Judge Thomas D. Long, Case Number: 22STCV3488, Date: 2024-09-10 Tentative Ruling

On February 13, 2024, Defendant Target Corporation filed a motion for summary judgment, or in the alternative, summary adjudication.

“Separate statements are required not to satisfy a sadistic urge to torment lawyers, but rather to afford due process to opposing parties and to permit trial courts to expeditiously review complex motions for [summary adjudication] and summary judgment to determine quickly and efficiently whether material facts are undisputed.” ((United Community Church v. Garcin (1991) 231 Cal.App.3d 327, 335 (United Community Church).) “The separate statement ‘provides a convenient and expeditious vehicle permitting the trial court to hone in on the truly disputed facts.’ [Citation.]” (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 252 (Nazir).) “[I]t is no answer to say the facts set out in the supporting evidence and memorandum of points and authorities are sufficient. ‘Such an argument does not aid the trial court at all since it then has to cull through often discursive argument to determine what is admitted, what is contested, and where the evidence on each side of the issue is located.’” (United Community Church, supra, 231 Cal.App.3d at p. 335.) “The due process aspect of the separate statement requirement is self-evident—to inform the opposing party of the evidence to be disputed to defeat the motion.” (Id. at p. 337.)

The parties should not “include in the separate statement every fact they intend to include in their motion, regardless of its materiality.” (Beltran v. Hard Rock Hotel Licensing, Inc. (2023) 97 Cal.App.5th 865, 875.) “The paragraphs in a separate statement should be limited to facts that address the elements of a cause of action or an affirmative defense. (See Code Civ. Proc., § 437c, subd. (b)(1); rule 3.1350(a)(2), (d)(2).) The statute and Rules of Court do not preclude litigants from including background, nonmaterial information in their papers as long as they include a cite to the evidence, but nonmaterial facts should not be included in the separate statement. The point of the separate statement is not to craft a narrative, but to be a concise list of the material facts and the evidence that supports them.” (Ibid.)

Of the unique facts in the parties’ separate statements, many are unnecessary and are not, in fact, material to the claims or defenses. Additionally, what a party said or perceived is not a “material fact”; rather, it is evidence of a fact. (Reeves v. Safeway Stores, Inc. (2004) 121 Cal.App.4th 95, 106 (Reeves).) “The separate statement should include only material facts and not any facts that are not pertinent to the disposition of the motion.” (California Rules of Court, rule 3.1350(d)(2).) “[T]rial courts have the inherent power to strike proposed ‘undisputed facts’ that fail to comply with the statutory requirements and that are formulated so as to impede rather than aid an orderly determination whether the case presents triable material issues of fact. If such an order leaves the required separate statement insufficient to support the motion, the court is justified in denying the motion on that basis.” (Reeves, supra, 121 Cal.App.4th at p. 106.)

Although the Court will not strike non-material portions of the separate statements here, counsel is cautioned to include only facts that are truly material to the motion.

Additionally, with its Reply, Defendant filed a 50-page Reply to Plaintiff’s Response to Defendant’s Separate Statement. “There is no provision in the statute for this.” (Nazir, supra, 178 Cal.App.4th at p. 252.)

Defendant’s objections to the Declaration of Ja’Mesha L. Morgan are overruled.

Defendant also included evidentiary objections in response to Plaintiff’s Additional Material Facts. That is not the proper place for evidentiary objections. The response to a separate statement is supposed to “unequivocally state whether the fact is ‘disputed’ or ‘undisputed.’ An opposing party who contends that a fact is disputed must state, on the right side of the page directly opposite the fact in dispute, the nature of the dispute and describe the evidence that supports the position that the fact is controverted. Citation to the evidence in support of the position that a fact is controverted must include reference to the exhibit, title, page, and line numbers.” (California Rules of Court, rule 3.1350(f)(2).)

On October 13, 2020, Plaintiff submitted an electronic application for employment with Defendant. (Undisputed Material Facts “UMF” 1.) One week later, Defendant hired Plaintiff, and Plaintiff participated in Defendant’s New-Hire Orientation, where various policies were provided. (UMF 3, 9.) Plaintiff signed an acknowledgement that identified the policies provided to him and confirmed his understanding and agreement to follow the policies. (UMF 10.) Plaintiff understood that he could be terminated for violating any of Defendant’s policies. (UMF 14.)

