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Ramirez v. Pep Boys

United States District Court, D. Arizona

August 14, 2018

Roberto Ramirez, Plaintiff,
v.
Pep Boys, et al., Defendants.

          ORDER

          Honorable Diane J. Humetewa United States District Judge

         This matter is before the Court on Defendant's Motion for Summary Judgment (Doc. 24). Plaintiff filed a Response (Doc. 28) and Defendant filed a Reply (Doc. 29). For reasons stated below, the Motion will be granted.

         Plaintiff filed his pro se Complaint on December 15, 2016. (Doc. 1). The Complaint is in narrative form and is two pages long. The Complaint alleges, somewhat indirectly, numerous causes of action including violations of Title VII of the Civil Rights Act of 1964 for employment discrimination on the basis of race, color, religion, gender, and national origin. The Complaint further alleges age discrimination in violation of the Age Discrimination in Employment Act of 1967 and discrimination in violation of the American's with Disabilities Act of 1990. (Doc. 1).

         I. Background

         The case arises from the October 13, 2016, dismissal of Plaintiff from employment with Defendant.[1] The extent of the facts alleged by Plaintiff are contained in one paragraph in his narrative Complaint. Plaintiff states in his Complaint that he was told that he would be promoted once a position opened up. (Doc. 1 at 1). He claims that his assistant manager Cryssi Campos (“Campos”) yelled at him and reported him to manager Donald Akins. Plaintiff claims the reports made to Akins were false and made in retaliation for multiple complaints that Plaintiff called in to management. (Doc. 1). Plaintiff further claims he was “forced to work with no lunches, forced to do heavier work, bathroom restrictions, changing my schedule and not notifying me, trying to make false customer complaints, being forced to go home and human resources trying to cover it up, injuring being over worked, injury from moving away from push cart falling with battery, diagnosed with depression and anxiety from work environment.” (Doc. 1 at 2). These statements are the extent of the factual allegations alleged by Plaintiff.

         In its Motion for Summary Judgment, Defendant argues that Plaintiff was hired in January 2015 as a customer service advisor.[2] (Doc. 24 at 2). Defendant contends that Plaintiff received the Pep Boys Associate Employment Guide (“Handbook”) upon his hiring. Plaintiff signed the Handbook, acknowledging that he had read it and that he agreed to abide by its policies. (SOF ¶ 5).[3] The Handbook addresses circumstances that may lead to the termination of an associate. This includes, “[a]ny violation of [Pep Boys'] policy, including misconduct, harassment, and any act that is deemed not to be in the best interest of the [Pep Boys].” (SOF ¶ 4). Plaintiff was also provided with an Attendance & Punctuality Policy (the “Attendance Policy”). (SOF ¶ 7). This policy states that failure to “notify your supervisor in advance of your scheduled work shift when you're late or not coming to work, ” may result in “disciplinary action, including termination.” (Id.)

         Defendant alleges that on September 13, 2015, Plaintiff began arguing with management in front of customers and was issued an Initial Performance Counseling on September 15, 2015. (SOF ¶ 12). Plaintiff acknowledged in his deposition that this confrontation occurred. (Id.) Defendant also alleges that between February 16, 2016 and July 14, 2016, Plaintiff was tardy 23 times in violation of the Attendance Policy. (SOF ¶ 28). Moreover, between March 12, 2016 and July 14, 2016, Plaintiff had nine unexcused absences in violation of the attendance policy. (Id.) As a result of these attendance issues, Plaintiff was issued a Repeated Notice of Performance Counseling on July 15, 2016. (SOF ¶ 27). Subsequent to receiving the second Notice, Plaintiff showed up to work more than thirty minutes late on July 19, 20, 22, and 24, 2016. (SOF ¶ 30). As a result of these continued late arrivals, he was issued a Final Notice on July 26, 2016. (Id.)

         On July 27, 2016, Plaintiff was seen by a physician and was referred for a neurological examination. (SOF ¶ 33). On August 11, 2016, Plaintiff underwent a neurological examination and was advised to undergo CT imaging and to attend physical therapy. (SOF ¶ 34). Plaintiff did not follow through with this treatment plan. (SOF ¶ 35). On August 16, 2016, Plaintiff filed a Charge of Discrimination with the EEOC alleging that Defendant was discriminating against him based on his sex, disability, and national origin. (SOF ¶ 36). The EEOC issued its notice of dismissal of Plaintiff's Charge of Discrimination on September 8, 2016. (SOF ¶ 39).[4]

         Plaintiff did not attend scheduled work shifts on October 9, 12, and 13, 2016, and did not provide a doctor's note or other reason for missing those shifts. (SOF ¶ 37). Based on the cumulative nature of his attendance issues in violation of the Handbook and Attendance Policies, Plaintiff was terminated on October 13, 2016. (Id.) . . . .

         II. Summary Judgment Legal Standards

         The Court must grant summary judgment “if the movant shows that 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); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-323 (1986); Jesinger v. Nevada Fed. Credit Union, 24 F.3d 1127, 1130 (9th Cir. 1994). The materiality requirement means “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Substantive law determines which facts are material. Id. The dispute must also be genuine, meaning the “evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. at 242. The Court determines whether there is a genuine issue for trial but does not weigh the evidence or determine the truth of matters asserted. Jesinger, 24 F.3d at 1131.

         The moving party bears the initial burden of identifying the portions of the record, including pleadings, depositions, answers to interrogatories, admissions, and affidavits that it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp., 477 U.S. at 323. If the moving party meets its initial burden, the opposing party must establish the existence of a genuine dispute as to any material fact. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-586 (1986). There is no issue for trial unless there is sufficient evidence favoring the non-moving party. Anderson, 477 U.S. at 249. “If the evidence is merely colorable or is not significantly probative, summary judgment may be granted.” Id. at 249-250. However, the evidence of the non-movant is “to be believed, and all justifiable inferences are to be drawn in his favor.” Id. at 255. A plaintiff cannot create a genuine issue for trial based solely upon his subjective beliefs. Bradley v. Harcourt, Brace & Co., 104 F.3d 267, 270 (9th Cir. 1996).

         III. Analysis

         Defendant moves for summary judgment on all of Plaintiff's claims, arguing that there are no material facts in dispute and that it is entitled to judgment as a matter of law. As an initial matter, the Court notes that Plaintiff filed a handwritten Response to the Motion. (Doc. 28). In total, the Response states as follows: “Evidence of all situations will ask the court to no [sic] dismiss my case.” (Id.) Attached to the Response are a number of text messages that appear to be between Plaintiff and other employees of the ...


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