Case Number
22CV03213
Case Type
Civil Law & Motion
Hearing Date / Time
Wed, 08/14/2024 - 10:00
Nature of Proceedings
Motion of Trader Joe’s Company and Zeb Albert for Summary Judgment or, in the Alternative, Summary Adjudication
Tentative Ruling
For Plaintiff Shawn Parker: Brant K. Berglund
For Defendants Trader Joe’s Company, Zeb Albert: Brandie N. Charles, Nicole Vongchanglor, Littler Mendelson, P.C.
RULING
For the reasons set forth herein, Trader Joe’s Company’s motion for summary judgment is granted.
Background
This action was originally commenced on August 18, 2022, by the filing of the complaint by Plaintiff Shawn Parker against Defendants Trader Joe’s Company (Trader Joe’s) and Zeb Albert (Albert).
Following permission of the Court to do so, on October 12, 2023, Plaintiff filed the operative first amended complaint (FAC) for damages against Defendants Trader Joe’s, Albert, and Caroline Neufeld (Neufeld).
The FAC contains causes of action for: (1) Discrimination in violation of FEHA (Disability); (2) Discrimination in violation of FEHA (Race); (3) Harassment in violation of FEHA; (4) Retaliation in violation of FEHA; (5) Failure to accommodate disability; (6) Failure to engage in good faith interactive exchange re: accommodation of disability; (7) Failure to prevent harassment, retaliation or discrimination; (8) Violation of rights under the California Family Rights Act; (9) Wrongful termination in violation of public policy; and (10) Intentional infliction of emotional distress.
As alleged in the FAC:
Plaintiff was employed by Trader Joe’s as a crew member from July 1, 2006, until he was terminated on August 11, 2021. (FAC, ¶ 2.) Albert was, at all times material, Plaintiff’s manager and supervisor at Trader Joe’s. (FAC, ¶ 7.)
At all times material to this action, Plaintiff performed his job duties in a satisfactory manner. (FAC, ¶ 18.) During Plaintiff’s employment with Trader Joe’s, he “sustained multiple injuries as follows: July 31, 2011, specific to the head, neck and back; January 15, 2015, specific to the right knee; July 1, 2006 to September 27, 2015, to the bilateral wrists, arms, and upper extremities.” (FAC, ¶ 19.) As a result of Plaintiff’s medical conditions, he had a history of need for reasonable accommodations, including lost time, surgery, and “probable” work limitations. (FAC, ¶ 21.)
In February 2020, prior to Albert becoming Plaintiff’s manager, Plaintiff received a very positive performance evaluation. (FAC, ¶ 23.) Prior to Albert becoming Plaintiff’s manager, in August 2020, Plaintiff was allowed limited time away from work to receive treatment for his medical conditions and injuries. (FAC, ¶¶ 24-25.)
After Albert became Plaintiff’s manager, Albert “commenced a systematic pattern of harassment, hostility, singling out, mistreatment and disparate treatment toward Plaintiff, subjecting Plaintiff to ridicule, criticism that was unjustified, and other adverse actions that negatively impacted Plaintiff’s ability to perform his job functions. The mistreatment included cutting Plaintiff’s work hours without justification, which resulted in a loss of medical insurance benefits to Plaintiff’s great detriment.” (FAC, ¶ 26.) Albert’s actions toward Plaintiff were motivated by Plaintiff’s race and prior history of being disabled due to workplace injuries occurring from 2006 through 2015. (FAC, ¶ 27.)
As a result of Albert changing store policy, Plaintiff was unable to work enough hours to keep his health care benefits. (FAC, ¶¶ 28-29.) In January 2021, Plaintiff contacted Human Resources Manager Vivian Wong and Region Manager Neufeld regarding the adverse actions and advised them that he had pre-existing medical conditions and provides medical insurance for his son. (FAC, ¶ 30.) Plaintiff was deprived of medical and health insurance through July 2021. (Ibid.)
On February 23, 2021, Albert gave Plaintiff a negative performance evaluation that was false and pretextual. (FAC, ¶ 32.) Following several incidents involving Plaintiff and Albert, on August 2, 2021, Defendant conducted a “crew review” which assessed Plaintiff as meeting expectations “in every category and describes him as exhibiting considerable improvement, as solid, versatile, valuable, integral, that he does an excellent job, and provides a WOW customer experience.” (FAC, ¶ 42.)
