complaint alleges that after he turned 62 years old (July 18, 2004, he made an appointment with then Store Manager Donald Wallis to advise him he had applied for social security benefits and to advise him that he would need to reduce his hours at Wal-Mart. He states that Wallis agreed to provide him three months off per year. He also states that Wallis told him to talk to Sporting Goods Department Manager Eleno Bernal to "work out a reduced schedule. I went to Eleno and we worked out a reduced schedule. As per agreement I would Wed., Thurs., Fri, and Sat. starting at 7:00 a.m. until 4:00 p.m.Don agreed with the scheduled." (UNDISPUTED)
62. Plaintiff's time clock archives for January 23, 2010 through April 23, 2010 show that plaintiff consistently worked less than 25 hours per week between January 16, 2010 and April 23 2010. (UNDISPUTED)
63. Plaintiff was classified as a part-time Associate on April 21, 2010. Plaintiff signed a "Job Offer" to memorialize the change in his classification from full-time to part-time. (UNDISPUTED)
64. Plaintiff alleges his April 2010 re-classification as a part-time employee constitutes a breach of contract (his fifth cause of action). (UNDISPUTED)
65. Plaintiff currently has health insurance coverage from Wal-Mart. (UNDISPUTED)
66. Plaintiff alleges in his sixth cause of action for Promissory Estoppel that Wal-Mart promised and represented it would provide him certain hours, schedule and benefits and that Plaintiff, at his detriment, continued to work at Wal-Mart in reliance of said promise. (UNDISPUTED)
67. Plaintiff asserts that a prior agreement with a manager also entitles him to take 3 months of leave per year (January, February, and September). (UNDISPUTED)
68. Assistant Manager Michael Nash was hired by Wal-Mart on December 22, 1992 when he was hired to unload trucks. (UNDISPUTED)
69. Nash began working at the subject store (store number 2985) on September 17, 2005 as department manager of the Tire Lube & Express department and later became Assistant Manager. (UNDISPUTED)
70. Nash is an Assistant Manager at the subject store. (UNDISPUTED)
71. There are tens of thousands of Assistant Managers employed by Wal-Mart retail stores nationwide. (UNDISPUTED)
72. As an Assistant Manager at Wal-Mart, Nash oversees hourly associates who work in various departments. His primary job responsibility is to implement the policies and procedures and to ensure the associates he supervises complied with them as well. (UNDISPUTED)
73. Nash learns about Wal-Mart's policies and procedures through his Store Manager and documents provided by Wal-Mart through its intranet system. (UNDISPUTED)
74. Assistant Managers do not possess the discretion or authority to deviate from corporate policies and procedures. Assistant Managers are completely uninvolved in the decisions that ultimately determine corporate policy. (DISPUTED)
75. Donald Wallis and Michael Gillam were consecutive Store Managers of store number 2985 during Plaintiff's employment. (UNDISPUTED)
76. There are thousands of Store Managers employed by Wal-Mart retail stores nationwide. (UNDISPUTED)
77. As Store Managers, Gillam and Wallis were responsible for familiarizing themselves with Wal-Mart corporate policies and procedures, which are determined by Wal-Mart's home office in Bentonville, Arkansas. They were then required to implement those policies and ensure that their subordinates, primarily Assistant Managers, are doing the same. Store Managers do not possess the discretion or authority to deviate from Wal-Mart's corporate policies and procedures.(UNDISPUTED)
78. Store Managers do not generate or determine Wal-Mart corporate policy, which is generated in Bentonville, Arkansas. (DISPUTED).
79. Plaintiff seeks to recover punitive damages for his retaliation and discrimination causes of action. (UNDISPUTED)
80. Plaintiff testified he does not know if Wal-Mart's corporate headquarters were singling him out by re-classifying him as a part-time associate. (DISPUTED)
81. Plaintiff wrote to then-district manager Ron Smoot (who is no longer employed by Wal-Mart) on November 17, 2004, requesting a daytime shift and referring to younger Associates who ...