Memorandum Points and AuthoritiesCal. Super. - 6th Dist.October 5, 20171 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case No. 17CV316847 SMRH:487287518.10 DEFENDANT’S MEMORANDUM OF POINTS AND AUTHORITIES SHEPPARD, MULLIN, RICHTER & HAMPTON LLP A Limited Liability Partnership Including Professional Corporations PAUL S. COWIE, Cal. Bar No. 250131 379 Lytton Avenue Palo Alto, California 94301-1479 Telephone: 650.815.2600 Facsimile: 650.815.2601 Email: pcowie@sheppardmullin.com SHEPPARD, MULLIN, RICHTER & HAMPTON LLP A Limited Liability Partnership Including Professional Corporations BRIAN S. FONG, Cal. Bar No. 262846 AMANDA E. BECKWITH, Cal. Bar No. 312967 Four Embarcadero Center, 17th Floor San Francisco, California 94111-4109 Telephone: 415.434.9100 Facsimile: 415.434.3947 Email: bfong@sheppardmullin.com abeckwith@sheppardmullin.com Attorneys for Defendant GRANITE ROCK COMPANY SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA GEORGE HAFELY, Plaintiff, v. GRANITE ROCK COMPANY; and DOES 1 through 100, inclusive, Defendants. Case No. 17CV316847 DEFENDANT GRANITE ROCK COMPANY’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION [Filed concurrently with Notice of Motion and Motion, Separate Statement, Appendix of Exhibits, Declarations of Stephanie Kniffin, Mike McGrath, Shirley Ow, John Seith, and Brian S. Fong, and Proposed Order] Judge: Hon. Peter Kirwan Date: February 5, 2019 Time: 9:00 a.m. Dept.: 19 Complaint Filed: October 5, 2017 FAC Filed: November 29, 2017 Trial Date: March 11, 2019 Electronically Filed by Superior Court of CA, County of Santa Clara, on 11/21/2018 8:31 PM Reviewed By: F. Miller Case #17CV316847 Envelope: 2199230 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -i- Case No. 17CV316847 SMRH:487287518.10 DEFENDANT’S MEMORANDUM OF POINTS AND AUTHORITIES TABLE OF CONTENTS Page I. INTRODUCTION ..................................................................................................................1 II. SUMMARY OF RELEVANT FACTS ..................................................................................2 A. Granite Rock Company ..............................................................................................2 B. During Hafely’s Employment, Graniterock Accommodated All of his Work Restrictions .................................................................................................................3 C. Hafely Becomes Plant Operator on May 28, 2012 .....................................................3 D. Hafely Injures His Back on June 3, 2014 ...................................................................4 E. Hafely Worked for Over a Year Without Incident and Graniterock Accommodated All of his Work Restrictions After His Back Injury ........................4 F. In March 2015, the Monthly Inventory Reconciliation Process Reveals a Significant Shortage in the Cement Powder Inventory at the San Jose Concrete Plant ............................................................................................................6 G. Hafely Re-Injures His Back at Work in April 2015 ...................................................7 H. Hafely is Written Up on June 12 for Failing to Timely Coordinate Recalibration of the Cement Scale and Overall Problems with Maintenance of the Concrete Plant ..................................................................................................8 I. Hafely Applies for Adjudication of His Workers’ Compensation on June 22, 2015 ............................................................................................................................9 J. Hafely is Written Up on July 21, 2015 for Ignoring Seith’s Direction to Complete a Daily Cement Powder Tracking Spreadsheet .........................................9 K. Hafely Met with Graniterock and His Union Representatives Regarding His Performance. ..............................................................................................................9 L. On August 21, 2015, Hafely Goes Off Work for Stress Graniterock Requests Hafely Complete Its Standard FMLA Request Forms ..............................10 M. Despite Graniterock’s Request Hafely Submit a Medical Certification for His Leave Request, Hafely Visits His Doctor on September 17, 2015, but does not Submit Any Documentation ......................................................................11 N. Hafely Refuses to Return Leave of Absence Forms ................................................12 O. Graniterock Is Left With No Choice But To Terminate Hafely on October 8, 2015 ..........................................................................................................................12 III. PROCEDURAL HISTORY .................................................................................................12 IV. LEGAL STANDARD ..........................................................................................................13 V. LEGAL ARGUMENT .........................................................................................................13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -ii- Case No. 17CV316847 SMRH:487287518.10 DEFENDANT’S MEMORANDUM OF POINTS AND AUTHORITIES A. Hafely’s Disability Discrimination, Retaliation, and California Family Rights Act Claims Fail .............................................................................................13 1. Hafely’s Employment Was Terminated After He Refused to Provide Graniterock with Any Supporting Information, Not Because of His Disability or Request for CFRA Leave ........................................................15 2. Hafely Was Not Entitled To CFRA Leave on June 3, 2014 for His Back Injury ...................................................................................................17 3. Hafely’s Write-Ups Were Based on His Poor Performance, Not His Disabilities or Subsequent Request for Accommodation .............................18 4. Hafely Cannot Establish Any Evidence of Pretext, Much Less the Requisite “Substantial Responsive Evidence” .............................................19 5. Hafely’s Release of His Labor Code 132a Claims Precludes Any Claims Arising Out of His Workers’ Compensation Claim .........................20 B. Hafely’s Claims for Failure to Engage in the Interactive Process and Failure to Accommodate Fail Because Graniterock Accommodated All of His Restrictions When Hafely Actually Participated in the Interactive Process ............21 1. Graniterock Fully Accommodated Hafely’s Restrictions Arising Out of His June 3, 2014 Back Injury ...................................................................22 2. Graniterock Satisfied Its Obligation to Participate in the Interactive Process by Requesting Medical Certification in Response to Hafely’s Requests for Leave ........................................................................23 C. Hafely’s Claim for Failure to Prevent Discrimination and Retaliation Also Fails ..........................................................................................................................24 D. Hafely’s Claim for Adverse Action in Violation of Public Policy Also Fails .........24 E. Hafely’s Claim for Punitive Damages Also Fails ....................................................24 VI. CONCLUSION ....................................................................................................................25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -iii- Case No. 17CV316847 SMRH:487287518.10 DEFENDANT’S MEMORANDUM OF POINTS AND AUTHORITIES TABLE OF AUTHORITIES Page(s) Federal Cases Barnett v. U.S. Air, Inc. (9th Cir. 2000) 228 F.3d 1105 .............................................................................................................................21 Lewis v. United States 641 F.3d 1174 (9th Cir. 2011) ....................................................................................................15 McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 ...............................................................................................................................14 Wehunt v. R.W. Page Corp. (M.D.Ga. 2004) 352 F. Supp. 2d 1342 .................................................................................................................15 Xin Liu v. Amway Corp. (9th Cir. 2003) 347 F.3d 1125 .............................................................................................................................14 State Cases Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826 ............................................................................................................................19 Aquino v. Superior Court (1993) 21 Cal. App. 4th 847 ..................................................................................................................25 Arriaga v. County of Alameda (1995) 9 Cal.4th 1055 ............................................................................................................................20 Arteaga v. Brink’s, Inc. (2008) 163 Cal.App.4th 327 ............................................................................................................14, 15 Brundage v. Hahn (1997) 57 Cal.App.4th 228 ....................................................................................................................14 Faust v. California Portland Cement, Co. (2007) 150 Cal.App.4th 864 ..................................................................................................................14 Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317 ......................................................................................................................13, 14 Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215 ..............................................................................................................21, 22 Hersant v. Cal. Dept. of Social Services (1997) 57 Cal.App.4th 997 ..............................................................................................................15, 19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -iv- Case No. 17CV316847 SMRH:487287518.10 DEFENDANT’S MEMORANDUM OF POINTS AND AUTHORITIES Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245 ..............................................................................................................21, 24 Kelly-Zurian v. Wohl Shoe Co., Inc. (1994) 22 Cal. App. 4th 397 ..................................................................................................................24 