On August 2, 2021, Plaintiff notified Defendants that he needed to take time off for hand surgery and recovery, starting on September 3, 2021. (FAC, ¶ 43.) On August 11, 2021, Trader Joe’s and its agent Albert terminated Plaintiff’s employment because, according to an incident report, on August 5, 2021, Plaintiff entered the Trader Joe’s store without a face covering to pick up his paycheck. (FAC, 44.)
On January 24, 2024, in ruling on a demurrer to the FAC, the tenth cause of action for emotional distress was sustained without leave to amend. Plaintiff opted to not file a second amended complaint.
Trader Joe’s and Albert now move for summary judgment or, in the alternative, summary adjudication arguing that one or more of the elements of each of Plaintiff’s causes of action and punitive damages claims cannot be established.
Plaintiff opposes the motion.
Analysis
Evidentiary Objections
“In granting or denying a motion for summary judgment or summary adjudication, the Court need rule only on those objections to evidence that it deems material to its disposition of the motion. Objections to evidence that are not ruled on for purposes of the motion shall be preserved for appellate review.” (Code Civ. Proc., § 437c, subd. (q).)
“ ‘The same rules of evidence that apply at trial also apply to the declarations submitted in support of and in opposition to motions for summary judgment. Declarations must show the declarant’s personal knowledge and competency to testify, state facts and not just conclusions, and not include inadmissible hearsay or opinion.’ ” [Citation.] “ ‘The declarations in support of a motion for summary judgment should be strictly construed, while the opposing declarations should be liberally construed. [Citation.] This does not mean that Courts may relax the rules of evidence in determining the admissibility of an opposing declaration. Only admissible evidence is liberally construed in deciding whether there is a triable issue.’ ” [Citation.]” (Fernandez v. Alexander (2019) 31 Cal.App.5th 770, 779.)
Trader Joe’s and Albert object to a total of 106 statements contained in the declarations of Plaintiff and Jacqueline Pike. Many of the statements objected to are not evidence that is material to the disposition of the motion.
The Court sustains the following objections to Plaintiff’s declaration:
Objection No. 3 is sustained as hearsay. Objection No. 6 is sustained as hearsay. Objection No. 12 is sustained as hearsay. Objection No. 34 is sustained as hearsay. Objection No. 36 is sustained as hearsay. Objection No. 37 is sustained as hearsay. Objection No. 38 is sustained as hearsay. Objection No. 39 is sustained as hearsay. Objection No. 40 is sustained as hearsay. Objection No. 44 is sustained as hearsay. Objection No. 49 is sustained as hearsay. Objection No. 73 is sustained as hearsay.
The Court overrules the following objections to Plaintiff’s declaration:
Objection No. 8 is overruled. However, the Court will take into account Plaintiff’s actual deposition testimony that elaborates on the statement. Objection No. 14 is overruled. Objection No. 15 is overruled. Objection No. 26 is overruled. Objection No. 27 is overruled. Objection No. 28 is overruled. Objection No. 29 is overruled. Objection No. 30 is overruled. Objection No. 31 is overruled. Objection No. 32 is overruled. Objection No. 43 is overruled. Objection No. 46 is overruled. Objection No. 47 is overruled. Objection No. 48 is overruled. Objection No. 50 is overruled. Objection No. 51 is overruled. Objection No. 52 is overruled. Objection 53 is overruled. Objection No. 54 is overruled. Objection No. 55 is overruled. Objection No. 56 is overruled. Objection No. 57 is overruled. Objection No. 58 is overruled. Objection No. 59 is overruled. Objection No. 60 is overruled. Objection No. 67 is overruled. Objection No. 68 is overruled. Objection No. 76 is overruled. However, the Court will take into account Plaintiff’s actual deposition testimony that somewhat contradicts the statement. Objection No. 78 is overruled. Objection No. 79 is overruled. Objection No. 80 is overruled. However, the Court will take into account Plaintiff’s actual deposition testimony that somewhat contradicts the statement. Objection No. 81 is overruled. Objection No. 82 is overruled.
None of the other statements contained in Plaintiff’s declaration are material to the disposition of the motion.
