Judge: David A. Hoffer, Case: 30-2020-1141664, Date: 2022-11-07 Tentative Ruling
The Motion for Summary Judgment filed by Defendants, Republic Waste Services of Southern California, LLC (“Republic”) and Randy Mills (“Mills”) (collectively, “Defendants”) is GRANTED.
A. First Cause of Action – Disability Discrimination Under FEHA
Motions for summary judgment or adjudication filed by employers in employment discrimination cases are subject to a unique set of rules adapted from the three-stage burden-shifting test established by the United States Supreme Court in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792.
The elements of a disability discrimination claim under the Fair Employment and Housing Act (“FEHA”) are: (1) plaintiff suffered from a disability or was regarded as suffering from a disability; (2) she could perform the essential duties of the job with or without reasonable accommodations; and (3) she was subjected to an adverse employment action because of the disability or perceived disability. (Wills v. Superior Court (2011) 195 Cal.App.4th 143, 159-160.)
Here, the court finds that Plaintiff cannot establish a prima facie case of disability discrimination because he fails to show a causal link between the adverse employment action and his disability. Plaintiff alleges in his Complaint that he was subjected to an adverse employment action when he was terminated on November 8, 2018. (Complaint ¶ 33.) He alleges that he was terminated for having taken medical leave, needing reasonable accommodations and suffering from a disability. (Id.)
The court finds the evidence is insufficient to support a reasoned inference that Plaintiff was terminated because of his disability, because he took medical leave, or because he needed reasonable accommodations. (See Light v. Department of Parks & Recreation (2017) 14 Cal.App.5th 75, 94-95 [“Summary judgment should not be granted unless the evidence cannot support any reasonable inference for plaintiff.” Id., citing Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 283.].)
The evidence shows that on June 2, 2018, Plaintiff sustained a work injury to his right finger, and after taking a medical leave due to the injury, Plaintiff returned to work in August 2018 with the restriction that he could not use his right hand. (Defendants’ Separate Statement of Undisputed Material Facts [“SUMF”] 1 and 2.) On October 11, 2018, Plaintiff’s doctor returned him to regular duty. (SUMF 4.) Plaintiff is then terminated on November 8, 2018, for, according to Defendants, dishonesty regarding his whereabouts and tasks completed on October 29, 2018. (SUMF 5.)
Plaintiff points to the following evidence as supporting his contention that his termination was due to his disability and/or need for medical leave and accommodations: (1) the temporal proximity between the disclosure of his disability and/or taking of disability leave or need for reasonable accommodations and his termination; (2) he was not allowed to work overtime like the other employees because he was on light duty; (3) management refused to honor his restrictions and required him to do impossible tasks; and (4) unlike the other Mechanic’s Helpers he was required to fill out repair orders which he was never trained on how to complete. (See Mtn at 10:27-11:13; Viera Decl. ¶¶ 17-18, 21, 33-34; see also, Plaintiff’s Separate Statement of Additional Material Facts [“AMF”] 1, 2, 3, 12, 36.)
This evidence does not raise a triable issue as to whether there was discriminatory intent behind Plaintiff’s termination. As to temporal proximity, as Plaintiff himself notes in the opposition, his termination occurred 159 days after he became disabled and requested accommodations. “‘[C]ases that accept mere temporal proximity ... as sufficient evidence of causality to establish a prima facie case [of discrimination or retaliation] uniformly hold that the temporal proximity must be “very close.” ’ ... [T]o be persuasive evidence, temporal proximity must be very close[.]” (Arteaga v. Brink 's Inc. (2008) 163 Cal.App.4th 327, 354.) Here, the temporal proximity of over five months does not appear sufficient to suggest discriminatory motive.
As to the other evidence, Plaintiff fails to show how those factors (assuming they are true) support an inference that he was terminated due to his disability. Plaintiff offers no evidence that Defendants made any negative remarks related to his disability or medical leave. There is no evidence presented that Plaintiff required further medical treatment, additional medical leave, that his symptoms were recurring, or that his injury was otherwise ongoing such that a causal link between Plaintiff’s disability and his termination can be inferred. On the contrary, the undisputed evidence demonstrates that Plaintiff was returned to full-time regular duty on October 11, 2018, and that he was able to perform all the tasks assigned to him after that date. (SUMF 4, 6.) In addition, the evidence shows that Plaintiff received two corrective actions in the weeks prior to his termination related to dishonesty in the workplace, the last of which Defendants contend resulted in his termination. (SUMF 5, 7, 8, 31.) There is no indication that these corrective actions had anything to do with Plaintiff’s disability. Based on the foregoing, the evidence presented does not support a reasonable inference that Plaintiff was terminated because of his disability.
