This case was last updated from Los Angeles County Superior Courts on 08/21/2020 at 02:11:57 (UTC).

JOSHUA MCDONOUGH VS MRS GOOCHS NATURAL FOOD MARKETS INC ET A

Case Summary

On 05/18/2018 JOSHUA MCDONOUGH filed a Labor - Other Labor lawsuit against MRS GOOCHS NATURAL FOOD MARKETS INC ET A. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are ELIZABETH R. FEFFER, SAMANTHA P. JESSNER and YOLANDA OROZCO. The case status is Disposed - Judgment Entered.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****6995

  • Filing Date:

    05/18/2018

  • Case Status:

    Disposed - Judgment Entered

  • Case Type:

    Labor - Other Labor

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

ELIZABETH R. FEFFER

SAMANTHA P. JESSNER

YOLANDA OROZCO

 

Party Details

Plaintiffs and Petitioners

STATE FARM MUTUAL AUTOMOBILE INSURANCE

MCDONOUGH JOSHUA

Defendants and Respondents

DOES 1-40

AGUIRRE GRACIELA

MRS. GOOCH'S NATURAL FOOD MARKETS INC.

WHOLE FOODS MARKET INC.

DOES 1 TO 50

MRS. GOOCH'S NATURAL FOOD MARKETS INC. DBA WHOLE FOODS MARKET

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

MAHFOUZ RICHARD L. II

BOHM LAW GROUP INC.

BOHM LAWRANCE ALEXANDER

Defendant and Respondent Attorneys

SHEPPARD MULLIN RICHTER & HAMPTON

HAVEL DEREK RICHARD

 

Court Documents

Challenge To Judicial Officer - Peremptory (170.6)

6/5/2018: Challenge To Judicial Officer - Peremptory (170.6)

Notice - NOTICE OF CONTINUED HEARING ON MOTION FOR SUMMARY JUDGMENT

1/17/2020: Notice - NOTICE OF CONTINUED HEARING ON MOTION FOR SUMMARY JUDGMENT

Separate Statement

11/8/2019: Separate Statement

Notice of Ruling

9/25/2019: Notice of Ruling

Opposition - OPPOSITION TO MOTION TO COMPEL PLAINTIFF'S DEPOSITION AND OPPOSITION TO SANCTIONS $3,600

9/26/2019: Opposition - OPPOSITION TO MOTION TO COMPEL PLAINTIFF'S DEPOSITION AND OPPOSITION TO SANCTIONS $3,600

Minute Order - MINUTE ORDER (MOTION BY DEFENDANT (MRS. GOOCH'S NATURAL FOOD MARKETS, INC.)...)

9/11/2019: Minute Order - MINUTE ORDER (MOTION BY DEFENDANT (MRS. GOOCH'S NATURAL FOOD MARKETS, INC.)...)

Notice - NOTICE OF NON-OPPOSITION TO MOTION TO COMPEL PLAINTIFF DEPOSITION

9/4/2019: Notice - NOTICE OF NON-OPPOSITION TO MOTION TO COMPEL PLAINTIFF DEPOSITION

Declaration - DECLARATION OF JONATHAN P. BARKER IN SUPPORT OF DEFENDANT MRS. GOOCHS NATURAL FOOD MARKETS, INC.S MOTION TO COMPEL PLAINTIFF TO APPEAR AT DEPOSITION AND REQUEST FOR SANCTIONS IN THE AMOU

8/19/2019: Declaration - DECLARATION OF JONATHAN P. BARKER IN SUPPORT OF DEFENDANT MRS. GOOCHS NATURAL FOOD MARKETS, INC.S MOTION TO COMPEL PLAINTIFF TO APPEAR AT DEPOSITION AND REQUEST FOR SANCTIONS IN THE AMOU

Opposition - OPPOSITION TO MOTION TO BE RELIEVED AS COUNSEL

4/29/2019: Opposition - OPPOSITION TO MOTION TO BE RELIEVED AS COUNSEL

Proof of Service - Order Granting Attorney's Motion to be Relieved as Counsel

5/7/2019: Proof of Service - Order Granting Attorney's Motion to be Relieved as Counsel

Declaration in Support of Attorney's Motion to Be Relieved as Counsel-Civil

4/8/2019: Declaration in Support of Attorney's Motion to Be Relieved as Counsel-Civil

Order - ORDER CONTINUING FINAL STATUS CONFERENCE, TRIAL DATE AND RELATED DEADLINES

4/2/2019: Order - ORDER CONTINUING FINAL STATUS CONFERENCE, TRIAL DATE AND RELATED DEADLINES

Minute Order - MINUTE ORDER (HEARING ON EX PARTE APPLICATION TO CONTINUE THE TRIAL AND ALL...)

