Pacific_plastics_incs_notice_of_motion_and_motion_for_summary_judgment_or_in_the_alternative_summary_adjudication_memorandum_of_points_and_authorities

Motion

Cal. Super. - 4th Dist.November 27, 2017

G o r d o n Re es Sc ul ly M a n s u k h a n i , L L P 10 1 W. B r o a d w a y , Su it e 20 00 Sa n Di eg o, C A 92 10 1 AN Un BA W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 ELECTROMICALLY FILED Superior Court of California, County of Orange Mark S. Posard (SBN: 208790) 03/14/2019 at 04:54:00 PM mposard @grsm.com Clerk of the Superior Court Christina M. Vander Werf (SBN: 277877) By Jeannette Dowling, Deputy Clerk cvanderwerf @grsm.com Jonathan A. Schaub (SBN: 298892) jschaub@ grsm.com GORDON REES SCULLY MANSUKHANI, LLP 101 W. Broadway, Suite 2000 San Diego, CA 92101 Telephone: (619) 544-7241 Facsimile: (619) 696-7124 Attorneys for Defendants Pacific Plastics, Inc. and Farzad Farahani SUPERIOR COURT OF CALIFORNIA COUNTY OF ORANGE WALTER JERMAKOW Case No. 30-2017-00957914-CU-OE-CJC IWONA JERMAKOW [Hon. Deborah C. Servino, Dept. C21] Plaintiffs, PACIFIC PLASTICS, INC.’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, OR, IN THE VS. PACIFIC PLASTICS, INC., ALTERNATIVE, SUMMARY FARZAD FARAHANI AND DOES ADJUDICATION; MEMORANDUM OF 1 TO 10 INCLUSIVE POINTS AND AUTHORITIES Defendants. Filed concurrently with Separate Statement of Undisputed Material Facts; Declaration of Christina M. Vander Werf; Declaration of Jandro Parducho; Appendix of Evidence; [Proposed] Order RESERVATION#: 72963974 Complaint Filed: November 27, 2017 Trial Date: June 3, 2019 Hearing Date: May 3, 2019 Hearing Time: 10:00 a.m. R E N N N N i a TO THIS HONORABLE COURT, TO ALL PARTIES, AND TO THEIR RESPECTIVE ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on May 3, 2019, at 10:00 a.m. in Department C21 of the above-entitled Court, located at 700 Civic Center Drive West, Santa Ana, CA 92701, defendant Pacific Plastics, Inc. (“PPI”) will and hereby does respectfully move this Honorable Court for -1- PACIFIC PLASTICS, INC.’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION; MEMORANDUM OF POINTS AND AUTHORITIES G o r d o n Re es Sc ul ly M a n s u k h a n i , L L P 10 1 W. B r o a d w a y , Su it e 20 00 Sa n Di eg o, C A 92 10 1 AN Un BA W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 entry of summary judgment in its favor on each and every cause of action alleged against it by Plaintiff Walter Jermakow (“Plaintiff”) in his First Amended Complaint. Alternatively, in the event that summary judgment on any cause of action should be denied for any reason, PPI requests summary adjudication as follows: ISSUE NO. 1: Plaintiff’s First Cause of Action for “Wrongful Termination in Violation of Public Policy” fails as a matter of law as Plaintiff cannot demonstrate that he engaged in any protected activity and PPI’s termination of Plaintiff was based upon legitimate non- discriminatory reasons. ISSUE NO. 2: Plaintiff’s Second Cause Action for “Failure to Engage in Interactive Process” fails as a matter of law as Plaintiff cannot establish that he suffered from a disability or that Plaintiff made a request for an interactive process. ISSUE NO. 3: Plaintiff’s Third Cause Action for “Failure to Provide Reasonable Accommodation” fails as a matter of law because Plaintiff cannot establish that he suffered from a disability or that Plaintiff requested any reasonable accommodation. ISSUE NO. 4: Plaintiff’s Fourth Cause of Action for “Failure to Provide Religious Accommodation” fails as a matter of law because Plaintiff cannot establish that Plaintiff requested any reasonable accommodation or that PPI refused to provide accommodation. ISSUE NO. 5: Plaintiff’s Fifth Cause of Action for “Hostile Work Environment” fails as a matter of law because Plaintiff cannot establish any severe or pervasive harassment based upon any alleged disability. ISSUE NO. 6: Plaintiff’s claim for emotional distress damages fails as a matter of law as such damages are subject to worker’s compensation exclusivity and because Plaintiff cannot meet his burden of proof to support a claim for such damages. ISSUE NO. 7: Plaintiff’s claim for punitive damages fails as a matter of law as Plaintiff cannot meet his burden of proof to support a claim for such damages. This Motion for Summary Judgment, or, in the Alternative, Motion for Summary Adjudication is based upon this Notice of Motion and Motion, the attached Memorandum of Points and Authorities, the Separate Statement of Undisputed Material Facts, the Appendix of 5 PACIFIC PLASTICS, INC.’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION; MEMORANDUM OF POINTS AND AUTHORITIES G o r d o n Re es Sc ul ly M a n s u k h a n i , L L P 10 1 W. B r o a d w a y , Su it e 20 00 Sa n Di eg o, C A 92 10 1 AN Un BA W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 Evidence, the declarations of Christina M. Vander Werf and Jandro Parducho, all other pleadings and papers on file in this action, and all further evidence and argument as may be presented at the hearing hereon. Dated: March 14, 2019 a. Respectfully submitted, GORDON REES SCULLY MANSUKHANI, LLP By: iden Jhau) ark S. Posard~" ’ hristina M. Vander Werf Jonathan A. Schaub Attorneys for Defendants Pacific Plastics, Inc. and Farzad Farahani PACIFIC PLASTICS, INC.’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION; MEMORANDUM OF POINTS AND AUTHORITIES G o r d o n Re es Sc ul ly M a n s u k h a n i , L L P 10 1 W. B r o a d w a y , Su it e 20 00 Sa n Di eg o, C A 92 10 1 AN Un BA W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 IL. III. Table of Contents Page(s) INTRODUCTION .....oiiiiiiiiiiii cies seers sae sree sees 9 FACTS eeeeerste eae eae sates e este este sbeebs senate be este ebbe sae en anne ens 9 A Eniployment as @ Maintenance MECHANTE .«xuuwwess ums smsmuessemssassusmss mm 9 B First Cycle of Escalating Behavioral Issues Culminating in 2000 ........................ 10 C. Workplace Injury and Worker’s Compensation Claim in 2009 ........c.ccccoceeeneneee. 10 D Use of Company Time and Tools for Own Business ..........cceceeveeveerneeneeeneennen. 11 E Escalating Behavioral and Performance Issues After 2014..........cccccoveeniiineennen. 11 F Plaintiff Underwent Several Surgeries in 2016 which Did Not Require Work RESTTICTIONS «evenness eee ee eee ee eee ee eee eee eee ee ee ea ease ae ae ee ee ae ee ae ae ee aennaeeeeennnns 11 G. PPI Received Additional Complaints About Plaintiff During and Shortly After His Medical Leave of Absence, Which Resulted in the Decision to Terminate....12 H. Plaintiff Obtains Authorization for Additional Medical Leave After PPI’s EET IVA ISTH: TO) ES HOTT eros EEE SS ER ASE RAS 12 L Plaintiff’s Vacation Requests Did Not Seek Religious Accommodation.............. 13 J. Plaintiff’s Claim for Emotional Distress Damages..........cccccovveeieiieennieniecneennen. 13 LEGAL AUTHORITY oot sects eseee seeeeesneesneeeeeee 14 ARGUMENT Loctite sae sree eee 14 A. The First Cause of Action Fails Because PPI Did Not Violate Public Policy and Plaintiff’s Termination was Based Upon Legitimate Non-Discriminatory Reasons1 1. Plaintiff Was Not Wrongfully Terminated in Violation of Public POLICY «octets eee eee saree 14 i. Plaintiff Did Not Engage in Any Protected Activity ......cuueeeeeen..... 15 il. Plaintiff Cannot Establish a Causal Connection Between any Protected Activity and His Termination ...........cceevveeeeeeeeeeeenen. 16 iii. Plaintiff was Terminated for Behavioral and Performance Issues in Violation of Company POliCY .ceueeveemeeeeeiieeeeieeeeeeeenn. 17 2, Plaintiff’s Termination was Not Based Upon Unlawful Discrimination1 i. Plaintiff Cannot Establish a Prima Facie Claim of Disability Discrimination ........cceuvueuereeereeierimeeieeeeeeeererriieneeeeeerens 18 4- PACIFIC PLASTICS, INC.’