Electronically FILED by] 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 29 28 PAUL, PLEVIN, SULLIVAN & CONNAUGHTON LLP buperior Court of California, County of Los Angeles on 05/01/2020 01:23 PM Sherri R. Carter, Executive Officer/Clerk of Court, by J . Lara,Deputy Clerk E. JOSEPH CONNAUGHTON (SBN 166765) jconnaughton@paulplevin.com PAUL BATCHER (SBN 266928) pbatcher@paulplevin.com PAUL, PLEVIN, SULLIVAN & CONNAUGHTON LLP 101 West Broadway, Ninth Floor San Diego, California 92101-8285 Telephone: 619-237-5200 Facsimile: 619-615-0700 Attorneys for Defendants D&W FINE PACK, SALLY YOUNG, and LAURA MORALES SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES, CENTRAL DISTRICT GEORGE GIBSON, an individual, Case No. BC682851 Plaintiff, DEFENDANT D&W FINE PACK’S MEMORANDUM OF POINTS AND Vi AUTHORITIES IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT D&W FINE PACK, a Delaware Limited OR, IN THE ALTERNATIVE, SUMMARY Liability Company doing business in ADJUDICATION California; SALLY YOUNG, an individual; LAURA MORALES, an individual; and Hearing Confirmation No.: 323433245880 DOES 1 through 10, inclusive, Date: July 15,2020 Defendants. Time: 8:30 a.m. Judge: Hon. Mel Red Recana Dept.: 45, Room 529 Action Filed: November 9, 2017 Trial Date: August 31, 2020 DEFENDANT D&W FINE PACK’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 29 28 PAUL, PLEVIN, SULLIVAN & CONNAUGHTON LLP II. IIL TABLE OF CONTENTS Page INTRODUCTION... ..ooitiiiieiiie cites etter et eet te ste sabe ese ee baessbe esse enseeesae esse esse aseesnsaens 7 FACTILATL BACEIGIRION TINT: ¢.050005:0 50.00 50050.150550050 0005550550055 50555 5505555. 5505 5 F955 8 THE COURT SHOULD GRANT SUMMARY JUDGMENT TO D&W FINE PACK cee eee eee ete ete eee e ete ehbe ante a ete e bee sabe sateen eet ae eaten a ennees 10 A Mr. Gibson’s Discrimination Cause of Action Lacks Merit as a Matter of LAW. cee eee eee ete estes sabe e esha esate e enna eeneae 10 I. Mr. Gibson Cannot Establish a Prima Facie Discrimination Claim............ 11 a. Mr. Gibson Could Not Perform the Essential Functions of HIS JOD. conic eee ere sees 11 b. The Only Accommodation Mr. Gibson Requested Was an Open-Ended Leave of ABSENCE. .......cccvevviieriieeiiiiiieiieciie cece 12 c. Directly on Point California Precedent Holds that Employees Who Require Indefinite Leave Are Not Qualified to Perform their JODS. oevvieieiiiieie c ceee ae ees 13 2, D&W Ended Mr. Gibson’s Employment for a Legitimate, Non- Discriminatory REASON. .......coiieriieiieeiiieiieiie cites seers eae eee 14 3. Mr. Gibson Has No Evidence of Pretext........ccceeviiviiieiiienieiiieiceiie 15 B. Mr. Gibson’s Failure to Accommodate Cause of Action Lacks Merit as a MaAtEr OF LAW. ...oouiiiiiiiiie cece eee sees eaters ee saa sebe eee saan 17 I. Mr. Gibson Could Not Perform the Essential Functions of his Job. ............ 17 2. No Reasonable Accommodation Would Have Permitted Mr. Gibson to Perform the Essential Functions of His Job. .........ccccooiiniiiiiiiiiiiiie 17 a. D&W Had No Vacant Positions that Could Accommodate Mr. Gibson’s Limitations. ........cceeeueeriieriieniieeieeiie c ce 17 b. D&W Was Not Obligated to Grant Mr. Gibson an Indefinite Leave of Absence As a Matter of Law.........cccoocveviiiiienniieniecieeee, 18 C. Mr. Gibson’s Failure to Engage in the Interactive Process Cause of Action Lagks Wert as a. MIATEEE 08 LA «omnis nnn num sn. 50m 0055.0.50.555555 55505055.55 0455585 A500555555.55 18 D. Mr. Gibson’s Retaliation Claim Fails as a Matter of Law. .........cccoovievieiiiiniennnnne 20 I. D&W Did Not End Mr. Gibson’s Employment Because He Complained About His Supervisor or Requested a Leave of ADSCIICE. «oii a esate saree teeta sabe eens 20 2, D&W Ended Mr. Gibson’s Employment for a Legitimate, Non- Retaliatory Reason: He Was Completely Unable Work. ..........ccccevvennnne. 21 2 DEFENDANT D&W FINE PACK’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 29 28 PAUL, PLEVIN, SULLIVAN & CONNAUGHTON LLP 3. Mr. Gibson Has No Evidence Of PreteXt. .... ummm 22 E. Gibson’s Wrongful Termination Cause of Action Lacks Merit as a Matter of LAW. c eae eects sae sateen 22 F Gibson’s Failure to Prevent Cause of Action Lacks Merit As a Matter of LAW. c eeee aes sabe enna 22 G. The Court Should Grant Summary Judgment as to Plaintiffs Punitive DI ATTTRTES CVA, sus ,500558... 5505 F565 57 S555. 85 AGA 965.5 23 IV. CONCLUSION otitis estes ene ete sheet estes esbe sate shee steers eaten be este ste ene esse anes 25 3 DEFENDANT D&W FINE PACK’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 PAUL, PLEVIN, SULLIVAN & CONNAUGHTON LLP TABLE OF AUTHORITIES Page(s) Federal Cases Brothers v. STVT-AAI Education, Inc. (E.D.N.C., Aug. 22, 2019, No. 7:19-CV-19-BO) 2019 WL 3987752 ....cccteeerteiireeeerieerrranne 14 Canupp v. Children’s Receiving Home of Sacramento (ED. Cal, 201.6% 181 F.Bupp.30 267 inseam ansa summons assess ss 13, 14, 18 Cleveland v. Policy Management Systems Corp. (1999) 526 TLS. 795 eee eee eee eet este sabes sae sabe sabe e snes sae ebbe sabe enns 12,13 Cornwell v. Electra Cent. Credit Union (9th Cir. 2006) 439 F.3d TO18. cei eee ete sates errata eras sabe e eee aees 21 Dep't of Fair Employment and Housing v. Lucent Techs, Inc. (Oth Cir. 2011) 642 F.3d 728... sate eee aes saae sabe e nee e naan 21 Garner v. School Dist. of Philadelphia (E.D. Pa. 2014) 63 F.SUPP.3A 483 eects eters steers sree sabes 14 Kennedy v. Applause, Inc. (tl Cit. YIIE) TO PB. TAT TF sin sn msn 5000505590555 5508555. 55505 HRS, S58 SS 13 Lawler v. Montblanc North America, LLC (9th Cir. 2013) 704 F.3d 1235... eesti eee sbeebs 21,22 Manatt v. Bank of America, NA (9th Cir. 2003) 339 F.3d 792... ete eet ete eae settee eta saae saben eeneaes 21 Nowak v. St. Rita High Sch. gia ML IE STA Tc 0 OP -- 14 Stamey v. NYP Holdings, Inc. (S.D.N.Y. 2005) 358 F.SUPP.2A 317 ceeiiiieiie ects eee teeter sae eaves 14 California Cases Aguilar v. Atlantic Richfield Co. (2001) 25 CalAth 826....c.ueieeieeeie eee eee eters sees sb ee sabe eabe estes see sabe sabe enr ee neaas 10 American Airlines, Inc. v. Sheppard, Mullin, Richter & Hampton (2002) 96 Cal. APP.Ath TO17 eee eee eaters t ee sabe sabe e nee e sees 23 Cruz v. HomeBase (2000) 83 Cal. APP.Ath 1600... .cccuiieeiieiiieiieiie eects eters seas eebe estes st ee sree sabe enn ee sees 23 DEFENDANT D&W FINE PACK’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 PAUL, PLEVIN, SULLIVAN & CONNAUGHTON LLP Faust v. California Portland Cement Co. (UOT) 150: Call ATID AE: BE nm 5 mem. 5505055500855, 8.65 S558 S555. SS E85 10 Green v. State (2007) 42 Cal.Ath 254... eee eee sb esate sateen eats ebae saree arenas 11 Guz v. Bechtel National, Inc. (2000) 24 Cal. Ath 317...cooiieeiie cece sates saae serena ee eees 10, 11, 14, 16 Hanson v. Lucky Stores, Inc. C1999 Vd Cal SEE ATH, 218 con uommomsammmsns swomenasssnsoomsmmssss es m m us sm s Esme passim Hastings v. Department of Corrections (2003) 110 CalLAPP.Ath 903... sae eee eae sabe saben ee eaes 14 Kelly v. First Astri Corp. (1999) 72 Cal. APPA 402... eects eerste eae sabes st eesrae sabe ene eeneees 10 Kerr v. Rose (1990) 216 Cal. APP.3A 1551 weitere sate eee estes sb ae eae ese ee eees 16 Lilienthal & Fowler v. Superior Court (1993) 12 Cal APP.Ath 1848... eee ete eters sates estes b ee eras sabe e nee e seas 10 Loggins v. Kaiser Permanente Intern COEF) 131 Cal Appi 1. I oo cums sons so.omumssn mss smn 505.5500 5508555. 