Petition for Writ of Certiorari — Byron Lee, Petitioner v. AT&T Services, Inc., et al.

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BYRON LEE,

MAR 11 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

No. 18-56415

Plaintiff-Appellant,

D.C. No. 2:17-cv-04642-FMO-SS

v.

MEMORANDUM*

AT&T SERVICES, INC., a Delaware

Corporation; et al.,

Defendants-Appellees,

and

JAIME V. BENAVIDES, individually and

as agent/employee/supervisor of AT&T

Services, Inc./Pacific Bell; LEE VAGATAI,

individually and as

agent/employee/supervicor of AT&T

Services/Pacific Bell,

Defendants.

Appeal from the United States District Court

for the Central District of California

Fernando M. Olguin, District Judge, Presiding

Submitted March 3, 2020**

This disposition is not appropriate for publication and is not precedent

except as provided by Ninth Circuit Rule 36-3.

The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2).

MIME-Version: 1.0 From:cacd_ecfmaiI@cacd.uscourts.gov To:ecfnef@cacd.uscourts.gov

Message-Id:<26324021@cacd.uscourts.gov>Subject:Activity in Case 2:17-cv-04642-FMO-SS Byron

Lee v. AT&T .Services, Inc./Pacific Bell, et.al Order on Motion for Summary Judgment Content-Type:,

text/html

This is an automatic e-mail message generated by the CM/ECF system. Please DO NOT

RESPOND to this e-mail because the mail box is unattended.

***NOTE TO PUBLIC ACCESS USERS*** Judicial Conference of the United States policy

permits attorneys of record and parties in a case (including pro se litigants) to receive one free

electronic copy of all documents filed electronically, if receipt is required by law or directed by

the filer. PACER access fees apply to all other users. To avoid later charges, download a copy of

each document during this first viewing. However, if the referenced document is a transcript, the

free copy and 30 page limit do not apply.

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

Notice of Electronic Filing

The following transaction was entered on 9/24/2018 at 5:03 PM PDT and filed on 9/24/2018

Case Name:

Byron Lee v. AT&T Services, Inc./Pacific Bell, et al

Case Number:

|2:17-CV-04642-FMQ-SSI

Filer:

Document Number:

[82]

Docket Text:

MINUTES (IN CHAMBERS) ORDER RE: PENDING MOTIONS by Judge Fernando M.

Olguin. Defendants’ Motion for Summary Judgment [30] is granted. Plaintiff’s Motion for

Summary Judgment [50] is denied as moot, (iv)

2:17-cv-04642-FMO-SS Notice has been electronically mailed to:

Cherise S LaTortue clatortue@manatt.com

Mandana Massoumi clatortue@manatt.com, mrnassnumi@manatt.com, eltorres@manatt.com,

dthm-ber@manatt.com

Camille Marilia Vasquez csuda@brownrudnick.com, cvasquez@brownrudnick.com

2:17-cv-04642-FMO-SS Notice has been delivered by First Class U. S. Mail or by other means

BY THE FILER to :

Byron Lee

4654 - B113 East Avenue S

Palmdale CA 93552

US

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA.

CIVIL MINUTES - GENERAL

Case No.

CV17-4842 FMO (SSx)

Title

Byron Lee v. AT&T Services, Inc./Pacific Bell, et aL

Present: The Honorable

Date

September 24, 2018

Fernando M. Olguin, United States District Judge

Vanessa Figueroa

None

None

Deputy Clerk

Court Reporter / Recorder

Tape No.

Attorney Present for Plaintiff:

Attorney Present for Defendants:

None Present

None Present

Proceedings:

(In Chambers) Order Re: Pending Motions

Having reviewed and considered all the briefing filed with respect to defendants AT&T

Services, Inc. (“AT&T”) and Pacific Bell Telephone Company’s (“Pacific Bell”) (collectively

“defendants”) Motion for Summary Judgment or, in the Alternative, Summary Adjudication (Dkt.

30, “Motion”), and plaintiff Byron Lee’s (“plaintiff” or “Lee”) Motion for Summary Judgment (Dkt.

50, “Plf. Motion”), the court finds that oral argument is not necessary to resolve the Motions,

see Fed. R. Civ. P. 78; Willis v, Pac, Man Ass’n. 244 F.3d 675, 684 n. 2 (9th Cir. 2001), and

concludes as follows.

INTRODUCTION

Lee, proceeding pro se, filed this action in Los Angeles County Superior Court on January

25,2017, (see Dkt. 4-2, Complaint), against AT&T, Pacific Bell, Jaime V. Benavides (“Benavides”),

and Lee Vagatai (“Vagatai”), asserting claims for: (1) violation of the California Fair Employment

and Housing Act (“FEHA”), Cal. Gov. Code §§ 12940. etseq.. (see id. at HIT 28-311: (2) intentional

infliction of emotional distress (“IIED”), (see id. at

32-43); (3) negligent infliction of emotional

distress (“NIED”), (see id at fflf 44-48); and (4) breach of contract.1 (See id at

49-57). On

June 23, 2017, defendants removed the action to this court. (See Dkt. 4, Notice of Removal).

1 On August 18, 2017, plaintiff dismissed Benavides and Vagatai from this action. (See Dkt.

23, Notice of Dismissal).

CV-90 (06/04)

CIVIL MINUTES - GENERAL

Page 1 of 14

jgyst|

"c

4

"

!%■'

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

■■

......v

>•.1 .• if**

j t> *

V?>/

1% r

"f

Wi

CSVJL MINUTES - GENERAL

Case No.

CV17-4642 FMQ (SSx)

Title

Byron Lee v. AT&T Services, Inc./Pacific Bell, et al.

Date

September 24, 2018

STATEMENT OF FACTS2

On November 9,1998, Lee began his employment with Pacific Bell as a service technician.

(Dkt. 30-2, Statement of Uncontroverted Facts (“SUF”) at P1). From May 14, 2004, through

September 2015, plaintiff worked as a Communications Technician, (jd. at P5), a position in which

he was expected to drive a Pacific Bell company vehicle. (]d; Dkt. 31-2, Deposition of Byron Lee

(“Lee Depo”) at 119-120; Dkt. 32, Declaration of Debra Paniagua in Support of Defendants’ []

Motion for Summary Judgment (“Paniagua Decl.”) at flU 3 & 5). Vagatai was plaintiffs supervisor

from approximately 2011 until about September 25, 2015. (Dkt. 30-2, SUF at P9; Dkt. 32,

Paniagua Decl. at ft 4).

