Judge Curtis A. Kin, Case 20STCV43540 2023-01-26 Tentative Ruling

Judge: Curtis A. Kin, Case: 20STCV43540, Date: 2023-01-26 Tentative Ruling

Case Number: 20STCV43540 Hearing Date: January 26, 2023 Dept: 72

MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION

Date: 1/26/23 (9:30 AM)

Case: Isaiah Calles v. United Parcel Service, Inc. (20STCV43540)

TENTATIVE RULING:

Defendant United Parcel Service, Inc.’s Motion for Summary Judgment, or in the Alternative, Summary Adjudication is GRANTED IN PART.

Defendant United Parcel Service, Inc.’s evidentiary objections are OVERRULED. Dennis Calles’ declaration is relevant and does not constitute hearsay. Dennis Calles’ averments concern what he told and what he provided to Michael Prew about the fact that plaintiff had a heart condition being treated at UCLA Medical Center-Mattel Children’s Hospital, including open-heart surgery. Calles’ statements to Prew, as well as the letter attached to the declaration, are not offered for the truth of the matter stated (i.e., whether plaintiff actually had a heart condition); rather, they are offered for the relevant non-hearsay purpose of demonstrating that Prew was put on notice and informed that plaintiff may have a serious medical condition. (Evid. Code § 1200(a) [hearsay evidence is evidence “offered to prove the truth of the matter stated”].)

ISSUE NO. 1: Whether Plaintiff’s First Cause of Action for Disability Discrimination fails as a matter of law because Plaintiff was not a qualified individual.

Defendant maintains that lifting packages weighing up to 70 pounds was an essential function of a package handler. (UMF 4.) Plaintiff does not dispute that he is medically restricted from lifting more than 30 pounds. (UMF 7.)

“FEHA does not obligate the employer to accommodate the employee by excusing him or her from the performance of essential functions.” (Nealy v. City of Santa Monica (2015) 234 Cal.App.4th 359, 375 [finding no triable issue regarding essential function when testimony of both plaintiff and supervisor suggested that need for heavy lifting could not be eliminated].) “‘Essential functions’ means the fundamental job duties of the employment position the individual with a disability holds or desires. (Gov. Code § 12926(f).) “‘Essential functions’ does not include the marginal functions of the position.” (Gov. Code § 12926(f).) A function may be essential “because of the limited number of employees available among whom the performance of that job function can be distributed.” (Gov. Code § 12926(f)(1)(B).) Evidence of whether a particular function is essential includes the “consequences of not requiring the incumbent to perform the function.” (Gov. Code § 12926(f)(2)(D).) Job restructuring and reassignment are available reasonable accommodations. (Gov. Code § 12926(p).)

When Lori Cruz, defendant’s Person Most Knowledgeable (“PMK”), was asked about the job duties of a warehouse loader, Cruz testified that the job required the lifting of 51 pounds to 70 pounds “occasionally” and the lifting of one to ten pounds “frequently.” (Pl. Ex. E at 34:15-22.) When Michael Prew, the operations manager at the facility where plaintiff worked, was asked what his understanding was regarding the weight requirements of a package loader, Prew testified: “If anything is too heavy, you ask another employee to help you lift this package or slide it.” (Pl. Ex. B at 44:11-15.)

Based on the testimony of Prew, even if lifting 70 pounds was a function of plaintiff’s job, the job could be restructured by providing for the assistance of another employee when a package was too heavy. A triable issue remains as to whether defendant could have restructured plaintiff’s job.

The motion as to Issue No. 1 is DENIED.

ISSUE NO. 2: Whether Plaintiff’s First Cause of Action for Disability Discrimination fails as a matter of law because he did not suffer any adverse employment action because of his alleged disability.

Defendant asserts that Prew, who terminated plaintiff’s employment, did not know that Calles had any disability. (UMF 10, 12; see Brundage v. Hahn (1997) 57 Cal.App.4th 228, 236 [“An adverse employment decision cannot be made ‘because of’ a disability, when the disability is not known to the employer”].)