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION; MEMORANDUM OF POINTS AND AUTHORITIES = G o r d o n Re es Sc ul ly M a n s u k h a n i , L L P 10 1 W. B r o a d w a y , Su it e 20 00 Sa n Di eg o, C A 92 10 1 AN Un BA W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 il. Plaintiff Cannot Establish a Prima Facie Claim for Religious DISCIIMINAtION ....ceeevvivieeeeeeeeeeeeriiiee eee e eereraeneeeeeerens 19 1ii. Plaintiff Cannot Establish a Prima Facie Claim for National Origin DISCTTMINALION ...eeuuveeeiiieeiiee eter eit e eiie ee eiie ee sii essere es saee esas 19 iv. PPI Terminated Plaintiff for Legitimate Non- Discriminatory REasONS ........occuveeeiiiiiiiiiiiiieiieeenieceieceiie ee 20 Vv. Plaintiff Cannot Show Intentional Discrimination by PPI............. 20 B. The Second and Third Causes of Action Fail Because Plaintiff Was Not Disabled and Did Net Initiate any Interactive PrOCeSsS www sswsmwssmumssmsusmmsssommssasmmssssmamsssss 21 C. The Fourth Cause of Action Fails Because There is No Evidence that PPI Ever Denied Plaintiff a Requested Religious Accommodation ............cccceeevveenieeneennen. 22 D. The Fifth Cause of Action Fails Because Plaintiff Cannot Establish Severe and Pervasive HATaSSIMIENT «..ccouneeeeeee eee eee eee ee eee eee eee ee eee ee esate eee aeeae ee aeae ee eean ns 23 E. Plaintiff’s Emotional Distress Damages Are Barred by Workers” Compensation Exclusivity and Have Not Been Established in Evidence .........cccocceevieeiiincennnen. 24 F. Plaintiff Is Not Entitled to Recover Punitive Damages ...........ccccceeeeerveeneccneennen. 25 CONCLUSION... cetera eee e tetra sees ete at sess esse ee seasasss esse eesersnnanes 26 _5- PACIFIC PLASTICS, INC.’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION; MEMORANDUM OF POINTS AND AUTHORITIES G o r d o n Re es Sc ul ly M a n s u k h a n i , L L P 10 1 W. B r o a d w a y , Su it e 20 00 Sa n Di eg o, C A 92 10 1 AN Un BA W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Table of Authorities Page(s) Cases American Airlines, Inc. v. Sheppard, Mullin, Richter & Hampton (2002) 96 Cal. APPA 1017 weenie eee eee esate sates ate saber ess ee saa ee 25 Arteaga v. Brink’s Inc. (2008) 163 Cal APPA 327 coon sees 16, 17,21 Avila v. Cont’l Airlines, Inc. (2008) 165 Cal APD AT. 1237 co smmssin ssn sosumsnss cxmsn on mses 555555. 5055555 545555515 5555558 S55055.5 5555558 SR5555385 21 Binder v. Aetna Life Insurance Company (1999) 75 Cal. APP-ALh 832 o.oo sees st beset e tee sbbeeebe ene eebaesaae ees 14 Bray v. Workers’ Comp. Appeals Board (1994) 26 Cal. APP-ALh 530 ...oieiieeiie cies eee te eae eee b ee sbae sabes sees teesaae ees 24 Compton v. City of Santee (1993) 12 Cal. APPA SOT eons eaters srt e eee tae saae een 17 Cruz v. HomeBase (20000) 83 CAL APPA. 160 sxun.oo smmsmnssnsn so sumone xmas on mses 555555. 5055555 545555515 5555558 S55055.5 3555558 SH5555385 25 Dutra v. Mercy Med. Ctr. Mt. Shasta (2012) 209 Cal APPAR 750 cenit eee seater t ee seas eebe ene eeseesaae ees 16 Etter v. Veriflo Corp. (1998) 67 Cal. APPA 457 coon st te eats testes sabe sabes sees see saae ees 23 Faust v. California Portland Cement Co. (2007) 150 Cal APP.Ah 804... eee eters eee t ees baesebe ane e eb ae sateen 18 Ferrick v. Santa Clara University (2014) 23] Cal APD AT. 1 FIT oo snmsnnsssnsn so sumans cxmsn on mses 555555.56 5055555 S55555% 15 5555558 S55055.5 3555558 SR5555383 15 Gantt v. Sentry Ins. (1992) 1 Caldth TO83 ......eiiiieiie cites ceases sate e este e sabe sabe en eee b ee ssae esse enna eseessaa ees 15 Guthrey v. State of California (1998) 63 Cal. APP.Ath 1108 .....eiiiiieiiieeee eee eee eee sate e vee ees 23,24 Guz v. Bechtel National, Inc. (2000) 24 Cal.Ath 317 eee eee eee eet eee t ee ebbe sabe e testes sabe enna eneeeneaas 17,20 Haney v. Aramark Uniform Services, Inc. (2004) 12] Cal APD ATH. B23 u.co smmssn ssn oo sumansn cxmsn on 0m 555555.56 555555 S45555% 15 5555558 S55055.5 3555558 SH5555385 15 Hanson v. Lucky Stores, Inc. (1999) 74 Cal. APPA 215 eee eee eee estes sabes st ee sabe sete e sees see saae ees 20 PACIFIC PLASTICS, INC.’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION; MEMORANDUM OF POINTS AND AUTHORITIES G o r d o n Re es Sc ul ly M a n s u k h a n i , L L P 10 1 W. B r o a d w a y , Su it e 20 00 Sa n Di eg o, C A 92 10 1 AN Un BA W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Heller v. EBB Auto Co. (9th Cir. 1993) 8 F.3d 1433 eee ete tetera st te eae sees b ee sbbe esas ene eesaesnae een 19 Hood v. Superior Court (1995) 33 CAL APPA. FTN sxun.co smmsnnsssnsn so sumans cxmsn on mss 55555. 5055555 5550555515 5555558 H55055.5 3555558 SH5555385 14 Horn v. Cushman & Wakefield Western Incorporated (1999) 72 Cal. APPA TOG... eee sees sabe sees t ee sabe sabe e nee esaesaae ees 14 Jones v. Department of Corrections (2007) 152 Cal APPA 13607 ene eee eee ete sees bae sabe e sees taesaae een 23 Kelley v. Corrections Corp. of America (E.D. Cal. 2010) 750 F.Supp.2d 1132 ooo secre sees 16 Lackner v. North (2006) 135 Cal APD AT. 118 co smmssnsssnssn so sumsns cxmsn on mses 5555.56 5055555 54555515 5555558 S55055 55555558 SH5555385 25 Loggins v. Kaiser Permanente Int’l. (2007) 151 CaLLAPP.Ah TT02 eee etic erates tees sabes t ee sabe sabes nee esaesaae ees 15 Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal. APPA 1718 ..ceeeie ee seers sees ee eats eevee e eb eesbae ees 17 McRae v. Dep't of Corrections and Rehabilitation (2006) 142 CaALAPP-AN B3T7 coors eee estes eee e ete e sabe sete e nee esaesaae ees 19 Miklosy v. Regents of Univ. of Cal. C2008) Ad CALA BTC cs miss sn sssnsivssssiio nwsiss aussi 55555 2565555 555550 S05 508 FAS SRSA RASS RS 24 Mixon v. Fair Employment & Housing Comm'n. (1987) 192 Cal APP.3A 1300 oii eects eee eases seas seas neeebeesaae ee 20 Nealy v. City of Santa Monica (2015) 234 Cal. APPA 359 centers sabes t esa ee 21 Nelson v. United Technologies (1999) 74 Cal. APPA SOT coos eee este eee t esas sabe e sees bee saae een 20 Scotch v. Art Institute of California-Orange County, Inc. (2009) IT3 CAL APTN DBI sn m5. mmm 00.5500w50 508555559 055550. 58. BAS 5555.08 S557 SVR 59 S55 558 SR BH8 21 Scott v. Phoenix Schools, Inc. (2009) 175 CaLAPP-AN TOZ cnet e tee sbae seas ese eeseesaae ens 25 Sing v. Southland Stone, U.S.A., Inc. (2010) 186 Cal APP.338 eee eters eee st teeta atest ee sbbe este ense estes esas sebe ene esbeessae ees 24 Slatkin v. University of Redlands (2001) 88 Cal. APPA 1147 wooo eee b esas sabe e sees tae saae een 17 Soldinger v. Northwest Airlines (1996) 51 CAL APDATE. FAY sxun.oo sms sssnssn so sumanss xmas on sss 555555.56 5055555 555555518 5555558 5055.50 3555 558 SH5535385 23 Jp PACIFIC PLASTICS, INC.’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION; MEMORANDUM OF POINTS AND AUTHORITIES G o r d o n Re es Sc ul ly M a n s u k h a n i , L L P 10 1 W. B r o a d w a y , Su it e 20 00 Sa n Di eg o, C A 92 10 1 AN Un BA W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Turner v. Anheuser-Busch, Inc. (1994) 7 CalAth 1238 ooo eee eee eee eee eee ete eee e eet ae ee etae ae ee enae ee eeras ae eeenneees 15 Vasquez v. Franklin Management Real Estate Fund, Inc. (20013) 222 Cal APD AT. 81D uo smmssn ssn so suman xmas on mss 555555. 5055555 S55555% 18 5555558 55055.50 5555558 SR5555385 24 Wilson v. County of Orange (2009) 169 Cal. APP.Ath T185 eee eects eerste sabe seas e es eesaae ee 21 Yanowitz v. L'Oreal USA, Inc (2005) 36 Cal. APP.-Ath 1028 .....eeeeieeiieeeee eee ee eee e stes sate e vee see et esaae ees 16 Yau v. Allen (2014) 229 Cal APP.Ah 144 «ce. t estas sabe e sees sae saae een 14 Statutes California Civil Code SECHION 3204... e eee e eee te teases esata e aber ee es ee sess sess eesessanannees 25 California Code of Civil Procedure SECTION 327 C causes eee eee eee ee ee veer es esas teat ates ee ee ee seas ee ee ee se ssann sees eesessannnnnaes 14 Labor Code SECION 3200 .....cooiiieieeeee ieee eerie eee teeter eres este ttaa sees ee esse teases esse eesessananeseeeeses 24 Labor Code SECION 3002 ......oooviuieeeeee ieee eee teeters ee este ee staa eres sees seseasassseesssesessannssenseeeses 24 Labor Code SECTION 5300 .....ciiiiiiieeeee ieee ieee eee eet eres esas teats esas esse teases eeeseesessananssaneaeeses 24 Regulations California Code of Regulations, Title 2 SECON T1065 «oe 18,22 -8- PACIFIC PLASTICS, INC.’