United States District Court, E.D. California
ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (Doc. 37, 43)
JENNIFER L. THURSTON, Magistrate Judge.
In this action, Plaintiff claims that he was fired in retaliation for complaining about sexual harassment suffered by another employee and because he complained that the other employee's firing was unlawful. Defendants seek summary judgment, or in the alternative summary adjudication and argue that they had legitimate business reasons for the firing. For the following reasons, Defendant's motion for summary judgment is DENIED.
I. Statement of Facts
Plaintiff was hired by Hilton Worldwide in 1998. (JUDF 1) Plaintiff was transferred to the Bakersfield Doubletree Hotel in June 2006. (JUDF 2) At the Bakersfield hotel, Plaintiff was the Director of Finance. (JUDF 4)
In December 2006-six months after Plaintiff's transfer to Bakersfield though only four months after he began working full-time in Bakersfield (Doc. 39-2 at 14)-the results of an audit of the finances of the Bakersfield hotel were determined to be unacceptable to Plaintiff's superiors. (DUDF 23-25) Plaintiff was asked to take immediate corrective action. (DUDF 25) He was denied a merit raise in February 2007 but was told this would be reevaluated in the second quarter of 2007, "based upon progress on financial audits and with team..." (DUDF 23-27) However, Plaintiff received a good performance review for 2006 and had been awarded a raise when he was transferred to Bakersfield in mid-2006. (Doc. 39-2 at 14)
Likewise, the performance review for 2007 yielded an "Overall Leadership Evaluation Rating" of a "3" which meant he was "SKILLED, Fully meets the standards, 75-88% competency, overall good work, some room for improvement. (Doc. 41-5 at 16) Plaintiff asserts he received a similarly good evaluation 2008 also. (Doc. 39-2 at 14)
In September 2009, it was discovered that a payroll clerk, Julio Cumpa, had failed to check his e-mail for five days and, as a result, he failed to have prepared for Bill Murray, the Bakersfield hotel's General Manager, a final paycheck for an employee who was being terminated. (DUDF 28-29) Murray alerted Plaintiff of this failure and instructed him to discuss this issue with Cumpa. Id.
In October 2009, a subordinate of Plaintiff's, Dora Medrano, complained to him that she was being sexually harassed. (DUDF 51) The alleged harasser was the hotel's Human Resource Director, Michael Howard. (Doc. 41-1 at 12) Medrano complained that the harassment entailed Howard making suggestive comments and touching Medrano inappropriately. Id . Plaintiff immediately reported the complaint to Bill Murray. (DUDF 53) As a result of the harassment, Plaintiff invited Medrano to take her rest breaks with him in order to prevent further harassment by Howard. (Doc. 41-1 at 12; DUDF 55) In January 2010, Plaintiff mentioned the complaint to the Regional Director of Finance, Wes Thornell (Plaintiff's corporate supervisor), during a routing visit by Thornell to the property. (DUDF 54) There is no evidence the harassment complaint was investigated or that any corrective action was taken by Hilton to address Howard's conduct.
Once again, the 2009 review again yielded a "3" rating. (Doc. 41-5 at 41) Moreover, Plaintiff was only one of two employees who received a merit raise that year. (Doc. 39-2 at 14)
On January 7, 2010, Plaintiff was asked to sign an acknowledgement detailing Hilton's rest and meal break policy. (DUDF 13) The policy sets forth the number of rest breaks allowed and when they should be taken. Id . The policy also advises that "YOU ARE RESPONSIBLE TO TAKE YOUR BREAKS AS INDICATED ABOVE. ** team members who repeatedly fail to properly record his or her breaks and meal periods will be subject to disciplinary action up to and including termination." Id . (Doc. 41-3 at 14)
In February 2010, the company's 800-hotline number received an anonymous complaint that Medrano was taking longer than 10 minutes for her breaks. (DUDF 56) An investigation was undertaken by Howard (Doc. 41-7 at 39; DUDF 57) who concluded that Medrano was frequently taking longer than 10-minute rest breaks. (DUDF 57) As a result, Medrano was suspended for two days. (DUDF 59) In response to the written statement clarifying to her why she was being disciplined, she explained the longer breaks were taken, "With permission of my supervisor (Dir of Finance) John Goold. Wasn't done intentionally. Will from now on follow and take care of my breaks as needed." (Doc. 37-6 at 90; DUDF 61-62)
Plaintiff was unaware of any complaint made about Medrano and was surprised by the investigation. (Doc. 41-1 at 12) He confronted John Sommer, the Regional Director of Human Resources, and questioned why the matter could not be resolved with a counseling session rather than suspension. Id . He questioned also whether Medrano's discipline was related to her sexual harassment complaint, given Howard-the claimed harasser-conducted the investigation. Id . Sommer told Plaintiff that Plaintiff should have reported the harassment complaint earlier and seemed to be unaware that Plaintiff had forwarded Medrano's complaint to Murray. Id.
