Juell v. Forest Pharmaceuticals, Inc.

456 F. Supp. 2d 1141 (2006)

Eric Edward JUELL, Plaintiff,
v.
FOREST PHARMACEUTICALS, INC. and David Williams, Defendants.

No. CIV S-05-0378 FCD/GGH.

United States District Court, E.D. California.

September 12, 2006.

Linda Jane Sloven, Attorney at Law, Nevada City, CA, Roderick Paul Bushnell, Bushnell Caplan Fielding and Maier LLP, San Francisco, CA, for Plaintiff.

Lizbeth V. West, Weintraub Genshlea Chediak Sproul, Sacramento, CA, Randall S. Thompson, Susanne Jennings Blackwell, Blackwell, Sanders, Peper, Martin LLP, Saint Louis, MO, for Defendants.

MEMORANDUM AND ORDER

DAMRELL, District Judge.

This matter is before the court on. defendants' Forest Pharmaceuticals, Inc. ("Forest") and David Williams ("Williams") motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.^[1] Plaintiff Eric Edward Juell ("Juell") opposes defendants' motion. For the reasons set forth below,^[2] defendants' motion is DENIED.

BACKGROUND^[3]

Plaintiff Eric Edward Juell was born on February 8, 1953. (Juell Aff. ¶ 1). Plaintiff was hired by defendant Forest in June 1991 as a Territory Sales Representative. (UF ¶ 1). Forest manufactures and markets various prescription pharmaceutical products throughout the United States. (UF ¶1). After approximately five years with Forest, plaintiff was promoted to the position of Manager of Specialty Markets ("MSM"). (UF ¶2). As an MSM, plaintiff's primary responsibilities were to identify and develop working relationships with HMOs, to contract Forest's pharmaceutical products in a positive formulary position, and to work with Forest's sales force in the field. (Juell Aff. ¶ 6). Plaintiff was also required to call on HMOs, pharmacy benefit management companies ("PBM"s), and medical groups, communicate in writing and orally with his accounts before and after calling on them, draft reports, communicate with Forest's sales force and upper management, create expense reports, coordinate programs with sales representatives that accentuated Forest's formulary position with HMOs, and work with, Forest's sales force to maximize Forest's market share with those markets where Forest had a positive formulary position. (Juell Aff. ¶ 6).

Plaintiff presents evidence that his job responsibilities began to increase sometime in 2000. In early 2000, defendant Williams became plaintiff's manager. (Juell Aff. ¶ 8). When plaintiff started in the job of MSM, he worked approximately forty to fifty hours per week and was responsible for about eight large accounts. (Juell Aff. ¶ 9). By late 2000, he was working over sixty hours per week and was responsible for approximately 20 accounts. (Juell Aff. ¶ 9). In 2001, plaintiff had twice as many lives (a number referring to an account's member enrollment) as other MSMs. (Juell Aff. ¶ 9). In 2000, due to a vacant Specialty Market Representative ("SMR") position, Williams assigned plaintiff the additional responsibility of calling on medical groups, including some in Southern California. (Juell Aff. ¶8). Also in 2000, the MSM responsible for all of Southern California, Marcus Shaw, was moved to a new position, and plaintiff was assigned responsibility by Williams to all Southern California HMO accounts and field sales force. (Juell Aff. ¶ 11). This assignment increased his accounts from eight to twenty.^[4] (Juell Aff. ¶ 11). As of 2001, plaintiff had responsibility for 16 divisional managers and 112 representatives. (Juell Aff. ¶14). The MSM who held the neighboring territory had responsibility for 9 divisional managers and 56 representatives. (Juell Aff. ¶15). Lastly, plaintiff's workload also increased due to his involvement in producing speaker programs designed to increase market share for the antidepressant drug Celexa. (Juell Aff. ¶11). From April 2001 to March 2002, plaintiff was the leader in program monies utilized for speaker programs. (Juell Aff. ¶ 11). In order to complete the tasks assigned, plaintiff's wife assisted him in administrative duties, often working forty hours per week. (Juell Aff. ¶ 12). Further, in early 2002, SMRs were relieved of responsibility for calling on medical group accounts, and that responsibility was added to the "MSM workload. (Juell Aff. ¶ 7).

In February 2001, plaintiff was promoted to the position of Senior Manager of Specialty Markets ("Senior MSM"). (Juell Aff. ¶ 2). In September 2001, plaintiff informed Williams that he had too many accounts and responsibility for many more divisional managers and representatives than his colleagues. (Juell Aff. ¶ 14). At this time, plaintiff was spending 40% of his time interfacing with Forest sales representatives. (Juell Aff. 14). Williams told plaintiff that he did not want to hear about it. (Juell Aff. 1114). Plaintiff also spoke to Williams several times throughout 2001-2003 about the unrealistic work load that he had been assigned and its effect on his psychological well being. (Juell Aff. ¶ 16). On June 5, 2002, plaintiff also informed Donald MacDonald, Vice-President of Managed Care Operations for Forest, of his unrealistic workload and that Williams did not provide him with any managerial support. (Juell Aff. ¶ 17; Aff. of Donald MacDonald ("MacDonald Aff."), filed Aug. 11, 2006). MacDonald never spoke to plaintiff again regarding these issues. (Juell Aff. ¶ 17).

Beginning in approximately late 2001 or early 2002, Williams made numerous agerelated comments to plaintiff every time they spoke. (Juell Aff. ¶ 18). When Williams first made age-related comments to him, plaintiff thought he was joking. (SDF ¶ 1). However, over time, the comments became more frequent and more degrading. (Juell Aff. ¶ 18). Williams made comments about plaintiffs age during account calls, in peer group settings, and over the telephone. (Juell Aff. ¶ 18). On several account visits that plaintiff and Williams made together, Williams implied that there was a question as to whether plaintiff could still "get the job done" at his age and whether plaintiffs abilities were waning. (Juell Aff. ¶¶ 18, 20). Specifically, plaintiff recalls Williams mentioning his age with a negative connotation during account calls to Blue Shield of California, Catalyst RX, Sierra Health Services, Integrated Pharmaceutical Services, and Sutter Health. (Juell Aff. ¶ 18).