Declaration of Jacqueline Pike:
Pike’s declaration is dated March 27, 2024, and was submitted as part of Plaintiff’s sur-reply. It was not submitted with Plaintiff’s original opposition, which was filed on May 8, 2024. Plaintiff previously withheld the declaration from Defendants on a claim of work product privilege. The Court finds that Plaintiff withholding the document was improper and amounts to gamesmanship. Reading the declaration, Plaintiff had no reason to withhold the document other than to try to use it against Defendants at a later date.
Further: “The general rule of motion practice, which applies here, is that new evidence is not permitted with reply papers. This principle is most prominent in the context of summary judgment motions, which is not surprising, given that it is a common evidentiary motion. ‘‘‘[T]he inclusion of additional evidentiary matter with the reply should only be allowed in the exceptional case . . .’ ’’ and if permitted, the other party should be given the opportunity to respond. [Citations.]” (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537-1538.)
Finally, pursuant to the Court’s order of May 13, 2024, Plaintiff was only permitted to file a sur-reply for addressing deposition testimony of Albert as to whether he made a racially charged statement to another Trader Joe’s employee. In the sur-reply, Plaintiff states that Albert denied making the statement and then attaches the Pike declaration. The declaration consists almost completely of Pikes opinions and conjecture. It is of no evidentiary value.
For the above reasons, the objections to the entirety of Pike’s declaration are sustained. The declaration will not be considered. Having so ruled, the Court does note that the only statement contained in the Pike declaration that is potentially admissible evidence, is that Albert asked her “what’s up with you and the big black guy?” This statement is included in the moving parties’ separate statement of undisputed material facts (UMF No. 61) and will be considered even absent the Pike declaration.
Standard on Summary Judgment
A Defendant’s motion for summary judgment asks the Court to determine that the entire action has no merit, and to terminate the action without the necessity of a trial. (Code Civ. Proc., § 437c, subd. (a).) The procedure enables the Court to look behind the pleadings to determine whether the party against whom the motion is directed has evidence to back up the claims. The Court must determine from the evidence presented that there is no triable issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).)
The moving party bears the burden of persuasion that that there is no triable issue of material fact, and that it is entitled to judgment as a matter of law. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) Consequently, a Defendant moving for summary judgment bears the burden of persuasion that one or more elements of the cause of action in question cannot be established, or that there is a complete defense thereto. (Ibid.) The motion must be supported by evidentiary facts, not merely the ultimate facts. Further, conclusions of fact or law are not sufficient to support a motion for summary judgment. (Snider v. Snider (1962) 200 Cal.App.2d 741, 751.)
“Summary judgment law in this state no longer requires a Defendant moving for summary judgment to conclusively negate an element of the Plaintiff’s cause of action (e.g., if “X” is an essential element, by proving “not X”). [Citation.] Instead, a Defendant may simply show the Plaintiff cannot establish an essential element of the cause of action “ ‘by showing that the Plaintiff does not possess, and cannot reasonably obtain, needed evidence.’ ” [Citation.] Thus, rather than affirmatively disproving or negating an element (e.g., causation), a Defendant moving for summary judgment has the option of presenting evidence reflecting the Plaintiff does not possess evidence to prove that element.” (Leyva v. Garcia (2018) 20 Cal.App.5th 1095, 1102.)
Once a moving Defendant meets its initial burden, the burden shifts to the Plaintiff to produce evidence to prove the existence of a triable issue of fact regarding that element of its cause of action or the defense at issue in the motion, and if Plaintiff is unable to do so, Defendant will be entitled to judgment as a matter of law. (Saelzler v. Advanced Group 400 (2001) 35 Cal.4th 763, 780-781.)
The only “evidence” submitted by Plaintiff is his own declaration, only some of which is admissible.
In ruling on a motion for summary judgment, the trial Court must consider all of the evidence and all of the inferences reasonably drawn therefrom (Code Civ. Proc., § 437c, subd. (c)), and must view the evidence and inferences in the light most favorable to the opposing party. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 843.) In examining the sufficiency of the affidavits filed in connection with a summary judgment motion, those filed by the moving party are strictly construed, and those of the opposing party are liberally construed. (D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 20-21.)
In resolving the motion, the Court may not weigh the evidence. (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 840.) Rather, the role of the trial Court in resolving a summary judgment motion is to determine whether issues of fact exist, not to decide the merits of the issues. (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107.) A triable issue of material fact exists only if the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 850.) Any doubts as to the propriety of granting the motion should be resolved in favor of the party opposing the motion. (Molko v. Holy Spirit Assn., supra at p. 1107.)
