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Kull v. Home Depot U.S.A, Inc.

United States District Court, S.D. California

July 10, 2019

MICHAEL KULL, Plaintiff,
v.
HOME DEPOT U.S.A, INC. and DOES 1-10, Defendants.

          ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

          JEFFREY T. MILLER UNITED STATES DISTRICT JUDGE

         Defendant Home Depot U.S.A., Inc. (“Home Depot”) moves the court for summary judgment or, alternatively, for partial summary judgment. (Doc. No. 18.) Plaintiff Michael Kull opposes. (Doc. No. 29.) Pursuant to Local Rule 7.1(d)(1), the court took this matter under submission without oral argument. (Doc. No. 37.) For the reasons stated below, the court grants in part and denies in part Defendant's motion for summary judgment.

         BACKGROUND

         On March 11, 2018, Plaintiff filed this action against Home Depot after obtaining a right to sue letter from California's Department of Fair Employment and Housing on May 15, 2017. (Doc. No. 1, “Compl.”) Plaintiff alleges six causes of action: (1) wrongful termination in violation of public policy; (2) retaliation in violation of the Fair Employment and Housing Act (“FEHA”); (3) age discrimination; (4) failure to pay wages in violation of the California Labor Code as a result of misclassification; (5) harassment; and (6) violation of California Business and Professions Code sections 17200, et seq. (Compl.)

         Plaintiff was hired by Home Depot on June 13, 1994. (Doc. No. 18-7 at 50.)[1] In 1998, Plaintiff was promoted to an Assistant Store Manager (“ASM”) position. (Doc. No. 18-3 at 22.) Plaintiff worked as an ASM at six different Home Depot store locations. (Id.) Most recently, Plaintiff worked as an ASM at the Fairmont store from May 2010 until his termination on December 20, 2016. (Id.)

         Beginning in November 2015, Plaintiff's store manager, Alex Taylor, documented Plaintiff for various performance and safety-related shortcomings. Taylor issued Plaintiff three progressive disciplinary notices. (Doc. No. 30-12 at 2 (November 12, 2015 progressive disciplinary notice for improperly processing hazardous waste by leaving bucket with waste out); Doc. No. 30-13 at 2 (May 20, 2016 progressive disciplinary notice for failure to make seasonal changes discussed with store manager or properly set up a holiday store event); Doc. No. 30-14 at 2 (July 5, 2016 progressive disciplinary notice for taking a two-week vacation during store event without providing supervisors with proper notice, failing to adequately delegate tasks to other supervisors and associates during absence, and approving two employee vacations without informing managers).) Taylor also entered three managerial notes relating to Plaintiff's performance without notice to Plaintiff. (Doc. No. 18-7 at 1 (March 2, 2016 manager's note for failing to close gate, “not having an open line of communication and delegation with his garden supervisors, [and] failure to complete the garden endcaps in an accpetable [sic] amount of time”); Doc. No. 18-7 at 3 (March 4, 2016 manager's note for failure to address issues “with instock, weekend preperation [sic], cleanliness and safety” after Taylor spoke with Plaintiff about these issues); Doc. No. 18-7 at 11 (September 6, 2016 manager's note for approving associate's availability request after store manager and department supervisor denied the associate's request).)

         Plaintiff argues that Taylor's documentation of his performance issues was motivated by age bias. First, Plaintiff challenges the factual basis for each progressive disciplinary notice. Second, Plaintiff argues that Home Depot policies were inconsistently and selectively enforced. Lastly, Plaintiff presents evidence that Taylor repeatedly made comments about terminating “old” employees, specifically singled Plaintiff out for termination, and stated that he could replace Plaintiff with someone who happened to be younger. (Doc. No. 29-1, Kull Decl. ¶ 8; Doc. No. 29-2, Acosta Decl. ¶ 10; Doc. No. 29-3, Martin Decl. ¶¶ 18-19.)

         After Taylor left in October 2016, Tyler Budde became Plaintiff's store manager. Budde entered two manager's notes relating to Plaintiff's performance without his notice. (Doc. No. 18-7 at 13 (November 22, 2016 manager's note for failure to fix safety issues previously identified by store manager); Doc. No. 18-7 at 15 (November 23, 2016 manager's note for failure to address same safety issues).) On December 1, 2016, Budde issued Plaintiff a “Final Warning” for failing to correct the safety issues identified in the manager's notes. (Doc. No. 18-7 at 15.) Budde did not issue Plaintiff any progressive disciplinary notices other than this final warning. Plaintiff argues that Budde, like Taylor, documented his performance issues because of age bias and made comments about getting rid of “old” employees. (Doc. No. 29-2, Acosta Decl. ¶ 10.)

