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White v. Home Depot USA Inc.

United States District Court, D. Arizona

February 5, 2018

Paul E White, et al., Plaintiffs,
Home Depot USA Incorporated, Defendant.


          James A. Teilborg Senior United States District Judge.

         Pending before the Court is Defendant's Motion for Summary Judgment (Doc. 31). The Court now rules on the motion.

         I. BACKGROUND

         On May 12, 2017, Defendant filed the pending Motion for Summary Judgment (Doc. 31) and companion Memorandum (Doc. 32). Plaintiffs filed a timely Response on June 12, 2017 (Doc. 34). Defendant then filed a Reply on June 27, 2017 (Doc. 36).[1]

         Plaintiffs maintain the following four causes of action against Defendant in their First Amended Complaint (Doc. 12): (1) Age Discrimination in Employment Act of 1967 (“ADEA”) violation; (2) Americans with Disabilities Act (“ADA”) violation; (3) Arizona Civil Rights Act (“ACRA”) violation; and (4) negligent misrepresentation.[2]

         A. Facts

         Plaintiffs brought this action against Plaintiff's former employer, Home Depot (“Defendant”). (Doc. 12 at 1). The following facts are either undisputed or recounted in the light most favorable to the non-moving party.

         Plaintiff was employed by Defendant from May 23, 1992 until his termination on February 17, 2014. (Defendant's Statement of Facts (“DSOF”), Doc. 33 ¶ 1; Plaintiffs' Controverting Statements of Fact and Additional Statements of Fact (“PSOF”), Doc. 35 ¶ 1). At the time of his termination, Plaintiff was 54 years old. (PSOF ¶ 47). Prior to his termination, Plaintiff served as the “Packdown” supervisor under assistant managers Christopher Blaskie and Horatio Galaviz, and store manager Scott Steuart. (DSOF ¶ 1; PSOF ¶ 1). Plaintiff's performance review issued on September 10, 2013 rates Plaintiff as a “Top Performer” or “Valued Associate” in all categories. (Doc. 35-1 at 21-23).

         Additionally, Plaintiff received two Progressive Discipline Notices (“PDNs”) from Defendant in 2013, the year preceding his termination. (DSOF ¶¶ 18-19; PSOF ¶¶ 18-19; see also Doc. 33-7; 33-8). Approximately six weeks before his termination, Plaintiff began manipulating inventory records for a disputed purpose. (PSOF ¶¶ 20, 79; DSOF ¶ 20). Defendant deems manipulating company records to be a major violation of Defendant's Integrity/Conflict of Interest policy. (PSOF ¶ 12; DSOF ¶ 12). When Defendant's corporate office became aware of the process by which Plaintiff manipulated records, Defendant instructed Plaintiff to stop and submit a statement regarding his actions. (PSOF ¶¶ 84-88). In early February of 2014, Plaintiff submitted the statement to Galaviz. (Id. ¶¶ 84-90).

         On February 17, 2014, Steuart and Blaskie informed Plaintiff that Defendant's corporate office decided to terminate him and presented Plaintiff with a termination notice. (Id. ¶¶ 94-96). According to Plaintiff, when he previously approached Blaskie about the inventory manipulation accusation, Blaskie explained: “Don't worry about it. You've been a long, loyal employee, [you will] probably get a coaching and that will be the end of that.” (Id. ¶¶ 91-92)). A coaching is the lowest level of employee discipline offered by Defendant. (Id. ¶ 93). In the months prior to his termination, Plaintiff asserts that Galaviz made multiple age-related comments to Plaintiff. (Id. ¶¶ 49, 55). On one occasion, Plaintiff alleges that he confronted Galaviz about the comments and reported them to another store manager. (Id. ¶ 56).