Williams would also send numerous emails to plaintiff in which plaintiff believes he made reference to plaintiffs age. (SDF 114). Williams wrote e-mails to plaintiff wherein he referred to him as "Senior," "SR.," and "Old manager of specialty markets." (SDF 115; Juell Aff. ¶¶ 21-27). In one e-mail, Williams wrote: "I hope that the little old ladies that you met don't start calling you at home—maybe you should refer them onto Marc Shaw—he might be able to get them a great deal on a nursing home community." (Juell Aff. ¶27). In another e-mail sent shortly after the birth of his daughter, Williams wrote: "Don't feel bad when the teacher asks if you're the grandfather." (Juell Aff. ¶28). Williams also made remarks in other e-mails such as "Hope all is well with my very senior account manager (50 and still ticking)," "Going for the big 15 to go with 50," "bring your cane to the next meeting," and "you are the oldest guy in the department, aren't you?." (Juell Aff. ¶¶ 29-31).

In the fall of 2002, plaintiff had a telephone conversation with Williams wherein Williams told plaintiff that he was golfing with a good friend from his church who had lost his job and who had asked about employment with Forest. (SDF ¶ 6). When plaintiff asked Williams whether he was going to hire his friend, Williams responded that he was not because the man was over fifty and had lost his snap. (SDF ¶ 6). Plaintiff felt that Williams shared this with him as an indirect way of commenting on his age, as this conversation occurred shortly before plaintiffs fiftieth birthday. (SDF ¶6; Juell Aff. ¶ 33).

Plaintiff spoke to Forest's Senior Director of Human Resources, Jeff Wolfe ("Wolfe"), approximately five times between January 2002 and April 2003 about his inability to handle all the work that he had been assigned. (Juell Aff. ¶ 36). In May 2002, plaintiff informed Wolfe that Williams was sending e-mails with comments about plaintiffs age and mentioning his age to accounts; plaintiff told Wolfe that he felt like he was the target of age discrimination. (SDF ¶¶ 12-13). Plaintiff was never contacted by any Forest Human Resources representative, manager, or any other authorized representative of Forest concerning any investigation into his complaints. (Juell Aff. ¶ 36). Neither Wolfe nor anyone in Forest's Human Resources Department took any action to reduce plaintiffs workload or to investigate whether there' was merit to plaintiffs complaints regarding age discrimination. (SDF ¶ 21). Sometime after Summer 2002, Wolfe informed MacDonald that plaintiff had some concerns about communications from Williams relating to his age. (SDF ¶ 16). MacDonald thereafter spoke to Williams in general terms and Williams acknowledged that he may have said some things that were mis-perceived, but that he would be sensitive to making any kind of comments that were not work-related. (SDF ¶¶ 16-17).

In early 2003, as a result of Williams' focus on his age along with the heavy workload, plaintiff felt he could no longer perform the tasks of his job. (SDF ¶ 22). Williams' conduct made it psychologically impossible for plaintiff to continue as an MSM and to continue under the supervision of Williams. (SDF ¶ 23). Plaintiff informed Williams that be could no longer perform the tasks associated with his position, that he was psychologically and mentally stressed, and that it was impossible for him to handle the volume of work assigned to him. (SDF ¶ 24). In April 2003, plaintiff called to inform Wolfe that he was taking a voluntary demotion because he felt that he had been forced to resign from his position as Senior MSM due to his age. (Juell Aff. ¶38). Plaintiff took a position as an office-based Specialty Representative, which decreased his base salary by $28,000. (SDF ¶ 26). Plaintiff would not have taken this position absent the conduct of Williams. (SDF ¶25). After plaintiff told Williams that he was stepping down from the Senior MSM position, Williams told plaintiff that at his, age, that might be good. (UF ¶ 58). When plaintiff stepped down from his MSM position in April 2003, he was replaced by Irene. Camarino, who was 34 years old in 2003. (SDF ¶ 37).

Plaintiff held the position of Specialty Representative under the supervision of Scott Rogers from April 2003 through July 17, 2003. (Juell Aff. ¶ 41). However, the mental distress suffered by plaintiff as an MSM under the supervision of Williams rendered him unable to perform even at the reduced level required of a Specialty Representative. (Juell Aff. ¶ 41). As a result of the mental distress, plaintiff had a nervous breakdown and became disabled. (Juell Aff. ¶ 42). He took a leave of absence from Forest since July 17, 2003. As of that date, he remains unable to focus, concentrate, multi-task, or return to work. (Juell Aff. ¶ 42).

On January 26, 2005, plaintiff filed a complaint in Nevada County Superior Court against defendants, alleging state claims against defendants Forest and Williams for harassment on the basis of. age in violation of California's. Fair Employment and Housing Act ("FEHA"), Cal. Gov.Code § 12940, and against defendant Forest for discrimination on the basis of age in violation of FEHA, wrongful termination in violation of public policy and failure to prevent harassment in violation of California Government Code § 12940(k). Defendants removed the case from state court in February 2005 on the basis of diversity jurisdiction.

STANDARD

Summary judgment is appropriate when it is demonstrated that there exists no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970).

Under summary judgment practice, the moving party

always bears the initial responsibility of informing the district court of the basis of its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact.

Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). "[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the ``pleadings, depositions, answers to interrogatories, and admissions on file.'" Id. at 324, 106 S. Ct. 2548. Indeed, summary judgment should be entered against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. Id. at 322, 106 S. Ct. 2548. In such a circumstance, summary judgment should be granted, "so long as whatever is before the district court demonstrates that the standard for entry of summary judgment, as set forth in Rule 56©, is satisfied." Id. at 323, 106 S. Ct. 2548.

If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-87, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986); First Nat'l Bank v. Cities Serv. Co., 391 U.S. 253, 288-289, 88 S. Ct. 1575, 20 L. Ed. 2d 569 (1968). In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the denials of its pleadings, but is required to tender evidence of Specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that the dispute exists. Fed.R.Civ.P. 56(e). The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party, id. at 251-52, 106 S. Ct. 2505.

In the endeavor to establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." First Nat'l Bank, 391 U.S. at 289, 88 S. Ct. 1575. Thus, the "purpose of summary judgment is to ``pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.'" Matsushita, 475 U.S. at 587, 106 S. Ct. 1348 (quoting Rule 56(e) advisory committee's note on 1963 amendments).

In resolving the summary judgment motion, the court examines the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any. Rule 56(c); SEC v. Seaboard Corp., 677 F.2d 1301, 1305-06 (9th Cir.1982). The evidence of the opposing party is to be believed, and all reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party. Anderson, 477 U.S. at 255, 106 S. Ct. 2505. Nevertheless, inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D.Cal.1985), aff'cl, 810 F.2d 898 (9th Cir.1987).

Finally, to demonstrate a genuine issue, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts. . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ``genuine issue for trial.'" Matsushita, 475 U.S. at 586-87, 106 S. Ct. at 1356.