         On December 4, 2016, Plaintiff admits that he failed to arm the store's perimeter alarm within one hour of the store closing. (Doc. No. 18-5 at 18; Doc. No. 30-16 at 2.) On December 7, 2016, Budde reported Plaintiff's failure to arm the perimeter alarm as a rule violation to Home Depot's Associate Advice and Counsel Group (“AACG”), the human resources group responsible for reviewing associate and workplace issues. (Doc. No.18-8, Budde Decl. ¶ 15.) Ralph Lee, an AACG Manager, interviewed both Budde and Plaintiff on the same day Budde reported the violation. (Doc. No. 18-7 at 50.) During Plaintiff's interview, he admitted that he failed to arm the perimeter alarm within one hour of closing. (Id.) On the same day, Plaintiff sent an email to Lee stating that the store was very busy and significantly understaffed on the evening of December 4, 2016. (Doc. No. 30-17 at 2.) Plaintiff also stated that he felt as if he was being “singled out, ” harassed, and that store policy was enforced selectively and inconsistently. (Id.) Nothing in the record indicates that AACG responded to or investigated Plaintiff's claim.

         On December 12, 2016, Lee emailed Lisa Ference, District Human Resources Manager for the Fairmont store's district, recommending that Plaintiff's termination would be supported as Plaintiff was on final warning status and had admitted to a minor rule violation. (Doc. No. 30-18 at 2.) On December 20, 2016, Plaintiff was terminated. (Doc. No. 18-7 at 55.) Now, Home Depot moves for summary judgment on each of Plaintiff's claims.[2]

         LEGAL STANDARDS

         A motion for summary judgment shall be granted where “there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). The moving party bears the initial burden of informing the court of the basis for its motion and identifying those portions of the file that it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). But Federal Rule of Civil Procedure 56 contains “no express or implied requirement . . . that the moving party support its motion with affidavits or other similar materials negating the opponent's claim.” Id. (emphasis in original).

         In response to a motion for summary judgment, the nonmoving party cannot rest on the mere allegations or denials of a pleading, but must “go beyond the pleadings and by [its] own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial.” Id. at 324 (internal citations omitted). In other words, the nonmoving party may not rely solely on conclusory allegations unsupported by factual data. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). The court must examine the evidence in the light most favorable to the nonmoving party, United States v. Diebold, Inc., 369 U.S. 654, 655 (1962), and any doubt as to the existence of an issue of material fact requires denial of the motion, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

         DISCUSSION

         I. Age Discrimination

         FEHA prohibits an employer from terminating an employee based on age. Cal. Gov't Code § 12940(a). To determine whether there are triable issues of fact on FEHA claims, California courts apply the three-stage burden-shifting framework set forth by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Trop v. Sony Pictures Entm't, 129 Cal.App.4th 1133, 1144 (2005) (citing Guz v. Bechtel Nat. Inc., 24 Cal.4th 317, 354 (2000)).[3]

         At trial, the plaintiff must establish a prima facie case of age discrimination by providing evidence that “(1) he was a member of a protected class, (2) he . . . was performing competently in the position he held, (3) he suffered an adverse employment action . . . and (4) some other circumstance suggests discriminatory motive.” Guz, 24 Cal.4th at 355. If the employee successfully establishes a prima facie case, a presumption of discrimination arises, and the burden shifts to the employer to provide evidence that there was a “legitimate, nondiscriminatory reason” for the adverse employment action. Id. “If the employer produces evidence showing a legitimate reason for the adverse employment action, the presumption falls away and the burden shifts back to the employee to provide ‘substantial responsive evidence' that the employer's proffered reasons were untrue or pretextual.” Sako v. Wells Fargo Bank, N.A., 2015 WL 5022307, at *8 (S.D. Cal. Aug. 21, 2015) (quoting Loggins v. Kaiser Permanente Int'l, 151 Cal.App.4th 1102, 1109 (2007)).

