Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Fulfer v. Winco Holdings, Inc.

United States District Court, E.D. California

October 24, 2019

BRADLEY FULFER, Plaintiff,
v.
WINCO HOLDINGS, INC., Defendant.

          ORDER ON SUMMARY JUDGMENT

          Troy L. Nuniey, United States District Judge.

         This matter is before the Court on the motion for summary judgment filed by Defendant WinCo Holdings, Inc. (hereafter, “Defendant”). (ECF No. 30.) Plaintiff Bradley Fulfer (hereafter, “Plaintiff”) filed an opposition. (ECF No. 43.) Plaintiff included with his reply papers numerous objections to the evidence cited in Defendant's summary judgment motion. (See, e.g., ECF No. 43-7; ECF No. 43-8.) Defendant filed a reply to Plaintiff's opposition. (ECF No. 46.) Along with that reply, Defendant filed its own evidentiary objections to Plaintiff's declaration (ECF No. 46-3), as well as responses to Plaintiff's evidentiary objections raised regarding Defendant's evidence (see, e.g., ECF No. 46-5; ECF No. 46-6).

         The Court has carefully considered this case and reviewed all the materials provided by the parties. For the reasons set forth below, the Court GRANTS in part and DENIES in part Defendant's motion for summary judgment (ECF No. 30).

         I. Factual and Procedural Background

         A. Factual Background

         Unless otherwise indicated, the following facts are either explicitly or effectively undisputed by the parties.

         i. General Background and Employment Agreements

         Defendant is an employee-owned supermarket with various locations, including one in Modesto, California. (ECF No. 30-3 ¶ 3.) Plaintiff began working at Defendant's Modesto location as a part-time freight stocker in 2011. (ECF No. 46-1 ¶ 3.) At all relevant times, Defendant's attendance policy applied to Plaintiff's employment. (ECF No. 46-1 ¶¶ 49-50.) That policy stated that Defendant's employees could be disciplined, up to and including termination, in accordance with a system of progressive discipline. (ECF No. 46-1 ¶ 51.) The exact nature of the progressive discipline that could be imposed in any given employee's situation was set forth in an agreement between Defendant and the bargaining unit known as WinCo Foods #21 Hourly Employee Association, which was titled “Hourly Employee Working Conditions & Wage Agreement.” (ECF No. 30-3 at 11.) At all relevant times, Plaintiff was subject to this agreement and Defendant's attendance policy. (ECF No. 46-1 ¶¶ 5-6.)

         The agreement that governed Plaintiff's employment with Defendant contained a number of provisions relevant to the instant suit. The agreement generally provided that employees who worked shifts of more than five hours would be provided a thirty-minute meal period (i.e., a lunch break). (ECF No. 30-3 at 15.) The agreement more specifically provided that: (i) if an employee's shift was between six and seven hours long, this lunch break had to be taken between the second and fifth hours of work; and (ii) if an employee's shift was more than seven hours long, this lunch break had to be taken between the third and fifth hours of work. (ECF No. 30-3 at 15.) Defendant's policy was “not to allow employees to skip their lunch period.” (ECF No. 30-3 at 15.)

         Defendant also maintained a Reasonable Workplace Accommodations Policy. (See ECF No. 32 at 105-09.) In a section labeled, “Process to Request a Reasonable Workplace Accommodation, ” this policy stated that an employee requesting an accommodation could do so “through various means, including in person, in writing, or by providing a physician's note that denotes that the employee has a need for accommodation.” (ECF No. 32 at 107.) Under the “Employee Responsibilities” section of this policy, “employees seeking a reasonable workplace accommodation are expected to provide necessary and appropriate medical documentation, when applicable.” (ECF No. 32 at 106.)

         ii. Progressive Discipline System

         Under the progressive discipline system that governed Plaintiff's employment with Defendant, any employee who accumulated nine or more attendance points in a rolling three-month period, or who accumulated fifteen or more points in a rolling twelve-month period, was subject to discipline. (ECF No. 46-1 ¶ 51; ECF No. 30-3 at 9.) Each absence resulted in three points. (ECF No. 46-1 ¶ 52; ECF No. 30-3 at 9.) An absence was defined as, “loss of time from work that is approved by management and NOT caused by: vacation, holiday, jury duty or subpoena to court, funeral leave, military leave, industrial injury, State or Federal Family Medical Leaves or an authorized leave of absence beyond seven (7) days.” (ECF No. 46-1 ¶ 52.) Each incomplete shift or tardy arrival resulted in two disciplinary points. (ECF No. 46-1 ¶ 53; ECF No. 30-3 at 9.) An incomplete shift was defined as the failure to complete a shift for which the employee was scheduled, while a tardy was defined as punching in three or more minutes after the scheduled shift starting time or return from a lunch break. (ECF No. 30-3 at 9.)

