Opinion
No. C 03-01346 WHA.
May 11, 2004
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF'S MOTION FOR LEAVE TO AMEND
INTRODUCTION
Pro se plaintiff Isaac A. Baidoo brings this action against his former employer, defendant Tidewater Marine Western ("Tidewater"), alleging he was wrongfully terminated based on a purported disability and discriminated against based on his race. This order addresses two motions. Tidewater has moved for summary judgment, and Mr. Baidoo has moved for leave to amend his complaint to add several new claims. This order finds no triable issue of material fact under FRCP 56(e) and hence GRANTS Tidewater's motion for summary judgment. This order further DENIES the motion for leave to amend.
STATEMENT
1. PROCEDURAL HISTORY.
Should there be any appeal in this case, this order will first set forth the procedural history of the case for the benefit of the court of appeals. Mr. Baidoo filed a charge with the EEOC on February 4, 2003, based on the incidents recounted below (Oborne Decl. Exh. B). A right to sue letter issued on February 7 ( ibid.). Mr. Baidoo filed this action on March 28 alleging one claim under the Americans with Disabilities Act and a second under Title VII.
A case management conference was held and a case management order issued on July 3. Thereafter, very little happened in this case until November 2003, when Mr. Baidoo failed to appear for his deposition. Tidewater's attorney, Scott W. Oborne, notified the Court of this development. On November 5, the Court ordered Mr. Baidoo to appear on November 13 to show cause why his case should not be dismissed for failure to appear at his deposition. Mr. Baidoo did not appear as ordered. On November 13, the Court issued a further order to show cause wherein Mr. Baidoo was ordered to appear December 4. This time, he was ordered to show cause regarding three issues: (i) why his case should not be dismissed for failure to appear at his deposition; (ii) why his case should not be dismissed for failure to appear at the initial order-to-show-cause hearing; and (iii) why he should not be held to pay Mr. Oborne's expenses. The order to show cause issued because it seemed that Mr. Baidoo had abandoned his responsibility to prosecute his case diligently and had caused Tidewater to incur attorney's fees and costs unnecessarily. The matter was continued to December 11, when the Court learned that Mr. Baidoo was at sea and would not return in time for the December 4 hearing.
On December 11, Mr. Baidoo and Mr. Oborne appeared. Mr. Baidoo tried to explain his overall lack of diligence in this case, but without much specificity or clarity. There was a vague reference to an eviction from his apartment. No explanation, however, was given as to why he failed to appear at his deposition. Following the hearing, the Court, by written order on December 12, ordered Mr. Baidoo to sit for his deposition at a specified location, date and time. The Court further ordered Mr. Baidoo to pay Mr. Oborne $100 for the time and effort he spent in moving the case along. The written order also addressed several recent filings by Mr. Baidoo, i.e., another application to proceed in forma pauperis.
Mr. Baidoo failed to give notice to the Court or opposing counsel when he changed his address. He has not informed the Court of any further change and apparently has been receiving service at the address of record since it was last updated in December 2003.
Tidewater took Mr. Baidoo's deposition as ordered, apparently without incident, on January 15, 2004.
Before the conclusion of that hearing, Mr. Baidoo was reminded of his responsibilities as a party to this action. Mr. Baidoo was provided various pro se litigant materials designed to assist plaintiffs proceeding in pro per in federal court. These documents explain, for example, a party's discovery obligations. More importantly, Mr. Baidoo was given notice of his responsibilities on summary judgment, for which he was told Tidewater would likely move. Mr. Baidoo was told that he could lose his case on summary judgment if he failed to oppose the motion properly. He was advised that in opposition to a motion for summary judgment he must go beyond the allegations of his complaint and present evidence to raise a triable issue of material fact. These admonitions were also contained in the order that followed the hearing.
