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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 16:47:01
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 CALIFORNIA
12
COUNTY OF SAN JOAQUIN
13
SHAUN MEDINA, Case No. STK-CV-UWT-2019-0010377
14
Plaintiff, Hon. George J. Abdallah, Dept. 10A
15
v. DEFENDANT’S OBJECTIONS TO
16 EVIDENCE SUBMITTED BY PLAINTIFF
UNITED PARCEL SERVICE, INC. IN OPPOSITION TO DEFENDANT’S
17 AND DOES 1-100, inclusive, MOTION FOR SUMMARY JUDGMENT
OR ALTERNATIVELY, SUMMARY
18 Defendant. ADJUDICATION
19 DATE: March 3, 2022
TIME: 9:00 AM
20 DEPT: 10A
21
22
23
24
25
26
27
28
LITTLER MEND ELSO N, P.C.
500 Capitol Mall
Suite 2000
Sacram ento, CA 95814 DEFENDANT’S OBJECTIONS TO EVIDENCE SUBMITTED BY PLAINTIFF IN OPPOSITION TO
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT OR ALTERNATIVELY, SUMMARY ADJUDICATION
916.830.7200
1 Defendant UNITED PARCEL SERVICE, INC. (“Defendant”) respectfully submits these
2 objections to Plaintiff SHAUN MEDINA’S (“Plaintiff”) evidence in support of his Objection to
3 Defendant’s Motion for Summary Judgment or Alternatively, Summary Adjudication.
4 Objections to Plaintiff’s Evidence
5 Material Objected to: Grounds for Objection:
6 DEPOSITION OF SHAUN MEDINA
7 1. Declaration of Nazo Koulloukian, Exhibit A Inadmissible hearsay (Evid. C.
(Plaintiff’s Deposition [“Pltf’s Depo”], 90:23- § 1200); Argumentative and
8 91:18): conclusory, and speculative (Code Civ.
Proc. § 437c(p)(2)).
9 Q. Okay. Did you, so, did you take that, did you
take that to mean that you were supposed to lift over
10 70 pounds, or no?
A. That I was supposed to? I did what I was told,
11 and, by supervision, they told me that, yes, I had to
lift 70 pounds by myself, continuously.
12 Q. Did they tell you that you had to lift over 70
pounds by yourself?
13 A. They told me that I had to do the job that was
placed in front of me, or I was at risk of being laid
14 off, no matter what weight was in front of me.
Q. And who told you that?
15 A. Various supervisions throughout the,
throughout my stay at UPS. It was almost like they
16 were all on the same page about that.
Q. And who are those individuals?
17 A. Chauncy, Chris, Luis, at the time. You know,
who, whoever I came across at a point where I was
18 in front of a heavy box, and I was going to have to
pick that box up, if it was 70 pounds or heavier, by
19 myself.
20 2. Declaration of Nazo Koulloukian, Exhibit A Inadmissible hearsay (Evid. C.
(Pltf’s Depo, 90:23-91:18): § 1200); Argumentative and
21 conclusory, and speculative (Code Civ.
Q. And did you ever ask anyone for assistance Proc. § 437c(p)(2)).
22 lifting any packages over 70 pounds?
A. Yes. Yes, I did.
23 Q. Who did you ask?
A. Chauncy. I asked Vivian.
24 Q. And what was their response?
A. I had to do the job that was laid out in front of
25 me, or risk being laid off.
3. Declaration of Nazo Koulloukian, Exhibit A Lacks Foundation (Evid. C. § 702).
26 (Pltf’s Depo, 92:16-21):
27 Q. Okay. Did you ever inform anyone that you
weren’t supposed to be lifting over 70 pounds by
28 yourself?
LITTLER MEND ELSO N, P.C.
2. Case No. STK-CV-UWT-2019-0010377
500 Capitol Mall
Suite 2000
Sacram ento, CA 95814 DEFENDANT’S OBJECTIONS TO EVIDENCE SUBMITTED BY PLAINTIFF IN OPPOSITION TO
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT OR ALTERNATIVELY, SUMMARY ADJUDICATION
916.830.7200
1 Material Objected to: Grounds for Objection:
A. Yes Yes.
2 Q. Who did you inform?
A. Vivian, Chris, Chauncy.
3 4. Declaration of Nazo Koulloukian, Exhibit A Irrelevant; Lacks Foundation (Evid. C.
(Pltf’s Depo, 108:11-23): § 702); Inadmissible hearsay (Evid. C.
4
§ 1200); Argumentative and
And I want to say somewhere in the, the boxes kept
5 on coming. I let Chauncy know that these boxes conclusory, and speculative (Code Civ.
were well over 70 pounds, you know, I shouldn't be Proc. § 437c(p)(2)).
6 doing this by myself, I needed help.
7 And this is when it came down to, well, you know,
you got to do the work ahead of you, or you risk
8 being laid off.
9 And I didn't want to get laid off. I just kind of, I was
just trying to make people happy -- not really,
10 happy, but I was just, I guess at that point I wanted
to be a, for the manage-, I wanted to please
11 management. I wanted to show that I was a hard
worker, I was doing what I was told.
12 5. Declaration of Nazo Koulloukian, Exhibit A Irrelevant; Lacks Foundation (Evid. C.