ANALYSIS

A. Fair Employment and Housing Act Claims

Plaintiff brings claims under the Fair Employment and Housing Act ("FE HA") for discrimination, harassment, and failure to prevent discrimination on the basis of age. Defendants move for summary judgment on the ground that plaintiff has not produced sufficient evidence to create a triable issue of fact for violations of FEHA.

FEHA provides that it is "an unlawful employment practice" for an employer to refuse to hire or employ, to bar or discharge from employment, or to discriminate against any individual over the age of 40 in compensation or in terms, conditions, or privileges of employment on the basis of age. Cal. Gov.Code §§ 12926, 12941 (West 2006). "Although the wording of the Fair Employment Housing Act and title VII of the Federal Civil Rights Act of 1964 differs in some particulars, the antidiscriminatory objectives and the overriding public policy purposes are identical," and therefore, California courts refer to applicable federal decisions where appropriate. Sorosky v. Burroughs Corp., 826 F.2d 794, 803 (9th Cir.1987) (citing County of Alameda v. Fair Employment & Hous. Comm'n, 153 Cal. App. 3d 499, 504, 200 Cal. Rptr. 381 (1984); Guz v. Bechtel Nat'l, Inc., 24 Cal. 4th 317, 354, 100 Cal. Rptr. 2d 352, 8 P.3d 1089 (2000)). "In particular, California has adopted the threestage burden-shifting test established by the United States Supreme Court for trying claims of discrimination, including age discrimination, based on a theory of disparate treatment". Guz, 24 Cal.4th at 354, 100 Cal. Rptr. 2d 352, 8 P.3d 1089 (citing Texas Dep't of Cmty Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L.Ed.2d 668 (1973); Martin v. Lockheed Missiles & Space Co., 29 Cal. App. 4th 1718, 1730, 35 Cal. Rptr. 2d 181 (1994); Ewing v. Gill Indus., Inc., 3 Cal. App. 4th 601, 610-11, 4 Cal. Rptr. 2d 640 (1992); County of Alameda, 153 Cal. App. 3d 499, 504, 200 Cal. Rptr. 381 (1984)).

1. Discrimination Claims

Plaintiff asserts that defendant Forest discriminated against him based upon his age as evidenced by derogatory age-related comments, a heavier workload than younger employees, a corporate ageist culture, and eventual replacement by a younger employee. Plaintiff contends that defendant's conduct made it psychologically impossible for him to continue working in his position, and that he was forced to demote himself and then eventually, to take a disability leave from his employment with Forest. Defendant asserts that plaintiff cannot set forth a claim that he was discriminated against on the basis of age.

To establish a case of age discrimination in violation of FEHA, plaintiff must prove (1) he was a member of a protected class; (2) he was performing competently in the position he held; (3) he suffered an adverse employment action, such as termination, demotion, or denial of an available job; and (4) some other circumstance suggests discriminatory motive.^[5]Guz, 24 Cal.4th at 355, 100 Cal. Rptr. 2d 352, 8 P.3d 1089 (citations omitted). Under McDonnell Douglas, once the plaintiff makes out a prima facie case of discrimination, the burden shifts to the defendant to set forth a legitimate, non-retaliatory reason for the adverse action. Id. at 355-56, 100 Cal. Rptr. 2d 352, 8 P.3d 1089. However, only the burden of production shifts; the ultimate burden of persuasion remains with the plaintiff. Burdine, 450 U.S. at 253, 101 S. Ct. 1089. If the defendant can make this showing, the burden shifts back to the plaintiff to "attack the employer's proffered reasons as pretexts for discrimination, or to offer any other evidence of discriminatory motive". Guz, 24 Cal. 4th at 356, 100 Cal. Rptr. 2d 352, 8 P.3d 1089 (citing St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 515-18, 113 S. Ct. 2742, 125 L. Ed. 2d 407 (1993)).

Defendant Forest does not dispute that plaintiff was a member of a protected class or that he was performing competently in his position. (See OF ¶¶ 6-15; Defs.' Mem. of P. & A. in Supp. of Mot. for Summ. J., filed June 20, 2006, at 11). Rather, defendant argues that plaintiff fails to demonstrate (1) that he experienced an adverse employment action on a theory of constructive discharge; (2) that defendant had discriminatory motives for their conduct; and (3) that defendant's legitimate, non-discriminatory reasons for their conduct was merely a pretext for discrimination on the basis of age.

a. Constructive Discharge

Defendant Forest contends that plaintiff cannot establish a prima facie claim of age discrimination because he did not experience an adverse employment action. Plaintiff argues that he was constructively discharged from his employment as a Senior MSM with Forest.

The doctrine of constructive discharge seeks to address the situation where, "[i]n an attempt to avoid liability for wrongfully discharging an employee, an employer may refrain from actually firing an employee, preferring instead to engage in conduct causing him or her to quit." Colores v. Bd. of Trs., 105 Cal. App. 4th 1293, 1305, 130 Cal. Rptr. 2d 347 (2003) (quoting Turner v. Anheuser— Busch, Inc., 7 Cal. 4th 1238, 1244-45, 32 Cal. Rptr. 2d 223, 876 P.2d 1022 (1994)). As a result, in order to prevent "end-runs" around claims requiring employer-initiated terminations of employment, "a constructive discharge is legally regarded as a firing rather than a resignation." See id. (quoting Turner, 7 Cal.4th at 1244-45, 32 Cal. Rptr. 2d 223, 876 P.2d 1022). The standard by which a constructive discharge is determined is "whether a reasonable person faced with the allegedly intolerable employer actions or conditions of employment would have no reasonable alternative except to quit." Id. (quoting Turner, 7 Cal.4th at 1248, 32 Cal. Rptr. 2d 223, 876 P.2d 1022). In order to establish a constructive discharge, a plaintiff must show that "the employer either intentionally created or knowingly permitted working conditions that were so intolerable or aggravated at the time of the employee's resignation that a reasonable employer would realize that a reasonable person in the employee's position would be compelled to resign." Id. at 1305, 130 Cal. Rptr. 2d 347 (quoting Turner, 7 Cal.4th at 1251, 32 Cal. Rptr. 2d 223, 876 P.2d 1022). For purposes of constituting constructive discharge, the "adverse working conditions must be unusually ``aggravated' or amount to a ``continuous pattern' before the situation will be deemed intolerable." Id. at 1306, 32 Cal. Rptr. 2d 223, 876 P.2d 1022.

