Judge: Gregory Keosian, Case: 20STCV22939, Date: 2022-08-16 Tentative Ruling
Case Number: 20STCV22939 Hearing Date: August 16, 2022 Dept: 61
Defendants Smart & Final Stores, LLC and
Commerce Distribution Company, LLC’s Motion for Summary Judgment or
Adjudication is DENIED.
I. OBJECTIONS
Plaintiff submits
objections to the evidence offered by Defendants in their motion. Objections
No. 1 and 2 are SUSTAINED with respect to Likka Olotoa’s “understanding” of
available dispatch positions and whether Plaintiff refused to sign a
resignation form. Objections to the declaration of Victor Diaz and accompanying
exhibits are OVERRULED.
Defendants object to the
evidence that Plaintiff submits in opposition. Objections No. 15, 17, 20 are
SUSTAINED, as Plaintiff’s out of court statements to his physician concerning
his use of medication is hearsay. Defendants’ other objections are OVERRULED.
II.
SUMMARY
JUDGMENT
A party may move for summary judgment “if it
is contended that the action has no merit or that there is no defense to the
action or proceeding.” (Code Civ. Proc.
§ 437c, subd. (a).) “[I]f all the evidence submitted, and all inferences
reasonably deducible from the evidence and uncontradicted by other inferences
or evidence, show that there is no triable issue as to any material fact and
that the moving party is entitled to judgment as a matter of law,” the moving
party will be entitled to summary judgment.
(Adler v. Manor Healthcare Corp.
(1992) 7 Cal.App.4th 1110, 1119.) A motion for summary adjudication may be made
by itself or as an alternative to a motion for summary judgment and shall
proceed in all procedural respects as a motion for summary judgment. (Code Civ. Proc. § 437c, subd. (f)(2).)
The moving party bears an initial burden of
production to make a prima facie showing of the nonexistence of any triable
issue of material fact, and if he does so, the burden shifts to the opposing
party to make a prima facie showing of the existence of a triable issue of
material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850;
accord Code Civ. Proc. § 437c, subd. (p)(2).)
Once the defendant
has met that burden, the burden shifts to the plaintiff to show that a triable
issue of one or more material facts exists as to that cause of action or a
defense thereto. (Aguilar, supra, 25 Cal.4th at 850.)
The plaintiff may not rely upon the mere allegations or denials of its
pleadings to show that a triable issue of material fact exists but, instead,
shall set forth the specific facts showing that a triable issue of material
fact exists as to that cause of action or a defense thereto. (Ibid.)
To establish a triable issue of material fact, the party opposing the
motion must produce substantial responsive evidence. (Sangster
v. Paetkau (1998) 68 Cal.App.4th 151, 166.)
Defendants Smart
& Final Stores, LLC and Commerce Distribution Company, LLC’ move for
summary judgment on Plaintiff Jorge Ortiz’s claims for disability
discrimination, failure to accommodate, failure to engage in the interactive
process, retaliation, wrongful termination, failure to pay wages owed on
termination, and punitive damages.
A. DISCRIMINATION, INTERACTIVE PROCESS, &
FAILURE TO ACCOMMODATE
To establish a
discrimination claim under FEHA, an employee must prove the following elements:
“(1) he was a member of a protected class, (2) he was qualified for the
position he sought or was performing competently in the position he held, (3)
he suffered an adverse employment action, such as termination, demotion, or
denial of an available job, and (4) some other circumstance suggests
discriminatory motive.” (Dinslage v. City
and County of San Francisco (2016) 5 Cal.App.5th 368, 378.) If the employer
offers evidence of a legitimate, nondiscriminatory reason for the action, “the
plaintiff bears the burden of proving the employer's proffered reason was
pretextual.” (Brundage v. Hahn (1997) 57 Cal.App.4th 228,
236.)
“The elements of a
failure to accommodate claim are (1) the plaintiff has a disability under the 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 Dist. (2014) 232
Cal.App.4th 954, 969, internal quotation marks omitted.)
Defendants argue
that no triable issues of fact exist as to Plaintiff’s claims for disability
discrimination or failure to accommodate because Plaintiff was not qualified to
perform the essential functions of the position. (Motion at pp. 7–13.)