(Pltf’s Depo, 109:4-10): § 702); Inadmissible hearsay (Evid. C.
13
§ 1200); Argumentative and
And somewhere in between, I don't know, I'm going
14 to guess like 30 and 60, I already made rows and conclusory, and speculative (Code Civ.
columns' worth, and I was getting fatigued, I had Proc. § 437c(p)(2)).
15 mentioned it to Chauncy more than once that I
needed help.
16
You know, he, he denied me. I was kind of given
17 the same excuse over and over again.
6. Declaration of Nazo Koulloukian, Exhibit A Irrelevant; Inadmissible hearsay (Evid.
18 (Pltf’s Depo, 109:18-110:15): C. § 1200);
19 Q. Okay. How many times did you tell Chauncy
that you needed --
20 A. I would have to say at least between three
and four times.
21 THE COURT REPORTER: I'm sorry, the full
question didn't come across.
22 "How many times did you tell Chauncy that you
needed," and then the answer started. I'm sorry.
23 BY MR. McKINNEY:
Q. I was going to say, needed assistance.
24 A. Excuse me. I'm sorry about that.
Somewhere between, like, from the time I
25 started lifting the boxes, or from the time started
working at UPS?
26 Q. On the specific day of the incident, of the
injury.
27 A. Okay. Frequently.
Q. How many times?
28
LITTLER MEND ELSO N, P.C.
3. Case No. STK-CV-UWT-2019-0010377
500 Capitol Mall
Suite 2000
Sacram ento, CA 95814 DEFENDANT’S OBJECTIONS TO EVIDENCE SUBMITTED BY PLAINTIFF IN OPPOSITION TO
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT OR ALTERNATIVELY, SUMMARY ADJUDICATION
916.830.7200
1 Material Objected to: Grounds for Objection:
A. Four or five.
2 Q. Okay. You just said three to four, so, is
it three to four, or four to five?
3 A. Let's just say five. And I'm saying five,
but I don't recall an exact number.
4
7. Declaration of Nazo Koulloukian, Exhibit A Lacks Foundation (Evid. C. § 702);
5 (Pltf’s Depo, 112:3-113:11): Lack of personal knowledge (Evid. C.
6 § 702); Inadmissible hearsay (Evid. C.
Q. And what did she say to you -- I guess, first,
sorry, what did you tell her? § 1200); Argumentative and
7 A. I believe that it was on, it was the next day. I conclusory, and speculative (Code Civ.
went into their office, and I explained to Dorothy Proc. § 437c(p)(2)).
8 what had happened to me. I don't know exactly at
what time, but I showed, and she had immediately
9 took me into Vivian's office, so, so, when I told her,
it was almost like a cue to involve Vivian.
10 Q. Okay, and what happened when you went to
Vivian's office?
11 A. Oh, jeez. That's when I intended to fill out my
accident report. I explained to her the injury I went
12 through, the pain I was going through, the time of
the injury, and, you know, and I wanted, I told her I
13 wanted to fill out an accident report, and she
wouldn't let me fill it out that day.
14 Q. Why wouldn't she let you fill it out?
A. That's a good question. That's a good question. I
15 don't have that answer.
MR. KOULLOUKIAN:
16 Objection. Calls for
speculation.
17 BY MR. McKINNEY:
Q. Okay. Did you ever --
18 A. Okay, can I, can I go back, or no?
Q. Go ahead, yeah.
19 A. She, I remember, I remember she was concerned
about it, about the insurance money, that it was too
20 expensive to take, take care of employees through
insurance. It was too, it was going to be too
21 expensive, and I was, I was going to be a liability at
that point.
22 Q. Who said that?
A. Vivian.
23
8. Declaration of Nazo Koulloukian, Exhibit A Lacks Foundation (Evid. C. § 702);
24 (Pltf’s Depo, 120:7-25): Inadmissible hearsay (Evid. C. §
25 1200); Improper lay opinion (Evid. C.
Q. And were you put on any modified duties?
A. No. § 800). Improper legal conclusion;
26 Q. What were, what were your duties when you Argumentative and conclusory, and
returned to work at this point? speculative (Code Civ. Proc. §
27 A. My first duty was when I returned was an 437c(p)(2)).
unloader. I was unloading a trailer. The trailer, the
28
LITTLER MEND ELSO N, P.C.
4. Case No. STK-CV-UWT-2019-0010377
500 Capitol Mall
Suite 2000
Sacram ento, CA 95814 DEFENDANT’S OBJECTIONS TO EVIDENCE SUBMITTED BY PLAINTIFF IN OPPOSITION TO
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT OR ALTERNATIVELY, SUMMARY ADJUDICATION
916.830.7200
1 Material Objected to: Grounds for Objection:
trailer had boxes. I unloaded, that was the first, my Plaintiff’s testimony is contradictory in
2 first duty was to unload a trailer. that he says he returned to work with
Q. And were any of those boxes over 20 pounds? no restrictions and later says he
3 A. Yes.
Q. Okay. Did you ask at any point for any presented restrictions. (See
4 accommodations? Defendant’s Undisputed Material Fact
A. At this point, I was asking for accommodation. I Nos. 66-68.)
5 showed my restrictions, and they were like, okay,
just take it easy, don't move too fast, just work at
6 your pace, at your own discretion. And so that's,
that's how I started working back at UPS after my
7 injury.