On April 1, 2004, the deadline for filing dispositive motions under the case management order, Tidewater moved for summary judgment as expected. Mr. Baidoo did not file an opposition until April 23, eight days after it was due. Tidewater submitted a reply brief in short order on April 28. Both Mr. Baidoo and Mr. Oborne appeared at the hearing on the motion on May 6, 2004.
With his opposition to Tidewater's motion for summary judgment, Mr. Baidoo submitted a motion seeking leave to amend his complaint. The proposed first amended complaint would add four claims, all arising from Tidewater's termination of Mr. Baidoo's employment, all grounded in state and common law.
2. MR. BAIDOO'S CLAIMS.
Turning now to the record, this order will set forth the facts underlying Mr. Baidoo's two claims. The first claim is that Tidewater wrongfully terminated his employment in August 2002 based on his high blood pressure, which he asserts to be a disability under the ADA. The second claim, under Title VII, is that Tidewater discriminated against him, because he is an African American, by wrongfully terminating him and/or subjecting him to a hostile work environment. The relevant facts are as follows.
Mr. Baidoo worked for Tidewater from about 1992 until August 2002 (Baidoo Dep. 34, 94). During the period relevant to this lawsuit, Mr. Baidoo worked aboard a supply vessel called the Sea Tide. The ship, based in Port Hueneme, California, supplied oil platforms off the coast of Southern California ( id. at 21, 106). Mr. Baidoo worked five "hitches," or week-long stints, out of every six ( id. at 21-22, 104-06, 110). At the time of his deposition, he was working forty hours per week on a tug boat in the San Francisco Bay ( id. at 69-79).
Mr. Baidoo asserts one incident of racial discrimination. In May 1999, Mr. Baidoo was watching television aboard the ship when coworker Randy Rubles approached him and said "You, you smell" ( id. at 38-39, 258-64). Mr. Baidoo informed his captain and, when no action was taken, called the "hotline" and reported the incident to Tidewater's management ( id. at 34-35). Don Sutton, Tidewater's Operations Manager, spoke with Mr. Baidoo about the incident several days later ( id. at 38). Mr. Baidoo conceded at deposition that his entire race-or-national-origin claim is entirely based on this single comment ( id. at 258-64 Exh. 7; Baidoo Int. Ans. Nos. 1-4). In his opposition brief, however, Mr. Baidoo embellished his race-based claim by asserting that he "had endured demeaning racial slurs," that coworkers "directed racial epithets at him" and that "defendant's employee . . . [directed] racial slurs" at him (Opp. 2, 4-5). Mr. Baidoo's declaration states that he "had been subjected to all manner of demeaning racial slurs by defendant's employees" (Baidoo Decl. ¶ 20).
As for Mr. Baidoo's purported disability, he was diagnosed with mild hypertension sometime in 1998 ( id. ¶ 5). For at least a year preceding his termination he took the prescription drugs Adalat and Ziac to control the disease (Baidoo Dep. 145). These drugs controlled his blood pressure and caused no side effects ( id. at 149). As a result, his mild hypertension has neither caused him significant problems nor negatively affected his daily life ( id. at 149, 209-11). He regularly filled his prescriptions at a pharmacy near Port Hueneme ( id. at 107-09). At deposition, Mr. Baidoo admitted he only had to ask permission to leave port to fill his prescriptions ( id. at 153). Mr. Baidoo, however, ran out of his medications at sea "two or three" times ( id. at 152-53; Baidoo Decl. ¶ 7). Tidewater maintains that the decision to terminate Baidoo had nothing to do with his hypertension (Sutton Decl. ¶ 5; Montgomery Decl. ¶ 4).
