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McInteer v. Ashley Distrib. Servs., Ltd.

United States District Court, C.D. California

August 19, 2014


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[Copyrighted Material Omitted]

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For Michael Mcinteer, an individual, Plaintiff: Rosemary Amezcua-Moll, Amezcua-Moll and Associates PC, Orange, CA.

For Ashley Distribution Services LTD, a Wisconsin corporation, Ashley Furniture Industries Inc, a Wisconsin corporation, Defendants: Geoffrey D DeBoskey, Heidi Catherine Larson Howell, Sidley Austin LLP, Los Angeles, CA.

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Jesus G. Bernal, United States District Judge.

Before the Court is Defendants' motion for summary judgment or alternatively,

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partial summary judgment. (" Motion," Doc. No. 19.) After considering the papers filed in support of and in opposition to the Motion, and the arguments presented at the June 23, 2014 hearing, the Court GRANTS IN PART and DENIES IN PART the Motion.


On November 26, 2012, Plaintiff Michael McInteer (" Plaintiff" ) filed a Complaint in state court against Defendants Ashley Distribution Services, Ltd. and Ashley Furniture Industries, Inc. (collectively, " Defendants" or " Ashley" ). (" Compl.," Not. of Removal, Exh. B, Doc. No. 1.) The Complaint states twelve claims for relief for: (1) wrongful termination in violation of Cal. Gov't Code § 12941; (2) wrongful termination in violation of Cal. Gov't Code § 12940(a); (3) violation of Cal. Lab. Code § 132(a); (4) failure to pay overtime wages; (5) waiting time penalties pursuant to Cal. Lab. Code § 558; (6) penalties pursuant to Cal. Lab. Code § 558; (7) interest on unpaid overtime, attorney's fees and costs pursuant to Cal. Lab. Code § § 218.5, 218.6, and 1194; (8) violation of Cal. Bus. & Prof. Code § 17200; (9) violation of Cal. Lab. Code § § 226, 226.3; (10) defamation; (11) intentional infliction of emotional distress; and (12) injunctive relief.[1] (Compl.) The claims pertain to Defendants' termination of Plaintiff's employment as a Transportation Care Manager on December 23, 2011. Defendants removed the action to this Court on February 11, 2013. (Not. of Removal.)

On May 5, 2014, Defendants filed a motion for summary judgment. (" Motion," Doc. No. 19.) In support of the Motion, Defendants attached:

o Memorandum of Points and Authorities (Motion);
o Statement of Undisputed Facts (" SUF," Doc. No. 19-2);
o Declaration of Tom Qualman (" Qualman Decl.," Doc. No. 19-3, Tab 1), attaching Exhibits A through D; [2]
o Declaration of Nancy Evanson (" Evanson Decl.," Doc. No. 19-3, Tab 2), attaching Exhibits E through K;
o Declaration of Manual Martinez (" Martinez Decl.," Doc. No. 19-3, Tab 3);
o Declaration of Blaire H. Baily (" Baily Decl.," Doc. No. 19-3, Tab 4), attaching exhibits L through N;
o Declaration of John Leighty (" Leighty Decl.," Doc. No. 19-3, Tab 5), attaching Exhibit O; and
o Request for Judicial Notice (" RJN," Doc. No. 20) attaching Exhibit N.

Plaintiff's opposition was due on May 12, 2014. See L.R. 7-9. On May 30, 2014, three days before the hearing on the Motion, Plaintiff filed a motion for extension of time to file his opposition (Doc. No. 21), which Defendants opposed (Doc. No. 22). The Court held a hearing on the request for extension and granted Plaintiff's motion. (Doc. Nos. 27, 31.) The Court reset the hearing on summary judgment for June 23, 2014. (Doc. No. 27.)

Plaintiff filed his late opposition on June 2, 2014. (" Opp'n," Doc. No. 23.) In support thereof, Plaintiff attached:

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o Statement of Genuine Disputes of Material Fact (" SGI," Doc. No. 23-4);
o Objections to Evidence (" Obj.," Doc. No. 23-2);
o Declaration of Michael McInteer (" McInteer Decl.," Doc. No. 23-3, Tab 1), attaching Exhibit A; and
o Declaration of Sarah Nowels (" Nowels Decl.," Doc. No. 23-3, Tab 2), attaching as Exhibit B excerpts of the deposition of Michael McInteer.

On June 9, 2014, Defendants replied (" Reply," Doc. No. 28) and attached:

o Response to Plaintiff's SGI (" Resp.," Doc. No. 29);
o Response to Plaintiff's Objections to Evidence (" Resp. Obj.," Doc. No. 30); and
o Declaration of Heidi Larson Howell (" Howell Decl.," Doc. No. 28-1) attaching Exhibit A.


Summary judgment is appropriate if the " pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is 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). A fact is material when it affects the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Freeman v. Arpaio, 125 F.3d 732, 735 (9th Cir. 1997).

