Full opinion text
MEMORANDUM OPINION AND ORDER JAMES O. BROWNING, District Judge. THIS MATTER comes before the Court on Defendant Maloof Distributing, L.L.C.’s Motion for Summary Judgment, filed August 16, 2007 (Doc. 44). The Court held a hearing on the motion on October 9, 2007. The Court will grant in part and deny in part Maloof Distributing’s motion. Maloof Distributing is not entitled to summary judgment on Negrete’s discrimination claims, because there is a genuine issue of material fact regarding his discharge. Negrete makes a prima facie showing of discriminatory discharge and disparate treatment. Maloof Distributing has presented genuine non-discriminatory reason for its discharge of Negrete, but Negrete was terminated under circumstances giving rise to an inference of discrimination because there is a genuine issue of fact regarding Maloof Distributing’s company-policy regarding “hot shot” delivery. Maloof Distributing is not entitled to summary judgment on Negrete’s implied contract claim because there is an issue of material fact whether the employment relationship between Negrete and Maloof Distributing was altered by representations made by Maloof Distributing supervisors. Maloof Distributing is entitled to summary judgment on Negrete’s primafacie tort claim, because either Velarde’s actions were not legal, or Negrete is unable to demonstrate that Maloof Distributing and/or Velarde intended to injure him. FACTUAL BACKGROUND While the parties agree on the basic outline of what occurred, many details remain in dispute. For example, the record is not clear on what Negrete’s job at Maloof Distributing was and what other employees’ jobs and supervisors were. Ultimately, the many issues in dispute combined leave the reason why Maloof Distributing terminated Negrete for the determination by the jury. A. NEGRETE’S GENERAL WORK HISTORY. Maloof Distributing employed Negrete from July 15, 2002 through December 17, 2004. See Defendant Maloof Distributing L.L.C.’s Motion for Summary Judgment (“Maloof Distributing’s summary judgment motion”) ¶ 1, at 3, filed Aug. 16, 2007 (Doc. 44). Bill James, Maloof Distributing’s area manager at the time of his retirement, hired Negrete. See Plaintiff Jose Negrete’s Response to “Defendant Maloof Distributing, L.L.C.’s Motion for Summary Judgment (“Negrete’s Response”), filed Sept. 17, 2007 (Doc. 52), Exhibit 6, Affidavit of Jose Negrete ¶ 4, at 1 (taken Aug. 26, 2007) (“Negrete Aff.”); Negrete’s Response, Exhibit 13, Deposition of Billy John James (taken Aug. 31, 2007) (“James Depo.”) at 7:6-10. Negrete contends that he was a driver for Maloof Distributing. See Negrete Aff. ¶ 8, at 2. Robert Bolin, supervisor of Maloof Distributing’s Clovis office, testified that Negrete was a driver/helper merchandiser. See Negrete’s Response, Exhibit 2, Deposition of Robert Bolin at 64:10-ll(taken June 5, 2007) (“Bolin Depo.”). Robert Leyva, Maloof Distributing’s branch manager, testified that Negrete was a merchandiser driver assistant. See Maloof Distributing’s summary judgment motion, Exhibit B, Deposition of Robert Leyva at 27:5-19 (taken June 5, 2007) (“Leyva Depo.”). Leyva testified that the merchandiser driver assistant job involved assisting the driver and, on occasion, delivering beer. See Leyva Depo. at 23:16-17. Leyva testified that Negrete’s job duties were different from the job duties of Joe Samuels, another Maloof Distributing employee. See Leyva Depo. at 23:18-20. Joe Samuels worked for Maloof Distributing for approximately two years. See Negrete’s Response, Exhibit 9, Affidavit of Joe Samuels ¶ 2, at l(taken Aug. 31, 2007) (“Samuels Aff.”). Negrete represents that James placed him on three months probation and told him that, after that period, he would become a permanent non-probationary employee. See Negrete Aff. ¶ 4, at 2. Negrete represents that James told him most Maloof Distributing employees were long term and had worked there for years. See Negrete Aff. ¶ 4, at 2. Negrete represents that James told him that Maloof Distributing fired non-probationary employees only for good cause or good reason. See Negrete Aff. ¶ 4, at 2; James Depo. at 14:11-15 (stating that it is general knowledge that non-probationary employees were fired only for good reason or good cause, but that he did not recall telling Negrete that information). Negrete signed and dated an acknowledgment on July 15, 2002, stating that he had received the Maloof Distributing Employee Handbook and agreed to read the handbook fully and completely. See Maloof Distributing’s summary judgment motion, Exhibit I, Acknowledgment (Doc. 44-11). That Acknowledgment provides: I have this date received a copy of The Maloof Companies Employee Handbook. I agree to fully and completely read the Employee Handbook, to request explanations of any area(s) which I do not understand so that I can reach a full and complete understanding of my conditions of employment, and to abide by the rules, regulations and policies contained therein. I further understand that as a matter of Company policy, all employment is offered to me at an “employment at will” basis, meaning that I may choose to terminate my employment at any time and for any reason without notice; and the Company is free to do the same as well. Id. Negrete also signed a document on July 15, 2002 entitled “Acknowledgment, Consent to Drug and Alcohol Screening Tests.” Maloof Distributing’s summary judgment motion, Exhibit J, Acknowledgment, Consent to Drug and Alcohol Screening Tests (Doc. 44-12). That document provides that, “as a condition of continued employment and in consideration of my continued employment, I hereby consent to cooperate in The Maloof Companies’ Drug and Alcohol Screening Program by providing urine and/or blood samples when requested to do so at anytime while on the job.” Id. That document also provided that Negrete would consent to “to release all medical test results to the management of The Maloof Companies to the extent necessary to establish a claim or defense in any controversy between me and the Maloof Companies.” Id. The Maloof Distributing Companies Employee Handbook further provided: “[I]f you refuse to provide a urine and/or blood sample within three (3) hours of a request, it will be considered as a voluntary resignation of your employment.” Maloof Distributing’s summary judgment motion, Exhibit E, Maloof Companies Employee Handbook (“Handbook”) at 22 (Doc. 44-7). Negrete contends that Maloof Distributing’s company policy requiring drug and alcohol screening did not include the taking of hair samples. See Handbook at 22. Negrete contends that he was forced to give a hair sample on June 26, 2003. See Negrete Aff. ¶ 17, at 4, Exhibit 1, Drug Testing Custody and Control Form (dated June 26, 2003) (indicating that head hair was taken from Negrete); James Depo. at 40:5-8. Leyva testified that he requested Negrete give a hair sample, because Negrete failed to get a urine test. See Leyva Depo. at 17:17-25. Leyva testified he grew suspicious, so when Negrete came to Roswell to the drug screening facility, Leyva instructed the drug screening facility to make Negrete provide a hair sample. See id. at 18:1-6. The test came back negative. See id. at 18:24-19:1. On July 13, 2002, Negrete signed a document dated June 1, 1993 entitled “Loss Control Policy Statement.” Maloof Distributing’s summary judgment motion, Exhibit K, “Loss Control Policy Statement” (Doc. 44-13). That Statement indicates that “[t]he