Plaintiff received Pacific Bell’s Network Operations GFS West Region Standards

(“Standards”) on at least two occasions - February 1, 2012, and January 19, 2015 - and

understood that they applied to his employment. (Dkt. 30-2, SUF at P11 & P12; Dkt. 31-2, Lee

Depo at 125-26 (“Q:... And you understood that the network operations GFS standards policies

applied to you as an employee of the company? A: Sure.”); id at 127-28 & 136-37; Dkt. 31-7

(“Acknowledgments”); Dkt. 31-8 (“Standards”); Dkt. 32-4, Loss of Driver’s License Through

Suspension or Revocation (“Driver’s License Policy”); Dkt. 32-5, AT&T’s Code of Business

Conduct). Among other things, the Standards advise employees that they may be disciplined if

they drive a company vehicle without a valid driver’s license:

If you are found driving a company vehicle or driving your personal vehicle

while performing company business and you do not have a valid license you

would be subject to disciplinary action up to and including dismissal.... GFS

West has a Loss of Driver’s License policy that applies to [all] employees,

salaried and non-salaried.... The employee is responsible for notifying their

supervisor of the impending loss of their driving privilege before the effective

2 Unless otherwise indicated, the following facts are undisputed or contain disputes that are

not material. However, the court notes that Lee failed to comply with the court’s local rules relating

to motions for summary judgment. The party opposing summary judgment must submit

a“Statement of Genuine Disputes” that sets forth the material facts as to which it is contended

there is a genuine dispute that needs to be litigated. Local Rule 56-2. Although Lee submitted

a “Statement of Genuine Issues of Material Fact in Dispute,” (Dkt. 38), he did not attempt to

dispute the facts set forth in defendants’ Statement of Uncontroverted Facts (“SUF"). (See.

generally. Dkt. 38, “Statement of Genuine Issues”). Rather, he sets out facts disputing the

grounds upon which defendants seek summary judgment. (See, generally. ]cL). Because Lee

does not contest any of the facts set forth in defendants’ SUF, the court may deem those facts as

undisputed if they are adequately supported. See Local Rule 56-3. The court recognizes that Lee

is proceeding £>rg se. However, erg se litigants are still expected to comply with applicable court

rules. See Ghazali v. Moran. 46 F.3d 52, 54 (9th Cir. 1995).

CV-90 (06/04)

CIVIL MINUTES - GENERAL

Page 2 of 14

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIViL MINUTES - GENERAL

Case No.

- Title

CV17-4642 FMO (SSx)

Date

September 24, 2018

Byron Lee v. AT&T Services, lnc./Paclfic Bell, et aL

date of the suspension or revocation.

(Jd; Dkt. 31-8, Standards at 14) (emphasis added).

Lee also received a copy of the company’s Driver’s License Policy. (See Dkt. 31-2, Lee

Depo at 129-131; Dkt. 32-4, Driver’s License Policy; Dkt. 31-4, Acknowledgment re Company

Vehicle Driving; Dkt. 31-15, Acknowledgment re Driver’s License Policy3). Under that policy, if

three conditions are satisfied, including that the “employee notifies supervision of the impending

loss of their driving privilege, or the Company is informed of the impending loss through the

Department of Motor Vehicles (DMV) Pull Notice Program, on/or before the effective date of the

suspension of revocation[,]” (Dkt. 32-4, Driver’s License Policy at 1), then “[o]n the date of

suspension or revocation, [the Company should] place the employee on an unpaid absence for

a maximum of 30 calendar days.” (jdj see Dkt. 30-2, SUF at P20). Among other things, the

employee may during the 30-day period “[o]btain a valid ... driver’s license.”4 (Dkt. 30-2, SUF at

P20).

Lee understood he needed to have a valid driver’s license to be able to operate a company

vehicle, that it was against company policy to drive with a suspended license, and that if he

violated such policies, it could result in disciplinary action, including termination.5 (See Dkt. 30-2,

3 The 2015 acknowledgments state that “Employee decline[d] to sign.” (See Dkt. 31-4,

Acknowledgment re Company Vehicle Driving; Dkt. 31-15, Acknowledgment re Driver’s License

Policy). In his deposition, plaintiff did not dispute that he received the acknowledgments and that

he declined to sign them. (See Dkt. 31-2, Lee Depo at 128-29 & 137-38). Plaintiff testified that

he had a practice of refusing to sign documents “out of caution[,]” (jd at 123), but he understood

that even if he refused to sign an acknowledgment, he was still obligated to comply with the

policies. (See id.).

4 Another option an employee has is to use the “Automated Upgrade and Transfer System

(AUTS) to transfer or upgrade to another job that does not require a... driver’s license” or request

temporary placement in a lateral or downgraded job “identified by the employee.” (Dkt. 32-4,

Driver’s License Policy at 1-2). Lee testified that he did not seek such options. (See Dkt. 31-2,

Lee Depo at 134-35).

5

Lee testified as follows during his deposition:

“Q: And you understood that you needed a valid driver’s license to be able to

operate [a company] vehicle, correct?

A: Yes.

Q: And that license could not be suspended, correct?

A: Correct.

CV-90 (06/04)

CIVIL MINUTES - GENERAL

Page 3 of 14

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No.

CV 17-4642 FMO (SSx)

Title

Byron Lee v. AT&T Services, Inc./Pacific Bell, et aL

Date

September 24, 2018

SUF at P16 & P21-22; Dki. 31-2, Lee Depo at 96-97, 121, 126-28, 139; see ajso Dkt. 31-7

Acknowledgments; Dkt. 31-15, Acknowledgment re Driver’s License Policy).

a

•

f0r Pacific Bell> Lee was a member of the Communications Workers of

America ( CWA ) Union, Local 9504. (Dkt 30-2, SUF at P23; Dkt. 31-2, Lee Depo at 53' Dkt 32

Paniagua Decl. at ff 6). Between April 8, 2012 and April 9, 2016, Pacific Bell and CWA were

parties to a collective bargaining agreement (“CBA”). (Dkt. 30-2, SUF at P24; see also Dkt. 32

Paniagua Decl. at 6; Dkt. 32-6 - 33, Exh. U (“CBA”)). Aside from the CBA, Lee did not have a

contract or employment agreement with Pacific Bell. (Dkt. 30-2, SUF at P26; Dkt. 31-2, Lee Depo

at 2j l"22^ J:ee knew that as a member of the CWA Union, the CBA governed the terms and

conditions of his employment. (See Dkt. 30-2, SUF at P25; Dkt. 31-2, Lee Depo at 57). Lee was

femiliarwitti the terms of the CBA, and served as a union steward, which included advocating for

the rights of other employees. (Dkt. 30-2, SUF at P27; Dkt. 31-2, Lee Depo at 53-60).

