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1 JOSHUA S. FALAKASSA (SBN: 295045)
FALAKASSA LAW, P.C.
2 1901 Avenue ofthe Stars Suite # 450
3 Los Angeles, Caiifomia 90067
Tel.: (818) 456-6168; Fax: (888) 505-0868
4 Email: josh@faIakassalaw.com JUL 2 7 2022
5 ARASH S. KHOSROWSHAHI (SBN: 293246) By;
LIBERTY MAN LAW, P.C.
6 1010 F Street, Ste. 300
7 Sacramento, Caiifomia 95814
Tel.: (916) 573-0469; Fax: (866) 700-0787
8 Email: ash(§libertymanlaw.com
9 Attomeys for Plaintiff,
SAJIDA ZAMAN
10
11 SUPERIOR COURT OF CALIFORNIA
12 COUNTY OF SACRAMENTO
13 SAJIDA ZAMAN, CASE NO.: 34-2019-00252121
RESERVATION ID: 2644651
14 Plaintiff,
15 vs. SEPARATE STATEMENT IN
OPPOSITION TO DEFENDANT
16 LIQUI-BOX CORPORATION, and DOES 1 LIQUI-BOX CORPORATION'S
through 20, inclusive. MOTION FOR SUMMARY
17 JUDGMENT AND/OR SUMMARY
Defendants. ADJUDICATION OF ISSUES.
18
19 Date: August 10, 2022
Time: 1:30pm BY FAX
20 Dept.: 53
Trial Date: September 12,2022
21
22
Pursuant to Code of Civil Procedure § 437c(b)(3) and Caiifomia Rules of Court, rules
23
3.1350(f) and 3.1350(h), Plaintiff Sajida Zaman ("PlaintifP') submits the following Separate
24
Statement in Opposition to Defendant Liqui-Box Corporation's Motion for Summary Judgment
25
and/or Adjudication of Issues.
26
///
27
///
28
ISSUE NO. 1: Plaintiff's First Cause of Action for Wrongful Termination in Violation of
1
Public Policy Fails As a Matter of Law Because Defendant Terminated Her Employment for
2 Legitimate Business Reasons That Did Not Violate Any Public Policy.
3
DEFENDANT'S UNDISPUTED MATERIAL PLAINTIFF'S RESPONSE AND
4 FACTS AND SUPPORTING EYIDENCE SUPPORTING EVIDENCE : •
5
1. Defendant Liqui-Box Corporation Undisputed.
6 employed Plaintiff Sajida Zaman.
7 Declaration of Angela Kenyon in
8 Support of Defendant Liqui-Box
Corporation's Motion for Summary
9 Judgment and/or Summary Adjudication
of Issues (hereinafter "Kenyon Decl."),
10 m 1,2.; PlaintifFs Complaint for
11 Damages (hereinafter "Complaint"), 16.
2. Defendant has a policy called the Undisputed.
12 "Critical Safety Behaviors Policy."
13
Kenyon Decl., t t 1-3, Exh. A.
14
3. According to Defendant's Critical Safety Disputed. The Critical Safety Behaviors Policy
15 Behaviors Policy, employees must states in relevant part, "1. Immediately report all
16 "report all incidents to your supervisor, incidents to your supervisor, management team
management team member no matter no matter how minor or without exception."
17 how minor or without exception."
Exh. A to Kenyon Decl.
18
Kenyon Decl., t t 1-3, Exh. A.
19 4. According to Defendant's Critical Safety Disputed. The Critical Safety Behaviors Policy
Behaviors Policy, a violation of the states in relevant part, "Any violation of these
20
Policy will result in termination. Critical Safety Behaviors will result in
21 immediate termination of employment."
Kenyon Decl., t l 1-3, Exh. A.
22 Exh. A to Kenyon Decl.
23 5. Defendant's Standard Operating Disputed. Ms. Kenyon deletes the word
Procedure AS 1025, issued on March 6, "immediately" before "report" to avoid their
24 hypocrisy altogether. The post-hoc rewrites
2017, "documents the Liqui-Box -
25 practice for investigating all incidents reveal Defendant's CSB and AS 1025 as tools ol
which require medical attention, ad-hoc discrimination rather than a uniformly
26 including first aid cases, and near miss applied policy.
27 incidents and Fire."
COO McLeland's testimony supports Beard's
accounts of Defendant's failure to address
28
1 Kenyon Decl., t t 1, 2, 4, Exh. B. reports of severe and frequent hazards that cause
cumulative harms, since these lack "urgency."
2
Defendant's practice was to only promptly
3 address urgent risks, such as a "machine fire.'
4 COO McLeland tried to differentiate between a
potentially hazardous near miss from incidents,
5 asserting an "incident" is an event while a
6 "hazard" is a risk.
7 Angela Beard would alert management about
repairs needed to trolley, which included the
8 mega totes that Plaintiff injured herself with, as
far back as 2017.
9
Ms. Beardfiirthertestified as to the presence of
10 safety hazards at the workplace which she
11 reported on comment cards—Defendants did
nothing to address the trolley hazards, but only
12 hazards where the potential harm was
immediate and not disabling in nature (such as
13
electrical shock hazards and dull tape dispenser
14 blades which caused cuts).
15 Ms. Beard wamed management about the
severe and frequentriskto packers who had to
16 push them. Ms. Beard even wamed Liqui-Box's
17 CEO and other corporate officers, when they
visited the plant just months before the broken
18 trolleys led to yet another disabling strain injury
to Plaintiff, this time to her knee and hamstring.
19
Exh. B to Kenyon Decl.; Torabi Decl., t t 3e-f,
20
k, 4a-b, Exh. T l , p. 87, lines 7-12,17-23; p. 88,
21 lines 6-9, p. 92, lines 4-6, 11, p. 93, lines 1-25,
p. 94, lines 1-14; p. 95, lines 1-12; Exh. T2, p.
22 35, lines 12-25; p. 36, lines 1-5; p. 39, lines 19
23 25; p. 40, lines 1, 10-17, 23-25; p. 41, lines 1-
10, 12-22; p. 43, lines 4-19; p. 44, lines 2-3; p.
24 45, lines 3-7; p. 46, lines 12-15, 20, 22; p. 48,
lines 9-11, 18-24; p. 71 lines 13-25; p. 84, lines
25
15-16, 18, 20-21; p. 85, lines 3-8, 10-23; p. 86
26 lines 3-4,10-14, 21-22; p. 117 lines 1-9; Zaman
Decl., 14.
27
28
1 Standard Operating Procedure AS 1025 Disputed. COO McLeland tried to differentiate
defines "Near Miss" to mean "Potential between a potentially hazardous near miss from
2 for injury or property damage." incidents, asserting an "incident" is an event
while a "hazard" is a risk.
3
Kenyon Decl., t t 1, 2, 4, Exh. B.
Torabi Decl., t 4k; Exh. T l , p. 95, lines 1-12
4
5 Standard Operating Procedure AS 1025 Disputed. Ms. Beard testified to the
states: "Any incident requiring any type inconsistent application of the CSB policy in
6 of treatment to any employee or that many employees would violate its terms but
contractor, a near miss, or any incident not be terminated.
7 resulting in equipment damage, or fire
shall be reported immediately to a shift Defendant not only disregarded every defective
8 trolley waming—instead of fixing PlaintifPs
leader."
9 broken trolleys. Plaintiffs superiors, including
Bag Room Manager Chance Williamson,
Kenyon Decl., t t 1, 2, 4, Exh. B.
10 sometimes "watched and cheered her on" as
Plaintiff struggled, even as she "yelled" from
11 the constant pain.
12 Torabi Decl., t 4d; Exh. T2, p. 110, lines 14,
13 16-17, 25, p. I l l , lines 1, 3-5, 7-10; Zaman
peel., 12, 6.
14
8. Standard Operating Procedure AS 1025 Undisputed.
15 states that if a shift leader is not
16 available a report can be made to the
Plant Manager, EH&S (Environmental
17 Health & Safety) Manager, or the
Human Resources Manager.
