Manuel Morales v. Wayfair, LLC et al.

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION

 

MOVING PARTY: Defendant Wayfair, LLC

RESPONDING PARTY(S): Plaintiff Manuel Morales

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

This is a FEHA discrimination case.  Plaintiff Manuel Morales (“Morales”) worked at Defendant Wayfair, LLC, where he alleges he was terminated because of injuries sustained at work.  

Defendant now moves for summary judgment, or in the alternative, summary adjudication of the Second Amended Complaint. Plaintiff opposed.

TENTATIVE RULING:

Defendant’s Motion for Summary Judgment is GRANTED.

Defendant is ordered to file a [Proposed] Judgment consistent with this Ruling.

Defendant is ordered to give notice, unless waived.

DISCUSSION:

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

I. Evidentiary Objections

Pursuant to CCP § 437c(q), the Court only rules upon objections asserted against evidence which the Court deems to be material to the disposition of this motion, as follows:

Defendant’s objections to the Declaration of Attorney Alan Wilcox, 1 through 10, are OVERRULED.

Defendant’s objections to the Declaration of Jimmy Ochoa, 11-23, are OVERRULED.

II. Legal Standard

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843. In analyzing motions for summary judgment, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent's claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.  Thus, summary judgment is granted when, after the Court’s consideration of the evidence set forth in the papers and all reasonable inferences accordingly, no triable issues of fact exist and the moving party is entitled to judgment as a matter of law.  Code Civ. Proc. § 437c(c); Villa v. McFarren (1995) 35 Cal.App.4th 733, 741. 

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. Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520. 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 motion for summary judgment must be denied where the moving party's evidence does not prove all material facts, even in the absence of any opposition Leyva v. Sup. Ct. (1985) 164 Cal.App.3d 462, 475) or where the opposition is weak.  Salesguevara v. Wyeth Labs., Inc. (1990) 222 Cal.App.3d 379, 384, 387.   

A defendant has met its burden of showing that a cause of action has no merit if it demonstrates the absence of any single essential element of plaintiff’s case or a complete defense to plaintiff’s action.  Code Civ. Proc. § 437c(o)(2); Bacon v. Southern Cal. Edison Co. (1997) 53 Cal.App.4th 854, 858.  Once the defendant moving party has met the burden, the burden shifts to the plaintiff to show via specific facts that a triable issue of material facts exists as to a cause of action or a defense thereto.  § 437c(o)(2). Where a plaintiff cannot establish an essential element of a cause of action, or where a complete defense is shown, a court must grant a motion for summary adjudication.  Code Civ. Proc. § 437c(o)(1)-(2). 

III. Analysis

A. Procedural History

This is Defendant’s second motion for summary judgment. This court previously granted Defendant’s motion for summary adjudication of the Second, Third, Fourth, Seventh, Eighth, Ninth, Tenth, Eleventh, Twelfth, Fourteenth and Fifteenth Causes of Action in the Complaint. (See 06/09/2023 Final Ruling.) In that same Ruling, the court treated the motion for summary adjudication directed to the First, Fifth, Sixth, and Thirteenth Causes of Action as a motion for judgment on the pleadings (“MJOP”) and granted the MJOP with leave to amend. (Id; Hobson v. Raychem Corp. (1999) 73 Cal. App. 4th 614, 625 [where a “defect appears on the face of the complaint, a trial court may elect to treat the hearing of the summary judgment motion as a motion for judgment on the pleadings and grant the opposing party an opportunity to file an amended complaint to correct the defect”].)

On July 7, 2023, Plaintiff filed a First Amended Complaint. Because the FAC inadvertently named Melina Tovar and Jeremy Strong as Defendants, the parties stipulated to allow Plaintiff to file a Second Amended Complaint. (See 08/09/2023 Stipulation.) Plaintiff filed a Second Amended Complaint on August 31, 2023, which is now the operative pleading. Defendant now moves for summary judgment of the SAC. 

B. Failure to Exhaust Administrative Remedies

First, Defendant argues that Plaintiff failed to exhaust his administrative remedies as to the claims in the Second Amended Complaint.

“An employee who wishes to file suit under the FEHA ‘must exhaust the administrative remedy provided by the statute by filing a complaint with the’ DFEH, ‘and must obtain from the [DFEH] a notice of right to sue.’ [Citation.] ‘The timely filing of an administrative complaint’ before the DFEH ‘is a prerequisite to the bringing of a civil action for damages.’”  (Pollock v. Tri-Modal Distribution Servs., Inc. (2021) 11 Cal. 5th 918, 931.) “The failure to exhaust an administrative remedy is a jurisdictional, not a procedural, defect,” and thus “a trial court must grant summary judgment and dismiss the suit upon a finding that a party has not exhausted his or her administrative remedies.” (Miller v. United Airlines, Inc. (1985) 174 Cal. App. 3d 878, 890.)

