Trial_briefBriefCal. Super. - 2nd Dist.February 3, 2017Electronically FILED by Sup 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PAUL M. GLEASON (SBN: 155569) TOREY JOSEPH FAVAROTE (SBN: 198521) JING TONG (SBN: 285061) GLEASON & FAVAROTE, LLP 4014 Long Beach Blvd., Suite 300 Long Beach, California 90807 Telephone: (213) 452-0510 Facsimile: (213) 452-0514 pgleason@gleasonfavarote.com tfavarote@gleasonfavarote.com jtong@gleasonfavarote.com Attorneys for Defendants and TRANSDEV SERVICES, INC. CLAUDIA ALVAREZ, Plaintiff, VS. VEOLIA TRANSPORTATION SERVICES, INC.; TRANSDEV SERVICES, INC; JAIME OGILVIE, an individual; and DOES 1-100, inclusive, ) ) ) ) ) ) ) ) ) Defendants. ) ) ) ) ) ) ) ) ) ) 111 111 111 111 1 VEOLIA TRANSPORTATION SERIVCES, INC. prior Court of California, County of Los Angeles on 01/04/2019 05:58 PM Sherri R. Carter, Executive Officer/Clerk of Court, by N. Alvarez,Deputy Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES Case No. BC649364 DEFENDANTS’ TRIAL BRIEF Judge: Hon. Stephanie Bowick Dept.: 19 FSC: January 11, 2019 Trial: January 22, 2019 Complaint Filed: February 3, 2017 DEFENDANTS’ TRIAL BRIEF 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. INTRODUCTION. Plaintiff Claudia Alvarez is pursuing claims in this matter based on alleged violations of California’s Fair Employment and Housing Act (the “FEHA Claims”) and based on alleged violations of Labor Code provisions pertaining to meal periods and rest breaks (the “Labor Code Claims”). With regard to the FEHA Claims, according to Plaintiff’s complaint and verified discovery responses, her employment with Transdev was wrongfully terminated on August 27, 2015. (See, Complaint, paras. 10, 31, 49, 69, 90, 109, 153, and 167). Accordingly, to prevail on her claims for disability discrimination, violations of the CFRA or retaliation, Plaintiff must prove that her employment with Transdev was terminated in August 27, 2015, which she cannot do. Plaintiff admits she was told when she was placed on leave beginning August 27, 2015 that she was not being terminated and she was being given time to heal. Plaintiff also continued to pay the employee portion of her health insurance while on leave and she kept Transdev apprised on her status as well. Plaintiff also presented Transdev with a note from her doctor releasing her to return to work in April 2016 and she was scheduled to resume work on May 16, 2016, but instead resigned on that same day before the start of her scheduled shift. Plaintiff was not terminated by Transdev. With regard to Plaintiff’s claims for failure to accommodate and failure to engage in the interactive process, the sole employment action at issue in this case is the decision of Transdev to place Plaintiff on a leave of absence from August 27, 2015 to October 30, 2015. There is no bona fide dispute that Plaintiff had surgery on her left elbow on October 30, 2015 and was unable to work at all until April 11, 2016. There is also no bona fide dispute that after she was released to return to work in April 2016, Plaintiff applied for and accepted employment as a bus driver with her former employer MV Transportation. Although Plaintiff began working for MV Transportation around April 18, 2016, she waited until May 16, 2016 - the day she was scheduled to return to work - to resign from her employment with Transdev. The leave was provided to Plaintiff Claudia Alvarez by Transdev Services, Inc. as a reasonable accommodation after it became aware of work restrictions pertaining to a left elbow 2 DEFENDANTS’ TRIAL BRIEF 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 injury that prevented Plaintiff from performing the essential job functions of bus driver. Plaintiff contends that Transdev should have allowed her to continue working as a bus driver or provided her with light duty between August 27, 2015 and her surgery on October 30, 2015. Nevertheless, the dispute concerns the period of approximately two months between August 27, 2015 and October 30, 2015. Plaintiff’s Labor Code claims are based on alleged missed or late meal periods and missed rest breaks. Yet the evidence at trial will show that Transdev maintained a lawful policy pertaining to meal periods and missed breaks. Transdev’s policy includes a mechanism for employees to report meal period or rest break violations and receive an extra hour of pay. Plaintiff was aware of the policy and the form for reporting meal period or rest break violations and she utilized the form on numerous occasions and received an extra hour of pay when she did. IL STATEMENT OF FACTS. Plaintiff was employed by Transdev as a commercial bus driver. The written job description for the position of bus driver includes the following physical demands as an essential job function: “Performs physical activities that require considerable use of the arms, repetitive hand-writ motion, and legs and moving the whole body, such as climbing, lifting, balancing, walking, stooping, and handling passengers and materials.” Alvarez agrees that driving a bus requires the use of both arms, that the left arm is used even more than the right arm, and that driving a bus requires pushing, pulling, grasping and twisting with the left arm. On March 19, 2014, Alvarez reported an on-the-job injury to her left forearm/elbow. In connection with her March 2014 injury and her ensuing claim for Workers” Compensation benefits, Plaintiff submitted to an Agreed Medical Examination (“AME”) by Jeffrey Berman, M.D., on December 9, 2014. On August 26, 2015, during an examination by her treating physician, Plaintiff reported “worsening pain to the left elbow and does not have improvement with physical therapy.” By e-mail dated August 27, 2015, Jaime Ogilvie, Transdev’s Safety Manager at the site where Plaintiff was employed, was notified by Tiffany Vu of Sedgwick Claims Management Services, Inc., Transdev’s workers’ compensation claims administrator, that Alvarez was subject to 3 DEFENDANTS’ TRIAL BRIEF 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the following work restrictions based on an Agreed Medical Examination (“AME”): Thoracic spine and lumbar spine - precluded from very heavy activities Left arm - avoid very forceful as well as repetitive pushing, pulling, grasping and twisting activities Both knees - avoid repetitive or prolonged squatting, kneeling and climbing activities. Ogilvie was not aware of Alvarez’s work restrictions before she received the August 27, 2015 email from Sedgwick. Ogilvie removed Alvarez from duty as a bus driver on August 27, 2015 and placed her on a leave of absence because Ogilvie did not believe that Alvarez could perform her work as a bus driver without violating the work restrictions pertaining to her left arm. Ogilvie told Alvarez she was not firing her, that Alvarez was not capable of performing her job without violating the AME restrictions at the moment, and that Transdev was giving Alvarez time to have her surgery and recover. Ogilvie spoke with Alvarez about her work restriction again on August 31, 2015 and was told by Alvarez that the restrictions were from back in December and that Transdev should not be going by them. Ogilvie immediately informed Sedgwick (Tiffany Vu) as to what Alvarez said about the restrictions and Sedgwick responded, in part, that “We have to go by the AME.” Alvarez continued to pay the employee share of her health premiums when she went on leave in August 2015 and she continued to receive health benefits. Alvarez had surgery on her left elbow on October 30, 2015. Alvarez was not able to work from October 30, 2015 to April 11, 2016 due to the surgery. Alvarez received a note from her doctor dated April 6, 2016. After Alvarez gave Ogilvie the note, Ogilvie told Alvarez that she needed clarification because the note indicates “full duty” and “temporary total disability” and that she needed a clear note before Alvarez could return to work. On April 12, 2016, Ogilvie sent the April 6, 2016 note to Kalani Millsaps at Sedgwick for advice about the apparent inconsistency in the note (FULL DUTY vs. TTD). On April 26, 2016, Ogilvie sent another email to Millsaps at Sedgwick asking for information regarding Alvarez’s 4 DEFENDANTS’ TRIAL BRIEF 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 status and the inconsistencies in the note from her doctor (Exhibit 14). On May 2, 2016, Transdev’s Workers’ Compensation Claim Manager, Sandy Rosenwinkel, informed Ogilvie that the TTD portion of the note ran from April 6, 2016 until the full duty release on April 11, 2016 and as a result, there was no contradiction/inconsistency in the note. On May 3, 2016, Alvarez came into the Transdev office to pick up her pre-employment paperwork. This refers to the process that Alvarez had to complete before she could return to work as a bus driver as required by Federal Transportation Administration regulations for any driver who has been out of work for more than 90 days. Among other things, the pre-employment process requires a physical examination and drug test Alvarez satisfied all requirements to return to work at Transdev as a bus driver. On May 10, 2016, Alvarez informed Michelle De Alba at Transdev that she could not return to work due to doctor appointments and that she would report back to work at Transdev on May 16, 2018 at 8 AM. Alvarez began working at MV Transportation as a full-time bus driver in April 2016 and is currently working in the same position. On May 16, 2016 at 7:42 AM, Alvarez left a telephonic message (voice mail) with Ogilvie stating: “she will not be coming back to work with Transdev. She found another job and she thanks us for everything.” III. ARGUMENT REGARDING LIABILITY. A. TO THE EXTENT THAT ANY OF PLAINTIFF’S