On August 18, 2002, Mr. Baidoo had run out of one of his two prescription hypertension medications aboard the Sea Tide and was relying on aspirin, per his doctor's orders (Baidoo Dep. 155; Baidoo Decl. ¶ 7). He felt ill and then passed out aboard the ship (Baidoo Dep. 180-81, 193-95). Mr. Baidoo was treated for food poisoning. He fully recovered the next day ( id. at 194-95, 197). Because the Sea Tide had already left port by the time he returned on August 19, Sutton arranged accommodations for Mr. Baidoo at La Quinta Inn for the night ( id. at 196-98). It was understood that Tidewater would pay the bill, and no one ever told Mr. Baidoo he was not permitted to make telephone calls from his hotel room ( id. at 222; Baidoo Decl. ¶¶ 13, 17).
Mr. Baidoo made several telephone calls from his hotel room that night, though he knew they were not free and he never checked the rates (Baidoo Dep. 223-24). He called his daughter in Oakland, his cousin in New York, his fiancee in Virginia, his friend in Australia and other members of his family ( id. at 56, 220-21, 226, 235-36, 240, 242-43 Exh. 6-7; Baidoo Int. Ans. Nos. 13-23). All in all, Mr. Baidoo made more than six and a half hours of telephone calls costing $619 during his overnight stay at La Quinta Inn (Baidoo Dep. Exh. 6). Upon checking out on August 20, Baidoo reviewed and signed the hotel bill, which included the telephone charges ( id. at 220-21, 244-47). He did not tell anyone at Tidewater about the charges ( id. at 248-49). Nevertheless, Mr. Baidoo maintains he intended to reimburse Tidewater for the telephone charges (Baidoo Decl. ¶¶ 14-15).
Sutton first learned of the telephone charges and of Mr. Baidoo's failure to report them to Tidewater on August 28 (Sutton Decl. ¶ 2). Sutton summoned Mr. Baidoo to his office that day and questioned him about the charges, referring specifically to a copy of the bill from La Quinta Inn (Baidoo Dep. 24-25; Sutton Decl. ¶ 3). At the conclusion of that meeting, Sutton told Mr. Baidoo to call Mark Montgomery, the Assistant Operations Manager, the next day (Baidoo Dep. 26-28, 51, 251-52; Sutton Decl. ¶ 3). Sutton and Montgomery spoke with each other that evening and decided to terminate Mr. Baidoo's employment (Sutton Decl. ¶ 4; Montgomery Decl. ¶ 3). The following day when Mr. Baidoo called, Montgomery informed him that Tidewater had terminated his employment for incurring the telephone charges and failing to report them (Baidoo Dep. 18, 26-28, 51, 251-52; Montgomery Decl. ¶ 3). Tidewater maintains that Mr. Baidoo was fired because he charged $619 to Tidewater without informing anyone at the company (Sutton Decl. ¶ 4; Montgomery Decl. ¶ 2).
This order notes that Mr. Baidoo argued in his opposition brief that the reason he was fired was not explained to him at the time (Opp. 4). That directly contradicts his deposition testimony. "A party cannot create a genuine issue of material fact to survive summary judgment by contradicting his earlier version of the facts." Block v. City of Los Angeles, 253 F.3d 410, 419 n. 2 (9th Cir. 2001). As noted elsewhere in this order, this is not the only discrepancy between Mr. Baidoo's deposition testimony and recent declaration. This order, therefore, finds Mr. Baidoo's declaration to be a sham affidavit and, accordingly, disregards it.
Shortly thereafter, Mr. Baidoo hired an attorney and objected to his termination (Baidoo Dep. 15-16). Tidewater offered Mr. Baidoo his job back about two months after firing him, but Mr. Baidoo refused ( id. at 15-16, 28-29).
ANALYSIS
1. LEGAL STANDARD ON SUMMARY JUDGMENT.
To defeat a motion for summary judgment, the opposing party must set forth specific facts showing there is a genuine issue of material fact in dispute. FRCP 56(e). A dispute over a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Absent such a factual showing, "the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
In opposing summary judgment, a plaintiff is not entitled to rely on the allegations of his complaint. FRCP 56(e). "When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or otherwise as provided in this rule, must set forth specific facts [that would be admissible as evidence] showing that there is a genuine issue for trial." Ibid. Furthermore, "a party cannot manufacture a genuine issue of material fact merely by making assertions in its legal memoranda." S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines) v. Walter Kidde Co., Inc., 690 F.2d 1235, 1238 (9th Cir. 1982).