         Pursuant to the collective bargaining agreement, a first instance of “inadequate performance or improper activity will be discussed with the individual verbally by the store manager, assistant manager, and/or department manager, ” with a memorandum of said discussion being placed in the affected employee's file. (ECF No. 30-3 at 11.) “A second instance of the same or any other type will result in written warning which the employee will be asked to acknowledge.” (ECF No. 30-3 at 11.) “A third instance of any violation of company policies or any type of inadequate performance can result in termination.” (ECF No. 30-3 at 11.)

         iii. Plaintiff's Interactions with Defendant's Progressive Discipline System in 2014

         On April 2, 2014, Plaintiff received a verbal warning for accumulating twenty-two attendance-related points over a twelve-month period. (ECF No. 46-1 ¶ 55.) The parties dispute whether this verbal warning was consistent with Defendant's attendance policy, with Plaintiff arguing that he “unjustifiably received” six of these twenty-two points based on his nonappearance for work between September 27 and November 15, 2013. (ECF No. 46-1 ¶ 55.) Plaintiff asserts that he should not have been assessed disciplinary points for these two instances because he was unable to work on those dates due to stress and panic attacks “as a result of his medical condition.” (ECF No. 46-1 ¶ 55.)

         Plaintiff received another warning - this time memorialized in writing because he had already received a prior verbal warning - on June 19, 2014, for accumulating fifteen attendance-related points over a separate twelve-month period. (ECF No. 46-1 ¶ 56.) The parties dispute whether this written warning was consistent with Defendant's attendance policy, with Plaintiff arguing that he “unjustifiably received” five of these fifteen disciplinary points based on his nonappearance for work on April 11 and June 3, 2014. (ECF No. 46-1 ¶ 56.) Plaintiff asserts that he should not have been assessed disciplinary points for these two instances because he was ill on April 11, and he had a staph infection in his nose on June 3. (ECF No. 46-1 ¶ 56.)

         On July 3, 2014, Plaintiff was absent from work and accumulated three attendance-related points as a result, apparently because he was suffering from the stomach flu. (ECF No. 46-1 ¶¶ 57, 58.) Defendant then suspended Plaintiff from July 7, 2014 through July 9, 2014, on the basis that he accumulated seventeen attendance-related points in a twelve-month period. (ECF No. 46-1 ¶ 58.) The parties dispute whether this suspension was consistent with Defendant's attendance policy, with Plaintiff arguing that he “unjustifiably received 3 points on July 2, 2014 because he was unable to come into work as a result of the stomach flu.” (ECF No. 46-1 ¶¶ 57, 58.)

         iv. Plaintiff's Work, Medical, and Leave History in 2015

         Plaintiff injured his knee in January of 2015, and sought treatment for that injury from Dr. Tushar Modi. (ECF No. 46-1 ¶ 59.) On January 22, Dr. Modi wrote a note to Defendant stating that Plaintiff “should be able to do modified duties” at work between January 22 and January 29. (ECF No. 46-1 ¶ 60; ECF No. 46-2 ¶ 22.) Also on January 22, Plaintiff filled out a form titled and characterized as Defendant's Reasonable Workplace Accommodation Request Form. (ECF No. 46-2 ¶ 26; ECF No. 43-4 at 42.) On this form, Plaintiff indicated that it was difficult for him to walk or kneel, and that he was requesting modified work duties to allow him to avoid having to walk or kneel. (ECF No. 46-2 ¶ 26; ECF No. 43-4 at 42.) Defendant received both the January 22 note and the Reasonable Workplace Accommodation Request Form shortly after they were created. (ECF No. 46-2 ¶¶ 23, 27.)

         Defendant did not place Plaintiff on any modified duties in January 2015. (ECF No. 46-2 ¶ 31.) The parties dispute why this decision - or lack thereof - was made. Plaintiff asserts that Defendant - through an employee named Jennifer Amaral to whom Plaintiff explained the extent of the modified duties he was seeking - did not accommodate his request for modified duty because his injury did not occur on the job. (See ECF No. 46-1 ¶ 16; ECF No. 43-6 at 49- 50.) Defendant, on the other hand, suggests that it was not required to accommodate Plaintiff's request for “modified duties” because Plaintiff failed to obtain clarification from Dr. Modi about what was meant by that term. (ECF No. 46-1 ¶ 61.) In any event, Defendant returned to Dr. Modi on January 23, at which point Dr. Modi excused Plaintiff from work entirely through January 29. (ECF No. 46-1 ¶¶ 62-64.)

