ORDER RE: DEFENDANT'S MOTION FOR SUMMARY ADJUDICATION
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 included fourteen causes of action: 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 adjudication was granted in favor of Defendants on all but the disparate impact related claims (disparate impact under FEHA, wrongful demotion in violation of public policy under FEHA, Cal. Bus. & Prof. Code § 17200, and negligent infliction of emotional distress claims). Defendant has made a motion for summary adjudication on these remaining claims which Plaintiff opposes.
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. Defendant's Statement of Material Facts
Plaintiff does not dispute any of Defendant's asserted facts.
1. On December 10, 2010, plaintiff filed his Third Amended Complaint.
2. On March 2, 2012, the Court granted Wal-Mart's Motion for Summary Judgment in its entirety and entered final judgment in this matter.
3. The Court ruled that plaintiff failed to meet the statute of limitations for his attempted failure-to-promote claim.
4. On March 7, 2012, plaintiff filed a Motion for Reconsideration of the Court's Order Re: Defendant's Motion for Summary Judgment.
5. On May 23, 2012, the Court ruled on plaintiff's Motion to Reconsider. The remaining causes of action of plaintiff's Third Amended Complaint following the Court's Order on plaintiff's Motion for Reconsideration are: (1) first cause of action for violation of FEHA disparate impact discrimination; (2) second cause of action for violation of CA Business & Professions Code §17200 to the extent it depends on a FEHA disparate impact claim; (3) tenth cause of action for negligent infliction of emotional distress to the extent it depends on a FEHA disparate impact claim; and (4) eleventh cause of action for wrongful demotion in violation of public policy to the extent that it is based on a FEHA disparate impact claim.
6. The Court's MTR Order allowed "an additional round of dispositive motions" relating to plaintiff's alleged disparate impact based claims. The Court noted "in the briefing for the summary judgment, plaintiff did not directly argue disparate impact. Now plaintiff points out that he did allege 'Wal-Mart has a company practice to hire young, healthy, single, part-time workers.'"
7. The Court noted that there is a statute of limitations issue with plaintiff's FEHA-based disparate impact theory.
8. The Court's MTR Order noted it had dismissed plaintiff's FEHA disparate treatment claim as beyond the statute of limitations. The Court's MTR Order confirmed that "Plaintiff can not show a denial of promotion within the statute of limitations period."
9. The Court's MTR Order noted that statistical analysis is "indispensable in a disparate impact case."
10. Plaintiff's first cause of action, count three, under FEHA states allegations under a "Disparate Impact" header.
11.Plaintiff's TAC alleged that "Wal-Mart has an employment practice of not promoting older and/or disabled workers, despite being well qualified for available positions, and this policy has had a disproportionate impact on persons over 40, and disabled workers."
12. Plaintiff's second cause of action alleged a violation of California Business & Professions Code §17200. He alleges that Wal-Mart has "A corporate structure that has created a business environment that fosters and encourages discrimination against the women and minority groups, including the aged and disabled."
13. Plaintiff's tenth cause of action alleged Negligent Infliction of Emotional Distress.
14. Plaintiff's eleventh cause of action alleged Wrongful Demotion in Violation of Public Policy based on "complaints of Wal-Mart's harassment, discrimination, retaliation and violation of his civil rights" allegedly resulting in reduction in ...