18
19 Kenyon Decl., t t 1, 2, 4, Exh. B.
Standard Operating Procedure AS 1025 Disputed. The AS 1025 provides that a 4 Panel
20
also sets forth additional steps that must EHS Disciplinary Review ("Disciplinary
21 be taken to investigate and report on Review") is required "for any employee who
safety incidents, including the sustains an injury resuhing in medical
22 preparation of a "4 Panel Review for any treatment, restricted workdays or lost
23 employee who sustains an injury workdays..." That is, the Disciplinary Review
resulting in medical treatment, restricted applies only to employees who incur work
24 workdays or lost workdays " related disabilities and who would require
accommodation. However, when it comes to
25 Kenyon Decl., t l 1,2,4, Exh. B. incidents, illnesses, or near misses which do not
26 result in disabling injuries, AS 1025 expressly
does not require such Disciplinary Review.
27
28
1 Ms. Kenyon's Declaration deletes the word
"immediately" before "report" to avoid their
2 hypocrisy altogether. The post-hoc rewrites
reveal Defendant's CSB and AS1025 as tools of
3
ad-hoc discrimination rather than a uniformly
4 applied policy.
5 COO McLeland's testimony supports Ms
Beard's accounts of Defendant's failure to
6 address reports of pervasive and frequent
hazards that cause cumulative harms, since
7
these lack "urgency."
8 Exh. B and Exh. G to Kenyon Decl.; Khos
9 Decl., t 3b; see Exh. K l , p. 59, lines 5-11;
Torabi Decl., t t 3e-f, Exh. T l , p. 87, lines 7-12
10 17-23; p. 88, lines 6-9, p. 92, lines 4-6, 11.
11 10. Defendant issued the Critical Safety Disputed. There is a dispute of fact as to
12 Behaviors Policy and Standard whether Defendant's CSB No.l policy
Operating Procedure AS 1025, conducts discouraged reporting workplace injuries, as
13 employee training, and obtains employees were in fear of reporting their
employee acknowledgments regarding workplace injuries for fear of retaliation for
14
awareness of the Critical Safety reporting a disability and requesting
15 Behaviors policy, to promote workplace accommodations.
safety.
16 Ms. Beard joins Mr. Le and Plaintiff in
maintaining Defendant never trained employees
17 Kenyon Decl., t l 1,2, 5, Exh. A, C.
on (1) how to report or even to distinguish pain,
swelling, or other sensations as symptoms oi
18
any injury, nor (2) that muscle discomfort or
19 pain was a "near miss" or any other "incident
requiring reporting under the CSB or AS 1025
20 policies, nor (3) how to recognize a symptom of
21 cumulative injuries, nor (4) that she could report
without fear of retaliation
22
Plaintiff is imaware that her knee and hamstring
23 strain injuries caused Defendant any workplace
safety issues.
24
Without any non-retaliation training Plaintiff
25 and her co-workers interpreted this rigid CSB
26 No. 1 policy to equate any reporting to ariskof
being terminated in retaliation, under the guise
27 of reporting too late.
28
1 According to Plaintiff, Ms. Beard, and Mr. Le
Defendant never trained employees how to
2 recognize or report pain, swelling or other
symptoms of cumulative injuries such as
3 Plaintiffs strained knee or strained hamstring,
4 or in Ms. Beard's case, her tweaked back.
5 Ms. Beard joins Mr. Le and Plaintiff in
maintaining Defendant never trained employees
6 on (1) how to report or even to distinguish pain
swelling, or other sensations as symptoms ol
7
any injury, nor (2) that muscle discomfort or
8 pain was a "near miss" or any other "incident"
requiring reporting under the CSB or AS 1025
9 policies, nor (3) how to recognize a symptom of
10 cumulative injuries, nor (4) that she could report
without fear of retaliation.
11
The AS 1025 provides that a 4 Panel EHS
12 Disciplinary Review ("Disciplinary Review") is
required "for any employee who sustains an
13 injury resulting in medical treatment, restricted
14 workdays or lost workdays..." That is, the
Disciplinary Review applies only to employees
15 who incur work-related disabilities and who
would require accommodation. However, when
16 it comes to incidents, ilbiesses, or near misses
17 which do not result in disabling injuries
AS 1025 expressly does not require such
18 Disciplinary Review.
19 Ms. Kenyon's Declaration deletes the word
"immediately" before "report" to avoid their
20
hypocrisy altogether. The post-hoc rewrites
21 reveal Defendant's CSB and AS 1025 as tools of
ad-hoc discrimination rather than a uniformly
22 applied policy.
23 COO McLeland's testimony supports Ms
24 Beard's accounts of Defendant's failure to
address reports of pervasive and frequent
25 hazards that cause cumulative harms, since
these lack "urgency."
26
27
28
Even COO McLeland had no idea whether
1
Defendant ever provided the legally required
2 non-retaliation training.
3 Angela Beard would alert management about
repairs needed to trolley, which included the
4 mega totes that Plaintiff injured herself with, as
5 far back as 2017.
Ms. Beard further testified as to the presence of
6
safety hazards at the workplace which she
7 reported on comment cards—Defendants did
nothing to address the trolley hazards, but only
8 hazards where the potential harm was
9 immediate and not disabling in nature (such as
electrical shock hazards and dull tape dispenser
10 blades which caused cuts).
11 Ms. Beard wamed management about the
severe and frequent risk to packers who had to
12 push them. Ms. Beard even wamed Liqui-Box's
13 CEO and other corporate officers, when they
visited the plant just months before the broken
14 trolleys led to yet another disabling strain injury
to Plaintiff, this time to her knee and hamstring
15
According to Plaintiff, Ms. Beard, and Mr. Le
16
Defendant never trained employees how to
17 recognize or report pain, swelling or other
symptoms of cumulative injuries such as
18 PlaintifFs strained knee or strained hamstring
19 or in Ms. Beard's case, her tweaked back.
Ms. Beard further testified that she personally
20
witnessed approximately 20 separate violations
21 ofthe CSB policy by upper management which
did not result in termination, including
22 management employee Chance Williamson
23 who violated lockout/tagout procedures.
24 As Ms. Beard testified, Defendant did not train
employees on how to detect an injury from a
25 bodily sensation, even after Ms. Beard raised to
"Bag Room Manager" Chance Williamson the
26
fact that "it's impossible to immediately report
27 all incidents with regard to an injury because
sometimes you don't know you're injured imtil
28
1 much later." Ultimately, when it came to
considering PlaintifFs FEHA rights in deciding
2 to terminate her employment, Mr. McLeland
responded that he did, but would not reveal the
3 substance of what was considered as to
4 PlaintifFs FEHA rights by invoking the
attomey-client privilege, creating a further
5 dispute of fact.
6 Exhs. B and G to Kenyon Decl.; Zaman Decl.,
lit 7-11, 21; Le Decl. t t 2-5; Khos. Decl., t 3b;
7
Exh. K l , p. 59, lines 5-11; Torabi Decl., t t 3e-
8 f, 4a-b, d-e, Exh. Tl,p. 87, lines 7-12,17-23; p
88, lines 6-9, p. 92, lines 4-6, 11; p. 117, lines
9 17-19, p. 118, lines 3-7, 10-11; Exh. T2,p. 35,
lines 12-25; p. 36, lines 1-5; p. 39, lines 19-25;
10
p. 40, lines 1, 10-17, 23-25; p. 41, lines 1-10,
11 12-22; p. 43, lines 4-19; p. 44, lines 2-3; p. 45
lines 3-7; p. 46, lines 12-15, 20, 22; p. 48, lines
12 9-11,18-24; p. 84, lines 15-16,18,20-21; p. 85,
13 lines 3-8, 10-23; p. 86, lines 3-4, 10-14, 21-22;
p. 110, lines 14, 16-17, 25, p. I l l , lines 1,3-5,
14 7-10, 20-22; p. 112, lines 3-5, 7-15, 23-25; p
113, lines 1-4, 19-22, 25, p. 114, lines 2-22; p.
15
120, lines 8-9,12-15,17-21,24-25; p. 121, lines
16 1,4.
17 11. On or about October 10, 2017, Plaintiflf Disputed. Without any non-retaliation training
acknowledged that she had "been trained Plaintiflf and her co-workers interpreted this
18
and understand that all injuries, incidents rigid CSB No. 1 policy to equate any reporting
19 or near misses must be reported at the to ariskof being terminated in retaliation, under
time and shift that it occurs and that it the guise of reporting too late.