5505 0 HR555 SS ES 16 Mamou v. Trendwest Resorts, Inc. (2008) 165 Cal.APP.Ath 6806.......eoeeiieiiiiieie cec ects eters sre sabe e reas 16 Mixon v. Fair Employment & Housing Com. (1987) 192 CalLAPP-3d 13060... iii eects eae eee sabe sabe ene eeeaes 15 Morgan v. Regents of University of Cal. (ZUO0Y BR Col NTI ATE, 52 20s sesamin dmmsnsonso ssi ness mss ssi ses 10, 11 Nadaf-Rahrov v. Neiman Marcus Group, Inc. (2008) 166 Cal. APP.Ath O52... eee eee eae eters sabe saber ee eees 10 Nealy v. City of Santa Monica ERC FE 18.5 £07 10 LS -- passim Scotch v. Art Institute of California (2009) 173 Cal.APP.Ath O86......eeeeiieieeeee e erste ae se rs eras sabe e ees 19 Scott v. Phoenix Schools, Inc. (2009) 175 Cal.APP.Ath TO2....c.eiieeie ects eters eae eee eee esas anes 23, 25 Trujillo v. North County Transit Dist. C1998) 63 Cal Np Ath, 280 smn summon amen sommes mms oss mm 22 5 DEFENDANT D&W FINE PACK’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION 1 || Wilson v. County of Orange 5 CROCS} 109 Cal Appi 1. LB oo cums suns so samen ums smn 5505.55006550555 55085155. 55050 HR555 SS SES 18 Wysinger v. Automobile Club of Southern California 3 (2007) 157 CalLAPP.Ath 413. ccas ete eers eras sabe e eee eees 18 4 Yanowitz v. L'Oreal USA Inc. 5 (2005) 36 Cal.dth TO28.......oeeeeeieeieieeie eect eee eects setae seas esas eases sane assess ee saaeeessaeeenns 20 6 || Federal: Statutes, Rules, Regulations, Constitutional Provisions 7 20 CFR. §A04. 1505 «eee eee eee eee eect ee ete e eee ee eset ae eee ae ease aae ae ee eansae ee ensae eee nneeas 12 8 {| 42 1.S.C. § A23(A)(2)(A) wooo 12 9 State: Statutes, Rules, Regulations, Constitutional Provisions 10 | Cal. COME Civ. P. § 437C(C)eoeeeooereeoeeeoeoeoeessoeeoeeeee esos s ss se soeseee ee sesess seseesees esses seeeee sess 10 Cal, COE CIV. Po § A37CNLY wooo 10 12 Cal. Code Civ. P. § 437C(P)(2) cveeeueeeieeirie ete eiteet teeta sete eee stee sate eebe esse e esas esbe esse ansee eases ease ees 10 P Cal. Code Regs. Title 2, § TTOO8(C) cuuveerieriieeieeiieeiiestie eis etter ete est e see stae sabe e e e esses ease ees 13 | CHV. COE § 3294(8)-(D) roe eee eee eee eee 23 1 || iv Cote § 32 Dhscmrossmmmsmsnsmmspmsssmusmsss asm 23 17 [| CV. COE § 3294ND). 23 18 |[CIV: COE § 3298(C)(3)-rrror ener 23 19 20 21 22 23 24 25 26 27 28 Pinang || DEFENDANT D&W FINE PACK'S MEMORANDUM oF POINTS AND AUTHORITIES IN SUPPORT OF ITS CONNAUGHTON LLP MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 29 28 PAUL, PLEVIN, SULLIVAN & CONNAUGHTON LLP I. INTRODUCTION This is a rare and unusual employment case where summary judgment is not only available, but is required. Mr. Gibson worked as a local delivery truck driver at D&W’s San Bernardino facility. Throughout his employment, D&W treated Mr. Gibson well: it granted him leaves of absence, and always returned him to work. In March 2016, D&W granted Mr. Gibson another leave of absence to deal with a health condition. After Mr. Gibson exhausted all available statutory leaves, D&W began the interactive process to determine how it could accommodate Mr. Gibson’s condition, the seriousness of which no one yet knew. During this process, Mr. Gibson’s doctor specifically told D&W that Mr. Gibson was: ° Completely unable to work; ° Wouldn’t be able to return to work unless he received a double lung transplant; and ° Even if he received a double lung transplant, he might or might not be able to return to work. D&W-a company that was subsequently forced to close most of its California operations-considered various accommodations to try to keep Mr. Gibson employed. It tried to move him to another position, but the only positions D&W had open required physical exertion that Mr. Gibson’s doctor prohibited. At that point, D&W had been covering Mr. Gibson’s absence for four months by using outside vendors. But the cost of doing that was too high to be sustainable, so D&W made the difficult (but legal) decision to replace Mr. Gibson, causing Mr. Gibson’s termination. As it turns out, Mr. Gibson wasn’t able to return to work. He has not been able to do any “kind of substantial gainful work” since 2016. This is precisely why California law does not require employers to grant open-ended leaves of absence. (See Hanson v. Lucky Stores, Inc. (1999) 74 Cal. App.4th 215, 226-227 [“Reasonable accommodation does not require the employer to wait indefinitely for an employee’s medical condition to be corrected.””].) And that, among other reasons, is why summary judgment should be granted here as a matter of law. 7 DEFENDANT D&W FINE PACK’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 29 28 PAUL, PLEVIN, SULLIVAN & CONNAUGHTON LLP II. FACTUAL BACKGROUND D&W makes plastic food containers and cutlery. (Kellogg Decl.! 4 3.) Its headquarters are in Illinois. (Id. 96.) In 2016, D&W had a manufacturing plant and warehouse in San Bernardino. (Id. 4.) D&W employed approximately 116 workers in San Bernardino in 2016. (Id.) For local deliveries and warehouse runs, D&W had a local delivery truck and driver. (Id.) Mr. Gibson had that role starting in 1999. (Id. 9 8.) Mr. Gibson had various health problems during his employment, which D&W always accommodated. In 2009, for example, D&W provided Mr. Gibson a 13-week leave of absence when he had hip surgery. (Id. 99.) In 2014, D&W provided Mr. Gibson a seven-week leave of absence when a lung collapsed. (/d. § 10.) In early 2016, Mr. Gibson began experiencing further lung problems and began another leave of absence on March 14, 2016. (Kellogg Decl. 9 12; Tr. at 65:14-66:5.) After Mr. Gibson’s 12 weeks of FMLA leave expired in early June 2016, Laura Morales, HR Generalist for D&W’s San Bernardino location, reached out to Mr. Gibson to see if, how, and when he might return, and what D&W could do to help. (Morales Decl. § 4; Ex.> A.) She even included a healthcare provider questionnaire to help D&W thoughtfully explore return-to-work options with Mr. Gibson. (Ex. A.) Mr. Gibson’s doctor responded. (Id. 95.) He informed D&W that: (1) Mr. Gibson was completely unable to work; and (2) the length of time until Mr. Gibson would be able to return to work was “unknown.” (Ex. B.) The doctor’s response was crystal-clear. When asked “Can the employee perform the essential functions of her job with this impairment?” His doctor responded, “No, he cannot do any jobs that demands [sic] physical activity (delivery, loading, unloading etc.).” (Id. “Decl.” refers to the declarations in support of D&W’s Motion for Summary Judgment or, in the Alternative, Summary Adjudication, filed concurrently herewith. 