Case No.: 2:20-CV-00828-TLFPLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
TO THE HONORABLE COURT:
NOW COMES Plaintiff, Diondre Cobb, and files this Opposition to Defendant’s Motion for Summary Judgment. In support, Plaintiff respectfully offers the following for consideration by the Court:
LEGAL STANDARD FOR MOTION FOR SUMMARY JUDGMENT
Summary judgment is appropriate if it appears, after viewing the evidence in the light most favorable to the non-moving party, that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); T.W. Electrical Service, Inc. v. Pacific Electrical Contractors Association., 809 F.2d 626, 630-31 (9th Cir. 1987).
“There is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S. Ct. 2505, 2510-11, 91 L. Ed. 2d 202 (1986).
The non-moving party may not rely on the mere allegations in the pleadings to avoid summary judgment but must set forth “specific facts showing that there is a genuine issue for trial.” T.W. Electrical Service, Inc., 809 F. 2d at 630 (quoting Fed. R. Civ. P. 56(e)).
“For a non-moving party to withstand a summary judgment motion, it must show that there are genuine issues of material fact that can only be resolved by a finder of fact because they may reasonably be resolved in favor of either party. California Architectural Bldg. Prods., Inc. v. Franciscan Ceramics, Inc.¸ 818 F.2d 1466, 1468 (9th Cir. 1987).
THERE EXIST GENUINE ISSUES FOR MATERIAL FACT
The Motion for Summary Judgment filed by Defendant contains numerous falsities. Defendant claims that Plaintiff did not exhaust administrative remedies available to him such as filing a complaint to the Equal Employment Opportunities Commission (EEOC). Plaintiff submitted a complaint to EEOC and the commission issued its determination. Exhibit 1. If a party feels aggrieved by the determination of the EEOC, he has a right to seek redress elsewhere, including suing in a court of law. Plaintiff exercised his right to sue as he was not satisfied with EEOC’s determination. This court has jurisdiction and this matter is properly before it.
Plaintiff urges this Court to disregard the declaration of Katheryn Garceau filed in support of Defendant’s Motion for Summary Judgment (hereinafter referred to as the “Motion”) for the reasons that it is based on perjured testimony and hearsay. At paragraph 27 of the declaration, Ms. Garceau states that she called Plaintiff into a meeting. She also states that during the meeting, she and others questioned Plaintiff about the use of his FMLA. Ms. Garceau was not present during the meeting that was held on August 17, 2019.
Throughout the Motion, Defendant states that Plaintiff used Alaska’s flight privileges. Those are the benefits that Plaintiff earned at the onset and during the duration of his employment. Just like other employees of Defendant, Plaintiff was entitled to use those benefits. The denial of those benefits by Defendant while allowing other employees who were not disabled and not on FMLA leave amounts to discrimination.
Defendant punished Plaintiff for each sick time he had. Plaintiff had 52 hours of sick time for the year 2018 and he was punished for each sick time he had. The records for 2018 omit missing sick time that Plaintiff had. Exhibit 2 & 3.
Defendant claims that Plaintiff’s August 9 trade was canceled because Fatima Hameed, the person who agreed to cover Plaintiff’s shift, was not qualified to cover Plaintiff’s shift. At the time Ms. Hameed agreed to cover Plaintiff’s shift, she was qualified to do so. The trade performed by Ms. Hameed on Plaintiff’s behalf was successful. Defendant’s decision to cancel that trade was wrong as Ms. Hameed was qualified to conduct it.
On 04/03/2019, Matrix, a third-party company hired by Defendant, denied Plaintiff an incomplete certification but used his sick absences and attendance records to discriminate against Plaintiff. In turn, Defendant began prejudicial and discriminatory behavior towards Plaintiff.
On 08/21/2019, a status change was made denying the August 9 trade as the reason not covered by matrix after the investigation conducted by Defendant to obtain specifics about Plaintiff’s health on 08/16/2019. Matrix informed Defendant that Plaintiff said he would not be providing any updates until his certification ended and that any further interference with or denial of his rights would constitute a violation of the law.