         On January 29, Plaintiff worked a shift that began at 11:30 p.m. on that day and concluded at 6:49 a.m. on January 30. (ECF No. 46-1 ¶¶ 64-65.) During Plaintiff's next scheduled shift that began at 11:30 p.m. on January 30, however, he left work early due to swelling and pain in his injured knee. (ECF No. 46-2 ¶ 37; ECF No. 43-3 at 3.) The parties dispute whether Plaintiff left this scheduled shift early in order to receive additional medical treatment for his knee, or whether he simply left work early due to the pain he was purportedly experiencing. (ECF No. 46-2 ¶ 37.) Regardless of why he left this January 30 shift early, Defendant assessed Plaintiff two attendance-related points as a result. (ECF No. 46-2 ¶ 37; ECF No. 43-6 at 150.) On February 2, Dr. Modi excused Plaintiff from work through February 16, and subsequently excused Plaintiff from work through February 23. (ECF No. 46-1 ¶¶ 66-67.)

         Then, on and following February 23, Dr. Modi filled out a series of employment-related forms that appear somewhat contradictory. One form, a “Short Term Disability Claim Form” dated February 23, stated that Plaintiff's current restrictions as of that date included no bending or flexing of his knee. (ECF No. 46-2 ¶ 45; ECF No. 32 at 259.) Another form, a “Fitness for Duty Certification” form also dated February 23, stated that Plaintiff could return to work the next day with no physical restrictions. (ECF No. 46-1 ¶ 70; ECF No. 32 at 265.) Then on February 27, Dr. Modi filled out a “California Certification of Health Care Provider for Employee's or Family Member's Serious Health Condition” form, which stated that the probable duration of Plaintiff's medical condition or need for treatment would be three months. (ECF No. 46-2 ¶ 47; ECF No. 43-4 at 127-28; ECF No. 32 at 263.) This form also stated that Plaintiff was essentially unable to “perform work of any kind” and was “unable to perform any one or more of the essential functions of” his position. (ECF No. 43-4 at 127; ECF No. 32 at 263.) Dr. Modi faxed these completed forms to Defendant's third-party leave administrator, Unum, on February 27. (ECF No. 46-1 ¶ 71; ECF No. 32 at 237-38.) Plaintiff explains the discrepancies between these forms by asserting that though Dr. Modi's February 23 note released Plaintiff back to work with no restrictions, “Plaintiff obtained this [no-restrictions note] from his doctor since Defendant was not allowing Plaintiff to return to work on modified duties.” (ECF No. 46-1 ¶ 73.)

         Plaintiff returned to work following this knee-related medical leave on the last day of February to work an overnight shift that was scheduled to conclude on March 1, 2015. (ECF No. 46-2 ¶ 48; ECF No. 43-4 at 107.) Defendant characterizes Plaintiff's return to work as being without any restrictions. (ECF No. 46-1 ¶ 74.) Plaintiff, on the other hand, asserts that he wore a knee brace, experienced significant pain in his knee, and informed his supervisors of this upon his return to work on March 1. (ECF No. 46-1 ¶ 73.) Plaintiff further states that during this March 1 shift, he requested “an accommodation of being placed in a cashier position” (ECF No. 46-1 ¶ 73), and informed his supervisors that he intended to apply for Family and Medical Leave Act (hereafter, “FMLA”) coverage for his knee injury (ECF No. 46-2 ¶ 49). It does not appear that Plaintiff ever submitted a formal application for any open cashier position (ECF No. 46-2 ¶ 48; see also ECF No. 32 at 85-86), nor does it appear that Plaintiff ever formally applied for FMLA coverage for his knee injury (see ECF No. 46-2 ¶¶ 49-50). Nor did Plaintiff return to Dr. Modi at any subsequent point for the purpose of receiving further treatment related to his knee. (ECF No. 46-2 ¶¶ 48-49; ECF No. 32 at 226.) Plaintiff did not become a cashier at Defendant's Modesto store prior to his termination. (See ECF No. 46-1 ¶¶ 82-83 (stating that Plaintiff was terminated on the same day he was still performing the duties of a freight clerk).)

