Reply_to_plaintiff_keith_allens_opposition_to_motion_for_summary_judgment_or_alternatively_summary_adjudication

Reply

Cal. Super. - 2nd Dist.December 9, 2016

Electronically FILED by Superior Court of California, County of Los Angeles on 04/24/2020 06:21 PM Sherri R. Carter, Executive Officer/Clerk of Court, by S. Bolden,Deputy Clerk AN nn W N LO S A N G E L E S -_ -_ -_ Ww N o - f k NS B A K E R & H O S T E T L E R LL P A T T O R N E Y S AT L A W N N N N N N N N N =m = =m e m = c o NI O N Wn RA W N = O 0 0 N N N W n NANCY INESTA, Bar No. 231709 ERIC W. WITT, Bar No. 266289 BAKER & HOSTETLER LLP 11601 Wilshire Boulevard, Suite 1400 Los Angeles, CA 90025-0509 Telephone: ~~ 310.820.8800 Facsimile: 310.820.8859 Email: ninesta@bakerlaw.com ewitt@bakerlaw.com Attorneys for Defendants RALPHS GROCERY COMPANY, FOOD 4 LESS HOLDINGS, INC. AND THE KROGER CO. SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES RICKY WASP, an Individual; KEITH ALLEN, an Case No.: BC643477 Individual; and EVARARDO REGALADO, an individual, [Honorable Mel Red Recana, Dept. 45] Plaintiffs, DEFENDANTS’ REPLY TO PLAINTIFF KEITH ALLEN’S OPPOSITION TO v. MOTION FOR SUMMARY JUDGMENT, OR ALTERNATIVELY, SUMMARY RALPHS GROCERY COMPANY, an Ohio ADJUDICATION Corporation; FOOD 4 LESS HOLDINGS, INC., an Ohio Corporation; FRED MEYER, INC. an Hearing Date: August 5, 2020 Ohio Corporation; THE KROGER CO., an Ohio Time: 8:30 a.m. Corporation; BRAD PRESLEY, an Individual; Dept.: 45 BEN PATERSON, an Individual; REBECCA MORENO, an Individual; and DOES 1 through [Reservation No. 180323300400] 10, Inclusive, [Filed concurrently with Reply to Response to Defendants. Separate Statement, Evidentiary Objections to Additional Material Facts; (Proposed) Order Granting Defendant’s Evidentiary Objections to Additional Material Facts] Complaint Filed: December 9, 2016 FAC Filed: April 14, 2017 Trial Date: October 13, 2020 DEFENDANTS’ REPLY TO PLAINTIFF'S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT; CASE NO.: BC643477 B A K E R & H O S T E T L E R LL P A T T O R N E Y S AT L A W Lo s A N G E L E S AN nn W N N N N D N D N N N N = m m s m = =m = = 0 NN O N Ln B R A W N = O O 0 0 N D R E W I N D II. III. TABLE OF CONTENTS Page INTRODUCTION csusssssuas owsnsmuns ss somes ossssnanss somo sss aes ves 555 5060s se 50555 ass sve s3 55 450s 558354 1 LEGAL ANALYSIS... cesses sees 1 A. Ralphs Has Established Its Legitimate Business Reason for the Discharge............ 1 B. Plaintiff’s Speculative Theories Are Insufficient to Defeat Summary Judgment....2 C Whether Plaintiff Was Following His Supervisor’s Instruction In Using the “IPALSORT” Code Is Not Material to Ralphs’ Legitimate Business Reason. ....... 3 D. Plaintiff’s Contradiction of His Deposition Testimony Cannot Create a Dispute...4 E. No Dispute of Material Fact as to Failure to Accommodate a Disability................ 5 F. No Dispute of Material Fact as to Failure to Engage in the Interactive Process. ....5 G. No Dispute of Material Fact as to Disability Discrimination. ..........ccccceeceevveeenunenee 6 H. No Dispute of Material Fact as to Age Discrimination. ..........c.c.cecveereerneeeneeeneene. 7 L No Dispute of Material Fact as to Harassment. .........ccccceevvernienieeiecniienneenie ence 7 J. No Dispute of Material Fact as to Violation of CRFA. ........cccoceiviiivinniiniccneenne 8 K. No Dispute of Material Fact as to Retaliation or Utilizing CFRA Leave................ 9 L. No Dispute of Material Fact for Failure to Prevent Discrimination and Harassment and Wrong] Termination. suse swssssisas sss samssssms mms sss sae seme 5666 sms 9 M. Plaintiff Does Not Create a Dispute of Material Fact as to Defamation. ................ 9 N. Plaintiff Does Not Create a Dispute of Material Fact as to Punitive Damages. ....10 CONCLUSION oot ees sae eee sees 10 i DEFENDANTS’ REPLY TO PLAINTIFF'S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT; CASE NO.: BC643477 AN nn W N Lo s A N G E L E S -_ -_ -_ Ww N o - f k NS B A K E R & H O S T E T L E R LL P A T T O R N E Y S AT L A W N N N N N N = = =m e s = co NJ O N Ln B R A W N = O O N N N Wn TABLE OF AUTHORITIES Page(s Cases Avila v. Continental Airlines, Inc. (2008) 165 Cal. APP-Ath 1237 ooo eee eerste eset sabes e estes saa eebe anne 9 Carlos Reyes v. Ralphs Grocery Company, et al, Los Angeles County Superior Court, BC639129, Order Entering Summary Judgment NOVEMDET 21, 2018... 