Free Order on Motion for Summary Judgment - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 City of Chandler, 13 Defendant. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Pending before the Court are Defendant's motions for summary judgment, motions to strike, and motion to file supplemental statement of facts, and Plaintiff's motion in limine and motion to accept response to motions for summary judgment. Docs. ##104-05, 116, 122-24, 132. The Court will address the motions to strike and other preliminary motions before turning to the motions for summary judgment. Background The following facts are undisputed: Plaintiff is Hispanic. The City hired Plaintiff as a "street specialist" on May 27, 2002. Plaintiff complained to the City about national origin discrimination on October 28, 2002. The City fired Plaintiff on November 14, 2002. Plaintiff filed a charge of discrimination against the City in late November 2002 and received a notice of right to sue in March 2003. Plaintiff commenced this action on June 10, 2003 by filing a complaint against the City that purports to state national origin discrimination and retaliation claims under Title VII of the Civil Rights Act of 1964.
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Roy A. Felix, Plaintiff, vs.

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No. CV-03-1311-PHX-DGC ORDER

Case 2:03-cv-01311-DGC

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. The City's Motions to Strike. A.

Discussion

Motion to Strike for Non-Compliance with Local Rules.

The City moves to strike Plaintiff's entire response to the motions for summary judgment, his separate statement of facts, and his motion in limine on the ground that the font size used in those documents is too small under Local Rule of Civil Procedure 7.1(b)(1). Doc. #122 at 1. The City contends that the use of improper font size by Plaintiff's counsel "creates the risk that she will disadvantage her opponent and burden the Court and counsel with filings that exceed applicable page limits." Doc. #135 at 2. The City warns that if Plaintiff's counsel is allowed to file oversized documents, "her opponents will do the same, and the [page limit] requirement will become meaningless." Id. The City's counsel states that she "was aware of ­ and complied with ­ the rules." Id.1 The City filed two separate motions for summary judgment ­ a 17-page motion on the discrimination claim and an 11-page motion on the retaliation claim. Plaintiff correctly points out in her response that she was entitled to file two separate responses totaling 34 pages. Doc. #132 at 2; see LRCiv 7.2(e). Rather than filing separate responses, Plaintiff filed one 23-page consolidated response. Id. at 2. Plaintiff has filed an affidavit from her secretary attesting that when the consolidated response is formatted to the proper font size, it does not exceed 26 pages, well short of the 34 pages Plaintiff was allowed under the Local Rules. Id. Ex. A. The City does not dispute this fact.

This statement is not entirely correct. Although the City complied with the font size requirements of LRCiv 7.1, its motion violates LRCiv 7.1 in at least three other respects: (1) counsel placed the title of the Court on line five of the motion rather than on line six or below, (2) counsel used improper capitalization in the caption by capitalizing the parties' names, and (3) counsel failed to lodge a separate proposed order granting the relief the City seeks. See Doc. #122; LRCiv 7.1(a)(2) (requiring the title of the Court to begin on or below line six of the first page of a document); LRCiv 7.1(a)(3) (requiring the use of proper capitalization to denote the correct spelling of party names); LRCiv 7.1(b)(2) (requiring parties to lodge proposed orders when they request specific relief in a motion).
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The Court will deny the City's motion to strike. Plaintiff's consolidated response does not exceed the applicable page limits when it is properly formatted. See Doc. #132 Ex. A; LRCiv 7.2(e). Because Plaintiff's motion in limine is less than 5 pages long, the Court will assume that it too does not exceed the applicable page limit when properly formatted. See LRCiv 7.2(e). Plaintiff's statement of facts is not subject to page limits under the Local Rules. The Court will also deny the City's request for oral argument because oral argument would not aid the Court's decisional process. See Mahon v. Credit Bur. of Placer County, Inc., 171 F.3d 1197, 1200 (9th Cir. 1999). The Court will deny the City's motion to strike and grant Plaintiff's motion to accept his response. See Doc. #132. B. Motion to Strike Plaintiff's Statement of Facts and Evidence. 1. Plaintiff's Statement of Facts.