9. Declaration of Nazo Koulloukian, Exhibit A Lacks Foundation (Evid. C. § 702);
8 (Pltf’s Depo, 126:3-21): Inadmissible hearsay (Evid. C. §
9 1200); Argumentative and conclusory,
Q. Did you ever inform Denise that you couldn't lift
more than 20 pounds? and speculative (Code Civ. Proc. §
10 A. Yes. I showed Denise my doctor's note. 437c(p)(2)).
Q. What was her response?
11 A. Her response was, you know, I'm sorry, I can't
help you. The only job we have for you is the job
12 that you have in front of you, and, if you don't do
this job, you're laid off.
13 Q. Did she actually tell you that if you didn't do it,
you would be laid off?
14 A. You know, I don't remember verbatim, but it was
somewhere between, you know, we can't follow
15 those work restrictions. You got to do the job that
we're providing you, or else you'll be laid off.
16 Q. Okay, but did she actually say that you would be
laid off?
17 A. The words: Laid off.
10. Declaration of Nazo Koulloukian, Exhibit A Lacks Foundation (Evid. C. § 702);
18 (Pltf’s Depo, 126:22-127:1): Inadmissible hearsay (Evid. C. §
19 1200); Argumentative and conclusory,
Q. Okay. And the same with Chauncy, on the date
that you were injured, and you told them that you and speculative (Code Civ. Proc. §
20 needed to lift, or you needed assistance, did he also 437c(p)(2)).
tell you that you would be laid off?
21 A. He did.
11. Declaration of Nazo Koulloukian, Exhibit A Lacks Foundation (Evid. C. § 702);
22 (Pltf’s Depo, 127:2-128:2): Inadmissible hearsay (Evid. C. §
23 1200); Argumentative and conclusory,
Q. Okay. Now, just based on the documents that we
were just looking at, the doctor's reports, is it fair to and speculative (Code Civ. Proc. §
24 say that your work restriction up until your last day 437c(p)(2)).
of work with UPS was no more than 20 pounds?
25 A. No. Once, once my MRI came in, and it showed This is in direct contradiction to the
I had erupt, erupted tendons in my shoulder, the, at evidence as Exhibit 11 to Plaintiff’s
26 first, he said, hey, I'm going to take you off, I'm deposition which shows that on March
going to take you off of work and so you could, you 16, 2017, his doctor recommended that
27 could heal. And then, then he had quickly changed
his mind about that and said, you know what, I'm Plaintiff’s work restrictions still be set
28 at 20 lbs. (Supplemental Declaration of
LITTLER MEND ELSO N, P.C.
5. Case No. STK-CV-UWT-2019-0010377
500 Capitol Mall
Suite 2000
Sacram ento, CA 95814 DEFENDANT’S OBJECTIONS TO EVIDENCE SUBMITTED BY PLAINTIFF IN OPPOSITION TO
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT OR ALTERNATIVELY, SUMMARY ADJUDICATION
916.830.7200
1 Material Objected to: Grounds for Objection:
going to leave it at 10 pounds, and no, he brought it Nicholas McKinney, ¶ 2, Ex. A
2 down to 10 pounds, and no overhead work. [Deposition of Plaintiff, 123:1-12, Ex.
Q. Okay. 11].) Plaintiff does not dispute that he
3 A. Which doesn't seem to make sense, you know,
just doesn't seem to make too much sense. stopped reporting at UPS on or around
4 Q. Why do you say that? March 8, 2017 (See Defendant’s
A. It just doesn't. I mean, I have erupted tendons in Undisputed Material Fact No. 75.).
5 my shoulder. They're not, they're not providing me
with the modification work from the doctor already,
6 and so them just bringing it down 10 more pounds
lower doesn't, it just doesn't seem like, you know,
7 something that, with a injury as great as mine
should have to, have to keep on enduring, because I
8 endured a lot of scrutiny.
9 12. Declaration of Nazo Koulloukian, Exhibit A Lacks Foundation (Evid. C. § 702);
(Pltf’s Depo, 175:14-23): Inadmissible hearsay (Evid. C. §
10
1200); Argumentative and conclusory,
Q. At any point did you feel that Vivian was
11 treating you differently because of your injury? and speculative (Code Civ. Proc. §
A. Differently? 437c(p)(2)); Lack of Personal
12 Q. Sorry, let me reword that. At any point did you Knowledge (Evid. C. § 702).
feel like Vivian was treating you negatively because
13 of your injury? This is inconsistent with Plaintiff’s
A. Yes, I do. own testimony that he was moved to
14 Q. How so? Small Sorts Department. (Declaration
A. Well, I would show, I showed Vivian and her
15 fulltime team management my, my doctor's slip, of Nicholas McKinney, ¶ 2, Ex. A
and she, they never approved my accommodations. [Deposition of Plaintiff 123:14-125:23
16 and 236:14-16].)
13. Declaration of Nazo Koulloukian, Exhibit A Lacks Foundation (Evid. C. § 702);
17 (Pltf’s Depo, 176:4-17): Inadmissible hearsay (Evid. C. §
18 1200); Argumentative and conclusory,
Q. At any point did you feel like Vivian was
treating you negatively because of your injury? and speculative (Code Civ. Proc. §
19 A. Yes, I do. 437c(p)(2)); Lack of Personal
Q. How so? Knowledge as to whether Ms. Joshua
20 THE WITNESS: was “taking [him] serious” (Evid. C. §
Well, there is, at one point where I was in her 702).
