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Navarro v. DHL Global Forwarding

United States District Court, C.D. California

March 6, 2017


          Attorneys Present for Plaintiffs: James Otto

          Attorneys Present for Defendants: Anthony White John Conkle

          Present: Honorable CHRISTINA A. SNYDER JUDGE


         Proceedings: DEFENDANT DHL GLOBAL FORWARDING'S MOTION FOR SUMMARY JUDGMENT (Dkt. 38, filed February 6, 2017)


         On April 10, 2015, plaintiff Salvador Navarro filed this action in Los Angeles County Superior Court against defendants DHL Global Forwarding ("DHL") and Does 1-50, inclusive. Dkt. 1-1 ("Compl."). DHL removed this case to this Court on July 21, 2015. Dkt. 1.

         Plaintiff alleges the following claims against defendants: (1) intentional infliction of emotional distress; (2) wrongful termination in violation of public policy; (3) unfair business practices, in violation of California's Unfair Competition Law ("UCL"), California Business and Professions Code §§ 17200 et seq.; (4) age discrimination in violation of California Government Code § 12940; (5) disability discrimination in violation of California Government Code §§ 12926 and 12940; (6) failure to reasonably accommodate plaintiffs disability in violation of California Government Code § 12940(m); (7) failure to engage in an interactive process to find a reasonable accommodation, in violation of California Government Code § 12940(n); (8) retaliation in violation of California Government Code § 12940(h); (9) failure to take all reasonable steps to prevent discrimination, in violation of California Government Code § 12940(k); (10) retaliation in violation of California Labor Code § 1102.5. The gravamen of plaintiffs complaint is that DHL improperly discriminated against plaintiff and terminated plaintiffs employment on the basis of plaintiff s disability and his age.

         On February 6, 2017, DHL filed a motion for summary judgment. Dkt. 38 ("Mot") Plaintiff filed his opposition on February 13, 2017, dkt. 39 ("Opp'n"), and DHL filed its reply on February 17, 2017, dkt. 42 ("Reply").

         Having carefully considered the parties' arguments, the Court finds and concludes as follows.


         Plaintiff is 53 years old and has diabetes. For 21 years he worked as a cargo handler and driver for DHL, but on July 19, 2013, plaintiff was fired. This suit stems from plaintiffs termination and DHL's alleged business practices leading up to plaintiffs termination. The parties largely dispute the material facts of the case.

         Plaintiff began working for DHL on November 12, 1992. Dkt. 39-2, Declaration of Salvador Navarro ("Navarro Decl.") ¶ 3. His diabetes requires that he regulate his blood sugar by ensuring that he periodically eats. Sometimes, when plaintiff is unable to eat during the day, he becomes lightheaded and must stop what he is doing and eat or drink something that will improve his blood sugar. KL Plaintiff offers evidence suggesting that he requested permission from supervisors at DHL to eat lunch at regular intervals and that he sometimes took breaks from work to tend to his diabetes symptoms. Navarro Decl. ¶¶ 5-6; Dkt. 39-2, Mark Harvey Deposition ("Harvey Depo.") at 31:20-32:1.[1] It is undisputed that DHL knew plaintiff had diabetes. Dkt. 42-1 ("DHL's Reply to Plaintiffs SUF") at No. 14.

         However, according to plaintiff, DHL "almost never" allowed him to take lunch during the workday. Navarro Decl. ¶ 6. Although DHL has a formal policy of permitting employee lunches during the workday, plaintiff claims that, in practice, those policies were ignored. Id. ¶¶ 6-7. Instead, plaintiff was forced to work without a lunch period at all "3 to 4 days a week, " icL¶ 9, and was not permitted to keep food in DHL trucks, id ¶ 10. On days where plaintiff missed lunch, plaintiff claims that he was "forced to sign a 'No Lunch Agreement' that purported to waive the lunch period, " after the fact. Id. ¶ 7. Evidently, during this litigation, DHL has produced "over 700 'No Lunch Agreement' forms" bearing plaintiffs name. Id. ¶ 9. Plaintiff claims that many of the forms bear forged signatures in his name, but that he signed others after being told he would be fired if he refused. Id. ¶¶6;9.

