Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DAVID COLLINS, an individual, Case No.: 3:23-cv-01368-RBM-DEB 12 Plaintiff, ORDER: 13 v. (1) DENYING PLAINTIFF’S 14 WAL-MART STORES, INC., a Delaware MOTION FOR SUMMARY Corporation, 15 JUDGMENT [Doc. 90]; Defendant. 16 (2) GRANTING DEFENDANT’S 17 MOTION FOR SUMMARY JUDGMENT [Doc. 99]; 18 19 (3) DENYING AS MOOT DEFENDANT’S MOTION TO 20 DISMISS [Doc. 87] 21 22 Pending before the Court are Plaintiff David Collins’ (“Plaintiff”) Motion for 23 Summary Judgment (“Plaintiff’s MSJ”) (Doc. 90) and Defendant Wal-Mart Stores, Inc.’s 24 (“Defendant” or “Wal-Mart”) Motion for Summary Judgment (“Defendant’s MSJ”) 25 (Doc. 99). The Court finds the matters suitable for determination on the papers and without 26 oral argument pursuant to Civil Local Rule 7.1(d)(1). Having reviewed the cross motions 27 for summary judgment and the briefs in opposition and reply, and for the reasons set forth 28 below, the Court DENIES Plaintiff’s MSJ and GRANTS Defendant’s MSJ. 1 I. BACKGROUND 2 A. Factual Background1 3 Plaintiff is a 58-year-old man who has worked for Defendant for over 20 years and 4 is currently employed at one of Defendant’s stores in Escondido, California. (Doc. 85 ¶ 4; 5 Doc. 101 [Joint Statement of Facts in Support of Defendant Walmart Inc.’s Renewed 6 Motion for Summary Judgment] (“JSF”) at 3–4.)2 Since he began working at the 7 Escondido store in 2016, he has maintained the same positions: Cap Team 1 Associate and 8 Stocking Team 1 Associate. (JSF at 3 (citing Doc. 99-6 [Deposition of Plaintiff] at 6:8– 9 14).) 10 Plaintiff’s experience as a stocking team associate at the Escondido store has not 11 been a positive one. After transferring there in 2016, he received a pay cut for several 12 weeks, though from 2017 on he received a pay increase every year. (JSF at 4; Doc. 99-6 13 [Deposition of Plaintiff] at 12:5–25; 20:2–6.) Plaintiff initially expressed to leadership his 14 desire to become a store manager (see Doc. 85 ¶ 19), but he did not apply for a management 15 position within Wal-Mart since February 6, 2020 because he felt like Wal-Mart would not 16 consider his application. (JSF at 3–4 (citing Doc. 99-4 [Plaintiff’s Supplemental Responses 17 to Defendant’s Request for Admissions] at 3–4); Doc. 99-6 [Deposition of Plaintiff] at 18 25:9–25).) Plaintiff also struggled with his supervisors and coworkers, and maintained 19 handwritten notes throughout his employment documenting his perceived abuse and 20 bullying at their hands. (See generally Doc. 86 at 13–38.) 21 In response to these challenges in the workplace, Plaintiff complained internally to 22 Wal-Mart Ethics and through the Wal-Mart Open Door Policy, and externally to the 23 24 25 1 The Court sets forth these facts, where it can, based on the parties’ Joint Statement of Facts in Support of Defendant Walmart Inc.’s Renewed Motion for Summary Judgment. 26 (Doc. 101). The Court also cites some of the allegations in Plaintiff’s First Amended 27 Complaint (“FAC”) (Doc. 85) for additional context, but does not rely on these allegations for purposes of this Order to the extent they are not supported by evidence in the record. 28 1 Department of Fair Employment and Housing, now called the Civil Rights Department 2 (“CRD”). (Doc. 85 ¶ 24; JSF at 9 (citing Doc. 99-6 [Deposition of Plaintiff] at 13:3–15).) 3 It is undisputed that Plaintiff filed complaints through the Open Door Policy before March 4 12, 2021 and with the CRD on March 12, 2021. (See JSF at 9; Doc. 99-1 at 17–18). 5 Plaintiff also represents that he called Wal-Mart Ethics to complain once more on July 9, 6 2024. (JSF at 9, 15; see Doc. 86 at 24; Doc. 104 at 4–6.) 7 After filing his complaints through the Open Door Policy and the CRD, in October 8 2022, Plaintiff took an unpaid, unprotected leave of absence for work-related stress. (JSF 9 at 5 (citing Doc. 99-6 [Deposition of Plaintiff] at 16:2–17:6, 19:1–18).) When he returned 10 from leave about four months later, he had the same job title, job description, pay, and 11 management. (Doc. 99-6 [Deposition of Plaintiff] at 18:12–21:21.) He was also, however, 12 reassigned from “hardline” capping to “softline” capping, which required him to work with 13 different coworkers and move to the backroom of the store. (Id. at 22:4–15.) In his 14 deposition, Plaintiff stated that he viewed this reassignment “very much as a punishment,” 15 and that people being moved from hardline capping to softline capping was “extremely 16 rare[],” happening “maybe twice a year, if that.” (Id. at 22:4–15; 27:5–16.) 17 B. Plaintiff’s Claims 18 In the First Amended Complaint (“FAC”), Plaintiff asserts four causes of action 19 against Defendant under the Fair Employment and Housing Act (“FEHA”) and the 20 California Labor Code: (1) discrimination based on age in violation of Government Code 21 section 12940(a); (2) harassment in violation of Government Code section 12940(j); 22 (3) retaliation in violation of Labor Code sections 98.6 and 1102.5 and Government Code 23 section 12940(h); and (4) failure to prevent discrimination, harassment, and retaliation in 24 violation of Government Code section 12940 et seq. and Labor Code section 1102.5. 25 (Doc. 85 ¶¶ 26–57.) 26 C. Procedural History 27 On June 16, 2023, Plaintiff filed suit against Defendant in California state court. 28 (Doc. 1-2 at 5–17.) On July 27, 2023, Defendant removed the case to this Court. (Doc. 1.) 1 On August 2, 2023, Defendant filed its Motion to Dismiss pursuant to Federal Rule of Civil 2 Procedure 12(b)(6). (Doc. 3.) On January 4, 2024, the Court issued its Order granting in 3 part and denying in part Defendant’s Motion to Dismiss (“MTD Order”). (Doc. 7.) In the 4 MTD Order, the Court found that Plaintiff’s FEHA claims based on events before March 5 12, 2021 were barred by the statute of limitations and that the continuing violations doctrine 6 was not applicable, but that Plaintiff’s FEHA claims based on discrete acts occurring after 7 March 12, 2021 were not time-barred. (See Doc. 7 at 10–14.) Over eight months later, 8 Plaintiff filed several motions that the Court construed as a Motion for Reconsideration of 9 the MTD Order. (Docs. 40, 42–46.) On May 19, 2025, the Court denied Plaintiff’s Motion 10 for Reconsideration. (Doc. 80.)3 11 On June 6, 2025, the Court granted what it construed as Plaintiff’s Motion to Amend 12 (see Docs. 52–57, 59) and ordered Plaintiff to file his FAC on or before June 16, 2025. 