prima facie case established circumstantially by evidence 27 showing, e.g., failure to apply standardized progressive discipline policy
How later courts described this case
- prima facie case established circumstantially by evidence 27 showing, e.g., failure to apply standardized progressive discipline policy
- “[T]he plaintiff still must produce evidence, not just 24 pleadings or argument. An employee’s self-assessment of his 25 performance, though relevant, is not enough on its own to raise a 26 genuine issue of material fact.”
- “California applies the McDonnell Douglas burden-shifting 18 framework and other federal employment law principles when 19 interpreting the FEHA.”
Written by the judges who cited it.
The opinion
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8 UNITED STATES DISTRICT COURT
9 EASTERN DISTRICT OF CALIFORNIA
10 ----oo0oo----
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12 BRIAN BROWN, No. 2:22-cv-02128 WBS DB
13 Plaintiff,
14 v. MEMORANDUM AND ORDER RE:
MOTION FOR SUMMARY JUDGMENT
15 CEMEX, INC.; CEMEX CONSTRUCTION
MATERIALS PACIFIC, LLC; and DOES
16 1 to 10,
17 Defendants.
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19 ----oo0oo----
20 Plaintiff Brian Brown brings three claims under the
21 Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et
22 seq., and two claims under California’s Fair Employment and
23 Housing Act (“FEHA”), Cal. Gov. Code § 12900 et seq., all of
24 which relate to allegations that defendant CEMEX Construction
25 Materials Pacific, LLC1 (“Cemex”) refused to hire plaintiff
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1 Plaintiff initially also sued CEMEX, Inc., which is the
27 parent corporation of CEMEX Construction Materials Pacific, LLC.
The parties now agree that the parent entity is not a proper
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1 because of his disability. (Compl. (Docket No. 1).) Defendant
2 now moves for summary judgment on all claims. (Mot. (Docket No.
3 25-1).)
4 As the parties are familiar with the relevant facts,
5 procedural history, and legal standard, the court will not recite
6 them in detail here.
7 I. Evidentiary Objections
8 The court first addresses the serial relevance,
9 foundation, and hearsay objections that defendant raises against
10 plaintiff’s witnesses’ declarations and accompanying documents.
11 (See Docket Nos. 37, 38.)
12 As a preliminary matter, the court will disregard any
13 objections that are duplicative of the summary judgment standard.
14 Under Federal Rule of Evidence 401, evidence is relevant if it
15 “has any tendency to make a fact more or less probable” and that
16 fact “is of consequence in determining the action.” Fed. R.
17 Evid. 401. The action before the court now is a motion for
18 summary judgment. On summary judgment, the court determines
19 whether the evidence presented, viewed in the light most
20 favorable to the non-moving party, creates a “genuine dispute as
21 to any material fact” that must be resolved at trial. Fed. R.
22 Civ. P. 56(a). The court must therefore consider, and only
23 consider, evidence bearing on (1) facts that are (2) material.
24 If the evidence offered does not bear on a material fact (e.g.,
25 comprises baseless speculation, bears on a legal conclusion, or
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27 35 at 6.) Accordingly, the court will dismiss all claims as
asserted against CEMEX, Inc. with prejudice.
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1 bears on a fact not necessary to dispose of any claim), it is by
2 definition not relevant to the present action for summary
3 judgment. Sandoval v. Cnty. of San Diego, 985 F.3d 657, 665 (9th
4 Cir. 2021) (“[O]bjections for relevance are generally unnecessary
5 on summary judgment because they are “‘duplicative of the summary
6 judgment standard itself.’ . . . [P]arties briefing summary
7 judgment motions would be better served to ‘simply argue’ the
8 import of the facts reflected in the evidence rather than
9 expending time and resources compiling laundry lists of relevance
10 objections.”) (citing Burch v. Regents of Univ. of Cal., 433 F.
11 Supp. 2d 1110, 1119 (E.D. Cal. 2006) (Shubb, J.)). Additionally,
12 “if the contents of a document can be presented in a form that
13 would be admissible at trial -- for example, through live
14 testimony by the author of the document -- the mere fact that the
15 document itself might be excludable hearsay provides no basis for
16 refusing to consider it on summary judgment.” Id. at 666.
17 The court will therefore overrule defendant’s
18 relevance, foundation, and hearsay objections. Plaintiff’s,
19 Haymore’s, and Webdell’s declarations -- the declarations to
20 which defendant objects -- all state that the respective
21 declarant has personal knowledge of all of the facts comprising
22 his declaration and supporting documents included with it.
23 (Docket Nos. 35-8 ¶ 1; 35-7 ¶ 1; 35-15 ¶ 1.) There is therefore
24 no concern that this evidence cannot be presented in admissible
25 form at trial. This is especially true regarding plaintiff’s
26 notes recounting his own interview; the court can envision no
27 circumstances under which plaintiff would, as a legal matter, be
28 barred from offering his personal, percipient testimony about
1 what he said and heard during his interview were the case to
2 proceed to trial. Absent any challenges to the substantive
3 authenticity or reliability of these declarations or documents,
4 the court will not categorically exclude them from its analysis
5 of defendant’s motion because of the form in which they are
6 currently presented.2
7 II. Disability Discrimination Under ADA and FEHA (Claims 1-4)
8 Both parties agree that the McDonnell Douglas burden-
9 shifting framework for analyzing intentional discrimination
10 claims, first set forth by the Supreme Court in McDonnell Douglas
11 Corp. v. Green, 411 U.S. 792 (1973), applies to plaintiff’s
12 disability discrimination claims brought under the ADA and FEHA.