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION; MEMORANDUM OF POINTS AND AUTHORITIES G o r d o n Re es Sc ul ly M a n s u k h a n i , L L P 10 1 W. B r o a d w a y , Su it e 20 00 Sa n Di eg o, C A 92 10 1 AN Un BA W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION After nearly 30 years of employment, plaintiff Walter Jermakow abandoned his position with defendant Pacific Plastics, Inc. (“PPI”) after learning that the company intended to terminate him for cause. Mr. Jermakow’s personnel file is replete with complaints and written warnings regarding altercations with other employees and failures to follow safety procedures. Several years before Plaintiff's termination, PPI also began receiving complaints that Plaintiff was working on a personal side business making weapon holsters while at work. Notwithstanding the lack of evidence in support of his allegations, which was borne out in discovery, Plaintiff maintains that his termination was pretextual and in some manner based upon Plaintiff’s disability, religion, and/or national origin. Plaintiff asserts five causes of action against PPI: (1) Wrongful Termination in Violation of Public Policy, (2) Failure to Engage in Interactive Process, (3) Failure to Provide Reasonable Accommodation, (4) Failure to Provide Religious Accommodation, and (5) Hostile Work Environment.! As will be shown herein, PPI is entitled to summary judgment in its favor on each of these claims. To the extent any claims survive summary judgment, summary adjudication of Plaintiff’s requests for emotional distress and punitive damages is warranted as such damages are barred by the doctrine of worker’s compensation exclusivity. Plaintiff has also failed to set forth any facts which would support either category of damages. II. FACTS A. Employment as a Maintenance Mechanic Pacific Plastics, Inc. is a manufacturer of PVC piping located in Brea, California. (First Am. Compl., 9.) Plaintiff was hired as an assistant in Pacific Plastics, Inc.’s maintenance department in March of 1987. (Separate Statement of Undisputed Material Fact (“SUF”) No. 1.) Plaintiff was promoted to the role of maintenance mechanic one year later and remained in that role until his termination in November 2016. (SUF No. 2.) Plaintiff’s job responsibilities "On March 7, 2019, Plaintiff filed a Request for Dismissal of a sixth cause of action for “Defamation” alleged against both PPI and Farzad Farahani. 9- PACIFIC PLASTICS, INC.’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION; MEMORANDUM OF POINTS AND AUTHORITIES G o r d o n Re es Sc ul ly M a n s u k h a n i , L L P 10 1 W. B r o a d w a y , Su it e 20 00 Sa n Di eg o, C A 92 10 1 AN Un BA W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 included changing the setups on the manufacturing machinery, troubleshooting the machinery, and replacing parts of the machinery. (Appendix of Evidence, Ex. 1, Depo. Transcr. of Walter Jermakow (Dec. 27, 2018) (“W. Jermakow Depo.”), p. 17:10-18.) B. First Cycle of Escalating Behavioral Issues Culminating in 2009 Plaintiff’s personnel file is replete with written complaints, warnings, and suspensions regarding Plaintiff’s workplace conduct in violation of company policy. (SUF No. 3.) In 2001, a fellow PPI employee accused Plaintiff of physically attacking him without reason. (SUF No. 3.) Several years later, in 2004, Plaintiff was caught taking PVC pipe from PPI’s premises. (SUF No. 3.) Plaintiff received a written warning and a five-day suspension. (SUF No. 3.) PPI received an additional complaint stating that Plaintiff had struck another employee in the back in December 2007, rendering the employee unable to sit down or walk for two weeks. (SUF No. 3.) Additionally, in 2008, a PPI employee submitted a written complaint regarding an encounter wherein Plaintiff slammed a door into the employee’s back and thereafter threatened him with a knife. (SUF No. 3.) These behavioral issues culminated in February 2009, when Plaintiff physically assaulted another employee resulting in lacerations to that employee’s face and mouth. (SUF No. 3.) Police were called to PPIs premises and the employee received treatment at a hospital emergency room. (SUF No. 3.) As a result of this incident, Plaintiff received a written warning and was suspended for two weeks. (SUF No. 3.) C. Workplace Injury and Worker’s Compensation Claim in 2009 In mid-2009, Plaintiff was struck in the head by a large chain while working and was taken to the emergency room. (SUF No. 6.) Despite Plaintiff’s deposition testimony that PPI and its management refused to allow Plaintiff to make a worker’s compensation claim for this injury, the claim was submitted to and accepted by PPI’s worker’s compensation insurance provider. (SUF No. 6.) Farzad Farahani, PPI’s long-time plant manager and the individually- named defendant herein, personally filled out and submitted the relevant worker’s compensation paperwork immediately after Plaintiff’s injury. (SUF No. 6.) PPI also permitted and encouraged Plaintiff’s medical leave necessitated by the injury. (SUF No. 6.) -10- PACIFIC PLASTICS, INC.’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION; MEMORANDUM OF POINTS AND AUTHORITIES G o r d o n Re es Sc ul ly M a n s u k h a n i , L L P 10 1 W. B r o a d w a y , Su it e 20 00 Sa n Di eg o, C A 92 10 1 AN Un BA W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 D. Use of Company Time and Tools for Own Business Beginning in about 2010, Plaintiff began engaging in employment outside of PPI designing weapon holsters. (SUF No. 4.) In 2012, Plaintiff formed a limited liability company named Spetzgear LLC. (Declaration of Christina Vander Werf (“Vander Werf Decl.”), {4; Appendix of Evidence, Ex. 2.) Beginning in about January 2015, PPI began receiving complaints from other employees that Plaintiff was not performing his job and was instead using his time at work to manufacture weapon holsters, talk to his personal customers on the phone, and even meet with customers in PPI's parking lot. (SUF No. 3.) E. Escalating Behavioral and Performance Issues After 2014 For several years after Plaintiff’s 2009 physical altercation, PPI received no written complaints about Plaintiff's workplace behavior or performance. However, beginning in 2014, Plaintiff’s behavioral and performance issues resurfaced. In July 2014, Plaintiff received a written warning for failing to follow PPI’s safety procedures. (SUF No. 3.) In January 2015, PPI received a complaint that Plaintiff screamed and yelled at another employee. (SUF No. 3.) At the same time, another employee submitted a written refusal to work with Plaintiff. (SUF No. 3.) Shortly thereafter, in March 2015, PPI issued a written warning to Plaintiff and mandated that he improve his job performance. (SUF No. 3.) F. Plaintiff Underwent Several Surgeries in 2016 which Did Not Require Work Restrictions In April 2016, Plaintiff underwent two surgeries for the removal of kidney stones. (Appendix of Evidence, Ex. 1, W. Jermakow Depo., 27:23-29:15.) Contrary to Plaintiff's testimony that he had work restrictions relating to these surgeries, Plaintiff's discharge papers do not contain any restrictions. (Appendix of Evidence, Ex. 28 (Walter Jermakow 000154- 000155); Ex. 29 (Walter Jermakow 000096-000097.) Plaintiff did not submit a worker’s compensation claim relating to these surgeries. (Appendix of Evidence, Ex. 1, W. Jermakow Depo., 27:23-29:15.) On or about October 5, 2016, Plaintiff underwent a hernia surgery and took a medical leave of absence through November 7, 2016. (SUF No. 9.) Plaintiff submitted a note from his -11- PACIFIC PLASTICS, INC.’