United States District Court, D. Arizona
Honorable Diane J. Humetewa United States District Judge
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.
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).
case arises from the October 13, 2016, dismissal of Plaintiff
from employment with Defendant. 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.
Motion for Summary Judgment, Defendant argues that Plaintiff
was hired in January 2015 as a customer service
advisor. (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 ¶
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.”
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.)
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).
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.) . . . .
Summary Judgment Legal Standards
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.
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).
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