         In 2012, plaintiff was suspended without pay for five days after making an unplanned stop in a DHL truck to get food. DHL's policies prohibit any driver from deviating from his approved route while operating a DHL truck. Dkt. 38-1, DHL's Statement of Uncontroverted Facts ("DHL's SUF") no. 2; dkt 38-2, Ex. 5 ("DHL Warehouse Operations Manual") § 10.3.1. DHL's policies also require drivers to report any unscheduled events, including unplanned stops and route deviations, to the shift manager/supervisor immediately while en route. DHL Warehouse Operations Manual § 10.3.4. DHL asserts that plaintiff first violated these policies in August 2012, when plaintiff made an "unauthorized stop" at a food facility. Dkt. 38-2, Ex. 1 ("Unauthorized Stop Agreement") (agreement between Teamsters Local 986, Air Express International USA, Inc., and plaintiff, in which plaintiff agreed that (a) he had made an unauthorized stop at a food facility, (b) he would serve a five-day suspension without pay, and (c) any future violation of the authorized stop rule would result in immediate termination). Plaintiff acknowledged during his deposition that the union shop steward read the Unauthorized Stop Agreement to plaintiff and that he understood it. Dkt. 38-2, Navarro Depo. at 33:4-17. However, plaintiff contends that his unplanned stop in 2012 was compelled by his diabetes and low blood sugar.[2] Navarro Decl. ¶14. According to plaintiff, he stopped his truck in August 2012 because he felt it would be unsafe to proceed without eating something. Id.

         In addition to the foregoing food related employment conditions, plaintiff claims that he was harassed at work because of his age. Plaintiff offers evidence that DHL managers and employees called him demeaning names because he was "too old to be working at DHL." Id. ¶ 15. At an undetermined time, plaintiff claims that unidentified managers "attempted to force me to retire" because he was "too old to work for DHL." Id. ¶ 16. At some point, plaintiff asked supervisors to stop calling him "'Dinosaur, ' and to stop making offensive comments to me of a sexual nature related to my diabetes." Id. ¶18.

         Additionally, plaintiff claims that he was repeatedly forced to violate state hazardous material handling laws. Plaintiff does not have a license to transport hazardous materials. Ramos, a former employee who worked for DHL until 2010, claims to have seen Harvey and Galban, two DHL supervisors, instruct plaintiff to transport hazardous materials without the proper license. Ramos Decl. ¶ 12. Plaintiff objected to doing so, but Harvey and Galban told plaintiff he would be fired if he refused.[3] Id. ¶ 13.

         In July 2013, plaintiff worked as a cargo handler and driver for DHL at its Los Angeles International Airport (LAX) facility. See dkt. 39-1, Plaintiffs Response to DHL's Statement of Uncontroverted Facts ("Plaintiffs Response to DHL's SUF"), no. 1. It is undisputed that on the evening of July 18, 2013, plaintiff made an unplanned stop near LAX. The parties' accounts of the evening are quite different.

         Plaintiff offers the following account of events. Plaintiff recalls that he left the Los Angeles International Airport after completing all his pickups and deliveries at approximately 6:05 p.m. on July 18, 2013, drove for eight to ten minutes, and then stopped at the side of the road because he felt too lightheaded to continue. Id. Plaintiff ate a piece of bread and drank sugar water to adjust his blood sugar while also filling out certain paperwork for DHL. Id. The paperwork included a log of his deliveries that day as well as an inspection report regarding the DHL truck he was driving. Id. Ex. 3. The inspection report plaintiff completed while stopped appears to have noted an issue with a brake valve. Id. Plaintiff claims that it took "approximately 10 minutes" for him to begin feeling better. Id. ¶ 22.

         While plaintiff was stopped, two DHL employees claim to have been watching him from their own vehicle. DHL offers their account of events. On July 18, 2013, John Baitz, terminal manager for the LAX Facility, picked up Eugene Dugan, another DHL management employee, at the LAX facility to return to their hotel. Dkt. 38-2, Declaration of John Baitz ("Baitz Dec!.") ¶¶ 3-4; Declaration of Eugene Dugan ("Dugan Decl.") ¶ 2. Baitz drove to the hotel via the "back way" from the LAX Facility and, during this drive, Baitz and Dugan recall seeing a DHL truck parked behind a building in such a way that it was "shielded from traffic." Baitz Decl. ¶ 5; Dugan Decl. ¶ 3. As they approached the truck in their car, Baitz and Dugan saw plaintiff sitting behind the wheel of the parked DHL truck. IcL They claim, although it is disputed, that plaintiff was talking on his cell phone. Id. Baitz and Dugan claim to have watched plaintiff continue his phone conversation for several minutes. Id. Baitz then called the LAX Facility. Baitz Decl. ¶ 5. Juan Carlos, a supervisor, was walking through the LAX Facility dispatch office at the time and picked up the telephone. Dkt. 38-2, Juan Carlos Deposition ("Carlos Depo.") at 87:15-19. Baitz asked Carlos to call plaintiff and ask where plaintiff was located. Baitz Decl. *[ 5; Carlos Depo. at 86:13-16. Carlos, using his cell phone on the speaker setting, called plaintiff.[4] Carlos Depo. at 86:16-17.

