United States District Court, N.D. California
ORDER GRANTING DEFENDANT AUTOZONE, INC.'S MOTION FOR SUMMARY JUDGMENT DKT. No. 52
KANDIS A. WESTMORE, Magistrate Judge.
On January 23, 2013, Plaintiff Jowhar Alsabur filed this action against Defendant AutoZone, Inc. under the Fair Employment and Housing Act ("FEHA"), alleging that his employment was terminated because he was African American. On May 15, 2013, Defendant filed its motion for summary judgment. (Def.'s Mot., Dkt. No. 52.)
On July 3, 2014, the Court held a hearing, and after careful consideration of the parties' arguments, for the reasons set forth below, the Court GRANTS Defendant's Motion for Summary Judgment.
In 2005, Plaintiff Jowhar Alsabur began working for AutoZone as a Parts Sales Manager at Store No. 5317 in Fresno, California. (Dep. of Jowhar Alsabur, "Alsabur Dep., " Decl. of Kathryn Weeks, Dkt. No. 52-5, Ex. 13 at 26:1-3, 58:18-2.)
In May 2007, District Manager Josh Hughes transferred Plaintiff to Store No. 5311 in Richmond, California, to serve as Store Manager. In early 2009, Plaintiff was transferred from Store No. 5311 to Store No. 5229 in Oakland, California, a "hub" store, to serve as Store Manager. (Alsabur Dep. 77:20-78:19, 86:4-20.)
Plaintiff's Store Manager position required him to implement and administer AutoZone policies and procedures related to major store activities. (Decl. of Venustiano Ochoa, "Ochoa Decl., " Dkt. No. 52-3 ¶ 6.) Store Managers are responsible for achieving store objectives and budgets, maintaining store standards and appearance, training and disciplining employees and implementing loss prevention policies. Id. Store Managers are also responsible for ensuring that employees accurately record all hours worked. Id. At the time of Plaintiff's employment, AutoZone used the "SMS" timekeeping system, which required employees to clock in and out of the SMS system immediately before and after each shift and when taking lunch breaks. (Ochoa Decl. ¶ 11.) Store-level employees, including Store Managers, are hourly, non-exempt employees. (Decl. of Sheri Lemond, "Lemond Decl., " Dkt. No. 52-4 ¶ 4.) Store Managers are responsible to ensure that all employee time records are accurate before submitting them to payroll. (Ochoa Decl. ¶ 13.) Store Managers are responsible for printing, reviewing, and having each employee review and sign a time card reflecting the employee's weekly time punches before the end of each weekly pay period. (Ochoa Decl. ¶ 14.) It is considered a falsification of time records for an employee to sign a time card that does not accurately reflect his or her work hours. ( Id .; See "Corrective Action, " AutoZone Store Handbook and Code of Conduct, Lemond Decl., Ex. 9 at D00916.) A Store Manager's failure to recognize inaccuracies in his or her own time card is grounds for termination. (Ochoa Decl. ¶ 14.)
District Manager Hughes, who is Caucasian, continued to supervise Plaintiff for approximately two years after his transfer to Store No. 5229. (Alsabur Dep. 86:9-10.) Plaintiff has no complaints about Hughes' management. (Alsabur Dep. 87:6-17.)
As Store Manager of Store No. 5229, Plaintiff's annual performance appraisal for 2009 was "expectations not consistently met" for failing loss prevention audits, for unacceptable employee turnover, and for failure to complete inventory management on a consistent basis. (2009 Appraisal, Weeks Decl., Ex. 15 ¶ 5; see Alsabur Dep. 90:12-23.) The performance appraisal, issued by Hughes on August 16, 2009, stated that "you have struggled all year with following directions from me and the Regional Staff, you have had to be constantly reminded and given Corrective Actions due to this." (2009 Appraisal; see Alsabur Dep. 90:12-91:24.) Although Plaintiff admitted that he struggled with following directions from management that year, he viewed the performance appraisal as one-sided and inaccurate because he "inherited" a dysfunctional store in Store No. 5229. (Alsabur Dep. 91:8-11, 93:17-25, 97:16-98:4, 98:23-100:8, 100:21-101:4, 101:20-102:7.)