Plaintiffs constructive discharge claim is based upon his resignation from the Senior MSM position and acceptance of the Specialty Representative position, which decreased his base salary from $108,000 to $80,000. Plaintiff contends that his working conditions, specifically the combination of an unmanageable workload along with frequent and degrading comments by his supervisor Williams, forced him to resign from his position as Senior MSM. However, in an effort to continue some employment, plaintiff took the position of Specialty Representative under a different supervisor. See Colores, 105 Cal. App.4th at 1318, 130 Cal. Rptr. 2d 347 (finding that although the plaintiff did not tech nically quit, she still had a claim for constructive discharge because the true logic of plaintiffs case was that her employer, through its agents, made plaintiffs working conditions so intolerable that "she was no longer able to function in her duties and needed to remove herself from her job, and thus was effectively constructive discharged").

Defendant Forest asserts that plaintiff was not constructively discharged because his working conditions were not objectively intolerable. Specifically, defendant contends that (1) plaintiffs job responsibilities were commensurate with other MSMs; (2) plaintiff received above-average performance reviews, promotions, bonuses, and stock options; (3) plaintiff was paid a sixfigure salary; and (4) plaintiff was meeting all performance expectations.

However, there is a factual dispute regarding whether plaintiffs job responsibilities were commensurate with other MSMs. Defendant contends that the number of accounts assigned to plaintiff was in line with other MSMs and that Forest management otherwise did not substantiate plaintiffs allegations that his workload was unmanageable or that plaintiff had more responsibilities than other MSMs. (See UF ¶ 38). Plaintiff presents evidence that he had 16 division managers and 112 sales representatives with whom he was required to communicate, collaborate, and educate, while another MSM in a neighboring territory had 9 division managers and 56 sales representatives. (Juell Aff. ¶15). Also, in late 2000, plaintiff's accounts increased from eight to twenty. (Juell Aff. ¶ 11). Plaintiff also presents evidence that he did 28 large speaking programs from November 2000 to October 2001 and was the leader in program monies utilized between April 2001 and March 2002. (Juell Aff. ¶11). Because of the increased workload and responsibility, plaintiffs wife assisted him in his administrative duties, often working forty hours per week. (Juell Aff. ¶ 12). In February 2001, defendant Williams stated that plaintiff had one of the highest Celexa^[6] market shares and dollar volume territories in the country and that he had a consistently high call average. (Juell Aff. ¶13). Plaintiff also presents evidence that he had approximately twice as many lives (a number referring to an account's member enrollment) as other MSMs. (UF ¶38). Plaintiff testified at his deposition that, although the process was the same, the effect of a formulary position on a larger number of lives would sometimes dictate how much time plaintiff would spend per account. (Dep. of Eric Edward Juell ("Juell Dep."), lodged Aug. 1, 2006, 25:14-26:6).^[7] As such, there are triable issues with respect to whether plaintiff's workload was commensurate with other MSMs.

Defendant's assertions that plaintiff received above-average performance reviews, promotions, bonuses, and stock options, was paid a six-figure salary, and was meeting all performance expectations is not disputed. (UF ¶ 50; SUF ¶ 26; Juell Aff. ¶ 12). However, the fact that plaintiff was able to competently perform his job and meet expectations does not prevent him from asserting that his working conditions were intolerable such that a reasonable person faced with these conditions would have felt compelled to resign. See Colores, 105 Cal.App.4th at 1307, 130 Cal. Rptr. 2d 347. In Colores, the plaintiff had worked for her employer for over 21 years. Id. During her entire career, her performance reviews rated her commendable to outstanding, she received progressive salary increases that were consistent with her excellent work, and she had a reputation for honesty, integrity, competence, and for accomplishing difficult projects on time and under budget. Id. Nevertheless, based upon the conduct of her supervisor, her impossible workload, and the overall atmosphere at her workplace, the court found that plaintiff had raised a triable issue of fact as to whether she was constructively discharged. Id. at 1308-11, 130 Cal. Rptr. 2d 347.

In this case, plaintiff has raised similar claims to that of the plaintiff in Colores. As set forth above, plaintiff has presented evidence that he was given excessive responsibilities that could not be completed by one person. See id at 1310, 130 Cal. Rptr. 2d 347. In order to complete this work, plaintiffs wife assisted him, often working forty hours per week. However, plaintiff admits that it was not the excessive responsibilities by themselves that caused him to step down from the MSM position. (UF ¶ 60^[8]). Rather, plaintiff asserts that the combination of the workload with defendant William's comments and conduct relating to his age that made his workplace conditions intolerable, such that he felt he could no longer perform the tasks of his job. (SUF ¶22). Plaintiff presents evidence that beginning in late 2001 to early 2002, defendant Williams made" numerous age-related comments to him every time they spoke. (Juell Aff. ¶ 18). Over time, the comments became more frequent and degrading. (Id.) The comments were made not only to plaintiff in person, but also during account calls, in peer group situations, in social settings, over the telephone, and in e-mails sent to plaintiff and others. Plaintiff presents evidence that Williams implied to clients that plaintiffs abilities may be suspect because of his age. (Juell Aff. ¶ 19). Williams focus on plaintiffs age negatively affected plaintiffs mental, physical, and psychological condition. (UF ¶ 14); see Colores, 105 Cal.App.4th at 1309, 130 Cal. Rptr. 2d 347. As such, plaintiff has presented sufficient evidence to raise a triable issue of fact regarding whether his working conditions were objectively intolerable.

Defendant Forest argues that even if plaintiffs evidence creates a triable issue that at some point his workload was unmanageable, his workload became manageable once two other Forest Employees, Caroline Gerbis and Sanjay Gupta, became MSMs in California. Defendant argues that because plaintiffs workload became manageable before he resigned from the position of MSM, plaintiff does not have a claim for constructive discharge. (Def's Mem. P. & A. in Supp. of Mot. for Summ. J., filed June 20, 2006, at 12) (citing Montero v. AGCO Corp., 192 F.3d 856, 861 (9th Cir.1999) (holding that the plaintiff was not constructively discharged in part because the offensive conduct had ceased 3-4 months before resignation)). Defendant Forest contends that plaintiff admitted that his workload became manageable again once Gerbis and Gupta became MSMs. (See UF ¶¶ 45, 49).

