Daniel Veloz v. Sears Roebuck And Co et al

NOTICE OF MOTION AND MOTION for Partial Summary Judgment as to First, Second, Third, Fourth, Fifth and Sixth Causes of Action

C.D. Cal.April 3, 2017

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEFENDANT’S NOTICE OF MOTION AND MOTION FOR PARTIAL SUMMARY JUDGMENT 38252087v.1 SEYFARTH SHAW LLP Jonathan L. Brophy (SBN 245223) jbrophy@seyfarth.com 2029 Century Park East, Suite 3500 Los Angeles, California 90067-3021 Telephone: (310) 277-7200 Facsimile: (310) 201-5219 SEYFARTH SHAW LLP Dana J. Hadl (SBN 224636) dhadl@seyfarth.com 333 S. Hope Street, Suite 3900 Los Angeles, California 90071 Telephone: (213) 270-9600 Facsimile: (213) 270-9601 Attorneys for Defendant SEARS, ROEBUCK AND CO. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA DANIEL VELOZ, an individual, Plaintiff, v. SEARS, ROEBUCK and CO., a Corporation; and DOES 1-100, inclusive, Defendants. Case No. 2:16-CV-05982-SVW-GJS DEFENDANT SEARS, ROEBUCK AND CO.’S NOTICE OF MOTION AND MOTION FOR PARTIAL SUMMARY JUDGMENT Date: May 1, 2017 Time: 1:30 p.m. Dept: 10A Judge: Stephen V. Wilson Complaint Filed: May 17, 2016 Discovery Cut-off: April 17, 2017 Trial Date: May 30, 2017 Case 2:16-cv-05982-SVW-GJS Document 67 Filed 04/03/17 Page 1 of 4 Page ID #:1146 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 DEFENDANT’S NOTICE OF MOTION AND MOTION FOR PARTIAL SUMMARY JUDGMENT 38252087v.1 TO PLAINTIFF AND TO HIS ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on May 1, 2017, at 1:30 p.m., or as soon thereafter as may be heard in Courtroom 10A of the above-entitled court, located at 350 West 1st Street, Los Angeles, California, Defendant Sears, Roebuck and Co. (“Sears” or “Defendant”) will and hereby does, move the Court for an order pursuant to Fed. R. Civ. P. 56, for an order granting partial summary judgment in its favor and against Plaintiff Daniel Veloz (“Plaintiff”). This Motion is based on the grounds that: (i) there is no disputed or triable issue of material fact; (ii) Plaintiff cannot prove essential elements of his claims; and (iii) partial summary judgment in Sears’ favor is warranted as a matter of law. I. PLAINTIFF’S FIRST CAUSE OF ACTION FOR DISABILITY DISCRIMINATION FAILS AS A MATTER OF LAW ISSUE NO. 1: Plaintiff’s First Cause of Action for Disability Discrimination fails as a matter of law because Plaintiff cannot establish a prima facie case, including without limitation, that some circumstance suggests discriminatory motive behind his termination. ISSUE NO. 2: Plaintiff’s First Cause of Action for Disability Discrimination fails as a matter of law because Defendant has articulated a legitimate, nondiscriminatory reason for its actions and Plaintiff cannot show pretext. II. PLAINTIFF’S SECOND CAUSE OF ACTION FOR FAILURE TO TAKE ALL REASONABLE STEPS TO PREVENT DISCRIMINATION FAILS AS A MATTER OF LAW ISSUE NO. 3: Plaintiff’s Second Cause of Action for Failure to Take All Reasonable Steps to Prevent Discrimination fails as a matter of law because Plaintiff’s First Cause of Action For Disability Discrimination fails. Case 2:16-cv-05982-SVW-GJS Document 67 Filed 04/03/17 Page 2 of 4 Page ID #:1147 2 DEFENDANT’S NOTICE OF MOTION AND MOTION FOR PARTIAL SUMMARY JUDGMENT 38252087v.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 III. PLAINTIFF’S THIRD CAUSE OF ACTION FOR FAILURE TO ACCOMMODATE FAILS AS A MATTER OF LAW ISSUE NO. 4: Plaintiff’s Third Cause of Action for Failure to Accommodate fails as a matter of law because Plaintiff admits that Sears fully satisfied its duty to accommodate Plaintiff’s alleged disability. IV. PLAINTIFF’S FOURTH CAUSE OF ACTION FOR FAILURE TO ENGAGE IN THE INTERACTIVE PROCESS FAILS AS A MATTER OF LAW ISSUE NO. 5: Plaintiff’s Fourth Cause of Action for Failure to Engage in the Interactive Process fails as a matter of law because Plaintiff admits that Sears fully satisfied its duty to accommodate Plaintiff’s alleged disability and Plaintiff failed to engage in the interactive process. V. PLAINTIFF’S FIFTH CAUSE OF ACTION FOR WRONGFUL TERMINATION FAILS AS A MATTER OF LAW ISSUE NO. 6: Plaintiff’s Fifth Cause of Action for Wrongful Termination fails as a matter of law because Plaintiff cannot establish a prima facie case, including without limitation, that Plaintiff’s First Cause Of Action For Disability Discrimination fails. VI. PLAINTIFF’S SIXTH CAUSE OF ACTION FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS FAILS AS A MATTER OF LAW ISSUE NO. 7: Plaintiff’s Sixth Cause of Action for Intentional Infliction of Emotional Distress fails as a matter of law because Plaintiff cannot establish “extreme and outrageous conduct.” ISSUE NO. 8: Plaintiff’s Sixth Cause of Action for Intentional Infliction of Emotional Distress fails as a matter of law because the Workers’ Compensation Act precludes Plaintiff’s Intentional Infliction of Emotional Distress Claim. Case 2:16-cv-05982-SVW-GJS Document 67 Filed 04/03/17 Page 3 of 4 Page ID #:1148 3 DEFENDANT’S NOTICE OF MOTION AND MOTION FOR PARTIAL SUMMARY JUDGMENT 38252087v.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ISSUE NO. 9: Plaintiff’s Sixth Cause of Action for Intentional Infliction of Emotional Distress fails as a matter of law because the managerial privilege precludes Plaintiff’s Intentional Infliction of Emotional Distress Claim. VII. PLAINTIFF’S CLAIM FOR PUNITIVE DAMAGES FAILS AS A MATTER OF LAW ISSUE NO. 10: To the extent that the Complaint alleges a causes of action for punitive damages, it fails because Plaintiff has not shown by clear and convincing evidence that an officer, director, or managing agent of Sears acted with malice, oppression, or fraud. This Motion is made following the conference of counsel pursuant to Central District Local Rule 7-3, which took place on March 14, 2017, March 16, 2017, March 20, 2017 and March 23, 2017. This Motion will be based on the accompanying Memorandum of Points and Authorities, the supporting Statement of Uncontroverted Facts and Conclusions of Law, the Appendix of Evidence, exhibits, and declarations in support thereof, and all other papers and pleadings on file herein, as well as any such additional argument and evidence as may be presented to the Court at or prior to the hearing on this Motion. DATED: April 3, 2017 SEYFARTH SHAW LLP By: /s/ Dana J. Hadl Jonathan L. Brophy Dana J. Hadl Attorneys for Defendant SEARS, ROEBUCK AND CO. Case 2:16-cv-05982-SVW-GJS Document 67 Filed 04/03/17 Page 4 of 4 Page ID #:1149 MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR PARTIAL SUMMARY JUDGMENT 38250383v.8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SEYFARTH SHAW LLP Jonathan L. Brophy (SBN 245223) jbrophy@seyfarth.com 2029 Century Park East, Suite 3500 Los Angeles, California 90067-3021 Telephone: (310) 277-7200 Facsimile: (310) 201-5219 SEYFARTH SHAW LLP Dana J. Hadl (SBN 224636) dhadl@seyfarth.com 333 S. Hope Street, Suite 3900 Los Angeles, California 90071 Telephone: (213) 270-9600 Facsimile: (213) 270-9601 Attorneys for Defendant SEARS, ROEBUCK AND CO. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA DANIEL VELOZ, an individual, Plaintiff, v. SEARS, ROEBUCK and CO., a Corporation; and DOES 1-100, inclusive, Defendants. Case No. 2:16-CV-05982-SVW-GJS DEFENDANT SEARS, ROEBUCK AND CO.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT Date: May 1, 2017 Time: 1:30 p.m. Dept: 10A Judge: Stephen V. Wilson Complaint Filed: May 17, 2016 Discovery Cut-off: April 17, 2017 Trial Date:May 30, 2017 Case 2:16-cv-05982-SVW-GJS Document 67-1 Filed 04/03/17 Page 1 of 29 Page ID #:1150 i MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR PARTIAL SUMMARY JUDGMENT 38250383v.8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF CONTENTS Page I. STATEMENT OF UNDISPUTED FACTS..............................................................1 A. Sears Hires Plaintiff As A Loss Prevention Associate ...................................2 B. Sears Trains Plaintiff On Its Anti-Discrimination And Anti- Retaliation Policies..........................................................................................2 C. Sears Trains Plaintiff That Safety Comes First...............................................2 D. Plaintiff Chases A Shoplifting Suspect Outside The Store’s Boundaries, Resulting In A Significant Injury................................................3 E. Sears Provides Plaintiff Medical Leave For Nearly A Month Until His Doctor Releases Him To Return To Work......................................................4 F. Plaintiff’s Doctor Releases Plaintiff To Return To Work And Plaintiff Never Submits Any Request For Additional Leave Or Otherwise Complains That He Is Not Ready To Return To Work ..................................5 G. Sears Investigates The Incident And Determines That Plaintiff Violated The Boundary Policy When He Pursued The Suspect.....................6 H. Plaintiff’s Doctor Releases Plaintiff To Return To Work With Restrictions, And Plaintiff Never Communicates To Sears That His Restrictions Were Not Being Followed ..........................................................7 I. After Plaintiff Returns To Work, Plaintiff Explains That He Had Identified Himself As A Loss Prevention Associate And That He Had Asked The Suspect to Return To The Loss Prevention Office And Was Stabbed On A Street Beyond The Store’s Boundaries ...........................8 J. Sears Decides To Terminate Plaintiff’s Employment For Violating Company Policy ..............................................................................................8 II. PLAINTIFF’S FIRST CAUSE OF ACTION FOR DISABILITY DISCRIMINATION FAILS AS A MATTER OF LAW BECAUSE PLAINTIFF CANNOT ESTABLISH A PRIMA FACIE CASE AND SEARS HAD A LEGITIMATE, NON-PRETEXTUAL REASON TO TERMINATE PLAINTIFF’S EMPLOYMENT.......................................................9 A. Plaintiff Cannot Establish A Prima Facie Case of Discrimination Because There Is No Evidence That Sears Terminated Plaintiff “Because Of” His Alleged Disability............................................................12 B. Sears Had A Legitimate Non-Discriminatory Reason To Terminate Plaintiff’s Employment And Plaintiff Cannot Establish Pretext ..................13 C. Plaintiff Has Nothing More Than Speculation To Question The Reason For His Termination .........................................................................16 D. Temporal Proximity Does Not Establish Pretext..........................................17 Case 2:16-cv-05982-SVW-GJS Document 67-1 Filed 04/03/17 Page 2 of 29 Page ID #:1151 ii MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR PARTIAL SUMMARY JUDGMENT 38250383v.8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 III. PLAINTIFF’S THIRD CAUSE OF ACTION FOR FAILURE TO ACCOMMODATE AND FOURTH CAUSE OF ACTION FOR FAILURE TO ENGAGE IN THE INTERACTIVE PROCESS FAIL AS A MATTER OF LAW BECAUSE IT IS UNDISPUTED THAT SEARS PROVIDED EVERY REASONABLE ACCOMMODATION THAT PLAINTIFF REQUESTED..........................................................................................................17 IV. PLAINTIFF’S SECOND CAUSE OF ACTION FOR FAILURE TO TAKE ALL REASONABLE STEPS TO PREVENT DISCRIMINATION AND FIFTH CAUSE OF ACTION FOR WRONGFUL TERMINATION FAIL AS A MATTER OF LAW BECAUSE THEY ARE DERIVATIVE OF OTHER FAILED CLAIMS.....................................................................................19 V. PLAINTIFF’S SIXTH CAUSE OF ACTION FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS FAILS AS A MATTER OF LAW ........................................................................................................................20 A. Plaintiff Has Set Forth No “Extreme And Outrageous