Specifically, Defendants contend that Plaintiff was using medically prescribed
narcotics during the relevant period that prevented him from safely operating a
vehicle, and legally prevented both him and his employer from putting him
behind the wheel of a truck. (Ibid.) Defendant points to 49 CFR § 392.4,
which states that no driver shall use or possess any scheduled substances, save
when such substance is prescribed to the driver by a licensed medical
practitioner “who has advised the driver that the substance will not affect the
driver’s ability to safely operate a motor vehicle.” (49 CFR § 392.4, subd.
(c); see also 49 CFR § 382.213 [forbidding drivers from using Schdeule I
substances, and only permit non-Schedule-I substances when prescribed by
medical practitioner who “has advised the driver that the substance will not
adversely affect the driver's ability to safely operate a commercial motor
vehicle”].)
Defendants present
the following facts, attested to in the declaration of Lika Olotoa, Smart &
Final’s Workers Compensation Manager. In response to a workers compensation
claim for an injury that Plaintiff suffered in 2017, Plaintiff was placed on
leave. (Olotoa Decl ¶¶ 10–11.) Plaintiff was evaluated by a Qualified
Medical Examiner (QME) in February 2019, who prescribed various lifting and
bending restrictions in a March 2019 report. (Olotoa ¶ 12.) Olotoa and
Plaintiff held an accommodation meeting in April 2019, at which Plaintiff
disclosed that he had been prescribed medication — Tramadol, a scheduled
narcotic — that was making him drowsy, meaning he could not yet return to work.
(Olotoa Decl. ¶ 13, Exh. 16.)
In July 2019,
Plaintiff provided a note from his doctor releasing him from work restrictions,
effective August 1, 2019. (Olotoa Decl. ¶ 15, Exh. 17.) But a progress report
prepared by the doctor prescribed a six-week medication plan that included the
drug Ultracet, which contains Tramadol. (Olotoa Decl. ¶ 16, Exh. 18.) A
subsequent August 2019 note from the same doctor stated that Plaintiff could be
returned to work without restrictions, yet still referenced the earlier report.
(Olotoa Decl. ¶ 17, Exh. 19.) A September 2019 report by the same doctor stated
that Plaintiff reported that Plaintiff was suffering from permanent impairment,
in line with the QME’s restrictions earlier in the year. (Olotoa Decl. Exh.
20.) In November 2019, a neurological evaluation from a different doctor, who
listed under “current medications,” among others, “tramadol, . . . as needed.”
(Olotoa Decl. Exh. 21.)
From the above
facts, Defendants argue that Plaintiff was using a scheduled substance
prescribed to him which he had previously acknowledged impaired his ability to
drive, meaning that despite his requests to return from leave during this time,
he was not in fact qualified to do so. (Motion at pp. 8–10.)
But Plaintiff
presents evidence that creates triable issues of fact on this point. He
testifies that when he informed Defendants of his medication use in the April
2019 meeting, he did not tell them that he would be taking them for a long
period of time, and in fact stated that he looked forward to returning to work.
(Ortiz Decl. ¶ 14.) Plaintiff also testifies that in June 2019, he stopped
taking the prescribed medication, except occasionally in the evenings. (Ortiz
Decl. ¶ 17.) Plaintiff states that Defendants, and specifically Olotoa, never
made an issue of his medication in their communications with him, and he further
states that if Defendants during this time had stated any concerns about the
medication, he “would have had no problem committing to not taking any of the
medications at all during the work week, or during working hours.” (Ortiz Decl.
¶¶ 14–27, 38.) Plaintiff states that he has taken no prescription medication
for his injuries since November 2019. (Ortiz Decl. ¶ 27.) Plaintiff offered
Defendants his resignation some months later, in February 2020. (Ortiz Decl. ¶
32.) Since March 2020, Plaintiff has worked as a trucker for another company,
without restrictions. (Ortiz Decl. ¶ 37.)