Plaintiff did not concede that his workload became manageable once Gerbis and Gupta were added to his area. Rather, plaintiff testified that their addition to the area did not ease his job responsibilities. (Juell Dep. at 54:24-55:1). Plaintiff also presents evidence that when Gerbis and Gupta were assigned to the area, he was placed on the Medi-Cal account, which was at least equal if not greater to his responsibilities in Southern California. (Juell Aff. ¶ 52).^[9] Defendant therefore argues that plaintiff acknowledged in his Complaint that he no longer had responsibility for the Medi-Cal account as of October 2002, and thus, the responsibility ended five months before plaintiff stepped down from the MSM position. However, plaintiff presents evidence that, for a multitude of reasons, his workload was unmanagea ble up until the time he stepped down. The fact that he was relieved of responsibility from one of his accounts does not rebut this assertion.

Finally, defendant consistently attempts to treat plaintiffs allegations about his workload as somehow separate and distinct from his allegations about Williams' comments. However, plaintiffs claim of an intolerable working environment are based upon the conjunction of both an unmanageable workload and offensive, age-related comments by his direct supervisor. Plaintiff has presented sufficient evidence to raise a triable issue of fact that the combination of these factors gave rise to objectively intolerable working conditions that existed up until the time he felt he was forced to resign from his position as Senior MSM.

b. Discriminatory Motive^[10]

Defendant Forest also contends that plaintiff cannot demonstrate that Williams intended to create intolerable working conditions or had a discriminatory motive for his conduct. Defendant argues that the same-actor inference analogously applies to this situation because Williams gave plaintiff above-average performance reviews^[11] and recommended him for a promotion and raises. The Ninth Circuit has held that "where the same actor is responsible for both the hiring and firing of a discrimination plaintiff, and both actions occur within a short period of time, a strong inference arises that there was no discriminatory action." Bradley v. Harcourt, Brace & Co., 104 F.3d 267, 270-71 (9th Cir.1996). The same-actor inference is based upon the principle that "an employer's initial willingness to hire the employee-plaintiff is strong evidence that the employer is not biased against the protected class to which the employee belongs." Coghlan v. Am. Seafoods Co. LLC, 413 F.3d 1090, 1096 (9th Cir.2005). The Ninth Circuit has also recently held that the logic of the same-actor inference equally applies to cases where the plaintiff was not fired, but merely offered a less desirable job assignment. Id. "The same-actor inference is neither a mandatory presumption . . . nor a mere possible conclusion for the jury to draw. . . . Rather, it is a ``strong inference' that a court must take into account on a summary judgment motion." Id. at 1098. Once the same-actor inference is raised, the court must consider whether a plaintiff has made out the strong case of bias necessary to overcome this inference. Id. "[W]hen the allegedly discriminatory actor is someone who has previously selected the plaintiff for favorable treatment, that is very strong evidence that the actor holds no discriminatory animus, and the plaintiff must present correspondingly stronger evidence of bias in order to prevail." Id. at 1097 n. 10.

Plaintiff disputes that the sameactor inference should apply in this case. Defendant Forest contends that Williams recommended plaintiff to the position of Senior MSM, gave him positive reviews, and gave him raises and bonuses, thus raising the inference that Williams did not harbor any age-based animus toward plaintiff. Plaintiff asserts that because the Senior MSM position required maintenance of a 3.5 rating over two years, and because his previous supervisor, Tom Bley, was responsible for two of those evaluations, Williams was not personally responsible for his promotion. (UF ¶ 18). Plaintiff therefore argues that Williams is not entitled to the same-actor inference. Defendant has not presented evidence that Williams was the final decision-maker or responsible for plaintiffs promotion.^[12] Nor has defendant offered any case law or support for their proposition that the same .actor inference should analogously apply in this type of situation. Cf. Plutt v. Safeway, Inc., No. CV 05-0384, 2006 WL 2091673, at *2 n. 1 (D.Ariz. July 25, 2006) (finding that the same actor inference does not apply where the same actor was involved in both decisions, but was not the final decision maker). The court accordingly cannot conclude that William's participation in recommending plaintiff for a promotion invokes the same actor inference and requires heightened proof by plaintiff.

However, even if the court applied the same-actor inference to plaintiffs case, plaintiff has presented sufficient evidence of a strong case of bias necessary to overcome this inference. Plaintiff presents evidence that defendant Williams made consistent comments about his age to him and to others. Plaintiff also presents evidence that Williams made a comment about a friend to plaintiff, stating that he would not hire him because he was over fifty and had lost his snap. When plaintiff informed Williams that he was stepping down from the MSM position, Williams told plaintiff that at his age that might be good. Finally, plaintiff was replaced by Irene Camerino, who was 34 years old when she took the position. In light of this evidence, plaintiff has raised a triable issue of fact with regard to defendant Williams' discriminatory intent. See Johnson v. Boys & Girls Clubs of South Puget Sound, No. 04-35959, 2006 WL 1878615, at *2 (9th Cir. July 6, 2006) (holding that the defendant's undisputed comments about not understanding the plaintiffs African—American culture and the hiring of a Caucasian over a qualified African—American raised a triable issue of fact regarding discriminatory intent despite the application of the same actor inference).

c. McDonnell Douglass Burden Shifting Analysis

As set forth above, plaintiff has sufficiently set forth a prima facie case of age discrimination because he has presented evidence that (1) he was a member of a protected class; (2) he was performing competently in the position he held; (3) he was constructively discharged from his position as Senior MSM; and (4) circumstances, such as a greater workload and frequent and derogatory age-related comments by his supervisor, suggest discriminatory motive. See Guz, 24 Cal. 4th at 355, 100 Cal. Rptr. 2d 352, 8 P.3d 1089. Defendant Forest argues that even if plaintiff has established a prima fade case of discrimination, it has produced evidence of legitimate, non-discriminatory reasons for the conduct. Specifically, defendant contends that plaintiff was assigned responsibilities based upon geography, workload, and abilities.^[13] In support of this assertion, defendant Forest points to plaintiff's statement at his deposition that, at the time, he felt was given more responsibilities because of his abilities, tenure and experience. quell Dep. 86, 89). Defendant also points to the fact that plaintiff always met subjective and objective performance evaluations. (UF ¶50^[14]). In regards to the age-related comments by Williams, Forest contends that they were "no more than stray remarks."

Even if this evidence is sufficient to support a legitimate, non-discriminatory reason for defendant's conduct, plaintiff has presented sufficient evidence of pretext or discriminatory motive to create a triable issue of fact. At the summary judgment stage, plaintiff's burden is not high. Pottenger v. Potlatch Corp., 329 F.3d 740, 746 (9th Cir.2003). "He must only show that a rational trier of fact could, on all the evidence, find that [defendant's] explanation was pretextual and that therefore [the] action was taken for impermissibly discriminatory reasons." Id.