21 office, and this was the day after my injury, and she
told me I should just go home and watch some
22 George Lopez and drink some tea, and that doesn't
sound like she was taking me serious.
23 14. Declaration of Nazo Koulloukian, Exhibit A Irrelevant; Lacks Foundation (Evid. C.
(Pltf’s Depo, 177:3-178:2): § 702); Inadmissible hearsay (Evid. C.
24
§ 1200); Argumentative and
A. There was another time when I was supposed to,
25 there, all this time, all along, I was injured, I'm conclusory, and speculative (Code Civ.
supposed to be on modified duties. All the Proc. § 437c(p)(2)); Lack of Personal
26 supervisors know. I told the supervisor, I told one Knowledge (Evid. C. § 702).
supervisor, one of the fulltime supervisors, his name
27 was Kevin, and I was doing overhead work, with a
pole, keeping packages from falling off the
28
LITTLER MEND ELSO N, P.C.
6. Case No. STK-CV-UWT-2019-0010377
500 Capitol Mall
Suite 2000
Sacram ento, CA 95814 DEFENDANT’S OBJECTIONS TO EVIDENCE SUBMITTED BY PLAINTIFF IN OPPOSITION TO
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT OR ALTERNATIVELY, SUMMARY ADJUDICATION
916.830.7200
1 Material Objected to: Grounds for Objection:
conveyor belt above my head, and I see Kevin, and
2 I show him my job restrictions. And he reads it, he
reads my doctor's note, and he said, I'm not
3 supposed to be in this workstation. He told me to
follow him up the catwalk, where Vivian was at,
4 and he, he lets Vivian aware of my job, my job
modifications, and she didn't even look at the
5 paperwork he was handing her. She only started to
get upset and yell at Kevin things like questioning,
6 his, her authority, and that he shouldn't be up there,
and she didn't care what that piece of paper said,
7 and that, and that Kevin, and she's yelling, she's
arguing with Kevin. Or, not, arguing. It was a one
8 way argument. She's just yelling at Kevin, and she
told him that he needed to take me and put me back
9 to the workstation I was at immediately.
15. Declaration of Nazo Koulloukian, Exhibit A Inadmissible hearsay (Evid. C. §
10 (Pltf’s Depo, 182:17-183:3): 1200); Vague and ambiguous as to
11 time; Argumentative and conclusory,
Q. After you received this letter, did you contact
UPS human resources? and speculative (Code Civ. Proc. §
12 A. There was, I don't know if it was at that time 437c(p)(2)).
of that letter, but I did contact human resources, and
13 it was at that trail end of the last days that I worked.
Q. And what did you, what did you say to
14 human resources?
A. That I was being treated unfairly, and they
15 weren't putting me on the modified restrictions that
was requested for me. I was in pain. I was in pain.
16 Q. Okay. And did you contact him before or after
you received the 72 hour letter?
17 A. I'm not exactly too sure. I, I don't recall.
Q. Okay.
18 A. But, like I, it was somewhere at the, like I
said, the trail end of my last days at work, so it
19 could have been before, it could have been after.
I'm not --
20 16. Declaration of Nazo Koulloukian, Exhibit A Inadmissible hearsay (Evid. C. §
(Pltf’s Depo, 184:4-20): 1200).
21
Q. Did anybody tell you that you were laid off prior
22 to March 13, 2017?
A. Well, that's, that's, kind of difficult to answer. On
23 my last day at work, I told Denise about my work
restrictions, and she couldn't accommodate them,
24 and I said, well, what am I to do. She said, you
could work. I was like, well, the doctor don't want
25 me to do this work. She was like, well, like I said,
like I said time and time again, they say, well, you
26 could either do the work, or you could be laid off.
So, I'm going to say yes.
27 Q. And who told you that?
A. Denise.
28
LITTLER MEND ELSO N, P.C.
7. Case No. STK-CV-UWT-2019-0010377
500 Capitol Mall
Suite 2000
Sacram ento, CA 95814 DEFENDANT’S OBJECTIONS TO EVIDENCE SUBMITTED BY PLAINTIFF IN OPPOSITION TO
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT OR ALTERNATIVELY, SUMMARY ADJUDICATION
916.830.7200
1 Material Objected to: Grounds for Objection:
Q. And when did she say that?
2 A. On my last day at the job.
17. Declaration of Nazo Koulloukian, Exhibit A Lacks Foundation (Evid. C. § 702);
3 (Pltf’s Depo, 202:20-203:1): Lack of Personal Knowledge (Evid. C.
4 § 702); Inadmissible hearsay (Evid. C.
Q. And why did you want to go on day shift?
A. The volume was lighter. I was just really § 1200); Argumentative and
5 hoping that, at that point, that somebody would take conclusory, and speculative (Code Civ.
me serious about my injury. Vivian wasn't listening Proc. § 437c(p)(2)).
6 to me. She didn't seem to care. I was just, you
know, searching for, you know, a better Plaintiff fails to establish the day shift
7 opportunity, has a lighter volume and/or any
somewhere. evidence to support that he has
8
personal knowledge of this
9 information. Likewise, he has no
personal knowledge of Ms. Joshua’s
10 feelings and/or whether she listened to
him.
