Preview
1 LISA LIN GARCIA, Bar No. 260582 Electronically Filed
llgarcia@littler.com Superior Court of California
2 LITTLER MENDELSON, P.C. County of San Joaquin
333 Bush Street, 34th Floor 2022-02-25 15:17:03
3 San Francisco, CA 94104 Clerk: Irving Jimenez
Telephone: 415.433.1940
4 Fax No.: 415.399.8490
5 NICHOLAS W. MCKINNEY, Bar No. 322792
nmckinney@littler.com
6 LITTLER MENDELSON, P.C.
500 Capitol Mall
7 Suite 2000
Sacramento, CA 95814
8 Telephone: 916.830.7200
Fax No.: 916.561.0828
9
Attorneys for Defendant
10 UNITED PARCEL SERVICE, INC.
11
SUPERIOR COURT OF THE STATE OF CALIFORNIA
12
COUNTY OF SAN JOAQUIN
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14
SHAUN MEDINA, Case No. STK-CV-UWT-2019-0010377
15
Plaintiff, DEFENDANT UNITED PARCEL
16 SERVICE, INC.’S MANDATORY
v. SETTLEMENT CONFERENCE
17 STATEMENT
UNITED PARCEL SERVICE, INC.
18 AND DOES 1-100, inclusive, Date: March 7, 2022
Time: 1:30 P.M.
19 Defendant. Dept: 10A
20 Complaint Filed: February 13, 2019
Trial Date: April 4, 2022
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LITTLER MEND ELSO N, P.C.
333 Bush Street
34th Floor
San Francisco, CA 94104
415.433.1940 Case No. STK-CV-UWT-2019-0010377
DEF UNITED PARCEL SERVICE, INC.’S MANDATORY SETTLEMENT CONFERENCE STATEMENT
1 Defendants United Parcel Service, Inc. (“UPS”) hereby provide its mandatory settlement
2 conference statement in advance of the March 7, 2022 mandatory settlement conference.
3 I. INTRODUCTION
4 Plaintiff Shaun Medina (“Plaintiff”) worked for UPS as a Loader/Unloader at the UPS
5 distribution hub in Lathrop, California for approximately six months (September 2016 – March 2017).
6 In January 2017, Plaintiff complained to UPS that he injured his shoulder moving irregular boxes
7 without assistance in violation of UPS’s policies. He was seen by a doctor who released Plaintiff to
8 return to full duty with no restrictions. Then, in late February 2017, Plaintiff was placed on work
9 restrictions by the doctor, and UPS accommodated Plaintiff’s work restrictions and provided him a
10 temporary position in the small sort department. After working in the small sort department for
11 approximately seven days, Plaintiff stopped showing up for his scheduled shifts. UPS sent him a
12 notification requesting that he return to work within 72 hours of receipt of the letter. After Plaintiff
13 did not appear for work or contact the company, UPS terminated Plaintiff’s employment. Despite the
14 short term of employment and UPS’s efforts to accommodate his alleged injury, Plaintiff filed a
15 lawsuit against UPS alleging fourteen causes of action for discrimination, harassment, retaliation
16 based on disability, age, race, national original and ancestry, as well as claims under the California
17 OSHA statute, the Labor Code and for breach of contract. Plaintiff has since abandoned his age,
18 negligence and contract claims. UPS is confident that it will prevail on Plaintiff’s claims.
19 II. STATEMENT OF FACTS
20 A. Background on UPS
21 Since its founding as a messenger company in 1907, UPS has become one of the world’s largest
22 package delivery companies and a leading global provider of specialized transportation and logistics
23 services. UPS enables commerce around the globe by managing the flow of goods, funds, and
24 information in more than 200 countries every day, and employs over 400,000 employees worldwide.
25 UPS maintains, enforces and adheres to its Code of Business Conduct, Anti-Harassment Policy
26 and other policies, which establish standards and procedures applicable to Plaintiff and which serve to
27 standardize the Company’s relevant practices and expectations.
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LITTLER MEND ELSO N, P.C.
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1 UPS also maintains a comprehensive Professional Conduct and Anti-Harassment Policy,
2 which strictly prohibits harassment based on any protected characteristic. The policy also provides
3 multiple options for reporting alleged conduct that may be in violation of the policy, including via
4 UPS’ Help Line, by contacting Human Resources, or by contacting an Employee Relations Manager.
5 Plaintiff acknowledged his receipt of this policy electronically.
6 UPS is also committed to workplace safety, as is reflected in its Code of Conduct. All
7 employees are required to comply with safety procedures and must report workplace injuries. UPS
8 invests a significant budget on safety training alone, including training on Safe Work Methods (which
9 cover safe lifting practices, among other things), and Plaintiff received Safe Work Methods training
10 when he was hired.
11 B. Plaintiff’s Application and Employment with UPS
12 Plaintiff applied for employment at UPS’s new Lathrop Distribution Hub (the “Lathrop Hub”)
13 on July 16, 2016. Plaintiff stated in his employment application that he had never been convicted of a
14 felony, but later admitted in this litigation that he was convicted of a felony in 2010. Plaintiff’s failure
15 to disclose this information violates UPS’s Honesty in Employment policy.
16 UPS hired Plaintiff as a Loader/Unloader at the Lathrop Hub and he started work on the
17 twilight shift on September 29, 2016. Plaintiff worked part-time with a typical workweek of
18 approximately 20 hours.
19 C. Plaintiff Allegedly Injures His Shoulder and UPS Engages in the Interactive
Process
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21 On or about January 4, 2017, Plaintiff reported that he had discomfort in his right shoulder
22 while moving irregular packages over 70 pounds. When Plaintiff reported his shoulder discomfort,
23 Plaintiff requested to take time off, which Twilight Hub Manager at the time, Vivian Joshua, granted.
24 Joshua also gave Plaintiff her telephone number and told him to check back with her about how he
25 was doing. She also offered to him medical treatment. Text messages between Plaintiff and Joshua
26 during this time period show that Joshua allowed Plaintiff to take time off, told Plaintiff to notify her
27 if anything changed, and reiterated that Plaintiff should contact her if he wanted to get medical
28 treatment.
LITTLER MEND ELSO N, P.C.
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1 On January 9, 2017, Plaintiff accepted Joshua’s offer of setting up a doctor’s appointment on
2 his behalf. On January 10, 2017, Plaintiff saw a doctor who provided him first aid aimed at managing
3 the pain in Plaintiff’s shoulder. The doctor released Plaintiff to return to full duty with no restrictions.
4 Thereafter, despite having no work restrictions, Plaintiff took time off from January 11, 2017 through
5 February 6, 2017.
6 D. Plaintiff Receives Work Restrictions and UPS Accommodates Plaintiff’s
Restrictions
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8 Plaintiff returned to work on February 7, 2017. On February 23, 2017, Plaintiff texted Joshua
9 asking for another doctor appointment. Joshua approved the appointment. At this doctor visit, Plaintiff
10 was provided work restrictions for the first time. The doctor instructed Plaintiff not to lift greater than
11 20 pounds and no overhead work because of limitations with Plaintiff’s right shoulder. Consistent with
12 Plaintiff’s work restrictions, UPS placed Plaintiff in a position in the Small Sort area that
13 accommodated his work restrictions.