While Mr. Hughes was District Manager, Plaintiff received corrective action forms at Store No. 5229 for failing to complete an environmental audit on April 13, 2009, and for failing a loss prevention audit on December 18, 2009. ( See Corrective Actions, Weeks Decl. ¶ 6, Ex. 16; Alsabur Dep. 107:8-21, 110:22-111:12.) On October 8, 2009, Plaintiff also received a corrective action for failing to monitor, properly counsel, and issue warnings to employees with attendance violations. (10/8/09 Correction Action, Weeks Decl, Ex. 16 at D00056; Alsabur Dep. 107:24-108:17.) To improve his performance, Plaintiff was instructed to follow the attendance policy, to print and review attendance records daily, and to issue corrective actions to employees in accordance with the attendance policy and store handbook. (10/8/09 Correction Action at D00056.)
In December 2009, James Sechler took over for Hughes as District Manager of the Oakland district. (Alsabur Dep. 111:22-112:3; Decl. of James Sechler, "Sechler Decl., " Dkt. No. 52-2 ¶ 4.) Sechler assumed all of Hughes' responsibilities, including oversight of Store No. 5229. (Sechler Decl. ¶ 4.)
Under District Manager Sechler's supervision, Plaintiff received a corrective action for failure to follow cash handling policy on January 14, 2010. (1/14/10 Corrective Action, Sechler Decl., Ex. 1; Alsabur Dep. 111:17-113:15.) On July 28, 2010, Plaintiff received a "serious violation" corrective action review for a failed loss prevention audit. (7/28/10 Corrective Action, Sechler Decl., Ex. 2; Alsabur Dep. 115:14-116:25.)
In November 2010, District Manager Sechler received a complaint of inappropriate conduct and comments at Store No. 5229. (Sechler Decl. ¶ 11.) Sechler and Human Resources Manager Troy Keach commenced an investigation. Id. Interviewees reported widespread unprofessional conduct, including racial and sexual comments by various employees, alleged sexual harassment, and a rumor that Plaintiff had promoted a female associate, Maricela Silva, because they were having a romantic relationship. Id. In addition, Sechler observed low employee morale, attendance policies that were not being followed, and employees, including Plaintiff, who were out of dress code. (Sechler Decl. ¶¶ 11-12.) On November 16, 2010, Plaintiff received a "serious violation" corrective action review for his failure to maintain AutoZone culture and store standards. (11/16/10 Corrective Action, Sechler Decl., Ex. 3.) The November 2010 corrective action provided notice that Plaintiff would be removed as manager of Store No. 5229 and placed on a detailed Performance Improvement Plan ("PIP"). Id.
As a result of Plaintiff's PIP, in December 2010, he was laterally transferred from Store No. 5229 to Store No. 5230, also in Oakland. (Sechler Decl. ¶ 13; Alsabur Dep. 124:9-15, 124:24-125:3.) Store No. 5230 was a smaller store with approximately 15 employees, while Store No. 5229 was a hub store with approximately 40 employees. (Sechler Decl. ¶ 14.) Plaintiff "swapped" stores with Store No. 5230 Store Manager, Anthony Harrison, who is also African American. (Decl. of Anthony Harrison, "Harrison Decl., " Dkt. No. 52-1 ¶ 3; Alsabur Dep. 129:14-23; Sechler Decl. ¶ 14.) Mr. Harrison was Store Manager of Store No. 5230 from April 4, 2010 until December 20, 2010, when he was laterally transferred to Store No. 5229. (Harrison Decl. ¶ 2.) He worked at Store No. 5229 until March 27, 2011, when he was laterally transferred to Store No. 5937 in Richmond, California, where he is currently employed. Id.
Plaintiff acknowledged receiving his PIP on January 25, 2011. (PIP, Sechler Decl., Ex. 4; Alsabur Dep. 134:16-135:11.) The PIP specifically addressed Plaintiff's attendance issues and required that he review attendance, comply with the policy himself, and ensure that his employees were in full compliance with AutoZone's attendance policy on a daily basis. (PIP at D01153.) It stated, "[i]f anyone regardless of whom they are, deviates from the [attendance] policy that individual must be given corrective action on the very next day that he or she is scheduled to work.... As store manager you must set the example on this policy." Id. The PIP also required that Plaintiff pass all loss prevention audits. Id.
