Opinion
No. C 03-04646 CRB.
March 22, 2006
MEMORANDUM AND ORDER GRANTING SUMMARY JUDGMENT
This is an employment discrimination action based on race in which defendant has filed a motion for summary judgment as to all four claims in the Complaint, including claims under Title VII of the Civil Rights Act of 1964 and California Government Code section 12940 (FEHA) for race discrimination and associational discrimination, wrongful termination as a violation of public policy, and California Labor Code section 1101. After carefully considering the parties' briefs, including multiple rounds of supplemental briefing, and with the benefit of oral argument, the Court hereby GRANTS defendant's motion.
BACKGROUND
I. Factual Background
Defendant hired plaintiff on August 3, 1988, as a package car driver in its Eastshore package center in Richmond, California. Plaintiff drove a brown package truck and delivered and picked up packages along a particular route, which routinely ran through the campus of the University of California at Berkeley. In March 2002, defendant introduced an auditing system which scanned packages every time they exchanged hands, including prior to being placed in a package car early in the morning. If a driver did not scan a package at delivery, or obtain some other proof of delivery, the scanning system produced a "scan exception" report for that driver noting the absence of some proof of delivery.
On July 11, 2002, defendant received a report showing that three packages were missing which were purportedly on plaintiff's route. The packages contained computer monitors. Plaintiff and his supervisor, Rebecca Cooper, met that day along with a union shop steward to discuss the scan exception. At that meeting, Cooper showed plaintiff the report with the scan exceptions. It is undisputed that plaintiff agreed to get proof of delivery for the missing packages. After plaintiff failed to get a proof of delivery before going on vacation two days later, defendant commenced an investigation. When plaintiff returned to work, Cooper and defendant's investigator visited the destination of the packages to ask if they had been received. Plaintiff joined them there. It is undisputed that three people from the destination office said the packages were never delivered.
On July 23, 2002, defendant terminated plaintiff for theft pursuant to the collective bargaining agreement. The International Brotherhood of Teamsters represented defendant's package drivers, and the terms and conditions of the drivers' employment were governed by a collective bargaining agreement between the union and defendant. Pursuant to the collective bargaining agreement, plaintiff appealed the decision to a neutral, third-party arbitrator selected from a list mutually agreed upon by the union and defendant. On November 14, 2004, the arbitrator upheld defendant's termination for theft based on a good cause standard. Plaintiff did not raise any race-based claims in front of the arbitrator; rather, he challenged his termination based on the argument that he did not steal the packages.
On October 15, 2003, prior to the arbitrator's ruling, plaintiff filed this action and amended his Complaint on June 18, 2004. On September 2, 2005, defendant filed this motion for summary judgment. On October 26, 2005, the Court granted plaintiff leave to notice and take the depositions of two more witnesses. The Court heard oral argument on December 16, 2005, after which time plaintiff was granted leave to file a motion to compel with a magistrate judge. Plaintiff did not file a supplemental brief based on the additional discovery received as a result of the motion to compel.
II. Remaining Claims
Plaintiff has withdrawn his fourth claim under the California Labor Code, and the Court accordingly DISMISSES that claim with prejudice. In addition, plaintiff has not opposed the motion for summary judgment as to his associational discrimination claims. As a result, defendant's motion for summary judgment as to those claims is GRANTED. Plaintiff's remaining three claims are analyzed under the same McDonnell-Douglas analysis.
DISCUSSION
I. Summary Judgment Legal Standard
Summary judgment is proper when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). An issue is "genuine" only if there is a sufficient evidentiary basis on which a reasonable fact-finder could find for the nonmoving party, and a dispute is "material" only if it could affect the outcome of the suit under governing law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). A principal purpose of the summary judgment procedure "is to isolate and dispose of factually unsupported claims." Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no `genuine issue for trial.'" Matsushita Elec. Ind. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986).