2 Daddario v. Snow Valley, Inc. (1995) 36 Cal. APP.Ath 1325 Loonies eee eee eee eeesate seb eaeas 4,5, 8 DeJung v. Superior Court (2008) 169 Cal. APP-Ath 533 eee eee teste eaters sateen e et ee sabe sabe eneee 1 Guz v. Bechtel Nat. Inc. (ODO): 24. CHLATE BT «sss sums snsmwsns owsosnn sso ons 55:5 55558558 5055555.50 5455558 S555 55045 SHE. 050555 30 SHH V5 SATE 1 Hersant v. Dept. of Social Services (1997) 57 Cal. APPA DOT contests eet eee sbbe sateen eee s ee saee eens 3 Janken v. GM Hughes Electronics (1996) 46 Cal. APP.ALI 55 o.ceeeie ee ste eteeetbeeee ete e sabe sabe e nee e see saae eens 8 Jeffreys v. City of New York, 496 F.5d S49 (2d Cit, KTS) ess xmsomsmmsnnsesssionnssomsssess sores sons es oss «vss sem ums sm s eames 4 Jensen v. Wells Fargo Bank (2000) 85 Cal. APP.ALI 245 oon tesserae teste sabes sate eee eaeas 5,6 King v. United Parcel Service, Inc. (2007) 152 Cal. APPA 426 eens eee sate eee eee nna saa ees 4,10 Lundquist v. Reusser (1994) 7 Calldth 1193 Looe eee eee este sbeebs eee ete eebbe esse eae ees ee sabe enbae anne 9 McDonnell Douglas Corp. v. Green, ATT US. TO2 (1973) eee eee ee ete et tesa sabe e eee bee ebbe sabe e ates bee ebbeesnee sane 1 Nadaf-Rahrov v. Neiman Marcus Group, Inc. COOBY 166 Call APTA, DED, iis x mmm sesso. on mosses snmssa.0 5555505550555 56 5755555 £55555%.50 5555558 S5A555.50 35555508 5555 5,6 Prilliman v. United Air Lines, Inc. (1997) 53 Cal. APP-Ath O35 eons tees ete eee sbb esate eee esas ebae eee 5 Reid v. Google, Inc. (2010) 50 CalAth S12 ccna eee estes tae sabes se eet e este sebe anne e esas este ennae anne 2 ii DEFENDANTS’ REPLY TO PLAINTIFF'S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT; CASE NO.: BC643477 AN nn W N Lo s A N G E L E S -_ -_ -_ Ww N o - f k NS B A K E R & H O S T E T L E R LL P A T T O R N E Y S AT L A W N N N N N N N N N =m = =m e m = c o NI O N Wn RA W N = O 0 0 N N N W n Rogers v. County of Los Angeles COLT) 198 Cal APTATR, ABU osm ssmwssss cosmo ssn ons sn 0.550550 0550555.50 5555558 355555045 S555. 50505555 30 SHH V5 SHR3300 8 Scotch v. Art Institute of California (2009) 173 Cal. APP-Ath O86... eee eee sabes e estes seas enna 6 Serriv. Santa Clara University (2014) 226 Cal. APP-Ath 830)... eee ebae sabe e eee t ee ebee enna eneee 1 Thompson v. Williams C1989 211 Call APT. Bil 5 sus vanmnsemensomsnusmssomomess mosses o sss ses ss es mes 4 University of Southern California v. Superior Court (1990) 222 Cal.APP.3d 1028... eects etree etter sabes e eae esaee sabe enns 2 White v. Ultramar (1999) 21 Cal.dth 563 ......eeieeeeeeeee eee eee eee eet eeeea esas eraser a esate ae sare ee sase ae ssse ee ssaeeennnes 10 Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th TO28 .....ooeeeeieeeiieeeiie eee cette estes eet ee estas ea ee sre ae esses ssasaessssaessseaessseeessseeessses 9 Statutes Cal. Civ. Code § 3294... eee eee eects eee e eee e states sabe eesabe ee stbe ee eabe ee eaae ee etae ee eaaeeeaaae ans 10 Cal, GOVE: COAE 1295: 20) 55:.sxssmss sons swnsssn sve on. 550375 50 555575 5055355 56 5955555 5957555 06 5955735 5557355 55 550735 7 Cal. GOVE. COAL 12945.2(C) couurreeeeiiieeeeeeiiie ee eitie ee eestte esas steae ee erae esas ssaeae as ssssaesesssaeaesassssaeanssssseaeanns 6 TEST Ae sem smoot ps oO A EE RSS passim Other Authorities 29 C.F.R. 825.702(D) .vveeeiieeeitie eects eeetieeetee eres setae etaeeasaae esse ae esasae esas ee ssasaesssseessseaesssesessseeesssesasses 6 iii DEFENDANTS’ REPLY TO PLAINTIFF'S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT; CASE NO.: BC643477 B A K E R & H O S T E T L E R LL P A T T O R N E Y S AT L A W Lo s A N G E L E S AN nn W N N N N D N D N N N N = m m s m = =m = = 0 NN O N Ln B R A W N = O O 0 0 N D R E W I N D MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION Defendants’ Motion' establishes that Ralphs Grocery Company (“Ralphs”) terminated Plaintiff Keith Allen’s employment because Plaintiff misused the employee productivity system by improperly entering a “delay” code that caused his productivity statistics to spike and allowed him to receive incentive compensation he did not legitimately earn. (UF 60-71, 87). The undisputed evidence shows how Plaintiff repeatedly entered the delay code, but rather than work on a task consistent with the code, he continued to perform his primary duty of moving loaded pallets. (/d.). From January 4-February 21, 2016 alone, Plaintiff obtained $3,005.04 from his abuse of the IPALSORT delay code. (UF 71). Plaintiff’s Opposition presents speculative theories that purport to create doubt as to whether Ralphs’ legitimate business reason for discharging Plaintiff was a “pretext” for unlawful discrimination. Speculative theories are insufficient to create a dispute of material fact. Serriv. Santa Clara University (2014) 226 Cal. App.4th 830, 862. Plaintiff’s arguments are replete with logical and factual errors that fail to create a dispute of material fact as to any cause of action.’ 11. LEGAL ANALYSIS A. Ralphs Has Established Its Legitimate Business Reason for the Discharge Plaintiff’s causes of action for discrimination, retaliation, and wrongful termination are subject to the burden-shifting framework established by McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 354. Once the non-discriminatory reason for termination is established, plaintiff’s claim remains viable only if he can create a genuine dispute of material fact as to pretext. Guz, supra, 24 Cal.4th at 356. When the non-discriminatory reason is strong, Plaintiff’s countervailing pretext evidence, “even if [adequate to] constitute a prima facie case” must be more than minimal to forestall summary judgment. Id. Plaintiff incorrectly states that burden-shifting does not apply because he has “direct evidence” of discrimination. Plaintiff does not have direct evidence, which is evidence that without the need for inference or presumption proves that an employment decision was based on unlawful discrimination. DeJung v. Superior Court (2008) 169 Cal. App.4th 533, 550. “Statements by non-decisionmakers, or I “Defendants” refers to Ralphs Grocery Company, Food 4 Less Holdings, Inc. and The Kroger Co. Fred Meyer, Inc. as Brad Presley, Ben Patterson and Rebecca Moreno were not served. 