Accordingly, Defendants have shown that Plaintiff cannot establish a prima facie case of disability discrimination. Thus, the motion for summary adjudication is granted as to the first cause of action.
B. Second Cause of Action – Failure to Accommodate Under FEHA
Under the FEHA, an employer's failure to make reasonable accommodation for the known physical or mental disability of an applicant or employee is an unlawful employment practice. (Gov. Code § 12940(m).)
The elements of a failure to accommodate claim under Section 12940(m) are (1) the plaintiff has a disability covered by FEHA; (2) the plaintiff is qualified to perform the essential functions of the position; and (3) the employer failed to reasonably accommodate the plaintiff’s disability. (Swanson v. Morongo Unified School District (2014) 232 Cal.App.4th 954, 969.)
Here, Republic met its initial burden by presenting evidence showing that, upon Plaintiff’s return to work, Plaintiff met with Mills to discuss his modified work order prescribed by his physician, that he was placed on modified work duty, and that he was offered various tasks within his work restrictions to accommodate his disability. (SUMF 13-16.)
Plaintiff responded by contending that Republic failed to accommodate him because it did not honor his work restrictions, there were several other kinds of reasonable accommodations which were never explored, and Republic did not conduct an analysis of whether Plaintiff’s work restrictions could be accommodated. As to the first point, although Plaintiff provides evidence that he was given tasks which turned out to be outside of his work restrictions in addition to the tasks that were within his work restrictions (see Plaintiff’s Response to SUMF 16, 22), this does not mean that Republic failed to reasonably accommodate him, and Plaintiff cites no authority supporting such contention. “A reasonable accommodation [under FEHA] is a ‘modification or adjustment to the workplace that enables the employee to perform the essential functions of the job held or desired.’” (Lui v. City and County of San Francisco (2012) 211 Cal.App.4th 962, 971.) (emphasis added). There is no contention made or evidence offered showing that Plaintiff was unable to do the essential functions of his job, even with the additional tasks assigned to him.
Additionally, it is undisputed that Republic approved Plaintiff’s request for medical leave. The court finds the evidence thus demonstrates that Republic made reasonable efforts to accommodate Plaintiff’s disability.
Plaintiff fails to explain what “other kinds” of accommodations were never explored and fails to offer evidence showing that he requested any such “other” accommodations. Thus, his argument in this regard does not create a triable issue. (See King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 443 (“An employee cannot demand clairvoyance of his employer. [Citation] ‘[T]he employee can’t expect the employer to read his mind and know he secretly wanted a particular accommodation and sue the employer for not providing it.’ ”) Plaintiff also fails to provide authority to support his position that Republic was required to conduct an analysis of Plaintiff’s work restrictions and accommodations. This argument is also contradicted by the evidence that shows that Republic did in fact investigate Plaintiff’s work restrictions and accommodations. (Ex. 6 to Pl. Depo, Vol.1.)
Thus, Plaintiff failed to raise a triable issue as to whether Republic failed to reasonably accommodate Plaintiff’s disability. Accordingly, the motion for summary adjudication is GRANTED as to the second cause of action.
C. Third Cause of Action – Failure to Engage in an Interactive Process Under FEHA
FEHA makes it “an unlawful employment practice ...[f]or an employer or other entity covered by this part to fail to engage in a timely, good faith, interactive process with the employee or applicant to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition.” (Govt. Code § 12940(n).)
The court finds that Republic met its initial burden on this cause of action by presenting evidence demonstrating that Republic engaged in a timely, good-faith interactive process with Plaintiff. (SUMF 13-15, 18-22.) Plaintiff makes the same arguments with respect to this cause of action that he made in connection with the failure to accommodate claim. For the same reasons as discussed in connection with the latter claim, Plaintiff has failed to raise a triable issue on the claim for failure to engage in the interactive process.
