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1 JACKSON LEWIS P.C.
JAMES T. JONES (SBN 167967)
2 KELSEY F. MORRJS (SBN 311117)
400 Capitol Mall, Suite 1600
3 Sacramento, Califomia 95814 FlLEO/E^OORSED
Telephone: (916)341-0404
4 Facsimile: (916)341-0141
Email: iames.iones@iacksonlewis.com
MAY 2 7 2022
5 kelsey.morris@iacksonlewis.com
By:. S. Cade
Deputy ClEfk
6 Attomeys for Defendant
LIQUI-BOX CORPORATION
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 COUNTY OF SACRAMENTO
10 SAJIDA ZAMAN, CASE NO. 34-2019-00252121 -CU-WT-GDS
11 Plaintiff, MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF
12 vs. DEFENDANT LIQUI-BOX
CORPORATION'S MOTION FOR
13 LIQUI-BOX CORPORATION, and DOES SUMMARY JUDGMENT AND/OR
through 20, inclusive. SUMMARY ADJUDICATION OF
14 ISSUES
Defendants.
15 Date: August 10, 2022
Time: 1:30 p.m. BY FAX
16 Dept: 53
Reservation No.: 2644651
17
Complaint Filed: March 8, 2019
18 Trial Date: September 12, 2022
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT LIQUI-BOX CORPORATION'S
MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION OF ISSUES
1 T A B L E OF CONTENTS
2 Page
3
L INTRODUCTION 7
4
II. STATEMENT OF FACTS 7
5
A. Defendant's Safety Policy and Practices Encourage Employees to
6 Report Workplace Injuries and Promote Workplace Safety 7
7 B. Plaintiff Violated Defendant's Critical Safety Behaviors Policy 8
8 C. Defendant Terminated Plaintiff s Employment Because She Violated
the Critical Safety Behaviors Policy 9
9 D. Plaintiffs Causes of Action 9
10
III. SUMMARY JUDGMENT AND ADJUDICATION STANDARD 10
11
12 IV. LEGAL ARGUMENT 10
13 A. Plaintiffs First Cause of Action for Wrongful Termination in Violation
of Public Policy Fails As a Matter of Law Because Defendant Terminated
14 Her Employment for Lawful Reasons That Did Not Violate Any
Public Policy 11
15
B. Plaintiffs Second Cause of Action for Retaliation Fails As a Matter
16 of Law Because Defendant Did Not Take Adverse Action Toward
Plaintiff for Any Retaliatory Reason in Violation of a Statute, Regulation,
17 or Public Policy 12
18 C. Plaintiffs Third Cause of Action for Disability Discrimination Fails
As a Matter of Law Because Defendant Did Not Take Adverse Action
19 Toward Plaintiff Because of Plaintiff s Disability 12
20 D. Plaintiffs Fourth Cause of Action for Failure to Engage in the Interactive
Process Fails As a Matter of Law Because Defendant Terminated
21 Plaintiffs Employment for Legitimate Business Reasons Unrelated to
Her Disability and No Further Obligation to Engage in an Interactive
22 Process to Identify a Reasonable Accommodation Existed.
23 E. Plaintiffs Fifth Cause of Action for Failure to Provide a Reasonable
Accommodation Fails As a Matter of Law Because Defendant
24 Terminated Plaintiffs Employment for Legitimate Business Reasons
Unrelated to Her Disability and There Was No Further Obligation to
25 Provide a Reasonable Accommodation 17
26 F. Plaintiffs Sixth Cause of Action for Intentional Infliction of Emotional
Distress Fails As a Matter of Law Because Defendant Did Not Engage
27 in Any Extreme or Outrageous Conduct Towards Plaintiff When
Defendant Terminated Plaintiffs Employment 17
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT LIQUI-BOX CORPORATION'S
MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION OF ISSUES
G. Plaintiffs Seventh Cause of Action for Unfair Competition Fails
As a Matter of Law Because Plaintiff Did Not Suffer an Injury Resulting
2 from Unfair Competition 19
3 H. Plaintiffs Claim for Punitive Damages Fails As a Matter of Law
Because Plaintiff Cannot Establish by Clear and Convincing Evidence
4 That Defendant Engaged in Conduct Toward Her That Was Malicious,
Oppressive, or Fraudulent 20
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g V. CONCLUSION 21
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT LIQUI-BOX CORPORATION'S
MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION OF ISSUES
1 T A B L E OF AUTHORITIES
2 Page
3 STATE CASES
4 Arteaga V. Brink's Inc.
(2008) 163 Cal.App.4th 327 15
5
Basich v. Allstate Ins. Co.
6 (2001)87 Cal.App.4th 1112 20
7 Burton v. v. Security Pacific National Bank
(1988) 197 Cal.App.3d 972 14, 15
8
Caldwell v. Paramount Unified School Dist.
9 (1995)41 Cal.App 4th 189 12
10 Califomians for Disability Rights v. Mervyn's, LLC
(2006) 39 Cal.4th 223 19
11
Clark V. Claremont Univ. Ctr.
12 (1992) 6 Cal.App.4th 639 13
13 Cuiellette v. City of Los Angeles
(2011) 194 Cal.App.4th 757 17
14
Featherstone v. Southern Cal. Permanente Med. Grp.
15 (2017) 10 Cal.App.5th 1150 11
16 Fermino v. Fedco, Inc.
(1994)7Cal.4th 701 18
17
Fisher v. San Pedro Hospital
18 (1989) 214 Cal.App.3d 590 18
19 Flait V. North Amer. Watch Corp.
(1992)3 Cal.App.4th 467 12
20
Gonzalez v. Metpath, Inc.
21 (1989) 214 Cal.App.3d 422 14
22 Green v. Ralee Eng. Co.
(1998) 16Cal.4th 66 11
23
Guz V. Bechtel National, Inc.
24 (2000) 24 Cal.4th 317 10, 12-14
25 Harris v. City of Santa Monica
(2013) 56 Cal.4th 203 14
26
Hersant v. Dept. of Social Services
21 (1997)57Cal.App.4th997 14,15
28 ///
4
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT LIQUI-BOX CORPORATION'S
MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION OF ISSUES
1 Husman v. Toyota Motor Credit Corp.
(2017) 12 Cal.App.5th 1168 10
2
Kelly-Zurian v. Wohl Shoe Co.
3 (1994)22Cal.App.4th397 20
4 King V. United Parcel Service, Inc.
(2007) 152 Cal.App.4th 426 15
5
Mathieu v. Norrell Corp.
6 (2004)115 Cal.App.4th 1174 20
7 McGory v. Applied Signal Technology, Inc.
(2013) 212 Cal.App.4th 1510 15
8
Miklosy v. Regents of Univ. of CaL
9 (2008) 44 Cal.4th 876 18
10 Nadaf-Rahrov v. Neiman Marcus Group, Inc.
(2008) 166 Cal.App.4th 952 16
11
Potter V. Firestone Tire Rubber Co.
12 (1993)6Cal.4th965 18
13 Saelzler v. Advanced Group 400
(2001)25 Cal.4th 763 15
14
Scott V. Phoenix Schools, Inc.
15 (2009) 175 Cal.App.4th 702 21
16 Sequoia Ins. Co. v. Superior Court
(1993) 13 Cal.App.4th 1472 11
17
Shoemaker v. Myers
18 (1990)52Cal.3d 1 19
19 Singh V. Southland Stone, U.S.A., Inc.
(2010) 186 Cal.App.4th 338 18, 19
20
Tameny v. Atlantic Richfield Co.
21 (1980)27Cal.3d 167 11
22 Trop V. Sony Pictures Entertainment, Inc.
(2005) 129 Cal.App.4th 1133 13
23
Wilkin V. Cmty. Hosp. of Monterey Peninsula
24 (2021) 71 Cal.App.5th 806 16, 17
25 Wills V. Superior Court
(2011) 195 Cal.App.4th 143 13
26
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5
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT LIQUI-BOX CORPORATION'S
MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION OF ISSUES
1 FEDERAL CASES
2 Alamillo v. BNSF Ry. Co.
(9th Cir. 2017) 869 F.3d916 16, 17
3
Bradley v. Harcourt. Brace & Co.
4 (1996) 104 F.3d 267 14
5 Day v. Sears Holdings Corp.
(C.D.Cal. 2013) 930 F.Supp.2d 1146 13
6
Lawler v. Montblanc N. Am., LLC
1 (2013) 704 F.3d 1235 19
8 McDonnell Douglas Corp. v. Green
(1973)411 U.S. 792 13, 14
9
Mclnteer v. Ashley Distrib. Servs.
10 (C.D.Cal. 2014) 40 F.Supp.3d 1269 13
11 Raytheon Co. v. Hernandez
(2003) 540 U.S. 44 13
12
iS'^. Mary's Honor Ctr. v. Hicks
13 (1993) 509 U.S. 502 14
14 STATE STATUTES
15 Cal. Bus. & Prof. Code
16 § 17204 19
17 Cal. Civ. Code
§ 3294 20
18
Cal. Code Civ. Proc.
19
§437c 10
20
Cal. Gov. Code
21 § 12940(n) 16
22 Cal. Lab. Code
23 § 3600 et seq 18
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT LIQUI-BOX CORPORATION'S
MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION OF ISSUES
1 I. INTRODUCTION
2 Defendant Liqui-Box Corporation ("Defendant") moves for summary judgment and/or
3 summary adjudication of each and every claim brought by Plaintiff Sajida Zaman ("Plaintiff')
4 because every cause of action in her Complaint is predicated on allegations that she was
5 unlawfully terminated, but the undisputed facts demonstrate that Defendant terminated her
6 employment based on a legitimate business decision. The decision to terminate Plaintiffs
7 employment was not caused by any protected legal status or protected activity and it did not
8 violate any statute, regulation, or public policy.
