Judge: Stephen I. Goorvitch, Case: 21STCV18018, Date: 2023-02-28 Tentative Ruling

Case Number: 21STCV18018    Hearing Date: February 28, 2023    Dept: 39

Juan Gonzalez v. Port Logistics Group, Inc., et al.
Case No. 21STCV18018

Motion for Summary Judgment

BACKGROUND

            Plaintiff Juan Gonzalez (“Plaintiff”) filed this wrongful termination action against Port Logistics Group, Inc. (“Defendant”), as well as Workforce Personnel, Inc. and Workforce Enterprises, WFE, Inc. (collectively, “Workforce”).  Plaintiff was a temporary worker for Workforce, a staffing agency, who was assigned to work at Defendant but allegedly was terminated after contracting COVID-19.  Plaintiff asserts the following causes of action:

            1.         Disability discrimination under FEHA

            2.         Disability harassment under FEHA

            3.         Retaliation under FEHA

            4.         Failure to provide reasonable accommodation under FEHA

            5.         Failure to engage in the interactive process under FEHA

            6.         Failure to prevent discrimination/harassment/retaliation under FEHA

            7.         Retaliation under Labor Code section 1102.5

            8.         Wrongful Termination in violation of public policy

            9.         Negligent hiring/supervision/retention

            10.       Intentional infliction of emotional distress

Now, Defendant moves for summary adjudication on a variety of issues, which Plaintiff opposes.  The Court grants summary adjudication because there is no triable issue whether Defendant took any adverse employment action against Plaintiff, and there is no triable issue whether Plaintiff requested any accommodation. 

LEGAL STANDARD

“[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law[.] There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.”  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)  “[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.”  (Ibid.)  

“A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs.”  (Code Civ. Proc., § 437c, subd. (f)(1).)  

DISCUSSION

A.        Defendant took no adverse employment action against Plaintiff

            First, Defendant argues that it took no adverse employment action against Plaintiff.  The following facts are undisputed: Defendant is a third-party logistics company specializing in all aspects of supply chain management.  (Plaintiff’s Response to Defendant’s Separate Statement, ¶ 1.)  Defendant is headquartered in City of Industry, California, and operates warehouse distribution facilities throughout Southern California.  (Id., ¶ 2.)  Defendant supplements its labor force by using temporary workers supplied by various temporary staffing agencies, including Workforce.  (Id., ¶ 3.)  Defendant’s need for temporary workers fluctuates daily depending on the amount of available work, which is often determined by the need of Defendant’s clients.  (Id., ¶ 4.)  Defendant communicates its staffing needs to the temporary staffing agencies, who manage the temporary workers, send the appropriate amount of temporary workers to Defendant, and determine other work assignments for the temporary workers.  (Id., ¶ 6.)  On occasion, Defendant may ask the temporary staffing agencies to assign specific workers based on their skill set, work experience, and familiarity with Defendant’s client accounts and the available work.  (Id., ¶ 7.)  However, the temporary staffing agencies are responsible for communicating available work to the temporary workers.  (Id., ¶ 8.) 

            In or about October 2019, Plaintiff applied for employment with Workforce and was hired by Workforce.  (Id., ¶ 9.)  Shortly thereafter, Plaintiff was assigned to perform work at Defendant as a temporary general warehouse worker.  (Id., ¶ 10.)  On or about December 15, 2020, Plaintiff informed Defendant’s supervisor, Jose Jimenez, that he and his family had tested positive for COVID-19.  (See Plaintiff’s Response to Defendant’s Separate Statement, ¶ 13.)  In response, Jimenez instructed Plaintiff to inform Workforce, specifically, Sulema Gaytan.  (Id., ¶ 14.)  Plaintiff did so that same date.  (Id., ¶ 15.)  Plaintiff engaged directly and exclusively with Gaytan to secure his two-week COVID-19 statutory leave.  (Id., ¶ 17.)  Gaytan then worked internally within Workforce to approve the leave and authorize COVID-19 sick pay.  (Id., ¶ 18.)  On or about December 28, 2020, Plaintiff tested Gaytan his negative COVID-19 test and inquired about returning to work.  (Id., ¶ 20.)           

