This case was last updated from Los Angeles County Superior Courts on 12/17/2021 at 16:54:03 (UTC).

MARTHA VAQUERA VS CINTAS CORPORATION ET AL

Case Summary

On 10/24/2017 MARTHA VAQUERA filed a Labor - Wrongful Termination lawsuit against CINTAS CORPORATION. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are DALILA CORRAL LYONS and KEVIN C. BRAZILE. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****0733

  • Filing Date:

    10/24/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Labor - Wrongful Termination

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

DALILA CORRAL LYONS

KEVIN C. BRAZILE

 

Party Details

Petitioner and Plaintiff

VAQUERA MARTHA

Respondents and Defendants

FELDTZ BRAD

CINTAS CORPORATION

DOES 1 TO 100

JUAREZ ISABEL

MARTINEZ OSCAR

ARCE RICHARD

Attorney/Law Firm Details

Petitioner and Plaintiff Attorneys

ARIAS SANGUINETTI STAHLE & TORRIJOS LLP

RODRIGUEZ & TRAN LLP

TRAN DUC T.

ARIAS MIKE ESQ

RODRIGUEZ GRISELDA S.

Respondent and Defendant Attorneys

MORRIS JAMES L. ESQ.

RUTAN & TUCKER LLP

COLVIN JENNIFER W

BOND KASEY L.

JOHNSONHARTWELL CHERYL

 

Court Documents

Minute Order - MINUTE ORDER (COURT ORDER:)

7/22/2019: Minute Order - MINUTE ORDER (COURT ORDER:)

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER:) OF 07/22/2019

7/22/2019: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER:) OF 07/22/2019

Notice - NOTICE OF PAYMENT OF PRO HAC VICE RENEWAL FEES

7/25/2019: Notice - NOTICE OF PAYMENT OF PRO HAC VICE RENEWAL FEES

Minute Order - MINUTE ORDER (COURT ORDER RE: JOINT STIPULATION AND ORDER TO CONTINUE TRIAL)

9/26/2019: Minute Order - MINUTE ORDER (COURT ORDER RE: JOINT STIPULATION AND ORDER TO CONTINUE TRIAL)

Stipulation and Order - STIPULATION AND ORDER TO CONTINUE TRIAL

9/26/2019: Stipulation and Order - STIPULATION AND ORDER TO CONTINUE TRIAL

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER RE: JOINT STIPULATION AND ORDER TO CONTINUE TRIAL) OF 09/26/2019

9/26/2019: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER RE: JOINT STIPULATION AND ORDER TO CONTINUE TRIAL) OF 09/26/2019

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER REGARDING JOINT STIPULATION AND ORDER TO CONTINUE...) OF 11/13/2019

11/13/2019: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER REGARDING JOINT STIPULATION AND ORDER TO CONTINUE...) OF 11/13/2019

Minute Order - MINUTE ORDER (COURT ORDER REGARDING JOINT STIPULATION AND ORDER TO CONTINUE...)

11/13/2019: Minute Order - MINUTE ORDER (COURT ORDER REGARDING JOINT STIPULATION AND ORDER TO CONTINUE...)

[Proposed Order] and Stipulation to Continue Trial, FSC (and Related Motion/Discovery Dates) Person - [PROPOSED ORDER] AND STIPULATION TO CONTINUE TRIAL, FSC (AND RELATED MOTION/DISCOVERY DATES) PERSO

11/13/2019: [Proposed Order] and Stipulation to Continue Trial, FSC (and Related Motion/Discovery Dates) Person - [PROPOSED ORDER] AND STIPULATION TO CONTINUE TRIAL, FSC (AND RELATED MOTION/DISCOVERY DATES) PERSO

Notice of Ruling

11/21/2019: Notice of Ruling

Notice Re: Continuance of Hearing and Order

1/3/2020: Notice Re: Continuance of Hearing and Order

Request for Refund / Order

1/7/2020: Request for Refund / Order

Notice of Case Reassignment and Order for Plaintiff to Give Notice

1/29/2020: Notice of Case Reassignment and Order for Plaintiff to Give Notice

Status Report

1/31/2020: Status Report

Notice - NOTICE OF CASE REASSIGNMENT

2/6/2020: Notice - NOTICE OF CASE REASSIGNMENT

Request for Refund / Order

2/20/2020: Request for Refund / Order

Stipulation and Order - STIPULATION AND ORDER TO CONTINUE TRIAL

3/24/2020: Stipulation and Order - STIPULATION AND ORDER TO CONTINUE TRIAL

Notice of Ruling - NOTICE OF RULING NOTICE OF COURT ORDER

3/24/2020: Notice of Ruling - NOTICE OF RULING NOTICE OF COURT ORDER

111 More Documents Available

 

Docket Entries

  • 01/10/2022
  • Hearing01/10/2022 at 09:30 AM in Department 20 at 111 North Hill Street, Los Angeles, CA 90012; Jury Trial

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  • 01/06/2022
  • Hearing01/06/2022 at 08:30 AM in Department 20 at 111 North Hill Street, Los Angeles, CA 90012; Final Status Conference

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  • 09/30/2021
  • DocketRequest for Refund / Order; Filed by Cintas Corporation (Defendant); Isabel Juarez (Defendant); Oscar Martinez (Defendant) et al.