objective of our loss control program has been to see that your work is performed without accidents or losses of any nature.” Id. It also asks Negrete to demonstrate his commitment to Maloof Distributing’s loss control program by signing the document. See id. Bolin took over as supervisor of the Maloof Distributing Clovis office in 2003. See Maloof Distributing’s summary judgment motion, Exhibit H, Deposition of Sergio Lopez (taken June 7, 2007) (“Lopez Depo.”) at 67:13-16. Bolin reports to Mauro Martinez and Leyva. See Maloof Distributing’s summary judgment motion, Exhibit F, Deposition of Robert Bolin at 13:8-9, 30:12-15 (taken June 5, 2007) (“Bolin Depo.”). Greg Brown and Jim Russell are the co-vice presidents of Maloof New Mexico. See Maloof Distributing’s summary judgment motion, Exhibit L, Deposition of Mike Faul at 42:13-14 (“Faul Depo.”). Leyva is the branch manager and reports to Martinez. See Leyva Depo. at 3:18-24. Martinez is the area/district supervisor overseeing Leyva. See id. Leyva testified that Negrete would see him about once a week, and that if Negrete had any issues, he could report them to Leyva. See id. at 24:2-4. Leyva was Negrete’s ultimate supervisor. See id. at 24:2-7. Mike Faul was Assistant Manager at the Maloof Distributing Clovis office. See Negrete Aff. ¶ 16, at 4. Faul testified that he never had any problems with Negrete’s work performance, and classified him as a “good,” “honest,” and “hardworking” employee. Faul Depo. at 16:21-17:4. Eddie Montoya, a Maloof Distributing employee, represents that Negrete “conducted himself with the highest work ethic and was an honest hard working employee loyal to Maloof.” Negrete’s Response, Exhibit 7, Affidavit of Eddie Montoya (executed Aug. 29, 2007) (“Montoya Aff.”) ¶ 3, at 1. Montoya worked for Maloof Distributing between 2002 and 2004. See Montoya Aff. ¶ 2, at 1. Sergio Lopez, a Maloof Distributing employee, agreed that Negrete was a good employee, had a good attitude, was a hard worker and honest. See Lopez Depo. at 61:5-13. Before December 17, 2004, Negrete did not receive any oral or written warnings or reprimands for any work violations. See Negrete Aff. ¶ 10, at 3; James Depo. at 17:14:20. Leyva testified that Negrete was a “fair” employee. Leyva Depo. at 24:20-21. Leyva testified he felt that Negrete never had a great attitude, and therefore he was not a great nor good employee. See id. at 24:24-25:2. Leyva testified that Negrete did not appear to be a team player and did not appear to care about the company. See Leyva Depo. at 25:4-6. Leyva testified that, to his knowledge, Negrete had never been coached by anyone. See Leyva Depo. at 26:19-23. B. HOTSHOTS. Maloof Distributing contends that on March 1, 2004, a memorandum was circulated from Greg Brown to all Maloof Distributing employees regarding a liquor license citation. See Maloof Distributing’s summary judgment motion, Exhibit D, Memorandum dated March 1, 2004 (“March 1, 2004 Memorandum”) (Doc. 44-6). That Memorandum stated: I need to make everyone aware of a situation that happened recently. There was a “special event” that was taking place in one of our markets. Because the special event was successful, a couple of our accounts were running low on beer. The sales group in charge of these accounts attempted to get an invoice run for these accounts on a Saturday. The sales group was unsuccessful in getting an invoice run. Even so, the sales group felt that it was extremely important to get the beer delivered so the account wouldn’t be out of stock for the weekend. The beer was delivered on that Saturday, February 28, 2004 without an invoice. We were cited by Alcohol and Gaming. We were cited by Alcohol and Gaming because delivering a product without an invoice is a violation of the Liquor Control Act. I wanted to reiterate to all Maloof employees that delivering product without an invoice is unacceptable. We do not break the law! I would like all Branch Managers to post this memo in your facility. In the future, a violation of this statute is grounds for termination. Id. The Handbook also informed employees driving company vehicles that they are expected to “[o]bey all city, county, state and federal regulations.” Handbook at 37. Negrete represents that he never saw the March 1, 2004 Memorandum. See Negrete Aff. ¶ 19, at 4. Negrete represents that neither Bolin nor any other Maloof Distributing employee discussed the March 1, 2004 Memorandum with him. See id. ¶ 19, at 4. Negrete represents that he never saw the memorandum posted on the bulletin board at the Maloof Distributing Clovis office. See id. ¶ 19, at 4. Montoya represents that he was not aware of the March 1, 2004 Memorandum. See Montoya Aff. ¶ 4, at 1. Montoya states that the March 1, 2004 Memorandum was not discussed by Montoya, Bolin, or any other Maloof Distributing employee. See id. He further represents that he never saw that memorandum posted on the bulletin board at the Maloof Clovis facility. See id. at 4-5. Lopez testified that he did not remember the March 1, 2004 Memorandum. See Negrete Response, Exhibit 5, Deposition of Sergio Lopez at 26:12-15. (taken June 7, 2007) (“Lopez Depo.”). Lopez could not remember if the March 1, 2004 Memorandum was discussed in the office or not. See Lopez Depo. at 28:5-6. Lopez never discussed the March 1, 2004 Memorandum or its requirements with Negrete. See Lopez Depo. at 30:4-5. Lopez testified he did not see the March 1, 2004 Memorandum before September of 2004. See Lopez Depo. at 89:11-13. Negrete contends that “hot shot” delivery of beers was a common practice at Maloof Distributing. Negrete Aff. ¶¶ 15, 38, at 3, 9; Samuels Aff. ¶¶ 7, 10-12, at 2; Bolin Depo. at 20:20-24 (indicating that delivery of beer with a handwritten invoice happened); Faul Depo. at 19:10-23:1 (explaining that there are “hot shot” deliveries); Leyva Depo. at 49:7-50:4 (indicating that “hot shot” was when delivery of beer was made on a handwritten invoice). “Hot shot” delivery is the unscheduled delivery of beer with or without an invoice. See Negrete Aff. ¶ 15, at 3. One “hot shot” delivery is when an account calls in and says it needs: this or that, or you realized on your own they needed extra beer, and if you would call the warehouse in Roswell, and the person that was making invoices — In other words, running the computer wasn’t there anymore, just the loaders were there, they would put some beer on the truck for that account. And when it arrived in Clovis, you would make an invoice — a handwritten invoice for that. Faul Depo. at 19:10-22. The other delivery would be to take beer from one account and put it over to another account that needs the beer, but no beer actually leaves the warehouse. See Faul Depo. at 22:21-23:2. In that instance, the Maloof Distributing employee writes a credit invoice for the first account, and writes a sale invoice for the second account, so that the two invoices match. See Faul Depo. at 22:12-22:22. Negrete contends that drivers kept blank invoices in their trucks for situations where beer would come on the semi-truck from the warehouse in Roswell without an invoice for delivery to a customer with a handwritten invoice. See Negrete’s Response at 1. Negrete contends that there is no Maloof Distributing policy about beer being in a company vehicle without an invoice. See Negrete Aff. ¶¶ 29, 38, at 7, 9, Montoya Aff. ¶ 4, at 1. Negrete contends that he never delivered beer without an invoice, and that all he did