2 “Tr.” refers to the transcript of the February 13, 2019 deposition of George Gibson, excerpts of which are attached to the Compendium of Exhibits (“COE”) as Exhibit H. 3 “Ex.” refers to the exhibits to the COE, filed concurrently herewith. DEFENDANT D&W FINE PACK’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 29 28 PAUL, PLEVIN, SULLIVAN & CONNAUGHTON LLP [underline original, bold added].) When asked “Does the employee need an accommodation in order to perform the essential functions of her [sic] job because of the impairment and/or treatment?” The doctor wrote “Yes he needs time off from his job.” (Id.) And when asked “If the accommodation is needed temporarily, please state the length of time the accommodation will be needed,” the doctor specifically stated the length of additional leave was “unknown at this point...” (Id. [emphasis added].) After receiving the doctor’s stark responses, Ms. Morales called Mr. Gibson and asked him to meet to discuss possible accommodations. (Morales Decl. 4 6.) Mr. Gibson declined, saying he couldn’t even leave his home. (/d.) So Ms. Morales discussed possible accommodations with Mr. Gibson over the phone. (Id. 97.) She even discussed two potential alternate jobs with Mr. Gibson. (Id. 9 7-10.) But both of these jobs were in the manufacturing plant, and both jobs required some degree of physical labor, which, according to his doctor, Mr. Gibson couldn’t do. (Id.) Unfortunately, D&W did not have any open office jobs at that time.* (Id. § 11.) Accordingly, Ms. Morales reasonably concluded D&W could not possibly accommodate Mr. Gibson.” (Id. q 12.) In 2015 and 2016, D&W’s San Bernardino plant and warehouse were busy. (Rauterkus Decl. 19.) When Mr. Gibson went out on leave in March 2016, D&W had to use outside vendors to cover Mr. Gibson’s absence, which was very expensive. (Id. 4 10.) When D&W learned in July 2016 that Mr. Gibson would be unable to return to work for the foreseeable future, it determined it had no choice but to let Mr. Gibson go so it could hire a driver to perform local deliveries. (Id. J 11.) D&W specifically invited Mr. Gibson to contact it once he was able to work again. (Kellogg Decl. § 19.) He never did. * Indeed, all of those jobs went away in April 2019, when D&W largely shuttered its California operations. > Soon thereafter, D&W received a letter from a nurse at UCLA’s transplant center. (Id. § 13; Ex. C.) In her letter, the nurse wrote “[a]t this time Mr. Gibson will not be able to return to work due to the severity of his lung disease and his high oxygen requirement for six months (January 2017) at which time his condition will be re-assess [sic] and up-date.” (Ex. C.) This communication re- confirmed that Mr. Gibson’s ability to return was, at best, uncertain. DEFENDANT D&W FINE PACK’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 29 28 PAUL, PLEVIN, SULLIVAN & CONNAUGHTON LLP Instead, Mr. Gibson has remained on total Social Security disability, completely unable to work since then. (Ex. D.) III. THE COURT SHOULD GRANT SUMMARY JUDGMENT TO D&W FINE PACK Summary judgment should be granted when the moving party establishes there is no triable issue of material fact and the papers show the moving party is entitled to judgment as a matter of law. (Cal. Code Civ. P. § 437c(c); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) A defendant moving for summary judgment can prevail if it shows “one or more elements of the [plaintiff’s] cause of action . . . cannot be established, or that there is a complete defense to that cause of action.” (Nadaf-Rahrov v. Neiman Marcus Group, Inc. (2008) 166 Cal. App.4th 952, 962.) Once a defendant meets that burden, “the burden shifts to the plaintiff... to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.” (Code Civ. Proc. § 437¢c(p)(2); see also Aguilar, supra, 25 Cal.4th at p. 845.) To be considered “material,” a fact must relate to a claim or defense and be essential to the judgment. (Kelly v. First Astri Corp. (1999) 72 Cal.App.4th 462, 470.) Where a plaintiff combines several causes of action in one action, the trial court may summarily adjudicate one or more of the sub-claims. (Code Civ. Proc. § 437c(f)(1); Lilienthal & Fowler v. Superior Court (1993) 12 Cal. App.4th 1848, 1852.) A. Mr. Gibson’s Discrimination Cause of Action Lacks Merit as a Matter of Law. California uses the United States Supreme Court’s three-stage burden-shifting test for analyzing employment discrimination claims at the summary judgment stage. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354.) Mr. Gibson bears the initial burden of establishing a prima facie disability discrimination claim. To do so, he must establish: (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 because of his disability. (Faust v. California Portland Cement Co. (2007) 150 Cal. App.4th 864, 886.) Even if Mr. Gibson carries his initial burden, D&W may negate his prima facie case by proffering a legitimate, non-discriminatory reason for the adverse action. (Morgan v. Regents of University of Cal. (2000) 88 Cal.App.4th 52, 68.) After D&W proffers a legitimate, non- discriminatory reason, the presumption of discrimination “simply drops out of the picture,” and 10 DEFENDANT D&W FINE PACK’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 29 28 PAUL, PLEVIN, SULLIVAN & CONNAUGHTON LLP the burden shifts back to Mr. Gibson to prove intentional discrimination. (Id.; see Guz, supra, 24 Cal.4th at p. 362.) Mr. Gibson’s discrimination claim fails at every step of this analysis as a matter of law. 1. Mr. Gibson Cannot Establish a Prima Facie Discrimination Claim. Mr. Gibson cannot establish he was a qualified individual because he was (and still is) completely unable to perform the essential functions of his job. It is undisputed he could not perform the essential functions of his job in July 2016. (Ex. B.) And the only accommodation he ever requested was an indefinite leave of absence, which has been deemed unreasonable as a matter of law by every court that has ever considered the issue. a. Mr. Gibson Could Not Perform the Essential Functions of His Job. To pursue a discrimination claim, Mr. Gibson must establish that he could perform the essential functions of his job: “[T]he Legislature has placed the burden on a plaintiff to show that he or she is a qualified individual under the FEHA (i.e., that he or she can perform the essential functions of the job with or without reasonable accommodation).” (Green v. State (2007) 42 Cal.4th 254, 260.) The essential functions of D&W’s Local Warehouse Driver position include: e “Drives vehicle(s) in order to transport materials to and from specified destinations such as D&W facilities, Third-party warehouses and clients/vendors”; e “Inspects and maintains vehicle supplies and equipment, such as gas, oil, water, tires, lights, and brakes in order to ensure that vehicle(s) are in proper working condition”; e “Loads and unloads product”; and e “Breakdowns and restacks product from pallets.” (Ex. E; Rauterkus Decl. 9] 6-7; Tr. at 61:20-63:20.) Mr. Gibson could not perform any of these duties in July 2016. (See Ex. B.) He couldn’t do any loading or unloading, and could not perform any driving or delivery duties. (Tr. at 153:9- 154:17; Ex. B.) According to his doctor, he couldn’t even walk. (Ex. B.) Because of these limitations, Mr. Gibson’s doctor affirmed that he was unable to perform his job. (Id.) This is not a surprise-Mr. Gibson admitted it in deposition. (Tr. at 64:25-65:13; 87:21-25; 153:9-154:17.) 