As set forth above, plaintiff has presented evidence that he was given work responsibilities greater than any younger MSMs. Further, plaintiff has presented evidence that despite complaints to his immediate supervisor, Williams, to another supervisor, McDonald, and to the Senior Director of Human Resources, Wolfe, nothing was done to alleviate the unrealistic job responsibilities. Plaintiff has also presented evidence that Williams made frequent and derogatory comments about plaintiff's age to plaintiff personally, in social settings, in front of and to clients, and via telephone conversations and e-mails. Based upon this evidence alone, a rational trier of fact could find that the employer's actions were taken for impermissibly discriminatory reasons. See Messick, 62 F.3d at 1231 (finding a triable issue of fact of pretext of age discrimination where the evidence demonstrated, in part, that the plaintiff's supervisor repeatedly commented to the plaintiff, coworkers, and customers about plaintiff's age).

Nevertheless, plaintiff also presents evidence supporting his contention that Forest had a corporate culture that is hostile to older workers.^[15] Plaintiff presents evidence that Bley, plaintiffs former supervisor, currently supervises thirty-nine Divisional Managers, a position at a lateral level to MSMs who work in managed care, all of whom are younger than fifty years of age. (SDF ¶ 31). Bley also testified at his deposition that the eleven MSMs that he has met, out of the thirty MSMs at Forest, are younger than fifty years of age. (SDF 11 35-36). Plaintiff also presents evidence Kevin Collins, a former Forest SMR, was given a new manager in 2004 who began to say that Collins and other older Sales Representatives in his area suffered from "veteranitis." (Aff. of Kevin Collins, filed Aug. 1, 2006, ¶¶ 2-14). While these circumstances alone might be insufficient to withstand summary judgment, they are certainly relevant, and along with the other substantial evidence presented by plaintiff, create a triable issue of fact of intentional discrimination. Mangold, 67 F.3d at 1477 (citing Price Waterhouse v. Hopkins, 490 U.S. 228, 251, 109 S. Ct. 1775, 104 L. Ed. 2d 268 (1989) ("[r]emarks at work that are based on sex stereotypes of no inevitably prove that gender played a part in a particular employment decision . . . [although] stereotyped remarks can be evidence that gender played a part")).

Based upon the evidence submitted by plaintiff, there is a triable issue of fact regarding whether defendant Forest discriminated against plaintiff on the basis of age in violation of FEHA. As such, defendant Forest's motion for summary judgment in regards to plaintiffs discrimination claim is DENIED.

2. Hostile Work Environment Claims

Plaintiff asserts a claim of age harassment against defendants Forest and Williams on the grounds that he was subject to a hostile work environment in violation of FEHA. FEHA makes it unlawful for an employer to discriminate against a person in the terms, conditions, or privileges of employment because of that person's age. Cal. Gov.Code § 12940(j) (West 2006). To survive summary judgment on a claim of hostile work environment under FEHA, plaintiff must raise a triable issue of fact as to whether

(1) [ ]he was "subjected to verbal or Physical conduct" because of [his age], (2) "the conduct was unwelcome," and (3) "the conduct was sufficiently severe or pervasive to alter the conditions of [plaintiffs] employment and create an abusive working environment."

Manatt v. Bank of America, NA, 339 F.3d 792, 798 (9th Cir.2003) (quoting Kang v. U. Lim Am., Inc., 296 F.3d 810, 817 (9th Cir.2002). Like Title VII, FEHA is not a general civility code. Id. (citing Faragher v. City of Boca Raton, 524 U.S. 775, 788, 118 S. Ct. 2275, 141 L. Ed. 2d 662 (1998)). "Simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms or conditions of employment." Faragher, 524 U.S. at 788, 118 S. Ct. 2275. Rather, "[a] hostile work environment claim involves a workplace atmosphere so discriminatory and abusive that it unreasonably interferes with the job performance of those harassed." Brooks, 229 F.3d at 923. Therefore, in order to survive a motion for summary judgment, plaintiff must present evidence that his "workplace [was] permeated with discriminatory intimidation . . . that [was] sufficiently severe or pervasive to alter the conditions of his employment and create an abusive working environment." Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S. Ct. 367, 126 L. Ed. 2d 295 (1993); Fisher v. San Pedro Peninsula Hosp., 214 Cal. App. 3d 590, 608, 262 Cal. Rptr. 842 (Cal.Ct. App.1989). Further, "[t]he working environment must both subjectively and objectively be perceived as abusive." Fuller v. City of Oakland, 47 F.3d 1522, 1527 (9th Cir.1995) (citing Harris, 510 U.S. at 21-22, 114 S. Ct. 367)).

The Supreme Court has warned that evidence of a hostile work environment should not be viewed too narrowly; "[T]he objective severity of harassment should be judged from the perspective of a reasonable person in the plaintiffs position, considering 'all the circumstances."' Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81, 118 S. Ct. 998, 140 L. Ed. 2d 201 (1998) (citing Harris, 510 U.S. at 23, 114 S. Ct. 367). "The real social impact of workplace behavior often depends on a constellation of surrounding circumstances . . . which are not fully captured by a simple recitation of the words used. . . ." Id. at 81-82, 118 S. Ct. 998. Such circumstances "may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether is unreasonably interferes with an employee's work performance." Beyda v. City of Los Angeles, 65 Cal. App. 4th 511, 517, 76 Cal. Rptr. 2d 547 (Cal. CtApp.1998) (quoting Harris, 510 U.S. at 23, 114 S. Ct. 367). "The plaintiff must prove that the defendant's conduct would have interfered with a reasonable employee's work performance and would have seriously affected the psychological wellbeing of a reasonable employee and that [he] was actually offended." Id. (quoting Fisher, 214 Cal.App.3d at 609-10, 262 Cal. Rptr. 842). "[T]he required showing of severity or seriousness of the harassing conduct varies inversely with the pervasiveness or frequency of the conduct." Ellison v. Brady, 924 F.2d 872, 878 (9th Cir.1.991) (citing King v. Board of Regents of Univ. of Wisconsin Sys., 898 F.2d 533, 537 (7th Cir.1990)).

Defendants assert that plaintiff did not subjectively perceive his work environment to be abusive. Defendants again point to plaintiffs concession that his workload alone did not create an intolerable working environment. As set forth above in the court's discussion of plaintiffs claim of constructive discharge, plaintiff has presented sufficient evidence that the workload in conjunction with the alleged discriminatory comments from Williams created the intolerable working environment.

