James Nakashima v. Canon Solutions America, Inc., et al

NOTICE OF MOTION AND MOTION for Summary Judgment as to All Claims

C.D. Cal.January 30, 2017

1 MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS & AUTHORITIES CASE NO. 8:15-CV-01441-CJC-KES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 MICHAEL W. DROKE, P.C. (SBN 162078) droke.michael@dorsey.com DORSEY & WHITNEY LLP Columbia Center 701 Fifth Avenue, Suite 6100 Seattle, WA 98104-7043 Telephone: (206) 903-8800 Facsimile: (206) 903-8820 Attorney for Defendant CANON SOLUTIONS AMERICA, INC. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA JAMES NAKASHIMA, Plaintiff, vs. CANON SOLUTIONS AMERICA, INC.; and DOES 1 through 100, Inclusive, Defendants. CASE NO. 8:15-CV-01441-CJC-KES NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION BY DEFENDANT CANON SOLUTIONS AMERICA, INC. [FILED CONCURRENTLY WITH DECLARATION OF MICHAEL W. DROKE, SEPARATE STATEMENT OF UNCONTROVERTED FACTS, AND PROPOSED ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT] Action Filed: June 22, 2015 Trial: April 11, 2017 Judge: Hon. Cormac J. Carney, District Judge Consideration Date: March 6, 2017 TO JAMES NAKASHIMA AND HIS ATTORNEYS OF RECORD: PLEASE TAKE NOTICE THAT ON March 6, 2017, or as soon thereafter as the matter may be heard in Courtroom 9B of the United States Court for the Central Case 8:15-cv-01441-CJC-KES Document 25 Filed 01/30/17 Page 1 of 36 Page ID #:408 2 MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS & AUTHORITIES CASE NO. 8:15-CV-01441-CJC-KES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 District of California, located at 411 West 4th Street, Santa Ana, California 92701, defendants Canon Solutions America, Inc. (“CSA”) will move this Court, pursuant to Rule 56 of the Federal Rules of Civil Procedure, for summary judgment on the Complaint, or in the alternative, for summary adjudication of all claims against it on the following issues: Issue One: Plaintiff’s First Cause of Action for Disability Discrimination in Violation of FEHA [Gov. Code § 12940(A)] fails as a matter of law because plaintiff was not a qualified individual under the law and CSA reasonably accommodated his disability. Issue Two: Plaintiff’s Second Cause of Action for Failure to Provide a Reasonable Accommodations fails as a matter of law because CSA satisfied the obligation to provide reasonable accommodations to him. Issue Three: Plaintiff’s Third Cause of Action for Failure to Engage in an Interactive Dialogue fails as a matter of law because multiple CSA employees checked in with Plaintiff regularly and he ultimately caused the dialogue to end. Issue Four: Plaintiff’s Fourth Cause of Action for Failure to Maintain a Discrimination Free Environment fails as a matter of law because his disability and failure to engage in an interactive dialogue claims fail. Issue Five: Plaintiff’s Fifth Cause of Action for Retaliation fails as a matter of law because plaintiff did not engage in any protected activity and cannot prove Case 8:15-cv-01441-CJC-KES Document 25 Filed 01/30/17 Page 2 of 36 Page ID #:409 3 MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS & AUTHORITIES CASE NO. 8:15-CV-01441-CJC-KES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 his prima facie case. Issue Six: Summary Judgment/Adjudication of Plaintiff’s Claim for Damages, and on Defendant’s defense of mitigation, must be granted as a matter of law because Plaintiff did not make reasonable efforts to mitigate his damages. Issue Seven: Summary Judgment/Adjudication of Plaintiff’s Claim for Punitive Damages must be granted as a matter of law because Plaintiff cannot prove by “clear and convincing evidence” that any officer, director or managing agent of CSA committed, authorized, or ratified acts of fraud, oppression or malice. This Motion is filed pursuant to Rule 56 of the Federal Rules of Civil Procedure and is based on this Notice of Motion, Motion for Summary Judgment, or In the Alternative, for Summary Adjudication, Declaration of Michael Droke filed concurrently herewith (including exhibits), concurrently lodged proposed Statement of Uncontroverted Facts and Conclusions of Law, pleadings, records, and files in this case, any supplemental memoranda of points and authorities and declarations that may be subsequently filed, and any oral or documentary evidence that may be presented at the hearing on this motion. This Motion is made following the conference of counsel pursuant to Local Rule 7-3 which took place on January 23, 2017. See Declaration of Michael W. Droke, filed herewith. Case 8:15-cv-01441-CJC-KES Document 25 Filed 01/30/17 Page 3 of 36 Page ID #:410 Case 8:15-cv-01441-CJC-KES Document 25 Filed 01/30/17 Page 4 of 36 Page ID #:411 v MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS & AUTHORITIES CASE NO. 8:15-CV-01441-CJC-KES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 TABLE OF CONTENTS Page I. INTRODUCTION ........................................................................................... 1 II. STATEMENT OF FACTS .............................................................................. 2 A. Mr. Nakashima’s Service Technician Role Was Physically Demanding, Requiring Lifting, Bending, Twisting, and Crawling. ............................................................................................... 2 B. Mr. Nakashima Injures His Lower Back While Lifting A 200- Pound Drawer With A Co-Worker. ...................................................... 3 C. Mr. Nakashima Files a Worker’s Compensation Claim, Claims His Condition Worsened, and Receives a $90,000 Settlement. ........... 4 D. CSA Provides Reasonable Accommodations to Mr. Nakashima. ........ 4 a. CSA Allows Mr. Nakashima to Return to Work for One Week with Light Duty Restrictions As An Accommodation. ......................................................................... 4 b. CSA Reasonably Accommodates By Giving Leave of Absence and Company Car Use. ................................................ 5 E. CSA Engaged in an Interactive Dialogue Including Monthly Calls, But He Never Requested Accommodation Or Anticipated Return. ................................................................................................... 5 F. Mr. Nakashima Never Contacts Anyone at CSA to Discuss the Two Weeks’ Notice He Received Indicating His Employment Would End Due to His Inability to Return to Work. ............................ 6 G. After Mr. Nakashima’s Employment Ended, He Still Was Not Medically Able to Perform the Essential Functions of His Job. .......... 7 III. ARGUMENT .................................................................................................. 8 A. Summary Judgment Standard ............................................................... 8 B. Plaintiff is Judicially Estopped from Bringing Any of His Claims Based On His Own Testimony and Medical Records. ............. 9 Case 8:15-cv-01441-CJC-KES Document 25 Filed 01/30/17 Page 5 of 36 Page ID #:412 vi MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS & AUTHORITIES CASE NO. 8:15-CV-01441-CJC-KES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 C. Plaintiff’s Disability Discrimination Claim Fails Because He Was Not a Qualified Individual Under the Law and CSA Reasonably Accommodated His Disability. ....................................... 