“The purpose of the charge is to supply fair notice of the facts, sufficient to permit investigation.” (Hobson v. Raychem Corp. (1999) 73 Cal. App. 4th 614, 630.) It should contain with “specificity the discrimination alleged and the facts supporting it, including the nature of the disability claimed.” (Id.)

Cases addressing the sufficiency of a DFEH charge generally deal with the scenario where a charge is underinclusive, meaning it does not contain allegations later relied upon by the plaintiff in court. (See, e.g., Wills v. Superior Ct. (2011) 195 Cal. App. 4th 143, 153–54 [“DFEH complaint marked the box for discrimination based on ‘denial of family/medical leave’ only,” but “did not mention disability discrimination, retaliation, harassment, or failure to accommodate a disability”]; Hobson v. Raychem Corp. (1999) 73 Cal. App. 4th 614, 629 [“the underlying administrative charge “alleged [plaintiff’s] disability to be ulcerative colitis,” but contained “no mention of any mental or emotional impairment, such as depression”]; Soldinger v. Nw. Airlines, Inc. (1996) 51 Cal. App. 4th 345, 381[plaintiff’s “charges submitted to DFEH do not duplicate the allegations in her amended civil complaint”].)

The charge here, however, is overinclusive. It contains only generalized allegations, effectively alleging everything and anything that might support claims under the FEHA. While this approach leaves much to be desired, the court is unaware of any binding authority holding it insufficient, as a matter of law. 

Considering the purpose of the administrative charge, the court concludes the one here is sufficient. Broad as it may be, the charge here should have “enable[d] that agency to investigate the charges and attempt to obtain voluntary compliance with the law.” (Soldinger v. Nw. Airlines, Inc. (1996) 51 Cal. App. 4th 345, 381.) It placed the Department on notice of Plaintiff’s claims, and would have triggered an investigation into claims reasonably “like or related” to those alleged here in the civil action. (Okoli v. Lockheed Tech. Operations Co. (1995) 36 Cal. App. 4th 1607, 1617.) This is consistent with the purpose of the charging requirements, which “is to ensure DFEH is provided the opportunity to resolve disputes and eliminate unlawful employment practices through conciliation.” (Wills v. Superior Ct. (2011) 195 Cal. App. 4th 143, 156.) 

Accordingly, the DFEH charge was sufficient, and this argument in support of summary judgment fails.

C. Allegations in the SAC

As framed by the Second Amended Complaint, Plaintiff alleges he worked for Defendant Wayfair as a warehouse associate. (SAC ¶ 17.) Plaintiff alleges his coworker Jeremy Strong began harassing him as early as June 2019. (Id. ¶ 18.) This included a threat that Strong would “beat up” Plaintiff. (Id. ¶ 20.) Plaintiff reported the harassment and threats to his supervisor, who allegedly told him to ignore Strong. (Id. ¶ 21.) After Plaintiff signed his name on a poster for a company event, someone wrote “Manny Hopefully RIP” over Plaintiff’s name. (Id. ¶ 23.) Plaintiff’s supervisors failed to take action. (Id. ¶ 24.) 

Plaintiff alleges he injured his back at work on August 23, 2019, and immediately reported his injury to his supervisor. (Id. ¶ 25.) Plaintiff visited a doctor and received work restrictions and notified Wayfair of the restrictions. (Id. ¶ 26.) Plaintiff alleges his coworkers harassed and mocked him because of his injury.  As an example, Plaintiff’s coworkers would erase Plaintiff’s name where it appeared on a posted employee list and replace it with “a crude drawing of the International Symbol of Access that indicates access for disabled persons.” (Id. ¶ 28.) Plaintiff alleges his supervisors knew of the drawings but did nothing to stop them. (Id. ¶¶ 29, 30.)

Plaintiff alleges that while operating a forklift in late September 2019, Strong accused Plaintiff of nearly hitting him with a forklift. (Id. ¶ 32.) On October 4, 2019, Melina Tovar fired Plaintiff for “safety” reasons, allegedly in relation to Strong’s accusation that Plaintiff tried to hit Strong with a forklift. (Id. ¶ 32.) Plaintiff alleges Defendant actually terminated him (1) because of his disabilities and because he took medical leave; (2) because he requested accommodations for his injuries; and (3) because he complained of threats by Strong. (Id. ¶ 33.)

Plaintiff asserts causes of action against Defendant Wayfair for (1) FEHA discrimination, (2) failure to prevent discrimination and retaliation, (3) FEHA retaliation, and (4) wrongful termination in violation of public policy. Each is addressed in turn.

