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English v. Estes Express Lines

United States District Court, C.D. California

November 21, 2017


          Attorneys Present for Plaintiffs: Attorneys Present for Defendants:

          Present: The Honorable CHRISTINA A. SNYDER


         Proceedings: DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (Dkt. 26, filed June 27, 2017).


         On May 23, 2016, plaintiff Erroll English filed the complaint in this suit against defendants Estes Express Lines, Estes Terminals of California LLC, Estes West, and Does 1 to 20 in San Bernardino County Superior Court.[1] Dkt. 1 (“Compl.”). The complaint asserts the following claims against defendants: (1) wrongful termination in violation of California public policy; (2) wrongful termination in violation of the Fair Employment and Housing Act (“FEHA”), Cal. Gov't Code § 12940 et seq.; (3) retaliation in violation of FEHA and the Family and Medical Leave Act (“FMLA”), 29 C.F.R. § 825.100 et seq.; (4) hostile work environment; (5) disability discrimination in violation of FEHA; (6) discrimination on the basis of FMLA leave; (7) age discrimination in violation of FEHA; and (8) race discrimination in violation of FEHA. Id. On June 22, 2016, Estes filed an answer. Dkt. 1. On June 23, 2016, Estes filed a notice of removal asserting federal question jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1441. Dkt. 1.

         On July 27, 2017, Estes filed the instant motion for summary judgment. Dkt. 26 (“MSJ”). Plaintiff filed his opposition on August 22, 2017, dkt. 55 (“Opp'n), and Estes filed its reply on August 28, 2017, dkt. 66 (“Reply”).[2]

         On September 1, 2017, the Court ordered supplemental briefing on the issue of whether equitable tolling applied to plaintiff's FEHA-based claims. Dkt. 71. In response, plaintiff filed a supplemental brief on September 8, 2017, dkt. 75, and submitted four supplemental declarations, dkts. 76-79. Estes filed its supplemental brief on September 15, 2017, dkt. 85, and submitted one supplemental declaration, dkt. 86, along with evidentiary objections, dkt. 87.

         On September 19, 2017, the Court re-opened discovery to allow the taking of the depositions of plaintiff and Brenda Grant regarding plaintiff's submission of the verified DFEH complaint, and the Court continued Estes' hearing on the motion for summary judgment to November 6, 2017. Dkt. 91. On October 19, 2017, the Court ordered additional supplemental briefing on the issue of equitable tolling with respect to plaintiff's FEHA-based claims. Dkt. 96. On September 27, 2017, Estes filed its second supplemental brief, dkt. 97, and on November 1, 2017, plaintiff filed his second supplemental brief, dkt. 98.

         On November 6, 2017, the Court held oral argument. Having carefully considered the parties' arguments, the Court finds and concludes as follows.


         The following facts are not meaningfully disputed and are set forth for purposes of background. Unless otherwise noted, the court references only facts that are uncontroverted and as to which evidentiary objections have been overruled.[3]

         Estes Express Lines and Estes West are in the freight transportation business. Dkt. 31, Declaration of Tracy Hughes (“Hughes Decl.”) ¶ 5. Defendants contend that Estes West is wholly owned by Estes Express Lines, though plaintiff disputes this contention. Dkt. 28, Defendants' Statement of Uncontroverted Facts and Conclusions of Law (“DSUF”) at no. 2; dkt. 57, Plaintiff's Response to DSUF at no. 2; Hughes Decl. ¶ 2. Estes West operates out of terminals located throughout the western United States, including a terminal in Fontana, California (the “Riverside terminal”). DSUF at no. 3; Hughes Decl. ¶ 5. Estes West's Riverside terminal moves hundreds of thousands of pounds of freight each day through the terminal.[4] DSUF at no. 4; Dkt. 30, Declaration of Fernando Alvarez (“Alvarez Decl.”) ¶ 2.