Dennis Calles, plaintiff’s father who also works for defendant, declares that, in June 2019, he asked for time off due to plaintiff’s upcoming surgery. (D. Calles Decl. ¶ 3.) According to plaintiff’s father, he told Prew that his “son, Isaiah Calles, was having open-heart surgery due to a heart condition.” (D. Calles Decl. ¶ 3.) In support of the request for time off, he provided a letter to Prew from UCLA Medical Center-Mattel Children’s Hospital, which stated that Isaiah Calles, the plaintiff in the instant action, was being provided medical support. (D. Calles Decl. ¶ 4 & Ex. 1.) Plaintiff started working for defendant afterward in October 2019. (UMF 3.)

Prew testified that Dennis Calles never mentioned plaintiff’s name in his conversation with Prew about the open-heart surgery. (Def. Ex. C at 29:1-15.) Dennis Calles’ declaration and attached letter demonstrates a triable issue regarding whether Prew knew that plaintiff had a heart condition.

Defendant also maintains that plaintiff was terminated due to poor performance, not due to any disability. According to Prew, plaintiff was not sorting enough packages, worked after plaintiff clocked out, and allowed packages to pass by him on the conveyer belt while talking to other employees. (UMF 15.) Erick Castro, plaintiff’s supervisor, testified that plaintiff lacked a sense of urgency and would have to repeatedly be retrained on the same methods. (UMF 16.)

By contrast, plaintiff maintains that, on November 15, 2019, he asked Castro if he could take a break. (PUMF 31.) Plaintiff testified that, on that day, he told Castro that he was feeling chest pain and that he had open-heart surgery. (PMF 33.) Castro told plaintiff to “wait a minute” and went to inform Prew. (PMF 31.) When Castro returned, he sent plaintiff to work on pallets and then told plaintiff: “Don’t worry about coming back here anymore.” (PMF 32.)

While temporal proximity is not by itself sufficient to demonstrate pretext, it is relevant to “whether the employer's articulated reason [for the adverse employment action] was untrue and pretextual” (Loggins v. Kaiser Permanente Internat. (2007) 151 Cal.App.4th 1102, 1112.) Because plaintiff testified that he was terminated on the same day after asking for a break and telling Castro that he had open-heart surgery, a reasonable juror could find that defendant terminated plaintiff due to a disability or medical condition.

Moreover, plaintiff does not rely solely on temporal proximity to demonstrate that defendant’s invocation of plaintiff’s job performance as the reason for his termination may not be legitimate. Defendant did not produce any written documents concerning plaintiff’s job performance in discovery. (PMF 24.) Plaintiff started working for defendant in October 2019, one month before his employment was terminated. (PMF 1.) For new hires, a supervisor rates their performance daily in a “new hire booklet.” (PMF 19.) Castro testified that performance issues would be noted in the new hire booklet. (Pl. Ex. C at 31:23-25.) Castro testified that he logged in plaintiff’s “book [that] his performance wasn’t there, he wasn’t hitting standards.” (Def. Ex. D at 44:4-6.) However, Cruz, defendant’s PMK, testified that plaintiff’s new hire booklet could not be located. (PMF 22.) Further, when asked if he spoke to plaintiff about having a slow pace, Castro stated he did not have a specific recollection. (PMF 16.) Prew stated that there was no issue about plaintiff having a slow pace. (PMF 18.)

Based on the foregoing, plaintiff demonstrates a triable issue concerning whether defendant’s stated reason for terminating plaintiff’s employment is pretextual.

The motion as to Issue No. 2 is DENIED.

ISSUE NO. 3: Whether Plaintiff’s Second Cause of Action for Medical Condition Discrimination fails as a matter of law because Plaintiff was not a qualified individual.

For the reasons stated with respect to Issue No. 1, the motion as to Issue No. 3 is DENIED.

ISSUE NO. 4: Whether Plaintiff’s Second Cause of Action for Medical Condition Discrimination fails as a matter of law because he did not suffer any adverse employment action because of his alleged medical condition.

For the reasons stated with respect to Issue No. 2, the motion as to Issue No. 4 is DENIED.