         The parties dispute the subsequent course of events, which occurred at the time that Plaintiff was scheduled to work a shift beginning at 11:30 p.m. on March 1 and concluding at 8:00 a.m. on March 2. (ECF No. 46-2 ¶ 51.) At 7:31 a.m. on March 2 - twenty-nine minutes before the conclusion of his shift that day - Plaintiff left work to attend a physical therapy appointment for his knee. (ECF No. 46-1 ¶ 77; ECF No. 46-2 ¶ 52.) Defendant assessed Plaintiff two attendance-related points as a result. (ECF No. 46-1 ¶ 78; ECF No. 46-2 ¶ 37.) Plaintiff asserts that these two attendance-related points were unfairly and “unjustifiably” added to his record because Plaintiff received permission from his supervisor - an individual named Jeff Heide who held the position of Lead Clerk - to leave his shift early on March 2. (ECF No. 46-1 ¶¶ 76-78; ECF No. 46-2 ¶ 52.) Defendant, for its part, points out that Plaintiff did not follow proper procedure to ensure he would not be penalized for leaving his shift early on March 2: first, he failed to check what time his shift ended on March 2 before scheduling his physical therapy appointment for that date; second, he failed to submit a physician's note to Defendant regarding the appointment. (ECF No. 46-1 ¶ 78; ECF No. 43-6 at 80.) Though the parties dispute how many attendance-related points Plaintiff had accrued as of the time he received this two-point assessment for his early departure on March 2, they do not dispute that Plaintiff had accrued more than fifteen such points in a twelve-month period. (ECF No. 46-1 ¶ 81; ECF No. 43-4 at 6.)

         v. Termination of Plaintiff's Employment

         Matters came to a head on March 10, 2015, when Plaintiff worked the overnight shift that began at 11:28 p.m. on March 9. (ECF No. 46-2 ¶ 62.)

         At 3:55 a.m. on March 10, Heide requested that Plaintiff fill the Modesto store's shopping cart room. (ECF No. 46-2 ¶ 63.) Heide's directive required that Plaintiff fill the shopping cart room with approximately two hundred shopping carts that had been left outside Defendant's Modesto store. (ECF No. 46-2 ¶¶ 64-65.) Heide gave this directive to Plaintiff approximately five minutes before the time of day when Plaintiff typically took his lunch break (ECF No. 46-2 ¶¶ 63, 71), and about thirty-five minutes before the time of day when Plaintiff was mandated to take his lunch break by California law and Defendant's workplace policy (ECF No. 46-1 ¶ 37; ECF No. 32 at 151; ECF No. 30-3 at 15). This was the first time Plaintiff had been given such an assignment at such a time of night. (ECF No. 46-2 ¶ 65.) Plaintiff performed the task as requested (ECF No. 46-2 ¶ 65), though he asserts that he was visibly limping while retrieving the carts (ECF No. 46-2 ¶ 67). Plaintiff eventually clocked out of his shift for his lunch break at 4:32 a.m. (ECF No. 46-2 ¶ 70.) The parties characterize this as a “fifth hour violation” because it meant that Plaintiff had failed to take his lunch break prior to the commencement of his fifth hour of working, in violation of California law and Defendant's workplace policy. (ECF No. 46-1 ¶¶ 82-83.)

         Plaintiff's employment was terminated on March 10, 2015. (ECF No. 46-1 ¶ 38.) The parties do not dispute that one of Defendant's reasons for Plaintiff's termination was the “fifth hour violation” that occurred in the early morning hours of March 10. (ECF No. 46-1 ¶¶ 38, 83.) The parties differ, however, on Defendant's second rationale for terminating Plaintiff's employment. Defendant characterizes the second rationale for Plaintiff's termination as being Plaintiff's incomplete shift on March 2, 2015. (ECF No. 46-1 ¶¶ 38, 83.) For his part, Plaintiff characterizes the second rationale for his termination as being his accumulation of seven attendance-related points in a three-month period and sixteen attendance-related points in a twelve-month period. (ECF No. 46-1 ¶¶ 38, 83.)

         B. Procedural Background

         Plaintiff did not file a grievance relating to this or any other employment-related issue during the time he worked for Defendant. (ECF No. 46-1 ¶ 39.) However, on May 8, 2015, Plaintiff filed a charge of discrimination with the California Department of Fair Employment and Housing (hereafter, “DFEH”). (ECF No. 46-1 ¶ 93; ECF No. 43-6 at 6-8.) Plaintiff requested and received a right-to-sue letter on that same day. (ECF No. 43-6 at 4.)