20 must be reported to a supervisor or
There is a dispute of fact as to whether
21 leadership.
Defendant's CSB No.l policy discouraged
reporting workplace injuries, as employees
22 Kenyon Decl., t l 1, 2, 5, Exh. C.
were in fear of reporting their workplace
23 injuries for fear of retaliation for reporting a
disability and requesting accommodations.
24
Ms. Beard joins Mr. Le and Plaintiff in
25 maintaining Defendant never trained employees
26 on (1) how to report or even to distinguish pain,
swelling, or other sensations as symptoms of
27 any injury, nor (2) that muscle discomfort or
pain was a "near miss" or any other "incident
28
8
requiring reporting under the CSB or AS 1025
1
policies, nor (3) how to recognize a symptom of
2 cumulative injuries, nor (4) that she could report
without fear of retaliation.
3
Zaman Decl., t t 7-11
4
12. On or about June 4, 2018, Plaintiflf Disputed. Without any non-retaliation training
5
acknowledged that she had been given a Plaintiff and her co-workers interpreted this
6 copy of the Critical Safety Behaviors rigid CSB No. 1 policy to equate any reporting
policy, that it had been explained to her, to a risk of being terminated in retaliation, under
7 she agreed to comply with it, and she the guise of reporting too late.
knew that violating the policy would
8 There is a dispute of fact as to whether
"lead to immediate termination of
Defendant's CSB No.l policy discouraged
9 employment."
reporting workplace injuries, as employees
10 were in fear of reporting their workplace
Kenyon Decl., t t 1, 2, 5, Exh. A.
injuries for fear of retaliation for reporting ~
11 disability and requesting accommodations.
12 Ms. Beard joins Mr. Le and Plaintiff in
maintaining Defendant never trained employees
13
on (1) how to report or even to distinguish pain,
14 swelling, or other sensations as symptoms oi
any injury, nor (2) that muscle discomfort or
15 pain was a "near miss" or any other "incident"
16 requiring reporting under the CSB or AS 1025
policies, nor (3) how to recognize a symptom of
17 cumulative injuries, nor (4) that she could report
without fear of retaliation.
18
Zaman Decl., t t 7-11
19
13. On January 3, 2019, Defendant became Disputed. Defendant not only disregarded every
20
aware that Plaintiff had suffered an such waming regarding broken trolleys—instead
21 injury that she believed had occurred at of fixing Plaintiffs broken trolleys, PlaintifFs
work. superiors, including Bag Room Manager
22
Chance Williamson, sometimes "watched and
23 Kenyon Decl., tH 1, 2, 6, Exh. D. cheered her on" as Plaintiff stmggled, even as
she "yelled" from the constant pain.
24
Indeed, Defendant knew that "pushing" had
25 already caused Plaintiff a prior cumulative
injury (tenosynovitis in her hand), an injury for
26
which Plaintiff had been placed on two-months
27 modified work duties in 2013.
28
1 Plaintiff had no way to recognize her sensations
as signs of an injury that would only later be
2 diagnosed as a knee strain and a hamstring
strain.
3
Because Plaintiff was able to work through her
4 pain, she was not disabled at the time. In that
5 spirit, during the winter break from December
17 through 31, 2018, Plaintiff rested and took
6 over the counter ibuprofen to recover from the
muscle pain and swelling, as she had done for
7
years.
8
On January 2, 2019, Plaintiff retumed to work
9 and did not feel much muscle pain and believed
she could continue working. Plaintiff still did
10 not believe she had suffered an injury. But by
January 3, 2019 early in her moming shift, a
11 coworker apparently noticed Plaintiff wincing
and asked her if she was still in pain. Piaintifl
12 responded she was and that she still had not
13 been able to get rid of the pain with rest or even
with the pain medications she had. PlaintifFs
14 coworkers then suggested asking supervisor
Ralph Zuniga to get pain medications from the
15 company doctor. Plaintiff still did not know at
the time that she had suffered an injury, nor had
16 any injury ever been diagnosed.
17
Plaintiflf filled out the AS 1059 form as best as
18 she could understand it, did so under the
incorrect impression that it was only an
19 application to get pain medications, not a report
20 for her injury.
21 At that time, Plaintiff still did not know she had
suffered an injury, nor had any injury ever been
22 diagnosed. Only after about 11:00 a.m. on
23 January 3, 2019 did Plaintiff leam from the
workers' compensation medical providers at
24 U.S. HealthWorks that her unresolved pain and
swelling had been symptoms of knee strain and
25 hamstring strain injuries.
26 COO McLeland confirmed that when crafting
27 the CSB policy he did consider the "impact oi
repetitive strain" injuries that "don't have a
28
10
1 single event that caused" them and may not be
immediately reportable, but stated that "in both
2 cases, we consider the need to report
immediately..."
3
Ms. Beard would alert management about
4 repairs needed to trolleys, which included the
5 mega totes that Plaintiff injured herself with, as
far back as 2017.
6
Ms. Beard further testified as to the presence of
7 safety hazards at the workplace
which she reported on comment cards-
8 Defendant did nothing to address the
trolley hazards, but only hazards where the
9 potential harm was immediate and
not disabling in nature.
10
Zaman Decl., t t 2-3, 6, 13-17,19-20, Exhs. Z l
11
and Z2; Torabi Decl., t t 3h-i, 4a-b; see Exh
12 T l , p. 108, lines 19-24; p. 109, lines I-IO, 17-
19; p. 110, lines 4-6, 13-16; p. 115, line 25; p.
13 116, lines 1-6, 14-22, p. 117, lines 2-5; Exh. T2
p. 35, lines 12-25; p. 36, lines 1-5; p. 39, lines
14
19-25; p. 40, lines 1, 10-17, 23-25; p. 41, lines
15 1-10, 12-22; p. 43, lines 4-19; p. 44, lines 2-3
p. 45, lines 3-7; p. 46, lines 12-15, 20, 22; p. 48
16 lines 9-11, 18-24; p. 76, lines 1-3, p. 84, lines
17 15-16, 18, 20-21; p. 85, lines 3-8, 10-23; p. 86,
lines 3-4, 10-14,21-22
18
14. On January 3, 2019, Plaintiflf filled out a Disputed. At or about 7:30 AM on January 3,
19 "Liqui-Box Sacramento AS 1059 2019, Plaintiff told Supervisor Zuniga about her
Employee INVESTIGATION FORM" continuing pain and swelling and requested pain
20
indicating she was injured pushing a medication from the company doctor.
21 "mega tote." Supervisor Zuniga told Plaintiff "Go wait in the
lunchroom, and someone from HR will bring
22 you an application to fill out to get pain meds."
Kenyon Decl., t t 1, 2, 6, Exh. D. Plaintiff waited in the lunch room as instructed,
23 and after about two hours Manager of Human
24 Resources Janene Whitney came in and handed
Plaintiff a document (the AS 1059 form. Exhibit
25 D to the Declaration of Angela Kenyon in
Support of Defendant Liqui-Box Corporation's
26 Motion for Summary Judgment and/or
Summary Adjudication of Issues.) Janene
27 Whitney said, "Fill out this application and then
28
11
1 we will go to the company doctor to get your
pain meds."
2
See Exh. D to Kenyon Decl.; Zaman Decl., t
3 8.
4
15. Onthe January 3,2019 AS 1059 Disputed. Plaintiff thereafter filled out the
5 "Employee INVESTIGATION FORM" AS 1059 form as best as she could understand it,
Plaintiff identified the date of the did so under the incorrect impression that it was
6 incident as "Decmeb I week." only an application to get pain medications, not
a report for her injury. At that time, Plainfiff still
7
Kenyon Decl., t t 1, 2, 6, Exh. D. did not know she had suffered an injury, nor had
8 any injury ever been diagnosed.
9 See Exh. D to Kenyon Decl.; Zaman Decl., t
19.