Thus, the motion for summary adjudication is GRANTED as to the third cause of action.
D. Fourth Cause of Action – Retaliation under FEHA
FEHA provides that it is unlawful to retaliate against a person “because the person has opposed any practices forbidden under [Government Code Sections 12900 – 12966] or because the person has filed a complaint, testified, or assisted in any proceeding under [FEHA].” (Gov. Code, § 12940, subd. (h).) The elements of a retaliation claim under FEHA are: (1) plaintiff employee engaged in a “protected activity,” (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer's action. (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.)
The burden-shifting for discrimination claims also is applied to retaliation claims. (Yanowitz, supra, 36 Cal.4th at 1042.) Therefore, once an employee establishes a prima facie case of retaliation, the employer is required to offer a legitimate, nonretaliatory reason for the adverse employment action. (Ibid.) “If the employer produces a legitimate reason for the adverse employment action, the presumption of retaliation ‘ “ ‘drops out of the picture,’ ” ' and the burden shifts back to the employee to prove intentional retaliation.” (Ibid.)
In Plaintiff’s Complaint, he alleges that he suffered retaliation when he was terminated for requesting disability accommodations and for requesting and needing medical leave related to his disability. (Complaint ¶¶ 62, 64, 65.)
The court finds the motion as to this cause of action is well-taken for the same reasons as discussed in connection with the first cause of action for disability discrimination. Specifically, Plaintiff failed to establish a prima facie case of retaliation because the evidence is insufficient to support a reasoned inference that Plaintiff was terminated because of his disability, because he took medical leave, or because he needed reasonable accommodations. (See Section A, supra; see also, Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 283.)
In his opposition, Plaintiff also argues that he was terminated in retaliation for him complaining about Mills’ discriminatory conduct toward him. However, as Defendants note in their reply, Plaintiff did not raise this claim in his Complaint and, as such, this argument is irrelevant. The opposing party’s opposition papers cannot create issues outside the pleadings. (Hutton v. Fidelity Nat'l Title Co. (2013) 213 Cal.App.4th 486, 493; see Jacobs v. Coldwell Banker Residential Brokerage Co. (2017) 14 Cal.App.5th 438, 443-444—evidence offered on unpleaded claim, theory or defense irrelevant because outside scope of pleadings; Aleksick v. 7-Eleven, Inc. (2012) 205 Cal.App.4th 1176, 1186—argument in opposition memorandum and attorney's comments at hearing insufficient to raise triable issue.) Thus, the argument related to retaliation based on Plaintiff’s complaints against Mills does not create a triable issue of material fact.
Accordingly, the motion for summary adjudication is GRANTED as to the fourth cause of action.
E. Fifth Cause of Action – Failure to Prevent Harassment and Discrimination Under FEHA
When a plaintiff seeks to recover damages based on a claim of failure to prevent discrimination pursuant to Section 12940(k), she must show three essential elements: (1) the plaintiff was subjected to discrimination, harassment, or retaliation; (2) the defendant failed to take all reasonable steps to prevent discrimination, harassment, or retaliation; and (3) this failure caused the plaintiff to suffer injury, damage, loss, or harm. (Goins v. County of Merced (2016) 185 F.Supp.3d 1224, 1234.)
As set forth above, Plaintiff’s claims for discrimination and retaliation fail as a matter of law. In addition, as discussed below, Plaintiff’s claim for harassment also fails. Therefore, the derivative claim for failure to prevent harassment and discrimination cannot survive. (See Trujillo v. Northern County Transit Dist. (1998) 63 Cal.App.4th 280, 289.)
Accordingly, the motion for summary adjudication is GRANTED as to the fifth cause of action.
F. Sixth Cause of Action – Retaliation under CFRA
A retaliation claim under the CFRA prevents employers from terminating or otherwise taking action against employees because they exercise their rights under the CFRA. (Richey v. AutoNation, Inc. (2015) 60 Cal.4th 909, 920.)
