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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

DANIEL IMPEY,

Plaintiff, No. C-09-01973 EDL

v. ORDER DENYING MOTION FOR SUMMARY

 JUDGMENT; GRANTING MOTION TO

COMPEL MEDICAL EXAMINATION

 THE OFFICE DEPOT, INC.

Defendant.

_________________________/

Defendant Office Depot, Inc. has filed a motion for summary judgment of Plaintiff Daniel

Impey’s claims for employment discrimination, failure to prevent discrimination, and wrongful

termination. Office Depot contends that Plaintiff cannot make a prima facie showing of age,

disability, or perception of disability discrimination, and that even if he could, Mr. Impey was

terminated for legitimate, nondiscriminatory business reasons and there is no evidence of pretext. For

the following reasons, the Court DENIES Office Depot’s Motion for Summary Judgment. The Court

GRANTS Office Depot’s Motion to Compel Plaintiff to Submit to an independent medical

examination by Office Depot’s Rebuttal Expert.

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I. Factual Background

A. Mr. Impey’s Experience at Office Depot

Plaintiff Daniel Impey was hired by Office Depot as an Assistant Store Manager in a San Jose

store in December 1997 when he was approximately 44 years old. Compl. ¶ 7; Declaration of Daniel

Impey in Support of Opposition to Motion for Summary Judgment (“Impey Decl.”) ¶¶ 2, 11. In

April 1998, Plaintiff was injured in a car accident and took a leave of absence for several months. 

Fukunaga Decl. Ex. A (Impey Depo.) at 102-103. In July 2001, Plaintiff was promoted to the

position of Store Manager. Impey Decl. ¶ 3. Thereafter, at his request he was transferred to the

Dublin store, a store of higher volume and square footage than his previous assignment. Impey Decl.

¶ 4. In 2004, Plaintiff took a seven month leave of absence for neck surgery. Fukunaga Decl. Ex. A

(Impey Depo.) at 104-105. 

In 2005, an individual named Ms. Perry became Plaintiff’s direct supervisor as the District

Manager for District 70, the district in which Plaintiff’s store was located. Sivarajah Decl Ex. B

(Perry Depo.) at 11. Ms. Perry was 45 years old at the time she was hired in 2005. Perry Decl. ¶ 2. 

In April 2007, Plaintiff had back surgery and took an additional leave of absence of several months. 

Fukunaga Decl. Ex. A (Impey Depo.) at 107-108. Following Plaintiff’s 2007 surgery, he was

restricted from lifting more than ten pounds or from twisting. Id. at 111. Plaintiff informed Ms.

Perry and Office Depot of his restrictions. Office Depot never ignored a restriction that the company

was aware of, and Plaintiff never performed any work outside of his restrictions during his

employment. Fukunaga Decl. Ex. A (Impey Depo.) 106, 111, 137; Sivarajah Decl. Ex. B (Perry

Depo.) at 21, 147. The back surgery caused Mr. Impey to lose weight, appear thinner and walk with

a slight limp. Impey Decl. ¶ 8-9; Perry Depo. at 21 (he “appeared thinner”); see also Fukunaga Decl.

Ex. F (Yoshidome Depo.) at 134 (a subordinate mentioned something about Plaintiff’s weight, but

deponent could not recall exactly what was said). On at least one occasion following his return to

work, Ms. Perry referred to Plaintiff’s lifting restrictions in the presence of other workers. See

Sivarajah Decl. Ex. A (Impey Depo.) at 97-98, 111-13 (comments such as “just be careful about your

lifting” and “don’t go outside of your lifting restrictions” made in what Plaintiff perceived to be a

snide manner). Also on one occasion following his return to work, Ms. Perry required Plaintiff to

submit a doctor’s note when he missed work due to the flu, a requirement that Plaintiff claims had not

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been previously imposed on him. Sivarajah Decl. Ex. A (Impey Depo.) at 37-38, 97; Impey Decl. ¶

10; Fukunaga Supp. Decl. Ex. L. 

Another store manager in District 70, Karen Dewey, has a rare neurological disorder called

“stiff person syndrome” which triggers muscle stiffness and spasms and inhibits her ability to walk

and move. Dewey Decl. ¶ 4. Ms. Dewey has always felt that Ms. Perry was supportive of her and

encouraged her to take time off to deal with her condition. Id. at ¶ 5. Another store manager in

District 70, Ralph Stauffer, had a brain tumor during his employment with Office Depot while Ms.

Perry was his supervisor. Fukunaga Decl. Ex. J (Stauffer Depo.) at 35. Ms. Perry told him to do

what he had to do to take care of himself, and no one at Office Depot ever treated him unfairly

because of his condition. Id. at 36, 153. 

Mr. Impey was 55 years old at the time of his termination, making him the oldest store

manager in his district at the time. Impey Decl. ¶ 11; Fukunaga Decl. Ex. I. Additionally, he had

been with the company for 11 years, making him the store manager with the third longest tenure in

the district. Id. During his employment, on approximately two or three occasions, Ms. Perry referred

to Plaintiff and one or two other store managers (including Karen Dewey, and possibly Ralph

Stauffer) who had been with the company for a significant period of time as “old timers.” Sivarajah

Decl Ex. A (Impey Depo.) at 128-30. Plaintiff interpreted this comment to refer to his age as

opposed to the length of his employment with the company, and mentioned to Ms. Perry that he felt

the comment was demeaning because he was “not that, you know, decrepit.” Id. at 129-31. Ms.

Perry “blew off” Plaintiff’s complaint and used the term on one other occasion, but Plaintiff did not

raise the issue with higher management. Id. Ms. Perry admits to having used the term “old timers”

on several occasions, but states that the reference pertained only to the fact that the individuals in

question “had been working for Office Depot for many years and that they were very experienced

store managers” and she “never intended that remark to refer to their ages” and did not have any

knowledge of how old they were. Perry Decl. ¶ 5. Another store manager, Ms. Dewey, who has

been employed by Office Depot for fifteen years and was 53 years old at the time of Mr. Impey’s

termination (and therefore approximately two years younger than him), understood Ms. Perry’s

reference to herself and Mr. Impey as “old timers” as referring to their long-term experience with the

company, and not to their ages. Dewey Decl. ¶ 7. Mr. Impey and Ms. Dewey sometimes referred to

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Names of third party employees have been redacted where necessary to protect their identity.

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themselves as “old timers” and Ms. Dewey claims Mr. Impey never told her that he found Ms.

Perry’s referral to him as an old-timer to be insulting or derogatory. Id.; but see Impey Depo. at 130

(in reference to “old timer” comment, states that “I think Karen and I had a discussion about it.”). 

Another store manager in the district, Mr. Stauffer, was 43 at the time of Mr. Impey’s termination,

and had been with Office Depot since 1994. Fukunaga Decl. Ex. I. Mr. Stauffer is unaware of

inappropriate comments by Ms. Perry about older people, or about anything. Fukunaga Decl. Ex. J

(Stauffer Depo.) at 45-46.

While he was employed by Office Depot, Mr. Impey received performance evaluations

generally stating that he was meeting the expectations of his position and he received regular pay

raises and bonuses. Sivarajah Decl. Ex. A-1, A-2. However, in July 2008, Office Depot’s loss

prevention department discovered that one of Mr. Impey’s assistant store managers, M.F.,1

 had stolen

Mr. Impey’s password to the store’s timekeeping management system from a card under Plaintiff’s

computer monitor and falsified his own as well as another employee’s time records in violation of

company policy. Coulombe Decl. ¶ 8, Ex. E (DEF00401); see also Lindo Decl. ¶ 6. Mr. Impey had

no knowledge of M.F.’s actions until the company’s investigation. Impey Decl. ¶ 14; Sivarajah Decl.

Ex. E (Lindo Depo.) at 62. M.F. admitted that he had stolen Mr. Impey’s password and made the

edits, but contended that he made the changes to avoid “meal period penalties” as a result of

inadequate management coverage on the weekends. Lindo Decl. ¶ 9, Sivarajah Decl. Ex. E (Lindo

Depo.) at 53-54; id. Ex. B (Perry Depo. at 34-35). Specifically, to comply with meal and rest break

regulations, Office Depot’s policies require employees to take a 30 minute break before the end of an

employee’s fifth hour of work should the employee work more than six hours. Coulombe Decl. ¶ 7,

Ex. D at DEF00389. If the meal break is not taken or take after the fifth hour of work, then the

employee is paid for an additional hour of work. Id. at ¶ 9, Ex. D. at DEF00392; see also Cal. Indus.