         The McDonnell Douglas framework is modified when the employer moves for summary judgment. “[T]he employer, as the moving party, has the initial burden to present admissible evidence showing either that one or more elements of plaintiff's prima facie case is lacking or that the adverse employment action was based upon legitimate, nondiscriminatory factors.” Serri v. Santa Clara Univ., 226 Cal.App.4th 830, 861 (2014) (internal quotation omitted). Accord Dep't of Fair Employment & Hous. v. Lucent Techs., Inc., 642 F.3d 728, 745 (9th Cir. 2011). If the employer meets this burden, “it is incumbent upon the employee to produce ‘substantial responsive evidence' demonstrating the existence of a material triable controversy as to pretext or discriminatory animus on the part of the employer.” Serri, 226 Cal.App.4th at 862.

         A. Prima Facie Case

         “[T]he prima facie case requires ‘evidence adequate to create an inference that an employment decision was based on an illegal discriminatory criterion.'” O'Connor v. Consol. Coin Caterers Corp., 517 U.S. 308, 312-13 (1996) (citing Teamsters v. United States, 431 U.S. 324, 358 (1977) (emphasis and brackets omitted)). Typically, in an age discrimination case “the plaintiff must show that he was: (1) a member of a protected class [age 40-70]; (2) performing his job in a satisfactory manner; (3) discharged; and (4) replaced by a substantially younger employee with equal or inferior qualifications.” Nidds v. Schindler Elevator Corp., 113 F.3d 912, 917 (9th Cir. 1996); see also Guz v. Bechtel Nat. Inc., 24 Cal.4th 317, 355 (2000) (characterizing the fourth element as “some other circumstances suggest discriminatory motive”). The requisite degree of proof necessary to establish a prima facie case is “minimal and does not even need to rise to the level of a preponderance of evidence.” Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1220 (9th Cir. 1998). But the plaintiff “must at least show actions taken by the employer from which one can infer, if such actions remain unexplained, that it is more likely than not that such actions were based on prohibited discriminatory criterion.” Guz, 24 Cal.4th at 355 (internal quotations and brackets omitted).

         The parties do not dispute that the first and third elements of Plaintiff's prima facie case are met by Plaintiff's age and termination.[4] Home Depot argues that the second element is not met because in the last year of his employment, Plaintiff's performance issues were repeatedly documented. Plaintiff argues that he consistently received positive performance reviews before he was targeted by store managers Alex Taylor and Tyler Budde. (Doc. Nos. 30-1, 30-2, 30-3, 30-4, 30-5, 30-6, 30-7, 30-8, 30-9, 30-10) (Plaintiff's performance reviews for the years 2003 - 2005 and 2008 - 2015 without any negative ratings.) Plaintiff declares, and Home Depot does not dispute, that prior to Taylor and Budde's feedback, in his twenty-two-year career with Home Depot, Plaintiff received only one write up. (Doc. No. 29-1, Kull Decl. ¶ 13.) In Plaintiff's last year of employment, Taylor and Budde input the only other negative feedback in Plaintiff's file. (See Doc. Nos. 30-12, 30-13, 30-14, 30-15, 30-16) (progressive disciplinary notices and manager's notes filed by Taylor and Budde.)

         As is discussed further below, Plaintiff presents evidence suggesting that Taylor and Budde singled Plaintiff out because of his age. Plaintiff presents evidence that Taylor repeatedly made comments about terminating “old” employees, specifically singled Plaintiff out for termination, and stated that he could replace Plaintiff with someone who happened to be younger. (Doc. No. 29-1, Kull Decl. ¶ 8; Doc. No. 29-2, Acosta Decl. ¶ 10; D oc. N o . 2 9- 3, Mar t in Decl. ¶ ¶ 1 8 -19 .) Pl ai n tif f p res en t s e v i dence that Budde made similar comments about getting rid of “old” employees and was particularly diligent in documenting Plaintiff's performance issues because of Taylor's documentation of his performance. (Doc. No. 29-2, Acosta Decl. ¶ 10.) Plaintiff meets his minimal evidentiary burden to establish this element.