ISSUE NO. 5: Whether Plaintiff’s Third Cause of Action for Failure to Accommodate fails as a matter of law because Plaintiff was not a qualified individual.

For the reasons stated with respect to Issue No. 1, the motion as to Issue No. 5 is DENIED.

ISSUE NO. 6: Whether Plaintiff’s Third Cause of Action for Failure to Accommodate fails as a matter of law because UPS did not fail to accommodate Plaintiff.

Under Government Code § 12940(m), defendant’s duty to accommodate is triggered by its awareness of plaintiff’s disability, not plaintiff’s request for an accommodation. (Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935, 950–51; CACI 2541(4).)

Defendant contends that plaintiff never indicated on his job application or told his interviewer that he had a disability or needed accommodations. (UMF 21, 23.) Otherwise, an email would have generated to start the accommodation process. (UMF 22, 24, 27.)

However, plaintiff testified that he told “Melissa” from Human Resources that he was in good health after heart surgery but that he could not lift more than 30 pounds. (PMF 2.) Melissa purportedly told plaintiff that she was “going to let them know,” which plaintiff assumed to mean people in Human Resources. (PMF 2.) Regardless of whether defendant started the accommodation process, plaintiff demonstrates that defendant may have known about his disability. Melissa could have told others in Human Resources who then never started the process to determine reasonable accommodations.

Defendant also contends that plaintiff’s request for a break was never denied. When plaintiff asked Castro for a break, Castro told plaintiff to “wait a minute” while Castro informed Prew. (PMF 31.) When Castro returned, he sent plaintiff to work on pallets and then told plaintiff, “Don’t worry about coming back here anymore.” (PMF 32.) Plaintiff testified that Castro never gave him a break. (Pl. Ex. A at 121:19:22.) Instead, Castro informed plaintiff that his employment was terminated. (PMF 32.)

Defendant also contends that plaintiff never asked for a modification to the work environment because plaintiff did not need to ask permission for a break. (UMF 32.) A reasonable juror crediting plaintiff’s testimony could find that the termination of plaintiff’s employment after he requested a break meant that plaintiff was not allowed to take a break at will. Further, although Castro testified that employees who were tired did not have to ask a supervisor’s permission for a break, Castro also testified that, more than five times, employees who were tired from lifting boxes asked him for a break. (Pl. Ex. C at 63:20-64:4.) A reasonable juror could find Castro’s testimony inconsistent and conclude plaintiff was not permitted to take a break without first obtaining permission.

Plaintiff thus demonstrates triable issues as whether he was able to take a break whenever he wanted and as to whether that he may have been denied a break when he did ask. The motion as to Issue No. 6 is DENIED.

ISSUE NO. 7: Whether Plaintiff’s Fourth Cause of Action for Failure to Engage in the Interactive Process fails as a matter of law because UPS did not fail to engage in the interactive process.

For the reasons stated with respect to Issue No. 6, the motion as to Issue No. 7 is DENIED.

ISSUE NO. 8: Whether Plaintiff’s Fifth Cause of Action for Hostile Work Environment Harassment fails as a matter of law because he was not subject to severe or pervasive conduct on account of his medical condition.

It is undisputed that plaintiff’s claim of harassment was based on three incidents. During the first incident, Prew asked plaintiff whether working for defendant was his father’s idea. (UMF 35.) During the second incident, Prew told plaintiff to move to a different location in “a rude way.” (UMF 36.) During the third incident, Prew told plaintiff in a rude manner to clock out. (UMF 36.) Plaintiff testified that neither Castro nor Prew ever said anything about his medical condition. (UMF 37.)

To establish a claim of hostile environment harassment a plaintiff must prove that the alleged harassing conduct was: (i) unwelcome; (ii) because of a protected characteristic; and (iii) sufficiently severe or pervasive to alter the conditions of employment. (Lyle v. Warner Bros. Television Prod. (2006) 38 Cal.4th 264, 279 [the alleged misconduct must meet “both the ‘because of....’ and ‘severe or pervasive’ requirements...”].) Even if Castro or Prew never said anything to plaintiff about his medical condition, it is possible that the three incidents about which plaintiff complains occurred “because of” plaintiff’s condition. For the reasons discussed with respect to Issue No. 2, particularly the declaration of Dennis Calles, Prew could have known about plaintiff’s disability and medical condition before plaintiff started working for defendant.