Conduct”.................22 B. The Workers’ Compensation Act Precludes An IIED Claim .......................22 C. The Managerial Privilege Precludes An IIED Claim....................................24 VI. PLAINTIFF’S CLAIM FOR PUNITIVE DAMAGES FAILS AS A MATTER OF LAW.................................................................................................24 VII. CONCLUSION........................................................................................................26 Case 2:16-cv-05982-SVW-GJS Document 67-1 Filed 04/03/17 Page 3 of 29 Page ID #:1152 1 MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR PARTIAL SUMMARY JUDGMENT 38250383v.8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Defendant Sears, Roebuck and Co. (“Sears”) terminated the employment of Plaintiff Daniel Veloz (“Plaintiff”), a former Loss Prevention Associate, after he violated one of Sears’ most important rules: safety first. After Plaintiff chased a shoplifting suspect out of the store and beyond the store’s boundaries in direct contravention of Sears’ policies, he put himself in danger and was stabbed. Sears determined that Plaintiff had violated its boundary policies and exercised poor judgment. Plaintiff’s testimony defeats the claims he now alleges. Plaintiff admits that he understood Sears’ safety and boundary policies. Plaintiff admits that Sears taught him to never pursue a suspect beyond the store’s boundaries. Indeed, Plaintiff also admits that Sears required him to always keep a safe distance between himself and a suspect. Nevertheless, Plaintiff admitted that he ran out of the store, identified himself as a Loss Prevention Associate and ordered the suspect to return to the store. The suspect then stabbed Plaintiff on a street near the store and well beyond the boundaries. Plaintiff also concedes that Sears provided him with a leave of absence and only returned him to work upon his doctor’s release. Plaintiff admits that he never submitted any other doctor’s notes requesting accommodations or otherwise complained that his accommodations were not being met. Thus, Plaintiff’s claims for failure to accommodate a disability and for failure to engage in the interactive process fail as a matter of law. Further, because Plaintiff’s intentional infliction of emotional distress claim is premised on this alleged discrimination, that claim must fail as well. I. STATEMENT OF UNDISPUTED FACTS No material fact is disputed. Indeed, nearly all facts herein are taken from Plaintiff’s own sworn deposition testimony, or documents that Plaintiff authenticated. Thus, Sears is entitled to partial summary judgment as a matter of law.1 1/ Sears is not seeking summary judgment as to Plaintiff’s seventh cause of action for failure to provide employment records. Case 2:16-cv-05982-SVW-GJS Document 67-1 Filed 04/03/17 Page 4 of 29 Page ID #:1153 2 MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR PARTIAL SUMMARY JUDGMENT 38250383v.8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A. Sears Hires Plaintiff As A Loss Prevention Associate Sears is a national retailer of consumer products. At all relevant times, Plaintiff worked for Sears as a Loss Prevention Associate at a store located in Pasadena, California, Unit No. 1048. (Statement of Uncontroverted Material Facts “SUMF” No. 1, Pl. Dep. 70:17-19.)2 On May 2, 2014, Sears hired Plaintiff as a Loss Prevention Associate. (See Compl. ¶ 9.) On that same date, May 2, 2014, Plaintiff acknowledged receipt of Sears’ Employee Handbook. (SUMF No. 2, Pl. Dep., 85:7-18, Ex. 28.) The acknowledgment provides, “I understand and agree to abide by and be bound by the rules, policies, and standards set forth in the Handbook and Company policy.” (Pl. Dep., 85:7-18, Ex. 28.) B. Sears Trains Plaintiff On Its Anti-Discrimination And Anti-Retaliation Policies Plaintiff understood during his employment that he had access to the company’s handbook. (SUMF No. 3, Pl. Dep., 86:19-22.) Plaintiff was trained on Sears’ EEO and anti-discrimination policies. (SUMF No. 4, Pl. Dep., 78:1-20, 81:2-4, Ex. 27.) Plaintiff was also trained that the company had an anti-retaliation policy. (Pl.’s Dep., 199:17-19.) C. Sears Trains Plaintiff That Safety Comes First Gilbert Gonzales, Loss Prevention Manager, hired Plaintiff. (Pl.’s Dep., 74:25- 75:2.) Gonzales treated Plaintiff fairly during his employment. (Pl. Dep., 75:3-6.) To become a Sears Loss Prevention Associate, Plaintiff had to be certified. (SUMF No. 5, Pl.’s Dep., 129:24-130:1.) Gonzales trained Plaintiff as a Loss Prevention associate. (SUMF No. 6, Pl.’s Dep., 75:8-10.) As part of the Loss Prevention training, Plaintiff went through a series of on-line trainings. (SUMF No. 7, Pl. Dep., 75:11-13.) Plaintiff also did on-the-job training. (SUMF No. 8, Pl. Dep., 75:14-16.) Not including 2 / Deposition testimony not set forth as an Uncontroverted Fact is referenced as “([page]:[line]).” Copies of the deposition pages and exhibits cited herein are included in the concurrently filed Appendix of Evidence. Case 2:16-cv-05982-SVW-GJS Document 67-1 Filed 04/03/17 Page 5 of 29 Page ID #:1154 3 MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR PARTIAL SUMMARY JUDGMENT 38250383v.8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the in-person training provided to him, Plaintiff took approximately 70 training courses over the course of his employment. (Pl.’s Dep., 80:6-81:4, Ex. 27.) Sears taught Plaintiff how to detect a shoplifter. (SUMF No. 9, Pl.’s Dep., 96:14- 16.) Sears also taught Plaintiff how to apprehend or stop a shoplifter. (SUMF No. 10, Pl.’s Dep., 96:17-19.) Plaintiff was trained that even if he wasn’t making an apprehension and was observing a suspect, he was supposed to keep a safe distance. (SUMF No. 11, Pl.’s Dep., 212:2-16.) Plaintiff understood that Loss Prevention associates were never allowed to chase somebody. (SUMF No. 12, Pl.’s Dep., 170:16-17.) Plaintiff also learned that he could not attempt to apprehend a suspect past the store’s boundaries, which he believed to be the sidewalk outside of the store. (SUMF No. 13, Pl.’s Dep., 150:24 -151:17; 67:3-10.) Specifically, Plaintiff understood, through Sears’ training, that “[o]nce a subject passes the established boundaries, the LP detective/ associates must discontinue the shoplifter apprehension.” (SUMF No. 14, Pl.’s Dep., 202:10-21.) Specifically, throughout all of his trainings, whether they were e-trainings, or classroom trainings, or on-the-job trainings, Sears reiterated that safety came first: Q: And in those trainings, the company reiterated that safety always came first; correct? A. Correct. Q. Okay. And that was throughout all of your other trainings, whether they were E trainings or classroom trainings or on-the-job trainings; correct? A. Correct. (SUMF No. 15, Pl.’s Dep., 96:20-97:1.) D. Plaintiff Chases A Shoplifting Suspect Outside The Store’s Boundaries, Resulting In A Significant Injury On April 20, 2015, Plaintiff was stabbed by a shoplifter. (Pl.’s Dep., 36:13-15.). That evening, Plaintiff was monitoring the interior of the store when he was alerted to the presence of a possible shoplifter. (Pl.’s Dep., 122:2-16, Ex. 31, “I was doing routine monitoring of the cameras.”) Case 2:16-cv-05982-SVW-GJS Document 67-1 Filed 04/03/17 Page 6 of 29 Page ID #:1155 4 MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR PARTIAL SUMMARY JUDGMENT 38250383v.8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff alerted his co-worker and Loss Prevention Associate, Erick Villanueva, that Plaintiff had noticed a suspicious man in the store. (Pl.’s Dep., 118:23-119:1.) Villanueva then observed the suspect in person, out on the sales floor, while Plaintiff continued to observe the suspect from the surveillance monitors. (Pl.’s Dep., 130:13-131:3.) Plaintiff alerted Villanueva that he had seen the suspect take two drills from a display. (Pl. Dep., 131:5-9.) The suspect then exited the store without paying for the drills (Pl.’s Dep., 122:2- 16, Ex. 31, “He selected two Dewalt drills. Suspect ran out through hardware doors failing to pay for merchandise.”) Villanueva followed the suspect. (Pl.’s Dep., 123:16- 124:21, Ex. 32, “APA Erick Villanueva headed towards the hardware exit.”) Plaintiff then ran out of the Merchandise Pick Up (“MPU”) doors. (Pl. Dep., 69:14- 17, “Q. Did you walk out of the doors on the merchandise pick up doors on April 20th or did you run out of the doors? A. I ran out of the doors.”) Plaintiff, however, admits that he knew Villanueva was supposed to make the apprehension. (Pl. Dep., 168:22-169:18, Ex. 37, “Erick Villanueva was supposed to apprehend the suspect.”) Plaintiff then encountered the suspect and identified himself as a Sears Loss Prevention Associate and told the suspect to come back to the Loss Prevention office with him. (SUMF No. 16, Pl.’s Dep., 123:16-124:21, Ex. 32, “I stated that I was a Loss Prevention Associate and that he needed to come back to the Loss Prevention office with me.”) The suspect then stabbed Plaintiff in his left and right arm using a knife. (Pl.’s Dep., 123:16-124:21, Ex. 32, “The suspect then stabbed me in my left and right arm using a knife.”) Plaintiff informed Sears in his written statement that he had been stabbed on Sears Way, beyond the stores boundaries. (Pl.’s Dep., 123:16-124:21, Ex. 32, “The suspect stabbing occurred on Sears Way north of the Merchandise Pick Up Doors.”) E. Sears Provides Plaintiff Medical Leave For Nearly A Month Until His Doctor Releases Him To Return To Work Sears gave Plaintiff a leave of absence from April 21, 2015 until he returned to Case 2:16-cv-05982-SVW-GJS Document 67-1 Filed 04/03/17 Page 7 of 29 Page ID #:1156 5 MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR PARTIAL SUMMARY JUDGMENT 38250383v.8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 work on May 19, 2015. (SUMF No. 17, Pl.’s Dep., 34:11-14.) During Plaintiff’s leave (from April 21, 2015 through May 19, 2015), Plaintiff was in communication with the company’s Workers’ Compensation carrier, Sedgwick. (Pl.’s Dep., 37:4-7.) Plaintiff admits that in order to have a dialogue about whether he could return to work he needed to communicate with Sears. (SUMF No. 18, Pl.’s Dep., 55:12-17.) By his own admission, Plaintiff was responsible for returning to work when his doctor and his employer said he could, and that he had some say in it as well. (Pl.’s Dep., 43:2-8.) F. Plaintiff’s Doctor Releases Plaintiff To Return To Work And Plaintiff Never Submits Any Request For Additional Leave Or Otherwise Complains That He Is Not Ready To Return To Work On May 15, 2015, Dr. Obaid, who Plaintiff said saved his life and who Plaintiff trusted, indicated that Plaintiff could return to work with certain restrictions. (SUMF No. 19, Pl.’s Dep., 46:21-47:12, 49:1-4.) Plaintiff felt that Dr. Obaid had Plaintiff’s recovery first and foremost in her mind. (Pl.’s Dep., 44:21-45:12.) Plaintiff also understood that he had the ability to communicate directly with his doctor. (Pl.’s Dep., 43:10-13.) Plaintiff never contacted Sears’ Centralized Leave Management Team (“CLMT”) to request additional leave beyond the three weeks and three days that were granted. (SUMF No. 20, Pl.’s Dep., 52:2-9; 57:15-18.) Plaintiff did not contact CLMT directly to contest his return to work at all. (SUMF No. 21, Pl.’s Dep., 60:10-12.) Moreover, Plaintiff did not contact human resources to contest his return to work at all. (SUMF No. 22, Pl.’s Dep., 60:13-15.) Plaintiff didn’t communicate to anybody at the Sears HR hotline number that he needed or wanted additional leave. (SUMF No. 23, Pl.’s Dep., 102:21-23, 25-103:1.) Indeed, Plaintiff did not submit any