10
16. On the January 3, 2019 AS 1059 Disputed. Disputed. At or about 7:30 A M on
11 "Employee INVESTIGATION FORM" January 3, 2019, Plaintiff told Supervisor
12 Plaintiff indicated that there was injury Zuniga about her continuing pain and swelling
to a muscle. and requested pain medication from the
13 company doctor. Supervisor Zuniga told
Kenyon Decl., t t 1, 2, 6, Exh. D. Plaintiff "Go wait in the lunchroom, and
14 someone from HR will bring you an application
to fill out to get pain meds." Plaintiff waited in
15 the lunch room as instmcted, and after about
16 two hours Manager of Human Resources Janene
Whitney came in and handed Plaintiff
17 document (the AS 1059 form. Exhibit D to the
Declaration of Angela Kenyon in Support oi
18 Defendant Liqui-Box Corporation's Motion for
Summary Judgment and/or Summary
19 Adjudication of Issues.) Janene Whitney said,
20 "Fill out this application and then we will go to
the company doctor to get your pain meds."
21
Disputed. Plaintiff thereafter filled out the
22 ASI059 form as best as she could understand it,
23 did so under the incorrect impression that it was
only an application to get pain medications, not
24 a report for her injury. At that time, Plaintiflf still
did not know she had suffered an injury, nor had
25
any injury ever been diagnosed.
26
See Exh. D to Kenyon Decl.; Zaman Decl., t t
27 18-19
28
12
17. On the January 3, 2019 AS 1059 Disputed. Plaintiff thereafter filled out the
1
"Employee INVESTIGATION FORM" AS 1059 form as best as she could understand it,
2 Plaintiff indicated she received medical did so under the incorrect impression that it was
treatment for the injury on December 31. only an application to get pain medications, not
3 2018. a report for her injury. At that time, Plaintiff still
4 did not know she had suffered an injury, nor had
Kenyon Decl., t t 1, 2, 6, Exh. D. any injury ever been diagnosed.
5
See Exh. D to Kenyon Decl.; Zaman Decl., t
6 19, see Exh. Z2
7 18. Defendant received a "Work Status Disputed. Plaintiff had no way to recognize her
8 Report"fromU.S. Health Works sensations as signs of an injury that would only
Medical Group related to Plaintiff that later be diagnosed as a knee strain and
9 indicated she was examined on January hamstring strain. Because Plaintiff was able to
3, 2019 and was given a diagnosis of work through her pain, she was not disabled at
10 "Strain of left knee" and "Strain of left the time. In that spirit, during the winter break
11 hamstring muscle." from December 17 through 31, 2018, Piaintifl
rested and took over the counter ibuprofen to
12 Kenyon Decl., t t 1, 2, 7, 8, Exh. F. recover from the muscle pain and swelling, as
she had done for years. She did not engage in
13
any activity that required standing or putting
14 any weight on my left knee for any appreciable
amount of time. By December 31, 2018,
15 PlaintifFs pain had still not resolved, so she
16 visited the Methodist Hospital's Emergency
Room hoping to get more effective medications.
17 The doctor examined Plaintiflf and still did not
indicate any diagnosis of any injury, only seeing
18 her for "leg pain-swelling".
19 On January 2, 2019, Plaintiff retumed to work
20 and did not feel much muscle pain and believed
she could continue working. Plaintiff still did
21 not believe she had suffered an injury. Id. But
by January 3, 2019 early in her moming shift, a
22
coworker apparently noticed Plaintiff wincing
23 and asked her if she was still in pain.
24 Plainfiff thereafter filled out the AS 1059 form
as best as she could understand it, did so under
25 the incorrect impression that it was only an
26 application to get pain medications, not a report
for her injury. At that time. Plaintiff still did not
27 know she had suffered an injury, nor had any
injury ever been diagnosed. (Id.) Only after
28
13
about 11:00 a.m. on January 3, 2019 did
1
Plaintiff leam from the workers' compensation
2 medical providers at U.S. HealthWorks that her
unresolved pain and swelling had been
3 symptoms of knee strain and hamstring strain
4 injuries.
5 See Exh. F to Kenyon Decl.; Zaman Decl., t t
13-17, 19-20, see Exh. Z2
6
19. The Work Status Report from the Disputed. Plaintiff had no way to recognize her
7 January 3, 2019, examination stated sensations as signs of an injury that would only
8 "DOI: 12-03-2018" later be diagnosed as a knee strain and
hamstring strain. Because Plaintiff was able to
9 Kenyon Decl., t t 1, 2, 7, 8, Exh. F. work through her pain, she was not disabled at
the time. In that spirit, during the winter break
10 from December 17 through 31, 2018, Plainfifi
11 rested and took over the counter ibuprofen to
recover from the muscle pain and swelling, as
12 she had done for years. She did not engage in
any activity that required standing or putting
13
any weight on my left knee for any appreciable
14 amount of time. By December 31, 2018,
Plainfiff s pain had still not resolved, so she
15 visited the Methodist Hospital's Emergency
16 Room hoping to get more effective medications
The doctor examined Plaintiff and still did nol
17 indicate any diagnosis of any injury, only seeing
her for "leg pain-swelling".
18
On January 2, 2019, Plaintiff retumed to work
19 and did not feel much muscle pain and believed
20 she could continue working. Plaintiff still did
not believe she had suffered an injury. Id. But
21 by January 3, 2019 early in her moming shift, a
coworker apparently noticed Plaintiff wincing
22
and asked her if she was still in pain.
23
Plainfiff thereafter filled out the AS 1059 form
24 as best as she could understand it, did so under
the incorrect impression that it was only an
25 application to get pain medications, not a report
26 for her injury. At that time. Plaintiff still did not
know she had suffered an injury, nor had any
27 injury ever been diagnosed. (Id.) Only after
about 11:00 a.m. on January 3, 2019 did
28
14
1 Plaintiflf leam from the workers' compensation
medical providers at U.S. HealthWorks that her
2 unresolved pain and swelling had been
symptoms of knee strain and hamstring strain
3 injuries.
4 See Exhs. F and G to Kenyon Decl. Zaman
5 Decl., t t 13-17, 19-20, see Exh. Z2
6 20. Defendant conducted the "4 Panel Disputed. The AS 1025 provides that a 4 Panel
Review" related to PlaintifFs injury EHS Disciplinary Review ("Disciplinary
7 pursuant to Standard Operating Review") is required "for any employee who
8 Procedure AS 1025. sustains an injury resulting in medical
treatment, restricted workdays or lost
9 Kenyon Decl., t t 1, 2, 9, Exh. G. workdays..." That is, the Disciplinary Review
applies only to employees who incur work
10
related disabilities and who would require
11 accommodation. However, when it comes to
incidents, illnesses, or near misses which do not
12 result in disabling injuries, AS 1025 expressly
13 does not require such Disciplinary Review.
14 See Exh. B to Kenyon Decl.; Khos. Decl., t t
3b, see Exh. K l , p. 59, lines 5-11
15
21. The "4 Panel Review" summarized the Disputed. Plainfiff had no way to recognize her
16 incident as follows: sensafions as signs of an injury that would only
17 "Sajida indicated that she was pushing a later be diagnosed as a knee strain and
mega tote cart with about 400 bags 3-4 hamstring strain. Because Plaintiff was able to
18 weeks ago. Sajida stated that the work through her pain, she was not disabled at
wheel(s) on the cart were not working the time. In that spirit, during the winter break
19
properly so she overcompensated to from December 17 through 31, 2018, Plainfifl
20 push the cart. Sajida stated that over the rested and took over the counter ibuprofen to
last weeks she incurred swelling and recover from the muscle pain and swelling, as
21 knee pain - taking over the counter she had done for years. She did not engage in
22 ibuprofen." any activity that required standing or putting
any weight on my left knee for any appreciable
23 Kenyon Decl., t t 1, 2, 9, Exh. G. amount of time. By December 31, 2018,
24 PlaintifFs pain had still not resolved, so she
visited the Methodist Hospital's Emergency
25 Room hoping to get more effective medications
The doctor examined Plaintiff and still did not
26
indicate any diagnosis of any injury, only seeing
27 her for "leg pain-swelling".