ThS CBA contains grievance procedures. (Dkt. 30-2, SUF at P28; Dkt. 32-6 - 33, Exh. U

jjr? atZ?’t9!2; J:ee understood that all disciplinary actions against him would be subject to the

CBA. (Dkt. 30-2, SUF at P29; Dkt. 31-2, Lee Depo at 60). Specifically, he understood the

Lee'oepo %££?*** "

/P,( ± „J-ee’s dnver’s license was suspended from September 17, 2014, to December 2 2015.

!S?co°J2,

3t P33; Dkt 31-11’ DMV Records at ECF 918; see ajso Dkt. 31-2, Lee Depo at

157-58 (not disputing DMV records); Dkt. 33-1, DMV Driver Record Information). Lee did not

inform anyone at Pacific Bell about his suspended license prior to its suspension, that is, prior to

September 17, 2014. (Dkt. 30-2, SUF at P34; Dkt. 31-2, Lee Depo at 154-55 & 215 (testifying he

became aware of the suspension in December 2014)). Lee continued to drive Pacific Bell’s

company vehidesm violation of the Standards. (Dkt. 30-2, SUF at P35; Dkt. 31-2, Lee Depo at

157-58, 171-72, 215; Dkt. 32, Paniagua Decl. atfl 8).

r ■+

limit.

/o'1 D®c;ember 15> 2014, plaintiff was stopped by a police officer for driving over the speed

(See Dkt. 37, [Plaintiffs] Declaration in Support of Opposition to Motion for Summary

Q: And did you understand that these were the policies and procedures of the

company?

A: Correct.

Q: And did you understand that if you were in violation of these policies and

procedures, that could result in disciplinary action that would include termination of

your employment?

A: Correct.”

(Dkt. 31-2, Lee Depo at 121).

CV-90 (06/04)

CIVIL MINUTES - GENERAL

Page 4 of 14

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No.

CV 17-4642 FMO (SSx)

Date

Title

Byron Lee v. AT&T Services, Inc./Pacific Bell, et al.

September 24, 2018

Judgment Q (“Plf. Decl.”), Exh. D (“Police Courtesy Report”) at ECF 1405; Dkt. 41, [Plaintiffs]

Exhibit: Amendment to Plaintiff Declaration (“Amendment”) at ECF 1436; see also Dkt. 36,

[Plaintiffs] Memorandum of Points and Authorities in Opposition to Motion for Summary Judgment

(“Plf. Opp. Memo”) at 3; Dkt. 4-2, Complaint at fl 15). According to the Police Courtesy Report

provided to plaintiff, plaintiff was cited for driving with a suspended license. (See Dkt. 37, Plf.

Decl., Exh. D, Police Courtesy Report at ECF 1405). Because the officer noticed that the vehicle

belonged to AT&T/Pacific Bell, he allowed plaintiff, as a courtesy, to call his supervisor to retrieve

the vehicle, in lieu of having the vehicle impounded. (See id.). Plaintiff called his supervisor who

retrieved the vehicle. (See id.'). According to plaintiff, Vagatai was the supervisor who plaintiff

called and picked up the vehicle. (See Dkt. 36, Plf. Opp. Memo at 3).

Pacific Bell’s Standards require all technicians to submit to an annual road observation

audit with their managers. (See Dkt. 30-2, SUF atP37; Dkt. 32, Paniagua Decl. atfl7). In August

2015, plaintiffs department was informed of their impending audit. (See Dkt. 30-2, SUF at P37).

Lee sought to schedule time off work while his audit was pending, raising the suspicion of Debbie

Paniagua, a Pacific Bell Supervising Manager. (Id, at P38; Dkt. 32, Paniagua Decl. at fl 7). On

or about September 3,2015, Paniagua requested the status of plaintiffs driver’s license from the

California DMV. (Dkt. 30-2, SUF at P39; Dkt. 32, Paniagua Decl. at 8). The next day she

received the DMV Driver Record Information report, indicating that plaintiffs driver’s license had

been suspended since September 17,2014. (Dkt. 30-2, SUF at P39-P40; Dkt. 32, Paniagua Decl.

at If 8; Dkt. 33-1, DMV Driver Record Information)). Paniagua contacted the DMV and spoke with

a DMV representative, who confirmed that plaintiffs license had been suspended since September

17,2014. (Dkt. 30-2, SUF at P39-P40; Dkt. 32, Paniagua Decl. at 8). Paniagua then contacted

Vagatai and asked him to contact plaintiff to determine if the DMV report was correct, and if it was,

plaintiff would need to be suspended.6 (Dkt. 30-2, SUF at P41; Dkt. 32, Paniagua Decl. at 9).

On or about September 5,2015, Vagatai asked Lee for his driver’s license. (Dkt. 30-2, SUF

at P42; Dkt. 32, Paniagua Decl. at H 9; Dkt. 31-2, Lee Depo at 175-78). Lee told Vagatai that he

did not have his license because he did not have his wallet. (Dkt. 30-2, SUF at P42). He told

Vagatai that he would go home and look for it since he was out the previous night and could not

find the "little plastic group of cards” in which he kept his license. (]cL; Dkt. 32, Paniagua Decl. at

119; Dkt. 31-2, Lee Depo at 178). Later that same day, Lee called Vagatai and told him, “hey, Lee,

I don’t have it, but I’ll go into the D.M.V., which was - it was Labor Day weekend so I couldn’t get

into the D.M.V. until the next workdayf.]” (Dkt. 30-2, SUF at P43; Dkt. 31-2, Lee Depo at 178-79;

Dkt. 32, Paniagua Decl. at 9; Dkt. 33-3, September 5, 2015, Vagatai Email (“September 5

Email”)). Lee was immediately placed on suspension, pending an investigation, and the CWA was

6 Paniagua confirmed that Lee had been driving Pacific Bell’s company vehicle while his

license had been suspended. (Dkt. 30-2, SUF at P40; Dkt. 32, Paniagua Decl. at fl 8; Dkt. 33-2,

Plaintiffs Attendance Records)

CV-90 (06/04)

CIVIL MINUTES - GENERAL

Page 5 of 14

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No.

