Preview
1 Kimberly Pallen (SBN 288605)
kimberly.pallen@withersworldwide.com
2 Christopher N. LaVigne (NYBN 4811121) ELECTRONICALLY
(admitted Pro Hac Vice)
3 christopher.lavigne@withersworldwide.com F I L E D
Superior Court of California,
Withers Bergman LLP County of San Francisco
4 505 Sansome Street, 2nd Floor
San Francisco, California 94111 08/06/2021
Clerk of the Court
5 Telephone: 415.872.3200 BY: EDNALEEN ALEGRE
Facsimile: 415.549 2480 Deputy Clerk
6
Attorneys for Defendants Payward, Inc., a
7 California Corporation d/b/a Payward; and Kaiser
Ng, an individual
8
9 SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 COUNTY OF SAN FRANCISCO
11
12 NATHAN PETER RUNYON, an individual, Case No. CGC-19-581099
13 Plaintiff, DEFENDANTS’ RESPONSE TO
PLAINTIFF’S SEPARATE STATEMENT
14 v. OF ADDITIONAL MATERIAL FACTS IN
SUPPORT OF OPPOSITION TO
15 PAYWARD, INC., a California Corporation DEFENDANTS’ MOTION FOR
d/b/a KRAKEN; and Kaiser NG, an SUMMARY ADJUDICATION
16 individual; and DOES 1 through 10, inclusive,
REDACTED
17 Defendants.
Filed Concurrently with: Memorandum of
18 Points and Authorities; Payward’s Evidentiary
Objections to the Declaration of Nathan Peter
19 Runyon In Support of Opposition to
Defendants’ Motion for Summary
20 Adjudication; and Reply Declaration of
Christopher N. LaVigne in Support of
21 Defendants’ Motion for Summary
Adjudication
22
Date: August 12, 2021
23 Time: 9:30 a.m.
Dept.: 302
24
The Hon. Ethan P. Schulman
25 November 26, 2019
Action Filed:
Trial Date: September 13, 2021
26
27 Pursuant to California Code of Civil Procedure section 437c(b)(3) and California Rule of
28 Court 3.1350(e), Defendant Payward, Inc. (“Payward”) and Kaiser Ng hereby submit this response
NY28571/0001-US-9717706/10
W ITHERS
B ERGMAN LLP DEFENDANTS’ RESPONSE TO PLAINTIFF’S SEPARATE STATEMENT OF ADDITIONAL MATERIAL
FACTS ISO OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY ADJUDICATION
1 to Plaintiff’s separate statement of additional material facts, together with references to supporting
2 evidence, in support of their Motion for Summary Adjudication. In accordance with the burden-
3 shifting test set forth in McDonnell Douglas Corp. v. Green, (1973) 411 U.S. 792, this separate
4 statement contains facts regarding Defendant Payward’s reasons for terminating Plaintiff Nathan
5 Peter Runyon.
6 PLAINTIFF’S STATEMENT OF ADDITIONAL MATERIAL FACTS
7 Undisputed Material Supporting Defendants’ Response Objections
Facts Evidence: and Supporting
8 Evidence
9 1. Runyon was formerly 1. Runyon Decl. ¶2 1. Disputed in part.
employed by Payward, Inc.
10 Payward as a (“Payward”)
Financial Analyst. On extended an offer of
11 March 14, 2018, employment to
Payward extended an Nathan Runyon
12 offer of employment (“Runyon”) on
to him for the March 13, 2018.
13 position of Financial
Analyst. He started Declaration of Kaiser Ng
14 work on March 26, dated May 27, 2021
2018. (“Ng Decl.”), ¶4, Ex. A.
15
2. Runyon reported to 2. Runyon Decl. ¶2 2. Disputed in part.
16 Ng, one of Payward’s Kaiser Ng (“Ng”)
founders and then its never declared or
17 Chief Financial testified he was a
Officer. “founder” of
18 Payward.
19 Ng Decl., ¶2.
20 3. Runyon has been 3. Runyon Decl. ¶3 3. Disputed to the
diagnosed with extent that this
21 depression. anxiety implies Ng or
and PTSD and is a anyone at Payward
22 Marine Corps knew Runyon was
wartime veteran. or claimed to be
23 disabled or to have
suffered from the
24 referenced medical
conditions.