4/5/2019: Minute Order - MINUTE ORDER (HEARING ON EX PARTE APPLICATION TO CONTINUE THE TRIAL AND ALL...)

Stipulation and Order - STIPULATION AND ORDER TO CONTINUE FINAL STATUS CONFERENCE, TRIAL DATE AND RELATED DEADLINES

3/21/2019: Stipulation and Order - STIPULATION AND ORDER TO CONTINUE FINAL STATUS CONFERENCE, TRIAL DATE AND RELATED DEADLINES

CASE MANAGEMENT ORDER

9/27/2018: CASE MANAGEMENT ORDER

Minute Order -

6/11/2018: Minute Order -

NOTICE OF CASE MANAGEMENT CONFERENCE

6/1/2018: NOTICE OF CASE MANAGEMENT CONFERENCE

SUMMONS -

5/18/2018: SUMMONS -

58 More Documents Available

 

Docket Entries

  • 04/10/2020
  • DocketOrder on Court Fee Waiver (Superior Court); Filed by Clerk

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  • 03/30/2020
  • DocketMemorandum of Costs (Summary); Filed by Mrs. Gooch's Natural Food Markets, Inc. (Defendant)

    Read MoreRead Less
  • 03/17/2020
  • Docketat 08:30 AM in Department 31, Yolanda Orozco, Presiding; Order to Show Cause Re: (Submission of Judgment) - Not Held - Advanced and Vacated

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  • 03/17/2020
  • DocketNotice (of Entry of Judgment); Filed by Mrs. Gooch's Natural Food Markets, Inc. (Defendant)

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  • 03/16/2020
  • Docketat 09:30 AM in Department 31, Yolanda Orozco, Presiding; Jury Trial - Not Held - Advanced and Vacated

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  • 03/11/2020
  • Docketat 11:33 AM in Department 31, Yolanda Orozco, Presiding; Court Order

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  • 03/11/2020
  • DocketMinute Order ( (Court Order)); Filed by Clerk

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  • 03/11/2020
  • DocketCertificate of Mailing for ((Court Order) of 03/11/2020); Filed by Clerk

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  • 03/10/2020
  • DocketJudgment (Proposed Judgment Against Plaintiff Following The Granting Of Defendants Motion For Summary Judgment); Filed by Mrs. Gooch's Natural Food Markets, Inc. (Defendant)

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  • 03/05/2020
  • Docketat 08:30 AM in Department 31, Yolanda Orozco, Presiding; Final Status Conference - Not Held - Advanced and Vacated

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90 More Docket Entries
  • 06/11/2018
  • DocketMinute Order

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  • 06/05/2018
  • DocketChallenge To Judicial Officer - Peremptory (170.6); Filed by Joshua McDonough (Plaintiff)

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  • 06/01/2018
  • DocketORDER TO SHOW CAUSE HEARING

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  • 06/01/2018
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 06/01/2018
  • DocketOSC-Failure to File Proof of Serv; Filed by Clerk

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  • 06/01/2018
  • DocketNOTICE OF CASE MANAGEMENT CONFERENCE

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  • 05/18/2018
  • DocketComplaint; Filed by Joshua McDonough (Plaintiff)

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  • 05/18/2018
  • DocketSummons; Filed by Plaintiff/Petitioner

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  • 05/18/2018
  • DocketSUMMONS

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  • 05/18/2018
  • DocketPLAINTIFF'S VERIFIED COMPLAINT FOR DAMAGES: 1) DISCREMTNATION;ETC

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Tentative Rulings

Case Number: BC706995    Hearing Date: February 14, 2020    Dept: 31

MOTION FOR SUMMARY JUDGMENT IS GRANTED.

Background

On May 18, 2018, Plaintiff Joshua McDonough filed the instant action against Defendants Mrs. Gooch’s Natural Food Markets, Inc.; Whole Foods Market, Inc.; and Does 1 through 50. The Complaint asserts causes of action for:

  1. Discrimination;

  2. Harassment;

  3. FEHA Retaliation;

  4. Failure to Accommodate;

  5. Failure to Engage in an Interactive Process;

  6. Failure to Prevent Harassment, Discrimination, and Retaliation;

  7. Labor Code §§ 98.6 and 1102.5; and

  8. Adverse Action in Violation of Public Policy.

On September 12, 2018, Plaintiff filed a Request for Dismissal, dismissing without prejudice Defendant Whole Foods Market, Inc. and the second cause of action for Harassment.