D. First Cause of Action for Discrimination

Defendant argues that Plaintiff’s Discrimination claim fails because Plaintiff cannot establish that Defendant Wayfair subjected him to an adverse employment action based on a protected class or activity.

When ruling on a motion for summary adjudication in the context of a discrimination claim, “the trial court will be called upon to decide if the plaintiff has met his or her burden of establishing a prima facie case of unlawful discrimination. If the employer presents admissible evidence either that one or more of plaintiff's prima facie elements is lacking, or that the adverse employment action was based on legitimate, nondiscriminatory factors, the employer will be entitled to summary judgment unless the plaintiff produces admissible evidence which raises a triable issue of fact material to the defendant's showing.  (Moore v. Regents of Univ. of California (2016) 248 Cal. App. 4th 216, 236 [emphasis in original].)  “Whether judgment as a matter of law is appropriate in any particular case will depend on a number of factors. These include the strength of the plaintiff's prima facie case, the probative value of the proof that the employer's explanation is false, and any other evidence that supports the employer's case....[Citation.] However, ‘many employment cases present issues of intent, ... motive, and hostile working environment, issues not determinable on paper. Such cases ... are rarely appropriate for disposition on summary judgment, however liberalized [summary judgment standards may] be.” (Id. [emphasis in original].) 

Generally, to make prima facie case for FEHA discrimination, “the plaintiff must provide evidence that (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.”  (Guz v. Bechtel Nat. Inc. (2000) 24 Cal. 4th 317, 355.)  

Plaintiff alleges he suffered a back injury at work that necessitated work restrictions. (SAC ¶¶ 25, 26.) Plaintiff alleges that (1) his disabilities and/or perceived disabilities, (2) his requests for accommodations, (3) his request for medical leave, and (4) his complaints about discrimination, harassment, retaliation, and other serious safety issues in the workplace were motivating factors in Wayfair’s decision to terminate his employment. (Id. ¶ 41.) 

This puts the initial burden on Defendant to demonstrate legitimate, non-discriminatory factors for the adverse employment action.  Defendant presents evidence that on September 23, 2019, Plaintiff operated a forklift with a “stacked load” in an unsafe manner, resulting in a “near miss” to coworker Strong. (SSUMF ¶¶ 15, 16, 17.) Plaintiff then complained to his supervisor and HR that Strong had harassed him for the incident, prompting Plaintiff to request a transfer to a different shift. (Id. ¶ 18.) After an investigation of Plaintiff’s complaint regarding harassment from Strong, Wayfair determined that Plaintiff’s accusations against Strong were false and that Plaintiff’s operation of the forklift was unsafe. (Id. ¶ 19.) Therefore, on October 4, 2019, Wayfair terminated Plaintiff’s employment. (Id. ¶ 20.) 

Defendant presents additional evidence that prior to the forklift incident, in July 2019, Wayfair issued a Written Warning to Plaintiff because it determined that Plaintiff had engaged in unprofessional behavior, including making unprofessional comments to coworkers. (Id. ¶ 22.) Also, in September 2019, Wayfair issued a Verbal Warning to Plaintiff after he received his third point under Wayfair’s attendance policy for missing work due to a reported sickness without any more sick time available. (Id. ¶ 23.)  The Plaintiff does not effectively deny or contradict any of these facts.

Considering this evidence, Defendant has presented legitimate, non-discriminatory factors for Plaintiff’s termination. This shifts the burden to Plaintiff to “offer substantial evidence that the employer's stated nondiscriminatory reason for the adverse action was untrue or pretextual, or evidence the employer acted with a discriminatory animus, or a combination of the two, such that a reasonable trier of fact could conclude the employer engaged in intentional discrimination.”  (Foroudi v. Aerospace Corp. (2020) 57 Cal. App. 5th 992, 1007.)  “Although an employee's evidence submitted in opposition to an employer's motion for summary judgment is construed liberally, it ‘remains subject to careful scrutiny.’” [Citation.] (Id. [emphasis added].)  Moreover, the “stronger the employer's showing of a legitimate, nondiscriminatory reason, the stronger the plaintiff's evidence must be in order to create a reasonable inference of a discriminatory motive.” (Id. at 1008.)

Plaintiff contends that Defendant’s practice of punishing employees for taking medical leave is “direct evidence” of discriminatory animus. (Opp. 9: 18-21.) However, Defendant presents evidence that at the time of Plaintiff’s termination, he had already returned to work without medical restrictions. (SSUMF ¶ 10.) 

Plaintiff claims this fact is “disputed.” (SSDMF ¶ 10.) While Plaintiff does not dispute that Plaintiff’s healthcare provider allowed Plaintiff to “return to full duty on 10/1/2019 with no limitations, or restrictions,” Plaintiff asserts this was only temporary or for a trial basis. (Id.)

