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  • MARSHALL, LEO vs BUTLER ANIMAL HEALTH SUPPLY LLCOther Employment: Unlimited document preview
  • MARSHALL, LEO vs BUTLER ANIMAL HEALTH SUPPLY LLCOther Employment: Unlimited document preview
  • MARSHALL, LEO vs BUTLER ANIMAL HEALTH SUPPLY LLCOther Employment: Unlimited document preview
  • MARSHALL, LEO vs BUTLER ANIMAL HEALTH SUPPLY LLCOther Employment: Unlimited document preview
  • MARSHALL, LEO vs BUTLER ANIMAL HEALTH SUPPLY LLCOther Employment: Unlimited document preview
  • MARSHALL, LEO vs BUTLER ANIMAL HEALTH SUPPLY LLCOther Employment: Unlimited document preview
  • MARSHALL, LEO vs BUTLER ANIMAL HEALTH SUPPLY LLCOther Employment: Unlimited document preview
  • MARSHALL, LEO vs BUTLER ANIMAL HEALTH SUPPLY LLCOther Employment: Unlimited document preview
						
                                

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1 Marlene S. Muraco, Esq., Bar No. 154240 mmuraco@littler.com Electronically Filed 2 Angela Meakin, Esq., Bar No. 297169 12/17/2020 9:56 PM ameakin@littler.com Superior Court of California 3 LITTLER MENDELSON, P.C. County of Stanislaus 50 W. San Fernando, 7th Floor Clerk of the Court 4 San Jose, CA 95113.2303 Telephone: 408.998.4150 By: Kimberly Mean, Deputy 5 Fax No.: 408.288.5686 6 Attorneys for Defendants BUTLER ANIMAL HEALTH SUPPLY, LLC 7 HENRY SCHEIN, INC. 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF STANISLAUS 10 LEO MARSHALL, individually, and on Case No.: CV-19-000338 11 behalf of other members of the general public similarly situated; 12 Plaintiff, SEPARATE STATEMENT OF 13 UNDISPUTED MATERIAL FACTS IN v. SUPPORT OF DEFENDANT HENRY 14 SCHEIN, INC.’S MOTION FOR BUTLER ANIMAL HEALTH SUPPLY, SUMMARY JUDGMENT 15 LLC, an unknown business entity; HENRY SCHEIN ANIMAL HEALTH, an unknown 16 business entity; HENRY SCHEIN, INC., Date: March 4, 2021 an unknown business entity; and DOES 1 Time: 8:30 a.m. 17 through 100, inclusive, Dept.: 24 18 Defendants. Complaint Filed: January 18, 2019 Jury Trial Date: None Set 19 20 21 22 23 24 25 26 27 28 LITTLER MENDELSON, P.C. 50 W. San Fernando, 7th Floor Case No.: CV-19-000338 San Jose, CA 95113.2303 408.998.4150 SEPARATE STATEMENT ISO HENRY SCHEIN, INC.’S MOTION FOR SUMMARY JUDGMENT 1 Defendant Henry Schein, Inc. ("Defendant") respectfully submits the following Separate 2 Statement of Undisputed Material Facts and supporting evidence in support of its motion for 3 summary judgment, pursuant to California Code of Civil Procedure section 437c(b) and Rule of 4 Court 3.1350(d). The facts contain every essential element to entitle Defendant to judgment as a 5 matter of law. 6 ISSUE ONE: Defendant is entitled to judgment on Plaintiff’s claims because it was not 7 Plaintiff’s employer under the California Labor Code. 8 Defendant’s Undisputed Material Facts and Plaintiff's Response and 9 Supporting Evidence Supporting Evidence 10 1. In 1995, Plaintiff was hired by The Butler Company, a distributor of veterinary products. 11 Declaration of Tracie Walter (“Walter Decl.”), ¶ 14. 12 2. In July 2005, The Butler Company was merged with Burns 13 Veterinary Supply, Inc. to create Defendant Butler Animal 14 Health Supply, LLC (“BAHS”), which was in the business of selling and distributing pharmaceuticals, supplies, 15 equipment, and specialized pet foods to veterinary professionals nationwide. At that time, Plaintiff accepted 16 an offer of continued employment with BAHS as an Inside Sales Representative (“ISR”), a position he held 17 continuously until his employment was terminated in 18 November 2017. 