United States District Court, C.D. California
Attorneys Present for Plaintiffs: James Otto
Attorneys Present for Defendants: Anthony White John Conkle
Present: Honorable CHRISTINA A. SNYDER JUDGE
CIVIL MINUTES - GENERAL
DEFENDANT DHL GLOBAL FORWARDING'S MOTION FOR SUMMARY
JUDGMENT (Dkt. 38, filed February 6, 2017)
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.
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.
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
carefully considered the parties' arguments, the Court
finds and concludes as follows.
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.
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. It is undisputed that DHL knew plaintiff
had diabetes. Dkt. 42-1 ("DHL's Reply to Plaintiffs
SUF") at No. 14.
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.
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. 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.
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.
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. Id. ¶ 13.
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
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.
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. Carlos Depo. at
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.
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.
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
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. 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
Dkt. 39-2 Ex. 4.
claims that he was actually terminated because of his age,
his diabetes, and his repeated complaints about the lack of
appropriate lunch breaks.
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).
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
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
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
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.
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.
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.
Prima Facie Case
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 ...