CV 17-4642 FMO (SSx)

Title

Byron Lee v. AT&T Services, Inc./Pacific Bell, et a[

Date

September 24, 2018

notifted of the suspension. (Dkt. 30-2, SUF at P44; Dkt. 32, Paniagua Deol. at IT 9; Dkt. 33-3

ptember 5 Entail; Dkt. 31-2, Lee Depo at 179 & 181). Lee was represented by CWA during the

mves ,gallon, (Dkt. 30-2, SUF at P45), which confirmed that Lee had been driving

a company

vehicle with a suspended license. (Dkt. 30-2, SUF at P46' Dkt. 32

Paniagua Decl. at^f 10).

th

.

T!?e f™ai1 noted that a meeting needed to be scheduled with plaintiff to “ask him about

■ cltatlon thaf he received for driving on a suspended license on 12/15/2014 while driving a

company vehicle, which he failed to report as per guidelines.” (JcL). The email also stated: “You

~r«ccmonyHattk hm 3b°u * * ■13 dtation 33 3 continuation of the investigation, take your notes and

Attarhort tl! 60 C°m.e baCk jnd re_convene as a disciplinary meeting and terminate him.” (Id.).

MMfe^.ae,rpie:e?oryo0uC™-,nt “

^

‘“'ncludSd

SpntPmh<=r<f on??1136^17’ 2015’ 'ftter t0 Lee> Vagatai confirmed Lee’s suspension as of

£atT'D1"2an^”-

Martindelcarnpo.'anothefma^n^er^andRickl^nnedy fKennedy^, LesfsCWA representative and

representatives told Lee that he was terminated, effective September 25, 2015, for operating

company vehicles with a suspended driver’s license. (See Dkt. 30-2 SUF at P50- Dkt 32

*;ee Iniedgrievances through the CWA, which were denied. (Dkt. 30-2’

SUF at P52). Lee did not submit his dispute to arbitration. (]d at P54).

V

. ~.

?n Sxepten^.der 4- 2015, before he was fired from Pacific Bell, Lee filed a voluntary Chapter

He understood that he had a duty to disclose all assets to the bankruptcy trustee during the

Saras'

witha -th

(9th C!r. 1992) (court may take notice of proceedings in other courts, both

at issue”^Hntema^nf f®d.eral judl^ial sy®te.m-if those proceedings have a direct relation to matters

at issue ) (internal quotation marks and citation omitted).

CV-90 (06/04)

CIVIL MINUTES - GENERAL

Page 6 of 14

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No.

CV17-4642 FMO (SSx)

Title

Byron Lee v. AT&T Services, Inc./Pacific Bell, et al.

Date

September 24, 2018

proceedings in his case. (Jd, at P62). Plaintiff also filed a complaint with the Equal Employment

Opportunity Commission on February 26,2016 before filing the complaint in this case on January

25, 2017.8 (JcL at P59).

LEGAL STANDARD

Rule 56(a) of the Federal Rules of Civil Procedure authorizes the granting of 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.” The standard for granting a motion for

summary judgment is essentially the same as for granting a directed verdict. See Anderson v,

.Liberty Lobby, Inc,, 477 U.S. 242, 250,106 S.Ct. 2505,2511 (1986). Judgment must be entered

“if, under the governing law, there can be but one reasonable conclusion as to the verdict.” ]cL

The moving party has the initial burden of identifying relevant portions of the record that

demonstrate the absence of a fact or facts necessary for one or more essential elements of each

cause of action upon which the moving party seeks judgment. See Celotex Corp. v. Catrett. 477

U.S. 317, 323,106 S.Ct. 2548, 2553 (1986). If the moving party fails to carry its initial burden of

production, “the nonmoving party has no obligation to produce anything.” Nissan Fire & Marine

Ins, Co^ Ltd, V. Fritz Cos., Inc.. 210 F.3d 1099, 1102-03 (9th Cir. 2000) (“Nissan Fire”).

If the moving party has sustained its burden, the burden then shifts to the nonmovant to

identify specific facts, drawn from materials in the file, that demonstrate that there is a dispute as

to material facts on the elements that the moving party has contested. See Celotex. 477 U.S. at

324,106 S.Ct. at 2553; Anderson. 477 U.S. at 256,106 S.Ct. at 2514 (A party opposing a properly

supported motion for summary judgment “must set forth specific facts showing that there is a

genuine issue for trial.”).9 A factual dispute is material only if it affects the outcome of the litigation

and requires a trial to resolve the parties’ differing versions of the truth. SEC v. Seaboard Corp..

677 F.2d 1301, 1306 (9th Cir. 1982). Summary judgment must be granted for the moving party

if the nonmoving party “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.”

Celotex, 477 U.S. at 322, 106 S.Ct. at 2552; see Anderson. 477 U.S. at 252, 106 S.Ct. at 2512

(parties bear the same substantive burden of proof as would apply at a trial on the merits).

Although plaintiff is proceeding pro se, an attorney prepared the Complaint in this action.

(See Dkt. 1, Civil Cover Sheet at 3).

9 “In determining any motion for summary judgment or partial summary judgment, the Court

may assume that the material facts as claimed and adequately supported by the moving party are

admitted to exist without controversy except to the extent that such material facts are (a) included

in the ‘Statement of Genuine Disputes’ and (b) controverted by declaration or other written

evidence filed in opposition to the motion.” Local Rule 56-3.

CV-90 (06/04)

CIVIL MINUTES - GENERAL

Page 7 of 14

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA.

CIVIL MINUTES - GENERAL

Case No.

CV 17-4642 FMQ (SSx)

Title

Byron Lee v. AT&T Services, Inc./Pacific Bell, et al.

Date

September 24, 2018

In determining whether a triable issue of material fact exists, the evidence must be

considered in the light most favorable to the nonmoving party. See Barlow v. Ground. 943 F.2d

1132, 1134 (9th Cir. 1991), cert, denied. 505 U.S. 1206, 112 S.Ct. 2995 (1992). However,

summary judgment cannot be avoided by relying solely on “conclusory allegations [in] an affidavit.”