Role of Pleadings
“The pleadings play a key role in a summary judgment motion.” (Hutton v. Fidelity National Title Co. (2013) 213 Cal.App.4th 486, 493 (Hutton).) “The materiality of a disputed fact is measured by the pleadings [citations], which ‘set the boundaries of the issues to be resolved at summary judgment.’ [Citations.]” (Conroy v. Regents of University of California (2009) 45 Cal.4th 1244, 1250.) “Accordingly, the burden of a Defendant moving for summary judgment only requires that he or she negate Plaintiff’s theories of liability as alleged in the complaint; that is, a moving party need not refute liability on some theoretical possibility not included in the pleadings. [Citations.]” (Hutton, supra, 213 Cal.App.4th at p. 493.)
As noted above, the remaining causes of action in the FAC are: (1) Discrimination in violation of FEHA (Disability); (2) Discrimination in violation of FEHA (Race); (3) Harassment in violation of FEHA; (4) Retaliation in violation of FEHA; (5) Failure to accommodate disability; (6) Failure to engage in good faith interactive exchange re: accommodation of disability; (7) Failure to prevent harassment, retaliation or discrimination; (8) Violation of rights under the California Family Rights Act; and (9) Wrongful termination in violation of public policy.
The crux of the FAC is that: “ALBERT’s adverse actions toward Plaintiff were specifically and substantially motivated by two things: Plaintiff’s race, African American; and Plaintiff’s prior history of, and being regarded by Defendant as, disabled, due to a series of workplace injuries, from 2006 through 2015.” (FAC, ¶ 27.)
As will be shown below, in the discussion of undisputed facts, several of the allegations contained in the FAC have been refuted by Defendants’ evidence as well as Plaintiff’s own testimony.
Separate Statement
“The Separate Statement in Opposition to Motion must be in the two-column format specified in (h).
“(1) Each material fact claimed by the moving party to be undisputed must be set out verbatim on the left side of the page, below which must be set out the evidence said by the moving party to establish that fact, complete with the moving party’s references to exhibits.
“(2) On the right side of the page, directly opposite the recitation of the moving party’s statement of material facts and supporting evidence, the response must unequivocally state whether that fact is ‘disputed’ or ‘undisputed.’ An opposing party who contends that a fact is disputed must state, on the right side of the page directly opposite the fact in dispute, the nature of the dispute and describe the evidence that supports the position that the fact is controverted. Citation to the evidence in support of the position that a fact is controverted must include reference to the exhibit, title, page, and line numbers.
“(3) If the opposing party contends that additional material facts are pertinent to the disposition of the motion, those facts must be set forth in the separate statement. The separate statement should include only material facts and not any facts that are not pertinent to the disposition of the motion. Each fact must be followed by the evidence that establishes the fact. Citation to the evidence in support of each material fact must include reference to the exhibit, title, page, and line numbers.” (Cal. Rules of Court, rule 3.1350(f).)
“The opposition papers shall include a separate statement that responds to each of the material facts contended by the moving party to be undisputed, indicating if the opposing party agrees or disagrees that those facts are undisputed. The statement also shall set forth plainly and concisely any other material facts the opposing party contends are disputed. Each material fact contended by the opposing party to be disputed shall be followed by a reference to the supporting evidence. Failure to comply with this requirement of a separate statement may constitute a sufficient ground, in the Court’s discretion, for granting the motion.” (Code Civ. Proc., § 437c, subd. (b)(3).)
“Separate statements serve a laudable purpose. As explained in Weil & Brown, California Practice Guide (The Rutter Group 1996) Civil Procedure Before Trial, paragraph 10:94.1, pp. 10–31, 10–32, these documents are ‘intended to permit the judge to determine quickly whether the motion is supported by sufficient undisputed facts. If the opposing statement disputes an essential fact alleged in support of the motion, the judge merely has to review the evidence cited in support of that fact. This saves the judge from having to review all the evidentiary materials filed in support of and in opposition to the motion.’ ” (Kulesa v. Castleberry (1996) 47 Cal.App.4th 103, 113.)
