G. MURRAY SNOW, District Judge.
Pending before the Court are two motions by Defendants Albertson's LLC and Albertson's Warehouse (collectively, "Albertsons")
Plaintiff Fred R. Ruiz worked as a truck driver for Albertsons beginning in July 1993, first as a leased driver and then beginning in July 1994 as an employee of Albertsons. He is a United States citizen of Mexican descent. He has a prosthetic leg, having been involved in an accident in 1985 that resulted in the amputation of his left leg below the knee. He was terminated from his employment with Albertsons on September 5, 2012.
Ruiz alleges that he was terminated as a result of discrimination based on his national origin, as well as in retaliation for his participation in an investigation regarding racially-charged remarks allegedly made by Transportation Supervisor John Everill. He also alleges that he suffered from harassment based on his national origin while he was employed, and that Albertsons failed to reasonably accommodate his disability and discriminated against him on the basis of his disability. Albertsons contends that Ruiz was terminated as a result of his repeated failures to abide by certain regulations, and denies the allegations of harassment and failure to accommodate.
Truck drivers at Albertsons must follow the Federal Motor Carrier Safety Regulations ("DOT Regulations") promulgated by the United States Department of Transportation ("DOT"). Relevant here are the DOT regulations limiting the amount of time drivers may spend on duty and driving without taking a break. During the time period relevant to this lawsuit, DOT regulations provided that drivers needed to take a ten-hour break after either eleven hours of driving time or fourteen hours of on-duty time. (Doc. 72 at 2.) DOT requires drivers to keep a log of their time to ensure compliance; Albertsons drivers use an electronic system known as a "Qualcomm" to keep track of their hours. Drivers at Albertsons's Tolleson Distribution Center, where Ruiz worked, begin their shifts with a 30-minute pre-trip inspection, which counts against their on-duty time.
Albertsons has a progressive discipline policy to deal with violations of DOT regulations and other rules applicable to drivers. (Doc. 72 at 3.) The basics of this policy are undisputed. There are four levels of discipline, starting at verbal counseling and progressing to written warnings, suspensions, and finally termination. (Doc. 72 at 3, Doc. 82 at 4.) The Orientation and Policy Manual for the Tolleson Distribution Center ("Handbook")
(Doc. 72-3 at 58, Doc. 83-4 at 24.)
According to the evidence presented by Albertsons—specifically, the declaration and deposition of Transportation Manager Wayne Van Cleve and the deposition of Human Resources Manager Nathan Krug—during the time period relevant to this lawsuit, the progressive discipline policy for DOT violations had four tiers. (Doc. 72 at 3.) For a first violation, an offender would receive a verbal counseling. A similar offense within a year would merit a written warning; a similar offense within a year of the written warning would merit a suspension; and a similar offense within a year of the suspension would lead to termination. But if an offense was more than a year after a prior similar offense, or was a different type of offense than one for which discipline was given within the previous year, discipline would begin at a verbal counseling. Ruiz disputes this; he testified in his deposition to his belief that this "policy" was in reality only applied to him, and that it was always his understanding that termination would only occur for the fourth offense in a one-year period. (Doc. 82 at 5.)
Over the course of his employment, Ruiz received twenty-five verbal counselings, eight written warnings, and four three-day suspensions. (Doc. 72 at 3-4.) Nevertheless, Ruiz was characterized by several supervisors as a generally honest and good employee.
Ruiz apparently did not have a good relationship, however, with Transportation Supervisor John Everill. Ruiz believes that Everill had long been looking for reasons to get him in trouble. (Doc. 72-1 at 27-28.) Soon after Everill became a supervisor in 2006, he apparently "verbally beat [Ruiz] up over some situation," using "vulgar language." (Doc. 72-1 at 16-17.) Ruiz had heard rumors that Everill had made a racially-charged remark years before as a driver, and Ruiz believed that Everill had a similar racial animus against him. Ruiz also contends that Everill was hostile toward Ruiz because of Ruiz's disability. Ruiz recounts a particular incident that occurred sometime prior to 2010:
(Doc. 72-1 at 8-9.) Ruiz recounts several other incidents where he felt that Everill was expressing hostility toward him, and believed that animus towards Ruiz's national origin and/or disability was the motivating force of the hostility. Ruiz does not dispute, however, that he cannot identify any comments made to him about his national origin specifically. (Doc. 72 at 10, Doc. 82 at 21.) Nor does he present evidence of any disparaging remarks about his disability apart from the incident described above. (Doc. 72-1 at 32-36.)