Kerr v. Rose (1990) 216 Cal. App. 3d 1551 ...............................................................................................................19 Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718 ..................................................................................................................19 Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718 ..................................................................................................................13 Moore v. Regents of University of California (2016) 248 Cal.App.4th 216 ..................................................................................................................21 Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52 ......................................................................................................................17 Salazar v. Upland Police Dept. (2004) 116 Cal.App.4th 934 ..................................................................................................................19 Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986 ..................................................................................................................24 Serri v. Santa Clara University (2014) 226 Cal.App.4th 830 ..................................................................................................................13 Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167 .............................................................................................................................24 Thompson v. Halvonik (1995) 36 Cal.App.4th 657 ....................................................................................................................13 Trujillo v. North Co. Trans. Dist. (1998) 63 Cal.App.4th 280 ....................................................................................................................24 Turner v. Anheuser Busch, Inc. (1994) 7 Cal.4th 1238 ......................................................................................................................13, 24 Willis v. Superior Court (2011) 195 Cal.App.4th 143 ..................................................................................................................17 Wilson v. County of Orange (2009) 169 Cal.App.4th 1185 ................................................................................................................21 Wysinger v. Automobile Club of Southern California (2007) 157 Cal.App.4th 413 ..................................................................................................................18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -v- Case No. 17CV316847 SMRH:487287518.10 DEFENDANT’S MEMORANDUM OF POINTS AND AUTHORITIES Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028 ..........................................................................................................................14 Federal: Statutes, Rules, Regulations, Constitutional Provisions Family Medical Leave Act ...............................................................................................................10 Workers’ Compensation Act ......................................................................................................20, 21 State: Statutes, Rules, Regulations, Constitutional Provisions Cal. Civ. Code § 3294(b) .................................................................................................................25 Cal. Civ. Code § 3294(c) ..................................................................................................................25 Cal. Civ. Proc. Code § 437c(f) .........................................................................................................24 Cal. Code. Regs. § 11091(b)(3) ..................................................................................................14, 15 Cal. Code Regs. Title 2, § 11069(c)(1) ............................................................................................23 Gov. Code § 12945.2(c)(3)(C) .........................................................................................................17 Gov. Code § 12960(d) ......................................................................................................................17 Labor Code 132a ..............................................................................................................................20 Labor Code § 132a ...........................................................................................................................20 Labor Code §§ 3600(a), 3601, 3602(a), 5300 ..................................................................................20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -1- Case No. 17CV316847 SMRH:487287518.10 DEFENDANT’S MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION Plaintiff George Hafely (“Hafely”) lost his job because he refused to respond to Defendant Granite Rock Company’s (“Graniterock”) multiple requests for him to complete leave of absence and medical certification forms. After he got hurt on the job, Hafely was accommodated, working his regular job duties for an entire year, until he convinced himself that Graniterock was “out to get him” when he was written up-over one year after his injury-for not doing his job. As a result of these write-ups, Hafely went off work for stress. After initially accommodating two of his requests for leave, Graniterock requested he fill out standard leave of absence and medical certification forms. Out of a desire to keep his state disability payments continuing, and on advice of his Worker’s Compensation counsel, Hafely did not respond. Hafely then made a third request to extend his leave but failed to submit a supporting doctor’s note. Graniterock left several voicemails and sent a letter to Hafely advising him that it did not have any documentation for his leave, and because he also never returned the leave of absence and medical certification forms, it considered his absence to be unexcused. Because Hafely mistakenly believed that Graniterock “wanted him gone,” he told Graniterock that he would not return the forms-effectively arranging for his own termination. At that point, Graniterock had no choice but to terminate Hafely’s employment for unexcused absence-but gave Hafely yet another opportunity to contact Human Resources if he believed his absence was excused. Still, Hafely did nothing. Hafely further alleges Graniterock subjected him to baseless write-ups because of his industrial injury. Hafely has no evidence to support his claims. To the contrary, Hafely received two write-ups-over one year after his injury- after a significant amount of cement powder went unaccounted for at the concrete plant he operated. After Hafely’s supervisor and manager were unable to pinpoint the cause of the shortage, they asked Hafely to recalibrate the scale at the plant to eliminate it as potential issue. Hafely, apparently not grasping the urgency of the situation, forgot to schedule the recalibration, resulting in a several week delay. This in turn led Hafely’s supervisor and manager to review Hafely’s general job performance, revealing several issues with his maintenance and operation of the concrete plant and leading to his first write-up. After the cement powder shortage persisted, Hafely was asked to complete a spreadsheet tracking the daily 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -2- Case No. 17CV316847 SMRH:487287518.10 DEFENDANT’S MEMORANDUM OF POINTS AND AUTHORITIES cement powder usage to further pinpoint the potential cause of the shortage at Hafely’s concrete plant. Hafely forgot to complete the spreadsheet, and he was duly written up again. Hafely now claims that Graniterock discriminated and retaliated against him, failed to accommodate his disability, and refused to adhere to his work restrictions. Hafely’s claims are premised on nothing more than his baseless speculation-and are not actionable. Summary judgment is appropriate as to Hafely’s entire Complaint. II. SUMMARY OF RELEVANT FACTS A. Granite Rock Company Graniterock is a civil engineering, construction, and building materials firm that provides customers with quality materials and products. (Declaration of Mike McGrath (“McGrath Decl.”), ¶ 2.) Headquartered in Watsonville, California and founded in 1900, Graniterock is one of California’s oldest family-owned companies, and currently has approximately 900 employees throughout Northern California. (Id., ¶ 2.) One of the products Graniterock offers customers is “ready-mix” concrete in various stock or custom mix designs. (Id., ¶ 3.) To produce the ready- mix concrete, Plant Operators at Graniterock’s five concrete plants use computer controls to “batch,” or mix, various raw materials, including crushed aggregate, cement powder, water and various supplementary admixture materials, according to the specific concrete mix designs. (Id., ¶ 3 .) Once batched, the ready-mix concrete is poured into the drums of mixer trucks for delivery to a jobsite. (Id., ¶ 3.) At all relevant times, each concrete plant was staffed with a single Plant Operator, who, in the parlance of modern business, “owns” their concrete plant. (Id., ¶ 4.) In other words, the Plant Operator is responsible for batching each load of concrete, as well as for plant inventory and maintenance. (Id., ¶ 4.) The Plant Operator maintains inventory by monitoring the level of raw materials on site at the concrete plant, ordering more raw materials when necessary, and signing off on all raw material deliveries. (Id., ¶ 4.) The Plant Operator also reports the actual inventory on the last day of the month to Graniterock’s accounting department as part of the monthly inventory reconciliation process. (Id., ¶ 4.) Each Plant Operator is responsible to maintain their plant to ensure it remains operational and productive by monitoring the general condition of the plant, performing routine tasks, such as lubricating moving parts, 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3- Case No. 17CV316847 SMRH:487287518.10 DEFENDANT’S MEMORANDUM OF POINTS AND AUTHORITIES washing dirt and wet concrete off before it dries, and “chipping,” or clearing, dried concrete from plant’s mixing drum. (Id., ¶ 4.) Where a Plant Operator is absent, for example in cases of illness or vacation, a “backup batch man” fills-in to batch concrete, but is not responsible for plant inventory or maintenance. (Id., ¶ 