Eric Witt v. Oil-Dri Corporation of America, et Al.

NOTICE OF MOTION AND MOTION for Partial Summary Judgment

C.D. Cal.July 25, 2016

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 No. 15-cv-00991-JVS-DTB NOTICE OF MOTION AND MOTION FOR PARTIAL SUMMARY JUDGMENT BY DEFENDANTS 25563288_1.docx Lara C. de Leon CA Bar No. 270252 lara.deleon@ogletreedeakins.com Mark F. Lovell CA Bar No. 246652 mark.lovell@ogletreedeakins.com OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. Park Tower, Suite 1500 695 Town Center Drive Costa Mesa, CA 92626 Telephone: 714.800.7900 Facsimile: 714.754.1298 Attorneys for Defendants OIL-DRI CORPORATION OF AMERICA and PAUL ZIEMNISKY UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA ERIC WITT, Plaintiff, v. OIL-DRI CORPORATION OF AMERICA; PAUL ZIEMNISKY, an Individual; and DOES 1 through 50, inclusive Defendants. Case No. 15-cv-00991-JVS-DTB NOTICE OF MOTION AND MOTION FOR PARTIAL SUMMARY JUDGMENT BY DEFENDANTS OIL- DRI CORPORATION OF AMERICA AND PAUL ZIEMNISKY Date: August 22, 2016 Time: 1:30 p.m. Ctrm: 10C (Filed concurrently with Memorandum of Points and Authorities; Appendix of Evidence: Declarations of Lara C. de Leon, Daniel Jones, Paul Ziemnisky, Kerstin Falvey, and Kevin Lange; Notice of Lodging Proposed Statement of Uncontroverted Facts; and Notice of Lodging Proposed Order) Complaint Filed: March 25, 2015 Trial Date: October 11, 2016 Case 5:15-cv-00991-JVS-DTB Document 23 Filed 07/25/16 Page 1 of 6 Page ID #:286 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 Case No. 15-cv-00991- JVS-DTB NOTICE OF MOTION AND MOTION FOR PARTIAL SUMMARY JUDGMENT BY DEFENDANTS 25563288_1.docx TO PLAINTIFF AND TO HIS COUNSEL OF RECORD: PLEASE TAKE NOTICE that on August 22, 2016 at 1:30 p.m., or as soon thereafter as the matter may be heard, in Courtroom 10C of the United States District Court, located at 411 West Fourth Street, Santa Ana, CA 92701, Defendants OIL- DRI CORPORATION OF AMERICA (“Oil-Dri”) and PAUL ZIEMNISKY (collectively “Defendants”) will and hereby do seek an order from this Court granting its Motion for Partial Summary Judgment (“Motion”), pursuant to Rule 56 of the Federal Rules of Civil Procedure. Defendants will, and hereby do, move for an order adjudicating the following issues in favor of Defendants and against Plaintiff Eric Witt (“Plaintiff”) without controversy, and that no further proof shall be required at trial in this action, and that any final judgment in this action shall, in addition to the matters determined at trial, be based upon issues so established: ISSUE 1: Judgement should be granted in favor of Oil-Dri as to Plaintiff’s First Claim for Retaliation in Violation of CFRA and FMLA because Plaintiff Cannot Establish a Prima Facie case of FMLA/CFRA retaliation. (Uncontroverted Fact Nos. 4-16, 28-45.) ISSUE 2: Judgement should be granted in favor of Oil-Dri as to Plaintiff’s First Claim for Retaliation in Violation of CFRA and FMLA because Plaintiff Cannot Establish Pretext sufficient to overcome Oil-Dri’s legitimate, non-retaliatory reason for Plaintiff’s termination. (Uncontroverted Fact Nos. 1-45.) ISSUE 3: Judgement should be granted in favor of Oil-Dri as to Plaintiff’s Second Claim for Failure to Engage in the Interactive Process because Plaintiff did not suffer from a qualified disability. (Uncontroverted Fact Nos. 4-16, 34-45.) Case 5:15-cv-00991-JVS-DTB Document 23 Filed 07/25/16 Page 2 of 6 Page ID #:287 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 2 Case No. 15-cv-00991- JVS-DTB NOTICE OF MOTION AND MOTION FOR PARTIAL SUMMARY JUDGMENT BY DEFENDANTS 25563288_1.docx ISSUE 4: Judgement should be granted in favor of Oil-Dri as to Plaintiff’s Second Claim for Failure to Engage in the Interactive Process because Plaintiff was fully accommodated. (Uncontroverted Fact Nos. 4-16, 34-45.) ISSUE 5: Judgement should be granted in favor of Oil-Dri as to Plaintiff’s Third Claim for Failure to Accommodate because Plaintiff did not suffer from a qualified disability. (Uncontroverted Fact Nos. 4-16, 34-45.) ISSUE 6: Judgement should be granted in favor of Oil-Dri as to Plaintiff’s Third Claim for Failure to Accommodate because Plaintiff was fully accommodated. (Uncontroverted Fact Nos. 4-16, 34-45.) ISSUE 7: Judgement should be granted in favor of Oil-Dri as to Plaintiff’s Fourth Claim for Disability Discrimination because Plaintiff did not suffer from a qualified disability. (Uncontroverted Fact Nos. 4-16, 34-45.) ISSUE 8: Judgement should be granted in favor of Oil-Dri as to Plaintiff’s Fourth Claim for Disability Discrimination because Plaintiff Cannot Establish a Prima Facie case of Disability Discrimination. (Uncontroverted Fact Nos. 4-16, 28- 45.) ISSUE 9: Judgement should be granted in favor of Oil-Dri as to Plaintiff’s Fourth Claim for Disability Discrimination because Plaintiff Cannot Establish Pretext sufficient to overcome Oil-Dri’s legitimate, non-discriminatory reason for Plaintiff’s termination. (Uncontroverted Fact Nos. 1-45.) Case 5:15-cv-00991-JVS-DTB Document 23 Filed 07/25/16 Page 3 of 6 Page ID #:288 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 3 Case No. 15-cv-00991- JVS-DTB NOTICE OF MOTION AND MOTION FOR PARTIAL SUMMARY JUDGMENT BY DEFENDANTS 25563288_1.docx ISSUE 10: Judgement should be granted in favor of Oil-Dri as to Plaintiff’s Fifth Claim for Failure to Prevent Retaliation, Discrimination because Plaintiff cannot establish he suffered any form of retaliation or discrimination. (Uncontroverted Fact Nos. 1-45.) ISSUE 11: Judgement should be granted in favor of Oil-Dri as to Plaintiff’s Sixth Claim for Wrongful Termination in Violation of Public Policy because Plaintiff cannot establish any violation of public policy. (Uncontroverted Fact Nos. 1-45.) ISSUE 12: Judgement should be granted in favor of Defendants as to Plaintiff’s Seventh Claim for Defamation Per Se because any alleged defamatory statements were true, were not provably false statements of fact or were non- actionable opinions. (Uncontroverted Fact Nos. 46-52.) ISSUE 13: Judgement should be granted in favor of Defendants as to Plaintiff’s Seventh Claim for Defamation Per Se because Plaintiff Was not Damaged by any alleged publication of the alleged defamatory statements. (Uncontroverted Fact Nos. 46-52.) ISSUE 14: Judgement should be granted in favor of Defendants as to Plaintiff’s claim for punitive damages because Plaintiff cannot establish by clear and convincing evidence that Defendants engaged in conduct with oppression, fraud, or malice. (Uncontroverted Fact Nos. 1-52.) / / / / / / / / / / / / Case 5:15-cv-00991-JVS-DTB Document 23 Filed 07/25/16 Page 4 of 6 Page ID #:289 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 4 Case No. 15-cv-00991- JVS-DTB NOTICE OF MOTION AND MOTION FOR PARTIAL SUMMARY JUDGMENT BY DEFENDANTS 25563288_1.docx This Motion is made following the conference of counsel pursuant to L.R. 7-3, which took place on July 13, 2016. (Declaration of Lara de Leon, ¶ 5.) DATED: July 25, 2016 OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. By: /s/ Mark F. Lovell Lara C. de Leon Mark F. Lovell Attorneys for Defendants OIL-DRI CORPORATION OF AMERICA and PAUL ZIEMNISKY Case 5:15-cv-00991-JVS-DTB Document 23 Filed 07/25/16 Page 5 of 6 Page ID #:290 Case 5:15-cv-00991-JVS-DTB Document 23 Filed 07/25/16 Page 6 of 6 Page ID #:291 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 No. 15-cv-00991-JVS-DTB MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT 25591311_1.DOCX Lara C. de Leon CA Bar No. 270252 lara.deleon@ogletreedeakins.com Mark F. Lovell CA Bar No. 246652 mark.lovell@ogletreedeakins.com OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. Park Tower, Suite 1500 695 Town Center Drive Costa Mesa, CA 92626 Telephone: 714.800.7900 Facsimile: 714.754.1298 Attorneys for Defendants OIL-DRI CORPORATION OF AMERICA and PAUL ZIEMNISKY UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA ERIC WITT, Plaintiff, v. OIL-DRI CORPORATION OF AMERICA; PAUL ZIEMNISKY, an Individual; and DOES 1 through 50, inclusive Defendants. Case No. 15-cv-00991-JVS-DTB MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT BY DEFENDANTS OIL- DRI CORPORATION OF AMERICA AND PAUL ZIEMNISKY Date: August 22, 2016 Time: 1:30 p.m. Ctrm: 10C (Filed concurrently with Notice of Motion and Motion for Partial Summary Judgment; Appendix of Evidence: Declarations of Lara C. de Leon, Daniel Jones, Paul Ziemnisky, Kerstin Falvey, and Kevin Lange; Notice of Lodging Proposed Statement of Uncontroverted Facts; and Notice of Lodging Proposed Order) Complaint Filed: March 25, 2015 Trial Date: October 11, 2016 Case 5:15-cv-00991-JVS-DTB Document 23-1 Filed 07/25/16 Page 1 of 34 Page ID #:292 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 i Case No. 15-cv-00991-JVS-DTB MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT 25591311_1.DOCX TABLE OF CONTENTS I. INTRODUCTION .................................................................................... 1 II. STATEMENT OF FACTS....................................................................... 2 A. Plaintiff’s Employment at Oil-Dri.................................................. 2 B. Plaintiff Requested One Day Off for an Outpatient Shoulder Surgery............................................................................ 3 C. Oil-Dri Decided to Terminate Plaintiff’s Employment Before It Received His Doctor’s Note for Time Off for “Medical Testing”. ......................................................................... 4 D. Plaintiff Has No Knowledge of Any Defamatory Statements....................................................................................... 7 III. LEGAL ARGUMENT.............................................................................. 7 A. The Applicable Standard for Granting Summary Judgment.......... 7 B. Plaintiff’s First Claim for FMLA/CFRA Retaliation Fails as a Matter of Law.......................................................................... 8 1. Plaintiff Cannot Establish a Prima Facie Case of FMLA/CFRA Retaliation. ................................................... 