was load beer from one company truck to another company truck. See Negrete Aff. ¶ 26, at 6. Negrete represents that Faul instructed him to deliver beer without an invoice to businesses between March and December of 2004. See Negrete Aff. ¶ 16, at 4. Negrete contends that Faul specifically requested Negrete deliver beer without an invoice in November of 2004. See Negrete Aff. ¶ 23, at 6. Negrete represents that Faul told Negrete to take beer to customers so it could be added to the order the next day. See Negrete Aff. ¶ 16, at 4. Negrete represents that Faul told him to take ten cases of beer to a customer before a scheduled delivery the next day, and then add it to the delivery. See id. Negrete represents that he thought that if he refused to make “hot shot” deliveries, he would be fired. Id. Negrete also represents that he was required to follow James’ orders without question and that those instructions included delivering beer without an invoice to various businesses in Clovis, New Mexico. See Negrete Aff. ¶ 14, at 3. James admits that uninvoiced beer was delivered from Roswell on occasion. See James’ Depo. 22:10-17. James stated: “It was a mistake in the loading crew at night loading the truck. Maybe they would throw an extra case or a case that didn’t get counted would be on there.” Id. Samuels represents that he “had delivered ‘hot shot’ beer for Maloof Distributing both before and after March 1, 2004.” Samuels Aff. ¶ 10, at 2. Samuels represents that Leyva asked him to put beer on “the semi-truck without a computer generated invoice on more than one occasion.” Samuels Aff. ¶ 12, at 2. Negrete contends that James forced him to mix out-of-date beer with new beer. See Negrete Aff. ¶ 7, at 2. Negrete believed the practice was dishonest, but followed James’ instructions because he did not want to lose his job. See id. Lopez testified that he was required to buy out-of-date beer from the Roswell warehouse out of his own pocket. See Lopez’ Depo. at 84:19-24. C. THE DECEMBER INCIDENT. On December 17, 2004, David Velarde, an investigator for Maloof Distributing, was tailing the semi-truck that Samuels was driving from Roswell because Samuels’ sister-in-law had alleged that Samuels was giving beer to his wife on the way to Clovis. See Leyva Depo. at 29:4-30:7, 43:11-16. Velarde was communicating with Leyva via cellular telephone regarding his surveillance. See Negrete’s Response, Exhibit 10, Deposition of David Velarde at 34:12-14. (taken July 6, 2007) (“Velarde Depo.”). Velarde observed Samuels’ semi-truck, Negrete’s van, and Faul’s Chevy S-10 all parked at the Walgreen’s in Clovis. See id. at 26:22-24. Velarde then observed Negrete and Samuels park in the Veterans of Foreign Wars’ parking lot in Clovis. See id. at 27:17-18. Velarde testified that he saw Negrete and Samuels unload approximately twenty-five cases of beer into the back of Negrete’s van. See id. at 26:5, 28:14-17. Velarde testified that he called Leyva and advised Leyva of what he was observing. See id. at 29:17-19. Velarde testified that Leyva advised him that “it sounded to him like an unauthorized exchange of beer or unauthorized beer unloading.” Id. at 29:20-23. Velarde testified that he then followed Negrete to his home. See id. at 32:20-24. Velarde testified that Negrete parked the van, and then got into a blue Chevrolet pickup truck and drove off. See id. at 34:22-35:2. Velarde came to the conclusion at that point, after talking with Leyva, that the beer was being stolen. See id. at 35:18-20. Velarde called the police. See id. at 35:24-25. Velarde told Leyva that he witnessed an individual go to Negrete’s residence, briefly speak to Negrete’s wife, and then that individual proceeded to unload cases of beer from the Maloof Distributing van parked in front of Negrete’s residence. See id. at 68:25-69:12. Negrete contends that the beer loaded onto his company van at the Veterans of Foreign Wars on December 17, 2004 was “hot shot” beer. Negrete Aff. ¶¶ 26,-27, 29, at 6-7; Samuels Aff. ¶¶ 6-9 at 1-2. Negrete admitted to Velarde that he did not have an invoice for the beer that he was allegedly planning to deliver later in the day. See Negrete Depo. at 76:12-15, 119:11-12. Negrete contends, however, that he violated no company policy on December 17, 2004. See Negrete’s Response at 17. When confronted by Velarde, Negrete admitted he had beer in his van without an invoice. See Negrete Depo. at 76:23-25,119:10-12. Leyva testified that Negrete admitted that he was going to deliver the beer “hot shot.” Leyva Depo. at 80:3-6. Leyva testified Negrete could not identify the account to which he was planning to deliver the “hot shot” beer. Id. at 80:5-9. Leyva testified that Negrete told him that he did not plan to get an invoice before delivering the beer. See Leyva Depo. at 80:3-6. Negrete and Samuels represent that Samuels was supposed to call Negrete after Samuels returned to Roswell, and tell him where the beer was supposed to go. See Negrete Aff. ¶ 26, at 6; Samuels Aff. ¶ 13, at 2. Negrete represents that he parked the Maloof Distributing van in front of his house, and left to complete personal errands between 2:00 p.m. and 3:00 p.m. See Negrete Aff. ¶ 28, at 7. Negrete represents that, when he returned home, a tow-truck was in the front of his house, preparing to tow the company van. See id. Negrete represents that Velarde approached him and yelled at him, saying: “I saw everything you have stolen beer in the vehicle, did you have an invoice.” Id. Negrete represents that Velarde told him that he saw Negrete give beer to someone else. See id. Negrete represents that Velarde told him that he was going to have the Maloof Distributing van towed. See id. Negrete represents that he gave Velarde the key to the van. See id. Negrete represents that Velarde told him that he was going to call the police and have Negrete arrested for theft. See id. Negrete represents that he went back inside his house and telephoned Samuels. See id. Leyva testified that Velarde told him that he observed a person walk to the front door of Negrete’s house, speak with someone who he believed to be Negrete’s wife, and then that person proceeded to the back of the van, opened the doors, and offloaded approximately nine cases to his personal vehicle. See Leyva Depo. at 69:5-12. Negrete represents that some of the “hot shot” beer was stolen from Negrete’s van while it was parked at his home. Negrete Aff. ¶ 30, at 7. Negrete represents that one six-pack of Coors Light and thirty six-packs of Key Stone were stolen by the unknown thief. See Negrete Aff. ¶ 30, at 7. Negrete represents that the Maloof Distributing van’s doors did not properly lock. See Negrete Aff. ¶ 31, at 7. Negrete represents that he “was required to deliver beer in [his] own personal vehicle because the Maloof van was broken down.” Id. ¶ 31, at 7. Lopez testified that there was nothing in writing at Maloof Distributing of which he was aware that required vans to be locked during the day. See Lopez Depo. at 80:9-11. Third parties had stolen beer from Maloof Distributing trucks before December 17, 2004. See Negrete Aff. ¶¶ 18, at 4. Negrete represents that, in 2004, he “was unloading beer at Goober McCools in Portales, New Mexico when an unknown individual stopped and stole beer from the semi truck [he] was helping to unload.” Id. “[N]either [he] nor the semi-truck driver [were] reprimanded.” Id. See Negrete’s Response, Exhibit 11, Portales Police Department Report, at 3, dated