4.) B. During Hafely’s Employment, Graniterock Accommodated All of his Work Restrictions Hafely began his employment with Graniterock on January 22, 2001 as a mixer driver, based at the San Jose Concrete Plant. (Ex. H.) During his employment, Hafely suffered several work-related injuries requiring accommodations, including cutting a finger in August 2001 (Ex. N, at P653-61), injuring a shoulder in September 2004 (Id., at P629), suffering from dry and cracked hands in February 2006 (Hafely was later determined to be allergic to cement) (Id., at P663, 667- 668 ), getting hit on the head by an aluminum sheet in January 2009, (Id., at P681), and straining his neck in June 2009. (Id., at P639-51.) Despite his multiple work-related injuries, and accompanying restrictions, Hafely had no complaints about Graniterock’s treatment of him or accommodation of any of his restrictions arising from his work-related injuries. (Ex. P, at 329:16- 19; 330:15-17, 335: 1-13] .) On the one occasion Hafely had an isolated complaint related to handling of restrictions arising out of a non-work-related car accident in 2006, he resolved it by complaining directly to Shirley Ow, Graniterock’s Vice President of Human Resources. Upon his return to work following his car accident, Hafely was restricted to working less than eight hours per day. (Ex. P, at 335:14-337:14.) One night, a dispatcher told Hafely to take an extra load of concrete, causing Hafely to work beyond his eight-hour per day restrictions, in spite of his protest. (Id.) That night, Hafely called Ow to complain. (Id.) Ow called Hafely’s manager the next day and Hafely was never asked to work in excess of his work restrictions after his complaint. (Id.) C. Hafely Becomes Plant Operator on May 28, 2012 Hafely applied for and was promoted to Plant Operator of the San Jose Concrete Plant on May 28, 2012. (Ex. H.) As with any other Plant Operator, Hafely was responsible for inventory, production, maintenance, plant inspections and documenting any repairs or action items at the San Jose Concrete Plant. (Exs. H, and O, at 91:6-15, 21-22.) In or about January 2014, John Seith 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4- Case No. 17CV316847 SMRH:487287518.10 DEFENDANT’S MEMORANDUM OF POINTS AND AUTHORITIES assumed overall responsibility for the Redwood City and San Jose Concrete Plants, and became Hafely’s supervisor. (McGrath Decl., ¶ 6; Declaration of John Seith (“Seith Decl.”), ¶ 1.) D. Hafely Injures His Back on June 3, 2014 On June 3, 2014, in the process of loading a mixer truck with concrete, the chute that pours concrete from the San Jose Concrete Plant into the drum of a waiting mixer truck became blocked. (Ex. S, ¶ 8 [FAC] .) In the process of clearing the blockage, Hafely injured his lower back. (Id.) Hafely notified Seith of the injury, and Seith sent Hafely to U.S. HealthWorks in Gilroy for treatment. (Ex. G; Seith Decl., ¶ 2.).) Hafely was diagnosed with a lumbosacral sprain, given a Toradol injection, prescribed chiropractic therapy for two weeks, and returned to work the next day with work restrictions of “no stooping or bending; sit, stand, and walk as needed; and no lifting, pulling, or pushing more than 10 pounds.” (Ex. G.) Even though Hafely neither asked the doctor for time off work, he now claims that he called Seith after leaving the doctor’s office and asked for two days off of work to rest his back, but that Seith denied this request without explanation. Seith denies Hafely ever requested time off to rest his back. (Seith Decl., ¶ 2.) E. Hafely Worked for Over a Year Without Incident and Graniterock Accommodated All of his Work Restrictions After His Back Injury For the next year, Hafely worked under more or less the same restrictions of no stooping or bending, sit, stand, and walk as needed; and lifting, pulling, or pushing restrictions of between 10 and 25 pounds. (Declaration of Stephanie Kniffin (“Kniffin Decl.”), ¶¶ 3, 7 ; Ex. F, G.) Graniterock accommodated each of these restrictions, and in fact, Stephanie Kniffin, Graniterock’s Workers’ Compensation Administrator, was in frequent communication with Hafely to check on his status, beginning in the days after his back injury. (Id., ¶¶ 2, 3; Ex. F.) At first, Hafely exhibited a fundamental misunderstanding of his own restrictions. For example, on June 5, 2014, Kniffin called Hafely to see how he was doing. (Ex. F.) During that call, Hafely complained that it was hard for him to sit down all day and that he had to stand up periodically. (Id.) Kniffin reminded Hafely that his restrictions called for him to stand, and walk as needed. (Id.) Hafely did not ask for a modification of his workspace, nor did Hafely complain to Kniffin about not being granted days off to rest his back. (Kniffin Decl., ¶ 4.) Kniffin and 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -5- Case No. 17CV316847 SMRH:487287518.10 DEFENDANT’S MEMORANDUM OF POINTS AND AUTHORITIES Hafely also communicated about his injury on June 6, 16, July 3, 18, and 23, 2014, and Hafely confirmed he was working within his restrictions on June 16, 2014. (Ex. F.) On July 31, 2014, Hafely got a physical in connection with the renewal of his Class A license. (Ex. N, at P1691- 1705.) He had “no complaints’ and was “doing well over all.” (Id.) On August 1, 2014, Hafely informed Kniffin that Seith asked him to lift a cement bag over 45 pounds.1 (Ex. G; Kniffin Decl., ¶ 5.) Kniffin reminded Hafely his restrictions only allowed him to lift 15 or less pounds and that Graniterock wanted him to get better, not worse. (Ex. F; Kniffin Decl., ¶ 5) Kniffin also told Hafely to call her immediately if this happened again. (Ex. F; Kniffin Decl., ¶ 5.) Kniffin then called Seith to remind him of Hafely’s restrictions. (Ex. F; Kniffin Decl., ¶ 5; Seith Decl., ¶ 5.) Seith agreed to ensure Hafely worked within his restrictions. (Kniffin Decl., ¶ 5; Seith Decl., ¶ 5.) Since August 1, 2014, Kniffin and Hafely communicated about his injury on August 20, October 8, 20, 24, November 3, 6, December 23, 2014 and February 4, 2015. (Ex. F) Hafely never again complained to Kniffin about being asked to, or actually working, beyond any of his restrictions. (Ex. F; Kniffin Decl., ¶¶ 3, 5, 6, 7 .) Moreover, Hafely never raised the issue of lifting beyond his restrictions to either Seith or McGrath. (Exs. O, at 94:7-9; and Q, at 127:22-25; McGrath Decl., ¶ 19; Seith Decl., ¶ 8.) In fact, during the year following his back injury, Graniterock provided additional accommodations beyond simply respecting Hafely’s restrictions. For example, Seith always approved employees to work overtime to assist Hafely maintain the plant on the weekends, although on some occasions, when Hafely asked for as many as five Graniterock employees to work overtime and help him do his job maintaining the plant, Seith might only approve a smaller number of employees to work overtime. (Ex. P, at 246:3-9; Seith Decl., ¶ 10.) During Hafely’s regular workday, he often asked Seith and dispatchers to send mixer drivers to assist him with work around the plant. (Exs. O, at 98:6-10; Q, at 94:2-15; Seith Decl., ¶ 11.) Neither Seith nor the dispatchers ever refused Hafely’s requests for help, although sometimes, no mixer drivers were immediately available to assist because they 1 Contradictorily, Hafely testified on February 25, 2016 that his supervisors never asked him to lift beyond his restrictions, but sometimes dispatchers did. (Ex. Q, at 93:5-14] .) Hafely acknowledged that dispatchers were not his supervisors. (Exs. O, at 94:7-9; and Q, at 127:22-25.] .) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -6- Case No. 17CV316847 SMRH:487287518.10 DEFENDANT’S MEMORANDUM OF POINTS AND AUTHORITIES were out delivering concrete to customers. (Exs. O, at 97:22-25; and P, at 375:20-22; Seith Decl.) Whenever Hafely needed a break, he could, and did, ask the dispatchers to call his backup batch man, William Mookini, to relieve him, such as when he wanted lunch or needed to sit, stand, or walk per his restrictions. (Ex. P, at 356:14-19.) Mookini would relieve Hafely when called unless operations were “real, real busy [and] they couldn’t afford to give him up.” (Ex. P, at 356:14-19.) On March 2, 2015, Hafely was released to return to work without restrictions. (Ex.G .) From August 1, 2014 until he was released to return to work without restrictions on March 2, 2015, Hafely did not complain to Kniffin, his supervisors, or his doctors about being asked to work beyond his restrictions. (Exs. F, O, at 94:7-9; and Q, at 127:22-25; McGrath Decl., ¶ 19; Seith Decl., ¶ 8; Kniffin Decl., ¶ 5.) Moreover, Hafely did not complain to Ow about any issues with his accommodation, even though he resolved his only other previous complaint regarding respect for his accommodations by going directly to Ow in 2006. (Ow Decl., ¶ 8.) F. In March 2015, the Monthly Inventory Reconciliation Process Reveals a Significant Shortage in the Cement Powder Inventory at the San Jose Concrete Plant The Plant Operator’s month-end report of actual inventory on hand is utilized by Graniterock’s accounting department in two ways. First, at the end of each month, Graniterock’s accounting department reconciles the amount of inventory actually on hand at each plant with the book inventory (the amount suggested should be on hand as a result of deliveries of raw materials and usage in batched orders) to derive an overage (more inventory on hand than on the books) or a shortage (less on hand than suggested by the books).2 (McGrath Decl., ¶ 8.) Second, at the beginning of the next month, regardless of whether there was an overage or shortage, the accounting department uses the Plant Operator’s report of actual inventory as the starting point for that month’s book inventory, so any difference in the month-end inventory is not carried into the next month. (Id., ¶ 8.) In March 2015, after Hafely was released to return to work without restrictions, Graniterock’s accounting department determined that there was significant shortage of 2 As part of taking delivery of raw materials at a concrete plant, the Plant Operator signs a “delivery tag,” describes the type and amount of material delivered. (McGrath Decl., ¶ 8.) That delivery tag is then sent to Graniterock’s accounting department, which updates the book amount of inventory on-hand. (Id., ¶ 8.) As concrete is produced at a plant, Graniterock’s systems reduce the book amount of inventory on-hand by the amount of raw material each order should use, based upon the specific mix design. (Id., ¶ 8.) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -7- Case No. 17CV316847 SMRH:487287518.10 DEFENDANT’S MEMORANDUM OF POINTS AND AUTHORITIES 118 tons less cement powder on hand at the San Jose Concrete Plant for the month of February 2015. (Id., ¶ 9.) While significant, this shortage was not completely unusual, so McGrath decided to wait for a month to see if the cement powder discrepancy would normalize. (Id., ¶ 9.) For example, in the preceding six months, the average monthly cement powder discrepancy at the San Jose Concrete Plant was a shortage of 54 tons, with the largest shortage of 151 tons in September 2014 and a maximum overage of 14 tons in August 2014. (Id., ¶ 9.) In April 2015, there was a 203 ton shortage at the San Jose Concrete Plant for the month of March 2015. (Id., ¶ 10.) This was the first time such significant discrepancies occurred in repeat months during McGrath’s tenure as Concrete Division Manager. (Id., ¶ 10.) Seith and McGrath began searching for explanations. G. Hafely Re-Injures His Back at Work in April 2015 On April 8, 2015, Hafely hurt his back chipping the drum. (Ex. P, at 367:2-10.) He resumed treatment and was placed on work restrictions of no stooping or bending; taking a 5- minute stretch break every hour; and no lifting, pulling, or pushing up to 25 pounds. (Ex. G.). On April 22, 2015, Kniffin called Hafely to check on him. On April 24, 2015, Hafely informed Kniffin that he was working within his work restrictions and would be beginning acupuncture the following week. [Kniffin log] In May 2015, after there was another significant shortage at the San Jose Concrete Plant for the month of April 2015, and Seith and McGrath could not determine the cause of the shortage themselves, they asked Hafely, the Plant Operator of the San Jose Concrete Plant, to help rule out potential causes. (McGrath Decl., ¶ 10; Seith Decl., ¶ 13.) Specifically, Seith asked Hafely to coordinate the recalibrating of the cement scale at the San Jose Concrete Plant with a third-party vendor to eliminate that as a cause of the discrepancy. (Seith Decl., ¶ 14.) Seith also asked Hafely if he knew what happened to the cement powder, since inventory control was Hafely’s direct responsibility. (Id., ¶ 13.) Hafely interpreted this as an accusation of stealing and began searching through Graniterock’s systems for evidence the shortage was a result of an accounting error, believing this would exonerate him from the perceived accusation. (Ex. O, at 160:1-161:15.) Neither Seith nor McGrath believed Hafely stole any cement powder, but they were simply trying to figure out the cause of the inventory shortage 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -8- Case No. 17CV316847 SMRH:487287518.10 DEFENDANT’S MEMORANDUM OF POINTS AND AUTHORITIES at Hafely’s concrete plant. (McGrath Decl., ¶ 11; Seith Decl., ¶ 13.) In June 2015, the month-end reconciliation process showed a 65 ton cement powder shortage at the San Jose Concrete Plant for the month of May 2015. (McGrath Decl., ¶ 12.) H. Hafely is Written Up on June 12 for Failing to Timely Coordinate Recalibration of the Cement Scale and Overall Problems with Maintenance of the Concrete Plant Despite being asked to do so, Hafely forgot to coordinate the recalibration of the cement scale, resulting in a several week delay. (Exs. K and O, at 164:11-15.) Hafely did not appear to take the cement powder shortage issue seriously enough to help eliminate potential causes of the discrepancy. (McGrath Decl., ¶ 13; Seith Decl., ¶ 14.) Seith and McGrath then reviewed Hafely’s job performance generally and discovered Hafely was also behind on regularly chipping the drum, leading to premature wear and causing the chain driving the drum to be “kicked off,” leading to further downtime at the plant. (Ex. O, at 173:12-18; 174:6-14.) It also came to light that Hafely failed to discover a hole in the lightweight bunker for years, even though it was his responsibility to find and fix. (Ex. O, at 174:20-175:5.) Also during this time, Hafely decided to install a new “bindicator,” a device used to measure the amount of material in the silos on the concrete plant where raw materials are stored. Since inventory control was a major focus for Seith and McGrath at this time, the fact Hafely could not get the new bindicators to work was a further performance issue, even if not a potential cause of the cement powder shortage. (McGrath Decl., ¶ 13; Seith Decl., ¶ 15; Ex. O, at 171:14-18.] .) Accordingly, based on the accumulation of all of these issues, in conjunction with the delay cause by Hafely’s failure to act promptly to get the cement scale recalibrated, Seith and McGrath wrote Hafely up on June 12, 2015. (McGrath Decl., ¶ 14; Seith Decl., ¶ 16; Ex. K.) Hafely was not written up for “stealing” the cement powder. On June 16, 2015, Hafely called Kniffin “concerned about his job because he was written up.” Hafely asked Kniffin if there was anything she could do to assist him. (Ex. F [Kniffin log].) Hafely never complained that the write-up was retaliatory, discriminatory, or otherwise related to his back injury. (Kniffin Decl., ¶¶ 4, 5.) Yet, even though Hafely was concerned about his job enough to call Kniffin, when Seith met with him on June 18, 2015 to discuss a follow-up plan for resolving the issues in his June 12 write-up, Hafely had not yet scheduled the scale calibration that 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -9- Case No. 17CV316847 SMRH:487287518.10 DEFENDANT’S MEMORANDUM OF POINTS AND AUTHORITIES he was requested to do in May 2015. (Seith Decl., ¶ 17; Ex.. L.) Because he did not appear to take the cement powder shortage issue seriously, Hafely needed to be managed with “zero tolerance”. (Ex. L.) I. Hafely Applies for Adjudication of His Workers’ Compensation on June 22, 2015 On June 22, 2015, more than one year after his injury, Hafely filed an application for adjudication of his workers’ compensation for his June 3, 2014 back injury. (Ex. N, at P0267, 0575.) Hafely has repeatedly insisted that his June 22, 2015 application for adjudication of his worker’s compensation claim was the impetus for Graniterock’s adverse actions against him. Hafely testified that he was accused of stealing and of not doing his job because he hired his workers’ compensation attorney, that he was written up because he filed for workers’ compensation, and that his work restrictions were not violated until after he hired his workers’ compensation attorney to file an application for adjudication. (Exs. O, at 18:17-24, 81:25-82:14; and P, at 340:16-20.) J. Hafely is Written Up on July 21, 2015 for Ignoring Seith’s Direction to Complete a Daily Cement Powder Tracking Spreadsheet In July 2015, the San Jose Concrete Plant had a 168 tons cement powder shortage for the month of June 2015. (McGrath Decl., ¶ 16.) On July 14, 2015, in a further effort to resolve the recurring shortage issue, Seith and McGrath asked Hafely to begin completing a daily spreadsheet to track the amount of cement powder on hand at the beginning and end of each day. (McGrath Decl., ¶ 17; Seith Decl., ¶ 18; Ex. O, at 165:5-11.) On July 15, 2015, Hafely forgot to complete the spreadsheet. (UMF 18.) Although the spreadsheet tracking process had only just begun, given the continuing shortage of cement powder at the San Jose Concrete Plant, Hafely’s failure to complete the spreadsheet was unacceptable. [Pl. Dep. 157:15-19; 266:2].] On July 21, 2015, Seith gave Hafely a warning letter for failing to complete the spreadsheet on July 15. (Ex. M.) K. Hafely Met with Graniterock and His Union Representatives Regarding His Performance. In August 2015, the San Jose Concrete Plant had a cement powder shortage of 113 tons for the month of July 2015. (McGrath Decl., ¶ 18.) In light of these write-ups and performance 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -10- Case No. 17CV316847 SMRH:487287518.10 DEFENDANT’S MEMORANDUM OF POINTS AND AUTHORITIES issues, a meeting was called with Hafely, Seith, McGrath, representatives from Hafely’s union, and Ow on August 18, 2015. (Ex. I.) During this meeting, Hafely did not dispute either of his write-ups, nor did he raise any issue in relation to his back injury or Graniterock’s alleged failure to accommodate him. (Ex. P, at 260:22-261:4, 276:6-9. 272:5-14, 272:19-24.; McGrath Decl., ¶ 19; Declaration of Shirley Ow (“Ow Decl.”), ¶ 8.) Hafely claims he brought a dossier of evidence showing the shortage was caused by an accounting error, thus to exonerate himself from the perceived accusation of theft. (Ex. O, 160:21-161:4.) Hafely claims that McGrath brushed him away when he attempted to show McGrath the dossier. (Id.) In response, Hafely decided to throw the dossier in the trash. (Id.) L. On August 21, 2015, Hafely Goes Off Work for Stress Graniterock Requests Hafely Complete Its Standard FMLA Request Forms Hafely worked August 19, 2015, the day after the meeting, and then took the next day off to see his doctor. On August 21, 2015, Hafely’s psychiatrist took him off work for stress from August 21, 2015 through September 1, 2015. (Ex. A.) In September 2015, Graniterock’s accounting department determined there was a 193 ton cement powder shortage at the San Jose Concrete Plant for the month of August 2015. (McGrath Decl., ¶ 20.) On or about September 1, 2015, Hafely’s psychiatrist extended Hafely’s time off work through September 17, 2015. (Ex. B.) Ann Giusiana, Graniterock’s Human Resources Representative in charge of administering non-work-related employee leaves, spoke with Hafely by telephone on September 3, 2015. (Declaration of Ann Giusiana (“Giusiana Decl.”), ¶ 4; Ex. D.) Hafely indicated he would be off work until September 18, 2015. (Id.) To determine whether Hafely’s request for time off qualified for protected leave under the Family Medical Leave Act and California Family Rights Act, Giusiana sent Hafely a Request for Leave of Absence and a Certification of Health Care Provider form on September 4, 2015, requesting they be returned by September 19, 2015, and told Hafely that his treating physician needed to complete a Return to Work Certification prior to his anticipated return to work on September 18. (Ex. D.) On September 9, 2015, Hafely asked his worker’s compensation attorney, Robert Farahmand whether he should complete the Request for Leave of Absence and a Certification of 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -11- Case No. 17CV316847 SMRH:487287518.10 DEFENDANT’S MEMORANDUM OF POINTS AND AUTHORITIES Health Care Provider forms. (Ex. T, at p. 