Defendants also argue that the age-related comments by Williams did not create a subjectively intolerable work situation for plaintiff because plaintiff engaged in the same conduct. Specifically, defendants point to an e-mail by plaintiff to defendant with the subject heading "Very Old," wishing Williams a happy birthday, and to an e-mail from plaintiff to defendant and others, thanking them for a gift certificate and stating that "at least I know how to make macaroni and cheese so I have something to eat in my old age." (UF ¶ 53; Exs. DD-EE). Defendants rely on the Tenth Circuit's opinion in MacKenzie v. Denver, 414 F.3d 1266 (10th Cir.2005), for the principle that conduct that a plaintiff personally engages in cannot create intolerable working conditions for that plaintiff when engaged in by others. In Mac-Kenzie, the court characterized the conduct between the plaintiff and her supervisor as "mutual bantering." Id. at 1281. Further, in assessing the plaintiffs hostile work environment claims, the court found that once the plaintiff complained about her supervisor's comments, her employer immediately counseled the supervisor and required him to make a public apology. Id. The comments subsequently ceased. Id.

The facts of this case are distinguishable from the facts in MacKenzie. In this case, the conduct between plaintiff and Williams cannot be characterized as "mutual bantering." Defendants point to one instance in July 2001 where plaintiff addressed an email to Williams entitled "Very. Old." Further, plaintiff admits that initially, when the comments began in late 2001, he believed that Williams was joking. However, the comments became more frequent and more degrading, and persisted from late 2001 until 2003 when plaintiff stepped down from his position as Senior MSM under the supervision of Williams. The court does not consider defendant's evidence of plaintiffs one comment about defendant's age in July 2001 in relation to plaintiffs evidence of defendant's consistent comments about plaintiffs age over the next two and a half years to demonstrate the type "mutual bantering" described in MacKenzie. Similarly, the court does not consider defendant's evidence of a single email, in which plaintiff stated li]t's hard to turn fifty, but at least I know how to make macaroni and cheese so I will have something to eat in my old age!," comparable to defendant William's comments in front of clients implying that plaintiff may lack the ability to do his job because of his age. Further, unlike in MacKenzie, after plaintiff complained about the comments to Wolfe, nothing was done to investigate the merits of plaintiffs complaints, and Williams was only spoken to in general terms about the appropriateness of making anything other than workrelated comments.

Plaintiff presents evidence that his work environment was subjectively intolerable. Plaintiff asserts that after approximately one year of enduring Williams' written and oral references to his age, it began to affect his self-esteem, self-confidence, and self-worth. (Juell Aff. ¶ 35). Plaintiff began to doubt his own abilities which led to 'feelings of stress. (Juell Aff. 1135). Plaintiff spoke to Wolfe and Williams about the psychological and mental stress he was experiencing. (Juell Aff. TT 36-39). The mental distress caused by Williams' comments as well as plaintiffs workload rendered him unable to perform his job as a Specialty Representative, after he left the MSM position. (Juell Aff. ¶ 41). As a result of the mental distress, plaintiff had a nervous breakdown and became disabled. (Juell Aff. 1142). Plaintiff subsequently has been under the care of a psychologist and a psychiatrist on a regular basis since Summer 2003. (Juell Aff. 1143). These facts are sufficient to create a triable issue that plaintiff subjectively perceived his working environment to be hostile.

Defendants also assert that plaintiffs working conditions were not objectively abusive. For the reasons set forth in the court's discussion of plaintiffs claim of constructive discharge, plaintiff has raised a triable issue of fact regarding whether his working conditions were objectively intolerable.

Based upon the evidence submitted by plaintiff, there is a triable issue of fact regarding whether defendants' conduct was sufficiently severe and pervasive to create a hostile work environment on the basis of age in violation of FE HA. As such, defendants' motion for summary judgment in regards to plaintiffs hostile work environment claim is DENIED.

3. Failure to Prevent Discrimination

Plaintiff contends that defendant Forest is liable for its failure to investigate and take remedial action after plaintiff notified Forest of Williams' conduct. Section 12940(k) of the California Government Code provides that it is unlawful "[I]or an employer . . . to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring." Cal. Gov.Code § 12940(k) (2006). Defendants argue that this claim fails because and for the same reasons that plaintiffs discrimination and harassment claims fail. As set forth above, there are triable issues of fact regarding plaintiffs claims of discrimination and harassment. Further, plaintiff has presented evidence that (1) he advised Williams of his concerns regarding his unmanageable workload; (2) he advised MacDonald of his concerns regarding his unmanageable workload; and (3) that he advised Wolfe of both his concerns regarding his unmanageable workload and his concerns regarding Williams' comments and focus on plaintiffs age. Plaintiff also spoke to his former supervisor, Bley, about the age-related comments Williams had been making. However, plaintiffs workload remained unmanageable and no one at Forest responded to plaintiffs complaints. Further, the agerelated comments continued. (SDF 111149— 50).

Because plaintiff has raised triable issues of fact regarding his discrimination and harassment claims,^[16] and because plaintiff has presented evidence that defendant Forest failed to take adequate steps to prevent such conduct, defendant's motion for summary judgment regarding plaintiffs claim for failure to prevent discrimination is DENIED.

B. Wrongful Termination in Violation of Public Policy

Finally, plaintiff asserts a common law state tort claim against defendant Forest for wrongful termination in violation of public policy. Defendant argues that this claim should fail because plaintiffs discrimination and harassment claims under FEHA should fail. However, because plaintiff has demonstrated that there are triable issues of fact regarding his claims under FEHA, plaintiffs claim for wrongful termination in violation of public policy similarly survives defendant's motion for summary judgment. See Stevenson v. Superior Court, 16 Cal. 4th 880, 897, 66 Cal. Rptr. 2d 888, 941 P.2d 1157 (1997) (holding that "FEHA's policy against age discrimination in employment is sufficiently substantial and fundamental to support a tort claim for wrongful discharge"). Therefore, defendant Forest's motion for summary judgment regarding plaintiffs claim for wrongful termination in violation of public policy is DENIED.

CONCLUSION

For the foregoing reasons, defendants' motion for summary judgment is DNIED.

IT IS SO ORDERED.

NOTES

[1] All further references to a "Rule" are to the erwise noted. Federal Rules of Civil Procedure, unless otherwise noted.

[2] Because oral argument will not be of material assistance, the court orders the matter " submitted on the briefs. E.D. Cal. L.R. 78-230(h).