11 a. Plaintiff was Not a “Qualified Individual” Under the Law. ..... 11 b. CSA Satisfied All Obligations to Reasonably Accommodate Mr. Nakashima’s Disability. ............................ 13 c. CSA Had a Legitimate, Nondiscriminatory Reason to End Mr. Nakashima’s Employment. ................................................ 14 D. Mr. Nakashima’s Claim for Failure to Accommodate Fails Because He Could Not Perform the Essential Functions of His Job and CSA Reasonably Accommodated Him. ................................ 15 a. Mr. Nakashima Could Not Perform the Essential Functions of His Job With or Without an Accommodation. ....................................................................... 15 b. CSA Reasonably Accommodated Mr. Nakashima’s Disability. .................................................................................. 15 c. The Accommodations Plaintiff Now Raises Would Not Have Allowed Him To Perform the Essential Functions of His Job. ..................................................................................... 17 E. Plaintiff’s Interactive Dialogue Claim Fails Because He Caused the Breakdown in Communication. .................................................... 19 F. Plaintiff’s Retaliation Claim Fails Because He Did Not Engage in Protected Activity and Cannot Prove His Prima Facie Case. ......... 21 a. Mr. Nakashima Did Not Engage in Protected Activity. ........... 21 b. There is No Causal Connection to Prove Mr. Nakashima’s Prima Facie Case for Retaliation. ............................................. 22 G. Plaintiff’s Claim for Failure to Maintain an Environment Free of Discrimination Fails Because His Foregoing Claims Fail. ................. 23 H. Mr. Nakashima Failed to Mitigate His Lost Wage Damages. ............ 23 Case 8:15-cv-01441-CJC-KES Document 25 Filed 01/30/17 Page 6 of 36 Page ID #:413 vii MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS & AUTHORITIES CASE NO. 8:15-CV-01441-CJC-KES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 I. Mr. Nakashima’s Claim for Punitive Damages Fails Because He Cannot Prove With Clear and Convincing Evidence that CSA Committed Oppression, Fraud or Malice. .......................................... 24 IV. CONCLUSION ............................................................................................. 25 Case 8:15-cv-01441-CJC-KES Document 25 Filed 01/30/17 Page 7 of 36 Page ID #:414 viii MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS & AUTHORITIES CASE NO. 8:15-CV-01441-CJC-KES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 TABLE OF AUTHORITIES Page(s) Cases Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) .......................................................................................... 8, 9 Basich v. Allstate Ins. Co., 87 Cal. App. 4th 1112 (2001) .............................................................................. 24 Bradley v. Harcourt, Brace & Co., 104 F.3d. 267 (9th Cir. 1996) .............................................................................. 11 Brundage v. Hahn, 57 Cal. App. 4th 228, 66 Cal. Rptr. 2d 830 (1997) ....................................... 12, 20 Cal. Sch. Emps. Assn. v. Pers. Comm'n, 30 Cal. App. 3d 241, 106 Cal. Rptr. 283 (1973) ................................................. 23 Celotex v. Catrett, 477 U.S. 317 (1986) .............................................................................................. 8 Felix v. Baxter Healthcare Corp., No. 2:09-cv-06459-JHN-CWx, 2010 U.S. Dist. LEXIS 92561 (C.D. Cal. July 13, 2010) ............................................................................................... 19 Gelfo v. Lockheed Martin Corp., 140 Cal. App. 4th 34, 43 Cal. Rptr. 3d 874 (2006) ............................................. 16 Jackson v. County of Los Angeles, 60 Cal. App. 4th 171 (1997) .................................................................................. 9 Jensen v. Wells Fargo Bank, 85 Cal. App. 4th 245 (2000) ................................................................................ 11 Lui v. City and County of San Francisco, 211 Cal. App. 4th 962 (2012) .............................................................................. 16 Case 8:15-cv-01441-CJC-KES Document 25 Filed 01/30/17 Page 8 of 36 Page ID #:415 ix MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS & AUTHORITIES CASE NO. 8:15-CV-01441-CJC-KES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 Markowitz v. UPS, No. SACV 15-1367 AG (DFMx), 2016 U.S. Dist. LEXIS 86245 (C.D. Cal. June 30, 2016) ............................................................................................................. 9, 10, 14, 20 Mock v. Mich. Millers Mut. Ins. Co., 4 Cal. App. 4th 306, 5 Cal. Rptr. 2d 594 (1992) ................................................. 24 Morgan v. Regents of California, 88 Cal. App. 4th 52, 105 Cal. Rptr. 2d 652 (2000) ....................................... 21, 22 Myers v. Hose, 50 F.3d 278 (4th Cir. 1995) ................................................................................. 14 Nealy v. City of Santa Monica, 234 Cal. App. 4th 359 (2015) .............................................................................. 13 Raine v. City of Burbank, 135 Cal. App. 4th 1215 (2006) ............................................................................ 16 Rissetto v. Plumbers & Steamfitters Local 343, 94 F.3d 597 (9th Cir. 1996) ................................................................................... 9 Scotch v. Art Institute of California, 93 Cal. Rptr. 3d 338, 173 Cal. App. 4th 986 (2009) ..................................... 19, 23 Serri v. Santa Clara Univ., 226 Cal. App. 4th 830 (2014) .............................................................................. 11 Spitzer v. Good Guys, Inc., 80 Cal. App. 4th 1376, 96 Cal. Rptr. 2d 236 (2000) ..................................... 16, 20 Swanson v. Morongo Unified School Dist., 232 Cal. App. 4th 954 (2014) .............................................................................. 15 Watson v. Volume Servs., No. 94-16402, 1995 U.S. App. LEXIS 38272 (9th Cir. Dec. 11, 1995) .................................................................................................................... 18 Yanowitz v. L’Oreal USA Inc., 36 Cal. 4th 1028 (2005) ................................................................................. 21, 22 Case 8:15-cv-01441-CJC-KES Document 25 Filed 01/30/17 Page 9 of 36 Page ID #:416 x MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS & AUTHORITIES CASE NO. 8:15-CV-01441-CJC-KES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 Statutes Cal. Civ. Code § 3294(b) .......................................................................................... 24 2 Cal. Code Regs. 11068(c) ...................................................................................... 14 Cal. Gov't Code § 12940 ............................................................................... 