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION; MEMORANDUM OF POINTS AND AUTHORITIES G o r d o n Re es Sc ul ly M a n s u k h a n i , L L P 10 1 W. B r o a d w a y , Su it e 20 00 Sa n Di eg o, C A 92 10 1 AN Un BA W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 medical provider dated October 31, 2016 stating that Plaintiff would return to work on November 7, 2016. (SUF No. 10.) Contrary to Plaintiff’s testimony that he had work restrictions relating to this hernia surgery, the October 31, 2016 medical note did not outline any work restrictions; instead, it stated that he could return to work at full capacity. (SUF No. 10.) Plaintiff returned to work on November 7, 2016 after the medical leave ended. (SUF No. 10.) G. PPI Received Additional Complaints About Plaintiff During and Shortly After His Medical Leave of Absence, Which Resulted in the Decision to Terminate On October 11, 2016, PPI received a written statement from a maintenance supervisor regarding Plaintiff’s job performance and workplace conduct. (SUF No. 3.) As with earlier complaints, the statement relayed that Plaintiff spent much of his time working on his personal business making weapon holsters and using PPI’s tools and materials to do so. (SUF No. 3.) The statement also described Plaintiff’s continuous verbal harassment of other employees. (SUF No. 3.) The supervisor requested that Plaintiff be removed from the maintenance department. (SUF No. 3.) On November 21, 2016, two weeks after Plaintiff’s return from his medical leave, PPI received another written complaint from its maintenance supervisor and two other employees. (SUF No. 3.) These employees again protested that Plaintiff was not performing his job responsibilities, that Plaintiff was using his time at PPI for his personal business making weapon holsters, and that Plaintiff’s verbal harassment of other employees continued. (SUF No. 3.) Due to Plaintiff’s ongoing failure to improve or correct his behavioral and performance problems, PPI decided to terminate Plaintiff on November 21, 2016, upon receiving the additional written complaint. (Declaration of Jandro Parducho (‘“Parducho Decl.”), 22.) PPI prepared a termination letter dated November 22, 2016, to inform Plaintiff that he was being terminated for poor performance effective immediately. (SUF No. 11.) H. Plaintiff Obtains Authorization for Additional Medical Leave After PPI’s Termination Decision Before PPI could meet with Plaintiff to discuss his termination and deliver the termination letter, Plaintiff left work without authorization. (SUF No. 12.) Later that day same -12- PACIFIC PLASTICS, INC.’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION; MEMORANDUM OF POINTS AND AUTHORITIES G o r d o n Re es Sc ul ly M a n s u k h a n i , L L P 10 1 W. B r o a d w a y , Su it e 20 00 Sa n Di eg o, C A 92 10 1 AN Un BA W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 day, Plaintiff obtained two conflicting notes from his doctor dated November 22, 2016. (SUF No. 13.) One note stated that Plaintiff remained cleared to work, but with restrictions, and that Plaintiff would return to full duty on December 2, 2016. (SUF No. 13.) The other note stated that Plaintiff was not cleared to work and that he could return to full duty without restrictions on November 29, 2016. (SUF No. 13.) On the following day, November 23, 2016, Plaintiff filed both a workers’ compensation claim and a claim for disability benefits with the California Employment Development Division. (SUF Nos. 14, 15.) The workers’ compensation claim related to a “specific injury” occurring on January 1, 2011, but oddly described the 2009 incident wherein Plaintiff was struck in the head with a chain. (SUF No. 14.) Again, Plaintiff’s 2009 head injury had already been submitted to and covered by PPI’s worker’s compensation insurance. (SUF No. 6.) The following week, as Plaintiff did not return to work after leaving without permission on November 22, 2016, PPI delivered Plaintiff’s termination letter and final paycheck to his wife who worked in PPI’s accounting department. (SUF No. 16.) LL Plaintiff’s Vacation Requests Did Not Seek Religious Accommodation Plaintiff alleges that he requested days off in January in order to celebrate Russian Orthodox Christmas, and that PPI always rejected these requests. (First Am. Compl., 12.) However, the vacation request forms submitted by Plaintiff to PPI in no manner reference that the days were requested in order to celebrate Russian Orthodox Christmas. (SUF No. 19.) Additionally, PPI’s records show that Plaintiff regularly received approval for vacation days in January. (SUF No. 19.) Moreover, Plaintiff never submitted any written complaints to PPI about Defendant Farahani or about any comments or conduct regarding Plaintiff’s religion or national origin. (SUF Nos. 17, 18). J. Plaintiff’s Claim for Emotional Distress Damages Plaintiff seeks emotional distress damages relating to his termination by PPI. (First Am. Compl. 437, 41, 45, 51, 55, 66.) However, Plaintiff has not sought out or received any medical treatment relating to any purported emotional distress symptoms or damages. (SUF No. 20.) Plaintiff also does not take any medication for any of his alleged emotional distress symptoms. -13- PACIFIC PLASTICS, INC.’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION; MEMORANDUM OF POINTS AND AUTHORITIES G o r d o n Re es Sc ul ly M a n s u k h a n i , L L P 10 1 W. B r o a d w a y , Su it e 20 00 Sa n Di eg o, C A 92 10 1 AN Un BA W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 (SUF No. 20.) III. LEGAL AUTHORITY Summary judgment or adjudication should be granted where it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty. (Code Civ. Proc. § 437c(f)(1); see also Hood v. Super. Ct. (1995) 33 Cal.App.4th 319, 323.) Code of Civil Procedure section 437¢ allows defendants to move for summary judgment “in any action or proceeding if it is contended that the action has no merit[.]” (Code Civ. Proc., § 437c, subd. (a)(1).) Section 437c¢ also allows defendants to move for summary adjudication “as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty” where it is contended either “that the cause of action has no merit” or that Defendants “did not owe a duty to the plaintiff[.]” (Code Civ. Proc., § 437c, subd. (f)(1).) A cause of action has no merit where (i) one or more elements of the cause of action cannot be separately established, even if that element is separately pleaded, or (ii) if a defendant establishes an affirmative defense to that cause of action. (Code Civ. Proc., § 437c, subd. (n)(1)-(2).) For both summary judgment and summary adjudication, the moving party must show the absence of a triable issue of material fact. (Code Civ. Proc., § 437c, subd. (p)(2).) In determining whether the papers show there is a triable issue as to any material fact, the court must consider all inferences reasonably deductible from the evidence. (Code Civ. Proc. § 437c, subd. (¢); Binder v. Aetna Life Ins. Co. (1999) 75 Cal. App.4th 832, 840; Horn v. Cushman & Wakefield Western Inc. (1999) 72 Cal. App.4th 798, 805.) IV. ARGUMENT A. The First Cause of Action Fails Because PPI Did Not Violate Public Policy and Plaintiff’s Termination was Based Upon Legitimate Non-Discriminatory Reasons 1. Plaintiff Was Not Wrongfully Terminated in Violation of Public Policy In order to prove wrongful termination in violation of public policy, Plaintiff must establish that his termination was substantially motivated by a violation of public policy. (Yau v. Allen (2014) 229 Cal. App.4th 144, 154.) “The elements of a claim for wrongful discharge in -14- PACIFIC PLASTICS, INC.’