Luian v. Nat’l Wildlife Fed’n. 497 U.S. 871, 888,110 S.Ct. 3177,3188 (19901: see also Matsushita

Elec. Indus. Co. v. Zenith Radio Corp.. 475 U.S. 574, 586, 106 S.Ct. 1348, 1356 (1986) (more

than a “metaphysical doubt” is required to establish a genuine issue of material fact). “The mere

existence of a scintilla of evidence in support of the plaintiffs position” is insufficient to survive

summary judgment; “there must be evidence on which the [fact finder] could reasonably find for

the plaintiff.” Anderson, 477 U.S. at 252, 106 S.Ct. at 2512.

DISCUSSION

STANDING.

Defendants assert that Lee does not have standing to pursue his claims, arguing that his

claims belong to the bankruptcy estate. (Dkt. 30-1, Defendants^] Memorandum of Points and

Authorities in Support of Motion for Summary Judgment or, in the Alternative, Summary

Adjudication (“Memo”) at 13-15). When a debtor declares bankruptcy, “all legal or equitable

interests of the debtor in property as of the commencement of the case” becomes property of the

estate. See 11 U.S.C. § 541(a)(1). A trustee serving as the representative of the bankruptcy

estate is the only proper party with standing to prosecute a cause of action that belongs to the

estate. See In re Eisen. 31 F.3d 1447,1451 n. 2 (9th Cir. 1994). A plaintiff-debtor does not have

standing to pursue a claim that belongs to the bankruptcy estate unless he can show that his

claims were: (1) exempt from the bankruptcy estate or (2) abandoned by the bankruptcy trustee.

See Rowland v. Novus Fin. Grp.. 949 F.Supp. 1447, 1453 (D. Haw. 1996).

Many courts, however, have allowed a plaintiff-debtor to proceed with his or her claim when

the underlying bankruptcy is based on Chapter 13 rather than Chapter 7. See, e.q.. Wilson \l

Dollar Gen. Corn.. 717 F.3d 337,343 (4th Cir. 20131: Smith v. Rockett. 522 F.3d 1080,1082 (10th

Cir.20081: Crosby v. Monroe Ctv.. 394 F.3d 1328, 1331 n. 2 (11th Cir. 20041: Cable v. Ivv Tech

State Coll.. 200 F.3d 467, 470 (7th Cir. 1999), overruled on other grounds by, Hill w Tanaerlini.

724 F.3d 965, 967 n.1 (7th Cir. 20131: Olickv. Parker & Parsley Petroleum Co.. 145 F.3d 513,515

(2d Cir. 19981: Maritime Elec. Co. v. United Jersey Bank. 959 F.2d 1194,1210 n. 2 (3d Cir.1991).

This is because “Chapter 13 .... provides a different framework. Under Chapter 13, the debtor

remains in possession of the property of the estate and cures his indebtedness, under the

supervision of the trustee, by way of regular payments to creditors from his earnings through a

court approved payment plan.” Wilson. 717 F.3d at 343-44 (citing 11 U.S.C. §§ 1306(b), 1322);

Olick. 145 F.3d at 516). Because a Chapter 13 debtor retains possession of his property, the

debtor ordinarily will have the right to sue in his or her own name. See Fed. R. Civ. P. 17(a)(1 )(G);

Wilson. 717 F.3d at 344. In contrast, Chapter 7 is a “much more radical solution,” as it requires

debtors to relinquish possession of their estate to the trustee for liquidation and distribution to

CV-90 (06/04)

CIVIL MINUTES - GENERAL

Page 8 of 14

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No.

CV 17-4842 FMO (SSx)

Title

Byron Lee v. AT&T Services, Inc./Pacific Bell, et al.

Date

September 24, 2018

creditors. See Wilson, 717 F.3d at 343 (quotation marks and citation omitted). Under Chapter 7,

“the trustee’s management of the estate - including causes of action that are part of the estate must necessarily be free from interference by the debtor.” Id.

Although the Ninth Circuit has not addressed whether a Chapter 13 debtor has standing

to pursue claims initiated after filing for bankruptcy, see Edwards, 2013 WL 3467215, at *9, the

court follows the overwhelming appellate authority allowing a debtor to do so. See Wilson. 717

F.3d at 343 (collecting cases). Thus, it is not fatal to Lee’s case that he did not disclose his claims

, to the bankruptcy court, because the causes of action in this case belong to him, not the

bankruptcy trustee.10 See 11 U.S.C. § 1306(b).

II.

LABOR MANAGEMENT RELATIONS ACT.

A.

Preemption.

The next issue is whether the Labor Management Relations Act (“LMRA”) preempts

plaintiffs claims. If the LMRA does not preempt any of plaintiffs claims, then the court lacks

subject matter jurisdiction over this action because plaintiff does not have a federal cause of

action. See Caterpillar Inc, v. Williams. 482 U.S. 386, 392, 107 S. Ct. 2425, 2429 (1987). “The

presence or absence of federal-question jurisdiction is governed by the ‘well-pleaded complaint

rule,’ which provides that federal jurisdiction exists only when a federal question is presented on

the face of the plaintiffs properly pleaded complaint.” Jd. at 392, 107 S.Ct. at 2429. The “wellpleaded complaint rule” makes the plaintiff the “master of the claim” and allows him to “avoid

federal jurisdiction by exclusive reliance on state law.” JcL It is settled law that a case generally

may not be removed to federal court on the basis of a federal defense, including a defense of

preemption. Jd,, 482 U.S. at 393, 107 S.Ct. at 2430.

However, the “complete preemption rule” applies when the “preemptive force of a statute

is so ‘extraordinary’ that it ‘converts an ordinary state common-law complaint into one stating a

federal claim for the purposes of the well-pleaded complaint rule.” Jd (quoting Metro. Life Ins. Co.

v. Taylor, 481 U.S. 58, 65,107 S.Ct. 1542,1547 (1987)). When complete preemption applies, a

defendant may remove a state claim to federal court. Beneficial Nat. Bank v. Anderson. 539 U.S.

1,8,123 S.Ct. 2058,2063 (2003). Complete preemption applies to claims arising out of § 301 of

10 Similarly, the court declines to find judicial estoppel because plaintiff failed to disclose his

claims to the bankruptcy court. See New Hampshire v. Maine. 532 U.S. 742,750,121 S.Ct. 1808,

1814 (2001). First, Lee’s position in this case is not clearly inconsistent with anything he

presented to the bankruptcy court. Second, Lee did not successfully persuade the bankruptcy

court of anything; in fact, the bankruptcy court dismissed his case. (See Dkt. 30-12, RJN, Exh.