8 2. Oil-Dri Terminated Plaintiff’s Employment for Legitimate, Non-Discriminatory Reasons ........................... 9 3. Plaintiff Cannot Establish Pretext......................................10 C. Plaintiff’s Second and Third Claims for Failure to Engage in the Interactive Process and Failure to Accommodate Fail. ............................................................................................... 14 1. Plaintiff Did Not Suffer From a Qualified Disability........15 2. Plaintiff Received the Accommodations that He Requested. ..........................................................................17 3. The Request for a Leave for “Medical Testing” After a Termination Decision is not Actionable................17 Case 5:15-cv-00991-JVS-DTB Document 23-1 Filed 07/25/16 Page 2 of 34 Page ID #:293 ii Case No. 15-cv-00991- JVS-DTB MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT 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 25591311_1.DOCX D. Plaintiff’s Disability Discrimination Claim Likewise Fails......... 18 E. Plaintiff’s Fifth Claim for Failure to Prevent Retaliation and Discrimination Fail as a Matter of Law................................. 19 F. Plaintiff’s Wrongful Termination Claim Fails as a Matter of Law........................................................................................... 19 G. Plaintiff’s Defamation Claim Fails as a Matter of Law. .............. 19 1. Plaintiff’s Reliance on the Termination Notice Fails As Defendants Made No False Statements of Fact............20 2. The Termination and Name Calling Statements are Non-Actionable Statements of Opinion.............................21 3. The Termination and Medical Leave Statements Were Privileged..................................................................22 4. Plaintiff Cannot Prove Actual Malice and Overcome the Presumption of Privilege. ...........................23 5. Alternatively, Plaintiff Was not Damaged by any Alleged Publication of the Purported Defamatory Statements. .........................................................................23 H. Plaintiff’s Punitive Damages Claim Must Be Summarily Dismissed. .................................................................................... 25 IV. CONCLUSION....................................................................................... 25 Case 5:15-cv-00991-JVS-DTB Document 23-1 Filed 07/25/16 Page 3 of 34 Page ID #:294 iii Case No. 15-cv-00991- JVS-DTB MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT 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 25591311_1.DOCX TABLE OF AUTHORITIES Page(s) Federal Cases Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) .............................................................................................7 Board of Trustees of Keene State Coll. v. Sweeney, 439 U.S. 24 (1978) .............................................................................................10 Bradley v. Harcourt, Brace and Co., 104 F.3d 267 (9th Cir. 1996) ..............................................................................14 Douglas v. Anderson, 656 F.2d 528 (9th Cir. 1981) ..............................................................................11 Fischbach v. Community Mercy Health Partners, No. 3:11cv00016, 2012 WL 4483220 (S.D. Ohio Sept. 27, 2012) ....................16 Fuentes v. Perskie, 32 F.3d 759 (3d. Cir. 1994) ................................................................................14 Grosz v. Boeing Co., 455 F. Supp. 2d 1033 (C.D. Cal. 2006)..............................................................11 Hodgens v. General Dynamics Corp., 144 F.3d 151 (1st Cir. 1998) ................................................................................8 Krutzig v. Pulte Home Corp., 602 F.3d 1231 (11th Cir. 2010) ............................................................................9 Love v. Motion Industries, Inc., 309 F.Supp.2d 1128 (N.D. Cal. 2004)................................................................19 Sanders v. Arneson Products, Inc., 91 F3d 1351 (9th Cir. 1996) ...............................................................................16 Stevens v. Mavent, Inc., No. SA CV 07-245 AHS, 2008 WL 2824956 (C.D. Cal. Jul. 28, 2008) ...................................................................................................................22 Case 5:15-cv-00991-JVS-DTB Document 23-1 Filed 07/25/16 Page 4 of 34 Page ID #:295 iv Case No. 15-cv-00991- JVS-DTB MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT 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 25591311_1.DOCX Estate of Tucker ex rel. Tucker v. Interscope Records, Inc., 515 F.3d 1019 (9th Cir. 2008) ..............................................................................7 Villiarimo v. Aloha Island Air, Inc., 281 F3d 1054 (9th Cir. 2002). Case ...................................................................11 Wallis v. J.R. Simplot Co., 26 F.3d 885 (9th Cir. 1994) ................................................................................11 Wilmarth v. City of Santa Rosa 945 F.Supp. 1271 (N.D. CA 1996).....................................................................16 Wynes v. Kaiser Permanente Hosp., 936 F. Supp. 2d 1171 (E.D. Cal. 2013) ..............................................................18 California Cases Arteaga v. Brink’s, Inc., 163 Cal.App.4th 327 (2008).........................................................................16, 19 Avila v. Cont’l Airlines, Inc., 165 Cal. App. 4th 1237 (2008)...........................................................................14 Brundage v. Hahn, 57 Cal.App.4th 228 (1997) .................................................................................18 Copp v. Paxton, 45 Cal.App.4th 829 (1996) .................................................................................21 Correia v. Santos, 191 Cal.App.2d 844 (1961) ................................................................................24 Cotran v. Rollins Hudig Hall Int’l. Inc. (1998) 17 Cal.4th 93.......................................................................................................11 Couch v. San Juan Unified Sch. Dist., 33 Cal.App.4th 1491 (1995)...............................................................................20 Cuenca v. Safeway S.F. Employees Fed. Credit Union, 180 Cal.App.3d 985 (1986) ..........................................................................22, 23 Deaile v. General Telephone Co. of California, 40 Cal.App.3d 841 (1974) ............................................................................22, 23 Case 5:15-cv-00991-JVS-DTB Document 23-1 Filed 07/25/16 Page 5 of 34 Page ID #:296 v Case No. 15-cv-00991- JVS-DTB MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT 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 25591311_1.DOCX Dudley v. Department of Transp., 90 Cal.App.4th 255 (2001) ...................................................................................8 Faust v. California Portland Cement Co., 150 Cal.App.4th 864 (2007)...............................................................8, 11, 14, 15 Ferlauto v. Hamsher, 74 Cal.App.4th 1394 (1999).........................................................................21, 22 Flores v. Autozone West, Inc., 161 Cal. App. 4th 373 (2008).............................................................................25 Gould v. Maryland Sound Indus., Inc., 31 Cal.App.4th 1137 (1995)...............................................................................21 Guz v. Bechtel National, Inc., 24 Cal.4th 317 (2000)...................................................................................12, 14 Hanson v. Lucky Stores, Inc., 74 Cal.App.4th 215 (1999) .................................................................................19 Hersant v. Dep’t of Social Serv., 57 Cal.App.4th 997 (1997) ...........................................................................11, 12 Higgins-Williams v. Sutter Medical Foundation, 237 Cal.App.4th 78 (2015) .................................................................................15 Holmes v. Petrovich Dev. Co., 191 Cal.App.4th 1047 (2011)...............................................................................9 Horn v. Cushman & Wakefield Western, Inc. 72 Cal.App.4th 798 (1999) .................................................................................11 Jensen v. Hewlett-Packard Co., 14 Cal.App.4th 958 (1993) ...........................................................................20, 21 Jensen v. Wells Fargo Bank, 85 Cal. App. 4th 245 (2000)...............................................................................15 ” Kelley v. Conco Companies, 196 Cal. App. 4th 191 (2011)...............................................................................9 King v. UPS, 152 Cal.App.4th 426 (2007)...............................................................................23 Case 5:15-cv-00991-JVS-DTB Document 23-1 Filed 07/25/16 Page 6 of 34 Page ID #:297 vi Case No. 15-cv-00991- JVS-DTB MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT 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 25591311_1.DOCX Live Oak Publishing Co. v. Cohagan, 234 Cal.App.3d 1277 (1991) ..............................................................................23 Loggins v. Kaiser Permanente Int’l, 151 Cal.App.4th 1102 (2007).............................................................................11 Martin v. Lockheed Missiles & Space Co., 29 Cal. App.4th 1718 (1994)..............................................................................11 McGrory v. Applied Signal, 212 Cal.App.4th 1510 (2013).............................................................................23 Raine v. City of Burbank, 135 Cal.App.4th 1215 (2006).............................................................................18 Regalia v. Nethercutt Collection, 172 Cal.App.4th 361 (2009)...............................................................................24 Scotch v. Art Institute of California, 173 Cal.App.4th 986 (2009)...........................................................................9, 