11, 21, 22 Case 8:15-cv-01441-CJC-KES Document 25 Filed 01/30/17 Page 10 of 36 Page ID #:417 1 MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS & AUTHORITIES CASE NO. 8:15-CV-01441-CJC-KES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION James Nakashima was a Senior Digital Service Engineer in the Large Format Division of the Canon Business Solutions, Inc.’s (“CSA”) predecessor, Océ N.A. (“Océ”). He serviced heavy, large equipment at customer sites, regularly lifting 50+ pounds, crawling into large, high-volume printers, and bending and twisting along the floor to reach machine parts. Mr. Nakashima injured his lower back in August 2012 while lifting a 200-pound drawer on one of the company’s large-format, high volume machines. Océ allowed Plaintiff to return with light duty tasks. After his first light duty job caused significant pain, he went on full worker’s compensation leave. He remained on leave for more than one year without requesting any accommodations or any indication that he would ever return -despite monthly calls and emails with his manager and human resources. CSA sent a letter two weeks before his employment would end to further explore reasonable accommodations or to otherwise communicate with CSA. The letter encouraged him to apply to positions on the website or contact Robin Rutter. Mr. Nakashima never did. Instead, he sought further treatment, and was declared - within this two-week period - unable to ever return to work due to pain. As recently as October 2016, four years after his injury, he still believed he was unable to work as a service technician. His case is a demand for indefinite leave - a per se unreasonable accommodation. Case 8:15-cv-01441-CJC-KES Document 25 Filed 01/30/17 Page 11 of 36 Page ID #:418 2 MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS & AUTHORITIES CASE NO. 8:15-CV-01441-CJC-KES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 Plaintiff now claims CSA terminated his employment based on his disability, alleging five causes of action. However, his failure to communicate his medical restrictions to CSA, and admissions confirming his physical restrictions, prevent recovery. Likewise, he filed to mitigate damages and cannot establish “malice, fraud or oppression” for punitive damages. Therefore, summary adjudication of CSA’s defenses must be granted if the case is not dismissed in entirety. II. STATEMENT OF FACTS A. Mr. Nakashima’s Service Technician Role Was Physically Demanding, Requiring Lifting, Bending, Twisting, and Crawling. Plaintiff was a Large-Format, Senior Digital Service Engineer assigned to customer sites in Los Angeles County and surrounding areas. Uncontroverted Facts (“UF”), 1. This role is a highly-specialized function that services drafting printers used by engineers and architects and high volume printers used for commercial printing for magazines and newspapers.1 Several printers could be the size of a small conference room; many are more than five feet long. As Plaintiff stated: “They are very big machines…about the size of this table. Q: Okay. That’s pretty big. Maybe eight to ten feet long? A: It’s long and narrow. It’s wide too.” UF, 3. Technicians must crawl into the machine, bending and twisting along the floor to reach affected parts. It requires “lifting, stooping, carrying heavy-carrying rollers 1 He did not work on desktop or small format printers. Images of equipment like that involved in Mr. Nakashima’s role is attached. UF, 2. Case 8:15-cv-01441-CJC-KES Document 25 Filed 01/30/17 Page 12 of 36 Page ID #:419 3 MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS & AUTHORITIES CASE NO. 8:15-CV-01441-CJC-KES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 out... Cleaning. Bending.” UF, 4. Replacing printing drums, for example, requires contorting a heavy drum (50-100 lbs. or more) over the machine, twisting it into place, and maneuvering around to secure it in place. The bulk of Mr. Nakashima’s day-to-day was on “average about…five hours, bending, lifting, stooping.” UF, 5. This work was done at the various customer sites, not in a fixed location. Mr. Nakashima received a daily dispatch order, drove a CSA-issued Dodge Caravan from his home in Chatsworth to customer sites as far as Santa Barbara, Lancaster or Orange County. UF, 6. Mr. Nakashima drove over 85 miles some days, for over twenty years. When he was not bending, lifting, or stooping to fix machines, he was driving. UF, 7. He then installed or serviced heavy, wide-format machines by himself. Occasionally, two service technicians were required to lift parts of a machine weighing over 200 pounds. B. Mr. Nakashima Injures His Lower Back While Lifting A 200- Pound Drawer With A Co-Worker. Mr. Nakashima injured his lower back when he and another employee were uninstalling a TDS 860, a large-format, high-volume printer, on August 16, 2012. UF, 8. The TDS 860 weighs between 1,800-2,521 pounds, over five feet tall and six feet long. UF, 9. Mr. Nakashima reportedly felt a pop on his right side while lifting a 200-pound drawer, causing severe pain. UF, 10. “…I was in bed. I mean, I was just-I wasn’t able to move at all, period.” UF, 11. He filed a work injury report the following Monday. UF, 12. Manager Greg Boyce sent him to a doctor. CSA does Case 8:15-cv-01441-CJC-KES Document 25 Filed 01/30/17 Page 13 of 36 Page ID #:420 4 MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS & AUTHORITIES CASE NO. 8:15-CV-01441-CJC-KES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 not dispute that Mr. Nakashima sustained the injury and was in pain. C. Mr. Nakashima Files a Worker’s Compensation Claim, Claims His Condition Worsened, and Receives a $90,000 Settlement. Mr. Nakashima received time-loss payments and submitted doctors’ notes to third party administrator Broadspire. In February 2016, he received a $90,000 settlement for his worker’s compensation claim. UF, 13. This was also confirmed by his own testimony that his condition had only “gotten worse” since his injury. Q: As we… [are] standing… at the moment, are you experiencing pain in your legs? A: Yeah… I’m having a combination pain. It’s lower back pain and then shooting pain down my legs… To my feet. Q: And is that constant right now? A: Right now, it’s constant, yes. Q: Since your injury in August 2012, have your symptoms improved, stayed the same, gotten worse? A: Gotten worse. Feels to me it has gotten worse. UF, 31. D. CSA Provides Reasonable Accommodations to Mr. Nakashima. Mr. Nakashima presented one doctor’s note to CSA dated August 30, 2012, with a lifting restriction of no more than five pounds. UF, 14. The lifting restriction meant Mr. Nakashima would be unable to perform his job duties, yet CSA accommodated this restriction and gave multiple accommodations thereafter. a. CSA Allows Mr. Nakashima to Return to Work for One Week with Light Duty Restrictions As An Accommodation. CSA returned Mr. Nakashima to work from September 4 to September 14, 2012. UF, 15. Mr. Nakashima was asked to respond to one “basic call,” an infrequent call for minor repair. The machine was a low-volume all-in-one printer Case 8:15-cv-01441-CJC-KES Document 25 Filed 01/30/17 Page 14 of 36 Page ID #:421 5 MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS & AUTHORITIES CASE NO. 8:15-CV-01441-CJC-KES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 with much lighter parts than for those on which he normally worked. UF, 16. These basic calls did not occur often because they could typically be resolved by the customer