Ruiz's difficulty in completing his pre-trip check out in a timely manner led to his request to park his truck closer to the dispatch office, so that he would have a shorter distance to walk. He made this request to Wayne Van Cleve twice; once in late 2010 and once in early 2011.
Around the same time, in January 2011, an African-American truck driver named Melvin Dees complained about a racially hostile work environment in the warehouse, complaining specifically about John Everill. That led to an investigation conducted by an outside attorney. The outside attorney interviewed sixteen Albertsons employees, including Ruiz, during the investigation. Ruiz recalls telling her that Everill discriminated against him on the basis of his disability and his national origin, but only recalls telling her specifically of the incident where Everill asked Ruiz "what the hell are you doing working here?" (Doc. 81-23 at 2-3.) Ultimately, however, the attorney was unable to substantiate the allegations of discrimination against Everill. (Doc. 72 at 9-10.)
Ruiz believes that discipline against him was enforced with more vigor after his participation in the investigation. (Doc. 72-1 at 21.) At that point, a supervisor named Richard Lantz was in charge of write-ups, but Ruiz believes that Everill was working behind the scenes to ensure that Ruiz got disciplined. Ruiz admits, however, that he has no concrete evidence of this, though other employees do believe that Everill at least wanted Ruiz fired.
On March 31, 2011, Ruiz received a Verbal Counseling for logging off his Qualcomm while he was working at a store, which is a violation of DOT regulations. On January 12, 2012, Ruiz received a Written Warning for a similar incident. On March 8, 2012, Ruiz received a Three-Day Suspension, again for logging off while working.
The final violation came on August 30, 2012. When Ruiz arrived at work, his Qualcomm indicated that he was already over his allotted hours. Ruiz spoke with Transportation Supervisor Mike Hein about this. Ruiz claims that Hein told him to drive anyway in hopes that the Qualcomm would "catch[] up with itself." (Doc. 72 at 4, Doc. 82 at 8.) Hein claims that Ruiz merely mentioned that the Qualcomm had an issue but that he had enough hours to drive. (Doc. 72 at 4, Doc. 82 at 8.)
Ruiz did drive, and the weekly Qualcomm report informed Van Cleve that Ruiz had driven without having the hours to do so. Van Cleve investigated, and after a consultation with Human Resources, fired Ruiz for this fourth violation of DOT regulations.
On September 29, 2015, Ruiz filed suit in this Court as a pro se litigant, alleging violations of Title VII and the ADA. (Doc. 1.) He listed three claims, touching on five distinct causes of action: (1) National Origin Discrimination and Harassment under Title VII; (2) Retaliation under Title VII; and (3) Failure to Accommodate and Disparate Treatment under the ADA. (Doc. 1 at 17-20.) Subsequently, Ruiz retained counsel, and his attorney filed a notice of appearance in this Court on March 1, 2016. Nearly five months later, on July 18, 2016, Ruiz filed a motion to amend/correct his Complaint so as to add two claims under 42 U.S.C. § 1981, in addition to certain other modifications. (Doc. 45.) After briefing by both parties, this Court denied that motion as failing to demonstrate diligence and good cause. (Doc. 56.) Twelve days later, Ruiz filed another complaint, which was assigned to a different judge in this district. Complaint & Demand for Jury Trial, Ruiz v. Albertson's, LLC, CV-16-02923-PHX-DJH (D. Ariz. Aug. 31, 2016), ECF No. 1. Ruiz stated in that filing that he intended immediately to consolidate the two actions:
Id. at 2. Accordingly, two weeks later, Ruiz moved to consolidate the cases, (Doc. 63), and that motion was granted, (Doc. 65).
Albertsons moved for summary judgment on Ruiz's claims in his original Complaint, (Doc. 68), and to dismiss the second, consolidated Complaint, (Doc. 70).