Trader Joe’s and Albert set forth 66 facts that they argue are undisputed. In response, Plaintiff does not add any additional facts which he contends are material.
Undisputed Facts and Their Application
Plaintiff alleges that he was subject to disability and race-based discrimination, harassment, failure to accommodate disability, and wrongful termination based on his race and disabilities in violation of FEHA. He also alleges that the discharge was in violation of public policy.
“FEHA prohibits several employment practices relating to physical disabilities. First, it prohibits employers from refusing to hire, discharging, or otherwise discriminating against employees because of their physical disabilities. (Gov. Code, § 12940, subd. (a).) Second, it prohibits employers from failing to make reasonable accommodation for the known physical disabilities of employees. (Id., subd. (m).) Third, it prohibits them from failing to engage in a timely and good faith interactive process with employees to determine effective reasonable accommodations. (Id., subd. (n).) Fourth, it prohibits them from retaliating against employees for opposing practices forbidden by FEHA. (Gov. Code, § 12940, subd. (h).) Separate causes of action exist for each of these unlawful practices.” (Nealy v. City of Santa Monica (2015) 234 Cal.App.4th 359, 371 (Nealy).)
“A prima facie case of disability discrimination under FEHA requires the employee to show he or she (1) suffered from a disability, (2) was otherwise qualified to do his or her job, and (3) was subjected to adverse employment action because of the disability. [Citation.] Once the employee establishes his or her prima facie case, “ ‘the burden then shifts to the employer to offer a legitimate, nondiscriminatory reason for the adverse employment action.’ ” [Citation.] The employee may still defeat the employer’s showing with evidence that the stated reason is pretextual, the employer acted with discriminatory animus, or other evidence permitting a reasonable trier of fact to conclude the employer intentionally discriminated. [Citation.]” (Nealy, supra, 234 Cal.App.4th at p. 378.)
Because Plaintiff’s claim for wrongful termination is based on the same allegations of ultimate fact in the claim for violation of FEHA, the wrongful termination claim is thus premised on the violations of the public policies identified in FEHA, i.e., the prohibitions barring discrimination, harassment, and retaliation based on Plaintiff’s race, disability, and perceived disability.
When wrongful termination and FEHA claims are premised on the same prohibitions set forth in FEHA, the wrongful termination claim fails if the FEHA claim fails. (See Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 229 [affirming summary judgment of a FEHA and wrongful termination claim because there was no evidence that the nondiscriminatory business reason for terminating the employment was pretextual].) When FEHA is used as the source of public policy, the wrongful termination claim is premised on showing that FEHA was violated and is not established if FEHA was not violated. (See, e.g., Jennings v. Marralle (1994) 8 Cal.4th 121, 134-135 [reasoning that FEHA prohibition against employment discrimination based on age did not create a common law tort action for age discrimination against employers who were expressly exempted from FEHA coverage because they employed fewer than five employees].)
California Courts follow a modified version of the burden-shifting analysis of McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 in resolving FEHA employment claims on summary judgment. The specific elements of a prima facie case vary depending on the particular claim and facts.
In a retaliation claim, for example, “[i]n the first stage, the ‘Plaintiff must show (1) he or she engaged in a “protected activity,” (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer’s action.’ (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.) If the employee successfully establishes these elements and thereby shows a prima facie case exists, the burden shifts to the employer to provide evidence that there was a legitimate, nonretaliatory reason for the adverse employment action. (Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 68.) If the employer produces evidence showing a legitimate reason for the adverse employment action, ‘the presumption of retaliation “ “ ‘drops out of the picture,” ” ” (Yanowitz, supra, at p. 1042), and the burden shifts back to the employee to provide ‘substantial responsive evidence’ that the employer’s proffered reasons were untrue or pretextual (Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718, 1735).” (Loggins v. Kaiser Permanente Internat. (2007) 151 Cal.App.4th 1102, 1109.)
This burden-shifting approach applies also to a discrimination claim. Discrimination requires evidence that the employee was a member of a protected class, had satisfactory job performance, suffered an adverse employment action, and that similarly situated individuals outside the protected class were treated more favorably. (Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 355.) After the employee makes this prima facie case, the burden shifts to the employer to set forth competent, admissible evidence of its reasons, unrelated to bias, that it had a legitimate business reason for the claimed adverse employment action. (Id. at p. 357.)
