Brief Reply In Support of Defendants Motion For Summary Judgment

Reply

Cal. Super. - 2nd Dist.September 23, 2019

Electronically FILED by S{perior Court of California, County of Los Angeles on 06/12/2020 04:34 PM Sherri R. Carter, Executive Officer/Clerk of Court, by J . Ballesteros,Deputy Clerk 1 || MORGAN, LEWIS & BOCKIUS LLP Clifford D. Sethness, Bar No. 212975 2 || Thea S. Alli, Bar No. 326771 300 South Grand Avenue 3 || Twenty-Second Floor Los Angeles, CA 90071-3132 4 || Tel: +1.213.612.2500 Fax: +1.213.612.2501 5 || clifford.sethness @morganlewis.com thea.alli@morganlewis.com 6 Attorneys for Defendant TOYOTA LOGISTICS 7 || SERVICES, INC. 8 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 COUNTY OF LOS ANGELES 11 12 || LAKESHIA LEE, Case No. 19LBCV00570 13 Plaintiff, DEFENDANT TOYOTA LOGISTICS SERVICES, INC.’S REPLY IN 14 Vs. SUPPORT OF MOTION FOR SUMMARY JUDGMENT 15 || TOYOTA LOGISTICS SERVICES, INC. and DOES 1 to 25 inclusive, Date: August 18, 2020 16 Time: 8:30 a.m. Defendant. Dept.: S26 17 Judge: Michael P. Vicencia 18 RESERVATION ID: 847260659361 19 Complaint Filed: September 23, 2019 50 Trial Date: November 16, 2020 21 22 23 24 25 26 2 MORGAN, LEWIS 2 8 Bockius LLP ATTORNEYS AT LAW LOS ANGELES DEFENDANT'S REPLY ISO MOTION FOR SUMMARY JUDGMENT ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 MORGAN, LEWIS 2 8 Bockius LLP ATTORNEYS AT LAW LOS ANGELES LL. IL. III. IV. TABLE OF CONTENTS Page INTRODUCTION Loot cee sees sree sere eters sane ceases 1 PLAINTIFF DOES NOT RAISE ANY GENUINE FACT DISPUTE...........cccccceevenneen. 2 A. Plaintiff Admits She Joined TLS As A Union Member and Worked In The Lexus Department From 2016 Until Her Termination ...........c.cceeceevveernveniecneenne. 2 B. Plaintiff Admits Every Lexus Department Employee Is Required To Work In All Eleven Jobs Within The Department..........coccceeveeieeniinnieniceieeneeneee n n 2 GC: Plaintiff Admits That After Injuring Her Back In October 2016, Her Pain Levels Were So High That She Could Not Perform Either Her Regular Duties Or Temporary Alternative Duties, And TLS Granted Her Leave TR EES cc EAE ES SS 2 D. Plaintiff Admits In 2017 And 2018, Her Pain Levels Prevented Her From Working; TLS Received Numerous Doctor’s Notes Extending Her Restrictions; And TLS Continued Extending Her Leave Into 2018 ....................... 2 E. Plaintiff Admits She Became Pregnant And Gave Birth During Her Leave .......... 3 F. Plaintiff Admits Even After Nearly Two Years of Leave, She Continued To Insist That Her Extreme Pain Prevented Her From Working, Which Left TLS With No Choice But to Discharge Her Under The CBA ........................ 4 G. Plaintiff Admits She Did Not Bring Her Union Grievance To Arbitration............ 4 THE COURT SHOULD GRANT SUMMARY JUDGMENT IN FULL.........c.cccceenn.... 5 A. There Is No Triable Issue As To Plaintiff’s Disability Discrimination (CT BIEN, cc ss sn om cms si is 5 RSA 5.38 2555 S55 85 T8558 05 SA 3 SERS 05 3 B. There Is No Triable Issue As To Plaintiff’s Pregnancy Discrimination 1 8 C. There Is No Triable Issue As To Plaintiff's FEHA Retaliation Claim ................... 8 D. There Is No Triable Issue As To Plaintiff’s Failure to Accommodate Claim ........ 9 E. There Is No Triable Issue As To Plaintiff’s Interactive Process Claim.................. 9 F. There Are No Triable Issues As To The Wrongful Discharge And UCL (CT ATITE : sc coms smi sm mss sm su ss sts 44 Ae 7 7.58 50 A 49 RE SS SA 8 3 AAR SE Ad 10 G. Plaintiff Did Not Oppose Summary Judgment Regarding Punitive TVET N20 cmsossommnsonstseson st sc es A040 A A AA HSA 31 10 CONCLUSION... etcetera teeters sere estes nee sae seb eaae ese ee sree eure enae 10 i DEFENDANT'S REPLY ISO MOTION FOR SUMMARY JUDGMENT 1 TABLE OF AUTHORITIES 2 Page(s) 3 || FEDERAL CASES 4 || Allis-Chalmers Corp. v. Lueck, 5 ATT US. 202 (1985) cuit eters ete ete sees t ee she sabe e atest ee shite este anne este eesbe esse anneas 7 6 Caterpillar, Inc. v. Williams, ABD VB FBC LT DBT) cos cs svi assis as si ois 7 5 5 35 5 S55 50 5 BASHA SSH S555 7 7 Hamilton v. Costco Wholesale Corp. et al., 8 2011 WL 3714778 (C.D. Cal. Aug. 24, 2011) .ccoiieiieeie ee eee 10 9 || Willis v. Pac. Mar. Ass'n, 6 244 F.3d 675 (9th Cir. 2001) ...cicieeeeiie cies etter eects eee etree star ee stares save ee esas ee ssse se ssaeessssesessseanns 9 {1 CALIFORNIA CASES 2 Arteaga v. Brink’s Inc, 163 Cal. App. 4th 327 (2008)... ..ceueeeiietie eit ete eters ste eebe estes b ee sbbe sabe ene ee teessae eens 9,10 13 Faust v. Cal. Portland Cement Co., 14 150 Cals Appi. A. BOA CUOOFT Ys sumsnss wssn summonses swansea sss 06 5555555 S55555555 5555550 455555.08 505555 E5555 948 555 5 15 || Green v. California, 42 Cal. 4th 254 (2007) uveeeereeeeerieeeeieeeetteeeeieeeeeteeeestae estas ssae eases sar e srssa ssssaessseae esse e ssbeee esas eesaees 5 16 Hanson v. Lucky Stores, Inc. 17 74 Cal. APP. 4th 215 (1999)... neice eee eee este ete sees eate sabe eaeas 7,9 18 Harris v. City of Santa Monica, 19 SB all, AH ZOB UZ BF wusnsoruassconmoussonesssiassonsssssssoesnesesss ssn is owas sss sm oe aA ha Es 9 20 || Hersant v. Dep't of Soc. Servs., 57 Cal. APP. 4th 997 (1997). eee ete eters sate eee este sabe sabe e nee e sae 7 21 Jensen v. Wells Fargo Bank, 22 85 Cal. APP. 4th 245 (2000).........ceeeeeeeeeeeeeeeeeeeeeeeseeeeeeeeees s es sess ess se eseesee esses ess s ees e e ss s 9 23 Krantz v. BT Visual Images, LLC, 24 89 Cal. App 4th 164, 178 (2001) «eevee ters b ee shee sevens 10 25 || Laabs v. City of Victorville, 163 Cal. App. 4th 1242 (2008)...c..eeiiiieieieeiie etait estes ete et ee sabe este ese estes esas esse anaes 9 26 Nealy v. City of Santa Monica, 27 234 Cal. ATP AE. 35D (ZOE Yo cuss aussi. os somos evs in 555508 555055.505555 5508 555555738 SAHRES S555 0 SHB 585 8,9,10 MORGAN, LEWIS 2 8 Bockius LLP Los ANGELES ii DEFENDANT'S REPLY ISO MOTION FOR SUMMARY JUDGMENT ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MORGAN, LEWIS & Bockius LLP ATTORNEYS AT LAW SAN FRANCISCO Raine v. City of Burbank, 138 Cal. Ap. AH, 1215 (ORG) 5000e55ownoonnsessssnsssorsaess s s osoomass 50005105 AEH SS 5H SHS 0% 9 Roth v. Rhodes, 25 Cal. APP. 4th 530 (1994)... eee eee st ee sabe sabe ene e ese 9 Scalfv. D.B. Log Homes, Inc. 128 Cal. App. 4th 1510 (2005)... cuuteeiieieieeiie atest eee ees esate tee sate esbe eee sees esas esse enneas 2 Scotch v. Art. Inst. Of Cal., 173 Cal. App. 4th 986 (2009).......uuiiiiiiieeiie eects seers sates este estes sabeenbeenee seen 8,9 Williams v. MacFrugal’s Bargains - Close Outs, Inc., 67 Cal. APP. 4th 479 (1998)... ieee eerste sabes estes nb ee sbbe sabe enna esaens 8 STATUTES Cal. GOV’'t COA § 129401) eutectic ects ete eee eet teste sabe e eee t ee ebbe sabe eneeeseens 8 Labor Code § 132... 2,9 iii DEFENDANT'S REPLY ISO MOTION FOR SUMMARY JUDGMENT ~N O N n e B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MORGAN, LEWIS & Bockius LLP ATTORNEYS AT LAW Los ANGELES IL. INTRODUCTION Plaintiff in her Opposition concedes key facts that compel granting summary judgment. (1) Plaintiff concedes that she never was released to return to work. Plaintiff’s medical restrictions mandated limited standing and walking; no stooping and bending; limited kneeling and squatting; limited lifting; and limited push and pull (up to five pounds) and eventually allowed only sedentary work-*“Undisputed” (UF 1, 2). Plaintiff’s restrictions continued during her 22-month leave of absence; at the time that Defendant Toyota Logistics Services (“TLS”) terminated her employment; six months later during her Union grievance meeting; and even a year after her termination, and there was no point during this entire period that Plaintiff was medically cleared to go back to her job duties-*“Undisputed” (UF 19, 31, 38). (2) Plaintiff concedes that there was no job at TLS the essential functions of which she could have performed. The eleven jobs in Plaintiff’s department were R-Stalls 1-6, Books, Cargo Net 1 (the job in which she injured herself), Cargo Net 2, Carpet, Driver-In, Driver-Out, Electrical, Labels, QA, and Wheels Lock. It is undisputed, according to Plaintiff, that due to her alleged injury she could not perform the essential functions of those jobs (UF 1-13). (3) Plaintiff concedes that she challenged her termination by filing a Union grievance, but there was no available job she could perform for which she had sufficient seniority, and she did not proceed to a labor arbitration under the Teamsters CBA. During Plaintiff’s leave from October 2016 to August 2018, TLS had only one open position in the Shuttle Department-*“Undisputed” (UF 32). Two Team Members bid for the position, and their seniority rankings were 514 and 519-*“Undisputed” (UF 33). As of August 2018, Plaintiff’s seniority ranking was 566-*“Undisputed” (UF 34). Because of her lower seniority, Plaintiff could not “jump the line” ahead of the two more senior Team Members simply because she needed an accommodation-“Undisputed” (UF 35). Plaintiff filed a Union grievance challenging her termination, which TLS denied, but Plaintiff and her Union did not take her grievance to a labor arbitration hearing. Plaintiff Deposition Transcript (“P1. Dep.”) at 207:3-12. (4) Plaintiff must concede that she has no Workers’ Compensation (“WC”) retaliation claim as she initially filed a WC claim in late 2016, she was fired in 2018, and a 1 DEFENDANT'S REPLY ISO MOTION FOR SUMMARY JUDGMENT ~N O N n e