Given Plaintiff’s
testimony concerning his actual use (or lack thereof) of the prescriptions, and
his testimony concerning Defendants’ lack of interest in these medications
during any of their subsequent communications, triable issues exist as to
whether Plaintiff was actually qualified for his position, and whether
Defendants in fact relied upon the medications as the reason for the decision
not to return him to work.
Defendants argue
that Plaintiff’s discrimination claim cannot succeed because no adverse
employment action was committed against Plaintiff, more specifically because
Plaintiff had been on leave since his 2017 accident and remains on leave to
this day. (Motion at p. 10.) “Courts
. . . have held that, to be actionable, an employer's adverse conduct must
materially affect the terms and conditions of employment.” (Yanowitz v.
L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1051 fn. 9.) Defendant seems
to argue that because there was no ultimate change in Plaintiff’s position, no
adverse action could have taken place. But this is to misunderstand the
“spectrum of employment actions” encompassed by the term “adverse employment
action,” which may include acts, such as the “failure to promote,” that leave
the status quo intact while simultaneously “affect[ing] an employee’s job
performance or opportunity for career advancement.” (Meeks v. Autozone, Inc.
(2018) 24 Cal.App.5th 855, 879.) The failure to return an employee from leave
against their objections may constitute an adverse employment action under this
definition.
Defendants argue
that they have raised a legitimate, nondiscriminatory reason for the failure to
return Plaintiff from leave — namely his use of prescription narcotics. (Motion
at pp. 10–12.) But as explained above, triable issues of fact exist as to Defendants’
reasons for keeping Plaintiff on leave, and Plaintiff has shown triable issues
as to whether he would have needed to work under the influence of these
medications during the relevant period.
Defendant argues
that Plaintiff’s claim for failure to accommodate fails because Defendant in
fact accommodated him by placing him on leave. (Motion at pp. 13–14.) But once
again this argument rests upon the contention that leave was the only available
accommodation because Plaintiff’s medications rendered him unfit for any
position. Because triable issues exist on this point, no adjudication is
appropriate for this cause of action.
Finally, Defendants
argue that Plaintiff’s claim for failure to engage in the interactive process
fails, because Defendants in fact engaged in the interactive process. (Motion
at pp. 15–16.) An employer must “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.” (Gov. Code § 12940, subd. (n).)
Triable issues
exist as to whether Defendant engaged in a good faith interactive process. As
discussed above, no evidence exists to show that Defendants actually spoke to
Plaintiff about their concerns regarding his medication. Plaintiff testifies
that they never did, and further testifies that as of one call between himself
and Olotoa on September 27, 2019, she yelled at him and told him that since he
had not returned to work in April 2019, “when she was willing to let [him]
return, she was not going to bring [him] back at all.” (Ortiz Decl. ¶ 26.) This
evidence suggests that Defendants did not engage in the process in good faith,
and creates triable issues preventing adjudication of this claim.
The motion is
therefore DENIED as to the first through third causes of action.
B.
FEHA
RETALIATION
“[I]n order to
establish a prima facie case of retaliation under the FEHA, a plaintiff must
show (1) he or she 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.)
Defendant argues
that Plaintiff cannot succeed on his retaliation claim because he suffered no
adverse employment action, and because Defendant had a legitimate business
reason for any adverse actions it took. (Motion at pp. 16–17.) These arguments
have been addressed above as they relate to Plaintiff’s discrimination claim,
and they are deficient here as well.
The motion is
DENIED as to the fourth cause of action for FEHA retaliation.
C.
CONSTRUCTIVE
DISCHARGE
Defendant argues
that Plaintiff cannot establish constructive discharge because he never
actually resigned, and because he did not face conditions of sufficient
severity to constitute a constructive discharge. (Motion at pp. 18–19.)
To establish a
constructive discharge, an employee must show “that the employer either
intentionally created or knowingly permitted working conditions that were so
intolerable or aggravated at the time of the employee's resignation that a
reasonable employer would realize that a reasonable person in the employee's
position would be compelled to resign.” (Scotch v. Art Institute of
California (2009) 173 Cal.App.4th 986, 1022.)
Defendants
acknowledge that Plaintiff offered his resignation in February 2020, but
present deposition testimony in which Plaintiff denies that he “quit” or that
he was fired. (Motion Exh. 2 at p. 33.) This argument fails, however, as
Plaintiff in that same deposition testimony states that he is no longer an
employee of Defendants. (Ibid.)