Welfare Comm’n Wage Order no. 7 (attached as Fukunaga Decl. Ex. B). M.F. voluntarily resigned

his position as a result of this incident. Coulombe Decl. ¶ 8, Ex. E (DEF00401); Lindo Decl. ¶ 9. He

was 28 years old and not known to have any disabilities. Coulombe Decl. ¶ 16; Impey Depo. at 137.

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As an additional result of the incident, Mr. Impey was placed on a performance improvement

process (“PIP”) for failure to keep his password safe, and was warned that a recurrence of the

violation would result in termination. Sivarajah Decl. Ex. A-5 at DEF000810. He was also placed on

a PIP because “lack of oversight in the scheduling process led to inadequate management coverage to

ensure meal period compliance, especially on the weekends. By not verifying the processing of

payroll and manual edits Dan did not identify inappropriate practices taking place.” Sivarajah Decl.

Ex. A-5 at DEF00082. He was warned that the consequence of a recurrence would be further

corrective action in the form of a final performance improvement program. Id. One of Plaintiff’s

store managers who worked weekends testified that there was sufficient coverage on weekends for

employees to take their meal breaks. Yoshidome Depo. at 57; see also Impey Decl. ¶ 16 (“Since the

time records that [M.F.] falsely edited showed that he was appropriately taking his meal breaks, I was

not aware of any problems with [M.F.] or any other manager not being able to take their lunch

breaks.”).

Following M.F.’s departure, Mr. Impey had one remaining assistant store manager, Gin

Yoshidome. Impey Decl. ¶ 18. Mr. Impey asked Ms. Perry for additional assistance, but none was

forthcoming. Impey Decl. ¶ 19. Ms. Perry has explained that this was because the Dublin store did

not qualify for two assistant store managers because its volume had dropped off and it was “no longer

over the mark where [it was] to have two assistant managers.” Supp. Fukunaga Decl. Ex. N at 47-48,

see also Ex. O (Coulombe Depo.) at 59-60.

On September 30, 2008, Senior Human Resource Generalist Lori Hale was preparing to

perform a site assessment at Plaintiff’s store. Impey Depo. at 70. Ms. Hale performed site

assessments in the Bay Area approximately every six months, and each Bay Area store was audited

from zero to two times per year. Sivarajah Decl. Ex. F (Hale Depo.) at 98-99, 105-06. As Ms. Hale

prepared for the site assessment, she reviewed the store’s timekeeping management system and

noticed 15 meal period violations in a four-week period, as well as manual edits to the timecards of

three employees during the last two weeks of September. Hale Decl. ¶ 3, 5, 6; Ex. B. Specifically,

Mr. Impey edited assistant store manager Gin Yoshidome’s time entry for Sunday, September 21,

2008 from his clock-in time of 7:06 a.m. to 10:00 a.m. and commented “Gin works Sunday.

Neglected to adjust schedule.” Impey Decl. Ex. C. Mr. Impey adjusted Perla Darby’s time entry for

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Thursday, September 18, 2008 from her clock-in time of 6:56 a.m. to 7:00 a.m. and commented

“Perla actually started at 7:00 a.m.” Impey Decl. Ex. A. Mr. Impey adjusted Qayoum Wassie’s time

entry for Sunday, September 21, 2008 from his clock-in time of 9:58 a.m. to 10:00 a.m. and

commented “Qayoum actually started at 10:00 a.m. Shift Ended 7:13 p.m.” Impey Decl. Ex. A. Ms.

Hale looked at the time sheets in question to determine whether the edits were proper. Sivarajah

Decl. Ex. F (Hale Depo.) at 150; Hale Decl. ¶ 5, Ex. B. 

Office Depot’s time keeping policy provides that: “Falsifying the hours of another associate

and/or falsification of one’s own hours worked may result in disciplinary action up to and including

termination.” Coulombe Decl. Ex. A at 17, Ex. B at DEF00328. The company’s performance

improvement process policy lists various types of misconduct that Office Depot considers serious

enough to warrant “immediate termination without previous warning,” including “falsifying

Company paperwork and/or documents.” Id. Ex. B at DEF00354. Plaintiff received and read the

handbooks in which these policies are contained. Impey Depo. at 53-55. Additionally, Office Depot

policy holds store managers responsible for ensuring that associates are clocking in and out at

appropriate times (Coulombe Decl. ¶ 11, Ex. F atDEF01615), and it is undisputed that Mr. Impey

“constantly” instructed his employees to start their shifts at their scheduled start times (Sivarajah

Decl. Ex. D (Yoshidome Depo.) at 37-38).

On September 29, 2008, Ms. Hale sent an email to her supervisor, Human Resources Manager

Cheryl Coulombe, alerting her that she “found some concerning things while preparing for the Site

Review” the next day, and specifically referred to the number of meal period violations and the three

timecard edits, which she found “appear to have been done (by Dan) to avoid the meal period penalty

in the last two weeks.” Hale Decl. Ex. A. She states that her concerns arose because “the amount of

time that the in punch was changed made the meal period compliant.” Supp. Fukunaga Decl. Ex. P

(Hale Depo.) at 151. For example, the report for Ms. Darby showed that she originally clocked in at

6:56 a.m., and punched out for lunch at 11:58 a.m. – five hours and two minutes later – which would

incur a meal period penalty. Coulombe Decl. ¶ 9; Impey Decl. Ex. A. Later that day, Mr. Impey

changed Ms. Darby’s clock-in time to 7:00 a.m., making her compliant with the meal period policy. 

Id.; see also Supp. Fukunaga Decl. Ex. P (Hale Depo.) at 152. Ms. Hale’s initial email does not

specifically refer to the “explanation” contained in the comments section of the timecard entries for

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two of the individuals, Ms. Darby and Mr. Wassie, but states that the explanation for Mr. Yoshidome

“makes no sense.” Hale Decl. Ex. A. Ms. Hale has also testified that she questioned Plaintiff’s edits

because Office Depot’s timekeeping management system allows employees to clock in up to five

minutes early, so there would be no reason to adjust these employees’ start times other than to avoid

meal period penalties. Fukunaga Decl. Ex. C (Hale Depo.) at 159-60; Coulombe Decl. ¶ 11.

On September 30, 2008, Ms. Hale conducted a site visit at Plaintiff’s store and spoke to

Plaintiff, Mr. Wassie, Ms. Darby and Mr. Yoshidome. Ms. Hale asked Plaintiff about Mr. Wassie

and Ms. Darby’s timecard edits, and why he changed their times by two and four minutes

respectively. During his deposition, Plaintiff stated that he may not have answered her question as

precisely as he should have at the time, and “can’t recall if [he] said anything specifically to her.” 

Impey Depo. at 73-74; but see Impey Decl. ¶ 23 (stating that during Ms. Hale’s site visit, he provided

her with “the same explanation that I had written in the comments section of the time sheets and

expressed to Ms. Hale that I always performed work with integrity and with the company’s best

interest in mind”). He also stated that he did not tell any other member of management why he

changed these time entries (other than including an explanation in the comments section of the time

management system at the time of the changes), though he was not prevented from doing so. Impey

Depo. at 74, 83. Ms. Hale also met with: (1) Ms. Darby, who was not aware that Plaintiff had

changed her start time on the date in question and did not know why it was changed (Fukunaga Decl.

Ex. D (“Darby Depo.”) at 48); (2) Mr. Wassie, who learned that his start time had been changed on

the day of Ms. Hale’s visit and stated that it was in part to avoid a meal period penalty (Fukunaga

Decl. Ex. E (“Wassie Depo.”) at 23-24); and (3) Mr. Yoshidome, who was not informed that his

timecard had been edited but confirmed that he did not start work until 10:00 a.m. so the change was

warranted (Fukunaga Decl. Ex. F (“Yoshidome Decl.”) at 113).

Following the site visit, Ms. Hale sent another email to Ms. Coulombe explaining her findings

and relayed Mr. Impey’s explanation regarding the time changes. See Hale Decl. Ex. A. Ms. Hale’s

email also explained that Ms. Darby said she did not know why Plaintiff changed her time and was

unaware he had done so; Mr. Wassie agreed that he did not start until 10:00 a.m. and that he wanted

to avoid a meal period penalty; and Mr. Yoshidome could not explain the change but agreed that he

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 After-the-fact evidence indicates that Mr. Yoshidome likely did in fact start work at 10:00 a.m. on the

day in question, and therefore the edit to this timecard may have been appropriate. Hale Depo. at 162-

63; Perry Depo. at 95; Coulombe Depo. at 90; Yoshidome Depo. at 169; Impey Decl. ¶ 22. Mr. Impey

also now contends that he made the edits to Ms. Darby and Mr. Wassie’s timecards because he was

present when they clocked in early, and instructed them not to begin work until their scheduled start

times. Impey Decl. ¶¶ 21-22. However, he did not testify to this during his deposition and it does not

appear that he ever provided this explanation to anyone during the investigation.