May 21, 2004, filed Sept. 19, 2007 (Doc. 109-6) (stating that the victim was Maloof Corporation, that the driver parked at a Town & Country food store and unloaded some beer, and that, when he returned to Goobers, he discovered that he was short a 30 pack of beer, valued at approximately $11.95). If beer was stolen off of a truck, the drivers or deliverymen were to call the police immediately. See James’ Depo. at 40:15-18. Velarde testified that he called the police in December, 2004. See Velarde Depo. at 42:10. Velarde testified that he told the police that Negrete and Samuels took the beer without authorization. See id. at 43:5-13. Velarde testified he did not ask Negrete why Negrete did not have an invoice. See id. at 44:18-21. Velarde testified that Negrete denied stealing the beer. See id. at 44:15-17. Negrete contends that Velarde falsely accused him of removing beer from his company van into a pick-up truck. See Negrete’s Response at 39. Negrete represents that Velarde observed Negrete leave his home before the pick-up arrived and someone took beer from the company van. See id. Velarde testified that he saw Negrete leave in a black Ford F-150 and drive off. See Velarde Depo. at 38:19-24. Velarde testified that the driver of the pickup then began offloading cases of product from the van to the pickup. See Velarde Depo. at 39:16-19. Negrete contends that the Clovis Police Department contacted him for embezzlement. See Complaint ¶ 13, at 3. Negrete represents that he spent eight hours in jail. See Negrete Aff. ¶ 34, at 8. Negrete represents that the embezzlement charges were later dropped against him. See Negrete Aff. ¶ 33, at 8. Negrete contends that Velarde made false accusations to the Clovis Police that he had seen Negrete offload multiple cases of assorted beer into another vehicle. See Negrete’s Response, Exhibit 1, Clovis Police Department Incident Report, at 1-3 (dated Dec. 17, 2004) (“Clovis Incident Report”). In Velarde’s signed statement to the Clovis Police Department, Velarde states that he saw the driver of a pickup walk to the Maloof Distributing van, and offload beer and load it into the pickup. See Clovis Incident Report, at 16-17. Velarde reports that he confronted Negrete, who was standing to the rear of the van. See Clovis Incident Report at 17. Velarde reports that he introduced himself to Negrete and then demanded the keys to the van. See Clovis Incident Report at 17. Velarde testified at his deposition that he disagreed with the statement contained within the Clovis Incident Report that stated: “Then Mr. Velarde followed the van back to Mr. Negrete’s residence and observed Mr. Negrete off-load multiple cases of assorted beer into another vehicle.” Velarde Depo. at 51:23-52:9. On December 20, 2004, a Memorandum was circulated from Robert Leyva to Laura Schwebach, with copies to Russell, Martinez, Jose Benavidez, and Bolin. See Memorandum dated December 20, 2004 (“December 20, 2004 Memorandum”), filed Oct. 2, 2007 (Doc. 112-5). The subject of the December 20, 2004 Memorandum was the “Clovis Investigation.” Id. at 1. In that Memorandum, Leyva reports that he received an anonymous telephone call stating that Samuels was involved in embezzlement and selling of Maloof Distributing property — beer. See id. Leyva reports that he contacted Greg Brown, who then directed him to Mike Rzendian, who then had Velarde contact Leyva. See id. Leyva reports that Velarde then made plans to meet Leyva in Roswell on December 16. See id. Leyva reports: The following morning Mr. Velardez followed Mr. Samuels to all his deliveries where he saw him taking two cases of beer out of Chilies and put one case in the back of an alleged employee’s trunk and one in the back of his delivery trailer. When his paperwork was reviewed, there were no credits issued for that account. Mr. Velardez informed me of that transaction and I recommended that he continue to follow Mr. Samuels around to see what he did with that case of beer. The rest of the day, deliveries were made as normal. On the last stop, Mr. Velardez [sic] observed Mr. Samuels, Mr. Negrette [sic], and Mr. Faul make a delivery to Walgreen’s, the last stop on the list. The delivery appeared to go as normal, nothing seemed out of the ordinary at one point Mr. Velardez saw Mr. Faul glance into the delivery trailer. After the stop Mr. Velardez [sic] observed Mr. Samuels and Mr. Negrette [sic] pull behind the V.F.W. in Clovis where through a chain linked fence he observed them load a vast amount of beer into the company van Mr. Negrette [sic] had been driving. After conferring with me, we decided it would be best at that point to follow the van. Mr. Velardez [sic] observed Mr. Negrette [sic] drive the van home where he parked it and took off possibly to lunch. Because Mr. Velardez [sic] felt we needed someone from the company other than himself to approach Mr. Negrette [sic] and being that Mr. Faul was the only supervisor in Clovis and had glanced into the delivery truck, I decided to test Mr. Faul’s involvement. I asked Mr. Faul on two separate occasions to look into the vehicle to see if he would confirm that the beer was in fact there, but both times came up with an excuse as to why he could not glance into the vehicle with the last excuse being that the van simply just not there. Mr. Velardez [sic] confirmed that the van never moved from the spot in which it was in. During one more final attempt to get Mr. Faul to cooperate, Mr. Velardez [sic] called me and told me that someone in a Blue and Grey Dodge pickup arrived at Mr. Negrette’s [sic] residence and removed a large quantity of beer. At that point I instructed him to call the police and approach Mr. Negrette [sic]. I then instructed Mr. Faul that a security officer from the company was there and that he must immediately meet him at Mr. Negrette’s [sic] home. After hearing what Mr. Velardez [sic] had to say, the police arrested Mr. Negrette [sic] and filed a warrant for Mr. Samuels’ arrest. That evening I drove to Clovis where I put Mr. Faul under suspension pending the outcome of the investigation. The following Monday morning Jose Benavidez and I spoke with Joe Samuels where I asked him if he was aware of the situation in Clovis, he replied no. I then informed him that Mr. Negrette [sic] had been caught with un-invoiced beer at his residence and had been arrested. I then asked him if he hew [sic] where he may have gotten the beer and he said he had no idea, then he speculated that he may have possibly stolen it from one of the accounts when he leaves them there to finish putting up the load. I then asked him if he had given any hot shots to Mr. Negrette [sic] to deliver at a later time, he said no. I then explained to him that the company had a person doing surveillance and had witnessed him offloading beer from his truck into Mr. Negrette’s [sic] van and at this point he was under suspension pending the outcome of the investigation. Mr. Negrette [sic] claimed that the whole event was just a misunderstanding, that the beer was just a hot shot that had been sent out without an invoice. When he asked if that was the case why someone approached his home, spoke with his wife, and then opened the doors to the van where he offloaded the product onto his vehicle, he then proceeded to draw out a scenario where possibly one of Mr. Samuel’s acquaintances knowing that he would be out of town may have possessed a key given to him by Mr. Samuels gained entry to the