Judge: Maurice A. Leiter, Case: 20STCV31620, Date: 2022-11-14 Tentative Ruling

Case Number: 20STCV31620    Hearing Date: November 14, 2022    Dept: 54

Hearing Date: November 14, 2022

Department 54, Judge Maurice A. Leiter

Motion for Summary Judgment, or in the alternative, Motion for Summary Adjudication

Moving Party: Defendant Federal Express Corporation

Responding Party: Plaintiff Michael Henry

T/R:     DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IS DENIED.

DEFENDANT’S MOTION FOR SUMMARY ADJUDICATION OF THE SIXTH AND TENTH CAUSES OF ACTION, AND CLAIM FOR PUNITIVE DAMAGES IS GRANTED.

DEFENDANT’S MOTION FOR SUMMARY ADJUDICATION OF THE REMAINING CAUSES OF ACTION IS DENIED.

            DEFENDANT TO NOTICE.

If the parties wish to submit on the tentative, please email the courtroom at SMCdept54@lacourt.org with notice to opposing counsel (or self-represented party) before 8:00 am on the day of the hearing.

The Court considers the moving papers, opposition, and reply.

BACKGROUND

On August 19, 2020 Plaintiff Michael Henry filed a Complaint alleging ten causes of action against Defendants Federal Express Corporation, Vuthy Khong, and Neal Tomita. This action arises from Plaintiff’s employment with Defendant Federal Express Corporation. Plaintiff alleges Defendant discriminated against him based on his age, race, and disability.

EVIDENCE OBJECTIONS

“In granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to its disposition of the motion.” (CCP § 437c(q).) Defendant’s objections nos. 1, 9-14 to Plaintiff’s declaration are OVERRULED.

ANALYSIS

“The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties' pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) Trial judges are required “to grant summary judgment if 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.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (CCP § 437c(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.” (Id.)  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.) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

A. First Through Third Causes of Action for Discrimination

To establish a claim for discrimination in violation of FEHA, the plaintiff must generally prove that (1) he or she was a member of a protected class; (2) that he or she was qualified for the position he or she sought or was performing competently in the position he or she held; (3) that he or she suffered an adverse employment action, such as termination, demotion, or denial of an available job; and (4) some other circumstance suggesting discriminatory motive. (See Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 355.)  

1. Adverse Employment Action

An adverse employment action is generally an action that materially affects the terms, conditions, or privileges of employment. (See Featherstone v. Southern California Permanente Medical Group (2017) 10 Cal.App.5th 1150, 1161.) “The protections against discrimination in the workplace . . . are ‘not limited to adverse employment actions that impose an economic detriment or inflict a tangible psychological injury upon an employee.’” (Id. at 1162 (quoting Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1052).) “FEHA ‘protects an employee against unlawful discrimination with respect . . . to . . . the entire spectrum of employment actions that are reasonably likely to adversely and materially affect an employee’s job performance or opportunity for advancement in his or her career.’” (Id. (quoting Yanowitz, supra, 36 Cal.4th at 1053-54).) 

“[A]lthough an adverse employment action must materially affect the terms, conditions, or privileges of employment to be actionable, the determination of whether a particular action or course of conduct rises to the level of actionable conduct should take into account the unique circumstances of the affected employee as well as the workplace context of the claim.” (Yanowitz, supra, 36 Cal.4th at 1052.) 

Defendant asserts that Plaintiff’s claim for discrimination fails because Plaintiff did not suffer an adverse employment action. Plaintiff alleges he was subject to various adverse employment actions due to his race, age, and disability. These include being overlooked for promotions, having job responsibilities taken away, being denied vacation, having his mail box taken away, his supervisor “losing” his time cards resulting in lost pay, his supervisor failing to file paperwork resulting in Plaintiff’s loss of medical insurance, being cited for an unclean vehicle, and being denied mileage reimbursement.

Defendant argues that these actions either did not occur or did not materially affect the terms, conditions, or privileges of employment. In opposition, Plaintiff disputes Defendant’s assertions of fact. Taken together, the above actions are sufficient to establish a triable issue of fact as to adverse employment actions under FEHA. Plaintiff experienced changes in job duties, lost pay, and reimbursement and denial of promotions.