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  • 09/27/2021
  • Docketat 09:30 AM in Department 20, Kevin C. Brazile, Presiding; Jury Trial ((7 days estimate)) - Not Held - Advanced and Continued - by Court

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  • 09/23/2021
  • Docketat 08:30 AM in Department 20, Kevin C. Brazile, Presiding; Final Status Conference - Not Held - Advanced and Continued - by Court

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  • 09/23/2021
  • DocketMinute Order ( (Final Status Conference)); Filed by Clerk

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  • 09/17/2021
  • DocketWitness List; Filed by Martha Vaquera (Plaintiff)

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  • 09/17/2021
  • DocketExhibit List; Filed by Martha Vaquera (Plaintiff)

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  • 09/17/2021
  • DocketJury Instructions; Filed by Martha Vaquera (Plaintiff)

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  • 09/16/2021
  • DocketReply (IN SUPPORT OF THEIR MOTION IN LIMINE NO. 1 FOR AN ORDER EXCLUDING EVIDENCE OF THE SIZE OR FINANCIAL CONDITION OF CINTAS CORPORATION); Filed by Cintas Corporation (Defendant); Isabel Juarez (Defendant); Oscar Martinez (Defendant) et al.

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189 More Docket Entries
  • 11/06/2017
  • DocketProof-Service/Summons

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  • 10/31/2017
  • DocketORDER TO SHOW CAUSE HEARING

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  • 10/31/2017
  • DocketNOTICE OF CASE MANAGEMENT CONFERENCE

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  • 10/31/2017
  • DocketOSC-Failure to File Proof of Serv; Filed by Clerk

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  • 10/31/2017
  • DocketNOTICE OF CASE MANAGEMENT CONFERENCE

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  • 10/31/2017
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 10/31/2017
  • DocketORDER TO SHOW CAUSE HEARING

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  • 10/24/2017
  • DocketComplaint; Filed by Martha Vaquera (Plaintiff)

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  • 10/24/2017
  • DocketSUMMONS

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  • 10/24/2017
  • DocketPLAINTIFF MARTHA VAQUERA'S COMPLAINT FOR DAMAGES FOR: (1) DISCRIMINATION ON THE BASIS OF AGE IN VIOLATION OF FEHA; ETC

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Tentative Rulings

b'

Case Number: BC680733 Hearing Date: August 20, 2021 Dept: 20

Tentative Ruling

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Judge Kevin C. Brazile

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Department 20

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Date: Friday, August\r\n20, 2021

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Case Name: Martha\r\nVaquera v. Cintas Corp., et al.

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Case No.: BC680733

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Motion: Summary\r\nAdjudication

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Moving Party: Defendants Cintas and Arce

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Responding Party: Plaintiff Vaquera

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Notice: OK

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Ruling: The Motion for\r\nSummary Adjudication is GRANTED as to the causes of action against Arce for\r\nbreach of implied-in-fact contract, intentional infliction of emotional\r\ndistress, wrongful termination and negligent hiring and supervision. The Motion\r\nis GRANTED as to the cause of action for breach of implied-in-fact contract as\r\nstated against Defendants generally.

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The Motion is DENIED as to the causes of\r\naction against Defendants generally for failure to accommodate, failure to\r\nengage in the interactive process, failure to prevent harassment, and DENIED as\r\nto each of the FEHA claims against Arce.

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Defendants to give notice.

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If counsel do not submit on the tentative,\r\nthey are encouraged to appear remotely rather than in person.

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BACKGROUND

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On October 24, 2017, Plaintiff Martha Vaquera\r\nfiled a Complaint against Defendants Cintas Corporation, Isabel Juarez, Oscar\r\nMartinez, Brad Feldtz, Richard Arce and Does 1-100, stating causes of action\r\nfor age and disability discrimination, age and disability harassment, retaliation,\r\nfailure to prevent harassment, failure to provide reasonable accommodation,\r\nfailure to engage in the interactive process, breach of implied-in-fact and/or\r\noral contract, negligent supervision, whistleblower retaliation, wrongful\r\ntermination and intentional infliction of emotional distress. The claims arise\r\nout of Plaintiff’s employment with Cintas between July 28, 1999 to December 12,\r\n2016 principally as a folder of garments.

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On May 7, 2019, Defendants filed a Motion for\r\nSummary Judgment or Adjudication.

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On August 6, 2021, Plaintiff filed an Opposition.\r\n

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On August 13, 2021, Defendants filed a Reply.

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DISCUSSION

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Evidentiary Objections

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Plaintiff filed 42 objections to excerpts of her\r\nown deposition. Defendants did not file evidentiary objections.

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At the outset, the objections based on vagueness\r\nand ambiguity are all OVERRULED. In the context of the deposition, there is no real\r\nvagueness or ambiguity as to terms such as "restrictions," "job\r\nduties," or "training." The objections of ambiguity as to the\r\ntime period at issue lack merit when the deposition excerpts are read in\r\ncontext. It is frivolous to claim the word "sue" is ambiguous in\r\nasking why Plaintiff initiated a lawsuit against Arce. Objections 1, 8-11, 14, 16, 17, 31, and 33 are\r\nbased solely on such objections and are OVERRULED.