11 DEFENDANT D&W FINE PACK’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 29 28 PAUL, PLEVIN, SULLIVAN & CONNAUGHTON LLP b. The Only Accommodation Mr. Gibson Requested Was an Open-Ended Leave of Absence. Because Mr. Gibson couldn’t perform any functions of his position, his doctor informed D&W that the only accommodation Mr. Gibson required was “time off from his job.” (Ex. B; see also Tr. at 87:12-17.) But the doctor had no idea if Mr. Gibson would ever be able to return to work or, if he did, how long it would be before he could return. Indeed, the doctor stated that the leave would be temporary only “if he can receive lung transplantation and can successfully recover from it.” (Id. [emphasis added].) Moreover, even if Mr. Gibson could receive a lung transplant (and the doctor didn’t know if he could) and if Mr. Gibson could successfully recover from that procedure (also unknown), the doctor still said the length of leave was completely “unknown at this point...” (Id.) This is dispositive. It is undisputed that in July 2016, no one-not the doctor, not Mr. Gibson, and not D&W-knew four key pieces of information: e Could Mr. Gibson receive a double lung transplant? eo If so, when? e If Mr. Gibson eventually did receive a double lung transplant, could he successfully recover from that risky procedure? e If Mr. Gibson was able to receive a double lung transplant and successfully recover from it, would he recover sufficiently to return to work? As it turns out, Mr. Gibson is still unable to work. In verified discovery responses provided in December 2019, Mr. Gibson admitted he has been receiving Social Security Disability Income (“SSDI”) benefits from November 2016 to the present. (Ex. D.) The SSDI program provides benefits to a person with a disability so severe he is “unable to do his previous work” and also “cannot ... engage in any other kind of substantial gainful work which exists in the national economy.” (42 U.S.C. § 423(d)(2)(A); see Cleveland v. Policy Management Systems Corp. (1999) 526 U.S. 795, 797.) To receive SSDI, individuals must certify to the Social Security Administration they are unable to do their past work or any other work. (20 C.F.R. § 404.1505.) Because of the high standard to receive SSDI benefits, “a plaintiff’s sworn assertion in an application for disability benefits that she is, for example, ‘unable to work’ will appear to negate 12 DEFENDANT D&W FINE PACK’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 29 28 PAUL, PLEVIN, SULLIVAN & CONNAUGHTON LLP an essential element of her ADA case...” (Cleveland, supra, 526 U.S. at p. 806.) Because Mr. Gibson has been completely unable to work from July 2016 to the present-nearly four years- this further demonstrates his discrimination claim lacks merit as a matter of law. (See Kennedy v. Applause, Inc. (9th Cir. 1996) 90 F.3d 1477, 1481 [Plaintiff’s statement on state disability benefit and Social Security Administration claim forms that she was totally disabled negated element of discrimination claim].) c. Directly on Point California Precedent Holds that Employees Who Require Indefinite Leave Are Not Qualified to Perform their Jobs. California law is clear that an indefinite leave of absence is not a reasonable accommodation as a matter of law. (See Hanson, supra, 74 Cal. App.4th at pp. 226-227 [“Reasonable accommodation does not require the employer to wait indefinitely for an employee’s medical condition to be corrected.”].) Indeed, the California Code of Regulations specifically provides that “[a]n employer... is not required to provide an indefinite leave of absence as a reasonable accommodation.” (Cal. Code Regs. tit. 2, § 11068(c).) Every court that has considered this issue has confirmed this rule. In Nealy v. City of Santa Monica, for example, an employee who worked for the city as a solid waste equipment operator injured his knee and his back. ((2015) 234 Cal.App.4th 359, 365- 366.) His physician indicated he could not perform the essential functions of his original position and the city had no other vacant positions for which plaintiff was qualified. (/d. at pp. 375-376.) The court specifically ruled that “FEHA does not require the employer to provide an indefinite leave of absence to await possible future vacancies,” and affirmed summary judgment. (Id. at pp. 377-378.) A federal district court in California reached the identical conclusion in Canupp v. Children’s Receiving Home of Sacramento (E.D. Cal. 2016) 181 F.Supp.3d 767. In Canupp, the employee was unable to do her job, but anticipated having back surgery that would enable her to return to work. (Id. at p. 773.) After she exhausted her FMLA and CFRA leave, the employer granted her one additional month of personal leave (just like D&W did here). (Id.) The Canupp plaintiff believed she could return to work after she had surgery, but did not know when that 13 DEFENDANT D&W FINE PACK’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 29 28 PAUL, PLEVIN, SULLIVAN & CONNAUGHTON LLP surgery would occur (similarly, Mr. Gibson anticipated having surgery at some point, but could not say when). (Id.) When she still could not return to work at the expiration of her personal leave, her employer terminated her employment. (Id.) The court affirmed summary judgment because “plaintiff’s ability to even return to work at that time was still unknown when CRH made the decision to terminate her” and “indefinite leave is not a reasonable accommodation” as a matter of law.® (Id. at pp. 777-778.) As in Nealy and Canupp, Mr. Gibson’s request for an indefinite leave of absence was not a reasonable accommodation as a matter of law. Summary judgment is therefore required. 