5.) Farahmand asked to see the paperwork, but unfortunately Hafely never provided it him, because Farahmand would have confirmed that the forms were innocuous and advised Hafely he should complete the forms and return them. (Ex. U, at 50:13-51:6.) On September 11, 2015, Hafely filed a workers’ compensation claim for stress arising out of his write-ups. (Exs. T, at p. 6, and W.) M. Despite Graniterock’s Request Hafely Submit a Medical Certification for His Leave Request, Hafely Visits His Doctor on September 17, 2015, but does not Submit Any Documentation On or about September 17, Hafely allegedly saw a saw his psychiatrist. (Ex. P, at 288:23- 289:6.) Hafely subsequently called dispatch after hours and left a message that his time off was extended through October 19, 2015. (Ex. D.) Although Hafely claims he also stopped at a local Staples on his way home to fax over the doctor’s note to Graniterock, there is no evidence he did so, other than his self-serving testimony.3 Hafely knew that Graniterock did not receive this note because Graniterock subsequently followed up with him asking him to supply supporting documentation. (UMF 24.) On September 18, 2015, Giusiana called Hafely to follow-up on his September 17, 2015 voicemail to dispatch, leaving him a voicemail requesting a supporting doctor’s note and inquiring about the status of the medical certification and leave of absence forms she sent to him two weeks earlier on September 4, and due by September 19. (Giusiana Decl., ¶ 7, 8 ; Ex. D.) Giusiana called Hafely again on September 22, 2015, and left another message requesting his September 17 doctor’s note and the missing leave of absence forms. (Giusiana Decl., ¶¶ 9,10, Ex. D.) On September 24, 2015, Giusiana sent Hafely another letter requesting the leave and certification forms be completed, and extending the deadline to return them by fifteen days to October 4. (Giusiana Decl., ¶ 11, Ex. D.) Giusiana’s September 24 letter also re-iterated her voicemails that Graniterock had not received any additional documentation extending his time off or any of the requested forms. Giusiana’s September 24 letter advised him that consequently his absence was considered an unapproved leave which could result in termination of his employment if he did not provide the requested forms. (Giusiana Decl., ¶ 11, Ex. D.) 3 In fact, Hafely admits he destroyed any evidence he sent the fax (Ex.O, 56:12-17; Ex. P, 218:24-219:7.) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -12- Case No. 17CV316847 SMRH:487287518.10 DEFENDANT’S MEMORANDUM OF POINTS AND AUTHORITIES N. Hafely Refuses to Return Leave of Absence Forms On September 28, 2015, Hafely called Farahmand to discuss Giusiana’s September 24, 2015 letter. (Ex. T , p. 3 .) Hafely understood that his employment could be terminated if he did not fill out and return the leave of absence paperwork, and that Graniterock was considering his leave an unapproved absence. (Exs. O, at 62:14-17; and T, at p. 3.) Hafely proposed to Farahmand that he call Giusiana to let her know he would not be filling out the leave of absence paperwork, and Farahmand told him to “go for it.”4 (Ex. T, a p. 4.) So, following his attorney’s approval, Hafely emailed Giusiana on September 30, 2015, stating he would not provide any certification because he was “advised by my attornies [sic] as not to fill out the leave of absence. I am currently on disability for work related stress”5 (Ex. E) O. Graniterock Is Left With No Choice But To Terminate Hafely on October 8, 2015 In October 2015, there was 134 ton shortage of cement powder at the San Jose Concrete Plant for the month of September 2015. (McGrath Decl., ¶ 21.) Because Hafely refused to provide medical documentation, his absence was deemed unexcused, and Ow decided to terminate his employment effective October 8, 2015. (Ow Decl., and Ex. J.) That same day, Ow sent a letter to Hafely detailing the reasons for his termination, including a recitation of Graniterock’s efforts to get him to complete the leave of absence forms, and his refusal to cooperate. Id. She also gave Hafely the opportunity to contact her if he disputed the accuracy of the facts, but Hafely never contacted-or attempted to contact-Ow or anyone in HR after receipt of the letter because he “didn’t care anymore.” (Ex. O, at 18:5-14.) III. PROCEDURAL HISTORY Hafely filed his complaint with the Department of Fair Employment and Housing on October 5, 2016. (Ex. R.) Hafely filed his Verified Complaint on October 5, 2017 and on November 29, 2017, Hafely filed a Verified First Amended Complaint (FAC), alleging claims for (1) disability discrimination; (2) failure to engage in the interactive process; (3) failure to 4 Hafely never actually provided the leave of absence paperwork, or September 4 or 24, 2015 letters to Farahmand for review, and if he had, Farahmand would have confirmed that the forms were innocuous and advised Hafely he should complete the forms and return them. (Ex. U, at 50:13-51:6.) 5 Hafely’s Verified FAC alleges that he sent this email to Shirley “Au,” rather than Giusiana. (Ex. S, ¶ 30.) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -13- Case No. 17CV316847 SMRH:487287518.10 DEFENDANT’S MEMORANDUM OF POINTS AND AUTHORITIES accommodate; (4) retaliation ; (5) failure to prevent discrimination, and/or retaliation; (6) California Family Rights Act (CFRA) interference; (7) CFRA retaliation; and (8) adverse action in violation of public policy. (Ex. S.) Trial is set for March 11, 2019. IV. LEGAL STANDARD Employment claims are properly subject to motions for summary judgment. Turner v. Anheuser Busch, Inc. (1994) 7 Cal.4th 1238, 1252. In a summary judgment motion in “an employment discrimination case, the employer, as the moving party, has the initial burden to present admissible evidence showing either that one or more elements of plaintiff’s prima facie case is lacking or that the adverse employment action was based upon legitimate, nondiscriminatory factors.” Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 861 “‘[L]egitimate’ reasons in this context are reasons that are facially unrelated to prohibited bias, and which, if true, would thus preclude a finding of discrimination.” Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 358 [emphasis in original].) Where an employer produces such evidence, the plaintiff must then present substantial responsive evidence that the reasons given to him for the action were pretext for discrimination. Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718, 1735. Put another way, an employer is entitled to summary judgment if, “considering the employer’s innocent explanation for its actions, the evidence as a whole is insufficient to permit a rational inference that the employer’s actual motive was discriminatory.” Guz, supra, 24 Cal.4th at 361. When the employer’s supporting evidence establishes the “absence of an essential element of the plaintiff’s case,” and “the plaintiff’s opposing documentation does not show … that an essential element exists, summary judgment should be granted.” Thompson v. Halvonik (1995) 36 Cal.App.4th 657, 661. V. LEGAL ARGUMENT A. Hafely’s Disability Discrimination, Retaliation, and California Family Rights Act Claims Fail Here, Hafely asserts a variety of claims, including retaliation, disability discrimination, and interference and retaliation with his rights under California Family Rights Act (“CFRA”), arising 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -14- Case No. 17CV316847 SMRH:487287518.10 DEFENDANT’S MEMORANDUM OF POINTS AND AUTHORITIES out of the termination of his employment, his June 12 and July 21, 2015 write-ups, and the alleged denial of his request for leave to rest his back on June 3, 2014. Hafely’s claims will fail. To defeat summary judgment on a claim for discrimination under FEHA, a plaintiff must first establish a prima facie case of discrimination. Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 355; see also McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 802. This requires that the plaintiff demonstrate that: (1) he suffered from a disability; (2) was otherwise qualified to do his job; and (3) was subjected to an adverse employment action because of his disability. Brundage v. Hahn (1997) 57 Cal.App.4th 228, 236. Similarly, to prevail on a CFRA interference claim, an employee must show that the employer denied the employee protected leave. Xin Liu v. Amway Corp. (9th Cir. 2003) 347 F.3d 1125, 1135, fn. 9; Faust v. California Portland Cement, Co. (2007) 150 Cal.App.4th 864. To prevail on a CFRA retaliation claim, an employee must establish that: (1) the defendant was an employer covered by CFRA; (2) the plaintiff was an employee eligible to take CFRA leave; (3) the plaintiff exercised a right to take leave (or attempted to exercise a right) for a qualifying CFRA purpose; and (4) the plaintiff suffered an adverse employment action, such as termination, because he or she exercised or attempted to exercise a right to CFRA leave. Finally, to establish a cause of action for retaliation, Hafely must establish a prima facie case by showing (1) that he engaged in a protected activity (i.e., complained of conduct made unlawful by FEHA); (2) was thereafter subjected to an adverse employment action; and (3) that there is a causal link between the protected activity and the adverse employment action. Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042. Here, the undisputed evidence shows Hafely’s employment was terminated after he refused to provide the requested medical certification and leave of absence forms, and in fact affirmatively stated that he would not submit the forms. (UMF 19, 20, 21, 22, 23, 24, 25, 26, 27, 28.) An employer does not have to accept an employee’s subjective belief that he is disabled and may rely on medical information in that respect. Arteaga v. Brink’s, Inc. (2008) 163 Cal.App.4th 327, 347. Under California law, an employer must provide an employee with 15 calendar days to provide a medical certification or recertification for the need for CFRA leave. 