13 (Doc. 84 at 9.) Plaintiff timely filed his FAC (Doc. 85), along with a document titled 14 Support of Amended Original Complaint. (Doc. 86.) 15 On June 30, 2025, Defendant filed a Motion to Dismiss Plaintiff’s FAC. (Doc. 87.) 16 On July 1, 2025, Plaintiff filed Plaintiff’s MSJ. (Doc. 90). On July 29, 2025, Defendant 17 filed its Opposition to Plaintiff’s MSJ. (Doc. 93.) On August 25, 2025, Defendant filed 18 Defendant’s MSJ. (Doc. 99.) That same day, before Defendant filed its MSJ, Plaintiff 19 filed a document titled “Plaintiffs Opposition of Defendants Motion for Summary 20 Judgment and MSJ Prior to Motion Date Instead of Response then MSJ.” (Doc. 98.) This 21 filing is not a true opposition, but “a solid general outline of the Causes of Action.” (Id. at 22 23 24 3 Plaintiff has seemingly renewed his attempt to invoke the continuing violations doctrine 25 and introduce evidence from before March 12, 2021. (See Doc. 98 at 2 (“There has been a time-barred judgment, but the evidence remains and the Plaintiff is using the Continuing 26 Violations Doctrine.”); Doc. 90 at 2 (“There are years-worth and a multitude of complaints 27 to these Causes of Action prior to” March 12, 2021.).) Because it already dismissed FEHA claims based on events before March 12, 2021 and denied Plaintiff’s Motion for 28 1 2.) On September 22, 2025, Defendant filed its evidentiary objections (Doc. 102) and 2 Reply to Plaintiff’s Opposition of Defendant’s Summary Judgment Motion. (Doc. 103.) 3 On September 24, 2025, Plaintiff filed a “Brief Response to Defense 09/22/25 4 Pleading and Support to Opposition of MSJ.” (Doc. 104.) This filing is technically 5 Plaintiff’s second opposition to Defendant’s MSJ. Defendant notes that “Plaintiff has not 6 cited any case in which a party that filed an inadequate opposition to summary judgment 7 has been granted a second bite of the apple . . . to submit additional argument or evidence 8 that was available at the time of the original filing.” (Doc. 103 at 4 (quoting Rashidian v. 9 IRS, No. SACV14-16-JLS (DFMx), 2015 WL 13343584, at *3 (C.D. Cal. Feb. 26, 2015) 10 (cleaned up.) However, given Plaintiff’s pro se status, his apparently mistaken belief that 11 he was required to file an opposition before Defendant had even filed its MSJ,4 and the fact 12 that Doc. 104 is Plaintiff’s only filing that responds to the specific arguments raised in 13 Defendant’s MSJ, the Court construes it as part of Plaintiff’s Opposition to Defendant’s 14 MSJ. 15 II. LEGAL STANDARD 16 Summary judgment is appropriate “if the movant shows that there is no genuine 17 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” 18 Fed. R. Civ. P. 56(a). A fact is material when, under the governing substantive law, it 19 “might affect the outcome of the suit.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 20 (1986). A genuine issue of material fact exists where “the evidence is such that a 21 reasonable jury could return a verdict for the nonmoving party.” Id. at 242. 22 23 24 4 Plaintiff writes “[t]he Motion cut-off was moved to be August 25, 2025. On the afternoon 25 of that day the Plaintiff had to file the opposition to MSJ as it was simply getting late and the Defense did not file until just before the deadline.” (Doc. 104 at 1.) Thus, it appears 26 Plaintiff believed that August 25, 2025 was not only the deadline for filing motions for 27 summary judgment, but also for filing oppositions to motions for summary judgment. Under the circumstances, this was not a second bite of the apple; rather, Plaintiff’s mistake 28 1 The initial burden of establishing the absence of any genuine issue of material fact 2 falls on the moving party. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The movant 3 can satisfy this burden by (1) presenting evidence that negates an essential element of the 4 non-moving party’s case or (2) demonstrating that the non-moving party failed to make a 5 showing sufficient to establish an element essential to that party’s case on which that party 6 will bear the burden of proof at trial. See id. at 322–23. 7 Once the moving party has satisfied its initial burden, the non-moving party cannot 8 rest on the mere allegations or denials of its pleading. Rather, she must “go beyond the 9 pleadings and by her own affidavits, or by the depositions, answers to interrogatories, and 10 admissions on file, designate specific facts showing that there is a genuine issue for trial.” 11 Id. at 324 (quotation marks and citation omitted). The non-moving party may meet this 12 requirement by presenting evidence from which a reasonable jury could find in its favor, 13 viewing the record as a whole, in light of the evidentiary burden the law places on that 14 party. See Triton Energy Corp. v. Square D Co., 68 F.3d 1216, 1221–22 (9th Cir. 1995). 15 In determining whether there are any genuine issues of material fact, the Court must view 16 the facts and draw all reasonable inferences in the light most favorable to the nonmoving 17 party. Scott v. Harris, 550 U.S. 372, 378 (2007). When a party proceeds pro se, the Court 18 “must consider as evidence in his opposition to summary judgment all of [his] contentions 19 offered in motions and pleadings, where such contentions are based on personal knowledge 20 and set forth facts that would be admissible in evidence” and where the pro se party 21 “attested under penalty of perjury that the contents of the motions or pleadings are true and 22 correct.” Jones v. Blanas, 393 F.3d 918, 923 (9th Cir. 2004). 