14 E. Plaintiff Abandons His Position at UPS
15 Plaintiff worked in the Small Sort area for about seven days until March 7, 2017, after which
16 he stopped reporting to work despite being scheduled to work. As a result, UPS issued a 72-hour notice
17 on March 13, 2017, informing Plaintiff that he needed to report to work. Plaintiff did not respond, and
18 UPS sent him a discharge letter terminating his employment on March 17, 2017.
19 F. Plaintiff Failed to Timely Exhaust His Administrative Remedies and Initiate his
Action
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21 After Plaintiff’s employment with UPS ended, Plaintiff filed three DFEH complaints against
22 UPS: (1) August 23, 2017 (“First DFEH Complaint”), (2) February 15, 2018 (“Second DFEH
23 Complaint”), and (3) February 11, 2019 amendment to the Second DFEH Complaint (“Third DFEH
24 Complaint”). In his First DFEH Complaint submitted on August 23, 2017, Plaintiff alleged claims that
25 he was discriminated against, harassed and retaliated against based on a disability, was denied a good
26 faith interactive process, and denied a reasonable accommodation. On October 6, 2017, the DFEH
27 issued a Notice of Case Closure and Right to Sue to Plaintiff, and on January 17, 2018, the EEOC
28 issued its Dismissal and Notice of Rights.
LITTLER MEND ELSO N, P.C.
333 Bush Street
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34th Floor
San Francisco, CA 94104
415.433.1940 Case No. STK-CV-UWT-2019-0010377
DEF UNITED PARCEL SERVICE, INC.’S MANDATORY SETTLEMENT CONFERENCE STATEMENT
1 In his Second DFEH Complaint submitted on February 15, 2018, Plaintiff re-asserted his
2 disability claims under the Fair Employment and Housing Act (“FEHA”) and added a claim under the
3 California Family Rights Act (“CFRA”). Plaintiff received an immediate Notice of Case Closure and
4 Right to Sue Notice from the DFEH on the same day (February 15, 2018).
5 In his Third DFEH Complaint filed on February 11, 2019, Plaintiff alleged the same claims
6 alleged in the Second DFEH Complaint and added new FEHA claims based on race, ancestry, age,
7 national origin and color.
8 On February 13, 2019, Plaintiff initiated this instant action.
9 III. LEGAL ARGUMENT
10 A. Plaintiff’s FEHA Claims Are Procedurally Defective
11 A plaintiff must file suit within one year of receipt of a right-to-sue letter from the DFEH. CAL.
12 GOV’T CODE §§ 12965(c), (e). Section 12965 establishes “a strict ‘one year statute of limitations,
13 commencing from the date of the right-to-sue notice by the [DFEH],’ except for certain statutory
14 exceptions.” Acuna v. San Diego Gas & Elec. Co., 217 Cal.App.4th 1402, 1413 (2013). The statutory
15 exceptions do not include a plaintiff filing a new DFEH complaint based on the same facts and
16 declaring that he has unilaterally reset his time to file suit. See CAL. GOV’T CODE §§ 12965(e)-(f).
17 Here, Plaintiff’s FEHA disability-based claims fail as a matter of law because Plaintiff failed
18 to timely initiate this action after the DFEH and the EEOC issued their Dismissal and Right to Sue
19 Notices. In his First DFEH Complaint filed on or around August 23, 2017, Plaintiff alleged that he
20 alleged disability-related claims. On October 6, 2017, the DFEH issued a Notice of Case Closure and
21 Right to Sue to Plaintiff. On January 17, 2018, the EEOC issued its Dismissal and Notice of Rights.
22 Based on these Right to Sue Notices, the latest for Plaintiff to timely file his action was January 17,
23 2019, one year from the January 17, 2018 EEOC Right to Sue Notice. See CAL. GOV’T CODE § 12965.
24 However, Plaintiff did not file this action until February 13, 2019 after the statute of limitations to file
25 a civil suit had already expired. As such, Plaintiff’s FEHA disability claims must be dismissed on the
26 basis that they are untimely.
27 Further, Plaintiff’s FEHA disability claims cannot be revived simply because Plaintiff re-
28 iterated these disability claims in subsequently filed DFEH Complaints. This precise situation was
LITTLER MEND ELSO N, P.C.
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34th Floor
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415.433.1940 Case No. STK-CV-UWT-2019-0010377
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1 addressed by the Court of Appeal in Acuna, supra. Plaintiff asserted his disability claims in his first
2 DFEH Complaint on August 23, 2017 and right-to-sue notices were issued on October 6, 2017 and
3 January 17, 2018. Since this DFEH Complaint was filed after his employment with UPS ended on
4 March 17, 2017, no new discriminatory conduct stemming from his UPS employment could possibly
5 have occurred to make the continuing violation doctrine apply to revive his otherwise stale disability
6 claims. Thus, Plaintiff could not revive his time-barred disability claims by filing new DFEH
7 complaints.
8 Similarly, Plaintiff’s race-based claims fail because itwas asserted for the first time in his
9 Third DFEH Complaint filed on February 11, 2019, nearly two years after his employment ended. As
10 such, Plaintiff’s FEHA claims are untimely and must be dismissed.
11 B. Plaintiff’s Discrimination Claim Fails as Matter of Law (First Cause of Action)
12 To establish a prima facie case of FEHA discrimination, Plaintiff must show that: (1) he is a
13 member of a protected class; (2) he suffered an adverse employment action; (3) at the time of the
14 adverse employment action, he was performing his job satisfactorily; and (4) some other circumstance
15 suggesting a discriminatory motive. Guz v. Bechtel Nat’l, Inc., 24 Cal. 4th 317, 355-56 (2000).
16 Similarly, to establish a prima facie case of discrimination on the basis of a disability, Plaintiff must
17 show that he “(1) suffered from a disability, (2) was otherwise qualified to do his or her job, and
18 (3) was subjected to adverse employment action because of the disability.” Nealy v. City of Santa
19 Monica, 234 Cal. App. 4th 359, 378 (2015). The burden is on the plaintiff to prove each element in
20 establishing a prima facie claim. Green v. State of Calif., 42 Cal. 4th 254, 263 (2007).
21 First, Plaintiff cannot demonstrate a link between the termination of his employment with his
22 race, ancestry, national origin, or color. Plaintiff testified that he believes he was terminated “because
23 of [his] work injury, and [he] was never accommodated.” By Plaintiff’s own statement, he does not
24 believe his termination was based on these protected categories. Thus, there is nothing to support a
25 theory of discrimination regarding Plaintiff’s characteristics as a Hispanic person.
26 Second, even if Plaintiff can establish his prima facie case (which he cannot), Plaintiff’s
27 discrimination claim fails because Defendant had a legitimate non-discriminatory reason for
28 terminating Plaintiff’s employment. His employment was terminated because Plaintiff stopped
LITTLER MEND ELSO N, P.C.
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1 reporting to work. It is undisputed that Plaintiff stopped going to work in March 2017. Plaintiff admits
2 that after receiving his 72-hour notice letter, he did not contact anyone at UPS. As such, UPS’s reason
3 for terminating Plaintiff’s employment was legitimate and non-discriminatory.