28
15
On January 2, 2019, Plaintiff retumed to work
1
and did not feel much muscle pain and believed
2 she could continue working. Plaintiff still did
not believe she had suffered an injury. Id. But
3 by January 3, 2019 early in her moming shift, a
4 coworker apparently noticed Plaintiff wincing
and asked her if she was still in pain.
5
Plaintiflf the
Preview
1 JOSHUA S. FALAKASSA (SBN: 295045) FALAKASSA LAW, P.C. 2 1901 Avenue ofthe Stars Suite # 450 3 Los Angeles, Caiifomia 90067 Tel.: (818) 456-6168; Fax: (888) 505-0868 4 Email: josh@faIakassalaw.com JUL 2 7 2022 5 ARASH S. KHOSROWSHAHI (SBN: 293246) By; LIBERTY MAN LAW, P.C. 6 1010 F Street, Ste. 300 7 Sacramento, Caiifomia 95814 Tel.: (916) 573-0469; Fax: (866) 700-0787 8 Email: ash(§libertymanlaw.com 9 Attomeys for Plaintiff, SAJIDA ZAMAN 10 11 SUPERIOR COURT OF CALIFORNIA 12 COUNTY OF SACRAMENTO 13 SAJIDA ZAMAN, CASE NO.: 34-2019-00252121 RESERVATION ID: 2644651 14 Plaintiff, 15 vs. SEPARATE STATEMENT IN OPPOSITION TO DEFENDANT 16 LIQUI-BOX CORPORATION, and DOES 1 LIQUI-BOX CORPORATION'S through 20, inclusive. MOTION FOR SUMMARY 17 JUDGMENT AND/OR SUMMARY Defendants. ADJUDICATION OF ISSUES. 18 19 Date: August 10, 2022 Time: 1:30pm BY FAX 20 Dept.: 53 Trial Date: September 12,2022 21 22 Pursuant to Code of Civil Procedure § 437c(b)(3) and Caiifomia Rules of Court, rules 23 3.1350(f) and 3.1350(h), Plaintiff Sajida Zaman ("PlaintifP') submits the following Separate 24 Statement in Opposition to Defendant Liqui-Box Corporation's Motion for Summary Judgment 25 and/or Adjudication of Issues. 26 /// 27 /// 28 ISSUE NO. 1: Plaintiff's First Cause of Action for Wrongful Termination in Violation of 1 Public Policy Fails As a Matter of Law Because Defendant Terminated Her Employment for 2 Legitimate Business Reasons That Did Not Violate Any Public Policy. 3 DEFENDANT'S UNDISPUTED MATERIAL PLAINTIFF'S RESPONSE AND 4 FACTS AND SUPPORTING EYIDENCE SUPPORTING EVIDENCE : • 5 1. Defendant Liqui-Box Corporation Undisputed. 6 employed Plaintiff Sajida Zaman. 7 Declaration of Angela Kenyon in 8 Support of Defendant Liqui-Box Corporation's Motion for Summary 9 Judgment and/or Summary Adjudication of Issues (hereinafter "Kenyon Decl."), 10 m 1,2.; PlaintifFs Complaint for 11 Damages (hereinafter "Complaint"), 16. 2. Defendant has a policy called the Undisputed. 12 "Critical Safety Behaviors Policy." 13 Kenyon Decl., t t 1-3, Exh. A. 14 3. According to Defendant's Critical Safety Disputed. The Critical Safety Behaviors Policy 15 Behaviors Policy, employees must states in relevant part, "1. Immediately report all 16 "report all incidents to your supervisor, incidents to your supervisor, management team management team member no matter no matter how minor or without exception." 17 how minor or without exception." Exh. A to Kenyon Decl. 18 Kenyon Decl., t t 1-3, Exh. A. 19 4. According to Defendant's Critical Safety Disputed. The Critical Safety Behaviors Policy Behaviors Policy, a violation of the states in relevant part, "Any violation of these 20 Policy will result in termination. Critical Safety Behaviors will result in 21 immediate termination of employment." Kenyon Decl., t l 1-3, Exh. A. 22 Exh. A to Kenyon Decl. 23 5. Defendant's Standard Operating Disputed. Ms. Kenyon deletes the word Procedure AS 1025, issued on March 6, "immediately" before "report" to avoid their 24 hypocrisy altogether. The post-hoc rewrites 2017, "documents the Liqui-Box - 25 practice for investigating all incidents reveal Defendant's CSB and AS 1025 as tools ol which require medical attention, ad-hoc discrimination rather than a uniformly 26 including first aid cases, and near miss applied policy. 27 incidents and Fire." COO McLeland's testimony supports Beard's accounts of Defendant's failure to address 28 1 Kenyon Decl., t t 1, 2, 4, Exh. B. reports of severe and frequent hazards that cause cumulative harms, since these lack "urgency." 2 Defendant's practice was to only promptly 3 address urgent risks, such as a "machine fire.' 4 COO McLeland tried to differentiate between a potentially hazardous near miss from incidents, 5 asserting an "incident" is an event while a 6 "hazard" is a risk. 7 Angela Beard would alert management about repairs needed to trolley, which included the 8 mega totes that Plaintiff injured herself with, as far back as 2017. 9 Ms. Beardfiirthertestified as to the presence of 10 safety hazards at the workplace which she 11 reported on comment cards—Defendants did nothing to address the trolley hazards, but only 12 hazards where the potential harm was immediate and not disabling in nature (such as 13 electrical shock hazards and dull tape dispenser 14 blades which caused cuts). 15 Ms. Beard wamed management about the severe and frequentriskto packers who had to 16 push them. Ms. Beard even wamed Liqui-Box's 17 CEO and other corporate officers, when they visited the plant just months before the broken 18 trolleys led to yet another disabling strain injury to Plaintiff, this time to her knee and hamstring. 19 Exh. B to Kenyon Decl.; Torabi Decl., t t 3e-f, 20 k, 4a-b, Exh. T l , p. 87, lines 7-12,17-23; p. 88, 21 lines 6-9, p. 92, lines 4-6, 11, p. 93, lines 1-25, p. 94, lines 1-14; p. 95, lines 1-12; Exh. T2, p. 22 35, lines 12-25; p. 36, lines 1-5; p. 39, lines 19 23 25; p. 40, lines 1, 10-17, 23-25; p. 41, lines 1- 10, 12-22; p. 43, lines 4-19; p. 44, lines 2-3; p. 24 45, lines 3-7; p. 46, lines 12-15, 20, 22; p. 48, lines 9-11, 18-24; p. 71 lines 13-25; p. 84, lines 25 15-16, 18, 20-21; p. 85, lines 3-8, 10-23; p. 86 26 lines 3-4,10-14, 21-22; p. 117 lines 1-9; Zaman Decl., 14. 27 28 1 Standard Operating Procedure AS 1025 Disputed. COO McLeland tried to differentiate defines "Near Miss" to mean "Potential between a potentially hazardous near miss from 2 for injury or property damage." incidents, asserting an "incident" is an event while a "hazard" is a risk. 3 Kenyon Decl., t t 1, 2, 4, Exh. B. Torabi Decl., t 4k; Exh. T l , p. 95, lines 1-12 4 5 Standard Operating Procedure AS 1025 Disputed. Ms. Beard testified to the states: "Any incident requiring any type inconsistent application of the CSB policy in 6 of treatment to any employee or that many employees would violate its terms but contractor, a near miss, or any incident not be terminated. 7 resulting in equipment damage, or fire shall be reported immediately to a shift Defendant not only disregarded every defective 8 trolley waming—instead of fixing PlaintifPs leader." 9 broken trolleys. Plaintiffs superiors, including Bag Room Manager Chance Williamson, Kenyon Decl., t t 1, 2, 4, Exh. B. 10 sometimes "watched and cheered her on" as Plaintiff struggled, even as she "yelled" from 11 the constant pain. 12 Torabi Decl., t 4d; Exh. T2, p. 110, lines 14, 13 16-17, 25, p. I l l , lines 1, 3-5, 7-10; Zaman peel., 12, 6. 14 8. Standard Operating Procedure AS 1025 Undisputed. 15 states that if a shift leader is not 16 available a report can be made to the Plant Manager, EH&S (Environmental 17 Health & Safety) Manager, or the Human Resources Manager. 18 19 Kenyon Decl., t t 1, 2, 4, Exh. B. Standard Operating Procedure AS 1025 Disputed. The AS 1025 provides that a 4 Panel 20 also sets forth additional steps that must EHS Disciplinary Review ("Disciplinary 21 be taken to investigate and report on Review") is required "for any employee who safety incidents, including the sustains an injury resuhing in medical 22 preparation of a "4 Panel Review for any treatment, restricted workdays or lost 23 employee who sustains an injury workdays..." That is, the Disciplinary Review resulting in medical treatment, restricted applies only to employees who incur work 24 workdays or lost workdays " related disabilities and who would require accommodation. However, when it comes to 25 Kenyon Decl., t l 1,2,4, Exh. B. incidents, illnesses, or near misses which do not 26 result in disabling injuries, AS 1025 expressly does not require such Disciplinary Review. 