25
Reply Declaration of
26 Christopher LaVigne
(“LaVigne Reply
27 Decl.”), Ex. 1
(Deposition Transcript
28 of Kaiser Ng dated July
NY28571/0001-US-9717706/10 2
W ITHERS
B ERGMAN LLP DEFENDANTS’ RESPONSE TO PLAINTIFF’S SEPARATE STATEMENT OF ADDITIONAL MATERIAL
FACTS ISO OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY ADJUDICATION
1 Undisputed Material Supporting Defendants’ Response Objections
Facts Evidence: and Supporting
2 Evidence
3 20, 2021 (“Ng Tr.”) at
231:3-8).
4
4. During March 2019, 4. Runyon Decl. ¶4. 4. Disputed. Runyon
5 Payward updated its See also, Ng edited the
Human Resources Dep. Tr.(July 21, BambooHR
6 software system to 2021) 221: 7-25, program to say:
Bamboo HRIS. 222: 1-13. Ex. “Disabled Veteran,”
7 Runyon set up his QQ, Bate Nos. “Armed Services
account and added 7236-7239, Medal Veteran,” and
8 his wartime veteran showing “Active Duty
status, including his Runyon’s Wartime or
9 military service Bamboo account Campaign Badge
awards and disabled status as disabled Veteran.”
10 veteran status. veteran.
LaVigne Reply Decl.,
11 Ex. 5 (PAYWARD
7236).
12
5. Around the first week 5. Runyon Decl. ¶4 5. Disputed. Ng does
13 of July 2019, Runyon not recall Runyon
was at the office telling him that “it
14 working late and Ng was great that
asked Runyon if he Payward collected
15 wanted a beer. The the diversity
office keeps a regular information in
16 stock of beer and Bamboo and maybe
liquor at the office. they could include it
17 Runyon agreed to in the investor
have a beer while he update deck that he
18 was doing some work helped to create.” In
at his desk. During a addition, Ng
19 brief conversation, testified that he did
Runyon told Ng it not have a
20 was great that conversation with
Payward collected the Runyon about
21 diversity information Runyon’s veteran
in Bamboo and status.
22 maybe they could
include it in the “Q. So the allegations
23 investor update deck that Mr. Runyon have
that he helped to made about you having a
24 create. conversation with him
about his veteran status,
25 those conversations did
not occur? A. No. The
26 only time when Pete and
I talked about him
27 working for Marines is
during his interview
28 when he told me he was
NY28571/0001-US-9717706/10 3
W ITHERS
B ERGMAN LLP DEFENDANTS’ RESPONSE TO PLAINTIFF’S SEPARATE STATEMENT OF ADDITIONAL MATERIAL
FACTS ISO OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY ADJUDICATION
1 Undisputed Material Supporting Defendants’ Response Objections
Facts Evidence: and Supporting
2 Evidence
3 a finance manager... But,
no, we didn’t talk about
4 that after he started
working for Payward.”
5
Ng Decl., ¶46; LaVigne
6 Reply Decl., Ex. 1 (Ng
Tr., 222:14-22).
7
6. Ng then mentioned 6. Runyon Decl. ¶4 6. Disputed. Ng does
8 he saw Runyon’s not recall this
disabled veteran conversation having
9 status in Bamboo in a occurred and does
surprised tone “not recall ever
10 unaware that Runyon knowing that Mr.
was a disabled Runyon is disabled.
11 veteran. Runyon [Mr. Ng does] not
confirmed he was recall ever
12 disabled; Ng laughed reviewing Mr.
and said: “You don’t Runyon’s
13 look disabled.” information in
Runyon walked away BambooHR, the
14 and went to the Company’s HR
restroom. Runyon software.” In
15 was offended by the addition, Ng
mocking tone and testified that he did
16 statement as to both not have a
his status as a veteran conversation with
17 and his disability. Runyon about
Runyon’s veteran
18 status.
19 “Q. So the allegations
that Mr. Runyon have
20 made about you having a
conversation with him
21 about his veteran status,
those conversations did
22 not occur? A. No. The
only time when Pete and
23 I talked about him
working for Marines is
24 during his interview
when he told me he was
25 a finance manager... But,
no, we didn’t talk about
26 that after he started
working for Payward.”
27
Ng Decl., ¶47-48;
28 LaVigne Reply Decl.,
NY28571/0001-US-9717706/10 4
W ITHERS
B ERGMAN LLP DEFENDANTS’ RESPONSE TO PLAINTIFF’S SEPARATE STATEMENT OF ADDITIONAL MATERIAL
FACTS ISO OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY ADJUDICATION
1 Undisputed Material Supporting Defendants’ Response Objections
Facts Evidence: and Supporting
2 Evidence
3 Ex. 1 (Ng Tr., 221:6-
223:4 and 231:3-5).