2. MR. BAIDOO'S ADA CLAIM CANNOT SURVIVE SUMMARY JUDGMENT.
Mr. Baidoo claims that Tidewater wrongfully terminated him in violation of the ADA based on his hypertension, which he purports to be a disability within the meaning of the statute. This claim cannot withstand summary judgment. Mr. Baidoo is not disabled under the statute because he successfully controls his hypertension with medication.
To invoke the ADA, Mr. Baidoo must first demonstrate that he is disabled within the meaning of the statute by showing a physical or mental impairment that substantially limits a major life activity, a record of such an impairment, or that his employer regarded him as having such an impairment. Thompson v. Holy Family Hosp., 121 F.3d 537, 539 (9th Cir. 1997); 42 U.S.C. § 12102(2). The Supreme Court has established that the effects of mitigating measures must be considered in determining whether a person is substantially limited in a major life activity. Sutton v. United Air Lines, Inc., 527 U.S. 471, 482 (1999). In Sutton, the Supreme Court held that the ADA requires a plaintiff to "be presently — not potentially or hypothetically — substantially limited." Ibid. Plainly stated, a "person whose physical . . . impairment is corrected by medication . . . does not have an impairment that presently substantially limits a major life activity." Id. at 482-83 (internal quotations omitted). This standard set forth in Sutton applies to hypertension controlled by medication. See Murphy v. United Parcel Serv., Inc., 527 U.S. 516, 521 (1999).
Here, Mr. Baidoo admits that his medication effectively controls his hypertension without causing any harmful side effects (Baidoo Dep. 149, 209-11). Beyond purported problems filling his prescriptions, Mr. Baidoo's mild hypertension neither causes him significant difficulties nor adversely affects his daily life ( ibid.). Mr. Baidoo offers no facts in opposition to summary judgment showing how his hypertension substantially affects his ability to work. In fact, he admitted at deposition, in his filings here on summary judgment and at the hearing that he is essentially unaffected. In his declaration, Mr. Baidoo asserts in conclusory fashion that he "was discharged because of [his] hypertension" (Baidoo Decl. ¶ 18). In the face of Mr. Baidoo's own admissions, this naked assertion is insufficient under FRCP 56(e) to raise a triable issue of material fact on the issue.
This order notes that Mr. Baidoo asserted for the first time at deposition that Tidewater violated the ADA by failing to make a reasonable accommodation for his purported disability. Even if this allegation was sufficient to state a claim under FRCP 7-8, which it is not, this order's finding that Mr. Baidoo is not disabled within the meaning of the ADA is dispositive of any potential reasonable-accommodations claim. 42 U.S.C. § 12112(b)(5)(A) (requiring covered entities to provide reasonable accommodations only to "an otherwise qualified individual with a disability"). Furthermore, Mr. Baidoo has not offered any evidence that he ever requested a reasonable accommodation, and Tidewater had no duty to provide an accommodation absent a request. See Brown v. Lucky Stores, Inc., 246 F.3d 1182, 1188 (9th Cir. 2001).
Considering the record in his favor, Mr. Baidoo might be claiming that he is substantially limited because of his occasional trouble acquiring his prescription medications. However, for "an impairment to substantially limit one's ability to work, it must not merely prevent one from working at a particular job; it must prevent one from working at a class of jobs or a broad range of jobs in various classes." Sutton, 527 U.S. at 491-92; Holihan v. Lucky Stores, Inc., 87 F.3d 362, 366 (9th Cir. 1996). At the time of his deposition, Mr. Baidoo worked full time on a tug boat. He has not presented any evidence to show that his trouble acquiring his medications renders him substantially limited in his ability to work as a seaman. Hence, Mr. Baidoo cannot base his ADA claim on that theory.
