Jorge Alfaro v. Esa Management, Llc et al

NOTICE OF MOTION AND MOTION for Summary Judgment as to no genuine issue of material fact as to Plaintiffs alleged claims against Defendant

C.D. Cal.August 9, 2016

LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 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 JOSHUA Z. FELDMAN, Bar No. 199207 jfeldman@littler.com FATEMEH MASHOUF, Bar No. 288667 fmashouf@littler.com LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 Telephone: 310.553.0308 Facsimile: 310.553.5583 Attorneys for Defendant ESA MANAGEMENT, LLC erroneously sued as EXTENDED STAY AMERICA, INC. D.B.A. EXTENDED STAY HOTELS UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA JORGE ALFARO, an individual, Plaintiff, v. EXTENDED STAY AMERICA, INC. d.b.a. EXTENDED STAY HOTELS, and Does 1 through 100, inclusive, Defendants. Case No. 15-CV-09935-R-JEM ASSIGNED TO JUDGE MANUEL L. REAL, COURTROOM 8 DEFENDANT’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT Date: September 6, 2016 Time: 10:00 AM Place: Courtroom 8 Trial Date: October 4, 2016 Complaint Filed: July 7, 2015 Case 2:15-cv-09935-R-JEM Document 17 Filed 08/09/16 Page 1 of 4 Page ID #:100 LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 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. TO PLAINTIFF JORGE ALFARO AND HIS ATTORNEYS OF RECORD: PLEASE TAKE NOTICE THAT on September 6, 2016, at 10:00 a.m., or as soon thereafter as counsel may be heard in Courtroom 8 of the above-entitled Court located at 312 North Spring Street, Los Angeles, CA 90012, the Honorable Real presiding, Defendant ESA MANAGEMENT, LLC erroneously sued as EXTENDED STAY AMERICA, INC. d.b.a. EXTENDED STAY HOTELS (“Defendant”) will and hereby does move this Court pursuant to Federal Rule of Civil Procedure 56(b) and Local Rule 56 for summary judgment, or in the alternative, partial summary judgment, on the ground that there is no genuine issue of material fact as to Plaintiff’s alleged claims against Defendant. Accordingly, Defendant is entitled to judgment as a matter of law for the reasons set forth below. Defendant will move, and hereby does move, for an order adjudicating the following claims and/or issues: A. Discrimination Based On Disability Issue No. 1: Plaintiff’s Cause of Action for Discrimination fails because Plaintiff cannot state a prima facie case of retaliation because there is no evidence of a causal link between Plaintiff’s alleged disability and the decision to terminate his employment. Issue No. 2: Plaintiff’s Cause of Action for Disability fails because even assuming arguendo that Plaintiff could establish a prima facie case, Defendant had legitimate, non-retaliatory business reasons for all decisions made regarding Plaintiff’s employment and Plaintiff cannot prove that Defendant’s stated reasons for terminating his employment are pretext for discrimination. B. Failure to Investigate And Take Remedial Action Issue No. 3: Plaintiff’s Cause of Action for Failure to Investigate and Take Remedial Action fails because there is no private right of action for failure to investigate and take remedial measures. Issue No. 4: Plaintiff’s Cause of Action for Failure to Investigate and Take Case 2:15-cv-09935-R-JEM Document 17 Filed 08/09/16 Page 2 of 4 Page ID #:101 LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 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. Remedial Action fails because it is derivative of his claims for retaliation and discrimination, which fail. C. Retaliation Based On Disability Issue No. 5: Plaintiff’s Cause of Action for Retaliation fails because Plaintiff cannot state a prima facie case of retaliation because there is no evidence of a causal link between Plaintiff’s alleged protected activity and the decision to terminate his employment. Issue No. 6: Plaintiff’s Cause of Action for Retaliation fails because even assuming arguendo that Plaintiff could establish a prima facie case, Defendant had legitimate, non-retaliatory business reasons for all decisions made regarding Plaintiff’s employment and Plaintiff cannot prove that Defendant’s stated reasons for terminating his employment are pretext for retaliation. D. Failure to Reasonably Accommodate Issue No. 7: Plaintiff’s Cause of Action for Failure to Reasonable Accommodate fails because Plaintiff did not sufficiently ask for an accommodation from Defendant. E. Failure to Engage in the Interactive Process Issue No. 8: Plaintiff’s Cause of Action for Failure to Engage in the Interactive Process fails because Plaintiff failed to engage in the interactive process and good faith. F. Wrongful Termination Issue No. 9: Plaintiff’s Cause of Action for Wrongful Termination In Violation Of Public Policy fails because it is derivative of his claims for retaliation and discrimination, which fail. G. Punitive Damages Issue No. 10: Plaintiff’s punitive damages claim fails because he cannot establish by clear and convincing evidence that an officer, director, or managing agent of Defendant acted with any malice, oppression or fraud towards him. Case 2:15-cv-09935-R-JEM Document 17 Filed 08/09/16 Page 3 of 4 Page ID #:102 LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 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. Issue No. 11: Plaintiff’s punitive damages claim fails because he cannot establish by clear and convincing evidence that an officer, director or managing agent of Defendant authorized or ratified the conduct of someone who acted with malice, oppression, or fraud or had advanced knowledge of the unfitness of any employee that acted with acted with malice, oppression, or fraud. This Motion is based upon this Notice of Motion and Motion, the accompanying Memorandum of Points and Authorities filed in support of this Motion, the [Proposed] Statement of Uncontroverted Facts and Conclusions of Law, Declarations of Holly Stine and Joshua Feldman, and all Exhibits attached thereto, as well as the pleadings, records and files in this case, and upon such other, further oral and documentary evidence that may be presented at or before hearing on this matter. This motion is made following meet and confer efforts between counsel that occurred pursuant to Local Rule 7-3 which took place on August 4, 2016. See Declaration of Joshua Feldman, ¶ 2 filed and served concurrently herewith. Dated: August 9, 2016 /s/ Fatemeh S. Mashouf JOSHUA Z. FELDMAN FATEMEH MASHOUF LITTLER MENDELSON, P.C. Attorneys for Defendant ESA MANAGEMENT, LLC erroneously sued as EXTENDED STAY AMERICA, INC. d.b.a. EXTENDED STAY HOTELS Firmwide:141963507.1 052026.1100 Case 2:15-cv-09935-R-JEM Document 17 Filed 08/09/16 Page 4 of 4 Page ID #:103 LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 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 JOSHUA Z. FELDMAN, Bar No. 199207 jfeldman@littler.com FATEMEH MASHOUF, Bar No. 288667 fmashouf@littler.com LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 Telephone: 310.553.0308 Facsimile: 310.553.5583 Attorneys for Defendant ESA MANAGEMENT, LLC erroneously sued as EXTENDED STAY AMERICA, INC. D.B.A. EXTENDED STAY HOTELS UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA JORGE ALFARO, an individual, Plaintiff, v. EXTENDED STAY AMERICA, INC. d.b.a. EXTENDED STAY HOTELS, and Does 1 through 100, inclusive, Defendants. Case No. 15-CV-09935-R-JEM ASSIGNED TO JUDGE MANUEL L. REAL, COURTROOM 8 MEMORANDUM OF POINTS AND AUTHORIES IN SUPPORT OF DEFENDANT’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT Date: September 6, 2016 Time: 10:00 AM Place: Courtroom 8 Trial Date: October 4, 2016 Complaint Filed: July 7, 2015 Case 2:15-cv-09935-R-JEM Document 17-1 Filed 08/09/16 Page 1 of 20 Page ID #:104 LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF CONTENTS PAGE i. I. INTRODUCTION ............................................................................................... 1 II. STATEMENT OF FACTS .................................................................................. 1 III. LEGAL ANALYSIS ........................................................................................... 4 A. Standard For Summary Judgment And Summary Adjudication .............. 4 B. Plaintiff’s Discrimination Claim Fails As a Matter of Law ...................... 4 1. Plaintiff Cannot Establish A Prima Facie Case of Discrimination ................................................................................ 5 2. Plaintiff’s Termination Was Based On a Legitimate Non- Discriminatory Reason ................................................................... 5 3. Plaintiff Cannot Establish Any Evidence Of Pretext ..................... 7 C. Plaintiff’s Retaliation Claim Fails As a Matter of Law ............................ 9 1. Plaintiff’s Claim Of Retaliation Similarly Fails Because He Cannot Establish Pretext ............................................................... 10 D. Plaintiff’s Wrongful Termination Claim Fails As a Matter of Law ....... 10 E. Plaintiff’s Claim For Failure To Investigate And Take Remedial Action Fail As a Matter of Law .............................................................. 11 1. There Is No Private Right Of Action For Failure To Investigate And Prevent Harassment And Retaliation ................. 11 2. No Cause Of Action For Failure To Investigate And Remedy Where Underlying Claim Fails ...................................... 12 F. Failure To Reasonably Accommodate and Failure To Engage In The Interactive Process ........................................................................... 12 G. Punitive Damages .................................................................................... 13 IV. CONCLUSION ................................................................................................. 