The Ninth Circuit has addressed a situation where a plaintiff filed a complaint "in an attempt to avoid the consequences of her own delay and to circumvent the district court's denial of her untimely motion for leave to amend her first complaint." Adams v. Cal. Dep't of Health Servs., 487 F.3d 684, 688 (9th Cir. 2007), overruled on other grounds by Taylor v. Sturgell, 533 U.S. 880 (2008). The Ninth Circuit recognized that simply because "plaintiff was denied leave to amend does not give [him] the right to file a second lawsuit based on the same facts." Id. (quoting Hartsel Springs Ranch of Colo., Inc. v. Bluegreen Corp., 296 F.3d 982, 989 (10th Cir. 2002)).
A district court is within its discretion to dismiss with prejudice a second complaint if the second complaint is duplicative of the first. Id. at 692. To determine whether the second lawsuit is duplicative, courts "borrow from the test for claim preclusion" and "examine whether the causes of action and relief sought, as well as the parties or privies to the action, are the same." Id. at 689.
The parties do not dispute that the causes of action and parties or privies to the action are the same. (Doc. 70 at 3; Doc. 77 at 2.) There is no dispute that the claims Ruiz seeks to add "are related to the same set of facts and . . . could conveniently be tried together." Western Sys., Inc. v. Ulloa, 958 F.2d 864, 871 (9th Cir. 1992). There is no dispute that "the claims in both complaints relate to the same set of facts and form a convenient trial unit because they `disclose[] a cohesive narrative'" of Ruiz's grievances against Albertsons. Adams, 487 F.3d at 690.
The Court is therefore within its discretion to dismiss the second complaint with prejudice, and that course is appropriate here. Ruiz presents no arguments for considering his additional claims beyond those which the Court already considered and denied in his motion for leave to amend. Further, as Plaintiff concedes, a grant of summary judgment on Ruiz's Title VII claims "would necessarily dismiss Ruiz's 1981 claims as well." (Doc. 77 at 6.) As the Court also grants Albertsons' motion for summary judgment, the claims Ruiz seeks to add in his second complaint are foreclosed in any event.
The Court grants summary judgment when 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). In making this determination, the Court views the evidence "in a light most favorable to the non-moving party." Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995). Although "[t]he evidence of [the non-moving party] is to be believed, and all justifiable inferences are to be drawn in [its] favor," the non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The non-moving party cannot avoid summary judgment by relying solely on conclusory allegations unsupported by facts. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). "A party asserting that a fact cannot be or is genuinely disputed must support the assertion by: (A) citing to particular parts of materials in the record . . . or other materials; or (B) showing that the materials cited do not establish the absence of presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed. R. Civ. P. 56(c). Substantive law determines which facts are material, and "[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). "A fact issue is genuine `if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002) (quoting Anderson, 477 U.S. at 248). Thus, the non-moving party must show that the genuine factual issues "can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Cal. Architectural Bldg. Prods., Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466 (9th Cir. 1987) (quoting Anderson, 477 U.S. at 250).
To prevail on a claim of national origin discrimination under Title VII, a plaintiff must establish a prima facie case of discrimination. Vasquez v. Cty. of L.A., 349 F.3d 634, 640 (9th Cir. 2003). If the plaintiff establishes a prima facie case of discrimination, the defendant has the burden to "articulate a legitimate, nondiscriminatory reason for its allegedly discriminatory conduct." Id. "If the defendant provides such a reason, the burden shifts back to the plaintiff to show that the employer's reason is a pretext for discrimination." Id.
A plaintiff may make out a prima facie case either by providing direct evidence of discriminatory intent or by proceeding under the framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Vasquez, 349 F.3d at 640 & n.5. The parties do not address any direct evidence of discriminatory intent, and the Court therefore proceeds to the McDonnell Douglas factors. Under this framework, a plaintiff makes a prima facie showing of national origin discrimination by demonstrating that: (1) he belongs to a protected class, (2) his job performance was satisfactory, (3) he suffered an adverse employment action, and (4) other similarly-qualified employees outside of the protected class were treated more favorably. 411 U.S. at 802; Vasquez, 349 F.3d at 640 n.5.