CLAIMS ARE BASED ON AN ALLEGED WRONGFUL TERMINATION, THEY ALL FAIL BECAUSE PLAINTIFF RESIGNED FROM HER EMPLOYMENT WITH TRANSDEV ON THE SAME DAY SHE WAS SCHEDULED TO RETURN TO WORK. To prevail on her claims for disability discrimination (second cause of action), retaliation (third, eighth and ninth causes of action) and violation of CFRA (fourth cause of action), Plaintiff must prove that she was discharged from her employment with Transdev on August 27, 2015 as she alleges in her complaint. But Plaintiffs employment was not terminated by Transdev on August 27, 2015 or on any other date. In this regard, it is undisputed that Alvarez was employed by Transdev until May 16, 2016 when she gave notice that she was leaving Transdev because she 5 DEFENDANTS’ TRIAL BRIEF 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 found a different job. In fact, Alvarez was scheduled to return to work on May 16, 2016 -- the same day she resigned. In the absence of a termination of her employment, there is no actionable adverse employment action alleged in Plaintiff’s complaint. For this reason, Plaintiff’s discrimination, retaliation and CFRA claims will all fail. B. PLAINTIFF’S CLAIM FOR DISABILITY DISCRIMINATION FAILS BECAUSE THE AME WORK RESTRICTIONS PREVENTED HER FROM PERFORMING THE ESSENTIAL JOB FUNCTIONS OF BUS DRIVER. Plaintiff was employed by Transdev as a commercial bus driver. The written job description for the position of bus driver includes the following physical demands as an essential job function: “Performs physical activities that require considerable use of the arms, repetitive hand-writ motion, and legs and moving the whole body, such as climbing, lifting, balancing, walking, stooping, and handling passengers and materials.” Alvarez also agrees that driving a bus requires the use of both arms, that the left arm is used even more than the right arm, and that driving a bus requires pushing, pulling, grasping and twisting with the left arm. The work restrictions that Transdev became aware of on August 27, 2015 clearly conflict with the movements Alvarez must perform to operate a bus and thereby prevent her from performing the essential job functions of bus driver. As a result, Transdev properly removed Alvarez from her driving duties and placed her on a leave of absence “to give her time to recover.” A leave of absence under these circumstances is a lawful accommodation as there was no open position that she was qualified to perform. See, 2 CCR Section 11068 (c). C. PLAINTIFF’S CLAIMS FOR FAILURE TO PROVIDE REASONABLE ACCOMMODATION AND FAILURE TO ENGAGE IN THE INTERACTIVE PROCESS FAILS BECAUSE PLAINTIFF NEVER REQUESTED AN ACCOMMODATION AND THERE IS NO EVIDENCE THAT THERE WERE OPEN POSITIONS THAT PLAINTIFF WAS QUALIFIED TO PERFORM. After she was placed on leave beginning August 27, 2015, Plaintiff never requested any accommodation. In addition, there is no evidence that there were any open positions that Plaintiff was qualified to perform. “[I]n order to prevail on a claim under section 12940(m) [failure to provide reasonable accommodation], the plaintiff bears the burden of proving he or she was able to perform the essential functions of the job with accommodation.” Nadaf-Rahrov v. Neiman Marcus 6 DEFENDANTS’ TRIAL BRIEF 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Group, Inc., 166 Cal.App.4th 952, 978 (2008). Here, Plaintiff - despite having had the opportunity to engage in extensive discovery - has produced no evidence that (i) she could perform the job of bus driver with the AME work restrictions with reasonable accommodation; or (ii) there were other open positions at Defendant that she was qualified to perform. Under these circumstances, Plaintiff’s claim for failure to accommodate fails. With regard to Plaintiff’s claim for failure to engage in the interactive process, in Scotch v. Art Inst. Of Calif., 173 Cal. App.4th 986, 1018-1019 (2009), the court unequivocally held that summary judgment is appropriate on a failure to engage in the interactive process claim, even if there was no interactive process, if the employee cannot identify a reasonable accommodation that was available at the time. As in Scotch, extensive discovery has taken place to date, and Plaintiff is still unable to identify any available accommodation that would have allowed her to continue working between August 27, 2015 and October 30, 2015. As a result, Plaintiff’s claim for failure to engage in the interactive process also fails. D. ANY ALLEGED CONDUCT OCCURRING PRIOR TO JULY 29, 2015 IS TIME BARRED. Plaintiffs DFEH complaint in this matter was filed on July 29, 2016. As a result, the relevant time period for Alvarez’s claims is July 29, 2015 thru her resignation on May 26, 2016. See, Government Code Section 12960 (To bring an action under FEHA, Plaintiff must exhaust her administrative remedy by filing a complaint with the DFEH within one year of the allegedly unlawful conduct). Further, the failure to timely exhaust administrative remedies is a jurisdictional defect warranting dismissal or summary judgment. See, Johnson v. City of Loma Linda, 24 Cal.4th 61, 70 (2000) and Miller v. United Airlines, Inc., 174 Cal. App.3d 878, 890 (1985). Accordingly, although Plaintiff’s complaint purports to rely on alleged comments by John Morales in 2012 and other conduct that occurred prior to July 29, 2015, (see, e.g., Complaint, paras. 