Nevertheless, plaintiff fails to demonstrate that any harassment was severe or pervasive. The level of severity or pervasiveness required to transform a merely annoying or uncomfortable work environment into an actionable hostile environment is to be determined by looking at the totality of the circumstances. (Herberg v. Cal. Inst. of the Arts (2002) 101 Cal.App.4th 142, 149-50.) Such factors considered include: the frequency of the conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance. (Beyda v. City of Los Angeles (1998) 65 Cal.App.4th 511, 517.) Isolated, sporadic acts are insufficient to establish liability. (Id. at 519.)

Considering that neither Castro nor Prew commented on plaintiff’s disability or medical condition, plaintiff’s complaints about harassment amount to nonactionable mere annoyances and sporadic acts. Plaintiff fails to demonstrate that his ability to perform his job was affected by Prew’s questions concerning the reason plaintiff wanted to work for defendant or Prew’s purportedly rudely given directives.

The motion as to Issue No. 8 is GRANTED.

ISSUE NO. 9: Whether Plaintiff’s Sixth Cause of Action for Retaliation fails as a matter of law because Plaintiff did not engage in a protected activity.

Defendant maintains that plaintiff did not engage in any protected activity. FEHA prohibits an employer from retaliating against an employee because the employee requested an accommodation, regardless of whether the accommodation was granted. (Gov. Code § 12940(m)(2).)

For the reasons stated with respect to Issue Nos. 2 and 6, plaintiff demonstrates a triable issue concerning whether defendant terminated his employment because he requested an accommodation in the form of a break.

The motion as to Issue No. 9 is DENIED.

ISSUE NO. 10: Whether Plaintiff’s Sixth Cause of Action for Retaliation fails as a matter of law because he cannot demonstrate causation.

The motion as to Issue No. 10 is DENIED.

ISSUE NO. 11: Whether Plaintiff’s Seventh Cause of Action for Whistleblower Protection fails as a matter of law because Plaintiff did not engage in a protected activity.

Labor Code §1102.5(b) provides, as follows: “An employer, or any person acting on behalf of the employer, shall not retaliate against an employee for disclosing information, or because the employer believes that the employee disclosed or may disclose information…to a person with authority over the employee or another employee who has the authority to investigate, discover, or correct the violation or noncompliance…if the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation, regardless of whether disclosing the information is part of the employee’s job duties.”

Defendant demonstrates that plaintiff never reported any suspicions of illegal activity and that he was not aware of defendant’s helpline where he could report such activity. (UMF 38, 39.) While plaintiff asserts his employment was terminated because he asked Castro for a break (Resp.to UMF 38), plaintiff fails to show that he could have been terminated because he complained about being denied a break or that defendant believed that he complained about being denied a break. In other words, plaintiff fails to demonstrate that he ever complained about any illegal activity before his employment was terminated.

The motion as to Issue No. 11 is GRANTED.

ISSUE NO. 12: Whether Plaintiff’s Seventh Cause of Action for Whistleblower Protection fails as a matter of law because he cannot demonstrate causation.

For the reasons stated with respect to Issue No. 11, plaintiff fails to show that his employment was terminated because of any activity protected under Labor Code § 1102.5.

The motion as to Issue No. 12 is GRANTED.

ISSUE NO. 13: Whether Plaintiff’s Eighth Cause of Action for Failure to Prevent Discrimination, Harassment, and Retaliation fails as a matter of law because it is derivative of his underlying claims, which also fail.

Because plaintiff demonstrates a triable issue with respect to the first cause of action for disability discrimination, second cause of action for medical condition discrimination, and sixth cause of action for retaliation, plaintiff also demonstrate a triable issue concerning the eighth cause of action.

The motion as to Issue No. 13 is DENIED.