14 Case 2:15-cv-09935-R-JEM Document 17-1 Filed 08/09/16 Page 2 of 20 Page ID #:105 LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES PAGE ii. CASES Akers v. County of San Diego, 95 Cal. App. 4th 1441 (2002) ..........................................................................................10 Allen v. Mich. Dep’t of Corrs., 165 F.3d 405 (6th Cir. 1999) ..............................................................................................9 Bryant v. Securicorp, Case No. CGC-10-504372 ................................................................................................11 Celotex Corp. v. Catrett, 477 U.S. 317 (1986) .............................................................................................................4 Chen v. County of Orange, 96 Cal. App. 4th 926 (2002) ...............................................................................................9 Cohen v. Fred Meyer, Inc., 686 F.2d 793 (9th Cir. 1982) ........................................................................................9, 10 Dale v. Chicago Tribune Co., 797 F.2d 458 (7th Cir. 1986) ..............................................................................................6 Dep't of Fair Employment & Hous. v. Law Sch. Admission Council Inc., 896 F. Supp. 2d 849 (N.D. Cal. 2012) .............................................................................7 Dept. of Fair Emp’t & Housing v. Lyddan Law Group (Williams), No. 10-04-P, 2010 Cal. ......................................................................................................11 Douglas v. Anderson, 656 F.2d 528 (9th Cir. 1981) ..............................................................................................6 Flait v. N. Am. Watch Corp., 3 Cal. App. 4th 467 (1992) .................................................................................................6 Gardenhire v. Avis Budget Group, Case No. BC433252 ...........................................................................................................11 Goncalves v. San Diego Gas & Elec. Co., 2016 WL 3582218 (Cal. Ct. App. June 24, 2016) ........................................................8 Case 2:15-cv-09935-R-JEM Document 17-1 Filed 08/09/16 Page 3 of 20 Page ID #:106 LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES (CONTINUED) PAGE iii. Guthrey v. State of Calif., 63 Cal. App. 4th 1108 (1998) ............................................................................................9 Guz v. Bechtel Nat’l, Inc., 24 Cal. 4th 317 (2000) .....................................................................................................5, 6 Hanson v. Lucky Stores, Inc., 74 Cal. App. 4th 215 (1999) ...............................................................................................8 Hersant v. Cal. Dep’t of Soc. Servs., 57 Cal. App. 4th 997 (1997) ...............................................................................................8 Horn v. Cushman & Wakefield W., Inc., 72 Cal. App. 4th 798 (1999) ...............................................................................................8 Jennings v. Marralle, 8 Cal. 4th 121 (1984) .........................................................................................................11 Kortan v. State of California, 5 F. Supp. 2d 843 (C.D. Cal. 1998) ..................................................................................9 Marks v. Loral Corp., 57 Cal. App. 4th 30 (1997) .................................................................................................6 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) .........................................................................................................5, 8 McRae v. Dept. of Corr. & Rehab., 142 Cal. App. 4th 377 (2006) ............................................................................................9 Mock v. Milles Mutual Ins. Co., 4 Cal. App. 4th 306 (1992) ...............................................................................................13 Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099 (9th Cir. 2000) ...........................................................................................4 Ramirez v. Silgan Containers, 2007 U.S. Dist. LEXIS 34825 (E.D. Cal. Apr. 25, 2007) ...........................................7 Real v. Continental Group, Inc., 627 F. Supp. 434 (N.D. Cal. 1986) .................................................................................14 Case 2:15-cv-09935-R-JEM Document 17-1 Filed 08/09/16 Page 4 of 20 Page ID #:107 LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES (CONTINUED) PAGE iv. Sada v. Robert F. Kennedy Med. Cntr., 56 Cal. App. 4th 138 (1997) ...............................................................................................6 Smolen v. Deloitte, Haskins & Sells, 921 F.2d 959 (9th Cir. 1990) ..............................................................................................4 Spitzer v. The Good Guys, Inc., 80 Cal.App.4th 1376 (2000) .............................................................................................12 St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993) .............................................................................................................6 Stevens v. Owens-Corning Fiberglas Corp., 49 Cal. App. 4th 1645 (1996) ..........................................................................................14 Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981) .............................................................................................................5 Tomaselli v. Transamerica Ins., 25 Cal. App. 4th 1269 (1994) ..........................................................................................13 Trujillo v. North Co. Transit Dist. 63 Cal. App. 4th 280 (1998) ..............................................................................................12 TRW, Inc. v. Super. Ct., 25 Cal. App. 4th 1834 (1994) ..........................................................................................10 Wallis v. J.R. Simplot Co., 26 F.3d 885 (9th Cir. 1994) ................................................................................................8 STATUTES California Civil Code § 3294(a) ............................................................................................13 California Civil Code § 3294(c)(1) .......................................................................................13 California Civil Code § 3294(c)(2) .......................................................................................14 California Civil Code § 3294(c)(3) .......................................................................................13 California Government Code § 12940(k) ...........................................................................11 Case 2:15-cv-09935-R-JEM Document 17-1 Filed 08/09/16 Page 5 of 20 Page ID #:108 LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES (CONTINUED) PAGE v. OTHER AUTHORITIES CACI No. 3945 ..........................................................................................................................14 Federal Rules of Civil Procedure, Rule 56 .....................................................................................................................................4 Case 2:15-cv-09935-R-JEM Document 17-1 Filed 08/09/16 Page 6 of 20 Page ID #:109 LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 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. I. INTRODUCTION The entirety of Jorge Alfaro’s (“Plaintiff”) allegations are just that – allegations. Unsupported by any actual evidence of discriminatory motive, Plaintiff speculates that Defendant, ESA Management LLC (“Defendant”), terminated Plaintiff due to some undiagnosed shoulder pain that he allegedly mentioned to his manager, Holly Stine. Plaintiff intentionally omits the actual cause of his termination that occurred immediately preceding his termination wherein he was found converting company property for his own personal use. Specifically, Ms. Stine found Plaintiff in the storage room of the hotel, which only Plaintiff had a key to, disheveled with an open sofa sleeper, television, personal photos, a coffee maker, and shaving tools. Plaintiff was immediately suspended for three days pending an investigation and terminated thereafter. The investigation led Ms. Stine, the District Manager and Human Resources to reasonably and justifiably believe that Plaintiff was likely living in the hotel’s storage room. In fact, Plaintiff admits that he was terminated because of his using the storage room. Indeed, Plaintiff unwittingly refers to the storage room as his personal “shop area.” Despite this incident immediately preceding his termination, Plaintiff now wants the Court to allow for a full-blown jury trial based on his unsupported speculation that his shoulder pain – and not his violations of company policy – was the reason for his termination. Thus, Defendant respectfully asks that the Court grant the Motion For Summary Judgment or, in the alternative, Partial Summary Judgment. II. STATEMENT OF FACTS Plaintiff was employed by Defendant until July 12, 2013 as a maintenance engineer at Defendant’s Glendale hotel. SUF 1. At the time of his termination, Holly Stine was the General Manager of the Glendale hotel and Carlos Yong was the District Manager. SUF 2. Ms. Stine became the General Manager at Case 2:15-cv-09935-R-JEM Document 17-1 Filed 08/09/16 Page 7 of 20 Page ID #:110 LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 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. the Glendale hotel in mid-2012. SUF 3. When she started the position, Ms. Stine asked Plaintiff to give her a copy of every key for the hotel. SUF 4. Plaintiff turned over to Ms. Stine a set of five keys which Ms. Stine believed consisted of a copy of every key that Plaintiff had in his possession. SUF 5. The Glendale hotel underwent a renovation through early 2013 which included re-carpeting of the hallways. SUF 6. After the renovations were completed, Ms. Stine and Mr. Yong took a tour of every room and space of the hotel to evaluate the final result. SUF 7. During the tour, which took place approximately on July 9, 2013, Mr. Yong asked Ms. Stine to open the door for a storage room that was adjacent to a hallway. SUF 8. Ms. Stine had never been in the storage room before but upon seeing that the door was closed, retrieved the full set of keys Plaintiff had given her and tried to open the door. SUF 9. As she went through all five keys , realizing that none worked for the storage room, Plaintiff suddenly opened the door from inside the storage room. SUF 10. Ms. Stine was surprised to see Plaintiff in the storage room and behind him an open sofa sleeper, a 32 inch television, framed photos of what appeared to be of Plaintiff’s family, large motivational posters, a coffee maker and his shaving tools. SUF 11. Plaintiff appeared disheveled and slightly disoriented. SUF 12. Ms. Stine believed that Plaintiff had been asleep on the open sofa sleeper and had been awakened by Ms. Stine’s attempts to open the door. SUF 12. Ms. Stine also noted that the storage room’s carpet had been re-carpeted. SUF 13. Ms. Stine believed Plaintiff was the only person with a key to the storage room and that Plaintiff must have had some level of involvement with the carpet being there. SUF 14. Before she found Plaintiff in the storage room, Ms. Stine had seen Plaintiff on-premises when he was not scheduled to work over a weekend, in violation of company policy. SUF 16-17. In looking into whether he was on premises while off-duty on more than just one occasion, Ms. Stine noticed a car that was owned by Plaintiff or once owned by Plaintiff was in the hotel parking lot when Plaintiff was not Case 2:15-cv-09935-R-JEM Document 17-1 Filed 08/09/16 Page 8 of 20 Page ID #:111 LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 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. scheduled to work. SUF 18. She believed that Plaintiff drove the old car and his newer car to work interchangeably. SUF 19. As a result, she asked Plaintiff to remove the older car from the parking lot. SUF 20. Plaintiff claimed that he did not own or drive the older car but had sold it to another employee four months prior. SUF 20. However, the other employee did not work at the Glendale hotel which made his explanation all the more curious and caused Ms. Stine to disbelieve Plaintiff’s explanation. SUF 21. Regardless, Ms. Stine did not have authority to terminate anyone without first consulting with Human Resources. SUF 22. At the time of the meeting with Plaintiff regarding his vehicle, she had not consulted with Human Resources or told anyone that she wanted to terminate him. SUF 23. Ms. Stine and Mr. Yong raised the issue with Plaintiff because they were trying to determine whether Plaintiff was, as Ms. Stine suspected, coming to the hotel when he was not on schedule. SUF 24.1 Ms. Stine had heard stories from Plaintiff and others about Plaintiff’s hectic family life and