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Keenan v. Cox Communications California, LLC

United States District Court, S.D. California

July 22, 2019

LONNIE KEENAN, Plaintiff,
v.
COX COMMUNICATIONS CALIFORNIA, LLC, et al., Defendants.

          ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT [DOC. NO. 33]

          HON. MICHAEL M. ANELLO, UNITED STATES DISTRICT JUDGE

         Plaintiff Lonnie Keenan (“Plaintiff”) brings this action against his former employer Cox Communications California, LLC (“Cox”) and his former supervisor Daniel Martinez (“Martinez”) (collectively “Defendants”), alleging violations of California's Labor Code, breach of contract, and wrongful termination. See Doc. No. 12. Defendants move for summary judgment as to all claims. See Doc. No. 33. Plaintiff filed an opposition, to which Defendants replied. See Doc. Nos. 37, 38, 40, 43. The Court found the matter suitable for determination on the papers and without oral argument pursuant to Civil Local Rule 7.1.d.1. See Doc. No. 39. For the reasons set forth below, the Court GRANTS Defendants' motion.

         Background [1]

         This action arises out of events related to Plaintiff's relocation from Florida to California for purposes of employment as a Sales Account Executive (“SAE”) at Cox in San Diego. Prior to his move to California, Plaintiff was employed as a sales representative by Comcast in Florida. In May 2015, Evan Park (“Park”) contacted Plaintiff about a potential management position at Cox. Park had supervised Plaintiff for a period of years at Comcast prior to Park's own move out West to take a management position at Cox in San Diego. Plaintiff applied but was not selected for a management position.

         Based on Plaintiff's continued interest, in August 2015, Park contacted Plaintiff regarding another management opportunity at Cox. On August 31, 2015, Plaintiff contacted Daniel Martinez, the Director for Enterprise Sales for Cox in San Diego, regarding the opportunity. Plaintiff interviewed with Martinez via conference call but was not selected for the position. Park then contacted Plaintiff regarding a possible position at Cox on Park's sales team. In September 2015, Plaintiff, Martinez, and Park discussed via conference call the possibility of Plaintiff accepting an SAE position at Cox. Plaintiff alleges that Martinez promised Plaintiff 20-25 “protected” accounts, to which only Plaintiff could sell. Martinez denies making any such statement or promise. Plaintiff claims that his understanding after speaking with Park and Martinez was that the promised accounts would ensure Plaintiff's ability to attain the necessary sales quota each month and generate substantial commissions.

         According to Park, he made the decision to hire Plaintiff as an SAE with Martinez's support. On or about September 18, 2015, Martinez sent Plaintiff the offer letter and encouraged him to accept. The offer letter indicated that Plaintiff would earn a base salary of $90, 000 annually and guaranteed commission payments for the first six months of his employment (considered a “ramp-up” period). The offer letter further indicated Plaintiff's eligibility “to participate in a commission plan, to be reviewed with you at the start of your employment, ” with details and documentation to be provided by Plaintiff's “new leader.” Def. Ex. 6. The offer letter also specified that Plaintiff's “employment with the Company will be ‘at will'” and subject to termination “at any time, for any reason, with or without cause.” Id. Plaintiff accepted the position and relocated to San Diego.

         Plaintiff started his new job at Cox on or about October 12, 2015. Approximately two weeks after his first day at the company, Plaintiff received a written copy of Cox's 2015 Sales Compensation Plan. Plaintiff testified during his deposition that he recalls receiving and reading the document. The Compensation Plan set forth the terms and conditions of earning commissions on sales subsequent to Plaintiff's six-month “ramp up” period. This included a “decelerator” provision such that “commission calculations will be accelerated or decelerated based on the Performance Modifier matrix.” Def. Ex. 9 at 73.[2] Plaintiff alleges that Martinez failed to inform him of the decelerator provision prior to Plaintiff accepting the offer of employment with Cox. Plaintiff also received and signed Cox's 2015 San Diego Rules of Engagement, which provided in pertinent part that the “Sales Director will be the final arbiter of ownership of accounts and customers.” Def. Ex. 11 at 317.

         Sometime around the start of Plaintiff's employment at Cox, Park provided Plaintiff with a list of the 20-25 “protected” accounts previously assigned to Cox employee, Adrian Callaghan. Park Depo. at 83.[3] Both Plaintiff and Park understood that these accounts would be assigned to Plaintiff going forward. In November 2015, Plaintiff discovered that other sales representatives had sold to certain accounts on the list despite their allegedly protected status. In early 2016, other sales representatives continued to sell to the protected accounts.

         After the ramp-up period ended in April 2016, Plaintiff failed to meet Cox's required 100% quota attainment for twelve consecutive months. In September 2016, Plaintiff was asked to review and sign Cox's Standards of Performance. The document outlined the company's expectations of its sales representatives and the performance review process for employees who failed to meet those expectations. In January 2017, consistent with Cox's Standards of Performance, Plaintiff was placed on a Performance Improvement Plan (“PIP”). Two additional SAEs on Park's team were also placed on PIPs. Park presented Plaintiff with a Documented Verbal Warning stating that through December 31, 2016, Plaintiff's six-month rolling quota average was only 36% and failure to improve would result in further corrective action.