I). Third, defendants have not provided any evidence showing that Lee would receive an unfair

advantage if he is allowed to proceed with this case.

CV-90 (06/04)

CIVIL MINUTES - GENERAL

Page 9 of 14

UNITED STATES DISTRICT COURT

CENTRAL.DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Date

Case No.

CV17-4642 FMO (SSx)

Title

Byron Lee v. AT&T Services, Inc./Pacific Bell, et al.

September 24, 2018

the LMRA. See Caterpillar. 482 U.S. at 394, 107 S.Ct. at 2430. “The preemptive force of § 301

is so powerful as to displace entirely any state cause of action for violation of contracts between

an employer and a labor organization.” Franchise Tax Bd. v. Constr. Laborers Vacation Tr., 463

U.S. 1,23,103 S.Ct. 2841,2853 (1983) (internal quotation marks, footnote, and citation omitted).

Defendants argue that complete preemption applies to plaintiffs entire action because all

of his claims relate to how defendants fired him in violation of his rights under the CBA. (See Dkt.

30-1, Memo at 17). Specifically, defendants argue that Lee’s breach of contract claim is

preempted by the LMRA because it is really a claim that Pacific Bell violated the CBA.11 Indeed,

Lee concedes that his breach of contract claim is really a claim that Pacific Bell breached its

obligations under the CBA. (See Dkt. 31-2, Lee Depo at 222 (“Q: So when you ... allege a claim

for breach of contract, do you mean that the breach of the obligations under that collective

bargaining agreement? A: Yes.”)). The LMRA preempts state-law claims that are substantially

dependent upon analysis of a collective bargaining agreement. Adkins v. Mireles, 526 F.3d 531,

539 (9th Cir. 2008). Here, the LMRA preempts Lee’s breach of contract claim because Lee is

alleging that Pacific Bell did not comply with its obligations under the CBA.

Next, defendants assert that Lee’s FEHA claim is preempted because Lee admits that the

CBA covers all disciplinary actions taken against him - specifically requiring him to utilize the

grievance process! (Dkt. 30-2, SUF at P29; Dkt. 30-1, Memo at 17). Defendants’ assertion is

unpersuasive because FEHA provides a free-standing claim independent of the CBA. See Cal.

Gov. Code §§ 12940, etseq.: Klausen v. Warner Bros. Television. 158 F. Supp. 3d 925,930 (C.D.

Cal. 2016) (“[T]he rights conferred by FEHA are defined and enforced under state law without

reference to the terms of any collective bargaining agreement.”) (internal quotation marks and

citation omitted). As such, it is not preempted by the LMRA.

Lee’s MED and NIED claims are also not preempted. Plaintiffs MED claim is based on his

allegation that Pacific Bell did not give him 30 days to correct any error relating to the suspension

of his driver’s license. (Dkt. 4-2, Complaint at If 33), while his NIED is based on Pacific Bell’s

failure to properly investigate whether his license was valid. (jcL U 45). NED and NIED claims are

generally preempted by the LMRA if a collective bargaining agreement specifically covers the

claims. See Humble V Boeing Co.. 305 F.3d 1004, 1013-15 (9th Cir. 2002) (stating that “if the

CBA specifically covers the conduct at issue, the claim will generally be preempted.... [whereas],

if the CBA does not ‘cover’ the allegedly extreme and outrageous conduct, the intentional infliction

claim will not [be] preempted[,]” and that same reasoning applies to NIED claims) (footnotes

omitted). Here, plaintiffs claims arise out of Pacific Bell’s alleged failure to comply with the

11 Although Lee is a non-signatory to the CBA, he has standing to allege that Pacific Bell

violated the CBA. See Milne Emps. Ass’n v. Sun Carriers. Inc., 960 F.2d 1401, 1407 (9th Cir.

1992), cert denied. 508 U.S. 959 (1993).

CV-90 (06/04)

CIVIL MINUTES - GENERAL

Page 10 of 14

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No.

CV 17-4642 FMO (SSx)

Date

Title

Byron Lee v. AT&T Services, Inc./Pacific Bell, et aL

September 24, 2018

Standards and Loss of Driver’s License Policy in that plaintiff alleges that the policies allowed him

to cure his suspended driver’s license within 30 days. (See Dkt. 4-2, Complaint at fflj 33 & 45).

But there is nothing in the CBA discussing these policies. (See, generally. Dkt. 32-6 - 33, Exh. U

CBA). Because Lee’s NED and NIED claims are not based on the CBA and do not require an

interpretation of the CBA, the claims are not preempted by the LMRA.

In short, since Lee’s breach of contract claim is preempted by the LMRA, the court has

subject matter jurisdiction over this action.12 See 29 U.S.C. § 185(a). Although Lee’s FEHA, NED,

and NIED claims are not preempted, the court has supplemental jurisdiction to consider the merits

of these claims. See 28 U.S.C. § 1367.

B.

Merits of LMRA Claim.

Before filling suit under the LMRA, Lee was required to have exhausted available grievance

procedures and arbitration remedies. See Allis-Chalmers Corp. v. Lueck. 471 U.S. 202, 220,105

S.Ct. 1904, 1915 (1985). “A rule that permit[s] an individual to sidestep available grievance

procedures would cause arbitration to lose most of its effectiveness, as well as eviscerate a central

tenet of federal labor-contract law under § 301 that it is the arbitrator, not the court, who has the

responsibility to interpret the labor contract in the first instance.” id (internal citation omitted).

Defendants argue that Lee’s LMRA claim fails because he did not exhausi his grievance

procedures before filing suit. (Dkt. 30-1, Memo, at 18-19). The court agrees. The CBA allows

unresolved grievances to be submitted to an arbitrator. (See Dkt. 30-2, SUF at P28 & P31; Dkt.