4
7. This was not the first 7. Runyon Decl. ¶5 7. Undisputed, but See Payward’s
5 time someone at the immaterial per Objections to the
office had made an California Rule of Declaration of
6 offensive statement Court (“CRC”) Nathan Peter
about Runyon’s 3.1350(f) (“The Runyon in Support
7 veteran status. Once separate statement of Opposition to
in a meeting with the should include only Defendants’
8 Director of material facts and Motion for
Recruiting and the not any facts that are Summary
9 Legal Administrator, not pertinent to the Adjudication
the Director or disposition of the (“Objection”) No.
10 Recruiting asked motion.”), and 1.
Runyon if, during his irrelevant to the
11 time in the Marines Motion for
and overseas, he had Summary
12 ever killed anyone. Adjudication
Runyon, once again (“Mot.”), especially
13 shocked and severely given that Runyon
offended, responded has withdrawn his
14 that her question was veteran status
inappropriate. harassment claims.
15 In addition, Runyon
testified that Ng was
16 not present at the
meeting where a
17 Payward employee
purportedly asked if
18 Plaintiff had killed
anyone. Runyon
19 also testified that, at
the meeting where a
20 Payward employee
purportedly asked if
21 Runyon had killed
anyone, no other
22 questions or
comments were
23 made regarding his
veteran status.
24
LaVigne Reply Decl.,
25 Ex. 1 (Ng Tr., 221:6-
223:4 and 231:3-5); Ex.
26 3 (Deposition Transcript
of Nathan Peter Runyon
27 dated May 13, 2021
28
NY28571/0001-US-9717706/10 5
W ITHERS
B ERGMAN LLP DEFENDANTS’ RESPONSE TO PLAINTIFF’S SEPARATE STATEMENT OF ADDITIONAL MATERIAL
FACTS ISO OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY ADJUDICATION
1 Undisputed Material Supporting Defendants’ Response Objections
Facts Evidence: and Supporting
2 Evidence
3 (“Runyon May Tr.”) at
322:23-324:7).
4
8. Over the course of his 8. Runyon Decl. ¶6 8. Disputed. Ng did See Objection No.
5 employment, Ng not verbally attack 2.
treated Runyon more Runyon nor did he
6 harshly than any yell at Runyon or
other Payward become angry with
7 employee that Runyon. Further,
worked under him. this fact is
8 Ng would frequently immaterial per CRC
get angry, yell, lose 3.1350(f) (“The
9 his temper and separate statement
verbally attack should include only
10 Runyon. material facts and
not any facts that are
11 not pertinent to the
disposition of the
12 motion.”), as
Runyon’s
13 harassment claims
have been dropped
14 and his veteran
status is no longer at
15 issue.
16 Ng Decl., ¶¶49-50.
17 9. Runyon tried to bring 9. Runyon Decl. ¶7 9. Disputed. Ng did
this issue to Ng’s not verbally attack
18 attention by Runyon nor did he
explaining that Ng yell at Runyon or
19 yelled at and became become angry with
angry with him more Runyon. Further,
20 than anyone else at this fact is
work. Ng responded immaterial per CRC
21 that he thought 3.1350(f) (“The
Runyon could handle separate statement
22 it because of his should include only
military training and material facts and
23 background. not any facts that are
not pertinent to the
24 disposition of the
motion.”), as
25 Runyon’s
harassment claims
26 have been dropped
and his veteran
27 status is no longer at
issue.
28
NY28571/0001-US-9717706/10 6
W ITHERS
B ERGMAN LLP DEFENDANTS’ RESPONSE TO PLAINTIFF’S SEPARATE STATEMENT OF ADDITIONAL MATERIAL
FACTS ISO OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY ADJUDICATION
1 Undisputed Material Supporting Defendants’ Response Objections
Facts Evidence: and Supporting
2 Evidence
3 Ng Decl., ¶¶49-50.
4 10. The yelling and 10. Runyon Decl. ¶6 10. Disputed. Ng did
verbal attacks not verbally attack
5 continued to Runyon nor did he
Runyon’s dismay. On yell at Runyon or
6 numerous occasions become angry with
after Ng would Runyon. Further,
7 verbally attack this fact is
Runyon, Runyon immaterial per CRC
8 would remind him 3.1350(f) (“The
that he was the only separate statement
9 one on the team that should include only
he could talk to in material facts and
10 this way because he not any facts that are
would not cry or get not pertinent to the
11 upset given his time disposition of the
served as a Marine motion.”), as
12 and as such, could Runyon’s
withstand this type of harassment claims
13 treatment. Runyon have been dropped
explained that, and his veteran
14 nevertheless, just status is no longer at
because he did not issue.