Defendant Mrs. Gooch’s Natural Food Markets, Inc. (hereinafter “Defendant”) moves for summary judgment or, in the alternative, summary adjudication of the first through eighth causes of action and Plaintiff’s claim for punitive damages.

Legal Standard 

The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.”¿(Aguilar v. Atlantic Richfield Co.¿(2001) 25 Cal.4th 826, 843.) “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”¿(Adler v. Manor Healthcare Corp.¿(1992) 7 Cal.App.4th 1110, 1119.)¿ 

¿ 

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.”¿(Scalf¿v. D. B. Log Homes, Inc.¿(2005) 128 Cal.App.4th 1510, 1519.) A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.” (CCP § 437c(p)(2).) “Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (CCP § 437c(p)(2).) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi¿v. Centro Medico¿Urgente¿Medical Center¿(2008) 159 Cal. App. 4th 463, 467.) 

¿ 

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.”¿(Avivi, 159 Cal.App.4th at 467; CCP §437c(c).)¿ 

Evidentiary Objections

Plaintiff objects to the use of his deposition testimony, arguing that the he was not given an opportunity to read or make corrections to the entire deposition before the deposition was filed in support of the instant motion. Plaintiff asserts that instead of being given a written deposition, Plaintiff was forced to use American Sign Language interpreters, which Plaintiff did not want to use. Plaintiff contends that he had difficulty understanding questions and answering them because of the interpreters. Plaintiff argues that his mother witnessed the interpreters translating the questions and Plaintiff’s answers wrong several times.

In opposition, Defendant argues that Plaintiff’s objections are baseless. Defendant asserts that it retained, at its own expense, certified sign language interpreters for Plaintiff’s deposition. (Supp. Barker Decl. ¶ 5.) Defendant contends that Plaintiff asked for the interpreters’ credentials at the outset of the deposition, and raised no issue regarding their interpretation. (Supp. Barker Decl. ¶ 5.) Defendant argues that Plaintiff’s mother also sat in on the deposition and raised no issue regarding the interpretation. (Supp. Barker Decl. ¶ 5.) Defendant asserts that it took every step it possibly could to ensure an accurate translation of Plaintiff’s testimony.

Defendant contends that in any event, Plaintiff had the opportunity to review and revise the deposition transcript and made no material revisions to his testimony. Defendant argues that while Plaintiff purported to object broadly to the deposition transcript, Plaintiff fails to identify any material aspect in which the transcript was inaccurate. Defendant asserts that notably, Plaintiff has identified certain minor transcription errors, but he does not identify any substantive difference between his transcribed testimony and the testimony he gave or intended to give. Defendant contends that Plaintiff has not identified any issue with any of the deposition testimony upon which Defendant has relied in its motion.

Defendant argues that Plaintiff’s objections regarding his review of the deposition transcript are similarly meritless. Defendant asserts that while Plaintiff objects first to not having been provided with the videotaped recording of his deposition testimony, Plaintiff had full access to the video recording through the court reporter, and thus could have obtained it at any time. (Supp. Barker Decl. ¶ 6.) Defendant contends that it is also non-sensical for Plaintiff to object that he had not read the deposition transcript prior to Defendant’s motion being filed. Notably, Plaintiff refused to stipulate to a shorter review period for the deposition transcript, meaning that the review was in accordance to the Code of Civil Procedure. (Supp. Barker Decl. ¶ 6.) Defendant argues that, if anything, this advantaged Plaintiff, as he was able to review the portions of the deposition transcript on which Defendant was relying in its motion before his time to make revisions to the transcript expired.

Defendant asserts that regardless, it is evident from Plaintiff’s own Errata Sheet that he did have the opportunity to review the deposition transcript. Defendant contends that the fact that Plaintiff did not sign the transcript is immaterial. By law, “[i]f the deponent refuses to approve the transcript within the allotted period, the deposition shall be given the same effect as though it had been approved, subject to any changes timely made by the deponent.” (Cal. Code Civ. Proc. § 2025.520(f).) Defendant argues that Plaintiff had the opportunity to correct any errors in the deposition transcript, and knew which passages Defendant was relying upon in this motion. Defendant asserts that Plaintiff thus has no grounds to object to reliance on those deposition passages here. (See Argyle Online, LLC v. Nielson (In re GGW Grands, LLC) (Bankr. C.D. Cal. 2013) 504 B.R. 577.)