23 III. DISCUSSION 24 A. Plaintiff’s MSJ (Doc. 90) 25 Plaintiff’s MSJ is four pages. (See Doc. 90 at 2–4.) Plaintiff states that his FAC 26 cites “specific incidents of harassment, retaliation, bullying, and failure to protect from 27 bullying by the Defendant using specific names and dates.” (Id. at 2.) Plaintiff goes on to 28 state that “with the Plaintiff’s submission of these documents the burden of proof then 1 shifts to the Defense to counter them. . . . The Defense has failed to counter or deny these 2 specific adverse actions. . . . The Plaintiff, therefore, asks the Court for a Summary 3 Judgment.” (Id. at 3.) 4 As the moving party, Plaintiff bears the burden of establishing the absence of any 5 genuine issue of material fact. Celotex Corp, 477 U.S. at 323. He has not met that burden 6 because Plaintiff’s MSJ identifies no evidence and contains only conclusory statements. 7 “The [C]ourt declines to do [P]laintiff’s work for him . . . [and] hunt through the record to 8 locate [records] that support his assertions.” Dominguez v. Cnty. of Los Angeles, Case No. 9 CV 21-6369 FMO (KSx), 2023 WL 10406548, at *1 (C.D. Cal. Feb. 2, 2023); see also 10 Huey v. UPS, Inc., 165 F.3d 1084, 1085 (7th Cir. 1999) (“[J]udges need not paw over the 11 files without assistance from the parties.”); Moriarty v. Am. Gen. Life Ins. Co., Case 12 No.: 3:17-cv-1709-BTM-WVG, 2022 WL 4103080, at *3 (S.D. Cal. Sept. 7, 2022) 13 (denying the plaintiff’s motion for summary judgment where she submitted no evidence), 14 vacated and remanded on other grounds by No. 23-3650, 2025 WL 687960 (9th Cir. Mar. 15 4, 2025). Plaintiff’s MSJ (Doc. 90) is thus DENIED. 16 B. Defendant’s Evidentiary Objections 17 Because the Court “can only consider admissible evidence in ruling on a motion for 18 summary judgment,” Orr v. Bank of Am., NT & SA, 285 F.3d 764, 773 (9th Cir. 2002) 19 (citation omitted), a “party may object that the material cited to support or dispute a fact 20 cannot be presented in a form that would be admissible in evidence.” Fed. R. Civ. P. 21 56(c)(2). However, “when evidence is not presented in an admissible form in the context 22 of a motion for summary judgment, but it may be presented in an admissible form at trial, 23 a court may still consider that evidence.” Burch v. Regents of Univ. of Cal., 433 F. Supp. 24 2d 1110, 1120 (E.D. Cal. 2006) (emphasis in original) (citing Fraser v. Goodale, 342 F.3d 25 1032, 1037 (9th Cir. 2003)). 26 27 28 1 Defendant has filed an objection to (1) the “transcription of Plaintiff’s handwritten 2 notes;”5 (2) Plaintiff’s “First Draft of the Backroom for Walmart #5996 Escondido, CA;”6 3 and (3) Plaintiff’s Letter from Jewish Family Service Safe Parking Program.7 (Doc. 102 4 at 2–3.) The Court discusses these objections below. 5 1. Plaintiff’s Letter and Draft of the Wal-Mart Backroom 6 Defendant objects to Plaintiff’s letter on the grounds of insufficient foundation under 7 Evidence Rule 901, relevance under Evidence Rule 401, prejudice under Evidence Rule 8 403, hearsay under Evidence Rule 801, and non-production during discovery under Federal 9 Rules of Civil Procedure 26 and 37. (Doc. 102 at 2–3.) Defendant objects to Plaintiff’s 10 draft of the Wal-Mart backroom for insufficient foundation, relevance, and non-production 11 during discovery. (Id. at 2.) 12 The Court need not rule on Defendant’s objections as to these two documents 13 because they are “duplicative of the summary judgment standard itself. . . . A court can 14 award summary judgment only when there is no genuine dispute of material fact.” Burch, 15 433 F. Supp. 2d at 1119 (emphasis in original). Even if the Court considered Plaintiff’s 16 letter—stating that he was experiencing homelessness from June 2023 through September 17 2023—or Plaintiff’s draft of the Wal-Mart backroom—showing an unremarkable sketch 18 of the room—it would not view these as creating disputes of material fact. As Defendant 19 correctly notes, these exhibits have no connection to “the respective elements of each 20 claim.” (Doc. 103 at 6.) As the Burch court advised in a similar context, “instead of 21 challenging the admissibility of the evidence, lawyers should challenge its sufficiency.” 22 Burch, 433 F. Supp. 2d at 1119. Because Defendant successfully challenges the sufficiency 23 of these two exhibits, the Court does not rule on Defendant’s objections to them. 24 25 26 27 5 See Doc. 86 at 13–38; Doc. 98 at 14–20; Doc. 101 at 10–15. 6 Doc. 98 at 37–38. 28 1 2. Transcription of Plaintiff’s Handwritten Notes 2 Defendant also objects to the transcription of Plaintiff’s handwritten notes on the 3 grounds of hearsay, violation of the best evidence rule, and insufficient foundation. 4 (Doc. 102 at 2; Doc. 103 at 5–6.) As discussed below, the Court overrules Defendant’s 5 hearsay and best evidence rule objections. Although the Court could properly sustain 6 Defendant’s insufficient foundation objection, it will consider Plaintiff’s handwritten notes 7 anyway because they do not create a genuine dispute of material fact. 8 Hearsay is a statement “the declarant does not make while testifying at the current 9 trial or hearing” that “a party offers in evidence to prove the truth of the matter asserted in 10 the statement.” Fed. R. Evid. 801(c). Although inadmissible hearsay cannot be considered 11 on a motion for summary judgment, Blair Foods, Inc. v. Ranchers Cotton Oil, 610 F.2d 12 665, 667 (9th Cir. 1980), “a district court may consider hearsay evidence submitted in an 13 inadmissible form, so long as the underlying evidence could be provided in an admissible 14 form at trial, such as by live testimony.” JL Beverage Co., LLC v. Jim Beam Brands Co., 15 828 F.3d 1098, 1110 (9th Cir. 2016). Assuming, without deciding, that Plaintiff’s notes 16 are hearsay, the Court may still consider them because Plaintiff could present them in an 17 admissible form at trial by testifying. Defendant’s hearsay objection is thus overruled. 