27 28 1 Ms. Kenyon's Declaration deletes the word "immediately" before "report" to avoid their 2 hypocrisy altogether. The post-hoc rewrites reveal Defendant's CSB and AS1025 as tools of 3 ad-hoc discrimination rather than a uniformly 4 applied policy. 5 COO McLeland's testimony supports Ms Beard's accounts of Defendant's failure to 6 address reports of pervasive and frequent hazards that cause cumulative harms, since 7 these lack "urgency." 8 Exh. B and Exh. G to Kenyon Decl.; Khos 9 Decl., t 3b; see Exh. K l , p. 59, lines 5-11; Torabi Decl., t t 3e-f, Exh. T l , p. 87, lines 7-12 10 17-23; p. 88, lines 6-9, p. 92, lines 4-6, 11. 11 10. Defendant issued the Critical Safety Disputed. There is a dispute of fact as to 12 Behaviors Policy and Standard whether Defendant's CSB No.l policy Operating Procedure AS 1025, conducts discouraged reporting workplace injuries, as 13 employee training, and obtains employees were in fear of reporting their employee acknowledgments regarding workplace injuries for fear of retaliation for 14 awareness of the Critical Safety reporting a disability and requesting 15 Behaviors policy, to promote workplace accommodations. safety. 16 Ms. Beard joins Mr. Le and Plaintiff in maintaining Defendant never trained employees 17 Kenyon Decl., t l 1,2, 5, Exh. A, C. on (1) how to report or even to distinguish pain, swelling, or other sensations as symptoms oi 18 any injury, nor (2) that muscle discomfort or 19 pain was a "near miss" or any other "incident requiring reporting under the CSB or AS 1025 20 policies, nor (3) how to recognize a symptom of 21 cumulative injuries, nor (4) that she could report without fear of retaliation 22 Plaintiff is imaware that her knee and hamstring 23 strain injuries caused Defendant any workplace safety issues. 24 Without any non-retaliation training Plaintiff 25 and her co-workers interpreted this rigid CSB 26 No. 1 policy to equate any reporting to ariskof being terminated in retaliation, under the guise 27 of reporting too late. 28 1 According to Plaintiff, Ms. Beard, and Mr. Le Defendant never trained employees how to 2 recognize or report pain, swelling or other symptoms of cumulative injuries such as 3 Plaintiffs strained knee or strained hamstring, 4 or in Ms. Beard's case, her tweaked back. 5 Ms. Beard joins Mr. Le and Plaintiff in maintaining Defendant never trained employees 6 on (1) how to report or even to distinguish pain swelling, or other sensations as symptoms ol 7 any injury, nor (2) that muscle discomfort or 8 pain was a "near miss" or any other "incident" requiring reporting under the CSB or AS 1025 9 policies, nor (3) how to recognize a symptom of 10 cumulative injuries, nor (4) that she could report without fear of retaliation. 11 The AS 1025 provides that a 4 Panel EHS 12 Disciplinary Review ("Disciplinary Review") is required "for any employee who sustains an 13 injury resulting in medical treatment, restricted 14 workdays or lost workdays..." That is, the Disciplinary Review applies only to employees 15 who incur work-related disabilities and who would require accommodation. However, when 16 it comes to incidents, ilbiesses, or near misses 17 which do not result in disabling injuries AS 1025 expressly does not require such 18 Disciplinary Review. 19 Ms. Kenyon's Declaration deletes the word "immediately" before "report" to avoid their 20 hypocrisy altogether. The post-hoc rewrites 21 reveal Defendant's CSB and AS 1025 as tools of ad-hoc discrimination rather than a uniformly 22 applied policy. 23 COO McLeland's testimony supports Ms 24 Beard's accounts of Defendant's failure to address reports of pervasive and frequent 25 hazards that cause cumulative harms, since these lack "urgency." 26 27 28 Even COO McLeland had no idea whether 1 Defendant ever provided the legally required 2 non-retaliation training. 3 Angela Beard would alert management about repairs needed to trolley, which included the 4 mega totes that Plaintiff injured herself with, as 5 far back as 2017. Ms. Beard further testified as to the presence of 6 safety hazards at the workplace which she 7 reported on comment cards—Defendants did nothing to address the trolley hazards, but only 8 hazards where the potential harm was 9 immediate and not disabling in nature (such as electrical shock hazards and dull tape dispenser 10 blades which caused cuts). 11 Ms. Beard wamed management about the severe and frequent risk to packers who had to 12 push them. Ms. Beard even wamed Liqui-Box's 13 CEO and other corporate officers, when they visited the plant just months before the broken 14 trolleys led to yet another disabling strain injury to Plaintiff, this time to her knee and hamstring 15 According to Plaintiff, Ms. Beard, and Mr. Le 16 Defendant never trained employees how to 17 recognize or report pain, swelling or other symptoms of cumulative injuries such as 18 PlaintifFs strained knee or strained hamstring 19 or in Ms. Beard's case, her tweaked back. Ms. Beard further testified that she personally 20 witnessed approximately 20 separate violations 21 ofthe CSB policy by upper management which did not result in termination, including 22 management employee Chance Williamson 23 who violated lockout/tagout procedures. 24 As Ms. Beard testified, Defendant did not train employees on how to detect an injury from a 25 bodily sensation, even after Ms. Beard raised to "Bag Room Manager" Chance Williamson the 26 fact that "it's impossible to immediately report 27 all incidents with regard to an injury because sometimes you don't know you're injured imtil 28 1 much later." Ultimately, when it came to considering PlaintifFs FEHA rights in deciding 2 to terminate her employment, Mr. McLeland responded that he did, but would not reveal the 3 substance of what was considered as to 4 PlaintifFs FEHA rights by invoking the attomey-client privilege, creating a further 5 dispute of fact. 6 Exhs. B and G to Kenyon Decl.; Zaman Decl., lit 7-11, 21; Le Decl. t t 2-5; Khos. Decl., t 3b; 7 Exh. K l , p. 59, lines 5-11; Torabi Decl., t t 3e- 8 f, 4a-b, d-e, Exh. Tl,p. 87, lines 7-12,17-23; p 88, lines 6-9, p. 92, lines 4-6, 11; p. 117, lines 9 17-19, p. 118, lines 3-7, 10-11; Exh. T2,p. 35, lines 12-25; p. 36, lines 1-5; p. 39, lines 19-25; 10 p. 40, lines 1, 10-17, 23-25; p. 41, lines 1-10, 11 12-22; p. 43, lines 4-19; p. 44, lines 2-3; p. 45 lines 3-7; p. 46, lines 12-15, 20, 22; p. 48, lines 12 9-11,18-24; p. 84, lines 15-16,18,20-21; p. 85, 13 lines 3-8, 10-23; p. 86, lines 3-4, 10-14, 21-22; p. 110, lines 14, 16-17, 25, p. I l l , lines 1,3-5, 14 7-10, 20-22; p. 112, lines 3-5, 7-15, 23-25; p 113, lines 1-4, 19-22, 25, p. 114, lines 2-22; p. 15 120, lines 8-9,12-15,17-21,24-25; p. 121, lines 16 1,4. 17 11. On or about October 10, 2017, Plaintiflf Disputed. Without any non-retaliation training acknowledged that she had "been trained Plaintiflf and her co-workers interpreted this 18 and understand that all injuries, incidents rigid CSB No. 1 policy to equate any reporting 19 or near misses must be reported at the to ariskof being terminated in retaliation, under time and shift that it occurs and that it the guise of reporting too late. 20 must be reported to a supervisor or There is a dispute of fact as to whether 21 leadership. Defendant's CSB No.l policy discouraged reporting workplace injuries, as employees 22 Kenyon Decl., t l 1, 2, 5, Exh. C. were in fear of reporting their workplace 23 injuries for fear of retaliation for reporting a disability and requesting accommodations. 