9 Plaintiff worked as a "Packer" at Defendant's Sacramento, Califomia manufacturing
10 facility. Defendant discovered that Plaintiff failed to timely report a workplace injury, thereby
11 violating Defendant's safety policy, and Defendant terminated her employment due to that policy
12 violation. That decision did not violate any statute, regulation, or public policy, and for those
13 reasons Plaintiffs claims fail as a matter of law. Thus, summary judgment in favor of Defendant
14 is appropriate. Altematively, Defendant requests that the Court grant summary adjudication on
15 each of Plaintiffs causes of action and on her claim for punitive damages.
16 IL STATEMENT OF FACTS
17 A. Defendant's Safety Policy and Practices Encourage Employees to Report
Workplace Injuries and Promote Workplace Safety.
18
19 Defendant employed Plaintiff until January 10, 2019. (Undisputed Material Fact
20 ["UMF"] 1.) During Plaintiffs employment. Defendant had a policy called the "Critical Safety
21 Behaviors Policy", which provides that employees must promptly report all safety incidents to
22 a supervisor or manager. (UMFs 2, 3.) Violation of the Critical Safety Behaviors Policy is
23 grounds for termination. (UMF 4.)
24 Defendant also has a "Standard Operating Procedure AS 1025" ("AS 1025"), issued on
25 March 6, 2017, that sets forth Defendant's practices for investigating safety incidents that require
26 medical attention, near miss incidents, and fires. (UMF 5.) AS 1025 defines "near miss" to mean
27 an occurrence that created potential for injury or property damage, and it provides that "[a]ny
28 incident requiring any type of treatment to any employee or contractor, a near miss, or any
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT LIQUI-BOX CORPORATION'S
MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION OF ISSUES
1 incident resulting in equipment damage, or fire shall be reported immediately to a shift leader."
2 (UMFs 6, 7.) Additionally, i f a shift leader is not available, a report can be made to the Plant
3 Manager, EH&S (Environmental Health & Safety) Manager, or the Human Resources Manager.
4 (UMF 8.) AS 1025 also sets forth additional steps that must be taken to investigate and report on
5 safety incidents, including the preparation of a "4 Panel Review for any employee who sustains
6 an injury resulting in medical treatment, restricted workdays or lost workdays . . . ." (UMF 9.)
7 In order to promote workplace safety, in addition to issuing the Critical Safety Behaviors Policy
8 and AS 1025, Defendant conducts employee training and obtains employee acknowledgments
9 regarding awareness of the Critical Safety Behaviors Policy. (UMF 10.)
10 On or about October 10, 2017, Plaintiff acknowledged that she had been trained and
11 understood that all injuries, incidents or near misses were to be reported promptly to a supervisor
12 or manager. (UMF 11.) On or about June 4, 2018, Plaintiff acknowledged that she had been
13 given a copy of the Critical Safety Behaviors policy, it had been explained to her, she agreed to
14 comply with it, and she knew that violating the policy would lead to termination of employment.
15 (UMF 12.)
16 B. PlaintifT Violated Defendant's Critical Safety Behaviors Policy.
17 On January 3, 2019, Plaintiff reported to Defendant that she had suffered an injury and
18 claimed it had occurred at work several weeks earlier. (UMFs 13, 14.) On January 3, 2019,
19 Plaintiff filled out a "Liqui-Box Sacramento AS 1059 Employee INVESTIGATION FORM"
20 indicating she was injured at work while pushing a "mega tote." (UMF 14.) Plaintiff identified
21 the date of the incident as "Decmeb I week." (UMF 15.) Plaintiff described the injury as muscle
22 swelling and stated that she received medical treatment for the injury on December 31, 2018.
23 (UMFs 16, 17.)
24 Defendant received a "Work Status Report" from U.S. Health Works Medical Group
25 related to Plaintiffs injury that indicated she was examined on January 3, 2019, and she was
26 given a diagnosis of "Strain of left knee" and "Strain of left hamstring muscle." (UMF 18.) The
27 Work Status Report indicated the incident occurred on December 3, 2018. (UMF 19.)
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8
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT LIQUI-BOX CORPORATION'S
MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION OF ISSUES
1 After receiving this information. Defendant conducted the "4 Panel Review" related to
2 Plaintiffs injury pursuant to AS 1025. (UMF 20.) The "4 Panel Review" summarized Plaintiffs
3 incident as follows:
4 Sajida indicated that she was pushing a mega tote cart with about
400 bags 3-4 weeks ago. Sajida stated that the wheel(s) on the cart
5 were not working properly so she overcompensated to push the cart.
Sajida stated that over the last weeks she incurred swelling and
6 knee pain - taking over the counter ibuprofen.
7 (UMF 21.)
8 The "4 Panel Review" also noted that Plaintiff was triaged through Medcor and sent to
9 U.S. Healthworks for a post-injury evaluation. (UMF 22.) Plaintiffs Medcor "Workplace Injury
10 Triage & Reporting" incident report stated that:
11 [Ajbout a month ago she was pushing a box on wheels when she
developed pain in her left knee. She sought care at Methodist
12 Hospital emergency room in Sacramento, CA on 12/31/18 where
she was treated for knee injury and was advised to follow up with
13 her PMD if pain did not improve.
14 (UMF 23.)
15 C. Defendant Terminated Plaintiffs Employment Because She Violated the
Critical Safety Behaviors Policy.
16
17 Defendant terminated Plaintiffs employment on January 10, 2019 because Defendant
18 concluded that Plaintiff had violated the Critical Safety Behaviors Policy. (UMF 24.) Defendant
19 prepared a "HR Status Change Form" documenting the reason for the termination of Plaintiffs
20 employment, which stated,: "Involuntary - Violation of Critical Safety Behaviors - Neglected to
21 report injury timely." (UMF 25.) Defendant's Chief Human Resources Officer, Angela Kenyon,
22 and Chief Operating Officer, Andrew McClelland, made the decision to terminate Plaintiffs
23 employment. (UMF 26.) The only reason Defendant terminated Plaintiffs employment was
24 because she had not timely reported the workplace injury Defendant became aware of for the
25 first time on January 3, 2019. (UMF 27.)
26 D. Plaintiffs Causes of Action.
27 Plaintiff pleads the following causes of action against Defendant in her First Amended
28 Complaint for Damages ("FAC"): (1) wrongful termination in violation of public policy;
9
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT LIQUI-BOX CORPORATION'S
MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION OF ISSUES
1 (2) retaliation in violation of public policy; (3) disability discrimination in violation of the Fair
2 Employment and Housing Act ("FEHA"); (4) failure to engage in the interactive process in
3 violation of FEHA; (5) failure to provide a reasonable accommodation in violation of FEHA;
4 (6) intentional infliction of emotional distress; and (7) unfair competition law. (FAC, p. 1.)
5 III. SUMMARY JUDGMENT AND ADJUDICATION STANDARD
6 A motion for summary judgment or summary adjudication shall be granted where the
7 evidence shows "that there is no triable issue as to any material fact and that the moving party is
8 entitled to judgment as a matter of law." (Code Civ. Proc, § 437c(c), (f).) When a defendant
9 moves for summary judgment in a situation in which the plaintiff would have the burden of proof
10 at trial by a preponderance of the evidence, the defendant may, but need not, present evidence that
11 conclusively negates an element of the plaintiffs cause of action. (Husman v. Toyota Motor
12 Credit Corp. (2017) 12 Cal.App.5th 1168, 1179-80.) Altematively, the defendant may present
13 evidence to show that one or more elements of the cause of action cannot be established by the
14 plaintiff. (Id.)
15 In the context of a discrimination claim, an employer may satisfy its burden of proving a
16 cause of action has no merit by showing either that one or more elements of the prima facie case
17 "is lacking, or that the adverse employment action was based on legitimate nondiscriminatory
18 factors." (Id. at 1181-82; see Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 356-57.) An
19 employer is entitled to summary judgment if, considering the employer's innocent explanation for
20 its actions, the evidence as a whole is insufficient to permit a rational inference that the
21 employer's actual motive was discriminatory. (Husman, 12 Cal.App.5th at 1182.) To defeat the
22 motion, the employee must identify evidence that raises a triable issue that would permit a trier of
23 fact to find by a preponderance that intentional discrimination occurred. (Id.) Circumstantial
24 evidence of pretense must be "specific" and "substantial" to create a triable issue. (Id.)
25 IV. L E G A L ARGUMENT
26 As discussed below. Plaintiff's claims fail as a matter of law because she cannot establish
27 one or more of the elements of each cause of action. Therefore, summary judgement or summary
28 adjudication of each cause of action should be granted in favor of Defendant.
10
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT LIQUI-BOX CORPORATION'S
MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION OF ISSUES
1 A. Plaintiffs First Cause of Action for Wrongful Termination in Violation of
Public Policy Fails As a Matter of Law Because Defendant Terminated Her
2 Employment for Lawful Reasons That Did Not Violate Any Public Policy.
3 To prevail on a claim for wrongful termination, a plaintiff must demonstrate that her
4 termination violated "fundamental principles of public policy." (Tameny v. Atlantic Richfield Co.
5 (1980) 27 Cal.3d 167, 170.) The cause of action is limited to those claims finding support in an
6 important public policy based on a statutory or constitutional provision. (Green v. Ralee Eng. Co.
1 (1998) 16 Cal.4th 66, 79.) A wrongful termination in violation of public policy claim based
8 upon violation of a statute cannot proceed where the facts do not support the underlying statutory
9 violation. (Sequoia Ins. Co. v. Superior Court (1993) 13 Cal.App.4th 1472, 1475;
10 see Featherstone v. Southern Cal. Permanente Med. Grp. (2017) 10 Cal.App.5th 1150, 1169
11 ["Under Califomia law, if an employer did not violate FEHA, the employee's claim for wrongful
12 termination in violation of public policy necessarily fails"].)