15 Smith v. Maldonado, 72 Cal.App.4th 637 (1999) .................................................................................20 Taus v. Loftus, 40 Cal.4th 683 (2007).........................................................................................20 Thompson v. City of Monrovia (2010) 186 Cal.App.4th 860...........................................................................................19 Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280.............................................................................................19 Vogel v. Felice, 127 Cal.App.4th 1006 (2005).............................................................................22 White v. State of Cal., 17 Cal.App.3d 621 (1971) ..................................................................................23 Case 5:15-cv-00991-JVS-DTB Document 23-1 Filed 07/25/16 Page 7 of 34 Page ID #:298 vii Case No. 15-cv-00991- JVS-DTB MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT 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 25591311_1.DOCX Federal Statutes Fed.R.Civ.P. 56(a) .....................................................................................................7 ADA.........................................................................................................................16 COBRA..................................................................................................................5, 9 FEHA ................................................................................................................passim FMLA ...............................................................................................................passim California Statutes Cal Civ. Code § 45 ...............................................................................................................20, 24 § 46 .....................................................................................................................24 § 47(c).................................................................................................................22 § 3294(a).............................................................................................................25 Cal. Civ. Proc. Code § 437c(f)(1).........................................................................................................25 2 Cal. Code Regs. § 11069(a).....................................................................................................17, 18 Cal. Gov. Code § 12926(k)(1)(B)...........................................................................................16, 18 § 12940(n)...............................................................................................15, 14, 17 Other Authorities 5 Witkin Summary of Cal. Law, Torts, §§ 552-553................................................24 Case 5:15-cv-00991-JVS-DTB Document 23-1 Filed 07/25/16 Page 8 of 34 Page ID #:299 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 Case No. 15-cv-00991- JVS-DTB MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT 25591311_1.DOCX I. INTRODUCTION During Plaintiff Eric Witt’s short, 18-month employment with Defendant Oil- Dri Corporation (“Oil-Dri”) he had become known for his “in your face” and overly aggressive sales techniques, as well as his disappointing sales results. Dissatisfaction with Plaintiff’s performance peaked in June 2014. While preparing for a critical pitch to the national pet channel retailer PetSmart, it became ever more apparent that Plaintiff lacked the ability to succeed at Oil-Dri. His work product was late and disappointing; he failed to repair the presentation despite direct feedback from his superiors; and his supervisor had to intervene and fix the presentation at the last minute. In July 2014, Oil-Dri terminated Plaintiff for poor performance. Unable to accept the truth that his performance was inadequate, Plaintiff now claims that he was retaliated against for requesting and utilizing FMLA/CFRA leave and was discriminated against because of a “disability.” Plaintiff’s FMLA/CFRA claim is baseless. He admitted that the only day he requested off from work was granted, and that he never submitted the required medical certification to qualify the day off as FMLA/CFRA leave. Additionally, Plaintiff’s final attempt to request a leave for unspecified “medical testing” is inconsequential. By the time Plaintiff obtained and Oil-Dri received that doctor’s note, Oil-Dri had already made the decision to terminate his employment and sent a letter informing him of same. Plaintiff’s disability related claims are likewise meritless. Plaintiff did not suffer from a disability and was granted all the time off he requested to address a minor medical surgery. He further admitted that he had no other limitations and made no additional requests for accommodation. Further, Oil-Dri decided to terminate Plaintiff before it learned of his request for time off for unspecified medical testing, which ultimately never resulted in any finding of any medical condition, let alone a “disability,” Plaintiff’s defamation claim fares no better as he cannot identify any comments related to the reasons for his termination. Any other comments Plaintiff may rely on Case 5:15-cv-00991-JVS-DTB Document 23-1 Filed 07/25/16 Page 9 of 34 Page ID #:300 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 2 Case No. 15-cv-00991- JVS-DTB MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT 25591311_1.DOCX are mere opinions or privileged and therefore not actionable. II. STATEMENT OF FACTS A. Plaintiff’s Employment at Oil-Dri Headquartered in Chicago, Illinois, Oil-Dri makes and markets a variety of clay-based products through a consumer products division and a business to business division. (Uncontroverted Fact (“UF”) 1.)1 Oil-Dri hired Plaintiff as a Regional Sales Director on January 13, 2013 to sell clay cat litter to grocery stores and pet specialty outlets. (UF 2.) Plaintiff was hired to take over approximately half of an established region that had previously been successfully managed by a retiring employee and which still resulted in Plaintiff managing one of Oil-Dri’s smallest sales customer base. Id. Given that the region was far from Oil-Dri’s home office, it was important to have someone who was capable to operate without significant oversight, which Plaintiff had represented he could handle. (UF 3.) Plaintiff worked out of his home in Murrieta, California. (UF 4.) In his position, Plaintiff was not required to perform any physical labor but rather focused on selling product through meetings and phone calls. (UF 5.) Daniel Jones, Vice President of Sales, felt that Plaintiff had a very aggressive and ‘in your face’ sales technique that was not effective or consistent with Oil-Dri’s culture. (UF 7.) Jones delivered this feedback, as well as other areas of improvement, to Plaintiff in his initial performance review in September 2013, stating: “Eric can benefit from these areas of improvement: Team and Organization. Eric understands his weaknesses and at times involuntary [sic] can seem demanding or over energetic with his demands to certain teammates.” (UF 8) Plaintiff does not dispute these areas of improvement or receiving this feedback. Id. While Jones saw some initial red flags with Plaintiff, he felt he could work with Plaintiff and truly 1 All citations to an Uncontroverted Fact (“UF”)” correspond to citations contained in Defendants’ Statement of Uncontroverted Facts and Conclusions of Law. Case 5:15-cv-00991-JVS-DTB Document 23-1 Filed 07/25/16 Page 10 of 34 Page ID #:301 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 3 Case No. 15-cv-00991- JVS-DTB MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT 25591311_1.DOCX wanted to make it work. (UF 9.) B. Plaintiff Requested One Day Off for an Outpatient Shoulder Surgery Plaintiff hurt his shoulder playing hockey around January 2014. (UF 10.) This shoulder injury did not impact Plaintiff’s ability to work, nor did he require immediate medical attention to correct it. Id. Plaintiff testified that he let it heal, and it got better. (UF 11.) Sometime later, it started hurting when he was at home in the garage. Id. Plaintiff did not visit a doctor for his shoulder until the end of March 2014. Id. Prior to the surgery, Plaintiff’s doctor simply informed him if it hurts, don’t do it. (UF 12.) On April 21, 2014, Plaintiff emailed Jones, Kerstin Falvey (formerly Callahan), Human Resources Coordinator, and Sandra Richter, Jones’ executive assistant, that he was scheduled for shoulder surgery on April 25, 2014, that the doctor said he could work from home the first few days and that he would likely miss only that one day off work. (UF 13.) On April 23, 2014, Falvey provided Plaintiff information regarding his eligibility for FMLA leave and a FMLA Certification form for his doctor to complete. (UF 14.) Plaintiff never returned a completed FMLA Certification form for his shoulder surgery. (UF 15.) Plaintiff was still able to take the day off work for surgery without any problem. (UF 17.) Plaintiff’s surgery was an outpatient day surgery. (UF 18.) Following the surgery, Plaintiff’s only restrictions were to use a sling for two weeks and “don’t fall.” (UF 19.) He also attended physical therapy 5-7 times. Id. He has no limitations with his shoulder now. (UF 20.) Plaintiff never requested more than one day off for his surgery. (UF 21.) Certainly, Plaintiff never informed anyone at Oil-Dri that he needed a week or more off work following his surgery. (UF 22.) Plaintiff also never complained that he felt he needed more time off, or that he was denied leave. (UF 23.) Plaintiff is unaware of anyone making any derogatory comments regarding his shoulder or shoulder Case 5:15-cv-00991-JVS-DTB Document 23-1 Filed 07/25/16 Page 11 of 34 Page ID #:302 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 4 Case No. 15-cv-00991- JVS-DTB MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT 25591311_1.DOCX surgery.2 (UF 24.) C. Oil-Dri Decided to Terminate Plaintiff’s Employment