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United States District Court, N.D. California

October 13, 2005.

PAUL LEWIS, Plaintiff,
UNITED PARCEL SERVICE, INC., and DOES 1-100, inclusive, Defendants.

The opinion of the court was delivered by: WILLIAM ALSUP, District Judge



In this diversity-removal action, defendant United Parcel Service, Inc., moves for summary judgment on all plaintiff claims. The motion is GRANTED.


  Plaintiff Paul Lewis drove a UPS delivery truck. He went out on workers' compensation in September 2002. With the exception of two brief periods, he has remained on workers' compensation since. During his most recent stint of work, a labor manager, Mike Mullan, met with Lewis and Eduardo Nuño, another manager. During the meeting, Mullan threatened to fire Lewis unless he trimmed his dreadlocks. The dreadlocks, tucked under a UPS cap, forced it to bulge out. About the same time, various unnamed UPS managers told Lewis that he "wasn't man enough to do the job." Another employee told him that the job was "probably too much" for him. Nuño told Lewis that he "was not the right person for the job." Mullan told Lewis that he was faking his injuries and did not want to work.

  After the meeting, Lewis told UPS for the first time that he wore dreadlocks because of a religious belief. God instructed Lewis in a dream, Lewis now states, to grow dreadlocks so as to embody the values held by Jesus. The Book of Revelations, he states, described Jesus as wearing his hair like "wool."

  Lewis made known his religious viewpoint to UPS via a request for religious accommodation. This was submitted after the meeting in March 2004. About that time, however, Lewis left again on workers' compensation. He remains on workers' compensation. He has not been fired. He has not trimmed his dreadlocks. UPS states that if and when Lewis advises that he is ready and willing to return to work, UPS stands ready and willing to engage in an interactive process to try to reach a religious accommodation over his dreadlocks.

  The foregoing is the view of the summary-judgment evidence most favorable to plaintiff. All claims are based on state law. Subject-matter jurisdiction is based on diversity-removal jurisdiction.


  Summary judgment is proper where the pleadings, discovery and affidavits "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." FRCP 56(c). A nonmoving party who bears the ultimate burden of proof at trial must "designate specific facts showing there is a genuine issue for trial." Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). It is not the task of the district court to scour the record in search of a genuine issue of triable fact. The nonmoving party has the burden of identifying with reasonable particularity the evidence that precludes summary judgment. Keenan v. Allen, 91 F.3d 1275, 1279 (9th Cir. 1996). A genuine dispute as to a material fact exists if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. On summary judgment, the "evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 252, 255 (1986).


  To prevail on his first claim, Lewis must prove that UPS barred or discharged him from employment, or discriminated against him in "terms, conditions, or privileges of employment" on account of his physical disability or medical condition. Cal. Gov't Code § 12940(a). To make out a prima facie case, Lewis must show that he (1) suffered from a disability or medical condition; (2) was otherwise qualified to do his job; and (3) was subject to adverse employment action by UPS because of his disability or medical condition. Finegan v. County of L.A., 109 Cal. Rptr. 2d 762, 767 (Cal.Ct.App. 2001).

  UPS challenges the disability/medical-condition claim by alleging that Lewis has not suffered any "adverse employment action" and that he cannot show that UPS's enforcement of the facially neutral hair-length policy was a pretext for discrimination on the basis of his disability or medical condition. For purposes of this motion, UPS does not challenge Lewis's claims that he suffers from a disability or medical condition and that he is otherwise qualified to do his job.

  A. Adverse Employment Action.

  Plaintiff claims that whether he suffered an adverse employment action is "a factual inquiry . . . that must be decided by a jury and not the court by way of summary judgment" (Opp. 13). He thus suggests that an essential element of one of his claims is immune from summary adjudication merely because it requires a factual inquiry. He offers no authority supporting this contention. His argument has no merit. The whole point of summary adjudication is to determine which claims have sufficient factual basis to warrant presentation to the jury. See Celotex, 477 U.S. at 323-24 ("One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses."). Under Rule 56(c), the Court must determine whether there is a "genuine issue as to any material fact" that might control resolution of the adverse-employment-action element. Under California law, an adverse employment action may be an "ultimate employment action" such as termination or demotion. It may also be anything else that is "reasonably likely to adversely and materially affect an employees's job performance or opportunity for advancement in his or her career." On the other hand, "a mere offensive utterance or even a pattern of social slights" is not sufficiently adverse to satisfy this element. If the action does no more than "anger or upset an employee," the claim must fail. Yanowitz v. L'Oreal USA, Inc., 32 Cal. Rptr. 3d 436, 454-55 (2005); see also McAlindin v. County of San Diego, 192 F.3d 1226, 1238-39 (9th Cir. 1999) (holding that ostracism by co-workers and failure to keep job open for employee were not adverse employment action in lawsuit claiming disability discrimination in violation of FEHA and federal law).