2 Plaintiff’s assertion that Defendants did not identify the facts that correspond with each cause of action or claim is false. Defendants Separate Statement specifies the Material Facts that correspond to each issue raised in the Motion. 1 DEFENDANTS’ REPLY TO PLAINTIFF'S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT; CASE NO.: BC643477 AN nn W N Lo s A N G E L E S -_ -_ -_ Ww N o - f k NS B A K E R & H O S T E T L E R LL P A T T O R N E Y S AT L A W N N N N N N = = =m e s = co NJ O N Ln B R A W N = O O N N N Wn statements by decisionmakers unrelated to the decisional process itself, are considered stray remarks that may be circumstantial evidence, but they are not direct evidence.” Reid v. Google, Inc. (2010) 50 Cal.4th 512, 536. Here, Plaintiff does not allege his “direct evidence” - a hearsay statement supposedly made in 2014 or 2015 by a Ralphs’ employee to another to “get rid of” employees using FMLA - was made as part of the decisional process concerning Plaintiff’s discharge. Thus, Plaintiff is seeking to infer that the real reason for discharge was animus against certain categories of employees. This is archetypical indirect evidence, and consequently the burden-shifting framework applies. B. Plaintiff’s Speculative Theories Are Insufficient to Defeat Summary Judgment Speculation is insufficient to defeat summary judgment. The employee must produce “substantial responsive evidence” showing a material triable controversy as to pretext or animus on the part of the employer. University of Southern California v. Superior Court (1990) 222 Cal. App.3d 1028, 1039. The argument and evidence Plaintiff advances, however, is not substantial and is wholly speculative. Plaintiff advances six speculative arguments. First, Plaintiff illogically argues that because Ralphs terminated three other employees who were over forty and utilized FMLA leave (Wasp, Obiorah, and Reyes) Ralphs is targeting such employees for termination for discriminatory reasons. The outcome of four employees, out of several hundred, is statistically meaningless and inadequate as evidence to prove an overarching discriminatory policy or practice. Plaintiff also claims that the employees were “terminated close in time,” when it was over several years and for varying reasons. (Halstead Decl. {{13- 16). The salient similarity between these employees is their legal counsel, who is attempting to conflate their unique cases to bolster their claims.’ Plaintiff’s second argument to show “pretext” concerns an alleged statement Plaintiff claims he overheard made by one Ralphs employee to another about a claimed desire to “get rid of employees” who utilize FMLA. This statement is inadmissible hearsay. Even if admissible, this statement is insufficient to create doubt as to the legitimate business reason identified by Ralphs. Significantly, Plaintiff asserts that he overheard the statement “in and about 2014 or 2015,” which means the statement could have preceded Plaintiff’s March 18, 2016 termination by more than two years. Plaintiff’s claim is further rebutted by the fact that Ralphs approved Plaintiff to utilize FMLA leave for more than ten years 3 The Court entered summary judgment in favor Ralphs disposing of all of Reyes’ claims of alleged unlawful discrimination. (Carlos Reyes v. Ralphs Grocery Company, et al, Los Angeles County Superior Court, BC639129, Order Entering Summary Judgment November 21, 2018). Obiorah was terminated for sleeping on the job and the case settled through mediation. DEFENDANTS’ REPLY TO PLAINTIFF'S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT; CASE NO.: BC643477 B A K E R & H O S T E T L E R LL P A T T O R N E Y S AT L A W Lo s A N G E L E S AN nn W N N N N D N D N N N N = m m s m = =m = = 0 NN O N Ln B R A W N = O O 0 0 N D R E W I N D prior to his termination. (UF 95). Plaintiff’s speculation that these employees tampered with Ralphs’ system to make it appear that Plaintiff manipulated his productivity to gain incentive pay is without evidentiary support and contradicts Plaintiff's own testimony. Plaintiff’s third argument is that Ralphs’ Attendance Policy “added an arrow to the quiver of Defendants’ management team to finally have a tool to dispense with employees utilizing intermittent FMLA .” (Opp. 4:21-23). This argument is speculative, without factual support, and inapplicable because the attendance policy had nothing to do with Plaintiff’s discharge for misuse of the productivity system. The Policy also does not count FMLA absences against