4 Third, Plaintiff’s discrimination claim also fails because he cannot show pretext. Once UPS
5 establishes its legitimate non-discriminatory reason, the burden shifts to Plaintiff to prove UPS’s
6 proffered reason for his termination is pretext for unlawful discrimination or retaliation to survive
7 summary judgment. See Guz, 24 Cal. 4th at 353-354. To prove pretext, Plaintiff must demonstrate
8 such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in [UPS’]
9 proffered legitimate reasons for its action that a reasonable fact finder could rationally find them
10 unworthy of credence.” Horn v. Cushman & Wakefield Western, Inc., 72 Cal. App. 4th 798, 807 (1999)
11 (internal quotations omitted). Here, Plaintiff cannot meet his burden. As stated above, Plaintiff chose
12 not to return to work and UPS terminated his employment after he received his 72-hour notice and
13 failed to contact UPS. Accordingly, his discrimination claim fails as a matter of law.
14 C. Plaintiff Offers No Evidence of Actionable Harassment (Second Cause of Action)
15 The elements of a hostile work environment claim are: “(1) the plaintiff belongs to a protected
16 group; (2) the plaintiff was subjected to unwelcome harassment because of being a member of that
17 group; and (3) the harassment was sufficiently severe or pervasive to alter the conditions of
18 employment and create an abusive working environment.” Fisher v. San Pedro Peninsula Hosp., 214
19 Cal. App. 3d 590, 608 (1989). Courts have held that “simple teasing [and] offhand comments do not
20 amount to discriminatory changes in the terms and conditions of employment” and the “mere utterance
21 of” and “epithet that engenders offensive feelings in an employed” do not alter the terms of
22 employment “to a sufficiently significant degree.” Etter v. Veriflo Corp., 67 Cal. App. 4th 457, 463
23 (1998) (citing Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998)). Rather, Plaintiff “must
24 show a concerted pattern of harassment of a repeated, routine or a generalized nature.” Muller v. Auto.
25 Club of So. Cal., 61 Cal. App. 4th 431, 446 (1998), overruled on other grounds in Colmenares v.
26 Braemar Country Club, Inc., 29 Cal.4th 1019, 1031, fn. 6 (2003).
27 Plaintiff admits that none of his co-workers ever brought up his race. Plaintiff points to only a
28 few examples of unwanted conduct, none of which rise to the level of severe or pervasive:
LITTLER MEND ELSO N, P.C.
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1 • At an unknown time during his employment with UPS, other co-workers poured a bottle
2 of water in front of him at his workstation. He testified he believed it was a new guy
3 initiation sort of situation and was not a “mind reader” to know what motivated such
4 activities.
5 • Plaintiff got into a verbal altercation with supervisor in December of 2016 because another
6 supervisor told Plaintiff to go home and this supervisor disagreed. Plaintiff admis that
7 during this altercation, the supervisor did not bring up Plaintiff’s race or disability.
8 • Plaintiff alleged that after Plaintiff reported his shoulder injury, Joshua allegedly told him
9 to go home, drink tea and watch the George Lopez show, a television show he believes she
10 referenced because he is Hispanic.
11 • Plaintiff alleged that during a meeting in which he did not attend, Joshua purportedly
12 mimicked Plaintiff’s injury.
13 Plaintiff has failed to establish each of the above conduct (if true) was the result of his
14 membership in a protected category and/or that they are sufficiently severe or pervasive to constitute
15 as harassment. Additionally, “commonly necessary personnel management actions such as hiring and
16 firing, job or project assignments, office or workstation assignments . . . the provision of support . . .
17 and the like, do not come within the meaning of harassment.” Jumaane v. City of Los Angeles, 241
18 Cal. App. 4th 1390, 1408 (2015) (citing Janken v. GM Hughes Elecs., 46 Cal. App. 4th 55, 64-65
19 (1996). (internal quotations omitted)). To the extent Plaintiff contends that any assignments, the 72-
20 hour notice or the termination constitutes harassment, such conduct cannot form the basis of his claim
21 because they are personnel management actions. Accordingly, Plaintiff’s harassment claim fails.
22 D. Plaintiff Cannot Offer Evidence That UPS Failed To Accommodate Him Or
Engage In The Interactive Process (Fourth and Fifth Causes of Action)
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24 There are three elements to a failure to accommodate action: ‘(1) the plaintiff has a disability
25 covered by the FEHA; (2) the plaintiff is a qualified individual (i.e., he or she can perform the essential
26 functions of the position); and (3) the employer failed to reasonably accommodate the plaintiff’s
27 disability. Hernandez v. Rancho Santiago Cmty. College Dist., 22 Cal.App.5th 1187, 1193-1194
28 (2018). Reasonable accommodations include “[j]ob restructuring, part-time or modified work
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1 schedules, reassignment to a vacant position, . . . and other similar accommodations for individuals
2 with disabilities.” Swanson v. Morongo Unified School Dist., 232 Cal.App.4th 954, 969 (2014).
3 In his Complaint, Plaintiff alleges that he suffered from bipolar, anxiety, stress, depression and
4 a shoulder injury. Plaintiff admits that aside from his shoulder injury, he did not request any
5 accommodation for his other disabilities. As for his shoulder injury, it is undisputed that Plaintiff
6 requested and was allowed to take time off after he reported experiencing shoulder discomfort. It is
7 also undisputed that he was not placed on any work restrictions by his doctor until February 23, 2017.
8 Specifically, on February 23, 2017, Plaintiff was provided with a work restriction requiring him to lift
9 no greater than 20 pounds, no overhead lifting and limited use of his right shoulder. As a result of his
10 work restriction, UPS transferred Plaintiff to the small sorts department. Plaintiff admits that he had
11 the ability to control how full the bag got and that he also does not recall anyone telling him to fill the
12 bag over 20 pounds. As such, UPS met its obligation to accommodate Plaintiff’s disabilities and UPS
13 will prevail on these claims.
14 E. Plaintiff’s CFRA Retaliation Claim Is Frivolous (Seventh Cause of Action)
15 To prevail on a CFRA retaliation, a plaintiff must prove that: (1) the defendant was covered
16 by CFRA; (2) the plaintiff was eligible to take CFRA leave; (3) he exercised his right to take CFRA
17 leave; and (4) he suffered an adverse employment action because he exercised his right to take CFRA
18 leave. Bareno v. San Diego Cmty. Coll. Dist., 7 Cal. App. 5th 546, 560 (2017). To be covered by the
19 CFRA, an employee must, inter alia, have worked for his employer for “more than 12 months.” CAL.
20 GOV’T CODE § 12945.2(a). Plaintiff admits that he did not work for UPS for 12 months, meaning he
21 was not covered by the CFRA. Plaintiff’s CFRA claim is frivolous.