2 Cal. Code. Regs. § 11091(b)(3). In addition, the employer must notify the employee at the time the request for 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -15- Case No. 17CV316847 SMRH:487287518.10 DEFENDANT’S MEMORANDUM OF POINTS AND AUTHORITIES certification is made of the anticipated consequences of failing to provide the requested certification. Id. If the employee fails to return the requested certification, the employer may deny CFRA protections for the leave following expiration of the 15-day period. Id. “If the employee never produces the certification or recertification, the leave is not CFRA leave.” Id. Moreover, an employer may terminate an employee for failure to return the required forms. Lewis v. United States, 641 F.3d 1174, 1177-78 (9th Cir. 2011). As a result. Hafely cannot show the required causal link between his disability or any protected activity and termination. Likewise, the undisputed evidence shows that Hafely was written up on June 12, 2015 for failing to get the cement scale at his concrete plant recalibrated, as well as admittedly failing to maintain the concrete plant, and that his write-up on July 21, 2015 was a direct consequence of his failure to complete the daily cement powder tracking spreadsheet. (UMF 17, 18.) The FEHA does “not guarantee employees ‘a stress-free working environment.’ “ Arteaga, supra, 163 Cal.App.4th at 344 (quoting Wehunt v. R.W. Page Corp. (M.D.Ga. 2004) 352 F. Supp. 2d 1342, 1354). Hafely’s CFRA claim for denial of leave to rest his back in June 3, 2014 is time-barred, as Hafely failed to file his DFEH complaint within a year of the alleged denial of his request for CFRA leave. Moreover, his DFEH complaint makes no mention of his alleged request CFRA leave for his June 3, 2014 back injury, and thus Hafely failed to exhaust his administrative remedies as to his CFRA interference claim. In any event, Hafely never asked for leave on June 3, 2014 to rest his back and returned to work pursuant to his restrictions the next day. Moreover, Hafely’s claims will fail because he has no evidence showing that the employer’s reasons were false and that the true reason for the adverse action was intentional discrimination. Hersant v. Cal. Dept. of Social Services (1997) 57 Cal.App.4th 997, 1005. Finally, all of Hafely’s discrimination and retaliation claims fail because he already released them as part of the compromise and release of his workers’ compensation claim. 1. Hafely’s Employment Was Terminated After He Refused to Provide Graniterock with Any Supporting Information, Not Because of His Disability or Request for CFRA Leave Hafely did not lose his job because of his disability or due to his request for a leave of absence. Hafely’s request for leave for stress was denied, and his employment ultimately 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -16- Case No. 17CV316847 SMRH:487287518.10 DEFENDANT’S MEMORANDUM OF POINTS AND AUTHORITIES terminated, after he refused to refused to return the medical certification and leave of absence forms related to his absence. (UMF 28.) Hafely affirmatively refused to engage in even the most basic communication about his leave of absence, despite repeated requests. Graniterock first requested Hafely submit completed leave of absence request and medical certification forms on September 4, 2015, providing him a deadline of September 19, 2015. Despite seeing his doctor on September 17, 205, Hafely did not submit these forms, but instead left a message with dispatch after hours on September 17, 2015 that his leave had been extended to October 19. Giusiana duly called him the next day to request additional information regarding his leave extension and that the medical certification and leave of absence request forms be returned. (UMF 21.) When Hafely did not respond, Giusiana again called Hafely on September 22. (UMF 22.) After receiving no response, Giusiana sent Hafely a letter on September 24, 2015, memorializing the fact that Graniterock did not have any documentation regarding his leave extension, or the requested leave and medical certification forms for the period after September 17, and advising Hafely his time off was unapproved, and that failure to return the forms could result in the termination of his employment. (UMF 23 .) Despite claiming he faxed a supporting doctor’s note to Graniterock, Hafely knew as of his receipt of the September 24, 2015 letter that Graniterock did not have his September 17, 2015 doctor’s note. (UMF 24 .) Unfortunately, Hafely believed that responding to Graniterock’s request for information would jeopardize his disability payments, so he decided not to respond. (Ex. O, at 40:19-41:6.) Hafely went so far as to seek the approval of his workers’ compensation attorney, Farahmand, for his plan to tell Giusiana that he would not be cooperating. (Ex. T, at p. 4.) After Farahmand told him to “go for it,” Hafely expressly told Giusiana that he was not going to return the required forms. (UMF 25.) As a result, Graniterock was faced with an employee claiming to be on disability for work- related stress, yet refusing to provide it with any substantiating information. (Ex. E.) Upon receipt of Hafely’s written statement that he had no intention of returning the forms, Ow decided to terminate his employment for his unexcused absence. At this point, Hafely’s unexcused absence had lasted from August 21 to October 8, 2015. Even still, Ow advised Hafely in the termination letter that, if any of the facts were incorrect, he could still reach out to her to clear it 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -17- Case No. 17CV316847 SMRH:487287518.10 DEFENDANT’S MEMORANDUM OF POINTS AND AUTHORITIES up. (Ex. J.) Even though, Ow gave Hafely another chance to either return the forms or otherwise explain his unexcused absence, Hafely made no attempt to contact anyone in HR because he “didn’t care anymore.” (Ex. O, at 18:5-14.) He admits that he knew and understood that he could be terminated for failure to return the leave of absence and medical certification forms, but still refused to do so. (Id., at 40:11-18.) Hafely’s employment was terminated because he affirmatively refused to respond to Graniterock’s request he submit completed medical certification and leave of absence request forms. It is undisputed that Graniterock had a legitimate nondiscriminatory reason to terminate Hafely’s employment, and therefore, his discrimination, retaliation and CFRA claims arising from his request for leave in 2015 and ultimate termination of his employment fail. 2. Hafely Was Not Entitled To CFRA Leave on June 3, 2014 for His Back Injury Although his FAC asserts a claim for failure to provide CFRA leave for his back injury, there is no evidence to indicate that Hafely requested CFRA leave for his back injury of June 3, 2014, nor that he was “unable to perform the functions of the position.” Gov. Code § 12945.2(c)(3)(C). However, even assuming arguendo Hafely asked Seith for two days off for his back injury, the medical certification Hafely provided stated unequivocally that he could return to work the very next day, June 4, 2014. (UMF 1.) Moreover, even if Hafely had requested CFRA leave on June 3, 2014 to rest his back injury, any claim based on his back injury is barred by the one-year statute of limitations. To exhaust administrative remedies, a plaintiff must file a complaint with the DFEH one year after the alleged unlawful action. Gov. Code § 12960(d); Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 63. Hafely filed a complaint with the DFEH on October 5, 2016, over two years after his June 3, 2014 request for leave was allegedly denied. (Ex. R.) Moreover, even if timely, his DFEH complaint failed to allege that Hafely requested any time off for his back injury on or about June 3, 2014 or that his request for CFRA leave was denied. See Willis v. Superior Court (2011) 195 Cal.App.4th 143, 157 (DFEH complaint did not mention harassment or retaliation, thus employee failed to exhaust administrative remedies). Thus, even if Hafely’s claim for CFRA interference regarding his alleged request for CFRA leave on or about June 3, 2014 was viable, it is time-barred. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -18- Case No. 17CV316847 SMRH:487287518.10 DEFENDANT’S MEMORANDUM OF POINTS AND AUTHORITIES 3. Hafely’s Write-Ups Were Based on His Poor Performance, Not His Disabilities or Subsequent Request for Accommodation Hafely cannot show a causal link between his write-ups and his back injury more than one year prior. As an initial matter, the temporal proximity between the write-ups and his date of injury can lead to the inference that they are not causally related. Wysinger v. Automobile Club of Southern California (2007) 157 Cal.App.4th 413, 421. More fundamentally, the simple fact is Hafely was written up for his poor performance in light of a continued, serious discrepancy in the cement powder inventory at his concrete plant and his failure to properly maintain the plant. Hafely’s June 12, 2015 write-up was based on poor performance. Hafely forgot to call in to have the scales recalibrated after being requested to do so, and when he finally did call, the vendor was booked up and could not come out to recalibrate the scale for several weeks. (UMF 11. ) Hafely also admitted he decided to install a new style of bindicator, and he could not get it to work. (UMF 12.) Hafely also admitted that he was behind on regularly chipping the drum. (UMF 13.) Moreover, because Hafely was not regularly chipping the drum, the chain was often “kicked off” the drive, causing issues at the concrete plant. (UMF 13.) Hafely also admitted there was a hole in the lightweight bunker that he did not know about for years, which was his responsibility to find and fix. (UMF 14.) While Hafely might not believe he deserved to get written-up, it is clear that there was a reasonable basis to write him up for poor performance, especially in light of the fact that the San Jose Concrete Plant was experiencing significant cement powder shortages over a period of months. Hafely also cannot show his second write-up was a result of his disability or request for accommodations. Hafely’s July 21, 2015 write-up was due to his failure to complete the daily cement powder tracking spreadsheet. (UMF 18.) Despite being asked to do so, Hafely admits that he did not complete the spreadsheet on July 15, 2015. (UMF 17, 18.) Given his repeated failures to remember to schedule recalibration of the scale and the continued cement powder shortage at Hafely’s concrete plant, it was entirely reasonable for Hafely to be managed with zero tolerance. Although Hafely believes July 21, 2015 write-up was unfair, he has no evidence, much less the requisite substantial responsive evidence to show that he was written up because of any disability. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -19- Case No. 17CV316847 SMRH:487287518.10 DEFENDANT’S MEMORANDUM OF POINTS AND AUTHORITIES It is undisputed that Hafely failed to perform the very task that his supervisor had required of him as a direct result of the continued cement powder shortage at Hafely’s concrete plant. Hafely requested accommodations for his back injury more than one year prior to any alleged adverse employment action, and Graniterock accommodated all of his restrictions throughout his employment. (UMF 1-9.) Moreover, Hafely admitted that cement inventory was his responsibility as the Plant Operator. (UMF 10.) He also acknowledged that it was his responsibility to determine what happened to the cement powder. (Ex. O, at 160:1-10; 344:10- 16.) He testified that he determined the cause, but he threw away the paperwork. (Ex. O, at 161- 162.) Hafely cannot, therefore, show his write-ups were due to his request for reasonable accommodations or as a result of his back injury. 4. Hafely Cannot Establish Any Evidence of Pretext, Much Less the Requisite “Substantial Responsive Evidence” Instead of producing substantial responsive evidence to overcome Graniterock’s legitimate, non-discriminatory reasons for terminating his employment and writing him up, Hafely speculates that Graniterock was “out to get him” and that he “knew they wanted me gone.” [Pl. Dep. 18:17…] Hafely’s conjecture, without more, is not “evidence” of any discriminatory motive and such speculation is insufficient to avoid summary judgment. See Salazar v. Upland Police Dept. (2004) 116 Cal.App.4th 934, 941; (“An assertion . . . based solely on conjecture and speculation is insufficient to avoid summary judgment.”); see also Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 847 (plaintiff’s “evidence allowed speculation about an unlawful conspiracy, but speculation is not evidence”); Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1005 (plaintiff must prove the “employer acted with discriminatory animus”); Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718, 1735 (speculation and conjecture “cannot be regarded as substantial responsive evidence.”) As such, Hafely’s subjective belief that the Graniterock was team was “out to get him” him after he was injured and that discrimination and retaliation occurred as a result is insufficient to prove a genuine, triable issue of material fact, and is insufficient to establish pretext and avoid summary judgment. (See Kerr v. Rose (1990) 216 Cal. App. 3d 1551, 1563-64 [superseded by statute on other grounds].) Thus, Hafely cannot 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -20- Case No. 17CV316847 SMRH:487287518.10 DEFENDANT’S MEMORANDUM OF POINTS AND AUTHORITIES establish that Graniterock’s legitimate, nondiscriminatory reasons for the termination of his employment and his write-ups are pretextual, and his claim should be summarily adjudicated. 5. Hafely’s Release of His Labor Code 132a Claims Precludes Any Claims Arising Out of His Workers’ Compensation Claim Hafely claimed during deposition that, after over one year of accommodating his work- related injury, Graniterock suddenly wrote him up because he hired his workers’ compensation attorneys. However, on July 14, 2017, Hafely entered into a compromise and release of his worker’s compensation claims, including his Labor Code 132a claim for retaliation related to his filing of worker’s compensation claims. (UMF 29.) Labor Code section 132a prohibits employers from discriminating against employees “who are injured in the course and scope of their employment.” Labor Code § 132a. Section 132a further provides that proceedings for alleged violations of the statute “are to be instituted by filing an appropriate petition” with the WCAB. Id. While Section 132a does not preempt a plaintiff from pursuing FEHA or common law remedies for claims of disability discrimination or retaliation, civil claims for discrimination and retaliation for filing a workers’ compensation claim are barred by the Workers’ Compensation Act, which provides the exclusive remedy for such a claim. See Labor Code §§ 3600(a), 3601, 3602(a), 5300; Arriaga v. County of Alameda (1995) 9 Cal.4th 1055, 1060 (“[W]hen a complaint affirmatively alleges facts indicating that the [Workers’ Compensation] Act applies, no civil action will lie.”) Here, Hafely filed and settled his Section 132a claim as part of the larger settlement of his workers’ compensation claim. (Ex. W.) Thus, any allegation of discrimination or retaliation because he filed, or intended to file, a claim for workers’ compensation is preempted. While Hafely now pleads claims for disability discrimination and retaliation, he believes he was discriminated against only after he hired his workers’ compensation attorneys. (UMF 30 .) Hafely testified that he was accused of stealing and of not doing his job because he hired his workers’ compensation attorney, that Graniterock was going after him for no other reason than his workers’ compensation claim, that he was written up because he filed for workers’ compensation, and was never written up until after he hired his workers’ comp attorneys. (Exs. O, at 18:17-24; 19:7-10;. 81:25-82:14; and P, at 272:13-14.) Hafely further testified that Seith 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -21- Case No. 17CV316847 SMRH:487287518.10 DEFENDANT’S MEMORANDUM OF POINTS AND AUTHORITIES never made any comments that blamed him for issues at the plant prior to hiring his workers’ compensation attorneys, that he never saw Seith or McGrath in the yard much until after he hired his workers’ compensation attorneys, and that his work restrictions were not violated until after he hired his workers’ compensation attorney. (Ex. P, at 285:4-21; 339:17-21; 340:16-20). As Hafely himself put it succinctly, “as soon as I hired worker comp attorneys, that’s when everything started.” (Ex. P, at 337:22-23) (emphasis added). Because Hafely himself believes that his damages arise directly out of his workers’ compensation claim and/or his hiring of a workers’ compensation attorney, his discrimination and retaliation claims are entirely barred by the exclusive remedy provision of the Workers’ Compensation Act. B. Hafely’s Claims for Failure to Engage in the Interactive Process and Failure to Accommodate Fail Because Graniterock Accommodated All of His Restrictions When Hafely Actually Participated in the Interactive Process “Two principles underlie a cause of action for failure to provide a reasonable accommodation. First, the employee must request an accommodation. … 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. … 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.” Moore v. Regents of University of California (2016) 248 Cal.App.4th 216, 242 (citations omitted). “When a claim is brought for failure to reasonably accommodate the claimant’s disability, the trial court’s ultimate obligation is to ‘ “isolate the cause of the breakdown . . . and then assign responsibility” so that “[l]iability for failure to provide reasonable accommodations ensues only where the employer bears responsibility for the breakdown.” ‘ “ Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 261 (quoting Barnett v. U.S. Air, Inc. (9th Cir. 2000) 228 F.3d 1105, 1115). An employer cannot be held liable for failing to engage in the interactive process when the employee was in fact offered a reasonable accommodation. Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 229. Moreover, “an employer is not required to choose the best accommodation or the specific accommodation the employee seeks.” Wilson v. County of Orange (2009) 169 Cal.App.4th 1185, 1194. “‘[T]he employer providing the accommodation has the ultimate discretion to choose 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -22- Case No. 17CV316847 SMRH:487287518.10 DEFENDANT’S MEMORANDUM OF POINTS AND AUTHORITIES between effective accommodations, and may choose the less expensive accommodation or the accommodation that is easier for it to provide.’ … [A]n employee cannot make his employer provide a specific accommodation if another reasonable accommodation is instead provided.’” Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 228. Here, Hafely cannot prevail in his claims for failure to accommodate and failure to engage in the interactive process because it is undisputed that Graniterock either accommodated all of his work restrictions, granted each request for leave which was supported by a doctor’s note, or was unaware of the need for further accommodation. 1. Graniterock Fully Accommodated Hafely’s Restrictions Arising Out of His June 3, 2014 Back Injury First, with regard to his June 2014 back injury, Hafely was placed on work restrictions by his doctors at U.S. Healthworks, these restrictions were coordinated through administration of his worker’s compensation claim. Hafely himself confirmed to Kniffin on June 16, 2014 and April 24, 2015 that he was working within his restrictions. (Ex. F.) At his deposition, Hafely testified that the only restrictions of his that might have been violated in the year after his June 3, 2014 back injury was his restriction to sit, stand and walk as needed. (Ex. P, at 353.) However Hafely could not identify a single instance where he was directed, instructed or told that he could not sit, stand or walk as needed by his supervisors or managers. Hafely confirmed he would ask dispatch to send his backup batch man, William Mookini, to relieve him when he needed a break. (Ex. P, at 355.) And, Hafely could not identify a single instance where he complained about this restriction being violated. (Pl Depo2 355.) In fact, on June 5, 2014, Hafely complained to Kniffin that it was hard for him to sit down all day and that he had to stand up periodically. (Ex. F.) Kniffin actually had to remind Hafely that his own restrictions called for him get up periodically and Kniffin told Hafely he could and should do so. (Id.) Aside from a single occasion around August 1, 2014 where Hafely complained to Kniffin that Seith asked him to “pick up 45 pound bags to put in drivers trucks,” there is no evidence that Hafely was asked to lift in violation of his restrictions. This single instance of Hafely complaining 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -23- Case No. 17CV316847 SMRH:487287518.10 DEFENDANT’S MEMORANDUM OF POINTS AND AUTHORITIES about being asked to perform work contrary to his restrictions does not rise to the level of a failure to accommodate claim, especially in light of the fact Hafely subsequently informed Kniffin that he was working within his restrictions. Moreover, it is undisputed that Hafely could request-and often did-help lifting and carrying heavy objects, and that this help was freely given by his co- workers. (Ex. P, at 222:5-223:3, 356:20-357:3, 363:1-9, 375:14-16.) Hafely further testified that he was never declined help. (Ex. P, at In fact, Graniterock always provided Hafely extra employees to assist him perform plant maintenance on the weekends or after hours. (UMF 10.) Graniterock also had an outside vendor come out and chip the drum. (Exs. O, at. 173:18-20; and P, at 369.) Accordingly, it is undisputed that any and all restrictions arising out of Hafely’s June 3, 2014 back injury were accommodated for over a year. It was only after Hafely was written up a year after his back injury that he claimed a need for leave. 