         On May 14, 2015, Plaintiff filed a lawsuit in the Superior Court of the State of California, County of Stanislaus. (ECF No. 5 ¶ 2.) This state-court complaint raises eight causes of action: (i) disability discrimination, in violation of California's Fair Employment and Housing Act (hereafter, “FEHA”) (ECF No. 5-1 ¶¶ 13-24); (ii) failure to accommodate Plaintiff's disability, in violation of FEHA (ECF No. 5-1 ¶¶ 25-29); (iii) failure to engage in an interactive process with Plaintiff in order to provide him with a reasonable employment accommodation, in violation of FEHA (ECF No. 5-1 ¶¶ 30-35); (iv) retaliation for protected conduct, in violation of FEHA (ECF No. 5-1 ¶¶ 36-46); (v) intentional infliction of emotional distress (ECF No. 5-1 ¶¶ 47-54); (vi) failure to take reasonable steps to prevent workplace discrimination, in violation of FEHA (ECF No. 5-1 ¶¶ 55-61); (vii) wrongful termination in violation of California public policy (ECF No. 5-1 ¶¶ 62-67); and (viii) violation of Plaintiff's rights under the FMLA (ECF No. 5-1 ¶¶ 68- 72). Defendant removed the suit to this Court in July 2015 (see ECF No. 1), and moved for summary judgment on all claims in May 2017 (see ECF No. 30).

         II. Standard of Law

         Summary judgment is appropriate where the moving party demonstrates that no genuine issue as to any material fact exists and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); see also Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). Under summary judgment practice, the moving party “bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

         If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-87 (1986); First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968). In attempting to establish the existence of this factual dispute, the opposing party is required to tender evidence of specific facts in the form of affidavits or admissible discovery material. Fed.R.Civ.P. 56(c). The opposing party must demonstrate that the fact in contention is material in the sense that it “might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The opposing party must also demonstrate that the dispute is such that a reasonable jury could return a verdict for the nonmoving party. Id. at 251-52.

         In resolving a summary judgment motion, a district court examines the pleadings, depositions, answers to interrogatories, and admissions on file, together with any applicable affidavits. Fed.R.Civ.P. 56(c); SEC v. Seaboard Corp., 677 F.2d 1301, 1305-06 (9th Cir. 1982). The evidence of the opposing party is to be believed, and all reasonable inferences that may be drawn from the facts pleaded before the court must be drawn in favor of the opposing party. Anderson, 477 U.S. at 255 (citing Adickes, 398 U.S. at 158-59). Nevertheless, inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which an inference may be drawn. Richards v. Nielsen Freight Lines, 602 F.Supp. 1224, 1244-45 (E.D. Cal. 1985), aff'd, 810 F.2d 898 (9th Cir. 1987). “Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge, ” when ruling on a motion for summary judgment. Anderson, 477 U.S. at 255. Finally, to demonstrate a genuine issue that necessitates a jury trial, the opposing party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586. “Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.'” Id. at 587 (quoting First Nat'l Bank of Ariz., 391 U.S. at 289). Indeed, if a party “fails to properly address another party's assertion of fact, ” a district court may “consider the fact undisputed for purposes of the motion” or may “grant summary judgment if the motion and supporting materials - including the facts considered undisputed - show that the movant is entitled to it.” Fed.R.Civ.P. 56(e).

         III. Analysis

         A. Evidentiary Objections

         As a preliminary matter, the Court will address evidentiary objections lodged by the parties only to evidence upon which the Court relied in considering and preparing this Order.

         i.Mischaracterization” Objections

         Defendant lodged numerous objections to the characterization of many of the purportedly undisputed facts provided by Plaintiff. (See, e.g., ECF No. 46-2 ¶¶ 52-59.) The Court categorically overrules Defendant's mischaracterization objections because they are merely disputes about the meaning of certain facts that are styled as evidentiary objections. See Cooper v. United Air Lines, Inc., 82 F.Supp.3d 1084, 1098 (N.D. Cal. 2015) (“Defendant's objections that Plaintiff has in numerous places mischaracterized the record or deposition testimony are overruled as the Court is able to view the deposition testimony and other evidence and evaluate both on its own.”).

         ii. Blanket Hearsay Objections

         Defendant lodged a number of blanket hearsay objections to items of evidence identified in Plaintiff's separate statement of facts, but these objections fail to identify which exact pieces of evidence are supposedly inadmissible hearsay. (See, e.g., ECF No. 46-2 ¶ 66.) The Court categorically overrules any such blanket hearsay objections that are not directed to specific items of evidence. See Hunter v. White, No. 1:13-cv-01681-DAD-GSA-PC, 2018 WL 2329219, at *3 (E.D. Cal. May 23, 2018) (“The court finds Defendant's hearsay objections to be ‘boilerplate recitations of evidentiary principles or blanket objections without analysis applied to specific items of evidence,' which should be rejected.” (quoting Stonefire Grill, Inc. v. FGF Brands, Inc., 987 F.Supp.2d 1023, 1033 (C.D. Cal. 2013))); Ramsey v. Siskiyou Hosp., Inc., No. 2:14-cv-01908-KJM-CMK, 2016 WL 3197557, at *1 (E.D. Cal. June 9, 2016) (rejecting many evidentiary objections on same grounds).