van and offloaded product. Mr. Negrette [sic] made numerous attempts to try and explain what had happened, but none were credible or made any sense. At that point Mr. Russell terminated him and made it clear that the company would prosecute him to the fullest extent of the law. Later that evening we met with Mr. Samuels where he was also terminated. December 20, 2004 Memorandum at 1-2. Bolin testified that a meeting was held on December 20, 2004. See Bolin Depo. at 17:18-19. Bolin testified that the meeting was held at the Clovis office. See id. at 17:25-18:1. Bolin testified that Martinez, Leyva, Russell, Negrete, and himself were at the meeting. See id. at 17:20-22, 18:5-7. Bolin testified that Negrete “changed his story two or three times. He first said he didn’t know where the beer was supposed to go.” Id. at 18:25-19:4. Bolin testified that Negrete first denied knowing about the beer, then Negrete said he did not know where the beer was going, and lastly stated that Samuels was supposed to tell him later where the beer was supposed to go. See id. at 19:28-20:6. Bolin testified that he did not believe the decision to terminate Negrete had been made before the meeting. See id. at 18-21. Negrete contends that he was terminated on December 20, 2004. See Exhibit 3 to Negrete Aff., Maloof Companies Action Form (dated Dee. 20, 2004) (“Action Form”) (stating that Negrete was terminated for “not following company procedures and pending investigation by Clovis Sheriffs Department for 25+ cases of product not accounted for with no paperwork to support or explain product.”). Negrete contends that Russell told Leyva to tell him that he “was in serious problems, he didn’t know about [Negrete’s] citizenship, but [Negrete] was going to spend time in jail, and then they were going to probably send [him] back to Mexico.” Negrete Aff. ¶ 37, at 8. Negrete represents that he became a United States citizen in 1986. See Negrete Aff. ¶ 1, at 1. Negrete represents that Russell pointed his finger at Negrete’s face and told him that, if he would not “confess” to stealing the beer, Russell “was going to do everything in his power to have [Negrete] convicted and sent back to Mexico.” Negrete Aff. ¶ 37, at 9. Russell testified that he does not recall making that statement. See Russell Depo. at 16:16-19. Leyva testified he did not recall Russell telling Negrete that statement. See Leyva Depo. at 13:18-14:1. Bolin testified that Russell did not make that statement to Negrete. See Bolin Depo. at 33:23-34:2. Russell admits telling Negrete: “I’m going to do everything to prosecute you.” Russell Depo. at 19:1-3. Russell admits he told Negrete it was possible that Negrete may go to jail. See id. at 19:4-5. Russell admits he told Negrete he was fired. See id. at 19:14-15. Russell prepared the Action Form at the meeting when he fired Negrete. See id. at 20:2-8. Russell testified that he told Negrete at the meeting that, if he would admit his guilt, Russell would call the security officer to get the charges dismissed. See Russell Depo. at 30:19-21. Russell admits that part of the reason he terminated Negrete was that, in his opinion, Negrete had stolen or embezzled beer from Maloof Distributing. See id. at 35:2-7. Russell testified that it was the policy of Maloof Distributing as of December 20, 2004, that employees could be terminated only for good cause. See id. at 35:14-17. Russell testified that he believed he “absolutely” had good cause to terminate Negrete. See id. at 35:8-10. Russell testified that he was not happy when he found out that the criminal charges against Negrete had been dismissed, because he wanted to proceed with the prosecution of the theft and “have that in the records.” Russell Depo. at 33:24-34:3. Negrete contends he was not paid his two-weeks vacation time after his termination on December 20, 2007, in violation of Maloof Distributing’s written policies. See Negrete Aff. ¶ 41, at 9, Handbook, at 11. Negrete did not know that a white employee, Samuels, was terminated for the same incident as Negrete until after this lawsuit was filed. See Negrete Depo. at 79:2-5. Samuels represents that he worked as a driver for Maloof Distributing for approximately two years. See Samuels Aff. ¶ 2, at 1. Leyva testified that Negrete’s job entailed assisting the driver and, on occasion, delivering beer. See Leyva Depo. at 23:16-17. Leyva testified that Negrete’s job duties were different from Samuels’ job duties. See Leyva Depo. at 23:18-20. Samuels represents that Maloof Distributing fired him in December of 2004 for allegedly stealing beer. See Samuels Aff. ¶ 3, at 1. Samuels represents that he was never charged in a criminal complaint for stealing beer. See Samuels Aff. ¶ 17, at 3. Velarde, Leyva, and Edmund Opoza, Maloof Distributing employee, noted in their statements to Clovis Police that Samuels was the semi-truck driver involved in the incident. See Clovis Incident Report at 17, 19-20. The Criminal Complaint against Negrete for Fourth Degree Felony Embezzlement mentioned only Negrete. See Clovis Incident Report at 21-22. Negrete contends that Samuels had been involved in numerous workplace infractions. See Negrete’s Response at 15. Negrete contends that Samuels had been coached before his termination regarding sloppiness of work. See Leyva Depo. 21:25-22:22. James recalls problems with Samuels being sloppy in his person. See James Depo. at 27:8-12. Leyva testified that he was aware of Samuels notoriety for sloppiness. See Leyva Depo. at 19:11-14. Lopez represents that he complained to James and Bolin about Samuels’ sloppiness, but that neither supervisor did anything about his complaint. See Lopez’ Depo. at 69:15-70:21. The week before December 17, 2004, Leyva went to Samuels home to discuss some time off that Samuels had taken, because Leyva believed that Samuels had falsified the reason for his requested time off. See Leyva Depo. at 105:19-23. Leyva testified that Faul was a “co-conspirator” in the December 17, 2004 incident, but Maloof Distributing did not fire Faul. See id. at 64:22-65:2, 97:17-98:2; Exhibit 1 to Leyva Depo., Memorandum from David Velarde to Jim Russell at 2 (dated Dec. 20, 2004) (stating that Leyva and Velarde “came to the same conclusion that maybe Mike Faul was someway involved as a co-conspirator in this unauthorized activity.”). Velarde accused Faul of embezzlement, but Faul was never fired or prosecuted. See Clovis Incident Report, Voluntary Statement of Edmund K. Opoza. In Velarde’s opinion, Faul was involved in stealing beer. See Negrete’s Response, Exhibit 10, Deposition of David Velarde (taken July 5, 2007) (“Velarde Depo.”) at 36:24-37:9. Faul did not lose his job, but instead was demoted to salesman and received a cut in pay. See Faul Depo. at 59:15-19. Faul also testified, however, that his demotion did not result in him losing any money, because Maloof distributing compensated him for the pay cut in personal time off. See id. at 60:2-17. Although Leyva believed that someone in Roswell loaded the beer in question without an invoice, nobody in Roswell was fired. See Leyva Depo. at 97:20-22. Lopez testified that uninvoiced, out-of-date beer came from Roswell. See Lopez Depo. at 84:19-85:5. D. MALOOF DISTRIBUTING EMPLOYMENT POLICY ON DISCIPLINE/TERMINATION. Each Maloof Distributing employee undergoes a ninety-day probationary period. See Handbook at 8. Negrete contends that Maloof Distributing had a policy and practice of progressive discipline and “good cause” termination of its non-probationary employees. See Bolin Depo. at 15:2-17; Leyva Depo. at 11:3-16; Lopez Depo. at 53:4-55:12; James Depo. at 6:11-22, 7:11-16,14:11-15:2. Negrete also contends that the Handbook set out progressive discipline from “coaching action up to and including separation of employment.” Handbook at 30. James testified that most Maloof Distributing employees were long term and had worked for Maloof Distributing for years. See James’ Depo. at 14:24-15:2. Maloof Distributing has a “No Harassment Policy” which “prohibits racial, religious, or other harassment undertaken on any basis, which can include use of derogatory language, labels, jokes, or taunts based upon or making reference to that individual’s race, religion, or ethnic group, posting of offensive cartoons or drawings, or other actions taken against another individual because of that person’s race, religion, or ethnic group.” Handbook at 24. Maloof Distributing’s policy provided an internal complaint procedure for any employee raising a complaint of illegal harassment or violation of Maloof Distributing’s anti-discrimination or anti-harassment policy. See id. An employee was advised to first discuss the matter with his or her supervisor. See id. “Attempts will be made to resolve complaints informally by supervisory counseling whenever possible.” Id. If the supervisor was the cause of a complaint, or the employee did not feel comfortable discussing the complaint with the supervisor, or if the supervisor failed to resolve it, then the employee could make a complaint to the Human Resources Department. See id. at 24-25. “Negrete was to report work problems or difficulties first to his immediate supervisor Sergio Lopez, then Mike Faul and finally Bill James.” Negrete’s Response, at 13. See James’ Depo. at 17:7-13. Maloof Distributing contends that Negrete did not properly complain to his supervisor, Bolin. See Defendant Maloof Distributing, L.L.C.’s Reply to Plaintiffs Response to Defendant’s Motion for Summary Judgment (“Maloof Distributing’s Reply”), at 4-5, filed Oct. 2, 2007 (Doc. 112) (quoting Negrete Depo. at 16:3-7). E. SPECIFIC INSTANCES OF DISCRIMINATION. James testified that Negrete and Lopez were the only Hispanics at the Maloof Clovis office. See James’ Depo. at 30:13-17. James testified that all the other employees were white. See id. at 30:18-21. Negrete represents that he did not have a key to the building, while a white employee, who was hired after him, had a key. See Bolin Depo. at 54:17-24 (stating that Mark Caveat, an employee who started working after Negrete, may have had a key); Lopez Depo. at 44:17-25 (stating that Negrete may have mentioned not having a key, and he could have asked for one, but Lopez did not think he was going to be issued one and that managers issued keys and not everybody had a key); Negrete Aff. ¶ 12, at 3. Bolin testified that Caveat would need a key to get signs out of the office. See Bolin Depo. at 55:6-10. Bolin testified that Negrete also put up signs, but that Negrete never had a problem getting into the office or getting the signs. See id. at 55:11-3. Bolin testified that the only way to get into the office was with a key or if someone opened it for you. See id. at 55:24-56:2. Negrete represents that he was “forced to wait until someone came to open the office before entering.” Id. Negrete represents that he asked Bolin for a key, and Bolin said he was going to make a copy, but never did. See id. Negrete contends that he was hired as a driver before Samuels, but was paid fifty dollars less per week than Samuels. See Negrete Aff. ¶ 9, at 2-3, Samuels Aff. ¶ 2, at 1. Negrete contends that he was denied the opportunity to go to mandatory drivers meetings in Roswell. See Negrete Aff. ¶ 11, at 3. Negrete represents that Bolin told him that someone was needed to pull beer from the stores. See id. Negrete represents that other white drivers were allowed to go to the meeting. See id. Bolin denied telling Negrete that he should not go to drivers’ meetings in Albuquerque or Roswell. See Bolin Depo. at 16:14-16. Bolin also denies telling Negrete that he had to stay in Clovis to stock beer rather than go to a meeting. See Bolin Depo. at 17:6-9. Negrete represents that James forced him to mop the warehouse in Clovis, New Mexico. See Negrete Aff. ¶ 13, at 3. Negrete represents that another newly hired employee who was white was not forced to mop the floors. See id. Negrete represents that he never saw James require white employees to mop. See id. Negrete represents that, when the Maloof Distributing warehouse closed and they were moved to a smaller office, he was still required to vacuum the floor, but other white employees were not required to mop. See id. Negrete contends that Samuels repeatedly called him “a lazy Mexican.”. Negrete Aff. ¶20, at 4, Negrete’s Response, Affidavit of Joe Samuels ¶24, at 4(taken Aug. 31, 2007) (“Samuels’ Aff.”). Samuels called Negrete “a lazy Mexican” in front of James, Faul, and Bolin on a frequent and continuous basis during his employment with Maloof Distributing. Samuels’ Aff. ¶ 24, at 4. James, Faul, and Bolin never corrected Samuels, and “in fact laughed at these comments.” Id. Bolin testified that he never heard James make any of those statements to Negrete. See Bolin Depo. at 56:18-20. Negrete contends that James referred to him and other Hispanics as “punk.” Negrete Aff. ¶ 21, at 5. James admitted he probably referred to Negrete and other Hispanics working on Maloof Distributing as “punk.” James’ Depo. at 29:5-7. James “also would grab his genitals and say to [Negrete] ‘this salchicha [sausage in English] is for you.’ ” Id. James would also tell Negrete “ ‘hurry up Mexican’ and ‘come on Mexican, lets get it on Mexican.’ ” Id. Montoya represents that James told him the same comments. See Montoya Aff. ¶ 5, at 2. Montoya represents that James made those comments frequently after the time Negrete was hired in July of 2002 and continued almost daily until James retired from Maloof Distributing in October of 2004. See id. Montoya represents that James would raise his voice at Hispanics and “otherwise make demeaning and racial remarks towards Hispanics.” Id. Montoya represents that James treated white employees more favorably. See id. ¶ 6, at 2. Montoya represents that a white employee named Walter was hired after Negrete, but was immediately made a presales employee instead of being made a driver first before being promoted to presales. See id. Montoya also represents that Walter was given time off for his honeymoon within two weeks of starting at Maloof Distributing, despite the fact that Walter was still on probation. See id. Negrete reports that James’ comments were offensive to him, embarrassed him, and made it difficult for him to do his job. See Negrete Aff. ¶ 21, at 5. Negrete represents that he was afraid that if he complained too much that James would retaliate and Negrete would lose his job. See id. Negrete also represents that he was intimidated by James’ physical size, because James is approximately six feet five inches tall. See id. Negrete contends that neither Samuels nor James treated the white employees the way they treated him, called the white employees names or subjected them to obscene gesturing at their genitals. See id. ¶ 22, at 5. Montoya represents that James’ behavior made him hate to go to work. See Montoya Aff. ¶ 7, at 2. Montoya represents that Fait told him to ignore