22 F. Plaintiff Offers No Evidence Of FEHA Retaliation (Eighth Cause of Action)
23 To survive summary judgment on his FEHA retaliation claim, Plaintiff must first establish a
24 prima facie case that (1) he engaged in protected activity under the FEHA, (2) UPS subjected him to
25 an adverse employment action, and (3) there is a causal link between the two. Yanowitz v. L’Oreal
26 USA, Inc., 36 Cal.4th 1028, 1042 (2005). Plaintiff contends UPS retaliated against him for requesting
27 an accommodation and not furnishing an adequate accommodation. First, for the same reasons his
28 discrimination claim fails, his FEHA retaliation claim fails. UPS had a legitimate non-retaliatory
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1 reason for Plaintiff’s termination and Plaintiff cannot demonstrate pretext. There is no dispute that
2 Plaintiff stopped reporting to work and did not respond to UPS’s 72-hour notice. As such, Plaintiff’s
3 eighth cause of action fails as a matter of law.
4 G. Plaintiff’s Wrongful Discharge, Labor Code Retaliation, and Cal-OSHA
Retaliation Claims Fail (Third, Thirteenth and Fourteenth Causes of Action)
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6 Plaintiff’s claims for retaliation under Labor Code sections 1102.5 and 6310 and wrongful
7 termination fail for similar reasons as above. To state a prima facie case, a plaintiff must show that:
8 (1) he engaged in a protected activity under the statute, (2) he was subjected to an adverse employment
9 action, and (3) there is a causal link between the two. Taylor v. Lockheed Martin Corp., 78 Cal. App.
10 4th 472, 485 (2000); Mokler v. Cty. of Orange, 157 Cal. App. 4th 121, 138 (2007). Retaliation claims
11 under the Labor Code sections apply the same analysis as a FEHA retaliation claim. Id.; Patten v.
12 Grant Joint Union High Sch. Dist., 134 Cal. App. 4th 1378, 1384 (2005).
13 As discussed in detail above, UPS had a legitimate, non-retaliatory reason for Plaintiff’s
14 termination and Plaintiff cannot demonstrate pretext. UPS terminated Plaintiff’s employment as a
15 result of job abandonment and Plaintiff cannot show pretext. Therefore, these claims will fail.
16 H. Plaintiff Offers No Evidence To Meet The Standard For A Claim Of Intentional
Infliction Of Emotional Distress (“IIED”) (Twelfth Cause of Action)
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18 To recover for intentional infliction of emotional distress (“IIED”), a plaintiff must prove
19 “(1) outrageous conduct by the defendant, (2) intention to cause or reckless disregard of the probability
20 of causing emotional distress, (3) severe emotional suffering and (4) actual and proximate causation
21 of the emotional distress.” Kiseskey v. Carpenters’ Trust for So. Cal., 144 Cal. App. 3d 222, 229
22 (1983). To be actionable, an employer’s actions must be shown to be “so extreme and outrageous as
23 to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable
24 in a civilized community.” Alcorn v. Anbro Eng’r, Inc., 2 Cal. 3d 493, 499, n.5 (1970) (internal quotes
25 omitted). Liability “does not extend to mere insults, indignities, threats, annoyances, petty oppressions,
26 or other trivialities . . . there is no occasion for the law to intervene . . . where someone’s feelings are
27 hurt.” Cole v. Fair Oaks Fire Protection Dist., 43 Cal.3d 148, 155 n.7 (1987).
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1 Plaintiff’s IIED claim fails because there is no evidence that UPS engaged in outrageous and/or
2 extreme conduct. Indeed, Plaintiff simply alleges that he was subject to minor instances of teasing as
3 well as his discharge. Even if true, such conduct hardly be characterized as “go[ing] beyond all
4 possible bounds of decency” as is required to recover for IIED.
5 IV. CONCLUSION
6 As explained above, Plaintiff’s claims are meritless. UPS offered him an accommodation that
7 complied with his work restrictions. Moreover, he cannot set forth any discriminatory animus. Plaintiff
8 abandoned his job and failed to contact UPS after receiving his 72-hour notice.
9 V. SETTLEMENT POSTURE AND CONSIDERATIONS
10 The parties have not engaged in formal settlement discussions since the failed mediation last
11 year (August 2020). UPS’s position has not changed: UPS is willing to explore settlement, but any
12 settlement demand must take into account Plaintiff’s minimal wage loss and related damages, and the
13 overall glaring weaknesses in his case.
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15 Dated: February 25, 2022 LITTLER MENDELSON, P.C.
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17 Lisa Lin Garcia
Nicholas W. McKinney
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Attorneys for Defendant
19 UNITED PARCEL SERVICE, INC.
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4878-3873-2817.1 / 101661-1006
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1 I am a resident of the State of California, over the age of eighteen years, and not a party
2 to the within action. My business address is 500 Capitol Mall, Suite 2000, Sacramento, California
3 95814. On February 25, 2022, I served the within document(s):
4 DEFENDANT UNITED PARCEL SERVICE, INC.’S MANDATORY SETTLEMENT
CONFERENCE STATEMENT
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Email Service: Based on a court order or an agreement of the parties to accept
7 service by e-mail or electronic transmission, I caused the documents to be sent to
8 the persons at the e-mail addresses on the attached service list on the dates and at the
times stated thereon. I did not receive, within a reasonable time after the
9 transmission, any electronic message or other indication that the transmission was
unsuccessful. The electronic notification address of the person making the service is
10 mney@littler.com.
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Nazo Koulloukian Attorneys for Plaintiff
12 nazo@koullaw.com SHAUN MEDINA
Christine Harmandayan
13 christine@koullaw.com
14 Jackie Hernandez
jackeline@koullaw.com
15 Koul Law Firm
3435 Wilshire Blvd., Ste. 1710
16 Los Angeles, CA 90010
(213) 761-5484
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I declare under penalty of perjury under the laws of the State of California that the
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above is true and correct. Executed on February 25, 2022, at Sacramento, California.
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21 MARCIA NEY
4860-4512-0781.2 / 101661-1006
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LITTLER MEND ELSO N, P.C.
500 Capitol Mall
Suite 2000
2.