32-6, Exh. U, CBA at § 7.08). Although the arbitration provision is optional, (Dkt. 32-6, Exh. U,

CBA at § 7.08) (“Any grievance not resolved under Subsections 7.05A and 7.05B may be taken

to arbitration under the provisions of Section 7.10 or 7.15.”), a litigant must use available

arbitration proceedings to satisfy the exhaustion requirement. See Lueck. 471 U.S. at 204 n.1,

105 S.Ct. at 1908 n. 1 (“The use of the permissive ‘may’ is not sufficient to overcome the

presumption that parties are not free to avoid the contract’s arbitration procedures.”). Since Lee

did not submit his claim to arbitration, (Dkt. 30-2, SUF at P54), his LMRA claim is barred.

12 The court notes that even if plaintiffs claim was not preempted by the LMRA, the claim still

fails because the undisputed evidence establishes that plaintiffs license was suspended as of

September 2014, (Dkt. 31-11, DMV Records at ECF 918: see also Dkt. 31-2, Lee Depo at 157-58

(not disputing DMV records); Dkt. 32, Paniagua Decl. at 8; Dkt. 33-1, DMV Driver Record

Information), and that plaintiffs failure to report the suspension prior to the suspension becoming

effective violated the Standards and Driver’s License Policy. (See Dkt. 31-8, Standards at 14; Dkt.

32-4, Driver’s License Policy at 1).

CV-90 (06/04)

CIVIL MINUTES - GENERAL

Page 11 of 14

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVSL MINUTES - GENERAL

Case No

CV 17-4642 FMQ (SSx)

Date

Title

Byron Lee v. AT&T Services, lnc./Pacific Bell, et al.

September 24, 2018

Therefore, court grants defendants summary judgment on Lee’s LMRA claim.13 See Lueck. 471

U.S. at 220-21, 105 S.Ct: at 1915-16.III.

FEHA.

FEHA’s purpose is to “protect and safeguard the right and opportunity of all persons to

seek, obtain, and hold employment without discrimination or abridgment on account of race, color,

sex, national origin, and other enumerated characteristics.” Sheffield w L.A. Ctv. Dep’t of Soc.

Servs.. 109 Cal.App.4th 153, 160 (2003). Plaintiff, however, does not allege that he was

terminated for any discriminatory purpose. (See, generally. Dkt. 4-1, Complaint). Further, no

evidence has been produced suggesting or indicating such a purpose. (See, generally. Dkt. 30-2,

SUF; Dkt. 31-2, Lee Depo)

Although Lee’s complaint is not completely clear, it appears that he is alleging that

defendants wrongfully terminated him in violation of the public policy underlying the FEHA - not

that defendants violated the FEHA by firing him. (See Dkt. 4-2, Complaint at If 29; Dkt. 30-1,

Memo at 19-21). However, Lee has not identified a public policy that was violated by his

termination. (See, generally. Dkt. 4-2, Complaint at 29); see Keshe w CVS Pharmacy. Inc..

2016 WL 1367702, *4 (C.D. Cal. 2016) (“To recover in tort.for wrongful discharge in violation of

public policy, the plaintiff must show the employer violated a public policy affecting society at large

rather than a purely personal or proprietary interest of the plaintiff or employer. In addition, the

policy at issue must be substantial, fundamental, and grounded in a statutory or constitutional

provision.”) (internal quotation marks omitted) (quoting Holmes w Gen. Dynamics Corp.. 17

Cal.App.4th 1418, 1426 (1993)): Turnery. Anheuser-Busch, Inc.. 7 Cal. 4th 1238, 1256 (1994).

“Claims of wrongful termination in violation of public policy generally fall into one of four categories:

13 This determination moots Lee’s motion with respect to his breach of contract claim. (See

Dkt. 51, Memorandum of Points and Authorities in Support of Motion for Summary Judgment

Pursuant to Fed. R. Civ. P. 56 (“Plf. Memo.”) at 4) (“Plaintiff summary judgment motion is based

on breach of contract and punitive damage (abusive investigation.)”). To the extent plaintiff

contends that the LMRA claim should survive because Kennedy and defendants conspired to have

him fired, (see, e.g.. id. at 4; Dkt. 52, Declaration in Support of Motion for Summary Judgment

Pursuant to Fed. R. Civ. P. 56 (“Lee MSJ Decl.”) at 2-3); Dkt. 60, Plaintiff’s] Reply to Defendants^’]

Opposition to Plaintiff's] Motion for Summary Judgment (“Plf. Reply”) at 3), such contention is

without merit as it is unsupported by any facts or evidence. (See, generally. Dkt. 50, Plf. Memo;

Dkt. 52, Lee MSJ Dec!.; Dkt. 60, Plf. Reply). The court agrees with defendants’ assessment that

the “sum total of Plaintiffs Motion is a conjured conspiracy theory, summarized in the following

statement: ‘corruption, collusion and conspiracy between Local 9504 President Rick Kennedy and

AT&T Manager Lee Vagatai, Jorge Moreno.’” (Dkt. 57, Defendants AT&T Services, Inc. and

Pacific Bell Telephone Company’s Opposition to Plaintiffs Motion for Summary Judgment (“Def.

Opp.”) at 7).

CV-90 (06/04)

CIVIL MINUTES - GENERAL

Page 12 of 14

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Date

Case No.

CV 17-4642 FMO (SSx)

Title.

Byron Lee v. AT&T Services, Inc./Pacific Bell, et al.

September 24, 2018

the employee was terminated because (1) he refused to violate a statute; (2) he performed a

statutory obligation; (3) he exercised a constitutional or statutory right or privilege; or (4) he

reported a statutory violation for the public’s benefit.” Keshe. 2016 WL 1367702, at *4. Here, the

evidence is undisputed that defendants terminated Lee for operating a company vehicle without

a valid driver’s license, in violation of the Standards, Driver’s License Policy, and state law. (See

Dkt. 31-2, Lee Depo at 96-97 & 121-22; Dkt. 31-8, Standards at 14; Dkt. 32-4, Driver’s License

Policy at 1; Dkt. 33-1, DMV Driver Record Information; Dkt. 32, Paniagua Decl. atfflj 10-12; see

also Dkt. 31-11, DMV Records at ECF 91814). Thus, the court finds there is no genuine issue of

material fact regarding plaintiffs FEHA claim.

'

IV.

IIED AND NIED CLAIMS.

