Juan Sotomayor vs. Sanders & Wohrman Corporation

Reply to Motion

Cal. Super. - 4th Dist.September 14, 2016

AN Ln W N CALL & JENSEN A Professional Corporation Virginia L. Miller, Bar No. 211124 ELECTRONICALLY FILED J. Randall Boyer, Bar No. 290003 Superior Court of California, 610 Newport Center Drive, Suite 700 County of Orange To ies reas (2660 09/06/2017 at 05:34:00 PW ek: - Clerk of the Superior Court Fax: (949) 717-3100 By Angelina Mguyen-Do, Deputy Clerk gmiller @calljensen.com jboyer@calljensen.com Attorneys for Defendant Sanders & Wohrman Corporation SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE JUAN SOTOMAYOR, Case No. 30-2016-00874993-CU-WT-CIC Plaintiff, Assigned for All Purposes to: Judge Ronald Bauer VS. Dept.: CX103 SANDERS & WOHRMAN CORPORATION DEFENDANT SANDERS & WOHRMAN AND DOES 1 through 20, CORPORATION’S REPLY IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT Defendant. OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION Date: September 11, 2017 Time: 9:00 a.m. Dept: CX103 Complaint Filed: September 14, 2016 Trial Date: October 16, 2017 SAN16-02:2015993_1:9-6-17 DEFENDANT SANDERS & WOHRMAN CORPORATION’S REPLY IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION AN Ln W N TABLE OF CONTENTS Page L INTRODUCTION ......oiiiitieee cece eee eects e ee eset re area sees eestar ae ae ease ee eeeabasseseseeeensasasaeeeens 1 II. PLAINTIFF FAILS TO RAISE A TRIABLE ISSUE OF FACT ABOUT HIS ABILITY TO PERFORM THE ESSENTIAL FUNCTIONS OF HIS EMPLOYMENT oeseee eee ee ee erecta eee e essere ae ee sees ee eaabas be ae sess ee snnnraeaeens 1 A. Plaintiff Could Not Perform the Essential Functions of His Position.................cccccc.ooo... 2 B. There Was No Other Available Position, for Which Plaintiff Was Qualified, That Would Accommodate Plaintiff’s Alleged Disability ...........cccoceevvieennnnen. 3 C. There was No Other Reasonable Accommodation That Could Have Accommodated Plaintiffs Alleged Disability, wusssessonssnsmassssmansssmnssssmssssnssas sem n 5 III. PLAINTIFF HAS NOT SHOWN A TRIABLE ISSUE OF FACT WITH RESPECT TO THE LEGITIMATE BUSINESS REASON FOR HIS TERMINATION ....ooiiiiiiittieie eee eect eee ee eect eee ee ee eeta ae area sees eeetas bese ease sees esasasse ae aeseeesesasaeaeens 6 IV. PLAINTIFF HAS FAILED TO ESTABLISH A TRIABLE ISSUE OF FACT WITH RESPECT TO HIS RETALIATION CLAIM ....ooooiiiiiitiiiieee eee eee ees ee s es eanes 8 V. PLAINTIFF'S FOR WRONGFUL TERMINATION CLAIM IN VIOLATION OF PUBLIC POLICY NECESSARILY FAILS WITH THE OTHER FEHA CLAIMS oieeee eet tetas sees te tees esse saatae tesa esses sastasaeseeeseens 9 VI. PLAINTIFF'S EMOTIONAL DISTRESS CLAIM IS IMPROPER........ccccccoovviiiiiiiiiiiiiiiieneen. 9 VII. DEFENDANT’S SEPARATE STATEMENT IS NOT PROCEDURALLY DEFICIENT couric eee ete tease eect etree ease ee eeetasae bees se ee es snsasseeese sees ensnrseneens 10 VIII. CONCLUSION ...ooiitiie ieee ee eta ee eee ee ee ette eee eaae ee ee este ae ee etaeae ee eensae se eeesseseseesssaeee snes 10 SAN16-02:2015993_1:9-6-17 -i DEFENDANT SANDERS & WOHRMAN CORPORATION’S REPLY IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION ~N O N n e B A W TABLE OF AUTHORITIES Page State Cases Barber v. Rancho Mortgage & Investment Corp., (1994) 26 Cal. APP. 4th 1819 ...ceeiiciiiee ee eee stes sate sabe estes shee sabe a sees sees 7 Beninati v. Black Rock City, LLC, (2009) 175 Cal. APP. Ath 650... cece eee eee ete etter sabe ee sabe essa eesaae eas 2 Conroy v. Regents of University of California, (2009) 45 Cal. 4th 1244... eee eee eee e tees b eee ebe eee e bee sbbe este anst eet ee este sabe aneeenseas 9 Hanson v. Lucky Stores, Inc., (1999) Fd: Cal. ADPDATIN 21.5: cnn eunnmsunnsssnn owns smonssssmss sms 5mm seas ae 568s 6 meses assess 9 Hersant v. Dep’t of Soc. Servs., (1997) 57 Cal. APP. Ath O07... eee ee eters st te sabes b esate sateen essen 7:9 Janken v. GM Hughes Electronics, (1996) 46 Cal. APP. Ath 55... eee eee eee sees estes sabe e ssbb e esate eee 10 Kelly v. Stamps.com Inc., (2005) 135 Cal. APP. 4th OBB ......eeeeieeiiee ieee eects atest east teeete estes bee sbee este enaeeebee esas esse enneas 9 Mamou v. Trendwest Resorts, Inc., (2008) 165 Cal, ADD: AEH BBB cx cuununsusnsssnnowwnsumnsssunnonssssmss sms us mms ssams ma e-5 56556 mese 554555 9 Martin v. Lockheed Missiles & Space Co., (1994) 29 Cal. APP. Ath TTL8 coco ee ete teeta e sbeebs sabe e sees beesbae esse enneas 7 McCullah v. S. California Gas Co., (2000) 82 Cal. APP. Ath 405... eerste stearate sabes aes 6,7 Nadaf-Rahrov v. Neiman Marcus Grp., Inc., (2008) 166 Cal. APP. 4th 952... eee ete eee st tees estes beasties sabe e see e see sbae esse enneas 1 Nealy v.City of Santa Monica, (2013) 234 Cal, ADD: AEN 35D ss cucunusunnsssnn own snmnsn sn onssssmsss sms us mme 5am m a e-5 5655 60 HEE S ES 6 Raine v. City of Burbank (2006) 135 Cal. APP. 4th 1215. ieee ceases sbeebs sabe eee ene 4,5,7 Scotch v. Art Institute of California, (2009) 173 Cal. APP. Ath O86......ueiiiniiieeieie ee eerste eect essa sabe essa essa es saae es 1,2 Semore v. Pool, (1990) 217 Cal APP.