The party moving for summary judgment bears the initial burden of establishing an absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. This burden may be satisfied by either (1) presenting evidence to negate an essential element of the non-moving party's case; or (2) showing that the non-moving party has failed to sufficiently establish an essential element to the non-moving party's case. Id. at 322-23. Where the party moving for summary judgment does not bear the burden of proof at trial, it may show that no genuine issue of material fact exists by demonstrating that " there is an absence of evidence to support the non-moving party's case." Id. at 325.

However, where the moving party bears the burden of proof at trial, the moving party must present compelling evidence in order to obtain summary judgment in its favor. United States v. One Residential Property at 8110 E. Mohave, 229 F.Supp.2d 1046, 1047 (S.D. Cal. 2002) (citing Torres Vargas v. Santiago Cummings, 149 F.3d 29, 35 (1st Cir. 1998) (" The party who has the burden of proof on a dispositive issue cannot attain summary judgment unless the evidence that he provides on that issue is conclusive." )). Failure to meet this burden results in denial of the motion and the Court need not consider the non-moving party's evidence. One Residential Property at 8110 E. Mohave, 229 F.Supp.2d at 1048.

Once the moving party meets the requirements of Rule 56, the burden shifts to the party resisting the motion, who " must set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 256. The non-moving party does not meet this burden by showing " some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

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Genuine factual issues must exist that " can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson, 477 U.S. at 250. When ruling on a summary judgment motion, the Court must examine all the evidence in the light most favorable to the non-moving party. Celotex, 477 U.S. at 325. The Court cannot engage in credibility determinations, weighing of evidence, or drawing of legitimate inferences from the facts; these functions are for the jury. Anderson, 477 U.S. at 255.


A. Evidentiary Objections

Plaintiff filed evidentiary objections to the evidence Defendants submitted in support of their Motion. (Obj.) Over half of the objections are aimed at Defendants' purported misstatements of the evidence as represented in their SUF. (See Obj. ¶ ¶ 10-12, 16, 27, 30-31, 34, 36, 59-60, 72-73, 87-89.) " Plaintiff's 'evidentiary objections' to Defendants' separate statements of undisputed facts are not considered because such objections should be directed at the evidence supporting those statements." Hanger Prosthetics & Orthotics, Inc. v. Capstone Orthopedic, Inc., 556 F.Supp.2d 1122, 1126 (E.D. Cal. 2008); Contract Associates Office Interiors, Inc. v. Ruiter, No. CIV 07-0334 WBS PAN, 2008 WL 2916383, at *5 (E.D. Cal. July 28, 2008) (" [T]he court will not consider Contract Associates' objections to SSUF Nos. 60, 64, and 75 because these objections are aimed only at Ruiter's characterization and purported misstatement of the evidence-as represented in her SSUF-rather than the actual underlying evidence." ). In ruling on summary judgment, the Court considers the evidence submitted in support of and opposition to the Motion, it does not rely on the parties' characterization of the evidence. See Dalton v. Straumann Co. USA Inc., No. C-99-4579 VRW, 2001 WL 590038, at *4 (N.D. Cal. May 18, 2001) (" Statements of undisputed facts, as in this case, are generally unhelpful. It is on the underlying declarations, depositions and exhibits that the court will rely." ). The Court therefore does not consider Plaintiff's " misstates testimony" or " misstates the document" objections.

All but three of the remaining objections are directed at the coworker complaints Defendants received regarding Plaintiff's conduct. (See Obj. ¶ ¶ 41-42, 46, 51-58.) Plaintiff objects on hearsay and foundation grounds to all evidence of employee complaints. (Id.) The Court OVERRULES the hearsay objections as the employees' statements are not offered to establish the truth of the matter asserted. " [W]hether [Plaintiff] actually committed the acts alleged in the investigations or whether the witnesses' statements were true is irrelevant to the issues in this case, and the [complaints] are not considered for those purposes." See Montoya v. Orange Cnty. Sheriff's Dep't, 987 F.Supp.2d 981, 2013 WL 6662707, at *5 (C.D. Cal. 2013). Instead, Defendants offer the employee statements to show they were aware of the complaints against Plaintiff and that those complaints motivated his termination. See Calmat Co. v. United States DOL, 364 F.3d 1117, 1124 (9th Cir. 2004) (" [T]he testimony was not admitted to prove the truth of Sengle's out-of-court statement to supervisors, but as evidence that CalMat supervisors were aware that Lewis threatened him and made racially-offensive comments." ); Means v. City & Cnty. of San Francisco, Dep't of Pub. Health, 749 F.Supp.2d 998, 1006 (N.D. Cal. 2010) (allowing evidence of statements made in an employer's investigation into employee's inappropriate conduct to show that the employer had a non-discriminatory

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motive for taking disciplinary action). Plaintiff also objects to this evidence on foundation grounds, but the employees have personal knowledge of their own experiences and the management personnel properly laid the foundation for their knowledge of the employee complaints. Therefore, Plaintiff's foundation objections are also OVERRULED.