19 Walter Decl., ¶¶ 3, 14, and Exhibit C thereto; Declaration of Linda Sorensen (“Sorensen Decl.”), ¶¶ 1, 3. 20 3. In or about January 2010, Henry Schein, Inc. (“HSI”) 21 acquired a 50.1% ownership interest in the holding company that owned BAHS (the “2010 Transaction”). 22 Following this transaction, BAHS began doing business as Butler Schein Animal Health. In 2013, BAHS changed its 23 dba to Henry Schein Animal Health. 24 Deposition of Lorelei McGlynn (“McGlynn Depo.”), p. 25 39:9-19, 41:14-42:11, 48:22-49:7 55:2-21, and Exhibit 4 thereto; Walter Decl., ¶¶ 1, 14, and Exhibit D thereto. 26 27 28 LITTLER MENDELSON, P.C. 50 W. San Fernando, 7th Floor 2. Case No. CV-19-000338 San Jose, CA 95113.2303 408.998.4150 SEPARATE STATEMENT ISO HENRY SCHEIN, INC.’S MOTION FOR SUMMARY JUDGMENT 1 Defendant’s Undisputed Material Facts and Plaintiff's Response and 2 Supporting Evidence Supporting Evidence 3 4. Prior to the 2010 Transaction, BAHS had many hundreds of employees, its own Human Resources Department, 4 employee handbook, employment practices and 5 procedures, compensation system and benefit plans. 6 Walter Decl., ¶ 4. 7 5. Following the 2010 Transaction, Plaintiff remained in his same job with the same compensation plan and benefits, 8 reporting to the same manager. 9 Walter Decl., ¶¶ 4, 15, and Exhibit E thereto; Sorensen 10 Decl., ¶¶ 3-4. 11 6. Throughout Plaintiff’s employment, BAHS and HSI maintained separate payroll systems and staff, separate 12 human resources staff, different benefit plans, different corporate headquarters (New York vs. Ohio), separate 13 timekeeping systems, and separate IT systems. 14 Declaration of Lorelei McGlynn (“McGlynn Decl.”), ¶ 3; 15 McGlynn Depo., p. 63:7-9, 66:3-16, 68:15-22; Wallace Decl., ¶¶ 11-12. 16 7. HSI maintains some payroll, human resources and other 17 policies with which it expects its subsidiaries to comply in 18 substance. In 2010, BAHS was provided with copies of those HSI policies (the “Key Policies”) and asked to 19 confirm whether the company’s existing policies on the stated topics were in compliance with the related HSI 20 policies. If so, no revision to the existing BAHS policy was needed. If not, BAHS was to explain why its policy 21 was not in compliance with HSI’s and explain any 22 business reason for the difference. If HSI agreed the substantive difference was for a valid business reason, no 23 change was required to BAHS’ existing policy. 24 McGlynn Depo., p. 113:21-114:13, 124:9-126:7, 128:3- 129:21; Walter Decl., ¶ 6. 25 26 27 28 LITTLER MENDELSON, P.C. 50 W. San Fernando, 7th Floor 3. Case No. CV-19-000338 San Jose, CA 95113.2303 408.998.4150 SEPARATE STATEMENT ISO HENRY SCHEIN, INC.’S MOTION FOR SUMMARY JUDGMENT 1 Defendant’s Undisputed Material Facts and Plaintiff's Response and 2 Supporting Evidence Supporting Evidence 3 8. As to the HR policies that HSI forwarded to BAHS in 2010, BAHS determined and advised HSI that its (BAHS’) 4 pre-existing policies (those in effect prior to the 2010 5 Transaction) were substantively consistent with the HSI policies. Accordingly, BAHS was not required to revise 6 those policies. 7 Walter Decl., ¶¶ 5-6, 8; McGlynn Depo., p. 146:9-147:11, and Exhibit 20 thereto. 