13 Here, in support of her wrongful termination claim. Plaintiff claims Defendant's conduct
14 violates the policies embodied in: (1) Labor Code section 132a, which prohibits discrimination
15 and retaliation against injured employees who file or plan to file a workers' compensation claim;
16 (2) FEHA (Cal. Gov. Code, § 12940 et seq.), which prohibits discrimination and retaliation
17 based on a protected characteristics enumerated in the FEHA); (3) federal OSHA regulations
18 (29 C.F.R. § 1904.35); and (4) Califomia OSHA regulations (8 C C R §§ 14300.35-14300.36).
19 The undisputed evidence establishes that Defendant did not violate the public policies
20 contained within any of the above statutes and regulations because Plaintiff was aware she had
21 suffered a workplace injury and unreasonably delayed reporting it for several weeks in violation
22 of Defendant's Critical Safety Behaviors Policy. (UMFs 1-27.) Because the termination was
23 based on a legitimate business decision and Plaintiff suffered no cognizable harm, no public
24 policy was violated, Plaintiffs claim for wrongful termination fails as a matter of law, and it
25 should be dismissed.
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n
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT LIQUI-BOX CORPORATION'S
MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION OF ISSUES
1 B. Plaintiffs Second Cause of Action for Retaliation Fails As a Matter of Law
Because Defendant Did Not Take Adverse Action Toward Plaintiff for Any
2 Retaliatory Reason in Violation of a Statute, Regulation, or Public Policy.
3 To prevail on her retaliation claim. Plaintiff must show: (1) she engaged in a protected
4 activity; (2) she suffered an adverse employment action; and (3) the adverse action was taken
5 because of the protected activity. (Flait v. North Amer. Watch Corp. (1992) 3 Cal.App.4th 467,
6 476; Guz, 24 Cal.4th at 354-56.) Here, Plaintiff claims Defendant retaliated against her for
7 reporting her workplace injury and filing a workers' compensation claim. (FAC, t 22.)
8 However, the undisputed evidence conclusively shows Plaintiff was not terminated in retaliation
9 for engaging in any protected activity. Rather, Defendant concluded that Plaintiff had violated
10 the Critical Safety Behaviors policy and terminated her employment for that policy violation.
11 (UMFs 38-40, 46-48, 51-54.) Her termination was not caused by the act of reporting a
12 work-related injury or filing a workers' compensation claim. (See UMFs 28-54.)
13 C. Plaintiffs Third Cause of Action for Disability Discrimination Fails As
a Matter of Law Because Defendant Did Not Take Adverse Action Toward
14 Plaintiff Because of Plaintiffs Disability.
15 In the summary judgment context, Califomia has adopted the three-stage burden-shifting
16 test for claims of discrimination in violation of FEHA. To establish a prima facie case on
17 summary judgment. Plaintiff must establish: (1) she was disabled; (2) she was able to perform
18 the essential job duties of her position with or without reasonable accommodation; (3) she
19 suffered an adverse employment action; and (4) other circumstances suggesting discriminatory
20 motive. (Guz, 24 Cal.4th at 355-56.) If Plaintiff is able to establish a prima facie case of
21 discrimination, Liqui-Box must articulate a legitimate, non-discriminatory reason for its actions.
22 (Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App 4th 189, 203.) After it satisfies
23 this burden. Plaintiff must establish that the proffered reasons were pretextual, and the real reason
24 for the adverse action was her disability. (Id.)
25 Here, Plaintiff cannot even establish the prima facie case because she cannot demonstrate
26 there were circumstances suggesting a discriminatory motive. The undisputed facts show
27 Defendant terminated Plaintiffs employment because she unreasonably failed to promptly report
28 a workplace injury in violation of the Critical Safety Behaviors policy. (UMFs 55-81.)
12
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT LIQUI-BOX CORPORATION'S
MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION OF ISSUES
1 Assuming arguendo that Plaintiff can establish a prima facie case, the burden shifts to Defendant
2 to articulate some legitimate, non-discriminatory reason for its actions. (McDonnell Douglas
3 Corp. V. Green (1973) 411 U.S. 792, 802-04.) The burden is not a difficult one; it is only
4 required that Defendant articulate a legitimate reason for its conduct. (Clark v. Claremont Univ.
5 Ctr. (1992) 6 Cal.App.4th 639, 663.) An employer's use of neutral, non-discriminatory policies
6 in making employment decisions satisfies the burden. (Raytheon Co. v. Hernandez (2003)
7 540 U.S. 44, 53-54.) Even if the reasons are "foolish or trivial or baseless", they will suffice so
8 long as they are honestly believed and non-discriminatory on their face. (Guz, 24 Cal.4th at 358.)
9 Here, Defendant honestly believed termination of Plaintiffs employment was justified because
10 she had unreasonably failed to promptly report a workplace injury in violation of the Critical
11 Safety Behaviors policy.
12 State and federal courts recognize workplace misconduct and violations of company
13 policy as a legitimate, non-discriminatory reason for terminating an employee. (Mclnteer v.
14 Ashley Distrib. Servs. (C.D.Cal. 2014) 40 F.Supp.3d 1269, 1285 [upholding termination for
15 "complaints of inappropriate behavior from coworkers and violations of company attendance
16 policies"]; 1^/7/5 v. Superior Court (2011) 195 Cal.App.4th 143, 171 [upholding termination for
17 violating policy against verbal threats and misconduct in the workplace]; Trop v. Sony Pictures
18 Entertainment, Inc. (2005) 129 Cal.App.4th 1133, 1149 [upholding termination for mishandling
19 telephone messages, taking extended vacations, and tardiness]; Day v. Sears Holdings Corp.
20 (C.D.Cal. 2013) 930 F.Supp.2d 1146, 1169-70 [upholding termination for violating company
21 policies on confidentiality and cooperation with human resources investigations].)
22 Here, the undisputed evidence conclusively shows that when Defendant leamed of
23 Plaintiffs work-related injury. Defendant conducted an investigation and concluded that Plaintiff
24 violated Defendant's Critical Safety Behaviors Policy by failing to report her injury for close to a
25 month. (UMFs 65-75, 78-79, 81.) The reason for Plaintiff s tennination was honestly held and
26 non-discriminatory on its face. (Id.)
21 Having shown a legitimate, non-discriminatory and non-retaliatory reason for the adverse
28 action. Plaintiffs discrimination claim survives only if she can demonstrate by substantial,
13
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT LIQUI-BOX CORPORATION'S
MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION OF ISSUES
1 responsive and admissible evidence that the reasons proffered for her termination are a pretext to
2 mask an unlawful, discriminatory motive. (McDonnell Douglas, 411 U.S. at 802; St. Mary's
3 Honor Ctr. v. Hicks (1993) 509 U.S. 502, 506.) Plaintiffs mere suspicions as to Defendant's
4 motive do not constitute substantial, responsive evidence sufficient to overcome summary
5 judgment. (Burton v. Security Pacific National Bank (1988) 197 Cal.App.3d 972, 978
6 [speculation cannot be regarded as substantial evidence and is insufficient to establish a triable
7 issue of material fact].)
8 Courts have consistently declared that discrimination laws are not intended to be a vehicle
9 for second-guessing business decisions or to transform courts into personnel managers.
10 (Bradley v. Harcourt, Brace & Co. (1996) 104 F.3d 267, 270; Gonzalez v. Metpath, Inc. (1989)
11 214 Cal.App.3d 422, 428 ["Employers must be given wide latitude to make independent, good-
12 faith personnel decisions without the threat of a jury second-guessing their business judgment.
13 . . . The courts cannot perform these evaluations anew."].) An employee's subjective
14 disagreement with a personnel decision cannot raise a triable issue as to discrimination -
15 discriminatory motive, not merely a questionable decision, must be established. (Guz, 24 Cal.4th
16 at 358 [ i f non-discriminatory, the employer's true reasons for the adverse action need not
17 necessarily have been wise or correct... the ultimate issue is simply whether the employer acted
18 with a motive to discriminate illegally]; Hersant v. Dept. of Social Services (1997)
19 57 Cal.App.4th 997, 1005 ["What the employee has brought is not an action for general
20 unfaimess but for . . . discrimination"].) Thus, to prove discriminatory intent, Plaintiff has the
21 ultimate burden of proving her protected characteristic was a "substantial motivating factor" for
22 the adverse action. (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 231 -32 ["requiring the
23 plaintiff to show that discrimination was a substantial motivating factor, rather than simply
24 a motivating factor, more effectively ensures that liability will not be imposed based on evidence
25 of mere thoughts or passing statements unrelated to the disputed employment decisions"].)
26 Here, Plaintiff cannot establish that the reason for her termination, violation of the Critical
27 Safety Behaviors Policy, was pretextual. Defendant drew a sound conclusion that Plaintiff had
28 violated its mles and policies. (See UMFs 67-81.) Whether or not Plaintiff agrees with the
14
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT LIQUI-BOX CORPORATION'S
MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION OF ISSUES
1 degree of discipline is irrelevant. (See King v. United Parcel Service, Inc. (2007)
2 152 Cal.App.4th 426, 433 ["plaintiffs subjective beliefs in an employment discrimination case
3 do not create a genuine issue of fact"]; McGory v. Applied Signal Technology, Inc. (2013)
4 212 Cal.App.4th 1510, 1537 ["mere speculation, conjecture, or fantasy are insufficient to create
5 triable issue as to employer's alleged discriminatory motive"]; Saelzler v. Advanced Group 400
6 (2001) 25 Cal.4th 763, 774 [plaintiffs evidence must relate to the motivation of the decision
7 makers to prove, by non-speculative evidence, an actual causal link between prohibited
8 motivation and termination].)