Regarding Plaintiff's final three objections, Plaintiff clearly has knowledge of his own actions and statements, thus Objection 61 is OVERRULED. The second and third objections concern Plaintiff's admission that he was speculating on the bases for his termination. (Obj. ¶ ¶ 87-88.) The Court SUSTAINS Plaintiff's objection to these statements. The basis for Plaintiff's termination is, in part, the subject of the motion for summary judgment and Plaintiff's speculation on the grounds for his termination is a legal conclusion to be decided by the Court. See Melendez v. Morrow County Sch. Dist., No. CIV. 07-875-AC, 2009 WL 4015426, at *16 (D. Or. Nov. 19, 2009).

B. Disputed and Undisputed Facts

Unless specifically noted, the following material facts are sufficiently supported by admissible evidence and are uncontroverted; they are " admitted to exist without controversy" for purposes of the Motion. L.R. 56-3. All disputed facts are explicitly designated as such.

Ashley has a furniture warehouse in Colton, California which ships and distributes furniture pieces. (SUF ¶ 1; SGI ¶ 1.) The Colton warehouse is a large transportation hub which handles national and international freight in its six shipping yards. (SUF ¶ ¶ 2-5; SGI ¶ ¶ 2-5.) The Transportation Care Manager oversees the operations activity and coordinates personnel in the Colton facility, including overseeing the inbound and outbound freight and the internal movement of trailers, shipping containers, and employees. (SUF ¶ 6; SGI ¶ 6; Martinez Decl. ¶ 5.)

Over the course of several days in August 2011, several Ashley employees, including Director of Human Resources Tom Qualman (" Qualman" ), Vice President of Transportation Joel Fasnacht (" Fasnacht" ), and Vice President of Transportation and Distribution Centers John Leighty (" Leighty" ), interviewed Plaintiff for the position of Transportation Care Manager. (SUF ¶ 9; SGI ¶ 9.) Shortly thereafter, Defendants hired Plaintiff to replace the current Transportation Care Manager, Bob Sheehan (" Sheehan" ), and Plaintiff began working in the Colton facility on August 15, 2011 for an annual salary of $72,500. (SUF ¶ ¶ 8, 39; SGI ¶ ¶ 8, 39; Deposition of Michael McInteer (" McInteer Depo." ) 36:7-19, Baily Decl., Exh. L, Nowels Decl., Exh. B.) When Plaintiff joined Ashley, Sheehan was still employed as Transportation Care Manager, but it was planned that Sheehan would leave the company and Plaintiff would be the sole Transportation Care Manager. (McInteer Depo. 40:23-41:9.) Until Sheehan left, Plaintiff was given the alternate job title -- Human Resources and Operations Support. (McInteer Depo. 38:14-21; Martinez Decl. ¶ 6.)

1. Job Duties

Once Plaintiff was hired, Ashley expected him to perform the Transportation Care Manager duties at the Colton facility including: recruiting and hiring drivers; [4] coaching, counseling, and disciplining

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current drivers; [5] supporting and supervising office personnel; communicating and negotiating with outside vendors; ensuring compliance with regulations and training subordinates on the regulations; observing, evaluating, and analyzing transportation operations and personnel in the facility and providing recommendations to improve efficiencies; and recommending and implementing improvements and/or modifications of processes, methods, and resource utilization to support the driver and delivery process. (Martinez Decl. ¶ ¶ 7, 12.) Ashley expected that after Sheehan left, Plaintiff would have a full grasp of the personnel and operations at the Colton facility in order to provide recommendations for and implement changes in procedures to increase efficiencies, reduce accidents, and improve overall results. (Id. ¶ 11.)

Plaintiff testified that he was in training during his entire three month employment with Ashley. (McInteer Depo. 45:6-21.) He was told to " observe the operation, observe the personnel, make my evaluations, learn the basics of the billing, [and] some of the fundamentals of the clerks." (Id. 38:22-25.) As part of his training, Plaintiff worked with the clerks to learn the billing procedures, including preparing bills of lading and shipment manifests. (Id. 42:11-24.) Initially, the percentage of time devoted to billing was 35 to 45 percent, but it dropped down to 20 to 25 percent as he became more knowledgeable. (Id. 42:25-44:1.) Plaintiff spent about 50 percent of his time observing and being instructed on the operations of the warehouse, learning how to operate the trucks, understanding manpower planning, working with the lead yard man, checking on drivers and equipment, and training in the warehouse and with the dock men. (Id. 44:2-45:25.) In order to understand the overall operation, Plaintiff worked with the equipment in the warehouse, loaded and unloaded trucks, moved drivers, and met customers. (Id. 46:1-24.) He also came in on Saturdays to observe the operation and " get a handle on . . . how things performed on the weekend." (Id. 50:24-51:16.) The purpose of all of his training was to enable him to learn as much as he could about the operation in order to analyze the operations, make suggestions for improvements, and improve the work force and operations. (Id. 44:11-45:5.)[6]

After the first three to four weeks, Plaintiff spent about 40 to 50 percent of his work hours " filling in the time" and " looking to stay busy." (Id. 55:13-56:11.) This included talking with employees and drivers and learning their duties. (Id. 56:11-13.)

Plaintiff " set his own schedule," and had discretion to determine how to accomplish his objectives. (McInteer Depo. 47:16-48:14.) He checked in with his supervisor " quite often" to get his input on what to focus ...

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