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1 Plaintiff Eley has withdrawn his 42 U.S.C. § 1981 claim

against Defendant Lewis. (Pls.’ Opp’n to Defs.’ Mot. for Summ. J.

(“Opp’n”) at 35.) Plaintiff Vargas has withdrawn his § 1981 claim

against Defendants Bickerton and Lewis. (Id. at 59.) As no claims

remain against Defendant Lewis, he is dismissed from this action.

1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

MICHAEL BAKER, et al., ) 2:04-cv-0549-GEB-GGH

)

Plaintiffs, ) ORDER

)

v. )

)

ARAMARK UNIFORM AND CAREER )

APPAREL, INC., et al., )

)

Defendants. )

 )

Defendants move for summary judgment or partial summary

judgment on Plaintiffs’ claims.1 Plaintiffs oppose the motion.

BACKGROUND

Plaintiffs Eley, Andrews, Vargas, and Baker, former

employees of Defendant Aramark Uniform and Career Apparel, Inc.

(“Aramark”), bring this action against Aramark, and several of its

employees, Defendants Bickerton, Clowes, Koch, Polifka, and Velasco. 

Plaintiffs assert claims against Aramark and its employees for race

discrimination under 42 U.S.C. § 1981 (“§ 1981"). Plaintiffs also

claim Aramark violated Title VII of the Civil Rights Act of 1964, 42

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2 “The standards applicable to motions for summary judgment

are well known, see, e.g., Rodgers v. County of Yolo, 889 F. Supp.

1284 (E.D. Cal. 1995), and need not be repeated here.” Reitter v.

City of Sacramento, 87 F. Supp. 2d 1040, 1042 (E.D. Cal. 2000).

2

U.S.C. §§ 2000e et seq. (“Title VII”), by maintaining a hostile racial

work environment, retaliating against Plaintiffs, and discharging

and/or constructively discharging Plaintiffs for complaining about

alleged race discrimination. Plaintiff Andrews also claims Aramark

violated the Age Discrimination in Employment Act (“ADEA”).

DISCUSSION2

Defendants argue that several of the alleged incidents of

discrimination are “time-barred” and should not be considered in

evaluating Plaintiffs’ discrimination claims. (Defs.’ Mot. for Summ.

J. (“Defs.’ Mot.”) at 28.) Plaintiffs may only allege discrimination

based on incidents that occurred within 300 days before the filing of

a grievance with the Equal Employment Opportunity Commission (“EEOC”).

Sandoval v. Saticoy Lemon Ass’n, 747 F. Supp. 1373, 1384 n.10 (C.D.

Cal. 1990); see also 42 U.S.C. § 2000e-5(e)(1). However,

“consideration of the entire scope of a hostile [racial] work

environment claim, including behavior alleged outside the statutory

time period, is permissible for the purposes of assessing liability,

so long as an act contributing to that hostile environment takes place

within the statutory time period.” Nat’l R.R. Passenger Corp. v.

Morgan, 536 U.S. 101, 105 (2002). Further, otherwise time-barred

incidents may be part of the claim where they are “part of one

unlawful employment practice giving rise to a single claim.” McGinest

v. GTE Serv. Corp., 360 F.3d 1103, 1115 n.6 (9th Cir. 2004) (citation

omitted). 

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3

I. Hostile Racial Work Environment

Defendant Aramark moves for summary judgment on Plaintiffs’

hostile racial work environment claims brought under 42 U.S.C. 

§ 2000e. “To prevail on a hostile workplace claim premised on . . .

race . . . a plaintiff must show: (1) that he was subjected to verbal

or physical conduct of a racial . . . nature; (2) that the conduct was

unwelcome; and (3) that the conduct was sufficiently severe or

pervasive to alter the conditions of the plaintiff’s employment and

create an abusive work environment.” Vasquez v. County of Los

Angeles, 349 F.3d 634, 642 (9th Cir. 2003). “When no tangible

employment action is taken, a defending employer may raise an

affirmative defense to liability or damages. . . . The defense

[hereinafter referred to as the Faragher-Ellerth defense] comprises

two necessary elements: (a) that the employer exercised reasonable

care to prevent and correct promptly any . . . harassing behavior, and

(b) that the plaintiff employee unreasonably failed to take advantage

of any preventive or corrective opportunities provided by the employer

or to avoid harm otherwise.” Burlington Indus., Inc. v. Ellerth, 524

U.S. 742, 765 (1998); see also Faragher v. City of Boca Raton, 524

U.S. 775, 807 (1998). “Where a ‘hostile environment’ claim rests on 

. . . race-based comments, we think that the plaintiff, to show that

he or she perceived the ‘environment’ as ‘hostile,’ must at least have

been aware of those comments, even if the person making them did not

make them directly to the plaintiff.” Bradshaw v. Golden Road Motor

Inn, 885 F. Supp. 1370, 1381 (D. Nev. 1995).

A. Eley

Aramark contends, “In Plaintiff Eley’s case, . . . all of

the elements of the Faragher-Ellerth affirmative defense are

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3 Defendants object to the admissibility of this statement

based on lack of foundation and hearsay. Eley alleges Polifka

“yelled and screamed” directly at him, so Eley has personal

knowledge. Polifka is a party-opponent so his statements are

admissible under Federal Rule of Evidence 801(d)(2)(A). The

objections are overruled.

4 Defendants’ hearsay objection is overruled. See id.

4

satisfied.” (Defs.’ Mot. at 31.) Aramark argues, “Eley was never

fired, never demoted, never had his salary reduced, never had his

route changed or job duties altered, and never had any ‘tangible’

adverse employment action taken against him.” (Id. at 31-32.) 

However, Eley declares he suffered adverse employment action because

after he “called the company 800 number to complain about workplace

violence,” “Polifka called [Eley] into his office [and] proceeded to

berate [him] and to tell [him] how stupid [he] was for calling the

company 800 number.”3 (Eley Decl. ¶¶ 13-14; Pls.’ Statement of

Disputed Facts (“SDF”) at ¶¶ 133-34.) Further, Baker declares that

“Polifka . . . spoke to [him] about Eley’s call to the company’s 800

number” and ordered Baker to “fire tha[t] nigger, now.”4 (Baker Decl.

¶¶ 19-20; SDF ¶ 137.) Baker declares that Polifka “made it clear that

if [Baker] did not ‘find something’ on which to fire Eley, [Baker]

would also be out of a job.” (Baker Decl. ¶ 20; SDF ¶ 137.) Since,

there is a genuine issue of material fact whether Eley was subject to

tangible adverse employment action, the motion based on the FaragherEllerth affirmative defense is denied.