         In February 2017, Plaintiff received a Written Warning from Park stating that Plaintiff's six-month rolling quota average had decreased to 29%. Plaintiff received another Written Warning from Park in March 2017 stating that his six-month rolling quota average had increased to 31%. Cox management granted Plaintiff an “exception” under his PIP because Plaintiff appeared to be taking the necessary steps to increase his sales. Park Depo. at 178. The following month, Park presented Plaintiff with a Final Written Warning stating that Plaintiff's six-month rolling quota average had decreased to 27%. In May 2017, Cox management, including Martinez and Park, reviewed the performance of employees on PIPs and determined that Plaintiff's employment should be terminated. On May 18, 2017, Plaintiff received notice that his employment was being terminated effective immediately.

         On December 15, 2017, Plaintiff commenced this action against Cox and Martinez. See Doc. No. 1-2. Plaintiff's First Amended Complaint is the operative pleading and sets forth a cause of action against both Cox and Martinez under California Labor Code section 970, which proscribes misrepresenting a job to induce a person's relocation for employment. See Doc. No. 12. Plaintiff brings additional claims against Cox pursuant to California Labor Code section 2751, for failure to provide a signed written commission agreement prior to his hire, and common law claims for breach of an implied-in-fact contract, breach of the covenant of good faith and fair dealing, and wrongful termination in violation of public policy. See id. Defendants move for summary judgment as to all claims. See Doc. No. 33.

         Legal Standard

          “A party may move for summary judgment, identifying each claim or defense - or the part of each claim or defense - on which summary judgment is sought. The court shall grant summary judgment if the movant shows 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 fact is material if it could affect the outcome of the suit under applicable law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). A dispute about a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the non-moving party. Id. at 248.

         The party seeking summary judgment bears the initial burden of establishing the basis of its motion and of identifying the portions of the declarations, pleadings, and discovery that demonstrate absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party does not bear the burden of proof at trial, he may discharge his burden of showing no genuine issue of material fact remains by demonstrating that “there is an absence of evidence to support the nonmoving party's case.” Id. at 325. The burden then shifts to the opposing party to provide admissible evidence beyond the pleadings to show that summary judgment is not appropriate. Id. at 324. The party opposing summary judgment cannot “rest upon the mere allegations or denials of [its] pleading but must instead produce evidence that sets forth specific facts showing that there is a genuine issue for trial.” Estate of Tucker v. Interscope Records, 515 F.3d 1019, 1030 (9th Cir.), cert. denied, 555 U.S. 827 (2008) (internal quotation marks omitted).

         “In judging evidence at the summary judgment stage, the court does not make credibility determinations or weigh conflicting evidence. Rather, it draws all inferences in the light most favorable to the nonmoving party.” Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007).

         Evidentiary Objections

         As an initial matter, the parties object to various items of evidence. The Court considers each party's objections in turn.

         1. Plaintiff's Objections

         Plaintiff objects to paragraphs 4, 5, and 9 of the declaration submitted by Martinez in support of Defendants' motion for summary judgment. Plaintiff also objects to Defendants' Exhibit 4, a May 12, 2015 email from Park to Mark Salkeld, a Cox employee, and Martinez, as well as Defendants' Exhibit 5, a June 11, 2015 email from Plaintiff to Martinez. With respect to Martinez's declaration, Plaintiff asserts that Martinez references evidence in the identified paragraphs not previously produced during discovery, including the emails to which Plaintiff objects. Plaintiff argues that these portions of Martinez's declaration and the emails should be excluded. Defendants respond that Martinez's declaration properly elaborates upon subjects raised during his deposition and neither the portions of his declaration nor the emails should be excluded.

         Although not cited, the Court assumes that Plaintiff requests to exclude this evidence pursuant to Federal Rule of Civil Procedure 37(c)(1), which provides in pertinent part:

If a party fails to provide information or identify a witness as Required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.

Fed. R. Civ. P. 37(c)(1). Upon due consideration and review of Martinez's deposition testimony, the Court SUSTAINS Plaintiff's objections to paragraph 4 of the Martinez declaration and Defendants' Exhibit 4. The Court OVERRULES Plaintiff's objections to paragraphs 5 and 9 of Martinez's declaration as well as the objection to Defendants' Exhibit 5.

         2. Defendants' Objections

         Defendants object to Plaintiff's Exhibits 4-14, various emails composed by Plaintiff, Park, Martinez, and Lorraine Valencia, and Plaintiff's Exhibit 15, an excerpt from Cox's 2015 National Rules of Engagement. Defendants argue that the evidence is not properly authenticated and contains inadmissible hearsay. Defendants' hearsay objection is not well-taken. The emails are generally admissible as non-hearsay or pursuant to a hearsay exception. See Fed. R. Evid. 801(d)(2), 803. The excerpt is a business record. See Fed. R. Evid. 803(6). Furthermore, the evidence could be presented in an admissible form at trial and thus may be considered by the Court in the summary judgment context. See Fraser v. Goodale, 342 F.3d 1032, 1037 (9th Cir. 2003).

         With respect to authentication, documents authenticated through personal knowledge must be “attached to an affidavit that meets the requirements of [Federal Rule of Civil Procedure 56(c)] and the affiant must be a person through whom the exhibits could be admitted into evidence.” Orr v. Bank of Am., NT & SA, 285 F.3d 764, 774 (9th Cir. 2002) (quotation omitted). Plaintiff authenticates the emails and the excerpt through the declaration of counsel that the items are true and correct copies of emails produced by Defendants during discovery. See Griffith Decl. ¶ 5. Defendants have not challenged the content of the emails or the accuracy of the email addresses of the senders. Accordingly, the Court finds the declaration of counsel sufficient to authenticate the emails for the present purpose. See Orr, 285 F.3d ...


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