employees. Fourth, Plaintiff speculates that because the anonymous employee complaint that led to Ralphs’ investigation into Plaintiff’s abuse of the IPALSORT delay code identified Plaintiff by employee number, that should have caused Ralphs to consider the possibility that Plaintiff was “set up.” This argument is neither factually supported nor logically sound. Plaintiff provides no evidentiary support whatsoever for his bald assertion that employee identification numbers “are not freely known by co- workers.” The AMF he cites in support simply does not support it. Fifth, Plaintiff speculates unlawful motive because two other employees that Ralphs investigated for “high performance” were not discharged. Yet, Plaintiff presents no evidence as to the results of the investigation of these individuals (who were cleared based on records maintained by Ralphs). Plaintiff provides no evidence that would permit a meaningful comparison, such as whether they actually committed misconduct as he did or whether those employees took FMLA. Plaintiff speculates that it was his FMLA use that accounts for the differing outcomes. Lastly, Plaintiff pretext argument, without evidence, of nefarious reasons for the absence of video showing Plaintiff entering the IPASORT delay code is not sufficient. Plaintiff offers no evidence to establish that video footage was available at litigation (or whether it was overridden in the normal course of business) nor how the video footage would be adequate to show proper code use where Plaintiff admits to repeatedly using the IPALSORT delay code. C. Whether Plaintiff Was Following His Supervisor’s Instruction In Using the “IPALSORT” Code Is Not Material to Ralphs’ Legitimate Business Reason. Whether an employer is mistaken in its conclusion that an employee engaged in the misconduct that resulted in termination is ultimately irrelevant. Hersant v. Dept. of Social Services (1997) 57 3 DEFENDANTS’ REPLY TO PLAINTIFF'S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT; CASE NO.: BC643477 B A K E R & H O S T E T L E R LL P A T T O R N E Y S AT L A W Lo s A N G E L E S AN nn W N N N N D N D N N N N = m m s m = =m = = 0 NN O N Ln B R A W N = O O 0 0 N D R E W I N D Cal.App.4th 997, 1005 (“Cannot simply show that the employer’s decision was wrong or mistaken” to avoid summary judgment.). Rather, the law prohibits employment decisions based on improper criteria. King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 436 (“It is an employer’s honest belief in the stated reasons for firing an employee and not the objective truth or falsity of the underlying facts that is at issue in a discrimination case.”). Plaintiff nonetheless argues that Ralphs was mistaken because Plaintiff “only used the IPALSORT delay code when directed by his supervisor,” and speculates that “it is an absolute possibility, if not probability, that someone other than Plaintiff was entering the code unbeknownst to Plaintiff.” (Opp. 6:25, 8:16). This argument is flawed. Plaintiff admits that he was never instructed to use the delay code while continuing perform his regular duties. (UF 41). Ralphs has shown that it discharged Plaintiff based on its good faith conclusion through evidence that includes a detailed review of Plaintiff’s productivity statistics over a two-month period and identification of a myriad of times when Plaintiff entered the IPALSORT delay code and then improperly continued to move pallets by forklift which artificially inflated his statistics. (UF 61-73). D. Plaintiff’s Contradiction of His Deposition Testimony Cannot Create a Dispute Plaintiff’s arguments and evidence are inconsistent with Plaintiff’s deposition testimony. Plaintiff admitted at deposition that when using the delay code and moving empty pallets his “percentage skyrocketed up,” and “[m]y percentage is way too high, I'm getting all this incentive now, so that means it looks like I'm stealing.” (UF 76; Plaintiff’s Depo. 143:22-23). Contrary to these admissions, Plaintiff purports to feign surprise at Ralphs’ detection of his misuse of the IPALSORT delay code, “Plaintiff could not fathom how he had misused any codes. He expressed that he believed he was earning efficiency incentives because he was working extremely hard and “sweating” a lot.” (Opp. 5:20-22). His testimony is also incompatible with Plaintiff’s assertion that he did not enter the “IPALSORT” delay code and speculation that “[i]t is an absolute possibility, if not probability, that someone other than Plaintiff was entering the code unbeknownst to Plaintiff - likely a supervisor.” (Opp. 6:25, 8:15-17; UF 50, 74). Plaintiff cannot create a dispute of material fact by contradicting his deposition testimony. Daddario v. Snow Valley, Inc. (1995) 36 Cal.App.4th 1325, 1341. Moreover, a court may enter summary judgment when a non-moving party’s testimony is “so replete with inconsistencies and improbabilities” that no reasonable juror could credit that party’s allegations. See Jeffreys v. City of New York, 426 F.3d 549 (2d Cir. 2005); see also Thompson v. Williams (1989) 211 Cal. App. 3d 566, 573. 