18 Under the best evidence rule, generally, “[a]n original writing . . . is required to prove 19 its content unless [the Evidence Rules] or a federal statute provides otherwise.” Fed. R. 20 Evid. 1002. Even if Plaintiff’s notes violate the best evidence rule, the Court may consider 21 them on a motion for summary judgment because they could be presented in an admissible 22 form at trial, such as by live testimony. See Hughes v. United States, 953 F.2d 531, 543 23 (9th Cir. 1992) (holding that affidavit may be considered on summary judgment despite 24 best evidence rule objection because the facts underlying the affidavit are of the type that 25 would be admissible as evidence even though the affidavit itself might not be admissible). 26 Defendant’s best evidence rule objection is thus overruled. 27 “Authentication is a condition precedent to admissibility, and this condition is 28 satisfied by evidence sufficient to support a finding that the matter in question is what its 1 proponent claims.” Orr, 285 F.3d at 773 (cleaned up). “[U]nauthenticated documents 2 cannot be considered in a motion for summary judgment.” Id. (citations omitted). “In a 3 summary judgment motion, documents authenticated through personal knowledge must be 4 attached to an affidavit that meets the requirements of Fed. R. Civ. P. 56(e) and the affiant 5 must be a person through whom the exhibits could be admitted into evidence.” Id. at 773– 6 74 (cleaned up). 7 Defendant notes that Plaintiff has not properly authenticated the transcription of his 8 notes. (Doc. 102 at 5.) This would be a ground to sustain Defendant’s authentication 9 objection. However, because the Court is mindful that the “Federal Rules of Evidence take 10 a liberal approach in the admission of evidence,” Diviero v. Uniroyal Goodrich Tire Co., 11 114 F.3d 851, 853 (9th Cir. 1997) (citation omitted), and because Plaintiff’s notes do not 12 create a triable issue of fact, the Court will consider Plaintiff’s notes (see Doc. 86 at 13– 13 38; Doc. 98 at 14–20) in its analysis below. See also Cherewick v. State Farm Fire & Cas., 14 578 F. Supp. 3d 1136, 1155 (S.D. Cal. 2022) (citing Hal Roach Studios, Inc. v. Richard 15 Feiner & Co., 896 F.2d 1542, 1551 (9th Cir. 1989)) (“[W]here a district court relies on an 16 unauthenticated document that could be authenticated at trial by . . . a witness with 17 competent personal knowledge . . . its reliance on that document is harmless error.”). 18 It does not consider, though, any unsupported allegations in Plaintiff’s pleadings. 19 (See, e.g., Doc. 85 ¶ 22 (unsupported allegations in FAC that manager stated Plaintiff 20 “could not be a manager because he was ‘too old,’ ‘goes to the bathroom too much,’ and 21 ‘shakes too much’”); Doc. 86 at 1–12 (unsupported restatement of allegations in FAC).) 22 Although the Court must consider as evidence a pro se party’s contentions offered in 23 pleadings where the pro se party “attested under penalty of perjury that the contents of the 24 motions or pleadings are true and correct,” Blanas, 393 F.2d at 923, Plaintiff’s motions and 25 pleadings are not verified. See Schroeder v. McDonald, 55 F.3d 454, 460 n.10 (9th Cir. 26 1995) (noting that a pleading is verified if the drafter states under penalty of perjury that 27 its contents are true and correct). For clarity moving forward, the Court considers as 28 evidence: Doc. 86 at 13–38; Doc. 98 at 14–20; Docs. 99-2–99-10; and Doc. 104 at 2–3. 1 C. Defendant’s MSJ (Doc. 99) 2 1. Age Discrimination Claim 3 To state a prima facie case of age discrimination under FEHA, Plaintiff must show 4 that he: “(1) is over the age of 40; (2) suffered an adverse employment action; (3) was 5 performing satisfactorily at the time of the adverse action; and (4) suffered the adverse 6 action under circumstances that give rise to an inference of unlawful discrimination[.]” 7 Sandell v. Taylor-Listug, Inc., 188 Cal. App. 4th 297, 321 (2010) (citation omitted). The 8 plaintiff has the initial burden of establishing a prima facie case of discrimination. Dep’t 9 of Fair Emp’t & Hous. v. Lucent Techs., Inc., 642 F.3d 728, 745 (9th Cir. 2011). That 10 burden is reversed, though, when a defendant moves for summary judgment. Id. To prevail 11 on a motion for summary judgment, the employer must show, as relevant here, that the 12 “plaintiff could not establish one of the elements of [the] FEHA claim[.]” Avila v. Cont’l 13 Airlines, Inc., 165 Cal. App. 4th 1237, 1247 (2008). 14 Defendant argues that Plaintiff cannot establish that he suffered an adverse 15 employment action. (Doc. 99-1 at 12–15.) First, Defendant argues that Plaintiff has no 16 failure to promote claim because he did not apply for a management position within Wal- 17 Mart during the relevant time period. (Id. at 12–13.) Second, Defendant argues that 18 Plaintiff cannot show any other adverse employment action because: (1) he has maintained 19 the same position since 2021; (2) he has received a raise every year; (3) he has no evidence 20 “to support the claim that he was treated differently from younger employees on the basis 21 of performance reviews;” and (4) his job required him to perform the tasks that he deemed 22 less desirable. (Id. at 13–15.) Besides relying on his notes, Plaintiff argues that he has 23 identified younger employees who were promoted instead of him. (Doc. 104 at 1.) 24 Adverse employment actions “materially affect the compensation, terms, conditions, 25 or privileges of . . . employment.” Chuang v. Univ. of Cal. Davis, Bd. of Trs., 225 F.3d 26 1115, 1126 (9th Cir. 2000). They can include “termination, demotion, failing to promote, 27 denial of an available job, adverse job assignments, official discipline, and significant 28 changes in compensation or benefits.” Ayala v. Frito Lay, Inc., 263 F. Supp. 3d 891, 905 1 (E.D. Cal. 2017); see also Ray v. Henderson, 217 F.3d 1234, 1241 (9th Cir. 2000) (taking 2 “an expansive view” of what constitutes adverse employment actions). 