Aramark next argues that Eley’s hostile racial work

environment claims must be dismissed because none of the alleged

harassing conduct was based on his race and the alleged incidents were

not “sufficiently severe and pervasive so as to alter the conditions

of employment and create a hostile working environment[.]” (Defs.’

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28 5 Defendants’ hearsay objection is overruled. See supra

note 3.

5

Mot. at 32-35.) “There were only two occasions on which Eley heard

anyone make any comment which he perceived as a slur or derogatory to

African Americans. . . .” (Id. at 35.) Eley counters that he “was

aware, from almost daily discussions with Baker, that he was routinely

referred to as a ‘nigger’ by branch manager Polifka and accounts

manager Greg Lewis.” (Opp’n at 27.) Further, Russ Hall, a co-worker

of Eley, declares that he heard “Polifka calling Rich Eley a ‘jungle

bunny.’”5 (Hall Decl. ¶ 7; SDF ¶ 143.) Since Plaintiffs have shown a

genuine issue of material fact whether racially derogatory comments

were routine and whether Eley was aware of them, summary judgment on

Plaintiff Eley’s hostile racial work environment claim is denied.

B. Andrews

Aramark moves for summary judgment on Andrews’s eighth claim

for hostile racial work environment, contending that the FaragherEllerth affirmative defense bars the claim. Aramark argues it “had a

well-defined policy prohibiting and correcting any harassment as

outlined in the Employee Handbook, the Harassment Policy statement,

and the Unite! Collective Bargaining Agreement. Aramark also had an

Employee Hotline 800 number to report any unlawful conduct.” (Defs.’

Mot. at 42; Defs.’ Statement of Undisputed Facts (“SUF”) ¶¶ 4-7.) 

Aramark contends, “Andrews called the Company Employee Hotline . . .

but did not mention anything about his race . . . .” (SUF ¶ 133.) 

Andrews avers that he “complained to Polifka about use of racial

remarks in the workplace,” (SDF ¶ 100; Andrews Decl. ¶¶ 6, 11), and

that he “spoke on numerous occasions to district manager Baker. . . .” 

(SDF ¶ 102; Andrews Decl. ¶¶ 5, 8.) Baker declares that he “spoke to

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6 Defendants object to this evidence based on lack of

personal knowledge and lack of foundation. The statement references

Baker’s declaration and is supported thereby. Baker has personal

knowledge of his conduct and the foundation is proper. The

objections are overruled.

7 Defendants object to this evidence based on lack of

foundation, hearsay, and impermissible opinion. Andrews has

properly laid the foundation for his knowledge about Bickerton’s

conduct. Bickerton’s statements are excepted from hearsay as

admissions of a party-opponent under Federal Rule of Evidence

801(d)(2)(A). Andrews’s opinion about Bickerton’s conduct is a

proper lay opinion under Federal Rule of Evidence 701.

6

both Polifka and general manager Don Clowes about Bickerton’s

mistreatment of Andrews [and] reported the discriminatory conduct to

both Nancy Meyers and Doug Battista of Human Resources.”6 (SDF ¶ 103;

Baker Decl. ¶¶ 8-12, 55, 61.) Since Plaintiffs adequately aver that

Andrews did not “fail[] to take advantage of any preventive or

corrective opportunities provided by the employer or to avoid harm

otherwise,” Aramark’s motion based on the Faragher-Ellerth affirmative

defense is denied. Burlington Indus., Inc., 524 U.S. at 765.

Aramark argues, “Andrews[’s] claim fails as a matter of law

because he was not singled out or treated any differently in

comparison to other Warehousemen.” (Defs.’ Mot. at 39.) Andrews

counters, declaring that “Bickerton’s conduct towards [him] was . . .

extreme, and . . . much worse than how he treated the other

warehousemen [and that while Bickerton] sometimes joked about with the

other employees, he was consistently mean-spirited with [Andrews].”7

(Andrews Decl. ¶ 4; SDF ¶ 90; see also SDF ¶¶ 91-94.) A genuine issue

of material fact exists whether Andrews received different treatment.

Aramark argues, “Andrews’[s] discipline was legitimate and,

thus, cannot constitute harassing behavior [to support a hostile

racial work environment claim] . . . .” (Defs.’ Mot. at 41.) It is

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8 Defendants object that Plaintiffs have violated Local

Rule 56-260(b) by failing to simply admit or deny whether the fact

is undisputed. This objection is overruled.

9 This objection is overruled. See id.

7

undisputed that “Bickerton assigned the task of locking the facility,

the trucks, and the fence surrounding the trucks to the Warehouseman

who was responsible for unloading the trucks and worked the last shift

in the warehouse (‘unloader’),” and that “Andrews was an unloader at

the new facility.” (SUF ¶¶ 118, 120.) Bickerton declares that

Andrews “failed [to] follow his job duties of locking the rear door

and rear gate,” “left a truck unlocked with the keys inside,” and

“left a depot door unlocked.” (Bickerton Decl. ¶¶ 14, 18, 20, 22, 52;

SUF ¶¶ 127-31.) Andrews counters, declaring that he “did not fail to

follow his job duties.”8 (Pls.’ Resp. to Defs.’ SUF ¶¶ 127-31;

Andrews Decl. ¶¶ 17-20.) Bickerton also declares, “Andrews [once]

called in late to work, but never showed up to work at all,” but

Andrews counters that he “came into work.”9 (Bickerton Decl. ¶ 14;

SUF ¶ 127; Andrews Decl. ¶ 7.) A genuine issue of material fact

therefore exists as to whether the disciplinary actions against

Andrews were legitimate.

Aramark also argues, “[a] single [racial] comment [heard

directly by Andrews] over Andrews’[s] five years of employment with

Aramark is not sufficiently severe, frequent, threatening, or

humiliating and did not alter the conditions of Andrews’[s] employment

to constitute harassment.” (Defs.’ Mot. at 41.) Andrews counters,

declaring that “During the week before terminating [him], Mr.

Bickerton . . . was cursing at [him], slamming and throwing pallets

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10 Defendants’ hearsay objection is overruled. See supra

note 7.

11 Defendants’ hearsay objection is overruled. See supra

note 7.

12 Defendants object based on hearsay. The objection is

sustained in part since the statements admitted are limited to

those made by party-opponents. See Fed. R. Evid. 801(d)(2)(A).

13 Defendants object based on vagueness, but this is a

permissible lay opinion about the frequency of comments. See Fed.

