Leatherbury v. C&H Sugar Co.

• Decision Date: 29 November 2012
• Docket Number: No. CV 10–01969 SI.,CV 10–01969 SI.
• Court: U.S. District Court — Eastern District of California
• Parties: Glenn LEATHERBURY, Plaintiff, v. C & H SUGAR CO., INC.; American Sugar Refining, Inc.; and Does 1–100, Defendants.

911 F.Supp.2d 872

Glenn LEATHERBURY, Plaintiff,

v.C & H SUGAR CO., INC.; American Sugar Refining, Inc.; and Does 1–100, Defendants.

No. CV 10–01969 SI.

United States District Court,

N.D. California.

Nov. 29, 2012.

Kenneth N. Frucht, Frederick J. Geonetta, Geonetta & Frucht, Andrew Jonathon Sommer, Matthew A. Goodin, Epatein Becker & Green, P.C., Lauren Michele Cooper, Ogletree, Deakins, Nash, Smoak & Stewart, P.C, San Francisco, CA, Brooke Ashley Brown, Sacramento, CA, for Plaintiff.

Steven R. Blackburn, Brooke Ashley Brown, Matthew A. Goodin, Epstein Becker & Green, P.C., Andrew Jonathon Sommer, Epatein Becker & Green, P.C., Lauren Michele Cooper, Ogletree, Deakins, Nash, Smoak & Stewart, P.C, San Francisco, CA, for Defendants.

ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

SUSAN ILLSTON, District Judge.

On November 8, 2012, the Court heard oral argument on defendants' motion for summary judgment. The Court directed the parties to submit supplemental briefing on plaintiff's cause of action for failure to pay overtime. Having carefully considered the arguments of counsel and the papers submitted, the motion is GRANTED, for the reasons set forth below.

BACKGROUND

Plaintiff Glen Leatherbury was hired by defendant C & H Sugar Co., Inc. as a Warehouse Supervisor in March 2007, and he was fired two years later in May 2009. Leatherbury filed a complaint in April 2010 against defendants C & H Sugar Co., Inc., American Sugar Refining, Inc., and Does 1–100 (collectively “C & H”). Of his causes of action still contested, he alleges violations of the Fair Employment and Housing Act (“FEHA”) for (1) disability discrimination; (2) failure to engage in an interactive process for his disability; (3) failure to accommodate; (4) race discrimination; (5) retaliation; (6) wrongful termination; (7) failure to prevent discrimination and retaliation; and (8) a violation of California Labor Code § 510 for failure to pay overtime.

1. Early Performance at C & H

Plaintiff Leatherbury was interviewed by C & H before he was hired as a Warehouse Supervisor in March 2007. Decl. of Glenn Leatherbury in Supp. of Pl.'s Opp'n to Defs.' Mot. for Summ. J. (“Leatherbury Decl.”) at ¶ 3. Prior to C & H, Leatherbury had served in the United States military, and worked as a logistical manager. Id. at ¶ 2. During the interview, HR Manager Kyle Stradleigh told him that C & H had an adversarial relationship with the unions. Id. at ¶ 3. Leatherbury had never worked with union employees before. Id.

As a Warehouse Supervisor, Leatherbury's main duty was to supervise a shift of 8–12 union employees, which included giving safety briefs, getting feedback on safety issues, speaking to employees on safety issues, reporting employee misconduct, and giving employees verbal or written warnings. Id. at ¶ 6–8. Additionally, he prepared shift reports, checked the plant for cleanliness, dealt with customer service, responded to various issues, and participated in managerial meetings. Id. His typical day began as follows: he reviewed the previous shift report for problems, he analyzed the bills of lading to decide whether to load sugar from AS/RS or the floor inventory, he checked Kronos to see if his union employees punched in correctly, he would pull an extra worker off the belt or the spur if he was short, he would check emails for 10–15 minutes, he would inspect the trucks and equipment, and then he would give a safety briefing to his crew. Supplemental Decl. of Matthew A. Goodin in Supp. of Defs.' Mot. for Summ. J., Ex. A (“Leatherbury Dep. II”) 106, 108–11,118–20. For the remainder of his shift, he would patrol the warehouse to monitor his union employees, and then spend 5–10 minutes each hour updating his shift report. Id. at 43, 85, 118–19.

Warehouse Superintendents do not have the authority to hire or fire union employees. However, it was the practice at C & H for them to sit in on interviews, and their opinion was given a great deal of deference and weight. Decl. of Kyle Stradleigh in Supp. of Defs.' Supplemental Brief in Supp. of Mot. for Summ. J. (“Stradleigh Decl.”) ¶ 4; Supplemental Decl. of Francine Cronin in Supp. of Defs.' Mot. for Summ. J. (“Cronin Supplemental Decl.”) ¶ 3. Under HR Manager Stradleigh, Leatherbury could issue a verbal or a written warning to a union employee at his discretion. Stradleigh Decl. ¶ 5; Leatherbury Dep. II at 77–78. Under Cronin, who replaced Stradleigh in March 2008, Leatherbury had to get approval to issue a written, but not a verbal, warning, although Cronin gave a great deal of deference to discipline recommendations. Cronin Supplemental Decl. ¶ 4; Leatherbury Dep. II at 75–76. Stradleigh stated that he would give a “great deal of deference” to a Warehouse Supervisor's recommendation to fire an employee because the supervisor was “closer to the particular situation than [Stradleigh] was.” Stradleigh Decl. ¶ 5. Similarly, Cronin stated that she “would give a great deal of deference” to a Warehouse Supervisor's recommendation for termination. Cronin Supplemental Decl. ¶ 4.