4 DEFENDANTS’ REPLY TO PLAINTIFF'S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT; CASE NO.: BC643477 AN nn W N Lo s A N G E L E S -_ -_ -_ Ww N o - f k NS B A K E R & H O S T E T L E R LL P A T T O R N E Y S AT L A W N N N N N N = = =m e s = co NJ O N Ln B R A W N = O O N N N Wn Plaintiff’s argument that Defendants presented “shifting” and “ephemeral” reasons for terminating Plaintiff’s employment, because Ralphs has described Plaintiff’s misconduct in varying 29 <¢ terms, including “stealing time,” “manipulating the system” and “proven/confessed dishonesty,” is incorrect. (Opp. 7:1-13). Ralphs has not presented “shifting reasons,” however, because these terms all refer to the same misconduct. E. No Dispute of Material Fact as to Failure to Accommodate a Disability. Defendants are entitled to summary adjudication of this claim as there is no evidence that Plaintiff sought an accommodation and was rebuffed by Ralphs. A cause of action for failure to accommodate a disability can succeed only when an employer denies an employee a reasonable accommodation. See Jensen v. Wells Fargo Bank (2000) 85 Cal. App.4th 245, 256. No liability can be found for failing to provide an accommodation that an employee never requested. See Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935, 954 (“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.”). In his deposition testimony, Plaintiff testified that the only accommodation Plaintiff wanted to receive was “somebody that I can complain to.” (UF 142). Yet, Plaintiff never requested this, and even if he did, it would not be a “reasonable” accommodation. See Nadaf-Rahrov v. Neiman Marcus Group, Inc. (2008) 166 Cal. App.4th 952, 974 (declaring that an accommodation is “a modification or adjustment to the workplace that enables the employee to perform the essential functions of the job held or desired”). Plaintiff belatedly alleges the accommodations he wanted included “light duty, regular rest breaks and designated person to inform when Plaintiff was in the middle of a medical condition or episode,” however, this belated claim contradicts his deposition testimony and must be disregarded. Daddario v. Snow Valley, Inc. (1995) 36 Cal.App.4th 1325, 1341. Plaintiff’s “evidence” is not that he asked for these accommodations, but a speculative assertion that these accommodations could have been provided.* F. No Dispute of Material Fact as to Failure to Engage in the Interactive Process. Plaintiff does not create a dispute of material fact as to this cause of action for reasons very similar to those addressed above with respect to his cause of action for failure to accommodate. Unless the employee’s limitations are obvious, an employer’s obligation to engage in the interactive process 4 Plaintiffs misconstrues Defendants’ argument. Defendants did not argue that providing FMLA leave would satisfy any obligation to provide a reasonable accommodation. Rather, Defendants showed it granted Plaintiff FMLA leave when requested and Plaintiff never informed Ralphs of a need for further accommodation to perform work. 5 DEFENDANTS’ REPLY TO PLAINTIFF'S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT; CASE NO.: BC643477 B A K E R & H O S T E T L E R LL P A T T O R N E Y S AT L A W Lo s A N G E L E S AN nn W N N N N D N D N N N N = m m s m = =m = = 0 NN O N Ln B R A W N = O O 0 0 N D R E W I N D does not arise until the employee specifically identifies his or her disability and limitations and suggests a reasonable accommodation. Scotch v. Art Institute of California (2009) 173 Cal. App.4th 986, 1013. Plaintiff presents no creditable evidence that he informed Ralphs of his disability, his limitations or suggested a reasonable accommodation. In fact, as noted above, his deposition testimony acknowledged that he did not seek a reasonable accommodation, and the only change in his workplace he was interested in obtaining was “somebody that I can complain to.” (UF 142). This is plainly not a reasonable accommodation, as a reasonable accommodation is “a modification or adjustment to the workplace that enables the employee to perform the essential functions of the job held or desired.” See Nadaf-Rahrov v. Neiman Marcus Group, Inc., 166 Cal. App. 4th at 974. Plaintiff simply did not place Ralphs on notice that he wished to engage in the interactive process, and Ralphs did not become obligated to do so. G. No Dispute of Material Fact as to Disability Discrimination. Plaintiff does not create a dispute of material fact as to whether he was subjected to an adverse employment action because of a disability. See Jensen v. Wells Fargo Bank (2000) 85 Cal. App. 4th 245, 254. First, Ralphs has established a legitimate business reason for its discharge of Plaintiff, and he has not presented sufficient evidence -only speculative theories- that would could create a dispute of fact as to the legitimate business reason. Second, Plaintiff’s evidence purports to show that Ralphs’ management had animus