11
18. Declaration of Nazo Koulloukian, Exhibit A Lacks Foundation (Evid. C. § 702);
12 (Pltf’s Depo, 237:3-24): Lack of Personal Knowledge (Evid. C.
§ 702); Inadmissible hearsay (Evid. C.
13 Q. Okay. Why didn't you ensure that they were less
than 20 pounds? § 1200); Argumentative and
A. Why didn't I assure they were less than 20 conclusory, and speculative (Code Civ.
14 Proc. § 437c(p)(2)).
pounds?
15 Q. Yes.
A. Okay, like, say, for instance, a 20-pound box
16 came across, went into the bag, and I have a, I have
a bag with just one box, the supervisors and UPS
17 are going to be like, what's going on, you can't do
that.
18 Q. Okay, but, knowing that, knowing that you had a
20-pound weight restriction, was there anything
19 preventing you from doing that?
A. The supervisors.
20 Q. What did the supervisors say?
A. That this is pretty much the position we have for
21 you, and if you can't do it, you could, you could, we
can lay you off.
22 Q. But did any supervisor tell you that you had to
fill a bag more than 20 pounds?
23 A. They, you know, I don't recall that. I don't recall
that.
24
DEPOSITION OF LUIS PINEDO
25
19. Declaration of Nazo Koulloukian, Exhibit B Inadmissible hearsay (Evid. C. §
26 (Transcript of Luis Pinedo Deposition [“Pinedo’s 1200); Vague and ambiguous as to
Depo”], 56:10-22): time and the term “they”;
27 Argumentative and conclusory, and
Q. Okay. Did anyone ever tell you if you didn't lift a
28 package, you would be laid off?
LITTLER MEND ELSO N, P.C.
8. Case No. STK-CV-UWT-2019-0010377
500 Capitol Mall
Suite 2000
Sacram ento, CA 95814 DEFENDANT’S OBJECTIONS TO EVIDENCE SUBMITTED BY PLAINTIFF IN OPPOSITION TO
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT OR ALTERNATIVELY, SUMMARY ADJUDICATION
916.830.7200
1 Material Objected to: Grounds for Objection:
A. I wouldn't say those exact words, but we were speculative (Code Civ. Proc. §
2 pretty much forced to, you know, say if Vivian 437c(p)(2)).
wanted to keep us load packages and yeah, there
3 was a term for it. It's not called disobedience, but
it's along those lines. It's, um -- they used to use it a
4 lot. It's kind of a military term. I don't remember
what it was called. If you don't follow orders then,
5 yeah, you are pretty much -- they have the right to
fire you right there.
6
20. Declaration of Nazo Koulloukian, Exhibit B Irrelevant; Lacks Foundation (Evid. C.
7 (Pinedo’s Depo, 74:14-75:25): § 702); Inadmissible hearsay (Evid. C.
8 § 1200); Argumentative and
Q. And can they -- do they determine when the bag
is full? conclusory, and speculative (Code Civ.
9 A. Yes. Yeah, the machine will not stop. It will Proc. § 437c(p)(2)).
continuously, you know, put packages up until a
10 sensor tells them it is jammed. There is so many In direct contradiction to Mr. Pinedo’s
packages, you can't zip it up, you have to put those testimony that he was not a Small
11 on the ground. It's a mess. They determine when it's Sorts supervisor and had limited
full. It's correct. experience in Small Sorts.
12 Q. So if an employee or if someone was bagging
and they wanted a lighter bag, could they stop, like, (Supplemental Declaration of Nicholas
13 the bag when it was halfway full and then stick -- McKinney, ¶ 3, Ex. B [Deposition of
put the sticker on it and move it over? Luis Pinedo, 64:2-14; 69:8-72:16].)
14 A. So, could they have done it? Yes. But, would
that be allowed?
15 No. We ran out of bags frequently, and, you know,
my – the full-time supervisors or load supervisors
16 would tell them these bags are half full, we got to
keep them in there until there, you know, until the
17 point you can zip and there's barely room to zip it,
because, you know, you want to
18 maximize how many packages you're loading per
bag. You don't just want to put it halfway.
19 Q. Okay. If someone was in that
position because of a weight restriction, could they
20 fill it halfway or --
A. Like I said, they probably wouldn't be allowed.
21 It's a waste of a bag.
21. Declaration of Nazo Koulloukian, Exhibit B Lacks Foundation (Evid. C. § 702);
22 (Pinedo’s Depo, 82:11-84:14): Inadmissible hearsay (Evid. C. §
23 1200); Argumentative and conclusory,
Q. Okay. And during this presort
meeting did you ever discuss Mr. Medina and speculative (Code Civ. Proc. §
24 specifically? 437c(p)(2)).
A. Did I discuss?
25 Q. Did Mr. Medina come up at all
during that -- during a presort meeting?
26 A. Yeah.
Q. And when was that?
27 A. Um, it was when -- um, I think I said it actually
in my declaration. It was when, you know, Vivian
28
LITTLER MEND ELSO N, P.C.