It is not clear that he alleges such a theory, but Mr. Baidoo has not shown that Tidewater "regarded" him as disabled under the ADA. Tidewater concedes it knew Mr. Baidoo suffered from hypertension. But Mr. Baidoo does not allege, and the record does not support, the theory that Tidewater fired him because it "regarded" him as disabled. Sutton and Montgomery stated that they frequently witnessed Mr. Baidoo performing strenuous tasks, that they had never noticed his hypertension restricting his activity, and that he never told them his hypertension caused him trouble (Sutton Decl. ¶ 5; Montgomery Decl. ¶ 4).
For the foregoing reasons, Mr. Baidoo has not raised any triable issue of material fact as to any disability claim under the ADA. Hence, this order GRANTS Tidewater's motion for summary judgment as to Mr. Baidoo's ADA claim.
3. MR. BAIDOO'S TITLE VII CLAIM CANNOT SURVIVE SUMMARY JUDGMENT.
Mr. Baidoo also claims that Tidewater wrongfully terminated his employment in violation of Title VII because he is an African American. This race-based claim ultimately fails, however, because Mr. Baidoo has failed to rebut the legitimate, nondiscriminatory reason Tidewater has proffered for terminating his employment. Also, Mr. Baidoo's complaint might be read to assert a claim for a hostile workplace environment. That claim is groundless because, as this order shall explain more fully below, it is both time barred and insufficiently supported on this record.
It is unclear on this record whether Mr. Baidoo asserts a claim under California's Fair Employment and Housing Act in addition to Title VII. Nevertheless, because Title VII and FEHA "operate under the same guiding principles," courts commonly analyze an employee's claims of discrimination brought under both statutes together. Brooks v. City of San Mateo, 229 F.3d 917, 923 (9th Cir. 1998); Beyda v. City of Los Angeles, 65 Cal.App.4th 511, 517 (1998). As the analysis for both is identical, this order disposes of a claim under either statute.
A. Wrongful Termination.
In a disparate-treatment, race-discrimination case such as this one, the employee bears the initial burden of proving a prima facie case of intentional discrimination. Actual proof of discrimination, however, is not required — the employee need only offer evidence that gives rise to an inference of unlawful discrimination. Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir. 1994). The employee can meet this burden by showing: (i) he is a member of a protected class; (ii) he was qualified for the position he sought or was performing competently in the position he held; (iii) he suffered an adverse employment action; and (iv) the adverse employment action occurred under circumstances suggesting a discriminatory motive. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Guz v. Bechtel Nat'l, Inc., 24 Cal.4th 317, 355 (2000). Although it is by no means certain on this record, this order will assume that Mr. Baidoo has met his burden and made a prima facie showing of race discrimination.
Under both Title VII and FEHA, once an employee has established a prima facie case of discrimination, the burden shifts to the employer to articulate some legitimate, nondiscriminatory reason for the challenged action. Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1062 (9th Cir. 2002); Flait v. N. Am. Watch Corp., 3 Cal.App.4th 467, 479 (1992). If the employer provides such a legitimate, nondiscriminatory reason, the burden returns to the employee to present "specific and substantial" evidence that the employer's proffered reason is pretextual. The employee may do so in either of two ways. He may do so directly by persuading the court that a discriminatory reason more likely motivated the employer. Chuang v. Univ. of California Davis, 225 F.3d 1115, 1123 (9th Cir. 2000). Alternatively, he may indirectly show that the employer's proffered explanation is "unworthy of credence." Ibid. Throughout this burden-shifting analysis, the ultimate burden of persuading the trier of fact that the employer intentionally discriminated against the employee remains with the employee. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981).