  A mere threat of termination is not an adverse employment action. Nunez v. City of L.A., 147 F.3d 867, 875 (9th Cir. 1998). A threat combined with a systematic pattern of other negative treatment, however, may rise to the level of an adverse employment action. Yanowitz, 32 Cal. Rptr. 3d at 459-60.

  The Ninth Circuit has found that a similarly "wide array of disadvantageous changes in the workplace constitute adverse employment actions." Ray v. Henderson, 217 F.3d 1234, 1240 (9th Cir. 2000). It has found, for example, the following employment actions to be adverse:

• "[t]ransfers of job duties and undeserved performance ratings," Yartzoff v. Thomas, 809 F.2d 1371, 1376 (9th Cir. 1987) (Title VII national-origin discrimination); see also Winarto v. Toshiba Am. Elecs. Components, Inc., 274 F.3d 1276, 1286 (9th Cir. 2001) (negative performance evaluations; FEHA and federal-law race, sex, national-origin and disability discrimination);
• dissemination of an unfavorable job reference, Hashimoto v. Dalton, 118 F.3d 671, 676 (9th Cir. 1997) (Title VII race and gender discrimination);
• exclusion from meetings, seminars and positions that would have made the employee eligible for salary increases; denial of secretarial support; and a more burdensome work schedule, Strothers v. S. Cal. Permanente Med. Group, 79 F.3d 859, 869 (9th Cir. 1996) (FEHA and federal-law race and gender discrimination); and
• elimination of a flexible start-time policy, a program to let employees meet with supervisors to discuss workplace issues, and institution of more burdensome workplace procedures, Ray, 217 F.3d at 1238-39 (Title VII gender discrimination).
The main adverse action was a threat to terminate Lewis if he did not conform to UPS's "Personal Appearance Guidelines" (Lewis Dep. 18, Exh. 4). In addition, he was told that he "wasn't man enough to do the job" by "various UPS persons, management personnel," although Lewis did not attribute this comment to any specific person. Another UPS employee told Lewis the job was "probably too much" for him. Nuño told him that he "was not the right person for the job" (Lewis Dep. 129). Shortly before the termination threat, Mullan accused Lewis of faking his injuries (Lewis Decl. 3).*fn1

  In this case, a reasonable jury could find that Lewis suffered adverse employment action in the context of considering his claim of disability/medical-condition discrimination. There is evidence of more than "a mere offensive utterance or even a pattern of social slights," due to the fact that Lewis was threatened with termination. See Yanowitz, 32 Cal. Rptr. 3d at 454. Stated in the alternative, there is evidence of more than a mere threat of termination. See Nunez, 147 F.3d at 875. This was not a mere reprimand for a dress code violation, unaccompanied by a threat of discharge. See Flannery v. Trans World Airlines, 160 F.3d 425, 427-28 (8th Cir. 1998). The threat of termination and the insults Lewis suffered, when combined, are "reasonably likely to adversely and materially affect [his] job performance or opportunity for advancement in his or her career," Yanowitz, 32 Cal. Rptr. 3d at 454.

  In the instant case, a reasonable jury could find that the insults and derogatory comments related to Lewis's physical capabilities, when combined with the threat to terminate him, constituted an adverse-employment-action element but for the issue next addressed.

  B. Adverse Action Not By Reason of the Disability.

  A plaintiff in a disability-discrimination claim must prove that the action was taken by reason of a disability or medical condition. Finegan, 109 Cal. Rptr. 2d at 767; see also Cal Gov't Code § 12940(a) (barring discrimination on the basis of "physical disability, mental disability, [or] medical condition"). Here this element cannot be satisfied. Significantly, the threat to fire concerned the dreadlocks, not any disability. When UPS threatened to fire Lewis, moreover, UPS did not yet know that Lewis wore dreadlocks for religious reasons. Therefore, the threat was innocent under the law. Since the threat would be a critical part of any "adverse employment action," the claim fails.

  Lewis claims that (1) the grooming policy is unclear as to how much hair can be kept under a UPS-issue cap, such that it could be enforced arbitrarily against certain employees as a pretext for other discrimination, (2) that other drivers with long hair were not threatened with termination, and that (3) he had been acknowledged for doing his job well (Opp. 17).