The City moves to strike certain paragraphs of Plaintiff's statement of facts on the ground that the purported facts are set forth in narrative rather than serial form in violation of Local Rule 56.1(a). Doc. #123 at 5. The Court agrees with the City that Plaintiff's statement violates Local Rule 56.1(a) and makes it difficult for the City to respond to and the Court to address the motions for summary judgment. As the City acknowledges, however, it was able to respond to Plaintiff's statement of facts in a manner the Court can understand. Doc. #135 at 2. The City did not move for sanctions or an amended statement of facts before responding to the statement of facts in its current form, nor did the City seek attorneys' fees for the extra time needed to respond to the statement of facts. The City contends simply that "[t]he improperly written statement of facts should be stricken." Doc. #135 at 3. The Court considers this too harsh a remedy for a formatting violation. The Court will deny the City's motion with respect to Plaintiff's statement of facts. 2. Plaintiff's Evidence. a. Deposition Testimony.

The City complains that Plaintiff cites deposition testimony in response to the motions for summary judgment "without providing the context for it or explaining what the witness meant by a particular statement or term." Doc. #123 at 2. The City states that Plaintiff has
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put "his own spin" on particular facts and that this makes the facts "misleading and inaccurate." Id. The City essentially asks the Court to construe the evidence it its favor even though it is the party moving for summary judgment. Id. Because Plaintiff is the nonmoving party, his "evidence . . . is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). This is so because "[c]redibility determinations, the weighing of evidence, and the drawing of inferences from the facts are jury functions, not those of a judge[.]" Id. The City will have the opportunity at trial to provide context and argue to the jury that the evidence does not support Plaintiff's claims. The Court will deny the City's motion with respect to Plaintiff's citation to deposition testimony. b. Coworker Affidavit Testimony.

The City objects to the affidavit testimony of Plaintiff's former co-workers regarding his attitude and work performance on the ground that it lacks foundation and is "replete with inadmissible `belief' or `allegation' which is not `evidence.'" Doc. #123 at 2. The City correctly notes that a witness is only competent to testify about matters within the witness's personal knowledge. Id.; see Fed. Rs. Evid. 601-02. As Plaintiff points out in her response, however, the coworkers' testimony purports to be based on personal knowledge because they "worked with [Plaintiff] every day." See Doc. #128 at 2; Doc. #115, Pl.'s SOF Exs. O-Q ¶ 1. The City also objects to the testimony of Plaintiff's coworkers on the ground that it contains inadmissible lay opinion. Doc. #123 at 3-4 (citing Fed. R. Evid. 701). Relying on law from the Seventh Circuit, the City contends that in a Title VII case "it is the perception of the decision-maker which is relevant, and not the perception of coworkers or anyone else." Id. at 4. The City states that "[n]one of Plaintiff's coworkers' opinions about his attitude or job performance can possibly help determine any fact in issue." Doc. #135 at 3-4. To the contrary, the City has made Plaintiff's attitude and job performance a key issue in this case by alleging that Plaintiff's bad attitude and poor job performance is the reason the City fired him. Plaintiff may show that this reason is pretextual either directly by
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showing that a discriminatory or retaliatory reason more likely motivated the City, or indirectly by showing that the City's proffered reason is unworthy of credence. See Odima v. Westin Tucson Hotel Co., 991 F.2d 595, 599 (9th Cir. 1993) (citation omitted). The law of this Circuit suggests that evidence of Plaintiff's job performance is relevant to the question of pretext: "`The fact that a court may think that an employer misjudged the qualifications of the applicant does not in itself expose [the employer] to Title VII liability, although this may be probative of whether the employer's reasons are pretexts for discrimination.'" Id. at 602 (emphasis added).2 The Court agrees with the City that neither the Court nor the jury may second-guess the City's business decisions. Coworker testimony may not be used merely to show that the City's decision-makers made a poor business judgment in firing Plaintiff or that the coworkers would have acted differently had they been the decision-makers. Title VII prohibits discrimination and retaliation, not poor business judgments. Coworker testimony that is based on adequate foundation and that directly addresses the City's proffered reason for its decision, however, is relevant to the issue of pretext. See Odima, 991 F.2d at 602; cf. Yartzoff v. Thomas, 809 F.2d 1371, 1377 (9th Cir. 1987) (finding an issue of fact as to pretext even though the defendant presented affidavits from the plaintiff's coworkers attesting to his alleged uncooperative behavior because the plaintiff should have been "afforded an opportunity to cross-examine these individuals and allow the factfinder to weigh the evidence to determine whether the allegations of uncooperativeness were justified"). The Court will deny the City's motion with respect to coworker testimony to the extent the testimony is

