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Green v. Bimbo Bakeries United States

United States District Court, N.D. California, San Jose Division

January 12, 2015

DAN GREEN, Plaintiff,

Page 981

For Dan Green, an individual, Plaintiff: Thomas E. Duckworth, LEAD ATTORNEY, Mark Christopher Peters, Duckworth Peters Lebowitz Olivier LLP, San Francisco, CA.

For Bimbo Bakeries USA, Defendant: Ronald D. Arena, LEAD ATTORNEY, Arena Hoffman LLP, San Francisco, CA.

Page 982


LUCY H. KOH, United States District Judge.

Re: Dkt. No. 48

Plaintiff Dan Green (" Plaintiff" or " Green" ) brings this action against Defendant Bimbo Bakeries USA (" Defendant" or " Bimbo Bakeries" ). Compl., ECF No. 1. Before the Court is Defendant's motion for summary judgment. (" MSJ" ), ECF No. 44. Green opposes the motion. (" Opp." ), ECF No. 48. Defendant filed a reply. (" Reply" ), ECF No. 52. Having considered the submissions of the parties, the record in this case, and the relevant law, the Court hereby DENIES Defendant's motion for summary judgment.


A. Factual Background

On September 14, 1987, Entenmann's/Orowheat hired Green in Santa Cruz, California as a route sales representative (" RSR" ). Compl. ¶ 5. In 2002, Defendant Bimbo Bakeries acquired Entenmann's/Orowheat, and Green became an employee of Bimbo Bakeries. Id. ¶ 6. Green continued to work for Defendant until February 22, 2006, when Green left his position at Bimbo Bakeries. Id. ¶ 7; Declaration of Ronald D. Arena, ECF No. 44, Exh. A (" Green Depo." ) 28:11-13. Green then accepted a position at Svenhards Bakeries. Compl. ¶ 7.

In mid-March 2006, Plaintiff alleges that Rick Roberts, the District Manager for Bimbo Bakeries, contacted Plaintiff about returning to work for Defendant. Id. ¶ 7. At that point, Plaintiff explained he would only return to Bimbo Bakeries if he would be able to get back his " top seniority," vacations, sick leave bank, and old route. Green Depo. 66:11-15; Declaration of Rick Roberts (" Roberts Decl." ), ECF No. 50-1. Following that conversation, Green met with Roberts and Joe Torrise, the Regional Sales Manager for Bimbo Bakeries to discuss Green's potential return. Compl. ¶ 7. According to Plaintiff, Torrise agreed that Plaintiff would return to work for Bimbo Bakeries with Plaintiff's previous seniority, on the condition that Green's co-workers agreed to this status. Id. ¶ 7. Plaintiff further alleges that Torrise represented that Green's departure from Bimbo Bakeries would be " considered a leave of absence" rather than a resignation in order to restore Green's seniority. Id. ¶ 7. Following this meeting, Torrise held a meeting with the employees who would be affected by Green's return to Bimbo Bakeries. Id. ¶ 9. The employees " unanimously approved" Plaintiff's " return and reinstatement to his prior seniority status." Id. Plaintiff agreed to return to Bimbo Bakeries based on Torrise's and Roberts' representations regarding his seniority and vacation. Id. ¶ 10.

In March 2007 and January 2011, Defendant Bimbo Bakeries laid off employees at

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the Santa Cruz depot where Green worked. Id. ¶ 12. Under the collective bargaining agreement (" CBA" ), Defendant was required to follow a seniority-based rule in determining layoffs, e.g, " last person hired, first person fired." Declaration of Melvin Barnett in support of Defendant's motion for summary judgment, ECF No. 44-3, Exh. A (" CBA" ), § 7. The CBA provides that Bimbo Bakeries shall post a " seniority list" twice a year. Id. Once seniority is acquired after certain probationary periods, " seniority shall be effective from the original date of hire" and " shall be terminated by" discharge for cause, resignation, and unapproved leaves of absence longer than six months unless for bona fide illness. Id. Green alleges that from his return to Defendant's employ in 2006 to his layoff in January 2013, Bimbo Bakeries posted seniority lists reflecting his 1987 seniority. Compl. ¶ 11. During both the March 2007 and January 2011 layoffs, Green retained his position, consistent with his 1987 seniority. Id.

On November 27, 2012, Brad Sebring, the business agent for the Teamsters Union local 912, contacted Green to inform him that Defendant's human resources department had changed Green's " hire" date. Id. ¶ 14. Sebring had received a payroll authorization form reflecting a new seniority date of April 3, 2006. Declaration of Brad Sebring (" Sebring Decl." ), ECF No. 51, ¶ 8. This was the first time Sebring learned of Green's departure from Bimbo Bakeries in February 2006 and subsequent return. Id. ¶ ¶ 7-8. Plaintiff contacted management to dispute the new hire date, but was unsuccessful in amending the date.

In December 2012, Defendant announced layoffs of over 100 employees would take place in 2013. Compl. ¶ 15. On January 5, 2013, Defendant laid off Green. Id. Had Green's previous seniority date of September 14, 1987 been used, Green would not have been laid off in January 2013. Id.; see also MSJ at 6.

B. Procedural Background

Plaintiff filed his Complaint on September 24, 2013. ECF No. 1. Defendant filed an answer on December 31, 2013. ECF No. 11. On June 2, 2014, Defendant filed a motion for leave to amend its answer, which Plaintiff opposed. ECF Nos. 29, 33. The Court granted Defendant's motion to amend its answer on July 7, 2014. ECF No. 39. Defendant filed its amended answer on July 8, 2014. ECF No. 40.

Defendant filed the instant motion for summary judgment and/or summary adjudication on September 29, 2014. ECF No. 44. Plaintiff filed his opposition on October 14, 2014. ECF No. 48. ...

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