15 cry did not mean that
Ng’s treatment did Ng Decl., ¶¶49-50.
16 not bother him. Ng
continued to verbally
17 harass and attack
Runyon because of
18 his wartime veteran
status.
19
11. Ng was openly 11. Runyon Decl. ¶7 11. Disputed. Ng does See Objection No.
20 hostile and not recall Runyon 3.
antagonistic to asking to take
21 Runyon’s repeated medical leave. In
requests for a August of 2019, Ng
22 reasonable accommo- understood Runyon
dation for his wanted time off to
23 disabilities/ medical go on vacation, not
condition. for medical leave.
24 Indeed, Runyon’s
testimony confirms
25 that he was asking
for time off to take a
26 vacation, not for a
medical leave:
27
“So by working from
28 home, what that would
NY28571/0001-US-9717706/10 7
W ITHERS
B ERGMAN LLP DEFENDANTS’ RESPONSE TO PLAINTIFF’S SEPARATE STATEMENT OF ADDITIONAL MATERIAL
FACTS ISO OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY ADJUDICATION
1 Undisputed Material Supporting Defendants’ Response Objections
Facts Evidence: and Supporting
2 Evidence
3 do is kind of make me
less accessible to the
4 team. So if they did need
me, I was still available
5 to come in. it’s kind of
like a transition period
6 toward taking a
vacation.”
7
Ng Decl., ¶64; LaVigne
8 Reply Decl., Ex. 1 (Ng
Tr., 223:13-224:1 and
9 231:6-8); Ex. 3 (Runyon
May Tr., at 502:4-
10 503:14).
11 12. Runyon repeatedly 12. Runyon Decl. ¶8 12. Disputed. Ng does See Objection No.
requested a “not recall ever 4.
12 reasonable knowing that Mr.
accommodation for Runyon is disabled.
13 his anxiety, [Mr. Ng does] not
depression and PTSD recall ever
14 in the form of taking reviewing Mr.
paid time off from Runyon’s
15 work. information in
BambooHR, the
16 Company’s HR
software.” In
17 addition, Ng does
not recall Runyon
18 asking to take
medical leave. In
19 August of 2019, Ng
understood Runyon
20 wanted time off to
go on vacation, not
21 for medical leave.
Indeed, Runyon’s
22 testimony confirms
that he was asking
23 for time off to take a
vacation, not for a
24 medical leave:
25 “So by working from
home, what that would
26 do is kind of make me
less accessible to the
27 team. So if they did need
me, I was still available
28 to come in. it’s kind of
NY28571/0001-US-9717706/10 8
W ITHERS
B ERGMAN LLP DEFENDANTS’ RESPONSE TO PLAINTIFF’S SEPARATE STATEMENT OF ADDITIONAL MATERIAL
FACTS ISO OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY ADJUDICATION
1 Undisputed Material Supporting Defendants’ Response Objections
Facts Evidence: and Supporting
2 Evidence
3 like a transition period
toward taking a
4 vacation.”
5 Ng Decl., ¶46, 64;
LaVigne Reply Decl.,
6 Ex. 1 (Ng Tr., 221:6:13-
224:1 and 231:3-8); Ex.
7 3 (Runyon May Tr., at
502:4-503:14).
8
13. Ng repeatedly said 13. Runyon Decl. ¶8 Disputed. Ng does not See Objection No.
9 that Runyon could recall Runyon asking to 4.
take leave but then, take medical leave.
10 when the time came Runyon never made any
for him to do so, Ng request to Ng for an
11 postponed Runyon’s accommodation based
leave so that he could on a disability or a
12 complete more work medical issue, or to not
and, as noted below, receive emails or
13 imposed messages after office
requirements on hours. Ng does “not
14 Runyon that seriously recall ever knowing that
inferred with his Mr. Runyon is disabled.
15 ability to sleep and, [Mr. Ng does] not recall
as a result, ever reviewing Mr.