On March 18, 2011, District Manager Sechler issued Plaintiff's mid-year performance appraisal for Store Nos. 5229 and 5230. (Sechler Decl. ¶ 17.) Plaintiff's overall performance appraisal was "expectations not met" for failure to complete his "fix it" checklist, problems with organization and planning, and for failing loss prevention audits. (Mid-Year Appraisal, Sechler Decl., Ex. 5.)
In mid-March 2011, District Manager Venustiano ("Venus") Ochoa assumed responsibility for the Oakland district when Mr. Sechler transferred to Solano County. (Ochoa Decl. ¶ 3; Sechler Decl. ¶ 5.) As District Manager, Mr. Ochoa received the paperwork on Plaintiff's PIP. (Ochoa Decl. ¶ 7.)
On March 25, 2011,  Plaintiff met with Mr. Sechler, Regional Manager Mike Estes and District Manager Ochoa at Popeye's restaurant. (Alsabur Dep. 170:1-12; Sechler Decl. ¶ 18; Ochoa Decl. ¶ 9.) The focus of the meeting was Plaintiff's failure to implement the PIP. (Alsabur Dep. 170:1-12; Sechler Decl. ¶ 18; Ochoa Decl. ¶ 9.) Plaintiff was given two options: stay on as Store Manager of Store No. 5230 under the PIP and risk termination if his performance did not immediately improve, or remain at Store No. 5230 and accept a voluntary demotion to Assistant Manager to receive remedial training under a new Store Manager. (Alsabur Dep. 170:1-171:20; Sechler Decl. ¶ 18.) Plaintiff agreed to the demotion. (Alsabur Dep. 173:16-174:5.)
Also on March 25, 2011, Plaintiff failed to clock out of the SMS system. ( See 4/6/11 Statement, Lemond Decl., Ex. 12 at 2.) The demotion took effect on March 27, 2011. (Demotion Status Change, Ochoa Decl., Ex. 6.) Store Manager Hank Baca was transferred to Store No. 5230 to supervise and train Plaintiff. (Ochoa Decl. ¶ 9.)
On March 26, 2011, District Manager Ochoa noticed an irregularity in Plaintiff's time and attendance records from the previous day. (Ochoa Decl. ¶ 15.) Mr. Ochoa reported Plaintiff for suspected falsification of time records. (Ochoa Decl. ¶ 16.) Human Resources Generalist Sheri Lemond opened an investigation and was assisted by AutoZone employee Kathryn White, who reviewed the surveillance video from Store No. 5230 against Plaintiff's time records on three dates that he failed to clock out from work and failed to correct his time cards. (Lemond Decl. ¶ 6.) The surveillance video showed that on February 18, 2011, Plaintiff left work without clocking out at 2:26 p.m. and did not return. Id. Instead, he was automatically clocked out at 10:11 p.m., and accepted payment for 14 hours and 38 minutes of work. (Pl.'s Time Records, Lemond Decl., Ex. 11 at D00114.) On March 3, 2011, Plaintiff left work without clocking out at 2:15 p.m. and did not return. (Lemond Decl. ¶ 6.) Plaintiff was automatically clocked out at 10:50 p.m., and accepted payment for 14 hours and 36 minutes of work. (Pl.'s Time Records at D00115.) On March 25, 2011, Plaintiff left work at 5:23 p.m. without clocking out. (Lemond Decl. ¶ 6.) He was automatically clocked out at 10:26 p.m., and accepted payment for 12 hours and 37 minutes of work. (Pl.'s Time Records at D00113.)
On April 6, 2011, Plaintiff met with Sheri Lemond to discuss his falsification of records. (4/6/11 Statement, Lemond Decl., Ex. 12.) During that meeting, Plaintiff admitted in his own handwriting that he failed to clock out on those three separate occasions, failed to correct the inaccurate time records and accepted payment for time he did not work. ( Id.; Alsabur Dep. 191:2-9.) When asked why he did not clock out, he stated that he forgot. (4/6/11 Statement at D00060-61.) When asked if he had anything else to add, Plaintiff acknowledged that he had "seen managers get fired all the time for this." (4/6/11 Statement at D00061-62; Alsabur Dep. 198:1-199:1.)
On April 9, 2011, Plaintiff was allegedly terminated for falsifying time records and loss of confidence after he admitted that he left work on three separate occasions without clocking out, failed to ensure that his time records were accurate, and accepted overpayment for hours not worked. (Lemond Decl. ¶ 12.)