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Objections 19, 21, 22 and 30 are OVERRULED as the\r\nsubject "out-of-court" statements are extracted from Plaintiff\'s\r\nverified Complaint.

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Objections 20, 24, 25 and 34 are OVERRULED because\r\nthe reference to an out-of-court discussion without describing its contents\r\ndoes not constitute inadmissible hearsay.

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Objections 18,\r\n27 and 40 are OVERRULED as the excerpts do not contain hearsay and are not\r\nargumentative or conclusory.

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Objections 1, 23, 28, 29, 32 and 37 are OVERRULED\r\nas the excerpts lack hearsay.

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Objections 18, 41 and 42 are OVERRULED as clearly\r\nmeritless.

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However, Objections 26, 38 and 39 are SUSTAINED as to\r\nargumentative questions. Objections 2-5, 12, 13 and 15 are SUSTAINED as\r\nconstituting inadmissible hearsay. Objections\r\n6, 7, 12, 13 and 15 are also SUSTAINED as the subject testimony contravenes the\r\nsecondary evidence rule.

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Applicable Law

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Summary judgment is proper when the moving party is\r\nentitled to judgment as a matter of law and there are no triable issues of\r\nmaterial fact. (CCP sec. 473c(c).) In analyzing such motions, courts must apply\r\na three-step analysis: “(1) identify the issues framed by the pleadings; (2)\r\ndetermine whether the moving party has negated the opponent’s claims; and (3)\r\ndetermine whether the opposition has demonstrated the existence of a triable,\r\nmaterial factual issue.” (Hinesley v. Oakshade Town Center (2005)\r\n135 Cal.App.4th 289, 294.) The moving party must satisfy the initial burden of\r\nproof by presenting facts to negate or establish an essential element of each\r\nclaim at issue. (Scalf v. D. B. Log Homes, Inc. (2005)\r\n128 Cal.App.4th 1510, 1520.) Courts “liberally construe the evidence in support\r\nof the party opposing summary judgment and resolve doubts concerning the\r\nevidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006)\r\n39 Cal.4th 384, 389.)

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Once the moving party has met its burden, the\r\nburden shifts to the opposing party to show via specific facts that a triable\r\nissue of material fact exists. (CCP § 437c(o)(2).) “Materiality is measured by\r\nthe law applicable to the legal theories put in issue by the complaint [or\r\npetition].” (Panattoni v. Superior Court (1988) 203 Cal.App.3d\r\n1092, 1094.) Factual issues are immaterial if they are “outside the scope of\r\nthe pleadings.” (AARTS Production, Inc. v. Crocker National Bank (1986)\r\n176 Cal.App.3d 1601, 1065.) The trial court “can find a\r\ntriable issue of material fact ‘if, and only if, the evidence would allow a reasonable\r\ntrier of fact to find the underlying fact in favor of the party opposing the\r\nmotion in accordance with the applicable standard of proof.’” (Falcon v.\r\nLong Beach Genetics, Inc. (2014) 224 Cal.App.4th 1263, 1271\r\n(quoting King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th\r\n426, 433.))

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Application to Facts

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On October 29, 2003, Plaintiff (then\r\n47 years old) suffered a shoulder injury. (UMF 46.) Plaintiff underwent\r\nshoulder surgery in January 2004 and took a leave of absence through May 31,\r\n2004. (UMF 49 (undisputed surgery occurred)) After the surgery, Plaintiff\r\nreceived modified work instructions from her doctor indicating she should not\r\nperform heavy lifting, pushing or pulling with weight restrictions. (UMF 47, 49\r\n(disputed as to amount of weight for restrictions.)) Plaintiff claims\r\nDefendants "ignored" the restrictions and returned her to "her\r\nusual and customary work duties." (Vaquera Decl., para. 7, 13-15.)\r\nPlaintiff then performed much of her work with her uninjured shoulder,\r\nunsurprisingly with decreased efficiency, and exacerbated the injury to her\r\ninjured shoulder in the process. (UMF 50.)

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On August 2, 2005, Plaintiff claims\r\nDefendant Juarez informed her that her work restrictions had been lifted. (UMF 57.)\r\nDefendants do not appear to dispute this, but it is disputed whether the work\r\nrestrictions had in fact been lifted; Cintas claims Plaintiff was permitted to\r\ncontinue working under her restrictions but insists they were lifted, while\r\nPlaintiff claims she called her doctor and confirmed the restrictions had not\r\nactually been lifted. (UMF 58; compare Vaquera Decl., para. 22-23.) On\r\nOctober 17, 2005, Plaintiff alleges Defendant Martinez directed her to lift\r\nbundles above her head in excess of her work restrictions; Plaintiff refused,\r\nthough claims she suffered repercussions later. (UMF 61, 63.) Plaintiff also\r\nclaims Juarez badgered Plaintiff for "proof of her work restrictions even\r\nthough she already had them” when Plaintiff contested Juarez’s claims the\r\nrestrictions had been lifted and Martinez’s directions to lift mats in excess\r\nof her weight restrictions.