16 exacerbated his Runyon’s information in
anxiety, depression BambooHR, the
17 and PTSD. Company’s HR
software.” Runyon never
18 told Ng that Runyon was
disabled. In August of
19 2019, Ng understood
Runyon wanted time off
20 to go on vacation, not for
medical leave. Indeed,
21 Runyon’s testimony
confirms that he was
22 asking for time off to
take a vacation, not for a
Preview
1 Kimberly Pallen (SBN 288605) kimberly.pallen@withersworldwide.com 2 Christopher N. LaVigne (NYBN 4811121) ELECTRONICALLY (admitted Pro Hac Vice) 3 christopher.lavigne@withersworldwide.com F I L E D Superior Court of California, Withers Bergman LLP County of San Francisco 4 505 Sansome Street, 2nd Floor San Francisco, California 94111 08/06/2021 Clerk of the Court 5 Telephone: 415.872.3200 BY: EDNALEEN ALEGRE Facsimile: 415.549 2480 Deputy Clerk 6 Attorneys for Defendants Payward, Inc., a 7 California Corporation d/b/a Payward; and Kaiser Ng, an individual 8 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 COUNTY OF SAN FRANCISCO 11 12 NATHAN PETER RUNYON, an individual, Case No. CGC-19-581099 13 Plaintiff, DEFENDANTS’ RESPONSE TO PLAINTIFF’S SEPARATE STATEMENT 14 v. OF ADDITIONAL MATERIAL FACTS IN SUPPORT OF OPPOSITION TO 15 PAYWARD, INC., a California Corporation DEFENDANTS’ MOTION FOR d/b/a KRAKEN; and Kaiser NG, an SUMMARY ADJUDICATION 16 individual; and DOES 1 through 10, inclusive, REDACTED 17 Defendants. Filed Concurrently with: Memorandum of 18 Points and Authorities; Payward’s Evidentiary Objections to the Declaration of Nathan Peter 19 Runyon In Support of Opposition to Defendants’ Motion for Summary 20 Adjudication; and Reply Declaration of Christopher N. LaVigne in Support of 21 Defendants’ Motion for Summary Adjudication 22 Date: August 12, 2021 23 Time: 9:30 a.m. Dept.: 302 24 The Hon. Ethan P. Schulman 25 November 26, 2019 Action Filed: Trial Date: September 13, 2021 26 27 Pursuant to California Code of Civil Procedure section 437c(b)(3) and California Rule of 28 Court 3.1350(e), Defendant Payward, Inc. (“Payward”) and Kaiser Ng hereby submit this response NY28571/0001-US-9717706/10 W ITHERS B ERGMAN LLP DEFENDANTS’ RESPONSE TO PLAINTIFF’S SEPARATE STATEMENT OF ADDITIONAL MATERIAL FACTS ISO OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY ADJUDICATION 1 to Plaintiff’s separate statement of additional material facts, together with references to supporting 2 evidence, in support of their Motion for Summary Adjudication. In accordance with the burden- 3 shifting test set forth in McDonnell Douglas Corp. v. Green, (1973) 411 U.S. 792, this separate 4 statement contains facts regarding Defendant Payward’s reasons for terminating Plaintiff Nathan 5 Peter Runyon. 6 PLAINTIFF’S STATEMENT OF ADDITIONAL MATERIAL FACTS 7 Undisputed Material Supporting Defendants’ Response Objections Facts Evidence: and Supporting 8 Evidence 9 1. Runyon was formerly 1. Runyon Decl. ¶2 1. Disputed in part. employed by Payward, Inc. 10 Payward as a (“Payward”) Financial Analyst. On extended an offer of 11 March 14, 2018, employment to Payward extended an Nathan Runyon 12 offer of employment (“Runyon”) on to him for the March 13, 2018. 13 position of Financial Analyst. He started Declaration of Kaiser Ng 14 work on March 26, dated May 27, 2021 2018. (“Ng Decl.”), ¶4, Ex. A. 15 2. Runyon reported to 2. Runyon Decl. ¶2 2. Disputed in part. 16 Ng, one of Payward’s Kaiser Ng (“Ng”) founders and then its never declared or 17 Chief Financial testified he was a Officer. “founder” of 18 Payward. 19 Ng Decl., ¶2. 20 3. Runyon has been 3. Runyon Decl. ¶3 3. Disputed to the diagnosed with extent that this 21 depression. anxiety implies Ng or and PTSD and is a anyone at Payward 22 Marine Corps knew Runyon was wartime veteran. or claimed to be 23 disabled or to have suffered from the 24 referenced medical conditions. 