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started work at 10:00 a.m. as edited. Id.

2

 Ms. Hale concluded by stating that she “let Dan know [she]

was not able to get a reasonable explanation as to why the changes were made.” Id. 

Thereafter, a joint decision by Ms. Perry, Ms. Coulombe, and Mr. Mehranbod (Ms. Perry’s

supervisor) was made to terminate Mr. Impey for falsification of time records in violation of

company policy. Fukunaga Decl. Ex. G (Coulombe Depo.) at 104-05; Ex. H (Perry Depo.) at 152;

Coulombe Decl. Ex. A at 17, Ex. B at DEF00328, DEF00354. Mr. Impey was terminated on October

7, 2008 at the age of 55. At that time, Ms. Hale was 49 years old, Ms. Coulombe was 48 years old,

Ms. Perry was 48 years old, and Mr. Mehranbod was 44 years old. Coulombe Decl. ¶ 17. Mr. Impey

was replaced by Jose Felix, a 38-year-old, apparently non-disabled, man. Fukunaga Decl. Ex. I at 2;

Yoshidome Depo. at 166. Mr. Felix had three years of experience with Office Depot, including as an

assistant store manager at a training store, and was paid less than Mr. Impey. Perry Depo. at 144-46.

B. Office Depot’s Treatment of Other Timecard Policy Violators

In late 2008, Ms. Hale initiated an investigation of another Bay Area Office Depot store based

on an unusual number of timecard edits that appeared to have been done specifically to avoid meal

period penalties. Hale Decl. ¶ 7; Sivarajah Decl. Ex. B (Perry Depo.) at 121; id. Ex. F-1 at

DEF00675. During the investigation, 32-year-old non-disabled assistant store manager M.M.

admitted to altering time cards to avoid meal period violations and immediately tendered his

resignation. Lindo Decl. ¶ 2, 3, Ex. A; Coulombe Decl. ¶ 14. The store manager, M.C., was issued a

final PIP, but not terminated, according to Office Depot because he had only recently been hired and

trained on the timekeeping system. Fukunaga Decl. Ex. G (Coulombe Depo.) at 118; Perry Depo. at

122-23, 140; Hale Depo. at 181; Sivarajah Decl. Ex. F-1 at DEF00686, DEF00699-700. M.C. was 36

years old at the time. Fukunaga Decl. Ex. I at 2.

Around the same time, another Bay Area store was also investigated and an unusual number

of timecard edits were discovered. Office Depot concluded that the 38-year-old non-disabled store

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No party has explained the difference between a PIP and a formal written writeup and counseling, or

whether this is a distinction of relevance to this motion.

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manager M.T. had made the edits to avoid meal period penalties. Lindo Decl. ¶ 4, 5, Ex. B. As a

result, M.T. was terminated. M.T. had a prior PIP related to unspecified wage and hour and meal/rest

period violations, which was issued to him in lieu of termination for his first infraction. Sivarajah

Decl. Ex. B (Perry Depo.) at 132-33, Ex. B-1 at DEF01005; but see Fukunaga Decl. Ex. G

(Coulombe Depo.) at 111 (noting that M.T. had a prior formal write-up and documented counseling,

but not a final PIP).3

In July 2008, assistant store manager M.V. was investigated for changing an employee’s time

record. Lindo Depo. at 102. M.V. explained that she changed the employee’s clock-in time to her

scheduled start time because “she had clocked herself in early when she was not working (she was

hanging out in the back).” Sivarajah Decl. Ex. B-1 at DEF1007. Office Depot accepted this

explanation. Sivarajah Decl. Ex. E (Lindo Depo.) at 102.

In June 2008, M.L., a department manager at a Bay Area store, was investigated for making

time card changes to avoid meal period penalties. Lindo Decl. ¶ 2, Ex. A at DEF00686. It was

determined that another individual stole his password to perform the edits and M.L. was told to

change his password but was not otherwise disciplined. Id. 

II. Legal Standard

Motions for summary judgment of federal and state employment discrimination actions are

analyzed under the three-step burden-shifting framework established in McDonnell Douglas Corp. v.

Green, 411 U.S. 792 (1973). See, e.g., Chuang v. University of California Davis, 225 F.3d 1115,

1123-24 (9th Cir. 2000) (citing McDonnell Douglas). First, plaintiff must establish a prima facie case

of discrimination under FEHA by showing that: (1) he is a member of a protected class (i.e., over 40

years old or suffering from (or perceived to be suffering from) a disability); (2) he is otherwise

qualified to do his job; (3) he suffered an adverse employment action; and (4) the employer harbored

discriminatory intent. Avila v. Continental Airlines, 165 Cal. App. 4th4 1237, 1246 (2008). The

proof necessary for a plaintiff to establish a prima facie case is “minimal” and need not even rise to

the level of a preponderance of the evidence. See id. (citing Wallis v. J.R. Simplot Co., 26 F.3d 885,

889 (9th Cir. 1994)). The plaintiff need only offer evidence that “gives rise to an inference of

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unlawful discrimination,” arising either under the McDonnell Douglas presumption or by more direct

evidence of discriminatory intent. Wallis, 26 F.3d at 889. 

If the plaintiff proves his prima facie case, the burden of production then shifts to the

employer to articulate a legitimate, nondiscriminatory business reason for the alleged action. See

Guz v. Bechtel National, Inc., 24 Cal. 4th 317, 355-356 (2000). If the employer does so, the

presumption of discrimination disappears and the plaintiff must show that the articulated reason is

pretextual, “‘either directly by persuading a discriminatory reason more likely motivated the

employer or indirectly by showing that the employer’s proffered explanation is unworthy of

credence.’” Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981); see also

Arteaga v. Brink’s Inc., 163 Cal. App. 4th 327, 343 (2008). The ultimate burden of persuading the

trier of fact that the employer intentionally discriminated remains at all times with the plaintiff. See

Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000) (citing Burdine, 450 U.S. at

253).

Office Depot argues that Mr. Impey cannot raise a triable issue of fact as to a prima facie

showing of either disability or age discrimination, and that even if he can, the undisputed facts show

that Defendant terminated Plaintiff for legitimate reasons that were not pretextual. 

III. Employment Discrimination Under FEHA

A. Prima Facie Showing

There is no dispute that Plaintiff was over the age of forty and disabled (or, alternatively,

perceived to be disabled), and that he was a “qualified individual” at the time of his termination. 

Therefore, with respect to his prima facie showing, the only question is whether the fourth factor is

met; i.e., has he presented evidence giving rise to an inference that Office Depot harbored

discriminatory intent, either on the basis of his age or his disability. This can be shown by

demonstrating that Plaintiff was replaced by someone outside of his protected class. See, e.g., Nesbit

v. PepsiCo, Inc., 994 F.2d 703, 705 (1993) (prima facie case of age discrimination can be shown

where plaintiff was replaced by “substantially younger employee with equal or inferior

qualification”).

Plaintiff contends that he has met his initial burden of showing an inference of discrimination

because he was replaced by Jose Felix, a 38-year-old, non-disabled man. See Fukunaga Decl. Ex. I

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 Plaintiff’s Opposition states that the absence was “one day,” but the note indicates that he was absent

for three days. Fukunaga Decl. Ex. L; Perry Decl. ¶ 6.

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(listing Mr. Felix as a 38-year-old store manager at the time of Mr. Impey’s termination); Sivarajah

Decl. Ex. D (Yoshidome Depo.) at 166 (stating that he did not know Mr. Felix to have a disability). 

He further contends that Mr. Felix had “very limited experience” when he replaced Mr. Impey. Opp.

at 17. Office Depot counters that Plaintiff has “no evidence” of Mr. Felix’s qualifications or whether

his own were superior. Reply at 14. However, there is evidence that Mr. Felix was hired in 2005,

eight years after Plaintiff, and was previously an assistant store manager at a training store before

replacing Plaintiff, whereas Plaintiff had been a store manager for some time. See Fukunaga Decl.

Ex. I; Sivarajah Decl. Ex. B (Perry Depo.) at 144. Therefore, it can be inferred that he was younger,

was non-disabled, and had less experience than Plaintiff.