Defendant’s job description for the Plaintiff’s position identified the following required duties: “creating a welcoming experience for guests, select items for order pickup, drive up and online orders, properly prepare and package guest orders, meet guest order promise times, meet productivity metrics, and demonstrate a culture of ethical conduct, safety, and compliance.” (UMF 6.)

Plaintiff did not disclose any disability, medical condition, or need for accommodation on his application or during his employment with Defendant. (UMF 2, 5.) Plaintiff never told any member of Defendant’s management team or Human Resources that he suffered from a disability, bipolar disorder, or any other mental health condition. (UMF 15-17.) Plaintiff never requested an accommodation for a disability. (UMF 18.) Without someone knowing Plaintiff very well, they would not be able to perceive that he was undergoing a manic episode. (UMF 19.)

On June 9, 2022, Defendant received a complaint from one of its Team Leaders regarding Plaintiff’s interactions with her, where he had been disrespectful and used profanity in his conversation with her. (UMF 21.) In response to this incident, Plaintiff’s supervisor met with Plaintiff and delivered coaching on “Unacceptable Conduct – Counseling” for “Failure to Behave in a Respectful Manner.” (UMF 22.)

On July 7, 2022, Plaintiff got into another altercation at work with a Team Leader, when he got angry and started yelling at her. (UMF 23.)

On July 8, 2022 at approximately 10:40 p.m., Plaintiff came into the store and asked Daniel Abts if he “hurt or killed [his] step mom or anyone in the store.” (UMF 24.) Abts asked Plaintiff to leave the store, and Plaintiff left. (UMF 25.) On July 9, 2022 at 12:06 a.m., Plaintiff came back to the store with his father and spoke to Target’s Inbound ETL, Raul Pereira. (UMF 26.) During the conversation with Pereira, Plaintiff and his father told Pereira that Plaintiff did not “need anything from Target” and he “was perfectly fine.” (UMF 27-29.)

On July 9, 2022 at approximately 9:00 a.m., Plaintiff and his father went back to the store and met with the Store Director (Alfredo Cantu) and Target’s Human Resource Team Leader. (UMF 30.) During this meeting, Cantu observed Plaintiff using profanity and yelling, and he told Plaintiff and his father that some employees were afraid of Plaintiff. (UMF 31-32.) Cantu told Plaintiff and his father to leave the store and not come back until they heard from Human Resources. (UMF 33.) Plaintiff and his father did not tell Cantu of any disability or need for any accommodation, nor did they provide any medical documentation. (UMF 34-35.)

On July 9, 2022, following the meeting with Plaintiff and his father, Cantu called Target’s Human Resources Business Partner, Emma Cade. (UMF 36.) During this call, Cantu discussed the recent incidents involving Plaintiff with Cade, including (1) Plaintiff’s June 9, 2022 and July 7, 2022 work behavior with the Team Leads and use of profanity; (2) Plaintiff’s July 8, 2022 comments to Abts regarding whether he had “hurt or kill[ed] his step mom or someone at the store”; (3) the July 9, 2022 meeting between Plaintiff, his father, and Pereira confirming Plaintiff was “fine”; (4) the second July 9, 2022 meeting with Plaintiff, his father, and Cantu; and (5) Plaintiff’s aggressive conduct in that July 9, 2022 meeting observed by Cantu. (UMF 38.) During that call, Cade and Cantu made a decision to terminate Plaintiff’s employment based on Plaintiff’s repeated violations of Defendant’s policies, including its Violence-Free Workplace policy. (UMF 39.)

After the call, they informed the Store’s Executive Team Leader of Human Resources (Nadine Wishart) of the termination decision. (UMF 40.) Wishart was asked to finalize the termination paperwork and contact Plaintiff to come to the store the next business day, on July 11, 2020, to receive his termination paperwork. (UMF 40.)

On July 10, 2022 at 4:47 a.m., Plaintiff came back to the store, knocked, and rang on the doorbell of the Employee Entrance door until another coworker opened the door. (UMF 41.) Plaintiff ran inside the store without permission from management or Human Resources, walked to the back of the Team Member Service area, grabbed Defendant’s GSTL 1 managerial keys, and left the store with the managerial keys. (UMF 41-42.) Six minutes later, Plaintiff confronted a coworker sitting in his car, used profanity in yelling at him, and then threw the managerial keys into his car. (UMF 43.)

The coworker reported this incident to his manager, Pereira, who then confirmed the details in an email to Wishart. (UMF 44.) Wishart updated Cade on this event and launched an investigation, which included review of the store’s surveillance videos. (UMF 45.) The surveillance video confirmed that Plaintiff had violated policies by (1) entering the store without permission; (2) removing Defendant’s property (the managerial keys) without permission; and (3) proceeding to leave the building with Defendant’s property. (UMF 46.)