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION; MEMORANDUM OF POINTS AND AUTHORITIES G o r d o n Re es Sc ul ly M a n s u k h a n i , L L P 10 1 W. B r o a d w a y , Su it e 20 00 Sa n Di eg o, C A 92 10 1 AN Un BA W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 violation of public policy are (1) an employer-employee relationship, (2) the employer terminated the plaintiff’s employment, (3) the termination was substantially motivated by a violation of public policy, and (4) the discharge caused the plaintiff harm.” (/d.; see also Haney v. Aramark Uniform Services, Inc. (2004) 121 Cal. App.4th 623, 641.) Courts evaluate wrongful termination claims in the same manner as FEHA discrimination claims, using the McDonnell-Douglas framework. (See Loggins v. Kaiser Permanente Int’l. (2007) 151 Cal. App.4th 1102, 1108.) Under this test, Plaintiff must make a prima facie showing that he engaged in a protected activity by either (1) refusing to violate a statute; (2) performing a statutory obligation; (3) exercising a statutory right or privilege; or (4) reporting an alleged violation of a statute of public importance. (Gantt v. Sentry Ins. (1992) 1 Cal.4th 1083, 1090- 91.) Plaintiff must also demonstrate a causal connection between the protected activity and his termination. (Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1258; Ferrick v. Santa Clara University (2014) 231 Cal.App.4th 1337, 1357.) If Plaintiff is able to meet the initial burden of a prima facie showing-which he cannot-the burden shifts to PPI under the McDonnell-Douglas framework to articulate a legitimate non-retaliatory reason for his termination. (Loggins, supra, 151 Cal. App.4th at p. 1108.) Once PPI does so, the burden shifts back to Plaintiff to establish that PPI’s legitimate reasons for the termination were actually a pretext for discrimination or retaliation. (/d.) As explained herein, Plaintiff cannot meet his prima facie burden because he did not engage in protected activity and cannot meet his burden of showing pretext because Plaintiff’s termination was not motivated in any manner by any alleged protected activity. 1. Plaintiff Did Not Engage in Any Protected Activity Plaintiff has not demonstrated (or even alleged) that he made any complaints or reports to PPI regarding unlawful conduct. On the contrary, the only activities Plaintiff alleges are taking medical leave, filing worker’s compensation claims, and making an accommodation request. As a matter of law, however, these actions do not constitute protected activity for the purposes of a wrongful termination claim. First, the filing of worker’s compensation claims, as well as requests for accommodation or leave relating to those injuries or disabilities, cannot serve as the -15- PACIFIC PLASTICS, INC.’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION; MEMORANDUM OF POINTS AND AUTHORITIES G o r d o n Re es Sc ul ly M a n s u k h a n i , L L P 10 1 W. B r o a d w a y , Su it e 20 00 Sa n Di eg o, C A 92 10 1 AN Un BA W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 basis for a wrongful termination claim. (Dutra v. Mercy Med. Ctr. Mt. Shasta (2012) 209 Cal.App.4th 750, 755 [“We conclude a violation of section 132a [relating to worker's compensation] cannot be the basis of a tort action for wrongful termination.”].) Similarly, requests for accommodation on any basis, including medical leave, cannot constitute a protected activity for purposes of a wrongful termination claim. (Kelley v. Corrections Corp. of America (E.D. Cal. 2010) 750 F.Supp.2d 1132, 1144 [“While the range of protected activities is wide . . . there is no case the court can find to support the proposition that a mere request for accommodation is a protected activity.”].) As a matter of law, therefore, Plaintiff cannot establish that he engaged in any protected activity and cannot make a prima facie showing for his claim of wrongful termination in violation of public policy. il. Plaintiff Cannot Establish a Causal Connection Between any Protected Activity and His Termination Even if Plaintiff could establish that he engaged in a protected activity, which he cannot, Plaintiff cannot demonstrate any causal connection between any such activity and his termination. PPI made its decision to terminate Plaintiff several weeks after Plaintiff returned from medical leave relating to his October 2016 hernia surgery. (SUF Nos. 10, 11.) Similarly, the termination decision was made, and termination letter drafted, prior to issuance of a second medical leave authorization. (SUF Nos. 11, 12, 13.) Furthermore, PPI’s termination decision was based upon a pattern of behavioral issues, performance issues, and violations of company policy which began long before Plaintiff’s October 5, 2016 surgery and medical leave. (SUF No. 3.) California law makes clear that timing alone is insufficient to create a triable issue of fact to defeat summary judgment or otherwise conclusively establish causation. (Arteaga v. Brink's Inc. (2008) 163 Cal.App.4th 327, 334.) In Arteaga, a plaintiff argued his termination was discriminatory and/or retaliatory because the termination occurred “within days of disclosing his symptoms.” (Id.) To defeat summary judgment, Plaintiff would have to show something more than timing to establish that PPTs stated reasons for termination were pretextual, which Plaintiff cannot do. (See Yanowitz v. L’Oreal USA, Inc (2005) 36 Cal. App.4th 1028, 1042; Martin v. Lockheed Missiles & Space Co. -16- PACIFIC PLASTICS, INC.’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION; MEMORANDUM OF POINTS AND AUTHORITIES G o r d o n Re es Sc ul ly M a n s u k h a n i , L L P 10 1 W. B r o a d w a y , Su it e 20 00 Sa n Di eg o, C A 92 10 1 AN Un BA W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 (1994) 29 Cal.App.4th 1718, 1735.) iii. Plaintiff was Terminated for Behavioral and Performance Issues in Violation of Company Policy Even if Plaintiff could establish a prima facie case of wrongful termination in violation of public policy, he cannot demonstrate that the legitimate non-discriminatory basis for his termination was merely pretext. To the contrary, Plaintiff’s personnel file is littered with examples of physical violence, suspensions, safety violations, verbal harassment of other employees, performance warnings, and, in the years leading up to termination, repeated complaints that Plaintiff was not performing his job and was instead working on his outside business. (SUF Nos. 3,4, 5.) Further, Mr. Jermakow’s pattern of misconduct is well documented (1) both before and after Plaintiff’s 2009 worker’s compensation claim and medical leave and (2) both before and after Plaintiff’s October 2016 hernia surgery. As stated in Arteaga, where an employer can cite to preexisting misconduct and employment issues, plaintiff must present substantial evidence of pretext to overcome the legitimate reasons cited by the employer for adverse action. (See generally, Arteaga, 163 Cal. App.4th at p. 353 [“Standing alone against Defendant’s strongly supported legitimate reason for terminating plaintiff, temporal proximity does not amount to more than a scintilla of evidence of discrimination.”] [internal quotations omitted].) No such evidence exists here. Plaintiff's post hoc speculation or conjecture is insufficient to defeat this Motion. (See Compton v. City of Santee (1993) 12 Cal. App.4th 591, 594-96.) 2. Plaintiff’s Termination was Not Based Upon Unlawful Discrimination California has adopted a three-stage burden-shifting framework for analyzing employment discrimination claims at summary judgment. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354.) Plaintiff bears the initial burden of establishing a prima facie discrimination claim. (I/d.) Even where Plaintiff can meet this initial burden, PPI may then demonstrate its legitimate non-discriminatory reasons for the adverse action. (Slatkin v. University of Redlands (2001) 88 Cal.App.4th 1147, 1156.) After PPI proffers its legitimate non-discriminatory reason for the termination, the presumption of discrimination “simply drops -17- PACIFIC PLASTICS, INC.’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION; MEMORANDUM OF POINTS AND AUTHORITIES G o r d o n Re es Sc ul ly M a n s u k h a n i , L L P 10 1 W. B r o a d w a y , Su it e 20 00 Sa n Di eg o, C A 92 10 1 AN Un BA W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 out of the picture” and the burden shifts back to Plaintiff to prove intentional discrimination by PPI. (Id. [internal citations omitted].) 1. Plaintiff Cannot Establish a Prima Facie Claim of Disability Discrimination To establish a prima facie case of disability discrimination, Plaintiff must establish that (1) he suffers from a disability, (2) he is otherwise qualified to do his job, and (3) he was subjected to an adverse employment action based upon his disability. (Faust v. California Portland Cement Co. (2007) 150 Cal. App.4th 864, 886.) As an initial matter, Plaintiff cannot establish a disability. The regulations promulgated by the California Fair Employment and Housing Council specifically exclude from their definition of “disability” any conditions that are “mild” and “do not limit a major life activity.” (Cal. Code Regs., tit. 2, § 11065(d)(9)(B).) The regulation further explains that conditions such as “minor cuts, sprains, muscle aches, soreness, bruises, or abrasions” do not constitute disabilities. (/d.) Plaintiff cannot establish that his alleged 2011 elbow injury (which there is no record of) constitutes a disability. Plaintiff testified regarding the alleged elbow injury that it involves only mild pain, for which Plaintiff takes Motrin as needed. (Appendix of Evidence, Ex. 1, W. Jermakow Depo., 12:9-13:18, 15:1-10.) Furthermore, the alleged elbow injury cannot be construed to limit a major life activity-taking Plaintiff at his word, he was able to perform the “hard labor” of his maintenance work at PPI for six years without any accommodations or restrictions even with the alleged elbow injury. (Appendix of Evidence, Ex. 1, W. Jermakow Depo., 12:9-13:18, 15:1-10.) Similarly, Plaintiff’s April 2016 kidney stones surgeries do not constitute a disability because he did not have any activity or lifting restrictions whatsoever, i.e., they did not limit major life activity. (Appendix of Evidence, Ex. 28 (Walter Jermakow 000154- 000155); Ex. 29 (Walter Jermakow 000096-000097).) Plaintiff’s October 2016 hernia surgery does not constitute a disability because Plaintiff was cleared to return to work at full capacity, without any restrictions, on November 7, 2016. (SUF No. 10.) To the extent Plaintiff was temporarily disabled after the hernia surgery, he was not at the time PPI decided to terminate his employment as he no longer had any work -18- PACIFIC PLASTICS, INC.’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION; MEMORANDUM OF POINTS AND AUTHORITIES G o r d o n Re es Sc ul ly M a n s u k h a n i , L L P 10 1 W. B r o a d w a y , Su it e 20 00 Sa n Di eg o, C A 92 10 1 AN Un BA W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 restrictions. (Id.) Even assuming arguendo that Plaintiff had been disabled at any point during his employment, he cannot demonstrate that he was subject to adverse employment action based upon his supposed disability(ies). The proximity of his termination to the hernia surgery is insufficient as a matter of law to establish pretext or to otherwise overcome the evidence of a legitimate, non-discriminatory basis for the adverse employment action. (See Arteaga, 163 Cal.App.4th at p. 353; Loggins, 151 Cal. App.4th at p. 1114; McRae v. Dep’t of Corrections and Rehabilitation (2006) 142 Cal. App.4th 377, 388.) il. Plaintiff Cannot Establish a Prima Facie Claim for Religious Discrimination To establish a prima facie case of religious discrimination, Plaintiff must show that “he had a bona fide religious belief, the practice of which conflicted with an employment duty; (2) he informed his employer of the belief and conflict; and (3) the employer threatened him with or subjected him to discriminatory treatment, including discharge, because of his inability to fulfill the job requirements.” (Heller v. EBB Auto Co. (9th Cir. 1993) 8 F.3d 1433, 1438.) Plaintiff cannot make a prima facie showing of religious discrimination here. Plaintiff’s vacation requests for days off in early January did not indicate that the requests were related to Plaintiff’s religion in any manner. (SUF No. 19.) Moreover, Plaintiff’s personnel record demonstrates that Plaintiff often received vacation days off in early January. (SUF No. 19.) Plaintiff has offered no support for the proposition that his termination was related in any manner to his religion. To the contrary, Plaintiff testified that he believed his termination was due to his “injuries.” (Appendix of Evidence, Ex. 1, W. Jermakow Dep., 52:10-12.) iii. Plaintiff Cannot Establish a Prima Facie Claim for National Origin Discrimination In order to make a prima facie showing of national origin discrimination, Plaintiff must establish that “he was a member of a protected class, (2) he was qualified for the position he sought or was performing competently in the position he held, (3) he suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some -19- PACIFIC PLASTICS, INC.’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION; MEMORANDUM OF POINTS AND AUTHORITIES G o r d o n Re es Sc ul ly M a n s u k h a n i , L L P 10 1 W. B r o a d w a y , Su it e 20 00 Sa n Di eg o, C A 92 10 1 AN Un BA W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 other circumstance suggests discriminatory motive.” (Guz, 24 Cal.4th at p. 355.) PPI does not dispute that Plaintiff was of Polish national origin. However, as with religion, Plaintiff offers no support for the proposition that his termination was in any way related to his national origin. Rather, Plaintiff testified that he believed his termination was due to his “injuries.” (Appendix of Evidence, Ex. 1, W. Jermakow Dep., 52:10-12.) Further, Plaintiff testified that he does not recall anyone at PPI ever making comments about his national origin. (SUF No. 18.) In short, no evidence of discriminatory animus for Plaintiff’s termination based on national origin exists. iv. PPI Terminated Plaintiff for Legitimate Non-Discriminatory Reasons Even if Plaintiff were capable of establishing a prima facie claim of discrimination based on disability, national origin, or religion, PPI terminated Plaintiff for legitimate non- discriminatory reasons. As established conclusively in the preceding section and throughout this Motion, PPI terminated Plaintiff due to his longstanding, well-documented, and escalating history of behavioral issues, performance issues, and violations of company policy. (SUF Nos. 3, 4,5.) Plaintiff must therefore prove intentional discrimination on the part of PPL Vv. Plaintiff Cannot Show Intentional Discrimination by PPI In order to prove intentional discrimination, Plaintiff must show that PPI “harbored a discriminatory intent” and that the termination occurred under circumstances which suggest a discriminatory motive. (Mixon v. Fair Employment & Housing Comm'n. (1987) 192 Cal.App.3d 1306, 1317.) Mere speculation and conjecture are insufficient to defeat summary judgment; rather, Plaintiff must produce “substantial responsive evidence” demonstrating that PPI was motivated by bias against Plaintiff’s disability, national origin, or religion. (Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 224; Nelson v. United Technologies (1999) 74 Cal.App.4th 597, 614 [holding where a claim “rests merely upon conclusory allegations, improbable inferences, and unsupported speculation, summary judgment may be appropriate even where intent is an issue”].) Plaintiff possesses no evidence, much less substantial responsive evidence, of discriminatory motive by PPI in connection with his termination. Plaintiff also possesses no 220- PACIFIC PLASTICS, INC.’