R. Evid. 701. The objection is overruled.

8

and saying, ‘You cock-sucking black ass.’”10 (Andrews Decl. ¶ 25; SDF

¶ 123.) Further, Baker declares that, “On other occasions, when Baker

had gone to speak to Bickerton on Andrews’[s] behalf, Bickerton said

‘fuck the nigger’ in reference to Andrews and called him ‘nigger’

[and] Baker informed Andrews about these remarks by Bickerton.”11

(SDF ¶ 104; Baker Decl. ¶¶ 11, 37, 41-43, 46; Andrews Decl. ¶ 10.) 

Since a genuine issue of material fact exists whether the alleged

conduct was harassing or sufficiently severe or pervasive, Aramark’s

motion for summary judgment on Andrews’s hostile racial work

environment claim is denied.

C. Vargas

Aramark argues that Vargas’s claimed incidents of hostile

racial work environment concerning racial name-calling,

reclassification to a non-commissioned driver, and employment

termination are not actionable. (Defs.’ Mot. at 42-44.) Vargas

declares that he was “called names by Aramark management,” including

“Vato,” “Beaner,” “Mexican,” “wetback,” “stupid Mexican,” and “bean

dip,”12 and that “[t]he name-calling went on constantly – almost every

day.”13 (Vargas Decl. ¶¶ 4, 6; SDF ¶¶ 158-62.) 

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14 Defendants object to Koch’s statements based on hearsay

and to the statement about other drivers based on lack of

foundation, impermissible lay opinion, and speculation. Because

Koch is a party-opponent, the hearsay objection is overruled.

Further, Andrews has laid the foundation to render an opinion

about his co-workers and he gives an opinion that is: “(a)

rationally based on the perception of the witness, (b) helpful to

a clear understanding of the witness' testimony or the

determination of a fact in issue, and (c) not based on scientific,

technical, or other specialized knowledge within the scope of Rule

9

Aramark argues, “Vargas’[s] participation in conduct similar

to the allegedly harassing conduct precludes him from showing

‘unwelcomeness’ or ‘severity.’” (Defs.’ Mot. at 43; see Scusa v.

Nestle U.S.A. Co., 181 F.3d 958, 966 (8th Cir. 1999) (finding conduct

not unwelcome where “undisputed evidence showed that [plaintiff]

engaged in behavior similar to that which she claimed was unwelcome

and offensive”).) Vargas acknowledged, “At his deposition, McKinley

[, a co-worker,] claimed Vargas also called him ‘Mexican,’ ‘halfbreed,’ and ‘spic,’” but declares that he “never called anyone racial

names.” (Vargas Decl. ¶¶ 10, 14; SDF ¶ 167.) A genuine issue of

material fact therefore exists on whether Vargas participated in

racial name-calling so as to foreclose his claim that racial namecalling was unwelcome.

Aramark next argues, “Vargas was reclassified [to a noncommissioned driver] after his sales declined, he refused to submit

solicitation sheets and [he] claimed he did not have to sell.” 

(Defs.’ Mot. at 43-44; see SUF ¶¶ 147-54.) Vargas counters, declaring

that “Koch told [him] he was on [his] way to being ‘managed’ out of 

. . . Aramark[; t]he ostensible reason for the demotion was a ‘drop in

sales’ however other Aramark drivers’ sales had dropped more than

[Vargas’s] and they were not demoted.”14 (Vargas Decl. ¶ 32; SDF 

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702.” Fed. R. Evid. 701. The objections are overruled.

15 Defendants object that although Vargas did not say those

exact words, he said something to that effect. This is a question

of fact. The objection is overruled.

10

¶ 186.) Vargas further declares that he “never said [he did] not have

to sell.”15 (Vargas Decl. ¶ 31; Pls.’ Resp. to Defs.’ SUF ¶ 153.) A

genuine issue of material fact exists whether Vargas’s

reclassification was legitimate.

Finally, Aramark argues “Vargas’[s] dishonesty prompted the

circumstances and caused his employment termination. . . .” (Defs.’

Mot. at 44; see SUF ¶¶ 161-67.) Aramark contends, “Vargas called in

sick,” but “Koch, Velasco, and Lewis went to the Bishop Manogue

championship softball game” and “observed [Vargas] in a coach uniform,

in the team dugout, and on the field during huddles.” (SUF ¶¶ 163-

165.) Vargas counters, declaring that he “did not . . . do any

coaching whatsoever” and “[a]lthough [he] was feeling somewhat better,

[he] was still too sick to drive [his] morning shift.” (Vargas Decl.

¶¶ 44-45, 42; Pls.’ Resp. to Defs.’ SUF ¶ 165; SDF ¶ 197.) A genuine

issue of material fact exists on these matters and whether his

termination was discriminatory.

Since genuine issues of material fact exist as to all of

Aramark’s asserted non-discriminatory reasons for racial name-calling

and adverse employment action, Aramark’s motion for summary judgment

on Vargas’s hostile racial work environment claim is denied.

D. Baker

Aramark moves for summary judgment on Baker’s third claim

for hostile racial work environment, arguing, “There is absolutely no

evidence that the work environment at the Reno Depot was hostile to

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11

Caucasian employees. Baker thus cannot claim a hostile work

environment based upon his race.” (Defs.’ Mot. at 44.) Baker

acknowledges he “is a white male.” (SDF ¶ 1.) Baker argues

“harassment as retaliation” is actionable. (Opp’n at 77-78; see,

e.g., Ray v. Henderson, 217 F.3d 1234, 1240 (9th Cir. 2000).) Hostile

work environment can constitute adverse employment action for a

retaliation claim. Drake v. Minn. Mining & Mfg. Co., 134 F.3d 878,

886 (7th Cir. 1998). However, Baker has failed to show how the

alleged adverse employment action constituted a hostile racial work

environment. Therefore, Aramark’s motion for summary judgment on

Baker’s hostile racial work environment claim is granted.

III. Retaliation and Discrimination

Aramark moves for summary judgment on Plaintiffs’ claims of

retaliation under 42 U.S.C. § 2000e. “To establish a prima facie case

of retaliation under Title VII, ‘[t]he plaintiff must show (1) that

[he] was engaging in a protected activity, (2) that [he] suffered an

adverse employment decision, and (3) that there was a causal link

between the protected activity and the adverse employment decision.’" 

Tarin v. County of Los Angeles, 123 F.3d 1259, 1264 (9th Cir. 1997)

(quoting E.E.O.C. v. Hacienda Hotel, 881 F.2d 1504, 1514 (9th Cir.

