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Whitsitt v. Amazon.Com

United States District Court, E.D. California

June 27, 2019

WILLIAM J. WHITSITT, Plaintiff,
v.
AMAZON.COM, et al., Defendants.

          FINDINGS AND RECOMMENDATIONS

          CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE.

         Before the court is defendant Amazon.com's (“defendant”) motion for summary judgment against plaintiff. (ECF No. 67.) Defendant's motion for summary judgment came on regularly for hearing on June 13, 2019. Chandra Andrade appeared for defendant. Plaintiff did not appear. Upon review of the documents in support and opposition and good cause appearing therefor, THE COURT FINDS AS FOLLOWS:

         I. Procedural History and Relevant Allegations

         Plaintiff alleges the following claims in his second amended complaint: age discrimination, retaliation, wrongful public policy termination, privacy violations, and intentional infliction of emotional distress arising from his work at an Amazon fulfillment center as a temporary non-exempt employee of defendant SMX (“SMX”). (ECF No. 13.) Plaintiff further alleges that Amazon discriminatorily failed to hire him directly from an application he allegedly submitted in 2013, before he was hired by SMX, in violation of the Age Discrimination in Employment Act (“ADEA”). This court dismissed the case sua sponte for failure to state a claim before defendant appeared. On September 20, 2016, the Ninth Circuit affirmed in part, reversed in part, and remanded, finding that this court had properly dismissed all of plaintiff's claims other than his ADEA claim against defendant based on failure to hire. (ECF No. 23.) On remand, this court issued an order that “this action will proceed solely against defendant Amazon.com on plaintiff's claim for age discrimination based on failure to hire.” (ECF No. 24.)

         Plaintiff alleges the following against defendant regarding his ADEA claim for failure to hire. Plaintiff is over the age of 40. (ECF No. 13 at 4.) Plaintiff was not hired by defendant and saw “all hired as way Considerably Younger and less Qualified.” (Id. at 3.) Plaintiff reported this to defendant's human resources on October 17, 2013, November 13, 2013, and December 1, 2013. (Id.) Plaintiff alleges that he was well qualified “for any open position at Amazom.com [sic]” and has “extensive real life experience in Manufacturing, General Warehousing, Quality Control and Reporting to Government Agencies and Law and Legal Affairs.” (Id. at 4.) Plaintiff applied for a position by filling out and completing an “Amazon Online Application” on or about August 10, 2013. (ECF No. 13 at 4.) Plaintiff believes he was “deliberately and intentionally singled out and denied employment by direct hire” by defendant as a result of his age. (Id.) Plaintiff noticed “only about 10 or so Workers over the age of 45 out of some 600 amazon Employee Workers.” (Id.)

         II. Legal Standard for a Summary Judgment Motion

         Summary judgment is appropriate when it is demonstrated that 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). A party asserting that a fact cannot be disputed must support the assertion by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials . . . .” Fed.R.Civ.P. 56(c)(1)(A).

         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. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.” Id. at 323.

         If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the allegations or denials of their pleadings but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that the dispute exists or show that the materials cited by the movant do not establish the absence of a genuine dispute. See Fed.R.Civ.P. 56(c); Matsushita, 475 U.S. at 586 n.11. The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party, see Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 1987).

         In the endeavor to establish the existence of a factual dispute, the opposing party need not 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. Elec. Serv., 809 F.2d at 630. Thus, 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.'” Matsushita, 475 U.S. at 587 (quoting Fed.R.Civ.P. 56(e) 1963 advisory committee's note).

         In resolving the summary judgment motion, the evidence of the opposing party is to be believed. See Anderson, 477 U.S. at 255. All reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party. See Matsushita, 475 U.S. at 587. Nevertheless, inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. See Richards v. Nielsen Freight Lines, 602 F.Supp. 1224, 1244-45, 1247 (E.D. Cal. 1985), aff'd, 810 F.2d 898, 902 (9th Cir. 1987). Finally, to demonstrate a genuine issue, the opposing party “must do more than simply show that there is some metaphysical doubt as to the material facts . . . . Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.'” Matsushita, 475 U.S. at 586-87 (citation omitted).

         The burden-shifting framework outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), governs actions for retaliation under the ADEA. Shelley v. Geren, 666 F.3d 599, 607 (9th Cir. 2012). Under this framework, if the employee establishes a prima face case of retaliation, the employee has justified a presumption of retaliation, and the burden of production shifts to the employer to articulate a legitimate, nondiscriminatory reason for its allegedly retaliatory conduct. Metoyer v. Chassman, 504 F.3d 919, 931 n.6 (9th Cir. 2007). If the employer satisfies this burden of production, the presumption of unlawful discrimination “drops out of the picture.” St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 510-11 (1993). The employee must then provide evidence that creates a genuine issue of material fact concerning whether the employer's proffered nondiscriminatory reason is merely pretext. Dominguez-Curry v. Nev. Transp. Dep't, 424 F.3d 1027, 1037 (9th Cir. 2005) (citing Coleman v. Quaker Oats Co., 232 F.3d 1271, 1282 (9th Cir. 2000)). Despite the burden shifting, the ultimate burden of proof remains on the plaintiff to show that the employer discriminated against him on the basis of age. Coleman, 232 F.3d at 1280-81.

         III. Evidentiary Objections

         Pursuant to Rule 56(c) of the Federal Rules of the Civil Procedure, “an affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.” Defendant raises thirty-three evidentiary objections to plaintiff's evidence in opposition to summary judgment. (ECF No. 77.) The court will not address any objections to evidence on the ground that the evidence is irrelevant, speculative, or constitutes an improper legal conclusion because it may rely only on relevant evidence in addressing the motion. Burch v. Regents ofUniv. of Cal., 433 F.Supp.2d 110, 119 (E.D. Cal. 2006) (stating that relevance objections are redundant because a court cannot rely on irrelevant facts in resolving a summary judgment motion). The court will resolve other objections only to the extent it finds the disputed evidence has any bearing on the issues before it. Schwarz v. Lassen Cnty. ex rel. the Lassen Cnty Jail, No. 2:10-cv-3048 MCE CMK, 2013 WL 5425102, at *13 (E.D. Cal. Sep. 27, 2013) (noting that extensive evidentiary objections undercut the goals of judicial efficiency and avoiding costly litigation); Olenicoff v. UBS AG, No. SACV 08-1029 AG (RNBx), 2012 WL ...


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