against persons who took FMLA leave. The fact that an employee uses FMLA/ CFRA does not mean that he or she is disabled. An employee may use such leave to care for an ill family member; he or she need not be disabled. See Cal. Govt. Code 12945.2(c); 29 C.F.R. 825.702(b) (“ADA’s “disability” and FMLA’s “serious health condition” are different concepts and must be analyzed separately.”). Plaintiff also leans heavily on the alleged discriminatory purpose of Ralphs’ Distribution Center Attendance policy, which he claims, “gave Defendants’ management a convenient means to discipline and eventually terminate FMLA users.” (Opp. 4:27-28). Yet, the attendance policy had nothing to do with his termination and does not issues points for any FMLA/CFRA leave. Plaintiff has presented absolutely no evidence that would create a dispute of material fact as to any purported causal connection between a disability and his discharge. 6 DEFENDANTS’ REPLY TO PLAINTIFF'S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT; CASE NO.: BC643477 AN nn W N Lo s A N G E L E S -_ -_ -_ Ww N o - f k NS B A K E R & H O S T E T L E R LL P A T T O R N E Y S AT L A W N N N N N N = = =m e s = co NJ O N Ln B R A W N = O O N N N Wn H. No Dispute of Material Fact as to Age Discrimination. Plaintiff’s Opposition relies on three additional matters’ that he claims create a dispute of material fact as to this cause of action. (Opp. 14:1-8). First, he asserts, a “majority of those being terminated near the time of Plaintiff’s termination (and after the implementation of the NFAP) were FMLA users over the age of 40).” (Opp.14:1-3). This bald assertion, made by a declarant without personal knowledge, is meaningless without specification of facts including (1) what percentage of Ralphs’ workforce was over 40 years of age, (2) what percentage of Ralphs’ workforce utilized FMLA, and (3) what percentage of those actually terminated were over 40 years of age and utilized FMLA. Plaintiff’s attempt to create a statistical inference, without providing any of the basic statistical information that could allow for such an inference and make the information potentially relevant, entirely fails. Second, Plaintiff asserts that two supervisors called employees “old man” and “out of touch.” (Opp. 14:4-5). Plaintiff misleadingly fails to disclose that these alleged comments were not made to Plaintiff Allen but supposedly to another plaintiff represented by Plaintiff’s counsel, named Ricky Wasp. These isolated hearsay statements, even if they were admissible (and they are not), made to a different employee and at an unspecified time, and by individuals who are not alleged to have any impact on Plaintiff’s discharge, are entirely insufficient to create a dispute of material fact. The third matter Plaintiff argues constitutes evidence that undermines Ralphs’ legitimate business reason for discharging Plaintiff and supports his age discrimination claim is “Defendant’s supervisor, Mike Knagge, told Mr. Obiarah that he was lazy and that Defendants would not allow FMLA users in Arizona.” (Opp. 14:6-8). This hearsay statement (even if admissible) allegedly made to someone other than Plaintiff, by someone who Plaintiff does not even allege was involved with Plaintiffs termination, concerning the irrelevant matter of “FMLA users in Arizona” rather than age, does not create a dispute of] material fact as to this cause of action. I. No Dispute of Material Fact as to Harassment. Without any evidence indicating that it was carried out because of a protected characteristic, Plaintiff identifies one incident allegedly perpetrated by a supervisor in support of his harassment claim. 3 Plaintiff’s argument that Ralphs’ reason for terminating his employment was “pretextual” relies on speculative evidence that purports to show that Ralphs had discriminatory animus against individuals utilizing FMLA leave. Yet, this is inapplicable to Plaintiff’s claim for age discrimination as leave has nothing to do with age as an employee’s eligibility is determined without reference to age. See Cal. Govt. Code 12945.2(a) (criteria for entitlement). DEFENDANTS’ REPLY TO PLAINTIFF'S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT; CASE NO.: BC643477 B A K E R & H O S T E T L E R LL P A T T O R N E Y S AT L A W Lo s A N G E L E S AN nn W N N N N D N D N N N N = m m s m = =m = = 0 NN O N Ln B R A W N = O O 0 0 N D R E W I N D Plaintiff alleges that “Presley,” purportedly his supervisor, grabbed Plaintiff and placed him in a choke hold. (Opp. 16:1-3). In a wholly conclusory manner, Plaintiff alleges, “Presley did not like FMLA users and specifically targeted Plaintiff for taking FMLA.” (Opp. 16:4-5). Plaintiff presents no evidence to connect the “choke hold” with Plaintiff’s use of FMLA. The other conduct Plaintiff asserts is “harassment” is simply not harassment under California law but an exercise of “Presley’s” supervisory function. Plaintiff claims that “Presley” “threaten[ed] to terminate Plaintiff for his alleged violation” of Ralphs’ lunch period requirement, “criticized Plaintiff for missing work” and “unfairly and inappropriately criticized Plaintiff’s work performance.” (Opp. 16:10- 15). Whether “Presley’s” alleged criticism of Plaintiff was warranted, the rule is that “harassment consists of a type of conduct not necessary for performance of a supervisory job . . . and is outside the scope of necessary job performance, conduct presumably engaged in for personal gratification, because of meanness or bigotry, or for other personal motives.” Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 63. “Harassment is not conduct of a type necessary for management of the employer's business or performance of the supervisory employee’s job.” Id. !At deposition, Plaintiff’s admits that he had no evidence that “Presley” was mistreating him based on a protected characteristic. Plaintiff admits that “Presley” did not single Plaintiff out for harsh treatment and “hollered” at many employees when displeased with work issues. (UF 130). Plaintiff’s cannot rehabilitate his harassment claim by contradicting his deposition testimony. Daddario v. Snow Valley, Inc., supra, 36 Cal. App.4th at 1341. Js No Dispute of Material Fact as to Violation of CRFA. To prevail on this claim, Plaintiff must establish that Ralphs denied or interfered with his substantive rights to qualifying protected leave under the CFRA®. Rogers v. County of Los Angeles (2011) 198 Cal. App.4th 480, 487-88. Plaintiff has not shown a dispute of fact as to Ralphs’ factual showing that it provided Plaintiff with CFRA leave for at least eleven years from at least 2005 up to the conclusion of his employment. (UF 133). Further, while Plaintiff purports to dispute Ralphs provided FMLA/CFRA leave and granted all requests Plaintiff submitted with supporting documentation, he does not create a dispute of fact because he admits that he “was ultimately granted FMLA intermittent leave” that he requested. (Opp. Sep. Statement 143). Having to submit paperwork twice is not a denial of the ® Because Plaintiff has pleaded a separate cause of action for retaliation for utilizing CFRA leave, this cause of action necessarily is a CFRA “interference” claim. See Rogers, 198 Cal. App.4th at 487-88. 8 DEFENDANTS’ REPLY TO PLAINTIFF'S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT; CASE NO.: BC643477 AN nn W N Lo s A N G E L E S -_ -_ -_ Ww N o - f k NS B A K E R & H O S T E T L E R LL P A T T O R N E Y S AT L A W N N N N N N N N N =m = =m e m = c o NI O N Wn RA W N = O 0 0 N N N W n substantive right. K. No Dispute of Material Fact as to Retaliation or Utilizing CFRA Leave. Plaintiff does not create a dispute of material fact as to a causal connection between his engagement in protected activity and an adverse employment action. See Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1035 (establishing causation requirement for FEHA retaliation); Avila v. Continental Airlines, Inc. (2008) 165 Cal. App.4th 1237, 1254 (requiring employee to prove she suffered an adverse employment action for use of CFRA rights). Plaintiff identifies two claimed adverse employment actions - termination of his employment and receipt of “points for utilizing his leaves of absence.” (Opp. 17:21-22). As addressed above, Plaintiff offers speculative theories that purport to cast doubt on Ralphs’ legitimate business reason that also do not support that any protected activity was the real reason for his termination. Plaintiff’s assertion that Ralphs issued “points” for taking protected leave is conclusory and lacks evidentiary basis. Plaintiff also does not allege that the “points” amount to an “adverse employment action.” Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1054. L. No Dispute of Material Fact for Failure to Prevent Discrimination and Harassment and Wrongful Termination. Plaintiff concedes in his Opposition brief that his causes of action alleging failure to prevent discrimination and harassment and wrongful termination are derivative of his discrimination, harassment and retaliation causes of action. Plaintiff has not created a dispute of material fact as to those causes of action thus requiring summary adjudication on these claims. M. Plaintiff Does Not Create a Dispute of Material Fact as to Defamation. Defendants’ Motion establishes that the “common interest privilege” shields Defendants from liability for defamation. Plaintiff’s argument that the “common interest privilege” does not apply because Defendants’ statements about Plaintiff were made “with malice” cannot stand. Plaintiff cannot meet his burden of proving malice. See Lundquist v. Reusser (1994) 7 Cal.4th 1193, 1212-13. Any statement that Plaintiff was terminated for “stealing time” was factually accurate because that was the actual reason provided for termination. Plaintiff also cannot create a dispute of fact as to alleged “malice” based on unidentified and unspecified persons who allegedly stated the reasons for his termination.’ 