25 Reply Declaration of 26 Christopher LaVigne (“LaVigne Reply 27 Decl.”), Ex. 1 (Deposition Transcript 28 of Kaiser Ng dated July NY28571/0001-US-9717706/10 2 W ITHERS B ERGMAN LLP DEFENDANTS’ RESPONSE TO PLAINTIFF’S SEPARATE STATEMENT OF ADDITIONAL MATERIAL FACTS ISO OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY ADJUDICATION 1 Undisputed Material Supporting Defendants’ Response Objections Facts Evidence: and Supporting 2 Evidence 3 20, 2021 (“Ng Tr.”) at 231:3-8). 4 4. During March 2019, 4. Runyon Decl. ¶4. 4. Disputed. Runyon 5 Payward updated its See also, Ng edited the Human Resources Dep. Tr.(July 21, BambooHR 6 software system to 2021) 221: 7-25, program to say: Bamboo HRIS. 222: 1-13. Ex. “Disabled Veteran,” 7 Runyon set up his QQ, Bate Nos. “Armed Services account and added 7236-7239, Medal Veteran,” and 8 his wartime veteran showing “Active Duty status, including his Runyon’s Wartime or 9 military service Bamboo account Campaign Badge awards and disabled status as disabled Veteran.” 10 veteran status. veteran. LaVigne Reply Decl., 11 Ex. 5 (PAYWARD 7236). 12 5. Around the first week 5. Runyon Decl. ¶4 5. Disputed. Ng does 13 of July 2019, Runyon not recall Runyon was at the office telling him that “it 14 working late and Ng was great that asked Runyon if he Payward collected 15 wanted a beer. The the diversity office keeps a regular information in 16 stock of beer and Bamboo and maybe liquor at the office. they could include it 17 Runyon agreed to in the investor have a beer while he update deck that he 18 was doing some work helped to create.” In at his desk. During a addition, Ng 19 brief conversation, testified that he did Runyon told Ng it not have a 20 was great that conversation with Payward collected the Runyon about 21 diversity information Runyon’s veteran in Bamboo and status. 22 maybe they could include it in the “Q. So the allegations 23 investor update deck that Mr. Runyon have that he helped to made about you having a 24 create. conversation with him about his veteran status, 25 those conversations did not occur? A. No. The 26 only time when Pete and I talked about him 27 working for Marines is during his interview 28 when he told me he was NY28571/0001-US-9717706/10 3 W ITHERS B ERGMAN LLP DEFENDANTS’ RESPONSE TO PLAINTIFF’S SEPARATE STATEMENT OF ADDITIONAL MATERIAL FACTS ISO OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY ADJUDICATION 1 Undisputed Material Supporting Defendants’ Response Objections Facts Evidence: and Supporting 2 Evidence 3 a finance manager... But, no, we didn’t talk about 4 that after he started working for Payward.” 5 Ng Decl., ¶46; LaVigne 6 Reply Decl., Ex. 1 (Ng Tr., 222:14-22). 7 6. Ng then mentioned 6. Runyon Decl. ¶4 6. Disputed. Ng does 8 he saw Runyon’s not recall this disabled veteran conversation having 9 status in Bamboo in a occurred and does surprised tone “not recall ever 10 unaware that Runyon knowing that Mr. was a disabled Runyon is disabled. 11 veteran. Runyon [Mr. Ng does] not confirmed he was recall ever 12 disabled; Ng laughed reviewing Mr. and said: “You don’t Runyon’s 13 look disabled.” information in Runyon walked away BambooHR, the 14 and went to the Company’s HR restroom. Runyon software.” In 15 was offended by the addition, Ng mocking tone and testified that he did 16 statement as to both not have a his status as a veteran conversation with 17 and his disability. Runyon about Runyon’s veteran 18 status. 19 “Q. So the allegations that Mr. Runyon have 20 made about you having a conversation with him 21 about his veteran status, those conversations did 22 not occur? A. No. The only time when Pete and 23 I talked about him working for Marines is 24 during his interview when he told me he was 25 a finance manager... But, no, we didn’t talk about 26 that after he started working for Payward.” 27 Ng Decl., ¶47-48; 28 LaVigne Reply Decl., NY28571/0001-US-9717706/10 4 W ITHERS B ERGMAN LLP DEFENDANTS’ RESPONSE TO PLAINTIFF’S SEPARATE STATEMENT OF ADDITIONAL MATERIAL FACTS ISO OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY ADJUDICATION 1 Undisputed Material Supporting Defendants’ Response Objections Facts Evidence: and Supporting 2 Evidence 3 Ex. 1 (Ng Tr., 221:6- 223:4 and 231:3-5). 