         In 1999, Dianne White was diagnosed with Multiple Sclerosis. (Id. ¶ 103). Plaintiff and his wife were both covered through Plaintiff's Defendant-provided insurance plan, which was administered by Aetna. (Id. ¶ 107; DSOF ¶ 37). In 2012, Dianne White accrued $115, 000 worth of claims covered by Defendant; that dollar amount grew to $322, 000 in 2013. (PSOF ¶ 114). Following Plaintiff's termination, Plaintiff and Dianne White elected to enroll in health insurance benefits under COBRA. (PSOF ¶¶ 29, 34; DSOF ¶¶ 29, 34). Following Plaintiffs' COBRA election, Dianne White received a notice that reversed Medicare and COBRA (through Aetna) to her primary and secondary coverage, respectively. (PSOF ¶ 120). From this point forward, claims previously submitted by healthcare providers on behalf of Dianne White were rejected, which disrupted Dianne White's treatment schedule and left claims unpaid. (Id. ¶¶ 121, 125).

         Having set forth the pertinent factual and procedural background, the Court turns to Defendant's Motion for Summary Judgment.


         Summary judgment is appropriate when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “A party asserting that a fact cannot be or is genuinely disputed must support that assertion by . . . citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits, or declarations, stipulations . . . admissions, interrogatory answers, or other materials, ” or by “showing that materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Id. 56(c)(1)(A), (B). Thus, summary judgment is mandated “against a party who 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 Corp. v. Catrett, 477 U.S. 317, 322 (1986).

         Initially, the movant bears the burden of demonstrating to the Court the basis for the motion and the elements of the cause of action upon which the non-movant will be unable to establish a genuine issue of material fact. Id. at 323. The burden then shifts to the non-movant to establish the existence of material fact. Id. A material fact is any factual issue that may affect the outcome of the case under the governing substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The non-movant “must do more than simply show that there is some metaphysical doubt as to the material facts” by “com[ing] forward with ‘specific facts showing that there is a genuine issue for trial.' ” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986) (quoting Fed.R.Civ.P. 56(e)). A dispute about a fact is “genuine” if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Liberty Lobby, Inc., 477 U.S. at 248 (1986). The non-movant's bare assertions, standing alone, are insufficient to create a material issue of fact and defeat a motion for summary judgment. Id. at 247-48. However, in the summary judgment context, the Court construes all disputed facts in the light most favorable to the non-moving party. Ellison v. Robertson, 357 F.3d 1072, 1075 (9th Cir. 2004).

         At the summary judgment stage, the Court's role is to determine whether there is a genuine issue available for trial. There is no issue for trial unless there is sufficient evidence in favor of the non-moving party for a jury to return a verdict for the non-moving party. Liberty Lobby, Inc., 477 U.S. at 249-50. “If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Id. (citations omitted).

         A. Admissibility of Evidence at the Summary Judgment Stage

         The Ninth Circuit applies a double standard to the admissibility requirement for evidence at the summary judgment stage. See 10B Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice & Procedure § 2738 (3d ed. 1998). With respect to the non-movant's evidence offered in opposition to a motion for summary judgment, the Ninth Circuit has stated that the proper inquiry is not the admissibility of the evidence's form, but rather whether the contents of the evidence are admissible. Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003); see also Fed. R. Civ. P. 56(c)(2) (“A party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.”); Celotex Corp., 477 U.S. at 324 (“We do not mean that the nonmoving party must produce evidence in a form that would be admissible at trial in order to avoid summary judgment.” (emphasis added)). With respect to the movant's evidence offered in support of a motion for summary judgment, the Ninth Circuit requires that it be admissible both in form and in content. See Canada v. Blains Helicopters, Inc., 831 F.2d 920, 925 (9th Cir. 1987); Hamilton v. Keystone Tankship Corp., 539 F.2d 684, 686 (9th Cir. 1976).

         Accordingly, the Ninth Circuit has held that a non-movant's hearsay evidence may establish a genuine issue of material fact precluding a grant of summary judgment. See Fraser, 342 F.3d at 1036-37; Carmen v. S.F. Unified Sch. Dist., 237 F.3d 1026, 1028-29 (9th Cir. 2001); Beyene v. Coleman Sec. Servs., Inc., 854 F.2d 1179, 1182 (9th Cir. 1988). Thus, “[m]aterial in a form not admissible in evidence may be used to avoid, but not to obtain summary judgment, except where an opponent bearing a burden of proof has failed to satisfy it when challenged after completion of relevant discovery.” Tetra Techs., Inc. v. Harter, 823 F.Supp. 1116, 1120 (S.D.N.Y. 1993) (emphasis in original); see also Burch v. Regents of the Univ. of Cal., 433 F.Supp.2d 1110, 1121 (E.D. Cal. 2006) (“Because [v]erdicts cannot rest on inadmissible evidence and a grant of summary judgment is a determination on the merits of the case, it follows that the moving party's affidavits must be free from hearsay.” (internal quotation marks omitted) (emphasis in original)).