Sacram ento, CA 95814
916.830.7200
PROOF OF SERVICE
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1 LISA LIN GARCIA, Bar No. 260582 Electronically Filed llgarcia@littler.com Superior Court of California 2 LITTLER MENDELSON, P.C. County of San Joaquin 333 Bush Street, 34th Floor 2022-02-25 15:17:03 3 San Francisco, CA 94104 Clerk: Irving Jimenez Telephone: 415.433.1940 4 Fax No.: 415.399.8490 5 NICHOLAS W. MCKINNEY, Bar No. 322792 nmckinney@littler.com 6 LITTLER MENDELSON, P.C. 500 Capitol Mall 7 Suite 2000 Sacramento, CA 95814 8 Telephone: 916.830.7200 Fax No.: 916.561.0828 9 Attorneys for Defendant 10 UNITED PARCEL SERVICE, INC. 11 SUPERIOR COURT OF THE STATE OF CALIFORNIA 12 COUNTY OF SAN JOAQUIN 13 14 SHAUN MEDINA, Case No. STK-CV-UWT-2019-0010377 15 Plaintiff, DEFENDANT UNITED PARCEL 16 SERVICE, INC.’S MANDATORY v. SETTLEMENT CONFERENCE 17 STATEMENT UNITED PARCEL SERVICE, INC. 18 AND DOES 1-100, inclusive, Date: March 7, 2022 Time: 1:30 P.M. 19 Defendant. Dept: 10A 20 Complaint Filed: February 13, 2019 Trial Date: April 4, 2022 21 22 23 24 25 26 27 28 LITTLER MEND ELSO N, P.C. 333 Bush Street 34th Floor San Francisco, CA 94104 415.433.1940 Case No. STK-CV-UWT-2019-0010377 DEF UNITED PARCEL SERVICE, INC.’S MANDATORY SETTLEMENT CONFERENCE STATEMENT 1 Defendants United Parcel Service, Inc. (“UPS”) hereby provide its mandatory settlement 2 conference statement in advance of the March 7, 2022 mandatory settlement conference. 3 I. INTRODUCTION 4 Plaintiff Shaun Medina (“Plaintiff”) worked for UPS as a Loader/Unloader at the UPS 5 distribution hub in Lathrop, California for approximately six months (September 2016 – March 2017). 6 In January 2017, Plaintiff complained to UPS that he injured his shoulder moving irregular boxes 7 without assistance in violation of UPS’s policies. He was seen by a doctor who released Plaintiff to 8 return to full duty with no restrictions. Then, in late February 2017, Plaintiff was placed on work 9 restrictions by the doctor, and UPS accommodated Plaintiff’s work restrictions and provided him a 10 temporary position in the small sort department. After working in the small sort department for 11 approximately seven days, Plaintiff stopped showing up for his scheduled shifts. UPS sent him a 12 notification requesting that he return to work within 72 hours of receipt of the letter. After Plaintiff 13 did not appear for work or contact the company, UPS terminated Plaintiff’s employment. Despite the 14 short term of employment and UPS’s efforts to accommodate his alleged injury, Plaintiff filed a 15 lawsuit against UPS alleging fourteen causes of action for discrimination, harassment, retaliation 16 based on disability, age, race, national original and ancestry, as well as claims under the California 17 OSHA statute, the Labor Code and for breach of contract. Plaintiff has since abandoned his age, 18 negligence and contract claims. UPS is confident that it will prevail on Plaintiff’s claims. 19 II. STATEMENT OF FACTS 20 A. Background on UPS 21 Since its founding as a messenger company in 1907, UPS has become one of the world’s largest 22 package delivery companies and a leading global provider of specialized transportation and logistics 23 services. UPS enables commerce around the globe by managing the flow of goods, funds, and 24 information in more than 200 countries every day, and employs over 400,000 employees worldwide. 25 UPS maintains, enforces and adheres to its Code of Business Conduct, Anti-Harassment Policy 26 and other policies, which establish standards and procedures applicable to Plaintiff and which serve to 27 standardize the Company’s relevant practices and expectations. 28 LITTLER MEND ELSO N, P.C. 333 Bush Street 2 34th Floor San Francisco, CA 94104 415.433.1940 Case No. STK-CV-UWT-2019-0010377 DEF UNITED PARCEL SERVICE, INC.’S MANDATORY SETTLEMENT CONFERENCE STATEMENT 1 UPS also maintains a comprehensive Professional Conduct and Anti-Harassment Policy, 2 which strictly prohibits harassment based on any protected characteristic. The policy also provides 3 multiple options for reporting alleged conduct that may be in violation of the policy, including via 4 UPS’ Help Line, by contacting Human Resources, or by contacting an Employee Relations Manager. 5 Plaintiff acknowledged his receipt of this policy electronically. 6 UPS is also committed to workplace safety, as is reflected in its Code of Conduct. All 7 employees are required to comply with safety procedures and must report workplace injuries. UPS 8 invests a significant budget on safety training alone, including training on Safe Work Methods (which 9 cover safe lifting practices, among other things), and Plaintiff received Safe Work Methods training 10 when he was hired. 11 B. Plaintiff’s Application and Employment with UPS 12 Plaintiff applied for employment at UPS’s new Lathrop Distribution Hub (the “Lathrop Hub”) 13 on July 16, 2016. Plaintiff stated in his employment application that he had never been convicted of a 14 felony, but later admitted in this litigation that he was convicted of a felony in 2010. Plaintiff’s failure 15 to disclose this information violates UPS’s Honesty in Employment policy. 16 UPS hired Plaintiff as a Loader/Unloader at the Lathrop Hub and he started work on the 17 twilight shift on September 29, 2016. Plaintiff worked part-time with a typical workweek of 18 approximately 20 hours. 19 C. Plaintiff Allegedly Injures His Shoulder and UPS Engages in the Interactive Process 20 21 On or about January 4, 2017, Plaintiff reported that he had discomfort in his right shoulder 22 while moving irregular packages over 70 pounds. When Plaintiff reported his shoulder discomfort, 23 Plaintiff requested to take time off, which Twilight Hub Manager at the time, Vivian Joshua, granted. 24 Joshua also gave Plaintiff her telephone number and told him to check back with her about how he 25 was doing. She also offered to him medical treatment. Text messages between Plaintiff and Joshua 26 during this time period show that Joshua allowed Plaintiff to take time off, told Plaintiff to notify her 27 if anything changed, and reiterated that Plaintiff should contact her if he wanted to get medical 28 treatment. LITTLER MEND ELSO N, P.C. 333 Bush Street 3 34th Floor San Francisco, CA 94104 415.433.1940 Case No. STK-CV-UWT-2019-0010377 DEF UNITED PARCEL SERVICE, INC.’S MANDATORY SETTLEMENT CONFERENCE STATEMENT 1 On January 9, 2017, Plaintiff accepted Joshua’s offer of setting up a doctor’s appointment on 2 his behalf. On January 10, 2017, Plaintiff saw a doctor who provided him first aid aimed at managing 3 the pain in Plaintiff’s shoulder. The doctor released Plaintiff to return to full duty with no restrictions. 4 Thereafter, despite having no work restrictions, Plaintiff took time off from January 11, 2017 through 5 February 6, 2017. 