In support of his prima facie case, Plaintiff also points to his own testimony that his

supervisor, Ms. Perry, called him an “old timer” on more than one occasion despite his complaint

about the term. Sivarajah Decl Ex. A (Impey Depo.) at 128-131. He further points to his contentions

that Ms. Perry required a doctor’s note from him during an absence from work for the first time

following his return from disability leave. Id. at 37; Impey Decl. ¶ 10.4

 However, he does not

explain whether this new requirement was inconsistent with treatment of other employees or

company policy, or how this gives any indication of discriminatory intent. Finally, he argues that the

fact that he was not provided with another assistant store manager following his assistant store

manager’s resignation is evidence of discrimination. But this contention, even if true, is belied by

undisputed evidence that his store did not qualify for an additional assistant manager because of

diminished volume, and therefore is unhelpful to Plaintiff. 

Office Depot argues that Plaintiff’s preliminary showing is insufficient because he must “at

least show actions taken by the employer from which one can infer, if such actions remain

unexplained, that it is more likely than not that such actions were based on a [prohibited]

discriminatory criterion.” Guz v. Bechtel National, Inc., 24 Cal. 4th 317, 355 (2000). Office Depot

argues that Plaintiff’s evidence does not give rise to this inference, and goes on to challenge the

substance of Plaintiff’s evidence. For example, Office Depot cites Nesbit v. Pepsico, Inc., 994 F.2d

703, 705 (9th Cir. 1993), where the Ninth Circuit found that a supervisor’s comment that “we don’t

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necessarily like grey hair” was uttered in an ambivalent manner and was not directly tied to the

termination in question and therefor did not create an inference of discrimination. However, Nesbit

was a FEHA “reduction in workforce” case where the Ninth Circuit also rejected Plaintiff’s effort to

establish his prima facie case using statistical evidence that some older workers were terminated

while some younger workers were retained and subsequently hired employees were generally

younger, finding no statistical pattern adversely affecting older employees. Id. at 705. In contrast,

here there is at least some evidence that Plaintiff was directly replaced by a non-disabled individual

17 years younger than him and with less tenure at Office Depot and experience only as an assistant

store manager, whereas Plaintiff was a store manager. Based on this evidence alone, Plaintiff has

satisfied his “minimal” initial burden of raising a triable issue of a prima facie showing because the

trier of fact could infer discriminatory intent simply from his replacement by a far younger, nondisabled individual. 

B. Legitimate business reasons

If a plaintiff establishes a prima facie case for disability discrimination, the burden shifts to

the defendant to articulate a legitimate, nondiscriminatory reason for its allegedly discriminatory or

retaliatory conduct. Surrell v. Cal. Water Serv., 518 F.3d 1097, 1106 (9th Cir. 2008); Mixon v. Fair

Employment & Housing Comm’n, 192 Cal. App. 3d 1306, 1316-19 (1987) (adopting the standards

set by the United States Supreme Court for proving intentional discrimination). An employer need

not persuade the court that it had convincing objective reasons for the termination. Burdine, 450 U.S.

at 254-55, 257. If nondiscriminatory, an employer’s reasons for the termination “need not necessarily

have been wise or correct.” Guz, 24 Cal. 4th at 358.

Office Depot argues that it has presented specific, factual evidence that Plaintiff was

terminated for legitimate, nondiscriminatory reasons. Specifically, it contends that Plaintiff

admittedly edited timecards, and failed to provide a sufficient explanation during the investigation

even though he was given an opportunity to do so. Fukunaga Decl. (Impey Depo.) at 83. He also did

not attempt to further explain his actions or challenge the investigation in the week between the

investigation and his termination. Hale Decl. ¶ 4; Compl. ¶ 5. Further, Office Depot notes that,

while termination for editing three time cards to comply with wage and hour regulations seems harsh,

in order to avoid wage and hour litigation, employers must send a clear message that timekeeping and

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meal break laws are taken seriously. Office Depot cites King v. United Parcel Service, Inc., 152 Cal.

App. 4th 426, (2007), where the court affirmed summary judgment in favor of an employer where a

disabled employee was terminated for either personally falsifying one timecard or directing another

employee to do so in order to comply with federal regulations. However, in King, the employee

admitted to falsifying the timecard in question in order to avoid wage and hour violations, unlike

Plaintiff. Office Depot also notes that its employees are allowed to punch in five minutes early, so

there would be no reason to change an employee’s start time by less than this amount (i.e., the two

and four minutes in question) other than to avoid meal period penalties, and this fact also prompted

its belief that Plaintiff had acted improperly in editing the timecards. Finally, Office Depot argues

that Plaintiff knew he had done something wrong and believed he was going to be “given another

corrective” for his actions. See Impey Depo. at 61-63 (he “thought he was going to be given another

corrective” based on Ms. Hale’s audit and the “time card violations,” though he did not expect to be

terminated). However, Plaintiff’s testimony does not make clear whether he knew he had done

something wrong because Ms. Hale told him he had during the investigation, or because he actually

believed that what he had done was wrong, and therefore this evidence is not helpful to Defendant.

The Court agrees with Office Depot that its stated reason for Plaintiff’s termination – editing

timecards in such a manner that it appeared Mr. Impey was trying to avoid meal period penalties –

articulates a legitimate, nondiscriminatory reason for his termination. This is especially true given

his deposition testimony that he did not attempt to explain his actions to anyone during the

subsequent investigation when questioned about them. Fukunaga Decl. (Impey Depo.) at 83; but see

Impey Decl. at ¶ 23. Even if it is true that Plaintiff personally witnessed the three individuals in

question clock in early, and he simply changed their times to reflect their accurate start times in

accordance with Office Depot policy, Office Depot has presented evidence that it reasonably believed

that the changes were actually made to avoid meal period penalties and it terminated him on this

basis. Therefore, based on the undisputed facts, Office Depot has stated a legitimate,

nondiscriminatory business reason for the termination.

C. Pretext

If an employer articulates a legitimate reason for its action, the presumption of discrimination

drops out, and the plaintiff must offer evidence that the employer’s proffered non-discriminatory

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reason is merely a pretext for discrimination. Surrell, 518 F.3d at 1106. Pretext may be

demonstrated by direct evidence showing that unlawful discrimination more likely motivated the

employer, or indirect evidence showing that an employer’s reasons are unworthy of credence because

they are internally inconsistent or otherwise not believable. Chuang v. Univ. of Cal. Davis, Bd. Of

Trustees, 225 F.3d 1115, 1127 (9th Cir. 2000). Plaintiff must produce specific and substantial

evidence that the defendant’s reasons are really a pretext for discrimination. Aragon v. Republic

Silver State Disposal, Inc., 292 F.3d 654, 661 (9th Cir. 2002); see also Coghlan v. Am. Seafoods Co.,

413 F.3d 1090, 1095-96 (9th Cir. 2005) (circumstantial evidence “must be ‘specific and substantial’

to defeat employer's motion for summary judgment”).

1. Falsity of Reason for Termination

Plaintiff argues that Office Depot’s only stated reason for his termination – improperly editing

two time cards by minutes and failing to provide an explanation for doing so – is demonstrably false

and therefore pretextual. First, Plaintiff argues that Ms. Perry said he was fired because he could not

provide an explanation for the timecard edits, but he points to his written explanation of the time card

edits in the comments section of the timekeeping management system, where he explained that two of

the changes were made to reflect actual start times, and one was because he “neglected to adjust

schedule.” See Impey Decl. Exs. A, B, C. He also refers to Ms. Hale’s email stating what he told her

during the investigation. He contends that these explanations make the edits conform with company

policy and refute the basis for his termination. Office Depot counters that Plaintiff’s comments on

the time cards are not dispositive of the issue, because if Plaintiff was trying to improperly edit time

cards he would very likely include innocent explanations and Office Depot was not required to accept

these at face value. Instead, Office Depot contends that Ms. Hale thought that the edits looked

suspicious despite the comments and given that the amount of the edits avoided two meal period

penalties, conducted an investigation, and gave Plaintiff a chance to explain his actions which he

failed to do at the time. See Hale Decl. Ex. A; Supp. Fukunaga Decl. Ex. P (Hale Depo.) at 151-52;

id. at Ex. R (Impey Depo.) at 74-75, 83.

In connection with this argument, Office Depot challenges Plaintiff’s declaration, filed in

opposition to its motion, in which he states that during the investigation he “provided Ms. Hale the

same explanation that I had written in the comments section of the time sheets.” Impey Decl. ¶ 23. 