9 "The [employee] cannot simply show that the employer's decision was wrong or
10 mistaken, since the factual dispute at issue is whether discriminatory animus motivated the
11 employer, not whether the employer is wise, shrewd, prudent, or competent." (Hersant,
12 57 Cal.App.4th at 1005; see also Arteaga v. Brink's Inc. (2008) 163 Cal.App.4th 327, 344 ["The
13 employer may fire an employee for a good reason, a bad reason, a reason based on erroneous
14 facts, or for no reason at all, as long as its action is not for a discriminatory reason"];
15 Burton, 197 Cal.App.3d at 979 ["This type of situation is very common; an employee charged
16 with misconduct denies committing the misconduct"].) Of course, this does not preclude an
17 employer from disciplining the charged employee. (Id.) There is no inference of bad faith on the
18 part of the employer simply because the employer "chose to believe other witnesses and reject
19 [the charged employee's] version." (Id.) This is true even i f the employee can subsequently
20 prove that the factual finding of misconduct was a mistake. (Id.)
21 In short. Plaintiff cannot produce any substantial, responsive and admissible evidence that
22 the reason given for her termination was a pretext to mask an unlawful, discriminatory motive.
23 Even if Plaintiff could show Defendant's decision was mistaken or unwise. Plaintiff cannot show
24 the decision was related to her purported disability. Thus, because Plaintiff has no evidence tying
25 the termination decision to her disability, let alone substantial, credible and admissible evidence,
26 her discrimination claim is untenable and summary judgment/adjudication as to this claim is
27 appropriate.
28 ///
15
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT LIQUI-BOX CORPORATION'S
MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION OF ISSUES
1 D. Plaintiffs Fourth Cause of Action for Failure to Engage in the Interactive
Process Fails As a Matter of Law Because Defendant Terminated Plaintiffs
2 Employment for Legitimate Business Reasons Unrelated to Her Disability
and No Further Obligation to Engage in an Interactive Process to Identify
3 a Reasonable Accommodation Existed.
4 To state a claim for failure to engage in an interactive process under FEHA, a plaintiff
5 must show the employer failed "to engage in a timely, good Faith, interactive process with the
6 employee or applicant to determine effective reasonable accommodations, i f any, in response to
7 a request for reasonable accommodation by an employee or applicant with a known physical or
8 mental disability or known medical condition." (Cal. Gov. Code, § 12940(n).) An employer may
9 be held liable only i f it was responsible for the breakdown of the interactive process.
10 (Nadaf-Rahrov v. Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th 952, 985.) Plaintiff must
11 also prove that a reasonable accommodation was available before Defendant can be held liable
12 for failure to engage in the interactive process. (Id.)
13 Here, Plaintiffs claim for failure to engage in the interactive process is based on the
14 allegations Defendant failed to engage in a timely, good faith interactive process with her to
15 determine an effective accommodation after leaming of her work-related injury in early
16 January 2019. However, Plaintiffhad already violated the Critical Safety Behaviors policy and
17 that violation formed the basis of Defendant's legitimate, non-discriminatory, and non-retaliatory
18 discharge. (UMFs 82-108.) Defendant leamed about that violation on January 3, 2019
19 (UMF 94), and her employment was terminated on January 10, 2019 after Defendant completed
20 its investigation. (UMFs 95-108.) Any accommodation proposed by Plaintiff, in lieu of being
21 discharged for violating Defendant's policies, does not qualify as a reasonable accommodation
22 under Califomia law. (Wilkin v. Cmty. Hosp. of Monterey Peninsula (2021) 71 Cal.App.5th 806,
23 829 [since reasonable accommodation is always prospective, an employer is not required to
24 excuse past misconduct even if it is the result of the individual's disability]; see Alamillo v. BNSF
25 Ry. Co. (9th Cir. 2017) 869 F.3d 916, 922.) Engaging in a further interactive process beyond
26 taking the steps Defendant had already engaged in (providing access to Medcor to triage
27 Plaintiffs injury (UMF 104), providing access to U.S. Health Works Medical Group
28 (UMFs 99-100), investigating the cause of Plaintiffs injury and timeliness of reporting
16
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT LIQUI-BOX CORPORATION'S
MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION OF ISSUES
1 (UMFs 101-103) would have been a futile act because Plaintiffs employment was terminated for
2 violating the Critical Safety Behaviors policy. (See UMFs 82-108.)
3 E. Plaintiffs Fifth Cause of Action for Failure to Provide a Reasonable
Accommodation Fails As a Matter of Law Because Defendant Terminated
4 Plaintiffs Employment for Legitimate Business Reasons Unrelated to Her
Disability and There Was No Further Obligation to Provide a Reasonable
5 Accommodation.
6 "The essential elements of a failure to accommodate claim are: (l)the plaintiff has a
7 disability covered by the FEHA; (2) is a qualified individual (i.e., she can perform the essential
8 functions of the position); and (3) the employer failed to reasonably accommodate the plaintiffs
9 disability." (Cuiellette v. City of Los Angeles (2011) 194 Cal.App.4th 757, 766.) As set forth in
10 Section IV.D, above (discussing the interactive process claim). Plaintiff cannot establish that she
11 was a qualified individual, nor can she establish that Defendant failed to provide a reasonable
12 accommodation. She was not a qualified individual because her employment was terminated for
13 violating the Critical Safety Behaviors policy and thus she could not perform the essential
14 functions of her job with or without reasonable accommodation. Defendant did not fail to
15 reasonably accommodate because Defendant terminated Plaintiffs employment based on her
16 policy violation (UMFs 109-135) and any accommodation proposed by Plaintiff, in lieu of being
17 discharged for violating Defendant's policies, does not qualify as a reasonable accommodation
18 under Califomia law. (Wilkin, 71 Cal.App.5th at 829 [since reasonable accommodation is always
19 prospective, an employer is not required to excuse past misconduct even i f it is the result of the
20 individual's disability]; see Alamillo, 869 F.3d at 922.)
21 F. Plaintiffs Sixth Cause of Action for Intentional Infliction of Emotional
Distress Fails As a Matter of Law Because Defendant Did Not Engage in
22 Any Extreme or Outrageous Conduct Towards Plaintiff When Defendant
Terminated Plaintiffs Employment.
24 To establish intentional infliction of emotional distress ("IIED"), Plaintiff must show:
25 "(1) extreme and outrageous conduct by Defendant with the intention of causing, or reckless
26 disregard of the probability of causing, emotional distress; (2) Plaintiffs suffering severe or
27 extreme emotional distress; and (3) actual and proximate causation of the emotional distress by
28 ///
17
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT LIQUI-BOX CORPORATION'S
MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION OF ISSUES
1 Defendant's outrageous conduct." (Potter v. Firestone Tire Rubber Co. (1993) 6 Cal.4th 965,
2 1001.) For conduct to be considered outrageous, it must be so extreme as to exceed the bounds of
3 that usually tolerated in a civilized community. (Id) The defendant must have engaged in
4 conduct intended to inflict injury, or it must have been engaged in with the realization that injury
5 will result." (Id.) Conduct is actionable only where "it exceeds all bounds of decency usually
6 tolerated by a decent society . . . ." (Fisher v. San Pedro Hospital (1989) 214 Cal.App.3d 590,
7 617.)
8 In employment cases based on facts more disturbing than those presented here (which, in
9 fact, are not even disturbing), claims for IIED were found to be preempted by the exclusive
10 remedy provisions of the Califomia Workers' Compensation Act. (See Lab. Code, § 3600 et seq.;
11 Fermino v. Fedco, Inc. (1994) 7 Cal.4th 701, 712-13.) In particular, the workers' compensation
12 exclusivity rule applies when the risks resulting in the injury were encompassed within the
13 "compensation bargain." (Singh v. Southland Stone, U.S.A., Inc. (2010) 186 Cal.App.4th 338,
14 366.) "An employer's intentional misconduct in connection with actions that are a normal part of
15 the employment relationship, such as demotions and criticism of work practices, resulting in
16 emotional injury is considered to be encompassed within the compensation bargain, even if the
17 misconduct could be characterized as 'manifestly unfair, outrageous, harassment, or intended to
18 cause emotional disturbance.'" (Id. at 367 [intemal citations omitted]; see Miklosy v. Regents of
19 Univ. of Cal (2008) 44 Cal.4th 876 [rejecting IIED claim because "[t]he alleged wrongful
20 conduct.. . occurred at the worksite, in the normal course of the employer-employee relationship,
21 and therefore workers' compensation is plaintiffs' exclusive remedy for any injury that may have
22 resulted"].)
23 In Singh, supra, despite the plaintiff presenting evidence that his supervisor "berated
24 and humiliated" him, criticized his job performance, "slammed" a laptop closed on his hand,
25 and insulted him with profanities on a regular basis, the court found plaintiffs IIED claim
26 preempted by the workers' compensation laws because "the misconduct all occurred in the
27 workplace and involved criticisms of job performance or other conflicts arising from
28 ///
18
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT LIQUI-BOX CORPORATION'S
MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION OF ISSUES
1 employment." (Singh, 186 Cal.App.4th at 367-68; see also Lawler v. Montblanc N. Am., LLC
2 (2013) 704 F.3d 1235, 1245-46 [manager's "intimidating" and " g r u f f criticism of employee's
3 job performance and appearance could not form basis for intentional infliction of emotional
4 distress claim]; Shoemaker v. Myers (1990) 52 Cal.3d 1, 25 [emotional distress claim was
5 preempted even when manager terminated plaintiff knowing it may not go through for purpose of
6 "caus[ing] as much grief as possible"].) Based on these principles alone. Plaintiff cannot
7 establish that any of Defendant's conduct can be said to rise to the level of extreme and
8 outrageous conduct. (5ee UMFs 136-162.)
9 But, even i f Plaintiffs claims are not preempted, Defendant's conduct was not extreme
10 and outrageous, and it was not carried out with an intention of causing, or reckless disregard for
11 causing, emotional distress. Defendant's actions involved normal management conduct
12 (i.e., investigations of employee misconduct [UMFs 148-158] and termination [UMFs 159-162]),
13 which, even if mistaken or unwise, cannot be characterized as exceeding the bounds of that
14 usually tolerated in a civilized community so as to give rise to emotional distress claim. Because
15 Defendant did not engage in any conduct that was extreme and outrageous. Plaintiffs IIED claim
16 fails as a matter of law and must be dismissed.