9. Case No. STK-CV-UWT-2019-0010377
500 Capitol Mall
Suite 2000
Sacram ento, CA 95814 DEFENDANT’S OBJECTIONS TO EVIDENCE SUBMITTED BY PLAINTIFF IN OPPOSITION TO
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT OR ALTERNATIVELY, SUMMARY ADJUDICATION
916.830.7200
1 Material Objected to: Grounds for Objection:
said something about his shoulder hurting and she
2 kind of, like, you know, made a gesture and kind of
like mimicking him, I do remember that. That's
3 actually sort of like when I learned that, you know,
the injury was actually like a real thing, it wasn't
4 just him saying his shoulder hurt. He actually got
hurt. When she said that, I was, like, oh.
5 Q. So this meeting would have been the first time
that you learned it was, like, officially an injury?
6 A. Correct. Yeah.
Q. As opposed to being like a soreness or
7 something?
A. Yeah. I mean, I know -- I knew something, like,
8 was something wrong with shoulder.
This is the first time, like, I knew
9 he had a documented injury.
Q. Okay. What specifically did Vivian say during
10 this meeting?
A. So, the exact words are fuzzy.
11 The only thing I do remember is her making a
gesture and sort of mimicking him, his injury saying
12 that he was injured. I just remember feeling kind of
offended by it.
13 Q. Okay.
A. That's all I remember about it.
14 Q. You don't remember specifically what the
gesture was?
15 A. It was -- I remember the gesture. She was
making, like, as if you know if you hurt your
16 shoulder at the gym, you're going to try to stretch it
out. She made this gesture like that.
17 Q. Okay. And do you remember
specifically the words that she said? I guess what
18 was said that offended you?
A. It was just the way, you know, the facial
19 expressions she made, the whole, I guess the tone,
like it was sort of, like, like, a schoolyard tease is
20 what I felt. I felt it was childish is how I would
describe it, I guess. I don't know.
21
22. Declaration of Nazo Koulloukian, Exhibit B Irrelevant; Lacks Foundation (Evid. C.
22 (Pinedo’s Depo, 90:12-91:20): § 702); Inadmissible hearsay (Evid. C.
§ 1200); Argumentative and
23 Q. Okay. In paragraph 8, you said "At the time of conclusory, and speculative (Code Civ.
Mr. Medina's injury, there were other positions Proc. § 437c(p)(2)).
24 available specifically created for injured Mr. Pinedo lacks the requisite
employees." How do you know that? knowledge to testify as to these facts.
25 A. So, I would like to say that "specifically created" He testified that he was not involved in
sounds formal. These weren't formal positions. You determining whether positions met
26 know, in, as you accommodation restrictions and/or
have your loader, unloader, sorter, metro unloader, making a list of potential positions that
27 small sorter, these were positions we generally put were available to injured workers. He
people who were injured there. I remember some also testified that he did not know
28
LITTLER MEND ELSO N, P.C.
10. Case No. STK-CV-UWT-2019-0010377
500 Capitol Mall
Suite 2000
Sacram ento, CA 95814 DEFENDANT’S OBJECTIONS TO EVIDENCE SUBMITTED BY PLAINTIFF IN OPPOSITION TO
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT OR ALTERNATIVELY, SUMMARY ADJUDICATION
916.830.7200
1 Material Objected to: Grounds for Objection:
girl, for example, injured her leg, she couldn't -- she whether any positions identified in
2 couldn't walk. So what they did was they bro
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 16:47:01 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 CALIFORNIA 12 COUNTY OF SAN JOAQUIN 13 SHAUN MEDINA, Case No. STK-CV-UWT-2019-0010377 14 Plaintiff, Hon. George J. Abdallah, Dept. 10A 15 v. DEFENDANT’S OBJECTIONS TO 16 EVIDENCE SUBMITTED BY PLAINTIFF UNITED PARCEL SERVICE, INC. IN OPPOSITION TO DEFENDANT’S 17 AND DOES 1-100, inclusive, MOTION FOR SUMMARY JUDGMENT OR ALTERNATIVELY, SUMMARY 18 Defendant. ADJUDICATION 19 DATE: March 3, 2022 TIME: 9:00 AM 20 DEPT: 10A 21 22 23 24 25 26 27 28 LITTLER MEND ELSO N, P.C. 500 Capitol Mall Suite 2000 Sacram ento, CA 95814 DEFENDANT’S OBJECTIONS TO EVIDENCE SUBMITTED BY PLAINTIFF IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT OR ALTERNATIVELY, SUMMARY ADJUDICATION 916.830.7200 1 Defendant UNITED PARCEL SERVICE, INC. (“Defendant”) respectfully submits these 2 objections to Plaintiff SHAUN MEDINA’S (“Plaintiff”) evidence in support of his Objection to 3 Defendant’s Motion for Summary Judgment or Alternatively, Summary Adjudication. 4 Objections to Plaintiff’s Evidence 5 Material Objected to: Grounds for Objection: 6 DEPOSITION OF SHAUN MEDINA 7 1. Declaration of Nazo Koulloukian, Exhibit A Inadmissible hearsay (Evid. C. (Plaintiff’s Deposition [“Pltf’s Depo”], 90:23- § 1200); Argumentative and 8 91:18): conclusory, and speculative (Code Civ. Proc. § 437c(p)(2)). 