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Office Depot contends that this declaration directly contradicts his earlier deposition testimony in

which he stated that he “can’t recall” his exchange with Ms. Hale or any specifics of an explanation

to her, and did not tell Ms. Hale or a member of management why he edited the time cards (see

Impey Depo. at 71-75, 83), and therefore his declaration on this point should be disregarded as a

“sham.” In determining whether to consider Plaintiff’s declaration for this point, the question is

whether it clearly and unambiguously contradicts his prior deposition testimony, was prepared

specifically in opposition to a summary judgment motion, and the contradiction has not been

explained, such that the Court may consider the declaration a “sham” and refuse to consider it. See

Kennedy v. Allied Mutual Ins. Co., 952 F.2d 262, 266-67 (9th Cir. 1991). In Van Asdale v.

International Game Technology, 577 F.3d 989, 998-999 (9th Cir. 2009), the Ninth Circuit explained

that the doctrine should be “applied with caution,” but is required because, “if a party who has been

examined at length on deposition could raise an issue of fact simply by submitting an affidavit

contradicting his own prior testimony, this would greatly diminish the utility of summary judgment as

a procedure for screening out sham issues of fact.” Id. The Ninth Circuit has imposed two

limitations on a district court’s discretion to invoke the sham affidavit rule: (1) “the district court

must make a factual determination that the contradiction was actually a “sham” and (2) “the

inconsistency between a party’s deposition testimony and subsequent affidavit must be clear and

unambiguous to justify striking the affidavit.” Id. at 999. 

Here, Mr. Impey’s declaration is somewhat inconsistent with the part of his deposition

testimony where he expressly stated that he did not tell Ms. Hale or another member of management

why he edited the timecards, the declaration was prepared for the summary judgment opposition, and

the contradiction has not been explained. However, at his deposition he also stated that he did not

recall what he said to Ms. Hale, so the fact that he recalls this information later is not a direct

contradiction. It is possible that, once he reviewed Ms. Hale’s email explaining her conversation

with him (which is in some, but not all, ways consistent with this portion of his declaration), his

recollection was refreshed when he prepared the later declaration. See Hale Decl. Ex. A. Therefore,

the Court will not strike Mr. Impey’s declaration as a sham. However, the Court notes that during

oral argument, Mr. Impey did not rely on his declaration for this point, and the Court does not do so

either. Instead, the Court finds that Mr. Impey’s comments on the timecards, as well as Ms. Hale’s

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email regarding Mr. Imepy’s explanation during the investigation, are at least some evidence that he

provided a reasonable explanation for the edits. Based on this evidence, in conjunction with other

evidence discussed below and drawing all reasonable inferences in Plaintiff’s favor as required, a

trier of fact could find that Office Depot was unreasonable in concluding that the edits were made for

an improper purpose.

Moreover, in connection with Ms. Hale’s investigation of the timecard edits in question, Ms.

Hale also spoke directly to Ms. Darby, Mr. Wassie and Mr. Yoshidome. Based on these conversations

(as well as her conversation with Plaintiff), she stated that she “could not get a reasonable explanation

as to why the changes were made.” Supp. Coulombe Decl. Ex. A. Two of these conversations

provide some support for Office Depot’s position, while the conversation with Mr. Yoshidome

supports Plaintiff’s position. Specifically, Mr. Wassie “echoed what Dan said about his schedule not

starting until 10:00, but also said he wanted to avoid the meal period penalty.” Supp. Coulombe

Decl. Ex. A.; see also Sivarajah Decl. Ex. F (Hale Depo.) at 162 (Mr. Wassie told Ms. Hale that

Plaintiff told him that he was not scheduled to start until 10:00); Fukunaga Decl. Ex. E (Wassie

Depo.) at 23-24 (Plaintiff told him about the change to his timecard on the day of Ms. Hale’s

investigation and he was surprised because he did not know anything about it). Even if true that Mr.

Wassie agreed with Mr. Impey that he had not actually started work until 10:00 a.m., his statement to

Ms. Hale that he desired to avoid a meal period penalty as an additional reason for the timecard edit

made it reasonable for Ms. Hale to conclude that the edit was not done for a proper purpose. 

Similarly, Ms. Darby told Ms. Hale that she did not know why Plaintiff would have changed

her punch in time and she was not aware that he had done so. Id.; see also Fukunaga Decl. Ex. D

(Darby Depo.) at 48 (Plaintiff never communicated to her that start time had been changed). 

However, Ms. Darby also said that she “generally clocks in a few minutes early to ensure that she is

on time.” Supp. Coulombe Decl. Ex. A.; see also Sivarajah Decl. Ex. F (Hale Depo.) at 161-62 (Mr.

Impey told Ms. Hale that Ms. Darby clocked in but was not working yet; Ms. Darby told Ms. Hale

that she did not recall Plaintiff changing her start time). Viewing this testimony in the light most

favorable to Plaintiff, the undisputed evidence is simply that Plaintiff told Ms. Hale that he changed

Ms. Darby’s timecard because she clocked in before she started working, and Ms. Darby told Ms.

Hale that she did not know why Plaintiff changed her timecard and he did not notify her he had done

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so, but that she did clock in early sometimes. There is nothing suspicious about Ms. Hale giving

more weight to Ms. Darby’s account than Mr. Impey’s and therefore concluding that the edit was

made to avoid a meal period penalty. 

In contrast, Mr. Yoshidome “could not explain why there was an original punch for 7:06 or

why it would have been changed,” but also told Ms. Hale he was “fairly certain” he started work at

10:00 a.m. that day. Supp. Coulombe Decl. Ex. A.; see also Sivarajah Decl. Ex. F (Hale Depo.) at

163; Ex. D (Yoshidome Depo.) at 95-96 (Mr. Yoshidome does not recollect talking to Plaintiff to

disagree with hours reflected on timecard in question); Ex. B (Perry Depo.) at 95-96 (Ms. Hale told

Ms. Perry that Mr. Yoshidome told her he did not start work until 10:00 a.m. on the day in question

and Ms. Perry did not have a problem with that edit); Ex. C (Coulombe Depo.) at 90 (Ms. Coulombe

had no reason to doubt that Mr. Yoshidome worked at 10:00 a.m. that day). Given that the only

information before Ms. Hale during the investigation was that Mr. Yoshidome was “fairly certain” he

had started at 10:00 a.m. as edited by Plaintiff, a jury could conclude that it was unreasonable for Ms.

Hale to conclude that this edit was made to avoid a meal period penalty, and therefore pretextual. 

Second, Plaintiff argues that his edits and/or explanation were the same as that of another

employee, M.V., but she was not reprimanded for her edit. M.V. stated that she changed an

employee’s clock-in time to her scheduled start time because “she had clocked herself in early when

she was not working (she was hanging out in the back).” Sivarajah Decl. Ex. B-1 at DEF1007; see

also Supp. Fukunaga Decl. Ex. Q at 102. Office Depot accepted this explanation. Sivarajah Decl.

Ex. E (Lindo Depo.) at 102. Defendant counters that the circumstances were different because M.V.

was an assistant store manager, not a store manager like Plaintiff, did not report to Ms. Perry, and

provided a plausible explanation to Mr. Lindo at the time of the investigation. Further, there is no

evidence of whether or not the timing of M.V.’s timecard change indicated that she made the edit to

avoid a meal period or other penalty, so this situation is not necessary analogous to Plaintiff. 

However, an evaluation of the similarities and differences between Plaintiff and M.V., and their

treatment by Office Depot, could be viewed as an improper weighing of evidence on summary

judgment, and therefore the Court declines to do so. A trier of fact might find that M.V. and Plaintiff

were similarly situated but treated differently, and that this is some indication of pretext.

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Third, Plaintiff argues, without citation to evidence, that Ms. Darby, Mr. Wassie and Mr.

Yoshidome had to approve their timecards on a weekly basis and affirmatively confirm their

accuracy. Therefore, according to Plaintiff, their testimony that they did not know about the edits

before the investigation is suspect. Defendant did not address this point during oral argument. 

However, even if true, it is unclear how this helps Plaintiff, given that Mr. Wassie told Ms. Hale that

his edit was made to avoid a meal period penalty. 

Fourth, Plaintiff argues that his edits conformed to Office Depot and Ms. Perry’s policy of

ensuring that employees do not clock in early. Office Depot did not address this point during oral

argument, and it is undisputed that Office Depot, Ms. Perry and Plaintiff were strict about enforcing

this policy. However, it is also undisputed that Office Depot allows employees to clock in five

minutes early to ensure that they are on time, so changing a start time by less than five minutes does

not seem to enforce the policy, and instead serves only to avoid meal period penalties. Because

resolution of this issue requires some weighing of undisputed facts, on summary judgment it falls in

favor of Plaintiff. 