Plaintiff also
presents evidence that his working conditions were sufficiently intolerable to
constitute a claim for constructive discharge. A triter of fact may conclude
that the condition of being placed on interminable leave and not being
permitted to return to any position is a sufficiently intolerable or aggravated
state of affairs such that a reasonable employer would realize that a
reasonable employee would be compelled to resign.
The motion is
therefore DENIED as to the fifth cause of action for constructive discharge.
D.
UNPAID
WAGES
Defendants argue
that Plaintiff’s claim for unpaid wages under Labor Code §§ 201 to 203 fail
because Plaintiff’s claims sound in unpaid vacation time, which is only
compensable under another statute, Labor Code § 227.3. (Motion at p. 19.)
Defendant’s
argument is incorrect. Unused vacation benefits are construed as wages for the
purposes of Labor Code §§ 201–203:
Labor Code section 201, subdivision (a)
states, in relevant part: “If an employer discharges an employee, the wages
earned and unpaid at the time of discharge are due and payable immediately.”
Labor Code section 202, subdivision (a) states, in relevant part: “If an
employee not having a written contract for a definite period quits his or her
employment, his or her wages shall become due and payable not later than 72
hours thereafter, unless the employee has given 72 hours previous notice of his
or her intention to quit, in which case the employee is entitled to his or her
wages at the time of quitting.” “Wages,” for purposes of these statutes,
encompasses all benefits to which an employee is entitled as part of his or her
compensation, including vacation pay.
(Singh v.
Southland Stone, U.S.A., Inc. (2010) 186 Cal.App.4th 338, 363,
italics added.)
The motion is therefore
DENIED as to the sixth cause of action.
E.
PUNITIVE
DAMAGES
Defendants finally
argue that Plaintiff’s prayer for punitive damages fails because no triable
issues exist as to whether Defendants acted with malice, oppression, or fraud.
(Motion at p. 20.)
Punitive damages are allowed in non-contract cases when a
defendant is guilty of “oppression, fraud, or malice . . . .” (Civ. Code §
3294.) The terms are defined as:
“Malice” means conduct which is intended by the defendant to cause
injury to the plaintiff or despicable conduct which is carried on by the
defendant with a willful and conscious disregard of the rights or safety of
others.
“Oppression” means despicable conduct that subjects a person to
cruel and unjust hardship in conscious disregard of that person's rights.
“Fraud”
means an intentional misrepresentation, deceit, or concealment of a material
fact known to the defendant with the intention on the part of the defendant of
thereby depriving a person of property or legal rights or otherwise causing
injury.
Something more than the mere commission of a
tort is always required for punitive damages. (Taylor v. Superior Court (1979) 24 Cal.3d 890, 894.) Proof of
negligence, gross negligence, or recklessness is insufficient to warrant an award
of punitive damages. (Dawes v. Sup.Ct.
(Mardian) (1980) 111 Cal.App.3d 82, 88–89.) Punitive damages may be
recovered in an action for negligence or other nonintentional torts if the
plaintiff pleads and proves that the defendant acted with the state of mind
described as “conscious disregard” of the potential dangers to others. (Pfeifer v. John Crane, Inc. (2013) 220
Cal.App.4th 1270, 1299.) When malice is based on a defendant’s conscious
disregard of Plaintiff’s rights, the conduct must be both despicable and
willful. (College Hospital v. Superior
Court (1994) 8 Cal.4th 794, 713 (“College
Hospital”).)
Triable issues exist as to Plaintiff’s
entitlement to punitive damages. Despite Defendants’ arguments concerning their
reasons for keeping Plaintiff on leave, Plaintiff’s testimony calls into doubt
whether Defendants actually relied upon this rationale, and further raises an
inference of animus, based on Plaintiff’s testimony concerning Otoloa’s refusal
to consider a return from leave at any point after April 2019. (Ortiz Decl. ¶
26.) If credited, this testimony may form a basis for a finding of malice or
oppression.
The motion is therefore DENIED.