1989)). Alternatively, “A plaintiff may establish a prima facie case

. . . by presenting actual evidence, direct or circumstantial, of the

employer's discriminatory motive. When a plaintiff . . . seeks to

establish a prima facie case through the submission of actual

evidence, very little such evidence is necessary to raise a genuine

issue of fact regarding an employer's motive; any indication of

discriminatory motive--including evidence as diverse as the

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defendant's reaction, if any, to plaintiff's legitimate civil rights

activities . . . may suffice to raise a question that can only be

resolved by a factfinder.” Lowe v. City of Monrovia, 775 F.2d 998,

1009 (9th Cir. 1985) (citation omitted). “If the plaintiff

establishes a prima facie case, the burden then shifts to the

defendant to articulate a legitimate nondiscriminatory reason for its

employment decision. Then, in order to prevail, the plaintiff must

demonstrate that the employer's alleged reason for the adverse

employment decision is a pretext for another motive which is

discriminatory.” Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th

Cir. 1994).

A. Eley

Aramark argues, “Eley cannot establish . . . the elements of

the requisite prima facie case.” (Defs.’ Mot. at 46.) Aramark

contends “Eley cannot demonstrate that he engaged in any ‘protected

conduct.’” (Id.) Protected conduct is “oppos[ing] any practice made

an unlawful employment practice by [Title VII]. . . ." 42 U.S.C. 

§ 2000e-3(a). Aramark argues, “[Eley’s] August 16, 2002 call to the

Aramark Employee Hotline is not protected conduct because he was not

complaining of any ‘unlawful employment practice’ and he admitted this

call had nothing to do with his race or any perceived discrimination." 

(Defs.’ Mot. at 46.) Aramark contends Eley’s “only complaint . . .

was about [a derogatory comment made by Defendant Lewis] on August 28,

2002[; and that Eley’s] “‘opposition’ to such remark is not protected

conduct.” (Id.) To be protected, “the opposition must be directed at

an unlawful employment practice of the employer, not an act of

discrimination by a private individual." Silver v. KCA, Inc., 586

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16 Defendants’ objection to Eley’s statement about being

humiliated based on impermissible opinion is overruled since Eley

is competent to render an opinion about his own feelings. 

Defendants’ hearsay objection is also overruled. See supra note 3.

13

F.2d 138, 141 (9th Cir. 1978). Aramark does not prevail on its

argument, however, because Baker declares that when he spoke to

Polifka and Clowes about Eley being extremely embarrassed, humiliated,

and uncomfortable with an alleged racial remark made by Lewis, Polifka

again told [Baker] that he must fire Eley or [Baker] would be

fired.”16 (Baker Decl. ¶¶ 54-55; SDF ¶¶ 139-40.) Therefore, a

genuine issue of material fact exists as to whether Eley engaged in

protected conduct.

Aramark argues, “Second, Eley cannot establish that he was

subjected to any ‘adverse employment action’ within the statutory

period.” (Defs.’ Mot. at 47.) Specifically, Aramark argues that

“Eley cannot prove constructive discharge.” (Id. at 38.) 

“[C]onstructive discharge exists when ‘working conditions would have

been so difficult or unpleasant that a reasonable person in the

employee's shoes would have felt compelled to resign.’” Nolan v.

Cleland, 686 F.2d 806, 813 (9th Cir. 1982) (quoting Bourque v. Powell

Elec. Mfg. Co., 617 F.2d 61 (5th Cir. 1980). “A reasonable person

would certainly resign employment after being ordered to leave.” 

Welch v. Univ. of Tex. & Its Marine Science Inst., 659 F.2d 531, 534

(5th Cir. 1981). Aramark argues, “Eley went about an orderly process

over a period of several months of inquiring about other employment

[and there exists] no evidence of ‘intolerable’ conditions at the time

of his resignation . . . .” (Defs.’ Mot. at 39; SUF ¶ 74.) Eley

counters, arguing that “Polifka told [Baker] that he must fire Eley or

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17 Defendants’ hearsay objection is overruled. See supra

note 3.

18 Defendants object based on opinion, lack of personal

knowledge, speculation, and lack of foundation. Eley has personal

knowledge of his own feelings, has laid the foundation for them,

and is competent to render an opinion thereof. This portion of the

statement is not speculative. The objections are overruled.

14

[Baker] would be fired.”17 (Baker Decl. ¶¶ 54-55; SDF ¶ 140.) 

Further, Eley declares, “Everyday [he] would go into work sick with

worry [knowing that] any day at work could turn out to be [his] last

[and feeling] there was nothing he could do to save his job.”18 (Eley

Decl. ¶ 33; SDF ¶ 151.) This threat of imminent termination may be

tantamount to “being ordered to leave.” Welch, 659 F.2d at 534. 

Accordingly, a genuine issue of material fact exists as to whether “a

reasonable person in [Eley’s] shoes would have felt compelled to

resign” and as to whether Eley was subject to adverse employment

action. Nolan, 686 F.2d at 813. 

Aramark argues, “Eley cannot prove the final essential

element of a prima facie case – causal connectedness between protected

conduct and adverse action. . . . The passage of [seven and one-half

months] between the protected conduct and the adverse action creates a

presumption that no causal connection exists.” (Defs.’ Mot. at 47

(citing Hughes v. Derwinski, 967 F.2d 1168 (7th Cir. 1992)).) 

However, “[T]he length of time, considered without regard to its

factual setting, is not enough by itself to justify a grant of summary

judgment.” Coszalter v. City of Salem, 320 F.3d 968, 977-78 (9th Cir.

2003). Here the factual setting includes Polifka’s response to

Baker’s bringing Eley’s complaint about the Randy Moss-watermelon

comment to Polifka’s attention: “Polifka again told [Baker] that he

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19 Defendants’ hearsay objection is overruled. See supra

note 3.

20 Defendants object based on opinion, speculation, and lack

of foundation. Eley is competent to render an opinion about his

work environment, and his opinion is not speculation. The

objections are overruled.

21 Defendants’ hearsay objection is overruled. See supra

note 3.

15

must fire Eley or [Baker] would be fired.”19 (SDF ¶¶ 139-40.) And,

Eley declares that his “work environment became increasingly

intolerable from the time that Baker told [him] he had to fire [him]

and [he] learned [he] was being called racial names behind [his]

back.”20 (Eley Decl. ¶ 32; SDF ¶ 150.) Therefore, a genuine issue of

material fact exists on whether there is a causal connection between

Eley’s complaints and the hostile racial work environment that led to

Eley’s constructive discharge.