  A UPS poster describing the standards for male employee hair stated that it must appear "businesslike." It did not address hair issues such as those of Lewis, whose long hair cause their caps to bulge. At some point, however, it is reasonable to assume that the mass of hair beneath such a hat would grow to such a size that most employers would consider it unprofessional in appearance. Not having any photographs of Lewis in his cap, this Court cannot determine whether Lewis's locks reached that point. Vagueness of the policy alone, however, without something more, cannot sustain a claim that it was applied in a pretextual way to facilitate discrimination.*fn2

  That Lewis received good performance evaluations prior to the reprimand does not indicate pretext. It was entirely possible for him to have done a good job and yet also to have been subject to discipline for wearing his hair too long. Taken collectively, the evidence of pretext is too insubstantial to create any genuine issue of material fact.

  Overall, Lewis has not shown that there is a genuine issue of material fact that an UPS took any adverse employment action against him because of his disability or medical condition. Defendant UPS is therefore granted summary judgment on the claim for disability or medical-condition discrimination.


  A. Harassment.

  It is unlawful for an employer to harass an employee because of his or her medical condition or physical disability. Cal. Gov't Code § 12940(j)(1). Employers must take "all reasonable steps necessary to prevent discrimination and harassment." Cal. Gov't Code § 12940(k). To incur liability, the employer's harassment must be objectively severe enough that it would interfere with a reasonable employee's work performance and seriously affect the psychological well-being of a reasonable employee. The harassed employee must actually have been subjectively offended as well. Conduct is not liable if it is "occasional, isolated, sporadic, or trivial;" it must be "a concerted pattern of harassment of a repeated, routine or a generalized nature." Aguilar v. Avis Rent A Car System, Inc., 87 Cal. Rptr. 2d 132, 139 (1999). Lewis claims that he was harassed both because of his religion and because of his disability or medical condition (Opp. 18). The disability- or medical-condition harassment claim fails for the same reason that the more general claim of disability or medical condition discrimination fails: Lewis's failure to show that there is any basis on which a reasonable finder of fact could determine that disability or medical condition was the reason for the alleged harassment.

  To make out a claim for harassment on the basis of his religion, Lewis must have suffered severe and pervasive harassment by reason of his religion. See Nichols v. Azteca Rest. Enters., 256 F.3d 864, 872 (9th Cir. 2001) (harassment must be on account of victim's religion); Aguilar, 87 Cal. Rptr. 2d at 139 (conduct must be pervasive, not isolated). A necessary predicate to proving a nexus with religion is that the employer knew of the claimant's religion. Friedman v. S. Cal. Permanente Med. Group, 125 Cal. Rptr. 2d 663, 666 (Cal.Ct.App. 2002).

  UPS, however, did not learn of this religious belief until after the threat to fire Lewis. UPS did not reiterate the threat after the meeting. The threat could not have been made on the basis of his religion. On its own, the Court has considered whether the Nuño declaration could be stretched to imply that Lewis informed UPS during the meeting of the religious nature of his hair length.*fn3 Even plaintiff's counsel, however, does not try to stretch the declaration that far. The reason seems clear. Lewis himself stated in his deposition that he did not remember having any conversation with any UPS manager in which he stated that he was growing his hair in order to be like Jesus. He stated that he never told UPS that he didn't want to cut his hair because of his religious beliefs.

  For these reasons, no reasonable jury could find on the summary-judgment record that Lewis suffered harassment on the basis of his religious practices. B. Retaliation.

  An employer cannot harass, discharge or otherwise discriminate against any person because the person has opposed any practices forbidden under Section 12940.

  After Lewis was threatened with termination if he did not cut his dreadlocks, he undertook actions that reasonably could be construed as opposing practices forbidden under FEHA, specifically disability, medical condition and religious discrimination. He filed a form with UPS requesting a religious accommodation that would allow him to continue wearing his hair long. He completed state administrative proceedings that led to a right-to-sue letter and the instant lawsuit. The question then is whether UPS retaliated against him for taking these actions. Lewis can point to no adverse UPS employment action that occurred after he took action to report UPS's allegedly unlawful actions. He has not been fired. UPS states it is willing to confer over the accommodation request if and when Lewis wishes to return to work. That he never received a response to his request for a religious accommodation is insufficient to constitute retaliation.


  Under FEHA, it is unlawful for an employer "to bar or to discharge" a person from employment, or to discriminate against a person in the "terms, conditions, or privileges of employment" because of his or her religious creed. Cal. Gov't Code § 12940(a). To establish religious-creed discrimination under FEHA, Lewis must show, among other things, that he had a bona fide religious belief and that the employer was aware of that belief. Friedman, 102 Cal. App. 4th at 45. Of course, he must still show that some adverse job action was taken against him. Cal. Gov't Code § 12940(a).

