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Cezar Carvajal v. Pride Industries

April 22, 2013


The opinion of the court was delivered by: Hon. Gonzalo P. Curiel United States District Judge


Before the Court is Defendant Pride Industries' motion for summary judgment, or in the alternative, partial summary judgment. Plaintiff opposed and Defendant replied. Based on the briefs, supporting documents, and the applicable law, the Court GRANTS in part and DENIES in part Defendant's motion for summary judgment.


On November 9, 2010, Plaintiff, proceeding pro se at the time, filed a complaint alleging "Discrimination, Retaliation, Falure (sic) to Acomidate (sic) under Title - 7 (See Attached)" along with a motion to proceed in forma paueris. (Dkt. No. 1.) The Court granted Plaintiff's motion for leave to proceed in forma pauperis but sua sponte dismissed the complaint without prejudice for failing to state a claim. (Dkt. No. 4.) On January 31, 2011, Plaintiff's attorney filed a notice of appearance. (Dkt. No. 10.) With new counsel, Plaintiff filed a second amended complaint alleging numerous causes of action based on his alleged wrongful termination from Defendant Pride Industries on July 3, 2008. (Dkt. No. 14.) Plaintiff alleges nine causes of action:

1) First Cause of Action - Violation of Title I of the Americans with Disabilities Act of 1990 ("ADA");

2) Second Cause of Action - Violation of Title VII of the Civil Rights Act of 1964 ("Title VII");

3) Third Cause of Action - Race Discrimination in Violation of California Government Code section 12900, et seq.;

4) Fourth Cause of Action - Wrongful Termination in Violation of Public Policy;

5) Fifth Cause of Action - Breach of Contract;

6) Sixth Cause of Action - Breach of Implied Covenant of Good Faith and Fair Dealing;

7) Seventh Cause of Action - Negligence;

8) Eighth Cause of Action - Defamation/Slander Per Se; and

9) Ninth Cause of Action - Intentional Infliction of Emotional Distress. Defendant moves for summary judgment on all causes of action, or alternatively, partial summary judgment. (Dkt. No. 32.) Plaintiff filed an opposition on December 21, 2013. (Dkt. Nos. 34, 35.) Defendant filed a reply on January 11, 2013. (Dkt. No. 37.)

Factual Background

Defendant Pride Industries, Inc. is a non-profit organization whose mission is to create jobs for people with disabilities. (Dkt. No. 32-5, Oliveira Decl. ¶ 2.) It operates a shipboard provisioning contract in San Diego with the Navy under the federal AbilityOne program which requires that most of the work be done by employees with disabilities. (Id. ¶ 2.) Plaintiff began working at Pride as an on-call laborer at its AbilityOne Shipboard Provisioning contract in San Diego from September 7, 2004 through July 2, 2008. (Dkt. No. 35, Pl's Response to D's Separate Statement of Uncontroverted Facts at 4.)

At this point, the facts diverge. According to Plaintiff, he claims he was ultimately terminated because he brought forth complaints about sexual harassment, abuse to disabled employees, not being allowed meal breaks or lunch breaks, being required to fake a mental disability in order to keep his job, Defendant failing to accommodate his disability, discrimination and being harassed and retaliated against for disclosing illegal conduct on the job. (Dkt. No. 35-23, Carvajal Decl. ¶ 3.) He was retaliated against, discriminated against, and ultimately terminated because he refused to provide a mental disability and he educated disabled employees about their rights. (Id. ¶ 6.) He also states the he was discriminated against because he was Latino because his supervisor, Gregory Pomrenke, would pick non-Latinos instead of available Latinos to work. (Id. ¶10.) He states that he joked around with John Mears, a fellow employee, on the job and outside of work. (Id.) Supervisors would joke around and call people names. (Id.) Pomrenke joked around all the time but his jokes were malicious while Plaintiff's and John's jokes were friendly. (Id. ¶ 8.)

Plaintiff was not hired as a disabled employee. (Id. ¶ 2.) Plaintiff alleges that Defendant mistreated mentally disabled employees. (Id. ¶ 12.) Pride would place mentally disabled employees in freezers for long periods of time without proper jackets; it would not allow employees to use the restroom and they would wet their pants; and it would not pay mentally disabled individuals for all the time they worked. (Id.) When Plaintiff raised these issues to Pomrenke, he was told to mind his own business. (Id. ¶ 14.)

