United States District Court, E.D. California
WILLIAM J. WHITSITT, Plaintiff,
AMAZON.COM, et al., Defendants.
FINDINGS AND RECOMMENDATIONS
CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE.
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
Procedural History and Relevant Allegations
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.)
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
Legal Standard for a Summary Judgment Motion
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 . . . .”
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.
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.
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).
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
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.
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 ...