Before It Received His Doctor’s Note for Time Off for “Medical Testing”. Jones and [FIRST NAME] Ziemnisky both felt that Plaintiff’s performance was deficient. Both felt that Plaintiff would talk a big game and make big promises regarding sales but would not deliver. (UF 26.) In May 2014, during the 2015 Sales Kick-Off meeting, Plaintiff met with Ziemnisky and apologized for his poor performance despite his prior assurances regarding increased sales. (Ziemnisky Decl., ¶ 3.) Ziemnisky left this conversation greatly concerned regarding Plaintiff’s ability to perform his duties, including concerns that he did not have a winning attitude, was not properly leveraging Oil-Dri’s resources and needed to be more proactive and strategically engaged. Id. Jones and Ziemnisky believed Plaintiff performed incredibly poorly related to an important presentation for PetSmart. (UF 27.) Plaintiff was tasked with preparing the presentation for a June 10, 2014 meeting with PetSmart. (UF 28.) Plaintiff did not hold a planning meeting with Jones and Ziemnisky until June 5, 2010, and failed to provide a draft presentation until just four days before the meeting. (UF 29.) Both Jones and Ziemnisky felt Plaintiff’s presentation was shoddy and unprofessional. Ziemnisky provided immediate feedback and specific direction. (UF 30.) Despite this, on the eve of the meeting, the presentation was still not to Jones’ satisfaction. (UF 31.) Accordingly, the morning of the meeting, Jones was forced to rework portions of the presentation. (UF 32.) Jones was so displeased with Plaintiff’s work and effort related to the PetSmart presentation that he believed at that point that Plaintiff’s employment needed to be terminated. (UF 33.) Following the PetSmart presentation, Jones contacted a few of the brokers that 2 Indeed, numerous employees at Oil-Dri, including Ziemnisky, signed a ‘get well soon’ card for Plaintiff. (UF 25.) Case 5:15-cv-00991-JVS-DTB Document 23-1 Filed 07/25/16 Page 12 of 34 Page ID #:303 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 Case No. 15-cv-00991- JVS-DTB MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT 25591311_1.DOCX worked with Plaintiff and confirmed his belief that Plaintiff was not performing to Oil-Dri’s standards. (UF 34.) Brokers complained about Plaintiff, including that he was not coordinating well and was not providing them support. Id. Plaintiff’s sales numbers also demonstrated his inferior performance. While Plaintiff’s 2014 sales were up in some categories, his profits were down. (UF 35.) Moreover, as of April 2014, Plaintiff was behind at meeting his quota (only at 59% verses 66%) and his sales from last year had only increased less than one percent - a mere 0.72%. Id. By comparison, at this time, Oil-Dri was seeing approximately 24% growth overall, where the overall cat litter market was experiencing only 4% growth. Id. Finally, while Plaintiff points to his increased sales at Albertsons, that increase is not due to his efforts or skill. At that time, Albertsons had been bought out by a venture capitalist and due to some restructuring enjoyed a significant increase in its sales. This increase naturally resulted in increased sales for Oil-Dri. (UF 36.) Following the PetSmart debacle, Jones contacted Ziemnisky and informed him of his concerns about Plaintiff. (UF 37.) The two discussed Plaintiff’s performance, and after consulting with Kevin Breese, Oil-Dri’s Vice President of Human Resources, determined to terminate Plaintiff due to his poor performance. Id. This decision was made no later than July 7, 2014. (UF 38.) On July 8, 2014, Falvey learned that Plaintiff would be terminated effective July 14, 2014. (UF 39.) Because she was leaving for her wedding on July 9th, Falvey started the termination process, including notifying Oil-Dri’s external benefits administrator regarding the termination. Id. Oil-Dri had just recently changed benefits administrators and Falvey was not aware that when she input the termination information in the new system, the provider would automatically send the COBRA notice. (UF 40.) On July 9, 2014, the benefits administrator sent Plaintiff a COBRA notice, which stated that “on 7/14/2014, you experienced an event of a/an Termination - Involuntary…” Id. The notice may have arrived in California as early as July 10. Id. Case 5:15-cv-00991-JVS-DTB Document 23-1 Filed 07/25/16 Page 13 of 34 Page ID #:304 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 6 Case No. 15-cv-00991- JVS-DTB MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT 25591311_1.DOCX On Thursday, July 10, 2014, Jones asked Plaintiff to meet with him and Ziemnisky on Monday, July 14, 2014 in Anaheim, California. Plaintiff confirmed his availability. (UF 41.) The purpose of this meeting was to inform Plaintiff of his termination in person. (UF 42.) On July 11, 2014, Plaintiff went to the doctor. (UF 43.) He claims he went because he was not processing information correctly and was not on his “A” game. (Pl. Depo., 201:23-203:3.) Plaintiff does not know if those issues impacted his work. (UF 44.) Plaintiff never informed Oil-Dri about these issues or his now-belief they may have been linked to his prior shoulder injury and surgery. (UF 45.) Rather, on July 11, 2014, after Plaintiff attended a morning teleconference, he emailed Breese, Falvey and Jones a copy of a doctor’s note, which stated that “he will be undergoing some extensive medical testing requiring him not to work.” (UF 46.) All of the test results ultimately came back negative. (UF 47.) In response to Plaintiff’s July 11, 2014 email and doctor’s note, Kevin Lange, Corporate Benefits Manager, emailed Plaintiff FMLA paperwork and requested that he return it within 15 calendar days. (UF 48.) Plaintiff never submitted the completed FMLA paperwork. (UF 49.) Breese also made two attempts to follow up with Plaintiff regarding his medical note but Plaintiff never responded. (UF 50.) On Monday, July 14, 2014, Plaintiff failed to appear at his scheduled meeting with Jones and Ziemnisky. (UF 51.) Jones and Ziemnisky unsuccessfully attempted to contact Plaintiff, and even attempted to go to Plaintiff’s home to talk to him. Id. Accordingly, Ziemnisky emailed Plaintiff informing him of his termination. Id. The only times that Plaintiff requested time off work for any medical condition were the request for one day off for shoulder surgery and the July 11, 2014 doctor’s note. (UF 52.) Plaintiff never had any physical limitations during his employment that related to the essential functions of his job. The only minor limitation related to his shoulder, which included one day off work and two weeks in a sling. (UF 53.) Plaintiff did not ask for any other form of accommodation for any limitation. (UF Case 5:15-cv-00991-JVS-DTB Document 23-1 Filed 07/25/16 Page 14 of 34 Page ID #:305 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 7 Case No. 15-cv-00991- JVS-DTB MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT 25591311_1.DOCX 54.) D. Plaintiff Has No Knowledge of Any Defamatory Statements. Plaintiff’s defamation claim against Oil-Dri and Ziemnisky is based on Ziemnisky’s July 14, 2014 termination email to Plaintiff. (UF 55.) No one besides Plaintiff, Jones and Breese received the email. (UF 56.) Plaintiff cannot recall any statements by any Oil-Dri employee regarding the reasons for his termination. (UF 57.) Plaintiff has no knowledge of anyone at Oil-Dri stating he was terminated for performance. (UF 58.) In fact, Plaintiff has no knowledge of any false statements made about him by any Oil-Dri employee, including Ziemnisky.3 (UF 59.) No employers contacted Oil-Dri seeking a reference check or making any inquiries regarding Plaintiff’s employment at Oil-Dri. (UF 60.) III. LEGAL ARGUMENT A. The Applicable Standard for Granting Summary Judgment Summary judgment should be granted where “there is no genuine dispute as to any material fact and . . . the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A fact is “material” only if it “might affect the outcome of the suit under the governing law[.]” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is “genuine” only “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. Once the moving party satisfies its initial burden of showing that no genuine issue of material fact exists for trial, “the non-moving party must establish the existence of a genuine factual dispute on the basis of admissible evidence; bare allegations without evidentiary support are insufficient to survive summary judgment.” Estate of Tucker ex rel. Tucker v. Interscope Records, Inc., 515 F.3d 1019, 1033 n.14 (9th Cir. 2008). / / / / / / 3 Plaintiff does not even know why he is suing Ziemnisky for defamation. (UF 59.) Case 5:15-cv-00991-JVS-DTB Document 23-1 Filed 07/25/16 Page 15 of 34 Page ID #:306 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 Case No. 15-cv-00991- JVS-DTB MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT 25591311_1.DOCX B. Plaintiff’s First Claim for FMLA/CFRA Retaliation Fails as a Matter of Law. To prove a FMLA/CFRA retaliation claim, Plaintiff must establish that: (1) Oil-Dri was a covered employer; (2) Plaintiff was eligible for CFRA leave; (3) Plaintiff exercised his right to take leave for a qualifying purpose; and (4) Plaintiff suffered an adverse employment action because he exercised the right to take CFRA leave. Dudley v. Department of Transp., 90 Cal.App.4th 255, 261 (2001), relying on Hodgens v. General Dynamics Corp., 144 F.3d 151, 161 (1st Cir. 1998) (defining elements for retaliation in violation of FMLA). Once an employee “establishes a prima facie case, the employer is required to offer a legitimate, non-retaliatory reason for the adverse employment action. If the employer produces a legitimate reason for the adverse employment action, the presumption of retaliation drops out of the picture, and the burden shifts back to the employee to prove intentional retaliation. See Faust v. California Portland Cement Co., 150 Cal.App.4th 864, 885 (2007); Hodgens, 144 F.3d at 160. 