3 “Mere ostracism” or minor conduct, however, do not constitute adverse employment 4 actions. Davis v. Team Elec. Co., 520 F.3d 1080, 1090 (9th Cir. 2008). As the California 5 Supreme Court explained, “[m]inor or relatively trivial adverse actions or conduct by 6 employers or fellow employees that, from an objective perspective, are reasonably likely 7 to do no more than anger or upset an employee . . . are not actionable” in a FEHA 8 discrimination claim. Yanowitz v. L’Oreal USA, Inc., 36 Cal. 4th 1028, 1054–55 (2005). 9 At the outset, the Court notes that many of Plaintiff’s complaints are the minor or 10 trivial type that are not actionable under FEHA. (See, e.g., Doc. 86. at 15 (supervisor asked 11 Plaintiff “[i]sn’t it a little early for lunch?”); id. at 17 (assistant managers accused Plaintiff 12 of leaving out a cart from the freezer); id. at 18 (manager asked Plaintiff to clock in early); 13 id. at 21 (assistant manager yelled at Plaintiff and several others who were getting carts); 14 id. at 23 (assistant manager was “put off by having to come unlock the alcohol lock-up for 15 [Plaintiff] to stock”); id. at 24 (assistant manager told Plaintiff “[y]ou need to call for help! 16 You need to ask for paper towels! You need to tell the customer to watch out!” regarding 17 a spill on the floor); id. at 25 (assistant manager admonished Plaintiff for not having his 18 keys); id. at 26 (assistant manager called Plaintiff “Mr. Dave” and Plaintiff responded 19 “[p]lease, don’t call me Mr. Dave, it hurts me”); id. at 27 (new manager made the 20 employees say “‘good morning’ back to him a little louder”); id. at 31 (assistant manager 21 told Plaintiff to help unload a truck).) The Court thus turns to Plaintiff’s claims that 22 Defendant: (1) failed to promote him; (2) failed to provide him performance reviews and 23 raises; and (3) gave him adverse job assignments.8 24 25 8 Plaintiff alleges several other adverse employment actions. (See, e.g., Doc. 85 ¶ 24 26 (Defendant denied Plaintiff’s requests for paid time off; excessively monitored him; forced 27 him to work in the rain; ignored his requests to fix his attendance record; and ignored his request to be certified to operate a forklift).) Even construing the record liberally in light 28 1 a) Failure to Promote 2 Defendant argues that Plaintiff “is missing the prerequisite of actually seeking a 3 management position with Walmart.” (Doc. 99-1 at 13.) Plaintiff concedes that he did not 4 apply to any management positions within Wal-Mart during the relevant time period 5 “because it would be doing the same thing expecting different results and the Plaintiff was 6 being retaliated against at that point.” (Doc. 104 at 4; Doc. 86 at 8.) 7 As the Ninth Circuit recently clarified, the “requirement [that a plaintiff apply for a 8 position] makes sense in many cases,” and several of its opinions “suggest[] that the 9 plaintiff must apply for the position in question.”9 Caldrone v. Circle K Stores Inc., 156 10 F.4th 952, 957 (9th Cir. 2025) (citing Shelley v. Geren, 66 F.3d 599, 608 (9th Cir. 2012) 11 (requiring the plaintiff to show that he was “qualified for the position for which an 12 application was submitted”) (emphasis added); Steckl v. Motorola, Inc., 703 F.2d 392, 393 13 (9th Cir. 1983) (finding plaintiff showed prima facie case where he “was clearly within the 14 protected class, had applied for an available position for which he was qualified, and was 15 denied a promotion which was given to a younger person”) (emphasis added)). But a 16 plaintiff need not “demonstrate that they submitted an application” where “an employer 17 declines to solicit applications and does not announce that a position is available.” 18 Caldrone, 156 F.4th at 957. 19 Although certain circumstances, such as those contemplated in Caldrone, obviate 20 the need for a plaintiff to show he applied for a position, those circumstances are not present 21 here. There is no evidence that Defendant was refusing to accept applications from, or 22 hiding listings from, Plaintiff. In fact, Plaintiff had applied to management positions within 23 Wal-Mart before the time period relevant in this case (see Doc. 99-6 [Deposition of 24 25 26 unsubstantiated allegations. Therefore, the Court discusses only the claimed failure to 27 promote, failure to provide performance reviews and raises, and adverse job assignments. 9 Although Caldrone concerned an Age Discrimination in Employment Act claim, “[a] 28 1 Plaintiff] at 25:9–21), and stopped applying only because he felt “it would be doing the 2 same thing expecting different results.” (Doc. 104 at 4; Doc. 86 at 8.) Because Plaintiff 3 had the opportunity to apply for management positions and chose not to, this is one of the 4 “many cases” where it still “makes sense” to require Plaintiff to show that he applied for 5 the position in question. Caldrone, 156 F.4th at 957. Defendant has thus met its burden 6 to show that there is no dispute of material fact as to, and that Plaintiff cannot succeed on 7 his discrimination claim under, a failure to promote theory. 8 b) Performance Reviews and Raises 9 In the FAC, Plaintiff alleges that Defendant “has refused to provide [him] with any 10 performance evaluations or meaningful raises that weren’t required by law or part of its 11 company-wide wage increase. Meanwhile, [Plaintiff] is informed and believes that his 12 younger co-workers continued to receive their yearly reviews [and] raises.” (Doc. 85 ¶ 23.) 13 Defendant argues that Plaintiff has no evidence to support these claims. (Doc. 99-1 at 13– 14 16.) “Plaintiff is unable to provide any examples of a younger employee in Plaintiff’s same 15 position who received a review . . . and he cannot identify other employees . . . who received 16 raises because they did not discuss it with him.” (Id. at 14.) The Court agrees that Plaintiff 17 is unable to establish an adverse employment action here. 18 First, although “an undeserved negative performance review can constitute an 19 adverse employment decision,” Brooks v. City of San Mateo, 229 F.3d 917, 930 (9th Cir. 20 2000), the Ninth Circuit also recently held in an unpublished opinion that “[a] low 21 performance review standing alone, without impact on the compensation, terms, 22 conditions, or privileges of employment does not amount to an adverse employment 23 action.” Spokoiny v. Univ. of Wash. Med. Ctr., No. 24-550, 2025 WL 752492, at *1 (9th 24 Cir. Mar. 10, 2025); see also Lyons v. England, 307 F.3d 1092, 1118 (9th Cir. 2002) 25 (holding “that a performance evaluation that was mediocre (rather than ‘sub-average’) and 26 that did not give rise to any further negative employment action did not violate Title VII”) 27 (discussing Kortan v. Cal. Youth Auth., 217 F.3d 1104 (9th Cir. 2000) (emphasis added). 