Equal Emp't Opportunity Comm'n v. Timeless Investments Inc. Dba Ez Trip Golden State Convenience, 1:08-cv-1469 AWI SMS

Citation734 F.Supp.2d 1035
Decision Date13 August 2010
Docket NumberNo. 1:08-cv-1469 AWI SMS,1:08-cv-1469 AWI SMS
PartiesEQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. TIMELESS INVESTMENTS, INC. dba EZ Trip Golden State Convenience and Auto/Truck Plaza, and Does 1-5, inclusive, Defendant.
CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California

Anna Y. Park, Amrita Mallik, Lorena Garcia, U.S. Equal Employment Opportunity Commission, Los Angeles, CA, for Plaintiff.

Hadi Ty Kharazi, The Law Offices of H. Ty Kharazi, P.C., Fresno, CA, for Defendant.

ORDER ON DEFENDANT'S AND PLAINTIFF'S RESPECTIVE MOTIONS FOR SUMMARY JUDGMENT

ANTHONY W. ISHII, Chief Judge.

This is a suit brought under 29 U.S.C. § 621 et seq., the Age Discrimination in Employment Act ("ADEA"), by the Equal Employment Opportunity Commission ("EEOC") against Defendant Timeless Investments, Inc. ("Timeless"). The EEOC brings this suit on behalf of two charging parties, James Rex ("Rex") and Larry Carlberg ("Carlberg"), who unsuccessfully applied for employment with Timeless. The EEOC seeks injunctive relief for the public interest and seeks compensatory and liquidated damages for Rex and Carlberg. Both parties move for summary judgment-Timeless on the claims against it and the EEOC on various affirmative defenses. For the reasons that follow, the motions will be granted in part and denied in part.

BACKGROUND 1

Timeless operates Klein's Truck and Auto Plaza, which is located in Fresno,California, and consists of a convenience store and gas station ("EZ Trip"), a fuel desk or plaza ("the Plaza"), a truck repair shop, and a restaurant. See PUF 1.1. In July 2004, Timeless had an opening for cashier positions because at least four cashiers had ended their employment. See PUF 1.2,2 11.6, 11.7. Specifically, four cashiers separated from Timeless on June 21, 2004, and a fifth separated on July 19, 2004. See PUF 11.6. Sometime in the summer of 2004, Timeless placed an advertisement in the Fresno Bee confirming that they were looking for a cashier. PUF 1.8. The advertisement read: "CASHIER STOCKING: Up to $10/hr., apply in person, see manager @----N. Golden State Blvd., near Herndon." Plaintiff's Ex. 169; see also PUF 7.1. Timeless received over 160 applications in response to this add. See DUF 37; see also PUF 11.2. Insurance benefits were not provided for the cashier positions. See Shiralian Dec. ¶ 11. In July 2004, Timeless's president Shawn Shiralian ("Shiralian") was responsible for hiring management level employees, and former general manager, Harry Rafayelyan ("Rafayelyan") was responsible for hiring non-management employees, including cashiers. See PUF 1.3, 3.14, 13.7; DRPUF 1.3; Plaintiff's Ex. 230.

Rex saw the add in the Fresno Bee. See Defense Ex. B. On July 5, 2004, Rex filled out an application with Timeless. PUF 3.1. Rex was told by "Alicia" to write his age on the application because the manager wanted to know the applicant's age.3 Id.; 4 see also DUF 11. Rex wrote his age on the application. See Defense Ex. B. Rex was 60 years old in July 2004. See PUF 3.9. Rex's application indicates that he was currently employed at a Mobil gas station as a cashier, he had been employed as a cashier since March 15, 2004, he was also currently employed as a caterer, he was a high school and trade school graduate, he requested a salary of $9.00/hour, and he could start work on July 20, 2004, i.e. in roughly two weeks. See Defense Ex. B; see also PUF 5.2; DUF 3. Rex was neither interviewed nor hired by Timeless. PUF 6.1.

Carlberg saw Timeless's advertisement in the Fresno Bee and went to the identified location to apply on July 6, 2004. See PUF 2.2; Defense Ex. C. When Carlberg submitted his application, he was asked by a female clerk to write his age on the upper right hand corner of the application. PUF 2.3; see also DUF 11. Carlberg questioned the clerk's request. See id. Carlberg told the clerk, "I thought you were not supposed to ask me my age." PUF 2.4. The clerk told him that it might be to his advantage to write down his age because the younger men who had beenhired did not show up for work. See Carlberg Depo. 27:1-3. Carlberg wrote his age in the upper right hand corner of his application. See Defense Ex. C. Carlberg was 62 years old in July 2004. PUMF 2.1. Carlberg's application indicated that he was employed part time, he was employed as a "driver" making $8.00/hour, he was a high school graduate, he desired a wage of $10.00/hour, he could start the next day (July 7, 2004), and that his previous jobs were as a tree trimmer/greens keeper. See Defense Ex. C. Carlberg's application does not indicate that he had any cashier experience. See id. At some point while speaking with the clerk, the manager was referenced, the clerk pointed out the manager, and the manager looked at Carlberg and told Carlberg that he would call him. See Carlberg Depo. 32:23-33:9.5 Carlberg was neither interviewed nor hired by Timeless. PUF 6.1.