B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MORGAN, LEWIS & Bockius LLP ATTORNEYS AT LAW Los ANGELES year later, Plaintiff and her Counsel settled her WC claim for $45,400 and explicitly waived her Labor Code § 132 and related claims. Plaintiff at her deposition authenticated the administrative law judge’s July 30, 2019 Order approving the settlement and release of her WC claims. Pl. Dep. 126:10-127:25; Ex. 26. She further admitted that she, and her attorneys, initialed the “Release” in the Order, including of § 132a retaliation claims. Id. at 129:14-24. Finally, it is inexplicable that Plaintiff in her Opposition fails to mention to the Court that TLS deposed Plaintiff in detail about all of her claims and she conceded almost all of her claims at that deposition. Instead, with zero references to her deposition testimony, Plaintiff now offers a “Declaration” that contradicts much of her testimony, which should not be considered in deciding TLS’ motion. See Scalfv. D.B. Log Homes, Inc. 128 Cal. App. 4th 1510, 1521 (2005) (“Where a plaintiff’s [deposition admissions] contradict statements in the plaintiff’s affidavits opposing the summary judgment, the rule of liberal construction loses its efficacy and the granting or denial of the motion for summary judgment depends upon the issues of credibility”). The Opposition largely ignores the applicable legal framework and offers no relevant argument or authorities opposing the bases for summary judgment. Under the applicable three- part burden-shifting test, there remains no triable issue on any of Plaintiff’s claims. IL. PLAINTIFF DOES NOT RAISE ANY GENUINE FACT DISPUTE. A. Plaintiff Admits She Joined TLS As A Union Member and Worked In The Lexus Department From 2016 Until Her Termination. Plaintiff does not dispute TLS’ asserted facts regarding her duties, her membership with Teamsters Union Local 495 (“Union”), and the collective bargaining agreement between TLS and the Union (“CBA”) covering her employment. See Opening Br. at 7; P1.’s Additional Undisputed Material Facts (“PUFF”) 39-41; Pl. Dep. 183:4-8. B. Plaintiff Admits Every Lexus Department Employee Is Required To Work In All Eleven Jobs Within The Department. Plaintiff does not dispute that her position in TLS’ Lexus department consisted of rotating among 11 distinct types of jobs. See Opening Br. at 7-8; UF 3-13. Notably, Plaintiff admitted in her deposition that she worked in all eleven jobs within the Lexus department, like all employees do, and no employees were excepted from this rotation scheme. Pl. Dep. 168:13-25; 171:8-16. 2 DEFENDANT'S REPLY ISO MOTION FOR SUMMARY JUDGMENT ~N O N n e B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MORGAN, LEWIS & Bockius LLP ATTORNEYS AT LAW Los ANGELES C. Plaintiff Admits That After Injuring Her Back In October 2016, Her Pain Levels Were So High That She Could Not Perform Either Her Regular Duties Or Temporary Alternative Duties, And TLS Granted Her Leave Request. Plaintiff does not dispute TLS’ asserted facts. See Opening Br. at 8-9. Plaintiff admitted that when TLS offered her a temporary alternate job in the Shuttle Department, less than two hours after reporting to work, Plaintiff complained she was unable to perform the shuttle duties due to her back injury. Pl. Dep. 60:23-63:4, Ex. 7; PUF 46-47. Plaintiff explained that she simply “couldn’t do it” because “you get in and out of cars” and “[y]Jou’re bending, constantly, bending, bending, bending.” PI. Dep. 59:25, 62:3-4. D. Plaintiff Admits In 2017 And 2018, Her Pain Levels Prevented Her From Working; TLS Received Numerous Doctor’s Notes Extending Her Restrictions; And TLS Continued Extending Her Leave Into 2018. Plaintiff does not dispute TLS’ asserted facts. See Opening Br. at 9-12. Plaintiff filed her WC claim at the end of 2016, and ever since has been represented by the same counsel. PUF 49. Plaintiff continued to communicate with TLS’s on-site nurse Alina Martinez throughout her leave. Pl. Dep. 50:12-19. Over the course of nearly two years, TLS remained in contact with Plaintiff through her healthcare providers periodically to evaluate Plaintiff’s situation and whether her restrictions or accommodation needs had changed. Ms. Martinez contacted Plaintiff several times in 2017 and 2018 to check in on her status. Id. at 72:8-19, Ex. 7. TLS continued to extend Plaintiff’s leave of absence as an accommodation for her injury. Id.; UF 15, 26. E. Plaintiff Admits She Became Pregnant And Gave Birth During Her Leave. Plaintiff does not dispute TLS’ asserted facts. See Opening Br. at 12. Plaintiff took maternity leave during both of her first two pregnancies in 2009 and 2012 and admits that TLS never discriminated against her for doing so. UF 21; Pl. Dep. 232:24-233:24; 233:2-234:12. In 2017, Plaintiff became pregnant with her third child while she already was on leave due to her back injury. Pl. Dep. 234:16-18. Plaintiff did not perform any work for TLS during her third pregnancy. UF 23. Plaintiff’s third child was born on January 22, 2018, while she was still on leave for her back injury. Pl. Dep. 234: 13-15. Plaintiff was terminated more than seven months after she gave birth. Id. at 195:9-197:24; UF 20. 