WALKER v. BRAND ENERGY Serv. LLC.

726 F.Supp.2d 1091

Gerald Glenn WALKER, Plaintiff,

v.BRAND ENERGY SERVICES, LLC, Defendant.

Case No. CV F 09-1183 LJO DLB.

United States District Court,E.D. California.

June 22, 2010.

COPYRIGHT MATERIAL OMITTED.

Randall Martin Rumph, Law Office of Randy Rumph, Bakersfield, CA, for Plaintiff.

Michael J. Czeshinski, Wilkins, Drolshagen and Czeshinski LLP, Fresno, CA, Robert D. Younger, Phv, Thomas O. McCarthy, Phv, McMahon Berger, P.C., Saint Louis, MI, for Defendant.

SUMMARY JUDGMENT DECISION (Doc. 22.)

LAWRENCE J. O'NEILL, District Judge.

INTRODUCTION

Defendant Brand Energy Services, LLC (“BES”) seeks summary judgment in that plaintiff Gerald Glenn Walker (“Mr. Walker”) is unable to establish a prima facie case for his employment retaliation/termination claims. Mr. Walker responds that the evidence shows that he was “set up” and terminated because he complained of his supervisor's discriminatory conduct. This Court considered BES' summary judgment motion on the record ¹ and VACATES the June 30, 2010 hearing, pursuant to Local Rule 230(g). For the reasons discussed below, this Court DENIES BES summary judgment.

BACKGROUND

BES' Operations

From 1989 to November 5, 2008, Mr. Walker worked as a carpenter, foreman and superintendent for BES, a construction company which rents, erects and dismantles scaffold platforms. Mr. Walker is black.

A division of BES is located in Bakersfield (“Bakersfield division”). Since 1989, the Bakersfield division performed work in Bakersfield at the Big West Refinery (“Big West job”) and for Kimberlina Solar Thermal Energy (“Kimberlina job”). In addition, BES operates as another division at its Long Beach Hiring Center in Long Beach.

The Bakersfield division employs carpenters who are members of the United Brotherhood of Carpenters and Joiners of America (“union”). BES and the union are parties to the National Maintenance Agreement (“NMA”) and other agreements which establish wages and other terms for union carpenters whom BES employs.

BES offers employees SilentWhistle, a third-party confidential and anonymous reporting system. BES employees may access SilentWhistle through its website or toll free telephone number.

Mr. Walker's Relocation To Bakersfield

Mr. Walker started to work for BES in Los Angeles in 1989. He was promoted from carpenter to foreman, general foreman and superintendent. When living and working in Los Angeles, Mr. Walker met BES project manager Donald Hall (“Mr. Hall”), who is black. After Mr. Hall was promoted to the Bakersfield division's project manager, Mr. Hall and Mr. Walker discussed Mr. Walker's performance of “turnaround” jobs. In his deposition, Mr. Walker described turnaround jobs to require workers to “go through a refinery and clean certain pipes, vessels and stuff like that. And would probably last maybe for weeks, six weeks and it would be maybe 12-hour shifts, seven days a week.” The scaffolding portion of a turnaround required building scaffolding for workers to access equipment, including pipes and vessels, and to remove scaffolding. Turnarounds are favored for those who want more hours and money given increased overtime.

Mr. Walker worked under Mr. Hall's supervision of turnarounds and other jobs for approximately six years prior to relocating to Bakersfield in 2007. Mr. Hall had alerted Mr. Walker to upcoming turnarounds to determine if Mr. Walker desired to travel to Bakersfield to work for Mr. Hall. Mr. Hall had several discussions with Mr. Walker about relocating to Bakersfield and encouraged Mr. Walker to relocate. Mr. Walker knew that Mr. Hall would be his supervisor if Mr. Walker relocated to Bakersfield. Mr. Walker had neither concerns nor reservations about relocating to Bakersfield to work for Mr. Hall.

During Mr. Hall's supervision, Mr. Walker and Mr. Hall got along. Mr. Hall never criticized Mr. Walker's work to his face and never made derogatory comments about Mr. Walker to his face. Prior to Mr. Walker's termination, Mr. Hall disciplined Mr. Walker only once.

During January 1, 2007 to November 5, 2008, Mr. Walker's job classification fluctuated from general foreman to superintendent depending on the type of job, level of work and/or number and classification of employees assigned to the job. During the same time period when under Mr. Hall's supervision, Mr. Walker's positions moved among foreman, general foreman and superintendent no less than 30 times.

During August 5, 2005 to November 5, 2008, Mr. Walker worked on 46 jobs in Los Angeles and Bakersfield. During the same time period, Mr. Walker's wage was computed based on his job title and corresponding amount established by the NMA and agreements between BES and the union.