Plaintiff’s objection to the use of his deposition testimony is OVERRULED. Plaintiff has failed to object to the relevant testimony used in support of Defendant’s motion. Accordingly, Plaintiff’s objections are immaterial to the Court’s disposition of the instant motion.

Discussion

Defendant moves for summary judgment or, in the alternative, summary adjudication of the first through eighth causes of action and Plaintiff’s claim for punitive damages.

Notice

“Notice of the motion and supporting papers shall be served on all other parties to the action at least 75 days before the time appointed for hearing. If the notice is served by mail, the required 75-day period of notice shall be increased by 5 days if the place of address is within the State of California, 10 days if the place of address is outside the State of California but within the United States, and 20 days if the place of address is outside the United States. If the notice is served by facsimile transmission, express mail, or another method of delivery providing for overnight delivery, the required 75-day period of notice shall be increased by two court days.” (Code Civ. Proc. § 437c(a)(2).) “The service may be personal, by delivery to the party or attorney on whom the service is required to be made, or it may be as follows: . . . (b) If upon a party, service shall be made in the manner specifically provided in particular cases, or, if no specific provision is made, service may be made by leaving the notice or other paper at the party’s residence with some person 18 years of age or older.” (Code Civ. Proc. § 1011(b).)

“‘It is well settled that the appearance of a party at the hearing of a motion and his or her opposition to the motion on its merits is a waiver of any defects or irregularities in the notice of motion. [Citations.] This rule applies even when no notice was given at all. [Citations.] Accordingly, a party who appears and contests a motion in the court below cannot object on appeal or by seeking extraordinary relief in the appellate court that he had no notice of the motion or that the notice was insufficient or defective.’ [Citation.]” (Carlton v. Quint (2000) 77 Cal.App.4th 690, 697.)

Plaintiff first opposes the instant motion arguing that he was not properly served with the instant motion. Plaintiff asserts that the Proof of Service, which indicates that Andrea J. Hernandez caused the motion to be hand delivered to Plaintiff’s home in Hawaii is false and physically impossible because Plaintiff had no travel funds available for him to return home to Hawaii from the deposition he was required to attend in California. Plaintiff contends that he was not in Hawaii at that time.

In reply, Defendant argues that Plaintiff acknowledges that the motion was served personally to Plaintiff’s home in Hawaii. Defendant asserts that previously, Plaintiff asserted that it was “harassment” for him to be served anywhere other than at his home in Hawaii, claiming that he no longer lived at the address previously given in Santa Barbara and that he did not want any documents to be served there. (Supp. Barker Decl. ¶ 2.) Defendant contends that Plaintiff even made a verbal request to the Court for a protective order, asking that no documents be served anywhere other than his address in Hawaii. (Supp. Barker Decl. ¶ 2.) Defendant argues that the fact that Plaintiff would now object to the service of documents at this address merely shows that Plaintiff is playing games with this Court and the judicial process.

Defendant asserts that the undisputed facts are that Defendant’s motion was served personally at Plaintiff’s residence on November 8, 2019. (Supp. Barker Decl. ¶ 3.) Defendant contends that the motion papers were left with building security, which indicated that it receives all deliveries for Plaintiff. (Supp. Barker Decl. ¶ 3.) Defendant argues that this is proper service under Code of Civil Procedure section 1011(b), as it is no different than service being made by leaving motion papers with a clerk or receptionist.

Defendant asserts that in any event, Plaintiff makes no claim that the manner of service has prejudiced him in any way, nor could he, as Defendant sent courtesy copies of the motion papers to Plaintiff by email immediately following service at his address. (Supp. Barker Decl. ¶ 3.) Defendant contends that while Plaintiff purports to object to the manner of service, Plaintiff essentially admits that the motion was served at this residence, Plaintiff received the motion electronically on that same day, Plaintiff was able to file his opposition brief in advance of the deadline to do so, and Plaintiff has made no claim that the manner of service adversely affected him in any way.