[3] For the purposes of this motion, the court recounts plaintiff's version of the facts. (See Pl.'s Separate Stmt. of Undisp. Material Facts ("SDF"), filed Aug. 1,.2006; Aff. of Eric Edward Juell ("Juell Aff."), filed Aug. 1, 2006). While plaintiff titled this document as a separate statement of undisputed facts, the court interprets this document as a separate statement of disputed facts filed pursuant to Eastern District Local Rule 56-260(b).

Where the facts are undisputed, the court refers to the parties' statement of undisputed facts. (See Pl.'s Opp'n to Def.'s Separate Stmt. of Undisp. Facts ("UF"), filed Aug. 1, 2006).

[4] Defendants assert that Forest's records reflect that plaintiff was assigned only one account of Shaw's, Maxicare. (UF ¶¶ 41, 43). Defendants argue that plaintiff does not present any evidence disputing Forest's records. However, plaintiff states in his declaration that he called on many account in Southern California and Nevada that were formerly in Shaw's territory and attached the corresponding Contact and Activity Reporting System ("CARS") reports. (Juell Aff. If 56; Ex. 21 to Juell Aff.; UF ¶ 41). Plaintiff also asserts that the individuals whom defendants identify as taking other accounts of Shaw's were SMRs who assumed medical groups, not HMOs. (UF ¶ 43). As such, plaintiff has presented evidence contrary to defendants' assertions.

[5] Defendant, citing an unpublished opinion from the Northern District of California, mistakenly asserts that the fourth prima facie element requires that defendant show that employees outside the protected age class were treated differently. While this type of showing may circumstantially demonstrate discriminatory intent, in Guz, the California Supreme Court set forth that the fourth element of a prima facie case requires plaintiff to demonstrate some other circumstance which suggests discriminatory motive, not necessarily that other employees outside of the protected age class were not treated similarly. 24 Cal. 4th at 355, 100 Cal. Rptr. 2d 352, 8 P.3d 1089.

[6] Celexa is an anti-depressant drug marketed by defendant Forest for which plaintiff had tb design speaker programs. (Juell Aff. 1111).

[7] Defendant also points out that plaintiff testified at his deposition that he did not try to devote more time to the accounts that affected more lives. (Juell Dep. at 27:18-20). Defendant asserts that the court should not consider the number of lives plaintiff was responsible for in assessing his workload because of this statement. See Block v. City of Los Angeles, 253 F.3d 410, 419 n. 2 (9th Cir.2001) ("A party cannot create a genuine issue of material fact to survive summary judgment by contradicting his earlier versions of the facts."). However, plaintiff testified that the number of lives affected by a formulary position would sometimes dictate the number of time he spent on an account. This is not necessarily inconsistent with his statement that he did not try to devote more time to the accounts that affected more lives. See Messick v. Horizon Indus., Inc., 62 F.3d 1227, 1231 (9th Cir. 1995) ("[T]he nonmoving party is not precluded from elaborating upon, explaining, or clarifying prior testimony elicited by opposing counsel on deposition.").

[8] At his deposition, plaintiff testified as follows:

Q. Had David [Williams] not made the comments about your age, would you have had to step down from the MSM position?

A. If he had not?

Q. Yes.

A. Probably not.

Q. Okay.

A. I don't think so.

(Juell Dep. at 120:25-121:6).

[9] Defendant asserts that the court should not consider plaintiff's evidence regarding the responsibilities associated with the Medi-Cal account because plaintiff "never once indicated Medi-Cal" at his deposition that this was a reason for why his workload was too great. (Defs.' Reply Mem. in Supp. of Mot. for Summ. J. ("Reply"), filed Aug. 11, 2006, at 3). This assertion is inaccurate. Plaintiff testified that an increase in accounts caused his job to become problematic. (Juell Dep. 61:13-21). Plaintiff also identified the Medi-Cal account as an account that was added. (Juell Dep. 51:22-23). See Messick, 62 F.3d at 1231.

[10] Defendant asserts that plaintiff has failed to establish a prima facie case because he has not presented evidence that individuals outside the protected, class were treated differently than him. As an initial matter, this is not the fourth element of a prima facie case of age discrimination under FEHA as set forth by the California Supreme Court in Guz. Rather, plaintiff must demonstrate some circumstance demonstrating discriminatory motive, see Guz, 24 Cal.4th at 355, 100 Cal. Rptr. 2d 352, 8 P.3d 1089, which the court discusses infra. However, to the extent that defendant asserts that plaintiff has not shown that he was treated differently, defendant is mistaken. As set forth above, plaintiff has presented evidence to create a triable issue of fact that he had more work responsibilities than other MSMs.

[11] Defendant's argument that Williams continually gave plaintiff positive reviews is somewhat at odds with the evidence they cite in their statement of undisputed facts. Defendants assert that plaintiff received ratings in administrative skills as standard or between below standard and standard. (UF 44 11-15). However, plaintiff disputes this characterization of the rating and asserts that his ratings in the administration category were standard or above standard. " As such, defendants' incongruous assertions are confusing, but ultimately, do not affect the court's analysis of this issue.

[12] Rather, defendant's evidence demonstrates that defendant Williams was not ultimately responsible for plaintiff's promotion as the memo recommending plaintiff for promotion was sent from Williams to McDonald. (UF ¶ 17; Ex. N)

[13] Defendant also again asserts that plaintiff was assigned responsibilities in line with other MSMs. However, as set forth above, plaintiff has created a triable issue of fact that his working conditions were not in line with other MSMs.

[14] As mentioned above, this assertion contradicts, at least in part, statements made by defendants in ¶¶ 6,9-13, 15.

[15] Defendant characterizes plaintiff's evidence as "statistical evidence" that is insufficient due to the size and content of the pool to constitute meaningful evidence of discrimination. However, plaintiff proffers this evidence in addition to the evidence relating to his own encounters as relevant to show discriminatory intent through corporate culture. See Mangold v. California Pub. Utilities Comm'n, 67 F.3d 1470, 1476-77 (9th Cir. 1995).

[16] Plaintiff argues that the California Supreme Court's recent opinion in Carter v. Cal. Dep't of Veteran Affairs, 38 Cal. 4th 914, 44 Cal. Rptr. 3d 223, 135 P.3d 637 (2006), casts doubt upon defendant's argument that plaintiff must prove an underlying discrimination claim an order to pursue a claim under § 12940(k). Because the court has found that there are triable issues regarding plaintiff's discrimination and harassment claims, the court does not reach the merits of this issue.