24 Ms. Beard joins Mr. Le and Plaintiff in 25 maintaining Defendant never trained employees 26 on (1) how to report or even to distinguish pain, swelling, or other sensations as symptoms of 27 any injury, nor (2) that muscle discomfort or pain was a "near miss" or any other "incident 28 8 requiring reporting under the CSB or AS 1025 1 policies, nor (3) how to recognize a symptom of 2 cumulative injuries, nor (4) that she could report without fear of retaliation. 3 Zaman Decl., t t 7-11 4 12. On or about June 4, 2018, Plaintiflf Disputed. Without any non-retaliation training 5 acknowledged that she had been given a Plaintiff and her co-workers interpreted this 6 copy of the Critical Safety Behaviors rigid CSB No. 1 policy to equate any reporting policy, that it had been explained to her, to a risk of being terminated in retaliation, under 7 she agreed to comply with it, and she the guise of reporting too late. knew that violating the policy would 8 There is a dispute of fact as to whether "lead to immediate termination of Defendant's CSB No.l policy discouraged 9 employment." reporting workplace injuries, as employees 10 were in fear of reporting their workplace Kenyon Decl., t t 1, 2, 5, Exh. A. injuries for fear of retaliation for reporting ~ 11 disability and requesting accommodations. 12 Ms. Beard joins Mr. Le and Plaintiff in maintaining Defendant never trained employees 13 on (1) how to report or even to distinguish pain, 14 swelling, or other sensations as symptoms oi any injury, nor (2) that muscle discomfort or 15 pain was a "near miss" or any other "incident" 16 requiring reporting under the CSB or AS 1025 policies, nor (3) how to recognize a symptom of 17 cumulative injuries, nor (4) that she could report without fear of retaliation. 18 Zaman Decl., t t 7-11 19 13. On January 3, 2019, Defendant became Disputed. Defendant not only disregarded every 20 aware that Plaintiff had suffered an such waming regarding broken trolleys—instead 21 injury that she believed had occurred at of fixing Plaintiffs broken trolleys, PlaintifFs work. superiors, including Bag Room Manager 22 Chance Williamson, sometimes "watched and 23 Kenyon Decl., tH 1, 2, 6, Exh. D. cheered her on" as Plaintiff stmggled, even as she "yelled" from the constant pain. 24 Indeed, Defendant knew that "pushing" had 25 already caused Plaintiff a prior cumulative injury (tenosynovitis in her hand), an injury for 26 which Plaintiff had been placed on two-months 27 modified work duties in 2013. 28 1 Plaintiff had no way to recognize her sensations as signs of an injury that would only later be 2 diagnosed as a knee strain and a hamstring strain. 3 Because Plaintiff was able to work through her 4 pain, she was not disabled at the time. In that 5 spirit, during the winter break from December 17 through 31, 2018, Plaintiff rested and took 6 over the counter ibuprofen to recover from the muscle pain and swelling, as she had done for 7 years. 8 On January 2, 2019, Plaintiff retumed to work 9 and did not feel much muscle pain and believed she could continue working. Plaintiff still did 10 not believe she had suffered an injury. But by January 3, 2019 early in her moming shift, a 11 coworker apparently noticed Plaintiff wincing and asked her if she was still in pain. Piaintifl 12 responded she was and that she still had not 13 been able to get rid of the pain with rest or even with the pain medications she had. PlaintifFs 14 coworkers then suggested asking supervisor Ralph Zuniga to get pain medications from the 15 company doctor. Plaintiff still did not know at the time that she had suffered an injury, nor had 16 any injury ever been diagnosed. 17 Plaintiflf filled out the AS 1059 form as best as 18 she could understand it, did so under the incorrect impression that it was only an 19 application to get pain medications, not a report 20 for her injury. 21 At that time, Plaintiff still did not know she had suffered an injury, nor had any injury ever been 22 diagnosed. Only after about 11:00 a.m. on 23 January 3, 2019 did Plaintiff leam from the workers' compensation medical providers at 24 U.S. HealthWorks that her unresolved pain and swelling had been symptoms of knee strain and 25 hamstring strain injuries. 26 COO McLeland confirmed that when crafting 27 the CSB policy he did consider the "impact oi repetitive strain" injuries that "don't have a 28 10 1 single event that caused" them and may not be immediately reportable, but stated that "in both 2 cases, we consider the need to report immediately..." 3 Ms. Beard would alert management about 4 repairs needed to trolleys, which included the 5 mega totes that Plaintiff injured herself with, as far back as 2017. 6 Ms. Beard further testified as to the presence of 7 safety hazards at the workplace which she reported on comment cards- 8 Defendant did nothing to address the trolley hazards, but only hazards where the 9 potential harm was immediate and not disabling in nature. 10 Zaman Decl., t t 2-3, 6, 13-17,19-20, Exhs. Z l 11 and Z2; Torabi Decl., t t 3h-i, 4a-b; see Exh 12 T l , p. 108, lines 19-24; p. 109, lines I-IO, 17- 19; p. 110, lines 4-6, 13-16; p. 115, line 25; p. 13 116, lines 1-6, 14-22, p. 117, lines 2-5; Exh. T2 p. 35, lines 12-25; p. 36, lines 1-5; p. 39, lines 14 19-25; p. 40, lines 1, 10-17, 23-25; p. 41, lines 15 1-10, 12-22; p. 43, lines 4-19; p. 44, lines 2-3 p. 45, lines 3-7; p. 46, lines 12-15, 20, 22; p. 48 16 lines 9-11, 18-24; p. 76, lines 1-3, p. 84, lines 17 15-16, 18, 20-21; p. 85, lines 3-8, 10-23; p. 86, lines 3-4, 10-14,21-22 18 14. On January 3, 2019, Plaintiflf filled out a Disputed. At or about 7:30 AM on January 3, 19 "Liqui-Box Sacramento AS 1059 2019, Plaintiff told Supervisor Zuniga about her Employee INVESTIGATION FORM" continuing pain and swelling and requested pain 20 indicating she was injured pushing a medication from the company doctor. 21 "mega tote." Supervisor Zuniga told Plaintiff "Go wait in the lunchroom, and someone from HR will bring 22 you an application to fill out to get pain meds." Kenyon Decl., t t 1, 2, 6, Exh. D. Plaintiff waited in the lunch room as instructed, 23 and after about two hours Manager of Human 24 Resources Janene Whitney came in and handed Plaintiff a document (the AS 1059 form. Exhibit 25 D to the Declaration of Angela Kenyon in Support of Defendant Liqui-Box Corporation's 26 Motion for Summary Judgment and/or Summary Adjudication of Issues.) Janene 27 Whitney said, "Fill out this application and then 28 11 1 we will go to the company doctor to get your pain meds." 2 See Exh. D to Kenyon Decl.; Zaman Decl., t 3 8. 4 15. Onthe January 3,2019 AS 1059 Disputed. Plaintiff thereafter filled out the 5 "Employee INVESTIGATION FORM" AS 1059 form as best as she could understand it, Plaintiff identified the date of the did so under the incorrect impression that it was 6 incident as "Decmeb I week." only an application to get pain medications, not a report for her injury. At that time, Plainfiff still 7 Kenyon Decl., t t 1, 2, 6, Exh. D. did not know she had suffered an injury, nor had 8 any injury ever been diagnosed. 9 See Exh. D to Kenyon Decl.; Zaman Decl., t 19. 10 16. On the January 3, 2019 AS 1059 Disputed. Disputed. At or about 7:30 A M on 11 "Employee INVESTIGATION FORM" January 3, 2019, Plaintiff told Supervisor 12 Plaintiff indicated that there was injury Zuniga about her continuing pain and swelling to a muscle. and requested pain medication from the 13 company doctor. Supervisor Zuniga told Kenyon Decl., t t 1, 2, 6, Exh. D. Plaintiff "Go wait in the lunchroom, and 14 someone from HR will bring you an application to fill out to get pain meds." Plaintiff waited in 15 the lunch room as instmcted, and after about 16 two hours Manager of Human Resources Janene Whitney came in and handed Plaintiff 17 document (the AS 1059 form. Exhibit D to the Declaration of Angela Kenyon in Support oi 18 Defendant Liqui-Box Corporation's Motion for Summary Judgment and/or Summary 19 Adjudication of Issues.) Janene Whitney said, 20 "Fill out this application and then we will go to the company doctor to get your pain meds." 21 Disputed. Plaintiff thereafter filled out the 22 ASI059 form as best as she could understand it, 23 did so under the incorrect impression that it was only an application to get pain medications, not 24 a report for her injury. At that time, Plaintiflf still did not know she had suffered an injury, nor had 25 any injury ever been diagnosed. 