28 1 It follows that Plaintiff’s lack of performance reviews, standing alone, cannot 2 constitute an adverse employment action without an impact on Plaintiff’s conditions of 3 employment. There is no evidence of such an adverse impact here. Despite the lack of 4 performance reviews, Plaintiff has maintained the same position and received a raise every 5 year during the relevant time period. (JSF at 3 (citing Doc. 99-6 [Deposition of Plaintiff] 6 at 6:8–14).) Accord Strickland v. Seattle Cent. Coll., CASE NO. C18-1073JLR, 2019 WL 7 7370338, at *6 n.10 (W.D. Wash. Dec. 31, 2019) (finding that a “lack of timely 8 performance reviews,” among other things, did not amount to evidence of a hostile work 9 environment or an adverse employment action). Plaintiff alleges that the lack of 10 performance reviews hindered his ability to seek promotions (Doc. 85 ¶ 23), but as 11 discussed above, this could not be the case because Plaintiff chose not to apply for 12 management positions within Wal-Mart during the relevant time period. 13 Second, Plaintiff cannot show an adverse employment action on the basis of raises 14 because he concedes that he received a raise every year during the relevant time period and 15 no evidence in the record suggests that younger employees were treated more favorably. 16 (JSF at 4; Doc. 99-6 [Deposition of Plaintiff] at 12:5–25; 20:2–6.) Accord Shokri v. Boeing 17 Co., 311 F. Supp. 3d 1204, 1212 n.4 (W.D. Wash. 2018) (finding that the plaintiff’s 18 complaint that “he was not given more than a 2% raise . . . fail[ed] to establish a prima 19 facie case because [it was] not sufficiently adverse or because [the plaintiff] cannot 20 establish that similarly situated individuals received more favorable treatment”). 21 Therefore, Plaintiff cannot succeed on his discrimination claim under this theory either. 22 c) Job Reassignment 23 Defendant argues that Plaintiff’s reassignment to softline capping and relocation to 24 the backroom do not constitute an adverse employment action because the material 25 conditions of Plaintiff’s employment—his pay, job title, and management team—did not 26 change, and even if they did, the action was not “linked to his age.” (Doc. 99-1 at 14–15, 27 19 (citation omitted).) Plaintiff argues that the reassignment was “very much as a 28 punishment” because the location was isolated and people were only moved from hardline 1 capping to softline capping “maybe twice a year, if that.” (Doc. 99-6 [Deposition of 2 Plaintiff] at 22:4–15; 27:5–16.) 3 The Ninth Circuit defines adverse employment actions broadly, and even “a transfer 4 to another job of the same pay and status may constitute an adverse employment action.” 5 Henderson, 217 F.3d at 1241. But the Court need not reach the issue of whether Plaintiff’s 6 reassignment constituted an adverse employment action because the claim fails at another 7 element; there is no admissible evidence in the record that Plaintiff was reassigned “under 8 circumstances that give rise to an inference of unlawful [age] discrimination[.] Sandell, 9 188 Cal. App. 4th at 321 (citation omitted). 10 The Court has very liberally construed the record in light of Plaintiff’s pro se status, 11 and considers evidence that, as discussed, could have properly been excluded as a result of 12 Defendant’s evidentiary objections. (See supra Section III.B.2 (considering as evidence 13 the transcription of Plaintiff’s handwritten notes as set forth in Docs. 86, 98, and 104, but 14 not considering as evidence any unsupported contentions or allegations in Plaintiff’s 15 unverified pleadings).) Even under this liberal construction, the record contains no 16 evidence of circumstances that give rise to an inference that Plaintiff was reassigned to 17 softcapping because of unlawful age discrimination. Plaintiff has introduced no admissible 18 statements that Defendant or its employees made about his age, nor has he introduced 19 sufficient (or any) circumstantial evidence that his age played a role in Defendant’s 20 decision to reassign him to softline capping. See, e.g., Diaz v. Eagle Produce Ltd. P’ship, 21 521 F.3d 1201, 1208–1211 (9th Cir. 2008) (describing the “variety of circumstantial 22 evidence” that may be considered at summary judgment). The mere fact that Plaintiff was 23 over 40 years old and was given a different job task does not, even with all justifiable 24 inferences drawn in his favor, create a triable issue of fact regarding this element. 25 Therefore, the Court finds that there is no evidence establishing a triable issue of 26 material fact as to whether Plaintiff suffered age discrimination under FEHA. Accordingly, 27 the Court GRANTS Defendant’s MSJ as to Plaintiff’s FEHA age discrimination claim. 28 1 2. Harassment Claim 2 Under FEHA, it is unlawful for an employer to harass an employee because of the 3 employee’s age. Ortiz v. Dameron Hosp. Ass’n, 37 Cal. App. 5th 568, 581 (2019) (citing 4 Cal. Gov’t Code § 12940(j)). To establish a prima facie case of harassment, a plaintiff 5 must show that “(1) she is a member of a protected class; (2) she was subjected to 6 unwelcome harassment; (3) the harassment was based on her protected status; (4) the 7 harassment unreasonably interfered with her work performance by creating an 8 intimidating, hostile, or offensive work environment; and (5) defendants are liable for the 9 harassment.” Id. (citation omitted). 