See also Dey v. Colt Constr. & Dev. Co., 28 F.3d 1446, 1460-61 (7th Cir. 1994) ("Although general averments of adequate performance are insufficient to create a factual issue on summary judgment even when corroborated with statements of supervisors or coworkers, a plaintiff may create an issue of fact by specifically refuting facts that allegedly support the employer's claim of performance deficiencies. . . . A detailed refutation of events which underlie the employer's negative performance assessment demonstrates that the employer may not have honestly relied on the identified deficiencies in making its decision. The plaintiff could thereby create a factual issue as to whether the employer's explanation is credible or merely a pretext for discrimination.").
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relevant to the issue of pretext and Plaintiff's prima facie cases of discrimination and retaliation. c. Plaintiff's Affidavit and a Document Produced by the City.

The City contends that Plaintiff makes several hearsay statements in his affidavit by reciting what coworkers and supervisors told Plaintiff when they were working with Plaintiff during his employment with the City. Doc. #123 at 5 (citing Pl.'s SOF Ex. A ¶¶ 2-3, 9). The City further contends that Plaintiff relies on a hearsay document in his statement of facts. Id. (citing Pl.'s SOF ¶ 501). In its separately filed objection to Plaintiff's statement of facts, the City identifies the document as a "Personnel Action Request Form" used by the City when it hired Plaintiff's purported replacement. Doc. #121 at 1. The document is signed by the new employee's supervisor and a department head of the City. Pl.'s SOF Ex. C. Affidavits may be used under Rule 56 to respond to motions for summary judgment, and the Personnel Action Request Form, produced by the City in response to a document production request, presumably constitutes a business record under Federal Rule of Evidence 803(6). The statements of City employees cited in Plaintiff's affidavit and contained in the Personnel Action Request Form are not hearsay because they are admissions of a partyopponent. See Fed. R. Evid. 801(d)(2) ("A statement is not hearsay if . . . [it] is offered against a party and is . . . a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship[.]"). The Court will deny the City's motion with respect to the Plaintiff's affidavit and the Personnel Action Request Form. II. The City's Motion to File Supplemental Statement of Facts. The City moves to file a supplemental statement of facts that includes two new exhibits that were not available at the time the City filed its motions for summary judgment. Doc. #124 at 1. The City contends that Plaintiff has used one of the exhibits in an "unfair and incomplete fashion" and referenced certain deposition testimony "out-of-context in a manner which conveys a false impression." Id. The City states that "[t]he supplemental statement of facts is meant to correct that false impression." Id. Plaintiff does not oppose
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the City's motion. Doc. #130. The Court will grant the motion and consider the supplement statement of facts in ruling on the motions for summary judgment. III. The City's Motions for Summary Judgment. A. Summary Judgment Standard.

Summary judgment is appropriate if the evidence, construed in the nonmoving party's favor, "show[s] that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Substantive law determines which facts are material and "[o]nly disputes over facts that might affect the outcome of the suit . . . will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). To preclude summary judgment, the evidence must be such "that a reasonable jury could return a verdict for the nonmoving party." Id. B. Discrimination and Retaliation Standards Under Title VII.

