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Miller v. Amerigas Partners, L.P.

United States District Court, E.D. California

March 19, 2014

JAMES MILLER, Plaintiff,


KIMBERLY J. MUELLER, District Judge.

This case was on calendar on February 14, 2013 for a hearing on the motion for summary judgment filed by AmeriGas Partners, L.P. (AmeriGas). Gregory Ramirez of Myers, Widders, Gibson, Jones & Feingold, LLP, appeared for plaintiff James Miller; Melinda Riechert of Morgan, Lewis & Bockius, LLP, appeared for AmeriGas. After considering the parties' arguments, the court GRANTS the motion.


On October 31, 2012, Miller filed a complaint in Mono County Superior Court alleging generally that he had been employed as a District Manager by Heritage Propane in Mammoth Lakes, California since 1997; in October 2011, Heritage announced that its rival AmeriGas had acquired Heritage; in January 2012, Heritage employees received a transition packet from AmeriGas, including a "Confidentiality and Post Employment Agreement" providing that any employee would not solicit AmeriGas employees or sell propane within a fifty mile radius from an AmeriGas District Office for two years after leaving AmeriGas; Miller refused to sign the agreement; AmeriGas let employees know there would be some layoffs because, for example, there could be only one manager in an area that had had both Heritage and AmeriGas offices; within a month of his second refusal to sign the agreement, plaintiff was interviewed for the position of manager of the combined Bishop/Mammoth Lakes region; about a month after the interview Lisa Thomas, one of the interviewers, arrived at the Mammoth Lakes office, and informed plaintiff he had not been selected for the manager position. ECF No. 1-1 at 8-14. The complaint contains two claims: (1) wrongful termination in violation of public policy; and (2) unfair business practices in violation of California Business and Professions Code §§ 17200, et seq.

On December 10, 2012, AmeriGas removed the case to this court. ECF No. 1. The instant motion was filed on December 20, 2013. ECF No. 21.


A court will grant summary judgment "if... there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). The "threshold inquiry" is whether "there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).[1]

The moving party bears the initial burden of showing the district court "that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). The burden then shifts to the nonmoving party, which "must establish that there is a genuine issue of material fact...." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585 (1986). In carrying their burdens, both parties must "cit[e] to particular parts of materials in the record...; or show [] that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." FED. R. CIV. P. 56(c)(1); see also Matsushita, 475 U.S. at 586 ("[the nonmoving party] must do more than simply show that there is some metaphysical doubt as to the material facts"). Moreover, "the requirement is that there be no genuine issue of material fact.... Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 247-48 (emphasis in original).

In deciding a motion for summary judgment, the court draws all inferences and views all evidence in the light most favorable to the nonmoving party. Matsushita, 475 U.S. at 587-88; Whitman v. Mineta, 541 F.3d 929, 931 (9th Cir. 2008). "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.'" Matsushita, 475 U.S. at 587 (quoting First Nat'l Bank of Arizona v. Cities Serv. Co., 391 U.S. 253, 289 (1968)).

A court may consider evidence as long as it is "admissible at trial." Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003). "Admissibility at trial" depends not on the evidence's form, but on its content. Block v. City of L.A., 253 F.3d 410, 418-19 (9th Cir. 2001) (citing Celotex Corp., 477 U.S. at 324). The party seeking admission of evidence "bears the burden of proof of admissibility." Pfingston v. Ronan Eng'g Co., 284 F.3d 999, 1004 (9th Cir. 2002). If the opposing party objects to the proposed evidence, the party seeking admission must direct the district court to "authenticating documents, deposition testimony bearing on attribution, hearsay exceptions and exemptions, or other evidentiary principles under which the evidence in question could be deemed admissible...." In re Oracle Corp. Sec. Litig., 627 F.3d 376, 385-86 (9th Cir. 2010).


Each party objects to some of its opponent's evidence. The court resolves these disputes only as to that evidence it deems relevant and material.

A. Miller's Objections

Miller raises an hearsay objection to paragraphs in the declarations of AmeriGas employees Lisa Thomas, Richard Martinelli, Gary Browne, and Cassandra Russo, incorporating their notes of their interview of Jeff Pahlow for the manager's position. See, e.g., Decl. of Gary Browne, ECF No. 25 ¶ 4 & Ex. B ("Attached hereto as Exhibit B is a true and correct copy of the Interview Guide I filled out when interviewing Jeff Pahlow.... The notes contain accurate summaries of statements Pahlow made at his interview."). AmeriGas is not asking the court to consider the truth of what Pahlow said during the interview, but that the interview panel relied upon what he said; the court overrules the hearsay objection. See Bergene v. Salt River Project Agr. Imp. and Power Dist., 272 F.3d 1136, 1142 (9th Cir. 2001) (finding a statement was not hearsay when not offered for the truth of the matter asserted).

Miller next objects to Regional Human Resources Manager Shirley Kelley's claim to be aware of at least two former Heritage employees who did not sign the confidentiality agreement and yet have remained employed by AmeriGas, arguing the claim is vague and lacks foundation. Decl. of Shirley Kelley, ECF No. 24 ¶ 2. The court agrees the statement is too vague for it to have any relevance, as there is no indication the employees were in the same position that Miller sought and that the same considerations of confidentiality would apply to employees holding other jobs within the company.

Finally, Miller objects to Lisa Thomas's deposition testimony that "there was a directive that we could offer anybody that didn't take the position that we wanted to, they didn't have to sign the agreement. It wasn't an issue at that point. [¶] And that came from Paul Grady." Decl. of Yin Zheng, Ex. B, Dep. of Lisa Thomas, ECF No. 23-2 at 20:23-21:2. The court will not consider this as evidence there was such a policy, but to the extent it shows Thomas's state of mind in making a ...

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