         Though the parties dispute whether plaintiff was employed by Estes Terminals of California LLC or by Estes Express Lines, it is undisputed that plaintiff was at all times an employee of Estes West. DSUF at no. 32; Hughes Decl. ¶ 4; dkt. 54, Declaration of Erroll English (“English Decl.”) ¶ 2. Plaintiff is an African American man who worked at Estes West[5] as a dock supervisor, and had been employed there since March 1991. DSUF at no. 3; Hughes Decl. ¶ 5; English Decl. ¶ 2. Plaintiff was a salaried employee.[6]Dkt. 68, Plaintiff's Statement of Uncontroverted Facts (“PSUF”) at no. 59; Alvarez Deposition at 155:21-24.

         A. Plaintiff's Working Environment at Estes from 1991 to 2014

         During the early 1990's plaintiff was assigned to a shift at Estes West called the “Aryan Brotherhood” in which most of the dockworkers and the supervisor were Caucasian. PSUF at no. 67; Dkt. 70, English Deposition (“English Dep.”) at 49:16-25, 50:1-24. A new terminal manager ended this practice in the early 1990's. English Dep. at 137:13-25. In the early 2000's, plaintiff was harassed by a coworker who addressed him with racial slurs and spit on him. PSUF at no. 68; English Dep. at 48:17-25; 49:1- 12; 51:3-5; 223:1-20; 224:1-10. Estes West took witness statements and terminated the coworker. English Dep. at 49:5-12; 51:3-5. Prior to May 2010, a dockworker found graffiti of swastikas, racial slurs, and terrorist threats in the bathroom of the Riverside terminal, and terminal manager Mark Brown “rectified” these markings. English Dep. at 75:23-25; 76:1-23; 76:24-77:25; 78:2-11; 78:16-19. Beginning on or around September 2013, plaintiff heard “Popeye's chicken” after each time he made a call on the radio, and these derogatory remarks continued until his employment was terminated in January 2014. English Dep. at 88:18-25; 89:8-10; 225:21-228:11. Plaintiff did not report these remarks to management. English Dep. at 229:22-25.

         Around 2012, during an Estes West human resources training session, regional human resources manager Paula Hoch asked plaintiff to stand up and pointed out that plaintiff was in a protected category due to his age and race. English Dep. at 187:8-9; 188:1-9; 189:5-12. During another interaction with Hoch, plaintiff inquired as to whether a position had been filled, and Hoch responded that they had been filled while walking at a fast pace. English Dep. at 196:18-25. Hoch also failed to return plaintiff's calls. English Dep. at 197:1-10.

         During plaintiff's first encounter with terminal manager Mike Jordan, Jordan swore at plaintiff and called plaintiff a “boy.” English Dep. at 67:13-25; 69:21-70:15; 236:14-17. Under terminal manager Brown's supervision, plaintiff received a document that contained a racial slur directed at President Obama, with a “black man's necktie and [] a noose on it.” English Dep. at 78:18-80:21. While at Estes West plaintiff heard “anti-Obama” remarks that were “political” in nature. English Dep. at 80:7-19.

         B. Plaintiff's Absences and Subsequent Termination

         On January 10, 2014, plaintiff did not report to work. DSUF at no. 7; Alvarez Decl. ¶ 11. Plaintiff texted his supervisor, operations manager Brian Parsons, to notify him that he was “[n]ot feeling well, not coming in, ” which Parsons reported to Alvarez, the assistant terminal manager. DSUF at no. 8; English Decl. ¶ 4 & Ex. 1; Alvarez Decl. ¶ 12.; English Dep. at 278:7-12. Alvarez attests that he instructed Parsons to notify plaintiff that he needed to call his supervisor to discuss his absence, though the parties dispute whether Parsons actually contacted plaintiff. Alvarez Decl. ¶ 13; English Dep. at 278:1-17.

         January 12, 2014 was plaintiff's next scheduled work day. DSUF at no. 12; Alvarez Decl. ¶ 14. Plaintiff again texted Parsons, “[n]ot feeling well, not coming in, ” which Parsons reported to Alvarez. DSUF at no. 13; English Decl. ¶ 5 & Ex. 1; Alvarez Decl. ¶ 14. Plaintiff did not report to work on January 12, 2014. DSUF at no. 14; Alvarez Decl. ¶ 14; English Dep. at 284:17-23.

         On January 13, 2014, Alvarez called plaintiff and left plaintiff a voicemail notifying plaintiff that he needed to contact Alvarez at the terminal or on his cell phone, and that if he was going to be out a third day, he would need to produce a doctor's note.[7]DSUF at no. 16; Alvarez Decl. ¶ 15. Plaintiff texted Parsons, “[n]ot feeling well, not coming in.” English Decl. ¶ 6 & Ex. 2. Plaintiff did not report to work on January 13, 2014. English Dep. at 287:1-4.

         Plaintiff was scheduled to work on January 14, 2014. DSUF at no. 20; Alvarez Decl. ¶ 17; English Dep. at 287:17-21. At approximately 7:48 in the morning on January 14, 2014, Alvarez texted plaintiff the following message: “Erroll, Brian and I have tried reaching out to you and have left voicemails to call in. Please call me this morning on my cell phone.” DSUF at no. 22; Alvarez Decl. ¶ 17; Plaintiff's Response to DSUF at no. 22. Plaintiff texted Parsons “[n]ot feeling well, not coming in, ” and plaintiff did not report to work on this date. DSUF at no. 21; English Decl. ¶ 9 & Ex. 2; Alvarez Decl. ¶ 17. On January 14, 2014, Alvarez contacted the human resources manager, Paula Hoch, in regards to plaintiff's absences. DSUF at no. 23; Alvarez Dec. ¶ 18.

         On January 14, 2014, Alvarez left plaintiff a voicemail in which he stated that Alvarez had attempted to contact plaintiff by phone on Monday, January 13, 2014, and again by text the following morning, and notified plaintiff that plaintiff must “call in” because texting his inability to make it to work was not acceptable and against company policy. DSUF at no. 24; Alvarez Decl. ¶ 19. The parties dispute whether plaintiff actually contacted Alvarez in response to this January 14, 2014 phone call. Later on January 14, 2014, Alvarez placed a second phone call to plaintiff and left a voicemail notifying him that he was being placed on immediate suspension and would be contacted regarding the outcome of the investigation. DSUF at no. 26; Alvarez Decl. ¶ 20. On January 14, 2014, plaintiff visited the Medical Clinic of Redlands. PSUF at no. 57; English Decl. ¶ 8.

         The decision was made to terminate plaintiff from his employment at Estes West on January 14, 2014. DSUF at no. 27; Alvarez Decl. ¶ 21; Hughes Decl. ¶ 30. The parties dispute the reasons for this decision.[8] On January 15, 2014, plaintiff faxed Estes West a medical note from the Medical Clinic of Redlands that indicated that plaintiff should be excused from work from January 14, 2014 to January 20, 2014, but also indicated that plaintiff could “return to work[] with no limitations.”[9] PSUF at no. 48; English Decl. & Ex. 5; dkt. 68, Defendants' Response to PSUF at no. 48. On January 15, 2014, Alvarez informed plaintiff that plaintiff was terminated. DSUF at no. 28; Alvarez Decl. ¶ 21; English Decl. ¶ 12. Plaintiff was 51 years old when his employment was terminated, and his replacement was 41 years old. Hughes Decl. ¶ 27.

         Estes West's attendance policy for salaried employees provides the following:

An employee must personally notify their appropriate or designated manager at least two hours in advance of his/her scheduled start time, or as instructed by the supervisor, if he/she expects to be late or absent. This policy applies for each day of the absence. The manager will have the discretion to amend the call in procedures from daily to weekly depending upon the seriousness of and length of expected absence. The employee is expected to explain the reason for the absence and indicate the date he/she will return to work.
At the manager's discretion, any employee who calls in sick can be required to obtain medical verification of the reason for absence. However, an employee absent more than three workdays in a row must provide a note from a health care physician certifying that the employee was unable to work for health reasons.

         Hughes Decl. & Ex. 2 (emphasis in original). The parties dispute whether the personal notification requirement in the attendance policy requires a telephone call to a supervisor, or whether the policy permits other forms of personal notification. DSUF at no. 6; Plaintiff's Response to DSUF at no. 6. In addition, the “Attendance, Punctuality and Dependability Policy - Hourly Employees” provides that “[n]ot reporting to work and not calling to report the absence in accordance with the call-in procedure is a no call/no show and is a serious matter. The first instance of a no call/no show will result in a final written warning. The second is considered job abandonment and will result in termination of employment.” Hughes Decl. & Ex. 1. The parties dispute whether this policy and procedure applies to plaintiff, a salaried employee.

         Estes West has an EEO/Harassment in the Workplace Policy, issued on January 8, 1998, and revised on October 25, 2013, that strictly prohibits discrimination based on age, race, disability, and other legally protected characteristics. DSUF at no. 34; Hughes Decl. ¶ 15 & Ex. 5. This Workplace Policy states that “[t]here will be no retaliation … based on the making of a complaint or reporting discrimination or harassment.” DSUF at no. 35; Hughes Decl. & Ex. 5. Estes West also has a reasonable accommodation policy, issued on February 4, 2011, and revised on June 30, 2013, which provides a process for requesting reasonable accommodation for disabilities. DSUF at no. 37; Hughes Decl. ¶ 20 & Ex. 7. The parties dispute whether plaintiff requested an accommodation in accordance with the process provided for in the reasonable accommodation policy. Estes West has a Family and Medical Leave Act Policy, issued September 1, 1997, and revised on November 4, 2009. DSUF at no. 39; Hughes Decl. ¶ 8.

         C. Plaintiff's Administrative Remedies and Filing of the Instant Action

         Plaintiff filed a pre-complaint inquiry with the Department of Fair Employment and Housing (“DFEH”) on January 13, 2015.[10] PSUF at no. 24; dkt. 58, Declaration of Jackie Kruger (“Kruger Decl.”) ¶ 31 & Ex. 10. On March 11, 2015, plaintiff-through an attorney-filed the verified administrative complaint with the DFEH, alleging that his termination from Estes West violated FEHA. PSUF at no. 22; DSUF at no. 30; Kruger Decl. ¶ 31 & Ex. 15. Plaintiff also asserted that he was “subjected to [d]iscrimination, [and] [r]etaliation, ” and denied leave under the California Family Rights Act (“CFRA”). PSUF at no. 32; Kruger Decl. ¶ 34 & Ex. 15.

         The DFEH stated in a July 2, 2015 letter to defendants' counsel that plaintiff “contacted the DFEH on January 13, 2015 and [] filed a Pre-Complaint Inquiry.” PSUF at no. 9; Kruger Decl. ¶ 12, 13 & Ex. 4. The DFEH also stated that plaintiff “was within the one year Statute to file a Complaint. Although his Complaint is dated March 11, 2015, we are pursuing the investigation based [on] the case below.” PSUF at no. 7; Kruger Decl. & Ex. 4.

         Plaintiff was issued his right-to-sue notice on March 3, 2016. PSUF at no. 34; Kruger Decl. ¶ 38 & Ex. 14. On or about May 23, 2016, plaintiff filed the instant age, race, and disability discrimination and wrongful termination lawsuit against Estes. DSUF at no. 33; PSUF at no. 34; dkt. 1-1 at 1.


         A. Summary Judgment

         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. Serv., 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.

         IV. ANALYSIS

         A. Timeliness of Plaintiff's Claims

         1. Whether Plaintiff's FEHA-Based Claims are Time-Barred

         Estes argues that plaintiff's second, third, fourth, fifth, sixth, seventh, and eighth claims-all premised on FEHA-are untimely because plaintiff filed his DFEH complaint on March 11, 2015, more than one year after plaintiff's January 15, 2014 date of termination.[11] MSJ at 5. Plaintiff contends that the DFEH specifically concluded that plaintiff's complaint was timely, ...

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