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION; MEMORANDUM OF POINTS AND AUTHORITIES G o r d o n Re es Sc ul ly M a n s u k h a n i , L L P 10 1 W. B r o a d w a y , Su it e 20 00 Sa n Di eg o, C A 92 10 1 AN Un BA W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 evidence, and certainly not substantial responsive evidence, which would demonstrate that Plaintiff’s legitimate reasons for Plaintiff’s termination were merely pretext. To the contrary, PPI employed other individuals of Polish national origin and other members of the Russian Orthodox faith, including Plaintiff’s father. (Appendix of Evidence, Ex. 1, Jermakow Depo. 37:3-38:19.) Based thereon, Plaintiff has failed to establish by a “preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.” (Arteaga, 163 Cal. App. 4th at p. 343.) Moreover, “It is not enough to disbelieve the employer; the factfinder must believe the plaintiff's explanation of intentional discrimination.” (Id. [internal citations omitted].) As Plaintiff has failed to provide any evidence to support intentional discrimination, PPI is entitled to summary disposition of this claim. B. The Second and Third Causes of Action Fail Because Plaintiff Was Not Disabled and Did Not Initiate any Interactive Process A claim for failure to engage in interactive process requires that Plaintiff (1) had a disability, (2) was qualified to perform the position’s essential functions with reasonable accommodation, (3) initiated the interactive process, and (4) that PPI failed to reasonably accommodate. (Scotch v. Art Institute of California-Orange County, Inc. (2009) 173 Cal.App.4th 986, 1009-10; Wilson v. County of Orange (2009) 169 Cal.App.4th 1185, 1192.) Further, “To prevail on a claim for failure to engage in the interactive process, the employee must identify a reasonable accommodation that would have been available at the time the interactive process occurred.” (Nealy v. City of Santa Monica (2015) 234 Cal. App.4th 359, 379.) Similarly, “[t]he elements of a failure to accommodate claim are (1) the plaintiff has a disability under FEHA, (2) the plaintiff is qualified to perform the essential functions of the position, and (3) the employer failed to reasonably accommodate the plaintiff's disability.” (Scotch, 173 Cal.App.4th at 1009-10.) To establish a failure to accommodate, the employee must have requested an accommodation. (Avila v. Cont’l Airlines, Inc. (2008) 165 Cal. App.4th 1237, 1252-53 [*“The employee can’t expect the employer to read his mind and know he secretly wanted a particular accommodation and sue the employer for not providing it.”].) As established herein, Plaintiff cannot prove the existence of a disability. First, Plaintiff 91.- PACIFIC PLASTICS, INC.’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION; MEMORANDUM OF POINTS AND AUTHORITIES G o r d o n Re es Sc ul ly M a n s u k h a n i , L L P 10 1 W. B r o a d w a y , Su it e 20 00 Sa n Di eg o, C A 92 10 1 AN Un BA W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 had no activity or lifting restrictions after his April 2016 kidney stone surgeries. (Appendix of Evidence, Ex. 28 (Walter Jermakow 000154-000155); Ex. 29 (Walter Jermakow 000096- 000097).) Second, Plaintiff was cleared to return to work at full capacity, without any restrictions, on November 7, 2016, after his October 2016 hernia surgery. (SUF No. 10.) Lastly, the alleged 2011 elbow injury, of which neither Plaintiff nor PPI have any record, does not constitute a disability under the California Fair Employment and Housing Council’s regulations because it allegedly involves only mild pain and did not prevent Plaintiff from performing “hard labor” work at PPI for six years. (Cal. Code Regs., tit. 2, § 11065(d)(9)(B); Appendix of Evidence, Ex. 1, W. Jermakow Depo., 12:9-13:18, 15:1-10.) Even if any of Plaintiff’s surgeries or injuries constituted a disability, Plaintiff did not initiate the interactive process and, thus, there could be no failure to accommodate. Plaintiff testified that he submitted doctor’s notes with work restrictions in connection with the above- listed elbow injury, kidney stone surgeries, and hernia surgery. (Appendix of Evidence, Ex. 1, W. Jermakow Depo., 29:2-10 [relating to kidney stone surgeries]; 30:14-19 [relating to hernia surgery]; 20:19-21:6 [relating to elbow injury].) However, the documentary evidence does not support his testimony. Neither the medical records in PPI’s possession nor the records produced by Plaintiff contain any work restrictions relating to these surgeries and injuries until after Plaintiff had been terminated. (SUF No. 25; Appendix of Evidence, Ex. 1, W. Jermakow Depo., 12:9-13:18, 15:1-10; Appendix of Evidence, Ex. 28 (Walter Jermakow 000154-000155); Ex. 29 (Walter Jermakow 000096--000097).) Accordingly, Plaintiff has failed to establish that that PPI had knowledge of the need to accommodate Plaintiff or that he requested an interactive process or accommodation. Thus, PPI is entitled to summary judgment on Plaintiff’s second and third causes of action. C. The Fourth Cause of Action Fails Because There is No Evidence that PPI Ever Denied Plaintiff a Requested Religious Accommodation Plaintiff alleges that PPI failed to accommodate Plaintiff’s requests for time off to observe Russian Orthodox holy days. (First Am. Compl., {{12, 50.) To state a claim for failure to accommodate religion, “the employee must establish a prima facie case that he or she had a 97. PACIFIC PLASTICS, INC.’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION; MEMORANDUM OF POINTS AND AUTHORITIES G o r d o n Re es Sc ul ly M a n s u k h a n i , L L P 10 1 W. B r o a d w a y , Su it e 20 00 Sa n Di eg o, C A 92 10 1 AN Un BA W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 bona fide religious belief, of which the employer was aware, that conflicts with an employment requirement.” (Soldinger v. Northwest Airlines (1996) 51 Cal. App.4th 345, 370.) The evidence in this action establishes conclusively that Plaintiff did not request religious accommodation from PPI. The vacation request forms submitted by Plaintiff to PPI make no reference to Plaintiff’s religion or the alleged fact that Plaintiff's requests were related to Russian Orthodox Christmas. (SUF No. 19.) Even if Plaintiff had made an adequate request for accommodation, PPI's records demonstrate that Plaintiff regularly received approval for vacation days in early January. (SUF No. 19.) Additionally, Plaintiff never submitted any written complaints to PPI about any comments regarding his religion. (SUF No. 17, 18.) Accordingly, PPI is entitled to summary adjudication of Plaintiff’s claim regarding religious accommodation. D. The Fifth Cause of Action Fails Because Plaintiff Cannot Establish Severe and Pervasive Harassment To establish a prima facie case of hostile work environment based on disability, Plaintiff must establish (1) that he belongs to a protected group; (2) he was subject to unwelcome harassment; (3) the harassment complained of was based on his disability; (4) the harassment complained of was sufficiently severe or pervasive so as to alter the conditions of employment and create an abusive working environment; and (5) respondeat superior for the claim against an employer. (Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1122-23.) In order to be actionable as harassment, conduct must be “more than occasional, isolated, sporadic, or trivial.” (Etter v. Veriflo Corp. (1998) 67 Cal.App.4th 457, 464-65.) “The conduct must be extreme: simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory change in the terms and conditions of employment.” (Jones v. Department of Corrections (2007) 152 Cal. App.4th 1367, 1377 [internal citations omitted].) Plaintiff has failed to put forth any evidence to establish a hostile work environment based upon any alleged disability. Plaintiff testified about a single comment made by Mr. Farahani relating to Plaintiff’s surgeries or injuries, wherein Mr. Farahani allegedly called Plaintiff a “fucking animal.” (Appendix of Evidence, Ex. 1, W. Jermakow Depo., 31:1-3.) Even x PACIFIC PLASTICS, INC.’