         Iii. Hearsay Objection to Paragraph 28 of Plaintiff's Separate Statement of Facts

         Defendant objects on hearsay grounds to paragraph 28 of Plaintiff's separate statement of facts. (See ECF No. 46-2 ¶ 28.) Paragraph 28 cites to portions of Plaintiff's deposition and reads, in its entirety: “At no point in time did Ms. Amaral ask Plaintiff to clarify what ‘modified duties' meant.” (ECF No. 46-2 ¶ 28.) To the extent Defendant's objection is directed at the substantive text of paragraph 28 transcribed in the previous sentence of this Order, the Court overrules this objection because that text is not an out-of-court statement offered to prove the truth of what it asserts, nor is it nonverbal conduct that Amaral intended as an assertion. See Fed. R. Evid. 801(a) (“‘Statement' means a person's oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion.”). The text of paragraph 28 is not a statement (or nonverbal conduct intended as a statement) at all because it simply describes the absence of a statement by anyone employed by Defendant.

         To the extent Defendant's objection is directed at Plaintiff's deposition testimony describing the particulars of what Amaral said to Plaintiff after he submitted his request for modified duties to accommodate his knee injury, the Court also overrules that objection. A statement is not hearsay if it is offered against an opposing party and “was made by the party's agent or employee on a matter within the scope of that relationship and while it existed.” Fed.R.Evid. 801(d)(2)(D); see United States v. Bonds, 608 F.3d 495, 502 (9th Cir. 2010) (“Subsection (D) authorizes admission of any statement against a party, but only provided it is made within the scope of an employment or agency relationship.”). The record contains evidence suggesting that Amaral was Defendant's employee and was the point person for Plaintiff to speak with regarding any requests for workplace accommodation. (See ECF No. 43-6 at 90-91; ECF No. 32 at 185- 88; ECF No. 46-2 ¶ 23 (equating the provision of a physician's note to Amaral with the provision of said note to Defendant itself).) And though there are some indications in the record that Amaral was not employed by Defendant to discuss accommodation-related matters with other employees (see ECF No. 43-6 at 135), this evidence is not strong enough to overcome the documentary evidence showing that Amaral and others in similar positions did, in fact, process workplace accommodation requests and serve as points of contact for Plaintiff when he requested accommodation (see ECF No. 32 at 181-88; ECF No. 32-1 at 27, 36, 81).

         Accordingly, statements made by Amaral regarding Plaintiff's request for accommodation were made within the scope of her employment relationship with Defendant, and therefore qualify as non-hearsay pursuant to Rule 801(d)(2)(D) of the Federal Rules of Evidence. Bonds, 608 F.3d at 502.

         iv. Declaration of Margarita Garcia

         Plaintiff objects to the entire declaration of Margarita Garcia on grounds that Garcia was not properly disclosed during discovery as a person with knowledge of facts relevant to the instant matter. (ECF No. 43-9 ¶ 1.) Defendant appears to concede that Garcia's identity as a potentially relevant witness was not formally disclosed during discovery, but nonetheless argues that Plaintiff was constructively on notice of Garcia's identity and her potentially relevant knowledge. (ECF No. 46-5 ¶ 1.) Defendant also asserts that any failure to formally disclose Garcia's identity during discovery was harmless because the primary purpose of her declaration is primarily to authenticate documentary evidence to which Plaintiff cannot reasonably object. (ECF No. 46-5 ¶ 1.)

         It is beyond dispute that the Federal Rules of Civil Procedure require parties to disclose the name of each individual likely to have discoverable information. Fed.R.Civ.P. 26(a)(1)(A). Failure to do so can preclude the delinquent party from relying on the undisclosed witness or information at summary judgment, unless the nondisclosure was substantially justified or harmless. Fed.R.Civ.P. 37(c)(1); Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 2001) (“Two express exceptions ameliorate the harshness of Rule 37(c)(1): The information may be introduced if the parties' failure to disclose the required information is substantially justified or harmless.”). The burden to demonstrate substantial justification or harmlessness is on the party that failed to disclose. Id. at 1107. Five factors inform the district court's analysis of whether a party's failure to disclose a potential witness was harmless: “1) the public's interest in expeditious resolution of litigation; 2) the court's need to manage its docket; 3) the risk of prejudice to the [non-disclosing party]; 4) the public policy favoring disposition of cases on their merits; 5) the availability of less drastic sanctions.” Wendt v. Host Int'l, Inc., 125 F.3d 806, 814 (9th Cir. 1997).