            On or about January 14, 2021, Jimenez contacted Plaintiff directly and asked about the health of him and his family, inquiring when they might be able to return to work.  (Id., ¶ 22.)  Jimenez believed that Plaintiff was a good worker and wanted him to return to work at Defendant’s warehouse.  (Id., ¶ 25.)  Plaintiff testified that he was “going to talk to [his] parents.”  Declaration of Eric T. Angel, Exh. A, p. 48:1-2.)  Plaintiff also testified as follows: 

            Q:        So Jose [Jimenez] told you that -- I’m sorry, can you tell me again what Jose told you?

            A:        That I was a good worker.  That he wanted me to go back to work.  But that he couldn’t say for me to go back to work because he first needed to talk to Zulema [Gaytan] because they were both supervisors.

            Q:        So it sounds like Jose [Jimenez] told you that he needed Zulema [Gaytan] to help in getting you back to work at [Defendant]; is that correct?

            A:        Yes.

            . . .

            Q:        Did you tell Jose in this conversation that you would be willing to come back to work at [Defendant]?

            A:        Yes.

            Q:        Going back to the January 14th text when you tell Jose you needed to speak with your family to determine if you would come back to work, did you ever speak with your family and have that conversation?

            A:        Yes.  And I called Jose in the phone.

            Q:        What did you tell -- well, first of all, what did you and your family speak about?

            A:        About that Jose was telling me if we wanted to go back to work.

            Q:        And did the whole family agree that you wanted to come back to work at [Defendant]?

            A:        Yes.  And when I dialed Jose [Jimenez], Jose said that he was going to talk to Zulema [Gaytan].  Zulema did not call me back. 

(Declaration of Eric T. Angel, Exh. #A, pp. 51:5-52:16.)  Following Jimenez’s discussion with Plaintiff, Defendant placed Plaintiff on the work schedule for January 18, 2021, and January 19, 2021.  (Plaintiff’s Response to Defendant’s Separate Statement, ¶ 26.)  Plaintiff did not show up for work on either date.  (Id., ¶ 27.)  Plaintiff testified during his deposition that Workforce never informed him about the shifts.  (Declaration of Eric T. Angel, Exh. A, p. 56:14-17.) 

            Jimenez contacted Plaintiff again on January 21, 2021, via text message.  (Ibid.)  Jimenez asked how Plaintiff and his family were doing.  (Declaration of Eric T. Angel, Exh. A, p. 55:18-20.)  Plaintiff responded by calling Jimenez that same date.  (Declaration of Eric T. Angel, Exh. A, p. 55:21-25.)  Plaintiff testified as follows:

            Q:        And what did you tell Jose?

            A:        That Zulema [Gaytan] was not answering.  That she was not answering texts or phone calls.  And Jose [Jimenez] said at that point there was nothing he could do. . . .

            Q:        Did Jose tell you that he was the one who put you on the schedule for January 18th?

            A:        I don’t remember.

            Q:        Did he tell you that he had also put you on the schedule for January 19th?

            A:        No, he didn’t say anything about that.

            Q:        Did Zulema [Gaytan] ever tell you that you were on the schedule for January 19th as well?

            A:        No, because she never answered my phone calls nor texts.

(Declaration of Eric T. Angel, Exh. A, p. 56:8-17.)  Finally, Defendant relies on a declaration of Armando Perez, a human resources manager for Defendant, who states that Defendant made no decision to terminate Plaintiff’s work assignment at Defendant’s warehouse facility.  (Declaration of Armando Perez, ¶ 8.)  Perez also states that the respective staffing agencies, not Defendant, handled all COVID-19 related leave and clearance to return to work.  (Id., ¶ 11.)

            In addition, some of the evidence Plaintiff proffers in support of his opposition benefits Defendant’s motion.  During his deposition, Jose Jimenez testified that he was satisfied with Plaintiff’s work, and that no one from Defendant ever told him that Plaintiff would not be allowed to return to work.  (Declaration of Eugene Feldman, Exh. A, p. 64:17-65:5.)  In response to Defendant’s counsel’s questioning, Jimenez testified that he made efforts to bring Plaintiff back to work, but he does not know whether Workforce communicated  the schedule to Plaintiff:

            Q:        Mr. Jimenez, after Juan Gonzalez started quarantining due to COVID, what efforts, if any, did you take to attempt to bring him back to work at [Defendant]?

            A:        I also put it on the schedule for him, so in a way, the agency will bring it back.

            Q:        Did you provide that work schedule to Workforce, the agency that employed Mr. Gonzalez?

            A:        Yes, I did.

            . . .

            Q:        Did you also put Mr. Gonzalez’s family members back on the work schedule for January 2021?

            A:        Yes, I did.