2. Graniterock Satisfied Its Obligation to Participate in the Interactive Process by Requesting Medical Certification in Response to Hafely’s Requests for Leave It is undisputed Graniterock accommodated Hafely’s August 21 and September 1, 2015 requests for leave, conditioned on his return of the request for leave of absence and medical certification forms. (UMF 19-25.) Thus, Graniterock satisfied its obligation to participate in the interactive process and to provide reasonable accommodation related to Hafely’s requests for leave on August 21 and September 1, 2015. Cal. Code Regs. tit. 2, § 11069(c)(1) (an employer may satisfy its obligation to engage in the interactive process by granting the employee’s requested accommodation). Hafely did not ask for any other accommodations regarding his stress condition from August 21 through September 16. However, Hafely never submitted the request for leave of absence and medical certification forms, despite Graniterock’s repeated requests. (UMF 6.) Moreover, after Hafely notified Graniterock on September 17, 2015 that his leave had been extended to October 19, 2015, Giusiana attempted to contact Hafely by telephone on September 18 and 22, as well sending Hafely a letter on September 24, 2015, noting that she needed additional information regarding his request for additional time off work. (UMF 21-24.) Hafely was aware Graniterock did not have the note after getting the September 24, 2015 letter, but chose not to provide it. (UMF 24.) In fact, the only substantive communication that 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -24- Case No. 17CV316847 SMRH:487287518.10 DEFENDANT’S MEMORANDUM OF POINTS AND AUTHORITIES Graniterock received in response was a September 30 email from Hafely stating that his attorney advised him not to fill out the forms. (UMF 25.) As such, it was Hafely who terminated the interactive process, apparently, and surprisingly, on advice of his counsel. And, because liability for failure to provide reasonable accommodations ensues “only where the employer bears responsibility for the breakdown,” Hafely’s reasonable accommodation claim also fails since it was Hafely who affirmatively refused to communicate or provide support for his requested leave. Jensen, supra, 85 Cal.App.4th at 261 (trial court’s ultimate obligation is to “isolate the cause of the breakdown . . . and then assign responsibility.”) C. Hafely’s Claim for Failure to Prevent Discrimination and Retaliation Also Fails Hafely’s claim for failure to prevent discrimination and retaliation is derivative of his underlying discrimination and retaliation claims. California law is clear that there can be no liability for failure to prevent discrimination and/or retaliation where no unlawful discrimination and/or retaliation has, in fact, occurred. Trujillo v. North Co. Trans. Dist. (1998) 63 Cal.App.4th 280, 289; Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1021. As explained above, Hafely cannot prove his discrimination and retaliation claims, and thus this claim fails. D. Hafely’s Claim for Adverse Action in Violation of Public Policy Also Fails A former employee may maintain a tort action against an employer when the basis for the employee’s discharge violates a statute or “fundamental principles of public policy.” Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167, 170. To establish a claim for wrongful termination in violation of public policy, a plaintiff must prove: (1) an employer-employee relationship; (2) termination or other adverse employment action; (3) termination of plaintiff’s employment was a violation of a public policy; (4) a “nexus” between the termination and the employee’s protected activity; and (5) damages. Turner v. Anheuser-Busch, Inc. (1994) 7 Cal. 4th 1238, 1258-1259. Here, Hafely’s allegations are entirely duplicative of his other claims and fail for the same reasons. E. Hafely’s Claim for Punitive Damages Also Fails An employer is not strictly liable for punitive damages. Kelly-Zurian v. Wohl Shoe Co., Inc. (1994) 22 Cal. App. 4th 397, 419. California Code of Civil Procedure section 437c(f) allows a party to move for summary adjudication of a claim for punitive damages. To successfully 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -25- Case No. 17CV316847 SMRH:487287518.10 DEFENDANT’S MEMORANDUM OF POINTS AND AUTHORITIES oppose such a motion, Hafely must establish his right to punitive damages by “clear and convincing evidence.” Aquino v. Superior Court (1993) 21 Cal. App. 4th 847, 854-55. Punitive damages are only available if Hafely demonstrates that an officer, director, or managing agent committed or ratified an act of oppression, fraud, or malice. Cal. Civ. Code § 3294(b). Further, malice and oppression require that Hafely demonstrate that Graniterock intended to cause him injury, or engaged in despicable conduct, that subjects a person to cruel and unjust hardship, with a willful and conscious disregard of the rights or safety of others. Cal. Civ. Code § 3294(c). Hafely cannot make such a showing. Here, the undisputed evidence demonstrates that, to the extent Ow is an officer, director or managing agent of Graniterock, she had a legitimate reason to terminate Hafely’s employment and that his injury and leave played no role in its decision. (UMF 28.) Moreover, to the extent McGrath and/or Seith are officers, directors or managing agents of Graniterock, there is no evidence they wrote Hafely up for any reason other than his own poor performance, much less that they committed the requisite act of oppression, fraud, or malice. (UMF 11-14, 16-17.) Accordingly, Hafely’s claim for punitive damages fails. VI. CONCLUSION For all the reasons above, Graniterock respectfully request that its Motion for Summary Judgment be granted in its entirety or in the alternative that summary adjudication be granted as to each cause of action. Dated: November 21, 2018 SHEPPARD, MULLIN, RICHTER & HAMPTON LLP By: PAUL S. COWIE BRIAN S. FONG AMANDA E. BECKWITH Attorneys for Defendant GRANITE ROCK COMPANY 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE George Hafely v. Granite Rock Company, et a]. Santa Clara Superior Court Case N0. 17CV316847 At the time 0f service, Iwas over 18 years of age and not a party to this action. I am employed in the County 0f San Francisco, State 0f California. My business address is Four Embarcadero Center, 17th Floor, San Francisco, CA 941 1 1-4109. On November 21, 2018, I served true copies 0f the following document(s) described as: DEFENDANT GRANITE ROCK COMPANY’S MEMORANDUM 0F POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 0R, IN THE ALTERNATIVE, SUMMARY ADJUDICATION on the interested parties in this action as follows: Lawrance A. Bohm, Esq. Attorneys for Plaintiff, Tracy C. Law, Esq. GEORGE HAFELY Bohm Law Group, Inc. 4600 Northgate Boulevard, Suite 210 Sacramento, California 95834 Tel: (866) 920-1292 Fax: (916)927-2046 Email: LBohm@Bohmlaw.com TLaw@B0hmlaw.com Erik M, Roper, Esq. Attorneys for Plaintiff, Law Offices 0f Erik M. Roper GEORGE HAFELY 2121 Natomas Crossing Drive, Suite 200-1 17 Sacramento, California 95834 Tel: (916) 281-8249 Fax: (916) 527-0118 Email: Erik@Eronerlaw.com D BY MAIL: I enclosed the document(s) in a sealed envelope or package addressed to the persons at the addresses listed in the Service List and placed the envelope for collection and mailing, following our ordinary business practices. I am readily familiar With the firm‘s practice for collecting and processing correspondence for mailing. On the same day that correspondence is placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service, in a sealed envelope With postage fully prepaid. I am a resident or employed in the county where the mailing occurred. D BY FAX TRANSMISSION: I faxed a copy of the document(s) to the persons at the fax numbers listed in the Service List. The telephone number 0fthe sending facsimile machine was 415.434.3947. The transmission was reported as complete and without error. No error was reported by the fax machine that I used. A transmission report was properly issued by the sending fax machine. D BY E-MAIL OR ELECTRONIC TRANSMISSION: I caused a copy ofthe document(s) t0 be sent from e-mail address eruiz@sheppardmullin.com t0 the persons at the e-mail addresses listed in the Service List. I did not receive, within a reasonable time after the transmission, any electronic message or other indication that the transmission was unsuccessful. -1- Case N0. 17CV316847 SMRH:487287518410 pRQQF 0F SERVICE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -2- Case No. 17CV316847 SMRH:487287518.10 PROOF OF SERVICE BY OVERNIGHT DELIVERY: I enclosed said document(s) in an envelope or package provided by the overnight service carrier and addressed to the persons at the addresses listed in the Service List. I placed the envelope or package for collection and overnight delivery at an office or a regularly utilized drop box of the overnight service carrier or delivered such document(s) to a courier or driver authorized by the overnight service carrier to receive documents. BY PERSONAL SERVICE: I personally delivered the document(s) to the person at the addresses listed in the Service List. (1) For a party represented by an attorney, delivery was made to the attorney or at the attorney's office by leaving the documents in an envelope or package clearly labeled to identify the attorney being served with a receptionist or an individual in charge of the office. (2) For a party, delivery was made to the party or by leaving the documents at the party's residence with some person not less than 18 years of age between the hours of eight in the morning and six in the evening. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on November 21, 2018, at San Francisco, California. Elena E. Ruiz Elena E. Ruiz X