divorce. SUF 25. Thus, when Ms. Stine and Mr. Yong saw the storage room, realizing that Plaintiff was the only staff member with a key, and seeing his photos, a mattress atop a sofa sleeper, a coffee maker, shaving tools, and a television in the storage room, Ms. Stine and Mr. Yong came to the conclusion that Plaintiff was misappropriating the storage room for his personal use without authorization. SUF 25-26. As a result, Ms. Stine placed Plaintiff on a three day suspension so she could figure out what to do next. SUF 27. During those three days, Ms. Stine conducted an investigation and consulted with Ann Torres in the Human Resources department. SUF 28. In conjunction with Mr. Yong and Ms. Torres, the decision was made to terminate Plaintiff. SUF 29. At no time did Ms. Stine discuss, 1 Plaintiff testified at a workers’ compensation deposition that he was told that having two cars on the premises was “reason to terminate” him. However, Plaintiff cannot dispute that neither Ms. Stine nor Mr. Yong had obtained authority from Human Resources to actually terminate him during that meeting. SUF 22. Case 2:15-cv-09935-R-JEM Document 17-1 Filed 08/09/16 Page 9 of 20 Page ID #:112 LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 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. or even consider Plaintiff’s alleged disability in relation to the termination decision. SUF 30. Neither Mr. Yong nor Ms. Torres ever discussed the alleged disability with Ms. Stine. SUF 30. Plaintiff’s July 12, 2013 termination notice stated that he was “using [the storage room] as a personal office without proper authorization from management” and that he did not give a copy of the key to the storage room to Ms. Stine “even after being personally asked by her.” SUF 31. III. LEGAL ANALYSIS A. Standard For Summary Judgment And Summary Adjudication. Summary judgment is appropriate if “the pleadings, depositions, answers to interrogatories, and admissions on file . . . show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” FED. R. CIV. P. 56. A claim should be summarily adjudicated if one or more of the elements of a cause of action cannot be established. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986); see also Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000). Once a defendant makes such a showing, the burden shifts to the plaintiff to show that a “genuine issue[] of material fact” exists by “produc[ing] at least some significant probative evidence tending to support the complaint.” Smolen v. Deloitte, Haskins & Sells, 921 F.2d 959, 963 (9th Cir. 1990). A plaintiff may not rely upon the mere allegations in the pleadings to show that a genuine issue exists, but must offer “specific facts showing that there is a genuine issue for trial.” Celotex Corp., 477 U.S. at 322. B. Plaintiff’s Discrimination Claim Fails As a Matter of Law. To succeed on his discrimination claim, Plaintiff must first establish a prima facie case of discrimination. To establish a prima facie case, Plaintiff must show: (1) he is a member of a protected group (alleged disability); (2) he was otherwise qualified to do his job; (3) he was subjected to an adverse employment action; and (4) a causal connection between the adverse employment action and his Case 2:15-cv-09935-R-JEM Document 17-1 Filed 08/09/16 Page 10 of 20 Page ID #:113 LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 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. protected category. Guz v. Bechtel Nat’l, Inc., 24 Cal. 4th 317, 355 (2000). Then, Defendant has an opportunity to articulate a legitimate, non-discriminatory reason for the challenged adverse action(s). McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 -05 (1973). Plaintiff must then prove by substantial evidence—and not by speculation—that the legitimate reasons proffered by Defendant were a pretext for discrimination. Id. 1. Plaintiff Cannot Establish A Prima Facie Case of Discrimination Even taking all of Plaintiff’s allegations as fact, he has not pointed to any relevant evidence indicating that any decision-maker considered his alleged disability and, thus, cannot establish a causal connection between his alleged disability and termination. Plaintiff claims, without evidence, that as a result of his injuring his shoulder on July 1, 2013 , Defendant terminated his employment. Plaintiff’s allegation is based purely on speculation. He does not allege and cannot show that Defendant considered his injury beyond whether or not he could take days off for treatment. There is no evidence that Ms. Stine or Mr. Yong possessed a discriminatory animus against Plaintiff. On the other hand, as discussed below, there is an obvious and logical sequence of events just days before his termination, as documented in his termination notice, for Ms. Stine and Mr. Yong to believe that Plaintiff had engaged in conduct that lead to his termination. Accordingly, he cannot meet his burden and cannot prove the prima facie case for his discrimination claim. 2. Plaintiff’s Termination Was Based On a Legitimate Non- Discriminatory Reason. Even if Plaintiff could establish a prima facie claim of discrimination, which he cannot, the burden shifts to Defendant to only “articulate” a legitimate, nondiscriminatory reason for the personnel decision at issue. Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253-54 (1981). Defendant need only produce evidence demonstrating a legitimate, non-discriminator reason for its conduct, and is Case 2:15-cv-09935-R-JEM Document 17-1 Filed 08/09/16 Page 11 of 20 Page ID #:114 LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 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. not required to prove the absence of a discriminatory motive. Flait v. N. Am. Watch Corp., 3 Cal. App. 4th 467, 479 (1992). The question is not whether the decision was based on correct assumptions, but whether Defendant reasonably believed those reasons and validly exercised its business judgment. Guz, 24 Cal. 4th at 358. The reasons need not meet the approval of a judge or jury, as long as the decision was not discriminatory. Douglas v. Anderson, 656 F.2d 528, 534 (9th Cir. 1981). Once Defendant provides a legitimate reason, any presumption created by the showing of a prima facie case “simply drops out of the picture.” St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 511 (1993). Defendant’s reasons for Plaintiff’s termination are non-discriminatory. Defendant reasonably believed that Plaintiff had violated company policy by spending time on-premises when he was off-duty, by intentionally withholding a key to the storage room, and by converting the hotel’s storage room into his personal use without authorization. SUF 17. Ms. Stine and Mr. Yong believed that such conduct showed poor judgment and that Plaintiff could not be trusted with full access to the entire hotel as the maintenance engineer. SUF 32. For business reasons, Ms. Stine and Mr. Yong concluded that his termination was appropriate. SUF 29. See Sada v. Robert F. Kennedy Med. Cntr., 56 Cal. App. 4th 138, 155 (1997)(internal citation omitted); Marks v. Loral Corp., 57 Cal. App. 4th 30, 64 (1997), superseded on other grounds (“Business people, rather than judges, are presumed to know what is best for their own businesses.”); Dale v. Chicago Tribune Co., 797 F.2d 458, 464 (7th Cir. 1986) (“This Court does not sit as a super-personnel department that reexamines an entity's business decisions . . . The question is not whether the [employer] exercised prudent business judgment [but whether it made an unlawful hiring decision ].”) Plaintiff’s Complaint with the Department of Fair Employment and Housing (“DFEH”) states that he was terminated after being accused of instructing subcontractors to “carpet [his] shop area.” SUF 36. Plaintiff repeats the phrase “my shop area” twice in his DFEH Complaint. SUF 36. What Plaintiff has failed to Case 2:15-cv-09935-R-JEM Document 17-1 Filed 08/09/16 Page 12 of 20 Page ID #:115 LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 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. understand is that the very fact that he used Defendant’s storage room as his shop area is the reason he was terminated – Plaintiff did not have authority to turn the storage area into his personal “shop” or office and the carpeting was simply an example of how the storage room had appeared to be converted into his own living space. SUF 15. Plaintiff’s admission that he was indeed using the storage room as his personal shop amounts to an admission. Womack v. Lovell, 237 CA4th 772, 786 (2015) (plaintiff's allegation in its unverified complaint was a binding judicial admission); Dep't of Fair Employment & Hous. v. Law Sch. Admission Council Inc., 896 F. Supp. 2d 849, 855 (N.D. Cal. 2012) (plaintiff’s claims asserted in DFEH complaint are to be taken as true for purposes of dispositive motion); Ramirez v. Silgan Containers, 2007 U.S. Dist. LEXIS 34825 (E.D. Cal. Apr. 25, 2007) (same). Unsurprisingly, Plaintiff failed to mention in his Complaint, in the DFEH Complaint, or in his Workers’ Compensation deposition that he was suspended for three days immediately after being found in the storage room followed by his termination. This omission exemplifies that Plaintiff is avoiding the elephant in the room – the real reason for his termination – by trying to ignore the fact that Ms. Stine and Mr. Yong caught Plaintiff “red handed.” Plaintiff now disputes having actually used the storage room as a living space but that is irrelevant. What Ms. Stine and Mr. Yong witnessed gave them cause to reasonably believe that Plaintiff was living or certainly making non-work personal use of the storage room. Even if he was not living in the storage room, Plaintiff has admitted that he was using the storage room as his personal shop. SUF 36. Thus, it cannot be disputed that Defendant had a legitimate, non-discriminatory reason for the termination decision. 