Title VII prohibits an employer from discriminating against an employee with respect to the terms, conditions, or privileges of employment because of his national origin. See 42 U.S.C. § 2000e-2(a); Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061-62 (9th Cir. 2002). At the summary judgment stage, Plaintiff must first establish a prima facie case of discrimination by showing that (1) he belongs to a protected class, (2) he was performing his job in a satisfactory manner, (3) he was fired, and (4) similarly situated employees outside the protected class were treated more favorably or he was replaced by someone outside the protected class with comparable qualifications. Id. at 1062. Title VII also prohibits retaliation against an employee because he has opposed any practice made unlawful by Title VII. See 42 U.S.C. § 2000e-3(a); Nelson v. Pima Cmty. College, 83 F.3d 1075, 1082 (9th Cir. 1996). Plaintiff makes a prima facie case of retaliation by producing evidence that (1) he engaged in an activity protected by Title VII, (2) the City subjected him to an adverse employment action, and (3) there was a causal link between the protected activity and the adverse action. See Vasquez v. County of L.A., 349 F.3d 634, 642 (9th Cir. 2004).
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If Plaintiff makes a prima facie case of discrimination or retaliation and Defendant responds by articulating a legitimate, non-discriminatory reason for its action, Plaintiff must show that the City's reason for firing him is pretextual either directly by showing that a discriminatory or retaliatory reason more likely motivated the City, or indirectly by showing that the City's reason is unworthy of credence. See Villiarimo, 281 F.3d at 1062. In this Circuit, Plaintiff "need produce very little evidence in order to overcome [the City's] motion for summary judgment . . . because `the ultimate question is one that can only be resolved through a searching inquiry ­ one that is most appropriately conducted by a factfinder, upon a full record.'" Chuang v. Univ. of Cal. Davis, 225 F.3d 1115, 1124 (9th Cir. 2000) (citation omitted). C. Plaintiff's National Origin Discrimination Claim.

The City does not dispute that Plaintiff is a member of a protected class or that he was fired. The City argues that Plaintiff has not made a prima facie case of national origin discrimination because he has presented no evidence that (1) he performed his job in a satisfactory manner or (2) similarly situated non-Hispanic employees were treated more favorably or he was replaced by a non-Hispanic employee with comparable qualifications. Docs. ##104 at 3-9, 120 at 2-9. The Court finds that Plaintiff has presented sufficient evidence to create a question of fact on whether he performed his job in a satisfactory manner. Plaintiff has testified that he was never late to work or absent and never received a verbal or written warning during his employment with the City. Pl.'s SOF Ex. A ¶ 2. Plaintiff's former crew leader, Phil McIvor, has testified that Plaintiff had the initiative to succeed, got along with everyone on the crew, and was a good worker. Id. ¶¶ 503-04. Plaintiff's supervisor, Pete Boris, has also testified that Plaintiff was a good worker. Id. ¶ 504. The Court further finds that Plaintiff has presented sufficient evidence to create a question of fact on whether similarly situated non-Hispanic employees were treated more favorably than Plaintiff. Plaintiff has presented evidence that on a daily basis McIvor called him the Spanish terms "Esse" and "Vato," which roughly translate into English as "Dude"
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and "Hey man." Id. ¶ 508. Plaintiff believes that these terms were derogatory towards him as a Hispanic. Id. The City acknowledges that the terms can be used in a derogatory manner through the use of tone and context. Doc. #104 at 14 n.4. Plaintiff has also presented evidence that when workers including Caucasians were in a group telling jokes and laughing, McIvor would single out Plaintiff and ask him in a stern and derogatory tone, "What are you laughing about?" Pl.'s SOF ¶ 508. Plaintiff contends that McIvor treated Paul McGillivary, a Caucasian employee, more favorably than Plaintiff because Plaintiff is Hispanic. Plaintiff has presented evidence that McIvor obtained a locker for McGillivary and trained him on equipment before doing so for Plaintiff even though Plaintiff had more seniority than McGillivary. Doc. #114 at 4. The City contends that Plaintiff and McGillivary are not similarly situated because Plaintiff was a street specialist and McGillivary was a maintenance worker. Doc. ##104 at 4, 120 at 3. Both of them, however, worked on the same street crew under McIvor's supervision. Moreover, the purported differences in their positions does not negate a finding of discrimination. Plaintiff has testified that a locker was important to his job as a street specialist because it was a dirty job and that it was important to be trained on equipment in order to get promoted. Pl.'s SOF Ex. A ¶ 3. This evidence is sufficient to support a prima facie case of discrimination. See Villiarimo, 281 F.3d at 1061-62 (stating that 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 the evidence'") (citation omitted); see Yartzoff v. Thomas, 809 F.2d 1371, 1375 (9th Cir. 1987) ("At the summary judgment stage, the prima facie case need not be proved by a preponderance of the evidence."). The City asserts that it fired Plaintiff because he was disruptive, performed his job poorly, and lied about the time he left a job site. Doc. #104 at 11-14. Plaintiff has testified that he did not lie about the time he left a job site and that the City asked him about the issue, rather than his crew leader who actually made the decision to leave the job site, in retaliation for complaining about discrimination. Pl.'s SOF Ex. A ¶ 9. In addition to the testimony of Plaintiff's crew leader and supervisor that he got along with everyone and was a good
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worker, Plaintiff has presented similar testimony from his co-workers. Id. Exs. O-Q. Plaintiff has also presented evidence that his supervisor was involved in the City's decision to fire him. Id. ¶ 516. The Court finds that Plaintiff has presented enough evidence of pretext to survive the City's motion for summary judgment on his discrimination claim. See Chuang, 225 F.3d at 1124 (stating that in Title VII actions a plaintiff need produce "very little" evidence to overcome a motion for summary judgment). Construed in Plaintiff's favor, the evidence is such that a jury could reasonably conclude that the City's reason for firing Plaintiff is unworthy of credence. See Villiarimo, 281 F.3d at 1062. The Court will accordingly deny the City's motion for summary judgment on the discrimination claim. D. Plaintiff's Retaliation Claim.