Mr. Walker's Big West Job Classification Change

During January 21, 2007 to October 8, 2008, Mr. Walker worked primarily on the Big West job. When working under Mr. Hall's supervision at the Big West and Kimberlina jobs, Mr. Walker was required to prepare paperwork, including hazard analyses, work permits, and daily and weekly time sheets.

On September 9, 2008, Mr. Walker's job title changed from general foreman to foreman of the Big West job although he continued to perform the same work and responsibilities. Mr. Walker testified that he changed from general foreman to foreman because the Big West job could not maintain Mr. Walker's pay grade given “we didn't have a certain number of people.”

Mr. Walker called SilentWhistle to make an anonymous complaint about his classification change. Mr. Walker did not claim that Mr. Hall made the classification change based on race.

Mr. Walker's Comments About Mr. Hall

On September 30, 2008, BES Industrial Branch Manager Dale Garon (“Mr. Garon”), Human Resources Director Cheryle Kerksieck (“Ms. Kerksieck”) and two other BES managers visited the Bakersfield division and met each of its active, on-site employees to assess morale. Employees completed questionnaires and were interviewed.

Mr. Walker testified that he did not identify Mr. Hall's conduct or statements regarding race or discrimination in his September 30, 2008 questionnaire answers. Mr. Walker testified that the interviewers “wanted to know what was going on and how was we getting along and just a lot of questions like that.” Mr. Walker testified that he told his interviewer Ms. Kerksieck that “Don Hall has been ... using the N word toward ... Blacks and ... he was treating Hispanics differently from Black employees.” ² Mr. Walker attributes Mr. Garon to have “jumped up and got hostile and hollered at me and made me feel real uncomfortable.” Mr. Walker claims that Mr. Garon and Ms. Kerksieck “turned the whole thing around on me” by accusing him of making derogatory remarks about Mexicans needing “to go work in the fields.” Mr. Walker further claims that the interview “just blew up once I started opening up to telling what was going on.” Mr. Walker testified that directly after his interview, no action was taken and that he continued to work at the Big West job.

Mr. Walker's Transfers To Kimberlina Job

As of July 13, 2008, Mr. Walker had been reassigned to the Kimberlina job. Mr. Walker testified that Mr. Hall sent him to the Kimberlina job “because he didn't have anybody else qualified to go out there at the time” and “we didn't expect the job to expand as big as it was.” The Kimberlina job was more substantial than anticipated, and Mr. Walker filled in as the Kimberlina job superintendent during weeks ending July 13, 2008 to August 17, 2008. Mr. Walker testified that he considered himself the best qualified for the position at the start. On August 28, 2008, to accommodate Mr. Walker's request to return to the Big West job, BES assigned Leon Bryant (“Mr. Bryant”) as the Kimberlina job superintendent. Mr. Walker returned to the Big West job after he trained Mr. Bryant and introduced him to the Kimberlina crew.

On October 7, 2008, BES terminated Mr. Bryant for sleeping on the job. Mr. Hall asked Mr. Walker to transfer to the Kimberlina job because Mr. Walker, using Mr. Hall's words from his declaration, “had served as superintendent of the Kimberlina Job,” “was qualified,” and “was already familiar with the crew.” Mr. Walker preferred to remain on the Big West job given that the Kimberlina job neared completion and claims that Mr. Hall indicated that Mr. Walker could return to the Big West job upon the Kimberlina job's completion. Mr. Walker accepted transfer from Big West job foreman to Kimberlina job superintendent. With the transfer, Mr. Walker's hourly wage increased from $24.25 to $35.55. After Mr. Walker's transfer, his foreman position at the Big West job was not filled.

During October 8-31, 2008, Mr. Walker worked as the Kimberlina job superintendent. The position required Mr. Walker to complete daily and weekly time sheets, hazard analyses, daily log sheets, material lists and rental return forms by each week's end. Mr. Walker completed the daily and weekly time sheets, daily log sheets and hazard analyses during his first and second weeks at the Kimberlina job.

Reassignment To Long Beach Hiring Center

During the week of October 27, 2008, Mr. Hall and Industrial Branch Manager Mr. Garon discussed where to transfer remaining Kimberlina job employees. Mr. Hall and Mr. Garon discussed that the Big West job was not available for Mr. Walker given the lack of work there. Mr. Hall and Mr. Garon discussed transferring remaining Kimberlina job employees to the Long Beach Hiring Center.

Mr. Hall declares that on October 30, 2008, Mr. Hall advised Mr. Walker that due to lack of work, Mr. Walker would not return to the Big West job after the Kimberlina job was completed. ³ Mr. Hall further declares that he advised Mr. Walker that Mr. Hall had spoken to Mr. Garon and that there was available work at the Long Beach Hiring Center. Mr. Hall completed an October 31, 2008 slip to transfer Mr. Walker to the Long Beach Hiring Center effective that date. Mr. Walker claims that he was not...