13 (Mot. at 20-21 & n.5; Opp’n (Docket No. 35) at 4-5.) See Kannan
14 v. Apple, Inc., No. 20-17211, 2022 WL 3973918, at *1 (9th Cir.
15 Aug. 31, 2022) (applying McDonnell Douglas framework to ADA and
16 FEHA claims); Schechner v. KPIX–TV, 686 F.3d 1018, 1023 (9th Cir.
17 2012) (“California applies the McDonnell Douglas burden-shifting
18 framework and other federal employment law principles when
19 interpreting the FEHA.”).
20 This court has previously explained how the McDonnell
21 Douglas framework applies in the summary judgment context: “Under
22 [McDonnell Douglas], the plaintiff must first establish a prima
23 facie case, which requires the employee to show he or she (1)
24 suffered from a disability, (2) was otherwise qualified to do his
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26 2 Defendant’s objections regarding plaintiff’s failure to
provide the court with complete deposition transcripts are moot,
27 as all of the relevant transcripts have since been lodged in
complete form with the court. (See Docket Nos. 24, 40.)
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1 or her job, and (3) was subjected to adverse employment action
2 because of the disability. If the plaintiff establishes a prima
3 facie case, the burden shifts to the employer to rebut the
4 presumption by producing admissible evidence, sufficient to raise
5 a genuine issue of fact that its action was taken for a
6 legitimate, nondiscriminatory reason. If the employer sustains
7 this burden, the presumption of discrimination disappears, and
8 the plaintiff must then show the employer’s proffered reasons as
9 pretexts for discrimination, or offer any other evidence of
10 discriminatory motive.” Thomsen v. Georgia-Pac. Corrugated, LLC,
11 190 F. Supp. 3d 959, 969 (E.D. Cal. 2016) (citations and
12 quotations omitted).
13 Here, plaintiff fails to establish his prima facie case
14 because the court, in viewing the record in a light most
15 favorable to plaintiff, cannot find any evidence that suggests a
16 causal link between plaintiff’s disability and defendant’s
17 ultimate decision not to hire him. While “[t]he burden of
18 establishing a prima facie case of disparate treatment is not
19 onerous,” plaintiff still needs to show that “[]he applied for an
20 available position for which []he was qualified, but was rejected
21 under circumstances which give rise to an inference of unlawful
22 discrimination.” Texas Dep’t of Cmty. Affs. v. Burdine, 450 U.S.
23 248, 253, (1981)3; see also Phipps v. Gary Drilling Co., 722 F.
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3 The Burdine Court further elaborates on the
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significance of the prima facie case: “The prima facie case
serves an important function in the litigation: it eliminates the
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most common nondiscriminatory reasons for the plaintiff’s
27 rejection. [. . .] [T]he prima facie case raises an inference
of discrimination only because we presume these acts, if
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1 Supp. 615, 619 (E.D. Cal. 1989) (Coyle, J.) (“This initial
2 burden, however, is not an insubstantial one -- the prima facie
3 case must be supported by evidence that gives rise to an
4 inference of unlawful discrimination. Failure to produce
5 specific facts that establish the existence of a prima facie case
6 renders a grant of summary judgment appropriate. Mere assertions
7 of discriminatory motive and intent are inadequate. [. . .] In
8 other words, the evidence must be sufficient to identify actions
9 which, if unexplained, give rise to an inference of
10 discriminatory conduct.”) (citations and quotations omitted).
11 Plaintiff’s own account of the interview process, taken
12 at full face value, fails to provide any circumstantial evidence
13 even hinting at discriminatory intent. Plaintiff’s interview
14 notes, which postdate the actual interview by ten months, recount
15 the detailed answers that he alleges to have given in response to
16 the panel’s interview questions; directly challenge the veracity
17 of Ramirez’s contemporaneous notes on plaintiff’s answers;
18 express feeling positive about his prospects immediately
19 thereafter; and finally speculate that “I AM LEFT TO WONDER IF
20 THE FACT THAT I HAVE A DISABILITY AUTOMATICALLY PLACED ME IN THE
21 ‘TROUBLE MAKER’ CATEGORY. PERHAPS, CEMEX SIMPLY DID NOT WANT TO
22 DEAL WITH A PERSON WHO MAY REQUIRE ACCOMODATIONS IN THE WORK
23 PLACE.” (Docket No. 35-9 at 3.) However, plaintiff offers
24 nothing further to substantiate that suspicion. (Cf. Docket No.
25 25-3 at 45 (Q: “During the interview process with CEMEX INC., did
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27 consideration of impermissible factors. Id. at 253-54 (citations
and quotations omitted) (emphases added).