Plaintiff alleges that he suffered retaliation in that he was terminated for taking protected leave from work. (Complaint ¶ 91; Opp. 18:9-10.) In Plaintiff’s opposition, he states that he incorporates his argument and evidence related to his FEHA retaliation claim into the argument for this cause of action. (Opp. 18:10-12.) The court finds the motion as to this cause of action is well-taken for the same reasons as discussed in connection with the FEHA retaliation claim. Specifically, Plaintiff failed to establish a prima facie case of retaliation under CFRA because the evidence is insufficient to support a reasoned inference that Plaintiff was terminated because he took medical leave. (See Sections A and D, supra; see also, Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 283.)
Additionally, as discussed above, Plaintiff’s claim that he was terminated in retaliation for him complaining about Mills’ discriminatory conduct toward him is outside the scope of the pleadings and therefore does not create a triable issue of material fact. (See Hutton v. Fidelity Nat'l Title Co. (2013) 213 Cal.App.4th 486, 493; Jacobs v. Coldwell Banker Residential Brokerage Co. (2017) 14 Cal.App.5th 438, 443-444; Aleksick v. 7-Eleven, Inc. (2012) 205 Cal.App.4th 1176, 1186; Leibert v. Transworld Systems, Inc. (1995) 32 Cal.App.4th 1693, 1699.)
Accordingly, the motion for summary adjudication is GRANTED as to the sixth cause of action.
G. Seventh Cause of Action – Hostile Work Environment Harassment Under FEHA
To establish a prima facie case of a hostile work environment, a plaintiff must show that (1) he is a member of a protected class; (2) he was subjected to unwelcome harassment; (3) the harassment was based on his protected status; (4) the harassment unreasonably interfered with his work performance by creating an intimidating, hostile, or offensive work environment; and (5) defendants are liable for the harassment. (Ortiz v. Dameron Hospital Assn. (2019) 37 Cal.App.5th 568, 581; see also, Govt. Code § 12940(j)(1) [Under the FEHA, it is unlawful “[f]or an employer ... or any other person, because of race... physical disability ... [or] medical condition ... to harass an employee ....”].)
“[W]hether an environment is 'hostile' or 'abusive' can be determined only by looking at all the circumstances. These may include the frequency of the discriminatory 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.” [Citation omitted.] ‘The plaintiff must prove that the defendant's conduct would have interfered with a reasonable employee's work performance and would have seriously affected the psychological well-being of a reasonable employee and that she was actually offended.” (Beyda v. City of Los Angeles (1998) 65 Cal.App.4th 511, 517.)
“FEHA's prohibitions are not a ‘civility code’ and are not designed to rid the workplace of vulgarity. [Citations.] To be actionable, the conduct must be extreme.” (Mokler v. County of Orange (2007) 157 Cal.App.4th 121, 144, disapproved of on other grounds by Lawson v. PPG Architectural Finishes, Inc. (2002) 12 Cal.5th 703.) Rude, inappropriate, and offensive behavior is not actionable; rather, “a workplace must be ‘permeated with’ ‘discriminatory intimidation, ridicule and insult,’ and be ‘sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment’.” (Id.)
“A single incident of harassing conduct is sufficient to create a triable issue regarding the existence of a hostile work environment if the harassing conduct has unreasonably interfered with the plaintiff's work performance or created an intimidating, hostile, or offensive working environment.” (Govt. Code § 12923(b).)
Plaintiff alleges in his Complaint that immediately following his return from medical leave, Defendants unjustifiably implemented new protocols and procedures for Plaintiff to perform his job duties; that no other employee was subject to these new protocols and procedures; and that Defendants began to scrutinize Plaintiff’s performance, including reviewing the videos for his shifts. (Complaint ¶ 103.) Plaintiff contends that these actions were undertaken because of his disability and race.
The court finds that Republic met its initial burden on this cause of action by providing evidence showing that every mechanic’s helper and mechanic had to complete the repair orders and that no one ever told Plaintiff he could not work overtime and that he did have some overtime when his restrictions were lifted. (SUMF 27, 30.) Republic also presented evidence showing that it never received any formal or informal complaints from Plaintiff pertaining to harassment committed against him by Mills. (SUMF 26.) Republic also contends that it checked the video footage for Plaintiff’s shifts because Plaintiff had previously lied about what he was doing while working. (See SUMF 31-32.)