Here, Tidewater contends that Mr. Baidoo was fired because he incurred $619 in telephone charges on the company's bill during his overnight stay at La Quinta Inn from August 19 to August 20, 2002. Sutton and Montgomery, who managed operations for Tidewater and who together made the decision to terminate Mr. Baidoo's employment, submitted sworn declarations. Each stated that the decision to terminate Mr. Baidoo was "based on his excessive phone bill and on his decision to withhold the information from Company management" (Sutton Decl. ¶ 3; Montgomery Decl. ¶ 4). Furthermore, the decision to terminate Mr. Baidoo "had no relationship to his race [or] national origin" (Sutton Decl. ¶ 5; Montgomery Decl. ¶ 4). Sutton first discovered the telephone charges eight days after Mr. Baidoo checked out of La Quinta Inn (Sutton Decl. ¶ 2). Sutton also learned that day that Mr. Baidoo had not told him or Montgomery about the charges ( ibid.). In their experience, Sutton and Montgomery had never seen a Tidewater employee accumulate such a large personal telephone bill (Sutton Decl. ¶ 2; Montgomery Decl. ¶ 3). This order finds that Tidewater's showing sufficiently articulates a legitimate, nondiscriminatory basis for terminating Mr. Baidoo's employment.
Notwithstanding the foregoing, plaintiff maintains the reason was false. This order rejects Mr. Baidoo's challenge for two reasons. First, he has failed to show that Tidewater did not honestly believe the telephone charges and Mr. Baidoo's failure to report them were the true reasons for the termination decision. Second, even assuming that he can show defendants' proffered justification was pretextual, this order finds that no reasonable jury could conclude that Tidewater's conduct was motivated by race discrimination.
In judging whether Tidewater's proffered justification was "false," it is not important whether it was objectively false (e.g., whether Mr. Baidoo actually intended to repay Tidewater for his telephone charges). Villiarimo, 281 F.3d at 1063. Rather, courts "only require that an employer honestly believed its reason for its actions, even if its reason is 'foolish or trivial or even baseless.'" Ibid. (citation omitted). The same standard applies under California law. See, e.g., Cotran v. Rollins Hudig Hall Int'l, Inc., 17 Cal.4th 93, 108-09 (1998) (holding that the critical question is not whether plaintiff in fact sexually harassed employees, but whether at the time the decision to terminate his employment was made, defendants, acting in good faith and following an investigation that was appropriate under the circumstances, had reasonable grounds for believing plaintiff had done so).
At bottom, Mr. Baidoo's only evidence of pretext is his personal opinion that it was unreasonable for Tidewater to fire him for incurring the telephone charges and failing to report them. He asserts that throughout his ten-year tenure at Tidewater he was a responsible, satisfactory employee and that he received "commendations, raises and promotions" (Baidoo Decl. ¶¶ 2-4). According to Mr. Baidoo, Tidewater neither forbade him from placing any telephone calls from the hotel nor requested he reimburse the company for the telephone charges he incurred ( id. ¶¶ 13-14, 16-17). He states Tidewater did not inform his family of his "ordeal" after he was discharged from the hospital ( id. ¶ 12; Baidoo Dep. 18). Mr. Baidoo admits he called his "family and loved ones to share with them what had happened" and to "obtain emotional support from them" (Baidoo Decl. ¶ 11). Mr. Baidoo attests that "[Tidewater] did not discharge me from my employment because I made telephone calls" ( id. ¶ 18).
Even if this order had not already found Mr. Baidoo's declaration containing these assertions to be a sham declaration insufficient to raise a triable issue of fact, these statements would not afford Mr. Baidoo any relief. Sutton and Montgomery could have reasonably concluded from the facts before them at the time they made the decision to terminate Mr. Baidoo that he had intended to deceive Tidewater. Mr. Baidoo only suggested he was willing to repay Tidewater after Sutton discovered and confronted him with the charges. Of course, it might also have been a reasonable business decision to give Mr. Baidoo a second chance. The Court will not substitute its judgment for Tidewater's as to this business decision. There is no evidence in the record that Sutton and Montgomery did not honestly believe the reason proffered for his termination. On this record, Mr. Baidoo has not presented "specific and substantial" evidence that Tidewater's legitimate, nondiscriminatory reason for terminating his employment was pretextual or false. This order concludes it is more likely that the $619 telephone bill, and Mr. Baidoo's failure to report it, motivated the termination decision than Mr. Baidoo's race-or-nation origin. This order further finds that Mr. Baidoo has not shown that Tidewater's stated reason is "unworthy of credence." Hence, Mr. Baidoo's Title VII claim cannot survive.