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Plaintiff underwent a second\r\nshoulder surgery in April 2008 and took a two-month leave of absence to\r\nrecover. (UMF 51.) Upon return, Plaintiff received work modification\r\ninstructions from her doctor indicating she should be placed on "light\r\nduty" which would not require lifting, pushing or pulling more than 30\r\npounds. (UMF 51.) Plaintiff claims these modifications were "permanently\r\nrequired . . . regarding her left shoulder." However, Plaintiff claims she\r\nwas again returned to her ordinary work duties without modification.

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In 2009, Cintas introduced a\r\ntoken-based production incentive system, in the process cutting the base hourly\r\npay of employees such as Plaintiff and providing payment for tokens obtained proportionate\r\nto work completed (e.g., one token per bundle folded and submitted).[1]\r\nPlaintiff argues this system was inherently discriminatory by "singling\r\nout injured employees who could not work fast enough" to make up the loss\r\nof pay. (Opposition, p. 5.) The token system also enabled more precise\r\ntracking of employee productivity. In particular, Plaintiff alleges she experienced\r\npressure to work faster in order to "meet the production\r\nrequirements"—and, presumably, to ensure she is able to maintain similar\r\nincome. (Vaquera Decl., para. 55-58 (“The new token system program placed me\r\nunder a lot of stress to produce more”); cf. UMF 52 (Defendants claim\r\nPlaintiff’s work sped up based on work experience rather than pressure from the\r\ntoken system))

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In 2010, Plaintiff called an\r\ninternal Cintas hotline to complain regarding her disability accommodations. (UMF\r\n32 (undisputed that Cintas Directline is a "24-hour, toll-free\r\nnumber" to "report workplace concerns"; disputed that Directline\r\nwas a legitimate means to confidentially raise concerns); Vaquera Decl., para.\r\n59) Plaintiff alleges her coworkers soon discovered she had placed this call,\r\neven though it was intended to remain confidential. (Vaquera Decl., para. 59.)\r\nLater that year, Plaintiff received a warning for not “meeting company\r\nstandards” for productivity. (UMF 53; Vaquera Decl., Exh. 21.) Plaintiff claims\r\nthis was a formal disciplinary action based on Cintas\'s policies and Martinez’s\r\ntestimony that verbal action is disciplinary in nature, which Defendants\r\ndispute. (See Martinez Depo., p. 112:23-113:1 (testifying he considers\r\n"a verbal warning" to be "part disciplinary process"))

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On November 11, 2014, Plaintiff\r\nsuffered a second workplace injury, this time to her elbow. (Evidence.) Plaintiff\r\nreported her injury to Defendants Gonzalez and Arce. However, Plaintiff claims\r\nArce "deliberately" ignored the injury and did not investigate.\r\nPlaintiff claims Arce "refused to send Plaintiff to the clinic, he did not\r\ncheck on the gravity of her injury, he never walked over to see Plaintiff’s\r\ncondition, and he forced her to suffer in pain and continue working for another\r\n3 hours before Defendant Martinez took her to the clinic." (Vaquera Decl.,\r\npara. 72-74.) Arce was transferred to a different Cintas location in June 2016\r\nand was not employed as Plaintiff\'s supervisor after the transfer. (UMF 1.) Plaintiff\r\nclaims Arce\'s conduct created a continuous hostile work environment after his\r\ntransfer because Arce "set the pattern and practice” at the location for “how\r\nmanagement must treat older individuals and individuals suffering from a\r\ndisability."

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Ultimately, on October 27, 2016,\r\nCintas employees, including Laura Perez, accused Plaintiff and another employee\r\nof submitting chips reflecting a greater amount of work than they actually\r\nperformed, falsely inflating productivity for more pay. Plaintiff alleges the\r\ninvestigation was "one-sided" as Defendants did not take a statement\r\nfrom Plaintiff before firing her on December 12, 2016. Further, Plaintiff\r\nargues the limited investigation conducted failed to comply with Cintas\'s own\r\npolicies, including suspending Plaintiff with pay pending the investigation and\r\ntaking her statement. Plaintiff instead worked during the investigation until\r\nshe was fired. Plaintiff also notes Cintas took a statement from the other\r\naccused employee.

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On November 23, 2016, reporting employee\r\nPerez allegedly assaulted Plaintiff. Plaintiff reported the assault to\r\nDefendant Martinez, who apparently took no further action. (UMF 42.) On\r\nDecember 1, 2016, Perez allegedly kicked Plaintiff again at work, which\r\nprompted Plaintiff to report the incident to Martinez again. Martinez again\r\nfailed to take any further action in response to this report. Plaintiff was undisputedly\r\nfired on December 12, 2016. On October 23, 2017, Plaintiff filed a complaint\r\nwith the Department of Fair Employment and Housing (DFEH). (UMF 2.) On October\r\n24, 2017, Plaintiff filed the instant Complaint.