Pomrenke also told Plaintiff he had to see Defendant's doctors so he could come up with a mental disability. (Id. ¶ 17.) Plaintiff told him that he did not have a mental disability and he would not fake a disability because it was illegal. (Id.) When Plaintiff mentioned his knee disability, Pomrenke said a knee disability would not suffice and forced him to find a mental disability. (Id.) Plaintiff states that employees were being sent to the office to be coached on how to respond to questions so that employees would be given a mental disability. (Id.) When Plaintiff asked for paperwork so that he could go to "California Disability" and get advise, Pomrenke did not like that. (Id.) As a result, Plaintiff received less work, was physically harassed and abused. (Id.) In early 2008, Pomrenke asked again if Plaintiff would go to the office and help them write up a mental disability. (Id.) After he refused to give a mental disability, Pomrenke turned people against Plaintiff and said Plaintiff was a "queer" and went to the gay pride parade. (Id.) He then began receiving warnings and writeups. (Id.) Before late 2007 and early 2008, he never received any writeups. (Id.)

On July 1, 2008, Plaintiff and other employees were going onto a ship and carried some medicine in his hand. (Id. ¶32.) Patrick Garvey, a work lead, said that Plaintiff could not have the medicine in his hand. (Id.) Plaintiff put the medicine in his pocket but Garvey said he had to put it in the van. (Id.) When Plaintiff told Garvey he needed the medicine for his knee and to stop harassing him. (Id.) Garvey told him to leave for insubordination. (Id.) This was before he had used profanities. (Id.) Plaintiff asked for a ride back so he could complain to the office but Garvey said he had to walk back. (Id.) Then Plaintiff said "F-- you, leave me alone." (Id.) He states that there were many instances when they were told to walk home from North Island which is about a two and a half mile walk. (Id.)

Plaintiff states that Garvey incorrectly stated that Plaintiff said "F-- you and I won't do it" not, "F-- you, leave me alone." (Id. ¶ 33.) On July 1, 2008, Pomrenke told him he was suspended for three days pending an investigation. (Id. ¶ 34.) Pomrenke told Plaintiff to be at his office at 3 p.m. on Friday. (Id.) On Friday, he came in but Pomrenke was not there and was told by Isa, that he had been terminated and gave him his paycheck. (Id.)

According to Defendant, Pride's managers, including Gregory Pomrenke, are trained on disability awareness and are expected to work closely with the counselors to ensure any necessary accommodations for its disabled employees are provided. (Dkt. No. 32-5, Oliveira Decl. ¶ 3.) Greg Pomrenke was Plaintiff's manager. (Dkt. No. 32-6, Pomrenke Decl. ¶ 1.) Plaintiff's work was predominantly on naval ships at the Naval Base San Diego. (Id. ¶ 2.) While employed, Pomrenke received a few complaints from some of his co-workers regarding comments Plaintiff made such as making "gay comments", calling other employees "queers" and pointing at miscellaneous objects and people and calling them "gay." (Id. ¶ 3.) He stated that he asked Plaintiff if he had a disability but never demanded that he make up a disability. (Id. ¶ 4.) After Plaintiff informed him about his knee injury, he was no longer required to work on ladders and if he had difficulty walking, he was allowed to work on less physically demanding tasks. (Id. ¶ 5.)

Patrick Garvey is a work lead for Defendant. (Dkt. No. 32-4, Garvey Decl. ¶ 1.) On July 1, 2008, Garvey was the work lead of a crew of laborers, including Plaintiff, that were to load three pallets of food onto a naval ship named the "Lake Champlain." (Id. ¶ 3.) Garvey drove the crew of laborers to the location in a company van. (Id.) The job was expected to take an hour or less so he told everyone to leave their bags in the van. (Id.) Plaintiff tried to get on the ship holding his white plastic bag. (Id.) Garvey told Plaintiff that he could not take the bag on board and that he needed to leave it in the van. (Id.) In response, Plaintiff said "F - you." (Id.)

Garvey then called his supervisor, Adam Noble, to explain the situation. (Id. ¶ 4.) Noble said to tell Plaintiff to leave his bag in the van or go home. (Id.) Garvey told Plaintiff this and Plaintiff again said "F-- you." (Id.) When he called Noble again, Noble told him to send Plaintiff to see Pomrenke. (Id.) Pomrenke suspended Plaintiff pending investigation and after speaking with Mr. Garvey, he terminated Plaintiff effective July 2, 2008 for insubordination. (Dkt. No. 32-6, Pomrenke Decl. ¶ 8.)

A. Legal Standard for Motion for Summary Judgment

Federal Rule of Civil Procedure 56 empowers the Court to enter summary judgment on factually unsupported claims or defenses, and thereby "secure the just, speedy and inexpensive determination of every action." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 327 (1986). Summary judgment is appropriate if the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). A fact is material when it affects the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

The moving party bears the initial burden of demonstrating the absence of any genuine issues of material fact. Celotex Corp., 477 U.S. at 323. The moving party can satisfy this burden by demonstrating that the nonmoving party failed to make a showing sufficient to establish an element of his or her claim on which that party will bear the burden of proof at trial. Id. at 322-23. If the moving party fails to bear the initial burden, summary judgment must be denied ...

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