United States District Court, D. Nevada
HOWARD D. McKIBBEN, District Judge.
Plaintiff William Herron ("plaintiff") has filed a complaint asserting disability discrimination and failure to accommodate against defendant Peri & Son's Farms ("defendant"). Before the court is the defendant's motion for summary judgment on plaintiff's claims (#31). Plaintiff has opposed (#37), and defendant has replied (#38).
On December 5, 2011, plaintiff applied for an open maintenance mechanic position with defendant. ( See Def. Mot. Summ. J. Ex. 2). In applying for the position, plaintiff submitted a resume representing that he had a Certificate of Completion from the Arizona Automotive Institute and that he was ASE certified in engine repair, front-end alignment, and air-conditioning. ( Id. ) Plaintiff was interviewed by Paul Giannotta, who would become his supervisor. ( Id. Ex. 3 (Giannotta Dep. 6)). During the interview process, plaintiff represented that he was a "journeyman mechanic, " which meant "he could fix just about everything." ( Id. at 7).
Plaintiff was hired and began working for defendant on or about December 8, 2011. ( See Pl. Opp'n Ex. 1). Shortly after, Giannotta began noticing that plaintiff was not as skilled as he had represented himself to be; in his opinion, plaintiff took more time than expected on routine jobs and declined or was unable to do repair work he should have been able to do. (Def. Mot. Summ. J. Ex. 3 (Giannotta Dep. 7-8, 37, 40-41); id. Ex. 4 (Giannotta Decl. 1-2)). For example, Giannotta asserts that plaintiff could not change the oil on a skid steer and would sometimes take all day to complete what was typically a one-to two-hour job. (Def. Mot. Summ. J. Ex. 3 (Giannotta Dep. 7-8, 37)). In addition, Giannotta claims that plaintiff would repeatedly try to send vehicles to the Chevrolet dealership for costly repairs that Giannotta believed plaintiff should have been able to diagnose and resolve himself. ( Id. at 40-41; id. Ex. 4 (Giannotta Decl. 2)). Finally, Giannotta observed plaintiff making what Giannotta believed to be excessive personal calls during work time. (Def. Mot. Summ. J. Ex. 4 (Giannotta Decl. 2)).
Plaintiff asserts that he was not hired to service skid steers and that he was supposed to be trained on them when work was slow. (Pl. Opp'n (Herron Decl. 2); see also Def. Mot. Summ. J. Ex. 5 (Herron Dep. 163-64))). He denies that it took him longer than normal to perform work, but does not respond to the assertion that he sent work to the Chevrolet dealership that he should have been able to complete himself. (Pl. Opp'n (Herron Decl. 2)). Finally, plaintiff explains his cell phone use by asserting that he had been told to use his cell phone until the company issued him one, that he used the cell phone to order parts, and that he used his handsfree Bluetooth device to make personal calls so he could continue working. ( Id. )
In mid-January, Giannotta asked plaintiff to perform some "dash work." ( See Def. Mot. Summ. J. Ex. 5 (Herron Dep. 48); Pl. Opp'n (Herron Decl. 1)). Plaintiff told Giannotta he could not do the work because of his back. (Def. Mot. Summ. J. Ex. 5 (Herron Dep. 60-61); Pl. Opp'n (Herron Decl. 1)). Giannotta said "okay" and did not make plaintiff do the job. (Def. Mot. Summ. J. Ex. 5 (Herron Dep. 59-61)).
Two days later, on January 17, 2012, Giannotta terminated plaintiff. (Def. Mot. Summ. J. Ex. 5 (Herron Dep. 62)). Plaintiff claims that Giannotta told him he was being laid off because of budget cuts. (Def. Mot. Summ. J. Ex. 5 (Herron Dep. 62); Pl. Opp'n (Herron Decl. 2)). Giannotta denies this, saying he told plaintiff he was being "let... go because it wasn't working out." (Def. Mot. Summ. J. Ex. 3 (Giannotta Dep. 15)). Plaintiff concedes that he was subject to a 90-day probationary period. ( Id. Ex. 5 (Herron Dep. 82)). At the time plaintiff was terminated, he was within the probationary period.