Fifth, Plaintiff argues that there is evidence that he was not avoiding paying penalties because

he had previously paid many penalties and it is unreasonable to conclude that he would have made

the edits in question to avoid just two more. However, Plaintiff has cited no evidence of this in either

his papers or at oral argument other than his own declaration about how many edits he made. Office

Depot counters that this argument is irrelevant and speculative, and the Court agrees.

For the foregoing reasons, Plaintiff has presented some evidence, albeit fairly slim, that could

create a triable issue of fact as to whether Office Depot’s stated motive for firing him was “false” or

“implausible” to support a pretext argument. 

2. Evidence That The True Reason For Termination Was Discriminatory

Office Depot argues that Plaintiff cannot show a discriminatory motive because, by his own

admissions, he was hired at the age of 44, “quickly advanced” to the position of store manager at age

48 despite significant leaves of absence based on his disability, and was later transferred to a “more

important” store. Further, according to Office Depot, he has no evidence of discriminatory intent

based on age or disability. The Court disagrees.

a. Similarly Situated Employees

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 In his papers, Plaintiff also argued that assistant/department managers M.V. and M.L. were treated

more favorably, but did not make this argument at oral argument, apparently conceding that they were

not similarly situated. This is likely because there is no evidence of either of these individuals’ ages or

disability status, and neither were exempt store managers with duties or responsibilities similar to

Plaintiff’s. 

19

 Plaintiff primarily argues that the reason for his termination was pretextual because

employees whom he deems “similarly situated” but outside of his protected classes were treated more

favorably. He argues that his termination was harsher than the actions taken against other Office

Depot employees, including store managers M.C. and M.T., who were not disciplined or only given a

warning.5

 Plaintiff cites Bowden v. Potter, 308 F. Supp. 2d 1108, 1120 (N.D Cal. 2004) for his

position that a finding that more favorable treatment of even one similarly situated employee is

sufficient to show pretext. However, in Bowden, the Court listed the disparate treatment of one other

similarly situated individual in a list of five factors in holding that the disparate treatment could,

along with the other factors, create a triable issue of fact as to pretext. 

With respect to M.C., Plaintiff argues that he had 391 timecard edits, 97 of which appeared to

be done to avoid meal period penalties, and that Ms. Coulombe noted that these edits were the worst

she had seen, yet M.C. only received a PIP. At oral argument, Defendant countered that Plaintiff

misstates the evidence because M.C. was only personally responsible for 3 edits (and someone stole

his password and made others), and that he was new to the company (5 months) and not adequately

trained on the timekeeping system. Plaintiff did not dispute that M.C. was only personally

responsible for three edits, but argues that the explanation that he got a PIP because he was new was

inconsistent and unreasonable because his edits increased with his longevity with the company. 

Resolving the factual inquiry of whether M.C. was similarly situated, who was responsible for

making his edits, whether his level of discipline was more lenient than Plaintiff’s, and other relevant

questions regarding this individual, are matters subject to reasonable disagreement and therefore for

the jury. See Bowden v. Potter, 308 F. Supp. 2d 1108, 1117 (N.D. Cal. 2004) (Chen, J.) (noting that

the critical question in determining whether an employee is similarly situated is whether they are

similarly situated in “all material aspects” and that a reasonable jury could find that two employees

were similarly situated despite some differences in their positions and offenses). 

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With respect to M.T., Plaintiff contends that he was subjected to progressive discipline

instead of immediate termination; he received a PIP for his first timecard alteration offense and was

only terminated for his second offense (unlike Plaintiff who was terminated for his first offense). 

Office Depot counters that the first offense was for other wage and hour violations (Sivarajah Decl.

Ex. B (Perry Depo.) at 132, Ex. B-1 at DEF1005), and he was terminated for his first timecard edit to

avoid a meal period penalty. Office Depot attempts to equate M.T.’ previous wage and hour

violations with Mr. Impey’s own previous PIP in connection with M.F.’s violation and resignation,

and notes that when M.T. was later found to have falsified employee time records for the first time,

he was terminated – just like Plaintiff. However, it is reasonably debatable whether M.T.’ previous

“wage and hour” issues are sufficiently similar to Mr. Impey’s actions to illustrate differential

treatment of Plaintiff, so resolution of these factual issues is the province of the jury.

Because there are triable issues of fact as to whether either M.C. or M.T. was a similarly

situated employee outside of Plaintiff’s protected class who was treated more favorably than Plaintiff,

this “comparator” evidence, together with other disputed evidence, weighs against Defendant’s

Motion for Summary Judgment.

b. Other Evidence

i. Age-Related Comments

Office Depot contends that Plaintiff has admitted that he has no evidence of discrimination

based on age, other than a conclusory and unsubstantiated statement in his Complaint that he was

“one of the oldest at 55 and was also on the higher end of the pay range with a salary of

approximately $76,000 per year.” Impey Depo. at 133-36 (admitted that he had no facts to suggest he

was terminated based on age); Compl. ¶ 16. Office Depot points to evidence relating to two other

store managers in Plaintiff’s district were also over the age of 40, earned more than Plaintiff, and are

still employed by Office Depot. See Fukunaga Decl. Ex. I; Coulombe Decl. ¶ 12; Stauffer Depo. at

11, 43-46; Dewey Decl. ¶¶ 4-5. Both have testified that they never felt discriminated against on the

basis of age. Fukunaga Decl. Ex. J (Stauffer Depo.) at 11, 43-46, 36, 153-54; Dewey Decl. ¶ 2. 

While the fact that these two individuals are still employed by Office Depot does provide some

evidence to counter an inference of discriminatory motive based merely on Plaintiff’s age and alleged

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salary, Plaintiff persuasively argues that he need not show a “clean sweep” of all older employees or

those paid more than him to raise a triable issue of fact. 

Office Depot also argues that Trudy Perry’s reference to Plaintiff as an “old timer” does not

show discriminatory intent, because Plaintiff has admitted that he did not know what she meant by

the term (Impey Depo. at 129-30), and his subjective belief that the remark referred to his age is

insufficient. Trudy Perry contends that she was referring to the length of time Plaintiff had been with

the company, as opposed to his age. Perry Decl. ¶ 5. Ms. Dewey, whom Ms. Perry also referred to as

an “old timer,” thought that the comment referred to tenure and not age, and noted that she and

Plaintiff sometimes used the term to refer to themselves. Dewey Decl. ¶ 7. Plaintiff has admitted

that Ms. Perry did not otherwise indicate that she was biased against older people. Fukunaga Decl.

Ex. A (Impey Depo.) at 131. 

The Court agrees with Office Deport that these comments are ambiguous and on their face do

not necessarily seem to refer to age, but rather to longevity with the company. However, at oral

argument, Plaintiff persuasively pointed out that Ms. Perry’s declaration only purported to explain the

“old timer” comments with respect to Karen Dewey and Plaintiff. Perry Decl. ¶ 5. Plaintiff argues

that the declaration notably does not state that she also referred to Mr. Stauffer (who was a store

manager for longer than Plaintiff and Ms. Dewey but younger than both of them) as an “old timer.” 

This may be because Plaintiff only testified with certainty that Ms. Perry called him and Ms. Dewey

“old timers,” and “maybe Ralph [Stauffer].” Impey Depo. at 129 (“She basically said, you know,

‘Ralph, Dan’ – I don’t know if she said Ralph specifically – ‘Karen have been around a long time, got

a lot of time with this company.’”). Therefore, Ms. Perry may not have felt the need to rebut

Plaintiff’s equivocal testimony about whether or not she referred to Mr. Stauffer as an old timer.

Regardless, she did not do so.

Office Deport also relies on Nidds v. Schindler Elevator Corp., 113 F.3d 912, 918 -919 (9th

Cir. 1996), where the Ninth Circuit held that a supervisor’s reference to getting rid of “old timers”

was insufficient evidence to raise a genuine issue of fact as to whether the reason for the plaintiff’s

termination was discriminatory under California’s FEHA statute. The Court found that the comment,

like the one in Nesbit v. Pepsico, Inc., 994 F.2d 703, 705 (9th Cir.1993) (holding that statement that

“[w]e don't necessarily like grey hair” was insufficient) was “ambiguous because it could refer as

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well to longtime employees or to employees who failed to follow directions as to employees over 40”

and was not tied to the plaintiff’s layoff. Id. Therefore, it was too weak to create an inference of age

discrimination. Id.

