Hirschhorn v. Sizzler Restaurants Intern., Inc.

• Citation: 913 F. Supp. 1393
• Decision Date: 11 December 1995
• Docket Number: No. CV-S-94-628-PMP (RLH).,CV-S-94-628-PMP (RLH).
• Parties: Michael HIRSCHHORN, Plaintiff, v. SIZZLER RESTAURANTS INTERNATIONAL, INC., Does I Through X, and Roe Corporations I Through X, inclusive, Defendants.
• Court: U.S. District Court — District of Nevada

913 F. Supp. 1393

Michael HIRSCHHORN, Plaintiff, v. SIZZLER RESTAURANTS INTERNATIONAL, INC., Does I Through X, and Roe Corporations I Through X, inclusive, Defendants.

No. CV-S-94-628-PMP (RLH).

United States District Court, D. Nevada.

December 11, 1995.

COPYRIGHT MATERIAL OMITTED

Leslie Mark Stovall, Michelle Kiraly, Las Vegas, NV, for plaintiff.

Patrick H. Hicks, Neil M. Alexander, Hicks & Walt, a partnership with Littler, Mendelson, Fastiff, Tichy & Mathiason, Reno, NV, for defendant.

ORDER

PRO, District Judge.

This action arises out of Plaintiff's employment with Defendant. Plaintiff Michael Hirschhorn filed his Amended Complaint (# 1D) in Nevada State Court on June 15, 1994, alleging the following six claims for relief under both state and federal law: (1) Handicap Discrimination; (2) Age Discrimination; (3) Breach of Employment Contract; (4) Infliction of Emotional Distress; (5) Wrongful Termination; and (6) Punitive Damages. Defendant, Sizzler Restaurants International, Inc. ("Sizzler"), removed the action to this Court on July 13, 1994. (# 1).

Presently before the Court is Sizzler's Motion for Summary Judgment and/or Summary Adjudication of Claims (# 22) filed by Sizzler on August 17, 1995. Hirschhorn filed his Opposition (# 26) on September 5, 1995, and Sizzler filed its Reply (# 27) on September 22, 1995.

I. Factual Background

Hirschhorn was hired as a Manager Trainee by Sizzler on July 22, 1991. He completed his training in three months and was promoted to Restaurant Manager. As a Restaurant Manager, he reported directly to a Sizzler General Manager, the individual responsible for a particular restaurant location. Hirschhorn continued as a Restaurant Manager with Sizzler until Sizzler terminated him on June 2, 1993.

On April 17, 1992, Hirschhorn injured his back within the normal course and scope of his employment. He sought medical treatment and his injury was diagnosed as a herniated disc at the L4-L5 level. Because of this injury, Hirschhorn requested, and Sizzler granted, a leave of absence from May 14, 1992, to August 14, 1992.

While working in the Sizzler restaurant in Henderson, Hirschhorn again injured his back and neck moving a heavy CO2 tank during a "peak" period on January 1, 1993. Hirschhorn requested and was approved for a second leave of absence from work from February 2, 1993, until April 15, 1993.

Dr. Steven Agata performed surgery upon Plaintiff's back on March 18, 1993. Hirschhorn requested and was granted a discretionary extension to his leave of absence on April 16, 1993. As described in the company's Temporary Leave of Absence Policy and as understood by Plaintiff, Hirschhorn could not return to work without a medical release.

Hirschhorn requested an additional second one-month extension of his second leave of absence on May 14, 1993, due to complications from his surgery. Hirschhorn timely submitted his request to Gary Waffle ("Waffle"), Sizzler's District Manager of the Las Vegas Market, pursuant to the company policy. Hirschhorn spoke to Waffle on May 24, 1993, and they agreed to meet to discuss the request on May 28, 1993.

On May 28, 1993, Hirschhorn informed Waffle that he could not confirm, before the extension to his leave of absence ended, that he would return to work at the end of his requested second extension even if it were granted. Waffle denied Hirschhorn's request for a second extension to his leave of absence and informed Hirschhorn that he would be terminated effective June 2, 1993, if he did not return to work.

The remainder of the conversation between Hirschhorn and Waffle is somewhat disputed. Hirschhorn states that he attempted to discuss his termination with Waffle explaining that he was unaware of his physical limitations and was unable to determine what his physical restrictions would be. Waffle told Plaintiff that the decision to terminate his employment was a final decision. Hirschhorn claims that Waffle then added that he did not understand why Hirschhorn was so upset, because Hirschhorn "got a new back at Sizzler's expense."

While Plaintiff was taking his leave of absences, and during the period of his extensions to his leave of absence, Sizzler held his employment position vacant. However, when Hirschhorn was unable to return to work with a medical release on his scheduled return date, Sizzler terminated his employment.