Finally, Aramark argues, “Aramark has established

legitimate, non-discriminatory/non-retaliatory reasons for the actions

it took towards Eley” because, for example, “Eley admitted throwing a

roll-towel and hitting Andrews in the back of the head.” (Defs.’ Mot.

at 48.) However, Plaintiffs’ declarations regarding discriminatory

motive discussed above, including Polifka’s direction to Baker to “get

out on [Eley’s] route, and . . . find something to fire him,” are

sufficient to raise a question of pretext.21 (Baker Decl. ¶ 19; SDF 

¶ 24). Where as here, “a plaintiff has established a prima facie

inference of disparate treatment through . . . evidence of

discriminatory intent, he will necessarily have raised a genuine issue

of material fact with respect to the legitimacy or bona fides of the

employer's articulated reason for its employment decision.” Lowe,

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775 F.2d at 1009. Since a genuine issue of material fact exists

whether Aramark employees terminated Eley in response to his

complaints about discrimination, Aramark’s motion for summary judgment

on Eley’s claim for retaliation is denied.

B. Andrews

Aramark argues that Andrews “cannot establish a prima facie

case of retaliation because the undisputed evidence shows he did not

engage in any ‘protected conduct’ . . . .” (Defs.’ Mot. at 49.) 

Aramark also argues even if “protected conduct” is involved,

“[Andrews’s] retaliation claim must still fail because he cannot

establish a causal connection between any protected conduct and his

termination.” (Id.) Andrews counters that, “Any indication of

discriminatory motive . . . may suffice to raise a question that can

only be resolved by a factfinder.” (Opp’n at 23 (quoting Lowe, 775

F.2d at 1009).) Baker declares that when he went to speak to

Bickerton on Andrews’s behalf, “Bickerton said, ‘fuck that nigger’ in

reference to Willie Andrews” and he “heard Polifka . . . and Bickerton

. . . freely use the ‘nigger’ word about . . . Andrews.”22 (Baker

Decl. ¶¶ 37, 46; SDF ¶ 104.) Since this evidence creates a genuine

issue of material fact on whether a racially discriminatory motive for

Andrews’s termination existed, Aramark’s motion for summary judgment

on Andrews’s retaliation claim is denied.

C. Vargas

Aramark seeks summary judgment on Vargas’s eighteenth and

nineteenth claims for discrimination and retaliation under 42 U.S.C. 

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23 Defendants object based on relevance. Vargas’s listing as

a witness in a charge of discrimination is highly relevant because

Vargas suffered adverse employment action shortly thereafter. The

objection is overruled.

24 Defendants’ hearsay and relevance objections are

overruled. Clowes’s statements are excepted from hearsay as

admissions of a party-opponent under Federal Rule of Evidence

801(d)(2)(A) and the statements are relevant evidence of adverse

employment action.

25 Defendants’ hearsay objection is overruled. See supra

note 14. 

17

§ 2000e. Aramark argues, “[As to Vargas’s reclassification to a noncommissioned position,] neither his grievance [with his Union] nor his

letters to Aramark . . . claim that he was being treated unfairly

‘because of’ his race or national origin.” (Defs.’ Mot. at 57.) 

Vargas counters declaring that “In late October 2003, Mike Baker filed

a complaint with the EEOC [and Vargas] was listed as a witness that

would be willing to give a statement and support him as a witness.”23

(Vargas Decl. ¶ 28; SDF ¶ 182.) Vargas further declares that “On or

about November 19, 2003, . . . Clowes came to the Reno office from

Sacramento and inquired how much [Vargas] was earning. When [Vargas]

told him, Clowes pronounced, ‘That’s too much money. Your route

should be cut.’”24 (Vargas Decl. ¶ 29; SDF ¶ 184.) Vargas also

declares that “On or about November 21, 2003, . . . Koch summoned

[Vargas] into his office and presented [him] with a notice that [he]

would be demoted . . . .”25 (Vargas Decl. ¶ 32; SDF ¶ 186.) Further,

the proximity of events can “support an inference of causation.” 

Thomas v. City of Beaverton, 379 F.3d 802, 812 (9th Cir. 2004). 

Therefore, a genuine issue of material fact exists as to whether

Vargas’s reclassification was related to his race.

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26 Defendants’ lack of foundation and improper lay opinion

objections are overruled. Vargas has averred his substantial

experience as a successful driver for Aramark and is competent to

render an opinion about his ability to perform his job duties. 

27 Defendants’ relevance objection is overruled. The

statement is relevant to whether Aramark sought to prove Vargas’s

dishonesty, as required by the Collective Bargaining agreement.

18

Aramark also argues, “Vargas fails to demonstrate the

requisite causal connection between his complaint of alleged

discrimination in January 2004 and his termination four and one-half

months later in May 2004.” (Defs.’ Mot. at 50.) However, Vargas

filed a charge of discrimination with the EEOC only three months

before his termination and filed this lawsuit roughly two months

before his termination. (Opp’n at 56; SUF ¶ 12; Complaint (filed

March 19, 2004); SDF ¶ 208.) “We have held that events occurring

within similar intervals of time are sufficiently proximate to support

an inference of causation.” Thomas, 379 F.3d at 812 (citing Yartzoff

v. Thomas, 809 F.2d 1371, 1376 (9th Cir. 1987) (finding less than

three months proximity sufficient evidence of a causal link)).

Further, Aramark argues that Vargas’s “dishonesty in calling

in sick” was an “intervening event [that] precludes any finding of a

causal connection.” (Defs.’ Mot. at 50.) Vargas counters, declaring

that he was “still too sick to work”26 (Vargas Decl. ¶ 42; SDF ¶ 197),

and that he “was never asked to provide verification from [his] doctor

that [he] was sick.”27 (Vargas Decl. ¶ 50; SDF ¶ 208.) Since a

genuine issue of material fact exists as to whether Vargas’s

termination for dishonesty was pretextual, Aramark’s motion for

summary judgment on Vargas’s claims for discrimination and retaliation

is denied.

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28 Defendants object based on lack of foundation and

hearsay. Foundation for the conversation has been laid.

Defendants’ hearsay objection is overruled. See supra note 24. 

19

D. Baker

Aramark argues, “Baker cannot demonstrate the existence of a

causal connection between his alleged protected conduct and [his]

termination, and, thus, cannot establish a prima facie case of

retaliation.” (Defs.’ Mot. at 52.) Baker counters “the alleged

retaliatory action ‘can be inferred from timing alone’ when there is a

close proximity between the two.” (Opp’n at 61 (quoting Thomas v.