1. Plaintiff Cannot Establish a Prima Facie Case of FMLA/CFRA Retaliation. Here, there is no evidence to suggest that Oil-Dri terminated Plaintiff’s employment because he exercised any CFRA rights. Plaintiff only requested a single day off work for his shoulder surgery. (UF 21.) Oil-Dri provided Plaintiff the FMLA certification forms but Plaintiff never returned them. (UF 14-15.) Regardless, it is undisputed that Plaintiff took the requested day off without any issue. (UF 17.) Plaintiff also has no evidence to suggest anyone at Oil-Dri harbored any animus towards him for taking this single day off. Plaintiff’s unsupported allegation that Jones engaged in some hockey banter and told him to “suck it up, don’t be a pussy, don’t pull a Paul” does not support Plaintiff’s claim. (Pl. Depo., 184:20- 186:22; Verified Compl., ¶ 17.) The FEHA, or CFRA for that matter, “should not be Case 5:15-cv-00991-JVS-DTB Document 23-1 Filed 07/25/16 Page 16 of 34 Page ID #:307 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 9 Case No. 15-cv-00991- JVS-DTB MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT 25591311_1.DOCX transformed into a general civility code for the American workplace.” Kelley v. Conco Companies, 196 Cal. App. 4th 191, 2014 (2011); see Holmes v. Petrovich Dev. Co., 191 Cal.App.4th 1047 (2011). Further, while Plaintiff now claims that his doctor recommended that he take a week off following the surgery, even if true, that information was never conveyed to anyone at Oil-Dri, including Jones. (UF 21-22.) Jones, therefore, could not have attempted to dissuade Plaintiff from following his doctor’s recommendation or harbored any animus against him for desiring to take additional time off for the simple reason that he had no knowledge of it. Jones did not mind at all that Plaintiff took that day off and would not have cared had Plaintiff required or taken more time off. (UF 16.) His sole response was simple, “That’s to [sic] bad. Hang up the skates!” followed by efforts to ensure Plaintiff had everything he needed to take any time off. Id. The lack of animus is further demonstrated by Oil-Dri sending a “get well” card to Plaintiff following the surgery. Plaintiff’s July 11, 2014 doctor’s note indicating a need for time off for “medical testing” cannot be the basis of a retaliation claim. The incontrovertible evidence shows that by the time Plaintiff obtained the note and emailed it to Oil-Dri, the termination decision had already been made, and indeed, had been relayed to an outside vendor who initiated COBRA notices. (UF 33, 38-39.) At the time the decision was made, neither decision-maker was aware of the impending need for Plaintiff to utilize any protected medical leave. (UF 38-39, 46.) Accordingly, the termination decision could not have been based on this subsequent request for medical leave. Krutzig v. Pulte Home Corp., 602 F.3d 1231, 1235 (11th Cir. 2010); see also Scotch v. Art Institute of California, 173 Cal.App.4th 986, 1008 (2009). 2. Oil-Dri Terminated Plaintiff’s Employment for Legitimate, Non-Discriminatory Reasons Assuming, arguendo, that Plaintiff satisfies his prima facie case of retaliation, Oil-Dri articulated a legitimate, non-retaliatory reason for the termination - poor Case 5:15-cv-00991-JVS-DTB Document 23-1 Filed 07/25/16 Page 17 of 34 Page ID #:308 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 10 Case No. 15-cv-00991- JVS-DTB MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT 25591311_1.DOCX performance. The employer’s burden is not onerous and is met if it “simply explains what he had done or produce(s) evidence of legitimate non-discriminatory reasons.” Board of Trustees of Keene State Coll. v. Sweeney, 439 U.S. 24, 25 (1978). Here, it is undisputed that both Jones and Ziemnisky believed that Plaintiff’s performance was not to Oil-Dri’s expectations. Issues with Plaintiff’s performance were specifically communicated well before Plaintiff even injured his shoulder. While Jones immediately recognized that Plaintiff was not the seasoned professional Oil-Dri thought it had hired, he felt he could work with Plaintiff and assist him to become a contributing member, over time Plaintiff proved him wrong. While Plaintiff was seeing some increase in sales, it did not translate into an increase in profits. Indeed, profits related to Plaintiff’s customers decreased from 2013 to 2014. Moreover, Jones and Ziemnisky both felt that Plaintiff talked a big game but would never deliver on his promises. For example, he made all sorts of pledges about getting Oil-Dri products into Winco but failed to actually do so. (UF 26.) Jones’ and Ziemnisky’s concerns all culminated in Plaintiff’s late and shoddy preparation of a presentation for a very important meeting with a critical customer, the PetSmart retail chain. While Plaintiff may feel his presentation was wonderful or that issues between Jones and Ziemnisky were causing his poor work product, it is irrelevant. It is undisputed that both Jones and Ziemnisky felt Plaintiff failed to make the necessary preparations and his presentation was a disaster. For this reason, Jones spent considerable time reworking the presentation just prior to the meeting. Following that debacle, Jones investigated and confirmed that others, including outside brokers who worked directly with Plaintiff and grocer clients, were unhappy with Plaintiff’s work performance. He and Ziemnisky determined that Plaintiff’s inability to perform to Oil-Dri’s standards, justified his termination. 3. Plaintiff Cannot Establish Pretext. Since Oil-Dri has established a legitimate reason for Plaintiff’s termination, the presumption of retaliation ‘drops out of the picture,’ and the burden shifts back to the Case 5:15-cv-00991-JVS-DTB Document 23-1 Filed 07/25/16 Page 18 of 34 Page ID #:309 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 11 Case No. 15-cv-00991- JVS-DTB MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT 25591311_1.DOCX Plaintiff to prove intentional retaliation. Faust, 150 Cal.App.4th at 885. In order to avoid summary judgment, Plaintiff must demonstrate by substantial responsive evidence that Oil-Dri’s stated reasons for its actions were false and a mere pretext for discrimination. Martin v. Lockheed Missiles & Space Co., 29 Cal. App.4th 1718, 1735 (1994); Hersant v. Dep’t of Social Serv., 57 Cal.App.4th 997, 1004-05 (1997). Plaintiff must produce evidence in addition to that which was sufficient for his prima facie case in order to rebut Oil-Dri’s showing. Wallis v. J.R. Simplot Co., 26 F.3d 885, 890 (9th Cir. 1994). “[S]peculation cannot be regarded as substantial responsive evidence.” Martin, supra, 29 Cal.App.4th at 1735. “[S]imply showing the employer’s decision was wrong, mistaken, or unwise” is insufficient to establish pretext. Horn v. Cushman & Wakefield Western, Inc. 72 Cal.App.4th 798, 807 (1999). “[T]he factual dispute at issue is whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent, or competent.” Hersant, 57 Cal.App.4th at 1005; see also Loggins v. Kaiser Permanente Int’l, 151 Cal.App.4th 1102, 1112 n.7 (2007); Villiarimo v. Aloha Island Air, Inc., 281 F3d 1054, 1063 (9th Cir. 2002). Case law establishes that courts should not sit as super-personnel departments and second-guess the decisions of management. See Grosz v. Boeing Co., 455 F. Supp. 2d 1033, 1036 (C.D. Cal. 2006) (“This Court’s role is to prevent discriminatory and retaliatory employment practices, not to second guess employment decisions made for legitimate business reasons, regardless of whether those decisions are unfair, arbitrary, or unreasonable.”). The Ninth Circuit has long held that discrimination laws are “not intended as a vehicle for general judicial review of business decisions.” Douglas v. Anderson, 656 F.2d 528, 535 (9th Cir. 1981). Furthermore, Plaintiff’s subjective belief that he should not have been discharged for his performance is irrelevant. Cotran v. Rollins Hudig Hall Int’l. Inc. (1998) 17 Cal.4th 93, 100. Rather, in order to raise a triable issue as to the employer’s stated reasons, the employee must set forth specific facts demonstrating Case 5:15-cv-00991-JVS-DTB Document 23-1 Filed 07/25/16 Page 19 of 34 Page ID #:310 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 12 Case No. 15-cv-00991- JVS-DTB MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT 25591311_1.DOCX “such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered reasons for its actions that a reasonable fact finder could rationally find them ‘unworthy of credence’.” Hersant, 57 Cal.App.4th at 1005. “The ultimate burden of persuasion on the issue of actual discrimination remains with the plaintiff.” Guz v. Bechtel National, Inc., 24 Cal.4th 317, 356 (2000). Again, Plaintiff cannot meet his burden. (a) Plaintiff’s Belief that He Was a Great Performer Does Not Undermine Oil-Dri’s Decision to the Contrary. Plaintiff’s response to Oil-Dri’s reason for his termination simply amounts to an unsupported assertion that he was actually a great performer. He offers nothing more to support his claims and establish a nexus between his termination and his one day of leave, two and half months before his termination. The information he does provide is woefully inadequate. He touts his sales numbers with Albertsons, claims that he received a merit increase, was awarded a stock agreement, references his initial nine-month evaluation, selectively cites to various emails supposedly praising his work and cites general disagreements between Jones and Ziemnisky for his PetSmart failure. (Verified Compl., ¶¶ 9, 12, 14-16, 20; Pl. Depo., 156:25-157:21.) None of this actually disproves his poor performance, or more importantly, Oil-Dri’s honest perception of his poor performance. While the sales numbers with Albertsons did improve, they were not the sole bases on which Plaintiff’s performance was based, nor were they even the result of Plaintiff’s own performance. Rather, Jones believed that Plaintiff benefited from Albertsons’ restructuring, which resulted in increased sales for all products sold at Albertsons. (UF 36.) Plaintiff’s reliance on his “merit increase” and stock agreement are also misplaced. All Regional