Even so, Plaintiff has presented no evidence, beyond his mere speculation, that his back injury was a motivating factor in his termination. “The employee's ‘subjective beliefs in an employment discrimination case do not create a genuine issue of fact; nor do uncorroborated and self-serving declarations.’ [Citation.]” (Foroudi, supra 57 Cal. App. 5th at 1007-08.) “Although an employee's evidence submitted in opposition to an employer's motion for summary judgment is construed liberally, it ‘remains subject to careful scrutiny.’” [Citation.] (Id. [emphasis added].)  

Plaintiff also argues there exists circumstantial evidence of discrimination, mainly because Defendant failed to stop the harassment Plaintiff faced from Strong and other co-workers. In other words, Plaintiff contends he faced discrimination from Defendant because Defendant’s employees harassed Plaintiff based on his disability. 

This argument more closely resembles a FEHA harassment cause of action than it does one for discrimination. (See Ameron Internat. Corp. v. Insurance Co. of State of Pennsylvania (2010) 50 Cal.4th 1370, 1386 [noting “our policy of emphasizing substance over form in characterizing pleadings”].) And this court previously granted Defendant’s motion for summary adjudication of his FEHA harassment cause of action, explaining that Plaintiff’s “sporadic, unsubstantiated examples of harassment by unknown individuals cannot constitute harassment under FEHA.” (See 06/09/2023 Ruling on MSJ, p. 7.) The same is true again, as there is no substantial evidence that Defendant “discriminated” against Plaintiff because Plaintiff complained he was harassed by coworkers.  

To be clear:  This Court is mindful of its obligation to “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.  Moreover, this Court is aware of its duty not to weigh or to judge the credibility of the witnesses.

Accordingly, Defendant’s Motion for Summary Adjudication of the First Cause of Action is GRANTED.

E. Third Cause of Action for Retaliation

Defendant also moves for summary adjudication of Plaintiff’s Third Cause of Action for Retaliation.

To establish a prima facie case of retaliation under 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.” (Nealy v. City of Santa Monica (2015) 234 Cal.App.4th 359.)

Again, Plaintiff alleges that (1) his disabilities and/or perceived disabilities, (2) his requests for accommodations, (3) his request for medical leave, and (4) his complaints about discrimination, harassment, retaliation, and other serious safety issues in the workplace were motivating factors in Wayfair’s decision to terminate his employment. (SAC ¶ 41.)

For Defendant’s initial burden, Defendant presents the same evidence it did for the discrimination cause of action, e.g., that Plaintiff operated a forklift in an unsafe manner and made false accusations against coworker Strong in relation to that incident. (SSUMF ¶¶ 15-20.) This switches the burden to Plaintiff. 

Plaintiff argues that Defendant retaliated against him by failing to take corrective action against coworkers who harassed Plaintiff, and by punishing Plaintiff for complaining about coworkers. Again, however, it appears Plaintiff lacks “substantial evidence” that Wayfair’s stated reasons for his termination or other adverse employment action were pretext for retaliation. (Foroudi, supra, 57 Cal. App. 5th at 1007.)  In other words, Plaintiff has provided no substantial evidence that Defendant terminated Plaintiff or took any other adverse employment action with a retaliatory animus. 

Accordingly, Defendant’s Motion for Summary Adjudication of the Third Cause of Action is GRANTED.

F. Second Cause of Action for Failure to Prevent Discrimination or Retaliation

Defendant also moves to summarily adjudicate Plaintiff’s Second Cause of Action for failure to prevent discrimination and retaliation. Courts have required a finding of actual discrimination, retaliation, or harassment under FEHA before a plaintiff may prevail under section 12940, subdivision (k) for failure to prevent the same. (Dickson v. Burke Williams, Inc. (2015) 234 Cal. App. 4th 1307, 1314.)  

Here, because Plaintiff’s First (discrimination) and Third (retaliation) causes of action fail, so too does his Second Cause of Action for failure to prevent discrimination or retaliation.

G. Fourth Cause of Action for Wrongful Termination in Violation of Public Policy

A claim for wrongful discharge in violation of public policy requires the employee to prove (1) he or she was employed by the employer, (2) the employer discharged the employee, (3) the alleged violation of public policy was a motivating reason for the discharge, and (4) the discharge caused the employee harm. (Haney v. Aramark Unif. Servs. Inc. (2004) 121 Cal. App. 4th 623.)

The parties agree that the fourth cause of action is “tethered” to the other causes of action. Finding that all other claims fail, so too does the Fourth Cause of Action.

Accordingly, Defendant’s Motion for Summary Adjudication of the Fourth Cause of Action is GRANTED.

Since there are no other remaining causes of action, Defendant’s Motion for Summary Judgment is GRANTED.

IT IS SO ORDERED.

Dated:  July 18, 2023 ___________________________________