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FEHA\r\nStatute of Limitations—Arce

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First,\r\nDefendants argue Plaintiff\'s second, fourth, fifth, seventh and eight causes of\r\naction against Arce are barred by the statute of limitations for FEHA claims. “FEHA provides that no complaint for any\r\nviolation of its provisions may be filed with the Department ‘after the\r\nexpiration of one year from the date upon which the alleged unlawful practice\r\nor refusal to cooperate occurred.’” (Morgan\r\nv. Regents of University of California (2000) 88 Cal.App.4th 52, 63.) Here, Plaintiff filed a\r\ncomplaint with the DFEH on October 23, 2017. (UMF 2.) Thus, Plaintiff’s DFEH\r\ncomplaint encompassed events in the preceding year—through October 23, 2016. Plaintiff\r\nargues she can still sue for conduct preceding October 23, 2016 under the\r\ncontinuing violation doctrine.

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In\r\nRichards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, the Supreme Court\r\n“h[e]ld that an employer\'s persistent failure to reasonably accommodate a\r\ndisability, or to eliminate a hostile work environment targeting a disabled\r\nemployee, is a continuing violation if the employer\'s unlawful actions are (1)\r\nsufficiently similar in kind recognizing . . . that similar kinds of unlawful\r\nemployer conduct, such as acts of harassment or failures to reasonably\r\naccommodate disability, may take a number of different forms [cite]; (2) have\r\noccurred with reasonable frequency; (3) and have not acquired a degree of\r\npermanence.” (Id. at 823.) “[C]onsistent with [California] case law and\r\nwith the statutory objectives of the FEHA,” the Court “h[e]ld that ‘permanence’\r\nin the context of an ongoing process of accommodation of disability, or ongoing\r\ndisability harassment, should properly be understood to mean the following:\r\nthat an employer\'s statements and actions make clear to a reasonable employee\r\nthat any further efforts at informal conciliation to obtain reasonable\r\naccommodation or end harassment will be futile.” (Id.)

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Plaintiff\r\nargues Arce\'s conduct outside the limitations period (i.e., before October 23,\r\n2016) was sufficiently similar in kind to events occurring within the statute\r\nof limitations. However, Plaintiff\'s showing consists of assertions that Arce\r\n(1) “harassed Plaintiff by dismissing her injuries, ignoring her work\r\nrestrictions, and ignoring her disability history” and (2) "remained very\r\ninvolved and in contact with partners at Location 53 because he remained\r\nemployed at Cintas through Plaintiff’s termination, albeit at another location\r\nand by his own testimony, ‘[moved] roles back and forth a lot at Cintas.’” (Opposition,\r\np. 14.) This fails to identify any conduct after October 23, 2016 which is\r\nsufficiently similar to Arce’s conduct before that time.

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The\r\nonly conduct identified within the statute of limitations would be (1) the\r\nfalse accusation of token manipulation and subsequent termination after a brief\r\ninvestigation and (2) the failure to investigate two alleged assaults by Perez.\r\nPlaintiff failed to articulate how a false investigation and pretextual\r\ntermination would be “similar” to the alleged conduct by Arce, which consisted\r\nof essentially ignoring Plaintiff. The Court also fails to see how the failure\r\nto investigate physical assaults by a coworker are “similar” to ignoring Plaintiff’s\r\nwork restrictions, even if the coworker accused Plaintiff of token\r\nmanipulation. The events are dissimilar.

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However,\r\nwhile Plaintiff does not make this argument, the court considered whether a\r\ncontinuing violation could be established only by evidence that Plaintiff\r\ncontinued to work without necessary work restrictions before and after October\r\n23, 2016. In fact, Richards expressly supports this conclusion. Where\r\nthe conduct has not acquired a degree of permanence, “[t]here is particularly\r\ngood reason to view the failure over time to reasonably accommodate a disabled\r\nemployee as a single course of conduct." (Richards, supra, 26\r\nCal.4th at 821.) A single “instance of an employer\'s failure to accommodate\r\nthat in isolation may seem trivial can assume greater significance and\r\nconstitute a greater injury when viewed as one of a series of such failures.” (Id.\r\nat 822.) As a result, many courts “have found a continuing violation for the\r\nentire course of the employer\'s unlawful conduct” in failing to accommodate an\r\nemployee. (Id.)

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Here,\r\nPlaintiff has provided sufficient evidence that Arce ignored her work\r\nrestrictions before the statute of limitations period and, once Arce was\r\nreplaced, Defendants similarly continued to ignore her restrictions until\r\nfiring her in December 2016. This continuous failure to accommodate is a\r\ncontinuing violation, particularly when Arce’s conduct is viewed “as one of a\r\nseries of such failures” extending back through 2004. (Id. at 822.)\r\nIndeed, when viewed in this context the conclusion that the conduct complained\r\nof “occurred with reasonable frequency” is inescapable. Defendants do not argue\r\nArce\'s actions had acquired a degree of permanence.

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The\r\nMotion is therefore DENIED on statute of limitations grounds.