  The adverse job element is dispositive. The earlier insults have no bearing because they arose before anyone at UPS knew that Lewis wore dreadlocks for religious reasons. In Nunez, moreover, the Ninth Circuit stated that a mere threat of termination is not an adverse employment action. That decision came in the context of a First Amendment retaliation claim, in which a police officer claimed that he was threatened with termination because he had reported to authorities that his department was allowing inexperienced police officers to take the lieutenant's exam, in violation of official policy requiring all test-takers to have at least one year of supervisory experience. Nunez, 147 F.3d at 869-70, 874, 875. Although that decision came in the context of a First Amendment retaliation claim, this order finds Nunez controlling here. There is therefore insufficient evidence for any reasonable jury to find that Lewis suffered any adverse action by reason of his religion.

  Lewis cites two Ninth Circuit decisions that state that a plaintiff makes out a prima facie case of Title VII religious discrimination whenever (1) he had a bona fide religious belief, the practice of which conflicted with an employment duty; (2) he informed his employer of the belief and conflict; and (3) the employer threatened him with or subjected him to discriminatory treatment, including discharge, because of his inability to fulfill the job requirements. Heller v. EBB Auto Co., 8 F.3d 1433, 1438 (9th Cir. 1993) (emphasis added); Lawson v. Wash. State Patrol, 296 F.3d 799, 804 (9th Cir. 2002). These statements were dicta. Nunez controls here.*fn4

  Lewis next invokes Section 12940(l), which bars employers from discriminating against a person because of a conflict between his or her religious belief and an employment requirement, unless it has explored ways of accommodating the religious practice and is unable to reasonably accommodate those beliefs. This provision is distinct from Section 12940(a) because it makes unlawful adverse employment action taken not because of the employee's creed but rather because of a conflict between the creed and an employment requirement. Even if the employer takes an adverse action because of such a conflict, it can escape liability by showing that (1) it engaged in a good-faith attempt to reach an accommodation with the religious individual but (2) was unable to do so because the accommodation would cause undue hardship on the employer.

  The analysis of whether there was an adverse employment action is identical under this provision as under 12940(a), and so is the conclusion. Again, Nunez controls. Lewis suffered no more than a single threat of termination because of the conflict between his dreadlocks and UPS's employee-hair policy. Furthermore, UPS did not know Lewis had a religious basis for his hair length at the time he made the reprimand threat. UPS therefore could not have made the threat due to any conflict between Lewis's religious practices and a UPS work requirement. No reasonable jury could find that Lewis has a valid religious-accommodation claim.


  In order to prevail in a claim for intentional infliction of emotional distress, Lewis must prove that (1) UPS engaged in outrageous conduct directed at Lewis (2) while intending to cause him emotional distress, or while having a reckless disregard to the probability of causing him emotional distress, (3) that he suffered severe emotional distress, and (4) that UPS's tortious conduct had an actual and proximate causal link to the emotional distress. Nally v. Grace Community Church, 47 Cal. 3d 278 (1988); Potter v. Firestone Tire & Rubber Co., 6 Cal.4th 965 (1993). Conduct is extreme and outrageous when it exceeds all bounds of decency usually tolerated by society, and is especially calculated to cause, and does cause, mental distress. Molko v. Holy Spirit Ass'n, 46 Cal. 3d 1092 (1988).

  Lewis offers insufficient proof on this claim. Instead, his claim is couched in conclusory legal terms that merely tailor the elements of an intentional infliction of emotional distress claim to the specifics of this case.

  UPS suggests that Lewis cannot show enough "extreme and outrageous" conduct for a reasonable jury to find the company liable on this claim. The only conduct to which this claim can possibly refer is the threat to fire Lewis if he did not cut his hair, the alleged failure of UPS to explore religious accommodation for Lewis and the derogatory comments about Lewis's on-the-job capabilities. A threat to fire someone is unpleasant but not "extreme and outrageous." A mere failure to act on Lewis's request for accommodation is likewise too mild to support reasonably a finding for the plaintiff. The derogatory comments, while insulting, are not sufficiently coarse to fall outside the bounds of decent society. In addition, there is little support for the requisite element that Lewis suffered severe emotional distress. He states that he has seen a therapist a few times but such visits are common for non-severe emotional issues, as well as for a variety of non-emotional issues.

  Because there is no extreme and outrageous conduct, nor a genuine issue that Lewis suffered severe emotional distress, defendant must prevail.


  For the reasons stated above, defendant's motion for summary judgment is GRANTED with regard to all claims.



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