6 D. Plaintiff Receives Work Restrictions and UPS Accommodates Plaintiff’s Restrictions 7 8 Plaintiff returned to work on February 7, 2017. On February 23, 2017, Plaintiff texted Joshua 9 asking for another doctor appointment. Joshua approved the appointment. At this doctor visit, Plaintiff 10 was provided work restrictions for the first time. The doctor instructed Plaintiff not to lift greater than 11 20 pounds and no overhead work because of limitations with Plaintiff’s right shoulder. Consistent with 12 Plaintiff’s work restrictions, UPS placed Plaintiff in a position in the Small Sort area that 13 accommodated his work restrictions. 14 E. Plaintiff Abandons His Position at UPS 15 Plaintiff worked in the Small Sort area for about seven days until March 7, 2017, after which 16 he stopped reporting to work despite being scheduled to work. As a result, UPS issued a 72-hour notice 17 on March 13, 2017, informing Plaintiff that he needed to report to work. Plaintiff did not respond, and 18 UPS sent him a discharge letter terminating his employment on March 17, 2017. 19 F. Plaintiff Failed to Timely Exhaust His Administrative Remedies and Initiate his Action 20 21 After Plaintiff’s employment with UPS ended, Plaintiff filed three DFEH complaints against 22 UPS: (1) August 23, 2017 (“First DFEH Complaint”), (2) February 15, 2018 (“Second DFEH 23 Complaint”), and (3) February 11, 2019 amendment to the Second DFEH Complaint (“Third DFEH 24 Complaint”). In his First DFEH Complaint submitted on August 23, 2017, Plaintiff alleged claims that 25 he was discriminated against, harassed and retaliated against based on a disability, was denied a good 26 faith interactive process, and denied a reasonable accommodation. On October 6, 2017, the DFEH 27 issued a Notice of Case Closure and Right to Sue to Plaintiff, and on January 17, 2018, the EEOC 28 issued its Dismissal and Notice of Rights. LITTLER MEND ELSO N, P.C. 333 Bush Street 4 34th Floor San Francisco, CA 94104 415.433.1940 Case No. STK-CV-UWT-2019-0010377 DEF UNITED PARCEL SERVICE, INC.’S MANDATORY SETTLEMENT CONFERENCE STATEMENT 1 In his Second DFEH Complaint submitted on February 15, 2018, Plaintiff re-asserted his 2 disability claims under the Fair Employment and Housing Act (“FEHA”) and added a claim under the 3 California Family Rights Act (“CFRA”). Plaintiff received an immediate Notice of Case Closure and 4 Right to Sue Notice from the DFEH on the same day (February 15, 2018). 5 In his Third DFEH Complaint filed on February 11, 2019, Plaintiff alleged the same claims 6 alleged in the Second DFEH Complaint and added new FEHA claims based on race, ancestry, age, 7 national origin and color. 8 On February 13, 2019, Plaintiff initiated this instant action. 9 III. LEGAL ARGUMENT 10 A. Plaintiff’s FEHA Claims Are Procedurally Defective 11 A plaintiff must file suit within one year of receipt of a right-to-sue letter from the DFEH. CAL. 12 GOV’T CODE §§ 12965(c), (e). Section 12965 establishes “a strict ‘one year statute of limitations, 13 commencing from the date of the right-to-sue notice by the [DFEH],’ except for certain statutory 14 exceptions.” Acuna v. San Diego Gas & Elec. Co., 217 Cal.App.4th 1402, 1413 (2013). The statutory 15 exceptions do not include a plaintiff filing a new DFEH complaint based on the same facts and 16 declaring that he has unilaterally reset his time to file suit. See CAL. GOV’T CODE §§ 12965(e)-(f). 17 Here, Plaintiff’s FEHA disability-based claims fail as a matter of law because Plaintiff failed 18 to timely initiate this action after the DFEH and the EEOC issued their Dismissal and Right to Sue 19 Notices. In his First DFEH Complaint filed on or around August 23, 2017, Plaintiff alleged that he 20 alleged disability-related claims. On October 6, 2017, the DFEH issued a Notice of Case Closure and 21 Right to Sue to Plaintiff. On January 17, 2018, the EEOC issued its Dismissal and Notice of Rights. 22 Based on these Right to Sue Notices, the latest for Plaintiff to timely file his action was January 17, 23 2019, one year from the January 17, 2018 EEOC Right to Sue Notice. See CAL. GOV’T CODE § 12965. 24 However, Plaintiff did not file this action until February 13, 2019 after the statute of limitations to file 25 a civil suit had already expired. As such, Plaintiff’s FEHA disability claims must be dismissed on the 26 basis that they are untimely. 27 Further, Plaintiff’s FEHA disability claims cannot be revived simply because Plaintiff re- 28 iterated these disability claims in subsequently filed DFEH Complaints. This precise situation was LITTLER MEND ELSO N, P.C. 333 Bush Street 5 34th Floor San Francisco, CA 94104 415.433.1940 Case No. STK-CV-UWT-2019-0010377 DEF UNITED PARCEL SERVICE, INC.’S MANDATORY SETTLEMENT CONFERENCE STATEMENT 1 addressed by the Court of Appeal in Acuna, supra. Plaintiff asserted his disability claims in his first 2 DFEH Complaint on August 23, 2017 and right-to-sue notices were issued on October 6, 2017 and 3 January 17, 2018. Since this DFEH Complaint was filed after his employment with UPS ended on 4 March 17, 2017, no new discriminatory conduct stemming from his UPS employment could possibly 5 have occurred to make the continuing violation doctrine apply to revive his otherwise stale disability 6 claims. Thus, Plaintiff could not revive his time-barred disability claims by filing new DFEH 7 complaints. 8 Similarly, Plaintiff’s race-based claims fail because itwas asserted for the first time in his 9 Third DFEH Complaint filed on February 11, 2019, nearly two years after his employment ended. As 10 such, Plaintiff’s FEHA claims are untimely and must be dismissed. 11 B. Plaintiff’s Discrimination Claim Fails as Matter of Law (First Cause of Action) 12 To establish a prima facie case of FEHA discrimination, Plaintiff must show that: (1) he is a 13 member of a protected class; (2) he suffered an adverse employment action; (3) at the time of the 14 adverse employment action, he was performing his job satisfactorily; and (4) some other circumstance 15 suggesting a discriminatory motive. Guz v. Bechtel Nat’l, Inc., 24 Cal. 4th 317, 355-56 (2000). 16 Similarly, to establish a prima facie case of discrimination on the basis of a disability, Plaintiff must 17 show that he “(1) suffered from a disability, (2) was otherwise qualified to do his or her job, and 18 (3) was subjected to adverse employment action because of the disability.” Nealy v. City of Santa 19 Monica, 234 Cal. App. 4th 359, 378 (2015). The burden is on the plaintiff to prove each element in 20 establishing a prima facie claim. Green v. State of Calif., 42 Cal. 4th 254, 263 (2007). 21 First, Plaintiff cannot demonstrate a link between the termination of his employment with his 22 race, ancestry, national origin, or color. Plaintiff testified that he believes he was terminated “because 23 of [his] work injury, and [he] was never accommodated.” By Plaintiff’s own statement, he does not 24 believe his termination was based on these protected categories. Thus, there is nothing to support a 25 theory of discrimination regarding Plaintiff’s characteristics as a Hispanic person. 