17 G. Plai
Preview
1 JACKSON LEWIS P.C. JAMES T. JONES (SBN 167967) 2 KELSEY F. MORRJS (SBN 311117) 400 Capitol Mall, Suite 1600 3 Sacramento, Califomia 95814 FlLEO/E^OORSED Telephone: (916)341-0404 4 Facsimile: (916)341-0141 Email: iames.iones@iacksonlewis.com MAY 2 7 2022 5 kelsey.morris@iacksonlewis.com By:. S. Cade Deputy ClEfk 6 Attomeys for Defendant LIQUI-BOX CORPORATION 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF SACRAMENTO 10 SAJIDA ZAMAN, CASE NO. 34-2019-00252121 -CU-WT-GDS 11 Plaintiff, MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF 12 vs. DEFENDANT LIQUI-BOX CORPORATION'S MOTION FOR 13 LIQUI-BOX CORPORATION, and DOES SUMMARY JUDGMENT AND/OR through 20, inclusive. SUMMARY ADJUDICATION OF 14 ISSUES Defendants. 15 Date: August 10, 2022 Time: 1:30 p.m. BY FAX 16 Dept: 53 Reservation No.: 2644651 17 Complaint Filed: March 8, 2019 18 Trial Date: September 12, 2022 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT LIQUI-BOX CORPORATION'S MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION OF ISSUES 1 T A B L E OF CONTENTS 2 Page 3 L INTRODUCTION 7 4 II. STATEMENT OF FACTS 7 5 A. Defendant's Safety Policy and Practices Encourage Employees to 6 Report Workplace Injuries and Promote Workplace Safety 7 7 B. Plaintiff Violated Defendant's Critical Safety Behaviors Policy 8 8 C. Defendant Terminated Plaintiff s Employment Because She Violated the Critical Safety Behaviors Policy 9 9 D. Plaintiffs Causes of Action 9 10 III. SUMMARY JUDGMENT AND ADJUDICATION STANDARD 10 11 12 IV. LEGAL ARGUMENT 10 13 A. Plaintiffs First Cause of Action for Wrongful Termination in Violation of Public Policy Fails As a Matter of Law Because Defendant Terminated 14 Her Employment for Lawful Reasons That Did Not Violate Any Public Policy 11 15 B. Plaintiffs Second Cause of Action for Retaliation Fails As a Matter 16 of Law Because Defendant Did Not Take Adverse Action Toward Plaintiff for Any Retaliatory Reason in Violation of a Statute, Regulation, 17 or Public Policy 12 18 C. Plaintiffs Third Cause of Action for Disability Discrimination Fails As a Matter of Law Because Defendant Did Not Take Adverse Action 19 Toward Plaintiff Because of Plaintiff s Disability 12 20 D. Plaintiffs Fourth Cause of Action for Failure to Engage in the Interactive Process Fails As a Matter of Law Because Defendant Terminated 21 Plaintiffs Employment for Legitimate Business Reasons Unrelated to Her Disability and No Further Obligation to Engage in an Interactive 22 Process to Identify a Reasonable Accommodation Existed. 23 E. Plaintiffs Fifth Cause of Action for Failure to Provide a Reasonable Accommodation Fails As a Matter of Law Because Defendant 24 Terminated Plaintiffs Employment for Legitimate Business Reasons Unrelated to Her Disability and There Was No Further Obligation to 25 Provide a Reasonable Accommodation 17 26 F. Plaintiffs Sixth Cause of Action for Intentional Infliction of Emotional Distress Fails As a Matter of Law Because Defendant Did Not Engage 27 in Any Extreme or Outrageous Conduct Towards Plaintiff When Defendant Terminated Plaintiffs Employment 17 28 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT LIQUI-BOX CORPORATION'S MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION OF ISSUES G. Plaintiffs Seventh Cause of Action for Unfair Competition Fails As a Matter of Law Because Plaintiff Did Not Suffer an Injury Resulting 2 from Unfair Competition 19 3 H. Plaintiffs Claim for Punitive Damages Fails As a Matter of Law Because Plaintiff Cannot Establish by Clear and Convincing Evidence 4 That Defendant Engaged in Conduct Toward Her That Was Malicious, Oppressive, or Fraudulent 20 5 g V. CONCLUSION 21 7 8 9 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT LIQUI-BOX CORPORATION'S MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION OF ISSUES 1 T A B L E OF AUTHORITIES 2 Page 3 STATE CASES 4 Arteaga V. Brink's Inc. (2008) 163 Cal.App.4th 327 15 5 Basich v. Allstate Ins. Co. 6 (2001)87 Cal.App.4th 1112 20 7 Burton v. v. Security Pacific National Bank (1988) 197 Cal.App.3d 972 14, 15 8 Caldwell v. Paramount Unified School Dist. 9 (1995)41 Cal.App 4th 189 12 10 Califomians for Disability Rights v. Mervyn's, LLC (2006) 39 Cal.4th 223 19 11 Clark V. Claremont Univ. Ctr. 12 (1992) 6 Cal.App.4th 639 13 13 Cuiellette v. City of Los Angeles (2011) 194 Cal.App.4th 757 17 14 Featherstone v. Southern Cal. Permanente Med. Grp. 15 (2017) 10 Cal.App.5th 1150 11 16 Fermino v. Fedco, Inc. (1994)7Cal.4th 701 18 17 Fisher v. San Pedro Hospital 18 (1989) 214 Cal.App.3d 590 18 19 Flait V. North Amer. Watch Corp. (1992)3 Cal.App.4th 467 12 20 Gonzalez v. Metpath, Inc. 21 (1989) 214 Cal.App.3d 422 14 22 Green v. Ralee Eng. Co. (1998) 16Cal.4th 66 11 23 Guz V. Bechtel National, Inc. 24 (2000) 24 Cal.4th 317 10, 12-14 25 Harris v. City of Santa Monica (2013) 56 Cal.4th 203 14 26 Hersant v. Dept. of Social Services 21 (1997)57Cal.App.4th997 14,15 28 /// 4 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT LIQUI-BOX CORPORATION'S MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION OF ISSUES 1 Husman v. Toyota Motor Credit Corp. (2017) 12 Cal.App.5th 1168 10 2 Kelly-Zurian v. Wohl Shoe Co. 3 (1994)22Cal.App.4th397 20 4 King V. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426 15 5 Mathieu v. Norrell Corp. 6 (2004)115 Cal.App.4th 1174 20 7 McGory v. Applied Signal Technology, Inc. (2013) 212 Cal.App.4th 1510 15 8 Miklosy v. Regents of Univ. of CaL 9 (2008) 44 Cal.4th 876 18 10 Nadaf-Rahrov v. Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th 952 16 11 Potter V. Firestone Tire Rubber Co. 12 (1993)6Cal.4th965 18 13 Saelzler v. Advanced Group 400 (2001)25 Cal.4th 763 15 14 Scott V. Phoenix Schools, Inc. 15 (2009) 175 Cal.App.4th 702 21 16 Sequoia Ins. Co. v. Superior Court (1993) 13 Cal.App.4th 1472 11 17 Shoemaker v. Myers 18 (1990)52Cal.3d 1 19 19 Singh V. Southland Stone, U.S.A., Inc. (2010) 186 Cal.App.4th 338 18, 19 20 Tameny v. Atlantic Richfield Co. 21 (1980)27Cal.3d 167 11 22 Trop V. Sony Pictures Entertainment, Inc. (2005) 129 Cal.App.4th 1133 13 23 Wilkin V. Cmty. Hosp. of Monterey Peninsula 24 (2021) 71 Cal.App.5th 806 16, 17 25 Wills V. Superior Court (2011) 195 Cal.App.4th 143 13 26 27 /// 28 /// 5 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT LIQUI-BOX CORPORATION'S MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION OF ISSUES 1 FEDERAL CASES 2 Alamillo v. BNSF Ry. Co. (9th Cir. 2017) 869 F.3d916 16, 17 3 Bradley v. Harcourt. Brace & Co. 4 (1996) 104 F.3d 267 14 5 Day v. Sears Holdings Corp. (C.D.Cal. 2013) 930 F.Supp.2d 1146 13 6 Lawler v. Montblanc N. Am., LLC 1 (2013) 704 F.3d 1235 19 8 McDonnell Douglas Corp. v. Green (1973)411 U.S. 792 13, 14 9 Mclnteer v. Ashley Distrib. Servs. 10 (C.D.Cal. 2014) 40 F.Supp.3d 1269 13 11 Raytheon Co. v. Hernandez (2003) 540 U.S. 44 13 12 iS'^. Mary's Honor Ctr. v. Hicks 13 (1993) 509 U.S. 502 14 14 STATE STATUTES 15 Cal. Bus. & Prof. Code 16 § 17204 19 17 Cal. Civ. Code § 3294 20 18 Cal. Code Civ. Proc. 19 §437c 10 20 Cal. Gov. Code 21 § 12940(n) 16 22 Cal. Lab. Code 23 § 3600 et seq 18 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT LIQUI-BOX CORPORATION'S MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION OF ISSUES 1 I. INTRODUCTION 2 Defendant Liqui-Box Corporation ("Defendant") moves for summary judgment and/or 3 summary adjudication of each and every claim brought by Plaintiff Sajida Zaman ("Plaintiff') 4 because every cause of action in her Complaint is predicated on allegations that she was 5 unlawfully terminated, but the undisputed facts demonstrate that Defendant terminated her 6 employment based on a legitimate business decision. The decision to terminate Plaintiffs 7 employment was not caused by any protected legal status or protected activity and it did not 8 violate any statute, regulation, or public policy. 9 Plaintiff worked as a "Packer" at Defendant's Sacramento, Califomia manufacturing 10 facility. Defendant discovered that Plaintiff failed to timely report a workplace injury, thereby 11 violating Defendant's safety policy, and Defendant terminated her employment due to that policy 12 violation. That decision did not violate any statute, regulation, or public policy, and for those 13 reasons Plaintiffs claims fail as a matter of law. Thus, summary judgment in favor of Defendant 14 is appropriate. Altematively, Defendant requests that the Court grant summary adjudication on 15 each of Plaintiffs causes of action and on her claim for punitive damages. 16 IL STATEMENT OF FACTS 17 A. Defendant's Safety Policy and Practices Encourage Employees to Report Workplace Injuries and Promote Workplace Safety. 18 19 Defendant employed Plaintiff until January 10, 2019. (Undisputed Material Fact 20 ["UMF"] 1.) During Plaintiffs employment. Defendant had a policy called the "Critical Safety 21 Behaviors Policy", which provides that employees must promptly report all safety incidents to 22 a supervisor or manager. (UMFs 2, 3.) Violation of the Critical Safety Behaviors Policy is 23 grounds for termination. (UMF 4.) 24 Defendant also has a "Standard Operating Procedure AS 1025" ("AS 1025"), issued on 25 March 6, 2017, that sets forth Defendant's practices for investigating safety incidents that require 26 medical attention, near miss incidents, and fires. (UMF 5.) AS 1025 defines "near miss" to mean 27 an occurrence that created potential for injury or property damage, and it provides that "[a]ny 28 incident requiring any type of treatment to any employee or contractor, a near miss, or any 7 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT LIQUI-BOX CORPORATION'S MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION OF ISSUES 1 incident resulting in equipment damage, or fire shall be reported immediately to a shift leader." 2 (UMFs 6, 7.) Additionally, i f a shift leader is not available, a report can be made to the Plant 3 Manager, EH&S (Environmental Health & Safety) Manager, or the Human Resources Manager. 