There is no dispute that Ruiz satisfies the first and third McDonnell Douglas prongs. He is a member of a protected class as an Hispanic American,
Ruiz presents evidence that a number of other drivers violated DOT regulations but were not fired. (Doc. 81 at 10-11.) But unlike any of the other drivers indicated by Ruiz, Ruiz was fired after he violated a DOT regulation within a year of having previously been suspended for a DOT violation, consistent with the progressive discipline policy testified to by Van Cleve and Krug. None of the other employees whose disciplinary records Ruiz presents were similarly situated as to their job performance. Most of the drivers Ruiz lists had only one or two violations. The two that Ruiz lists that had four total violations are instructive by comparison. Tom Melvin, a Caucasian driver, had four violations, but they occurred in 2001, 2002, 2006, and 2009, and as such were either verbal counselings or written warnings. (Doc. 81-8.) George Myers, an African-American driver, received a verbal counseling in July 2001 for a DOT violation.
Ruiz also alleges that he was subject to a hostile work environment on account of his national origin. To prevail on a claim of national origin harassment, a plaintiff must show "(1) that he was subjected to verbal or physical conduct because of his national origin; (2) `that the conduct was unwelcome'; and (3) `that the conduct was sufficiently severe or pervasive to alter the conditions of the plaintiff's employment and create an abusive work environment.'" Kang v. U. Lim America, Inc., 296 F.3d 810, 817 (9th Cir. 2002) (quoting Gregory v. Widnall, 153 F.3d 1071, 1074 (9th Cir. 1998)). "Generally, a plaintiff alleging racial or national origin harassment [will] present facts showing that he was subjected to racial epithets in the workplace." Id.
Ruiz asserts in his Response that "[t]here is evidence of such discrimination" and cites to his statement of facts. The facts cited provide no such evidence. Ruiz enumerates a number of write-ups he received that he "considered" to be "harassment and retaliation" because they were "undeserved." (Doc. 81 at 3-5.) He also sets forth facts indicating that John Everill had made discriminatory comments about Eastern Indians and African-Americans. (Doc. 81 at 6.) There are further factual allegations that Everill wanted to see Ruiz fired and was verbally abusive toward him, though the specifics of this verbal abuse are not given.
Lacking from any of this, however, is any evidence that Ruiz "was subjected to verbal or physical conduct because of his national origin," let alone that any such conduct was "severe or pervasive." Ruiz does not dispute that he cannot identify a single comment ever made to him about his national origin. (Doc. 72 at 10, Doc. 82 at 21.) He merely says that "he could tell that Everill was discriminating against him by the way Everill treated Plaintiff." (Doc. 82 at 21.) But "[t]he working environment must both subjectively and objectively be perceived as abusive." Fuller v. City of Oakland, Calif., 47 F.3d 1522, 1527 (9th Cir. 1995). Even in the light most favorable to Ruiz, there is no evidence that objectively indicates that Ruiz was subject to harassment based on his national origin. His claim alleging such harassment therefore fails.
The Civil Rights Act of 1964 "prohibits retaliation against an employee `because he has opposed any practice made an unlawful employment practice'" by Title VII. Nelson v. Pima Cmty. Coll., 83 F.3d 1078, 1082 (9th Cir. 1996) (quoting 42 U.S.C. § 2000e-3(a)). The elements of a Title VII retaliation claim are as follows: (1) the employee was engaged in a protected activity, (2) the employee was thereafter subjected by his employer to an adverse employment action, and (3) there was a causal link between the protected activity and the adverse employment action. Thomas v. City of Beaverton, 379 F.3d 802, 811 (9th Cir. 2004). But an employer may defeat such a claim on summary judgment by presenting legitimate, non-retaliatory and non-pretextual reasons for the adverse employment actions. Ray v. Henderson, 217 F.3d 1234, 1240 (9th Cir. 2000).
Protected activity includes formal and informal complaints of activity that the employee reasonably believes violates Title VII. See, e.g., id. at 1240 & n.3. By participating in the 2011 inquiry, and making complaints against John Everill, therefore, Ruiz engaged in protected activity. It is also undisputed that, twenty months after the inquiry, Ruiz was fired, and that this firing constitutes an adverse employment action. Ruiz further contends that each instance of discipline imposed against him after the inquiry also constitutes an adverse employment action. "[A]n action is cognizable as an adverse employment action if it is reasonably likely to deter employees from engaging in protected activity." Ray, 217 F.3d at 1243. Assuming without deciding that the discipline imposed on Ruiz qualifies as an adverse employment action, Ruiz's claim still fails for lack of a causal link.