documentation to Sears’ Leave Department asking for additional leave beyond what was provided. (SUMF No. 24, Pl.’s Dep., 101:17-21.) Plaintiff never submitted any other paperwork asking anyone at Sears for a leave of absence beyond what the company had already granted. (SUMF No. 25, Pl.’s Dep., 34:22-25.) Case 2:16-cv-05982-SVW-GJS Document 67-1 Filed 04/03/17 Page 8 of 29 Page ID #:1157 6 MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR PARTIAL SUMMARY JUDGMENT 38250383v.8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 G. Sears Investigates The Incident And Determines That Plaintiff Violated The Boundary Policy When He Pursued The Suspect Following the April 20 incident, Gonzales alerted Jeff Young, the Market Asset and Profit Protection Manager, about the incident and the nature of Plaintiff’s injury. (Elder Dep., 288:1-8, Ex. 22, Case Notes.) On April 21, 2015, Young visited the Pasadena location. (Elder Dep., 288:1-8, Ex. 22, Case Notes, “I (Jeffrey Young, Market Asset and Profit Protection Manager for Sears-Los Angeles) went to the Pasadena store to review the incident that took place on 4/20/2015 at 20:00.”). Young reviewed the surveillance video and spoke with Villanueva, who provided a witness statement. (Elder Dep., 288:1-8, Ex. 22, Case Notes.)3 Young spoke to Villanueva the day after the incident. Young determined that “Villanueva began running in the direction of the suspect . . . the suspect proceeded into the parking lot and Villanueva stopped, turned around and went back to the merchandise to recover the merchandise.” (Elder Dep., 288:1-8, Ex. 22, Case Notes). Young also “validated via CCTV playback that in fact, Villanueva retrieved the two Dewalt Combo Kits, ‘walked with them back into the store and then walked out of the store.’” (Elder Dep., 288:1-8, Ex. 22, Case Notes). Young also “checked the training and onboarding binders for both Villanueva and Veloz and both binders were complete including the Shoplift Detection and Detention Training and test.” (Elder Dep., 288:1-8, Ex. 22, Case Notes). Young found that “Veloz did leave the boundaries of the store and ended up confronting the suspect in the public street (approximately 90 feet from the MPU doors).” (Elder Dep., 288:1-8, Ex. 22, Case Notes). Young also found that, “good judgment was not used.” (Elder Dep., 288:1-8, Ex. 22, Case Notes.) 3/ The only direct communication that Plaintiff had with Young was after the stabbing incident where Young called Plaintiff on his cell phone to make sure Plaintiff was alright. (Pl.’s Dep., 245:6-11.) Case 2:16-cv-05982-SVW-GJS Document 67-1 Filed 04/03/17 Page 9 of 29 Page ID #:1158 7 MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR PARTIAL SUMMARY JUDGMENT 38250383v.8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Sears was not going to make a termination decision as to Plaintiff until he had the opportunity to provide a statement. (SUMF No. 26, Elder Dep., 261:12-18, “A termination decision was not going to be reached until there was an opportunity to get a witness statement from Mr. Veloz.”) H. Plaintiff’s Doctor Releases Plaintiff To Return To Work With Restrictions, And Plaintiff Never Communicates To Sears That His Restrictions Were Not Being Followed On May 19, 2015, Plaintiff returned to work with restrictions. (SUMF No. 27, Pl. Dep., 49:5-7 “Q. Okay. And you did return to work with restrictions on May 19, 2015; correct? A. Correct.”) The restrictions detailed in Plaintiff’s May 15, 2015 return to work note were listed by Plaintiff’s doctor as: no lifting or carrying, no pushing or pulling, no climbing, no crawling, no reaching above shoulder, no reaching outward, no handling/fingering, and no driving. (SUMF No. 28, Pl.’s Dep. 46:21-48:7, Ex. 25.) The restrictions also provided that Plaintiff could bend, squat/kneel, twist/turn, stand, walk, or sit “frequently” (34-66% of the time.) (SUMF No. 29, Pl.’s Dep. 46:21-48:7, Ex. 25.) The restrictions were limited to the unaffected, uninjured extremity. (SUMF No. 30, Pl. Dep., 48:21-25, Ex. 25.) At no point did Plaintiff communicate to anyone at Sears that his restrictions were not being respected. (SUMF No. 31, Pl.’s Dep., 258:8-15.) Plaintiff did not communicate to any of his managers that he had any concerns working with his modified restrictions. (SUMF No. 32, Pl.’s Dep., 111:10-13.) Moreover, at no point did he contact Human Resources to complain that he was having to do work under his modified work restrictions. (SUMF No. 33, Pl.’s Dep., 111:4-8.) Plaintiff did not recall having to participate in any restricted activities: he did not have to climb, crawl, push, pull, lift, carry anything with his injured arm or even drive. (SUMF No. 34, Pl.’s Dep., 105:13-107:17.) Sears even provided for Plaintiff’s transportation to and from work. (SUMF No. 35, Pl.’s Dep., 35:8-10.) Case 2:16-cv-05982-SVW-GJS Document 67-1 Filed 04/03/17 Page 10 of 29 Page ID #:1159 8 MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR PARTIAL SUMMARY JUDGMENT 38250383v.8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff is not aware of any other doctor’s notes with modified restrictions provided to the company other than Exhibit 25. (Pl.’s Dep., 103:7-104:10.) I. After Plaintiff Returns To Work, Plaintiff Explains That He Had Identified Himself As A Loss Prevention Associate And That He Had Asked The Suspect to Return To The Loss Prevention Office And Was Stabbed On A Street Beyond The Store’s Boundaries When Plaintiff returned to work, he provided three statements regarding the incident. (Pl.’s Dep., 122:2-16, Ex. 31; Pl.’s Dep., 123:16-124:21, Ex. 32; Pl.’s Dep., 168:22-169:18, Ex. 37.) In his May 19, 2015 written statement, Plaintiff explained that after the suspect exited the hardware doors, “I exited the Merchandise Pick Up Doors and made contact with the suspect.” (Pl.’s Dep., 123:16-124:21, Ex. 32.) Plaintiff’s written statement further provided that, “I stated that I was a Loss Prevention Associate and that he needed to come back to the Loss Prevention Office with me.” (Id.) Plaintiff informed Sears that after he had identified himself as a Loss Prevention Associate, the suspect stabbed him. (Id., “The suspect then stabbed me in my left and right arm using a knife.”) The stabbing occurred on the street, beyond the store’s sidewalk. (Pl.’s Dep., 123:16-124:21, Ex. 32, “The suspect stabbing occurred on Sears Way, north of the Merchandise Pick Up Doors.”). On May 21, 2015, Plaintiff provided a second statement where he provided his understanding of Sears’ Apprehension Policy: “My understanding of the Sears Apprehension Policy are that stops should not be made outside of the Store boundary.” (Pl.’s Dep., 168:22-169:18, Ex. 37.) J. Sears Decides To Terminate Plaintiff’s Employment For Violating Company Policy Young, together with Human Resources and Tess Viall, the Store Manager, determined that Plaintiff should be terminated for violating the Loss Prevention policy which prohibits Loss Prevention personnel from pursuing suspects beyond a Unit’s boundary. (SUMF No. 36, Response to Interrogatory No. 1: “Young, together with Case 2:16-cv-05982-SVW-GJS Document 67-1 Filed 04/03/17 Page 11 of 29 Page ID #:1160 9 MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR PARTIAL SUMMARY JUDGMENT 38250383v.8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Human Resources and Tess Viall, the Store Manager, determined that Plaintiff should be terminated for violating the Loss Prevention policy which prohibits Loss Prevention personnel from pursuing suspects beyond a Unit’s boundary.”) On June 5, 2015, Plaintiff met with Viall who informed him that he was being terminated for violating Sears’ policies. (SUMF No. 37, Pl.’s Dep., 259:19-22.) Plaintiff doesn’t recall if Viall told him that the policy violation included a violation of the company’s boundary policies. (Pl. Dep., 259:23-260:1.) Plaintiff does not know who made the decision to terminate his employment. (SUMF No. 38, Pl. Dep., 62:7-10.) Plaintiff does not know when the decision was made. (SUMF No. 39, Pl. Dep., 62:12-16.) Plaintiff does not know what information the person who made the decision relied on. (SUMF No. 40, Pl. Dep., 62:18-21.) II. PLAINTIFF’S FIRST CAUSE OF ACTION FOR DISABILITY DISCRIMINATION FAILS AS A MATTER OF LAW BECAUSE PLAINTIFF CANNOT ESTABLISH A PRIMA FACIE CASE AND SEARS HAD A LEGITIMATE, NON-PRETEXTUAL REASON TO TERMINATE PLAINTIFF’S EMPLOYMENT Plaintiff’s first cause of action is for disability discrimination in violation of the California Fair Employment Housing Act (“FEHA”). Plaintiff alleges Sears unlawfully discharged him in violation of the FEHA because of his alleged disability. However, it is undisputed that Sears determined that Plaintiff had violated Sears’ well-established boundary and safety policies, and was terminated because of this. To establish a prima facie case of disability discrimination under the FEHA, Plaintiff must establish: (1) he is a person with a disability or medical condition that limits major life activities; (2) he was a “qualified individual” capable of performing the essential functions of his job with or without accommodation; and (3) he suffered an adverse employment action because of his disability or medical condition. See Green v. State of California, 42 Cal. 4th 254 (2007). Case 2:16-cv-05982-SVW-GJS Document 67-1 Filed 04/03/17 Page 12 of 29 Page ID #:1161 10 MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR PARTIAL SUMMARY JUDGMENT 38250383v.8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Courts follow the burden shifting analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) for claims of discrimination. Guz v. Bechtel National, Inc., 24 Cal. 4th 317, 354-56 (2000).4 In the first phase, a plaintiff bears the burden of establishing a prima facie case of discrimination. Guz, 24 Cal. 4th at 354-56. Plaintiff may meet his initial burden by establishing a prima facie case by producing evidence that “give[s] rise to an inference of unlawful discrimination” or retaliation. See Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981) (“[P]laintiff must prove by a preponderance of the evidence … an inference of unlawful discrimination.”) Plaintiff may satisfy his burden by proffering direct evidence of discriminatory or retaliatory intent. Godwin v. Hunt Wesson Inc., 150 F.3d 1217, 1220 (9th Cir. 1998) (“The prima facie case may be based either on a presumption arising from the factors such as those set forth in McDonnell Douglas, or by more direct evidence of discriminatory intent.”); Guz, 24 Cal. 4th at 355 (a plaintiff “must at least show actions taken by the employer from which one can infer . . . that such actions were based on a prohibited discriminatory criterion.”) If the plaintiff meets his burden of establishing a prima facie case, the claim then moves to the second phase. The employer must then offer a “legitimate, non- discriminatory reason” for the challenged decision. Guz, 24 Cal. 4th at 355-56. If the employer offers a legitimate reason, “the presumption of discrimination disappears.” Id. If the employer offers a legitimate, nondiscriminatory motive for termination, the burden then shifts to the plaintiff in the final phase of the analysis. To prevail, the plaintiff must submit substantial evidence to show that the nondiscriminatory reason is pretextual, and that the true reason for the adverse employment action is, in fact, discrimination. Guz, 24 Cal. 4th at 356. 