The City does not dispute for summary judgment purposes that Plaintiff complained to the City about national origin discrimination or that Plaintiff was fired approximately two weeks later. Doc. #105 at 4. The temporal proximity between Plaintiff's complaint and his firing is sufficient circumstantial evidence to satisfy the causation element of the prima facie case of retaliation. See Stegall v. Citadel Broadcasting Co., 350 F.3d 1061, 1068-69 (9th Cir. 2004) (citing Bell v. Clackamas County, 341 F.3d 858, 865-66 (9th Cir. 2003)); Winarto v. Toshiba Am. Elecs. Components, Inc., 274 F.3d 1276, 1287 n.10 (9th Cir. 2001); Yartzoff, 809 F.2d at 1376. The City's non-retaliatory reason for firing Plaintiff is the same as the one asserted with respect to the discrimination claim. Doc. #105 at 1. As explained above, there are genuine issues of material fact as to whether the City's stated reason for firing Plaintiff is pretextual. The Court will accordingly deny the City's motion for summary judgment on the retaliation claim. IV. Plaintiff's Motion in Limine. Plaintiff seeks to exclude a report that purportedly shows that the City hires many Hispanic employees. Doc. #116. Because the Court is denying the City's motions for summary judgment, the Court will deny Plaintiff's motion as moot. Plaintiff may re-assert his argument in a motion in limine filed prior to trial.
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IT IS ORDERED: 1. 2. granted. 3. 4. is granted. 5. Plaintiff's motion in limine (Doc. #116) is denied as moot. Defendant's motions for summary judgment (Docs. ##104-05) are denied. Plaintiff's motion to accept his response with improper font size (Doc. #132) Defendant's motions to strike (Docs. ##122, 123) are denied. Defendant's motion to file supplemental statement of facts (Doc. #124) is

The Court will set a pretrial conference by separate order. DATED this 5th day of July, 2005.

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