4 7. This was not the first 7. Runyon Decl. ¶5 7. Undisputed, but See Payward’s 5 time someone at the immaterial per Objections to the office had made an California Rule of Declaration of 6 offensive statement Court (“CRC”) Nathan Peter about Runyon’s 3.1350(f) (“The Runyon in Support 7 veteran status. Once separate statement of Opposition to in a meeting with the should include only Defendants’ 8 Director of material facts and Motion for Recruiting and the not any facts that are Summary 9 Legal Administrator, not pertinent to the Adjudication the Director or disposition of the (“Objection”) No. 10 Recruiting asked motion.”), and 1. Runyon if, during his irrelevant to the 11 time in the Marines Motion for and overseas, he had Summary 12 ever killed anyone. Adjudication Runyon, once again (“Mot.”), especially 13 shocked and severely given that Runyon offended, responded has withdrawn his 14 that her question was veteran status inappropriate. harassment claims. 15 In addition, Runyon testified that Ng was 16 not present at the meeting where a 17 Payward employee purportedly asked if 18 Plaintiff had killed anyone. Runyon 19 also testified that, at the meeting where a 20 Payward employee purportedly asked if 21 Runyon had killed anyone, no other 22 questions or comments were 23 made regarding his veteran status. 24 LaVigne Reply Decl., 25 Ex. 1 (Ng Tr., 221:6- 223:4 and 231:3-5); Ex. 26 3 (Deposition Transcript of Nathan Peter Runyon 27 dated May 13, 2021 28 NY28571/0001-US-9717706/10 5 W ITHERS B ERGMAN LLP DEFENDANTS’ RESPONSE TO PLAINTIFF’S SEPARATE STATEMENT OF ADDITIONAL MATERIAL FACTS ISO OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY ADJUDICATION 1 Undisputed Material Supporting Defendants’ Response Objections Facts Evidence: and Supporting 2 Evidence 3 (“Runyon May Tr.”) at 322:23-324:7). 4 8. Over the course of his 8. Runyon Decl. ¶6 8. Disputed. Ng did See Objection No. 5 employment, Ng not verbally attack 2. treated Runyon more Runyon nor did he 6 harshly than any yell at Runyon or other Payward become angry with 7 employee that Runyon. Further, worked under him. this fact is 8 Ng would frequently immaterial per CRC get angry, yell, lose 3.1350(f) (“The 9 his temper and separate statement verbally attack should include only 10 Runyon. material facts and not any facts that are 11 not pertinent to the disposition of the 12 motion.”), as Runyon’s 13 harassment claims have been dropped 14 and his veteran status is no longer at 15 issue. 16 Ng Decl., ¶¶49-50. 17 9. Runyon tried to bring 9. Runyon Decl. ¶7 9. Disputed. Ng did this issue to Ng’s not verbally attack 18 attention by Runyon nor did he explaining that Ng yell at Runyon or 19 yelled at and became become angry with angry with him more Runyon. Further, 20 than anyone else at this fact is work. Ng responded immaterial per CRC 21 that he thought 3.1350(f) (“The Runyon could handle separate statement 22 it because of his should include only military training and material facts and 23 background. not any facts that are not pertinent to the 24 disposition of the motion.”), as 25 Runyon’s harassment claims 26 have been dropped and his veteran 27 status is no longer at issue. 28 NY28571/0001-US-9717706/10 6 W ITHERS B ERGMAN LLP DEFENDANTS’ RESPONSE TO PLAINTIFF’S SEPARATE STATEMENT OF ADDITIONAL MATERIAL FACTS ISO OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY ADJUDICATION 1 Undisputed Material Supporting Defendants’ Response Objections Facts Evidence: and Supporting 2 Evidence 3 Ng Decl., ¶¶49-50. 4 10. The yelling and 10. Runyon Decl. ¶6 10. Disputed. Ng did verbal attacks not verbally attack 5 continued to Runyon nor did he Runyon’s dismay. On yell at Runyon or 6 numerous occasions become angry with after Ng would Runyon. Further, 7 verbally attack this fact is Runyon, Runyon immaterial per CRC 8 would remind him 3.1350(f) (“The that he was the only separate statement 9 one on the team that should include only he could talk to in material facts and 10 this way because he not any facts that are would not cry or get not pertinent to the 11 upset given his time disposition of the served as a Marine motion.”), as 12 and as such, could Runyon’s withstand this type of harassment claims 13 treatment. Runyon have been dropped explained that, and his veteran 14 nevertheless, just status is no longer at because he did not issue. 