On February 26, 2010, Bill Murray documented that Plaintiff's department failed to properly administer the meal and break policy. (DUDF 30-35) Murray noted that Plaintiff failed to ensure meal breaks waivers were properly maintained and failed to provide adequate supervision of the employee responsible for this action, Julio Cumpa. Id . Murray noted that Sommer had documented that this issue was ongoing since 2008 and that Plaintiff's failure to "ensure compliance may result in further disciplinary action, up to and including separation from employment." Id . Plaintiff signed the Murray document acknowledging its contents. Id.
In March 2010, Murray prepared a memo which identified Plaintiff's performance failures. (DUDF 63-64) Specifically, the memo addressed the meal and rest break policy and documented that accounting staff members were required to comply with them and that Plaintiff was obligated to review and approve the time sheets of his staff. Id . However, there is a dispute as to whether Plaintiff was ever provided a copy of this memo and whether its contents were ever discussed with him. The document is not signed by Plaintiff and there is no indication on the document that he refused to sign it. (Doc. 37-6 at 92; 39-2 at 13)
In June 2011, Wes Thornell, documented a number of shortcomings in Plaintiff's performance. (DUDF 36-41) The memo ended by stating, "This level of job performance cannot occur in the future. We have talked previously on these issues in greater detail and I am confident that you already understand the accounting issues that had to be dealt with and your performance that contributed to this. Going forward, similar job performance that falls to this level below expectation will result in further disciplinary action up to and including termination." Id . Plaintiff signed the document indicating, "I have read, agree and understand with [sic] the comments made here." (Doc. 37-6 at 15) Nevertheless, for the 2011 work year, Plaintiff received a good performance review. (Doc. 39-2 at 14)
In February 2012, another anonymous complaint was received by the 800-hotline number again complaining that Medrano was taking longer than 10 minutes for her rest break. (DUDF 56) The complaint noted that Plaintiff, Bill Murray and the current HR Director, Javier Pimental, were aware of her actions. (Doc. 37-6 at 61-62; DUDF 66)
John Sommer instructed Javier Pimental via e-mail to conduct an investigation into the complaint. (DUDF 67) Pimental studied the videotapes maintained by the hotel which reflected employees taking their breaks. (DUDF 68-69) The videos showed Medrano and Plaintiff leaving for the "smokers' area, " which was near the loading dock, and returning later. Id . For several, week-long periods, the videotapes showed Medrano leaving and returning in intervals that exceeded 10 minutes. Id . Nevertheless, the time sheet completed by her and her coworkers and signed by Goold, reflected only 10 minutes taken for rest breaks. (DUDF 70)
On March 21, 2012, Plaintiff's department underwent an audit. (Doc. 41-6 at 2) His Department received a "Total Score" of "92.00%" out of a total of 100%. Id
On April 19, 2012, Medrano was fired because she took breaks that were longer than that permitted by hotel policy and because Medrano had been disciplined for the same infraction two years before. (DUDF 71-72) During Pimental's investigation, he discovered also that Plaintiff's subordinates were consistently late to work and that Plaintiff failed to take action to address this tardiness. (DUDF 90)
Becoming concerned that Medrano's firing could implicate the security of his own job, on April 20, 2012, Goold inquired of Murray whether his job was at risk. Murray denied that it was. (Doc. 41-1 at 14) Later, on April 26, 2012, Goold expressed to Murray that he felt that Medrano's firing was unfair and should be reversed. Id. at 15. He reminded Murray that the rest breaks were frequently interrupted by work issues which was why it appeared that the rest breaks were longer than 10 minutes but denied that the non-work portion of the rest periods were longer than 10 minutes. Id . In addition, Plaintiff expressed that Medrano had contacted him and expressed her belief that her firing was related to her sexual harassment complaint made in 2009. (Doc. 41-1 at 15; DUDF 84) Plaintiff stated that Medrano "might have a claim" and he would "back up her story" in the event she decided to sue. Id . Plaintiff suggested that it would be in the hotel's interests to rehire Medrano to stave off litigation. (Doc. 41-1 at 15)
The day before, on April 25, 2012, Plaintiff expressed to Pimental that Medrano's firing was wrong, that she was a good worker and that he wanted her to be re-hired. (Doc. 41-1 at 14; DUDF 84) Plaintiff explained that they used the "smoking area as a meeting place as well" in explanation for why it appeared that Medrano's breaks were too long. (Doc. 41-1 at 14) Plaintiff told Pimental that based upon the firing, he believed Medrano "had a very legitimate reason to sue us and I would not lie for the Company and [would] back up her claim." (Id.; DUDF 84) He did not express to Pimental any concerns that the firing related to her earlier sexual harassment complaint. Id.
