Gathenji v. Autozoners LLC, Case No. CV-F-08-1941 LJO JLT.

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
Citation703 F.Supp.2d 1017
Docket NumberCase No. CV-F-08-1941 LJO JLT.
PartiesRichard GATHENJI, Plaintiff,v.AUTOZONERS, LLC, and Rick Torres, Defendants.
Decision Date10 March 2010

703 F.Supp.2d 1017

Richard GATHENJI, Plaintiff,
AUTOZONERS, LLC, and Rick Torres, Defendants.

Case No. CV-F-08-1941 LJO JLT.

United States District Court,
E.D. California.

March 10, 2010.

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703 F.Supp.2d 1019


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Donald James Aaron Brock, Ellen E. Cohen, Joseph M. Lovretovich, Law Offices of Joseph M. Lovretovich, Woodland Hills, CA, for Plaintiff.

Daniel J. Cravens, Littler Mendelson, Fresno, CA, for Defendants.
LAWRENCE J. O'NEILL, District Judge.

Defendants Autozoners, LLC. (“Autozone”) and Rick Torres (“Mr. Torres”) (collectively “defendants”) move for summary judgment against plaintiff Richard Gathenji (“Mr. Gathenji”). Mr. Gathenji, an Autozone employee, asserts ten claims against defendants for race and national origin discrimination, harassment, and retaliation. Defendants contend that the uncontroverted evidence establishes that Mr. Gathenji's demotion was legitimate and based on a non-discriminatory reason; Mr. Gathenji's harassment and retaliation claims fail; Mr. Gathenji failed to exhaust administrative remedies as to his claims against Mr. Torres; and Mr. Gathenji is unable to pursue punitive damages. Mr. Gathenji opposed the motion successfully to establish a prima facie case for discrimination, but failed to establish his harassment and retaliation claims. In addition, while Mr. Gathenji exhausted administrative remedies against Mr. Torres, he may not pursue exemplary damages against defendants. Accordingly, this Court GRANTS in part and DENIES in part defendants' summary judgment motion.

Background 1

Autozone hired Mr. Gathenji, an African American male of Kenyan origin, on October 17, 2003. Mr. Gathenji was placed into the Manager-in-Training Program immediately. Upon completion of the Manager-in-Training Program, then district manager Dave Clark (“Mr. Clark”) promoted Mr. Gathenji to store manager at Store No. 3311 on November 23, 2003. Mr. Gathenji worked as store manager until July 1, 2007, when he was demoted to parts sales manager by district manager Mr. Torres.

Mr. Gathenji's Claims

Mr. Gathenji's discrimination, harassment, and retaliation claims arise from his treatment by Mr. Torres. Mr. Gathenji contends that his first few years as store manager passed without incident. After Mr. Torres replaced Mr. Clark as district manager in August 2005, however, Mr. Torres discriminated against and harassed Mr. Gathenji. Mr. Gathenji claims that almost immediately after Mr. Torres became district manager, Mr. Gathenji was subjected to Mr. Torres' unwarranted verbal and written reprimands; differential treatment with respect to the severity and manner of disciplinary actions imposed for

703 F.Supp.2d 1022
similar conduct as other store managers; requirements to do extra work and complete the jobs of other employees; transfer to a different Autozone location further from his house; and being undermined by Mr. Torres in front of his employees and other district managers. Mr. Torres' discrimination and harassment culminated in Mr. Gathenji's demotion. Mr. Gathenji offers the following evidence of discrimination, harassment, and retaliation:
Loss Prevention Audits and Reports

As store manager, Mr. Gathenji was responsible for minimizing inventory losses to theft and mismanagement. Gathenji Depo., pp. 37-38; Fonseca Decl., ¶ 4; Gonzalez Decl., ¶ 4. Mr. Gathenji's responsibilities as an Autozone store manager required him to fill out paperwork on a daily, weekly, and monthly basis and to make daily cash drops into a safe. In addition, Autozone requires store managers to pass loss prevention audits and prepare loss prevention reports.

A store manager's loss prevention performance is measured by the district manager who performs the loss prevention audit. Torres Decl., ¶ 6. A loss prevention audit consists of a pre-printed form that is filled out by the district manager. Id. The loss prevention audit measures the effectiveness of the store's inventory control procedures using a number of objective and subjective factors related to paperwork control, store organization and cleanliness. The audit metrics included, among others, the store manager's next day review, money safe logs, footprints on the profit and loss statement, and overstock audit. Mr. Gathenji contends that Mr. Torres treated him differently from other store managers on his loss prevention audits and reports in a number of ways, as described below:

Manager's Same Day Report and Loss Prevention Form

Mr. Torres penalized Mr. Gathenji for initialing, rather than signing, his Manager's Same Day Report. Gathenji Depo., p. 118. Mr. Torres allowed other managers, including Mr. Fonseca and Mr. Gonzalez, to initial the form without incident or disciplinary action. Fonseca Decl., ¶ 5.

Similarly, Mr. Torres penalized Mr. Gathenji's loss prevention audit twenty points for initialing it, rather than signing it with a full signature. Gathenji Depo., p. 116. Mr. Gathenji did not penalize other district managers for initialing the report. Id.