On July 14, 2004, Timeless hired Paul H., who was 30 years old, as a cashier. See PUF 6.2, 11.7, 12.20; Plaintiff's Ex. 168; Court's Docket Doc. No. 32 at p. 6 & No. 39 at 5. On July 15, 2004, Timeless hired Marisela G., who was 18 years old, as a cashier. See id. On July 22, 2004, Timeless hired Jessica G., who was 21 years old, as a cashier. See id.; PUF 10.10. On July 29, 2004, Timeless hired Dominique C., who was 27 years old, as a cashier. See id. On October 20, 2004, Timeless hired Steve F., who was 21 years old, as a cashier. See id. Marisela G's application and Steve F.'s application do not indicate any prior cashier experience. See PUF 6.3, 6.4, 9.1; Plaintiff's Exs. 131, 133.

Rafayelyan declared that he does not recall receiving Rex and Carlberg's applications, does not recall interviewing anyone within a week of July 4 because he would have been too busy to do so, and generally reviews the most recent applications unless there are no qualified individuals among the most recent applications. See Rafayelyan Dec. ¶ 9. With respect to the reasons for not hiring Rex and Carlberg, Rafayelyan declares:

Assuming I did review their applications, I would not have interviewed them in any event. That is because Mr. Rex was working two other jobs and not immediately available, and Mr. Carlberg [ ] had no experience as a cashier. With 160 applications for a single position, I had the luxury of being very 'picky' and would skip over the application of any candidate who was less than perfect who had immediate availability. Neither claimant fit the need I had at the time.
If a candidate was not available to work immediately I did not consider them, as I did not want to wait for the candidate to give the customary two weeks notice to the other employer. When hiring, I usually needed to fill a position quickly and did not have two weeks to spare for any candidate, no matter how qualified. Mr. Rex was not immediately available.

Id. at ¶¶ 10, 11; see also DUF's 24-27, 32.

On or about July 29, 2004, Rex filed a charge of age discrimination against Timeless. PUF 8.1. Under the "particulars" section of the charge, Rex indicated, "On July 5, 2004, I filled out an application for employment with [Timeless]. When I submitted the application, [Timeless] told me to write my age on the upper right-hand corner of the application. I was not selected for the position. [Timeless]'s employee Alicia (LNU) told me that her manager liked to know the age of each applicant. Ibelieve I was discriminated against because of my age." Defense Ex. H.

On or about November 23, 2004, Carlberg filed a charge of discrimination against Timeless. PUF 8.2. The "particulars" section of the charge generally follows, and is consistent with, Carlberg's deposition testimony-a female clerk asked for his age, Carlberg stated that he did not think that this could be asked, and the clerk responded that it might be to his advantage because the younger hires had caused trouble. See Defense Ex. J.6

On October 4, 2004, and December 3, 2004, Timeless sent the EEOC various documents and information. See Defense Exs. E, F. On September 28, 2006, the EEOC sent Timeless a letter of determination. See PUMF 8.9. On January 24, 2008, the EEOC a letter to Timeless and offered to conciliate. See Plaintiff's Exs. 179, 180. On February 29, 2008, the parties had a conciliation meeting. See Plaintiff's Ex. 206. On September 29, 2008, the EEOC filed this lawsuit. PUMF 8.15. Sometime in December 2008, Rex died. See Nostrant Depo. 51:23-25.

SUMMARY JUDGMENT FRAMEWORK

Summary judgment is appropriate when it is demonstrated that there exists no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Fortyune v. American Multi-Cinema, Inc., 364 F.3d 1075, 1080 (9th Cir.2004). The party seeking summary judgment bears the initial burden of informing the court of the basis for its motion and of identifying the portions of the declarations (if any), pleadings, and discovery that demonstrate an absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir.2007). A fact is "material" if it might affect the outcome of the suit under the governing law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Thrifty Oil Co. v. Bank of America Nat'l Trust & Savings Assn., 322 F.3d 1039, 1046 (9th Cir.2002). A dispute is "genuine" as to a material fact if there is sufficient evidence for a reasonable jury to return a verdict for the non-moving party. Anderson, 477 U.S. at 248, 106 S.Ct. 2505; Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir.2006).

Where the moving party will have the burden of proof on an issue at trial, the movant must affirmatively demonstrate that no reasonable trier of fact could find other than for the movant. Soremekun, 509 F.3d at 984...

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