4/ It is appropriate to rely on federal authority in determining that Plaintiff’s discrimination claims fail as a matter of law. Guz, 24 Cal. 4th at 354 (“Because of the similarity between state and federal employment discrimination laws, California courts look to pertinent federal precedent when applying our own statutes.”). Case 2:16-cv-05982-SVW-GJS Document 67-1 Filed 04/03/17 Page 13 of 29 Page ID #:1162 11 MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR PARTIAL SUMMARY JUDGMENT 38250383v.8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A plaintiff can survive summary judgment only if he produces specific substantial evidence of pretext showing that there remains a genuine factual issue for trial. Martin v. Lockheed Missiles & Space Co., 29 Cal. App. 4th 1718, 1735 (1994) (affirming summary judgment for employer and noting, “the discharged employee, to avert summary judgment, must produce ‘substantial responsive evidence’ that the employer’s showing was untrue or pretextual.”); see also Hoskins v. BP Prods. N. Am., Inc., No. 13-cv-0574, 2014 WL 116280 at * 4 (C.D. Cal. Jan. 9, 2014) (granting summary judgment for employer and citing Munoz v. Mabus, 630 F.3d 856, 865 (9th Cir. 2010) (“Merely denying the credibility of the employer’s proffered reasons is insufficient to withstand summary judgment”); Lindsey v. Shalmy, 29 F.3d 1382, 1385 (9th Cir. 1994) (“Mere conclusory allegations of discriminatory intent, embodied in affidavits or deposition testimony, cannot be sufficient to avert summary judgment”); Accord Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018, 1028-29 n.6 (9th Cir. 2006) (a plaintiff cannot establish pretext solely by relying on subjective belief); Rodriguez v. IBM, 960 F. Supp. 227, 231 (N.D. Cal. 1997) (“Plaintiff’s subjective belief that [his employer’s] actions were discriminatorily motivated simply is not sufficient to withstand summary judgment.”).5 In the summary judgment context, Plaintiff’s evidence of pretext must be “specific” and “substantial” based on admissible factual evidence. See, Lawler v. Montblanc North America, LLC, 704 F.3d 1235, 1244 (9th Cir. 2013) ( affirming summary judgment, “A plaintiff must offer ‘specific’ and ‘substantial’ circumstantial 5/ See also Arteaga v. Brink’s, Inc., 163 Cal. App. 4th 327, 344 (2008) (summary judgment for the employer: “While an employer’s judgment or course of action may seem poor or erroneous to outsiders, the relevant question is . . . whether the given reason was a pretext. . . .” “The employer’s stated legitimate reason . . . does not have to be a reason that the judge or jurors would act on or approve”); McGrory v. Applied Signal Tech., Inc., 212 Cal. App. 4th 1510, 1534 (2013) (summary judgment for the employer: “the great weight of federal and California authority holds that an employer is entitled to summary judgment if, considering the employer’s innocent explanation for its actions, the evidence as a whole is insufficient to permit a rational inference that the employer’s actual motive was discriminatory”). Case 2:16-cv-05982-SVW-GJS Document 67-1 Filed 04/03/17 Page 14 of 29 Page ID #:1163 12 MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR PARTIAL SUMMARY JUDGMENT 38250383v.8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 evidence to prove pretext in a retaliation claim under FEHA”); Wallis v. J.R. Simplot Co., 26 F.3d 885, 890 (9th Cir. 1994) (employee must show “specific, substantial evidence of pretext;” “[A contrary] position would require a trial in every discrimination case, even where no genuine issue of material fact exists concerning the legitimacy of the employer’s nondiscriminatory reasons”). A. Plaintiff Cannot Establish A Prima Facie Case of Discrimination Because There Is No Evidence That Sears Terminated Plaintiff “Because Of” His Alleged Disability Plaintiff cannot satisfy the third element of his prima facie case, i.e., that circumstances give rise to an inference of discrimination. Gibbs v. Consolidated Services, 111 Cal. App. 4th 794, 799 (2003) (affirming summary judgment for employer where employee could not establish that he was “discharged under circumstances giving rise to an inference of unlawful discrimination”). Plaintiff believes Sears terminated him for discriminatory reasons because: (1) he wanted a longer leave; (2) his modified duties were not being respected; and (3) because Eric Villanueva was not terminated. (Pl.’s Dep., 99:25 - 101:1.) Plaintiff, however, fails to show why any of these reasons are somehow connected to his alleged disability, let alone, his termination. Guz, 24 Cal. 4th at 355 (“The specific elements of a prima facie case may vary depending on the particular facts.”). Plaintiff cannot establish a nexus between his theories and his termination, because Plaintiff does not know who made the decision to terminate (SUMF No. 38); when it was made (SUMF No. 39); or, what information was relied on. (SUMF No. 40). Sears Provided The Requested Leave Of Absence. First, Sears gave Plaintiff a leave of absence from April 21, 2015 until he returned to work on May 19, 2015. (Pl.’s Dep., 34:11-14.). Plaintiff never contacted Sears’ CLMT to request additional leave beyond the three weeks and three days that were granted. (Pl.’s Dep., 52:2-9; 57:15-18.) Plaintiff did not contact CLMT directly to contest his return to work at all. (Pl.’s Dep., 60:10-12.) Moreover, Plaintiff did not contact human resources to contest his return to work at all. (Pl.’s Dep., 60:13-15.) Plaintiff didn’t communicate to anybody at Case 2:16-cv-05982-SVW-GJS Document 67-1 Filed 04/03/17 Page 15 of 29 Page ID #:1164 13 MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR PARTIAL SUMMARY JUDGMENT 38250383v.8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Sears’ HR hotline number that he needed or wanted additional leave. (Pl.’s Dep., 102:21- 23, 25-103:1.) Plaintiff did not submit any documentation asking for a leave to Sears’ CLMT department asking for additional leave beyond what was provided. (Pl.’s Dep., 101:17-21.). Thus, Plaintiff cannot show a nexus between the leave that was given and the decision to terminate. Sears Respected Plaintiff’s Return To Work Restrictions. Plaintiff’s doctor issued a return to work note as of May 15, 2015, which stated that Plaintiff could resume modified duty as of May 15, 2015. (Pl.’s Dep., 46:21-47:12.) Plaintiff is not aware of any other doctor’s notes with modified restrictions provided to the company. (Pl.’s Dep., 103:7-104:10.) Plaintiff does not remember ever communicating to anyone at Sears that he believed his restrictions were not being respected. (Pl.’s Dep., 258:8-15.) Indeed, Plaintiff admits he did not communicate to any Sears manager any concern about having to work with modified restrictions. (Pl.’s Dep., 111:10-13.) Thus, Plaintiff cannot show a nexus between the accommodations that were given and the decision to terminate. Plaintiff Has No Knowledge About Discipline Imposed On Villanueva. Plaintiff has never seen anything about Eric Villanueva’s discipline history. (Pl.’s Dep., 63:25-64:3.) Plaintiff does not know what happened when Villanueva attempted to apprehend the shoplifter. (Pl.’s Dep., 65:10-17.) Indeed, Plaintiff admits he has no personal knowledge of any discipline imposed on Villanueva. (Pl.’s Dep., 263:7-264:18.) Thus, Plaintiff cannot show a nexus between discipline imposed on Villanueva and his termination, especially where Plaintiff cannot show they engaged in the same conduct. B. Sears Had A Legitimate Non-Discriminatory Reason To Terminate Plaintiff’s Employment And Plaintiff Cannot Establish Pretext Even if he could somehow establish a prima facie case, Plaintiff’s discrimination claim will still fail because he lacks substantial evidence that Sears’ proffered reason for terminating his employment was a pretext for unlawful discrimination. To overcome Sears’ stated reason for his termination and evade summary judgment, Plaintiff must present substantial evidence that relates to “the motivation of the Case 2:16-cv-05982-SVW-GJS Document 67-1 Filed 04/03/17 Page 16 of 29 Page ID #:1165 14 MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR PARTIAL SUMMARY JUDGMENT 38250383v.8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 decision makers to prove, by nonspeculative evidence, an actual causal link between prohibited motivation and termination.” King v. United Parcel Services, Inc., 152 Cal. App. 4th 426, 433-34. (2007) (emphasis added).6 Sears had a legitimate reason to terminate Plaintiff’s employment when he violated Sears’ boundary policy. “Young, together with Human Resources and Viall, determined that Plaintiff should be terminated for violating the Loss Prevention policy which prohibits Loss Prevention personnel from pursuing suspects beyond a Unit’s boundary.” (SUMF No. 36, Response to Special Interrogatory No. 1.) Indeed, Sears’ Rule 30(b)(6) witness on the topic of Sears’ decision to terminate Plaintiff’s employment testified that the boundary policy violation was the primary consideration in Veloz’ termination. (See e.g., Elder Dep., 242:11-243:3.) A violation of company policy is a legitimate basis for termination, as a matter of law. See Vallimont v. Chevron Energy Tech. Co., 2011 WL 1979483 at *2 (9th Cir. 2011) (summary judgment for the employer; given Plaintiff’s undisputed “inappropriate conduct in violation of company policy,” plaintiff “has failed to demonstrate that questions of fact exist as to whether this reason was really a pretext for unlawful retaliation”). Accord Moore v. May Dept. Stores, 222 Cal. App. 3d 836, 838-839 (1990) (affirming summary judgment for employer who discharged employee for violation of company policies). While Plaintiff may not agree with Sears’ decision, to avoid summary judgment on this issue, Plaintiff “cannot simply show that the employer’s decision was wrong or 6/ Accord Collings v. Longview Fibre Co., 635 F.3d 828, 834 (9th Cir. 1995) (summary judgment for employer: “the employee [is] required to produce ‘specific substantial evidence of pretext’ in order to avoid summary judgment”; “’a party opposing summary judgment must produce specific facts showing that there remains a factual issue for trial as to any [material] fact claimed to be disputed.”) (citations omitted; emphasis in original); Schuler v. Chronicle Broadcasting Co., Inc., 793 F.3d 1010, 1011 (9th Cir. 1986) (summary judgment for employer affirmed; “To withstand an employer’s motion for summary judgment in a discrimination suit, the employee must do more than establish a prima facie case and deny the credibility of the employer’s [evidence].”) Case 2:16-cv-05982-SVW-GJS Document 67-1 Filed 04/03/17 Page 17 of 29 Page ID #:1166 15 MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR PARTIAL SUMMARY JUDGMENT 38250383v.8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 mistaken, since the factual dispute at issue is whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent or competent.” Hersant v. Department of Social Services, 57 Cal. App. 4th 997, 1004-05 (1997); see also King, 152 Cal. App. 4th at 444 (“We are not empowered to determine whether plaintiff deserved to be discharged … the law does not condemn managerial mistakes so long as his employer honestly believed the reasons for his termination.”); Kerr v. Rose, 216 Cal. App. 3d 1551, 1563-1564 (1990) (“it is well established that a plaintiff’s ‘suspicions of improper motives … primarily based on conjecture and speculation’ are not sufficient to raise a triable issue of fact.”). Accord Hoskins, 2014 WL 116280 at *5 (summary judgment for employer: “Courts have recognized that the violation of a company policy is a legitimate, nondiscriminatory reason for terminating an employee”); Day v. Sears Holdings Corp., 930 F. Supp. 2d 1146, 1170 (C.D. Cal. 2013) (summary judgment for employer: “Several courts have recognized that