3 DEFENDANT'S REPLY ISO MOTION FOR SUMMARY JUDGMENT ~N O N n e B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MORGAN, LEWIS & Bockius LLP ATTORNEYS AT LAW Los ANGELES F. Plaintiff Admits Even After Nearly Two Years of Leave, She Continued To Insist That Her Extreme Pain Prevented Her From Working, Which Left TLS With No Choice But to Discharge Her Under The CBA. Plaintiff does not actually dispute TLS’ asserted facts. See Opening Br. at 12-13. If a Union Team Member suffered “a compensable injury” while employed at TLS, the CBA entitled them to a leave of absence whereby, “[u]pon recovery, such Team Member shall, if his/her physical ability and accumulated seniority permits, be re-employed in the same classification held immediately prior to such leave of absence.” Pl. Dep., Ex. 30 (CBA 2017-2020) at Art. VII “Seniority”, § 5 (emphasis added). The CBA also qualified a member’s right to preserve their classification upon return based on the leave’s length. If for any reason other than industrial illness or injury, the leave may not exceed 12 months. Id. at Art. VII, § 2(G). If for industrial illness or injury, the leave may not exceed 15 months. Id. at Art. VII, § 2(F). In sum, while the CBA preserved an employee’s seniority during a leave of absence, that benefit was not unqualified or indefinite. Accordingly, on August 28, 2018, TLS notified Plaintiff that her employment would be terminated pursuant to Article VII, Section 2 because there was no indication that her medical leave would end in the near future. Pl. Dep. 195:9- 197:24, Ex. 35; PUF 59. TLS reasonably concluded that her leave-nearly two-years long, and with no end in sight-was indefinite; and thus, TLS could not accommodate Plaintiff under the CBA’s terms. Id. By that time, Plaintiff already had received seven months beyond what the CBA provided. Id.; UF 25. Indeed, Plaintiff does not even dispute that in March 2019-six months after her termination-her doctor ordered her to “continue on temporary partial disability for the next 12 months with sedentary work, no lifting over 10 pounds, and no pushing or pulling over 10 pounds.” Pl. Dep. 111:18-112:13, Exs. 7, 25 (emphasis added); see also UF 38. G. Plaintiff Admits She Did Not Bring Her Union Grievance To Arbitration. Plaintiff does not dispute TLS’ asserted facts. See Opening Br. at 13. On August 31, 2018, Plaintiff submitted a Union grievance claiming that she was wrongfully terminated, but the Union chose not to proceed with the next step of the grievance process-arbitration-on Plaintiff’s behalf and dismissed it on July 22, 2019, ! nearly a month before it was set for hearing. I" Additionally in July 2019, Plaintiff testified that her pain levels were still 6 or 7 out of 10. PI. Dep. at 118:7-16. 4 DEFENDANT'S REPLY ISO MOTION FOR SUMMARY JUDGMENT ~N O N n e B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MORGAN, LEWIS & Bockius LLP ATTORNEYS AT LAW Los ANGELES PIL. Dep. 206:17-25. Notably, Plaintiff’s March 2019 doctor’s note extending her restrictions further reinforced TLS’ justification for terminating her employment under the CBA. III. THE COURT SHOULD GRANT SUMMARY JUDGMENT IN FULL. A. There Is No Triable Issue As To Plaintiff’s Disability Discrimination Claim. Plaintiff’s Opposition completely fails to challenge the three-part burden shifting analysis TLS presented in its opening brief, which establishes that TLS is entitled to summary judgment. 1. Plaintiff Has No Prima Facie Case For Disability Discrimination Because She Was Not Qualified And There Is No Causal Link. A prima facie case of disability discrimination requires establishing, among other things, that Plaintiff is otherwise qualified to do her job and her disability or injury was a “substantial motivating factor” in the alleged adverse employment action. Faust v. Cal. Portland Cement Co., 150 Cal. App. 4th 864, 886 (2007); Harris v. City of Santa Monica, 56 Cal. 4th 203, 232 (2013). First, Plaintiff was not “otherwise qualified” to perform her job duties. Plaintiff bears the burden to show that she is a “qualified individual” under FEHA-meaning that “she can perform the essential functions of the job with or without reasonable