2. Legitimate Business Reason

To successfully assert a claim for discrimination, Plaintiff must satisfy the requirements of the three-step McDonnell Douglas test. (See Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 354-55.)  Generally, a prima facie case requires showing that (1) plaintiff was a member of a protected class; (2) they were qualified for the position they sought or were performing competently in the position they held; (3) plaintiff suffered an adverse employment action, such as termination, demotion, or denial of an available job; and (4) some other circumstance suggests discriminatory motive. (See id. at 355.) 

Once a plaintiff has established a prima facie case, there is a “rebuttable” but “legally mandatory” presumption of discrimination. (Id. at 355.) The burden then shifts to the defendant to rebut the presumption by producing admissible evidence that the defendant’s “action was taken for a legitimate, nondiscriminatory reason.” (Id. at 355-356.) 

Finally, if the defendant meets its burden, “the presumption of discrimination disappears.” (Id. at 356.) The plaintiff must then show that the defendant’s legitimate reason is merely pretext. (Id.) “Pretext may be inferred from the timing of the discharge decision, the identity of the decision-maker, or by the discharged employee's job performance before termination.” (Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 224.) “Pretext may [also] be demonstrated by showing that the proffered reason had no basis in fact, the proffered reason did not actually motivate the discharge, or, the proffered reason was insufficient to motivate discharge.” (Id.) 

Defendant asserts that the discrimination claims fail because any adverse actions were taken for non-discriminatory reasons, and Plaintiff cannot show pretext. Defendant again contends that the alleged adverse employment actions listed above either did not happen or were justified by legitimate business reasons. To establish there was no discriminatory motive, Defendant states that Plaintiff’s supervisor, Tomita, is also a racial minority and the same age as Plaintiff.

In opposition, Plaintiff disputes Defendant’s versions of events, and presents evidence that a supervisor told Plaintiff that promotions should be given to younger employees and that Tomita did not want black employees in his “clique.” This is sufficient to create a triable issue of fact as to discriminatory motive.

Defendant’s motion for summary judgment is DENIED. Defendant’s motion for summary adjudication of the first through third causes of action is DENIED.

B. Fourth Cause of Action for Failure to Accommodate and Fifth Cause of Action for Failure to Engage in the Interactive Process

Government Code section 12940(m) provides that it is an unlawful employment practice “[f]or an employer . . . to fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee.” (Govt. Code, § 12940(m)(1).)  Government Code section 12940(n) provides that it is an unlawful employment practice “[f]or an employer . . . 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).) 

Defendant argues that the fourth and fifth causes of action fail on the grounds that Plaintiff was not disabled, and Plaintiff did not notify or request accommodation for a disability. In opposition, Plaintiff asserts he had to take medical leaves for a broken toe. Plaintiff represents that Tomita was aware of this condition but refused to provide modified work duty. Plaintiff also asserts Tomita failed to submit certain paperwork to his health insurance which resulted in the denial of his application for short term disability. This is sufficient to create a triable issue of fact as to failure to accommodate and engage in the interactive process.

Defendant’s motion for summary adjudication of the fourth and fifth causes of action is DENIED.

D. Sixth and Tenth Causes of Action for Violation of CFRA and Kincare Statute

            Defendant argues the sixth and tenth causes of action fail because Plaintiff has not provided evidence that he was denied leave. In opposition, Plaintiff states he was denied leave but does not provide evidence of the denial.

            Defendant’s motion for summary judgment of the sixth and tenth causes of action is GRANTED.

E. Eighth Cause of Action for Harassment

A hostile work environment is a recognized form of harassment. To establish a hostile work environment, harassment must be so severe or pervasive as to alter the conditions of the victim’s employment and create an abusive working environment based on the protected characteristic. (See Hughes v. Pair (2009) 46 Cal.4th 1045, 1043.) Harassment must be of a repeated, routine, or generalized nature when the harassing conduct is not severe. (See Lyle v. Warner Bros. Television Productions (2006) 38 Cal.4th 264, 283.) Harassment that is occasional, isolated or sporadic is insufficient. (See id.)  