7 Plaintiff presents no evidence of when the allegedly defamatory statements were made, by whom, and who heard the statements. Plaintiff offers only inadmissible double hearsay statement that co-workers asked if what they heard about his being terminated for “stealing time” was true. (AMF 90). 9 DEFENDANTS’ REPLY TO PLAINTIFF'S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT; CASE NO.: BC643477 B A K E R & H O S T E T L E R LL P A T T O R N E Y S AT L A W Lo s A N G E L E S AN nn W N N N N D N D N N N N = m m s m = =m = = 0 NN O N Ln B R A W N = O O 0 0 N D R E W I N D N. Plaintiff Does Not Create a Dispute of Material Fact as to Punitive Damages. Plaintiff does not create a material dispute of fact as to this claim. He cannot establish that termination of his employment involved “oppression, fraud or malice,” let alone violated any law or policy. Even if for arguments sake we assume that the termination decision was somehow mistaken, punitive damages could not be awarded because there is no evidence of malice or bad faith. King v. United Parcel Service, Inc., 152 Cal. App.4th 426, 444 (2007) (punitive damages untenable where employer was mistaken, no evidence employer acted in bad faith or with malice). Second, Plaintiff cannot establish by “clear and convincing evidence” that an “officer, director, or “managing agent” committed or authorized an act of “oppression, fraud or malice.” Cal. Civ. Code § 3294. Plaintiff presents no evidence that Mr. Paterson, Ms. Moreno or Ms. DeGuia-Jones are directors of officers, and he does not genuinely dispute the declaration testimony each provided stating that they do not serve in such capacity. Further, Plaintiff presents no evidence that any can set corporate policy as required for qualifying as a “managing agent.” See White v. Ultramar (1999) 21 Cal.4th 563, 577. Plaintiff responds “Undisputed” to UFs 151-152 that “Rebecca Moreno is not an officer or director,” and “[n]either does she have any discretionary authority to set or change corporate policies.” Plaintiff’s evidence that Mr. Paterson can “dictate how tasks are to be completed” and that Ms. DeGuia-Jones provides recommendations that sometimes have been implemented as corporate policy is insufficient to establish that either is a “managing agent.” Dictating “how tasks are completed” is the prerogative of any supervisor and plainly insufficient to make one a managing agent. Even rank-and-file employees can offer suggestions that a superior may choose to implement as corporate policy without making them “managing agents” under California law. III. CONCLUSION Plaintiff has speculative theories but does not present admissible evidence to create a dispute of material fact. Defendants respectfully ask the Court to enter summary judgment. Respectfully submitted, Dated: April 24, 2020 BAKER & HOSTETLER LLP By: /s/Nancy Inesta Nancy Inesta Attorneys for Defendants 10 DEFENDANTS’ REPLY TO PLAINTIFF'S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT; CASE NO.: BC643477 AN nn W N Lo s A N G E L E S -_ -_ -_ Ww N o - f k NS B A K E R & H O S T E T L E R LL P A T T O R N E Y S AT L A W N N N N N N N N N =m = =m e m = c o NI O N Wn RA W N = O 0 0 N N N W n PROOF OF SERVICE I am a citizen of the United States and employed in Los Angeles County, California. I am over the age of eighteen years and not a party to the within-entitled action. My business address is 11601 Wilshire Boulevard, Suite 1400, Los Angeles, California 90025-7120. On April 24, 2020, I served a copy of the document(s): DEFENDANTS’ REPLY TO PLAINTIFF KEITH ALLEN’S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT, OR ALTERNATIVELY, SUMMARY ADJUDICATION [] by placing the document(s) listed above in a sealed envelope and affixing a pre-paid air bill in the care and custody of Golden State Overnight and causing the envelope to be delivered to a Golden State Overnight agent for delivery on the next business day. [] by electronic service via the Court’s Electronic Filing Service Provider pursuant to California Rules of Court, Rule 2.251(C)(3) the document(s) listed above to the person(s) at the e-mail address(es) set forth below. V1 VIA EMAIL: by transmitting via e-mail or electronic transmission the document(s) listed above to the person(s) at the e-mail address(es) set forth below. Carney R. Shegerian, Esq. David R. Denis SHEGERIAN & ASSOCIATES, INC. Eric S. Mintz 145 S. Spring St., Suite 400 Michael M. Yellin Los Angeles, CA 90012 LAW OFFICES OF DAVID R. DENIS, P.C. 310-860-0770 707 Wilshire Blvd., 47" Floor 310-860-0771 Los Angeles, CA 90017 cshegerian@shegerianlaw.com Tel: (213) 625-0033 Fax: (213) 625-8833 david @extreme-justice.com; myellin @extreme- justice.com; ken @extreme-justice.com I am readily familiar with the firm's practice of collection and processing correspondence for mailing. Under that practice it would be deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on April 24, 2020, at Los Angeles, California. /s/ Shirley M. Suzuki Shirley M. Suzuki 4825-8309-6759 0 DEFENDANTS’ REPLY TO PLAINTIFF'S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT; CASE NO.: BC643477