10 As discussed above, the Court finds that none of the alleged incidents of harassment 11 detailed in Plaintiff’s notes were based on Plaintiff’s age. Because there is no evidence 12 establishing a triable issue of material fact as to whether Plaintiff suffered harassment under 13 FEHA, the Court GRANTS Defendant’s MSJ as to this claim as well. 14 3. Retaliation Claim under California Government Code § 12940(h) 15 FEHA prohibits an employer from discharging, expelling, or otherwise 16 discriminating “against any person because the person has opposed any practices forbidden 17 under this part or because the person has filed a complaint, testified, or assisted in any 18 proceeding under this part.” Cal. Gov’t Code § 12940(h). To state a prima facie case of 19 retaliation, Plaintiff must show that: (1) he engaged in a protected activity; (2) he was 20 subjected to an adverse employment action by Defendant; and (3) there is a causal link 21 between the protected activity and Defendant’s action. Yanowitz, 36 Cal. 4th at 1042. 22 “Protected activity” means that Plaintiff “has opposed any practices forbidden under 23 [FEHA] . . . or has filed a complaint, testified, or assisted in any proceeding under 24 [FEHA].” Cal. Gov’t Code § 12940(h). “It is well established that a retaliation claim may 25 be brought by an employee who has complained of or opposed conduct that the employee 26 reasonably believes to be discriminatory, even when a court later determines the conduct 27 was not actually prohibited by the FEHA.” Yanowitz, 36 Cal. 4th at 1043. 28 1 Defendant argues that Plaintiff cannot establish a retaliation claim based on his 2 taking of unprotected leave or his complaints to the CRD and Wal-Mart Ethics because his 3 complaints made before March 12, 2021 are time-barred; he suffered no adverse 4 employment actions; and no evidence shows a causal link between his complaints and 5 Defendant’s actions. (Doc. 99-1 at 16–21.) The Court agrees. 6 At the outset, Plaintiff’s claims arising from events before March 12, 2021 are time 7 barred. (See Doc. 7 (MTD Order); supra note 3.) The Court does not consider any of 8 Plaintiff’s allegations connected to his complaints to Wal-Mart Ethics from before that 9 date. The Court turns to those actions within the relevant time period for which Plaintiff 10 claims he was retaliated against: his complaint to the CRD on March 12, 2021; his taking 11 of unprotected leave in October 2022; and his call to Wal-Mart Ethics on July 9, 2024. 12 a) Complaint to the CRD 13 Plaintiff has introduced no evidence that his complaint to the CRD on March 12, 14 2021 resulted in him suffering an adverse employment action, or that a causal link existed 15 between any such action and Plaintiff’s complaint to the CRD. The only claimed adverse 16 actions relevant here are failure to promote, failure to provide performance reviews and 17 raises, and adverse job assignments. (See supra note 8.) As it discussed above, the Court 18 finds that the first two of these do not constitute adverse employment actions. (See supra 19 Section III.C.1.a–b.) And even if the reassignment to softline capping were an adverse 20 employment action, there is no evidence that the reassignment was causally linked to 21 Plaintiff’s complaint to the CRD. Thus, to state a prima facie case, Plaintiff must rely 22 solely on temporal proximity between filing a complaint with the CRD on March 12, 2021 23 and being reassigned to softline capping around February 2023. 24 Although “causation can be inferred from timing alone where an adverse 25 employment action follows on the heels of protected activity,” Villiarimo v. Aloha Island 26 Air, Inc., 281 F.3d 1054, 1065 (9th Cir. 2002), that inference is only “permitted if the 27 adverse action follows ‘within a relatively short time’ after the protected activity.” 28 Yphantides v. Cnty. of San Diego, 660 F. Supp. 3d 935, 959 (S.D. Cal. 2023) (citation 1 omitted); see also Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273–74 (2001) (noting 2 that, in Title VII retaliation cases, courts “uniformly hold that the temporal proximity must 3 be ‘very close,’” and that a four-month delay between the protected activity and adverse 4 action is too long); Day v. Sears Holdings Corp., 930 F. Supp. 2d 1146, 1181 (C.D. Cal. 5 2013) (noting that “the Ninth Circuit has held that gaps of one to three months between a 6 plaintiff’s protected activity and a defendant’s adverse employment action can give rise to 7 an inference of causation”). Here, Plaintiff’s reassignment occurred over a year after his 8 complaint to the CRD. This is not a “relatively short time” by any standard. Because he 9 lacks any other evidence that his reassignment was motivated by his complaint to the CRD, 10 Plaintiff cannot show that the temporal proximity between his complaint and his 11 reassignment creates a triable issue of fact as to retaliation. 12 b) Taking Unprotected Leave 13 Plaintiff did not engage in a protected activity under FEHA when he took an 14 unprotected leave of absence in October 2022. “Government Code § 12940(h) 15 encompasses a broad range of protected activity.” Hawkins v. SimplexGrinnell L.P., Civil 16 No. 12cv1406 L(BGS), 2014 WL 769345, at *9 (S.D. Cal. Feb. 25, 2014), affirmed in part 17 and reversed in part on other grounds by 640 F. App’x 640 (9th Cir. 2016). It includes: 18 activities that “have some element of express opposition to an action or policy or practice 19 of the employer;” requesting accommodations; and taking a variety of protected leaves. 20 See Kelley v. Corrs. Corp. of Am., 750 F. Supp. 2d 1132, 1144 (E.D. Cal. 2010) (opposition 21 to policy or practice); Cal. Assem. Bill. 987 (2015–2016 Reg. Sess.) (requesting 22 accommodations); Holtzclaw v. Certainteed Corp., 795 F. Supp. 2d 996, 1005, 1019 (E.D. 23 Cal. 2011) (taking leave under the Family Medical Leave Act and the California Family 24 Rights Act is a protected activity); Viramontes v. XPO Logistics Freight, Inc., Case No. 25 CV 17-08642-RGK-AFMx, 2018 WL 6133646, at *2 (C.D. Cal. Jan. 24, 2018) (same for 26 taking maternity leave); Rivera v. Vishay Americas, Inc., Case No 5:20-cv-01719-ODW 27 (SPx), 2021 WL 4749503, at *7 (C.D. Cal. Oct. 12, 2012) (same for taking disability leave). 