While the Ninth Circuit’s interpretation of FEHA would be persuasive if the issue were not

currently pending before the California Supreme Court, California law regarding similar “stray

remarks” in the context of employment discrimination summary judgment is currently under

consideration by the California Supreme Court in Reid v. Google, Inc. (argued in May, 2010). If the

California Supreme Court articulates a different standard for “stray comments” in Reid, then evidence

of Ms. Perry’s “old timers” references may aid Plaintiff even more strongly in raising a triable issue

of pretext. The Court raised this issue at oral argument, and the parties agree that a decision in Reid

could impact this case in some way. Therefore, the pendency of Reid cautions further against

granting Defendant’s Motion for Summary Judgment.

Office Depot’s Motion also appears to argue that Mr. Impey has not adequately presented

evidence of age discrimination because it is undisputed that all of the decision makers involved in the

decision to terminate him (Perry, Coulombe, and Mehranbod) were over the age of 40. Motion at

13; Coulombe Decl. ¶ 17. Office Depot cites cases where summary judgment was granted in

instances where the decision makers were in the same protected class as the plaintiff. See Elrod v.

Sears, Roebuck and Co., 939 F.2d 1466, 1471 (11th Cir. 1991) (“Elrod faces a difficult burden here,

because all of the primary players behind his termination . . . were well over age forty and within the

class of persons protected by the ADEA. These three are more likely to be the victims of age

discrimination than its perpetrators.”) However, Plaintiff persuasively counters that discrimination

can occur between members of the same protected class, and that in any event the ages of the

decision-makers does not impact his disability discrimination claim. 

ii. Disability-Related Comments

Office Depot contends that there is no direct evidence of discriminatory intent based on

disability because Plaintiff admits that he never heard anyone make a negative comment about his

back injury and none of the decisionmakers ever said anything indicating that they were biased

against people with disabilities. Fukunaga Decl. Ex. A (Impey Depo.) at 137, 139-40. Office Depot

contends that his testimony that, a year before he was terminated, “someone” commented about the

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validity of his injury, is insufficient because he does not know who said it or if the comment was

really made. Id. Therefore, according to Office Depot, the only evidence that Plaintiff has presented

concern the instances where Ms. Perry: (1) told Plaintiff not to lift beyond his restrictions, (2) made

comments about his back and/or commented on his weight upon return from a leave of absence due to

surgery; and (3) asked him for a doctor’s note when he was out sick. Plaintiff admittedly did not

bring these allegedly discriminatory comments to the attention of human resources or management. 

Impey Depo. at 114, 116-17. However, Plaintiff testified that Ms. Perry’s comments were made in a

sarcastic manner and tone, even though they seem innocuous on their face. Impey Depo. at 112-113. 

With respect to comments about his weight, Office Depot argues that Plaintiff’s evidence on

this point is only contained in interrogatory responses, but during his deposition he did not mention

this comment as being inappropriate. Plaintiff does not explain how making a comment that he

“seemed thinner” upon return from surgery is evidence of disability discrimination. Office Depot

further argues that there was nothing unusual or discriminatory about asking for a sick note when

Plaintiff was out of work for three days, and Plaintiff does not explain otherwise. Perry Decl. ¶ 6. 

Office Depot also points out that two other store managers in his district, Ms. Dewey and Mr.

Stauffer, also suffered from serious health issues that impacted their ability to work, and that it is

undisputed that Ms. Perry did not treat either of them differently or unfairly. Fukunaga Decl. Ex. J

(Stauffer Depo.) at 35-36, 153-54; Dewey Decl. ¶¶ 4-5. 

However, Plaintiff argues that Ms. Perry’s “lifting” comments are evidence of disability

discrimination because, while facially benign, they were made in a sarcastic manner. A dispute over

how a remark should be interpreted based on conflicting testimony about the tone and manner of its

delivery is generally a question for the jury, and for purposes of summary judgment the Court must

look at the evidence in the light most favorable to Plaintiff. Moreover, especially given the pendency

of Reid and the potentially- evolving California law on “stray remarks,” the Court errs on the side of

caution and denies summary judgment on this ground in conjunction with the others discussed 

0herein.

iii. Good Faith Investigation

Plaintiff also argues that his termination was pretextual because Office Depot did not

undertake a good faith investigation before his termination. He argues that M.C., M.T., M.V. and

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M.L. were all interviewed by Greg Lindo from Loss Prevention with Ms. Perry as a witness, while

Mr. Lindo played no part in the investigation at his store. From this difference, Plaintiff concludes

that in his case Office Depot did not conduct a “true” investigation but instead a “rubber stamp”

investigation by Ms. Hale. However, he does not present evidence of any differences between

investigations by Mr. Lindo and Ms. Hale, any reason why a decision was made not to involve Mr.

Lindo, or how Mr. Lindo’s lack of involvement in his investigation shows pretext. In contrast, Office

Depot contends that Ms. Hale is a Senior HR Generalist who has been employed by Office Depot for

17 years, has received training in conducting investigations, and has conducted at least ten

investigations. Therefore, this point does not aid Plaintiff in showing pretext.

iv. Plaintiff’s Previous Payment of Meal Period Penalties

Plaintiff contends that he had previously paid at least 87 meal period penalties in 2007 and 14

in the four weeks leading up to the 2008 audit of his store. Impey Decl. ¶ 24. He reasons that, if he

was trying to avoid meal period penalties, he would have edited more of those time cards to avoid

penalties. However, as discussed above, this argument is irrelevant and speculative.

v. Plaintiff’s Prior PIP

Plaintiff also argues that his earlier PIP for failure to ensure adequate weekend coverage was

unwarranted, and that this is evidence of pretext. However, there is no evidence that the prior PIP

played into the decision to terminate Plaintiff, so this is unhelpful to Plaintiff.

In sum, and for the reasons discussed above, even if none of the individual pieces of evidence

are alone sufficient to show pretext, taken together they at least create a triable issue of fact that could

refute Office Depot’s claim that it had a good faith, honest belief in the reason for his termination. 

Defendant’s motion is therefore DENIED.

IV. Failure to Prevent Discrimination

Plaintiff has also made a claim against Office Depot for failure to prevent discrimination and

harassment under California Government Code § 12940(k), which states:

It shall be an unlawful employment practice, unless based upon a bona fide

occupational qualification, or, except where based upon applicable security regulations

established by the United States or the State of California:

 ***

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For an employer, labor organization, employment agency, apprenticeship training

program, or any training program leading to employment, to fail to take all reasonable

steps necessary to prevent discrimination and harassment from occurring.

This claim rises and falls along with Plaintiff’s employment discrimination claim. As

discussed above, because Plaintiff’s discrimination claim survives, summary judgment of the failure

to prevent discrimination claim is DENIED. 

V. Wrongful Termination

Plaintiff also makes a claim for wrongful termination in violation of public policy under

California Government Code § 12940(a) and (k). This claim also rises and falls along with Plaintiff’s

employment discrimination claim. As discussed above, because Plaintiff’s discrimination claim

survives, summary judgment of the wrongful termination claim is also DENIED.

VI. Motions to Seal

Both parties have filed sealing requests for papers filed in connection with their summary

judgment motions. All of the documents that they seek to file under seal appear to be documents that

were exchanged as “Confidential” under the parties’ protective order. Both parties stipulate to the

other’s requests to file the documents under seal. 

However, neither party has specifically made a showing of compelling need to justify sealing

the documents in connection with a summary judgment motion. In fact, Defendant’s request contains

a typo so that it actually states: “The confidential nature of these documents does not overcome the

right of the public to access the protected material.” There is a “strong presumption in favor of

access” to Court files, especially those relating to case- dispositive motions and related documents,

and a party seeking protection of such documents must present “compelling reasons sufficient to

outweigh the public’s interest in disclosure and justify sealing court records.” See Kamakana v. City

and County of Honolulu, 447 F.3d 1172, 1179 (9th Cir. 2006). The “compelling reasons” standard is

invoked even if the dispositive motion, or its attachments, were previously filed under seal or

protective order. See Foltz .v State Farm Mut. Automobile Ins. Co., 331 F.3d 1122, 1136 (9th Cir.

2003) (“[T]he presumption of access is not rebutted where . . . documents subject to a protective

order are filed under seal as attachments to a dispositive motion. The . . . “compelling reasons”

standard continues to apply.”). A “good cause” showing, without more, will not satisfy the

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“compelling reasons” test and documents and/or briefs that do not satisfy this test may accordingly be

re- designated as public information upon proper request. Id. 

The parties are hereby Ordered to submit supplemental declarations explaining the compelling

need for filing the documents in question under seal within ten days from the date of this Order. 