8 9. HSI would sometimes send BAHS’ Vice-President of 9 Human Resources revisions HSI had made to its own 10 personnel policies and/or new policies it had implemented. The Vice-President would then forward the policy to a 11 member of her HR team with a request that the recipient(s) review and assess the new policy. If BAHS already had a 12 policy on the topic that made the same general points as 13 the HSI policy, BAHS would let HSI know and would not revise the BAHS policy. When BAHS did not have a 14 policy on the topic, it would adopt the HSI policy “as is,” modify its form or content to fit BAHS’ workplace/culture, 15 or write its own policy on the topic in a way that addressed the substantive points in the HSI policy. 16 17 Walter Decl., ¶ 7; McGlynn Depo., p. 128:3-130:16. 18 10. BAHS did not need to obtain HSI’s approval to implement policies on topics not addressed by the specified HSI 19 policies. 20 McGlynn Depo., p. 100:12-25, 101:20-24, 145:5-17, 145:5-146:8. 21 22 11. The BAHS Employee Handbook that was in effect prior to the 2010 Transaction was revised in early 2010 to reflect 23 the company’s new dba, stating it applied to employees of “Butler Animal Health Supply, LLC d/b/a/ Butler Schein 24 Animal Health.” Introductory portions of the handbook were updated to describe the 2010 Transaction, but there 25 were no substantive changes made to the 58 employment 26 policies set forth in the 123-page handbook. 27 Wallace Decl., ¶¶ 5, 15 and Exhibits A and D thereto. 28 LITTLER MENDELSON, P.C. 50 W. San Fernando, 7th Floor 4. Case No. CV-19-000338 San Jose, CA 95113.2303 408.998.4150 SEPARATE STATEMENT ISO HENRY SCHEIN, INC.’S MOTION FOR SUMMARY JUDGMENT 1 Defendant’s Undisputed Material Facts and Plaintiff's Response and 2 Supporting Evidence Supporting Evidence 3 12. After the 2010 handbook revision, BAHS’ Employee Handbook was next revised in November 2014 to 4 substantively modify three existing policies and add seven 5 more. The revised Handbook stated it applied to employees of “Butler Animal Health Supply, LLC dba 6 Henry Schein Animal Health.” There were no further revisions to the BAHS Handbook during Plaintiff’s 7 employment. 8 Walter Decl., ¶¶ 8-9, 16 and Exhibits B, E and F thereto. 9 13. The BAHS policies regarding “Work 10 Schedule/Breaks/Meals,” “Overtime & Timekeeping” and “Your Compensation” did not change between the date of 11 the 2010 Transaction and Plaintiff’s termination. 12 Walter Decl., ¶ 10. 13 14. In January 2009, Plaintiff signed a Telecommuting 14 Agreement that addressed the times he was expected to work and the number and timing of his meal and rest 15 breaks. The policies set forth in that Agreement did not change during the duration of Plaintiff’s employment. 16 Walters Decl., ¶ 10, and Exhibit C thereto; Sorensen Decl., 17 ¶ 3. 18 15. BAHS developed and provided training to its employees 19 on the company’s wage and hour policies without any involvement by HSI. 20 Walters Decl., ¶ 10. 