The "causal link" is a "but-for" causal link; in other words, the adverse employment action must have taken place as a result of the protected activity. See Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S.Ct. 2517, 2533 (2013). It is undisputed that Ruiz violated DOT regulations, and that Albertsons has a progressive discipline policy dealing with violations of DOT regulations. It is also undisputed that Ruiz received numerous disciplinary citations prior to participating in the inquiry. He therefore cannot demonstrate a but-for causal link between his participation in the inquiry and the write-ups he received after.
Even assuming Ruiz could make out a prima facie case, viewing the evidence in the light most favorable to Ruiz, Ruiz's repeated violations of DOT regulations serve as a non-retaliatory reason for the write-ups and eventual termination.
It is also undisputed that no other Albertsons employee received the number of write-ups in quick succession that Ruiz did, and that no other Albertsons employee was fired under the progressive discipline policy. Ruiz argues that this shows that he was retaliated against, but it actually shows the opposite: That none of the other employees who participated in the inquiry received similar levels of discipline or were terminated shows that Albertsons's reasons for taking action against Ruiz were not pretextual. See Schiff v. City & Cty. of S.F., 528 F. App'x 758, 759-60 (9th Cir. 2013) (finding that a plaintiff had "not met his burden of demonstrating that the reasons proffered by the City [for not promoting him] were merely a pretext for a retaliatory motive" when "three others who engaged in the same protected activity as [the plaintiff] were promoted").
Ruiz's retaliation claim thus fails.
Ruiz also alleges a failure to accommodate. This claim, however, is time-barred. To bring a failure to accommodate claim under the ADA, a plaintiff must file a charge of discrimination with the Equal Employment Opportunity Commission within either 180 or 300 days of the alleged failure to accommodate. 42 U.S.C. § 2000e-5(e)(1); 42 U.S.C. § 12117(a).
In his initial Complaint, Ruiz asserted that he "made two requests for a reasonable accommodation" and that the "first request was made in late 2010 and the second [in] early 2011." (Doc. 1 at 10.) He conceded that he had mistakenly reported to the EEOC that he had made a request in January 2012. (Doc. 1 at 10.) In response to an interrogatory, Ruiz repeated the January 2012 date. (Doc. 81-22 at 14.) However, he clarified repeatedly in his deposition that any requests for accommodation were made close in time to each other, in late 2010 and early 2011:
(Doc. 72-1 at 39-46.) In his Response, Ruiz twice states that the final accommodation request occurred in January 2011, (Doc. 84 at 6, 9), and only states that it occurred in January 2012 in arguing that the request is not time-barred. (Doc. 84 at 8.) Regardless, in his sworn deposition, Ruiz stated that the 2012 date is incorrect, and he cannot create an issue of fact by simply contradicting his deposition testimony in part of his Response. See Kennedy v. Allied Mut. Ins. Co., 952 F.2d 262, 266 (9th Cir. 1991) ("[A] party cannot create an issue of fact by an affidavit contradicting his prior deposition testimony."); Foster v. Arcata Assocs., 772 F.2d 1453, 1462 (9th Cir. 1985) ("[I]f a party who has been examined at length on deposition could raise an issue of fact simply by submitting an affidavit contradicting his own prior testimony, this would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact."). With his requests for accommodation occurring in late 2010 and early 2011, Ruiz's filing with the EEOC in September 2012 was not timely filed and his failure to accommodate claim is accordingly time-barred.
The basis for Ruiz's disparate treatment ADA claim is not entirely clear from his Complaint or his Response to the pending summary judgment motion. Ruiz states in his Response that the request for accommodation "and Albertson's inaction thereafter are the basis for Ruiz's ADA claim[] of . . . disparate treatment." (Doc. 84 at 8.) He also appears to argue that the alleged failure to accommodate was based in discrimination against his national origin and in retaliation for his participation in the protective inquiry. (Doc. 84 at 8-9.) Nevertheless, as each of these theories depends on the alleged failure to accommodate, Ruiz's disparate treatment claim is also time-barred.
Plaintiff Fred Ruiz has failed to raise any genuine issues of material fact that entitle him to survive Albertsons's motion for summary judgment. Accordingly, summary judgment is granted for Albertsons on all of Ruiz's claims. Further, his second complaint, alleging violations of 42 U.S.C. § 1981, is dismissed.
