Fleming v. Painting

JAY FLEMING, Plaintiff, v. PURCELL PAINTING AND COATINGS SOUTHWEST, INC.,a Washington Corporation doing Business in the State of California as PURCELL P&C, LLC; et al., Defendants.

No. 2:13-cv-01720-KJM-EFB

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

December 29, 2014

ORDER

Defendant Purcell Painting and Coatings Southwest moves for summary judgment. (Def.'s Corrected Mot. Summ. J., ECF No. 29.) Plaintiff Jay Fleming opposes the motion. (Pl.'s Opp'n to Def.'s Mot., ECF No. 39.) On October 10, 2014, the court heard arguments on the motion for summary judgment. Robin Perkins appeared for plaintiff Fleming, and Paul Dayton appeared for defendant Purcell Painting. After considering the parties' arguments and supplemental authority disclosed by defendant, the court grants the motion in part and denies it in part.

In the sections below, when the parties agree a fact is undisputed, the court refers to their agreement rather than to the portions of the record supporting the agreement. When the facts are disputed, the court notes the disagreement and cites to the supporting record. The courtcites only relevant evidence and does not resolve objections unless necessary. Any objections to evidence cited here are overruled; several objections are addressed separately below.

I. EVIDENTIARY OBJECTIONS

A court may consider evidence on summary judgment as long as it is "admissible at trial." Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003). Admissibility depends not on the evidence's form, but on its content. Block v. City of L.A., 253 F.3d 410, 418-19 (9th Cir. 2001) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)). The party seeking admission of evidence "bears the burden of proof of admissibility." Pfingston v. Ronan Eng'g Co., 284 F.3d 999, 1004 (9th Cir. 2002). If the opposing party objects to the proposed evidence, the party seeking admission must direct the court to "authenticating documents, deposition testimony bearing on attribution, hearsay exceptions and exemptions, or other evidentiary principles under which the evidence in question could be deemed admissible . . . ." In re Oracle Corp. Sec. Litig., 627 F.3d 376, 385-86 (9th Cir. 2010). However, courts are sometimes "much more lenient" with the affidavits and documents of the party opposing summary judgment. Scharf v. U.S. Atty. Gen., 597 F.2d 1240, 1243 (9th Cir. 1979).

The court addresses four objections in detail. First, Fleming objects to the February 10, 2012, email from Fleming to Dave Purcell thanking Purcell for his support during Fleming's removal from the Three Bridges Project. (Dayton Decl. Ex. M, ECF No. 31-1.) He contends the email is hearsay, lacks foundation, was made without personal knowledge, and calls for a legal conclusion. The court overrules the objection. "[E]mails written by a party are admissions of a party opponent and admissible as non-hearsay under Fed. R. Evid. 801(d)(2)." In re Homestore.com, Inc. Sec. Litig., 347 F. Supp. 2d 769, 781 (C.D. Cal. 2004). A review of the undisputed facts and the email's contents shows it was made with Fleming's personal knowledge and calls for no legal conclusions.

Second, Fleming objects to the April 10, 2012 email from Ben Bear to Dave Purcell confirming Purcell's assessment that Fleming was a "bright young man" and deserved a raise. (Purcell Decl. Ex. B, ECF No. 22.) He contends the statement is hearsay and lacking in personal knowledge and foundation. The court overrules this objection because Dave Purcell'sstatements are not offered for their truth, but as evidence of his belief regarding Fleming's professional performance. Wagner v. Cnty. of Maricopa, 747 F.3d 1048, 1053 (9th Cir. 2013) ("The [hearsay] bar applies only when the statements are offered to prove the truth of the fact underlying the memory or belief."). Neither does a review of the record or the email suggest any lack of foundation or personal knowledge.

Third, Fleming objects to the October 5, 2012, email from Purcell Painting's CFO to its attorney, asking the attorney about terminating the Vancouver office lease. (Dayton Decl. Ex. T, ECF No. 31-1.) Fleming contends the statement is hearsay and irrelevant. The email includes several parts. First, its subject line reads "HELP! Just signed a lease for Vancouver this week, executed it, and Ben just quit." The body includes two sentences: first "Dave now wants to shut down that office," and second, "Any ideas how to approach the property management company?" The email is not admissible to show what Dave Purcell had said on a particular date, but is admissible to show the declarant's excitement and the nature of any emergency under the "well-known exception to the hearsay exclusionary rule." United States v. Hills, 455 F.2d 504, 505 (9th Cir. 1972) (per curiam). See also Yang v. Mendoza-Powers, No. 05-417, 2009 WL 257036, at *3 (E.D. Cal. Feb. 4, 2009) (applying Fed. R. Evid. 803(2) to a written statement), report and recommendation adopted sub nom. Bee Yang v. Mendoza-Powers, No. 05-417, 2009 WL 1156460 (E.D. Cal. Apr. 29, 2009). The email is admissible evidence of the declarant's "state of mind," and an "intent, or plan" to escape a lease on a particular date. Fed. R. Evid. 801(1), (3). The email also is admissible to show Purcell Painting personnel formed the intent to avoid continuing the lease on October 5, 2012, their reaction to learning the office would be closed, and the circumstances driving that reaction. Id. It is relevant to show whether Purcell Painting intended to close the office to retaliate against Fleming or based on a legitimate intent.