On July 18, 2022, Plaintiff returned to the store and met with Abts, providing a Work Status Report from Kaiser Permanente, which stated that Plaintiff “is placed off work from 7/10/2022 through 7/31/2022.” (UMF 48.) Plaintiff’s Work Status Report note did not identify any disability, medical condition, or reason for the time off, nor did it state any need for accommodation related to aggressive and profanity laced communications, threat of violence, trespass, or theft. (UMF 49.) Plaintiff did not disclose that he had a mental health disability. (UMF 51.) During this meeting, Plaintiff was informed that that his employment had been terminated as of July 11, 2022. (UMF 50.)

Defendant has no record of Plaintiff lodging a complaint, either through the Integrity Hotline or Human Resources department, during his employment. (UMF 52.) On July 29, 2022, Plaintiff called Defendant’s Integrity Hotline about his termination and requested reinstatement. (UMF 54.) Lead Investigator Hillary Gonsior investigated Plaintiff’s Hotline Call and found that (1) Plaintiff was not on a medical leave at the time of his termination, and (2) based on Plaintiff’s actions between July 7, 2022 through July 9, 2022, his termination was warranted. (UMF 55.)

For each claim in the complaint, the defendant moving for adjudication must satisfy the initial burden of proof by showing that one or more elements of a cause of action cannot be established or that there is a complete defense to a cause of action. (Code Civ. Proc., § 437c, subd. (p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520 (Scalf).) Then the burden shifts to the plaintiff to show that a triable issue of material fact exists as to that cause of action or a defense. (Code Civ. Proc., § 437c, subd. (p)(2); Scalf, supra, 128 Cal.App.4th at p. 1520.) 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, 162-163.)

Defendant moves for adjudication of the remaining first, second, and third cause of action, as well as Plaintiff’s request for punitive damages.

A. Plaintiff Did Not Disclose His Disability Or Request Any Accommodations (Second and Third Causes of Action).

“The essential elements of a failure to accommodate claim are: (1) the plaintiff has a disability covered by the FEHA; (2) the plaintiff is a qualified individual (i.e., he or she can perform the essential functions of the position); and (3) the employer failed to reasonably accommodate the plaintiff’s disability. [Citation]” (Cuiellette v. City of Los Angeles (2011) 194 Cal.App.4th 757, 766.)

“Two principles underlie a cause of action for failure to provide a reasonable accommodation. First, the employee must request an accommodation. [Citation.] Second, the parties must engage in an interactive process regarding the requested accommodation and, if the process fails, responsibility for the failure rests with the party who failed to participate in good faith. [Citation.] While a claim of failure to accommodate is independent of a cause of action for failure to engage in an interactive dialogue, each necessarily implicates the other. [Citation.]” (Moore v. Regents of University of California (2016) 248 Cal.App.4th 216, 242.) An employer is liable for failing to accommodate when it is the one responsible for the breakdown in the interactive process; an employer may prevail where the employer does everything in its power to engage but the employee does not engage in further discussions in good faith. (See Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 263.)

“‘[T]he interactive process of fashioning an appropriate accommodation lies primarily with the employee.’ [Citation.] 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. Nor is an employer ordinarily liable for failing to accommodate a disability of which it had no knowledge.’ ” ’ [Citation.] ‘It is an employee’s responsibility to understand his or her own physical or mental condition well enough to present the employer at the earliest opportunity with a concise list of restrictions which must be met to accommodate the employee.’ [Citation.] Plaintiff therefore was obliged ‘to tender a specific request for a necessary accommodation.’ [Citation.]” (King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 443 (King).)

Defendant argues that Plaintiff never provided notice that he had any disability or need for accommodation. (Motion at pp. 17-18.) Plaintiff never disclosed a disability, medical or mental health condition, or need for accommodation in his application, during his employment, or during the July 9 and 18, 2022 meetings. (UMF 2, 5, 15-18, 29, 34-35, 51; see UMF 27-28.) Plaintiff’s Work Status Report, provided to Defendant after his termination, only noted, “This patient is placed off work from 7/10/2022 through 7/31/2022,” without identifying any disability, condition, or need for accommodation. (UMF 48-49.) Defendant has met its initial burden of showing that it did not know about Plaintiff’s disability or need for accommodations.