3. Plaintiff Cannot Establish Any Evidence Of Pretext To rebut Defendant’s legitimate, non-discriminatory reasons for decisions regarding Plaintiff’s employment, Plaintiff must prove that Defendant’s proffered reasons were not genuine, and rather just a “cover-up” for discrimination. Case 2:15-cv-09935-R-JEM Document 17-1 Filed 08/09/16 Page 13 of 20 Page ID #:116 LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 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. McDonnell Douglas Corp., 411 U.S. at 805. “In response to [Defendant’s] offer of nondiscriminatory reasons, [Plaintiff] must produce ‘specific, substantial evidence of pretext.’” Wallis v. J.R. Simplot Co., 26 F.3d 885, 890 (9th Cir. 1994) (emphasis added). A plaintiff’s “speculation that [the employer’s] reasons for terminating him were pretextual does not suffice to create a material issue of fact.” Goncalves v. San Diego Gas & Elec. Co., 2016 WL 3582218, at *6 (Cal. Ct. App. June 24, 2016). Plaintiff must present both specific and substantial evidence rebutting Defendant’s explanations. Horn v. Cushman & Wakefield W., Inc., 72 Cal. App. 4th 798, 807 (1999). Protestations of improper motive and intent, without “substantial factual evidence”, are inadequate to meet the burden of this prong. Martin, 29 Cal. App. 4th at 1735 (emphasis added); Hanson v. Lucky Stores, Inc., 74 Cal. App. 4th 215, 224-25 (1999) (speculation is insufficient to defeat summary judgment). “The employee cannot simply show that the employer’s decision was wrong or mistaken . . . but must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence.” Hersant v. Cal. Dep’t of Soc. Servs., 57 Cal. App. 4th 997, 1005 (1997). Plaintiff has cited to no derogatory comments regarding his alleged disability. Plaintiff cannot point to any specific evidence, let alone substantial evidence, to demonstrate that Defendant’s proffered reason for the termination was merely pretext. To the contrary, Plaintiff repeated several times, under oath during his Workers’ Compensation deposition, that he believed carpeting in the storage room was the reason for his termination; not once did he state that he was terminated because of his alleged disability. SUF 34. Plaintiff even states that when he tried to have the subcontractor explain that Plaintiff was not involved in the carpeting of the storage room, Mr. Yong and Ms. Stine “did not believe” the subcontractor, continuing to believe that Plaintiff had done something wrong. SUF 35. Thus, even Plaintiff has Case 2:15-cv-09935-R-JEM Document 17-1 Filed 08/09/16 Page 14 of 20 Page ID #:117 LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 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. admitted that he was terminated in connection with Ms. Stine and/or Mr. Yong’s belief that Plaintiff had engaged in misconduct. Plaintiff’s newly formed unsupported argument that Defendant simply wanted to be rid of him due to some seemingly temporary injury cannot withstand summary judgment. Plaintiff’s asserting that Mr. Yong and Ms. Stine were wrong or mistaken in their belief about his use of the storage room has no relevance as long as discrimination was not the reason.. Accordingly, Plaintiff’s claim for discrimination must fail. C. Plaintiff’s Retaliation Claim Fails As a Matter of Law. To prove retaliation, Plaintiff must show that: (1) he engaged in a protected activity; (2) he experienced an adverse employment action; and (3) there was a causal link between his protected activity and the adverse employment action. Guthrey v. State of Calif., 63 Cal. App. 4th 1108, 1125 (1998). Plaintiff’s prima facie retaliation claim fails because he is unable to establish a causal link between any purported protected activity and his termination. Plaintiff must demonstrate that his participation in the protected activity caused the adverse employment action. Guthrey, 63 Cal. App. 4th at 1125. To show the requisite causal link, Plaintiff “must present evidence sufficient to raise the inference that [his] protected activity was the likely reason for the adverse action.” Cohen v. Fred Meyer, Inc., 686 F.2d 793, 796 (9th Cir. 1982). “The mere fact that an employee [engages in protected activity] does not create the inference that everything that happens thereafter is a result of that [protected activity].” Kortan v. State of California, 5 F. Supp. 2d 843, 853 (C.D. Cal. 1998). “[C]onclusory allegations are insufficient to establish causation [in support of retaliation claim].” Allen v. Mich. Dep’t of Corrs., 165 F.3d 405, 413 (6th Cir. 1999). Mere proximity of time between the alleged protected activities and the alleged adverse employment action is not enough to show a causal link. See McRae v. Dept. of Corr. & Rehab., 142 Cal. App. 4th 377, 388 (2006); Chen v. County of Orange, 96 Case 2:15-cv-09935-R-JEM Document 17-1 Filed 08/09/16 Page 15 of 20 Page ID #:118 LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 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. Cal. App. 4th 926, 931 (2002) (allowing mere sequence as the basis for a retaliation claim “would be the classic logical fallacy of ‘post hoc ergo prompter hoc’ (after the fact, therefore because of the fact).”). Here, the entirety of Plaintiff’s retaliation claim rests on temporal proximity between his alleged shoulder injury and his termination. However, he has no evidence that the injury or requests for time off or for a list of medical providers is the “likely reason for the adverse action.” Cohen, 686 F.2d at 796. Conveniently, Plaintiff entirely fails to acknowledge being discovered in the storage room and the directly resulting suspension because doing so directly deprives him of his argument. In light of the complete lack of evidence of a retaliatory motive and the obvious objective, real explanation for his termination, Plaintiff simply cannot establish causation. Thus, Plaintiff cannot maintain a prima facie case of retaliation. 1. Plaintiff’s Claim Of Retaliation Similarly Fails Because He Cannot Establish Pretext. Like discrimination claims, retaliation claims are analyzed under a burden-shifting framework. Akers v. County of San Diego, 95 Cal. App. 4th 1441, 1453 (2002). Even assuming that Plaintiff is able to establish that perhaps he engaged in protected activity, he still cannot show that his termination was a pretext for such activity. Plaintiff cannot dispute that Ms. Stine and Mr. Yong believed that Plaintiff violated company policy and was misappropriating the storage room as his personal shop, office, or living space. Plaintiff has not presented any evidence beyond mere speculation that Ms. Stine and Mr. Yong terminated him pretextually and, thus, his retaliation claim must similarly fail as a matter of law. D. Plaintiff’s Wrongful Termination Claim Fails As a Matter of Law. A plaintiff may not assert a wrongful termination in violation of public policy claim as a fall-back to a constitutional or statutory claim where the underlying statutory claim itself fails. TRW, Inc. v. Super. Ct., 25 Cal. App. 4th 1834 (1994). As Plaintiff’s underlying discrimination and retaliation claims are without merit, any Case 2:15-cv-09935-R-JEM Document 17-1 Filed 08/09/16 Page 16 of 20 Page ID #:119 LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 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. related wrongful termination claim also fails. Jennings v. Marralle, 8 Cal. 4th 121, 135 (1984). E. Plaintiff’s Claim For Failure To Investigate And Take Remedial Action Fail As a Matter of Law. 1. There Is No Private Right Of Action For Failure To Investigate And Prevent Harassment And Retaliation. Plaintiff alleges claims under sections 12940 (j) and 12940 (k) for failure to investigate and take “remedial measures” to prevent discrimination. However, the Fair Employment and Housing Commission (“Commission”) has held that a claim asserting a failure to take all reasonable steps to prevent discrimination and harassment from occurring in violation of Government Code section 12940(k) does not give rise to an actionable tort or private cause of action in civil proceedings between private litigants. See Request for Judicial Notice in Support of Defendant’s Motion For Summary Judgment (“Defendant’s RJN”), ¶ 1, Exh. A (Dept. of Fair Emp’t & Housing v. Lyddan Law Group (Williams), No. 10-04-P, 2010 Cal. F.E.H.C. LEXIS 4, *2-*3, *34-*35 (Oct. 19, 2010, with an effective date of November 20, 2010). The Commission concluded that the Department of Fair Employment and Housing alone may prosecute a “stand alone” claim, and that such a cause of action does not exist for private litigants. Lyddan Law Group, No. 10-04-P, 2010 Cal. F.E.H.C. LEXIS 4 at *16. Indeed, other Courts throughout the state of California have followed the Lyddan Law Group precedent and have dismissed failure to prevent causes of action without leave to amend. See Defendant’s RJN, ¶ 2, Exh. B (2/24/2011 decision of the San Francisco Superior Court in Bryant v. Securicorp, Case No. CGC-10-504372), and ¶ 3, Exh. C-D (relevant excerpts of the order and brief in the Los Angeles Superior Court in Gardenhire v. Avis Budget Group, Case No. BC433252). Given the Commission’s precedential decision prohibiting private litigants, like Plaintiff, from asserting a violation of Government Code section Case 2:15-cv-09935-R-JEM Document 17-1 Filed 08/09/16 Page 17 of 20 Page ID #:120 LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 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. 12940(k) for a failure to take all reasonable steps to prevent discrimination and harassment, summary judgment to Plaintiff’s Second Cause of Action must be ordered. 2. No Cause Of Action For Failure To Investigate And Remedy Where Underlying Claim Fails. Plaintiff cannot establish a claim for failure to prevent discrimination unless he establishes that the underlying discrimination occurred. see Trujillo v. North Co. Transit Dist. (1998) 63 Cal. App. 4th 280, 286. For the reasons set forth above, Plaintiff’s claim of discrimination fails. By this cause of action, Plaintiff asserts that Defendant was obligated to conduct a thorough investigation into Defendant’s claims of discrimination. However, Plaintiff’s claim of discrimination is rooted in his termination which necessarily is beyond any investigation or remedy. Moreover, Defendant knows it did not discriminate against Plaintiff based upon his disability and that it has a legitimate basis for his termination so there is nothing to investigate. Thus, Plaintiff’s claim that Defendant failed to investigate or take remedial actions also fails. F. Failure To Reasonably Accommodate and Failure To Engage In The Interactive Process. Plaintiff’s claims for failure to engage in the interactive process and failure to accommodate fall flat. Two principles underlie a cause of action for failure to provide a reasonable accommodation. First, the employee must request an accommodation or the need must be obvious. Second, the parties must engage in an interactive process regarding the accommodation and, if the process fails, responsibility for the failure rests with the party who failed to participate in good faith. See Spitzer v. The Good Guys, Inc., 80 Cal.App.4th 1376, 1385 (2000) (the FEHA “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”). Case 2:15-cv-09935-R-JEM Document 17-1 Filed 08/09/16 Page 18 of 20 Page ID #:121 LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 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. Plaintiff alleges that he wanted to take time off work to see a doctor. Defendant never precluded him from seeking medical care and Plaintiff was free to use a sick day, if he felt the need to see a doctor. Plaintiff simply alleges that he wanted to take time off – without providing a medical note or filing a worker’s compensation claim – to heal from some undiagnosed shoulder pain. SUF 33. Simply asking for time off, without the support of a doctor’s note, is insufficient for Plaintiff to now allege that he requested an “accommodation” or attempted to engage in the interactive process. Thus, Plaintiff has failed to participate in the interactive process in good faith and cannot now survive summary judgment. G. Punitive Damages. Even if the Court concludes Plaintiff has presented sufficient evidence to withstand summary judgment, Plaintiff still has insufficient evidence to support a claim for punitive damages. “Punitive damages are proper only when the tortious conduct rises to levels of extreme indifference … a level which decent citizens should not have to tolerate.” Tomaselli v. Transamerica Ins., 25 Cal. App. 4th 1269, 1287 (1994). To state a claim for punitive damages, Plaintiff must show “by clear and convincing evidence that the defendant is guilty of fraud, oppression or malice.” CAL. CIV. CODE § 3294(a). The “clear and convincing” standard requires, “that the evidence be so clear as to leave no substantial doubt” and “sufficiently strong to command the unhesitating assent of every reasonable mind.” Mock v. Milles Mutual Ins. Co., 4 Cal. App. 4th 306, 332-33 (1992). Fraud is defined as “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.” Cal. Civ. Code § 3294(c)(3). Malice requires “despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” Cal. Civ. Code § 3294(c)(1). Oppression means Case 2:15-cv-09935-R-JEM Document 17-1 Filed 08/09/16 Page 19 of 20 Page ID #:122 LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 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. “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s right.” Cal. Civ. Code § 3294(c)(2). Despicable conduct is conduct “so mean, vile, base, or contemptible that it would be looked down on and despised by reasonable people.” CACI No. 3945. Even if Plaintiff can prove any of the alleged conduct in his claims, merely establishing underlying claims is not enough to warrant punitive damages. See e.g. Real v. Continental Group, Inc., 627 F. Supp. 434 (N.D. Cal. 1986). The wrongful conduct alleged are mere employment decisions and fall far short of conduct that is “so mean, vile, base or contemptible that it would be looked down on and despised by reasonable people.” CACI No. 3945. Plaintiff has set forth no evidence that rises to the level of “extreme indifference” and Plaintiff is not entitled to the disfavored punitive damages remedy. See Stevens v. Owens-Corning Fiberglas Corp., 49 Cal. App. 4th 1645, 1658 (1996). Plaintiff’s request for punitive damages against Defendant should be denied. IV. CONCLUSION For the reasons stated above, Defendant respectfully requests that this Court grant its Motion for Summary Judgment or, in the alternative, Partial Summary Judgment. Dated: August 9, 2016 /s/ Fatemeh S. Mashouf JOSHUA Z. FELDMAN FATEMEH S. MASHOUF LITTLER MENDELSON, P.C. Attorneys for Defendant ESA MANAGEMENT, LLC erroneously sued as EXTENDED STAY AMERICA, INC. d.b.a. EXTENDED STAY HOTELS Firmwide:141964209.2 052026.1100 Case 2:15-cv-09935-R-JEM Document 17-1 Filed 08/09/16 Page 20 of 20 Page ID #:123 LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 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 JOSHUA Z. FELDMAN, Bar No. 199207 jfeldman@littler.com FATEMEH MASHOUF, Bar No. 288667 fmashouf@littler.com LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 Telephone: 310.553.0308 Facsimile: 310.553.5583 Attorneys for Defendant ESA MANAGEMENT, LLC erroneously sued as EXTENDED STAY AMERICA, INC. D.B.A. EXTENDED STAY HOTELS UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA JORGE ALFARO, an individual, Plaintiff, v. EXTENDED STAY AMERICA, INC. d.b.a. EXTENDED STAY HOTELS, and Does 1 through 100, inclusive, Defendants. Case No. 15-CV-09935-R-JEM ASSIGNED TO JUDGE MANUEL L. REAL, COURTROOM 8 DECLARATION JOSHUA FELDMAN IN SUPPORT OF DEFENDANT’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT Date: September 6, 2016 Time: 10:00 AM Place: Courtroom 8 Trial Date: October 4, 2016 Complaint Filed: July 7, 2015 Case 2:15-cv-09935-R-JEM Document 17-2 Filed 08/09/16 Page 1 of 18 Page ID #:124 LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1. DECLARATION OF JOSHUA FELDMAN I, JOSHUA FELDMAN, declare as follows: 1. I am an attorney with Littler Mendelson, P.C., counsel of record for Defendant ESA MANAGEMENT, LLC erroneously sued as EXTENDED STAY AMERICA, INC. d.b.a. EXTENDED STAY HOTELS (“Defendant”) in connection with the above-captioned matter. I make this declaration in support of Defendant’s Motion for Summary Judgment or, alternatively, Partial Summary Judgment. I am duly licensed to practice law in the State of California and before the United States District Court for the Central District and am one of the attorneys responsible for representing Defendant in this action. Except where otherwise indicated, all of the information contained herein is based upon my personal knowledge and if called and sworn as a witness, I could and would competently testify thereto. 2. I reached out to Plaintiff’s counsel during the first week of August in order to discuss pending matters in this case, including the instant Motion. Plaintiff’s counsel was unavailable to speak until August 4, during which we held a telephonic meet and confer and discuss the instant Motion pursuant to Local Rule 7-3. 3. Plaintiff has produced as part of this litigation a Workers’ Compensation transcript for a deposition he was subject to on January 17, 2014. Attached hereto as Exhibit A is a true and correct copy of the relevant excerpts of Plaintiff’s deposition testimony which my office obtained directly from the court reporter’s company, along with the court’s reporter’s certification page. Case 2:15-cv-09935-R-JEM Document 17-2 Filed 08/09/16 Page 2 of 18 Page ID #:125 LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 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. 4. Plaintiff has produced as part of this litigation his complaint filed with the Department of Fair Employment and Housing. Attached hereto as Exhibit B is a true and correct copy of the complaint produced by Plaintiff, marked with abtes stamps 000124-000129. I declare under penalty of perjury under the laws of the United States of America and the State of California that the foregoing is true and correct. Executed this 9th day of August, 2016 at Los Angeles, California. Dated: August 9, 2016 / Joshua Feldman JOSHUA FELDMAN Firmwide:141964472.1 052026.1100 Case 2:15-cv-09935-R-JEM Document 17-2 Filed 08/09/16 Page 3 of 18 Page ID #:126 Case 2:15-cv-09935-R-JEM Document 17-2 Filed 08/09/16 Page 4 of 18 Page ID #:127 Page 1 1 WORKERS COMPENSATION APPEALS BOARD 2 3 4 5 JORGE ALFARO, ) 6 ) Applicant, ) 7 ) vs. ) Case No. ADJ9050696 8 ) EXTENDED STAY HOTELS, ) 9 ) Respondents. ) 10 ) 11 12 13 14 15 DEPOSITION OF 16 JORGE ALFARO 17 SANTA MONICA, CALIFORNIA 18 FRIDAY, JANUARY 17, 2014 19 20 21 ATKINSON-BAKER, INC. COURT REPORTERS 22 (800) 288-3376 www.depo.com 23 REPORTED BY: MONIKA C. COYLE, CSR NO. 4254 24 FILE NO.: A70D373 25 Case 2:15-cv-09935-R-JEM Document 17-2 Filed 08/09/16 Page 5 of 18 Page ID #:128 Page 2 1 WORKERS' COMPENSATION APPEALS BOARD 2 3 4 5 6 ) JORGE ALFARO, ) 7 ) Applicant, ) 8 ) vs. ) Case No. ADJ9050696 9 ) EXTENDED STAY HOTELS, ) 10 ) Respondents. ) 11 ) 12 13 14 15 Deposition of JORGE ALFARO, taken on behalf of Respondents, at 2901 28th Street, Suite 200, Santa Monica, 16 California, commencing at 1:03 p.m., Friday, January 17, 2014, before Monika C. Coyle, CSR No. 4254. 17 18 19 20 21 22 23 24 25 Case 2:15-cv-09935-R-JEM Document 17-2 Filed 08/09/16 Page 6 of 18 Page ID #:129 Page 32 1 once a week. 2 Q. Is this new furniture or you are just rotating 3 it from room to room? 4 A. We rotate it from room to room. 5 Q. How much of your job on a percentage basis would 6 you say involves lifting? 7 A. Ninety percent. 8 Q. So most of your day you would say you're 9 lifting -- 10 A. Lifting, pushing, pulling. 11 Q. -- items? 12 A. Yes. 13 Q. What would you say the average, in terms of 14 weight, the average weight of the items that you're 15 lifting? 16 A. I would say between 50 and 75 pounds. 17 Q. What was your rate of pay? 18 A. Nineteen dollars 50 cents. 19 Q. And do you know the reason for your separation 20 from the company? 21 A. Yes. 22 Q. Can you explain to me what happened? 23 A. I was accused to give authorization to the 24 contractors to install carpet in the storage room. 25 Q. Say that again, you were given instructions -- Case 2:15-cv-09935-R-JEM Document 17-2 Filed 08/09/16 Page 7 of 18 Page ID #:130 Page 34 1 remodelling. 2 Q. Okay. 3 A. And that was the reason because they terminated 4 'cause they say I give authorization to them. Which I 5 didn't. 6 Q. Okay. I'm confused. So let's back up. So on 7 the day that you were terminated -- did all this happen on 8 the day that you were terminated? 9 A. No, that happened like a month before I got 10 terminated for that reason. 11 Q. Okay. So you went to work that day and there 12 were contractors in the storage room laying carpet? 13 A. No. They were installing the carpet in the 14 hallway. 15 Q. Of the hotel? 16 A. In the hotel. 17 Q. Okay. 18 A. The workers ask me to open the storage room so 19 they could put the trim between the new carpet and the old 20 carpet that was in that room already. 21 Q. Okay. 22 A. The owner of the company of the contractors 23 walked in and he said, Jorge, let us put carpeting in that 24 storage room. 25 Q. This is the owner -- Kenny is the owner of the Case 2:15-cv-09935-R-JEM Document 17-2 Filed 08/09/16 Page 8 of 18 Page ID #:131 Page 38 1 Q. That's what Kenny said? 2 A. Yes. That was right in front of them. I said, 3 thank you. I appreciate it. We need a statement from 4 you. Yes, Jorge. Any time. 5 Q. So this was on the phone during the meeting? 6 A. Correct. I requested human resource to be 7 involved and they refused to go to human resource. 8 Q. At the meeting you requested? 9 A. At the meeting. 10 Q. Why did you request human resources to get 11 involved? 12 A. Because I -- that moment that I was asked to be 13 accused for something that I never actually give 14 authorization. 15 Q. So they did not believe Kenny, is that what you 16 are saying? 17 A. Yes. 18 Q. Okay. And so also during the meeting you -- at 19 this point you told them that your shoulder was bothering 20 you? 21 A. Yes. 22 Q. And that you needed to see a doctor? 23 A. Yes. 24 Q. What shoulder did you say you were having 25 symptoms? Case 2:15-cv-09935-R-JEM Document 17-2 Filed 08/09/16 Page 9 of 18 Page ID #:132 Page 53 1 Q. Why were you depressed? 2 A. Because of the same reasons -- after 14 years to 3 work with the company and it was my second house. I was 4 devastated we have somebody to tell you we just want to get 5 rid of you. 6 Q. Were you terminated at that last meeting on 7 September 12th? 8 A. July 12th not September. 9 Q. That's when you were terminated at the end of 10 that meeting with Carlos and Holly? 11 A. Yes. 12 Q. So it seemed like it was -- your understanding 13 it was just because of the carpet situation that you were 14 terminated? 15 A. And it is in writing, yes. 16 Q. What's in writing? 17 A. That. 18 Q. The termination is in writing? 19 A. Yes. They give me termination and it says right 20 there that was because of the carpet. 