The elements of an IIED claim are: “(1) extreme and outrageous conduct by the defendant

with the intention of causing, or reckless disregard of the probability of causing, emotional distress;

(2) the plaintiffs suffering severe or extreme emotional distress; and (3) actual and proximate

causation of the emotional distress by the defendant’s outrageous conduct.” Miller \l Fortune

Commercial Corp.. 15 Cal.App.5th 214, 228-29 (2017) (internal quotation marks and citation,

omitted). The outrageous conduct “must be so extreme as to exceed all bounds of that usually

tolerated in a civilized society.” Id “The negligent causing of emotional distress is not an

independent tort, but the tort of negligence. The traditional elements of duty, breach of duty,

causation, and damages apply. Whether a defendant owes a duty of care is a question of law.”

Spates v. Dameron Hosp. Ass’n. 114 Cal.App.4th 208, 213 (2003) (internal quotation marks,

alterations, and emphasis omitted).

Here, defendants have put forth undisputed evidence showing that Lee was required to

notify the company before his license was suspended to be eligible for the 30-day grace period

and that Lee was fired for not following this requirement, ul, driving a company vehicle with a

suspended license. (See Dkt. 31-8, Standards at 14; Dkt. 31-7, Acknowledgments; Dkt. 32-4,

Driver’s License Policy at 1; Dkt. 31-4, Acknowledgment re Company Vehicle Driving; Dkt. 31-15,

Acknowledgment re Driver’s License Policy). Lee has not provided any evidence showing

defendants misrepresented their policy. Under the circumstances, no reasonable jury could

conclude that Pacific Bell’s decision to fire Lee was “extreme and outrageous.” See YUrick v^

Superior Court. 209 Cal.App.3d 1116, 1129 (1989) (“Depending on the idiosyncracies of the

plaintiff, offensive conduct which falls along the remainder of the spectrum may be irritating,

insulting or even distressing but it is not actionable and must simply be endured without resort to

legal redress.”). The court finds there is no genuine issue of material fact regarding Lee’s IIED

, claim.

14 DMV Records indicate that the DMV mailed a notice to plaintiff in August 2014, notifying him

of the impending suspension of his license. (See Dkt. 31-11, DMV Records at ECF 918).

CV-90 (06/04)

CIVIL MINUTES - GENERAL

Page 13 of 14

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Date

Case No.

CV 17-4642 FMO (SSx)

Title

Byron Lee v. AT&T Services, Inc./Pacific Bell, et al.

September 24, 2018

Finally, Lee argues that Pacific Bell is liable for NIED for firing him before conducting a

thorough investigation into the status of his license. Assuming Pacific Bell had a duty not to fire

Lee before conducting a thorough investigation into the status of his license, the undisputed

evidence shows that defendants did not breach this duty. Pacific Bell inquired into the status of

Lee’s driver’s license after they became suspicious of his attempts to avoid an automobile audit.

The undisputed evidence shows that Pacific Bell contacted the DMV multiple times, held multiple

meetings with Lee’s supervisors to determine the status of his license, and engaged in a union

grievance procedure before firing him for operating a company vehicle without a license. In short,

the court finds that there is no genuine issue of material fact regarding Lee’s NIED claim.15

This Order is not intended for publication. Nor is it intended to be included in or

submitted to any online service such as Westlaw or Lexis.

CONCLUSION

Based on the foregoing, IT IS ORDERED THAT:

1. Defendants’ Motion for Summary Judgment (Document No. 30) is granted.

2. Plaintiffs Motion for Summary Judgment (Document No. 50) is denied as moot.

00

00

Initials of Preparer

vdr

15 Because the court has granted summary judgment to defendants on all of Lee’s claims, the

court does not consider defendants’ remaining arguments. Moreover, given that none of plaintiffs

claims survive defendants’ Motion, plaintiffs claim for punitive damages is moot, and thus his

summary judgment motion related to this remedy is moot.

CV-90 (06/04)

CIVIL MINUTES - GENERAL

Page 14 of 14

UNITED STATES'COURT OF APPEALS

FOR THE NINTH CIRCUIT

JUL 2 2020

MOLLY C. DWYER; CLERK

U.S. COURT OF APPEALS

No.

BYRON LEE,

Plaintiff-Appellant,

v.

AT&T SERVICES, INC, a Delaware

Corporation; et al.

18-56415

D.C. No. 2:17-cv-04642-FMO-SS

Central District of California,

Los Angeles

ORDER

Defendants-Appellees,

and

JAIME V. BENAVIDES, individually and

as agent/employee/supervisor of AT&T

Services, Inc./Pacific Bell; LEE VAGATAI,

individually and as

agent/employee/supervisor of AT&T

Services/Pacific Bell,

Defendants.

Before:

MURGUIA, CHRISTEN, and BADE, Circuit Judges.

The panel has voted to deny the petition for panel rehearing.

The full court has been advised of the petition for rehearing en banc and no

judge has requested a vote on whether to rehear the matter en banc. See Fed. R.

App. P. 35.

Lee’s petition for panel rehearing and petition for rehearing en banc (Docket

Entry No. 24) are denied.

No further filings will be entertained in this closed case.

2

18-56415

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FEB 27 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

No.

BYRON LEE,

Plaintiff-Appellant,

• v.

AT&T SERVICES, INC., a Delaware

Corporation; et al.,

18-56415

D.C. No.

2:17-cv-04642-FMO-SS

Central District of California,

Los Angeles

ORDER

Defendants-Appellees,

and

JAIME V. BENAVIDES, individually and

as agent/employee/supervisor of AT&T

Services, Inc./Pacific Bell and LEE

VAGATAI, individually and as

agent/employee/supervicor of AT&T

Services/Pacific Bell,

Defendants.

Before: CANBY and GRABER, Circuit Judges

A review of the district court docket reflects that on October 25, 2018, the

district court granted appellant leave to proceed in forma pauperis on appeal.

Appellant’s motion to proceed in forma pauperis on appeal (Docket Entry No. 2) is

therefore unnecessary,

AC/MOATT

Appellant’s motion for appointment of counsel (Docket Entry No. 5) is

denied. No motions for reconsideration, clarification, or modification of this

denial shall be filed or entertained.

. The opening brief is due April 29, 2019. The answering brief is due May

29, 2019. The optional reply brief is due within 21 days after service of the

answering brief.

Because appellant is. proceeding without counsel, the excerpts of record

requirement is waived. See 9th Cir. R. 30-1.2. The supplemental excerpts of

record are limited to the district court docket sheet, the notice of appeal, the

judgment or order appealed from, and any specific portions of the record cited in

the answering brief. See 9th Cir. R. 30-1.7.

AC/MOATT

2