City of Beaverton, 379 F.3d 802, 812 (9th Cir. 2004)).) Baker

declares that, “In or about March 2003, [he] again confronted Polifka

regarding discrimination towards Eley, Andrews and Vargas” and

“contacted Nancy Meyers in Human Resources regarding unfair write-ups

from Polifka.” (Baker Decl. ¶¶ 58, 61; SDF ¶¶ 63, 64.) Baker also

declares he spoke with “Doug Battista, head of the regional Human

Resources department” about “the racial comments and harassment of

Eley, Andrews and Vargas.” (Baker Decl. ¶ 61; SDF ¶¶ 63, 64.) Baker

was terminated on April 11, 2003. (SUF ¶¶ 113-14; SDF ¶ 65.) Since

Baker’s termination occurred one month after these complaints, a

genuine issue of material fact exists as to causation.

Moreover, Baker has presented sufficient evidence of

discrimination to establish a prima facie case. Baker declares that

in a conversation he had with Clowes, Clowes “made clear that, if

Baker didn’t follow Polifka’s orders, [Baker] too could be ‘managed

out’ of the company.”28 (Baker Decl. ¶ 55; SDF ¶ 60.) Baker also

declares that Polifka told him to find a reason to fire Eley and “made

[it] clear that, if [Baker] didn’t follow Polifka’s orders [to fire

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29 Defendants object based on hearsay, lack of foundation,

speculation, and lack of personal knowledge. Defendants’ hearsay

objection is overruled. See supra note 3. Foundation for the

conversation has been laid and is not speculative. The objections

are overruled.

30 Defendants object based on hearsay, lack of foundation,

speculation, and lack of personal knowledge. Defendants’ hearsay

objection is overruled. See supra note 3. Foundation is proper, the

statement is not speculative, and Baker has personal knowledge of

the conversation he had with Polifka. The objections are overruled.

31 Defendants object based on relevance, foundation,

speculation, lack of personal knowledge, and impermissible lay

opinion. The statement is relevant to whether company policy was

followed inconsistently. As a former district manager, Baker has

laid the foundation for and has sufficient knowledge to render an

opinion about his own performance in comparison to his colleagues.

The objections are overruled.

20

Eley and Vargas by any means necessary, he] could be ‘managed out’ of

the company.”29 (Baker Decl. ¶ 28; SDF ¶ 33.) Baker also declares he

“was notified by Polifka that [Baker] had ‘failed’ in [his] duty to

‘get rid of’ Eley and [Baker] would be put on a performance

improvement plan (“PIP”).”30 (Baker Decl. ¶ 48; SDF ¶ 53.) Later,

“Clowes terminated Baker with input from Polifka.” (Pls.’ Resp. to

Defs.’ SUF ¶ 112.) 

Aramark argues “there were several separate and independent

justifiable bases for Baker’s termination.” (Defs.’ Mot. at 54.) 

First, “Baker was falling short of the sales performance expected of

him by Clowes.” (Id.; SUF ¶¶ 95-100.) Baker counters, declaring that

“The ‘goals’ were entirely arbitrary, as [Baker] was consistently

outperforming most other district managers.”31 (Baker Decl. ¶ 49; SDF

¶ 54; Pls.’ Resp. to Defs.’ SUF ¶ 99.) Second, Aramark contends

“Baker admitted that the action plan he provided to Don Clowes

required him to make weekly visits to National Auto Repair, but that

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32 Defendants object based on relevance. The statement is

relevant to whether company policy was followed. The objection is

overruled.

33 Defendants object based on speculation, impermissible lay

opinion, lack of foundation, and lack of personal knowledge as to

Baker. However, this statement of fact is based on Hancock’s

observations as a former branch manager. The objections are

overruled.

21

he failed to do so.” (Defs.’ Mot. at 54; SUF ¶¶ 92-93.) Baker

rejoins, declaring that the problems National Auto Repair experienced

were “nothing unusual for most of [Aramark’s] clients, and [Baker]

followed up appropriately.”32 (Baker Decl. ¶ 66; Pls.’ Resp. to

Defs.’ SUF ¶ 93.) Third, Aramark contends Baker committed “gross

violations of Aramark policy with respect to the [Quality Control

Memorandum (“QCM”)] Customer Visitation forms . . . .” (Defs.’ Mot.

at 55.) But, Ed Hancock, a former Aramark employee, declares that

although QCMs were supposed “to be personally taken out by each

district manager to each client . . . and signed by the person who

signed the original contract, . . . it was all but impossible to do

this and the rule was routinely broken by all district managers.”33

(Hancock Decl. ¶ 13; SDF ¶ 73.) Such an inconsistent application of a

policy can be evidence of pretext. Coszalter, 320 F.3d at 978. The

foregoing reveals that a genuine issue of material fact exists as to

whether Aramark’s asserted reasons for terminating Baker were

pretextual. Therefore, Aramark’s motion for summary judgment on

Baker’s retaliation claim is denied.

IV. Andrews’s Age Discrimination Claims

Aramark moves for summary judgment on Andrews’s ADEA claims. 

Aramark argues that “summary judgment is compelled where the same

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individual both hired and fired the plaintiff.” (Defs.’ Mot. at 59.) 

“[C]laims that employer animus exists in termination but not in hiring

seem irrational. From the standpoint of the putative discriminator,

it hardly makes sense to hire workers from a group one dislikes . . .

only to fire them once they are on the job.” Bradley v. Harcourt,

Brace and Co., 104 F.3d 267, 270 (9th Cir. 1996) (quoting Proud v.

Stone, 945 F.2d 796, 797 (4th Cir. 1991)). Although Bickerton did not

hire Andrews, Aramark contends “Bickerton’s hiring of a co-worker

[Haagensen] who was 3 years older than Andrews should bar Andrews’[s]

claim . . . .” (Defs.’ Mot. at 60.) Since Bickerton hired an

employee from Andrews’s protected class only four months before

terminating Andrews, Aramark’s motion for summary judgment on

Andrews’s age discrimination claims is granted.

V. Section 1981 Claims

Defendants also seek summary judgment on Plaintiffs’ claims

under 42 U.S.C. § 1981. “A plaintiff must meet the same standards in

proving a § 1981 claim that he must meet in establishing a disparate

treatment claim under Title VII; that is, he must show discriminatory

intent.” E.E.O.C. v. Inland Marine Indus., 729 F.2d 1229, 1233 n.7

(9th Cir. 1984). “Individual supervisors may be found liable for

damages under [§ 1981] if personally involved in the discriminatory

activity. . . . The element of personal involvement may be satisfied

by proof that a supervisor had knowledge of the alleged acts of

discrimination and failed to remedy or prevent them.” Amin v.