26 See Exh. D to Kenyon Decl.; Zaman Decl., t t 27 18-19 28 12 17. On the January 3, 2019 AS 1059 Disputed. Plaintiff thereafter filled out the 1 "Employee INVESTIGATION FORM" AS 1059 form as best as she could understand it, 2 Plaintiff indicated she received medical did so under the incorrect impression that it was treatment for the injury on December 31. only an application to get pain medications, not 3 2018. a report for her injury. At that time, Plaintiff still 4 did not know she had suffered an injury, nor had Kenyon Decl., t t 1, 2, 6, Exh. D. any injury ever been diagnosed. 5 See Exh. D to Kenyon Decl.; Zaman Decl., t 6 19, see Exh. Z2 7 18. Defendant received a "Work Status Disputed. Plaintiff had no way to recognize her 8 Report"fromU.S. Health Works sensations as signs of an injury that would only Medical Group related to Plaintiff that later be diagnosed as a knee strain and 9 indicated she was examined on January hamstring strain. Because Plaintiff was able to 3, 2019 and was given a diagnosis of work through her pain, she was not disabled at 10 "Strain of left knee" and "Strain of left the time. In that spirit, during the winter break 11 hamstring muscle." from December 17 through 31, 2018, Piaintifl rested and took over the counter ibuprofen to 12 Kenyon Decl., t t 1, 2, 7, 8, Exh. F. recover from the muscle pain and swelling, as she had done for years. She did not engage in 13 any activity that required standing or putting 14 any weight on my left knee for any appreciable amount of time. By December 31, 2018, 15 PlaintifFs pain had still not resolved, so she 16 visited the Methodist Hospital's Emergency Room hoping to get more effective medications. 17 The doctor examined Plaintiflf and still did not indicate any diagnosis of any injury, only seeing 18 her for "leg pain-swelling". 19 On January 2, 2019, Plaintiff retumed to work 20 and did not feel much muscle pain and believed she could continue working. Plaintiff still did 21 not believe she had suffered an injury. Id. But by January 3, 2019 early in her moming shift, a 22 coworker apparently noticed Plaintiff wincing 23 and asked her if she was still in pain. 24 Plainfiff thereafter filled out the AS 1059 form as best as she could understand it, did so under 25 the incorrect impression that it was only an 26 application to get pain medications, not a report for her injury. At that time. Plaintiff still did not 27 know she had suffered an injury, nor had any injury ever been diagnosed. (Id.) Only after 28 13 about 11:00 a.m. on January 3, 2019 did 1 Plaintiff leam from the workers' compensation 2 medical providers at U.S. HealthWorks that her unresolved pain and swelling had been 3 symptoms of knee strain and hamstring strain 4 injuries. 5 See Exh. F to Kenyon Decl.; Zaman Decl., t t 13-17, 19-20, see Exh. Z2 6 19. The Work Status Report from the Disputed. Plaintiff had no way to recognize her 7 January 3, 2019, examination stated sensations as signs of an injury that would only 8 "DOI: 12-03-2018" later be diagnosed as a knee strain and hamstring strain. Because Plaintiff was able to 9 Kenyon Decl., t t 1, 2, 7, 8, Exh. F. work through her pain, she was not disabled at the time. In that spirit, during the winter break 10 from December 17 through 31, 2018, Plainfifi 11 rested and took over the counter ibuprofen to recover from the muscle pain and swelling, as 12 she had done for years. She did not engage in any activity that required standing or putting 13 any weight on my left knee for any appreciable 14 amount of time. By December 31, 2018, Plainfiff s pain had still not resolved, so she 15 visited the Methodist Hospital's Emergency 16 Room hoping to get more effective medications The doctor examined Plaintiff and still did nol 17 indicate any diagnosis of any injury, only seeing her for "leg pain-swelling". 18 On January 2, 2019, Plaintiff retumed to work 19 and did not feel much muscle pain and believed 20 she could continue working. Plaintiff still did not believe she had suffered an injury. Id. But 21 by January 3, 2019 early in her moming shift, a coworker apparently noticed Plaintiff wincing 22 and asked her if she was still in pain. 23 Plainfiff thereafter filled out the AS 1059 form 24 as best as she could understand it, did so under the incorrect impression that it was only an 25 application to get pain medications, not a report 26 for her injury. At that time. Plaintiff still did not know she had suffered an injury, nor had any 27 injury ever been diagnosed. (Id.) Only after about 11:00 a.m. on January 3, 2019 did 28 14 1 Plaintiflf leam from the workers' compensation medical providers at U.S. HealthWorks that her 2 unresolved pain and swelling had been symptoms of knee strain and hamstring strain 3 injuries. 4 See Exhs. F and G to Kenyon Decl. Zaman 5 Decl., t t 13-17, 19-20, see Exh. Z2 6 20. Defendant conducted the "4 Panel Disputed. The AS 1025 provides that a 4 Panel Review" related to PlaintifFs injury EHS Disciplinary Review ("Disciplinary 7 pursuant to Standard Operating Review") is required "for any employee who 8 Procedure AS 1025. sustains an injury resulting in medical treatment, restricted workdays or lost 9 Kenyon Decl., t t 1, 2, 9, Exh. G. workdays..." That is, the Disciplinary Review applies only to employees who incur work 10 related disabilities and who would require 11 accommodation. However, when it comes to incidents, illnesses, or near misses which do not 12 result in disabling injuries, AS 1025 expressly 13 does not require such Disciplinary Review. 14 See Exh. B to Kenyon Decl.; Khos. Decl., t t 3b, see Exh. K l , p. 59, lines 5-11 15 21. The "4 Panel Review" summarized the Disputed. Plainfiff had no way to recognize her 16 incident as follows: sensafions as signs of an injury that would only 17 "Sajida indicated that she was pushing a later be diagnosed as a knee strain and mega tote cart with about 400 bags 3-4 hamstring strain. Because Plaintiff was able to 18 weeks ago. Sajida stated that the work through her pain, she was not disabled at wheel(s) on the cart were not working the time. In that spirit, during the winter break 19 properly so she overcompensated to from December 17 through 31, 2018, Plainfifl 20 push the cart. Sajida stated that over the rested and took over the counter ibuprofen to last weeks she incurred swelling and recover from the muscle pain and swelling, as 21 knee pain - taking over the counter she had done for years. She did not engage in 22 ibuprofen." any activity that required standing or putting any weight on my left knee for any appreciable 23 Kenyon Decl., t t 1, 2, 9, Exh. G. amount of time. By December 31, 2018, 24 PlaintifFs pain had still not resolved, so she visited the Methodist Hospital's Emergency 25 Room hoping to get more effective medications The doctor examined Plaintiff and still did not 26 indicate any diagnosis of any injury, only seeing 27 her for "leg pain-swelling". 28 15 On January 2, 2019, Plaintiff retumed to work 1 and did not feel much muscle pain and believed 2 she could continue working. Plaintiff still did not believe she had suffered an injury. Id. But 3 by January 3, 2019 early in her moming shift, a 4 coworker apparently noticed Plaintiff wincing and asked her if she was still in pain. 5 Plaintiflf the