21 22 23 24 25 26 27 28 LITTLER MENDELSON, P.C. 50 W. San Fernando, 7th Floor 5. Case No. CV-19-000338 San Jose, CA 95113.2303 408.998.4150 SEPARATE STATEMENT ISO HENRY SCHEIN, INC.’S MOTION FOR SUMMARY JUDGMENT 1 Defendant’s Undisputed Material Facts and Plaintiff's Response and 2 Supporting Evidence Supporting Evidence 3 16. Both before and after the 2010 Transaction, Plaintiff’s manager (a BAHS employee), was responsible for 4 overseeing Plaintiff’s day-to-day job performance, 5 preparing and delivering his annual performance evaluations, setting his annual compensation, and deciding 6 upon and administering any discipline, up to and including the termination of his employment. Plaintiff’s manager 7 sometimes consulted her manager or BAHS’ Human Resources personnel about Plaintiff, but those individuals 8 were also employed by BAHS. 9 Walters Decl., ¶¶ 11-12; Sorensen Decl., ¶¶ 3-5, and 10 Exhibits A-C thereto; McGlynn Depo., p. 90:12-91:16, 91:22-93:5, 96:22-24, 98:21-24, 106:21-107:4, 148:5- 11 149:7. 12 17. No employee of HSI ever gave Plaintiff’s manager any 13 suggestion, direction or input of any type about Plaintiff or any of the other BAHS employees she managed, or had 14 any involvement in any employment decision she made. 15 Sorensen Decl., ¶¶ 4-5, and Exhibits A-C thereto.. 16 18. The post-2010 performance evaluations in Plaintiff’s personnel file all bear the name and/or logo for “Butler 17 Schein Animal Health” or (later) “Henry Schein Animal 18 Health,” both of which were dbas for BSAH. 19 Walter Decl., ¶¶ 1, 17, and Exhibit F thereto 20 19. HSI did not provide Plaintiff with his wages or bonuses, did not determine his rate of pay, played no role in the 21 review or reimbursement of his work-related expenses, did 22 not determine how he would be classified for purposes of wage and hour laws, did not review or approve his 23 timecards, did not evaluate or review his performance, did not have the authority to hire or fire him, and did not 24 determine where or when he worked. 25 Wallace Decl., ¶ 12; McGlynn Decl., ¶¶ 3-5; Sorensen 26 Decl., ¶¶ 4-5; McGlynn Depo., p. 96:22-24. 27 28 LITTLER MENDELSON, P.C. 50 W. San Fernando, 7th Floor 6. Case No. CV-19-000338 San Jose, CA 95113.2303 408.998.4150 SEPARATE STATEMENT ISO HENRY SCHEIN, INC.’S MOTION FOR SUMMARY JUDGMENT 1 Defendant’s Undisputed Material Facts and Plaintiff's Response and 2 Supporting Evidence Supporting Evidence 3 20. HSI had no direct access to the time or payroll records of BAHS employees and was therefore unaware of when 4 Plaintiff was working and/or in what amount he was being 5 compensated. 6 McGlynn Decl., ¶ 4. 7 21. HSI neither maintained personnel file or other employment records for BAHS employees, nor had any direct access to 8 the records that BAHS maintained. 9 McGlynn Decl., ¶¶ 5-6; Declaration of Stephanie Levine 10 (“Levine Decl.”), ¶¶ 3-6, and Exhibits A and B thereto. 11 22. Between the 2010 Transaction and the date of his termination, Plaintiff’s wage statements and W-2 12 statements were all issued by BAHS. 13 Walter Decl., ¶ 18, and Exhibits G-H thereto. 14 23. The name “Henry Schein, Inc.” appears just once on 15 Plaintiff’s 300+ page personnel file, on a document entitled “Notice and Consent to Telephone Monitoring and 16 Recording” (“the Notice”) that is dated May 16, 2016. 17 Walter Decl., ¶ 13. 18 24. The Notice, which was created by someone in HR at HSI, 19 described a program by which HSI would monitor and record inbound telephone calls “for certain Team Schein 20 Members” that was never implemented as to Plaintiff or other BAHS employees. HSI never monitored, recorded or 21 reviewed a telephone call made or received by Plaintiff or any other BAHS employee and, in fact, had no ability to 22 do so. 23 McGlynn Depo., p. 108:11-109:7, 110:10-111:22; 24 Declaration of Ryan Smith (“Smith Decl.”), ¶¶ 4-8, and Exhibit A thereto; Declaration of Lorena Stufflet (“Stufflet 25 Decl.”), ¶¶ 3-5. 