Initially, it should be noted that most of the actions, alleged to have been taken by Trader Joe’s and Albert, were policy decisions initiated as a result of the COVID-19 pandemic that were directed at and applied to all of the Trader’s Joes employees. The polices were not directed toward anyone in particular, and there is no evidence that they were the result of race or disability-based animus. For example: mandating the wearing of protective masks and modifying health benefits based on hours worked.
As will become relevant in the discussion below: “Where a declaration submitted in opposition to a motion for summary judgment motion clearly contradicts the declarant’s earlier deposition testimony or discovery responses, the trial Court may fairly disregard the declaration and “ ‘ “conclude there is no substantial evidence of the existence of a triable issue of fact.” ’ ” [Citation.]” (Whitmire v. Ingersoll-Rand Co. (2010) 184 Cal.App.4th 1078, 1087.)
“Admissions or concessions made during the course of discovery govern and control over contrary declarations lodged at a hearing on a motion for summary judgment.” (Visueta v. General Motors Corp. (1991) 234 Cal.App.3d 1609, 1613.)
The following relevant facts are either undisputed or not reasonably disputed:
“Trader Joe’s prohibits discriminatory, retaliatory or harassing practices or conduct, and its policies set forth procedures for the reporting of such incidents if they should occur.” (UMF No. 1.) Although Plaintiff disputes this fact, it is not reasonably disputed. The moving parties have submitted admissible evidence that this is in fact a Trader Joe’s policy in the declaration of Trader Joe’s regional vice president Neufeld and the attached handbooks. Whether or not employees followed that policy is a separate issue.
“Trader Joe’s requires all Crew Members, in store and in the corporate offices, to undergo harassment and discrimination prevention training.” (UMF No. 3.)
“After the COVID pandemic emerged, Trader Joe’s regularly adapted its health and safety protocols to comport with the rapidly changing COVID guidelines and requirements of federal, state and municipal authorities.” (UMF No. 4.)
“These protocols included mandating masks while inside the stores, which Trader Joe’s communicated through its Captains (managers) and Mates (assistant managers) to its Crew Members during daily store meetings and throughout the store on signs and postings, which were also visible to customers.” (UMF No. 5.)
“On June 18, 2020, California instituted a mask mandate for all individuals.” (UMF No. 7.) “Trader Joe’s therefore instituted a mask mandate - requiring all Crew Members to wear masks.” (UMF No. 8.)
“Around a year later, on June 15, 2021, California first lifted mask mandates for vaccinated individuals, but the mask mandate remained in effect for unvaccinated individuals.” (UMF No. 9.) “When California lifted mask mandates for vaccinated individuals on June 15, 2021, Trader Joe’s permitted its vaccinated Crew Members to go maskless in the store upon showing proof of full vaccination status.” (UMF No. 11.)
“Trader Joe’s policy regarding masks was contained in the “ ‘Cloth Face Coverings’ ” section of the Trader Joe’s Safety Notebook, effective beginning in June 2021. This policy states that: “ ‘Fully vaccinated Crew Members are not required to wear face coverings in the store. Of course, any Crew Member that feels more comfortable continuing to wear a face covering in the store is allowed to do so. Crew Members who are not fully vaccinated, must wear face coverings while indoors . . ..’ ” ” (UMF No. 12.)
“Parker never presented any Captain or Mate with proof that he was fully vaccinated.” (UMF No. 13.)
“California did not lift the mask mandate for unvaccinated individuals until March 1, 2022 - which was well after Parker’s employment had ended.” (UMF No. 15.)
“On August 5, 2021, Parker entered the store where he worked wearing his uniform to pick up his paycheck.” (UMF No. 16.) “When Parker entered the store, he was not wearing a mask.” (UMF No. 17.) Although there is a minor dispute over who approached who: Albert told Plaintiff “that he was required to wear a mask and Albert instructed Parker to put his mask on.” (UMF No. 18.)
“August 5, 2021, was not the first time that Parker was in the store without a mask and had to be instructed by a supervisor to put his mask on.” (UMF No. 19.) “Although Parker cannot recall the exact date, Parker admits that on at least one other occasion before August 5th, he was not wearing a mask while in the store, and that he had to be instructed by a supervisor to put on his mask.” (UMF No. 20.)