The Court finds that notice of the instant motion was properly served on Plaintiff. As noted by Defendant, Plaintiff has advised this Court that service is only proper when made to his residence in Hawaii. Now that Defendant has done exactly that, Plaintiff cannot now renounce his request to have all correspondence delivered to that address. Moreover, Plaintiff received courtesy copies of the moving papers by email that same day. Nothing before the Court indicates, and indeed, Plaintiff has not made any argument, that Plaintiff has been prejudiced by this method of service. Additionally, by submitting objections to the evidence submitted in support of the instant motion, Plaintiff has opposed the motion on its merits, waiving any defects or irregularities in its service. The Court thus turns to the merits of the motion.

Summary Judgment/Adjudication in Employment Cases

“[A] case [of discrimination] may be built on direct or circumstantial evidence, or both. [Citations.] “‘Direct evidence is evidence which, if believed, proves the fact [of discriminatory animus] without inference or presumption.’” [Citation.] Where a plaintiff offers direct evidence of discrimination that is believed by the trier of fact, the defendant can avoid liability only by proving the plaintiff would have been subjected to the same employment decision without reference to the unlawful factor. ([Citations]; see, Trans World Airlines, Inc. v. Thurston (1985) 469 U.S. 111, 121, 105 S.Ct. 613, 621–22, 83 L.Ed.2d 523 [direct evidence of discrimination renders shifting burdens of McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 inapplicable].) Since plaintiffs in employment discrimination cases most often lack direct evidence of the employer's discriminatory intent, however, courts rely on a system of shifting burdens to aid the presentation and resolution of such claims. [Citations.]” (Morgan v. Regents of University of Cal. (2000) 88 Cal.App.4th 52, 67–68.)

When deciding issues of adverse employment actions, such as retaliation, discrimination, and wrongful termination, the court applies the McDonnell Douglas shifting burdens test. (Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 203; Loggins v. Kaiser Permanente Intern. (2007) 151 Cal.App.4th 1102, 1108–09.) “Under the three-part test developed in McDonnell Douglas Corp. v. Green, supra, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668: “(1) The complainant must establish a prima facie case of discrimination; (2) the employer must offer a legitimate reason for his actions; (3) the complainant must prove that this reason was a pretext to mask an illegal motive.” [Citation.]” (Morgan, supra, 88 Cal.App.4th at 68.)

Under this test, “if the employer presents admissible evidence either that one or more of plaintiff's prima facie elements is lacking, or that the adverse employment action was based on legitimate, nondiscriminatory factors, the employer will be entitled to summary judgment unless the plaintiff produces admissible evidence which raises a triable issue of fact material to the defendant's showing.” (Caldwell, supra at 203.) Therefore, the initial burden rests with the Defendant. “Once the employer makes a sufficient showing of a legitimate reason for discharge, i.e., that it had a lawful, nondiscriminatory reason for the termination then the discharged employee seeking to avert summary judgment must demonstrate either (by additional facts or legal argument) that the defendant's showing was in fact insufficient or (by competent evidentiary materials) that there was a triable issue of fact material to the defendant's showing. With respect to the latter choice, the employee must produce substantial responsive evidence that the employer's showing was untrue or pretextual. For this purpose, speculation cannot be regarded as substantial responsive evidence.” (Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 225.)

“[T]he great weight of federal and California authority holds that an employer is entitled to summary judgment if, considering the employer's innocent explanation for its actions, the evidence as a whole is insufficient to permit a rational inference that the employer's actual motive was discriminatory.” (Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 361.) “It is the employer's honest belief in the stated reasons for firing an employee and not the objective truth or falsity of the underlying facts that is at issue in a discrimination case.” (King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 436.)

First Cause of Action for Discrimination & Fourth Cause of Action for Failure to Accommodate

To establish a claim for discrimination in violation of FEHA, the plaintiff must generally prove that (1) he or she was a member of a protected class; (2) that he or she was qualified for the position he or she sought or was performing competently in the position he or she held; (3) that he or she suffered an adverse employment action, such as termination, demotion, or denial of an available job; and (4) some other circumstance suggesting discriminatory motive. (See Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 355.)

“The elements of a failure to accommodate claim are (1) the plaintiff has a disability under the FEHA, (2) the plaintiff is qualified to perform the essential functions of the position, and (3) the employer failed to reasonably accommodate the plaintiff's disability.” (Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1009–1010.)