James. See id. Montoya represents that he did not complain further because he was intimidated by James’ demeanor and height. See id. Montoya represents that was afraid if he complained about James’ treatment that he would be fired. See id. Montoya represents that Faul told other employees to ignore this racial discrimination. See Montoya Aff. ¶ 7, at 2. Negrete represents that he was “discouraged from attempting to complain about racial harassment after being brushed aside by” James. Negrete Aff. ¶20, at 5. Negrete represents that Faul was present during the time that disparaging remarks were made about Negrete, but did nothing to stop the harassment. See Lopez Depo. at 78:25-79:1-10; Negrete Aff. ¶ 20, at 5. James retired in October of 2004, see Montoya Aff. ¶ 7, at 5, 2, and Bolin was an “indirect” supervisor of Negrete at the time of Negrete’s termination. See Bolin Depo. at 15:18-16. Bolin testified that he did not “deal with [Negrete] that much directly.” Bolin Depo. at 16:5-6. Samuels represents that Bolin was present when Samuels called Negrete “a lazy Mexican ... on a frequent and continuous basis.” Samuels Aff. ¶24, at 3. Samuels represents that James grabbed his genitals and said “ ‘this chorizo [sausage in English] is for you Mexican” in front of Bob Bolin on a repeated basis, but Mr. Bolin never did anything to correct Mr. James.” Samuels Aff. ¶ 22, at 4. Samuels represents that Bolin did not correct Samuels and “in fact laughed” at Samuels calling Negrete “a lazy Mexican.” Samuels Aff. ¶24, at 4. Maloof Distributing concedes that the use of derogatory terms when referring to Hispanics is against Maloof Distributing’s anti-discrimination and anti-harassment policies. See Handbook, at 18-19, 23-26, 31. PROCEDURAL BACKGROUND On April 26, 2006, Negrete filed his Complaint for Employment Discrimination, Violation of 42 U.S.C. § 1981, Breach of Express Contract, Breach of Implied Contract, and Prima Facie Tort against the Defendant, Maloof Distributing, L.L.C. (“Complaint”). See Doc. 1. On February 16, 2007, the parties filed the Initial Joint Status Report and Provisional Discovery Plan. See Initial Joint Status Report and Provisional Discovery Plan, at 1, filed Feb. 16, 2007 (Doc. 17). On pages 2-5, Negrete summarized his contentions: During the time that Mr. Negrete was employed by Defendant, Maloof discriminated against Mr. Negrete with respect to the terms, conditions and privileges of employment because of his race — Hispanic. This discrimination consisted of Defendant making unfounded complaints against Mr. Negrete. Mr. Negrete was at all times material [sic] qualified to do his job. During the time that Mr. Negrete was employed by Defendant, there was a policy of only terminating employees for good cause, and progressive discipline, Defendant failed to follow its own policies and procedures in terminating Mr. Negrete and thus breached its express and implied contractual obligations with him. Initial Joint Status Report and Provisional Discovery Plan, at 4-5. Maloof Distributing moved to dismiss Negrete’s Complaint on May 22, 2006. See Motion to Dismiss, filed May 22, 2006 (Doc. 4). Maloof Distributing argued that the Court should dismiss Negrete’s § 1981 claim for failing to exhaust with the Equal Employment Opportunity Commission and that the Court should decline to exercise supplementary jurisdiction over Negrete’s remaining claims. See Defendant’s Memorandum in Support of Motion to Dismiss, filed May 22, 2006 (Doc. 5). On October 17, 2006, the Court denied Maloof Distributing’s Motion to Dismiss, because Negrete did not need to exhaust administrative remedies to seek relief under § 1981 in federal court. See Memorandum Opinion and Order, filed Oct. 17, 2006 (Doc. 13). Maloof Distributing answered Negrete’s Complaint on November 17, 2006. See Answer to Complaint for Employment Discrimination, Violation of 42 U.S.C. § 1981, Breach of Express Contract, Breach of Implied Contract, and Prima Facie Tort, filed Nov. 17, 2006 (Doc. 15). Maloof Distributing served Negrete with its First Set of Interrogatories and Requests for Production on February 27, 2007. See Certificate of Service, filed Feb. 27, 2007 (Doc. 18). The following day, Negrete served Maloof Distributing with his First Set of Interrogatories and Requests for Production. See Certificate of Service, filed Feb. 28, 2007 (Doc. 19). On the same day that Negrete served Maloof Distributing with his first discovery requests, Maloof Distributing served its initial disclosures on Negrete. See Certificate of Service, filed Feb. 28, 2007 (Doc. 20). On March 22, 2007, Maloof Distributing served its Answers and Responses to Negrete’s First Set of Interrogatories and Requests for Production. See Certificate of Service, filed Mar. 22, 2007 (Doc. 23). On April 11, 2007, Negrete served Maloof Distributing his Answers to its First Set of Interrogatories and First Requests for Production. See Certificate of Service, filed Apr. 11, 2007 (Doc. 24). Negrete served his second Request for Production of Documents on June 11, 2007. See Certificate of Service, filed June 11, 2007 (Doc. 33). Maloof Distributing also submitted to Negrete its second set of production requests. See Certificate of Service, filed June 18, 2007 (Doc. 37). Maloof Distributing responded to Negrete’s second requests for production on July 10, 2007. See Certificate of Service, filed July 10, 2007 (Doc. 38). Maloof Distributing also supplemented its initial disclosures to Negrete. See Certificate of Service, filed July 12, 2007 (Doc. 39). Pursuant to the Court’s Scheduling Order, the termination date for discovery was set for July 16, 2007. See Scheduling Order, at 1, filed May 2, 2007 (Doc. 27) (“This deadline shall be construed to require that discovery be completed on or before the above date.”) (emphasis in the original). “Pretrial motions, other than discovery motions, shall be filed with the Court and served on opposing party by August 16, 2007.” Id. at 2. Negrete took the depositions of two witnesses after the expiration of the discovery deadline of July 16, 2007. See Defendant Maloof Distributing, L.L.C.’s Motion to Strike ¶ 2, at 1 filed Oct. 2, 2007 (Doc. 114). One witness’ deposition had been scheduled before the expiration of the deadline, but the witness asked to reschedule the deposition. See id. ¶ 3, at 1. The second witness, Joe Samuels, could not be located by either party until August of 2007. See id. On August 13, 2007, Negrete’s counsel emailed Maloof Distributing’s counsel and asked to identify two additional witnesses. See id. ¶ 5, at 1. Maloof Distributing was consulted and opposed the disclosure of additional witnesses. See id. ¶ 6, at 1. On August 16, 2007, Maloof Distributing moved for summary judgment and requests that the Court dismiss all Negrete’s claims with prejudice. See Defendant Maloof Distributing L.L.C.’s Motion for Summary Judgment (“Maloof Distributing summary judgment motion”), filed Aug. 16, 2007 (Doc. 44). To that motion, Maloof Distributing attached a memorandum and exhibits. See Maloof Distributing summary judgment motion, Defendant Maloof Distributing, L.L.C.’s Memorandum in Support of its Motion for Summary Judgment (“Maloof Distributing’s Memo.”), filed Aug. 16, 2007 (Doc. 44-2); Maloof Distributing summary judgment motion, Exhibits A through O. On August 31, 2007, Negrete submitted an unopposed motion for extension of time, see Unopposed Motion to Extend Time to File a Response Memorandum in Opposition