Sales Directors received the same benefits and neither was based on performance or merit. (UF 6.) Plaintiff’s further reliance on his September 1, 2013 Performance Review (merely 9 months into his employment) and the selected praises are similarly Case 5:15-cv-00991-JVS-DTB Document 23-1 Filed 07/25/16 Page 20 of 34 Page ID #:311 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 13 Case No. 15-cv-00991- JVS-DTB MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT 25591311_1.DOCX inadequate to show pretext. Initially, as noted above, the review contained constructive feedback, which Plaintiff does not deny, and which behavior persisted. Further, Plaintiff’s early, overall “Good/Meets Expectation” rating also does not refute the fact that in July 2014, ten months later, Jones and Ziemnisky found his performance unacceptable. Numerous things had happened since 2013, including the PetSmart debacle, the subsequent feedback from brokers and clients and Plaintiff’s 2014 numbers, which showed a decrease in profits. (UF 27-36.) The emails which Plaintiff cites, apparently commending his performance, are primarily from individuals who were not involved in the decision to terminate Plaintiff, were not his supervisors and are grossly overstated and misinterpreted by Plaintiff. (Verified Compl., ¶¶ 15-16, 20.) Moreover, the comments do not establish pretext. At most, they congratulate Plaintiff for his Albertsons numbers and include the general motivating statements one would expect from good leadership. Nothing calls into question Jones’ and Ziemnisky’s belief in July 2014 that Plaintiff’s performance justified termination. Finally, it is undisputed that both Jones and Ziemnisky felt Plaintiff’s PetSmart presentation failed expectations. (UF 27-33.) (b) Plaintiff’s Excuses of Workload Do not Prove Pretext. Plaintiff also tries to excuse his performance by blaming it on additional work he inherited due to taking over another Regional Sales Director’s territory and clients, the loss of a Business Development Manager and the added work that accompanied an acquisition by Oil-Dri. (Verified Compl., ¶¶ 10-11, 13.) Even if there was any merit to these excuses, excuses do not immunize one from termination for poor performance. Regardless, Plaintiff’s excuses have no merit. First, the expanded territory Plaintiff took over was only temporary and covered the same territory that Plaintiff’s predecessor covered alone. (UF 61.) Second, any temporary loss of a Business Development Manager affected all of the Regional Sales Directors, not just Plaintiff. (UF 62.) Finally, all Regional Sales Directors obtained additional work as a result of the acquisition. (UF 63.) Case 5:15-cv-00991-JVS-DTB Document 23-1 Filed 07/25/16 Page 21 of 34 Page ID #:312 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 14 Case No. 15-cv-00991- JVS-DTB MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT 25591311_1.DOCX The truth is that Plaintiff simply could not meet Oil-Dri’s performance expectations. Any disagreement regarding those expectations simply proves Plaintiff’s inability to perform his job. Plaintiff’s belief that his performance was up to or above par and that the termination was unwarranted avails him nothing. “[A]n employee’s subjective personal judgments of [his] competence alone do not raise a genuine issue of material fact.” Bradley v. Harcourt, Brace and Co., 104 F.3d 267, 270 (9th Cir. 1996). Even if Oil-Dri’s perception of Plaintiff’s performance was completely wrong, his retaliation claim still fails. The ultimate issue here is simply whether Oil-Dri acted with an improper motive. If the reason proffered by Oil-Dri is honestly believed, pretext is not established regardless of how foolish the proffered reason may be. Guz, 24 Cal.4th at 358 (citing Kariotis v. Navistar Intern. Transp. Corp., 131 F.3d 672, 676 (7th Cir. 1997) (proffered reasons, if “nondiscriminatory on their face” and “honestly believed” by employer, will suffice even if “foolish or trivial or baseless”); see also Fuentes v. Perskie, 32 F.3d 759, 765 (3d. Cir. 1994) (issue is discriminatory animus, not whether employer's decision was “wrong or mistaken,” or whether employer is “wise, shrewd, prudent, or competent”). It is undisputed that Jones and Ziemnisky, believed that Plaintiff’s performance was unacceptable and termination was appropriate. (UF 7, 9, 26-37, 61-63.) Plaintiff has no evidence to establish, or even infer, the contrary. This defeats Plaintiff’s claim as a matter of law. C. Plaintiff’s Second and Third Claims for Failure to Engage in the Interactive Process and Failure to Accommodate Fail. The Fair Employment and Housing Act (“FEHA”) “makes it an unlawful employment practice to discriminate against any person because of a physical or mental disability.” Faust, 150 Cal. App. 4th at 886; Avila v. Cont’l Airlines, Inc., 165 Cal. App. 4th 1237, 1246 (2008); see Cal. Gov’t Code § 12940. To establish a prima facie case of disability discrimination under FEHA, Plaintiff must show he: suffers Case 5:15-cv-00991-JVS-DTB Document 23-1 Filed 07/25/16 Page 22 of 34 Page ID #:313 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 15 Case No. 15-cv-00991- JVS-DTB MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT 25591311_1.DOCX from a disability; is otherwise qualified to do the job with or without reasonable accommodation; and was subjected to an adverse employment action because of the disability. See Higgins-Williams v. Sutter Medical Foundation, 237 Cal.App.4th 78, 84 (2015); Faust, 150 Cal. App. 4th at 886. The FEHA also imposes a separate obligation on employers to participate in a timely, good faith interactive process to “determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee ….” Cal. Gov. Code § 12940(n). Both the employer and employee have the obligation to “keep communications open” and neither has “a right to obstruct the process.” Jensen v. Wells Fargo Bank, 85 Cal. App. 4th 245, 266 (2000). Even though the employee need not provide a specific request for a particular accommodation, the “employee cannot demand clairvoyance of his employer.” Id. Further, to establish a claim for failure to provide a reasonable accommodation under the FEHA, Plaintiff must show (1) he had a disability of which Oil-Dri was aware, (2) he was able to perform the essential functions of the job at issue with or without accommodation, and (3) Oil-Dri failed to reasonably accommodate his disability. Scotch, 173 Cal.App.4th at 1012. As stated more fully below, Plaintiff’s Second, Third and Fourth causes of action all must fail because (1) Plaintiff did not suffer from a “disability” covered by FEHA; (2) Oil-Dri provided Plaintiff with the only accommodation he requested (i.e., one day off work for shoulder surgery); and (3) Plaintiff cannot show that the decision to terminate his employment was a pretext for disability discrimination. 1. Plaintiff Did Not Suffer From a Qualified Disability All of Plaintiff’s disability-related claims fail as a threshold matter because he cannot establish he was disabled under the FEHA. A person has a “physical disability”4 if he has a physiological condition that “[l]imits a major life activity.” 4 Plaintiff alleges only that he suffered from a physical disability. (Verified Compl., ¶¶ 46- 47, 52-53.) Case 5:15-cv-00991-JVS-DTB Document 23-1 Filed 07/25/16 Page 23 of 34 Page ID #:314 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 Case No. 15-cv-00991- JVS-DTB MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT 25591311_1.DOCX Cal. Gov. Code § 12926(k)(1)(B). Plaintiff never suffered from any such limitations. With respect to Plaintiff’s shoulder injury, Plaintiff admits that the only limitation he suffered was being in a sling for two weeks. (UF 19, 53.) The shoulder injury itself did not impact his ability to work, and his doctor did not give him any restrictions. (UF 10-12.) Indeed, when he reported the surgery to Oil-Dri, he specifically indicated that the doctor believed he would be able to work from home (which he did anyway as a remote employee) for a few days following the surgery and that he would only need to miss one day of work for the actual surgery. (UF 4, 13.) This type of temporary and mild impairment does not a disability create. See Sanders v. Arneson Products, Inc., 91 F3d 1351, 1353-54 (9th Cir. 1996) (psychological impairment lasting 3 ½ months was too short in duration to constitute a disability); Wilmarth v. City of Santa Rosa 945 F.Supp. 1271, 1277 (N.D. CA 1996) (existence of impairment lasting 2 years and 2 months was temporary and not a disability under the ADA); Fischbach v. Community Mercy Health Partners, No. 3:11cv00016, 2012 WL 4483220 (S.D. Ohio Sept. 27, 2012) (finding that a knee injury requiring surgery did not constitute a disability). Plaintiff’s two week stint with his arm in a sling does not constitute a disability and therefore placed no obligation on Oil-Dri to accommodate Plaintiff. Moreover, Plaintiff admits that he was able to perform his job duties with the exception of the one day he was able to take off work for the surgery. Indeed, Plaintiff’s discrimination and retaliation claims are premised on his assertion that he was performing his duties in an exemplary manner, including attending a meeting five days after his outpatient surgery. (Pl. Depo.,184:19-185:5, 186:6-10.) Thus, Plaintiff has no evidence to show that he was disabled. See Arteaga v. Brink’s, Inc., 163 Cal.App.4th 327, 346-349 (2008) (plaintiff not disabled where symptoms did not create a problem for plaintiff in performing his job duties, and where there was no medical record identifying limitations). His disability claims fail as a matter of law. Case 5:15-cv-00991-JVS-DTB Document 23-1 Filed 07/25/16 Page 24 of 34 Page ID #:315 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 17 Case No. 15-cv-00991- JVS-DTB MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT 25591311_1.DOCX 2. Plaintiff Received the Accommodations that He Requested. A claim for failure to accommodate and/or failure to engage in the interactive process necessarily requires some