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION; MEMORANDUM OF POINTS AND AUTHORITIES G o r d o n Re es Sc ul ly M a n s u k h a n i , L L P 10 1 W. B r o a d w a y , Su it e 20 00 Sa n Di eg o, C A 92 10 1 AN Un BA W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 if this comment was made, which is denied, the alleged one-off and isolated comment by Mr. Farahani is insufficient as a matter of law to establish the requisite severe and pervasive conduct for a hostile work environment claim. Finally, Plaintiff testified that he never made any written complaints to PPI about any comments made by Mr. Farahani. (SUF No. 17.) Without knowledge of the purportedly harassing conduct, PPI cannot be held liable for the conduct under a respondeat superior theory. (See Guthrey, 63 Cal. App.4th at p. 1122-23.) The failure of proof on each of these elements of the claim justifies an award of summary judgment in PPI's favor. E. Plaintiff’s Emotional Distress Damages Are Barred by Workers’ Compensation Exclusivity and Have Not Been Established in Evidence The California Workers’ Compensation Act provides “the sole and exclusive remedy” for employees who suffer job-related injuries. (Lab. Code, §§ 3200, 3602, 5300.) Such job-related injuries include emotional distress. (See, e.g., Vasquez v. Franklin Management Real Estate Fund, Inc. (2013) 222 Cal.App.4th 819, 832-33.) “An employer’s intentional misconduct in connection with actions that are a normal part of the employment relationship . . . [which result] in emotional injury is considered to be encompassed within the compensation bargain, even if the misconduct could be characterized as ‘manifestly unfair, outrageous, harassment, or intended to cause emotional disturbance.” (Id. [citing Sing v. Southland Stone, U.S.A., Inc. (2010) 186 Cal.App.4th 338, 366].) Even severe emotional distress arising from outrageous conduct that occurred at the worksite, which is not the case here, falls within the exclusive province of workers’ compensation when in the normal course of the employer-employee relationship. (Miklosy v. Regents of Univ. of Cal. (2008) 44 Cal.4th 876, 902.) Remedies for such emotional injuries lie exclusively through proceedings before the Workers’ Compensation Appeals Board, if at all. (See id.; Lab. Code §§ 3200, 3602, 5300; see also Bray v. Workers’ Comp. Appeals Board (1994) 26 Cal.App.4th 530, 540 [“[P]sychiatric injury, arising after termination from his employment, and solely because of the fact of termination, is not compensable.”].) Plaintiff claims that he suffered emotional distress from his termination by PPL (Appendix of Evidence, Ex. 1, W. Jermakow Depo. 67:2-5.) Plaintiff can only recover such damages in workers’ compensation proceedings-not in this civil action. 24. PACIFIC PLASTICS, INC.’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION; MEMORANDUM OF POINTS AND AUTHORITIES G o r d o n Re es Sc ul ly M a n s u k h a n i , L L P 10 1 W. B r o a d w a y , Su it e 20 00 Sa n Di eg o, C A 92 10 1 AN Un BA W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Separately, even if Plaintiff could theoretically recover emotional distress damages here, he has failed to produce evidence of emotional distress damages. In fact, Plaintiff admitted during his deposition that he has not received any medical treatment or taken any medications for any emotional distress. (SUF No. 20.) Accordingly, in the event this Court declines to grant summary judgment on all of Plaintiff’s claims, the issue of whether Plaintiff is entitled to recover emotional distress damages should be summarily adjudicated in favor of PPI. F. Plaintiff Is Not Entitled to Recover Punitive Damages To recover punitive damages, Plaintiff must prove that a corporate officer, director, or managing agent of PPI was guilty of oppression, fraud, or malice. (Civ. Code § 3294(a)-(b); Scott v. Phoenix Schools, Inc. (2009) 175 Cal.App.4th 702, 715; Cruz v. HomeBase (2000) 83 Cal.App.4th 160, 167 [explaining that “[m]anaging agents” are employees who “exercise ] substantial discretionary authority over decisions that ultimately determine corporate policy’] [emphasis in original].) To rise to the level of oppression, fraud, or malice, a managing agent’s conduct must be “so vile, base, contemptible, miserable, wretched or loathsome” that it is looked down upon by ordinary people, and has “the character of outrage frequently associated with crime.” (American Airlines, Inc. v. Sheppard, Mullin, Richter & Hampton (2002) 96 Cal.App.4th 1017, 1050.) This heightened degree of misconduct must be proven by clear and convincing evidence; in other words, there must be a “high probability” that is “sufficiently strong to command the unhesitating assent of every reasonable mind.” (Lackner v. North (2006) 135 Cal.App.4th 1188, 1211.) Plaintiff cannot meet these requirements. As established in this Motion, PPI’s decision to terminate Plaintiff was based upon legitimate non-discriminatory reasons, specifically, Plaintiff’s well-documented and long- standing performance issues and violations of company policy. Other than his termination, the only other wrong that Plaintiff could cite was a single off-color comment allegedly made by Mr. Farahani. This isolated incident is insufficient to demonstrate that any reasonable person would unhesitatingly agree that the conduct of PPI was “so vile, base, contemptible, miserable, wretched or loathsome” that it is looked down upon by ordinary people, and has “the character of outrage frequently associated with crime.” (American Airlines, 96 Cal. App.4th at p. 1050.) 25- PACIFIC PLASTICS, INC.’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION; MEMORANDUM OF POINTS AND AUTHORITIES G o r d o n Re es Sc ul ly M a n s u k h a n i , L L P 10 1 W. B r o a d w a y , Su it e 20 00 Sa n Di eg o, C A 92 10 1 AN Un BA W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Stated otherwise, throughout the course of discovery, Plaintiff has been unable to present clear and convincing evidence that would support an award of punitive damages. Thus, in the event this Court declines to grant summary judgment on all of Plaintiff’s claims, the issue of whether Plaintiff is entitled to recover punitive damages should be summarily adjudicated in favor of PPI. V. CONCLUSION As outlined herein, Plaintiff Walter Jermakow cannot demonstrate the existence of a triable issue of material fact as to any of his claims against Defendant Pacific Plastics, Inc. Summary judgment should be granted in favor of Defendant Pacific Plastics, Inc. on each of Plaintiff’s five remaining claims. To the extent any of Plaintiff’s claims survive summary judgment, Plaintiff’s requests for emotional distress and punitive damages should be summarily adjudicated in favor of Defendant as no basis for such damages exist. Respectfully submitted, Dated: March 14, 2019 GORDON REES SCULLY MANSUKHANI, LLP By: Ae Jka ark S. Posard&” Christina M. Vander Werf Jonathan A. Schaub Attorneys for Defendants Pacific Plastics, Inc. and Farzad Farahani 226- PACIFIC PLASTICS, INC.’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION; MEMORANDUM OF POINTS AND AUTHORITIES