without on-site assistance from a service technician. Mr. Nakashima still reported experiencing pain while completing this basic call. UF, 17. b. CSA Reasonably Accommodates By Giving Leave of Absence and Company Car Use. Mr. Nakashima was placed on leave of absence beginning September 17, 2012 and received worker’s compensation payments. UF, 20. He sent medical notes to Broadspire who handled the worker’s compensation case. CSA managed Mr. Nakashima’s leave and discussions related to accommodations. UF, 21. CSA also allowed Mr. Nakashima to keep the company’s car for the first seven months of the leave. UF, 49. CSA ultimately allowed Mr. Nakashima to remain on the leave of absence for over one full year before his employment ended. E. CSA Engaged in an Interactive Dialogue Including Monthly Calls, But He Never Requested Accommodation Or Anticipated Return. Manager Greg Boyce phoned Mr. Nakashima monthly. UF, 22. Mr. Boyce checked on Mr. Nakashima’s status, how he was doing and whether he anticipated coming back to work. Id. Mr. Nakashima did not send any doctors’ notes to CSA indicating a potential return to work, with or without accommodations. He claims he sent at least one note to CSA dated October 25, 2012, with a lifting restriction of 25 pounds, but no such document was received by CSA. Declaration of Michael Case 8:15-cv-01441-CJC-KES Document 25 Filed 01/30/17 Page 15 of 36 Page ID #:422 6 MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS & AUTHORITIES CASE NO. 8:15-CV-01441-CJC-KES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 Droke (“Droke Decl.”), Ex. O. But he admits he did not disclose any changes to his restrictions or physical ability during any monthly call initiated by his supervisor. UF, 23. Mr. Nakashima has not produced any record showing he faxed, mailed, or emailed CSA with the doctor’s note, let alone discussed the restriction with anyone on the phone. CSA also has no record of receiving subsequent doctors’ notes from Mr. Nakashima. Droke Decl., no. 18. Mr. Nakashima spoke and emailed with Human Resources representative Dorianne Montalvo. UF, 24. Mr. Nakashima never implied to her that he wanted or planned to return to work, with or without accommodation. Droke Decl., no. 17. F. Mr. Nakashima Never Contacts Anyone at CSA to Discuss the Two Weeks’ Notice He Received Indicating His Employment Would End Due to His Inability to Return to Work. Over a year after the injury, Robin Rutter sent a letter to Mr. Nakashima in an effort to re-engage in the interactive dialogue. UF, 25. The letter stated that two weeks later, Mr. Nakashima would reach the anniversary of commencement of his leave of absence; and that because CSA had not received any indication of Mr. Nakashima’s intent to return back to work, then or in the foreseeable future, his employment would end in two weeks without further contact by him. Id. If he was ready, willing and able to work, he could visit the CSA website to apply for available positions, and should contact Ms. Rutter with questions. UF, 26. Mr. Nakashima did not contact anyone at CSA to inquire about the letter or Case 8:15-cv-01441-CJC-KES Document 25 Filed 01/30/17 Page 16 of 36 Page ID #:423 7 MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS & AUTHORITIES CASE NO. 8:15-CV-01441-CJC-KES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 any of its contents between September 3, 2013 and September 17, 2013 - or indeed through today. He claims he called Ms. Rutter two to three times shortly after receiving the letter. However, he later stated he did not know who Ms. Rutter was, the content of her outbound voicemail message or whether he actually listened to it when he left her a voicemail message. UF, 27.When asked whether he tried to contact Ms. Montalvo about the letter, Mr. Nakashima admitted that he did not, despite being aware that she was handling certain aspects of his leave file. UF, 27. One week after receiving the September 3 notice, Mr. Nakashima’s doctor reported that he still had “remaining severe pain which continues to limit his activities of daily living, making it impossible for him to go back to any type of employment.” UF, 30 (emphasis added). G. After Mr. Nakashima’s Employment Ended, He Still Was Not Medically Able to Perform the Essential Functions of His Job. Mr. Nakashima’s employment ended on September 17, 2013. As stated above, he still had severe pain which limited his daily activities just one week prior. He testified in December 2013 that his condition had “gotten worse,” and that the lower back pain shooting down to his feet was “constant.” UF, 31. On July 7, 2014, another doctor stated he “is not orthopedically capable of performing such described job duties” when referring to the CSA job description. UF, 33. About three years after the injury, on May 20, 2015, Mr. Nakashima was finally released by Dr. Haronian to “return back to regular work activities.” UF, 34. Case 8:15-cv-01441-CJC-KES Document 25 Filed 01/30/17 Page 17 of 36 Page ID #:424 8 MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS & AUTHORITIES CASE NO. 8:15-CV-01441-CJC-KES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 He filed this lawsuit one month later, on June 22, 2015. But just days later, on July 30, 2015, Mr. Nakashima saw Dr. Haronian again, and reported that he had “difficulty with his daily activities along with difficulty with prolonged sitting, standing, walking, squatting, kneeling and stooping.” UF, 35. Mr. Nakashima also admits the first time he began looking for alternative employment was a couple of days before his deposition in October 2016. UF, 36. He looked at one service technician role at Pitney Bowes for which he felt he was “partially” qualified. UF, 37. He ultimately admitted “the weight restriction was a problem, so I couldn’t apply for the job.” Id. The job description for the new role required lifting 50 pounds or more, the same requirement for Mr. Nakashima’s position at CSA. UF, 38. Mr. Nakashima also admitted that he only began looking at jobs so recently because, before then, he “was still disabled.” UF, 39. III. ARGUMENT A. Summary Judgment Standard Summary judgment is appropriate where the evidence shows that the plaintiff lacks sufficient evidence to carry its ultimate burden of proof at trial. Celotex v. Catrett, 477 U.S. 317, 325 (1986). Once the initial burden is met, the nonmoving party must present concrete evidence that there remain genuine issues for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). “The mere existence of a scintilla of evidence in support of the [nonmoving party’s] position will be Case 8:15-cv-01441-CJC-KES Document 25 Filed 01/30/17 Page 18 of 36 Page ID #:425 9 MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS & AUTHORITIES CASE NO. 8:15-CV-01441-CJC-KES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 insufficient; there must be evidence on which the jury could reasonably find for” the nonmoving party. Anderson, 477 U.S. at 252. B. Plaintiff is Judicially Estopped from Bringing Any of His Claims Based On His Own Testimony and Medical Records. Judicial estoppel is “invoked to prevent a party from changing its position over the course of judicial proceedings when such positional changes have an adverse impact on the judicial