         Here, the first, second, and fifth factors are essentially irrelevant to Defendant's failure to disclose Garcia in accordance with the requirements of Rule 26 of the Federal Rules of Civil Procedure, so the Court will not discuss them. See Id. The third factor - risk of prejudice to Plaintiff as the non-disclosing party - weighs only somewhat in favor of sustaining Plaintiff's objection. Though Defendant argues that the risk of prejudice is somewhat limited here because Plaintiff and his counsel became familiar with Garcia's role in Defendant's corporate structure in the course of discovery (ECF No. 46-5 ¶ 1 (noting that Garcia's name was mentioned as an employee of Defendant who worked in the corporate office)), the deposition during which Garcia's name was mentioned occurred only six days before the fact discovery deadline (ECF No. 46-5 ¶ 1 (asserting that the relevant deposition occurred on November 16, 2016); ECF No. 24 at 4 (setting the fact discovery deadline for November 22, 2016)). Thus, though it is technically true that Plaintiff knew that Garcia would be a potentially relevant witness at some point during the litigation, Plaintiff only found out about Garcia when there was insufficient time to notice Garcia's deposition or serve interrogatories focused on Garcia's role. See Van Maanen v. Youth With a Mission-Bishop, 852 F.Supp.2d 1232, 1237 (E.D. Cal. 2012) (refusing to strike a declaration submitted in support of a summary judgment motion where the declarant's “identity, position, location, and the subject of the information he possessed were made known to Plaintiff through” other depositions in the case because those depositions occurred more than a month before the discovery cutoff), aff'd sub nom. Van Maanen v. Univ. of the Nations, Inc., 542 Fed.Appx. 581 (9th Cir. 2013).

         The public policy favoring disposition of cases on their merits weighs more heavily in favor of overruling Plaintiff's objection. The primary purpose of Garcia's declaration - and the context in which the Court relied on that declaration - is the authentication of documents from Defendant's employment records. (See ECF No. 32-1 at 11-168.) A district court may exercise its discretion to consider materials authenticated by a declarant who was not properly disclosed because such consideration is harmless. See Lam v. City & Cty. of S.F., 565 Fed.Appx. 641, 643 (9th Cir. 2014) (citing Fed.R.Civ.P. 37(c)(1); Beauperthuy v. 24 Hour Fitness USA, Inc., 772 F.Supp.2d 1111, 1120 (N.D. Cal. 2011)). Since Plaintiff does not object to the authenticity of the documents and records referenced in Garcia's declaration, and since considering these documents as evidence will assist the Court in ruling on Defendant's summary judgment motion, the public policy in favor of disposing cases on their merits weighs against Plaintiff's objection. (See ECF No. 46-5 ¶ 1 (objecting to Garcia's declaration only on failure-to-disclose grounds).)

         For the foregoing reasons, the Court partially sustains and partially overrules Plaintiff's objection. The Court will consider documentary evidence authenticated by Garcia's declaration because doing so is harmless. See Lam, 565 Fed.Appx. at 643. At the same time, the Court will not consider any substantive evidence contained in the declaration itself because Defendant fails to carry its burden to demonstrate that its failure to disclose Garcia was substantially justified or harmless. See Yeti by Molly, Ltd., 259 F.3d at 1106.

         v. Declaration of Bradley Fulfer

         Defendant objects to much of the declaration submitted by Plaintiff alongside his opposition papers. (ECF No. 46-3.) The Court adjudicates only those objections which are directed at evidence upon which the Court relied in ruling on Defendant's motion.

         a. Paragraph 8

         Defendant objects to paragraph 8 as being contradictory to Plaintiff's deposition testimony. (ECF No. 46-3 ¶ 3.)

         The Court overrules this objection because Defendant makes no effort to demonstrate why the contents of this paragraph are inadmissible under the Federal Rules of Evidence or any other evidentiary doctrine. (See ECF No. 46-3 ¶ 3); Fed.R.Civ.P. 56(c)(4) (requiring declarations used to oppose a summary judgment motion to “set out facts that would be admissible in evidence”). And even if it were required to reach the merits of Defendant's objection, the Court would overrule it because Plaintiff testified at his deposition that he “asked [Amaral] to be placed on light duty, ” which is consistent with the contents of paragraph 8 of his declaration even though that paragraph is more detailed and expansive.

         b. Paragraph 17

         Defendant objects to paragraph 17 on grounds that it contains an improper legal conclusion under Rule 704 of the Federal Rules of Evidence, that it lacks foundation under Rule 602, and that it contradicts Plaintiff's prior deposition testimony. (ECF No. 46-3 ¶ 10.)