2 D&W Ended Mr. Gibson’s Employment for a Legitimate, Non-Discriminatory Reason. Furthermore, D&W ended Mr. Gibson’s employment for a legitimate, non-discriminatory reason: He was unable to work, his doctor could not tell D&W when or if he would be able return to work. (Ex. B; see Tr. at 64:25-65:13; 87:21-25; 153:9-154:17.) A legitimate, non-discriminatory reason is one that is facially unrelated to prohibited bias. (Guz, supra, 24 Cal.4th at p. 358.) Courts may not second guess the wisdom or accuracy of the legitimate reason: “if nondiscriminatory, [an employer’s] true reasons need not necessarily have been wise or correct.” (Id.) In other words, a reason unconnected to bias, even if unwise or incorrect, precludes a finding of discrimination. (/d.) 111 ® Further confirming this principle, federal courts routinely hold indefinite leave is not a reasonable accommodation under the Americans with Disabilities Act (ADA). (See Brothers v. STVT-AAI Education, Inc. (E.D.N.C., Aug. 22,2019, No. 7:19-CV-19-BO) 2019 WL 3987752, at *3 [“[A] period of indefinite medical leave is, as a matter of law, not a reasonable accommodation under the ADA...”]; Garner v. School Dist. of Philadelphia (E.D. Pa. 2014) 63 F.Supp.3d 483, 493 [“Garner’s request for indefinite medical leave... was not a reasonable accommodation under the ADA.”]; Stamey v. NYP Holdings, Inc. (S.D.N.Y. 2005) 358 F.Supp.2d 317, 324 [“The ADA does not require an employer to grant an employee an indefinite leave of absence.”]; Nowak v. St. Rita High Sch. (7th Cir. 1998) 142 F.3d 999, 1004 [“The ADA does not require an employer to accommodate an employee who suffers a prolonged illness by allowing him an indefinite leave of absence.”].) California courts may look to federal court interpretations of the ADA as guidance for applying FEHA. (Hastings v. Department of Corrections (2003) 110 Cal.App.4th 963, 973 fn.12.) 14 DEFENDANT D&W FINE PACK’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 29 28 PAUL, PLEVIN, SULLIVAN & CONNAUGHTON LLP D&W has just such a reason here: Mr. Gibson’s doctor told D&W that (1) Mr. Gibson could not perform his job or any job, (2) whether Mr. Gibson could ever return to work was contingent on being able to receive a double lung transplant and successfully recover from that risky procedure, and (3) if/when those things might ever happen was “unknown.” (Ex. B.) As far as D&W knew, Mr. Gibson would be out of work indefinitely-which is exactly what happened. (Morales Decl. 9 12-13; Ex. D [admitting Mr. Gibson has been receiving disability insurance since November 2016].) Furthermore, keeping Mr. Gibson on an indefinite leave of absence would have caused an undue burden on D&W. (Rauterkus Decl. § 10.) When Mr. Gibson went on leave in March 2016, D&W was able to cover Mr. Gibson’s deliveries by using a third party for its local deliveries. (Id.) The additional cost of using this outside provider to cover Mr. Gibson’s deliveries was approximately $50 more per hour, which amounted to up to $8,000 in additional costs each month. (Id.) D&W absorbed this extra cost for four months, from March through July 2016. When D&W learned that Mr. Gibson would be unable to return to work for an unknown length of time, if ever, D&W determined it had no choice but hire another driver so it could perform local deliveries. (Id. 911) D&W thus only ended Mr. Gibson’s employment when (1) he couldn’t work, (2) his doctor confirmed that he would be unable to work for an unknown length of time, and (3) D&W’s business needs required hiring another driver who could perform local deliveries. D&W’s legitimate, non-discriminatory reason for terminating Mr. Gibson’s employment precludes a finding of discrimination. 3. Mr. Gibson Has No Evidence of Pretext. Because D&W ended Mr. Gibson’s employment for a legitimate, non-discriminatory reason, Mr. Gibson must show that D&W’s legitimate reason for terminating him was mere pretext for discrimination. He cannot do so here. To prove intentional discrimination, Mr. Gibson must show D&W “harbored a discriminatory intent” and that his termination occurred under circumstances suggesting a discriminatory motive. (Mixon v. Fair Employment & Housing Com. (1987) 192 Cal. App.3d 15 DEFENDANT D&W FINE PACK’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 29 28 PAUL, PLEVIN, SULLIVAN & CONNAUGHTON LLP 1306, 1317.) In short, Mr. Gibson must offer substantial evidence that D&W acted with the purpose of discriminating against him based on his disability. (Guz, supra, 24 Cal.4th at pp. 357- 358; Mamou v. Trendwest Resorts, Inc., (2008) 165 Cal. App.4th 686, 715 [“The central issue is and should remain whether the evidence as a whole supports a reasoned inference that the challenged action was the product of discriminatory or retaliatory animus.”].) Speculation and conjecture are insufficient to show pretext. (Kerr v. Rose (1990) 216 Cal.App.3d 1551, 1563-1564 [a plaintiff’s “suspicions of improper motives ... primarily based on conjecture and speculation” insufficient to defeat summary judgment].) Mr. Gibson must instead produce “substantial responsive evidence” showing D&W was motivated by disability bias. (Hanson, supra, 74 Cal.App.4th at p. 224.) Without such evidence, Mr. Gibson’s discrimination claim fails as a matter of law. (Loggins v. Kaiser Permanente Intern (2007) 151 Cal. App.4th 1102, 1113 [summary judgment appropriate where employee failed to present substantial evidence that legitimate reasons were a “pretextual smokescreen” to hide illegal motive].) Mr. Gibson has no evidence of pretext. Tom Rauterkus, D&W’s Supply Chain Manager, made the decision to terminate Mr. Gibson’s employment. (Rauterkus Decl. § 12.) Mr. Gibson “got along with [Rauterkus] great.” (Tr. at 133:5-6.) When asked if he had any reason to think Rauterkus was “anti-disabled people” or was “out to get” Mr. Gibson in any way, Mr. Gibson replied simply that “[Rauterkus] was a good dude.” (Tr. at 133:10-13 [emphasis added].) Mr. Gibson also testified that, except for not being granted indefinite leave, D&W treated him fairly. (Tr. at 133:24-134:10.) Indeed, D&W previously granted Mr. Gibson extended leaves of absence, including a 13- week leave of absence in 2009 for hip replacement surgery, a seven-week leave of absence for a surgery related to his lung issues in 2014, and a three-week leave for pneumonia in 2015, in addition to four months of leave in 2016. (Kellogg Decl. 9 9-11.) Following each of these earlier leaves, Mr. Gibson returned to work at D&W without issue. (Id.) D&W’s long history of accommodating Mr. Gibson is entirely inconsistent with the notion that its legitimate reason for terminating his employment was merely a “pretextual smokescreen” for discriminatory bias. Mr. Gibson was not qualified to perform his job (and is still cannot perform his job), D&W 16 DEFENDANT D&W FINE PACK’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 29 28 PAUL, PLEVIN, SULLIVAN & CONNAUGHTON LLP ended his employment for a legitimate and non-discriminatory reason, and he has no evidence of pretext. His discrimination claim therefore fails as a matter of law. B. Mr. Gibson’s Failure to Accommodate Cause of Action Lacks Merit as a Matter of Law. Mr. Gibson’s failure to accommodate claim fails as well. The elements of a claim for failure to accommodate are: (1) the employee had a recognized disability, (2) the employee could perform the essential functions of the job with or without reasonable accommodation, and (3) the employer failed to reasonably accommodate the employee’s disability. (Nealy, supra, 234 Cal. App.4th at p. 373.) As a matter of law, Mr. Gibson could not perform the essential functions of his job and no reasonable accommodation would have permitted him to do so. 1. Mr. Gibson Could Not Perform the Essential Functions of his Job. As discussed above in Section III.A.1, Mr. Gibson has been completely unable to work since March 2016. Accordingly, he cannot establish that he was able to perform the essential functions of his job, negating an essential element of his failure to accommodate claim. 