         Additionally, unauthenticated documents cannot be considered in granting a motion for summary judgment because authentication is a “condition precedent to admissibility.” Orr v. Bank of Am., NT & SA, 285 F.3d 764, 773 (9th Cir. 2002); see also Canada, 831 F.2d at 925 (“[D]ocuments which have not had a proper foundation laid to authenticate them cannot support a motion for summary judgment.”). A document authenticated through personal knowledge must be supported with an affidavit “[setting] out facts that would be admissible in evidence” and “show[ing] that the affiant or declarant is competent to testify on the matters stated.” Fed.R.Civ.P. 56(c)(4).

         1. Plaintiffs' Global Evidentiary Objection

         Preliminarily, Plaintiffs argue that Defendant's motion must be denied because “Defendant has failed to provide any authenticated evidence to support its Motion.” (Doc. 34 at 3). Specifically, Plaintiffs point out that Defendant's motion relies on deposition transcripts attached without a signed court reporter's certificate and business records produced without an affidavit laying the appropriate foundation to authenticate them. (Id.). While Plaintiffs are correct that that the Ninth Circuit requires that excerpts of deposition transcript be authenticated for the movant to rely on them at the summary judgment stage, “a court reporter's certification is [not] the only method of authenticating a deposition excerpt.” Renteria v. Oyarzun, 05-CV-392-BR, 2007 WL 1229418, at *2 (D. Or. Apr. 23, 2007). Under Federal Rule of Evidence 901(b)(4), “the excerpts may also be authenticated by reviewing their contents, ” and “[a]uthentication is accomplished by evidence sufficient to support a finding that the matter in question is what its proponent claims.” Id. (quoting Fed.R.Evid. 901(a)).

         Here, Defendant did not attach the court reporter's certificates for the depositions of both Plaintiffs and Home Depot store manager Scott Steuart when it filed its motion, but attempts to cure the procedural defect by attaching the applicable certificates to its Reply (Doc. 36). (See Doc. 36-1; 36-2; 36-3). Defendant also provides that “Plaintiffs' counsel was personally in attendance at all of these depositions and is not arguing that there are any inaccuracies in the transcript.” (Doc. 36 at 3). “Considering the contents, nature, and appearance of the excerpts, and the fact that [Plaintiffs] do[] not assert they are not authentic, the [C]ourt considers the deposition[s] adequately authenticated for purposes of this summary judgment proceeding.” Glob. Med. Sols., Ltd v. Simon, No. CV 12-04686 MMM (JCx), 2013 WL 12065418, at *9 (C.D. Cal. Sept. 24, 2013) (citations omitted).

         Similarly, Plaintiffs globally object to the business records cited by Defendant in its motion. (See Doc. 34 at 3). These objections lack specificity and Plaintiffs do not question the authenticity of any records cited by Defendant. (Id.). Further, Plaintiffs rely on several of the same documents in their Response (Doc. 34) that they object to when offered by Defendant. (Compare Termination Notice, Doc. 33-2 with 35-1 at 13; compare July 2013 Coaching, Doc. 33-7 with 35-1 at 15-16; compare September 2013 Counseling, Doc. 33-8 with 35-1 at 18-19; compare Cobra Notice, Doc. 33-10 with Doc. 35-2 at 25-43; compare Aetna Letter, Doc. 33-11 with Doc. 35-2 at 45). Nevertheless, Defendant attached a declaration to its Reply (Doc. 36) signed under penalty of perjury by Derek Guidroz, Defendant's District Human Resource Manager, authenticating these business records. (See Doc. 36-4). The Court finds that this declaration lays the requisite foundation to authenticate Defendant's business records at the summary judgment stage. Accordingly, Plaintiffs' global evidentiary objection is hereby overruled. The Court will next address Defendant's motion on the merits.

         III.ADEA ...

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