United States District Court, E.D. California
ORDER ON MOTION FOR SUMMARY JUDGMENT AND REQUEST FOR CONTINUANCE INTRODUCTION (Docs. 21, 28)
LAWRENCE J. O'NEILL, District Judge.
Plaintiff Norman Suhovy ("Suhovy") brings this action against his former employer Sara Lee Corporation ("Sara Lee") for disability discrimination, retaliation, wrongful termination, intentional infliction of emotional distress, and negligent infliction of emotional distress. Before the Court is Defendant Sara Lee's motion for summary judgment of Suhovy's complaint. In opposition to Sara Lee's motion for summary judgment, Suhovy filed a request for a continuance from this Court. For the reasons discussed below, the Court GRANTS Sara Lee's motion for summary judgment and DENIES Suhovy's request for a continuance.
Suhovy began employment with Sara Lee in 1993 and worked as a Sales Manager in various parts of California from 2005 until his termination on January 21, 2011. In August 2005, Dave Loflin ("Loflin") became Suhovy's supervisor and remained in that role for the duration of Suhovy's employment at Sara Lee.
At some point after Loflin became Suhovy's manager and before May 2010, Suhovy learned that another employee was going to be laid off. When that employee asked Suhovy whether he/she was going to be laid off, Suhovy responded in the affirmative. Suhovy alleges that, from that point on, Loflin gave Suhovy lower employee evaluations.
In December 2009, Suhovy was given a Coaching for Improvement due to poor performance. In February 2010, Loflin met with Suhovy for a Review of Coaching for Improvement. As a result of Suhovy's failure to attain the goals of his Coaching for Improvement, Suhovy was moved to a Performance Improvement Plan ("PIP") on February 24, 2010. Loflin periodically reviews Suhovy's performance under the PIP. Suhovy failed to attain the goals of his PIP for the first five consecutive periods.
On May 17, 2010, Zone Operations Manager Bob Wagoner sent an email to twelve Sara Lee employees in his region, including Suhovy. The email included an attachment that disclosed performance information on twenty employees, including Suhovy. The attachment reviewed Suhovy's performance in the fiscal year ending in July 2009, before Suhovy received his Coaching for Improvement. Sara Lee's policies state that performance appraisals are confidential. Suhovy alleges that Loflin released Suhovy's performance evaluation in retaliation for telling the other employee about his or her layoff.
Suhovy communicated this improper disclosure of performance information to Loflin. On June 17, 2010, Suhovy contacted Sara Lee's Global Compliance Office to report the improper disclosure. Global Compliance responded that it had investigated the incident and determined that it was "an unfortunate, but inadvertent accident." (Doc. 22, p. 5). Global Compliance further responded that it had counseled the individual responsible for the disclosure "on the need to use care in transmitting confidential information." Id.
Suhovy alleges that he had received above standard reports in the past which made him promotable within the company. Suhovy claims that, since he complained to Loflin about the improper disclosure of performance information, Loflin has given Suhovy less favorable evaluation in retaliation for Suhovy's complaint.
After failing to attain the goals of his Coaching for Improvement, being placed on a PIP, and failing to meet the goals of the PIP for five consecutive periods, Suhovy failed to meet his sales targets for fiscal year 2010. Suhovy's PIP was extended through the first five periods of fiscal year 2011. Suhovy failed to meet his goals in each of those periods. In sum, Suhovy failed to meet his goals in all ten periods for which he was placed on a PIP.
Suhovy retained an attorney because he believed he was subject to unlawful retaliation. On or around December 28, 2010, Suhovy's attorney sent a letter to Sara Lee asking them to respond by January 12, 2011 to avoid legal action.
On January 21, 2011, Suhovy was terminated from his employment at Sara Lee.
B. Procedural History
On June 8, 2012, Suhovy brought this action for retaliation, wrongful termination in violation of public policy, intentional infliction of emotional distress, negligent infliction of emotional distress, and disability discrimination in Tulare Superior Court. On November 15, 2012, Sara Lee removed this action to this Court on the basis of diversity jurisdiction. Sara Lee filed the instant motion for summary judgment of Suhovy's complaint on March 11, 2014. On March 27, 2014, Suhovy submitted a request for a continuance. On March 28, 2014, Sara Lee filed an opposition to Suhovy's request for a continuance.
Request for Continuance
A. Legal Standard
Fed. R. Civ. P. 56(d) allows a party opposing summary judgment to seek a continuance if the party "shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition[.]" "A party requesting a continuance pursuant to Rule 56(f) must identify by affidavit the specific facts that further discovery would reveal, and explain why those facts would preclude summary judgment." Tatum v. City & Cnty. of San Francisco, 441 F.3d 1090, 1100 (9th Cir. 2006) (internal citations omitted). See, State of Cal., on Behalf of California Dep't of Toxic Substances Control v. Campbell, 138 F.3d 772, 779 (9th Cir. 1998) ("Thus, the defendants must show (1) that they have set forth in affidavit form the ...