2. No Reasonable Accommodation Would Have Permitted Mr. Gibson to Perform the Essential Functions of His Job. Nor would any accommodation have permitted Mr. Gibson to perform his job. D&W specifically considered two potential accommodations: (1) reassigning Mr. Gibson to another vacant position, and (2) granting a further leave of absence. Neither was possible given Mr. Gibson’s doctor’s restrictions. a. D&W Had No Vacant Positions that Could Accommodate Mr. Gibson’s Limitations. D&W first considered whether it could reassign Mr. Gibson to a vacant position as an accommodation. (Morales Decl. 44 7-10.) However, no vacant position existed for which Mr. Gibson was qualified or could perform with his limitations. (/d.) For example, D&W considered whether Mr. Gibson could work as a machine operator or packer on the plant floor. (Morales Decl. 49 7, 9.) The essential functions of both positions include feeding product into the production machines, packing a wide variety of products, and 17 DEFENDANT D&W FINE PACK’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 29 28 PAUL, PLEVIN, SULLIVAN & CONNAUGHTON LLP constant lifting/carrying and pushing/pulling of up to 50 pounds. (/d.; Exs. F & G.) Mr. Gibson could not perform the essential functions of either position because he could not perform any physical activity. (Morales Decl. 9 8, 10; see Ex. B.) Additionally, Mr. Gibson had to have an oxygen tank with him at all times, which meant he could not perform the function of feeding product into the machine. (/d.; see Tr. at 153:9-154:17.) Nor did D&W have any open office jobs or other sedentary jobs at the San Bernardino location for which Mr. Gibson was qualified. (Morales Decl. 4 11.) Because D&W had no open positions for which Mr. Gibson was qualified or which he could have performed with his disability, D&W had no duty to reassign Mr. Gibson. (Nealy, 234 Cal.App.4th at p. 377 [holding that where it was undisputed that employer had no other vacant positions for which plaintiff was qualified, the employer was “relieved of its duty to reassign™].) b. D&W Was Not Obligated to Grant Mr. Gibson an Indefinite Leave of Absence As a Matter of Law. Because D&W had no open positions Mr. Gibson could perform, the only applicable accommodation was a leave of absence. However, as discussed above, an indefinite leave of absence is not a reasonable accommodation as a matter of law. (See Hanson, supra, 74 Cal.App.4th at pp. 226-227 [“Reasonable accommodation does not require the employer to wait indefinitely for an employee’s medical condition to be corrected.”]; Nealy, supra, 234 Cal. App 4th at pp. 377-378.) [“FEHA does not require the employer to provide an indefinite leave of absence to await possible future vacancies.”]; Canupp, supra, 181 F.Supp.3d at pp. 777-778 [“indefinite leave is not a reasonable accommodation.”].) Because no reasonable accommodation would have permitted Mr. Gibson to perform his job, his failure to accommodate claim fails as a matter of law. C. Mr. Gibson’s Failure to Engage in the Interactive Process Cause of Action Lacks Merit as a Matter of Law. The FEHA requires that employers engage in a good faith interactive process with a disabled employee to explore reasonable accommodations. (Wysinger v. Automobile Club of Southern California (2007) 157 Cal. App.4th 413, 424.) FEHA does not require ritualized 18 DEFENDANT D&W FINE PACK’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 29 28 PAUL, PLEVIN, SULLIVAN & CONNAUGHTON LLP discussions, but only that the employer engage in an informal communicative process. (Wilson v. County of Orange (2009) 169 Cal.App.4th 1185, 1195.) Importantly, to prevail on a claim for failure to engage in the interactive process, the employee must not only show a failure to communicate, but must also identify an available reasonable accommodation that would have been available at the time the interactive process should have occurred. (Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1018.) “[T]he employee should be able to identify specific, available reasonable accommodations through the litigation process, and particularly by the time the parties have conducted discovery and reached the summary judgment stage.” (Nealy, supra, 234 Cal. App.4th at p. 379.) Mr. Gibson cannot establish that D&W failed to communicate with him or that a reasonable accommodation existed that would have accommodated his limitations. There is no dispute D&W did engage in the interactive process. (See Morales Decl. 99 4- 11; Tr. at 150:18-152:2.) After Mr. Gibson’s FMLA leave expired on or about June 7, 2016, D&W granted Mr. Gibson an additional one month leave of absence to provide time to complete the interactive process. (Kellogg Decl. § 12.) Ms. Morales even sent Mr. Gibson a letter on June 24,2016 with an interactive process questionnaire. (Morales Decl. § 4.) After receiving his doctor’s response, Ms. Morales called Mr. Gibson and requested to meet with him. (Id. 46.) Mr. Gibson informed Ms. Morales that his medical condition prevented him from leaving his home. (Id.) Accordingly, Ms. Morales discussed potential accommodations with Mr. Gibson over the phone, including moving Mr. Gibson to the machine operator or packer positions, but Mr. Gibson could not perform the physical duties of either position. (Id. qq 7-10; Tr. at 150:18-152:2.) Ms. Morales also considered moving Mr. Gibson to a sedentary office position, but D&W had no open office positions Mr. Gibson was qualified to perform. (Morales Decl. § 11.) D&W also considered whether it could continue to accommodate Mr. Gibson being out on leave, but because Mr. Gibson required an indefinite leave of absence and the ongoing costs of covering for his absence were unduly burdensome, D&W could not do so. (Rauterkus Decl. 99 10-12.) Moreover, as discussed above, an indefinite leave of absence is not a reasonable accommodation. (See supra, Section I1I.A.1.c.) After Ms. Morales discussed potential 19 DEFENDANT D&W FINE PACK’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 29 28 PAUL, PLEVIN, SULLIVAN & CONNAUGHTON LLP accommodations with