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Breach\r\nof Contract, Wrongful Termination Negligent Supervision

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Arce\r\nargues the breach of employment contract, negligent supervision and wrongful\r\ntermination claims against him fail because he is not an employer. (See,\r\ne.g., Federico v. Superior Court (1997) 59 Cal.App.4th 1207,\r\n1213-1214 ("An employer may be liable to a third person for the employer\'s\r\nnegligence in hiring or retaining an employee who is incompetent or unfit.”))\r\nPlaintiff did not respond to this argument, instead asserting the claims are\r\n"sufficiently linked to unlawful conduct within the limitations\r\nperiod" notwithstanding that Arce did not raise the statute of\r\nlimitations. Plaintiff has offered no evidence or authority indicating Arce was\r\nan "employer" so as to be liable for negligent supervision of\r\nemployees. To the extent Plaintiff argues "Arce did not have training on\r\nreasonable accommodations or the interactive process and would not know how to\r\nmanage such request for accommodation," this would not support a claim for\r\nnegligent supervision, hiring and retention against negligently trained\r\nemployee Arce, but against the employer itself. (Opposition, p. 16.) The claim\r\ntherefore fails against Arce.

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The\r\nMotion for Summary Judgment is GRANTED as to the causes of action against\r\nRichard Arce for breach of contract, wrongful termination and negligent\r\nsupervision, hiring and retention. Arce carried his initial burden to show\r\nPlaintiff would not be able to establish an essential element of these\r\nclaims—that Arce was responsible for employment decisions, i.e., was an\r\nemployer. Arce could not have breached an agreement not to terminate Plaintiff\r\nwithout good cause because Arce did not terminate Plaintiff. For the same\r\nreason, Arce could not have wrongfully terminated Plaintiff. Negligent\r\nsupervision claims hold an employer liable for failing to train and supervise\r\nemployees. (Federico, supra, at 1214.) Plaintiff failed to offer any\r\nevidence regarding Arce’s employer status. Plaintiff therefore has not shown a\r\ntriable issue of fact exists to defeat summary judgment.

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IIED—Arce\r\n

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Next, Arce argues the IIED claim fails\r\nbecause Plaintiff cannot establish extreme and outrageous conduct, merely\r\n"personnel management decisions." In response, Plaintiff argues Arce\r\n"intentionally failed to follow company policy" (AUMF 22-25) and\r\n"dismiss[ed] her injuries, ignor[ed] her work restrictions, ignor[ed] her\r\ndisability history, and . . . wrongfully admonish[ed] her for unfinished work\r\nand a messy workstation." She argues he “did not need to act so callously\r\nin addressing her workplace injuries and restrictions.”

\r\n\r\n

But\r\nPlaintiff does not address or rely upon any authority finding extreme or\r\noutrageous conduct in an employment context, nor does Plaintiff address Janken\r\nand other cases cited by Defendants concluding certain personnel management\r\ndecisions cannot as a matter of law rise to the level of outrageous conduct. While\r\nsome of the conduct alleged by other Defendants could arguably rise to the\r\nlevel of outrageous conduct (e.g., pretextual termination based on a faulty\r\ninvestigation), the failure to investigate a report of disability\r\ndiscrimination and admonishments for unfinished work do not as a matter of law\r\nconstitute outrageous conduct. “Managing personnel is not outrageous conduct\r\nbeyond the bounds of human decency, but rather conduct essential to the welfare\r\nand prosperity of society.” (Janken v. GM Hughes Electronics (1996) 46\r\nCal.App.4th 55, 80.) Even if Plaintiff contends Arce’s failure to investigate\r\nher injuries and work restrictions was intentional or in violation of company\r\npolicy, “personnel management activity is insufficient to support a\r\nclaim of intentional infliction of emotional distress, even if improper\r\nmotivation is alleged.” (Id.) “If personnel management decisions are\r\nimproperly motivated, the remedy is a suit against the employer for\r\ndiscrimination”—not infliction of emotional distress. The claim therefore fails\r\nas pleaded against Arce.

\r\n\r\n

\r\n\r\n

Failure\r\nto Accommodate and Failure to Engage in Interactive Process

\r\n\r\n

“A reasonable accommodation is a modification or adjustment\r\nto the work environment that enables the employee to perform the essential\r\nfunctions of the job he or she holds or desires.” (Nealy\r\nv. City of Santa Monica (2015)\r\n234 Cal.App.4th 359, 373.) “The elements of a reasonable accommodation cause of\r\naction are (1) the employee suffered a disability, (2) the employee could\r\nperform the essential functions of the job with reasonable accommodation, and\r\n(3) the employer failed to reasonably accommodate the employee\'s disability.” (Id.) “[A]ssuming the employee is disabled, the employer cannot prevail on\r\nsummary judgment on a claim of failure to reasonably accommodate unless it\r\nestablishes through undisputed facts that (1) reasonable accommodation was\r\noffered and refused; (2) there simply was no vacant position within the\r\nemployer\'s organization for which the disabled employee was qualified and which\r\nthe disabled employee was capable of performing with or without accommodation;\r\nor (3) the employer did everything in its power to find a reasonable\r\naccommodation, but the informal interactive process broke down because the\r\nemployee failed to engage in discussions in good faith.” (Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 263.)

\r\n\r\n

Cintas’s argument does not fall under any of these\r\nthree approaches, instead arguing it in fact accommodated Plaintiff in\r\naccordance with her work restrictions. Cintas claims “it is\r\nundisputed that Cintas engaged in the interactive process and accommodated\r\nPlaintiff\'s alleged disability." (UMF 82.) But this fact is strongly disputed; Plaintiff contends she continued to work\r\ndespite pain and further injury due to informal reprimands for lack of\r\nproductivity, pressure from the token system, interference with her work\r\nrestrictions by requesting she do work not within the restrictions, badgering\r\nfor updated restrictions, and general nonresponsiveness of Defendants to her\r\ncomplaints regarding her disability. Plaintiff’s testimony indicates she\r\nperformed work in excess of her work restrictions on a consistent basis despite\r\nrecurring injuries and treatment. (See generally Vaquero Decl., para. 36-86\r\n(discussing in detail Plaintiff’s work experience, injuries, treatments, and\r\nproposed work restrictions between 2006 and 2016.)) This is consistent with\r\nPlaintiff’s deposition testimony—though the Court has only the excerpts\r\nprovided by Defendants. Given this, there is a triable issue of fact as to\r\nwhether Defendants in fact accommodated Plaintiff’s work restrictions or merely\r\ndid so nominally while pressuring Plaintiff in other ways to work outside and\r\nbeyond those restrictions. A reasonable trier of fact could find the latter on\r\nthe evidence presented.

\r\n\r\n

This is clearly not a case where Defendants offered\r\nan accommodation which was refused, or a case where Cintas did “everything in [its]\r\npower to find a reasonable accommodation” but failed “because the employee\r\nfailed to engage in discussions in good faith.” (Jensen,\r\nsupra, at 263.) Nor is this a case\r\nwhere there “simply was no vacant position within the employer\'s organization\r\nfor which the disabled employee was qualified and which the disabled employee\r\nwas capable of performing with or without accommodation”—Plaintiff’s Opposition\r\naddresses at length the availability of wrapout duties which would be less\r\nstrenuous than her bulk department duties, but which were denied to her.\r\nDefendants’ argument fails to sufficiently address this point. In sum, the\r\nMotion is DENIED as to this claim because there is a triable issue of fact as\r\nto whether Defendants in fact accommodated Plaintiff and Defendants have not\r\nestablished entitlement to summary judgment under any Jensen prong.

\r\n\r\n

Next, Cintas argues it is entitled to summary\r\nadjudication of the claim for failure to engage in the interactive process\r\nbecause "Plaintiff did not request a transfer to any different department\r\nnor did she request any type of changes with her job duties because of her pain\r\nor injuries.” Cintas’s position that Plaintiff never asked for\r\naccommodations is belied by the repeated submission of work restriction reports\r\nfrom Plaintiff’s doctor, at least some of which undisputedly were received by\r\nCintas. It is not plausible to contend Plaintiff’s submission of proposed\r\naccommodations would not constitute a request for accommodations.

\r\n\r\n

Further,\r\nCintas’s position that Plaintiff was required to take further steps to initiate\r\nthe interactive process beyond submitting work restrictions is unsupported by\r\nlaw. An employer has an \'affirmative duty\' to reasonably accommodate a disabled\r\nemployee," i.e., an employee with a "known physical or mental\r\ndisability." (Swanson v. Morongo Unified School Dist. (2014) 232\r\nCal.App.4th 954, 969; Gov. Code sec. 12940(m).) Upon submission of Plaintiff\'s\r\nwork restrictions, which occurred at least twice after each surgery, Plaintiff\r\nhad a "known physical . . . disability" which Defendants had an\r\naffirmative and "continuing" duty to at least attempt to accommodate.\r\nDefendants\' insistence that Plaintiff bore a further burden beyond providing\r\nproposed accommodations is contrary to law. Cintas therefore has not carried\r\nits initial burden by merely claiming Plaintiff did not request accommodations.

\r\n\r\n

\r\n\r\n

Failure\r\nto Prevent Harassment

\r\n\r\n

Defendants\r\nargue they are entitled to summary judgment of this failure to prevent claim because\r\nthey maintained anti-harassment training and policies, including a hotline for\r\nworkplace complaints (Directline). At the outset, Defendants’ argument relies\r\non the premise that summary adjudication of a failure to prevent claim can be\r\nobtained by producing evidence of anti-harassment policies. The Court does not\r\nagree. This premise is based entirely on Oliver v. Microsoft Corp.\r\n(N.D. Cal. 2013) 966 F.Supp.2d 889, an easily distinguishable (and non-binding)\r\ndecision. The failure to prevent claim in that case "fail[ed] in the\r\nabsence of a viable underlying claim" for harassment—as is often the case\r\nfor failure to prevent claims. (Id. at 898.)

\r\n\r\n

While\r\nthe Oliver court found the plaintiff had not established a “triable\r\nissue of fact that the implementation and enforcement of [anti-harassment]\r\npolicies were legally insufficient,” this is dicta given the conclusion that\r\nthere was no underlying viable harassment claim, and the implication that\r\nplaintiff needed to show uneven enforcement of anti-harassment policies to\r\ndefeat summary judgment is unsupported by any authority. Oliver is at\r\nmost persuasive authority and for these reasons, the Court was unpersuaded by\r\nthe Oliver court’s conclusion that the plaintiff needed to contest\r\nevidence of anti-harassment policies.