26 27 28 LITTLER MENDELSON, P.C. 50 W. San Fernando, 7th Floor 7. Case No. CV-19-000338 San Jose, CA 95113.2303 408.998.4150 SEPARATE STATEMENT ISO HENRY SCHEIN, INC.’S MOTION FOR SUMMARY JUDGMENT 1 ISSUE TWO: Alternatively, Defendant and Butler Animal Health Systems, LLC were 2 not an integrated enterprise during Plaintiff’s tenure with BAHS. 3 Defendant’s Undisputed Material Facts and Plaintiff's Response and 4 Supporting Evidence Supporting Evidence 5 25. In or about January 2010, Henry Schein, Inc. (“HSI”) 6 acquired a 50.1% ownership interest in Butler Animal Health Holding Company, LLC (the “Holding Company”), 7 the holding company that owned BAHS. 8 McGlynn Depo., p. 39:9-19, 41:14-42:11, 55:2-21, and Exhibit 4 thereto. 9 26. Following the 2010 Transaction, the Holding Company 10 initially had three officers, none of whom were officers or employees of HSI. Between May 12, 2011 and Plaintiff’s 11 termination in November 2017, the Holding Company had five or six officers at any given time, one of whom was an 12 officer of HSI, one of whom was a (non-officer) employee of HSI and three or four of whom were neither officers nor 13 employees of HSI. 14 McGlynn Decl., ¶ 7; McGlynn Depo., p. 55:2-58:23, 61:2- 12, 61:23-62:8. 15 27. Following the 2010 Transaction, BAHS began doing 16 business as Butler Schein Animal Health. In 2013, BAHS changed its dba to Henry Schein Animal Health. 17 McGlynn Depo., p. 48:22-49:7; Walter Decl., ¶¶ 1, 14, and 18 Exhibit D thereto 19 HSI and BAHS were headquartered in different states, had 28. different principal places of business and did not share any 20 corporate departments. 21 McGlynn Depo., p. 41:7-13, 63:7-9, 81:3-16. 22 HSI and BAHS each had its own employees – they did not 29. share staff, did not borrow employees from each other and 23 neither could assign an employee to work at the other entity. 24 McGlynn Depo., p. 66:22-68:14, 68:23-69:7, 69:8-18, 25 95:3-8, 95:18-22. 26 27 28 LITTLER MENDELSON, P.C. 50 W. San Fernando, 7th Floor 8. Case No. CV-19-000338 San Jose, CA 95113.2303 408.998.4150 SEPARATE STATEMENT ISO HENRY SCHEIN, INC.’S MOTION FOR SUMMARY JUDGMENT 1 Defendant’s Undisputed Material Facts and Plaintiff's Response and 2 Supporting Evidence Supporting Evidence 3 30. Prior to the 2010 Transaction, BAHS had many hundreds of employees, its own Human Resources Department, 4 employee handbook, employment practices and procedures, compensation system and benefit plans. 5 Walter Decl., ¶ 4 6 31. During the period in which HSI had an ownership interest 7 in BAHS, HSI maintained its own human resources staff and payroll staff, none of whom had responsibility for or 8 authority over BAHS employees. Likewise, BAHS maintained its own human resources staff and payroll staff, 9 none of whom had responsibility for or authority over HSI employees. 10 McGlynn Decl., ¶ 3; McGlynn Depo., p. 63:7-9, 66:3-16, 11 68:15-22; Wallace Decl., ¶¶ 11-12. . 12 32. HSI and BAHS had separate IT systems, separate leadership teams, separate infrastructures, separate bank 13 accounts, separate payroll systems, separate equity programs, separate commission plans for their salesforces, 14 separate timekeeping systems, different benefit plans, separate supply chains, different Intranets and different 15 email addresses. 16 McGlynn Decl., ¶¶ 3, 6; McGlynn Depo., p. 54:4-9, 66:3- 16, 68:15-22, 131:13-132:11, 144:14-18; Wallace Decl., ¶¶ 17 11-12. 