United States District Court, D. Arizona
A. Teilborg Senior United States District Judge.
before the Court is Defendant's Motion for Summary
Judgment (Doc. 31). The Court now rules on the motion.
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.
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
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.
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).
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.
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).
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. ¶¶
set forth the pertinent factual and procedural background,
the Court turns to Defendant's Motion for Summary
SUMMARY JUDGMENT STANDARD
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).
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).
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).
Admissibility of Evidence at the Summary Judgment
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).
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
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).
Plaintiffs' Global Evidentiary Objection
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
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).
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.