evidence that Oil-Dri did not accommodate Plaintiff or engage in the interactive process. See Cal. Gov. Code § 12940(n) (premising liability on an employer’s failure to engage in the interactive process with an employee with disabilities); 2 Cal. Code Regs. § 11069(a) (same). Plaintiff’s claims fail for the simple reason that Plaintiff got everything he asked for related to any alleged disability. Plaintiff admits that the only limitation he had during his employment related to his shoulder, that he only requested one day off work and that this sole request was fully accommodated. (UF 21-22, 52-53.) Accordingly, because Plaintiff lacks any request that was not accommodated, his accommodation and interactive process claims fail as a matter of law. 3. The Request for a Leave for “Medical Testing” After a Termination Decision is not Actionable. Equally non-actionable is a doctor’s note indicating that Plaintiff would not be able to work as he would be “undergoing some extensive medical testing”. The note cannot be the basis for a claim as the decision to terminate was made before the note was sent to Oil-Dri. Oil-Dri was not aware of the need for leave and the undefined medical testing until after it had made the decision to terminate Plaintiff. (UF 37, 43- 46.) This fact alone defeats any reliance on any alleged disability arising out of these facts to support any of Plaintiff’s disability claims. The undisputed facts reveal that despite already having a termination meeting scheduled for Monday, July 14, 2014, when Oil-Dri learned of the July 11, 2014 note, it attempted to follow up with Plaintiff about his time off. (UF 41-42, 48-50.) Plaintiff failed to respond and was terminated on the pre-appointed date. (UF 38, 49-51.) Even if the note arrived before the termination decision was made, it would not be sufficient for a claim because it does not disclose a disability. Medical tests are Case 5:15-cv-00991-JVS-DTB Document 23-1 Filed 07/25/16 Page 25 of 34 Page ID #:316 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 18 Case No. 15-cv-00991- JVS-DTB MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT 25591311_1.DOCX not a physiological condition that “[l]imits a major life activity.” Cal. Gov. Code § 12926(k)(1)(B). That did not happen here, as the medical tests actually confirmed that Plaintiff did not suffer from a disability as they came back negative. (UF 47.) Moreover, “[t]he duty of an employer reasonably to accommodate an employee’s handicap does not arise until the employer is aware of respondent’s disability and physical limitations.” Raine v. City of Burbank, 135 Cal.App.4th 1215, 1222 (2006). “[K]nowledge will only be imputed to the employer when the fact of disability is the only reasonable interpretation of the known facts. Vague or conclusory statements revealing an unspecified incapacity are not sufficient to put an employer on notice of its obligations under the [FEHA].” Brundage v. Hahn, 57 Cal.App.4th 228, 237 (1997) (citations omitted) (emphasis added). Plaintiff’s July 11, 2014 doctor’s note is utterly devoid of any information from which Oil-Dri could discern whether Plaintiff had a disability, and his claims should fail. 5 D. Plaintiff’s Disability Discrimination Claim Likewise Fails. Plaintiff bases his disability claim on the allegations that Oil-Dri did not accommodate his request for time off and that it terminated his employment. (Verified Compl., ¶ 53.) Even if Plaintiff had a FEHA-covered disability, his discrimination claim fails as a matter of law as he cannot show that he was terminated because of his alleged disability. As thoroughly discussed with respect to Plaintiff’s FMLA/CFRA retaliation claim, supra, Oil-Dri’s legitimate and non- discriminatory reasons for its termination and Plaintiff’s inability to present substantial and responsive evidence of pretext, preclude any finding of discrimination. 5 To the extent this note is a valid request for accommodation, at best, it is a request for indefinite leave. Indefinite leaves of absence are unreasonable and need not be granted. See 2 Cal. Code Reg. § 11068(c) (“An employer, however, is not required to provide an indefinite leave of absence as a reasonable accommodation.”); see also Wynes v. Kaiser Permanente Hosp., 936 F. Supp. 2d 1171, 1184 (E.D. Cal. 2013). Breese did ask Plaintiff how long he anticipated being out, but Plaintiff did not respond. (UF 50.) Case 5:15-cv-00991-JVS-DTB Document 23-1 Filed 07/25/16 Page 26 of 34 Page ID #:317 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 19 Case No. 15-cv-00991- JVS-DTB MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT 25591311_1.DOCX Plaintiff also has no knowledge that anyone at Oil-Dri harbored any animus as a result of his shoulder injury and surgery. Plaintiff testified that is unaware of anyone making any derogatory comments regarding his shoulder or shoulder surgery. (UF 24.) Finally, as noted, it is also undisputed that Oil-Dri decided to terminate Plaintiff before he sent his July 11, 2014 doctor’s note indicating his need for “medical testing.” Oil-Dri could take no action against Plaintiff based on a non- existent disability about which it had no knowledge. E. Plaintiff’s Fifth Claim for Failure to Prevent Retaliation and Discrimination Fail as a Matter of Law Without a finding of retaliation or discrimination, there can be no claim for a failure to prevent retaliation and discrimination. See Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280, 288-289; see also Thompson v. City of Monrovia (2010) 186 Cal.App.4th 860, 880. F. Plaintiff’s Wrongful Termination Claim Fails as a Matter of Law. Plaintiff’s wrongful termination in violation of public policy claim is entirely derivative of his FMLA/CFRA retaliation claim and his FEHA discrimination claim. (Verified Compl., ¶ 64.) When summary judgment is appropriate for the statutory claim, it is automatically appropriate for the common law public policy claim. See Love v. Motion Industries, Inc., 309 F.Supp.2d 1128, 1135 (N.D. Cal. 2004); see also Artega v. Brink’s, Inc., 163 Cal.App.4th 327, 355 (2008); Hanson v. Lucky Stores, Inc., 74 Cal.App.4th 215, 229 (1999). Because Plaintiff’s statutory claims fail as a matter of law, his public policy claim also fails. G. Plaintiff’s Defamation Claim Fails as a Matter of Law. To establish a claim for defamation, Plaintiff must prove that: (1) a false and defamatory statement was made about him; (2) the alleged defamatory statement was published to a third party; (3) the statement was not an expression of opinion; (4) the statement tended directly to injure Plaintiff in his profession; (5) the statement was Case 5:15-cv-00991-JVS-DTB Document 23-1 Filed 07/25/16 Page 27 of 34 Page ID #:318 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 20 Case No. 15-cv-00991- JVS-DTB MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT 25591311_1.DOCX not privileged; and (6) has a tendency to injure and cause special damage. Cal Civ. Code § 45-46; Taus v. Loftus, 40 Cal.4th 683, 720 (2007); Smith v. Maldonado, 72 Cal.App.4th 637, 645 (1999).6 According to the pleadings and Plaintiff’s testimony, the claim for defamation is based solely on the statement in Plaintiff’s July 14, 2014 termination notice that he was “terminated for poor job performance.” (UF 55.) Plaintiff may further allege that Ziemnisky made post-termination statements to Oil-Dri Manager Craig Aukamp that Plaintiff was untruthful about his medical leave (Aukamp Depo., 18:15-22:16, 38:5-13), or that Ziemnisky made various remarks about Plaintiff, such as calling him a fucking moron, an incompetent baboon, an idiot, saying he couldn’t find his ass from a hole in the ground and we’re better off without him. (Aukamp Depo., 17:24- 18:11, 21:3-13). These statements can be synthesized into three categories: (1) Plaintiff was terminated for poor performance; (2) Plaintiff was untruthful about his medical leave and (3) name calling. The indisputable evidence demonstrates that the alleged “defamatory statements,” to the extent they were made, are not legally actionable. 1. Plaintiff’s Reliance on the Termination Notice Fails As Defendants Made No False Statements of Fact. Plaintiff cannot establish a defamation claim without admissible evidence showing that the speaker made a provably “false statement of fact.” Jensen v. Hewlett-Packard Co., 14 Cal.App.4th 958, 970 (1993). “[T]he truth of the offensive statements…is a complete defense against civil liability, regardless of bad faith or malicious purpose.” Maldonado, 72 Cal.App.4th at 646. Here, any statement, including the notice to Plaintiff, about his termination is 6 Summary judgment is a “favored remedy” to defamation claims, and “courts impose more stringent burdens on one who opposes the motion and require a showing of high probability that the plaintiff will ultimately prevail in the case.” Couch v. San Juan Unified Sch. Dist., 33 Cal.App.4th 1491, 1499 (1995). Case 5:15-cv-00991-JVS-DTB Document 23-1 Filed 07/25/16 Page 28 of 34 Page ID #:319 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 21 Case No. 15-cv-00991- JVS-DTB MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT 25591311_1.DOCX indisputably true. Plaintiff may disagree with the assessment of his performance but he cannot refute the fact that his termination was based on Jones’ and Ziemnisky’s belief and perception that Plaintiff was not performing to Oil-Dri’s standards. 