15 cry did not mean that Ng’s treatment did Ng Decl., ¶¶49-50. 16 not bother him. Ng continued to verbally 17 harass and attack Runyon because of 18 his wartime veteran status. 19 11. Ng was openly 11. Runyon Decl. ¶7 11. Disputed. Ng does See Objection No. 20 hostile and not recall Runyon 3. antagonistic to asking to take 21 Runyon’s repeated medical leave. In requests for a August of 2019, Ng 22 reasonable accommo- understood Runyon dation for his wanted time off to 23 disabilities/ medical go on vacation, not condition. for medical leave. 24 Indeed, Runyon’s testimony confirms 25 that he was asking for time off to take a 26 vacation, not for a medical leave: 27 “So by working from 28 home, what that would NY28571/0001-US-9717706/10 7 W ITHERS B ERGMAN LLP DEFENDANTS’ RESPONSE TO PLAINTIFF’S SEPARATE STATEMENT OF ADDITIONAL MATERIAL FACTS ISO OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY ADJUDICATION 1 Undisputed Material Supporting Defendants’ Response Objections Facts Evidence: and Supporting 2 Evidence 3 do is kind of make me less accessible to the 4 team. So if they did need me, I was still available 5 to come in. it’s kind of like a transition period 6 toward taking a vacation.” 7 Ng Decl., ¶64; LaVigne 8 Reply Decl., Ex. 1 (Ng Tr., 223:13-224:1 and 9 231:6-8); Ex. 3 (Runyon May Tr., at 502:4- 10 503:14). 11 12. Runyon repeatedly 12. Runyon Decl. ¶8 12. Disputed. Ng does See Objection No. requested a “not recall ever 4. 12 reasonable knowing that Mr. accommodation for Runyon is disabled. 13 his anxiety, [Mr. Ng does] not depression and PTSD recall ever 14 in the form of taking reviewing Mr. paid time off from Runyon’s 15 work. information in BambooHR, the 16 Company’s HR software.” In 17 addition, Ng does not recall Runyon 18 asking to take medical leave. In 19 August of 2019, Ng understood Runyon 20 wanted time off to go on vacation, not 21 for medical leave. Indeed, Runyon’s 22 testimony confirms that he was asking 23 for time off to take a vacation, not for a 24 medical leave: 25 “So by working from home, what that would 26 do is kind of make me less accessible to the 27 team. So if they did need me, I was still available 28 to come in. it’s kind of NY28571/0001-US-9717706/10 8 W ITHERS B ERGMAN LLP DEFENDANTS’ RESPONSE TO PLAINTIFF’S SEPARATE STATEMENT OF ADDITIONAL MATERIAL FACTS ISO OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY ADJUDICATION 1 Undisputed Material Supporting Defendants’ Response Objections Facts Evidence: and Supporting 2 Evidence 3 like a transition period toward taking a 4 vacation.” 5 Ng Decl., ¶46, 64; LaVigne Reply Decl., 6 Ex. 1 (Ng Tr., 221:6:13- 224:1 and 231:3-8); Ex. 7 3 (Runyon May Tr., at 502:4-503:14). 8 13. Ng repeatedly said 13. Runyon Decl. ¶8 Disputed. Ng does not See Objection No. 9 that Runyon could recall Runyon asking to 4. take leave but then, take medical leave. 10 when the time came Runyon never made any for him to do so, Ng request to Ng for an 11 postponed Runyon’s accommodation based leave so that he could on a disability or a 12 complete more work medical issue, or to not and, as noted below, receive emails or 13 imposed messages after office requirements on hours. Ng does “not 14 Runyon that seriously recall ever knowing that inferred with his Mr. Runyon is disabled. 15 ability to sleep and, [Mr. Ng does] not recall as a result, ever reviewing Mr. 16 exacerbated his Runyon’s information in anxiety, depression BambooHR, the 17 and PTSD. Company’s HR software.” Runyon never 18 told Ng that Runyon was disabled. In August of 19 2019, Ng understood Runyon wanted time off 20 to go on vacation, not for medical leave. Indeed, 21 Runyon’s testimony confirms that he was 22 asking for time off to take a vacation, not for a