Fourth, Purcell Painting objects to Fleming's statement that Bill Carver told them Dave Purcell was "pissed" and was closing the Vancouver office because Fleming was suing Dave Purcell. (Perkins Decl. Ex. A, Fleming Dep. 144:13-146:12, ECF No. 41.) Purcell Painting argues the statement is inadmissible hearsay. The statement is an example of hearsay within hearsay. See Fed. R. Evid. 805. At the first layer, Dave Purcell's statement to Bill Carveris the statement of a party opponent and excluded from the hearsay rule. Fed. R. Evid. 801(d)(2). But at the second layer, Carver's statement to Fleming that Dave Purcell was "pissed" and closing the office in retaliation for Fleming's lawsuit does not fall within an exception or exclusion. The words were offered out of court, and to be relevant, must be offered to show Dave Purcell was actually "pissed" and would truly close the Vancouver office in retaliation for the lawsuit. Rule 803(3) does not except the statement because it did not describe the mental state of the declarant, Bill Carver, but rather that of Dave Purcell. Finally, Rule 801(d)(2) does not except the statement as that of a party opponent. Carver was a Purcell Painting employee, but an employee's statement must have been made "by a person whom the party authorized to make a statement on the subject," Fed. R. Evid. 801(d)(2)(C), or "by [Purcell Painting's] . . . employee on a matter within the scope of that relationship and while it existed," Fed. Evid R. 801(d)(2)(D).

Fleming, the statement's proponent, bears the burden to show its admissibility. Pfingston, 284 F.3d at 1004. Fleming testified in his deposition that Carver gave him "notification," on a Sunday, that Purcell Painting would close the Vancouver office. (Perkins Decl. Ex. A, Fleming Dep. 145:19-24, ECF No. 41.) Fleming testified, "Bill Carver told me that Dave was pissed at me and just going to run everything out of the Tukwila office. And he was pissed at me because I was suing him and that he was coming down to close the office on Monday morning." (Id. at 146:2-6.) These facts are insufficient to show Carver had Purcell Painting's authorization to make the statement, made it on behalf of Purcell Painting, or made it in his capacity as an employee and supervisor, and Fleming has made no argument to satisfy his burden that this exclusion may apply. See Jaramillo v. Colo. Judicial Dep't, 427 F.3d 1303, 1314 (10th Cir. 2005) ("In order for a statement to qualify as an admission of a party opponent, the speaker 'must be involved in the decisionmaking process affecting the employment action involved.'" (quoting Aliotta v. Nat'l R.R. Passenger Corp., 315 F.3d 756, 762 (7th Cir. 2003))); Pfingston, 284 F.3d at 1004 (excluding a statement as outside the scope of Rule 801(d)(2)(D) because the proponent had not provided evidence the declarant's job duties had anything to do with the statement in question); Harris v. Itzhaki, 183 F.3d 1043, 1054 (9th Cir. 1999) ("Federal Rule of Evidence . . . 801(d)(2)(D) requires the proffering party to lay a foundation to show thatan otherwise excludable statement relates to a matter within the scope of the agent's employment."); 5 Weinstein's Fed. Evid. § 801.33[2][c] (2d ed.) ("In [cases of employment discrimination] many courts have held that the declarant must be among the persons who made the employment decisions in question . . . ."). Because Fleming has the burden to show the statement is admissible, and he has not, the objection is sustained.

II. FACTUAL RECORD

Purcell Painting hired Jay Fleming in July 2011 to work as a project site manager cleaning and painting three bridges in California (the Three Bridges Project). (Def.'s Resp. to Pl.'s Separate Statement of Material Facts at 2 ¶ 2, ECF No. 37.) Purcell Painting, in turn, had been hired as a subcontractor by Santa Margarita Construction Corporation (SMCC), the general contractor for CalTrans. (Id. at 2 ¶ 3.) On January 27, 2012, Fleming received written complaints from two Purcell Painting employees, who objected to racially discriminatory remarks made by the SMCC Vice President of Operation, John Brukiewicz. (Pl.'s Opp'n to Def.'s Separate Statement of Material Facts ¶ 17, ECF No. 42.) Fleming immediately passed these complaints to his supervisor at Purcell Painting, Ben Bear, and to a CalTrans employee, Bill Brooks. (Def.'s Resp. to ...