4 (UMF 8.) AS 1025 also sets forth additional steps that must be taken to investigate and report on 5 safety incidents, including the preparation of a "4 Panel Review for any employee who sustains 6 an injury resulting in medical treatment, restricted workdays or lost workdays . . . ." (UMF 9.) 7 In order to promote workplace safety, in addition to issuing the Critical Safety Behaviors Policy 8 and AS 1025, Defendant conducts employee training and obtains employee acknowledgments 9 regarding awareness of the Critical Safety Behaviors Policy. (UMF 10.) 10 On or about October 10, 2017, Plaintiff acknowledged that she had been trained and 11 understood that all injuries, incidents or near misses were to be reported promptly to a supervisor 12 or manager. (UMF 11.) On or about June 4, 2018, Plaintiff acknowledged that she had been 13 given a copy of the Critical Safety Behaviors policy, it had been explained to her, she agreed to 14 comply with it, and she knew that violating the policy would lead to termination of employment. 15 (UMF 12.) 16 B. PlaintifT Violated Defendant's Critical Safety Behaviors Policy. 17 On January 3, 2019, Plaintiff reported to Defendant that she had suffered an injury and 18 claimed it had occurred at work several weeks earlier. (UMFs 13, 14.) On January 3, 2019, 19 Plaintiff filled out a "Liqui-Box Sacramento AS 1059 Employee INVESTIGATION FORM" 20 indicating she was injured at work while pushing a "mega tote." (UMF 14.) Plaintiff identified 21 the date of the incident as "Decmeb I week." (UMF 15.) Plaintiff described the injury as muscle 22 swelling and stated that she received medical treatment for the injury on December 31, 2018. 23 (UMFs 16, 17.) 24 Defendant received a "Work Status Report" from U.S. Health Works Medical Group 25 related to Plaintiffs injury that indicated she was examined on January 3, 2019, and she was 26 given a diagnosis of "Strain of left knee" and "Strain of left hamstring muscle." (UMF 18.) The 27 Work Status Report indicated the incident occurred on December 3, 2018. (UMF 19.) 28 /// 8 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT LIQUI-BOX CORPORATION'S MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION OF ISSUES 1 After receiving this information. Defendant conducted the "4 Panel Review" related to 2 Plaintiffs injury pursuant to AS 1025. (UMF 20.) The "4 Panel Review" summarized Plaintiffs 3 incident as follows: 4 Sajida indicated that she was pushing a mega tote cart with about 400 bags 3-4 weeks ago. Sajida stated that the wheel(s) on the cart 5 were not working properly so she overcompensated to push the cart. Sajida stated that over the last weeks she incurred swelling and 6 knee pain - taking over the counter ibuprofen. 7 (UMF 21.) 8 The "4 Panel Review" also noted that Plaintiff was triaged through Medcor and sent to 9 U.S. Healthworks for a post-injury evaluation. (UMF 22.) Plaintiffs Medcor "Workplace Injury 10 Triage & Reporting" incident report stated that: 11 [Ajbout a month ago she was pushing a box on wheels when she developed pain in her left knee. She sought care at Methodist 12 Hospital emergency room in Sacramento, CA on 12/31/18 where she was treated for knee injury and was advised to follow up with 13 her PMD if pain did not improve. 14 (UMF 23.) 15 C. Defendant Terminated Plaintiffs Employment Because She Violated the Critical Safety Behaviors Policy. 16 17 Defendant terminated Plaintiffs employment on January 10, 2019 because Defendant 18 concluded that Plaintiff had violated the Critical Safety Behaviors Policy. (UMF 24.) Defendant 19 prepared a "HR Status Change Form" documenting the reason for the termination of Plaintiffs 20 employment, which stated,: "Involuntary - Violation of Critical Safety Behaviors - Neglected to 21 report injury timely." (UMF 25.) Defendant's Chief Human Resources Officer, Angela Kenyon, 22 and Chief Operating Officer, Andrew McClelland, made the decision to terminate Plaintiffs 23 employment. (UMF 26.) The only reason Defendant terminated Plaintiffs employment was 24 because she had not timely reported the workplace injury Defendant became aware of for the 25 first time on January 3, 2019. (UMF 27.) 26 D. Plaintiffs Causes of Action. 27 Plaintiff pleads the following causes of action against Defendant in her First Amended 28 Complaint for Damages ("FAC"): (1) wrongful termination in violation of public policy; 9 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT LIQUI-BOX CORPORATION'S MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION OF ISSUES 1 (2) retaliation in violation of public policy; (3) disability discrimination in violation of the Fair 2 Employment and Housing Act ("FEHA"); (4) failure to engage in the interactive process in 3 violation of FEHA; (5) failure to provide a reasonable accommodation in violation of FEHA; 4 (6) intentional infliction of emotional distress; and (7) unfair competition law. (FAC, p. 1.) 5 III. SUMMARY JUDGMENT AND ADJUDICATION STANDARD 6 A motion for summary judgment or summary adjudication shall be granted where the 7 evidence shows "that there is no triable issue as to any material fact and that the moving party is 8 entitled to judgment as a matter of law." (Code Civ. Proc, § 437c(c), (f).) When a defendant 9 moves for summary judgment in a situation in which the plaintiff would have the burden of proof 10 at trial by a preponderance of the evidence, the defendant may, but need not, present evidence that 11 conclusively negates an element of the plaintiffs cause of action. (Husman v. Toyota Motor 12 Credit Corp. (2017) 12 Cal.App.5th 1168, 1179-80.) Altematively, the defendant may present 13 evidence to show that one or more elements of the cause of action cannot be established by the 14 plaintiff. (Id.) 15 In the context of a discrimination claim, an employer may satisfy its burden of proving a 16 cause of action has no merit by showing either that one or more elements of the prima facie case 17 "is lacking, or that the adverse employment action was based on legitimate nondiscriminatory 18 factors." (Id. at 1181-82; see Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 356-57.) An 19 employer is entitled to summary judgment if, considering the employer's innocent explanation for 20 its actions, the evidence as a whole is insufficient to permit a rational inference that the 21 employer's actual motive was discriminatory. (Husman, 12 Cal.App.5th at 1182.) To defeat the 22 motion, the employee must identify evidence that raises a triable issue that would permit a trier of 23 fact to find by a preponderance that intentional discrimination occurred. (Id.) Circumstantial 24 evidence of pretense must be "specific" and "substantial" to create a triable issue. (Id.) 25 IV. L E G A L ARGUMENT 26 As discussed below. Plaintiff's claims fail as a matter of law because she cannot establish 27 one or more of the elements of each cause of action. Therefore, summary judgement or summary 28 adjudication of each cause of action should be granted in favor of Defendant. 10 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT LIQUI-BOX CORPORATION'S MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION OF ISSUES 1 A. Plaintiffs First Cause of Action for Wrongful Termination in Violation of Public Policy Fails As a Matter of Law Because Defendant Terminated Her 2 Employment for Lawful Reasons That Did Not Violate Any Public Policy. 3 To prevail on a claim for wrongful termination, a plaintiff must demonstrate that her 4 termination violated "fundamental principles of public policy." (Tameny v. Atlantic Richfield Co. 5 (1980) 27 Cal.3d 167, 170.) The cause of action is limited to those claims finding support in an 6 important public policy based on a statutory or constitutional provision. (Green v. Ralee Eng. Co. 1 (1998) 16 Cal.4th 66, 79.) A wrongful termination in violation of public policy claim based 8 upon violation of a statute cannot proceed where the facts do not support the underlying statutory 9 violation. (Sequoia Ins. Co. v. Superior Court (1993) 13 Cal.App.4th 1472, 1475; 10 see Featherstone v. Southern Cal. Permanente Med. Grp. (2017) 10 Cal.App.5th 1150, 1169 11 ["Under Califomia law, if an employer did not violate FEHA, the employee's claim for wrongful 12 termination in violation of public policy necessarily fails"].) 13 Here, in support of her wrongful termination claim. Plaintiff claims Defendant's conduct 14 violates the policies embodied in: (1) Labor Code section 132a, which prohibits discrimination 15 and retaliation against injured employees who file or plan to file a workers' compensation claim; 16 (2) FEHA (Cal. Gov. Code, § 12940 et seq.), which prohibits discrimination and retaliation 17 based on a protected characteristics enumerated in the FEHA); (3) federal OSHA regulations 18 (29 C.F.R. § 1904.35); and (4) Califomia OSHA regulations (8 C C R §§ 14300.35-14300.36). 19 The undisputed evidence establishes that Defendant did not violate the public policies 20 contained within any of the above statutes and regulations because Plaintiff was aware she had 21 suffered a workplace injury and unreasonably delayed reporting it for several weeks in violation 22 of Defendant's Critical Safety Behaviors Policy. (UMFs 1-27.) Because the termination was 23 based on a legitimate business decision and Plaintiff suffered no cognizable harm, no public 24 policy was violated, Plaintiffs claim for wrongful termination fails as a matter of law, and it 25 should be dismissed. 26 /// 27 /// 28 /// n MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT LIQUI-BOX CORPORATION'S MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION OF ISSUES 1 B. Plaintiffs Second Cause of Action for Retaliation Fails As a Matter of Law Because Defendant Did Not Take Adverse Action Toward Plaintiff for Any 2 Retaliatory Reason in Violation of a Statute, Regulation, or Public Policy. 