Defendant argues Plaintiff’s claims for harassment fail because Tomita is the same age as Plaintiff and because Plaintiff cannot identify the specific date Tomita made comments about his age. This is insufficient to establish there are no triable issues of fact as to this cause of action.

Defendant’s motion for summary adjudication of the eighth cause of action is DENIED.

F. Seventh and Eleventh Causes of Action for Retaliation in violation of FEHA and Labor Code § 1102.5

            Defendant asserts that Plaintiff cannot state causes of action for retaliation because he did not experience adverse employment action after Plaintiff filed his IEEO complaint in March 2020. In opposition, Plaintiff asserts that his position was eliminated after requesting medical leave in March 2021. This is sufficient to establish a triable issue of fact for an adverse employment action.

            Defendant’s motion for summary adjudication of the seventh and eleventh causes of action is DENIED.

G. Ninth Cause of Action for Failure to Prevent Discrimination, Retaliation and Harassment

            Defendant contends the ninth cause of action fails because the underlying causes of action for discrimination, retaliation and harassment fail. As discussed, Plaintiff has established triable issues of fact as to these claims.

            Defendant’s motion for summary adjudication of the ninth cause of action is DENIED.

H. Punitive Damages

            Defendant moves for summary adjudication of the claim for punitive damages on the ground that Plaintiff cannot establish a managing agent acted with malice. In opposition, Plaintiff merely states that this is a question of fact. This is insufficient to support a claim for punitive damages.

            Defendant’s motion for summary adjudication of the claim for punitive damages is GRANTED.

Hearing Date: November 14, 2022

Department 54, Judge Maurice A. Leiter

Motion for Sanctions

Moving Party: Defendant Federal Express Corporation

Responding Party: Plaintiff Michael Henry

T/R:     DEFENDANT’S MOTION FOR SANCTIONS IS DENIED.

            DEFENDANT TO NOTICE.

If the parties wish to submit on the tentative, please email the courtroom at SMCdept54@lacourt.org with notice to opposing counsel (or self-represented party) before 8:00 am on the day of the hearing.

The Court considers the moving papers, opposition, and reply.

BACKGROUND

On August 19, 2020 Plaintiff Michael Henry filed a Complaint alleging ten causes of action against Defendants Federal Express Corporation, Vuthy Khong, and Neal Tomita. This action arises from Plaintiff’s employment with Defendant Federal Express Corporation. Plaintiff alleges Defendant discriminated against him based on his age, race and disability.

ANALYSIS

It is a misuse of the discovery process to fail “to respond or to submit to an authorized method of discovery,” (CCP § 2023.010(d)) or to disobey “a court order to provide discovery.”  (CCP § 2023.010(g).)  Under CCP § 2023.030, courts have the authority to issue monetary sanctions, evidentiary sanctions, or terminating sanctions after giving parties proper notice and the opportunity to be heard.

In determining whether sanctions should be imposed, courts consider the totality of the circumstances, including the “conduct of the party to determine if the actions were willful; the detriment to the propounding party; and the number of formal and informal attempts to obtain the discovery.”  (Lang v. Hochman (2000) 77 Cal. App. 4th 1225, 1246.)   “The penalty should be appropriate to the dereliction, and should not exceed that which is required to protect the interests of the party entitled to but denied discovery.”  (Wilson v. Jefferson (1985) 163 Cal. App. 3d 952, 959.)

Defendant moves for terminating sanctions on the ground that Plaintiff failed to comply with the Court’s June 10, 2022 discovery order requiring Plaintiff serve further response to requests for production. In the moving papers, Defendant asserts Plaintiff has not served verifications or served documents in compliance with the statement of compliance. In opposition, Plaintiff represents that verifications and documents have been served. Plaintiff also contends that his responses are code-compliant, stating all responsive documents in his possession will be served. Plaintiff asserts that this motion was brought in bad faith as it could have been resolved with meet and confer.

Plaintiff has served verifications and documents. Though these responses are later than required by the order, this motion could have been resolved with meet and confer. The Court will not award sanctions.

Defendant’s motion is DENIED.