Opinion
21-16103
09-16-2022
RUSSELL A. SMITH, Plaintiff-Appellant, v. WM CORPORATE SERVICES, INC., a Delaware corporation; et al., Defendants-Appellees.
NOT FOR PUBLICATION
Argued and Submitted August 30, 2022 Pasadena, California
Appeal from the United States District Court No. 2:19-cv-01579-SPL for the District of Arizona Steven Paul Logan, District Judge, Presiding
Before: M. SMITH and R. NELSON, Circuit Judges, and DRAIN, [**] District Judge.
MEMORANDUM [*]
Russell A. Smith appeals the district court's order granting summary judgment to WM Corporate Services, Inc. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm in part and reverse in part.
The parties' familiarity with the briefing and record is assumed, and the applicable standards of review are well-established. See, e.g., Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000) (en banc). We reverse the district court's order granting summary judgment on Smith's transfer-related claims and affirm the district court with respect to his termination-based claims. We also affirm the district court's evidentiary rulings on summary judgment.
1. We begin with the evidentiary issues. Smith challenges the district court's purported failure to consider evidence of time-barred claims as background evidence on summary judgment. See Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002) (recognizing that courts may use evidence of time-barred incidents as background evidence for timely claims). The extent to which the district court relied on this evidence is not clear from its order. However, even assuming the district court did not consider it, we affirm because any error was harmless. See Orr v. Bank of Am., 285 F.3d 764, 773 (9th Cir. 2002).
2. Smith further argues the district court erred in considering an unauthenticated email. The district court did not err because Rule 56, as amended in 2010, allows the consideration of unauthenticated documents on summary judgment where, as here, the evidence can "be presented in a form that would be admissible in evidence" at trial. Fed.R.Civ.P. 56(c)(2) (emphasis added); see also id., advisory comm. note to 2010 Amendments (proponent of evidence can either "show that the material is admissible as presented or . . . explain the admissible form that is anticipated" at trial).
3. Turning to the merits, the district court erred in granting summary judgment on Smith's transfer-related claims for two reasons. First, there is a genuine dispute of material fact regarding whether Smith was qualified to manage the eBusiness team. See Dark v. Curry County., 451 F.3d 1079, 1086 (9th Cir. 2006) (treating whether an individual is qualified for a position as a fact question). The parties dispute what shift-coverage managers were required to provide and whether Smith was able to provide adequate coverage for the eBusiness team. See Bates v. United Parcel Serv., Inc., 511 F.3d 974, 991 (9th Cir. 2007) (en banc) (holding that employer has burden to establish essential functions required to be qualified for a job, and employee bears burden to prove he is qualified to perform those functions). There is also a genuine dispute regarding Smith's history of purportedly hostile interactions with colleagues before his transfer-the driving incident occurred two months after the transfer, but prior to his termination-and whether those interactions rendered him unqualified for his position on the eBusiness team. See id.
Second, a genuine dispute exists as to whether WM transferring Smith to the eBusiness team constituted an adverse employment action. See Burlington N. &Santa Fe Ry. Co. v. White, 548 U.S. 53, 71 (2006) ("Whether a particular reassignment is materially adverse depends upon the circumstances of the particular case[] ...."). We find that Smith introduced evidence regarding the differences between the eBusiness and SnapShot supervisor positions that could lead a reasonable factfinder to determine the transfer was materially adverse. See id. at 70-71. For instance, Smith testified that (1) the SnapShot team worked in fewer markets than the eBusiness team, (2) the SnapShot team was understaffed and undertrained compared to the eBusiness team, and (3) SnapShot supervisors historically received smaller commission payments than Smith did in his role on the eBusiness team. We therefore reverse the district court on these claims.
4. Finally, we affirm the district court's order granting summary judgment on Smith's termination-related claims. Even assuming arguendo that Smith established a prima facie case of discrimination and retaliation, see, e.g., Vasquez v. County of Los Angeles, 349 F.3d 634, 641 (9th Cir. 2003), we find that the "roadrage" incident nevertheless constitutes a legitimate, non-discriminatory reason for termination, and Smith's pretext arguments are unavailing for substantially the same reasons articulated in the district court's order. This analysis applies to Smith's claims arising under both the ADA and the ADEA. See Curley v. City of North Las Vegas, 772 F.3d 629, 632 (9th Cir. 2014) (applying Title VII framework to ADA claims); Shelley v. Geren, 666 F.3d 599, 607 (9th Cir. 2012) (same re ADEA claims).
The case is hereby remanded to the district court for further proceedings consistent with this order.
AFFIRMED IN PART AND REVERSED IN PART.
Each party shall bear its own costs on appeal.
[*] This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
[**] The Honorable Gershwin A. Drain, United States District Judge for the Eastern District of Michigan, sitting by designation.