) ORDER ON DEFENDANT'S ) MOTION FOR PARTIAL SUMMARY JUDGMENT ))) (Doc. No. 24)
This is an employment related dispute between Plaintiff Margie Ellis ("Ellis") and her former employer, Defendant Knight Transportation, Inc. ("Knight"). Ellis alleges California law claims of retaliation, wrongful discharge in violation of public policy, and failure to pay wages. Currently before the Court is Knight's motion for partial summary judgment on the wrongful discharge and retaliation claims. For the reasons that follow, the motion will be denied.
Section IV of the Scheduling Order in this case sets dates and requirements for filing summary judgment motions. See Doc. No. 18. Part of those requirements directed the parties to meet and confer prior to filing a motion for summary judgment. See id. Six purposes for this meet and confer requirement were identified, including the purpose of arriving at a joint statement of undisputed facts. See id. The Scheduling Order stated that, in addition to the requirements of Local Rule 260, the moving party was to file a joint statement of undisputed facts. See id. The scheduling order also directed, "In the notice of motion, the moving party shall certify that the parties have met and conferred as ordered above," or "set forth a statement of good cause for the failure to meet and confer." Id.
On October 19, 2012, Knight timely filed its motion for summary judgment. See Doc. No. 24. The motion essentially contends that Knight is entitled to summary judgment because the decision makers did not know about Ellis's protected activity and, in any event, the reason for Ellis's termination was non-retaliatory and not pretextual. See Doc. No. 34. However, in the notice of motion, Knight did not certify that it had met and conferred with Ellis, did not submit a statement that demonstrated good cause for not conferring, and did not submit a joint statement of undisputed facts.
On November 5, 2012, Ellis submitted an opposition. See Doc. No. 35. In part, the opposition objects that Defendant failed to follow Local Rule 260 and the Scheduling Order in that no attempt to meet and confer occurred, no joint statement of facts were filed, and no certification regarding a meet and confer session or good cause was submitted. See id. at 1:24-2:12. Ellis also contends that this motion is unnecessary because there are many disputed facts. Ellis has declared that Knight's Vice President of Human Resources, Glen Palmer ("Palmer") spoke with here on May 31, 2012, and admitted that Knight had wrongfully terminated Ellis in retaliation for making a claim for overtime pay with the Department of Labor. See Doc. No. 37 at ¶ 14; see also Doc. No. 35 at 3:1-9.
In reply, Knight's attorney stated that he met and conferred on two occasions about summary judgment and settlement, once in person after a deposition and another time by telephone. Defense counsel states that by the end of the discussions and discovery, it was clear that the parties disagreed over the legal issues which are the subject of the summary judgment motion. Defense counsel states that the error was merely failing to include a certification.
Following receipt of the opposition and reply, the Court ordered Ellis to respond to the objection that her declaration was a "sham," and permitted Knight to file a reply to Ellis's response. In a supplemental declaration, Ellis explains that she thought that the deposition question at issue referred to managers and supervisors in Tulare, California (where she worked), that Palmer worked in Phoenix, Arizona, she did not report to Palmer on a daily basis, and she did not consider him to be either her manager or a supervisor. See Supplemental Ellis Dec. ¶¶ 3, 4. Knight responds that the supplemental declaration is a sham because Ellis testified earlier in her deposition that she did not have conversations "with anybody at Knight," and also testified that she had "supervisors" in the corporate offices in Phoenix, which indicates that she understood the term "supervisor" to include upper management corporate officers.
1. Failure To Follow Scheduling Order
The Court concludes that Knight's motion violates the Court's scheduling order. Knight failed to file both a certification and a set of joint undisputed facts. Knight is incorrect in contending that the scheduling order has been followed because the lack of certification was a mere oversight. Irrespective of the certification, the scheduling order required the moving party to initiate a meeting with the non-moving party and to provide a draft of the joint statement of undisputed facts. Defense counsel's declaration does not describe a meeting in which a draft of any joint statement of facts was provided or discussed. The failure to initiate a meeting in which a joint statement of undisputed facts was provided is likely one of the reasons why Ellis believes that Knight's motion is improper.
Given the briefing received, it appears to the Court that a meet and confer session in which a draft joint statement of material facts was discussed could have been productive and may have resulted in a more accurate set of disputed and undisputed facts. For example, as part of the reply, Knight objects to nearly every separate fact submitted by Ellis as "irrelevant," when in fact not all of the additional facts are irrelevant. Further, the issue of the May 31, 2012, statements by Knight's HR officer, Palmer, would have been discussed, and Knight could have addressed the issue in its initial moving papers instead of addressing the issue for the first time in reply. Finally, between Ellis and Knight, the parties submitted a combined 165 allegedly "undisputed" material facts. The Court cannot help but think that the number of facts submitted for consideration would have been reduced.
When a party files a motion for summary judgment in violation of the scheduling order's meet and confer requirements, and the non-moving party objects, the Court generally sustains the non-moving party's objection and denies the summary judgment motion. The Court does not see a good reason to deviate from its practice. Knight's motion will be denied.
2. Ellis's Declaration Regarding Statements By Palmer Alternatively, even if the Court excused the failure to follow the scheduling order's requirements, summary judgment would not be appropriate.
It is true that, generally if the decision maker does not have knowledge of a plaintiff's protected activity, then there can be no retaliation for engaging in protected activity. See Reed v. Avis Budget Group, Inc., 472 Fed. Appx. 525, 526 (9th Cir. 2012); Raad v. Fairbanks N. Star Borough, 323 F.3d 1185, 1197 (9th Cir. 2003); Gunther v. County of Washington, 623 F.2d 1303, 1316 (9th Cir. 1979); George v. California Unemployment Ins. Appeals Bd., 179 Cal.App.4th 1475, 1491 (2009); Morgan v. Regents of University of Cal., 88 Cal.App.4th 52, 70 (2001). Further, the reasons articulated by Knight for the decision to terminate Ellis, i.e. poor performance, are non-discriminatory. However, in summary judgment, the Court is required ...