II. Analysis
Under the familiar McDonnell-Douglas test, the plaintiff must first establish a prima facie case by showing: (1) he belongs to a protected class, (2) he was qualified for the position, (3) he suffered an adverse employment action, and (4) some other circumstance indicates a discriminatory motive, such as similarly qualified individuals being treated more favorably. See Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1220 (9th Cir. 1998). Once plaintiff establishes a prima facie case of discrimination, the burden shifts to defendant to articulate a legitimate nondiscriminatory reason for the termination. Id. If defendant meets this burden of production, the burden shifts back to plaintiff to establish that defendant's proffered reason was a pretext for discrimination. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993). If plaintiff demonstrates pretext, then the burden-shifting framework disappears, and the only remaining issue is "discrimination vel non." See Aragon v. Republic Silver State Disposal, Inc., 292 F.3d 654, 659 (9th Cir. 2002) (citations omitted). Although the burden of production shifts, "[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff." Texas Dept. of Comm. Affairs v. Burdine, 450 U.S. 248, 253 (1981).
A. Prima Facie Case
Defendant contends that plaintiff cannot make out a prima facie case because he cannot identify a similarly situated employee of another race who was treated differently. In addition, it is unclear whether he was even qualified for his job since he was allegedly terminated for stealing merchandise, which is an offense that leads to immediate termination for cause under the collective bargaining agreement. Plaintiff primarily relies on evidence showing that comparators were treated differently. For the purposes of this motion, however, the Court will assume arguendo that plaintiff has met the low burden of proving a prima facie case. Because plaintiff's arguments concerning comparators are crucial to his argument that defendant's termination was pretextual, the Court addresses that argument below.
B. Legitimate Non-Discriminatory Reason
In order to satisfy its burden of production of a legitimate non-discriminatory reason for the termination, "the defendant must clearly set forth, through the production of admissible evidence, reasons for its actions which, if believed by the trier of fact, would support a finding that unlawful discrimination was not the cause of the employment action." Raad v. Fairbanks North Star Borough Sch. Dist., 323 F.3d 1185, 1193 (9th Cir. 2003) (emphasis in original) (citations omitted). To this end, defendant asserts it had a reasonable, good-faith belief, based on an investigation conducted pursuant to its own bargained-for procedures, that plaintiff stole the three packages that went missing on July 10.
Defendant asserts that it followed proper procedures in investigating the missing packages in question. Plaintiff does not dispute defendant's version of events regarding the missing packages, conversations between plaintiff and UPS personnel surrounding those packages, and the fact that plaintiff said he would get proof of delivery but never did. Defendant asserts, also unopposed by plaintiff, that he was present when Cooper and Julie Rose, an investigator for UPS, visited the delivery address and were told by three employees there that the packages never arrived. In sum, defendant has submitted sufficient undisputed evidence supporting its decision to terminate plaintiff to satisfy its burden of production of a legitimate non-discriminatory reason.
In addition, defendant also asserts that the arbitration decision favoring defendant shows that there was no discrimination because defendant had good cause to terminate plaintiff at the time of its decision. Plaintiff objects to relying on the arbitration decision because it cannot be used for collateral estoppel or res judicata purposes. While plaintiff is correct that the arbitration cannot be used for collateral estoppel or res judicata purposes to defeat a prima facie case of race discrimination, it can be used to support defendant's assertion of a legitimate, non-discriminatory reason for firing plaintiff and to defeat plaintiff's claim of pretext. See Alexander v. Gardner-Denver Co., 415 U.S. 36, 60 n. 21 (1974) (noting that courts have discretion to decide how much weight to give an arbitration decision). In effect, the arbitration is one of several indices showing that defendant reasonably believed that plaintiff stole the packages, which, under the collective bargaining agreement, is grounds for automatic termination.