3 To prevail on her retaliation claim. Plaintiff must show: (1) she engaged in a protected 4 activity; (2) she suffered an adverse employment action; and (3) the adverse action was taken 5 because of the protected activity. (Flait v. North Amer. Watch Corp. (1992) 3 Cal.App.4th 467, 6 476; Guz, 24 Cal.4th at 354-56.) Here, Plaintiff claims Defendant retaliated against her for 7 reporting her workplace injury and filing a workers' compensation claim. (FAC, t 22.) 8 However, the undisputed evidence conclusively shows Plaintiff was not terminated in retaliation 9 for engaging in any protected activity. Rather, Defendant concluded that Plaintiff had violated 10 the Critical Safety Behaviors policy and terminated her employment for that policy violation. 11 (UMFs 38-40, 46-48, 51-54.) Her termination was not caused by the act of reporting a 12 work-related injury or filing a workers' compensation claim. (See UMFs 28-54.) 13 C. Plaintiffs Third Cause of Action for Disability Discrimination Fails As a Matter of Law Because Defendant Did Not Take Adverse Action Toward 14 Plaintiff Because of Plaintiffs Disability. 15 In the summary judgment context, Califomia has adopted the three-stage burden-shifting 16 test for claims of discrimination in violation of FEHA. To establish a prima facie case on 17 summary judgment. Plaintiff must establish: (1) she was disabled; (2) she was able to perform 18 the essential job duties of her position with or without reasonable accommodation; (3) she 19 suffered an adverse employment action; and (4) other circumstances suggesting discriminatory 20 motive. (Guz, 24 Cal.4th at 355-56.) If Plaintiff is able to establish a prima facie case of 21 discrimination, Liqui-Box must articulate a legitimate, non-discriminatory reason for its actions. 22 (Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App 4th 189, 203.) After it satisfies 23 this burden. Plaintiff must establish that the proffered reasons were pretextual, and the real reason 24 for the adverse action was her disability. (Id.) 25 Here, Plaintiff cannot even establish the prima facie case because she cannot demonstrate 26 there were circumstances suggesting a discriminatory motive. The undisputed facts show 27 Defendant terminated Plaintiffs employment because she unreasonably failed to promptly report 28 a workplace injury in violation of the Critical Safety Behaviors policy. (UMFs 55-81.) 12 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT LIQUI-BOX CORPORATION'S MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION OF ISSUES 1 Assuming arguendo that Plaintiff can establish a prima facie case, the burden shifts to Defendant 2 to articulate some legitimate, non-discriminatory reason for its actions. (McDonnell Douglas 3 Corp. V. Green (1973) 411 U.S. 792, 802-04.) The burden is not a difficult one; it is only 4 required that Defendant articulate a legitimate reason for its conduct. (Clark v. Claremont Univ. 5 Ctr. (1992) 6 Cal.App.4th 639, 663.) An employer's use of neutral, non-discriminatory policies 6 in making employment decisions satisfies the burden. (Raytheon Co. v. Hernandez (2003) 7 540 U.S. 44, 53-54.) Even if the reasons are "foolish or trivial or baseless", they will suffice so 8 long as they are honestly believed and non-discriminatory on their face. (Guz, 24 Cal.4th at 358.) 9 Here, Defendant honestly believed termination of Plaintiffs employment was justified because 10 she had unreasonably failed to promptly report a workplace injury in violation of the Critical 11 Safety Behaviors policy. 12 State and federal courts recognize workplace misconduct and violations of company 13 policy as a legitimate, non-discriminatory reason for terminating an employee. (Mclnteer v. 14 Ashley Distrib. Servs. (C.D.Cal. 2014) 40 F.Supp.3d 1269, 1285 [upholding termination for 15 "complaints of inappropriate behavior from coworkers and violations of company attendance 16 policies"]; 1^/7/5 v. Superior Court (2011) 195 Cal.App.4th 143, 171 [upholding termination for 17 violating policy against verbal threats and misconduct in the workplace]; Trop v. Sony Pictures 18 Entertainment, Inc. (2005) 129 Cal.App.4th 1133, 1149 [upholding termination for mishandling 19 telephone messages, taking extended vacations, and tardiness]; Day v. Sears Holdings Corp. 20 (C.D.Cal. 2013) 930 F.Supp.2d 1146, 1169-70 [upholding termination for violating company 21 policies on confidentiality and cooperation with human resources investigations].) 22 Here, the undisputed evidence conclusively shows that when Defendant leamed of 23 Plaintiffs work-related injury. Defendant conducted an investigation and concluded that Plaintiff 24 violated Defendant's Critical Safety Behaviors Policy by failing to report her injury for close to a 25 month. (UMFs 65-75, 78-79, 81.) The reason for Plaintiff s tennination was honestly held and 26 non-discriminatory on its face. (Id.) 21 Having shown a legitimate, non-discriminatory and non-retaliatory reason for the adverse 28 action. Plaintiffs discrimination claim survives only if she can demonstrate by substantial, 13 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT LIQUI-BOX CORPORATION'S MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION OF ISSUES 1 responsive and admissible evidence that the reasons proffered for her termination are a pretext to 2 mask an unlawful, discriminatory motive. (McDonnell Douglas, 411 U.S. at 802; St. Mary's 3 Honor Ctr. v. Hicks (1993) 509 U.S. 502, 506.) Plaintiffs mere suspicions as to Defendant's 4 motive do not constitute substantial, responsive evidence sufficient to overcome summary 5 judgment. (Burton v. Security Pacific National Bank (1988) 197 Cal.App.3d 972, 978 6 [speculation cannot be regarded as substantial evidence and is insufficient to establish a triable 7 issue of material fact].) 8 Courts have consistently declared that discrimination laws are not intended to be a vehicle 9 for second-guessing business decisions or to transform courts into personnel managers. 10 (Bradley v. Harcourt, Brace & Co. (1996) 104 F.3d 267, 270; Gonzalez v. Metpath, Inc. (1989) 11 214 Cal.App.3d 422, 428 ["Employers must be given wide latitude to make independent, good- 12 faith personnel decisions without the threat of a jury second-guessing their business judgment. 13 . . . The courts cannot perform these evaluations anew."].) An employee's subjective 14 disagreement with a personnel decision cannot raise a triable issue as to discrimination - 15 discriminatory motive, not merely a questionable decision, must be established. (Guz, 24 Cal.4th 16 at 358 [ i f non-discriminatory, the employer's true reasons for the adverse action need not 17 necessarily have been wise or correct... the ultimate issue is simply whether the employer acted 18 with a motive to discriminate illegally]; Hersant v. Dept. of Social Services (1997) 19 57 Cal.App.4th 997, 1005 ["What the employee has brought is not an action for general 20 unfaimess but for . . . discrimination"].) Thus, to prove discriminatory intent, Plaintiff has the 21 ultimate burden of proving her protected characteristic was a "substantial motivating factor" for 22 the adverse action. (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 231 -32 ["requiring the 23 plaintiff to show that discrimination was a substantial motivating factor, rather than simply 24 a motivating factor, more effectively ensures that liability will not be imposed based on evidence 25 of mere thoughts or passing statements unrelated to the disputed employment decisions"].) 26 Here, Plaintiff cannot establish that the reason for her termination, violation of the Critical 27 Safety Behaviors Policy, was pretextual. Defendant drew a sound conclusion that Plaintiff had 28 violated its mles and policies. (See UMFs 67-81.) Whether or not Plaintiff agrees with the 14 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT LIQUI-BOX CORPORATION'S MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION OF ISSUES 1 degree of discipline is irrelevant. (See King v. United Parcel Service, Inc. (2007) 2 152 Cal.App.4th 426, 433 ["plaintiffs subjective beliefs in an employment discrimination case 3 do not create a genuine issue of fact"]; McGory v. Applied Signal Technology, Inc. (2013) 4 212 Cal.App.4th 1510, 1537 ["mere speculation, conjecture, or fantasy are insufficient to create 5 triable issue as to employer's alleged discriminatory motive"]; Saelzler v. Advanced Group 400 6 (2001) 25 Cal.4th 763, 774 [plaintiffs evidence must relate to the motivation of the decision 7 makers to prove, by non-speculative evidence, an actual causal link between prohibited 8 motivation and termination].) 9 "The [employee] cannot simply show that the employer's decision was wrong or 10 mistaken, since the factual dispute at issue is whether discriminatory animus motivated the 11 employer, not whether the employer is wise, shrewd, prudent, or competent." (Hersant, 12 57 Cal.App.4th at 1005; see also Arteaga v. Brink's Inc. (2008) 163 Cal.App.4th 327, 344 ["The 13 employer may fire an employee for a good reason, a bad reason, a reason based on erroneous 14 facts, or for no reason at all, as long as its action is not for a discriminatory reason"]; 15 Burton, 197 Cal.App.3d at 979 ["This type of situation is very common; an employee charged 16 with misconduct denies committing the misconduct"].) Of course, this does not preclude an 17 employer from disciplining the charged employee. (Id.) There is no inference of bad faith on the 18 part of the employer simply because the employer "chose to believe other witnesses and reject 19 [the charged employee's] version." (Id.) This is true even i f the employee can subsequently 20 prove that the factual finding of misconduct was a mistake. (Id.) 21 In short. Plaintiff cannot produce any substantial, responsive and admissible evidence that 22 the reason given for her termination was a pretext to mask an unlawful, discriminatory motive. 