9 Q. Okay. Did you, so, did you take that, did you take that to mean that you were supposed to lift over 10 70 pounds, or no? A. That I was supposed to? I did what I was told, 11 and, by supervision, they told me that, yes, I had to lift 70 pounds by myself, continuously. 12 Q. Did they tell you that you had to lift over 70 pounds by yourself? 13 A. They told me that I had to do the job that was placed in front of me, or I was at risk of being laid 14 off, no matter what weight was in front of me. Q. And who told you that? 15 A. Various supervisions throughout the, throughout my stay at UPS. It was almost like they 16 were all on the same page about that. Q. And who are those individuals? 17 A. Chauncy, Chris, Luis, at the time. You know, who, whoever I came across at a point where I was 18 in front of a heavy box, and I was going to have to pick that box up, if it was 70 pounds or heavier, by 19 myself. 20 2. Declaration of Nazo Koulloukian, Exhibit A Inadmissible hearsay (Evid. C. (Pltf’s Depo, 90:23-91:18): § 1200); Argumentative and 21 conclusory, and speculative (Code Civ. Q. And did you ever ask anyone for assistance Proc. § 437c(p)(2)). 22 lifting any packages over 70 pounds? A. Yes. Yes, I did. 23 Q. Who did you ask? A. Chauncy. I asked Vivian. 24 Q. And what was their response? A. I had to do the job that was laid out in front of 25 me, or risk being laid off. 3. Declaration of Nazo Koulloukian, Exhibit A Lacks Foundation (Evid. C. § 702). 26 (Pltf’s Depo, 92:16-21): 27 Q. Okay. Did you ever inform anyone that you weren’t supposed to be lifting over 70 pounds by 28 yourself? LITTLER MEND ELSO N, P.C. 2. Case No. STK-CV-UWT-2019-0010377 500 Capitol Mall Suite 2000 Sacram ento, CA 95814 DEFENDANT’S OBJECTIONS TO EVIDENCE SUBMITTED BY PLAINTIFF IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT OR ALTERNATIVELY, SUMMARY ADJUDICATION 916.830.7200 1 Material Objected to: Grounds for Objection: A. Yes Yes. 2 Q. Who did you inform? A. Vivian, Chris, Chauncy. 3 4. Declaration of Nazo Koulloukian, Exhibit A Irrelevant; Lacks Foundation (Evid. C. (Pltf’s Depo, 108:11-23): § 702); Inadmissible hearsay (Evid. C. 4 § 1200); Argumentative and And I want to say somewhere in the, the boxes kept 5 on coming. I let Chauncy know that these boxes conclusory, and speculative (Code Civ. were well over 70 pounds, you know, I shouldn't be Proc. § 437c(p)(2)). 6 doing this by myself, I needed help. 7 And this is when it came down to, well, you know, you got to do the work ahead of you, or you risk 8 being laid off. 9 And I didn't want to get laid off. I just kind of, I was just trying to make people happy -- not really, 10 happy, but I was just, I guess at that point I wanted to be a, for the manage-, I wanted to please 11 management. I wanted to show that I was a hard worker, I was doing what I was told. 12 5. Declaration of Nazo Koulloukian, Exhibit A Irrelevant; Lacks Foundation (Evid. C. (Pltf’s Depo, 109:4-10): § 702); Inadmissible hearsay (Evid. C. 13 § 1200); Argumentative and And somewhere in between, I don't know, I'm going 14 to guess like 30 and 60, I already made rows and conclusory, and speculative (Code Civ. columns' worth, and I was getting fatigued, I had Proc. § 437c(p)(2)). 15 mentioned it to Chauncy more than once that I needed help. 16 You know, he, he denied me. I was kind of given 17 the same excuse over and over again. 6. Declaration of Nazo Koulloukian, Exhibit A Irrelevant; Inadmissible hearsay (Evid. 18 (Pltf’s Depo, 109:18-110:15): C. § 1200); 19 Q. Okay. How many times did you tell Chauncy that you needed -- 20 A. I would have to say at least between three and four times. 21 THE COURT REPORTER: I'm sorry, the full question didn't come across. 22 "How many times did you tell Chauncy that you needed," and then the answer started. I'm sorry. 23 BY MR. McKINNEY: Q. I was going to say, needed assistance. 24 A. Excuse me. I'm sorry about that. Somewhere between, like, from the time I 25 started lifting the boxes, or from the time started working at UPS? 26 Q. On the specific day of the incident, of the injury. 27 A. Okay. Frequently. Q. How many times? 28 LITTLER MEND ELSO N, P.C. 3. Case No. STK-CV-UWT-2019-0010377 500 Capitol Mall Suite 2000 Sacram ento, CA 95814 DEFENDANT’S OBJECTIONS TO EVIDENCE SUBMITTED BY PLAINTIFF IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT OR ALTERNATIVELY, SUMMARY ADJUDICATION 916.830.7200 1 Material Objected to: Grounds for Objection: A. Four or five. 2 Q. Okay. You just said three to four, so, is it three to four, or four to five? 3 A. Let's just say five. And I'm saying five, but I don't recall an exact number. 4 7. Declaration of Nazo Koulloukian, Exhibit A Lacks Foundation (Evid. C. § 702); 5 (Pltf’s Depo, 112:3-113:11): Lack of personal knowledge (Evid. C. 6 § 702); Inadmissible hearsay (Evid. C. Q. And what did she say to you -- I guess, first, sorry, what did you tell her? § 1200); Argumentative and 7 A. I believe that it was on, it was the next day. I conclusory, and speculative (Code Civ. went into their office, and I explained to Dorothy Proc. § 437c(p)(2)). 