ISSUE NO. 14: Whether Plaintiff’s Ninth Cause of Action for Wrongful Termination in Violation of Public Policy fails as a matter of law because it is derivative of his underlying claims, which also fail.

The motion as to Issue No. 14 is DENIED.

ISSUE NO. 15: Whether Plaintiff’s Tenth Cause of Action for Negligent Hiring, Supervision, and Retention fails as a matter of law because it is barred by the Workers’ Compensation Exclusivity Doctrine.

Regardless of any negligence in supervising Prew and Castro, claims for negligent or improper supervision are barred by workers’ compensation exclusivity. (Lab. Code §§ 3600(a)(3), 3601(a); Coit Drapery Cleaners, Inc. v. Sequoia Ins. Co. (1993) 14 Cal.App.4th 1595, 1606 [finding claims for negligent or improper supervision barred by workers’ compensation laws].) Plaintiff presents no argument regarding why workers’ compensation exclusivity does not apply.

The motion as to Issue No. 15 is GRANTED.

ISSUE NO. 16: Whether Plaintiff’s Eleventh Cause of Action for Intentional Infliction of Emotional Distress fails as a matter of law because he did not experience any extreme or outrageous conduct.

Defendant maintains that plaintiff did not experience any extreme or outrageous conduct.

The California Supreme Court has held that a defendant’s actions could be characterized as “outrageous” for purposes of tort liability for intentional infliction of emotional distress, if it “abuses a relation or position which gives him power to damage the plaintiff's interest….” (Agarwal v. Johnson (1979) 25 Cal.3d 932, 946 [overruled on other grounds].) Because plaintiff demonstrates a triable issue as to whether he was subject to disability- and medical condition-based discrimination, plaintiff sufficiently demonstrates a triable issue as to whether defendant subjected him to extreme and outrageous conduct.

Defendant also maintains that plaintiff did not identify any severe emotional distress. A few weeks after the termination from employment, plaintiff contends that he began suffering from insomnia, depression, chest pain, and stomach pain. (PMF 45.) Crediting plaintiff’s testimony, a reasonable juror could find that plaintiff is suffering from “emotional distress of such substantial quality or enduring quality that no reasonable [person] in civilized society should be expected to endure it.” (Haberman v. Cengage Learning, Inc. (2009) 180 Cal.App.4th 365, 389.)

The motion as to Issue No. 16 is DENIED.

ISSUE NO. 17: Whether Plaintiff’s prayer for punitive damages fails as a matter of law because he cannot show, by clear and convincing evidence, that an officer, director, or managing agent of UPS acted with oppression, fraud, or malice, or that such individuals ratified that conduct.

If the employer is a corporation, “the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.” (Civ. Code § 3294(b).) “Managing agents” are limited to those supervisors who have “exercised substantial discretionary authority over significant aspects of a corporation’s business.” (White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 576-77.) While “supervisors who have broad discretionary powers and exercise substantial discretionary authority in the corporation could be managing agents,” those “supervisors who have no discretionary authority over decisions that ultimately determine corporate policy would not be considered managing agents even though they may have the ability to hire or fire other employees.” (Ibid.)

Regardless of whether the termination of plaintiff’s employment rose to the level of oppression, fraud, or malice, plaintiff fails to demonstrate a triable issue concerning whether Prew was a managing agent. Plaintiff does not dispute that Prew was the operating manager at one facility. (UMF 8.) Even if Prew could terminate plaintiff (Resp. to UMF 9), this is insufficient to demonstrate that Prew could affect corporate policy.

Based on plaintiff’s failure to demonstrate that Prew could be a managing agent, the motion as to Issue No. 17 is GRANTED.

CONCLUSION

For the reasons discussed above, the first cause of action for disability discrimination, second cause of action for medical condition discrimination, third cause of action for failure to accommodate, fourth cause of action for failure to engage in the interactive process, sixth cause of action for retaliation, eighth cause of action for failure to prevent discrimination and retaliation, ninth cause of action for wrongful termination in violation of public policy, and eleventh cause of action for intentional infliction of emotional distress remain.