Weekly Recaps, Vendor Merchandise Reports, and Score Changes

Mr. Torres penalized Mr. Gathenji if his weekly recaps were incomplete or not up-to-date. Gathenji Depo., p. 133. Mr. Torres signed off on other managers' weekly recap reports, however, even when they were incomplete or insufficient. Gathenji Depo., p. 131; Peraza Decl., ¶ 4; Huchason Decl., ¶ 7; Fonseca Decl., ¶ 6; Campos Decl., ¶ 4. Similarly, Mr. Torres approved other managers' incomplete vendor merchandise reports, whereas he would penalize Mr. Gathenji if his vendor merchandise report was incomplete. Gathenji Depo., p. 134. Moreover, Mr. Torres would work with other store managers to fix their audits before signing off on them and asked other store managers to doctor the results to receive a passing score. Fonseca Decl., ¶ 6; Campos Decl., ¶ 4. Mr. Torres never extended this courtesy to Mr. Gathenji.

Audit Visits and Advance Notice

Mr. Torres would audit other stores every 90 days or every 60 days, but he audited Mr. Gathenji's store every month. Gathenji Depo., pp. 35-36; Torres Depo., p. 34. In addition, Mr. Torres' audit of Mr. Gathenji's store was unannounced.

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Mr. Torres called to forewarn other store managers, including Mr. Fonseca and Mr. Martin, that he would visit the store for a loss prevention audit. Gathenji Depo., pp. 84-85, 136-37; Peraza Decl., ¶ 5. Mr. Torres' phone calls allowed Phillip Fonseca (“Mr. Fonseca”) and Martin Gonzalez (“Mr. Gonzalez”) to prepare the store for the audit. Mr. Torres also called Sandra Fonseca to give notice of his audit. Gathenji Depo., p. 137; S. Fonseca Decl., ¶¶ 3-4. Mr. Gathenji never received a phone call from Mr. Torres prior to an audit Id.

Mr. Gathenji claims that Mr. Torres also pre-informed multiple district managers that regional district manager Phil Lester would be visiting the region for a check-up. Mr. Gathenji reports that all of the store managers he spoke with-Joanne Grove, Patrick Ray, and Rudy Rosetta-told him that Mr. Torres gave them advanced notice that Mr. Lester would be coming to the district. Gathenji Depo., p. 107. Mr. Gathenji received no such notice.


Mr. Torres penalized Mr. Gathenji if one item out of 100 boxes of items was out of place. Gathenji Depo., pp. 76-79, 87-88, 124-25. Mr. Fonseca and Mr. Gonzalez, however, were never penalized by Mr. Torres notwithstanding the fact that their overstock areas were more disorderly than Mr. Gathenji's overstock area. Gathenji Depo., p. 125.

Inventory Matrix

Mr. Gathenji was treated differently with regard to completing the inventory matrix. Generally, Mr. Torres allowed any member of management to complete the inventory matrix, including assistant managers. Huchason Decl., ¶ 8. As such, Keith Huchason (“Mr. Huchason”), an assistant manager who worked under Mr. Hernandez, was allowed by Mr. Torres to complete the inventory matrix for Mr. Hernandez. Id. When Mr. Huchason was employed under Mr. Gathenji, however, Mr. Torres required Mr. Gathenji to complete the inventory matrix. Id. Mr. Torres never allowed Mr. Huchason to complete the inventory matrix for Mr. Gathenji. Id.

Staffing Issues
Insufficient Staff

According to Mr. Gathenji, Mr. Torres harassed and discriminated against Mr. Gathenji in terms of his staff. Mr. Torres repeatedly denied Mr. Gathenji's requests for additional help or additional hours. Gathenji Depo., pp. 90-93. Mr. Torres approved other managers to get help from extra staff members when they met the “1 for 100” store sales quota; however, Mr. Gathenji was never approved for extra help on the many occasions he met that quota. Gathenji Depo., p. 88. In addition, Mr. Torres regularly approved other store managers' requests to give their part-time employees extra hours during high sales weeks, but always denied Mr. Gathenji's requests to grant additional hours to his employees. Gathenji Depo., p. 90. Rather than provide more help, Mr. Torres required Mr. Gathenji to cut the hours of his employees during high sales weeks. Id. Under Mr. Clark's supervision, Mr. Gathenji sometimes received help for his store; under Mr. Torres' supervision, Mr. Gathenji never received extra help. Id.

Transferring employees

Mr. Torres transferred two parts sales managers to Mr. Gathenji's store after those employees received notices that their employment would be terminated. Gathenji Depo., p. 140. This was against procedure and Mr. Torres did not transfer any such employees to any other store. Id.

Insufficient Training Time

Mr. Torres allowed Mr. Gathenji only 24 hours to train a parts sales manager. Gathenji Depo., p. 140. No other district manager was given that short time frame to train a parts sales manager. Id.

703 F.Supp.2d 1024
Standards of Cleanliness

Mr. Gathenji was forced to transfer some of his...

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