process.” Jackson v. County of Los Angeles, 60 Cal. App. 4th 171, 181 (1997). It applies where a party seeks to “gain[] an advantage by taking on position, and then seek[] a second advantage by taking an incompatible position.” Rissetto v. Plumbers & Steamfitters Local 343, 94 F.3d 597, 600 (9th Cir. 1996) (affirming summary judgment based on judicial estoppel on discrimination claim where employee received worker’s compensation benefits because he was totally temporarily disabled). Mr. Nakashima immediately filed for worker’s compensation benefits based on his medical condition. Yet he now claims that, as early as October 2012, CSA could have returned him to work. This directly contradicts his own testimony in his worker’s compensation claim. “Testimony or argument that ‘flatly contradicts both [her] prior sworn statements and medical evidence’ can’t create a genuine dispute of material fact.” Markowitz v. UPS, No. SACV 15-1367 AG (DFMx), 2016 U.S. Dist. LEXIS 86245, at *15 (C.D. Cal. June 30, 2016) (citing Kennedy v. Applause, Inc. 90 F.3d 1477, 1481 (9th Cir. 1996)). Case 8:15-cv-01441-CJC-KES Document 25 Filed 01/30/17 Page 19 of 36 Page ID #:426 10 MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS & AUTHORITIES CASE NO. 8:15-CV-01441-CJC-KES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 The court held that Ms. Markowitz was judicially estopped from claiming ability to work based on her prior inconsistent testimony. UPS argued that Plaintiff could not have it both ways-“being completely disabled for the purposes of the worker’s compensation proceeding while being able to work for the purposes of [this] lawsuit.” Markowitz, No. SACV 15-1367 AG (DFMx) at *13. Summary judgment was proper for several reasons, including that “there [was] something to be said about the inequity of profiting from one position and then switching to another when that new position becomes potentially profitable.” Id. at *15. Like the plaintiff in Markowitz, Mr. Nakashima testified in his worker’s compensation case in December 2013 that he still had intense pain, so much so that whether or not he could push a grocery shopping cart depended on his level of pain. “Q: Since your injury in August 2012, have your symptoms improved, stayed the same, gotten worse? A: Gotten worse. Feels to me it has gotten worse.” UF, 31. “Q: Are you able to push the grocery cart? A: It depends on what pain I’m at.” UF, 32. Now he claims that he could return to his physically-demanding job sometime in 2012 or 2013 with modifications. Mr. Nakashima’s position then and his position now (that he could return to work) are irreconcilable. “The evidence of inconsistency in the positions taken in the disability proceeding and the current lawsuit supports [the] application of the judicial estoppel doctrine.” Markowitz at *13 (citing Drainz v. Betz Labs, Inc., 69 Cal. App. 4th 950, 959, 81 Cal. Rptr. 2d Case 8:15-cv-01441-CJC-KES Document 25 Filed 01/30/17 Page 20 of 36 Page ID #:427 11 MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS & AUTHORITIES CASE NO. 8:15-CV-01441-CJC-KES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 864). Summary judgment must be granted on this basis alone. C. Plaintiff’s Disability Discrimination Claim Fails Because He Was Not a Qualified Individual Under the Law and CSA Reasonably Accommodated His Disability. To raise a presumption of discrimination under the California Fair Employment and Housing Act (“FEHA”), Plaintiff must establish a prima facie case by showing (1) he had a disability, (2) he was qualified to perform the essential functions of the position, and (3) CSA failed to reasonably accommodate. Jensen v. Wells Fargo Bank, 85 Cal. App. 4th 245, 254-55 (2000). Then the claim is analyzed based on interpretations of federal anti-discrimination laws and the McDonnell Douglas framework. See Bradley v. Harcourt, Brace & Co., 104 F.3d. 267, 270 (9th Cir. 1996); Clark v. Claremont Univ., 6 Cal. App. 4th 639, 662, 8 Cal. Rptr. 2d 151 (1992)). Once the employee has satisfied the initial burden, the employer can rebut the presumption by providing a legitimate, nondiscriminatory reason for the action. The employee can then argue that the employer’s proffered reasons are pretext to unlawful discrimination. See, e.g., Serri v. Santa Clara Univ., 226 Cal. App. 4th 830, 861 (2014). a. Plaintiff was Not a “Qualified Individual” Under the Law. Mr. Nakashima was not qualified to perform the essential functions of the large format, Senior Digital Service Engineer position. A “qualified individual” is someone with a disability who, “with or without reasonable accommodation, can Case 8:15-cv-01441-CJC-KES Document 25 Filed 01/30/17 Page 21 of 36 Page ID #:428 12 MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS & AUTHORITIES CASE NO. 8:15-CV-01441-CJC-KES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 perform the essential functions of the job.” Brundage v. Hahn, 57 Cal. App. 4th 228, 235, 66 Cal. Rptr. 2d 830, 835 (1997). Mr. Nakashima’s job description states: “able to lift 50 lbs. and be in a mobile activity more than 50% of the time (Walking, standing, stooping/kneeling).” UF, 2. As shown by the call that caused his injury, it was not uncommon for him to lift equipment well over 50 pounds. The machines Plaintiff worked on daily for over twenty years often stood over five feet tall, requiring him to bend, kneel, and stoop. This was an undisputed essential function of the role. UF, 2, 5 (5 hours per day of bending, stooping, etc.). The first and only medical note Mr. Nakashima presented to CSA contained a five pound lifting restriction, including “no prolong[ed] sitting, standing, no bend[ing].” UF, 14. None of the following notes-which again, CSA never received from Mr. Nakashima-released him to lift 50 pounds or more with accommodations. On September 10, 2013, one week before his employment ended, his doctor stated it was “impossible” for him to return to “any type of employment.” UF, 30. “Any type of employment” does not entail regular lifting of 50 pounds or more, let alone crawling, bending and kneeling over 50% of the time. Even after this lawsuit was filed, Mr. Nakashima had “difficulty performing daily activities, along with difficulty with prolonged sitting, standing and walking.” UF, 35. When he looked at new positions in late October 2016, he still felt he was only partially qualified for a Pitney Bowes technician role that had the same lifting Case 8:15-cv-01441-CJC-KES Document 25 Filed 01/30/17 Page 22 of 36 Page ID #:429 13 MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS & AUTHORITIES CASE NO. 8:15-CV-01441-CJC-KES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 requirements as his CSA role. He did not apply because he couldn’t meet the physical requirements. UF, 37, 38. His decision reinforced the ongoing limitation, even three years after his employment separation and four years after his injury. As he could not lift 50 pounds or more, with or without an accommodation, Mr. Nakashima could not perform the essential functions of his job. Placing him on an indefinite leave absent any indication of a return to work and waiting for him to return with accommodations simply would not have been feasible, especially given his own recent assessment of his