“Because Parker had failed to comply with Trader Joe’s safety protocols and state and county guidance regarding masks on multiple occasions, Trader Joe’s made the decision to terminate his employment on August 11, 2021.” (UMF No. 21.) Although Plaintiff disputes this fact, it is not reasonably disputed. The moving parties have provided admissible evidence to support this fact, including Neufeld’s declaration, Albert’s declaration, and Plaintiff’s own deposition testimony. Plaintiff has provided no evidence that refutes the fact.
“This action was consistent with the termination of at least one other Crew Member (outside of Parker’s protected classes) who had also failed to follow the mask mandate in Parker’s region.” (UMF No. 22.) This fact is also not reasonably disputed by Plaintiff as he has failed to provide any evidence that it is an untrue statement.
The above facts alone are sufficient proof that Trader Joe’s terminated Plaintiff’s employment for a legitimate non-discriminatory reason. The burden would then shift to Plaintiff to offer substantial evidence that the reasons were untrue or pretextual. Plaintiff has failed to offer any admissible evidence that the stated reasons were untrue or pretextual.
However, Trader Joe’s does not stop with the above facts (perhaps in anticipation of Plaintiff’s opposition). Additional relevant facts that are either undisputed or not reasonably disputed, include:
“Prior to the COVID pandemic, in order to receive health benefits, Trader Joe’s Crew Members were required to work an average of 30 hours per week.” (UMF No. 23.) “In 2020, Trader Joe’s implemented a temporary policy whereby all Crew Members, nationwide, who had been eligible to receive health benefits from January 2020 through June 2020, would continue to receive those benefits through the end of the year regardless of the number of hours they worked.” (UMF No. 24.)
“During this time, Parker testified that he voluntarily elected to decrease his hours such that he was working less than an average of 30 hours per week.” (UMF No. 27.)
“Pursuant to the temporary benefits policy, Parker maintained his health benefits through the end of the year in 2020.” (UMF No. 29.)
“Under the temporary policy, in order to qualify for benefits for the following year (2021), Crew Members were required to resume working an average of 30 hours per week for the period of June 2020 through November 2020.” (UMF No. 30.) This fact is not reasonably disputed. Whether or not Plaintiff, and other crew members, were informed of this does not address what is stated in the undisputed material fact. The moving parties have provided admissible evidence that the fact is accurate. Further, it is a policy that applied to all crew members, not just Plaintiff.
“Because Parker had previously reduced his hours to less than an average of 30 hours per week, in December 2020 he was notified in Dayforce that his benefits were set to expire for the following year because he had not resumed working an average of 30 hours per week for the measurement period of June 2020 through November 2020.: (UMF No. 32.) “After Parker was notified by Dayforce that his benefits were set to expire because he was not working the requisite hours for the relevant time-period, he chose to resume working an average of 30 hours per week, and his benefits were thereafter reinstated in July 2021.” (UMF No. 33.)
“Parker testified that he was aware that other Crew Members, not just him, also did not work sufficient hours to qualify for benefits for the next measurement period.” (UMF No. 34.)
“In August 2020, Zeb Albert became the new Store Captain of Store 59, where Parker worked.” (UMF No. 35.) “For the 5-month period between August 2020 through December 2020, Albert observed his Crew Members’ performance including Parker’s” (UMF No. 36.) Although Plaintiff points out that Albert arrived at the store at the end of August, this fact is not reasonably disputed.
“After reviewing each Crew Members’ Dayforce file and obtaining feedback from their Mates, the Captain prepared each Crew Members’ 6-moth performance review, including Parker’s which were presented in February 2021 and covered the review period from July 2020 - December 2020.” (UMF No. 37.) This fact is not reasonably disputed.
“In Parker’s February 2021 review, he was given a ‘Needs Improvement’ rating in four categories and was ultimately provided with a ‘Does Not Meet Expectations’ overall.” (UMF No. 38.) “The evaluation noted that Parker needed to improve on teamwork and flexibility, as his team leaders struggled when it came to assigning him tasks that he did not prefer and stressed that he needed to be open to working various section of the store despite his own personal preferences.” (UMF No. 39.)
“[In his] August 2021 review, Parker received a ‘Meets Expectations’ rating in all categories, which was also prepared by Albert.” (UMF No. 42.) “As a result of the August 2021 performance evaluation, Parker received a pay raise.” (UMF No. 43.) This fact is not reasonably disputed. “The February 2021 and August 2021 performance evaluations were the only evaluations issued by Albert regarding Parker’s performance.” (UMF No. 44.)