26 Second, even if Plaintiff can establish his prima facie case (which he cannot), Plaintiff’s 27 discrimination claim fails because Defendant had a legitimate non-discriminatory reason for 28 terminating Plaintiff’s employment. His employment was terminated because Plaintiff stopped LITTLER MEND ELSO N, P.C. 333 Bush Street 6 34th Floor San Francisco, CA 94104 415.433.1940 Case No. STK-CV-UWT-2019-0010377 DEF UNITED PARCEL SERVICE, INC.’S MANDATORY SETTLEMENT CONFERENCE STATEMENT 1 reporting to work. It is undisputed that Plaintiff stopped going to work in March 2017. Plaintiff admits 2 that after receiving his 72-hour notice letter, he did not contact anyone at UPS. As such, UPS’s reason 3 for terminating Plaintiff’s employment was legitimate and non-discriminatory. 4 Third, Plaintiff’s discrimination claim also fails because he cannot show pretext. Once UPS 5 establishes its legitimate non-discriminatory reason, the burden shifts to Plaintiff to prove UPS’s 6 proffered reason for his termination is pretext for unlawful discrimination or retaliation to survive 7 summary judgment. See Guz, 24 Cal. 4th at 353-354. To prove pretext, Plaintiff must demonstrate 8 such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in [UPS’] 9 proffered legitimate reasons for its action that a reasonable fact finder could rationally find them 10 unworthy of credence.” Horn v. Cushman & Wakefield Western, Inc., 72 Cal. App. 4th 798, 807 (1999) 11 (internal quotations omitted). Here, Plaintiff cannot meet his burden. As stated above, Plaintiff chose 12 not to return to work and UPS terminated his employment after he received his 72-hour notice and 13 failed to contact UPS. Accordingly, his discrimination claim fails as a matter of law. 14 C. Plaintiff Offers No Evidence of Actionable Harassment (Second Cause of Action) 15 The elements of a hostile work environment claim are: “(1) the plaintiff belongs to a protected 16 group; (2) the plaintiff was subjected to unwelcome harassment because of being a member of that 17 group; and (3) the harassment was sufficiently severe or pervasive to alter the conditions of 18 employment and create an abusive working environment.” Fisher v. San Pedro Peninsula Hosp., 214 19 Cal. App. 3d 590, 608 (1989). Courts have held that “simple teasing [and] offhand comments do not 20 amount to discriminatory changes in the terms and conditions of employment” and the “mere utterance 21 of” and “epithet that engenders offensive feelings in an employed” do not alter the terms of 22 employment “to a sufficiently significant degree.” Etter v. Veriflo Corp., 67 Cal. App. 4th 457, 463 23 (1998) (citing Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998)). Rather, Plaintiff “must 24 show a concerted pattern of harassment of a repeated, routine or a generalized nature.” Muller v. Auto. 25 Club of So. Cal., 61 Cal. App. 4th 431, 446 (1998), overruled on other grounds in Colmenares v. 26 Braemar Country Club, Inc., 29 Cal.4th 1019, 1031, fn. 6 (2003). 27 Plaintiff admits that none of his co-workers ever brought up his race. Plaintiff points to only a 28 few examples of unwanted conduct, none of which rise to the level of severe or pervasive: LITTLER MEND ELSO N, P.C. 333 Bush Street 7 34th Floor San Francisco, CA 94104 415.433.1940 Case No. STK-CV-UWT-2019-0010377 DEF UNITED PARCEL SERVICE, INC.’S MANDATORY SETTLEMENT CONFERENCE STATEMENT 1 • At an unknown time during his employment with UPS, other co-workers poured a bottle 2 of water in front of him at his workstation. He testified he believed it was a new guy 3 initiation sort of situation and was not a “mind reader” to know what motivated such 4 activities. 5 • Plaintiff got into a verbal altercation with supervisor in December of 2016 because another 6 supervisor told Plaintiff to go home and this supervisor disagreed. Plaintiff admis that 7 during this altercation, the supervisor did not bring up Plaintiff’s race or disability. 8 • Plaintiff alleged that after Plaintiff reported his shoulder injury, Joshua allegedly told him 9 to go home, drink tea and watch the George Lopez show, a television show he believes she 10 referenced because he is Hispanic. 11 • Plaintiff alleged that during a meeting in which he did not attend, Joshua purportedly 12 mimicked Plaintiff’s injury. 13 Plaintiff has failed to establish each of the above conduct (if true) was the result of his 14 membership in a protected category and/or that they are sufficiently severe or pervasive to constitute 15 as harassment. Additionally, “commonly necessary personnel management actions such as hiring and 16 firing, job or project assignments, office or workstation assignments . . . the provision of support . . . 17 and the like, do not come within the meaning of harassment.” Jumaane v. City of Los Angeles, 241 18 Cal. App. 4th 1390, 1408 (2015) (citing Janken v. GM Hughes Elecs., 46 Cal. App. 4th 55, 64-65 19 (1996). (internal quotations omitted)). To the extent Plaintiff contends that any assignments, the 72- 20 hour notice or the termination constitutes harassment, such conduct cannot form the basis of his claim 21 because they are personnel management actions. Accordingly, Plaintiff’s harassment claim fails. 22 D. Plaintiff Cannot Offer Evidence That UPS Failed To Accommodate Him Or Engage In The Interactive Process (Fourth and Fifth Causes of Action) 23 24 There are three elements to a failure to accommodate action: ‘(1) the plaintiff has a disability 25 covered by the FEHA; (2) the plaintiff is a qualified individual (i.e., he or she can perform the essential 26 functions of the position); and (3) the employer failed to reasonably accommodate the plaintiff’s 27 disability. Hernandez v. Rancho Santiago Cmty. College Dist., 22 Cal.App.5th 1187, 1193-1194 28 (2018). Reasonable accommodations include “[j]ob restructuring, part-time or modified work LITTLER MEND ELSO N, P.C. 333 Bush Street 8 34th Floor San Francisco, CA 94104 415.433.1940 Case No. STK-CV-UWT-2019-0010377 DEF UNITED PARCEL SERVICE, INC.’S MANDATORY SETTLEMENT CONFERENCE STATEMENT 1 schedules, reassignment to a vacant position, . . . and other similar accommodations for individuals 2 with disabilities.” Swanson v. Morongo Unified School Dist., 232 Cal.App.4th 954, 969 (2014). 3 In his Complaint, Plaintiff alleges that he suffered from bipolar, anxiety, stress, depression and 4 a shoulder injury. Plaintiff admits that aside from his shoulder injury, he did not request any 5 accommodation for his other disabilities. As for his shoulder injury, it is undisputed that Plaintiff 6 requested and was allowed to take time off after he reported experiencing shoulder discomfort. It is 7 also undisputed that he was not placed on any work restrictions by his doctor until February 23, 2017. 8 Specifically, on February 23, 2017, Plaintiff was provided with a work restriction requiring him to lift 9 no greater than 20 pounds, no overhead lifting and limited use of his right shoulder. As a result of his 10 work restriction, UPS transferred Plaintiff to the small sorts department. Plaintiff admits that he had 11 the ability to control how full the bag got and that he also does not recall anyone telling him to fill the 12 bag over 20 pounds. As such, UPS met its obligation to accommodate Plaintiff’s disabilities and UPS 13 will prevail on these claims. 