physical capabilities. Mr. Nakashima needed to lift 50 pounds or more with or without an accommodation; there was no obligation for CSA to remove this essential function, a major requirement of the role. “[E]limination of an essential function is not a reasonable accommodation,” Nealy v. City of Santa Monica, 234 Cal. App. 4th 359, 375 (2015). Mr. Nakashima was therefore not a “qualified individual” under the law. b. CSA Satisfied All Obligations to Reasonably Accommodate Mr. Nakashima’s Disability. Mr. Nakashima also fails to prove the third factor. CSA satisfied all obligations to accommodate Mr. Nakashima. CSA allowed Mr. Nakashima to return to work, finding light duty tasks for him, including the basic call assignment to fix the TDS 400. However, he still experienced pain with this task and went on an extended leave of absence after one week of attempting to work. CSA also allowed him to be on a leave of absence for a total of over one full Case 8:15-cv-01441-CJC-KES Document 25 Filed 01/30/17 Page 23 of 36 Page ID #:430 14 MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS & AUTHORITIES CASE NO. 8:15-CV-01441-CJC-KES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 year, with the company car for at least the first seven months of his leave. During this time, Mr. Nakashima’s manager, Greg Boyce, called him monthly to check on his status. UF, 22. Ms. Montalvo from CSA’s Human Resources department also emailed and spoke to him on the phone during his leave. UF, 24. At no time during any of these conversations with CSA employees did Mr. Nakashima raise a potential ability to return to work or request an accommodation. The law does not require CSA to provide indefinite leave as a reasonable accommodation. Markowitz, at *19 (citing 2 Cal. Code Regs. 11068(c); Myers v. Hose, 50 F.3d 278, 283 (4th Cir. 1995)) (“Nothing…requires an employer to wait an indefinite period for an accommodation to achieve its intended effect.”). Even four years after the injury, Mr. Nakashima still cannot perform the essential functions of his job. It was ultimately he who failed to reciprocate these efforts. c. CSA Had a Legitimate, Nondiscriminatory Reason to End Mr. Nakashima’s Employment. Even if Mr. Nakashima can establish a prima facie case of discrimination, CSA had a legitimate, nondiscriminatory reason for his employment termination. After being accommodated for over a year, Mr. Nakashima still could not perform the essential functions of his job with or without accommodations. He was given an opportunity to apply to alternative positions or discuss potential accommodations, but he did not follow through. His employment ended shortly thereafter. Case 8:15-cv-01441-CJC-KES Document 25 Filed 01/30/17 Page 24 of 36 Page ID #:431 15 MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS & AUTHORITIES CASE NO. 8:15-CV-01441-CJC-KES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 D. Mr. Nakashima’s Claim for Failure to Accommodate Fails Because He Could Not Perform the Essential Functions of His Job and CSA Reasonably Accommodated Him. In order to establish a claim for failure to provide a reasonable accommodation, “a plaintiff must show that the time of the alleged failure, (1) he had a disability of which the employer was aware, (2) he was able to perform the essential functions of the job at issue with or without accommodation, i.e. that he was a qualified individual, and (3) the employer failed to reasonably accommodate his disability.” Swanson v. Morongo Unified School Dist., 232 Cal. App. 4th 954, 969 (2014). a. Mr. Nakashima Could Not Perform the Essential Functions of His Job With or Without an Accommodation. Mr. Nakashima could not perform the essential functions of his job with or without an accommodation. Lifting fifty pounds, with or without an accommodation, was an essential function of the Senior Digital Service Engineer position. UF, 2, 5. None of Mr. Nakashima doctors’ notes released him to return to work to lift fifty pounds or more with an accommodation. As late as July 2015, he still had “difficulty performing daily activities, along with difficulty with prolonged sitting, standing and walking.” UF, 35. He admitted that he did not apply to an almost identical service technician role based on the lifting requirements. UF, 37. b. CSA Reasonably Accommodated Mr. Nakashima’s Disability. Mr. Nakashima therefore cannot to prove the third factor, that CSA failed to Case 8:15-cv-01441-CJC-KES Document 25 Filed 01/30/17 Page 25 of 36 Page ID #:432 16 MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS & AUTHORITIES CASE NO. 8:15-CV-01441-CJC-KES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 reasonably accommodate him. “Two principles underlie a cause of action for failure to provide a reasonable accommodation. First, the employee must request an accommodation. Second, the parties must engage in an interactive process regarding the requested accommodation.” Gelfo v. Lockheed Martin Corp., 140 Cal. App. 4th 34, 54, 43 Cal. Rptr. 3d 874, 890 (2006) (citing Prilliman v. United Air Lines, Inc. 53 Cal. App. 4th 935, 954 (1997)). CSA is not required to excuse Plaintiff from the essential functions of his job. Raine v. City of Burbank, 135 Cal. App. 4th 1215, 1224-25 (2006); Lui v. City and County of San Francisco, 211 Cal. App. 4th 962, 985 (2012) (“the FEHA did not obligate defendant to accommodate plaintiff by excusing him from the performance of essential [job] functions”). Mr. Nakashima never requested any accommodation. He admits he cannot remember whether he asked Human Resources for any accommodations. UF, 54. Thus, CSA cannot be held liable for failing to provide any accommodations. Spitzer v. Good Guys, Inc., 80 Cal. App. 4th 1376, 1384, 96 Cal. Rptr. 2d 236, 242 (2000) (citing Taylor v. Principal Financial Group, Inc. (5th Cir. 1996) 93 F.3d 155) (“If the employee fails to request an accommodation, the employer cannot be held liable for failing to provide one.”). The Spitzer court in found in favor of plaintiff, after certain on-the-job accommodations failed and she had requested job reassignment at least three times without any positive response from her employer. Here, CSA was already engaged in an interactive dialogue and providing multiple Case 8:15-cv-01441-CJC-KES Document 25 Filed 01/30/17 Page 26 of 36 Page ID #:433 17 MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS & AUTHORITIES CASE NO. 8:15-CV-01441-CJC-KES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 accommodations. But Mr. Nakashima never requested a job accommodation nor did he ever request reassignment to a different role. CSA therefore cannot be held liable for failing to provide any accommodations. CSA allowed Mr. Nakashima to return to work for one week in mid- September 2012, finding light duty tasks for him to complete, including the basic call assignment for which he still experienced pain completing. The leave of absence was another accommodation CSA provided. CSA allowed Mr. Nakashima to be on leave for over a year, with the company car for at least the first seven months. During this time, Mr. Nakashima’s manager, Greg Boyce, called him on a monthly basis to check in on his status. UF, 53. Dorianne Montalvo from CSA’s Human Resources department also emailed and spoke to