violation of company policies is a legitimate, nondiscriminatory reason for terminating an employee”). While Plaintiff may argue that his violations of company policy were not severe enough to warrant termination, there is still no triable issue. An argument that an employer “should have” or “could have” weighed facts differently or considered other issues is not enough to prove pretext. See Arteaga, 163 Cal. App. 4th at 344 (“The employer may fire an employee for a good cause, a bad reason, a reason based on erroneous facts, or no reason at all, as long as its action is not for a [retaliatory] reason. . . .” “While an employer’s judgment or course of action may seem poor or erroneous to outsiders, the relevant question is . . . whether the given reason was a pretext. . . .” “The employer’s stated legitimate reason . . . does not have to be a reason that the judge or jurors would act on or approve.”). Accord Guz, 24 Cal. 4th at 358 (“[The employer’s] true reasons need not necessarily have been wise or correct,” “the ultimate issue is simply whether the employer acted with a motive to [retaliate] illegally’” a legitimate reason may be “foolish or trivial or baseless” or “wrong or mistaken.”); Hicks v. KNTV Tele., Inc., 160 Cal. App. 4th 994, 1005 (2008) (employer may rely on its own subjective Case 2:16-cv-05982-SVW-GJS Document 67-1 Filed 04/03/17 Page 18 of 29 Page ID #:1167 16 MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR PARTIAL SUMMARY JUDGMENT 38250383v.8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 criteria in evaluating whether an employee is satisfactorily performing his job; “There is nothing inherently suspect in the use of subjective criteria. Indeed, subjective evaluations . . . are often critical to the decision-making process . . . Personal qualities . . . factor heavily into employment decisions concerning supervisory or professional provisions. Traits such as common sense, good judgment, originality, ambition, loyalty, and tact often must be assessed primarily in a subjective fashion”). Since 2011, Sears has terminated numerous other Loss Prevention associates for similar boundary violations. (Elder Dep. 269:12-270:10.) Sears’ case management system shows that since 2011, Human Resources, also known as Associate Services Organization, has been involved in the termination of nine associates (not including Plaintiff) employed at Unit 1048 and/or at any unit within the District that Unit 1048 was in as of June 2015. (See Declaration of Sara E. Elder, ¶ 5.) Sears’ records indicate that none of these associates had taken medical leave within a year of their terminations. (Id. at ¶ 6.) Sears’ records further indicate that of these nine associates, one self-identified as disabled, however her disability was not identified. (Id. at ¶ 7.) There was no information relating to her alleged disability in her unit or personnel file, and her supervisor would not have had access to this information. (Id.) C. Plaintiff Has Nothing More Than Speculation To Question The Reason For His Termination Plaintiff has no facts to show that Sears decided to terminate his employment because of Plaintiff’s alleged disability. Plaintiff admits he does not know who made the termination decision or what was considered when making the decision. Plaintiff’s lack of information regarding the identity of the individual who decided to terminate his employment precludes Plaintiff from establishing that the termination decision was pretext for unlawful retaliation. See e.g., McRae v. Dept. of Corrections and Rehab., 142 Cal. App. 4th 377, 388 (2006) (“A plaintiff must show a causal connection between the protected activity and the adverse action. A causal link can be established through circumstantial evidence such as evidence of ‘the employer’s knowledge that the Case 2:16-cv-05982-SVW-GJS Document 67-1 Filed 04/03/17 Page 19 of 29 Page ID #:1168 17 MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR PARTIAL SUMMARY JUDGMENT 38250383v.8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 employee engaged in protected activities”); Cooper v. Cate, 2011 WL 5554321, at *10 (E.D. Cal. Nov. 15, 2011) (“[T]he plaintiff must show that the particular decision maker who authorized or committed the adverse employment action was aware that the plaintiff had engaged in protected activity.”) (citing Raad v. Fairbanks N. Star Borough, 323 F.3d 1185, 1197 (9th Cir. 2003); Villalvazo v. Kofax, Inc., 2011 WL 6153099, at *13 (Cal. App. 4 Dist. Dec. 12, 2011) (holding that there was no causal connection because there was “absolutely no evidence the decision makers ... were ever made aware of [the plaintiff’s] complaints. Without a causal link between the protected activity and the adverse employment action, the retaliation claims fail.”). D. Temporal Proximity Does Not Establish Pretext Finally, to the extent Plaintiff claims that the timing of the termination indicates discriminatory animus, temporal proximity cannot create a triable issue once the employer offers a legitimate, non-discriminatory reason for its decision. See Arteaga, 163 Cal. App. 4th at 334 (“Although temporal proximity, by itself, may be sufficient to establish a prima facie case of discrimination or retaliation, it does not create a triable fact as to pretext once the employer has offered evidence of a legitimate, nonprohibited reason for its action.”); Nadaf-Rahrov v. Neiman Marcus Group, Inc., 166 Cal. App. 4th 952, 990 (2008) (“[plaintiff] has not produced evidence that would support an inference that . . . she was actually fired for a retaliatory motive. Temporal proximity does not alone satisfy this burden.”); McRae, 142 Cal. App. 4th at 388 (temporal evidence “only satisfies the plaintiff’s initial burden”). III. PLAINTIFF’S THIRD CAUSE OF ACTION FOR FAILURE TO ACCOMMODATE AND FOURTH CAUSE OF ACTION FOR FAILURE TO ENGAGE IN THE INTERACTIVE PROCESS FAIL AS A MATTER OF LAW BECAUSE IT IS UNDISPUTED THAT SEARS PROVIDED EVERY REASONABLE ACCOMMODATION THAT PLAINTIFF REQUESTED To prove a failure to accommodate a disability, Plaintiff must show that (1) Sears was on notice of his disability, (2) he was qualified to perform the essential functions of the job, (3) he requested a reasonable accommodation, and (4) Sears failed to provide him Case 2:16-cv-05982-SVW-GJS Document 67-1 Filed 04/03/17 Page 20 of 29 Page ID #:1169 18 MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR PARTIAL SUMMARY JUDGMENT 38250383v.8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 with a reasonable accommodation. Gelfo v. Lockheed Martin Corp., 140 Cal. App. 4th 34 (2006); Jensen v. Wells Fargo Bank, 85 Cal. App. 4th 245, 256 (2000). To prevail on a claim for failure to engage in the interactive process, “an employee must identify a reasonable accommodation that would have been available at the time of the interactive process should have occurred.” Scotch v. Art Institute of California, 173 Cal. App. 4th 986, 1018 (2009) (affirming summary judgment in favor of employer on failure to engage in interactive process claim where plaintiff failed to show that a reasonable accommodation was available). California courts have made clear that it is an employee’s “responsibility to understand his or her own physical or mental condition well enough to present the employer at the earliest opportunity with a concise list of restrictions which must be met to accommodate the employee.” Jensen v. Wells Fargo Bank, 85 Cal. App. 4th 245, 267 (2000). The burden of keeping the lines of communication did not fall entirely upon Sears. As the Court of Appeal explained in Scotch v. Art Institute of California, Plaintiff also bore the responsibility of keeping communications open: Both employer and employee have the obligation “to keep communications open” and neither has “a right to obstruct the process.” [Citation.] “Each party must participate in good faith, undertake reasonable efforts to communicate its concerns, and make available to the other information which is available, or more accessible, to one party. Liability hinges on the objective circumstances surrounding the parties' breakdown in communication, and responsibility for the breakdown lies with the party who fails to participate in good faith.” Scotch, 173 Cal. App. 4th at 1014. Here, Sears gave Plaintiff a leave of absence from April 21, 2015 until he returned to work on May 19, 2015. (Pl.’s Dep., 34:11-14.). Plaintiff never contacted Sears’ Centralized Leave Management Team (“CLMT”) to request additional leave beyond the three weeks and three days that were granted. (Pl.’s Dep., 52:2-9; 57:15-18.) Moreover, Plaintiff’s doctor issued a return to work note as of May 15, 2015, which stated that Plaintiff could resume modified duty as of May 15, 2015. (Pl.’s Dep., Case 2:16-cv-05982-SVW-GJS Document 67-1 Filed 04/03/17 Page 21 of 29 Page ID #:1170 19 MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR PARTIAL SUMMARY JUDGMENT 38250383v.8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 46:21-47:12.) Plaintiff is not aware of any other doctor’s notes with modified restrictions provided to the company other than that doctor’s note. (Pl.’s Dep., 103:7-104:10.) Plaintiff does not remember ever communicating to anyone at Sears that he believed his restrictions were not being respected. (Pl.’s Dep., 258:8-15.) Indeed, Plaintiff admits that he didn’t communicate to any Sears manager any concern about having to work with modified restrictions. (Pl.’s Dep., 111:10-13.) To the extent Plaintiff failed to inform Sears that he needed further accommodations, any resulting failure of the interactive or accommodation process was due to Plaintiff’s own failure to understand his restrictions and present Sears with accommodations he needed to succeed. King, 152 Cal. App. 4th at 442-43 (2007) (employer was entitled to judgment on a failure-to-accommodate claim where the informal interactive process broke down because the employee failed to engage in discussions in good faith); See also, Huck v. Kone, Inc., 2013 WL 4505137, at *1 (9th Cir. 2013) (affirming summary judgment for the employer; “An employer cannot be held liable for failing to engage in interactive process when the employee was in fact offered a reasonable accommodation.”); Watkins v. Ameripride Servs., 375 F. 3d 821, 829 at n.5 (9th Cir. 2004) (“The fact that [the employer] reasonably accommodated [the employee’s] disability forecloses his allegation that [the employer] failed to engage in the interactive process.”); Wilson v. County of Orange, 169 Cal. App. 4th 1185, 1195 (2009) (affirming judgment for the employer because “the County engaged in a process aimed at trying to accommodate [the plaintiff]”). IV. PLAINTIFF’S SECOND CAUSE OF ACTION FOR FAILURE TO TAKE ALL REASONABLE STEPS TO PREVENT DISCRIMINATION AND FIFTH CAUSE OF ACTION FOR WRONGFUL TERMINATION FAIL AS A MATTER OF LAW BECAUSE THEY ARE DERIVATIVE OF OTHER FAILED CLAIMS Plaintiff’s second cause of action is for failure to prevent to take all reasonable steps to prevent discrimination. Her fifth cause of action alleges that Plaintiff’s termination violated the public policy embodied in the FEHA. Case 2:16-cv-05982-SVW-GJS Document 67-1 Filed 04/03/17 Page 22 of 29 Page ID #:1171 20 MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR PARTIAL SUMMARY JUDGMENT 38250383v.8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 These derivative claims fail because Plaintiff cannot establish that he suffered disability discrimination. See Trujillo v. North County Transit Dist., 63 Cal. App. 4th 280, 286 (1998) (“There’s no logic that says an employee can sue an employer for not preventing discrimination that