Quad/Graphics, Inc., 929 F. Supp. 73, 78 (N.D.N.Y. 1996). 

“[N]egligence does not constitute the ‘personal involvement’ or

‘affirmative link’ necessary to support a claim of individual

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liability.” Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d

62, 75 (2d Cir. 2000). “[A] plaintiff must demonstrate ‘some

affirmative link to causally connect the actor with the discriminatory

action.’" Id. (quoting Allen v. Denver Pub. Sch. Bd., 928 F.2d 978,

983 (10th Cir. 1991)).

A. Eley

Defendants Aramark and Polifka move for summary judgment on

Eley’s § 1981 claim. Polifka argues, “Eley cannot establish Polifka

engaged in any affirmative acts of misconduct towards him, as required

under Section 1981.” (Defs.’ Mot. at 63.) Eley counters,

“[Polifka’s] order to Baker to ‘fire the nigger’ amply demonstrates

his discriminatory intent as well as control over Eley’s work

environment.” (Opp’n at 35; see SDF ¶ 24; Mustafa v. Clark County

Sch. Dist., 157 F.3d 1169, 1180 (9th Cir. 1998) (“Discriminatory

remarks are relevant evidence that, along with other evidence, can

create a strong inference of intentional discrimination.”) Since a

genuine issue of material fact exists on whether Baker was subjected

to intentional discrimination, Defendants’ motion for summary judgment

on Eley’s § 1981 claim is denied.

B. Baker

Defendants Aramark, Clowes, and Polifka move for summary

judgment on Baker’s § 1981 claim. Clowes argues, “When Clowes

terminated Baker he had no knowledge of any purported complaints by

Baker of discrimination in the Reno Depot.” (Defs.’ Mot. at 64.) 

Clowes contends, “Baker’s allegations that Clowes failed to remedy the

alleged discriminatory conduct of other individuals in the depot is

not an affirmative act by Clowes and cannot make Clowes liable under

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34 Defendants’ hearsay objection is overruled. See supra

note 24. 

35 Defendants object based on hearsay, speculation, lack of

personal knowledge, lack of foundation, and improper lay opinion.

Defendants’ hearsay objection is overruled. See supra note 3.

Baker has personal knowledge of the conversation. As someone who

worked with Polifka for a considerable time, Baker has laid the

foundation and basis for a proper lay opinion about Polifka’s

emotional state. The objections are overruled.

24

Section 1981.” (Id. (citing Whidbee, 223 F.3d at 75).) Baker

rejoins, “Clowes sanctioned the discrimination of which Baker

complained . . . .” (Opp’n at 80.) Baker declares that he “informed

. . . Clowes . . . about Polifka’s [racist] statements and attitude

[and e]ven though Clowes made clear he did not care that Polifka was

making racist statements, [Baker] repeatedly approached him regarding

this matter.”34 (Baker Decl. ¶ 6; SDF ¶ 10.) Baker further declares

that after he “had a conversation with Jeff Black, an executive with

the company, and brought up Polifka’s [racist] attitude,” “Clowes

notified [Baker] he was not to talk further to Black about

discrimination issues.” (Baker Decl. ¶ 15; SDF ¶¶ 19-20.) Baker’s

showing is sufficient to create a genuine issue of material fact on

whether Clowes subjected Baker to intentional discrimination. 

Polifka also seeks summary judgment on Baker’s § 1981 claim,

arguing, “First, even if Polifka failed to respond to racially

derogatory comments made by other employees, Polifka’s failure to act

only constitutes inaction, not an affirmative act as is necessary

under Section 1981.” (Defs.’ Mot. at 64.) Baker counters that

“Polifka, unconcerned, ignored [his] pleas that something be done

about Bickerton’s treatment of Andrews, [saying], ‘It’s nothing to be

concerned about.’”35 (Baker Decl. ¶ 9; SDF ¶ 13.) This deliberate

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36 Defendants object based on vagueness of the word

“ability” and relevance. The statements are relevant to whether

Baker’s interactions with Polifka led to his termination. The word

“ability” is not vague and Defendants’ argument goes to the weight

of the evidence and not its admissibility. The objections are

overruled.

25

inaction rises above mere “negligence.” Whidbee, 223 F.3d at 75.

Second, Polifka argues he disciplined Baker “based upon legitimate

non-discriminatory/non-retaliatory reasons.” (Defs.’ Mot. at 64.) As

discussed above, a genuine issue of material fact exists as to whether

these reasons were legitimate. Third, Polifka contends that “it is

undisputed that Clowes alone made the decision to terminate Baker’s

employment.” (Defs.’ Mot. at 65.) Baker counters that “Polifka

admitted he had the ability to recommend that Baker be terminated

[and] Clowes terminated Baker based on input from Polifka.”36 (SDF

¶¶ 84-85.) Since a genuine issue of material fact exists on whether

Polifka and Clowes committed affirmative actions with discriminatory

intent, Defendants’ motion for summary judgment on Baker’s § 1981

claim is denied.

C. Andrews

Defendants Aramark, Bickerton, and Polifka also seek summary

judgment on Andrews’s § 1981 claim, arguing that “Polifka’s alleged

statement about not wanting to hear about Bickerton’s ‘hostile

conduct’ . . . shows at most, inaction on Polifka’s part, not

affirmative or intentional behavior evincing any racial animus. . . .” 

(Defs.’ Mot. at 65.) Polifka also argues that his “advice not to get

‘caught up’ in the problems of Baker and Eley is entirely proper and

fails to implicate any wrongful conduct.” (Id.) Andrews rejoins that

“Polifka is liable to Andrews for his role in terminating him given

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37 Defendants object based on lack of foundation and

impermissible opinion. Plaintiffs have laid the foundation for the

complaints, and the statement that Polifka did nothing is not an

opinion. The objections are overruled.

38 Defendants’ hearsay objection is overruled. See supra

note 7. 

26

his knowledge of Bickerton’s mistreatment of Andrews and use of racial

epithets when speaking of him.” (Opp’n at 24.) Andrews declares he

“spoke several times to Mr. Polifka about Mr. Bickerton’s mistreating

[him, and that] Polifka did not do anything.”37 (Andrews Decl. ¶ 6;

SDF ¶ 100.) Baker also declares that on other occasions, when Baker

had gone to speak to Bickerton on Andrews’s behalf, Bickerton said

‘fuck the nigger’ in reference to Andrews and called him ‘nigger.’”

