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
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT IN FAVOR OF DEFENDANT
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
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
1. FIRST CLAIM: DISABILITY DISCRIMINATION.
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
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
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.
2. SECOND CLAIM: HARASSMENT AND RETALIATION.
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.
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
3. THIRD CLAIM: RELIGIOUS DISCRIMINATION.
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
4. FOURTH CLAIM: INTENTIONAL INFLICTION OF EMOTIONAL
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
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.
IT IS SO ORDERED.
© 1992-2005 VersusLaw Inc.