Mr. Gibson, D&W received a letter from an organ transplant facility. (Morales Decl. § 13.) This letter did not provide any new or additional information, but instead simply confirmed Mr. Gibson needed a double lung transplant and would be out of work for an indefinite amount of time. (/d.) Ms. Morales therefore reasonably concluded there was no need to discuss any new or different accommodations with Mr. Gibson. (/d.) Because D&W discussed all possible accommodations of Mr. Gibson’s medical condition and no reasonable accommodation would have permitted Mr. Gibson to perform his job, Mr. Gibson’s interactive process claim fails as a matter of law. (See Nealy, supra, 234 Cal.App.4th at p. 380 [“The City has carried its burden by showing Nealy possesses no evidence of reasonable accommodations available at the time of the interactive process.”].) D. Mr. Gibson’s Retaliation Claim Fails as a Matter of Law. California courts apply the McDonnell Douglas burden shifting framework to retaliation claims. To establish a prima facie claim, Mr. Gibson must show: (1) he engaged in a protected activity; (2) D&W took an “adverse employment action” against him; and (3) a causal link exists between the protected activity and D&W’s actions. (Yanowitz v. L'Oreal USA Inc. (2005) 36 Cal.4th 1028, 1042.) D&W can then provide a legitimate, non-retaliatory reason for the action, at which point Mr. Gibson must prove intentional retaliation. (Id. [“[I]f the employer produces a legitimate reason for the adverse employment action, the presumption of retaliation ‘drops out of the picture,” and the burden shifts back to the employee to prove intentional retaliation.”].) Mr. Gibson cannot establish a prima facie retaliation case because he cannot show D&W took any action against him because of his protected activity. Mr. Gibson also cannot rebut D&W'’s legitimate, non-retaliatory reasons for terminating his employment, and has no evidence those good faith reasons were merely pretext for retaliation. 1. D&W Did Not End Mr. Gibson’s Employment Because He Complained About His Supervisor or Requested a Leave of Absence. Mr. Gibson alleges he complained that his supervisor made him participate in stretching exercises, recorded his start and stop times, called him an imbecile, reprimanded him for taking too long to make deliveries, and told other employees she wanted to replace him. (Tr. at 128:7- 20 DEFENDANT D&W FINE PACK’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 29 28 PAUL, PLEVIN, SULLIVAN & CONNAUGHTON LLP 130:18.) But, even if 100% true, there is no causal connection between these alleged complaints and the conclusion of Mr. Gibson’s employment. Mr. Gibson alleges he complained in August 2015. (Tr. at 129:7-9.) D&W ended Mr. Gibson’s employment nearly a year later, in July 2016. (Kellogg Decl. 4 16.) A delay of nearly a year between the alleged protected activity and the adverse employment action precludes any inference of causation as a matter of law. (See Cornwell v. Electra Cent. Credit Union (9th Cir. 2006) 439 F.3d 1018, 1036 [seven-month delay between protected activity and adverse employment action insufficient to give rise to inference of causation]; Manatt v. Bank of America, NA, (9th Cir. 2003) 339 F.3d 792, 802 [no inference of retaliation where nine months elapsed between the date of complaint and alleged adverse decisions].) As for requesting leave, Mr. Gibson requested and took numerous leaves of absence while he worked at D&W and returned from each leave without incident, including a thirteen-week leave in 2009, a seven-week leave in 2014, and a three-week leave in April 2015. (Kellogg Decl. 199-11.) D&W’s long history of accommodating Mr. Gibson with leaves of absence rebuts any inference of causation between his last leave request and his termination. 2. D&W Ended Mr. Gibson’s Employment for a Legitimate, Non-Retaliatory Reason: He Was Completely Unable Work. Furthermore, D&W had a legitimate, non-retaliatory reason for ending Mr. Gibson’s employment: Mr. Gibson was completely unable to work. (Tr. at 64:25-66:5; Exs. B & C; Rauterkus Decl. § 12.) An employee’s inability to perform the essential functions of his job is a legitimate, non-retaliatory reason for termination. (Lawler v. Montblanc North America, LLC (9th Cir. 2013) 704 F.3d 1235, 1244; see Dep’t of Fair Employment and Housing v. Lucent Techs, Inc. (9th Cir. 2011) 642 F.3d 728, 746 [“[ There is no genuine issue of material fact as to Carauddo’s inability to perform the essential functions of the installer position, and Lucent’s inability to reasonably accommodate him. This same evidence establishes a legitimate, nondiscriminatory reason for Carauddo’s termination.”].) Lawler is instructive. In that case the plaintiff requested disability leave in September 2009 and submitted a doctor’s note to be off work until January 2010. (704 F.3d at p. 1240.) The 21 DEFENDANT D&W FINE PACK’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 29 28 PAUL, PLEVIN, SULLIVAN & CONNAUGHTON LLP defendant terminated her employment in October 2009 because she was unable to return to work for four months. (/d. at p. 1241.) On summary judgment, Defendant proffered as a legitimate, non-retaliatory reason for termination the fact that the doctor’s note provided no fixed return date and the company needed a manager to handle plaintiffs store. (/d. at p. 1243.) Although plaintiff’s absence from work was caused by her disability, the court held the “FEHA only 6 requires the reason to be ‘facially unrelated to prohibited bias,””” and defendant’s “stated reason was based on business concerns.” (Id. at p. 1244.) The court therefore affirmed summary judgment for the employer on plaintiff’s retaliation claim. (Id.) The facts here are nearly identical. D&W ended Mr. Gibson’s employment after granting him five months of leave, after learning that he was, and would be, unable to work and D&W needed someone to perform local deliveries. Just like in Lawler, D&W had a legitimate, non- retaliatory reason for ending Mr. Gibson’s employment and summary judgment should be granted. 