Plaintiff argues that he had been diagnosed with Bipolar Disorder I but never need accommodations until his July 2022 manic episode. (Opposition at p. 9; Husband Decl. ¶¶ 2, 5, 14.) According to Plaintiff, Defendant was aware of Plaintiff’s medical condition, both actual and perceived, due to his “abnormal, neurotic behavior” that Abt reported to management. (Opposition at pp. 9-11.) Abt testified that on July 8, 2022, he believed Plaintiff had a mental breakdown. (Morgan Decl., Ex. I at p. 80 [“Abt Depo.”].) Abt testified, “My personal opinion is that he needed help. I didn’t know what kind of help and I thought he would be better going to a hospital versus going to the police.” (Id. at p. 81.) However, Plaintiff never “communicated his distress to his supervisors or made the kind of specific request for a modified work schedule required to trigger an employer’s duty to provide accommodation.” (King, supra, 152 Cal.App.4th at p. 444.)

Plaintiff also argues that if Defendant had provided Plaintiff’s “reasonable accommodation of time off to adjust to his new medication, rather than terminating the Plaintiff and refusing to reconsider, Plaintiff would have been capable of returning to his role as Fulfillment Expert without restrictions or need for further accommodations.” (Opposition at pp. 10-11.) This is not the express accommodation requested by Plaintiff after his termination. The Work Status Report stated, “Off Work: This patient is placed off work from 7/10/2022 through 7/31/2022. Full Duty: The patient was evaluated and deemed able to return to work at full capacity on 8/1/2022.” (UMF 48.) There is no indication why Plaintiff was placed off work, nor any indication that Plaintiff needed time off to adjust to medication. It did not identify any disability, condition, or need for accommodation. (UMF 49.)

Plaintiff has failed to show the existence of a triable issue of material fact regarding Defendant’s lack of knowledge of any disability or need for accommodation.

B. Defendant Has Proven a Legitimate and Non-Discriminatory Reason for the Alleged Discrimination (First Cause of Action).

Plaintiff alleges that Defendant discriminated against him by failing to accommodate his disability and terminating him without providing an accommodation or engaging in the interactive process. (Complaint ¶ 28.)

An employee’s prima facie claim of discrimination requires “(1) the employee’s membership in a classification protected by the statute; (2) discriminatory animus on the part of the employer toward members of that classification; (3) an action by the employer adverse to the employee’s interests; (4) a causal link between the discriminatory animus and the adverse action; (5) damage to the employee; and (6) a causal link between the adverse action and the damage.” (Mamou v. Trendwest Resorts, Inc. (2008) 165 Cal.App.4th 686, 713.) If an employee makes a prima facie showing, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for the adverse action. (Id. at p. 714.) “To establish that an employer has discriminated on the basis of a disability in violation of FEHA, the plaintiff employee has the burden of proving he or she could perform ‘the essential functions of the job with or without reasonable accommodation.’” (Atkins, supra, 8 Cal.App.5th at p. 716.)

“In an employment discrimination case, an employer may move for summary judgment against a discrimination cause of action with evidence of a legitimate, nondiscriminatory reason for the adverse employment action. [Citation.] A legitimate, nondiscriminatory reason is one that is unrelated to prohibited bias and that, if true, would preclude a finding of discrimination. [Citation.] The employer’s evidence must be sufficient to allow the trier of fact to conclude that it is more likely than not that on or more legitimate, nondiscriminatory reasons were the sole basis for the adverse employment action.” (Featherstone v. Southern California Permanente Medical Group (2017) 10 Cal.App.5th 1150, 1158 (Featherstone).) Then the burden shifts to the employee “to present evidence that the employer’s decision was motivated at least in part by prohibited discrimination.” (Id. at pp. 1158-1159.) “The plaintiff’s evidence must be sufficient to support a reasonable inference that discrimination was a substantial motivating factor in the decision. [Citation.] 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 p. 1159.)

“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.]” (Featherstone, supra, 10 Cal.App.5th at p. 1159.) “To show that an employer’s reason for termination is pretextual, an employee ‘ “cannot simply show that the employer’s decision was wrong or mistaken, since the factual dispute at issue is whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent or competent.” ’ [Citation.] To meet his or her burden, the employee ‘ “must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable factfinder could rationally find them ‘unworthy of credence,’ ” ’ and hence infer ‘ “the employer did not act for [the asserted] nondiscriminatory reasons.” ’ [Citations.]” (Ibid.)

As discussed above, Defendant has shown that it had no knowledge of his disability when it decided to terminate him. (See Motion at pp. 12-13.)