21 Q. So what was the -- so did the injury occur as a 22 result of carrying the doors, is that -- 23 A. Yes. 24 Q. Is that what it was? 25 A. (Nods head.) Case 2:15-cv-09935-R-JEM Document 17-2 Filed 08/09/16 Page 10 of 18 Page ID #:133 Case 2:15-cv-09935-R-JEM Document 17-2 Filed 08/09/16 Page 11 of 18 Page ID #:134 Case 2:15-cv-09935-R-JEM Document 17-2 Filed 08/09/16 Page 12 of 18 Page ID #:135 Case 2:15-cv-09935-R-JEM Document 17-2 Filed 08/09/16 Page 13 of 18 Page ID #:136 Case 2:15-cv-09935-R-JEM Document 17-2 Filed 08/09/16 Page 14 of 18 Page ID #:137 Case 2:15-cv-09935-R-JEM Document 17-2 Filed 08/09/16 Page 15 of 18 Page ID #:138 Case 2:15-cv-09935-R-JEM Document 17-2 Filed 08/09/16 Page 16 of 18 Page ID #:139 Case 2:15-cv-09935-R-JEM Document 17-2 Filed 08/09/16 Page 17 of 18 Page ID #:140 Case 2:15-cv-09935-R-JEM Document 17-2 Filed 08/09/16 Page 18 of 18 Page ID #:141 Case 2:15-cv-09935-R-JEM Document 17-3 Filed 08/09/16 Page 1 of 11 Page ID #:142 Case 2:15-cv-09935-R-JEM Document 17-3 Filed 08/09/16 Page 2 of 11 Page ID #:143 Case 2:15-cv-09935-R-JEM Document 17-3 Filed 08/09/16 Page 3 of 11 Page ID #:144 Case 2:15-cv-09935-R-JEM Document 17-3 Filed 08/09/16 Page 4 of 11 Page ID #:145 Case 2:15-cv-09935-R-JEM Document 17-3 Filed 08/09/16 Page 5 of 11 Page ID #:146 Case 2:15-cv-09935-R-JEM Document 17-3 Filed 08/09/16 Page 6 of 11 Page ID #:147 ESA0002 Case 2:15-cv-09935-R-JEM Document 17-3 Filed 08/09/16 Page 7 of 11 Page ID #:148 ESA0003 Case 2:15-cv-09935-R-JEM Document 17-3 Filed 08/09/16 Page 8 of 11 Page ID #:149 Case 2:15-cv-09935-R-JEM Document 17-3 Filed 08/09/16 Page 9 of 11 Page ID #:150 ESA0016 Case 2:15-cv-09935-R-JEM Document 17-3 Filed 08/09/16 Page 10 of 11 Page ID #:151 ESA0017 Case 2:15-cv-09935-R-JEM Document 17-3 Filed 08/09/16 Page 11 of 11 Page ID #:152 LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 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 JOSHUA Z. FELDMAN, Bar No. 199207 jfeldman@littler.com FATEMEH MASHOUF, Bar No. 288667 fmashouf@littler.com LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 Telephone: 310.553.0308 Facsimile: 310.553.5583 Attorneys for Defendant ESA MANAGEMENT, LLC erroneously sued as EXTENDED STAY AMERICA, INC. D.B.A. EXTENDED STAY HOTELS UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA JORGE ALFARO, an individual, Plaintiff, v. EXTENDED STAY AMERICA, INC. d.b.a. EXTENDED STAY HOTELS, and Does 1 through 100, inclusive, Defendants. Case No. 15-CV-09935-R-JEM ASSIGNED TO JUDGE MANUEL L. REAL, COURTROOM 8 [PROPOSED] STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT Date: September 6, 2016 Time: 10:00 AM Place: Courtroom 8 Case 2:15-cv-09935-R-JEM Document 17-4 Filed 08/09/16 Page 1 of 14 Page ID #:153 LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1. Defendant ESA MANAGEMENT, LLC erroneously sued as EXTENDED STAY AMERICA, INC. d.b.a. EXTENDED STAY HOTELS (“Defendant”) hereby submits, pursuant to Local Rule 56-1, its Statement of Uncontroverted Facts and Conclusions of Law, together with references to supporting evidence, in support of its Motion for Summary Judgment or, in the Alternative, Partial Summary Judgment. The following uncontroverted facts are applicable to all issues submitted as being without controversy: STATEMENT OF UNCONTROVERTED FACTS NO. UNDISPUTED FACT SUPPORTING EVIDENCE 1. Plaintiff, Jorge Alfaro (“Plaintiff”), was employed by Defendant ESA Management, LLC (“Defendant”) until July 12, 2013 as a maintenance engineer at Defendant’s Glendale hotel. Declaration of Holly Stine (“Stine Decl.”), ¶ 2-3. 2. In July 2013, Holly Stine was the General Manager of the Glendale hotel and Carlos Yong was the District Manager. Stine Decl., ¶ 2. 3. Ms. Stine has been employed by Defendant since 2009 and became Plaintiff’s manager in approximately mid-2012 through his termination. Stine Decl., ¶ 2. 4. Upon starting her position at the Glendale property, Ms. Stine asked Plaintiff to give her a copy of every key for the hotel. Stine Decl., ¶ 3. 5. Plaintiff turned over to Ms. Stine a set of approximately five keys which Ms. Stine Stine Decl., ¶ 3. Case 2:15-cv-09935-R-JEM Document 17-4 Filed 08/09/16 Page 2 of 14 Page ID #:154 LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 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. NO. UNDISPUTED FACT SUPPORTING EVIDENCE believed consisted of a copy of every key that Plaintiff had in his possession. 6. The Glendale hotel underwent a renovation through early 2013 which included re- carpeting of the hallways of the hotel. Stine Decl., ¶ 4. 7. After the renovations were completed, Ms. Stine and Mr. Yong took a tour of every room and space of the hotel to evaluate the final result. Stine Decl., ¶ 4. 8. During the tour, which took place approximately on July 9, 2013, Mr. Yong asked Ms. Stine to open the door for a storage room that was adjacent to a hallway. Stine Decl., ¶ 4. 9. Ms. Stine had never been in the storage room before but upon seeing that the door was closed, retrieved the full set of keys in her possession to try to open the door. Stine Decl., ¶ 4. 10. As Ms. Stine attempted to open the door with each key in her possession, realizing that none of the keys worked for the storage room, the door was suddenly opened by Plaintiff who was inside the storage room. Stine Decl., ¶ 4. 11. Ms. Stine was surprised to see Plaintiff in the storage room and behind him an open sofa sleeper, a 32 inch television, a coffee maker, framed photos of what appeared to be of Stine Decl., ¶ 5. Case 2:15-cv-09935-R-JEM Document 17-4 Filed 08/09/16 Page 3 of 14 Page ID #:155 LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 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. NO. UNDISPUTED FACT SUPPORTING EVIDENCE Plaintiff’s family, motivational posters on the wall, and his shaving tools. 12. Plaintiff appeared disheveled and slightly disoriented, leading Ms. Stine to believe that he had been asleep on the open sofa sleeper and had been awakened by her attempts to open the door. Stine Decl., ¶ 5. 13. Ms. Stine also noted that the storage room’s carpet had been re-carpeted. Stine Decl., ¶ 5. 14. Because Ms. Stine believed that the only person with a key to the storage room was Plaintiff, she concluded that it was re-carpeted with some level of involvement by Plaintiff. Stine Decl., ¶ 5. 15. Ms. Stine did not authorize and did not believe that Plaintiff’s use of the storage room was authorized by management. Stine Decl., ¶ 9. 16. Ms. Stine saw Plaintiff on-premises when he was not scheduled to work over a weekend. Stine Decl., ¶ 6. 17. Defendant’s policy states that Plaintiff “is not permitted to be in the interior of the Hotel or in other working areas unless he is reporting to work, on duty, obtaining his paycheck, or leaving work.” Stine Decl., ¶ 11, Exh. B. 18. In trying to determine whether Plaintiff was on-premises while off duty on more than one occasion, Ms. Stine noticed that a car that was Stine Decl., ¶ 6. Case 2:15-cv-09935-R-JEM Document 17-4 Filed 08/09/16 Page 4 of 14 Page ID #:156 LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 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. NO. UNDISPUTED FACT SUPPORTING EVIDENCE owned or had been owned by Plaintiff was in the hotel parking lot when Plaintiff was not scheduled to work. 19. Ms. Stine believed that Plaintiff drove the old car and his newer car to work interchangeably. Stine Decl., ¶ 6. 20. Ms. Stine asked Plaintiff to remove the older car from the parking lot after Plaintiff claimed that he did not own or drive the older car but had sold it to another employee four months prior. Stine Decl., ¶ 6. 21. Ms. Stine did not believe Plaintiff’s claim that he had relinquished the car to another employee because the other employee was not employed at the Glendale hotel, making the car’s presence in Glendale suspect. Stine Decl., ¶ 6. 22. Ms. Stine did not have authority to terminate anyone without first consulting with Human Resources. Stine Decl., ¶ 7. 23. At the time of the meeting with Plaintiff regarding his vehicle, Ms. Stine had not consulted with Human Resources or told anyone that she wanted to terminate him. Stine Decl., ¶ 7. 24. Ms. Stine and Mr. Yong raised the issue with Plaintiff because they were trying to determine whether or not Plaintiff was, as she suspected, coming to the hotel when he was not on Stine Decl., ¶ 7. Case 2:15-cv-09935-R-JEM Document 17-4 Filed 08/09/16 Page 5 of 14 Page ID #:157 LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 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. NO. UNDISPUTED FACT SUPPORTING EVIDENCE schedule. 25. Plaintiff had told Ms. Stine about his divorce and Ms. Stine had heard various stories about Plaintiff’s hectic family life, further supporting her belief that Plaintiff was spending of-duty hours on the hotel property and/or misappropriating hotel space for his personal use. Stine Decl., ¶ 8. 26. Ms. Stine and Mr. Yong came to the conclusion that Plaintiff was misappropriating the storage room as his personal space without authorization based on a culmination of the recent suspicious events involving Plaintiff. Stine Decl., ¶ 8. 27. Ms. Stine placed Plaintiff on a three day suspension so she could figure out what to do next. Stine Decl., ¶ 8. 28. During Plaintiff’s suspension, Ms. Stine conducted an investigation and consulted with Ann Torres in the Human Resources department. Stine Decl., ¶ 8. 29. Ms. Stine, Mr. Yong and Ms. Torres decided together to terminate Plaintiff because they believed that Plaintiff was misappropriating the hotel storage room as his personal space, had intentionally withheld the key to the storage room, was spending time on-premises Stine Decl., ¶ 8. Case 2:15-cv-09935-R-JEM Document 17-4 Filed 08/09/16 Page 6 of 14 Page ID #:158 LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 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. NO. UNDISPUTED FACT SUPPORTING EVIDENCE while off duty, and not being honest regarding his vehicle and the carpeting of the storage room. 30. At no time did Ms. Stine consider, discuss, or raise Plaintiff’s alleged disability in relation to the termination decision. Stine Decl., ¶ 8. 31. Ms. Stine, Mr. Yong, and Plaintiff signed a termination notice that stated Plaintiff was “using [the storage room] as a personal office without proper authorization from management” and that he did not give a copy of the key to the storage room to Ms. Stine “even after being personally asked by her.” Stine Decl., ¶ 10, Exh. A. 32. Ms. Stine and Mr. Yong believed that such conduct violated company policies, showed poor judgment and brought into question whether Plaintiff could not be trusted with full access to the entire hotel as the maintenance engineer. Stine Decl., ¶ 9. 33. Plaintiff did not provide a doctor’s note or file a worker’s compensation claim at any time before his termination. Stine Decl., ¶ 13. 34. Plaintiff admits that the reason for his termination was due to the carpeting on the storage room and, not once did he state that he was terminated because of his alleged Declaration of Joshua Feldman (“Feldman Decl.”), ¶ 3, Exh. A (Deposition of Plaintiff (Plaintiff’s WC Case 2:15-cv-09935-R-JEM Document 17-4 Filed 08/09/16 Page 7 of 14 Page ID #:159 LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 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. NO. UNDISPUTED FACT SUPPORTING EVIDENCE disability. Depo.”) 32:19-24; 34:2-5; 53:12-20. 35. Plaintiff admits that Ms. Stine and Mr. Yong “did not believe” that the subcontractor did not obtain Plaintiff’s cooperation in carpeting the storage room, instead continuing to believe that Plaintiff had done something wrong. Feldman Decl., ¶ 3, Exh. A, Plaintiff’s WC Depo., 38:15- 17. 36. Plaintiff’s DFEH Complaint states that he was terminated after being accused of having subcontractors “carpet [his] shop area,” using the phrase “my shop area” twice. Request for Judicial Notice in Support of Defendant’s Motion For Summary Judgment (“Defendant’s RJN”), ¶ 5, Exh. E; Feldman Decl., ¶ 4, Exh. B. 37. Plaintiff admitted that he considered the hotel to be his “second house.” Feldman Decl., ¶ 3, Exh. A, Plaintiff’s WC Depo., 53:1- 5. Based on the foregoing Uncontroverted Facts, the following Conclusions of Law should be made: CONCLUSIONS OF LAW 1. Summary judgment is appropriate if “the pleadings, depositions, answers to interrogatories, and admissions on file . . . show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” FED. R. CIV. P. 56. 2. A claim should be summarily adjudicated if one or more of the elements of a cause of action cannot be established. Celotex Corp. v. Catrett, 477 U.S. 317, Case 2:15-cv-09935-R-JEM Document 17-4 Filed 08/09/16 Page 8 of 14 Page ID #:160 LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 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. 325 (1986); see also Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000). 3. Once a defendant makes such a showing, the burden shifts to the plaintiff to show that a “genuine issue[] of material fact” exists by “produc[ing] at least some significant probative evidence tending to support the complaint.” Smolen v. Deloitte, Haskins & Sells, 921 F.2d 959, 963 (9th Cir. 1990). 4. A plaintiff may not rely upon the mere allegations in the pleadings to show that a genuine issue exists, but must offer “specific facts showing that there is a genuine issue for trial.” Celotex Corp., 477 U.S. at 322. 5. To establish a prima facie case of discrimination, Plaintiff must show: (1) he is a member of a protected group (alleged disability); (2) he was otherwise qualified to do his job; (3) he was subjected to an adverse employment action; and (4) a causal connection between the adverse employment action and his protected category. Guz v. Bechtel Nat’l, Inc., 24 Cal. 4th 317, 355 (2000). 6. Defendant has an opportunity to articulate a legitimate, non- discriminatory reason for the challenged adverse action(s). McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 -05 (1973). 7. Plaintiff must then prove by substantial evidence—and not by speculation—that the legitimate reasons proffered by Defendant were a pretext for discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 -05 (1973). 8. Defendant need only “articulate” a legitimate, nondiscriminatory reason for the personnel decision at issue. Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253-54 (1981). . 9. Defendant need only produce evidence demonstrating a legitimate, non- discriminator reason for its conduct, and is not required to prove the absence of a discriminatory motive. Flait v. N. Am. Watch Corp., 3 Cal. App. 4th 467, 479 (1992). 10. The question is not whether the decision was based on correct assumptions, but whether Defendant reasonably believed those reasons and validly Case 2:15-cv-09935-R-JEM Document 17-4 Filed 08/09/16 Page 9 of 14 Page ID #:161 LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 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. exercised its business judgment. Guz, 24 Cal. 4th at 358. 11. The reasons need not meet the approval of a judge or jury, as long as the decision was not discriminatory. Douglas v. Anderson, 656 F.2d 528, 534 (9th Cir. 1981). 12. Once Defendant provides a legitimate reason, any presumption created by the showing of a prima facie case “simply drops out of the picture.” St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 511 (1993). 13. Plaintiff’s admission that he was using the storage room as his personal “shop” amounts to an admission. Womack v. Lovell, 237 CA4th 772, 786 (2015) (plaintiff's allegation in its unverified complaint was a binding judicial admission); Dep't of Fair Employment & Hous. v. Law Sch. Admission Council Inc., 896 F. Supp. 2d 849, 855 (N.D. Cal. 2012) (plaintiff’s claims asserted in DFEH complaint are to be taken as true for purposes of dispositive motion); Ramirez v. Silgan Containers, 2007 U.S. Dist. LEXIS 34825 (E.D. Cal. Apr. 25, 2007) (same). 14. To rebut Defendant’s legitimate, non-discriminatory reasons for decisions regarding Plaintiff’s employment, Plaintiff must prove that Defendant’s proffered reasons were not genuine, and rather just a “cover-up” for discrimination. McDonnell Douglas Corp., 411 U.S. at 805. 15. “In response to [Defendant’s] offer of nondiscriminatory reasons, [Plaintiff] must produce ‘specific, substantial evidence of pretext.’” Wallis v. J.R. Simplot Co., 26 F.3d 885, 890 (9th Cir. 1994) (emphasis added). 16. A plaintiff’s “speculation that [the employer’s] reasons for terminating him were pretextual does not suffice to create a material issue of fact.” Goncalves v. San Diego Gas & Elec. Co., 2016 WL 3582218, at *6 (Cal. Ct. App. June 24, 2016). 17. Plaintiff must present both specific and substantial evidence rebutting Defendant’s explanations. Horn v. Cushman & Wakefield W., Inc., 72 Cal. App. 4th 798, 807 (1999). 18. Protestations of improper motive and intent, without “substantial factual Case 2:15-cv-09935-R-JEM Document 17-4 Filed 08/09/16 Page 10 of 14 Page ID #:162 LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 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. evidence”, are inadequate to meet the burden of this prong. Martin, 29 Cal. App. 4th at 1735 (emphasis added); Hanson v. Lucky Stores, Inc., 74 Cal. App. 4th 215, 224-25 (1999) (speculation is insufficient to defeat summary judgment). 19. “The employee cannot simply show that the employer’s decision was wrong or mistaken . . . but must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence.” Hersant v. Cal. Dep’t of Soc. Servs., 57 Cal. App. 4th 997, 1005 (1997). 20. To prove retaliation, Plaintiff must show that: (1) he engaged in a protected activity; (2) he experienced an adverse employment action; and (3) there was a causal link between his protected activity and the adverse employment action. Guthrey v. State of Calif., 63 Cal. App. 4th 1108, 1125 (1998). 21. To show the requisite causal link, Plaintiff “must present evidence sufficient to raise the inference that [his] protected activity was the likely reason for the adverse action.” Cohen v. Fred Meyer, Inc., 686 F.2d 793, 796 (9th Cir. 1982). 22. “The mere fact that an employee [engages in protected activity] does not create the inference that everything that happens thereafter is a result of that [protected activity].” Kortan v. State of California, 5 F. Supp. 2d 843, 853 (C.D. Cal. 1998). 23. “[C]onclusory allegations are insufficient to establish causation [in support of retaliation claim].” Allen v. Mich. Dep’t of Corrs., 165 F.3d 405, 413 (6th Cir. 1999). 24. Mere proximity of time between the alleged protected activities and the alleged adverse employment action is not enough to show a causal link. See McRae v. Dept. of Corr. & Rehab., 142 Cal. App. 4th 377, 388 (2006); Chen v. County of Orange, 96 Cal. App. 4th 926, 931 (2002) (allowing mere sequence as the basis for a retaliation claim “would be the classic logical fallacy of ‘post hoc ergo prompter hoc’ (after the fact, therefore because of the fact).”). Case 2:15-cv-09935-R-JEM Document 17-4 Filed 08/09/16 Page 11 of 14 Page ID #:163 LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 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. 25. Like discrimination claims, retaliation claims are analyzed under a burden-shifting framework. Akers v. County of San Diego, 95 Cal. App. 4th 1441, 1453 (2002). 26. A plaintiff may not assert a wrongful termination in violation of public policy claim as a fall-back to a constitutional or statutory claim where the underlying statutory claim itself fails. TRW, Inc. v. Super. Ct., 25 Cal. App. 4th 1834 (1994). 27. As Plaintiff’s underlying discrimination and retaliation claims are without merit, any related wrongful termination claim also fails. Jennings v. Marralle, 8 Cal. 4th 121, 135 (1984). 28. A claim asserting a failure to take all reasonable steps to prevent discrimination and harassment from occurring in violation of Government Code section 12940(k) does not give rise to an actionable tort or private cause of action in civil proceedings between private litigants. Dept. of Fair Emp’t & Housing v. Lyddan Law Group (Williams), No. 10-04-P, 2010 Cal. F.E.H.C. LEXIS 4, *2-*3, *34-*35 (Oct. 19, 2010, with an effective date of November 20, 2010. 29. The Department of Fair Employment and Housing alone may prosecute a “stand alone” claim, and that such a cause of action does not exist for private litigants. Lyddan Law Group, No. 10-04-P, 2010 Cal. F.E.H.C. LEXIS 4 at *16. 30. Plaintiff cannot establish a claim for failure to prevent discrimination unless he establishes that the underlying discrimination occurred. see Trujillo v. North Co. Transit Dist. (1998) 63 Cal. App. 4th 280, 286. 31. 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 and, if the process fails, responsibility for the failure rests with the party who failed to participate in good faith. See Spitzer v. The Good Guys, Inc., 80 Cal.App.4th 1376, 1385 (2000) (the FEHA “envisions an exchange between employer and employee where each seeks and shares information to achieve the best match Case 2:15-cv-09935-R-JEM Document 17-4 Filed 08/09/16 Page 12 of 14 Page ID #:164 LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 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. between the employee’s capabilities and available positions”). 32. “Punitive damages are proper only when the tortious conduct rises to levels of extreme indifference … a level which decent citizens should not have to tolerate.” Tomaselli v. Transamerica Ins., 25 Cal. App. 4th 1269, 1287 (1994). 33. To state a claim for punitive damages, Plaintiff must show “by clear and convincing evidence that the defendant is guilty of fraud, oppression or malice.” CAL. CIV. CODE § 3294(a). 34. The “clear and convincing” standard requires, “that the evidence be so clear as to leave no substantial doubt” and “sufficiently strong to command the unhesitating assent of every reasonable mind.” Mock v. Milles Mutual Ins. Co., 4 Cal. App. 4th 306, 332-33 (1992). 35. Fraud is defined as “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.” Cal. Civ. Code § 3294(c)(3). 36. Malice requires “despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” Cal. Civ. Code § 3294(c)(1). 37. Oppression means “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s right.” Cal. Civ. Code § 3294(c)(2). 38. Despicable conduct is conduct “so mean, vile, base, or contemptible that it would be looked down on and despised by reasonable people.” CACI No. 3945. 39. Even if Plaintiff can prove any of the alleged conduct in his claims, merely establishing underlying claims is not enough to warrant punitive damages which is a disfavored remedy requiring extreme indifference or despicable conduct. See e.g. Real v. Continental Group, Inc., 627 F. Supp. 434 (N.D. Cal. 1986); CACI No. 3945; See Stevens v. Owens-Corning Fiberglas Corp., 49 Cal. App. 4th 1645, Case 2:15-cv-09935-R-JEM Document 17-4 Filed 08/09/16 Page 13 of 14 Page ID #:165 LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 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. 1658 (1996). Dated: August 9, 2016 /s/ Fatemeh S. Mashouf JOSHUA Z. FELDMAN LITTLER MENDELSON, P.C. Attorneys for Defendant ESA MANAGEMENT, LLC erroneously sued as EXTENDED STAY AMERICA, INC. d.b.a. EXTENDED STAY HOTELS Firmwide:141964723.2 052026.1100 Case 2:15-cv-09935-R-JEM Document 17-4 Filed 08/09/16 Page 14 of 14 Page ID #:166 LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 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 JOSHUA Z. FELDMAN, Bar No. 199207 jfeldman@littler.com FATEMEH MASHOUF, Bar No. 288667 fmashouf@littler.com LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 Telephone: 310.553.0308 Facsimile: 310.553.5583 Attorneys for Defendant ESA MANAGEMENT, LLC erroneously sued as EXTENDED STAY AMERICA, INC. D.B.A. EXTENDED STAY HOTELS UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA JORGE ALFARO, an individual, Plaintiff, v. EXTENDED STAY AMERICA, INC. d.b.a. EXTENDED STAY HOTELS, and Does 1 through 100, inclusive, Defendants. Case No. 15-CV-09935-R-JEM ASSIGNED TO JUDGE MANUEL L. REAL, COURTROOM 8 [PROPOSED] JUDGMENT GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Date: September 6, 2016 Time: 10:00 AM Place: Courtroom 8 Trial Date: October 4, 2016 Complaint Filed: July 7, 2015 Case 2:15-cv-09935-R-JEM Document 17-5 Filed 08/09/16 Page 1 of 5 Page ID #:167 LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 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. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA JORGE ALFARO, an individual, Plaintiff, v. EXTENDED STAY AMERICA, INC. d.b.a. EXTENDED STAY HOTELS, and Does 1 through 100, inclusive, Defendants. Case No. 15-CV-09935-R-JEM ASSIGNED TO JUDGE MANUEL L. REAL, COURTROOM 8 JUDGMENT GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Date: September 6, 2016 Time: 10:00 AM Place: Courtroom 8 Trial Date: October 4, 2016 Complaint Filed: July 7, 2015 Case 2:15-cv-09935-R-JEM Document 17-5 Filed 08/09/16 Page 2 of 5 Page ID #:168 LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 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. The Motion for Summary Judgment (“Motion”) of Defendant ESA Management, LLC (“Defendant”) came on regularly for hearing on September 6, 2016, the Honorable Manuel L. Real presiding. The Court, having considered the evidence proffered in support of and in opposition to Defendants’ Motion, having read and considered the supporting, opposition and reply points and authorities, and having heard and considered the arguments of counsel, and good cause appearing therefor, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that Defendants’ Motion for Partial Summary Judgment is GRANTED as to the following issues: A. Discrimination Based On Disability Issue No. 1: Plaintiff’s Cause of Action for Discrimination fails because Plaintiff cannot state a prima facie case of retaliation because there is no evidence of a causal link between Plaintiff’s alleged disability and the decision to terminate his employment. Issue No. 2: Plaintiff’s Cause of Action for Disability fails because even assuming arguendo that Plaintiff could establish a prima facie case, Defendant had legitimate, non-retaliatory business reasons for all decisions made regarding Plaintiff’s employment and Plaintiff cannot prove that Defendant’s stated reasons for terminating his employment are pretext for discrimination. B. Failure to Investigate And Take Remedial Action Issue No. 3: Plaintiff’s Cause of Action for Failure to Investigate and Take Remedial Action fails because there is no private right of action for failure to investigate and take remedial measures. Issue No. 4: Plaintiff’s Cause of Action for Failure to Investigate and Take Remedial Action fails because it is derivative of his claims for retaliation and discrimination, which fail. C. Retaliation Based On Disability Case 2:15-cv-09935-R-JEM Document 17-5 Filed 08/09/16 Page 3 of 5 Page ID #:169 LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 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. Issue No. 5: Plaintiff’s Cause of Action for Retaliation fails because Plaintiff cannot state a prima facie case of retaliation because there is no evidence of a causal link between Plaintiff’s alleged protected activity and the decision to terminate his employment. Issue No. 6: Plaintiff’s Cause of Action for Retaliation fails because even assuming arguendo that Plaintiff could establish a prima facie case, Defendant had legitimate, non-retaliatory business reasons for all decisions made regarding Plaintiff’s employment and Plaintiff cannot prove that Defendant’s stated reasons for terminating his employment are pretext for retaliation. D. Failure to Reasonably Accommodate Issue No. 7: Plaintiff’s Cause of Action for Failure to Reasonable Accommodate fails because Plaintiff did not sufficiently ask for an accommodation from Defendant. E. Failure to Engage in the Interactive Process Issue No. 8: Plaintiff’s Cause of Action for Failure to Engage in the Interactive Process fails because Plaintiff failed to engage in the interactive process and good faith. F. Wrongful Termination Issue No. 9: Plaintiff’s Cause of Action for Wrongful Termination In Violation Of Public Policy fails because it is derivative of his claims for retaliation and discrimination, which fail. G. Punitive Damages Issue No. 10: Plaintiff’s punitive damages claim fails because he cannot establish by clear and convincing evidence that an officer, director, or managing agent of Defendant acted with any malice, oppression or fraud towards him. Issue No. 11: Plaintiff’s punitive damages claim fails because he cannot establish by clear and convincing evidence that an officer, director or managing agent of Defendant authorized or ratified the conduct of someone who acted with malice, Case 2:15-cv-09935-R-JEM Document 17-5 Filed 08/09/16 Page 4 of 5 Page ID #:170 LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 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. oppression, or fraud or had advanced knowledge of the unfitness of any employee that acted with acted with malice, oppression, or fraud. IT IS SO ORDERED. Dated: _____________, 2016 HON. MANUEL L. REAL UNITED STATES DISTRICT JUDGE Firmwide:142022504.1 052026.1100 Case 2:15-cv-09935-R-JEM Document 17-5 Filed 08/09/16 Page 5 of 5 Page ID #:171 LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 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 JOSHUA Z. FELDMAN, Bar No. 199207 jfeldman@littler.com FATEMEH MASHOUF, Bar No. 288667 fmashouf@littler.com LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 Telephone: 310.553.0308 Facsimile: 310.553.5583 Attorneys for Defendant ESA MANAGEMENT, LLC erroneously sued as EXTENDED STAY AMERICA, INC. D.B.A. EXTENDED STAY HOTELS UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA JORGE ALFARO, an individual, Plaintiff, v. EXTENDED STAY AMERICA, INC. d.b.a. EXTENDED STAY HOTELS, and Does 1 through 100, inclusive, Defendants. Case No. 15-CV-09935-R-JEM ASSIGNED TO JUDGE MANUEL L. REAL, COURTROOM 8 [PROPOSED] ORDER GRANTING DEFENDANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT Date: September 6, 2016 Time: 10:00 AM Place: Courtroom 8 Trial Date: October 4, 2016 Complaint Filed: July 7, 2015 Case 2:15-cv-09935-R-JEM Document 17-6 Filed 08/09/16 Page 1 of 5 Page ID #:172 LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 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. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA JORGE ALFARO, an individual, Plaintiff, v. EXTENDED STAY AMERICA, INC. d.b.a. EXTENDED STAY HOTELS, and Does 1 through 100, inclusive, Defendants. Case No. 15-CV-09935-R-JEM ASSIGNED TO JUDGE MANUEL L. REAL, COURTROOM 8 ORDER GRANTING DEFENDANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT Date: September 6, 2016 Time: 10:00 AM Place: Courtroom 8 Trial Date: October 4, 2016 Complaint Filed: July 7, 2015 Case 2:15-cv-09935-R-JEM Document 17-6 Filed 08/09/16 Page 2 of 5 Page ID #:173 LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 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. The Motion for Partial Summary Judgment (“Motion”) of Defendant ESA Management, LLC (“Defendant”) came on regularly for hearing on September 6, 2016, the Honorable Manuel L. Real presiding. The Court, having considered the evidence proffered in support of and in opposition to Defendants’ Motion, having read and considered the supporting, opposition and reply points and authorities, and having heard and considered the arguments of counsel, and good cause appearing therefor, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that Defendants’ Motion for Partial Summary Judgment is GRANTED as to the following issues: A. Discrimination Based On Disability Issue No. 1: Plaintiff’s Cause of Action for Discrimination fails because Plaintiff cannot state a prima facie case of retaliation because there is no evidence of a causal link between Plaintiff’s alleged disability and the decision to terminate his employment. Issue No. 2: Plaintiff’s Cause of Action for Disability fails because even assuming arguendo that Plaintiff could establish a prima facie case, Defendant had legitimate, non-retaliatory business reasons for all decisions made regarding Plaintiff’s employment and Plaintiff cannot prove that Defendant’s stated reasons for terminating his employment are pretext for discrimination. B. Failure to Investigate And Take Remedial Action Issue No. 3: Plaintiff’s Cause of Action for Failure to Investigate and Take Remedial Action fails because there is no private right of action for failure to investigate and take remedial measures. Issue No. 4: Plaintiff’s Cause of Action for Failure to Investigate and Take Remedial Action fails because it is derivative of his claims for retaliation and discrimination, which fail. C. Retaliation Based On Disability Case 2:15-cv-09935-R-JEM Document 17-6 Filed 08/09/16 Page 3 of 5 Page ID #:174 LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 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. Issue No. 5: Plaintiff’s Cause of Action for Retaliation fails because Plaintiff cannot state a prima facie case of retaliation because there is no evidence of a causal link between Plaintiff’s alleged protected activity and the decision to terminate his employment. Issue No. 6: Plaintiff’s Cause of Action for Retaliation fails because even assuming arguendo that Plaintiff could establish a prima facie case, Defendant had legitimate, non-retaliatory business reasons for all decisions made regarding Plaintiff’s employment and Plaintiff cannot prove that Defendant’s stated reasons for terminating his employment are pretext for retaliation. D. Failure to Reasonably Accommodate Issue No. 7: Plaintiff’s Cause of Action for Failure to Reasonable Accommodate fails because Plaintiff did not sufficiently ask for an accommodation from Defendant. E. Failure to Engage in the Interactive Process Issue No. 8: Plaintiff’s Cause of Action for Failure to Engage in the Interactive Process fails because Plaintiff failed to engage in the interactive process and good faith. F. Wrongful Termination Issue No. 9: Plaintiff’s Cause of Action for Wrongful Termination In Violation Of Public Policy fails because it is derivative of his claims for retaliation and discrimination, which fail. G. Punitive Damages Issue No. 10: Plaintiff’s punitive damages claim fails because he cannot establish by clear and convincing evidence that an officer, director, or managing agent of Defendant acted with any malice, oppression or fraud towards him. Issue No. 11: Plaintiff’s punitive damages claim fails because he cannot establish by clear and convincing evidence that an officer, director or managing agent of Defendant authorized or ratified the conduct of someone who acted with malice, Case 2:15-cv-09935-R-JEM Document 17-6 Filed 08/09/16 Page 4 of 5 Page ID #:175 LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 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. oppression, or fraud or had advanced knowledge of the unfitness of any employee that acted with acted with malice, oppression, or fraud. IT IS SO ORDERED. Dated: ______________, 2016 HON. MANUEL L. REAL UNITED STATES DISTRICT JUDGE Firmwide:141964826.1 052026.1100 Case 2:15-cv-09935-R-JEM Document 17-6 Filed 08/09/16 Page 5 of 5 Page ID #:176