28 1 Taking an unprotected leave, as Plaintiff concedes he did (Doc. 99-6 at 19:5–12), 2 does not fall into even that broad range of protected activities. Accord Pratt v. Delta Air 3 Lines, Inc., No. 2:14-cv-00815-CAS(JCx), 2015 WL 2153397, at *15 (C.D. Cal. May 4, 4 2015) (concluding that the plaintiff’s absences from work did not constitute a protected 5 activity because nothing “suggest[ed] that plaintiff’s absences were a form of opposition 6 or protest”). Thus, Plaintiff cannot state a prima facie case for retaliation under FEHA 7 because his taking unprotected leave does not qualify as a protected activity. 8 c) Call to Wal-Mart Ethics 9 Finally, even if the Court considers Plaintiff’s alleged complaint to Wal-Mart Ethics 10 on July 9, 2024, Plaintiff has introduced no evidence that this complaint resulted in him 11 suffering an adverse employment action, or that a causal link existed between any such 12 action and Plaintiff’s complaint. 13 “[F]or a causal link to exist between the adverse employment action and the 14 protected activity, the adverse employment action cannot predate the protected activity.” 15 Doe No. 1 v. Wynn Resorts, Ltd., Case No. 2:19-cv-01904-GMN-VCF, 2023 WL 1782439, 16 at *14 n.22 (D. Nev. Feb. 3, 2023) (citing Miller v. Fairchild Indus., Inc., 797 F.2d 727, 17 731 n.1 (9th Cir. 1986)). After July 9, 2024, the only potentially adverse actions of which 18 Plaintiff could complain are, as discussed above, the minor or trivial type that are not 19 actionable under FEHA. (See supra Section III.C.1.) And even if they were actionable, 20 21 10 The Court notes that Plaintiff believes he “probably could have pursued [this leave] as 22 being medical, but [he] chose to just take it as unpaid leave. And so [Defendant] can call 23 it unprotected if they want to, but it probably could have been [protected].” (Doc. 99-6 [Deposition of Plaintiff] at 17:1–6.) Even drawing all justifiable inferences in Plaintiff’s 24 favor, this mere statement of dispute is not enough to create a triable issue of fact. Plaintiff 25 must “go beyond the pleadings and by [his] own [evidence], designate specific facts showing that there is a genuine issue for trial.” Celotex Corp., 477 U.S. at 324; see Bishop 26 v. San Quentin State Prison Work Place, No. C 01-3411 SI (PR), 2002 WL 1767416, at *4 27 (N.D. Cal. July 29, 2002) (finding that the pro se plaintiff had not met his burden to resist summary judgment because he presented “no other evidence (other than his mere say-so)”). 28 1 Plaintiff has introduced no evidence to show that they were causally linked to Plaintiff’s 2 complaint. Therefore, the Court finds that there is no evidence establishing a triable issue 3 of material fact as to whether Plaintiff suffered retaliation under California Government 4 Code § 12940(h). Accordingly, the Court GRANTS Defendant’s MSJ as to this claim. 5 4. Retaliation Under California Labor Code § 1102.5 6 An employer may not retaliate “against an employee ‘for disclosing information to 7 a government or law enforcement agency’ if the employee reasonably believes this 8 information relates to a violation of state or federal statutes or regulations.” Ayala, 263 F. 9 Supp. 3d at 915 (quoting Cal. Lab. Code § 1102.5(b)). To state a prima facie case under 10 § 1102.5, “a plaintiff must show (1) she engaged in protected activity, (2) her employer 11 subjected her to an adverse employment action, and (3) there is a causal link between the 12 two.” Patten v. Grant Joint Union High Sch. Dist., 134 Cal. App. 4th 1378, 1384 (2005) 13 (citation omitted). 14 Defendant argues that “Plaintiff cannot point to anything that would allow him to 15 establish a basis” that Defendant subjected Plaintiff to any adverse employment action 16 following his complaint to the CRD. (Doc. 99-1 at 22.) The Court agrees. 17 The definition of an “adverse employment action” under § 1102.5 is the same as the 18 one used in the FEHA analysis: whether the action “materially affects the compensation, 19 terms, conditions, or privileges of . . . employment.” See Patten, 134 Cal. App. 4th at 20 1387–88 (applying this definition to a § 1102.5 claim). The Court has extensively analyzed 21 this question above and concluded that Plaintiff cannot establish an adverse employment 22 action or show that any potentially protected activity is causally linked to such an action. 23 The Court thus similarly GRANTS Defendant’s MSJ as to this claim. 24 5. Failure to Prevent Discrimination, Harassment, or Retaliation Claim 25 “Under the FEHA, it is also prohibited for an employer ‘to fail to take all reasonable 26 steps necessary to prevent discrimination and harassment from occurring in the 27 workplace.’” Ayala, 263 F. Supp. 3d at 905 (quoting Cal. Gov’t Code § 12940(k)). To 28 state a prima facie case, Plaintiff must show that he was subjected to discrimination, 1 || harassment, or retaliation that Defendant failed to take all reasonable steps to prevent and 2 ||that caused Plaintiff harm. /d. (citing Trujillo v. N. Cnty. Transit Dist., 63 Cal. App. 4th 3 289 (1998)). Plaintiff cannot prevail on a claim for failure to prevent discrimination, 4 || harassment, or retaliation because, as discussed above, he has not experienced those things 5 defined under FEHA. See Trujillo, 63 Cal. App. 4th at 287-89. Accordingly, the Court 6 || GRANTS Defendant’s MSJ as to this claim. 7 IV. CONCLUSION 8 Based on the foregoing, the Court: 9 1) DENIES Plaintiff's MSJ (Doc. 90); 10 2) GRANTS Defendant’s MSJ (Doc. 99) as to all of Plaintiff's claims; and 11 3) DENIES AS MOOT Defendant’s Motion to Dismiss (Doc. 87). 12 4) ORDERS the Clerk of Court to enter judgment in favor of Defendant as to all 13 claims and terminate the case. 14 IT IS SO ORDERED. 15 ||DATE: January 28, 2026 eet Barts, Mittasyyes □ 7 ON. RUTH BERMGDEZ! MONTENEGRO UNITED STATES DISTRICT JUDGE 18 19 20 21 22 23 24 25 26 27 28 22