didn’t happen . . ..”); See also, De Horney v. Bank of Am. Nat’l Trust & Sav. Assoc., 879 F.2d 459, 465 (9th Cir. 1989) (“[F]ailure to make a prima facie case of racial discrimination [under the FEHA] disposes of this claim [for wrongful termination in violation of public policy] as well”). V. PLAINTIFF’S SIXTH CAUSE OF ACTION FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS FAILS AS A MATTER OF LAW To prevail on his intentional infliction of emotional distress claim, Plaintiff must prove: (1) extreme and outrageous conduct; (2) intent to cause or reckless disregard of the probability of causing emotional distress; (3) severe emotional suffering; and (4) actual and proximate causation of emotional distress. See Hughes v. Pair, 46 Cal. 4th 1035, 1050 (2009). Plaintiff alleges in his operative Complaint that Sears is liable for IIED because “Defendant intentionally discriminated against and wrongfully terminated Plaintiff based on his physical disability by, among other things, refusing to accommodate Plaintiff’s disability, failing to engage in the interactive process and terminating” Plaintiff’s employment just days after he returned to work. (Compl. ¶ 66.) Because Plaintiff’s IIED claims are premised on the same claims above that fail, he cannot state a cause of action. Hughes, 46 Cal. 4th at 1050 (because plaintiff could not plead a claim for harassment, her IIED claim also failed). Here, Plaintiff testified that there were seven categories of conduct by Young that would support his claim of IIED: (1) Young was the “mastermind/leader of the pack” in terms of the decision to terminate Plaintiff’s employment (Pl.’s Dep., 227:25-228:24); (2) Young sent various emails to managers regarding Plaintiff’s return to work (Pl.’s Dep., 228:25-229:3); (3) Young made calls to the workers compensation adjuster (Pl.’s Dep., Case 2:16-cv-05982-SVW-GJS Document 67-1 Filed 04/03/17 Page 23 of 29 Page ID #:1172 21 MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR PARTIAL SUMMARY JUDGMENT 38250383v.8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 229:6-13); (4) Young sent emails saying that Plaintiff’s leave cost the company money (Pl.’s Dep., 229:22-25); (5) Plaintiff was forced back to work (Pl.’s Dep., 230:18 - 231:1); (6) Plaintiff’s accommodations were not respected (Pl.’s Dep., 230:18 - 231:1); and (7) Plaintiff was disabled (Pl.’s Dep., 230:18 - 231:1).7 The only direct communication that Plaintiff ever had with Young was after the stabbing incident where Young called Plaintiff on his cell phone to make sure Plaintiff was alright. (Pl.’s Dep., 245:6-11.) (1) Mastermind Of Decision To Terminate. Plaintiff claims that Young was the “mastermind/leader of the pack” for the decision to terminate Plaintiff’s employment. (Pl.’s Dep., 227:25-228:24) But Plaintiff does not know who, when, or what documents were relied on. (SUMF Fact Nos. 38-40.) (2) Emails To Return To Work. Plaintiff has no estimate at all of how many emails Young sent that would support his claim of intentional infliction of emotional distress. (Pl.’s Dep., 233:17-234:14). Again, Plaintiff never contacted Sears’ Centralized Leave Management Team (“CLMT”) to request additional leave beyond the three weeks and three days that were granted. (Pl.’s Dep., 52:2-9; 57:15-18.) (3) Calls To Return To Work. Plaintiff admits that he does not know how many calls Young allegedly made to the workers’ comp adjuster regarding Plaintiff’s return to employment. (Pl.’s Dep., 237:11-14.) Indeed, Plaintiff admits that he is not aware of any specific calls that Young made to his workers’ compensation adjuster to allegedly force Plaintiff back to work. (Pl.’s Dep., 238:16-239:10.) (4) Leave Cost The Company Money. Plaintiff has no estimate of how many emails in Sears’ production of documents he saw where Young wrote that Plaintiff being away from work was costing the company $500 a day. (Pl.’s Dep., 242:11-244:21.) 7/ Sears has detailed in its Opposition To Plaintiff’s Motion For Leave To Amend the reasons why Plaintiff’s claim must fail. (See Dkt. 65) Sears sets forth the basic arguments again, here, for ease of reference for the Court. Case 2:16-cv-05982-SVW-GJS Document 67-1 Filed 04/03/17 Page 24 of 29 Page ID #:1173 22 MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR PARTIAL SUMMARY JUDGMENT 38250383v.8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (5) Young “Forced” Plaintiff To Return To Work Before He Was Ready. Young never communicated with Plaintiff words to the effect of, Mr. Veloz, I need you to come back to work. (Pl.’s Dep., 246:17-247:3.). Plaintiff never witnessed any communications between Young and his workers comp carrier. (Pl.’s Dep., 249:4-8.) (6) Accommodations Not Respected. As detailed above, Plaintiff does not remember ever communicating to anyone at Sears that he believed his restrictions were not being respected. (Pl.’s Dep., 258:8-15.). Indeed, Plaintiff admits that he didn’t communicate to any Sears manager any concern about having to work with modified restrictions. (Pl.’s Dep., 111:10-13.) (7) Plaintiff Was Disabled. Plaintiff could not identify any language that Young purportedly used in his emails that supports Plaintiff’s belief that Young intended to cause Plaintiff harm. (Pl.’s Dep., 269:7-18.). A. Plaintiff Has Set Forth No “Extreme And Outrageous Conduct” Young’s alleged conduct is either non-actionable personnel management or conduct that does not amount to outrageous conduct. Lurie v. Konica Minolta Bus. Sols. U.S.A., 2016 WL 1408056, at *4 (C.D. Cal. Apr. 11, 2016) (“All of these allegations are related to their personnel decisions. Further, these allegations do not rise to the level of outrageous conduct required to have a legal basis for an IIED claim.”). To maintain a claim for IIED, Plaintiff must plead “outrageous conduct beyond the bounds of human decency.” Janken v. GM Hughes Elecs., 46 Cal. App. 4th 55, 80 (1996) (affirming dismissal of IIED claims and noting, “Managing personnel is not outrageous conduct beyond the bounds of human decency, but rather conduct essential to the welfare and prosperity of society. A simple pleading of personnel management activity is insufficient to support a claim of intentional infliction of emotional distress, even if improper motivation is alleged.”). B. The Workers’ Compensation Act Precludes An IIED Claim Sears cannot be liable for Plaintiff’s IIED claims because these claims are preempted by the California Workers’ Compensation Act (“WCA”), California Labor Case 2:16-cv-05982-SVW-GJS Document 67-1 Filed 04/03/17 Page 25 of 29 Page ID #:1174 23 MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR PARTIAL SUMMARY JUDGMENT 38250383v.8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Code Section 3200 et. seq. The WCA expressly provides that it is “the sole and exclusive remedy for the employee” for all injuries “arising out of and in the course of employment.” Cal. Lab. Code §§3600(a), 3602(a) (emphasis added.); Fermino v. Fedco., Inc., 7 Cal. 4th 701, 713 (1994) (“[I]f the everyday actions of employment were in fact carried out in a manner deliberately intended to cause the employee harm, then the injured employee could arguably claim a right to extra compensation under section 4553, but could not initiate a civil action.”); Cole v. Fair Oaks Fire Protect. Dist., 43 Cal. 3d 148, 160 (1987) (“An employee suffering emotional distress . . . may not avoid the exclusive remedy provisions of the [WCA] by characterizing the employer’s decisions as manifestly unfair, outrageous, harassment, or intended to cause emotional disturbance.” ); Livitsanos v. Superior Court, 2 Cal.4th 744, 752 (1992) (“[T]he proposition that intentional or egregious conduct is necessarily outside the scope of the workers’ compensation scheme is erroneous . . . . Even intentional ‘misconduct’ may constitute a ‘normal part of the employment relationship.’”); Shoemaker v. Myers, 52 Cal.3d 1, 20 (1990) (“Even if such conduct may be characterized as intentional, unfair or outrageous, it is nevertheless covered by the [WCA] exclusivity provisions.”); Miklosy v. Regents of Univ. of Cal., 44 Cal.4th 876, 902 (2008) (“[t]he alleged wrongful conduct . . . occurred at the worksite, in the normal course of the employer-employee relationship, and therefore [the WCA] is plaintiffs’ exclusive remedy for any injury that may have resulted”).8 8/ Accord Plummer v. Tessoro Ref. & Mktg. Co., No. CV-16-02044-SJO-JEMx, 2016 WL 3180327, at *4 (C.D. Cal., June 3, 2016) (no IIED against individual who “denied Plaintiff’s request for leave days,” because that conduct was within the normal part of the employment relationship and, thus, barred by the exclusive remedy provisions of the WCA); Duran v. DHL Express (USA), Inc., No. CV-15-09965-BRO (EX), 2016 WL 742864, at *8 (C.D. Cal., Feb. 24, 2016) (no IIED claim against individual where he allegedly refused to accommodate plaintiff upon his return to work as conduct bared by the exclusive remedy provisions of the WCA). Case 2:16-cv-05982-SVW-GJS Document 67-1 Filed 04/03/17 Page 26 of 29 Page ID #:1175 24 MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR PARTIAL SUMMARY JUDGMENT 38250383v.8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 C. The Managerial Privilege Precludes An IIED Claim Plaintiff’s claims for IIED also fail because the alleged conduct is based on privileged managerial conduct. An employee cannot be sued for emotional distress for alleged managerial conduct. See, e.g., Smith v. Int’l Bhd. of Elect. Workers, Local Union 11, 109 Cal. App. 4th 1637, 1658 (2003) (holding that claim for emotional distress against manager failed, as a matter of law, because it was based on managerial conduct; “because the emotional distress claims arise out of conduct for which [the individual employee] cannot be held personally liable it follows he cannot be held liable for the emotional distress claims either”); Janken v. GM Hughes Elect., 46 Cal. App. 4th 55, 79- 80 (1996) (reiterating that an individual managerial employee cannot be liable for intentional infliction of emotional distress for conduct committed within the employment relationship). VI. PLAINTIFF’S CLAIM FOR PUNITIVE DAMAGES FAILS AS A MATTER OF LAW Even if Plaintiff’s claims could somehow survive, he is still not entitled to punitive damages. Plaintiff bears the “onerous” burden of proving “by clear and convincing evidence” that Sears was “guilty of oppression, fraud or malice.” Civ. Code § 3294(a); Basich v. Allstate Ins. Co., 87 Cal. App. 4th 1112, 1118-19, 1121 (2001) (plaintiff can only recover punitive damages “by establishing malice, oppression or fraud by clear and convincing evidence. Thus, any evidence submitted in response to a motion for summary adjudication must necessarily meet that standard.”). To establish malice, oppression or fraud, Plaintiff must show “despicable conduct,” not simply that he was wrongfully terminated. See Eisenberg v. Permanente Med. Grp., 855 F. Supp. 2d 1002, 1016 (N.D. Cal. 2012) (granting summary judgment for employer and noting “Despicable conduct is generally considered to be ‘conduct which is so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people.’”); accord Escriba v. Foster Poultry Farms, 793 F. Supp. 2d 1147, 1168-1169 (E.D. Cal. 2011) (granting summary judgment on Case 2:16-cv-05982-SVW-GJS Document 67-1 Filed 04/03/17 Page 27 of 29 Page ID #:1176 25 MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR PARTIAL SUMMARY JUDGMENT 38250383v.8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 punitive damages claim where Plaintiff merely read “an evil motive into facts that describe nothing more than the basic elements of wrongful