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Nazir v. United Airlines, Inc.

Court of Appeal of California, First Appellate District, Division Two

October 9, 2009, Filed

A121651

Opinion

 [**302]  RICHMAN, J.—Our Supreme Court has said that the purpose of the 1992 and 1993 amendments to the California summary judgment statute was “to liberalize the granting of motions for summary judgment.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854 [107 Cal. Rptr. 2d 841, 24 P.3d 493].) It is no longer called a “disfavored remedy.” It has been described as having a salutary effect, ridding the system, on an expeditious and efficient basis, of cases lacking any merit. And that it has, as shown by the many cases affirming a summary judgment.

At the same time, the summary judgment procedure has become the target of criticism on a number of fronts. Some particular criticism is directed to the procedure in employment litigation, including that it is being abused, especially by deep pocket defendants to overwhelm less well-funded litigants. More significantly, it has  [***2] been said that courts are sometimes making determinations properly reserved for the fact finder, sometimes drawing inferences in the employer's favor, sometimes requiring the employees to essentially  [**303]  prove their case at the summary judgment stage. Here we confront the poster child for such criticism, in a case involving what may well be the most oppressive motion ever presented to a superior court.

Plaintiff Iftikhar Nazir, a man of Pakistani ancestry, worked for United Airlines, Inc. (United), for over 16 years, during which time he was called scurrilous names and was the victim of numerous other indignities. Plaintiff reached the level of mechanic supervisor, the only person of color to ever hold that position. He was terminated in 2005 by his supervisor, Bernard  [*249]  Petersen, on the basis that plaintiff violated United's zero tolerance policy in an incident with a female employee of an outside service provider. Plaintiff sued United and Petersen (when referred to collectively, defendants) in a complaint that, save perhaps for two battery and fraud causes of action, asserted rather typical claims grounded on harassment, discrimination, and retaliation. What ensued was hardly typical.

Defendants  [***3] filed a motion for summary judgment/summary adjudication, seeking adjudication of 44 issues, most of which were not proper subjects of adjudication. Defendants' separate statement was 196 pages long, setting forth hundreds of facts, many of them not material—as defendants' own papers conceded. And the moving papers concluded with a request for judicial notice of 174 pages. All told, defendants' moving papers were 1,056 pages.

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178 Cal. App. 4th 243 *; 100 Cal. Rptr. 3d 296 **; 2009 Cal. App. LEXIS 1659 ***; 107 Fair Empl. Prac. Cas. (BNA) 967; 158 Lab. Cas. (CCH) P60,885

IFTIKHAR NAZIR, Plaintiff and Appellant, v. UNITED AIRLINES, INC., et al., Defendants and Respondents.

Subsequent History: Time for Granting or Denying Review Extended Nazir (Iftikhar) v. United Airlines, Inc., 2010 Cal. LEXIS 104 (Cal., Jan. 8, 2010)

Request denied by Iftikhar v. United Airlines, 2010 Cal. LEXIS 1593 (Cal., Feb. 3, 2010)

Prior History:  [***1] Superior Court of San Mateo County, No. CIV458060, Marie S. Wiener, Judge.

Nazir v. United Air Lines, 2009 U.S. Dist. LEXIS 81901 (N.D. Cal., Sept. 9, 2009)

CORE TERMS

harassment, trial court, defendants', termination, DFEH, cause of action, summary judgment, separate statement, summary adjudication, retaliation, interview, promotion, papers, cases, pages, discriminatory, talk, arm, arm wrestling, evidentiary objection, triable, reply, superior court, complaints, undisputed, exhaust, grabbed, color, words, questionnaire

Civil Procedure, Judgments, Summary Judgment, Partial Summary Judgment, Entitlement as Matter of Law, General Overview, Evidentiary Considerations, Absence of Essential Element, Burdens of Proof, Nonmovant Persuasion & Proof, Appeals, Summary Judgment Review, Standards of Review, Reviewability of Lower Court Decisions, Preservation for Review, Opposing Materials, Accompanying Documentation, Labor & Employment Law, Discrimination, Harassment, Racial Harassment, Hostile Work Environment, Civil Actions, Exhaustion of Remedies, Filing of Charges, Statute of Limitations, Evidence, Burden Shifting, Evidence, Inferences & Presumptions, Inferences, Evidentiary Considerations, Disparate Treatment, Circumstantial & Direct Evidence, Appropriateness, Retaliation, Elements, Torts, Intentional Torts, Intentional Infliction of Emotional Distress, Governments, Courts, Authority to Adjudicate