         Carlos asked plaintiff what he was doing. Navarro Decl. ¶ 22. Plaintiff claims he told Carlos that he was "doing British paperwork." Id. Plaintiff claims that Carlos hung up the phone before plaintiff could mention feeling lightheaded and that Carlos did not pick up when plaintiff tried to call back. Id. Plaintiff claims to have told Baitz he was feeling ill and unsafe to drive. Id. ¶ 24. Baitz and Dugan remained on the phone on a landline and could hear the conversation between plaintiff and Carlos because Carlos's phone was on speaker. Baitz Decl. ¶ 6; Dugan Decl. ¶ 4.

         Baitz and Dugan claim the conversation was markedly different from plaintiffs account. According to them, when Carlos asked plaintiff where he was located, plaintiff responded that he was at British Airlines trying to fit a product in the truck. Carlos Depo. at 86:17-23. Carlos repeated the same question in English, and then asked plaintiff the same question in Spanish three or four times. Each time, plaintiff answered that he was at British Airlines. Carlos Depo. at 86:22-87:3. Baitz and Dugan heard plaintiff claim that he was at British Airlines. Baitz Decl. ¶ 6; Dugan Decl. ¶ 4. DHL asserts that plaintiff lied to Carlos because at the time plaintiff claimed he was at British Airlines, Baitz and Dugan were watching plaintiff as he was parked behind a building. Id.

         DHL suspended plaintiff that day. Baitz Decl. ¶ 7. On the following day, July 19, 2013, Baitz held a meeting with plaintiff and asked plaintiff to explain his conduct. Id; Dugan Decl. ¶ 5. Before the meeting, plaintiff spoke with his union shop steward Danny Bravo. Dkt 38-2, Deposition of Danny Bravo ("Bravo Depo.") at 9:1-7. In explaining his stop to Bravo, plaintiff made no mention of his own health, diabetes, or need for food. Id. at 42:7-14. Instead, plaintiff told Bravo that he pulled over to fill out his log. Id. 10:3-10. Baitz, Dugan, Bravo, and plaintiff then met to discuss what had occurred the day prior. Baitz and Dugan claim that, at the meeting, plaintiff told them he made the unauthorized stop because his truck was having mechanical problems. Baitz Decl. ¶ 7; Dugan Decl. ¶ 5. For his part, plaintiff claims that he "told DHL manager John Baitz that I was feel ill and unsafe to drive." Navarro Decl. ¶ 24. That fact appears to be disputed and plaintiff does not state when, relative to his termination, he purportedly spoke with Baitz about his illness.

         It is undisputed that Baitz made the decision to terminate plaintiff. The parties dispute exactly why. In support of DHL's motion, Baitz offered a declaration in which he claims to have terminated plaintiff because of the 2012 unauthorized stop; plaintiffs unauthorized stop on July 18, 2013; and plaintiffs repeated lies about where he was and what he was doing while his truck was stopped on July 18, 2013. Baitz Decl. ¶ 7. He claims "I did not consider Plaintiffs age or disability, including his diabetic condition, in my decision to terminate Plaintiff." Id. In support of DHL's reply, Baitz has offered a supplemental declaration.[5] Dkt. 42-3, John Baitz Supplemental Declaration ("Baitz Supp. Decl."). In his supplemental declaration, Baitz recants part of his initial declaration and clarifies that, at the time he decided to terminate plaintiff, he was unaware of plaintiff s prior unauthorized stop in 2012. Baitz Supp. Decl. ¶ 4. Baitz further clarifies that, when he decided to terminate plaintiff, he was unaware of plaintiff s age and was unaware that plaintiff had diabetes. Id. ¶ 3. Plaintiff offers evidence, evidently an email exchange between Baitz and other DHL staff about Navarro's termination, in which Baitz wrote to Rhonda Wallace:

[Dugan] and I witnessed Mr. Navarro sitting in his truck talking on his cell phone for over 15 minutes. I had Juan contact via Radio to update his status and he advised 'at BA getting the missing cargo', completely false
I want to terminate him for lying to supervisor and theft of time.

Dkt. 39-2 Ex. 4.

         Plaintiff claims that he was actually terminated because of his age, his diabetes, and his repeated complaints about the lack of appropriate lunch breaks.


         Summary judgment is appropriate where "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The moving party bears the initial burden of identifying relevant portions of the record that demonstrate the absence of a fact or facts necessary for one or more essential elements of each claim upon which the moving party seeks judgment. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

         If the moving party meets its initial burden, the opposing party must then set out specific facts showing a genuine issue for trial in order to defeat the motion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); see also Fed.R.Civ.P. 56(c), (e). The nonmoving party must not simply rely on the pleadings and must do more than make "conclusory allegations [in] an affidavit." Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888 (1990); see also Celotex, 477 U.S. at 324. Summary judgment must be granted for the moving party if the nonmoving party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id. at 322; see also Abromson v. Am. Pac. Corp., 114 F.3d 898, 902 (9th Cir. 1997).