2. The Termination and Name Calling Statements are Non- Actionable Statements of Opinion. An established defense in defamation actions is that the alleged statements are opinions, not assertions of fact. Copp v. Paxton, 45 Cal.App.4th 829, 837 (1996). A statement of opinion “cannot be false” and thus is not defamatory. Jensen, 14 Cal.App.4th at 970. Publications which are statements of opinion rather than fact, “[e]ven if they are objectively unjustified or made in bad faith,” cannot be defamation. Id. (statement of opinion in employment context cannot give rise to defamation). Whether an alleged defamatory statement constitutes opinion “is a question of law to be decided by the court.” Id. at 971. In assessing whether a statement is one of opinion, the dispositive question is whether the statement implies a provably false factual assertion. Id. at 970. Importantly, broad, unfocused, and subjective statements are considered non-actionable opinion. Id. California law is certain that an employer’s assessment of “poor performance” by an employee is a non-actionable statement of opinion. Id. (statements that employee “had been the subject of some third party complaints, was not carrying his weight, had a negative attitude in dealing with others, evidenced a lack of direction in his project activities and was unwilling to take responsibility for the projects he oversaw” were statements of opinion); Gould v. Maryland Sound Indus., Inc., 31 Cal.App.4th 1137, 1154 (1995) (statement accusing employee of “poor performance” a non-actionable statement of opinion). The same is true here. The termination notice simply indicates that Plaintiff was being terminated for “poor performance” without reference to any specific fact that could be verifiably false. The alleged name-calling statements were similarly non-actionable opinions and did not “imply a provably false factual assertion.” Ferlauto v. Hamsher, 74 Case 5:15-cv-00991-JVS-DTB Document 23-1 Filed 07/25/16 Page 29 of 34 Page ID #:320 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 22 Case No. 15-cv-00991- JVS-DTB MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT 25591311_1.DOCX Cal.App.4th 1394, 1401 (1999); Vogel v. Felice, 127 Cal.App.4th 1006, 1019-1020 (2005) (statement “dumb ass” was non-actionable as it was not a provably false factual assertion.) Such statements are nothing more than “rhetorical hyperbole, vigorous epithets, lusty and imaginative expressions of contempt and language used in a loose, figurative sense, which are all accorded constitutional protection. Ferlauto, 74 Cal.App.4th at 1401; see also Stevens v. Mavent, Inc., No. SA CV 07- 245 AHS (RNBx), 2008 WL 2824956, at *7 (C.D. Cal. Jul. 28, 2008) (granting summary judgment on defamation claim, in part because statements that Plaintiff was “stupid” and “the wrong guy for the job” were non-actionable opinions). 3. The Termination and Medical Leave Statements Were Privileged Even if the alleged statements could be viewed as “false,” Plaintiff’s claim still fails because the alleged statements were privileged. California Civil Code section 47(c) protects statements between parties having a legitimate interest in the communication. Courts have uniformly held that publications in an employment setting are privileged. Cuenca v. Safeway S.F. Employees Fed. Credit Union, 180 Cal.App.3d 985, 986 (1986) (internal statements about employee accused of receiving illegal kickbacks, and fabricated expense reports were privileged as matters of direct interest to employee’s supervisors and company officials). Statements far worse than those at issue here have been found to be privileged. See Deaile v. General Telephone Co. of California, 40 Cal.App.3d 841, 845, 847 (1974). In Deaile, the Court held that an employer’s statements to the plaintiff’s former coworkers that the plaintiff “committed a breach of ethics” by submitting improper sick leave paperwork, “falsified records,” engaged in actions “akin to thievery” and “that there were indications that this was not the first time plaintiff had done these things” were “clearly privileged.” This is precisely what happened here. After Plaintiff’s termination, Ziemnisky allegedly asserted that Plaintiff had been untruthful about his medical leave to alleviate similar concerns in the workplace. Case 5:15-cv-00991-JVS-DTB Document 23-1 Filed 07/25/16 Page 30 of 34 Page ID #:321 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 23 Case No. 15-cv-00991- JVS-DTB MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT 25591311_1.DOCX (Aukamp Depo., 20:15-21:1, 22:2-16.) The statement regarding the reasons for Plaintiff’s termination also falls squarely within this privilege. King v. UPS, 152 Cal.App.4th 426, 440, 441 (2007) (“an employer’s statements to employees regarding the reasons for termination of another employee generally are privileged”). The statement was only communicated to Plaintiff, Plaintiff’s manager and human resources. See McGrory v. Applied Signal, 212 Cal.App.4th 1510, 1538 (2013) (those with mutual interest include supervisors and managing officers and even other employees). Accordingly, the alleged statements fall squarely within the protection of a privileged communication and are thus not actionable as a matter of law. 4. Plaintiff Cannot Prove Actual Malice and Overcome the Presumption of Privilege. “Once the defense of privilege is made out, as here, the plaintiff has the burden of defeating it by showing that the privilege has been abused or that malice existed on the part of the defendant.” Deaile, 40 Cal.App.3d at 848. To overcome the privilege defense, Plaintiff must demonstrate that the alleged defamatory statements were made with actual malice, meaning they arose out of ill will or hatred toward him or was made with reckless disregard for the truth. Cuenca, 180 Cal.App.3d at 997- 1000. Plaintiff must prove actual malice by “clear and convincing evidence.” Live Oak Publishing Co. v. Cohagan, 234 Cal.App.3d 1277, 1288 (1991). Malice will not be found by mere negligence. White v. State of Cal., 17 Cal.App.3d 621, 629 (1971). Indeed, there is a presumption that communications made to interested parties are made innocently and without malice. Id. Here, Plaintiff provided no evidence, let alone clear and convincing evidence, of malice. 5. Alternatively, Plaintiff Was not Damaged by any Alleged Publication of the Purported Defamatory Statements. Even assuming defamatory statements were made, the statements were not defamatory per se and thus not actionable without proof of special damages. As Case 5:15-cv-00991-JVS-DTB Document 23-1 Filed 07/25/16 Page 31 of 34 Page ID #:322 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 24 Case No. 15-cv-00991- JVS-DTB MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT 25591311_1.DOCX relevant to this case, statements are defamatory per se only when they directly injure one with respect to his profession by imputing a general disqualification in areas required by the occupation. Cal. Civ. Code §§ 45a and 46. As applicable here, to demonstrate slander per se, Plaintiff must show that the statement “prejudice[d] him in the special profession or business in which he is actually engaged.” Correia v. Santos, 191 Cal.App.2d 844, 853 (1961). “Courts seem to be looking for conduct that might be deemed to reflect character or at least habitual misconduct rather than a passing peccadillo. It is not sufficient that the words be merely injurious to one whatever his pursuit, but they must prejudice him in the special profession or business in which he is actually engaged.” Regalia v. Nethercutt Collection, 172 Cal.App.4th 361, 369 (2009). A general charge of dishonesty “not amounting to a charge of a crime, and not tending to directly injure the plaintiff in any business, professions, office, or occupation, is not actionable per se.” 5 Witkin Summary of Cal. Law, Torts, §§ 552-553, citing Williams v. Seiglitz, 186 Cal. 767, 772 (1921). Here, any alleged defamatory statement was not defamatory per se. Because statements about Plaintiff’s dishonesty in taking medical leave do not amount to a claim that he committed a crime, nor relate to Plaintiff’s profession as a salesperson in any peculiar way, they do not constitute slander per se. The same is true regarding the generic ‘poor performance’ comment. Indeed, Ziemnisky’s alleged statements all relate to specific alleged conduct on one occasion, rather than “habitual misconduct.” Regalia, 172 Cal.App.4th at 369. Further, Plaintiff’s defamation claim lacks any proof of damages. It is undisputed that the statements were not made to any prospective employer. (UF 60.) Accordingly, they could not impact Plaintiff’s ability to obtain another job. Moreover, none of the statements had any impact on Plaintiff’s termination. Indeed, all were alleged to have been made after the decision to terminate Plaintiff. (Aukamp. Depo., 18:15-19:22, 19:23-21:1, 21:2-22:16, 38:5-13.) Accordingly, Case 5:15-cv-00991-JVS-DTB Document 23-1 Filed 07/25/16 Page 32 of 34 Page ID #:323 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 25 Case No. 15-cv-00991- JVS-DTB MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT 25591311_1.DOCX having no evidence that he suffered any damage or loss directly attributable to the alleged defamatory statements, Plaintiff’s claim fails as a matter of law. H. Plaintiff’s Punitive Damages Claim Must Be Summarily Dismissed. The Court may summarily adjudicate Plaintiff’s punitive damages claim. See Cal. Civ. Proc. Code § 437c(f)(1). Summary adjudication of the claim is proper because he cannot show by “clear and convincing evidence” that Oil-Dri or Ziemnisky engaged in conduct with oppression, fraud, or malice. Cal. Civ. Code § 3294(a); Flores v. Autozone West, Inc., 161 Cal. App. 4th 373 (2008) (affirming summary adjudication of punitive damages claim in employment context). There is no evidence that anyone acted with oppression, fraud, or malice against Plaintiff. (UF 16, 24, 57-59.) Indeed, there is no evidence from which a reasonable trier of fact could conclude that Defendants harbored any animus against Plaintiff, much less “clear and convincing evidence” that the motives were so heinous as to justify an award of punitive damages. Plaintiff’s claim for punitive damages fails. IV. CONCLUSION Defendants respectfully request that this Court grant their motion for partial summary judgment. DATED: July 25, 2016 OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. By: /s/ Mark F. Lovell Lara C. de Leon Mark F. Lovell Attorneys for Defendants OIL-DRI CORPORATION OF AMERICA and PAUL ZIEMNISKY 25591311.1 Case 5:15-cv-00991-JVS-DTB Document 23-1 Filed 07/25/16 Page 33 of 34 Page ID #:324 Case 5:15-cv-00991-JVS-DTB Document 23-1 Filed 07/25/16 Page 34 of 34 Page ID #:325