Mr. Nakashima on the phone. UF, 54. At no time during these conversations did Mr. Nakashima raise a potential ability to return to work or request an accommodation. c. The Accommodations Plaintiff Now Raises Would Not Have Allowed Him To Perform the Essential Functions of His Job. Mr. Nakashima contended for the first time in his deposition that CSA could have provided him certain accommodations to allow him to perform the job. He first suggests that some unspecified device, such as a motorized cart, could have been provided to help him lift equipment. He does not however, ever explain what motorized cart he expected, how it could have been provided to him, how the cart itself would be moved in and out of the company truck, nor how it would be used at Case 8:15-cv-01441-CJC-KES Document 25 Filed 01/30/17 Page 27 of 36 Page ID #:434 18 MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS & AUTHORITIES CASE NO. 8:15-CV-01441-CJC-KES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 the customer site. And even if a lifting device was provided, it still would not have allowed Mr. Nakashima to perform the essential functions of the job. Mr. Nakashima would have to bend, twist, kneel, and crawl into large-format machines to reach certain parts. As of July 2015, he still had difficulty doing all of these things. UF, 35. Even if a lifting device could help with lifting, the other physical movements were still required. Thus, the proffered accommodation of some sort of mechanical cart would not have actually allowed Mr. Nakashima to perform the essential functions of his job. Mr. Nakashima also claims that ride-alongs and simple “basic calls,” like the one he did for the TDS 400, could have been assigned to him. He suggests that he could do basic calls outside his territory, effectively taking these calls from other technicians. He further adds that he could have been assigned “modification calls.” UF, 50. Ride-alongs are rare, for training newer service technicians. Mr. Nakashima was not a new service technician, and did not need the training. What Mr. Nakashima proposes would involve reassignment of other technicians or hiring a new employee, not a reasonable accommodation. See e.g., Watson v. Volume Servs., No. 94-16402, 1995 U.S. App. LEXIS 38272, at *8 (9th Cir. Dec. 11, 1995) (Upon considering requested accommodation of assigning other individuals to certain jobs, “This would essentially mean hiring two people for one position…”); (“…courts consider an undue hardship to be any proposed solution that would result in more Case 8:15-cv-01441-CJC-KES Document 25 Filed 01/30/17 Page 28 of 36 Page ID #:435 19 MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS & AUTHORITIES CASE NO. 8:15-CV-01441-CJC-KES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 than a de minimis cost to the employer.”) Felix v. Baxter Healthcare Corp., No. 2:09-cv-06459-JHN-CWx, 2010 U.S. Dist. LEXIS 92561, at *20-21 (C.D. Cal. July 13, 2010). Basic calls only lasted ten to fifteen minutes, while modification calls could last as short as two minutes up to thirty minutes. UF, 51. Even if all three of these tasks were assigned to Mr. Nakashima, they still would not have created enough work in line with the large-format Senior Digital Service Engineer role. Moreover, rerouting calls from other territories may have actually interrupted day- to-day business. And finally, Mr. Nakashima still would have to drive to these customer sites. As revealed during his return to work in mid-September 2012, he had pain driving 25 miles, a much shorter distance given his territory expanding over 85 miles. If he were to take calls outside his territory, he would have been driving longer distances. Additional breaks would have reduced customer service, and would not have been a reasonable accommodation. None of the proposals Mr. Nakashima now raises would have enabled him to perform essential functions of his job, therefore, he was not a qualified individual with a disability. E. Plaintiff’s Interactive Dialogue Claim Fails Because He Caused the Breakdown in Communication. The interactive process is “timely” and in “good faith” where the employee and the employer engage in an attempt to determine effective…accommodations if any, in response to an employee’s request for reasonable accommodation for a disability. See Scotch v. Art Inst. of Cal., 93 Cal. Rptr. 3d 338, 173 Cal. App. 4th Case 8:15-cv-01441-CJC-KES Document 25 Filed 01/30/17 Page 29 of 36 Page ID #:436 20 MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS & AUTHORITIES CASE NO. 8:15-CV-01441-CJC-KES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 986, 1009-10. The employee must initiate the process to trigger an employer’s obligation to engage in the interactive dialogue. No magic words are necessary, but the obligation arises once the employer becomes aware of the need to consider an accommodation. See Brundage v. Hahn, 57 Cal. App. 4th 228, 237, 66 Cal. Rptr. 2d 830, 836 (1997). “The employee, of course, retains a duty to cooperate with the employer’s efforts by explaining [his or] her disability and qualifications. Reasonable accommodation thus envisions an exchange between employer and employee where each seeks and shares information to achieve the best match between the employee’s capabilities and available positions.” Spitzer, 80 Cal. App. 4th 1376, 1385 (quoting Goodman v. Boeing Co. (1995) 127 Wn.2d 401 899 P.2d 1265.) Mr. Nakashima never requested an accommodation, but rather, expressed in monthly calls that he was injured and did not anticipate returning. If that changed, he had a legal “duty to cooperate by explaining his disability and qualifications.” Id. Even when he had the opportunity in his monthly call with Mr. Boyce to discuss any changed restriction, he did not. UF, 54. This removed the possibility for CSA to engage in the discussion or “exchange” that the interactive dialogue contemplates. “An employee cannot demand clairvoyance of this employer. [He] can’t expect the employer to read his mind and know he secretly wanted a particular accommodation and sue the employer for not providing it.” Markowitz, No. SACV Case 8:15-cv-01441-CJC-KES Document 25 Filed 01/30/17 Page 30 of 36 Page ID #:437 21 MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS & AUTHORITIES CASE NO. 8:15-CV-01441-CJC-KES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 15-1367 AG (DFMx) at *18 (citing King v. UPS, 152 Cal. App . 