Defendant further argues that Plaintiff’s violation of company policies and misconduct involving threats or violence against coworkers provided a legitimate and non-discriminatory reason for terminating Plaintiff’s employment. (Motion at pp. 13-14.) “[M]isconduct involving threats or violence against coworkers is properly considered a legitimate, nondiscriminatory reason for terminating the employee.” (Wills v. Superior Court (2011) 195 Cal.App.4th 143, 168.)

Plaintiff had agreed to follow Defendant’s policies, which include a Violence-Free Policy. (UMF 10.) The decision to terminate Plaintiff’s employment was made on July 9, 2022, based on Plaintiff’s June 9, 2022 and July 7, 2022 work behavior with the Team Leads and use of profanity; Plaintiff’s July 8, 2022 comments to Abts regarding whether he had “hurt or kill[ed] his step mom or someone at the store”; and Plaintiff’s aggressive conduct in the July 9, 2022 meeting. (UMF 38-39; see UMF 21-24, 31-32.) The next day, Plaintiff further violated Defendant’s policies by (1) entering the store without permission; (2) removing Defendant’s property (the managerial keys) without permission; and (3) proceeding to leave the building with Defendant’s property. (UMF 46.)

Defendant has met is burden of showing a legitimate and non-discriminatory reason for the termination—namely, Plaintiff’s violation of company policies and misconduct involving threats or violence against coworkers.

Plaintiff argues that there was no reasonable or good faith belief that Plaintiff was a threat to anyone, and Abts stated that he was not afraid and was only concerned for Plaintiff’s own personal safety and mental state. (Opposition at pp. 11-12.) Plaintiff also argues that the evidence “further supports that Plaintiff was perceived as needing assistance, not a threat,” during the July 10 incident. (Id. at p. 14.) According to Plaintiff, “[e]veryone who saw Plaintiff perceived that he was in need of medical intervention. Defendant’s attempts to paint Plaintiff as a threat to society is not supported by the facts in this case.” (Ibid.) Plaintiff contends that “Defendant knows that Plaintiff was suffering a manic episode due to a disability, yet still characterized it as theft and trespassing.” (Id. at p. 17.) Plaintiff also argues that he did not actually violate the “Zero Tolerance Violence-Free Workplace Policy” by its own terms because Plaintiff did not threaten or harm anyone. (Id. at p. 16.)

“While knowledge of the disability can be inferred from the circumstances, knowledge will only be imputed to the employer when the fact of disability is the only reasonable interpretation of the known facts.” (Brundage v. Hahn (1997) 57 Cal.App.4th 228, 237 (Brundage).) Plaintiff’s manic episode and mental health disorder is not the only reasonable interpretation of his conduct. As previously discussed, it is undisputed that Plaintiff never directly informed Defendant about any disability. Because Defendant did not know about Plaintiff’s mental health disorder, it could not have terminated him because of that disorder. (Ibid.)

Additionally, “the question is not whether [Plaintiff’s] comments and conduct reasonably could be construed as threatening. Rather, the question is whether the [employer] honestly believed [Plaintiff] violated its written policy against verbal threats, threatening conduct, and violence.” (Wills, supra, 195 Cal.App.4th at pp. 171-172.) Plaintiff failed to cite any evidence that Defendant did not honestly believe that Plaintiff violated its policies. (See id. at p. 172.)

To the extent that Plaintiff argues that Defendant should have retroactively accommodated him through reinstatement after time off for recovery (Opposition at pp. 18-19), Defendant’s later-acquired knowledge of any disability or need for accommodation does not change the fact that the original termination was for a proper reason. (Brundage, supra, 57 Cal.App.4th at p. 238.)

Plaintiff has failed to show the existence of a triable issue of material fact regarding whether Defendant’s asserted legitimate and nondiscriminatory reason was pretextual.

C. Defendant Has Shown That Plaintiff Cannot Establish a Basis for Punitive Damages.

For the reasons set forth above, Plaintiff cannot establish an underlying claim upon which punitive damages may be awarded.

The motion for summary judgment is GRANTED. Defendant is ordered to file a proposed judgment within five days.

A Non-Appearance Case Review Re: Submission of Proposed Judgment is scheduled for September 17, 2024 at 9:00 a.m.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. If all parties in the case submit on the tentative ruling, no appearances before the Court are required unless a companion hearing (for example, a Case Management Conference) is also on calendar.

Hon. Thomas D. Long

Judge of the Superior Court