In April 2007, Leatherbury received his first performance review by then-Warehouse Manager Don White. Kenneth N. Frucht's Decl. in Supp. of Pl.'s Opp'n to Defs.' Mot. for Summ. J. (“Frucht Decl.”), Ex. L. The summary appraisal rating was “Needs Improvement: Indicates performance that does not meet the established requirements of the position .... appropriate for employees that are new to a position where there is need for continual learning to get up to speed.” Id. (emphasis in original).

In March 2008, Lemmie Adams, an African–American, was hired as the new Warehouse Manager. Leatherbury Decl. ¶ 14. In July 2008, Leatherbury received a performance review from Adams. Id., Ex. M. The summary appraisal rating was “Met Expectations,” and in the category of technical knowledge he was above expectations. Id. On December 16, 2008, Leatherbury sent HR Manager Francine Cronin an email alleging that Adams was racially discriminating against Caucasian Warehouse Supervisors, because he praised Stacy Wise, an African–American, for loading 43 trucks on his shift, but did not praise Leatherbury, a Caucasian, for loading 44 trucks. Frucht Decl., Ex. H. Additionally, when Wise loaded 43 trucks again, Adams put the achievement on the bulletin board with a “gold star,” but did not give any recognition to Leatherbury when he loaded 41 trucks. Id. Leatherbury alleges that Cronin did not respond to the email, Leatherbury Decl. ¶ 18, although Cronin remembers speaking to him about it, Frucht Decl., Ex. I.

In March 2009, Mike Burchell, the Process Manager, made a request to Thomas Merritt, the Refinery Manager, for assistance on the docks. Decl. of Thomas “Kim” Merritt in Supp. of Defs.' Mot. for Summ. J. (“Merritt Decl.”) ¶ 4. Merritt approved the transfer of Leatherbury to help Burchell on the docks. Leatherbury Decl. ¶ 21. Leatherbury thought his new position was great, although he incorrectly thought Adams was responsible for his move. Id. Lemmie Adams was fired that same month. Merritt Decl. ¶ 5.

2. Leatherbury's Performance as Packing Supervisor

In May 2009, as part of a reorganization, Leatherbury was assigned to a new position as a second Packing Supervisor, and he was supervised by Cliff Sullivan and Sam Lee. Leatherbury Decl. ¶¶ 22–23; Merritt Decl. ¶ 6. After a week, Lee and Sullivan gave him an informal verbal quiz, and Leatherbury performed poorly. Leatherbury Decl. ¶ 24. Sullivan reported to Merritt that he was not satisfied with Leatherbury's progress. Decl. of Clifford D. Sullivan in Supp. of Defs.' Mot. for Sum. J. (“Sullivan Decl.”) ¶ 4. He also reported that Leatherbury had said he did not like his new position because his last position was easier, and this demonstrated his poor attitude. Sullivan Decl. ¶ 3; Merritt Decl. ¶ 7. Leatherbury admits that he said he was not excited about his new position, although he denies that he said that his previous position was easier. Leatherbury Decl. ¶ 24.

Later that day, Leatherbury observed boxes piling up on a conveyor belt, in what he perceived was a dangerous situation. Leatherbury Decl. ¶ 25. He knew that only a union employee should fix the conveyor jam, but after waiting five minutes, Leatherbury cleared the conveyor himself. Id. A union employee saw this incident and complained to the union; later Sullivan told Leatherbury that he had violated the union collective bargaining agreement, and only a union employee should have cleared the conveyor jam. Id.

On May 28, 2009, Lee told Sullivan that he had heard a report from two union employees that Leatherbury had been talking to them in the locker room, and had told them that it would not matter if the union went on strike, because C & H would just bring in replacement employees from the East Coast. Sullivan Decl. ¶ 6. Sullivan called these two employees into his office, and they confirmed these comments. Id. Sullivan and Lee then called Leatherbury into the office, but Leatherbury denied making the statements. Id.; Leatherbury Decl. ¶ 28. Leatherbury suggested that the union employees might be out to get him, but confirmed that he had never worked with these two employees before. Sullivan Decl. ¶ 6.

3. Termination Decision

Throughout May 2009, Merritt and Kenneth Engel, the Vice President of HR, were engaged in delicate negotiations with two workers unions over new collective bargaining agreements. Merritt Decl. ¶ 8. In prior negotiations, C & H had expressed an intent to remove the belt foreman job. Id. By 2009, C & H no longer intended to remove that job, but the unions were skeptical of C & H's new position. Id.; Decl. of Kenneth J. Engel in Supp. of Defs.' Mot. for Summ. J. (“Engel Decl.”) ¶ 4. When Leatherbury cleared the conveyor jam, he was performing work that should have been done by the belt foreman. Merritt Decl. ¶¶ 9–10; Engel Decl. ¶ 5.

Leatherbury's clearing of the conveyor and his comments to the other union employees about...