* * *
There is another reason, however, why Mr. Baidoo cannot prevail on his race-or-national-origin claim. It is true that an employee's prima facie showing of discrimination, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 148 (2000). Such a showing by an employee, however, will not always be adequate to sustain a finding of liability on the part of the employer. Ibid. Assuming an employee has established a prima facie case and set forth sufficient evidence to reject the employer's explanation, there are still instances when "no rational factfinder could conclude that the action was discriminatory." Ibid. For example, an employer would be entitled to judgment as a matter of law if the record "conclusively revealed some other, nondiscriminatory reason for the employer's decision." Ibid. That is the case here.
Viewing the record in Mr. Baidoo's favor, he can only point to two facts supporting his race-discrimination claim. First, in May 1999 (three and a half years before Mr. Baidoo's termination), a coworker told Mr. Baidoo "You, you smell" (Baidoo Dep. 39). Mr. Baidoo, as noted above, reported this incident to the ship's captain and then to management. Second, Mr. Baidoo's employment was terminated in August 2002. On the other hand, Tidewater offers a legitimate, nondiscriminatory reason for terminating him supported by a substantial factual showing. Against this record, no reasonable jury could find Tidewater's decision to fire Mr. Baidoo was motivated by his race-or-national origin. And Mr. Baidoo cannot seriously press the matter. This order finds that no reasonable factfinder could find for Mr. Baidoo on his claim that he was wrongfully terminated based on his race. Hence, summary judgment is proper.
Indeed, given the scant evidence of race discrimination, Mr. Baidoo suggested that he was fired for complaining about the May 1999 comment (Baidoo Dep. 35; Baidoo Decl. ¶¶ 18-19; Opp. 2, 4-5). If a retaliatory-discharge claim had been properly raised, which it was not, and if Mr. Baidoo had established a prima facie case, which he has not, it would still fail. A retaliatory-discharge claim under Title VII is subject to the burden-shifting scheme describe above. See Villiarimo, 281 F.3d at 1064. As discussed, Mr. Baidoo has not rebutted the legitimate, nondiscriminatory reason that Tidewater has proffered for his termination.
B. Hostile Work Environment.
Mr. Baidoo's race-or-national-origin claim under Title VII might be read to assert he was subjected to a hostile work environment. Any such claim must fail for at least three reasons. First, it is time barred. Second, Mr. Baidoo has not shown any remark was racially motivated. Third, a hostile work environment cannot have arisen solely from the May 1999 comment.
A Title VII plaintiff must file a charge of discrimination with the EEOC, at the absolute latest, within 300 days "afer the alleged unlawful employment practice occurred." Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 105 (2002); 42 U.S.C. § 2000e-5(e)(1). Mr. Baidoo admitted at deposition that the sole incident of alleged racial discrimination supporting his claim occurred in May 1999 (Baidoo Dep. 258-64). Inexplicably, he waited almost four years until February 4, 2003, to file a charge with the EEOC (Oborne Decl. Exh. B). Clearly, any hostile work environment claim is time barred. It is true that a "charge alleging a hostile work environment claim, however, will not be time barred so long as all acts which constitute the claim are part of the same unlawful employment practice and at least one act falls within the time period." Nat'l R.R. Passenger Corp., 536 U.S. at 122. Here, however, Mr. Baidoo has not alleged any additional discriminatory acts supporting a hostile work environment claim that occurred within the statute-of-limitations period. He has only alleged the May 1999 comment. His recent declaration states that "prior to this incident" he was subjected to "all manner of demeaning racial slurs" at work. It is unclear whether "this incident" refers to the comment in May 1999 or his termination in August 2002. Regardless, this order finds that declaration to be a sham affidavit. See Block, 253 F.3d at 419 n. 2. Its inconsistent statements do not give rise to a triable issue of material fact. Furthermore, there is no evidence in the record that the comment was motivated by Mr. Baidoo's race-or-national origin, as required to support a claim under Title VII. See Manatt v. Bank of America, 339 F.3d 792, 798 (9th Cir. 2003).