In response, Plaintiff offers contradictory evidence showing that he was the only mechanic’s helper that was required to fill out service repair orders and he was denied overtime hours upon his restrictions being lifted. (See Plaintiff’s Responses to SUMF Nos. 27, 30; AMF 1-3.) He also alleges that Mills directed racial epithets towards him on two occasions and that he submitted “numerous” complaints (four complaints per his deposition testimony) to HR regarding Mills’ treatment of him. (Viera Decl. ¶¶ 28, 32; Viera Depo., 76:2 – 78:4; 78:18 – 79:16; 80:3-18; 81:25 – 82:5; 91:24 – 92:1.)
In terms of the specific incidents, on one occasion Mills told Plaintiff that “your people are stupid and lazy” and on another occasion Mills put his finger on Plaintiff’s chest and called Plaintiff a “wetback.” (Viera Depo. 75:16-18; 76:2 – 78:4; 78:18 – 79:16.) Plaintiff was unable to recall any other specific incidents of racial harassment by Mills. (Viera Depo. 81:25-82:11.) The other incidents of alleged harassment cited by Plaintiff all involve his claims that he was assigned job duties that he should not have been assigned. (Viera Depo. 101:19-102:25; 109:12-21; 111:21-112:5.)
The court finds the evidence offered is insufficient to show that the conduct complained of unreasonably interfered with Plaintiff’s work performance or that the conduct created an intimidating, hostile, or offensive work environment. As to interference with work performance, the evidence shows that Plaintiff was adequately performing his job and was on regular duty with no restrictions after October 11, 2018. (Viera Decl. ¶¶ 4, 22, 25.) Plaintiff points to no evidence showing that the conduct complained of unreasonably interfered with his work performance or that it affected his psychological well-being. Further, the conduct related to Defendant assigning job duties to Plaintiff, reviewing the videos for Plaintiff’s shifts and denying overtime hours does not appear to be actionable as harassing conduct. (See Serri v. Santa Clara University (2014) 226 Cal.app.4th 830, 870 [“[T]he Legislature intended that commonly necessary personnel management actions such as hiring and firing, job or project assignments, office or work station assignments, promotion or demotion, performance evaluations, the provision of support, the assignment or nonassignment of supervisory functions, deciding who will and who will not attend meetings, deciding who will be laid off, and the like, do not come within the meaning of harassment.”].)
Plaintiff also presents no evidence from which an inference can be made that the conduct related to his job duty assignments was undertaken by Defendants based on Plaintiff’s disability or race.
In addition, the court finds the conduct related to the racial epithets, while offensive, is not sufficiently severe or pervasive as to rise to the level of permeating the workplace with ridicule and insult or to alter the conditions of Plaintiff’s employment. (See Viera Decl. ¶¶ 28, 30-32; Viera Depo., 76:2 – 78:4; 78:18 – 79:16; 80:3-18; 81:25 – 82:5; 91:24 – 92:1.)
Accordingly, the motion for summary adjudication is GRANTED as to the seventh cause of action.
H. Eighth Cause of Action – Wrongful Termination
Plaintiff’s wrongful termination claim is derivative of his causes of action for FEHA and CFRA violations. (Complaint ¶¶ 109, 111.) Because Plaintiff’s FEHA and CFRA claims fail as a matter of law as discussed above, so too does his wrongful termination claim. (See Arteaga v. Brink’s, Inc. (2008) 163 Cal.App.4th 327, 355; Featherstone v. Southern California Permanente Medical Group (2017) 10 Cal.App.5th 1150, 1169.)
Thus, the motion for summary adjudication is GRANTED as to the eighth cause of action.
Based on the court’s ruling to grant summary adjudication on all causes of action in Plaintiff’s Complaint, the court finds Defendants’ motion as to punitive damages is MOOT.
Plaintiff’s evidentiary objections (ROA 90) are OVERRULED as to objection nos. 1, 2, 8-12, 14-17, and 19-28. Defendants’ evidentiary objections (ROA 100) are OVERRULED as to objection nos. 4-7.
The court declines to rule on Plaintiff’s objection nos. 3-7, 13, 18, and 29 and Defendants’ objection nos. 1-3 as not material to the disposition of the motion. (CCP § 437c(q).)
The moving party is ordered to give notice of this ruling and to file a proposed order.