         Home Depot argues that the fourth element is not met because Plaintiff fails to present evidence that a substantially younger employee with qualifications equal or inferior to Plaintiff replaced him. Plaintiff argues that a younger employee replaced him, but in support provides only a declaration from a former non-managerial Home Depot employee stating that Plaintiff was replaced by an employee in her twenties who had only been with Home Depot for a few years. (Doc. No. 29-2, Acosta Decl. ¶ 13.) Nothing in this declaration suggests that these statements were made with personal knowledge of the facts. See Fed.R.Evid. 602. Accordingly, the court does not rely on these statements. But at summary judgment, Home Depot “has the initial burden to present admissible evidence showing . . . that one or more elements of plaintiff's prima facie case is lacking.” Serri, 226 Cal.App.4th at 861. Home Depot does not dispute that Plaintiff was replaced by a substantially younger employee and does not present any evidence suggesting that the qualifications of Plaintiff's replacement were superior to Plaintiff's qualifications. As the employer of Plaintiff's replacement, Home Depot is uniquely in possession of documentation reflecting the employee's age and qualifications, but failed to include that evidence in its motion for summary judgment. Accordingly, the court finds Plaintiff's prima facie case sufficient for summary judgment purposes.[5]

         B. Legitimate, Nondiscriminatory Reason

         Home Depot asserts that it terminated Plaintiff's employment for a legitimate, nondiscriminatory reason because Plaintiff had a history of poor performance and admitted to failing to set the store perimeter alarm within one hour of closing, in violation of store policy. Home Depot has a Code of Conduct and Standards of Performance of Salaried Associates that govern ASM's conduct. (Doc. No. 18-10, Ference Decl. ¶ 9.) These standards distinguish between “major” and “minor” rule violations. (Id.) Major violations are “those behaviors that are so serious in nature that they typically warrant immediate termination upon the first offense; however a final warning may be appropriate depending on the circumstances and behavior at issue.” (Doc. No. 18-10 at 43.) Minor violations “are those behaviors that although not permitted, are generally addressed through the progressive disciplinary process.” (Id.) The progressive disciplinary process has four steps: (1) coaching, (2) counseling, (3) final warning, and (4) termination. (Id.)

         Home Depot's Standard Operating Procedures require the store's perimeter alarm be set within one hour of closing, unless an exception applies. (Doc. No. 18-10, Ference Decl. ¶ 27.)[6] In this case, failure to set the alarm within one hour of closing was considered a minor rule violation. (Doc. No. 18-12 at 8, 11; Doc. No. 31-7 at 214.) Plaintiff admits that on December 4, 2016, he armed the perimeter alarm approximately three hours after closing. (Doc. No. 18-5 at 18.) By that date, Taylor had coached and counseled Plaintiff on his performance and Budde had issued Plaintiff a final warning. Accordingly, as the last step in the progressive disciplinary process, Budde terminated Plaintiff. (Doc. No. 18-12 at 13.) Home Depot meets its burden to provide evidence it had a legitimate, nondiscriminatory reason for terminating Plaintiff.

         C. Pretext

         The burden thus shifts to Plaintiff to demonstrate that discrimination was a substantial motivating factor in his termination. Harris v. City of Santa Monica, 56 Cal.4th 203, 232 (2013). “Requiring the plaintiff to show that discrimination was a substantial motivating factor, rather than simply a motivating factor, more effectively ensures that liability will not be imposed based on evidence of mere thoughts or passing statements unrelated to the disputed employment decision. At the same time . . . proof that discrimination was a substantial factor in an employment decision triggers the deterrent purpose of the FEHA and thus exposes the employer to liability, even if other factors would have led the employer to make the same decision at the time.” Id. at 232 (emphasis in original). “If a plaintiff uses circumstantial evidence to satisfy this burden, such evidence must be specific and substantial.” Dep't of Fair Employment & Hous. v. Lucent Techs., Inc., 642 F.3d 728, 746 (9th Cir. 2011) (quotations and citation omitted). However, Plaintiff “must only show that a rational trier of fact could, on all the evidence, find that [Home Depot's] explanation was pretextual and that therefore its action was taken for impermissibly discriminatory reasons.” Pottenger v. Potlatch Corp., 329 F.3d 740, 746 (9th Cir. 2003).

         Plaintiff argues that Home Depot's reasons are pretextual and were motivated by animus because Store Managers Taylor and Budde “targeted” Plaintiff because of his age and documented performance deficiencies to “performance him out.” (Doc. No. 26 at 17.) The court finds the question of whether discriminatory animus was a ...


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