            Q:        And did you convey that work schedule to Workforce?

            A:        Yes.

            Q:        Do you know if Workforce ever communicated to [Plaintiff] that work was available for them at [Defendant]?

            A:        I’m not 100 percent sure they did or not.

(Declaration of Eugene Feldman, Exh. A, p. 90:15-91:13.) 

            Based upon the foregoing, Defendant proffers sufficient evidence to establish that Plaintiff took an authorized leave to absence due to having contracted COVID-19; Defendant wanted Plaintiff to return to work; Workforce was responsible for providing work assignments to Plaintiff; and Workforce failed to do so.  This evidence is sufficient to satisfy Defendant’s burden of demonstrating that it did not take any adverse employment action against Plaintiff, which shifts the burden to proffer sufficient evidence to give rise to a triable issue.

            Plaintiff fails to do so.  Plaintiff argues that Defendant made the decision to terminate him because Defendant could request a specific worker, and because Defendant places workers on the schedule.  This does not refute Defendant’s evidence that Defendant wanted Plaintiff to return to work and, in fact, placed him on the schedule.  Nor does this refute Defendant’s evidence that returning Plaintiff back to work required the approval of his employer, Workforce, and that Workforce was required to communicate the staffing request to Plaintiff, which did not occur. 

Plaintiff’s counsel argues that “[b]oth [Defendant] and Workforce point the fingers at each other claiming each is to blame.”  (Plaintiff’s Memorandum of Points & Authorities in Opposition to Defendant’s Motion for Summary Judgment, p. 12:1-2.)  But there is no “finger-pointing” by Workforce.  Plaintiff’s counsel proffers no evidence (e.g., depositions of Workforce employees, internal documents, etc.) stating that Defendant, not Workforce, decided not to re-employ Plaintiff.  Inexplicably, Plaintiff’s counsel did not ask Suleman Gaytan during her deposition why Plaintiff was not returned to work at Defendant’s request.  (See Declaration of Eugene Feldman, Exh. B.)  Therefore, Plaintiff proffers insufficient evidence to give rise to a triable issue whether Defendant terminated Plaintiff.  Accordingly, the Court grants summary adjudication of the following causes of action:

            1.         Disability discrimination under FEHA

            2.         Disability harassment under FEHA

            3.         Retaliation under FEHA

            6.         Failure to prevent discrimination/harassment/retaliation under FEHA

            7.         Retaliation under Labor Code section 1102.5

            8.         Wrongful Termination in violation of public policy

            9.         Negligent hiring/supervision/retention

            10.       Intentional infliction of emotional distress

B.        Plaintiff does not oppose summary adjudication of certain issues

In the alternative, Plaintiff does not oppose summary adjudication of issues relating to the ninth and tenth causes of action.  Nor does Plaintiff oppose summary adjudication of the prayer for punitive damages.  Silence in opposition waives the right to argue that issue.  (Assad v. Southern Pacific Transportation Co. (1996) 42 Cal.App.4th 1609, 1615.)  Therefore, the Court grants summary adjudication of these issues and claims in the alternative.

C.        Fourth and Fifth Causes of Action

            Defendant moves for summary adjudication of three issues relating to the fourth and fifth causes of action: (1) Defendant was not the employer; (2) COVID-19 is not a disability for purposes of FEHA; and (3) Plaintiff received a reasonable accommodation.  There is no dispute that Plaintiff received a two-week leave of absence with pay.  (Plaintiff’s Response to Defendant’s Separate Statement, ¶ 18.)  As discussed, there is no triable issue whether Defendant terminated Plaintiff.  This satisfies Defendant’s burden. 

            Even assuming Plaintiff’s condition qualified as a disability, he proffers insufficient evidence to give rise to a triable issue.  In order to trigger the employer’s duty to engage in the interactive process and provide a reasonable accommodation, the employee must provide notice of a disability and a need for accommodation.  (See, e.g., Doe v. Department of Corrections & Rehabilitation (2019) 43 Cal.App.5th 721, 738-740; Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1013; Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 261.)  Plaintiff proffers no evidence that he did so.  To the contrary, he never raised the need for accommodation during his communications with Jose Jimenez.  Therefore, the Court grants summary adjudication of the fourth and fifth causes of action.

CONCLUSION AND ORDER

            Based upon the foregoing, the Court orders as follows:

            1.         The Court grants Defendant’s motion for summary judgment.

            2.         Defendant’s counsel shall provide notice and file proof of such with the Court.