4th 426, 443, 60 Cal. Rptr. 3d 359 (2007)). Mr. Nakashima cannot remember whether he ever asked Ms. Montalvo for accommodations to return to work. UF, 55. This is particularly inexcusable here, where Mr. Nakashima was in monthly contact with his manager and CSA human resources. UF, 53. He likewise did not communicate with Robin Rutter after receiving the September 3, 2013 letter. Time and again, CSA contacted Mr. Nakashima to inquire about his ability to return to work. Ultimately, it was Mr. Nakashima who failed to engage in dialogue. F. Plaintiff’s Retaliation Claim Fails Because He Did Not Engage in Protected Activity and Cannot Prove His Prima Facie Case. To establish a prima facie case of retaliation under the FEHA, Mr. Nakashima must show: (1) he engaged in a protected activity, (2) CSA subjected him to an adverse employment action and (3) a causal link existed between the protected activity and CSA’s action. Morgan v. Regents of California, 88 Cal. App. 4th 52, 69, 105 Cal. Rptr. 2d 652 (2000); Yanowitz v. L’Oreal USA Inc., 36 Cal. 4th 1028, 1042 (2005); The employer can rebut the presumption of retaliation by proffering a legitimate, non-retaliatory reason for his employment termination. Morgan, 88 Cal. App. 4th 52 at 68. a. Mr. Nakashima Did Not Engage in Protected Activity. The relevant question in establishing protected activity is “whether the employee’s communications to the employer sufficiently convey the employee’s Case 8:15-cv-01441-CJC-KES Document 25 Filed 01/30/17 Page 31 of 36 Page ID #:438 22 MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS & AUTHORITIES CASE NO. 8:15-CV-01441-CJC-KES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 reasonable concerns that the employer has acted or is acting in an unlawful manner.” Yanowitz, 36 Cal. 4th at 1047 (2005). Mr. Nakashima baldly asserts that he “engaged in the protected activity of exercising and asserting FEHA protected rights as a ‘disabled individual’.” UF, 61. However, he has not identified any specific protected activity. Id. Mr. Nakashima never made a complaint or expressed to anyone if he actually did have concerns about how he was being treated. Indeed, none of the facts in this case bear out even a remote engagement in any sort of protected activity. b. There is No Causal Connection to Prove Mr. Nakashima’s Prima Facie Case for Retaliation. Mr. Nakashima must proffer “evidence that the employer was aware that the plaintiff had engaged in the protected activity.” Morgan, 88 Cal. App. 4th at 69. CSA was never made aware if Mr. Nakashima had concerns about how he was being treated or that he engaged in protected activity. Even in his Complaint, Mr. Nakashima does not explain what particular action constituted protected activity to establish his claim for retaliation. Mr. Nakashima expects CSA to somehow guess that he was concerned about his treatment, when he never voiced any, let alone tell anyone he wanted to return to work. Mr. Nakashima raises no issue related to his claim for retaliation, therefore this claim fails. Case 8:15-cv-01441-CJC-KES Document 25 Filed 01/30/17 Page 32 of 36 Page ID #:439 23 MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS & AUTHORITIES CASE NO. 8:15-CV-01441-CJC-KES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 G. Plaintiff’s Claim for Failure to Maintain an Environment Free of Discrimination Fails Because His Foregoing Claims Fail. A claim of failure to maintain an environment free of discrimination necessarily depends on a successful claim of actual discrimination. An employer cannot be held liable for failure to prevent conduct except where actions took place and were not prevented. Scotch, 173 Cal. App. 4th at 1021 (citing Trujillo v. North County Transit Dist., 63 Cal. App. 4th 280, 289 (1998)). Because Mr. Nakashima’s claims for disability discrimination, failure to engage in an interactive dialogue, and retaliation fail for all of the reasons above, his claim for failure to maintain a discrimination free environment must likewise fail. H. Mr. Nakashima Failed to Mitigate His Lost Wage Damages. An employee seeking back or front pay damages due to alleged discrimination has a duty to mitigate those damages. Cal. Sch. Emps. Assn. v. Pers. Comm'n, 30 Cal. App. 3d 241, 245-46, 106 Cal. Rptr. 283, 286 (1973). The duty entails making reasonably diligent efforts to obtain alternative employment. Id. Mr. Nakashima admitted that he sought alternative employment for a service technician position on October 29, 2016, over three years after his employment ended at CSA, and over four years since the underlying injury. UF, 63. Even then, he did not apply for a comparable available position at Pitney Bowes because “the weight restriction was a problem there, so I couldn’t apply for the job.” UF, 65. He also admitted that before the end of October 2016 he was disabled and therefore Case 8:15-cv-01441-CJC-KES Document 25 Filed 01/30/17 Page 33 of 36 Page ID #:440 24 MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS & AUTHORITIES CASE NO. 8:15-CV-01441-CJC-KES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 didn’t seek comparable work. UF, 66. Even then, his supposed search started only after meeting his attorney all day to prepare for his deposition. Id. Between 2012 and October 2016, Mr. Nakashima instead did odds and ends jobs and received worker’s compensation payments. Mr. Nakashima therefore fails to prove any damages. He did not make a “diligent effort” to seek alternative employment. I. Mr. Nakashima’s Claim for Punitive Damages Fails Because He Cannot Prove With Clear and Convincing Evidence that CSA Committed Oppression, Fraud or Malice. Plaintiff must prove “by clear and convincing evidence that the defendant has been guilty of oppression, fraud or malice” to obtain punitive damages. Basich v. Allstate Ins. Co., 87 Cal. App. 4th 1112, 1118-21 (2001). Civil Code § 3294(b) states: “‘[m]alice’ means conduct which is intended by the defendants to cause injury to the plaintiff or despicable conduct which is carried on…with a willful and conscious disregard of the rights or safety of others;” “‘[o]ppression’ means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights;” and “‘fraud’ means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.” The “’clear and convincing’ standard requires a finding that the evidence be ‘so clear it has to leave no substantial doubt’ and ‘sufficiently strong to command the unhesitating assent of every reasonable mind.’” Mock v. Mich. Millers Mut. Ins. Co., 4 Cal. App. 4th 306, 332, 5 Cal. Rptr. 2d 594, 610 (1992). Plaintiff’s claim for punitive damages is without merit. He cannot prove that any CSA agents, directors or officers committed any type of oppression, fraud or Case 8:15-cv-01441-CJC-KES Document 25 Filed 01/30/17 Page 34 of 36 Page ID #:441 Case 8:15-cv-01441-CJC-KES Document 25 Filed 01/30/17 Page 35 of 36 Page ID #:442 Case 8:15-cv-01441-CJC-KES Document 25 Filed 01/30/17 Page 36 of 36 Page ID #:443 PROPOSED ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 8:15-CV-01441-CJC-KES 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 MICHAEL W. DROKE, P.C. - SBN 162078 droke.michael@dorsey.com DORSEY & WHITNEY LLP Columbia Center 701 Fifth Avenue, Suite 6100 Seattle, WA 98104-7043 Telephone: (206) 903-8800 Facsimile: (206) 903-8820 Attorney for Defendant CANON SOLUTIONS AMERICA, INC. UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA JAMES NAKASHIMA, Plaintiff, v. CANON SOLUTIONS AMERICA, INC.; and DOES 1 through 100, Inclusive, Defendants. CASE NO. 8:15-CV-01441-CJC-KES PROPOSED ORDER GRANTING CANON SOLUTIONS AMERICA INC.’S MOTION FOR SUMMARY JUDGMENT FILED CONCURRENTLY WITH DEFENDANT’S MOTION FOR SUMMARY JUDGMENT, DECLARATION OF MICHAEL W. DROKE, AND SEPARATE STATEMENT OF UNCONTROVERTED FACTS Action Filed: June 22, 2015 Trial: April 11, 2017 Hearing Date: March 6, 2017 Case 8:15-cv-01441-CJC-KES Document 25-1 Filed 01/30/17 Page 1 of 3 Page ID #:444 Case 8:15-cv-01441-CJC-KES Document 25-1 Filed 01/30/17 Page 2 of 3 Page ID #:445 Case 8:15-cv-01441-CJC-KES Document 25-1 Filed 01/30/17 Page 3 of 3 Page ID #:446