10 (b) thru (j)), such conduct is time barred. Further, Plaintiff’s time-barred claims are not saved by the continuing violations doctrine. For the continuing violations doctrine to apply, the alleged conduct within the statutory period must be “sufficiently similar in kind” to the alleged conduct outside of the limitations period, and 7 DEFENDANTS’ TRIAL BRIEF 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 “occur with reasonable frequency.” Richards v. CH2M Hill, 26 Cal.4th 798, 823 (2001). Here, neither element is satisfied with respect to the alleged conduct outside of the statutory period (single incident involving Morales in 2012, a single incident involving unidentified person in 2013, and disciplinary actions issued by Tina Trisby and Lawanda Beard in 2014) and that within the limitations period (being placed on leave of absence by Ogilvie due to August 27, 2015 work restrictions). The events involved different conduct, by different actors and they occur more than a year from the events within the limitations period. Under these circumstances, the continuing violations doctrine does not apply. See Morgan v. Regents of Univ. of Calif., 88 Cal. App.4th 52, 65-66 (2000) (no continuing violation because different decision-makers); Leiland v, City & County of San Francisco, 576 F.Supp.2d 1079 (N.D. Cal. 2008) (no continuing violation where allegations one year apart, involved different conduct, by different actors); Franklin v. Sac. Area Flood Control Agency, 2009 U.S. Dist. LEXIS 45229 (E.D. Cal. 2009) (conduct one year apart not with “reasonable frequency). Finally, certain alleged conduct outside of the statutory period is not evidence of harassment or discrimination at all. This includes the alleged incident in March 2014 when, after reporting that driving the bus was causing pain to her knee, Plaintiff was asked by Ogilvie and Martin Tomkins to demonstrate what she was doing that caused pain to her knee because they wanted to see what was causing the problem. (Alvarez Dep., 157/3-23). This type of conduct by Defendant’s employees was within the scope of their job performance and was consistent with the goal of a safety manager (Ogilvie) to maintain a safe work environment. Because harassment is “concerned with the message conveyed to any employee” (Roby v. McKesson, 47 Cal.4th 686, 708 (2009)), and there is nothing harassing about the message conveyed to Plaintiff by asking her to demonstrate how driving the bus was hurting her knee, this incident is not evidence of harassment. E. TRANSDEV HAS NO LIABILITY FOR ALLEGED MEAL PERIOD OR REST BREAK VIOLATIONS. Transdev maintains lawful meal period and rest break policies and it provides the required one hour of additional pay to employees who report meal period or rest break violations. Plaintiff used Transdev’s established procedure to report meal period violations and she received an 8 DEFENDANTS’ TRIAL BRIEF 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 additional hour of pay every time that she did. Plaintiff's meal period and rest break claims simply have no merit. IV. ARGUMENT REGARDING DAMAGES. Plaintiff is seeking damages in this matter for alleged past and future lost earnings, past and future of emotional distress, alleged meal period and rest break violations, and attorneys’ fees. With regard to her claim for economic damages, because Plaintiff resigned from her employment with Transdev, she is not entitled to future economic damages. Furthermore, Plaintiff resigned from her employment with Transdev because she had obtained a job as a bus driver with her former employer, MV Transportation. Plaintiff began working for MV Transportation on or about April 18, 2016. Plaintiff’s job with MV Transportation is virtually identical to her job with Transdev in terms of job duties, hourly compensation, hours of work, and benefits. There simply is no future economic loss. With regard to past economic loss, the only possible period of loss is the approximate two months between August 27, 2015 and October 30, 2015 when Plaintiff was placed on a leave of absence based on her AME work restrictions. Assuming the jury determines that Transdev should not have put Plaintiff on a leave of absence at that time, based on Plaintiff’s rate of pay ($19.23/hour), her total economic damages for that two-month