         It is beyond dispute that a witness may only testify to a matter “if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.” Fed.R.Evid. 602. That being said, “the requirement of personal knowledge imposes only a ‘minimal' burden on a witness; if ‘reasonable persons could differ as to whether the witness had an adequate opportunity to observe, the witness's testimony is admissible.'” Strong v. Valdez Fine Foods, 724 F.3d 1042, 1045 (9th Cir. 2013) (quoting 1 Charles McCormick, McCormick on Evidence § 10 (Kenneth S. Broun, ed., 7th ed. 2013)). Furthermore, the personal knowledge bar at summary judgment “is particularly low because all ‘justifiable inferences' must be drawn in favor of the nonmoving party.” Id. (quoting Anderson, 477 U.S. at 255). Also, a lay witness “may testify only to ‘those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue.'” United States v. Crawford, 239 F.3d 1086, 1090 (9th Cir. 2001) (quoting Fed.R.Evid. 701). “A lay witness may testify as to an ultimate issue of fact, so long as the testimony is otherwise admissible.” Id. (citing Fed.R.Evid. 704). “The lay witness may not, however, testify as to a legal conclusion . . . .” Id. (citing Evangelista v. Inlandboatmen's Union of Pac., 777 F.2d 1390, 1398 n.3 (9th Cir. 1985)).

         The Court overrules Defendant's objection to paragraph 17 of Plaintiff's declaration to the extent it is purported to lack the requisite personal knowledge or contain a legal conclusion. This paragraph contains information that relates directly to Plaintiff's own employment and leave situation, a situation about which Plaintiff almost certainly has personal knowledge since it directly affects his own life. (See ECF No. 43-6 ¶¶ 1-2.) Second, it is not a legal conclusion for Plaintiff to declare that he intended to avail himself of any FMLA leave which he had available. Plaintiff does not need to exercise legal judgment in order to tell his supervisors that he himself intended to do something in the future.

         The Court also overrules Defendant's objection on grounds that it contradicts Plaintiff's deposition testimony. The relevant component of Plaintiff's evidence as set forth in paragraph 17 of his declaration is that he informed his supervisors in March of 2015 that he wished to have his knee injury accommodated by being trained to become a cashier, and Plaintiff's deposition testimony was consistent with this. (See ECF No. 43-6 at 98-99.) And while it may be true that Plaintiff also testified at his deposition that he could not recall whether he ever specifically spoke to Heide about becoming a cashier (see ECF No. 43-6 at 99), that does not necessarily make paragraph 17 of Plaintiff's declaration so contradictory as to be inadmissible, see Van Asdale v. Int'l Game Tech., 577 F.3d 989, 999 (9th Cir. 2009) (holding that a “non-moving party is not precluded from elaborating upon, explaining or clarifying prior testimony elicited by opposing counsel on deposition [and] minor inconsistencies that result from an honest discrepancy, a mistake, or newly discovered evidence afford no basis for excluding an opposition affidavit” (alteration in original) (quoting Messick v. Horizon Indus., 62 F.3d 1227, 1231 (9th Cir. 1995))).

         c. Paragraph 20

         Defendant objects to paragraph 20 of Plaintiff's declaration on grounds that it (i) lacks foundation under Rule 602 of the Federal Rules of Evidence, (ii) contains inadmissible hearsay, (iii) contains an improper lay opinion under Rule 701, and (iv) contradicts his prior deposition testimony. (ECF No. 46-3 ¶ 13.)

         Defendant's objection predicated on improper witness testimony is overruled because the Court can locate no opinion in paragraph 20 of Plaintiff's declaration that would implicate Rule 701. (See ECF No. 46-3 ¶ 13.)

         Defendant's objections predicated on hearsay and contradictory testimony are overruled. First, there is no indication that paragraph 20 incorporates any out-of-court statements offered for their truth, as would be required for evidence to be made inadmissible by operation of the rule against hearsay. See Fed. R. Evid. 801(a) (“‘Statement' means a person's oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion.”); Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003) (“At the summary judgment stage, we do not focus on the admissibility of the evidence's form. We instead focus on the admissibility of its contents.” (citing Block v. City of L.A., 253 F.3d 410, 418-19 (9th Cir. 2001))). Second, Defendant's citation to Plaintiff's deposition testimony does not demonstrate what Defendant says it demonstrates, namely that Plaintiff “was allotted points for every unprotected incomplete shift that he worked.” (ECF No. 46-3 ¶ 13.) Therefore, the assertion in paragraph 20 of Plaintiff's declaration that he frequently left work early without being disciplined does not contradict his prior deposition testimony. See Van Asdale, 577 F.3d at 999 (holding that a “non-moving party is not ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.