A few weeks later, defendant posted an open mechanic position on Craigslist. ( Id. Ex. 5 (Herron Dep. 62); id. Ex. 14). Plaintiff asserts the advertised position was his position, and that he was replaced by someone who did not have a disability and who did not request an accommodation.
After terminating plaintiff, defendant discovered that his resume contained what it alleges to be several material misrepresentations about his qualifications and work history. First, while the resume stated that plaintiff had a Certificate of Completion from the Arizona Automotive Institute after studying there for a full year (Def. Mot. Summ. J. Ex. 2), plaintiff admits he attended the Institute for only about four months and did not receive any certificate of completion, ( id. Ex. 5 (Herron Dep. 139). Second, the resume stated plaintiff was ASE certified in engine repair, front-end alignment, and air-conditioning ( id. Ex. 2), but his engine and front-end certificates had, admittedly, lapsed at the time he submitted his resume. ( See id. Ex. 6; id. Ex. 5 (Herron Dep. 129-31). Third, plaintiff excluded at least one former employer from his resume because he thought the employer would give him a bad reference. (Def. Mot. Summ. J. Ex. 5 (Herron Dep. 144-45)). Finally, plaintiff misrepresented the time he spent at some of his prior employers, thereby obscuring periods of unemployment, time spent working for employers plaintiff chose not to list, and time spent owning his own business. ( See id. at 140-45)).
"The court shall grant summary judgment if the movant shows that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The burden of demonstrating the absence of a genuine issue of material fact lies with the moving party, and for this purpose, the material lodged by the moving party must be viewed in the light most favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970); Martinez v. City of Los Angeles, 141 F.3d 1373, 1378 (9th Cir. 1998). 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. Lynn v. Sheet Metal Workers Int'l Ass'n, 804 F.2d 1472, 1483 (9th Cir. 1986); S.E.C. v. Seaboard Corp., 677 F.2d 1301, 1306 (9th Cir. 1982).
Once the moving party presents evidence that would call for judgment as a matter of law at trial if left uncontroverted, the respondent must show by specific facts the existence of a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). "[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Id. at 249-50 (citations omitted). "A mere scintilla of evidence will not do, for a jury is permitted to draw only those inferences of which the evidence is reasonably susceptible; it may not resort to speculation." British Airways Bd. v. Boeing Co., 585 F.2d 946, 952 (9th Cir. 1978); see also Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 596 (1993) ("[I]n the event the trial court concludes that the scintilla of evidence presented supporting a position is insufficient to allow a reasonable juror to conclude that the position more likely than not is true, the court remains free... to grant summary judgment."). Moreover, "[i]f the factual context makes the non-moving party's claim of a disputed fact implausible, then that party must come forward with more persuasive evidence than otherwise would be necessary to show there is a genuine issue for trial." Blue Ridge Ins. Co. v. Stanewich, 142 F.3d 1145, 1149 (9th Cir. 1998) (citing Cal. Architectural Bldg. Prods., Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468 (9th Cir. 1987)). Conclusory allegations that are unsupported by factual data cannot defeat a motion for summary judgment. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989).
If the nonmoving party fails to present an adequate opposition to a summary judgment motion, the court need not search the entire record for evidence that demonstrates the existence of a genuine issue of fact. See Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1029-31 (9th Cir. 2001) (holding that "the district court may determine whether there is a genuine issue of fact, on summary judgment, based on the papers submitted on the motion and such other papers as may be on file and specifically referred to and facts therein set forth in the motion papers"). The district court need not "scour the record in search of a genuine issue of triable fact, " but rather must "rely on the nonmoving party to identify with reasonable particularity the evidence that precludes summary judgment." Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996) (quoting Richards v. Combined Ins. Co., 55 F.3d 247, 251 (7th Cir.1995)). "[The nonmoving party's] burden to respond is really an opportunity to ...