3. Mr. Gibson Has No Evidence of Pretext. As set forth in Section II1.A.3, Mr. Gibson has no evidence of pretext. Given these undisputed facts, Mr. Gibson cannot establish retaliation as a matter of law. E. Gibson’s Wrongful Termination Cause of Action Lacks Merit as a Matter of Law. Mr. Gibson’s wrongful termination claim is entirely derivative of, and duplicative of, his FEHA claims. (See SAC q 113.) Because Mr. Gibson has failed to raise a genuine dispute of material fact as to any of his FEHA claims, his wrongful termination claim also fails. (See Hanson, supra, 74 Cal.App.4th at p. 229 [“[B]ecause Hanson’s FEHA claim fails, his claim for wrongful termination in violation of public policy fails.”].) F. Gibson’s Failure to Prevent Cause of Action Lacks Merit As a Matter of Law. Because Mr. Gibson's discrimination and retaliation claims fail, his failure to prevent claim fails as well.” (Trujillo v. North County Transit Dist. (1998) 63 Cal. App.4th 280, 289 7 1t is unclear whether Mr. Gibson alleges a claim for failure to prevent harassment. (See SAC 991 82-98.) To the extent he does, that claim fails because Mr. Gibson cannot prove harassment as a matter of law, for the reasons set forth in Sally Young’s and Laura Morales’s Motions for Summary Judgment or, in the alternative, SHEELy Adjudication, filed concurrently herewith. DEFENDANT D&W FINE PACK’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 29 28 PAUL, PLEVIN, SULLIVAN & CONNAUGHTON LLP [“Employers should not be held liable to employees for failure to take necessary steps to prevent such conduct, except where the actions took place and were not prevented.”].) G. The Court Should Grant Summary Judgment as to Plaintiff’s Punitive Damages Claim. Mr. Gibson’s claim for punitive damages also fails as a matter of law. To recover punitive damages against D&W, Mr. Gibson must show, by clear and convincing admissible evidence, that a corporate officer, director, or managing agent was guilty of oppression, fraud, or malice. (Civ. Code § 3294(a)-(b).) [M]anaging agents are employees who exercise[] substantial discretionary authority over decisions that ultimately determine corporate policy.” (Cruz v. HomeBase (2000) 83 Cal. App.4th 160, 167.) Fraud is intentional misrepresentation, deceit, or concealment of a material fact with the intention of causing injury. (Civ. Code § 3294(c)(3).) Malice is conduct “intended to cause injury” or “despicable conduct” with willful and conscious disregard of the rights of others. (Civ. Code § 3294(c)(1).) Oppression “despicable conduct” that subjects a person to cruel and unjust hardship in conscious disregard of their rights. (Civ. Code § 3294(c)(2).) Mr. Gibson has no evidence of any fraud, malice, or oppression by any D&W employee, let alone an officer, director, or managing agent. Mr. Gibson cannot prove fraud because he cannot prove any D&W employee intentionally deceived him with intent to cause injury. Nor can Mr. Gibson point to any despicable conduct, let alone such conduct by an officer, director, or managing agent. Malice and oppression require conduct “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.) “Mere carelessness or ignorance” does not justify punitive damages. (Id. at p. 1051.) Importantly, “wrongful termination, without more, will not sustain a finding of malice or oppression.” (Scott v. Phoenix Schools, Inc. (2009) 175 Cal.App.4th 702, 717 [emphasis added].) D&W ended Mr. Gibson’s employment only after going through the interactive process and learning from Mr. Gibson’s doctor that he could not perform the essential functions of his job or any other open job, and would be unable to do so indefinitely. Even if D&W’s decision might 23 DEFENDANT D&W FINE PACK’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 29 28 PAUL, PLEVIN, SULLIVAN & CONNAUGHTON LLP look harsh or unfair in hindsight, it was not so “vile, base, contemptible, miserable, wretched or loathsome” as to support punitive damages. Moreover, by examining each individual Mr. Gibson accuses of wrongdoing, the role that individual played in the decision to end his employment, and their position in the Company, it is clear no officer, director, or managing agent of D&W engaged in conduct supporting punitive damages. Laura Morales. Ms. Morales was an HR Generalist for D&W’s San Bernardino facility. In 2016, D&W had 17 HR employees. (Kellogg Decl. 421.) Ms. Morales did not supervise any of these employees. (Id.) Ms. Morales had no authority to determine D&W’s corporate policy, either within HR or more broadly. (/d.) Sally Young. Ms. Young was the Warehouse Manager for D&W’s San Bernardino location. (Kellogg Decl. 924.) Ms. Young could make no decisions regarding any other D&W facilities or its corporate policies. (Id.) Ms. Young recommended the termination of Mr. Gibson’s employment because he could not return to work for the foreseeable future. (Young Decl. § 3.) Tom Rauterkus. In 2016, Mr. Rauterkus was Supply Chain Manager for D&W’s San Bernardino facility. (Kellogg Decl. 425.) Mr. Rauterkus oversaw purchasing and delivery operations for that one facility. (Id.) He had no ability to make any decisions with regard to any other D&W facilities or D&W’s overall corporate policies. (I/d.) Mr. Rauterkus made the decision to end Mr. Gibson’s employment because he could not return to work for the foreseeable future and D&W needed a driver to perform local deliveries. (Rauterkus Decl. 49 11-12.) Mr. Gibson believed Mr. Rauterkus to be “a good dude.” (Tr. at 133:10-13.) Max Kosaka. In 2016, Mr. Kosaka was the Plant Manager for D&W’s San Bernardino facility. (Kellogg Decl. § 26.) Mr. Kosaka had no ability to make decisions with regard to D&W'’s overall corporate policies. (Id.) Mr. Kosaka’s role in Mr. Gibson’s termination was simply to approve the termination based on information provided to him by Ms. Morales and Mr. Rauterkus. (Kosaka Decl. 9 3.) Estella Kellogg. In July 2016, Ms. Kellogg was Human Resources Manager for D&W’s San Bernardino facility. (Kellogg Decl. 422.) Ms. Kellogg supervised only one HR employee. 24 DEFENDANT D&W FINE PACK’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 PAUL, PLEVIN, SULLIVAN & CONNAUGHTON LLP (Id.) Ms. Kellogg had no ability to determine corporate policy, either for HR or D&W generally. (Id.) Ms. Kellogg’s involvement in the termination decision was limited to providing guidance to Ms. Morales in the interactive process and approving the termination decision based on information provided to her by Ms. Morales and Mr. Rauterkus. (/d. 23.) Sandy Arneson. In 2016, Ms. Arneson was VP of Human Resources for D&W. (Arneson Decl. 2.) Ms. Arneson’s involvement in Mr. Gibson’s termination was simply approving the termination decision based on information provided to her by Ms. Kellogg. (Id. 9 3-4.) Simply approving a termination cannot support punitive damages. (Scott, supra, 175 Cal.App.4th at p. 717 [“wrongful termination, without more, will not sustain a finding of malice or oppression.”].) Based on the foregoing, it is clear no officer, director, or managing agent of D&W engaged in any conduct that was remotely despicable, base, vile, or fraudulent. The court should summarily adjudicate Mr. Gibson’s punitive damages claim in D&W’s favor. IV. CONCLUSION For the foregoing reasons, D&W requests that the Court grant summary judgment on all of Mr. Gibson's claims, or in the alternative, summary adjudication. Dated: May 1, 2020 PAUL, PLEVIN, SULLIVAN & CONNAUGHTON LLP By: x Ge E. JOSEPH CONNAUGHTON PAUL BATCHER Attorneys for Defendants D&W FINE PACK, SALLY YOUNG, and LAURA MORALES 25 DEFENDANT D&W FINE PACK’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION
