United States District Court, C.D. California
Attorneys Present for Plaintiffs: Attorneys Present for
Present: The Honorable CHRISTINA A. SNYDER
CIVIL MINUTES - GENERAL
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (Dkt. 26, filed
June 27, 2017).
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. 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.
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
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.
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.
November 6, 2017, the Court held oral argument. Having
carefully considered the parties' arguments, the Court
finds and concludes as follows.
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
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. DSUF at no. 4;
Dkt. 30, Declaration of Fernando Alvarez (“Alvarez
Decl.”) ¶ 2.
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 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.Dkt. 68, Plaintiff's Statement of
Uncontroverted Facts (“PSUF”) at no. 59; Alvarez
Deposition at 155:21-24.
Plaintiff's Working Environment at Estes from 1991 to
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.
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.
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.
Plaintiff's Absences and Subsequent Termination
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.
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.
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.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.
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. ¶
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.
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. 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.” 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.
West's attendance policy for salaried employees provides
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.
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.
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.
Plaintiff's Administrative Remedies and Filing of the
filed a pre-complaint inquiry with the Department of Fair
Employment and Housing (“DFEH”) on January 13,
2015. 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.
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.
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.
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. 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
Timeliness of Plaintiff's Claims
Whether Plaintiff's FEHA-Based Claims are
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. MSJ at 5. Plaintiff contends
that the DFEH specifically concluded that plaintiff's
complaint was timely, ...