On 08/21/2019, Defendant instructed Matrix to deny Plaintiff the FMLA day of 08/09/2019 and to approve the consecutive FMLA days that Plaintiff was sick.
Defendant states that Plaintiff was dishonest throughout the duration of employment. That is incorrect. Plaintiff was an outstanding employee who performed exemplarily, earning recognition from his seniors as well as colleagues. Exhibit 4.
Defendant has a pretextual reason for terminating Plaintiff’s employment. The Employment Security Department stated that Plaintiff was terminated for taking sick leave that Plaintiff was paid for. Exhibit 5. Defendant did not state in Plaintiff’s termination letter that his employment was terminated because of fraudulently invoking FMLA leave. Exhibit 2.
Defendant fabricated cause for terminating Plaintiff’s employment. Defendant failed to state fraudulent invocation of FMLA leave in the termination letter but went ahead to report to the Employment Security Department that Plaintiff was fired for not meeting quota/performance standards on 08/26/2019. Defendant then stated in the Motion for Summary Judgment that Plaintiff was terminated for fraudulently invoking FMLA. “It was not until over a year later that Thermo King, responding to this lawsuit, first said that Velez had been fired for stealing and selling company property. The fact that the employer gave different reasons at different times for its action surely supports a finding that the reason it ultimately settled on was fabricated.” Velez v. Thermo King de Puerto Rico, Inc. Civil No. 09-2703 (JAG); “Wal-Mart employees gave inconsistent reasons for the plaintiff’s termination and were also inconsistent regarding who was responsible for the decision… the jury could have decided that all of Wal-mart’s proffered reasons for terminating the plaintiff’s employment were false.” Haddad v. Wal-mart Stores, Inc. 455 Mass. 91 (2009);
Defendant’s action of terminating Plaintiff’s employment without considering other lighter penalties was extreme and outrageous. In the termination letter, there was an option for suspension without pay before exercising the discharge option. That Plaintiff travelled to Hawaii on sick leave does not warrant the termination of his employment. “More compelling is the severity of the punishment in relation to the alleged offense. This strikes us as swatting a fly with a sledge hammer. That Walmart felt compelled to terminate Stalter for this offense does not pass the straight-face test.” Stalter v. Wal-mart Stores, Inc., No. 98-3453 (1999).
Plaintiff has demonstrated that there are genuine issues of material fact in accordance with Fed. R. Civ. P. 56(e).
REASONS WHEREFORE, PREMISES CONSIDERED, Plaintiff respectfully requests this Honorable Court to grant him the following reliefs:
Strike Plaintiff’s Motion for Summary Judgment because there exists a genuine dispute as to the material facts of this case;
Grant Plaintiff all the reliefs requested in his Complaint;
Award Defendant such equitable relief as may be appropriate under the circumstances; and
Award Defendant such further relief as this Honorable Court deems necessary and proper.
Dated this 3rd day of January, 2022.
Plaintiff in pro per
I, Diondre Cobb, being duly sworn depose and say that I am the Plaintiff in the above-entitled action, that I have read the foregoing Opposition to Defendant’s Motion for Summary Judgment and know the contents thereof. That the same is true of my own knowledge except as to those matters and things stated upon information and belief, and as to those things, I believe them to be true.
(Sign in the presence of a Notary Public)
Sworn to and subscribed before me this ___ day of ___________________, 2021.
(Printed name of Notary Public)
My Commission Expires: ____________________
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing document was sent on the _____ day of _________________, 2022by regular U.S. mail, by facsimile, or certified mail, return receipt requested, to the following parties or attorneys of record:
Dated this ____ day of ____________________, 2022.
Plaintiff in pro per
At Legal writing experts, we would be happy to assist in preparing any legal document you need. We are international lawyers and attorneys with significant experience in legal drafting, Commercial-Corporate practice and consulting. In the last few years, we have successfully undertaken similar assignments for clients from different jurisdictions. If given this opportunity, The LegalPen will be able to prepare the legal document within the shortest time possible. You can send us your quick enquiry ( here )