Nevertheless, even if Mr. Baidoo had timely filed a charge and shown the comment to have been racially motivated, any hostile workplace environment claim would still fail. To establish such a claim, a plaintiff must show, among other elements, that the challenged conduct "was sufficiently severe or pervasive to alter the conditions of the plaintiff's employment and create an abusive workplace environment." Vasquez v. County of Los Angeles, 349 F.3d 634, 642 (9th Cir. 2004). Mr. Baidoo's claim of a hostile workplace environment is based on a single comment. The single comment that Mr. Baidoo "smelled" is, from an objective point of view, insufficiently "severe or pervasive" to create a hostile workplace environment. See id. at 642-43 (occasional racially-motivated insults held insufficient to create hostile workplace environment). Hence, summary judgment is proper as to any hostile work environment claim Mr. Baidoo might be asserting.
* * *
On this record, there is no triable issue of material fact as to Mr. Baidoo's race- or national-origin claim under Title VII, whatever the theory underlying that claim might be. Accordingly, this order GRANTS Tidewater's motion for summary judgment as to Mr. Baidoo's Title VII claim.
4. LEAVE TO AMEND IS IMPROPER AT THIS LATE STAGE BECAUSE IT WOULD CAUSE TIDEWATER PREJUDICE AND RESULT IN UNDUE DELAY.
As noted above, on April 23, 2004, Mr. Baidoo moved for leave to file a first amended complaint at the same time he filed his opposition to Tidewater's motion for summary judgment. The proposed first amended complaint seeks to add four additional state and common-law claims: (i) breach of the employment contract; (ii) breach of the covenant of good faith and fair dealing; (iii) retaliatory discharge; and (iv) failure to investigate a complaint of racial discrimination under the Fair Employment and Housing Act.
A plaintiff cannot amend his complaint after an answer by the defendant without leave from the district court. FRCP 15(a). Leave to amend "shall be freely given when justice so requires." Ibid. But this liberal policy permitting leave to amend "is subject to several limitations," including prejudice to the opposing party and undue delay. Ascon Props., Inc. v. Mobil Oil Co., 866 F.2d 1149, 1160 (9th Cir. 1989).
Here, granting Mr. Baidoo leave to amend would both cause Tidewater prejudice and result in undue delay. First, to put Tidewater "through the time and expense of continued litigation on [new theories], with the possibility of additional discovery, would cause undue prejudice." Id. at 1161 (internal quotations omitted). Second, permitting these new theories of liability would certainly result in undue delay, in the form of pushing back the trial (which is set for June 21, 2004) and reopening discovery (which was closed on February 13, 2004). Also, a motion for summary judgment was properly filed and noticed, and the Court is prepared to rule on it. Mr. Baidoo has already come dangerously close to having his case dismissed for lack of prosecution and has delayed the course of his own lawsuit several times. Mr. Baidoo argues that he recently learned, upon speaking with an unidentified attorney, that he might have additional claims against Tidewater. This point rings especially hollow. Mr. Baidoo consulted an attorney in 2002 shortly after he was fired. He offers no justification for failing to assert these additional claims at the outset. At this late stage the interests of justice do not require granting leave to amend. As such, Mr. Baidoo's motion for leave to amend his complaint to allege additional claims is DENIED.