\r\n\r\n

To\r\nthe extent Defendants contend they "took all reasonable steps to prevent\r\nharassment given what [they] knew at the time," the reasonableness and\r\nsufficiency of the measures taken to prevent harassment present a question of\r\nfact for the jury. The mere existence of an anti-harassment policy or training\r\nmeasure is insufficient to demonstrate as a matter of law that the employer did\r\nnot fail to prevent harassment. Moreover, Defendants did not carry their\r\ninitial burden to show they responded to Plaintiff’s complaints of harassment.\r\nDefendants argue Plaintiff merely “assum[ed]” her complaint(s) regarding\r\nPerez’s assault(s) were not relayed to Juarez. But there is no evidence from\r\nwhich a trier of fact could conclude Plaintiff’s complaints were relayed.\r\nThere is no evidence of any investigation or action taken, or testimony that\r\nthe complaint was relayed. The only complaint allegedly resolved by Defendants\r\nwas Plaintiff\'s objection to lifting mats in excess of her work restriction\r\nweight limits. It is unclear to the Court that this constituted a complaint of\r\nharassment, but in any event Defendants make no effort to address Plaintiff’s\r\ndiscussion of her complaint to Juarez, after which she was allegedly badgered\r\nfor updated work restrictions she did not need or have. Defendants have not\r\nmade a sufficient showing to carry the initial burden on summary judgment.

\r\n\r\n

\r\n\r\n

Breach\r\nof Contract

\r\n\r\n

“Labor Code section 2922 establishes a presumption\r\nof at-will employment if the parties have made no express oral or written\r\nagreement specifying the length of employment or the grounds for termination.\r\nThis presumption may, however, be overcome by evidence that despite the absence\r\nof a specified term, the parties agreed that the employer\'s power to terminate\r\nwould be limited in some way, e.g., by a requirement that termination be based\r\nonly on ‘good cause.’” (Foley\r\nvs. Interactive Data Corp.\r\n(1988) 47 Cal.3d 654, 677.) In Miller v. Pepsi-Cola Bottling\r\nCo. (1989) 210 Cal.App.3d 1554, 1559, the Court of Appeal concluded there\r\nwas no triable issue of fact as to the existence of an implied-in-fact\r\nagreement not to terminate except for cause where (1) it was “uncontroverted\r\nthat Pepsi had no established policies, written or unwritten, governing the\r\ntermination of sales personnel”; (2) no “additional consideration [was provided\r\nby employee] . . . beyond the usual performance of his job”; and (3) the employee\r\ndid not “receive[] repeated oral assurances of job security while employed by\r\nPepsi.” (Id. at 1558-1559; compare Foley, supra, 47 Cal.3d\r\nat 680-82 (finding implied-in-fact contract sufficiently alleged where the\r\nplaintiff alleged “repeated oral assurances of job security and consistent\r\npromotions,” breach of written policies concerning termination of employees,\r\nand additional consideration via a non-compete agreement.))

\r\n\r\n

Miller is on point here. Plaintiff does not\r\nclaim she received any oral reassurances during her employment that she would\r\nnot be fired except for good cause. Plaintiff does not claim she provided\r\nDefendants any additional consideration for what would otherwise be an\r\nunenforceable gratuitous promise to not fire absent good cause. Plaintiff has\r\nprovided only the deposition testimony of HR Director Meyers agreeing that “there\'s\r\na mutual agreement that arises from the conduct of the employees and their\r\nemployer.” (Meyers Depo., 125:10-12.) Meyers’ opinion that a mutual agreement arises\r\nfrom the “conduct” of the parties appears to be a legal conclusion but in any\r\nevent is insufficient to create a triable issue of fact as to the existence of\r\nan implied-in-fact contract. No reasonable trier of fact could, based on\r\nMeyers’ testimony alone, conclude the parties actually agreed to a further\r\nlimitation. Indeed, Plaintiff herself was unaware of and could not have relied\r\non Meyers’ opinion in the course of her employment, and there is no evidence of\r\nany other promise to her. This is not sufficient to support even a potential\r\nfinding of an implied-in-fact contract.

\r\n\r\n

\r\n\r\n

CONCLUSION

\r\n\r\n

The\r\nMotion for Summary Adjudication is GRANTED as to the causes of action against\r\nArce for breach of implied-in-fact contract, intentional infliction of\r\nemotional distress, wrongful termination and negligent hiring and supervision. The\r\nMotion is GRANTED as to the cause of action for breach of implied-in-fact\r\ncontract as stated against Defendants generally.

\r\n\r\n

\r\n\r\n

The\r\nMotion is DENIED as to the causes of action against Defendants generally for\r\nfailure to accommodate, failure to engage in the interactive process, failure\r\nto prevent harassment, and DENIED as to each of the FEHA claims against Arce.

\r\n\r\n

\r\n\r\n

Defendants\r\nto give notice.

\r\n\r\n

\r\n\r\n

If\r\ncounsel do not submit on the tentative, they are encouraged to appear remotely\r\nrather than in person.

\r\n\r\n
\r\n\r\n
\r\n\r\n\r\n\r\n
\r\n\r\n

[1] The Court does\r\nnot know the precise ratios of the token system, nor do the ratios appear\r\nimportant here.

\r\n\r\n
\r\n\r\n
'
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