accommodation.” Green v. California, 42 Cal. 4th 254, 260 (2007). It is undisputed that from October 2016 forward- through Plaintiff’s termination in August 2018, and indeed throughout 2019-Plaintiff had medical restrictions which limited her standing and walking; forbade stooping and bending; limited her kneeling and squatting; limited her lifting; limited her pushing and pulling (up to five pounds); and then eventually allowed only sedentary work. UF 1, 2. Because the parties also do not dispute what Plaintiff’s essential job functions entail, (see UF 3-13), there can be no dispute that Plaintiff’s medical restrictions rendered her unable to perform any of the eleven different tasks within her work rotation. See UF 1-13. The Opposition focuses on whether and when TLS offered her an alternate job in the Shuttle Department, (e.g., PUF 62) but that makes no difference because Plaintiff admitted she could not perform the shuttle driver duties based on her restrictions (“no bending”) regardless of when it was offered. UF 1, 2, 14. Second, Plaintiff cannot prove a causal link between her temporary disability and her employment termination. It is undisputed that Plaintiff remained employed for nearly two years 5 DEFENDANT'S REPLY ISO MOTION FOR SUMMARY JUDGMENT ~N O N n e B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MORGAN, LEWIS & Bockius LLP ATTORNEYS AT LAW Los ANGELES after her back injury. UF 15, 31. Additionally, as explained in TLS’ opening brief and below, the applicable CBA was an intervening cause of Plaintiff’s termination. Accordingly, Plaintiff failed to show that TLS terminated her employment in August 2018 because of her back injury sustained in October 2016. Plaintiff’s failure to state a prima facie case is fatal to her discrimination claim. 2 TLS Had Legitimate, Non-Discriminatory Reasons For Termination. Even if Plaintiff could establish a prima facie case-and she cannot-her claim still fails because the undisputed evidence shows TLS had legitimate, lawful reasons for terminating Plaintiff’s employment, unrelated to her disability. As TLS raised and Plaintiff does not dispute, even after taking almost two years of leave, Plaintiff was not cleared for work without restrictions. UF 15, 31. There can be no dispute that the CBA states that an employee’s seniority could be terminated if a medical leave of absence exceeds 15 months. UF 16; Pl. Dep, Ex. 30 at Art. VII, § 2(F). As such, Plaintiff was not entitled to retain her seniority status. TLS had no obligation to allow Plaintiff to remain on indefinite leave and terminated her accordingly. In Opposition, Plaintiff argues that this CBA provision actually does not apply to “injury” but applies only to “personal injury,” and claims Plaintiff had an “industrial injury” not within its scope. See Opp. at 11-13. On its face, the argument simply cannot hold water: the CBA provision says quite clearly, “A Team Member’s seniority may be terminated if s/he . . . Fails to perform work for TLS as a result of a personal medical illness / injury for a period of 15 months.” PI. Dep, Ex. 30 at Art. VII, § 2(F). It could have, but does not, say “as a result of a personal medical illness / personal injury” (emphasis added). Plaintiff offers no bargaining history for the CBA and no labor arbitration interpretation of this language to support her novel interpretation of the CBA’s term. Moreover, Plaintiff’s interpretation that Section 2(F) is limited to “personal” as opposed to “industrial” injury makes no sense when she likewise argues that Section 2(G) (an analogous term with a shorter 12-month cap) covers injury other than “industrial” injury-i.e., “personal” injury under Plaintiff’s proposed scheme. Id. at Art. VII, § 2(G). More fundamentally, Plaintiff reaches the strained conclusion that the CBA required TLS to provide her a leave of absence with no end-and at the minimum, beyond two years. See Opp. at 12 (“Therefore team members with compensable injury have no strict time limit to return to 6 DEFENDANT'S REPLY ISO MOTION FOR SUMMARY JUDGMENT ~N O N n e B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MORGAN, LEWIS & Bockius LLP ATTORNEYS AT LAW Los ANGELES work to preserve their job/seniority.”). But that is a Union contract interpretation issue. Plaintiff entitles her entire first argument as “IV. A. Plaintiff Labored Under a Union Contract and Was Wrongfully Terminated in Violation of the Union Contract Provisions.” That issue is for the Union, and perhaps the labor arbitrator, but not this Court. And notably, it is undisputed that Plaintiff did not even exhaust her remedies under the CBA-she and her Union could have, but chose not to, proceed to a labor arbitration to test her novel theory. Even if this Court were to find an issue of contract interpretation, the federal Labor Management Relations Act (“LMRA”) preempts Plaintiff’s claim and this is not the proper forum to litigate those issues. See Caterpillar, Inc. v. Williams, 482 U.S. 386, 394 (1987) (LMRA preempts state law claims that are “substantially dependent on analysis of a collective-bargaining agreement”); Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 210-11, 220 (1985) (LMRA preempts claims alleging breach or requiring interpretation of CBA). Plaintiff had her chance to bring her Union contract claim, and she did not. Now, and here, is not the appropriate place or time. 3. Plaintiff Cannot Establish Pretext. Because TLS had legitimate reasons for termination, the controlling burden-shifting framework requires Plaintiff to present substantial evidence that TLS’ stated reasons-that even after 22 months, TLS had no indication she would have lesser restrictions that TLS could accommodate-were pretext. Evidence of pretext must be specific and significantly probative; speculation and self-serving conclusions are insufficient to overcome a defendant’s stated legitimate reasons for termination. Hersant v. Dep’t of Soc. Servs., 57 Cal. App. 4th 997, 1009 (1997). Other than conclusory references that TLS’ reasons were pretext, (e.g., Opp. at 7, 18), Plaintiff does even attempt to identify any specific evidence of discriminatory animus based on Plaintiff’s back injury. It is undisputed that Plaintiff’s doctors never released her back to work without any restrictions or with restrictions that enabled her to perform her essential job functions. UF 1-13, 15; Hanson v. Lucky Stores, Inc. 74 Cal. App. 4th 215, 227 (1999) (“Reasonable accommodation does not require the employer to wait indefinitely for an employee’s medical condition to be corrected”) (internal citations omitted). As such, TLS is entitled to summary judgment on Plaintiff’s disability discrimination claim. 7 DEFENDANT'S REPLY ISO MOTION FOR SUMMARY JUDGMENT ~N O N n e B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MORGAN, LEWIS & Bockius LLP ATTORNEYS AT LAW Los ANGELES B. There Is No Triable Issue As To Plaintiff’s Pregnancy Discrimination Claim. Plaintiffs pregnancy discrimination claim fails for the same reasons as her disability discrimination claim. First, Plaintiff cannot state a prima facie case. Plaintiff was not “qualified” because it is undisputed that Plaintiff’s medical restrictions existed before, during, and after her pregnancy, and prevented her from performing her essential duties. UF 1-2, 22-23. Additionally, Plaintiff cannot show causation because it is undisputed that she remained employed over 17 months after becoming pregnant and 8 months after giving birth. UF 20, 24. Second, as discussed above, Plaintiff fails to identify any substantial evidence of pretext to rebut TLS’ legitimate reasons for its decision. In fact, Plaintiff admits that she previously went through two pregnancies during her employment with TLS without experiencing any discriminatory treatment, and Plaintiff never came into work during her entire pregnancy in 2017-2018. UF 21, 23. Plaintiffs only challenge is to concoct a theory that Plaintiff’s pre-existing back injury transformed into a “[pregnancy] related medical condition” when Plaintiff became pregnant five months later, thereby conflating her disability and pregnancy discrimination claims. See Opp. at 22-23. That assertion defies logic and California law. “[R]elated medical conditions” for FEHA pregnancy discrimination “must be connected to pregnancy or childbirth, i.e., the condition must flow directly therefrom.” Williams v. MacFrugal’s Bargains - Close Outs, Inc., 67 Cal. App. 4th 479, 482-83 (1998). Based on the undisputed facts, summary judgment is proper. C. There Is No Triable Issue As To Plaintiff’s FEHA Retaliation Claim. Plaintiff’s FEHA retaliation claim mirrors the same burden-shifting scheme as her discrimination claims. See Scotch v. Art. Inst. of Cal., 173 Cal. App. 4th 986, 1021-22 (2009). Plaintiff does not oppose TLS’ arguments that she cannot show a causal link between her leave and termination, or that TLS’ reasons were pretextual. See Opening Br. at 20; UF 25-26. Instead, Plaintiff argues that TLS violated FEHA by retaliating against Plaintiff for filing a WC claim. See Opp. at 13-15, 21. Plaintiff’s asserted FEHA retaliation claim covers only “protected activity” related to “opposing any practices forbidden by FEHA or participating in any proceeding conducted by the DFEH or the [FEHC].” Nealy v. City of Santa Monica, 234 Cal. App. 4th 359, 380 (2015); Cal. Gov’t Code § 12940(h). Plaintiff did not assert in her Complaint a 8 DEFENDANT'S REPLY ISO MOTION FOR SUMMARY JUDGMENT ~N O N n e B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MORGAN, LEWIS & Bockius LLP ATTORNEYS AT LAW Los ANGELES WC retaliation claim under Labor Code Section 132a and cannot avoid summary judgment by asserting newly-raised claims in opposition. See Roth v. Rhodes, 25 Cal. App. 4th 530, 541 (1994); Laabs v. City of Victorville, 163 Cal. App. 4th 1242, 1253 (2008). Additionally, it is undisputed that Plaintiff already settled and released any WC retaliation claims she could have brought under Section 132a. Pl. Dep. 126:10-127:25, 129:14-24; Ex. 26. Even if Plaintiff had any viable claim for WC retaliation, which she does not, Plaintiff fails to show substantial evidence of pretext to overcome TLS’ legitimate reasons for her termination. “Where the employee relies solely on temporal proximity in response to the employer’s evidence of a nonretaliatory reason for termination, [she] does not create a triable issue as to pretext, and summary judgment for the employer is proper.” Arteaga v. Brink's Inc, 163 Cal. App. 4th 327, 357 (2008) (finding that plaintiff's termination just days after filing a WC claim was insufficient to show pretext). Therefore, TLS is entitled to summary judgment on Plaintiffs retaliation claim. D. There Is No Triable Issue As To Plaintiff’s Failure to Accommodate Claim. In a disability accommodation claim, a plaintiff must show her employer failed reasonably to accommodate her disability. Jensen v. Wells Fargo Bank, 85 Cal. App. 4th 245, 256 (2000). Plaintiff’s claim fails because TLS did accommodate her for roughly two years. UF 15, 31; Nealy, 234 Cal. App. 4th at 377-78 (finding that a finite leave is a reasonable accommodation when it would allow plaintiff to return to work after the leave). When that accommodation became unreasonable and contrary to the terms of her CBA, TLS justifiably discharged Plaintiff. See Willis v. Pac. Mar. Ass'n, 244 F.3d 675, 680 (9th Cir. 2001) (“[A]ln accommodation that violates a collective bargaining agreement is per se unreasonable.”). Plaintiff does not identify any reasonable accommodation available at the time that would have enabled her to perform her essential duties. UF 1-13; see Nealy, 234 Cal. App. 4th at 379; Scotch, 173 Cal. App. 4th at 1018- 1019. TLS is not obligated to accommodate Plaintiff with an “indefinite” leave or by creating a new position for that purpose. Hanson, 74 Cal. App. 4th at 227; Raine v. City of Burbank, 135 Cal. App. 4th 1215, 1223 (2006). As such, summary judgment is proper. E. There Is No Triable Issue As To Plaintiff’s Interactive Process Claim. Plaintiff’s interactive process claim fails because there was no “breakdown” in the parties’ 9 DEFENDANT'S REPLY ISO MOTION FOR SUMMARY JUDGMENT ~N O N n e B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MORGAN, LEWIS & Bockius LLP ATTORNEYS AT LAW Los ANGELES communications, and Plaintiff cannot point to any reasonable accommodation that “would have been available” at the time. See Nealy, 234 Cal. App. 4th at 379. Plaintiff’s Opposition argues only that she purportedly contacted TLS in January 2018 and no one began the interactive process. See Opp. at 14, 18. But Plaintiff does not and cannot dispute with admissible evidence the fact that TLS consistently engaged in the process by communicating with Plaintiff, through its disability claims administrator and Plaintiff’s healthcare providers, nearly every month between her injury in October 2016 and her termination in August 2018. UF 37; PI. Dep., Ex. 7. And, as described above, it is undisputed that TLS actually accommodated Plaintiff for 22 months and she cannot identify any specific, available accommodation other than continuing to extend her leave, which is unreasonable. Accordingly, her claim should be dismissed. F. There Are No Triable Issues As To The Wrongful Discharge And UCL Claims. Plaintiff’s derivative claims for wrongful termination and unfair business practices necessarily fail because her underlying discrimination, retaliation, and disability-related claims fail for the foregoing reasons and as outlined in TLS’ moving papers. See Opening Br. at 24; Arteaga, 163 Cal. App. 4th at 355 (“[T]he wrongful termination claim fails for the same reasons as the FEHA claim”); Krantz v. BT Visual Images, LLC, 89 Cal. App .4th 164, 178 (2001) (unfair competition claim must be dismissed when summary judgment is entered on other claims on which UCL claim is dependent). Indeed, Plaintiff does not even challenge TLS” analysis of her unfair business practices claim, except to assert-incorrectly-that TLS relied on Hamilton v. Costco Wholesale Corp. et al., 2011 WL 3714778 (C.D. Cal. Aug. 24, 2011). See Opp. at 23. Plaintiff, however, does not respond to TLS’ actual cited authorities (see Opening Br. at 24). G. Plaintiff Did Not Oppose Summary Judgment Regarding Punitive Damages. Plaintiff does not even rebut TLS’ position, respond to its authorities, or provide any authorities supporting her claim for punitive damages, and therefore Plaintiff’s prayer for punitive damages fails as a matter of law as set forth in TLS’ moving papers. See Opening Br. at 24-25. IV. CONCLUSION TLS respectfully requests that this Court enter an order granting full summary judgment in its favor. 