         In light of the facts presented by the nonmoving party, along with any undisputed facts, the Court must decide whether the moving party is entitled to judgment as a matter of law. See T.W. Elec. Sen., Inc. v. Pac. Elec. Contractors Ass'n. 809 F.2d 626, 631 & n.3 (9th Cir. 1987). When deciding a motion for summary judgment, "the inferences to be drawn from the underlying facts ... must be viewed in the light most favorable to the party opposing the motion." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation omitted); Valley Nat'l Bank of Ariz, v. A.E. Rouse & Co.. 121 F.3d 1332, 1335 (9th Cir. 1997). Summary judgment for the moving party is proper when a rational trier of fact would not be able to find for the nonmoving party on the claims at issue. See Matsushita, 475 U.S. at 587.


         A. Disability Discrimination

         The California Fair Employment and Housing Act ("FEHA") prohibits employers from discharging an employee "because of that employee's physical disability. Cal. Gov't Code § 12940(a). California's FEHA is to be "construed liberally, " Cal. Gov't Code § 12993(a), in order to "protect and safeguard the right and opportunity of all persons to seek, obtain, and hold employment without discrimination or abridgement, " Cal. Gov't Code § 12920. See also Robinson v. Fair Employment & Hous. Com., 825 P.2d 767, 770 (1992) (discussing the broad purposes and construction of the FEHA).

         It is undisputed that DHL was aware of plaintiff s diabetes and that plaintiffs diabetes qualifies as a disability contemplated by the FEHA. Defendant argues that it is entitled to summary judgment with respect to plaintiffs disability discrimination claim because, according to DHL, Baitz terminated plaintiff for misconduct, namely, plaintiffs unauthorized stop on July 18, 2013, and plaintiffs alleged misrepresentations about his location at the time. Defendant argues that DHL has a neutral policy regarding vehicle stops by its drivers. Said policy states, "Any unscheduled events (like unplanned stops . . .) MUST be reported back to the shift manager/supervisor immediately while en route." Dkt. 38-2 Ex. 5. According to DHL, plaintiff violated said policy on July 18, 2013, by making an unplanned stop and failing to report it to his supervisor. Additionally, DHL contends that, when Carlos called plaintiff, plaintiff lied about his whereabouts.

         Plaintiff argues that he was forced to make an unplanned stop on July 18, 2013, because of a blood sugar imbalance caused by his diabetes. According to plaintiff, because his stop was caused by his disability, his resulting termination constitutes disability discrimination. Plaintiff argues that conduct resulting from his disability cannot provide a valid basis for his termination and that any other purported reasons for his dismissal are pretextual.

         In evaluating claims for disability discrimination, California has adopted the three-stage burden shifting framework set forth in McDonnell Douglas v. Green, 411 U.S. 792 (1973). Guz v. Bechtel Nat'l, Inc., 24 Cal.4th 317, 354 (2000). Once the plaintiff has made a prima facie showing of employment discrimination, "the burden then shifts to the employer to offer a legitimate, nondiscriminatory reason for the adverse employment action." Deschene v. Pinole Point Steel Co., 90 Cal.Rptr.2d 15, 23 (1999) as modified (Nov. 29, 1999). If the employer offers such a reason, "plaintiff must offer evidence that the employer's stated reason is either false or pretextual, or evidence that the employer acted with discriminatory animus, or evidence of each which would permit a reasonable trier of fact to conclude the employer intentionally discriminated." Id.

         1. Prima Facie Case

         To establish a prima facie case of disability discrimination under the FEHA, a plaintiff must show (1) he suffered from a disability, (2) he could perform the essential duties of his job with or without reasonable accommodation, and (3) he was subjected to adverse employment action because of his disability. Mclnteer v. Ashley Distrib. Servs., Ltd., 2014 WL 4105262, at *8 (C.D.Cal. Aug. 19, 2014) (citing Sandell v. Tavlor-Lustig,Inc.. 188 Cal.App.4th 297, 310, 115 Cal.Rptr.3d 453 (2010)). The third component is at issue here. "Numerous courts note that '[t]he prima facie burden is light; the evidence necessary to sustain the burden is minimal.'" Id. at *9 (quoting Sandell, 188 Cal.App.4th at 310). On summary judgment, plaintiffs initial burden does not "rise to the level of a preponderance of the evidence." Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir. 1994), as amended on denial of reh'g (July 14, 1994). To demonstrate a prima facie case, plaintiff is required to produce "very little" evidence." Id. Furthermore, to show that plaintiff was subjected to an adverse action because of his disability, plaintiff may ...

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