“If the employee cannot be accommodated in his or her existing position and the requested accommodation is reassignment, an employer must make affirmative efforts to determine whether a position is available. [Citation.] A reassignment, however, is not required if “there is no vacant position for which the employee is qualified.” ([citation]; see School Bd. of Nassau County v. Arline (1987) 480 U.S. 273, 289, fn. 19, 107 S.Ct. 1123, 94 L.Ed.2d 307 [“Employers have an affirmative obligation to make a reasonable accommodation for a handicapped employee. Although they are not required to find another job for an employee who is not qualified for the job he or she was doing, they cannot deny an employee alternative employment opportunities reasonably available under the employer's existing policies. [Citations.]”].) “The responsibility to reassign a disabled employee who cannot otherwise be accommodated does ‘not require creating a new job, moving another employee, promoting the disabled employee or violating another employee's rights....' ” ([citation]; see also McCullah v. Southern Cal. Gas Co. (2000) 82 Cal.App.4th 495, 501, 98 Cal.Rptr.2d 208 (McCullah ) [“The employer is not required to create new positions or ‘bump’ other employees to accommodate the disabled employee.”].) “What is required is the ‘duty to reassign a disabled employee if an already funded, vacant position at the same level exists.’ [Citations.]” [Citations.]” (Raine v. City of Burbank (2006) 135 Cal.App.4th 1215, 1223.) 

Defendant moves for summary adjudication of the first and fourth causes of action arguing that Plaintiff cannot establish that he was qualified for the position he sought or was performing competently in the position he held.

Defendant presents evidence that Plaintiff was unable to perform the essential functions of his own job, with or without reasonable accommodations. (Undisputed Material Fact (“UMF”) 39, 47.) As to Plaintiff’s contention that he should have been transferred to an alternative position, Defendant presents evidence that as a part of the interactive process, the physical requirements of all of Defendant’s available positions at Plaintiff’s level were reviewed with him. (UMF 40-43.) Plaintiff agreed that he could not perform several of the essential functions of those positions, even with accommodations. (UMF 40, 43, 47-49.) Specifically, with regard to Plaintiff’s assertion that he could have worked as a “Whole Body” team member, Defendant presents evidence that the position also has similar physical requirements. (UMF 44.) This was discussed with Plaintiff during the interactive process and Plaintiff acknowledged that he might not be able to perform these job duties either. (UMF 41-43, 47.) Additionally, at the time of Plaintiff’s separation, there were no “Whole Body” team member positions available. (UMF 42.)

Plaintiff’s opposition does not address Defendant’s substantive arguments.

The Court finds that Defendant has carried its burden establishing that there are no triable issues of material fact as to the issue of qualifications and that it is entitled to judgment as a matter of law. Defendant has presented evidence sufficient to establish that Plaintiff was not qualified for the position he sought or was performing competently in the position he held. Because Plaintiff has not addressed Defendant’s substantive arguments nor provided any evidence to dispute Defendant’s evidence, Plaintiff has failed to raise a triable issue of material fact.

Based on the foregoing, Defendant’s motion for summary adjudication of the first and fourth causes of action is GRANTED.

Third Cause of Action for Retaliation and Seventh Cause of Action for Violation of Labor Code § 98.6 and 1102.5

“[I]n order to establish a prima facie case of retaliation under the FEHA, a plaintiff must show (1) he or she engaged in a “protected activity,” (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer's action. Once an employee establishes a prima facie case, the employer is required to offer a legitimate, nonretaliatory reason for the adverse employment action. [Citation.] If the employer produces a legitimate reason for the adverse employment action, the presumption of retaliation “drops out of the picture,” and the burden shifts back to the employee to prove intentional retaliation.” (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.) 

“The FEHA makes it unlawful for an employer to retaliate against an employee who has opposed any discriminatory action (the “opposition” clause) or who has filed a complaint, testified, or assisted in a FEHA proceeding (the “participation” clause). [Citation.]” (George v. California Unemployment Ins. Appeals Bd. (2009) 179 Cal.App.4th 1475, 1489 (emphasis in original).) “It is well established that a retaliation claim may be brought by an employee who has complained of or opposed conduct that the employee reasonably believes to be discriminatory, even when a court later determines the conduct was not actually prohibited by the FEHA. [Citations.]” (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1043.)