II. Summary Judgment

Pursuant to Federal Rule of Civil Procedure 56, summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."

The party moving for summary judgment has the initial burden of showing the absence of a genuine issue of material fact. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Zoslaw v. MCA Distributing Corp., 693 F.2d 870, 883 (9th Cir.1982), cert. denied, 460 U.S. 1085, 103 S.Ct. 1777, 76 L.Ed.2d 349 (1983). Once the movant's burden is met by presenting evidence which, if uncontroverted, would entitle the movant to a directed verdict at trial, the burden then shifts to the respondent to set forth specific facts demonstrating that there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). If the factual context makes the respondent's claim implausible, that party must come forward with more persuasive evidence than would otherwise be necessary to show that there is a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 2552-54, 91 L.Ed.2d 265 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 1355-56, 89 L.Ed.2d 538 (1986); California Architectural Bldg. Prods. Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468 (9th Cir.1987), cert. denied, 484 U.S. 1006, 108 S.Ct. 698, 98 L.Ed.2d 650 (1988).

If the party seeking summary judgment meets this burden, then summary judgment will be granted unless there is significant probative evidence tending to support the opponent's legal theory. First Nat'l Bank v. Cities Service Co., 391 U.S. 253, 290, 88 S.Ct. 1575, 1593, 20 L.Ed.2d 569 (1968), reh'g denied, 393 U.S. 901, 89 S.Ct. 63, 21 L.Ed.2d 188 (1968); Commodity Futures Trading Com. v. Savage, 611 F.2d 270 (9th Cir.1979). Parties seeking to defeat summary judgment cannot stand on their pleadings once the movant has submitted affidavits or other similar materials. Affidavits that do not affirmatively demonstrate personal knowledge are insufficient. British Airways Board v. Boeing Co., 585 F.2d 946, 952 (9th Cir.1978), cert. denied, 440 U.S. 981, 99 S.Ct. 1790, 60 L.Ed.2d 241 (1979), reh'g denied, 441 U.S. 968, 99 S.Ct. 2420, 60 L.Ed.2d 1074 (1979). Likewise, "legal memoranda and oral argument are not evidence and do not create issues of fact capable of defeating an otherwise valid motion for summary judgment." Id.

A material issue of fact is one that affects the outcome of the litigation and requires a trial to resolve the differing versions of the truth. See Admiralty Fund v. Hugh Johnson & Co., 677 F.2d 1301, 1305-06 (9th Cir. 1982); Admiralty Fund v. Jones, 677 F.2d 1289, 1293 (9th Cir.1982).

All facts and inferences drawn must be viewed in the light most favorable to the responding party when determining whether a genuine issue of material fact exists for summary judgment purposes. Poller v. CBS, Inc., 368 U.S. 464, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962). After drawing inferences favorable to the respondent, summary judgment will be granted only if all reasonable inferences defeat the respondent's claims. Admiralty Fund v. Tabor, 677 F.2d 1297, 1298 (9th Cir.1982).

The trilogy of Supreme Court cases cited above establishes that "summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed `to secure the just, speedy and inexpensive determination of every action.'" Celotex Corp., 477 U.S. at 327, 106 S.Ct. at 2555 (quoting Fed.R.Civ.P. 1). See also Avia Group International, Inc. v. L.A. Gear California, Inc., 853 F.2d 1557, 1560 (Fed.Cir.1988).

III. Age Discrimination Claims

In his Amended Complaint, Hirschhorn alleged that he was discriminated against and passed over for promotions because of his age, forty-nine (49). Sizzler moves for summary judgment on these claims.

In his Opposition (# 26), Hirschhorn concedes that his claims related to age discrimination should be dismissed as there are no factual bases to support them. The Court construes this as a request to withdraw the age discrimination claims. The Court will grant this request and will dismiss Hirschhorn's claims of age discrimination.

IV. Disability Discrimination Claims

A. Failure to Promote

Hirschhorn alleges that he was passed over for promotions three times because of his disability. He estimates those dates were (1) May or June, 1992; (2) October, 1992; and (3) December 1992. Sizzler asserts that these claims are time-barred.

The Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12101, et seq., incorporates the enforcement provisions set forth in Title VII. 42 U.S.C. § 12117. Under those provisions, filing a charge with the EEOC within the permissible time period is a jurisdictional prerequisite. Green v. Los Angeles County Superintendent of Schools, 883 F.2d 1472, 1475 (9th Cir.1989). Hirschhorn failed to file his administrative charge of discrimination until December 13, 1993. As a result, Hirschhorn now seeks to withdraw his disability discrimination claim based on failure to promote. The Court will grant this request and will dismiss this claim.

B. Termination

In his Amended Complaint (# 1D), Hirschhorn alleges violations of federal and state laws based on his termination allegedly...