On May 2, 2012, Plaintiff reported to work after having been out sick for two days. (Doc. 41-1 at 15) When he did so, he was asked to meet with Murray, Sommer and Pimental. Id . At this meeting, Plaintiff was fired. Id . He was not told the reason for his firing at that meeting because, it appears, he would not allow the others to express the reasons. Id . When it was attempted the first time, Plaintiff interrupted and stated, "This is bullshit and you know it" and when it was attempted a second time, he walked out of the meeting. Id . Later, when Plaintiff applied for unemployment benefits, he learned that the hotel claimed that he was fired for poor performance, failure to manage his subordinates and for falsifying the rest period records to show that Medrano took only 10-minute rest breaks. (Doc. 37-6 at 67; DUDF 86)
II. Standards for Summary Judgment
The "purpose of summary judgment is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Matsuhita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation omitted). Summary judgment is appropriate when 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). Accordingly, summary judgment should be entered "after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
A party seeking summary judgment bears the "initial responsibility" of demonstrating the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. An issue of fact is genuine only if there is sufficient evidence for a reasonable fact finder to find for the non-moving party, while a fact is material if it "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Wool v. Tandem Computers, Inc., 818 F.2d 1422, 1436 (9th Cir. 1987). The moving party demonstrates summary adjudication is appropriate by "informing the district court of the basis of its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, ' which it believes demonstrates the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323 (quoting Fed.R.Civ.P. 56(c)).
If the moving party meets its initial burden, the burden then shifts to the opposing party to present specific facts that show there is a genuine issue of a material fact. Fed R. Civ. P. 56(e); Matsuhita, 475 U.S. at 586. An opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts." Id. at 587. The party is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that a factual dispute exits. Id. at 586, n.11; Fed.R.Civ.P. 56(c). Further, the opposing party is not required to establish a material issue of fact conclusively in its favor; it is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." T.W. Electrical Serv., Inc. v. Pacific Elec. Contractors Assoc., 809 F.2d 626, 630 (9th Cir. 1987). However, "failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex, 477 U.S. at 322.
The Court must apply standards consistent with Rule 56 to determine whether the moving party demonstrated there is no genuine issue of material fact and judgment is appropriate as a matter of law. Henry v. Gill Indus., Inc., 983 F.2d 943, 950 (9th Cir. 1993). In resolving a motion for summary judgment, the Court examines the evidence provided by the parties, including pleadings depositions, answer to interrogatories, and admissions on file. See Fed.R.Civ.P. 56(c).
III. Evidentiary Objections
Defendants make numerous objections to Plaintiff's evidence. For the most part, Defendants provide lengthy excerpts from various declarations and then lodge one or more objections. They do not explain the basis for their objections and fails to set forth which part of the entire excerpt is implicated by the objection(s). Thus, all objections made in this manner are OVERRULED.
A. Medrano Declaration
Because the Court does not rely upon the Medrano declaration, the Court declines to rule on Plaintiff's evidentiary objections in this regard except as noted above.
B. Kuhn's Declaration
1. Relevance - See note above.
a. Kuhn Decl., Paragraph 1 at 1:17-18: OVERRULED. This information is relevant to establish foundation for ...