-3A 1087... eee teeters e sate es be ates bee sbbeenbe ene e esas saae anne 10 Wouldridge v. Burns, (1968) 265 Cal, ADD: ZL B2 cuss eunnususnsssnn owns ss snsssmsss sms us sms sass em 56m5 6 meses assess 8 SAN16-02:2015993_1:9-6-17 -1i - DEFENDANT SANDERS & WOHRMAN CORPORATION’S REPLY IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION ~N O N n e B A W TABLE OF AUTHORITIES (con’t) Page State Statutes Government Code Section 129260(F)......cciouiiiiiiiiiieeie eects eee eee e sees setae area ae ee eeaes 2 Labor Code: SECON 1328, x uummmrem sums vc sumsamones onus amass ous ucassans 0mm ov ass 06588 3155 085% (a AER OR S53 8 SAN16-02:2015993_1:9-6-17 - ii - DEFENDANT SANDERS & WOHRMAN CORPORATION’S REPLY IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION AN Ln W N I. INTRODUCTION Plaintiff’s Opposition and Response to the Separate Statement is largely devoid of any actual, admissible evidence and the little that Plaintiff does provide is misstated, (see, e.g., PIf.’s Resp. and Def.’s Reply to SS qq 6, 24, 30, 49; Def.’s Obj to Evid.), fails to support the conclusion for which Plaintiff cites it, (see, e.g., PIf.’s Resp. and Def.’s Reply to SS qq 2, 5, 10, 22, ) and is internally contradictory, (compare, e.g., PIf.’s Resp. to SS 60 with PIf.’s Resp. to SS | 41). At several points, Plaintiff even argues that his own testimony cannot be considered on a motion for summary judgment. (SS qq 8, 39, 41, 43, 45-48, 55.) At the same time, Plaintiff’s Opposition simply enumerates various confused, contradictory, and speculative arguments about accommodations that may have been available, without any evidence that they were available, that Plaintiff was qualified for the position, or that the position would have accommodated Plaintiff’s alleged disability. Likewise, in certain sections of the Opposition and the Separate Statement, Plaintiff pontificates about various tasks he possibly could have performed, while in other sections states that his disability was so debilitating that even the light duty tasks he was assigned caused an egregious amount of pain. Utterly lacking from Plaintiff’s Opposition or Response to the Separate Statement is any actual, admissible evidence contradicting Defendant’s evidence that 1) Plaintiff could not perform the essential functions of the job he was hired to do, 2) there were no other available positions for which Plaintiff was qualified that could have accommodated his alleged injury, 3) continuing to provide Plaintiff with invented light duty tasks was an undue hardship, 4) no other reasonable accommodation existed, and 5) the lack of light duty work was a legitimate business reason to terminate Plaintiff's employment. Consequently, there are no triable issues of fact, and Defendant is entitled to judgment as a matter of law. II. PLAINTIFF FAILS TO RAISE A TRIABLE ISSUE OF FACT ABOUT HIS ABILITY TO PERFORM THE ESSENTIAL FUNCTIONS OF HIS EMPLOYMENT Plaintiff bears the burden, as part of establishing a prima facie case, of showing that a reasonable accommodation existed. (See Nadaf-Rahrov v. Neiman Marcus Grp., Inc. (2008) 166 Cal. App. 4th 952, 962.) At the summary judgment phase, “the employee must be able to identify an available accommodation...” and the failure to do so is grounds for summary judgment. (Scotch v. Art SAN16-02:2015993_1:9-6-17 -1 DEFENDANT SANDERS & WOHRMAN CORPORATION’S REPLY IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION AN Ln W N Institute of California (2009) 173 Cal. App. 4th 986, 1018-1019.) As such, Plaintiff’s speculative argument regarding accommodations that may have existed is insufficient to defeat summary judgment. (See id. at 1019.) Here, Plaintiff has failed entirely to submit any evidence demonstrating an actual accommodation that could have been provided and that would have accommodated his alleged disability. Thus, Plaintiff has failed to raise a triable issue of fact with respect to his ability to perform the essential functions of his employment, with or without accommodation, and summary