“Further, although Parker also intimates in his Complaint that Albert also decreased his hours, Parker testified that the policy actually increased his hours, which he was ‘fine’ with because ‘[i]t’s only an additional two hours.” (UMF No. 47.)
“During the time that Parker was employed with Trader Joe’s, he requested and was granted multiple medical leaves of absences without incident.” (UMF No. 48.) This fact is not reasonably disputed. Plaintiff has admitted that he did not formally request a medical leave of absence eight days before he was terminated.
“Parker never submitted a request for leave from Trader Joe’s that was not granted.” (UMF No. 49.) This fact is not reasonably disputed because Plaintiff admitted the stated fact during his deposition.
“During his deposition, Parker testified that sometime in August 2021, he informed Mate, Laura Hoffman, that he planned on going on leave in September 2021 for wrist surgery.” (UMF No. 51.) “Albert maintains that he was never aware of Parker’s intention to take time off in September 2021.” (UMF No. 53.) “Parker never submitted a request to Trader Joe’s to take a medical leave in September 2021.” (UMF No. 54.) This fact is not reasonably disputed.
“On February 15, 2021, Parker contacted [Vivian] Wong to discuss his February 2021 performance evaluation, which Wong directed to Neufeld.” (UMF No. 58.) “Thereafter, Neufeld visited Store 59 to meet with Parker.” (UMF No. 59.)
“Parker testified that after his employment with Trader Joe’s had already ended, he was later told by a third party that this third party heard Albert ask ‘What’s up with you and the big black guy’ when Albert was asking a question about Parker’s relationship with another Crew Member.” (UMF No. 61.) “Parker never heard this alleged comment himself.” (UMF No. 62.)
“Parker also testified that no one at Trader Joe’s ever made any negative comments with regard to his alleged disability.” (UMF No. 63.) This fact is not reasonably disputed as it comes from Plaintiff’s own deposition testimony.
Plaintiff has provided no response to UMF Nos. 64 through 66, which are stated under “Issue 22” in reference to the motion for summary adjudication. The failure to dispute those facts is an admission of their truth. Those facts are:
“Albert is not an officer, director, or managing agent of Trader Joe’s Company.” (UMF No. 64.) “Albert has never wrote or participated in the writing of, or made revisions to, any of Trader Joe’s Company corporate policies.” (UMF No. 65.) “As a Captain, Albert is required to closely follow all of Trader Joe’s Company policies, including human resources policies, and does not have the authority to deviate from them.” (UMF No. 66.)
A successful opposition to a summary judgment motion requires evidence, not just allegations, showing that there are disputed issues of material fact for which a trial is necessary. (Code Civ. Proc., § 437c; Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 843.)
Code of Civil Procedure section 437c, subdivision (p)(2) provides in part “The Plaintiff or cross-complainant shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.”
Plaintiff’s opposition, declaration, and sur-reply are essentially reiterations of the FAC and are not supported by any admissible evidence other than the portions of Plaintiff’s declaration to which an objection was not sustained.
Plaintiff has provided no evidence at all that his treatment, reviews, or his eventual termination were in any way motivated by Plaintiff’s race or any disability. Other than the eventual termination, for violating the masking policy on more than one occasion, the things that Plaintiff complains of were things that applied to all of the Trader Joe’s employees. For example, the policy changes because of COVID, the shift changes, and the insurance coverage were not specific to Plaintiff, nor did they apply solely to employees within Plaintiff’s protected class.
Because of Plaintiff’s failure to provide any evidence at all of racial or disability-based animus as a reason for his termination, that any harassment was directed at him because of race or disability, or that he engaged in any protected activity for which an adverse employment action was taken, there are no triable issues of material fact as to any of Plaintiff’s FEHA based discrimination, harassment, retaliation, or wrongful termination causes of action.
Likewise, Plaintiff’s failure to accommodate and failure to engage in the interactive process claims fail as a matter of law. Plaintiff has provided no evidence that he has a disability for which Trader Joe’s failed to reasonably accommodate or that he requested any accommodation to perform his job functions.
Because there are no triable issues of material fact as to any of Plaintiff’s causes of action, summary judgment will be granted.