termination.”); Scott v. Phoenix Schools, Inc., 175 Cal. App. 4th 702, 717 (2009) (wrongful termination, without more, will not sustain a finding of malice or oppression, as required for punitive damages). As demonstrated above, Plaintiff has not shown any “despicable conduct” that would support malice, oppression, or fraud. Indeed, other than communicating to his workers’ compensation adjuster that he felt he was unready to return to work, Plaintiff did not communicate to anybody at Sears that he was not ready to return to work. (Pl.’s Dep., 89:13-16, 18.) Plaintiff did not contact Gilbert Gonzales to complain that he didn't think he should be coming back to work. (Pl.’s Dep., 89:24-90:2.) Plaintiff did not communicate to Jeff Young any concern or complaint about returning to work before he was able. (Pl.’s Dep., 90:11-16.) Plaintiff did not complain to the store manager Tess Viall any concerns or complaints about returning to work before he felt he was able to. (Pl.’s Dep., 91:9-12.) Plaintiff did not complain to the prior store manager, Jaime, about any concerns or complaints about returning to work before he felt he was able to. (Pl.’s Dep., 91:23-92:1.) Moreover, Plaintiff could not identify any language that Young purportedly used in his emails that support Plaintiff’s belief that Young intended to cause Plaintiff harm. (Pl.’s Dep., 269:7-18.) Sears terminated Plaintiff for his violation of a company policy-a policy in place to protect its employees. His subsequent termination was therefore a legitimate, non- discriminatory decision. Accordingly, Plaintiff has no clear and convincing evidence of malice, oppression or fraud by a managing agent. Stewart v. Truck Ins. Exchange, 17 Cal. App. 4th 468, 483 (1993) (plaintiff must present clear and convincing evidence of “despicable conduct” by a managing agent of employer carried out in “conscious disregard” of his rights); Patrick v. Maryland Casualty Co., 217 Cal. App. 3d 1566, 1575 (1990) (same). Case 2:16-cv-05982-SVW-GJS Document 67-1 Filed 04/03/17 Page 28 of 29 Page ID #:1177 26 MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR PARTIAL SUMMARY JUDGMENT 38250383v.8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 VII. CONCLUSION For the foregoing reasons, Plaintiff respectfully requests that the Court grant its motion for partial summary judgment. DATED: April 3, 2017 SEYFARTH SHAW LLP By: /s/ Dana J. Hadl Jonathan L. Brophy Dana J. Hadl Attorneys for Defendant SEARS, ROEBUCK AND CO. Case 2:16-cv-05982-SVW-GJS Document 67-1 Filed 04/03/17 Page 29 of 29 Page ID #:1178 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DECLARATION OF SARA E. ELDER IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT 38402033v.1 SEYFARTH SHAW LLP Jonathan L. Brophy (SBN 245223) jbrophy@seyfarth.com 2029 Century Park East, Suite 3500 Los Angeles, California 90067-3021 Telephone: (310) 277-7200 Facsimile: (310) 201-5219 SEYFARTH SHAW LLP Dana J. Hadl (SBN 224636) dhadl@seyfarth.com 333 S. Hope Street, Suite 3900 Los Angeles, California 90071 Telephone: (213) 270-9600 Facsimile: (213) 270-9601 Attorneys for Defendant SEARS, ROEBUCK AND CO. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA DANIEL VELOZ, an individual, Plaintiff, v. SEARS, ROEBUCK and CO., a Corporation; and DOES 1-100, inclusive, Defendants. Case No. 2:16-cv-05982-SVW-GJS DECLARATION OF SARA E. ELDER IN SUPPORT OF DEFENDANT SEARS, ROEBUCK AND CO.’S MOTION FOR PARTIAL SUMMARY JUDGMENT Date: May 1, 2017 Time: 1:30 p.m. Dept: 10A Judge: Stephen V. Wilson Complaint Filed: May 17, 2016 Discovery Cut-off: April 17, 2017 Trial Date: May 30, 2017 Case 2:16-cv-05982-SVW-GJS Document 67-2 Filed 04/03/17 Page 1 of 3 Page ID #:1179 DECLARATION OF SARA E. ELDER I, Sara E. Elder, declare as follows: 1. I am DVP, Associate Relations & Compliance at Sears Holdings Management Corporation. I have personal knowledge of the facts contained in this Declaration, and if called as a witness, I could and would testify as to their accuracy. 2. As part of my job responsibilities, I am familiar with the employment policies and procedures of Sears, Roebuck and Co. ("Sears"), and oversee various human resources matters relating to associates throughout Sears. I have access to and understand the way records relating to these associates are maintained, including employee personnel files and electronic human resources data. These records are created and maintained in the regular and ordinary course of business. 3. In certain circumstances, Sears' Associate Services Organization ("ASO") is consulted in the termination process. Specifically, the ASO is generally consulted when a long-term associate is terminated and/or when the associate in issue was on a leave of absence within the last twelve months. The ASO may also be consulted in other circumstances relating to discipline, if a manager deteimines that it would be useful. When the ASO is consulted, call information relating to the discipline and/or termination is entered into the ASO's case management system. If the ASO is not consulted in connection with the discipline and/or termination, details relating to such action would not be in the case management system. 4. In connection with this lawsuit, Sears conducted a search for associates employed at Unit 1048 and/or at any unit within the District' that Unit 1048 was in as of June 2015 that were disciplined and/or terminated for boundary violations since 2011. It is only possible to conduct a search on information that was entered into the case I / A District is made up of a group of units which is managed by a District Manager. Districts, in turn, comprise Regions. The units within a District are constantly shifting, based on changes in the number of units and personnel needs. 1 DECLARATION OF SARA E. ELDER IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION 38402033v. I 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 2:16-cv-05982-SVW-GJS Document 67-2 Filed 04/03/17 Page 2 of 3 Page ID #:1180 Sara E. Elder 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 management system. If an associate is disciplined and/or terminated without input from the ASO, the only record of such discipline and/or termination would be in a Unit or the associate's personnel file, although there are circumstances where the reasons for termination may not appear in a unit or personnel file. Accordingly, the search produced results only for the discipline and/or termination decisions involving the ASO. 5. The search for associates terminated for boundary violations since 2011 employed at Unit 1048 and/or at any unit within the District that Unit 1048 was in in June 2015 yielded nine results, not including Daniel Veloz. 6. Sears' Centralized Leave Management records indicated that none of these associates had taken a medical leave within a year of their terminations. 7. Sears' PeopleSoft records indicated that of these nine associates, only one associate, Mary L., self-identified as disabled; however, her disability was not identified. There was no information relating to her alleged disability in her unit or personnel file, and her supervisor would not have had access to this information. I declare under penalty of perjury under the laws of the State of California and the United States of America that the foregoing is true and correct. Executed this 3rd day of April, 2017 at Hoffman Estates, Illinois. 2 DECLARATION OF SARA E. ELDER IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION 38376158v.1 38402033v.1 Case 2:16-cv-05982-SVW-GJS Document 67-2 Filed 04/03/17 Page 3 of 3 Page ID #:1181 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEFENDANT’S APPENDIX OF EVIDENCE IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT 38393139v.1 SEYFARTH SHAW LLP Jonathan L. Brophy (SBN 245223) jbrophy@seyfarth.com 2029 Century Park East, Suite 3500 Los Angeles, California 90067-3021 Telephone: (310) 277-7200 Facsimile: (310) 201-5219 SEYFARTH SHAW LLP Dana J. Hadl (SBN 224636) dhadl@seyfarth.com 333 S. Hope Street, Suite 3900 Los Angeles, California 90071 Telephone: (213) 270-9600 Facsimile: (213) 270-9601 Attorneys for Defendant SEARS, ROEBUCK AND CO. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA DANIEL VELOZ, an individual, Plaintiff, v. SEARS, ROEBUCK and CO., a Corporation; and DOES 1-100, inclusive, Defendants. Case No. 2:16-CV-05982-SVW-GJS DEFENDANT SEARS, ROEBUCK AND CO.’S APPENDIX OF EVIDENCE IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT Date: May 1, 2017 Time: 1:30 p.m. Dept: 10A Judge: Stephen V. Wilson Complaint Filed: May 17, 2016 Discovery Cut-off: April 17, 2017 Trial Date: May 30, 2017 Case 2:16-cv-05982-SVW-GJS Document 67-3 Filed 04/03/17 Page 1 of 133 Page ID #:1182 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 DEFENDANT’S APPENDIX OF EVIDENCE IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT 38393139v.1 Defendant Sears, Roebuck and Co. submits this Appendix of Evidence in support of its Motion for Partial Summary Judgment. Any highlighting added to the Exhibits is done for the convenience of Court to locate the evidence, or redacted to protect personal information. TABLE OF CONTENTS DECLARATION OF DANA J. HADL Exhibit Description A. Excerpts of Plaintiff’s Deposition Testimony 22. 88Sears Case Notes 25. May 15, 2015 Return to Work Note from Dr. Amal Obaid 27. Plaintiff Daniel Veloz’ Training Completion Record 28. May 2, 2014 Associate Acknowledgment of Handbook 31. May 19, 2015 Associate Statement of Injury 32. May 19, 2015 Associate Witness Statement 37. May 21, 2015 Associate Witness Statement B. Excerpts of Defendant’s Responses to Plaintiff’s Special Interrogatories C. Excerpts of Sara Elder’s Deposition Testimony DATED: April 3, 2017 SEYFARTH SHAW LLP By: /s/ Dana J. Hadl Jonathan L. Brophy Dana J. Hadl Attorneys for Defendant SEARS, ROEBUCK AND CO. Case 2:16-cv-05982-SVW-GJS Document 67-3 Filed 04/03/17 Page 2 of 133 Page ID #:1183 DECLARATION OF DANA J. HADL Case 2:16-cv-05982-SVW-GJS Document 67-3 Filed 04/03/17 Page 3 of 133 Page ID #:1184 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DECLARATION OF DANA J. HADL IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT 38252483v.1 SEYFARTH SHAW LLP Jonathan L. Brophy (SBN 245223) jbrophy@seyfarth.com 2029 Century Park East, Suite 3500 Los Angeles, California 90067-3021 Telephone: (310) 277-7200 Facsimile: (310) 201-5219 SEYFARTH SHAW LLP Dana J. Hadl (SBN 224636) dhadl@seyfarth.com 333 S. Hope Street, Suite 3900 Los Angeles, California 90071 Telephone: (213) 270-9600 Facsimile: (213) 270-9601 Attorneys for Defendant SEARS, ROEBUCK AND CO. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA DANIEL VELOZ, an individual, Plaintiff, v. SEARS, ROEBUCK and CO., a Corporation; and DOES 1-100, inclusive, Defendants. Case No. 2:16-cv-05982-SVW-GJS DECLARATION OF DANA J. HADL IN SUPPORT OF DEFENDANT SEARS, ROEBUCK AND CO.’S MOTION FOR PARTIAL SUMMARY JUDGMENT Date: May 1, 2017 Time: 1:30 p.m. Dept: 10A Judge: Stephen V. Wilson Complaint Filed: May 17, 2016 Discovery Cut-off: April 17, 2017 Trial Date: May 30, 2017 Case 2:16-cv-05982-SVW-GJS Document 67-3 Filed 04/03/17 Page 4 of 133 Page ID #:1185 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 DECLARATION OF DANA J. HADL IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT 38252483v.1 DECLARATION OF DANA J. HADL I, Dana J. Hadl, declare as follows: 1. I have personal knowledge of the facts contained in this Declaration, and if called as a witness, I could and would testify as to their accuracy. 