judgment must be granted on Plaintiff’s first, second, and third causes of action. (Beninati v. Black Rock City, LLC (2009) 175 Cal. App. 4th 650, 655-56.) A. Plaintiff Could Not Perform the Essential Functions of His Position The undisputed facts demonstrate that Plaintiff’s job as a Painter’s helper was very physical in nature, and that Plaintiff’s alleged disability prevented him from fulfilling the essential functions of that position. (SS |] 6-9, 13-16.) In an effort to create a triable issue of fact, Plaintiff misstates facts and testimony and contradictorily asserts that he could perform certain functions of his employment such as counting screws, making sure people wear safety gear, and prepping trucks prior to departure. (E.g., Plf.’s Resp. to SS { 6.) However, to even reach this argument, Plaintiff has to egregiously misstate testimony in an effort to confuse the Court. The testimony to which Plaintiff cites makes clear that counting screws was not a function of Plaintiff’s actual position, but rather, an invented light duty task he performed on reassignment; (See Def.’s Reply to SS { 6; Def.’s Obj to Evid. 1) and prepping trucks or checking gear was not a function of Plaintiff’s position, but that of another employee in a separate department. (See Def.’s Reply to SS { 6; Def.’s Obj to Evid. 2.) Moreover, none of the tasks Plaintiff describes are essential functions of any position. “[M]arginal functions of the position” are not, as a matter of law, essential functions. Gov’t Code § 12926(f).) Plaintiff’s argument that counting screws is a fundamental duty is laughable, as is the argument that preparatory tasks preformed within the first few minutes of the day-i.e. prepping trucks and checking gear'-are fundamental to the position. Most tellingly, Plaintiff’s argument that he could have fulfilled these tasks is entirely ' Not to mention that loading trucks with equipment and supplies would likely involve lifting over 10 pounds, bending, reaching, twisting, etc. SAN16-02:2015993_1:9-6-17 -2- DEFENDANT SANDERS & WOHRMAN CORPORATION’S REPLY IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION AN Ln W N contradictory to his main argument that his light duty assignment violated his medical restrictions. On one hand, Plaintiff argues that he could have loaded trucks with equipment and supplies, (E.g., PIf.’s Resp. to SS q 6), which would almost certainly involve lifting over 10 or 15 pounds, bending, reaching, twisting, etc.-tasks prohibited by his medical restrictions. On the other hand, Plaintiff argues that the light duty tasks actually assigned to him, such as sitting and cleaning parts, wiping down the table in the office kitchen, bagging rags, etc. were impossible to perform given his alleged disability. (E.g., Plf.’s Resp. to SS | 41.) Plaintiff’s internal contradictions are demonstrative of his grasping at straws and lack of any evidence to show a disputed fact. B. There Was No Other Available Position, for Which Plaintiff Was Qualified, That Would Accommodate Plaintiff’s Alleged Disability In addition to being unable to fulfill the essential functions of his employment, Plaintiff is unable to proffer any evidence that he could have been accommodated through reassignment. In response to Defendant’s evidence establishing that 90% of its positions entailed physical labor, that there were no desk jobs available at the time of Plaintiff’s employment, and that in any event, Plaintiff would not have been qualified for such, (SS | 1-3, 20, 22-27 54) Plaintiff merely speculates that there existed other positions that would not have involved physical labor. However, Plaintiff’s musings regarding other positions is insufficient to show a triable issue of fact as Plaintiff fails to submit any evidence identifying 1) an actual position, 2) that could have accommodated his stringent limitations, 3) for which he was qualified, and 4) that was available. First, despite his affirmative obligation to do so in establishing his prima facie case, Plaintiff has made no argument and asserted no evidence about what position could have or should have been made available to him as an accommodation. The closest Plaintiff comes in his argument to identifying an actual position is Plaintiff’s ridiculous assertion that Defendant had positions whose sole job function entailed, respectively, counting nuts and bolts, or answering the phone. (See Plf.’s Resp. to SS 20.) Again, however, Plaintiff has to misstate testimony even to make the argument as the cited testimony makes clear that the screw counting position was only an invented task assigned to Plaintiff as light duty, and answering the phones, though one of the duties of certain employees, was not their sole duty. (See Def.’s Reply to SS q 20; Def.’s Obj. to Evid. 1-3.) SAN16-02:2015993_1:9-6-17 -3- DEFENDANT SANDERS & WOHRMAN CORPORATION’S REPLY IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION AN Ln W N Second, Plaintiff’s mention of other positions such as helpers, schedulers, foremen, and superintendents is not accompanied by evidence that Plaintiff could have performed the essential functions of those positions, given his medical limitations. Indeed, the evidence to which Plaintiff cites corroborates, Defendant’s evidence establishing non-office positions entailed lifting greater than 15 pounds (SS qq 1, 20). The cited testimony describes labor intensive work, such as loading and unloading vehicles, setting up jobsites, checking equipment, delivering material, and grinding joints.” (PIf.’s Resp. to SS 20; Stewart Depo 89:18-25.) As explained above, Plaintiff again fails to raise a triable issue of fact as his assertion that he could have performed certain aspects of these jobs describes “marginal” and not essential functions of the positions, and his assertion is at odds with his main argument that the light duty tasks actually assigned exceeded his medical restrictions and were impossible to perform. (Compare PIf.’s Resp. to SS J 6 with Plf.’s Resp. to SS 41.) Third, Plaintiff fails to proffer any evidence demonstrating that he was qualified for another position. In response to Defendant’s evidence that Plaintiff did not graduate high school, had no relevant corporate experience, and worked at an entry-level, manual labor position, (SS {{ 2-6), Plaintiff alleges that he had previous experience in business administration and was previously a foreman and an assistant to a CEO. (See PIf.’s Resp. to SS { 5.) However, Plaintiff’s allegations are entirely unsupported by actual evidence as the document upon which Plaintiff relies merely lists his previous employers and wages earned. (Id.; Def.’s Reply to SS { 6.) Additionally, the wages Plaintiff lists are not commensurate with the positions he claims to have held. (/d.) Moreover, Plaintiff fails to explain what his experience entailed at the alleged positions and how that would qualify him for a position in Defendant’s corporate office. Finally, the reassignment of Plaintiff from an entry-level, manual labor position to a professional, business administration position in the corporate office would be a substantial promotion, which is not a reasonable accommodation. (See, e.g., Raine v. City of Burbank (2006) 135 Cal. App. 4th 1215, 1223.) Thus, Plaintiff has not submitted admissible evidence ? The testimony is limited to a description of some of the responsibilities of “helpers” in another division of the company and a sole employee employed as a “scheduler” in the coatings department; Plaintiff actually presents no evidence ins support of his conclusion that foremen and superintendents’ duties did not entail physical labor. (PIf.’s Resp. to SS { 20; Stewart Depo 89:18-25.) Defendant also notes that a reassignment to a foreman or a superintendent position would constitute a substantial promotion, which is not a reasonable accommodation under the law. (See, e.g., Raine, supra, 135 Cal. App. 4th at 1223.) SAN16-02:2015993_1:9-6-17 -4 - DEFENDANT SANDERS & WOHRMAN CORPORATION’S REPLY IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION AN Ln W N sufficient to demonstrate a triable issue of fact regarding Plaintiff’s qualifications for another position. Finally, Plaintiff fails to proffer any evidence that any potential position that could have accommodated his alleged disability was actually available. Defendant is not required to create a position or terminate another employee to accommodate a disabled employee. (See id.) Thus, despite Plaintiff’s speculation regarding positions that may have accommodated him or for which he may have been qualified, there is no evidence that any position Plaintiff mentions was not already filled by another employee. Plaintiff attempts to circumvent this problem by citing to Mr. Stewart’s deposition testimony stating that in the entire year of 2016, approximately 100-150 people were interviewed. (PIf.’s Resp. to SS { 66.) However, Plaintiff’s logical leap from this fact to the conclusion that Plaintiff could have necessarily been accommodated through reassignment is fallacious. The fact that S&W interviewed 100-150 people in 2016 does not establish that 1) there were 100-150 openings, 2) that the interviews were for positions that could have accommodated Plaintiff’s disability (90% of Defendant’s workforce works in physically demanding positions (SS | 1, 20)), or 3) that the interviews were for positions for which Plaintiff was qualified. Most importantly, the fact that 100-150 people were interviewed in the entirety of 2016 does not establish that any position was available at the time of Plaintiff’s employment. Plaintiff was reassigned to light duty in November 2015 and Plaintiff was laid off on January 6, 2016. (SS {{ 11, 55.) During this span of time, S&W experienced a downturn in its business, and S&W was forced to lay off 44 workers. (SS q 56.) Thus, although the company may have experienced an uptick in work following Plaintiff’s termination, this is not evidence that there were available positions during Plaintiff's employment. Clairvoyance is not required of an employer and Plaintiff has failed to raise a triable issue of fact with respect to the availability of any position. C. There was No Other Reasonable Accommodation That Could Have Accommodated Plaintiff’s Alleged Disability. Similarly, Plaintiff has proffered no evidence demonstrating any other reasonable accommodation existed. Plaintiff’s half-hearted mention of indefinite light-duty or leave is insufficient to raise a triable issue of fact. Moreover, an examination of these theories demonstrates neither is reasonable. SAN16-02:2015993_1:9-6-17 -5- DEFENDANT SANDERS & WOHRMAN CORPORATION’S REPLY IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION AN Ln W N First, Plaintiff conclusory asserts that, because his injury was not permanent, Defendant was required to provide an indefinite light duty reassignment. (PI1f.’s Oppn pp. 13-14.) However, it is important to note that Plaintiff proffers no evidence demonstrating the light duty position would not have been permanent. Indeed, Plaintiff’s most recent doctor’s note still restricts Plaintiff from lifting, twisting, bending, etc., (SS { 19) and Plaintiff has produced no evidence that, even presently, he is cleared to return to work. More fundamentally however, Plaintiff’s theory that Defendant was required to continue to invent light duty tasks providing little-to-no actual value to its business on an indefinite or long-term basis is ill conceived. (See SS {J 56-58.) Employers need not provide reasonable accommodation if it imposes an undue hardship. (McCullah v. S. California Gas Co. (2000) 82 Cal. App. 4th 495, 501.) Certainly, requiring a business to pay an employee providing no value is an undue hardship not required of an employer in accommodating a disabled employee. (See id.) Similar logic applies to Plaintiff’s brief mention of leave. (PIf.’s Oppn. p. 13.) Although leave for a defined period of time may be a reasonable accommodation, “FEHA does not require the employer to provide an indefinite leave of absence ....” (Nealy v.City of Santa Monica (2015) 234 Cal. App. 4™ 359, 377-78 (emphasis added).) The undisputed facts demonstrate that Plaintiff’s condition was worsening, not improving, and that there was no estimated date for his return to full duty. (SS | 11-18.) Additionally, the facts establish that Plaintiff remained unfit for his position for months after his termination, and Plaintiff’s most recent doctor’s note still imposes restrictions. (See SS q 19.) As there was no finite timetable for Plaintiff’s return, Defendant was not required to provide indefinite leave in the hopes that Plaintiff might someday return to his position. (See Nealy, supra, 234 Cal. App. 4" at 377-78.) As Plaintiff has failed to show a triable issue of fact as to whether he could fulfill the essential functions of his employment, summary judgment is proper on the first, second, and third causes of action. III. PLAINTIFF HAS NOT SHOWN A TRIABLE ISSUE OF FACT WITH RESPECT TO THE LEGITIMATE BUSINESS REASON FOR HIS TERMINATION Plaintiff similarly fails to raise a triable issue of fact with respect to Defendant’s legitimate business reason for his termination. As explained in Defendant’s Motion, to defeat summary judgment, SAN16-02:2015993_1:9-6-17 -6- DEFENDANT SANDERS & WOHRMAN CORPORATION’S REPLY IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION AN Ln W N Plaintiff is required to offer “substantial evidence” of a discriminatory motive. (Hersant v. Dep’t of Soc. Servs. (1997) 57 Cal. App. 4th 997, 1004-1005 (citing Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal. App. 4" 1718, 1735). But see, Barber v. Rancho Mortgage & Investment Corp., (1994) 26 Cal. App. 4™ 1819, 1835.) However, in opposition, Plaintiff fails to bring any evidence, much less “substantial evidence,” demonstrative of a discriminatory motive. Rather, Plaintiff simply cobbles together misleading, speculative, and factually unsupported arguments in an effort to cast aspersion on Defendant’s legitimate business purpose. Plaintiff’s lack of “substantial evidence” of pretext makes summary judgment on the first, second, third, fourth, and fifth causes of action appropriate. (See Hersant, supra, 57 Cal. App. 4™ at 1004-1005.) Plaintiff attempts to create a triable issue of fact by misleadingly citing to S&W’s vice president’s testimony regarding the company’s performance for the entirety of 2016. (See PIf.’s Resp. to SS qq 63.) However, Plaintiff was terminated on January 6, 2016. Consequently, Plaintiff focuses on the Company’s performance for a year in which he was not employed for 98.4% of the time. Moreover, Plaintiff’s own purported evidence-albeit unauthenticated and inadmissible-corroborates the fact that S&W had to lay off 44 employees between December 2015 and February 2016 due to a slowing pipeline of available work. (See SS q 56; Eldesouky Decl. Ex. 7 (listing 48 employees terminated from Sanders & Wohrman between December 2015 and February 2016.)) Consequently, Plaintiff’s argument related to an economic rebound following Plaintiff’s termination is irrelevant to his claims. Moreover, Plaintiff's argument regarding overall company health conflates Defendant’s legitimate business purpose with the context in which Plaintiff’s termination took place, which merely bolsters the purpose’s legitimacy. Although Plaintiff’s termination happened in the context of company-wide lay off, (SS { 56), the legitimacy of Plaintiff’s lay-off is not dependent on the larger company-wide lay off. In other words, even if the Company was not undergoing an economic downturn, it was still not legally required to create a new position for Plaintiff, terminate another employee to create an “available” position, promote Plaintiff, or provide him with an indefinite period of invented light duty work. (See, e.g., McCullah, supra, 82 Cal. App. 4th at 501; Raine, supra, (2006) 135 Cal. App. 4th at 1223.) Consequently, even if Plaintiff had produced evidence demonstrating a SAN16-02:2015993_1:9-6-17 -7 DEFENDANT SANDERS & WOHRMAN CORPORATION’S REPLY IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION AN Ln W N dispute as to the company-wide lay off, viewing the dispute in the light most favorable to Plaintiff, Defendant still had a legitimate business reason to terminate his employment. Consequently, Plaintiff has failed to demonstrate a triable issue of fact with respect to Defendant’s legitimate business purpose for Plaintiff's termination, and summary judgment is appropriate on the first, second, third, fifth, and sixth causes of action. IV. PLAINTIFF HAS FAILED TO ESTABLISH A TRIABLE ISSUE OF FACT WITH RESPECT TO HIS RETALIATION CLAIM Plaintiff has likewise failed to produce any evidence of a retaliatory motive for Plaintiff’s termination sufficient to demonstrate a triable issue of fact with respect to the fifth cause of action. Plaintiff’s Opposition requests the court infer a retaliatory motive from two facts; however, both are insufficient to demonstrate a cognizable claim for FEHA retaliation. First, Plaintiff requests an inference of retaliation because after Plaintiff informed S&W that he had filed a workers compensation dispute, S&W’s president sent Plaintiff home so Defendant could inquire as to its legal rights and obligations. (SS 49.) However, there is nothing retaliatory in seeking legal advice regarding an employer’s obligations to an employee who has initiated legal action against it. Moreover, there is no dispute that Plaintiff was paid for the day, and Plaintiff returned the work the following day. (SS q 49, PIf.’s Addt’] Material Fact | 94.) Drawing an inference of retaliation from such facts would set dangerous precedent, as employers would be prevented from seeking legal counsel as to their rights and obligations when confronted with legal action from an employee. More importantly, retaliation for retaining counsel and pursuing a workers compensation action is not a FEHA claim, but a claim under Lab. Code § 132a. Plaintiff has already litigated and released his § 132a claim, as part of a settlement agreement in his workers compensation