18 33. HSI neither maintained personnel file or other employment records for BAHS employees, nor had any direct access to 19 the records that BAHS maintained. 20 McGlynn Decl., ¶¶ 5-6; Declaration of Stephanie Levine 21 (“Levine Decl.”), ¶¶ 3-6, and Exhibits A and B thereto. 22 23 24 25 26 27 28 LITTLER MENDELSON, P.C. 50 W. San Fernando, 7th Floor 9. Case No. CV-19-000338 San Jose, CA 95113.2303 408.998.4150 SEPARATE STATEMENT ISO HENRY SCHEIN, INC.’S MOTION FOR SUMMARY JUDGMENT 1 Defendant’s Undisputed Material Facts and Plaintiff's Response and 2 Supporting Evidence Supporting Evidence 3 34. HSI did not participate in the day-to-day administration of BAHS’ employment practices and procedures. Following 4 the 2010 Transaction, BAHS managers – with input from 5 BAHS’ HR Department – continued to be responsible for overseeing their subordinates’ performance, preparing and 6 delivering performance evaluations, adjusting employee compensation, administering discipline and making hire 7 and fire decisions. 8 Wallace Decl., ¶¶ 11-12; Sorensen Decl., ¶¶ 3-5, and 9 Exhibits A-C thereto; Walter Decl., ¶¶ 1, 17, and Exhibit F thereto; McGlynn Depo., p. 90:12-91:16, 91:22-93:5, 10 96:22-24, 98:21-24, 106:21-107:4, 148:5-149:7. 11 35. HSI did not provide BAHS employees with their wages or bonuses, did not determine their rate of pay, did not 12 determine how they would be classified for purposes of 13 wage and hour laws, did not review or approve their timecards, did not provide them with employment benefits, 14 did not direct them when or where to work, did not review their performance, and did not have the authority to hire or 15 fire them. 16 Wallace Decl., ¶ 12; McGlynn Decl., ¶ 4; McGlynn Depo., 17 p. 96:22-24. 18 36. HSI maintains some basic payroll, human resources and other policies with which it expects its subsidiaries to 19 comply in substance. In 2010, BAHS was provided with copies of those HSI policies and asked to confirm whether 20 the company’s existing policies on the stated topics were in compliance with the related HSI policies. If so, no 21 revision to the existing BAHS policy was needed. If not, 22 BAHS was to explain why its policy was not in compliance with HSI’s and explain any business reason for 23 the difference. If HSI agreed the substantive difference was for a valid business reason, no change was required to 24 BAHS’ existing policy. 25 McGlynn Depo., p. 113:21-114:13, 124:9-126:7, 128:3- 26 129:21; Walter Decl., ¶ 6. 27 28 LITTLER MENDELSON, P.C. 50 W. San Fernando, 7th Floor 10. Case No. CV-19-000338 San Jose, CA 95113.2303 408.998.4150 SEPARATE STATEMENT ISO HENRY SCHEIN, INC.’S MOTION FOR SUMMARY JUDGMENT 1 Defendant’s Undisputed Material Facts and Plaintiff's Response and 2 Supporting Evidence Supporting Evidence 3 37. As to the HR policies that HSI forwarded to BAHS in 2010, BAHS determined and advised HSI that its (BAHS’) 4 pre-existing policies (those in effect prior to the 2010 5 Transaction) were substantively consistent with the HSI policies. Accordingly, BAHS was not required to revise 6 those policies. 7 Walter Decl., ¶¶ 5-6, 8; McGlynn Depo., p. 146:9-147:11, and Exhibit 20 thereto. 8 38. HSI would sometimes send BAHS’ Vice-President of 9 Human Resources revisions HSI had made to its own 10 personnel policies and/or new policies it had implemented. The Vice-President would then forward the policy to a 11 member of her HR team with a request that the recipient(s) review and assess the new policy. If BAHS already had a 12 policy on the topic that made the same general points as 13 the HSI policy, BAHS would let HSI know and would not revise the BAHS policy. When BAHS did not have a 14 policy on the topic, it would adopt the HSI policy “as is,” modify its form or content to fit BAHS’ workplace/culture, 15 or write its own policy on the topic in a way that addressed the substantive points in the HSI policy. 16 17 Walter Decl., ¶ 7; McGlynn Depo., p. 128:3-130:16. 18 39. BAHS did not need to obtain HSI’s approval to implement policies on topics not addressed by the specified HSI 19 policies. 20 McGlynn Depo., p. 100:12-25, 101:20-24, 145:5-17, 145:5-146:8. 21 22 40. The BAHS Employee Handbook that was in effect prior to the 2010 Transaction was revised in early 2010 to reflect 23 the company’s new dba, stating it applied to employees of “Butler Animal Health Supply, LLC d/b/a/ Butler Schein 24 Animal Health.” Introductory portions of the handbook were updated to describe the 2010 Transaction, but there 25 were no substantive changes made to the 58 employment 26 policies set forth in the 123-page handbook. 27 Wallace Decl., ¶¶ 5, 15 and Exhibits A and D thereto. 28 LITTLER MENDELSON, P.C. 50 W. San Fernando, 7th Floor 11. Case No. CV-19-000338 San Jose, CA 95113.2303 408.998.4150 SEPARATE STATEMENT ISO HENRY SCHEIN, INC.’S MOTION FOR SUMMARY JUDGMENT 1 Defendant’s Undisputed Material Facts and Plaintiff's Response and 2 Supporting Evidence Supporting Evidence 3 41. After the 2010 handbook revision, BAHS’ Employee Handbook was next revised in November 2014 to 4 substantively modify three existing policies and add seven 5 more. The revised Handbook stated it applied to employees of “Butler Animal Health Supply, LLC dba 6 Henry Schein Animal Health.” There were no further revisions to the BAHS Handbook during Plaintiff’s 7 employment. 8 Walter Decl., ¶¶ 8-9, 16 and Exhibits B, E and F thereto. 9 42. BAHS developed and provided training to its employees 10 on the company’s wage and hour policies without any involvement by HSI. 11 Walters Decl., ¶ 10. 12 43. Between the 2010 Transaction and the date of his 13 termination, Plaintiff’s wage statements and W-2 14 statements were all issued by BAHS. 15 Walter Decl., ¶ 18, and Exhibits G-H thereto. 16 44. HSI and BAHS had separate telephone systems, and thus HSI had no ability to monitor, record or review telephone 17 calls made or received by BAHS employees. 18 Smith Decl., ¶¶ 4-8; Stufflet Decl., ¶¶ 3-5. 19 45. In February 2019, BAHS was spun off and merged with 20 Vets First Choice, at which point it began doing business as Covetrus North America. BAHS has not had an 21 ownership interest in BAHS since that time. 22 McGlynn Decl., ¶ 8. 23 24 25 26 27 28 LITTLER MENDELSON, P.C. 50 W. San Fernando, 7th Floor 12. Case No. CV-19-000338 San Jose, CA 95113.2303 408.998.4150 SEPARATE STATEMENT ISO HENRY SCHEIN, INC.’S MOTION FOR SUMMARY JUDGMENT 1 Dated: December 16, 2020 2 3 MARLENE S. MURACO ANGELA MEAKIN 4 LITTLER MENDELSON, P.C. Attorneys for Defendants 5 BUTLER ANIMAL HEALTH SUPPLY, LLC AND HENRY SCHEIN, INC. 6 7 4848-4206-5620.1 052225.1149 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LITTLER MENDELSON, P.C. 50 W. San Fernando, 7th Floor 13. Case No. CV-19-000338 San Jose, CA 95113.2303 408.998.4150 SEPARATE STATEMENT ISO HENRY SCHEIN, INC.’S MOTION FOR SUMMARY JUDGMENT