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1 anyone in a hiring or management level position make any comment
2 to you, regardless of how seemingly insignificant, regarding your
3 disability and/or their impression of your ability to do your
4 job?” A: “NO”).)
5 Plaintiff also seems to suggest that his low score is
6 itself circumstantial evidence of discriminatory intent: “The
7 fact [that defendant] gave [plaintiff] a low score in his
8 interview is not a cure-all for discrimination. It is the
9 discrimination.” (Opp’n at 9.) However, this not only begs the
10 question; it misstates the relevant law. Setting aside possible
11 subjective disagreements about how plaintiff performed, even the
12 employer’s own objectively incorrect application of its internal
13 process, is, without more, insufficient to establish the causal
14 element of a prima facie discrimination case. See Jantz v.
15 DeJoy, No. 222CV04702SVWRAO, 2023 WL 3555493 (C.D. Cal. Apr. 6,
16 2023) (“[E]ven if Defendant had incorrectly applied its own
17 hiring standards or should have recognized that Plaintiff’s
18 degrees and trainings merited a score higher than 0[], Plaintiff
19 cannot simply show the employer’s decision was wrong, mistaken,
20 or unwise [to establish a prima facie case of discrimination].”)
21 (citations and quotations omitted) (emphases added); Weil v.
22 Citizens Telecom Servs. Co., LLC, 922 F.3d 993, 1003 (9th Cir.
23 2019) (“[T]he plaintiff still must produce evidence, not just
24 pleadings or argument. An employee’s self-assessment of his
25 performance, though relevant, is not enough on its own to raise a
26 genuine issue of material fact.”).
27 As a final resort, plaintiff presents discrepancies in
28 the record relating to whether Mr. Ramirez knew of plaintiff’s
1 disability prior to the interview as themselves evidencing
2 discriminatory intent. (See Opp’n at 10-11.) The discrepancies
3 do no such thing. First, an employer’s mere knowledge of an
4 employee’s disability does not, without more, establish a prima
5 facie case of discrimination.4 Second, defendant’s actual
6 knowledge of plaintiff’s disability during the interview process
7 is not in dispute -- neither party disputes that at least Mr.
8 Skulick, the Vice President of Operations for Cemex, knew about
9 plaintiff’s disability beforehand. (See Docket No. 25-3 at 74.)
10 And third, even if the court were to grant plaintiff’s assertions
11 that Mr. Ramirez visited Teichert prior to the sale, met
12 plaintiff, noticed his prosthetic during that meeting, recalled
13 both this encounter and the fact of plaintiff’s disability
14 leading up to plaintiff’s interview, and subsequently lied about
15 all of this at deposition (Pl.’s Additional Undisputed Material
16 Facts (Docket No. 35-1) Nos. 40-55), all that plaintiff would
17 achieve is to undermine Mr. Ramirez’s credibility as a fact
18 witness. Whether or not Mr. Ramirez lied about the pre-sale
19 visit is immaterial to plaintiff’s instant claims because nothing
20 in plaintiff’s account of that visit and his interactions with
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4 See, e.g., Chisolm v. 7-Eleven, Inc., 383 F. Supp. 3d
22 1032, 1050-52 (S.D. Cal. 2019), aff’d, 814 F. App’x 194 (9th Cir.
2020) (summary judgment granted for defendant employer, as prima
23 facie case not established even though disability disclosed
during interview); Mattsson v. Home Depot, Inc., No. 11CV0533 AJB
24 BLM, 2012 WL 2342948, at *2-3 (S.D. Cal. June 20, 2012)
(termination a day after learning of medical condition not enough
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to establish prima facie case). Cf. McInteer v. Ashley
26 Distribution Servs., Ltd., 40 F. Supp. 3d 1269 (C.D. Cal. 2014)
(prima facie case established circumstantially by evidence
27 showing, e.g., failure to apply standardized progressive
discipline policy).
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nnn nnn ene ene EE IE IEE IIE OS I OD EE
1 Cemex personnel, like the rest of plaintiff’s case, suggests any
2 kind of discriminatory intent that defendant brought to bear on
3 its decision not to hire him.
4 Accordingly, the court will grant summary judgment for
5 | defendant on plaintiff’s first four claims for disability
6 | discrimination under the ADA and FEHA,.
7 ITI. Failure to Engage in FEHA Interactive Process (Claim 5)
8 Both parties agree to the dismissal of plaintiff’s
9 fifth claim, which alleges that defendant failed to participate
10 in the FEHA’s interactive process. (See Mot. at 19-20; Opp’n at
11 6; Reply (Docket No. 36) at 7-8.) Accordingly, the court will
12 dismiss this claim with prejudice.
13 IT IS THEREFORE ORDERED that defendant’s motion for
14 summary judgment (Docket No. 25) be, and the same hereby is,
15 GRANTED. The clerk of court shall enter judgment for defendant
16 and close the case.
17 | Dated: July 9, 2024 betta 2d. bt-—~
18 WILLIAM B. SHUBB
UNITED STATES DISTRICT JUDGE
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