23 Even if Plaintiff could show Defendant's decision was mistaken or unwise. Plaintiff cannot show 24 the decision was related to her purported disability. Thus, because Plaintiff has no evidence tying 25 the termination decision to her disability, let alone substantial, credible and admissible evidence, 26 her discrimination claim is untenable and summary judgment/adjudication as to this claim is 27 appropriate. 28 /// 15 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT LIQUI-BOX CORPORATION'S MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION OF ISSUES 1 D. Plaintiffs Fourth Cause of Action for Failure to Engage in the Interactive Process Fails As a Matter of Law Because Defendant Terminated Plaintiffs 2 Employment for Legitimate Business Reasons Unrelated to Her Disability and No Further Obligation to Engage in an Interactive Process to Identify 3 a Reasonable Accommodation Existed. 4 To state a claim for failure to engage in an interactive process under FEHA, a plaintiff 5 must show the employer failed "to engage in a timely, good Faith, interactive process with the 6 employee or applicant to determine effective reasonable accommodations, i f any, in response to 7 a request for reasonable accommodation by an employee or applicant with a known physical or 8 mental disability or known medical condition." (Cal. Gov. Code, § 12940(n).) An employer may 9 be held liable only i f it was responsible for the breakdown of the interactive process. 10 (Nadaf-Rahrov v. Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th 952, 985.) Plaintiff must 11 also prove that a reasonable accommodation was available before Defendant can be held liable 12 for failure to engage in the interactive process. (Id.) 13 Here, Plaintiffs claim for failure to engage in the interactive process is based on the 14 allegations Defendant failed to engage in a timely, good faith interactive process with her to 15 determine an effective accommodation after leaming of her work-related injury in early 16 January 2019. However, Plaintiffhad already violated the Critical Safety Behaviors policy and 17 that violation formed the basis of Defendant's legitimate, non-discriminatory, and non-retaliatory 18 discharge. (UMFs 82-108.) Defendant leamed about that violation on January 3, 2019 19 (UMF 94), and her employment was terminated on January 10, 2019 after Defendant completed 20 its investigation. (UMFs 95-108.) Any accommodation proposed by Plaintiff, in lieu of being 21 discharged for violating Defendant's policies, does not qualify as a reasonable accommodation 22 under Califomia law. (Wilkin v. Cmty. Hosp. of Monterey Peninsula (2021) 71 Cal.App.5th 806, 23 829 [since reasonable accommodation is always prospective, an employer is not required to 24 excuse past misconduct even if it is the result of the individual's disability]; see Alamillo v. BNSF 25 Ry. Co. (9th Cir. 2017) 869 F.3d 916, 922.) Engaging in a further interactive process beyond 26 taking the steps Defendant had already engaged in (providing access to Medcor to triage 27 Plaintiffs injury (UMF 104), providing access to U.S. Health Works Medical Group 28 (UMFs 99-100), investigating the cause of Plaintiffs injury and timeliness of reporting 16 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT LIQUI-BOX CORPORATION'S MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION OF ISSUES 1 (UMFs 101-103) would have been a futile act because Plaintiffs employment was terminated for 2 violating the Critical Safety Behaviors policy. (See UMFs 82-108.) 3 E. Plaintiffs Fifth Cause of Action for Failure to Provide a Reasonable Accommodation Fails As a Matter of Law Because Defendant Terminated 4 Plaintiffs Employment for Legitimate Business Reasons Unrelated to Her Disability and There Was No Further Obligation to Provide a Reasonable 5 Accommodation. 6 "The essential elements of a failure to accommodate claim are: (l)the plaintiff has a 7 disability covered by the FEHA; (2) is a qualified individual (i.e., she can perform the essential 8 functions of the position); and (3) the employer failed to reasonably accommodate the plaintiffs 9 disability." (Cuiellette v. City of Los Angeles (2011) 194 Cal.App.4th 757, 766.) As set forth in 10 Section IV.D, above (discussing the interactive process claim). Plaintiff cannot establish that she 11 was a qualified individual, nor can she establish that Defendant failed to provide a reasonable 12 accommodation. She was not a qualified individual because her employment was terminated for 13 violating the Critical Safety Behaviors policy and thus she could not perform the essential 14 functions of her job with or without reasonable accommodation. Defendant did not fail to 15 reasonably accommodate because Defendant terminated Plaintiffs employment based on her 16 policy violation (UMFs 109-135) and any accommodation proposed by Plaintiff, in lieu of being 17 discharged for violating Defendant's policies, does not qualify as a reasonable accommodation 18 under Califomia law. (Wilkin, 71 Cal.App.5th at 829 [since reasonable accommodation is always 19 prospective, an employer is not required to excuse past misconduct even i f it is the result of the 20 individual's disability]; see Alamillo, 869 F.3d at 922.) 21 F. Plaintiffs Sixth Cause of Action for Intentional Infliction of Emotional Distress Fails As a Matter of Law Because Defendant Did Not Engage in 22 Any Extreme or Outrageous Conduct Towards Plaintiff When Defendant Terminated Plaintiffs Employment. 24 To establish intentional infliction of emotional distress ("IIED"), Plaintiff must show: 25 "(1) extreme and outrageous conduct by Defendant with the intention of causing, or reckless 26 disregard of the probability of causing, emotional distress; (2) Plaintiffs suffering severe or 27 extreme emotional distress; and (3) actual and proximate causation of the emotional distress by 28 /// 17 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT LIQUI-BOX CORPORATION'S MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION OF ISSUES 1 Defendant's outrageous conduct." (Potter v. Firestone Tire Rubber Co. (1993) 6 Cal.4th 965, 2 1001.) For conduct to be considered outrageous, it must be so extreme as to exceed the bounds of 3 that usually tolerated in a civilized community. (Id) The defendant must have engaged in 4 conduct intended to inflict injury, or it must have been engaged in with the realization that injury 5 will result." (Id.) Conduct is actionable only where "it exceeds all bounds of decency usually 6 tolerated by a decent society . . . ." (Fisher v. San Pedro Hospital (1989) 214 Cal.App.3d 590, 7 617.) 8 In employment cases based on facts more disturbing than those presented here (which, in 9 fact, are not even disturbing), claims for IIED were found to be preempted by the exclusive 10 remedy provisions of the Califomia Workers' Compensation Act. (See Lab. Code, § 3600 et seq.; 11 Fermino v. Fedco, Inc. (1994) 7 Cal.4th 701, 712-13.) In particular, the workers' compensation 12 exclusivity rule applies when the risks resulting in the injury were encompassed within the 13 "compensation bargain." (Singh v. Southland Stone, U.S.A., Inc. (2010) 186 Cal.App.4th 338, 14 366.) "An employer's intentional misconduct in connection with actions that are a normal part of 15 the employment relationship, such as demotions and criticism of work practices, resulting in 16 emotional injury is considered to be encompassed within the compensation bargain, even if the 17 misconduct could be characterized as 'manifestly unfair, outrageous, harassment, or intended to 18 cause emotional disturbance.'" (Id. at 367 [intemal citations omitted]; see Miklosy v. Regents of 19 Univ. of Cal (2008) 44 Cal.4th 876 [rejecting IIED claim because "[t]he alleged wrongful 20 conduct.. . occurred at the worksite, in the normal course of the employer-employee relationship, 21 and therefore workers' compensation is plaintiffs' exclusive remedy for any injury that may have 22 resulted"].) 23 In Singh, supra, despite the plaintiff presenting evidence that his supervisor "berated 24 and humiliated" him, criticized his job performance, "slammed" a laptop closed on his hand, 25 and insulted him with profanities on a regular basis, the court found plaintiffs IIED claim 26 preempted by the workers' compensation laws because "the misconduct all occurred in the 27 workplace and involved criticisms of job performance or other conflicts arising from 28 /// 18 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT LIQUI-BOX CORPORATION'S MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION OF ISSUES 1 employment." (Singh, 186 Cal.App.4th at 367-68; see also Lawler v. Montblanc N. Am., LLC 2 (2013) 704 F.3d 1235, 1245-46 [manager's "intimidating" and " g r u f f criticism of employee's 3 job performance and appearance could not form basis for intentional infliction of emotional 4 distress claim]; Shoemaker v. Myers (1990) 52 Cal.3d 1, 25 [emotional distress claim was 5 preempted even when manager terminated plaintiff knowing it may not go through for purpose of 6 "caus[ing] as much grief as possible"].) Based on these principles alone. Plaintiff cannot 7 establish that any of Defendant's conduct can be said to rise to the level of extreme and 8 outrageous conduct. (5ee UMFs 136-162.) 9 But, even i f Plaintiffs claims are not preempted, Defendant's conduct was not extreme 10 and outrageous, and it was not carried out with an intention of causing, or reckless disregard for 11 causing, emotional distress. Defendant's actions involved normal management conduct 12 (i.e., investigations of employee misconduct [UMFs 148-158] and termination [UMFs 159-162]), 13 which, even if mistaken or unwise, cannot be characterized as exceeding the bounds of that 14 usually tolerated in a civilized community so as to give rise to emotional distress claim. Because 15 Defendant did not engage in any conduct that was extreme and outrageous. Plaintiffs IIED claim 16 fails as a matter of law and must be dismissed. 17 G. Plai