14 E. Plaintiff’s CFRA Retaliation Claim Is Frivolous (Seventh Cause of Action) 15 To prevail on a CFRA retaliation, a plaintiff must prove that: (1) the defendant was covered 16 by CFRA; (2) the plaintiff was eligible to take CFRA leave; (3) he exercised his right to take CFRA 17 leave; and (4) he suffered an adverse employment action because he exercised his right to take CFRA 18 leave. Bareno v. San Diego Cmty. Coll. Dist., 7 Cal. App. 5th 546, 560 (2017). To be covered by the 19 CFRA, an employee must, inter alia, have worked for his employer for “more than 12 months.” CAL. 20 GOV’T CODE § 12945.2(a). Plaintiff admits that he did not work for UPS for 12 months, meaning he 21 was not covered by the CFRA. Plaintiff’s CFRA claim is frivolous. 22 F. Plaintiff Offers No Evidence Of FEHA Retaliation (Eighth Cause of Action) 23 To survive summary judgment on his FEHA retaliation claim, Plaintiff must first establish a 24 prima facie case that (1) he engaged in protected activity under the FEHA, (2) UPS subjected him to 25 an adverse employment action, and (3) there is a causal link between the two. Yanowitz v. L’Oreal 26 USA, Inc., 36 Cal.4th 1028, 1042 (2005). Plaintiff contends UPS retaliated against him for requesting 27 an accommodation and not furnishing an adequate accommodation. First, for the same reasons his 28 discrimination claim fails, his FEHA retaliation claim fails. UPS had a legitimate non-retaliatory LITTLER MEND ELSO N, P.C. 333 Bush Street 9 34th Floor San Francisco, CA 94104 415.433.1940 Case No. STK-CV-UWT-2019-0010377 DEF UNITED PARCEL SERVICE, INC.’S MANDATORY SETTLEMENT CONFERENCE STATEMENT 1 reason for Plaintiff’s termination and Plaintiff cannot demonstrate pretext. There is no dispute that 2 Plaintiff stopped reporting to work and did not respond to UPS’s 72-hour notice. As such, Plaintiff’s 3 eighth cause of action fails as a matter of law. 4 G. Plaintiff’s Wrongful Discharge, Labor Code Retaliation, and Cal-OSHA Retaliation Claims Fail (Third, Thirteenth and Fourteenth Causes of Action) 5 6 Plaintiff’s claims for retaliation under Labor Code sections 1102.5 and 6310 and wrongful 7 termination fail for similar reasons as above. To state a prima facie case, a plaintiff must show that: 8 (1) he engaged in a protected activity under the statute, (2) he was subjected to an adverse employment 9 action, and (3) there is a causal link between the two. Taylor v. Lockheed Martin Corp., 78 Cal. App. 10 4th 472, 485 (2000); Mokler v. Cty. of Orange, 157 Cal. App. 4th 121, 138 (2007). Retaliation claims 11 under the Labor Code sections apply the same analysis as a FEHA retaliation claim. Id.; Patten v. 12 Grant Joint Union High Sch. Dist., 134 Cal. App. 4th 1378, 1384 (2005). 13 As discussed in detail above, UPS had a legitimate, non-retaliatory reason for Plaintiff’s 14 termination and Plaintiff cannot demonstrate pretext. UPS terminated Plaintiff’s employment as a 15 result of job abandonment and Plaintiff cannot show pretext. Therefore, these claims will fail. 16 H. Plaintiff Offers No Evidence To Meet The Standard For A Claim Of Intentional Infliction Of Emotional Distress (“IIED”) (Twelfth Cause of Action) 17 18 To recover for intentional infliction of emotional distress (“IIED”), a plaintiff must prove 19 “(1) outrageous conduct by the defendant, (2) intention to cause or reckless disregard of the probability 20 of causing emotional distress, (3) severe emotional suffering and (4) actual and proximate causation 21 of the emotional distress.” Kiseskey v. Carpenters’ Trust for So. Cal., 144 Cal. App. 3d 222, 229 22 (1983). To be actionable, an employer’s actions must be shown to be “so extreme and outrageous as 23 to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable 24 in a civilized community.” Alcorn v. Anbro Eng’r, Inc., 2 Cal. 3d 493, 499, n.5 (1970) (internal quotes 25 omitted). Liability “does not extend to mere insults, indignities, threats, annoyances, petty oppressions, 26 or other trivialities . . . there is no occasion for the law to intervene . . . where someone’s feelings are 27 hurt.” Cole v. Fair Oaks Fire Protection Dist., 43 Cal.3d 148, 155 n.7 (1987). 28 LITTLER MEND ELSO N, P.C. 333 Bush Street 10 34th Floor San Francisco, CA 94104 415.433.1940 Case No. STK-CV-UWT-2019-0010377 DEF UNITED PARCEL SERVICE, INC.’S MANDATORY SETTLEMENT CONFERENCE STATEMENT 1 Plaintiff’s IIED claim fails because there is no evidence that UPS engaged in outrageous and/or 2 extreme conduct. Indeed, Plaintiff simply alleges that he was subject to minor instances of teasing as 3 well as his discharge. Even if true, such conduct hardly be characterized as “go[ing] beyond all 4 possible bounds of decency” as is required to recover for IIED. 5 IV. CONCLUSION 6 As explained above, Plaintiff’s claims are meritless. UPS offered him an accommodation that 7 complied with his work restrictions. Moreover, he cannot set forth any discriminatory animus. Plaintiff 8 abandoned his job and failed to contact UPS after receiving his 72-hour notice. 9 V. SETTLEMENT POSTURE AND CONSIDERATIONS 10 The parties have not engaged in formal settlement discussions since the failed mediation last 11 year (August 2020). UPS’s position has not changed: UPS is willing to explore settlement, but any 12 settlement demand must take into account Plaintiff’s minimal wage loss and related damages, and the 13 overall glaring weaknesses in his case. 14 15 Dated: February 25, 2022 LITTLER MENDELSON, P.C. 16 17 Lisa Lin Garcia Nicholas W. McKinney 18 Attorneys for Defendant 19 UNITED PARCEL SERVICE, INC. 20 4878-3873-2817.1 / 101661-1006 21 22 23 24 25 26 27 28 LITTLER MEND ELSO N, P.C. 333 Bush Street 11 34th Floor San Francisco, CA 94104 415.433.1940 Case No. STK-CV-UWT-2019-0010377 DEF UNITED PARCEL SERVICE, INC.’S MANDATORY SETTLEMENT CONFERENCE STATEMENT 1 I am a resident of the State of California, over the age of eighteen years, and not a party 2 to the within action. My business address is 500 Capitol Mall, Suite 2000, Sacramento, California 3 95814. On February 25, 2022, I served the within document(s): 4 DEFENDANT UNITED PARCEL SERVICE, INC.’S MANDATORY SETTLEMENT CONFERENCE STATEMENT 5 6 Email Service: Based on a court order or an agreement of the parties to accept 7 service by e-mail or electronic transmission, I caused the documents to be sent to 8 the persons at the e-mail addresses on the attached service list on the dates and at the times stated thereon. I did not receive, within a reasonable time after the 9 transmission, any electronic message or other indication that the transmission was unsuccessful. The electronic notification address of the person making the service is 10 mney@littler.com. 11 Nazo Koulloukian Attorneys for Plaintiff 12 nazo@koullaw.com SHAUN MEDINA Christine Harmandayan 13 christine@koullaw.com 14 Jackie Hernandez jackeline@koullaw.com 15 Koul Law Firm 3435 Wilshire Blvd., Ste. 1710 16 Los Angeles, CA 90010 (213) 761-5484 17 I declare under penalty of perjury under the laws of the State of California that the 18 above is true and correct. Executed on February 25, 2022, at Sacramento, California. 19 20 21 MARCIA NEY 4860-4512-0781.2 / 101661-1006 22 23 24 25 26 27 28 LITTLER MEND ELSO N, P.C. 500 Capitol Mall Suite 2000 2. Sacram ento, CA 95814 916.830.7200 PROOF OF SERVICE