Plaintiff does not dispute that the arbitration process was properly conducted according to the collective bargaining agreement, nor does he dispute that the arbitrator was not neutral, independent or unbiased. Plaintiff, however, asserts that he decided not to pursue his claims of race discrimination in the arbitration, as is his right to do, and therefore the arbitration decision has little relevance to this action. Yet plaintiff did allege in his arbitration that he did not steal the packages. Based on substantial evidence, including evidentiary hearings and admission of a number of exhibits, the arbitrator determined that defendant had "good cause" to believe that plaintiff did steal the monitors and upheld the termination. Where, as here, a mutually agreed-upon arbitrator determines that a termination is proper, the decision "is highly probative of the absence of discriminatory intent in that termination." Collins v. New York City Transit Authority, 305 F.3d 113, 119 (2d Cir. 2002) (holding that where an arbitrator's decision upholding a termination is based on substantial evidence, a Title VII plaintiff must present strong evidence that the decision was wrong as a matter of fact in order to survive a motion for summary judgment). Even though the arbitration has no direct influence on plaintiff's race discrimination claim, it is relevant to support defendant's explanation for the termination as a legitimate non-discriminatory reason. As a result, the arbitrator's decision raises the bar plaintiff must hurdle to show that the termination was a pretext for race discrimination.
Plaintiff attempts to distinguish Collins on the ground that, unlike here, the arbitration in Collins included the plaintiff's race discrimination claims. Based on a thorough reading of Collins, the Court disagrees. See Collins, 305 F.3d 113, 118 ("Appellant challenged the Transit Authority's decision to fire him and was finally discharged only after the arbitration board made an independent inquiry . . . and authorized termination because it found that appellant had assaulted Badr.").
C. Pretext
After defendant satisfies its burden of production of a legitimate non-discriminatory reason, the presumption of discrimination diminishes and plaintiff has a burden of persuasion that defendant's proffered reason is merely a pretext for unlawful discrimination. See Burdine, 450 U.S. at 252. Generally, a plaintiff need only produce "very little evidence of discriminatory motive to raise a genuine issue of material fact."Goodwin v. Hunt Wesson, 150 F.3d 1217, 1220 (9th Cir. 1998). However, "purely conclusory allegations of alleged discrimination, with no concrete, relevant particulars, will not bar summary judgment." Forsberg v. Pac. Northwest Bell Tel. Co., 840 F.2d 1409, 1419 (9th Cir. 1988). A plaintiff must show that defendant's explanation is a pretext by "either directly persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence."Aragon v. Republic Silver State Disposal, Inc., 292 F.3d 654, 658-659 (9th Cir. 2002) (citations omitted). Plaintiff's evidence must be both "specific and substantial" to overcome defendant's explanation. Id. at 659.
Plaintiff's pretext argument centers around two overlapping arguments supported by indirect evidence. First, plaintiff offers several reasons why defendant's explanation for his termination is unworthy of credence because he did not steal the packages. Under this theory, however, plaintiff must show more than that defendant's proffered justification is false. "Rather, courts only require that an employer honestly believe its reason for its actions, even if its reason is `foolish or trivial or even baseless.'" Villarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1063 (9th Cir. 2002). Therefore, plaintiff must show that defendant did not honestly believe he stole the packages in order to satisfy his burden under this theory, and that the true reason for his termination was his race. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507-508 (1993).
First, plaintiff denies that he stole the packages. As outlined above, however, that is not sufficient to show pretext. Even assuming that plaintiff is correct that he did not steal the packages, he still must show that defendant's conclusion that he stole the packages was unreasonable or false at the time the decision was made. As a result, plaintiff's contentions that he was driving a different truck than the one at issue; that he gave the packages to someone else to deliver; that the packages could have been stolen by someone else before he began his route; and that someone else was arrested for theft where plaintiff worked a year after the incident all fail to show that defendant's conclusion, supported by a neutral arbitrator, was unreasonable under the circumstances. Defendant was not aware of plaintiff's assertions that he drove a different truck or that he gave some packages to a different driver. Even if both assertions were true, the fact that defendant's records showed otherwise and that plaintiff never brought either explanation to the attention of his supervisor supports a determination that defendant's conclusion was reasonable. Naturally, defendant cannot be held responsible for knowing that someone would be arrested for theft one year after this incident, nor can defendant be required to account for every hypothetical explanation as to how the packages went missing. As the arbitrator confirmed, defendant had a good faith belief that plaintiff stole the packages. Plaintiff has failed to show with admissible supporting evidence that there is a genuine issue of material fact regarding defendant's reasons for terminating him.