action. (See Declaration of J. Randall Boyer in Support of Defendant’s Reply (“Boyer Decl.”) | 7, Ex. E.) Consequently, Plaintiff’s theory of liability is barred by Plaintiff’s release and the doctrine of res judicata. (See Wouldridge v. Burns (1968) 265 Cal. App. 2d 82, 84.) Plaintiff’s attempt to pursue an duplicative claim in this action and seek double recovery under this theory is improper. Second, Plaintiff requests an inference of retaliation because Plaintiff’s refusal to travel to jobsites was listed as a reason for his termination in addition to the lack of light duty work on his SAN16-02:2015993_1:9-6-17 -8- DEFENDANT SANDERS & WOHRMAN CORPORATION’S REPLY IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION AN Ln W N termination paperwork. However, although retaliatory animus can be shown through inconsistency or falsity, (Hersant, supra, 57 Cal. App. 4™ at 1004-1005), Plaintiff's evidence does not actually demonstrate either. The document to which Plaintiff refers specifically states that Plaintiff was terminated due to lack of light duty work. (See PIf.’s Resp. and Def.’s Reply to SS { 78, Eldessouky Decl. Ex. 8.) Moreover, Plaintiff fails to proffer any evidence demonstrating his refusal to travel was false. (See Kelly v. Stamps.com Inc. (2005) 135 Cal. App. 4™ 1088, 1097; Mamou v. Trendwest Resorts, Inc. (2008) 165 Cal. App. 4™ 686, 715.) Consequently, Plaintiff has failed to produce evidence of either an inconsistency or a falsity in the proffered reasons for his termination and Plaintiff fails to raise a triable issue of fact. Additionally, the statement of Plaintiff’s unwillingness to travel to jobsites simply acknowledges Plaintiff’s inability to perform the essential functions of the job he was hired to do. As such the fact is not material to the Motion and was not included in the Separate Statement. However, Plaintiff’s refusal is documented and those documents have been produced in discovery. (See Boyer Decl. 8, Ex. F.) V. PLAINTIFF'S FOR WRONGFUL TERMINATION CLAIM IN VIOLATION OF PUBLIC POLICY NECESSARILY FAILS WITH THE OTHER FEHA CLAIMS Plaintiff’s Opposition implicitly acknowledges that the facts and public policy underlying the sixth cause of action for wrongful termination are identical to those underlying the FEHA claims. Plaintiff’s Opposition fails to demonstrate any facts that would support a Tameny claim independent of his FEHA claims. As a wrongful discharge claim necessarily fails if the statutory-based claim substantively fails, (see Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 229, summary judgment is appropriate on this claim as well. VI. PLAINTIFF'S EMOTIONAL DISTRESS CLAIM IS IMPROPER Plaintiff’s Opposition confirms that exclusion of the intentional infliction of emotional distress claim was purposeful act by the Plaintiff. (PIf.’s Oppn. p. 16 Ins. 22-25.) As the pleadings “set the boundaries of the issues to be resolved at summary judgment” (Conroy v. Regents of University of California (2009) 45 Cal. Ii 1244, 1250), and as Plaintiff has confirmed that the pleadings do not contain an intentional infliction of emotional distress claim, the only claim to be resolved on this SAN16-02:2015993_1:9-6-17 -9- DEFENDANT SANDERS & WOHRMAN CORPORATION’S REPLY IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION AN Ln W N motion is the negligent infliction of emotional distress. Summary judgment on Plaintiff’s claim for negligent infliction of emotional distress is appropriate because such a claim asserted in the context of a wrongful termination against an employer is improper as a matter of law. (Semore v. Pool (1990) 217 Cal. App.3d 1087, 1105.) To establish negligent infliction of emotional distress, a plaintiff must establish breach of a duty; however, there is no duty to not discharge an employee, and in any event, the discharge of an employee is an intentional act, not a negligent one. (Id.) Consequently, Plaintiff’s claim fails as a matter of law and summary judgment should be granted on Plaintiff’s fourth cause of action. VII. DEFENDANT’S SEPARATE STATEMENT IS NOT PROCEDURALLY DEFICIENT Finally, Plaintiff’s argument that Defendant’s Separate Statement in Support of its Motion is procedurally improper misstates the facts. Each fact in the separate statement is supported by a citation to factual evidence. (Ironically, it is Plaintiff’s Response to the Separate Statement that makes assertions unsupported by factual evidence.) Further, Plaintiff avers that the declaration of John Wohrman is contradictory to his