(Baker Decl. ¶ 37.) 

Bickerton argues, “Andrews also fails to demonstrate any

affirmative link between his discipline or his termination and

Andrews’[s] race.” (Defs.’ Mot. at 66.) But, Baker declares that

“Bickerton found out almost immediately after Andrews had called the

company hotline and told [Baker] he would ‘fire the nigger.’”38

(Baker Decl. ¶ 46; SDF ¶ 51.) “Discriminatory remarks are relevant

evidence that, along with other evidence, can create a strong

inference of intentional discrimination.” Mustafa, 157 F.3d at 1180. 

Therefore, a genuine issue of material fact exists on whether

Defendants had discriminatory intent, and Defendants’ motion for

summary judgment on Andrews’s § 1981 claim is denied.

D. Vargas

Defendants Aramark, Velasco, Koch, and Polifka move for

summary judgment on Vargas’s § 1981 claim. Velasco argues he

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39 Defendants’ hearsay objection is overruled. See supra

note 14. 

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“terminated Vargas’[s] employment because of his dishonesty [and

t]here is absolutely no evidence of any discriminatory animus on the

part of Velasco, who is himself Hispanic.” (Defs.’ Mot. at 67.) 

Vargas counters that Velasco “intentionally misrepresented to [Vargas]

the reason for his presence at the game." (Opp’n at 58.) However,

Vargas has presented no evidence that Velasco was “personally involved

in the [alleged] discriminatory activity” or “had knowledge of the

alleged acts of discrimination and failed to remedy or prevent them.” 

Amin, 929 F. Supp. at 78. Since Vargas has not presented a genuine

issue of material fact as to Velasco’s alleged discriminatory intent,

Velasco’s motion for summary judgment on Vargas’s § 1981 claim is

granted.

Defendant Koch also seeks summary judgment on Vargas’s 

§ 1981 claim, arguing that “Vargas’[s] adverse employment action was a

result of Vargas’[s] poor results and poor attitude, rather than any

alleged discriminatory animus on the part of Koch.” (Defs.’ Mot. at

69-70.) Vargas rejoins, “Koch also directly participated in

Vargas’[s] unlawful and unjustified demotion” and “threat[ened] to

‘manage out’ Vargas.” (Opp’n at 59.) Vargas declares that Koch told

Vargas that he “was ‘too outspoken’ and, if [he] did not stop being

too ‘outspoken,’ [he] would be ‘managed out’ of the corporation.”39

(Vargas Decl. ¶ 26; SDF ¶ 180.) Vargas declares that three months

later, “Koch summoned [Vargas] into his office and presented [him]

with a notice that [he] would be demoted [and] told [Vargas] he was on

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40 Defendants’ hearsay objection is overruled. See supra

note 3. 

41 Defendants’ hearsay objection is overruled. See supra

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[his] way to being ‘managed’ out of . . . Aramark.”40 (Vargas Decl. 

¶ 32; SDF ¶ 186.) Since a genuine issue of material fact exists on

whether Koch acted with discriminatory intent, Aramark and Koch’s

motion for summary judgment on Vargas’s § 1981 claim is denied.

Additionally, Polifka seeks summary judgment on Vargas’s 

§ 1981 claim, arguing that his “alleged inaction is not an affirmative

act to support individual liability under Section 1981.” (Defs.’ Mot.

at 67.) Polifka also argues that he “was not involved in Vargas’[s]

alleged demotion in November 2003 or in Vargas’[s] employment

termination in May 2004.” Polifka declares that he “supervised Vargas

from December 2003 until March 2004.” (SUF ¶ 145.) Vargas responds

that “Polifka is individually liable for the hostile work environment

. . . . Not only did Polifka fail to stop the conduct, he joined in." 

(Opp’n at 59.) Vargas declares that he was “called names by [Polifka]

including . . . ‘Beaner’ and ‘Vato.’”41 (Vargas Decl. ¶ 4; SDF ¶ 158;

see also SDF ¶ 159.) Since this dispute concerns genuine issues of

material fact as to whether Polifka acted or failed to act with

discriminatory intent based on Vargas’s race, Polifka’s motion for

summary judgment on Vargas’s § 1981 claim is denied. 

VI. Punitive Damages

Lastly, Defendants seek summary judgment on Plaintiffs’

punitive damages claim. “A complaining party may recover punitive

damages under [§ 1981] against a respondent . . . if the complaining

party demonstrates that the respondent engaged in a discriminatory

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practice or discriminatory practices with malice or with reckless

indifference to the federally protected rights of an aggrieved

individual.” 42 U.S.C. § 1981a(b)(1). “An award of punitive damages

under Title VII is proper where the acts of discrimination giving rise

to liability are willful and egregious, or display reckless

indifference to the plaintiff's federal rights.” Ngo v. Reno Hilton

Resort Corp., 140 F.3d 1299, 1304 (9th Cir. 1998). “The requisite

level of recklessness or outrageousness can be inferred from

management's participation in the discriminatory conduct.” Kimzey v.

Wal-Mart Stores, Inc., 107 F.3d 568, 575 (8th Cir. 1997).

Defendants argue Plaintiffs “have no evidence . . . to show

that Defendants acted with malice, fraud or oppression.” (Defs.’ Mot.

at 70.) Plaintiffs counter that this case “is about a deliberate

agenda on the parts of all [D]efendants of ridding Aramark of

rabble-rousers Baker, Eley, Vargas, and Andrews–who dared to be

‘outspoken’ on matters of discrimination . . . . At every step,

[D]efendants knew their conduct was unlawful.” (Opp’n at 80-81.) 

Since a genuine issue of material fact exists on whether defendants

acted or failed to act with reckless indifference, Defendants’ motion

for summary judgment on punitive damages is denied.

CONCLUSION

Aramark’s motion for summary judgment on Baker’s hostile

racial work environment claim is granted. Aramark’s motion for

summary judgment on Andrews’s age discrimination claims is granted. 

Defendant Velasco’s motion for summary judgment on Vargas’s § 1981

claim is granted. Since no claims remain against Lewis, Defendant

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Lewis is dismissed from the case. Defendants’ motion is otherwise

denied.

IT IS SO ORDERED.

DATED: August 31, 2005

/s/ Garland E. Burrell, Jr.

GARLAND E. BURRELL, JR.

United States District Judge

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