2. I am an attorney admitted to practice in the State of California and I am an attorney at Seyfarth Shaw LLP, counsel of record for Defendant Sears, Roebuck and Co. (“Sears”) in the above-captioned lawsuit filed on behalf of Plaintiff Daniel Veloz (“Plaintiff”). All of the pleadings and correspondence in this lawsuit are maintained in our office in the ordinary course of business under my direction and control. I have reviewed the pleadings and correspondence in preparing this declaration. I. EVIDENCE IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION 3. On March 14, 2017, my colleague, Jonathan L. Brophy deposed Plaintiff Daniel Veloz. Attached to the Appendix of Evidence as Exhibit A is a true and correct copy of the excerpts from the transcript of the Deposition of Plaintiff Daniel Veloz taken on March 14, 2017. The Appendix of Evidence also includes deposition exhibits, which were authenticated by Plaintiff at his deposition, as set forth below. 4. Attached as Exhibit 22 to the Appendix of Evidence is a true and correct copy of the “88Sears Case Notes”, authenticated at Sara Elder Dep., 287:19-288:8. 5. Attached as Exhibit 25 to the Appendix of Evidence is a true and correct copy of the “May 15, 2015 Return to Work Note from Dr. Amal Obaid,” authenticated at Pl. Dep., 46:21-47:1. 6. Attached as Exhibit 27 to the Appendix of Evidence is a true and correct copy of the “Plaintiff Daniel Veloz’ Training Completion Record”, authenticated at Pl. Dep., 78:1-20. 7. Attached as Exhibit 28 to the Appendix of Evidence is a true and correct copy of the “May 2, 2014 Associate Acknowledgment of Handbook,” authenticated at Pl. Dep., 85:3-14. Case 2:16-cv-05982-SVW-GJS Document 67-3 Filed 04/03/17 Page 5 of 133 Page ID #:1186 2 DECLARATION OF DANA J. HADL IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT 38252483v.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8. Attached as Exhibit 31 to the Appendix of Evidence is a true and correct copy of the “May 19, 2015 Associate Statement of Injury,” authenticated at Pl. Dep., 122:2-16. 9. Attached as Exhibit 32 to the Appendix of Evidence is a true and correct copy of the “May 19, 2015 Associate Witness Statement,” authenticated at Pl. Dep., 123:13-124:21. 10. Attached as Exhibit 37 to the Appendix of Evidence is a true and correct copy of the “May 21, 2015 Associate Witness Statement,” authenticated at Pl. Dep., 168:22-169:15. 11. Attached as Exhibit B to the Appendix of Evidence is a true and correct copy of the Excerpts of Defendant’s Responses to Plaintiff’s Special Interrogatories. 12. Attached to the Appendix of Evidence as Exhibit C is a true and correct copy of the excerpts from the transcript of the Deposition of Sara Elder taken on March 10, 2017. II. SUMMARY OF MEET AND CONFER EFFORTS 13. On March 14, 2017, after Plaintiff’s deposition, my colleague, Jonathan L. Brophy, and I attempted to meet and confer with Plaintiff’s counsel pursuant to Local Rule 7-3 on Sears’ Motion for Partial Summary Judgment. During this conversation, we advised Plaintiff’s counsel that Sears intended to move for partial summary judgment on the grounds stated in Defendant’s Notice of Motion and Motion. 14. On March 16, 2017, I sent an email to Plaintiff’s counsel, again advising her that Sears intended to move for partial summary judgment and requested to speak with Plaintiff’s counsel further on March 17, 2017 or March 20, 2017.. 15. On March 20, 2017, I sent another email to Plaintiff’s counsel, again advising her that Sears intended to move for partial summary judgment on the grounds stated in Defendant’s Notice of Motion and Motion. Case 2:16-cv-05982-SVW-GJS Document 67-3 Filed 04/03/17 Page 6 of 133 Page ID #:1187 3 DECLARATION OF DANA J. HADL IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT 38252483v.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16. On March 23, 2017, I met and conferred with Plaintiff’s counsel on Sears’ intention to move for partial summary judgment on the grounds stated in Defendant’s Notice of Motion and Motion. 17. The Parties were unable to reach agreement on the issues raised during the meet and confer process, necessitating this motion. I declare under penalty of perjury under the laws of the State of California and the United States of America that the foregoing is true and correct. Executed this 3rd day of April, 2017 at Los Angeles, California. /s/ Dana J. Hadl Dana J. Hadl Case 2:16-cv-05982-SVW-GJS Document 67-3 Filed 04/03/17 Page 7 of 133 Page ID #:1188 Case 2:16-cv-05982-SVW-GJS Document 67-3 Filed 04/03/17 Page 8 of 133 Page ID #:1189 Case 2:16-cv-05982-SVW-GJS Document 67-3 Filed 04/03/17 Page 9 of 133 Page ID #:1190 Case 2:16-cv-05982-SVW-GJS Document 67-3 Filed 04/03/17 Page 10 of 133 Page ID #:1191 Case 2:16-cv-05982-SVW-GJS Document 67-3 Filed 04/03/17 Page 11 of 133 Page ID #:1192 Case 2:16-cv-05982-SVW-GJS Document 67-3 Filed 04/03/17 Page 12 of 133 Page ID #:1193 Case 2:16-cv-05982-SVW-GJS Document 67-3 Filed 04/03/17 Page 13 of 133 Page ID #:1194 Case 2:16-cv-05982-SVW-GJS Document 67-3 Filed 04/03/17 Page 14 of 133 Page ID #:1195 Case 2:16-cv-05982-SVW-GJS Document 67-3 Filed 04/03/17 Page 15 of 133 Page ID #:1196 Case 2:16-cv-05982-SVW-GJS Document 67-3 Filed 04/03/17 Page 16 of 133 Page ID #:1197 Case 2:16-cv-05982-SVW-GJS Document 67-3 Filed 04/03/17 Page 17 of 133 Page ID #:1198 Case 2:16-cv-05982-SVW-GJS Document 67-3 Filed 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Filed 04/03/17 Page 133 of 133 Page ID #:1314 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 [PROPOSED] ORDER ON DEFENDANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT 38256472v.1 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA DANIEL VELOZ, an individual, Plaintiff, v. SEARS, ROEBUCK and CO., a Corporation; and DOES 1-100, inclusive, Defendants. Case No. 2:16-cv-05982-SVW-GJS [PROPOSED] ORDER ON DEFENDANT SEARS, ROEBUCK AND CO.’S MOTION FOR PARTIAL SUMMARY JUDGMENT Date: May 1, 2017 Time: 1:30 p.m. Dept: 10A Judge: Stephen V. Wilson Complaint Filed: May 17, 2016 Discovery Cut-off: April 17, 2017 Trial Date: May 30, 2017 Case 2:16-cv-05982-SVW-GJS Document 67-4 Filed 04/03/17 Page 1 of 3 Page ID #:1315 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 [PROPOSED] ORDER ON DEFENDANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT 38256472v.1 Defendant Sears, Roebuck and Co.’s (“Sears” or “Defendant”) Motion for Partial Summary Judgment came on regularly for hearing on May 1, 2017, at 1:30 p.m., in before this Court in Courtroom 10A of the above-entitled Court, the Honorable Stephen V. Wilson, presiding. Jonathan L. Brophy and Dana J. Hadl of Seyfarth Shaw, LLP appeared on behalf of moving Defendant Sears, Roebuck and Co. Rosa Vigil-Gallenberg and Raymond Gallenberg of Gallenberg PC appeared on behalf of Plaintiff Daniel Veloz. After full consideration of the evidence, the separate statements submitted by each party, the authorities submitted by counsel, the objections to evidence submitted by the parties, as well as oral argument by counsel, the issues having been duly heard and a decision duly rendered, IT IS ORDERED: 1. Plaintiff’s First Cause of Action for Disability Discrimination fails as a matter of law because Plaintiff cannot establish a prima facie case, including without limitation, that some circumstance suggests discriminatory motive behind his termination. 2. Plaintiff’s First Cause of Action for Disability Discrimination fails as a matter of law because Defendant has articulated a legitimate, nondiscriminatory reason for its actions and Plaintiff cannot show pretext. 3. Plaintiff’s Second Cause of Action for Failure to Take All Reasonable Steps to Prevent Discrimination fails as a matter of law because Plaintiff’s First Cause of Action For Disability Discrimination fails. 4. Plaintiff’s Third Cause of Action for Failure to Accommodate fails as a matter of law because Plaintiff admits that Sears fully satisfied its duty to accommodate Plaintiff’s alleged disability. Case 2:16-cv-05982-SVW-GJS Document 67-4 Filed 04/03/17 Page 2 of 3 Page ID #:1316 2 [PROPOSED] ORDER ON DEFENDANT’S MOTION FOR PARTIAL SUMMARY ADJUDICATION 38256472v.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5. Plaintiff’s Fourth Cause of Action for Failure to Engage in the Interactive Process fails as a matter of law because Plaintiff admits that Sears fully satisfied its duty to accommodate Plaintiff’s alleged disability and Plaintiff failed to engage in the interactive process. 6. Plaintiff’s Fifth Cause of Action for Wrongful Termination fails as a matter of law because Plaintiff cannot establish a prima facie case, including without limitation, that Plaintiff’s First Cause Of Action For Disability Discrimination fails. 7. Plaintiff’s Sixth Cause of Action for Intentional Infliction of Emotional Distress fails as a matter of law because Plaintiff cannot establish “extreme and outrageous conduct.” 8. Plaintiff’s Sixth Cause of Action for Intentional Infliction of Emotional Distress fails as a matter of law because the Workers’ Compensation Act precludes Plaintiff’s Intentional Infliction of Emotional Distress Claim. 9. Plaintiff’s Sixth Cause of Action for Intentional Infliction of Emotional Distress fails as a matter of law because the managerial privilege precludes Plaintiff’s Intentional Infliction of Emotional Distress Claim. 10. To the extent that the Complaint alleges a causes of action for punitive damages, it fails because Plaintiff has not shown by clear and convincing evidence that an officer, director, or managing agent of Sears acted with malice, oppression, or fraud. IT IS SO ORDERED. DATED: 2017 The Honorable Stephen V. Wilson Judge of the United States District Court Case 2:16-cv-05982-SVW-GJS Document 67-4 Filed 04/03/17 Page 3 of 3 Page ID #:1317 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 [PROPOSED] JUDGMENT GRANTING MOTION FOR PARTIAL SUMMARY JUDGMENT 38390801v.1 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA DANIEL VELOZ, an individual, Plaintiff, v. SEARS, ROEBUCK and CO., a Corporation; and DOES 1-100, inclusive, Defendants. Case No. 2:16-cv-05982-SVW-GJS [PROPOSED] JUDGMENT GRANTING DEFENDANT SEARS, ROEBUCK AND CO.’S MOTION FOR PARTIAL SUMMARY JUDGMENT Date: May 1, 2017 Time: 1:30 p.m. Dept: 10A Judge: Stephen V. Wilson Complaint Filed: May 17, 2016 Discovery Cut-off: April 17, 2017 Trial Date: May 30, 2017 Case 2:16-cv-05982-SVW-GJS Document 67-5 Filed 04/03/17 Page 1 of 2 Page ID #:1318 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 [PROPOSED] JUDGMENT GRANTING OF MOTION FOR PARTIAL SUMMARY JUDGMENT 38390801v.1 Defendant Sears, Roebuck and Co.’s (“Sears” or “Defendant”) Motion for Partial Summary Judgment came on regularly for hearing on May 1, 2017, at 1:30 p.m., in before this Court in Courtroom 10A of the above-entitled Court, the Honorable Stephen V. Wilson, presiding. Jonathan L. Brophy and Dana J. Hadl of Seyfarth Shaw, LLP appeared on behalf of moving Defendant Sears, Roebuck and Co. Rosa Vigil-Gallenberg and Raymond Gallenberg of Gallenberg PC appeared on behalf of Plaintiff Daniel Veloz. After full consideration of the evidence, the separate statements submitted by each party, the authorities submitted by counsel, the objections to evidence submitted by the parties, as well as oral argument by counsel, the issues having been duly heard and a decision duly rendered, IT IS ORDERED AND ADJUDGED that judgment shall be entered in favor of Sears, Roebuck and Co. as to Causes of Action one, two, three, four, five, and six. Plaintiff shall recover nothing. Defendant shall be awarded its attorneys’ fees and costs of suit herein. DATED: _______________, 2017 ________________________________ Honorable Stephen V. Wilson Case 2:16-cv-05982-SVW-GJS Document 67-5 Filed 04/03/17 Page 2 of 2 Page ID #:1319