Labor Code section 98.6 prohibits retaliation for filing “a bona fide complaint or claim . . . under the jurisdiction of the Labor Commissioner.” (Labor Code § 98.6(a).) Labor Code section 1102.5 prohibits retaliation for

Once an employer presents a nonretaliatory reason for the discharge, “[t]he central issue is and should remain whether the evidence as a whole supports a reasoned inference that the challenged action was the product of discriminatory or retaliatory animus. The employer’s mere articulation of a legitimate reason for the action cannot answer this question; it can only dispel the presumption of improper motive that would otherwise entitle the employee to a judgment in his favor. Thus, citing a legitimate reason for the challenged action will entitle the employer to summary judgment only when the employee’s showing, while sufficient to invoke the presumption, is too weak to sustain a reasoned inference in the employee’s favor.” (Mamou v. Trendwest Resorts, Inc. (2008) 165 Cal.App.4th 686, 715.)

The Complaint alleges that Plaintiff was subject to retaliation for “reporting protected activity and objecting to unlawful practices” and for “report[ing] to Defendant and to DFEH violations of law by his supervisors and coworkers.” (Complaint ¶ 95, 130.)

Defendant moves for summary adjudication of the third and seventh causes of action arguing that Plaintiff cannot establish a causal connection between his termination and any complaint he allegedly made or filed because Defendant has a legitimate, non-retaliatory reason for Plaintiff’s termination.

Defendant presents evidence that the only complaint that Plaintiff made to Defendant was in August 2008. (UMF 19.) Plaintiff also made a complaint to the DFEH in 2016. (UMF 67.) Plaintiff’s internal complaint did not object to any “unlawful practices,” as Plaintiff was focused primarily on obtaining a raise or a transfer, and wanted rescission of discipline that had been issued to him. (UMF 20.) Defendant presents evidence that, in any event, Plaintiff’s internal complaint was investigated by a third-party investigator, just as Plaintiff’s DFEH complaints were investigated by the DFEH. (UMF 21-22, 69.) In each instance, the investigations found no evidentiary basis for Plaintiff’s claims. (UMF 22, 69.) Moreover, following Plaintiff’s internal complaint, he was given a leave of absence for seven years and was offered his prior job when he asked to return. (UMF 23-27.) Plaintiff was separated only after it was determined that he was physically unable to perform his job or any similar available job. (UMF 39-40, 47-49.) Defendant asserts that there is accordingly no evidence of a causal link between any protected activity and Plaintiff’s separation or any other purportedly adverse actions.

As to a violation of Labor Code section 98.6, Defendant presents evidence that Plaintiff readily admits that he has never filed any claim with the Labor Commissioner. (UMF 70.)

Plaintiff’s opposition does not address Defendant’s substantive arguments.

The Court finds that Defendant has carried its burden establishing that there are no triable issues of material fact as to Plaintiff’s causes of action for retaliation and that it is entitled to judgment as a matter of law. Defendant has presented evidence sufficient to establish that it had a legitimate, non-retaliatory business reason for Plaintiff’s termination. Accordingly, in order to avoid summary judgment, Plaintiff is required to produce substantial responsive evidence that the Defendant’s showing was untrue or pretextual. As Plaintiff has failed to address Defendant’s substantive arguments much less provide any evidence that Defendant’s showing was untrue or pretextual, Plaintiff has failed to create a triable issue of material fact.

Based on the foregoing, Defendant’s motion for summary adjudication of the third and seventh causes of action is GRANTED.

Fifth Cause of Action for Failure to Engage in the Interactive Process

Government Code section 12940(n) makes it unlawful “[f]or an employer or other entity covered by this part to fail to engage in a timely, good faith, interactive process with the employee or applicant to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition.”

“‘[T]he interactive process requires communication and good-faith exploration of possible accommodations between employers and individual employees' with the goal of ‘identify[ing] an accommodation that allows the employee to perform the job effectively. [Citations] [F]or the process to work ‘[b]oth sides must communicate directly, exchange essential information and neither side can delay or obstruct the process.’ [Citations] When a claim is brought for failure to reasonably accommodate the claimant's disability, the trial court's ultimate obligation is to ‘“isolate the cause of the breakdown . . . and then assign responsibility” so that “[l]iability for failure to provide reasonable accommodations ensues only where the employer bears responsibility for the breakdown.” (Nadaf-Rahrov v. Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th 952, 984-985.) “However, the fact that an employer took some steps to work with an employee to identify reasonable accommodations does not absolve the employer of liability under section 12940(n). If the employer is responsible for a later breakdown in the process, it may be held liable.” (Id. at 985.)

“[A]n employer may be held liable for failing to engage in the good faith interactive process only if a reasonable accommodation was available, and that the employee bears the burden of proof on this issue. [Citations.]” (Nadaf-Rahrov v. Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th 952, 979.)