to Defendant’s Motion for Summary Judgment, filed Aug. 31, 2007 (Doc. 46), which the Court granted. See Stipulated Order Extending Time to File a Response Memorandum in Opposition to Defendant’s Motion for Summary Judgment, filed Sept. 4, 2007 (Doc. 47). The parties submitted a request to the Court that Negrete be allowed to exceed the twenty-four page limit set forth in D.N.M.LR-Civ. 7.7, and that Negrete be allowed to attach exhibit pages in excess of the fifty pages allowed pursuant to D.N.M.LR-Civ. 10.5. See Stipulated Motion Relating to Page Numbers of Response Memorandum to Motion for Summary Judgment, filed Sept. 17, 2007 (Doc. 51). The Court entered a stipulated order allowing Negrete to submit a response memorandum to Maloof Distributing’s summary judgment motion that could be in excess of twenty-five pages, but not to exceed forty pages. See Stipulated Order Allowing Plaintiffs Response Memorandum Brief in Opposition to Defendant’s Memorandum in Support of its Motion for Summary Judgment, filed Sept. 25, 2007 (Doc. 111). Negrete submitted his Response to Maloof Distributing’s summary judgment motion on September 17, 2007. See Plaintiff Jose Negrete’s Response to “Defendant Maloof Distributing, L.L.C.’s Motion for Summary Judgment (“Negrete’s Response”), filed Sept. 17, 2007 (Doc. 52). Negrete also submitted a memorandum in support of his Response. See Plaintiff Jose Negrete’s Response Memorandum in Opposition to Defendant’s Memorandum in Support of Its Motion (“Negrete’s Response Memo.”), filed Sept. 17, 2007 (Docs. 53-103). Negrete also submitted exhibits in an appendix. See Appendix, filed Sept. 19, 2007 (Docs. 106-109). Negrete used an affidavit of one of the undisclosed witnesses to support his Response to Maloof Distributing’s summary judgment motion. See id. ¶ 7, at 2; Negrete’s Response, Exhibit 7, Affidavit of Eddie Montoya (executed Aug. 29, 2007) (Doc. 108-19). Maloof Distributing replied to Negrete’s Response on October 2, 2007. See Defendant Maloof Distributing, L.L.C.’s Reply to Plaintiffs Response to Defendant’s Motion for Summary Judgment (“Maloof Distributing’s Reply”), filed Oct. 2, 2007 (Doc. 112). On October 2, 2007, Maloof Distributing notified the Court that briefing was complete on Maloof Distributing’s summary judgment motion. See Notice of Completion, filed Oct. 2, 2007 (Doc. 113). Maloof Distributing contends that there is no dispute of material fact and summary judgment is appropriate as a matter of law on Negrete’s claim of intentional discrimination under 42 U.S.C. § 1981, because Negrete does not put forth direct evidence that the management team stated, either in verbal or written format, that Negrete was being terminated because of his race. See Maloof Distributing’s Memo., at 11. Maloof Distributing contends that Negrete’s termination did not stem from an intentionally discriminatory decision made by supervisors. See id. at 13. Maloof Distributing argues that, because Samuels, a white employee, was terminated for the same incident that led to Negrete’s termination, there is no inference of discrimination. See id. at 14. Maloof Distributing contends that Negrete had “a run-in with management because he failed to take a drug test when directly asked to do so by his supervisor, Leyva.” Id. at 14. Maloof Distributing contends that Negrete was in violation of the Handbook, which states that, if an employee fails to provide a urine and/or blood sample within three hours of a request, it will be considered a voluntary resignation of that employee’s employment. See Maloof Distributing’s Memo, at 14; Handbook at 22. “Simply put, Leyva gave Negrete a break.” Maloof Distributing’s Memo, at 14. Maloof Distributing admits that there is “no testimony or documentation indicating] the two employees’ termination was related in any way to their previous indiscretions.” Id. at 15. Maloof Distributing contends that it can proffer a nondiscriminatory reason for Negrete’s termination. See id. at 16. Maloof Distributing contends that Negrete was terminated for “not following company procedures and a pending investigation of embezzlement by the Clovis Police Department.” Id. at 16. Maloof Distributing contends that Negrete was terminated for violating state law and company policy. See Maloof Distributing’s Memo., at 17. Maloof Distributing contends that Negrete is unable to establish pretext because its stated reasons for terminating Negrete were that Negrete violated company policy, and that the Handbook specifically provides that, if a company policy is violated, an employee could be subject to termination. See Maloof Distributing’s Memo, at 19; Handbook at 30. Maloof Distributing contends that “[d]elivering un-invoiced beer is illegal and against both written and unwritten policy.” Id. at 19. Maloof Distributing argues that it is impossible for Negrete to show a nexus between the derogatory statements that James and Samuels made, and Maloof Distributing’s decision to terminate Negrete, because James retired before the “Maloof management team made the decision to terminate Negrete.” Id. at 20. Maloof Distributing contends that the management team that made the decision to terminate Negrete included two Hispanics: Martinez and Leyva. See id. at 20. Lastly, Maloof Distributing contends that Negrete is unable to prove his breach of implied contract claim because there was no implied contract between itself and Negrete. See id. at 9. Maloof Distributing contends that Negrete signed the Maloof Acknowledgment, Drug Screening Acknowledgment, and the Handbook, which all state that these documents do not constitute an express nor implied contract. See Maloof Distributing’s Memo., at 9. Maloof Distributing argues in the alternative, that even if the Court finds that a contract has been made, none of the documents guarantee Negrete a right to a job. See id. at 10. Maloof Distributing argues that it had no standard course of conduct establishing an implied contract, and, even if the Court finds that such a contract existed, Negrete was not damaged by the termination, because he enjoyed all the benefits, privileges, terms, and conditions of the contractual relationship with Maloof Distributing. See id. at 11. Negrete responds that Maloof Distributing failed to comply with local rules in its motion for summary judgment. See Negrete’s Response at 23. Negrete contends that Maloof Distributing’s Memorandum is defective because its references to depositions only reference a page number and do not refer the reader to specific line numbers. See id. at 25. He also contends that Maloof Distributing’s exhibits D, E, G, I, J, K, M, N, O, and P of its Memorandum should be stricken as deficient under rule 56 of the Federal Rules of Civil Procedure. See Negrete’s Response, at 24. Negrete contends that whether an implied contract existed between himself and Maloof Distributing is a question of fact that is best left for jury determination. See id. at 26-29. Negrete contends that there are disputed issues of material issues of fact between the parties regarding the effect of the Handbook on the employee relationship. See Negrete’s Response at 29. He also contends that there are disputed issues of material fact between the parties regarding Maloof Distributing’s policies and procedures regarding progressive discipline and good cause termination. See id. at 29. Negrete contends that he has adduced direct evidence of discrimination because he represents that Russell tol