Second, plaintiff's allegations regarding defendant's discriminatory intent fall short of a sufficient showing to dissuade the Court of its conclusion that defendant reasonably believed that plaintiff stole the packages and therefore terminated him. From the outset, plaintiff faces two significant yet not dispositive obstacles to prove this theory. First, plaintiff's supervisor, Cooper, who oversaw the investigation and termination of plaintiff is also black. Second, 48 percent of defendant's drivers are black. See Decl. of Roddrick Lee ¶ 4. While the Court need not determine whether either fact defeats plaintiff's claims, they no doubt increase plaintiff's burden to show pretext.
Plaintiff argues that defendant treated similarly situated drivers outside of his protected class more favorably. See Vasquez v. County of Los Angeles, 349 F.3d 634, 641 (9th Cir. 2003) ("A showing that the County treated similarly situated employees outside Vasquez's protect class more favorably would be probative of pretext."). Plaintiff attempts to make this showing by identifying other drivers who also appeared on audit scans because packages were missing but did not have proofs of delivery. Plaintiff contends that there is no indication that the non-black drivers who appeared on these lists provided proof of delivery, were investigated, or were terminated.
To identify a proper comparator, plaintiff must "point to individuals who have dealt with the same supervisor, have been subject to the same standards, and engage in the same conduct without any mitigating or distinguishing circumstances." Clark v. Runyon, 218 F.3d 915, 918 (8th Cir. 2000). In this particular situation, it appears that a proper comparator would be: (1) a non-African-American driver, (2) who appeared on an audit scan list because packages were not documented as delivered, (3) was told that proof of delivery was necessary, (4) agreed to do so but (5) never provided proof, and where (6) the packages were never discovered and (7) the driver was not terminated. If all of these requirements are not satisfied, the Court cannot determine with confidence that impermissible race discrimination is the proper inference to be drawn from the different treatment.
The only two individuals plaintiff has identified as proper comparators are non-African American drivers who failed to scan packages, could not show proof of delivery, and were not terminated. One was suspended for one day and the other was given a warning. See Decl. of Aaron Gorfein, Ex. T. Plaintiff does not provide evidence that the packages were never discovered or that proof of delivery was never delivered for either or both of the putative comparators. Even assuming they are true comparators, defendant presents evidence that, in both cases, the packages were either discovered or were never missing.See Supp. Decl. of Rebecca Cooper at ¶¶ 6, 7. Therefore, the Court finds that plaintiff has not shown that similarly situated individuals of another race were treated more favorably than plaintiff.
The Court agrees with defendant's assertion that individuals who appeared on a "claims paid" list, which identifies claims that defendant paid on missing packages, are not proper comparators because plaintiff was not terminated because of claims paid by defendant.
Plaintiff also argues that proof of discrimination against other members of the same protected class can create an inference of discrimination in this situation. To this end, plaintiff contends that the only other driver to be terminated by Rebecca Cooper, who is black, was another African-American man. Plaintiff also contends that Cooper fired another African-American man after she alleged that he made threats to her and had to be physically restrained. Yet the admissible evidence plaintiff submits in support of this argument does not reveal any discrimination by Cooper based on race. In the first instance, Cooper apparently fired the individual for theft. The evidence does not indicate that race was even an issue in the termination, and the Court finds no reason to believe the termination was inappropriate. In the second instance, no evidence submitted by plaintiff indicates race played a role in the altercation. As a result, the Court finds plaintiff has not proved that Cooper discriminated against other members of plaintiff's protected class. Accordingly, no reasonable trier of fact could draw an inference of discrimination here.
CONCLUSION
For the foregoing reasons, plaintiff has not satisfied his burden of persuasion that his termination was a pretext for race discrimination. As a result, the Court finds that no reasonable jury could find that plaintiff was terminated because of race discrimination. Thus, defendant's motion for summary judgment as to the three claims of race discrimination is GRANTED. Defendant's unopposed motion for summary judgment as to plaintiff's associational discrimination claim is also GRANTED, and plaintiff's withdrawn claim under the California Labor Code is DISMISSED with prejudice.IT IS SO ORDERED.