On or about July 30, 2011, Plaintiff filed a complaint for race discrimination with the California Department of Fair Employment and Housing ("DFEH"). ( See DFEH complaint, Dkt. No. 19 at 4.) Thereafter, on March 26, 2012, the DFEH issued a "right to sue" letter.
Plaintiff filed this action on January 23, 2013 in Alameda County Superior Court, which Defendant subsequently removed to federal court. On August 8, 2013, Plaintiff filed his First Amended Complaint, alleging three causes of action: (1) Discrimination on the Basis of Race and National Origin [Gov't Code § 12940(j)]; (2) Failure to Accommodate Physical or Medical Condition [Gov't Code § 12940(a); and (3) Wrongful Termination in Violation of Public Policy. Thereafter, the Court dismissed the second cause of action, because Plaintiff failed to exhaust his administrative remedies for his disability claim.
On May 15, 2014, Defendant filed a motion for summary judgment. (Def.'s Mot., Dkt. No. 52.) On May 29, 2014, Plaintiff filed his opposition. (Pl.'s Opp'n, Dkt. No. 60.) On June 5, 2014, Defendant filed its reply. (Def.'s Reply, Dkt. No. 62.)
II. LEGAL STANDARD
A party may move for summary judgment on a "claim or defense" or "part of... a claim or defense." Fed.R.Civ.P. 56(a). Summary judgment is appropriate when, after adequate discovery, there is no genuine issue as to material facts and the moving party is entitled to judgment as a matter of law. Id .; see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Material facts are those that might affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is "genuine" if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. Id.
A party seeking summary judgment bears the initial burden of informing the court of the basis for its motion, and of identifying those portions of the pleadings and discovery responses that demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. Where the moving party will have the burden of proof at trial, it must affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party. Southern Calif. Gas. Co. v. City of Santa Ana, 336 F.3d 885, 888 (9th Cir. 2003).
On an issue where the nonmoving party will bear the burden of proof at trial, it may discharge its burden of production by either (1) by "produc[ing] evidence negating an essential element of the nonmoving party's case" or (2) after suitable discovery "show[ing] that the nonmoving party does not have enough evidence of an essential element of its claim or defense to discharge its ultimate burden of persuasion at trial." Nissan Fire & Marine Ins. Co., Ltd., v. Fritz Cos., Inc., 210 F.3d 1099, 1103 (9th Cir. 2000); see also Celotex, 477 U.S. 324-25.
Once the moving party meets its initial burden, the opposing party must then set forth specific facts showing that there is some genuine issue for trial in order to defeat the motion. See Fed.R.Civ.P. 56(e); Anderson, 477 U.S. at 250. "A party opposing summary judgment may not simply question the credibility of the movant to foreclose summary judgment. Anderson, 477 U.S. at 254. "Instead, the non-moving party must go beyond the pleadings and by its own evidence set forth specific facts showing that there is a genuine issue for trial." Far Out Prods., Inc. v. Oskar, 247 F.3d 986, 997 (9th Cir. 2001) (citations and quotations omitted). The non-moving party must produce "specific evidence, through affidavits or admissible discovery material, to show that the dispute exists." Bhan v. NMS Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir. 1991). Conclusory or speculative testimony in affidavits and moving papers is insufficient to raise a genuine issue of material fact to defeat summary judgment. Thornhill Publ'g Co., Inc. v. Gen. Tel. & Electronics Corp., 594 F.2d 730, 738 (9th Cir. 1979).
In deciding a motion for summary judgment, a court must view the evidence in the light most favorable to the nonmoving party and draw all justifiable inferences in its favor. Anderson, 477 U.S. at 255; Hunt v. City of Los Angeles, 638 F.3d 703, 709 (9th Cir. 2011).
A. Striking portions of Plaintiff's Opposition
On May 29, 2014, Plaintiff Jowhar Alsabur filed his opposition to Defendant AutoZone's Motion for Summary Judgment. Plaintiff's opposition was accompanied by the supporting declarations of Plaintiff, Maricela Silva, and Plaintiff's counsel, Tiega-Noel Varlack, as well as numerous exhibits. (Decl. of Jowhar Alsabur, "Alsabur Decl., " Dkt. No. 65; Decl. of Maricella Silva, "Silva Decl., " Dkt. No. 60-2; Decl. of ...