VII. Defendant’s Motion to Compel Rebuttal Deposition of Medical Expert

On June 14, 2010, the Court issued an Order extending expert discovery dates to allow

Defendant time to engage and prepare rebuttal expert reports, as well as additional time for discovery

“should Plaintiff consent to submit to a psychiatric examination by Defendant’s expert witness.” 

Thereafter, Office Depot moved to compel an independent medical examination by its rebuttal expert

and requested that the motion be heard on shortened time at the same time as the hearing on the

Motion for Summary Judgment. 

Plaintiff has disclosed Dr. Paul Berg, PhD. (a psychologist) as an expert, and timely submitted

an initial expert report prepared by him after examination of Plaintiff over a two-day period. See

Fukunaga Decl. Exs. A, B. Thereafter, Defendant requested that Plaintiff submit to an examination

by Defendant’s rebuttal expert psychiatrist, but Plaintiff refused on grounds that this examination is

fact discovery and the fact discovery cutoff has passed. Id., Ex. C; see also generally Plaintiff’s Opp. 

Office Depot contends that there is good cause for ordering Plaintiff to allow a psychiatric

examination by its rebuttal expert in order to evaluate the opinion of Plaintiff’s designated

psychological expert, and that Plaintiff has put his own mental status at issue by alleging that he

suffered emotional distress.

A. Defendant’s Motion Is Not Untimely

Plaintiff opposes Defendant’s motion primarily on the ground that the motion is untimely

because Defendant did not diligently seek an IME of Plaintiff during the fact discovery period, which

concluded more than two months ago. Plaintiff contends that Defendant was on notice that he would

be relying on expert testimony to support his emotional distress claims because this was disclosed in

Plaintiff’s September 3, 2009 initial disclosures. See Sivarajah Decl. Ex. 1 at 6 (“Plaintiff also claims

non-economic damages for things such as emotional distress, humiliation and embarrassment. The

extent of this emotional distress will be the subject of expert testimony and in am amount according

to proof.”) Additionally, Plaintiff points to the discovery responses relied on by Defendant, in which

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Plaintiff appears to have specified various physical ailments as a result of his alleged emotional

distress on October 19, 2010. Plaintiff argues that, because Defendant was on notice of Plaintiff’s

emotional distress claims and intention to use an expert to support them, it should have moved for an

IME pursuant to Rule 35 during fact discovery. However, Plaintiff ignores the fact that the

examination by his expert took place after the fact discovery cutoff, and was very clearly treated as

an expert disclosure as opposed to fact discovery. See Fukunaga Decl. Ex. A (disclosure of Dr.

Berg’s report, exhibits in support, CV, list of testimony and fee information included in Plaintiff’s

“Disclosure of Expert Reports and Information”). 

Plaintiff cites Miksis v. Howard, 106 F.3d 754, 758 (7th Cir. 1997), where the Seventh Circuit

rejected a personal injury defendant’s challenge to the district court’s denial of an IME after the

discovery cutoff. The defendants argued that they had no reason to request a medical examination

until they received notice of plaintiff’s proposed expert testimony regarding a prediction of medical

costs for the remainder of plaintiff’s life. Id. at 758. The court held that the facts did not support this

argument because “Defendants knew from day one that plaintiff’s medical condition was at issue”

and the need for medical expert testimony was “clearly foreseeable from the nature of plaintiff’s

injuries.” Id. The Seventh Circuit also found that defendants knew all along that they would not

receive plaintiff’s proposed expert opinions until after the close of fact discovery and made a decision

to remain in ignorance. Id. at 759. In contrast, this is an employment discrimination case, not a

personal injury case, and the need for expert medical testimony is less foreseeable. 

Even though Plaintiff’s initial disclosures mention that he intended to show emotional distress

through expert testimony, it was not “clearly foreseeable” that Defendant would need an IME prior to

Plaintiff’s disclosure of its expert report on the topic. Therefore, the motion is not untimely.

B. Rule 35 IME Standard

A party seeking to compel a psychiatric evaluation of an opposing party bears the burden of

affirmatively showing that the adverse party’s mental or physical condition is in controversy and that

there is good cause for the examination. See Fed. R. Civ. Proc. 35(a); Schlagenhauf v. Holder, 379

U.S. 104, 118 (1964) (stating that these two requirements - in controversy and good cause- cannot be

met “by mere conclusory allegations of the pleadings - nor by mere relevance to the case - but require

an affirmative showing by the movant. . . .”). “Mental and physical examinations are only to be

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ordered upon a discriminating application by the district judge of the limitations prescribed by the

Rule.” Schlagenhauf, 379 U.S. at 121. Rule 35 is to be liberally construed. See Schlagenhauf, 379

U.S. at 114-15 (stating generally that discovery rules should be “accorded a broad and liberal

treatment”); Simpson v. Univ. Of Colorado, 220 F.R.D. 354, 362 (D. Colo. 2004) (“While Rule 35

should be construed liberally in favor of granting discovery, its application is left to the sound

discretion of the court.”). 

1. In Controversy

Courts apply the factors set forth in Turner v. Imperial Stores, 161 F.R.D. 89, 95 (S.D. Cal.

1995) to determine if the “in controversy” prong is met:

Most cases in which courts have ordered mental examinations pursuant to

Rule 35(a) involve something more than just a claim of emotional distress. . .

. [For example], courts will order plaintiffs to undergo mental examinations

where the cases involve, in addition to a claim of emotional distress, one or

more of the following: 1) a cause of action for intentional or negligent

infliction of emotional distress; 2) an allegation of a specific mental or

psychiatric injury or disorder; 3) a claim of unusually severe emotional

distress; 4) plaintiff’s offer of expert testimony to support a claim of

emotional distress; and/or 5) plaintiff's concession that his or her mental

condition is “in controversy” within the meaning of Rule 35(a). 

Turner, 161 F.R.D. at 95. 

Plaintiff has disclosed a psychologist, Dr. Berg, as an expert to support his claims. Further, he

claims emotional distress based on depression, high blood pressure, anxiety, panic attacks, headaches,

sleep disorder and weight loss. Fukunaga Decl. Ex. D at 11-12. Thus, Plaintiff’s mental condition is

in controversy for purposes of the IME. 

2. Good Cause

Four factors are considered to determine good cause: “Factors that courts have considered

include, but are not limited to, the possibility of obtaining desired information by other means,

whether plaintiff plans to prove her claim through testimony of expert witnesses, whether the desired

materials are relevant, and whether plaintiff is claiming ongoing emotional distress.” Franco v.

Boston Scientific Corp., 2006 WL 3065580 (N.D. Cal. Oct. 27, 2006). Here, Defendant has shown

good cause for the IME because there appears to be no other means by which Defendant can obtain

the information needed to rebut Plaintiff’s expert testimony relating to his mental state without its

own examination, and Plaintiff is admittedly claiming damage for emotional distress and he intends

to prove it in part through expert testimony. See Roberson v. Bair, 242 F.R.D. 130, 137 (D.D.C.

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2007) (ordering IME by defense psychiatrist and psychotherapist experts over objections of

employment discrimination plaintiff because “[w]ithout the information obtained through a courtordered IME, defendant would have no means to rebut plaintiff’s claims”).

3. Prejudice

Office Depot contends that Plaintiff will not suffer prejudice if the motion is granted because

the examination will be completed, and the resulting report prepared, in enough time for Plaintiff to

prepare for trial. The Court has recently extended the expert discovery cutoff to August 6, 2010, and

allowed Plaintiff to depose Office Depot’s expert following the issuance of his report (which is to be

prepared within 10 days of his examination). Given that the cutoff for expert discovery is fast

approaching, the Court hereby extends this cutoff solely as it relates to the IME for an additional two

weeks, until August 20, 2010. The parties are hereby Ordered to work together to find a mutually

agreeable date for an IME as soon as possible.

For the foregoing reasons, Defendant’s Motion to Compel an IME of Plaintiff by Defendant’s

Rebuttal Expert is GRANTED.

4. Failure to Provide Information Required by Rule 35(a)(2)(B)

Plaintiff points out that Rule 35(a)(2)(B) requires that any order “specify the time, place,

manner, conditions, and scope of the examination, as well as the person or persons who will perform

it.” Defendant’s motion does not include any of this required information. Defendant is Ordered to 

issue a notice containing the information required by Rule 35(a)(2)(B) as soon as possible. See

Roberson, 242 F.R.D. at 138.

IT IS SO ORDERED.

Dated: July __, 2010

 

ELIZABETH D. LAPORTE

United States Magistrate Judge

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