period is approximately $6,666.00. This is Plaintiff’s maximum economic recovery. With regard to damages for emotional distress, according to Plaintiff’s sworn discovery responses, she has received no treatment and has taken no medications for any symptoms of alleged emotional distress. Plaintiff has also stipulated that her emotional distress damages are “garden-variety” and that she will not call any expert witness regarding her emotional distress damages at trial. Plaintiffs emotional distress damages, if any, are minimal. With regard to payment for alleged meal period and rest break violations, as discussed above, Transdev maintains lawful meal period and rest break policies, it compensates employees with an additional hour of pay when they report meal period and rest break violations, and it compensated Plaintiff with an additional hour of pay when she reported meal period or rest break violations. Accordingly, if any damages are awarded for alleged meal period and rest break 9 DEFENDANTS’ TRIAL BRIEF 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 violations, they will be minimal. Moreover, even assuming Plaintiff does prevail on her claim for meal period and rest break violations, Plaintiffs cannot recover attorneys’ fees based on her claim that she was denied meal periods or rest breaks. See, Kirby, 53 Cal.4th 1244, 1254 (2012) (“we conclude that section 1194 does not authorize an award of attorney’s fees to employees who prevail on a section 226.7 action for the non-provision of statutorily mandated rest periods.”) Finally, with regard to attorneys’ fees, because Plaintiff’s FEHA claims all fail, she will not be entitled to any award of fees. Moreover, although a Plaintiff prevailing on a claim under the FEHA may be entitled to attorneys’ fees, the Court has discretion to deny an award of attorneys’ fees to a Plaintiff who pursues claims in an unlimited civil action but fails to meet the $25,000 jurisdictional limit. See, Chavez v. City of Los Angeles, 47 Cal. App.4th 970 (2010). Here, for the reasons discussed above, even assuming Plaintiff does prevail on any of her FEHA claims, there is a substantial likelihood that she would receive less than $25,000 in damages, thereby placing any award of attorneys’ fees within the discretion of the Court. V. CONCLUSION. Based upon the foregoing evidence and argument, Defendants request judgment in their favor as a matter of law and based upon the evidence that will be presented at trial. DATED: January 4, 2019 GLEASON & FAVAROTE, LLP PAUL M. GLEASON TOREY JOSEPH FAVAROTE JING TONG _ ’ | 1 NN / 7 | | / / 7 / ~~ / / Hk J, i Yenots By: Paul M. Gleason Attorneys for Defendants VEOLIA TRANSPORTATION SERIVCES, INC, and TRANSDEV SERVICES, INC. 10. DEFENDANTS’ TRIAL BRIEF 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE I, Linda Montemayor, declare: I am and was at the time of the service mentioned in this declaration, employed in the County of Los Angeles, California. I am over the age of 18 years and not a party to the within action. My business address is Gleason & Favarote, LLP, 4014 Long Beach Blvd., Suite 300, Long Beach, CA 90807. On January 4, 2019, I served a copy(ies) of the following document(s): DEFENDANTS’ TRIAL BRIEF on the parties to this action by placing them in a sealed envelope(s) addressed as follows: Tel: Fax: Attorney Party(ies) Served Method of Service Adam Reisner, Esq. Attorneys for By Electronic Tessa King, Esq. PLAINTIFF CLAUDIA | Service Virginia Ksadzhikyan, Esq. ALVAREZ Nahal Barahmand, Esq. REISNER & KING LLP 14724 Ventura Blvd., Suite 1210 Sherman Oaks, California 91403 adam@reisnerlaw.com tessa@reisnerlaw.com christina@reisnerlaw.com (818) 981-0901 (818) 981-0902 virginia@reisnerlaw.com nahal@reisnerlaw.com [] X [] [BY MAIL] I placed the sealed envelope(s) for collection and mailing by following the ordinary business practice of Gleason & Favarote, LLP, Long Beach, California. I am readily familiar with Gleason & Favarote, LLP’s practice for collecting and processing of correspondence for mailing with the United States Postal Service, said practice being that, in the ordinary course of business, correspondence with postage fully prepaid is deposited with the United States Postal Service the same day as it is placed for collection. [BY ELECTRONIC TRANSMISSION] I caused said document to be sent by electronic transmission to the e-mail address indicated for the party(ies) listed above via Onelegal provider. [BY OVERNIGHT COURIER] I caused the sealed envelope(s) to be delivered by a commercial courier service for overnight delivery to the offices of the addressee(s). I declare under penalty of perjury under the laws of the State of California that the above is true and correct, and that this declaration was executed on January 4, 2019, at Long Beach, California. Pp Linda Montemayor 1 PROOF OF SERVICE
