113 F.3d 912 (9th Cir. 1996), 95-15090, Nidds v. Schindler Elevator Corp.

Docket Nº:95-15090.
Citation:113 F.3d 912
Party Name:, 37 Fed.R.Serv.3d 591, 97 Cal. Daily Op. Serv. 3154, 97 Daily Journal D.A.R. 5505 Raymond Vincent NIDDS, Plaintiff-Appellant, v. SCHINDLER ELEVATOR CORPORATION, Defendant-Appellee.
Case Date:December 24, 1996
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 912

113 F.3d 912 (9th Cir. 1996)

, 37 Fed.R.Serv.3d 591,

97 Cal. Daily Op. Serv. 3154,

97 Daily Journal D.A.R. 5505

Raymond Vincent NIDDS, Plaintiff-Appellant,



No. 95-15090.

United States Court of Appeals, Ninth Circuit.

December 24, 1996

Argued and Submitted Aug. 15, 1996.

Amended April 30, 1997.

Page 913

[Copyrighted Material Omitted]

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Kendra L. Tanacea, San Francisco, California, William C. Quackenbush, Quackenbush & Quackenbush, San Mateo, California, for plaintiff-appellant.

Rebecca Hull, Cynthia H. Plevin, Sedgwick, Detert, Moran & Arnold, San Francisco, California, for defendant-appellee.

Appeal from the United States District Court for the Northern District of California, Vaughn R. Walker, District Judge, Presiding. D.C. No. CV-92-02177-VRW.




The opinion filed in this case on December 24, 1996, (slip op. 16047), 103 F.3d 854, is hereby amended as attached.

With this amendment, a majority of the panel voted to deny appellant's petition for rehearing. Judge Thompson voted to reject the suggestion for rehearing en banc and Judge Sneed so recommended. Judge Noonan voted to grant the petition for rehearing and to accept the suggestion for rehearing en banc.

The full court has been advised of the suggestion for en banc rehearing, and no judge has requested a vote on whether to rehear the matter en banc. Fed.R.App.P. 35.

The petition for rehearing is denied, and the suggestion for rehearing en banc is rejected.

Before: SNEED, NOONAN, and THOMPSON, Circuit Judges.

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SNEED, Circuit Judge:

Raymond Vincent Nidds appeals the grant of summary judgment in favor of his former employer, Schindler Elevator Corp. ("Schindler"), on his California Fair Employment and Housing Act ("FEHA") discrimination and retaliation claims. Federal jurisdiction is based on the parties' diversity of citizenship. Nidds also contests the district court's refusal to continue discovery before ruling on Schindler's summary judgment motion. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.



Nidds was a highly experienced, 54-year-old elevator service mechanic when he was hired by Schindler on June 13, 1988, and assigned to a downtown San Francisco service route. He was well-liked by his customers and his employer. Sometime in 1989 or 1990, Schindler's District Service Supervisor, Darrel Graham, allegedly told another service mechanic that he intended to get rid of all the "old timers" because they would not "kiss my ass." On October 5, 1990, Nidds and two other service mechanics were laid off. Graham wrote a favorable letter of recommendation for Nidds, and assured him that he would be considered for reemployment should business pick up. Shortly thereafter, his route was assigned at least in substantial part to 25-year-old Greg Cardenas, a former "helper" (an apprentice) employed by Schindler since 1985, who had passed his mechanic's test only 30 days earlier.

When Nidds learned that his route had been assumed by Cardenas, he filed an age discrimination complaint with the California Department of Fair Employment and Housing ("DFEH") on December 7, 1990. The investigation by DFEH revealed that Schindler laid off a total of eleven employees during 1990 due to a purported downturn in business. Sixty-four percent of those employees were over 40 years old. Asked how it selected employees for layoff, Schindler initially responded that seniority was the basis, and later, that it looked at a combination of factors, including seniority, job performance, special expertise, and competence. Schindler explained that Nidds was overall a very good employee but that he was less proficient on the modern "Solid State" equipment than other mechanics. As to Nidds' claim that there was no downturn in work in the company's service arm, Schindler explained that the downturn was in the construction arm, and that its practice was to shift its best employees from construction to service to avoid losing them to competitors, and to lay off employees from service to compensate. In November 1991, the DFEH informed Nidds that it would not pursue his claim.