Defendant moves for summary adjudication of the fifth cause of action for failure to engage in the interactive process arguing that according to Plaintiff, Defendant engaged in the interactive process.

Defendant presents the following evidence: Plaintiff testified to extensive communications with Defendant regarding the possibility of returning to work. (UMF 30-35, 37-40.) This included reviewing job descriptions, physical requirements, and Plaintiff’s limitations. (UMF 34, 37-40.) Defendant also brought in a third party to assist with the process, and a meeting was held in order to review whether Plaintiff could return to work with or without accommodations. (UMF 37-40.) Prior to that, Defendant granted Plaintiff accommodations whenever he indicated a need, including allowing him an extended leave of absence when he was completely unable to work. (UMF 4-6, 23-28.) Defendant asserts that there can be no doubt that Defendant engaged in the interactive process with Plaintiff.

Defendant contends that the fact that Plaintiff was not qualified for the positions he sought or was performing competently in the position he held is also dispositive of his interactive process claim. Defendant presents evidence that Plaintiff does not, and cannot, identify any accommodation that would have allowed him to continue working in his position, or in any similar position. (UMF 33, 39-40.) Plaintiff acknowledged that he was physically unable to perform these jobs, with or without accommodations. (UMF 33, 39-40, 47-48.) Defendant argues that there was no need to further engage in an interactive process with Plaintiff once it was agreed that there were no accommodations that would allow him to return to work.

Plaintiff’s opposition does not address Defendant’s substantive arguments.

The Court finds that Defendant has carried its burden establishing that there are no triable issues of material fact as to Plaintiff’s cause of action for failure to engage in the interactive process and that it is entitled to judgment as a matter of law. Defendant has presented evidence sufficient to establish that it engaged in a timely, good faith, interactive process to determine effective reasonable accommodations, if any. Because Plaintiff has failed to address Defendant’s substantive arguments or submit any evidence to dispute Defendant’s evidence, Plaintiff has failed to raise a triable issue of material fact.

Based on the foregoing, Defendant’s motion for summary adjudication of the fifth cause of action is GRANTED.

Sixth Cause of Action for Failure to Prevent Harassment, Discrimination, and Retaliation and Eighth Cause of Action for Adverse Action in Violation of Public Policy

“[T]he statutory language [of Section 12940 does not] support[] recovery on such a private right of action where there has been a specific factual finding that no such discrimination[, retaliation,] or harassment actually occurred at the plaintiffs’ workplace.” (Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280, 288-289.)

The elements of a claim for wrongful termination in violation of public policy are: (1) plaintiff's employment was actually terminated; (2) in violation of a policy that is: (a) delineated in either constitutional or statutory provisions; (b) public in the sense that it inures to the benefit of the public; (c) well established at the time of the discharge; and (d) substantial and fundamental; and (3) damages. Barbee v. Household Automotive Finance Corp. (2003) 113 Cal.App.4th 525, 533; Holmes v. General Dynamics Corp. (1993) 17 Cal.App.4th 1418, 1426; Kelly v. Methodist Hospital (2000) 22 Cal. 4th 1108, 1112 (referencing damages from wrongful termination).

Defendant moves for summary adjudication of the sixth and seventh causes of action arguing that because Plaintiff cannot establish that he was subject to any actionable unlawful discrimination or retaliation, Plaintiff cannot establish his causes of action for failure to prevent harassment, discrimination, and retaliation and adverse action in violation of public policy.

Given the Court’s ruling, granting summary adjudication of the first, third, fourth, fifth, and seventh causes of action, the Court finds that Defendant has carried its burden establishing that there are no triable issues of material fact as to Plaintiff’s sixth and eighth causes of action and that it is entitled to judgment as a matter of law. Because Plaintiff’s sixth cause of action is predicated on his causes of action for discrimination and retaliation, and that Court has adjudicated those causes of action, there can be no recovery for a failure to prevent such discrimination or retaliation. Moreover, because Plaintiff’s eight cause of action is predicated on every other cause of action, and the Court has adjudicated all other causes of action, Plaintiff’s either cause of action necessarily fails.

Based on the foregoing, Defendant’s motion for summary adjudication of the sixth and eighth causes of action is GRANTED. Defendant’s motion for summary judgment is GRANTED.

Conclusion

Defendant’s motion for summary judgment is GRANTED.

Moving party to give notice.