deposition testimony, yet no contradictions are identified. Plaintiff's argument that the Motion should be denied on procedural grounds is improper. VIII. CONCLUSION For these reasons, Defendant is entitled to judgment as a matter of law and summary judgment should be entered. Alternatively, should the court determine that any triable of fact does exist, Defendant respectfully requests that Summary Adjudication be entered as to all claims the court determines entitle Defendant to judgment as a matter of law. Dated: September 6, 2017 CALL & JENSEN A Professional Corporation Virginia L. Miller, J. Randall Boyer We ar J. Rafdall Boyer Attorneys for Defendant Sanders & Wohrman Corporation ® Comparing the elements of the two emotional distress claims, Plaintiff’s purposeful omission of the intentional tort is a tacit omission that he lacks evidence of any extreme and outrageous behavior on the part of the Defendant. (See Semore v. Pool (1990) 217 Cal.App.3d 1087, 1105; Janken v. GM Hughes Electronics (1996) 46 Cal. App. 4th 55, 65.) SAN16-02:2015993_1:9-6-17 -10 - DEFENDANT SANDERS & WOHRMAN CORPORATION’S REPLY IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION AN Ln W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF ORANGE I am employed in the County of Orange, State of California. I am over the age of 18 and not a party to the within action; my business address is 610 Newport Center Drive, Suite 700, Newport Beach, CA 92660. On September 6, 2017, 1 served the foregoing document described as DEFENDANT SANDERS & WOHRMAN CORPORATION’S REPLY IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION on the following person(s) in the manner indicated: SEE ATTACHED SERVICE LIST [ 1 (BY ELECTRONIC SERVICE) I am causing the document(s) to be served on the Filing User(s) through the Court’s Electronic Filing System. [ 1 BYMAIL) Iam familiar with the practice of Call & Jensen for collection and processing of correspondence for mailing with the United States Postal Service. Correspondence so collected and processed is deposited with the United States Postal Service that same day in the ordinary course of business. On this date, a copy of said document was placed in a sealed envelope, with postage fully prepaid, addressed as set forth herein, and such envelope was placed for collection and mailing at Call & Jensen, Newport Beach, California, following ordinary business practices. [ X] (BY FEDEX) Iam familiar with the practice of Call & Jensen for collection and processing of correspondence for delivery by overnight courier. Correspondence so collected and processed is deposited in a box or other facility regularly maintained by FedEx that same day in the ordinary course of business. On this date, a copy of said document was placed in a sealed envelope designated by FedEx with delivery fees paid or provided for, addressed as set forth herein, and such envelope was placed for delivery by FedEx at Call & Jensen, Newport Beach, California, following ordinary business practices. [ 1 (BY FACSIMILE TRANSMISSION) On this date, at the time indicated on the transmittal sheet, attached hereto, I transmitted from a facsimile transmission machine, which telephone number is (949) 717-3100, the document described above and a copy of this declaration to the person, and at the facsimile transmission telephone numbers, set forth herein. The above-described transmission was reported as complete and without error by a properly issued transmission report issued by the facsimile transmission machine upon which the said transmission was made immediately following the transmission. AN Ln W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 2.3 26 27 28 [ 1 (BY ELECTRONIC TRANSMISSION) I served electronically from the electronic notification address of the document described above and a copy of this declaration to the person and at the electronic notification address set forth herein. The electronic transmission was reported as complete and without error. [ 1 (BY PERSONAL DELIVERY) I caused such envelope to be delivered by hand to the offices of the addressee. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct, and that this declaration was executed on September 6, 2017, at Newport Beach, California. Linda Marie Ashe AN Ln W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 Mohamed Eldessouky, Esq. Eldessouky Law, APC 17139 Bellflower Blvd., Suite 202 Bellflower, CA 90706 Tel: (562) 461-0995 Fax: (562) 461-0998 Mohamed @eldessoukylaw.com SERVICE LIST Attorneys for Plaintiff Juan Sotomayor