Earlier Schindler had made two offers to rehire Nidds, the first for a route in Fresno, the second for an Oakland route; Nidds rejected the first but accepted the latter in January 1991. Schindler soon began receiving complaints from the manager of 1800 Harrison, a building that accounted for 60% of the revenues on the Oakland route. Schindler also allegedly received complaints from its troubleshooters, who said that Nidds needed their help more than did other mechanics.

In March 1992, Nidds was purportedly asked by a supervisor whether he had dropped his DFEH complaint, to which he replied that he had not. Later that month, Nidds' attorney informed Schindler of Nidds' intention to sue the company for age discrimination. In April 1992, Schindler removed Nidds from the Oakland route and assigned him to the restoration department. Although his compensation was unaffected, Nidds characterizes this transfer as a demotion. In response, Nidds filed a second complaint, charging age discrimination and retaliation, with the DFEH on June 10, 1992.

Schindler transferred Nidds again in June 1992, from the restoration department to a service route that included the Geneva Towers, an allegedly high-crime housing complex in San Francisco. On June 26, Nidds left Geneva Towers in the middle of the day after learning of riots at nearby Woodrow Wilson High School. Although he returned later in the afternoon to repair two malfunctioning

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elevators, his behavior annoyed Geneva Towers' management. A subsequent cascade of meetings and correspondence between Geneva Towers and Schindler resulted in a decision to remove Nidds from the route. Nidds, who went on vacation from July 2 to July 22, learned of this decision on his return. Shortly thereafter, on July 28, he was laid off for the second and final time.

Nidds filed his employment discrimination and retaliation complaint in California Superior Court on May 5, 1992. In June, Schindler removed the action to federal court based on the parties' diversity of citizenship. Following extensive discovery by Nidds' attorney and several discovery disputes during 1992 and 1993, the magistrate set a discovery cutoff date of November 1, 1993. On July 23, however, Schindler proceeded to move for summary judgment. Nidds requested a continuance so that he could depose several of Schindler's declarants and obtain additional documents. The district court denied the continuance in August, but deferred ruling on the summary judgment motion to allow Nidds to take three more depositions and to allow time for supplemental briefing. The depositions were never taken, and on November 17, 1994, the district court granted Schindler's motion for summary judgment on all of Nidds' claims. Nidds timely appealed.



We review the district court's grant of summary judgment on both the age discrimination and retaliation claims de novo. Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir.1995), cert. denied, 516 U.S. 1171, 116 S.Ct. 1261, 134 L.Ed.2d 209 (1996). We must decide whether there is a "genuine issue as to any material fact." Fed.R.Civ.P. 56(c) (emphasis added). The criteria of "genuineness" and "materiality" are distinct requirements. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). The requirement that an issue be "genuine" relates to the quantum of evidence the plaintiff must produce to defeat the defendant's motion for summary judgment. There must be sufficient evidence "that a reasonable jury could return a verdict for the nonmoving party." Id. at 248, 106 S.Ct. at 2510. "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Id. at 249-50, 106 S.Ct. at 2511.

"As to materiality, the substantive law will identify which facts are material." Id. at 248, 106 S.Ct. at 2510. Nidds' age discrimination claim, which relates to his October 1990 layoff, is based on the California Fair Employment and Housing Act ("FEHA"). FEHA reads in relevant part:

It is an unlawful employment practice for an employer to refuse to hire or employ, or to discharge, dismiss, reduce, suspend, or demote, any individual over the age of 40 on the ground of age, except in cases where the law compels or provides for such action.

Cal. Gov't Code § 12941. California courts interpreting FEHA often look to federal cases interpreting the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621 et seq., and Title VII of the Civil Rights Act, 42 U.S.C. §§ 2000e et seq. See Stephens v. Coldwell Banker Commercial Group, Inc., 199 Cal.App.3d 1394, 245 Cal.Rptr. 606, 609 (1988). Therefore, we too rely on such cases where helpful.

An age discrimination case alleging disparate treatment, such as this one, involves shifting burdens of proof as follows:

[A] plaintiff must first establish a prima facie case of discrimination. If the plaintiff establishes a prima facie case, the burden then shifts to the defendant to articulate a legitimate nondiscriminatory reason for its employment decision. Then, in order to prevail, the plaintiff must demonstrate that the employer's alleged reason for the adverse employment decision is a pretext for another motive which is discriminatory.

Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir.1994) (quoting Lowe v. City of Monrovia, 775 F.2d 998, 1005 (9th...

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