10 DEFENDANT'S REPLY ISO MOTION FOR SUMMARY JUDGMENT MORGAN, LEWIS Bockius LLP ATTORNEYS AT LAW Los ANGELES ~N O N n e B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 & Dated: June 12, 2020 MORGAN, LEWIS & BOCKIUS LLP 4 D Sm By: Clifford D. Sethness Thea S. Alli Attorneys for Defendant Toyota Logistics Services, Inc. 11 DEFENDANT'S REPLY ISO MOTION FOR SUMMARY JUDGMENT MORGAN, LEWIS Bockius LLP ATTORNEYS AT LAW Los ANGELES ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 & PROOF OF SERVICE I, Marcella Wagner, declare: I am a citizen of the United States and employed in Los Angeles County, California. I am over the age of eighteen years and not a party to the within entitled action. My business address is 300 South Grand Avenue, Twenty-Second Floor, Los Angeles, CA 90071-3132. On June 12, 2020, I served a copy of the within document(s): 1. DEFENDANT TOYOTA LOGISTICS SERVICES, INC.’S REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT DEFENDANT TOYOTA LOGISTICS SERVICES, INC.’S REPLY TO PLAINTIFF’S OPPOSITION TO SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT AND PLAINTIFF’S SEPARATE STATEMENT OF ADDITIONAL MATERIAL FACTS DEFENDANT TOYOTA LOGISTICS SERVICES, INC.’S EVIDENTIARY OBJECTIONS TO PLAINTIFF’S EVIDENCE IN OPPOSITION DEFENDANTS MOTION FOR SUMMARY JUDGMENT [PROPOSED] ORDER RE: DEFENDANT TOYOTA LOGISTICS SERVICES, INC.’S EVIDENTIARY OBJECTIONS TO PLAINTIFF’S EVIDENCE IN OPPOSITION DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SUPPLEMENTAL DECLARATION OF CLIFFORD D. SETHNESS IN SUPPORT OF DEFENDANT TOYOTA LOGISTICS SERVICES, INC.’S REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT [] by placing the document(s) listed above in a sealed envelope and affixing a pre- paid air bill, and causing the envelope to be delivered to an agent for delivery. [] by causing to be personally delivered the document(s) listed above to the person(s) at the address(es) set forth below. by transmitting via e-mail or electronic transmission the document(s) listed above to the person(s) at the e-mail address(es) set forth below. Belal Hamideh, Esq. Eurydice Harris, Esq. BELAL HAMIDEH LAW, P.C. info @belalhamidehlaw.com bh@belalhamidehlaw.com Executed on June 12, 2020, at Los Angeles, California. I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Xe > Marcella Wagner PROOF OF SERVICE View a Reservation | Journal Technologies Court Portal Page 1 of 2 Journal Technologies Court Portal View a Reservation Reservation Reservation ID: 847260659361 Reservation Type: Motion for Summary Judgment Case Number: 19LBCV00570 Case Title: LAKESHIA LEE vs TOYOTA LOGISTICS SERVICES, INC, et al. Filing Party: Toyota Logistics Services, Inc. (Defendant) Location: Governor George Deukmejian Courthouse - Department S26 Date/Time: August 18th 2020, 8:30AM Status: CONFIRMED Number of Motions: 1 Motions Motion for Summary Judgment BE Reschedule > I Cancel > https://portal-lasc.journaltech.com/public-portal/?q=calendar/view/0 6/12/2020 Make a Reservation | Journal Technologies Court Portal Page 1 of 2 Journal Technologies Court Portal M ake a Reservation LAKESHIA LEEvsTOYOTA LOGISTICSSERVICES, INC. et al. Case Number: 19LBCVO00570 Case Type: CivilUnlimited Category: Wrongful Termination Date Filed: 2019-09-23 Location: Governor George Deukmejian Courthouse - Department S26 Reservation Case Name: LAKESHIA LEEvs TOYOTA LOGISTICS SERVICES, INC, etal. Type: Motion for Summary J udgment Filing Party: Toyota Logistics Services, Inc. (Defendant) Date/Time: 06/18/2020 8:30 AM Reservation ID: 847260659361 Fees Description Motion for Summary J udgment Credit Card Percentage Fee (2.75%) TOTAL Payment Amount: $513.75 Account Number: XXXX1127 Case Number: 19LBCV00570 Status: RESERVED Location: Long Beach (Governor George Deukmejian) Courthouse - Department S26 Number of Motions: 1 Confirmation Code: CR-QA9QOVGRE22SZG5R]) Fee Qty Amount 500.00 1 500.00 13.75 1 13.75 $513.75 Type: MasterCard Authorization: 005957 https://portal-lasc.journaltech.com/public-portal/?q=calendar/reserve 2/25/2020