8 what had happened to me. I don't know exactly at what time, but I showed, and she had immediately 9 took me into Vivian's office, so, so, when I told her, it was almost like a cue to involve Vivian. 10 Q. Okay, and what happened when you went to Vivian's office? 11 A. Oh, jeez. That's when I intended to fill out my accident report. I explained to her the injury I went 12 through, the pain I was going through, the time of the injury, and, you know, and I wanted, I told her I 13 wanted to fill out an accident report, and she wouldn't let me fill it out that day. 14 Q. Why wouldn't she let you fill it out? A. That's a good question. That's a good question. I 15 don't have that answer. MR. KOULLOUKIAN: 16 Objection. Calls for speculation. 17 BY MR. McKINNEY: Q. Okay. Did you ever -- 18 A. Okay, can I, can I go back, or no? Q. Go ahead, yeah. 19 A. She, I remember, I remember she was concerned about it, about the insurance money, that it was too 20 expensive to take, take care of employees through insurance. It was too, it was going to be too 21 expensive, and I was, I was going to be a liability at that point. 22 Q. Who said that? A. Vivian. 23 8. Declaration of Nazo Koulloukian, Exhibit A Lacks Foundation (Evid. C. § 702); 24 (Pltf’s Depo, 120:7-25): Inadmissible hearsay (Evid. C. § 25 1200); Improper lay opinion (Evid. C. Q. And were you put on any modified duties? A. No. § 800). Improper legal conclusion; 26 Q. What were, what were your duties when you Argumentative and conclusory, and returned to work at this point? speculative (Code Civ. Proc. § 27 A. My first duty was when I returned was an 437c(p)(2)). unloader. I was unloading a trailer. The trailer, the 28 LITTLER MEND ELSO N, P.C. 4. Case No. STK-CV-UWT-2019-0010377 500 Capitol Mall Suite 2000 Sacram ento, CA 95814 DEFENDANT’S OBJECTIONS TO EVIDENCE SUBMITTED BY PLAINTIFF IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT OR ALTERNATIVELY, SUMMARY ADJUDICATION 916.830.7200 1 Material Objected to: Grounds for Objection: trailer had boxes. I unloaded, that was the first, my Plaintiff’s testimony is contradictory in 2 first duty was to unload a trailer. that he says he returned to work with Q. And were any of those boxes over 20 pounds? no restrictions and later says he 3 A. Yes. Q. Okay. Did you ask at any point for any presented restrictions. (See 4 accommodations? Defendant’s Undisputed Material Fact A. At this point, I was asking for accommodation. I Nos. 66-68.) 5 showed my restrictions, and they were like, okay, just take it easy, don't move too fast, just work at 6 your pace, at your own discretion. And so that's, that's how I started working back at UPS after my 7 injury. 9. Declaration of Nazo Koulloukian, Exhibit A Lacks Foundation (Evid. C. § 702); 8 (Pltf’s Depo, 126:3-21): Inadmissible hearsay (Evid. C. § 9 1200); Argumentative and conclusory, Q. Did you ever inform Denise that you couldn't lift more than 20 pounds? and speculative (Code Civ. Proc. § 10 A. Yes. I showed Denise my doctor's note. 437c(p)(2)). Q. What was her response? 11 A. Her response was, you know, I'm sorry, I can't help you. The only job we have for you is the job 12 that you have in front of you, and, if you don't do this job, you're laid off. 13 Q. Did she actually tell you that if you didn't do it, you would be laid off? 14 A. You know, I don't remember verbatim, but it was somewhere between, you know, we can't follow 15 those work restrictions. You got to do the job that we're providing you, or else you'll be laid off. 16 Q. Okay, but did she actually say that you would be laid off? 17 A. The words: Laid off. 10. Declaration of Nazo Koulloukian, Exhibit A Lacks Foundation (Evid. C. § 702); 18 (Pltf’s Depo, 126:22-127:1): Inadmissible hearsay (Evid. C. § 19 1200); Argumentative and conclusory, Q. Okay. And the same with Chauncy, on the date that you were injured, and you told them that you and speculative (Code Civ. Proc. § 20 needed to lift, or you needed assistance, did he also 437c(p)(2)). tell you that you would be laid off? 21 A. He did. 11. Declaration of Nazo Koulloukian, Exhibit A Lacks Foundation (Evid. C. § 702); 22 (Pltf’s Depo, 127:2-128:2): Inadmissible hearsay (Evid. C. § 23 1200); Argumentative and conclusory, Q. Okay. Now, just based on the documents that we were just looking at, the doctor's reports, is it fair to and speculative (Code Civ. Proc. § 24 say that your work restriction up until your last day 437c(p)(2)). of work with UPS was no more than 20 pounds? 25 A. No. Once, once my MRI came in, and it showed This is in direct contradiction to the I had erupt, erupted tendons in my shoulder, the, at evidence as Exhibit 11 to Plaintiff’s 26 first, he said, hey, I'm going to take you off, I'm deposition which shows that on March going to take you off of work and so you could, you 16, 2017, his doctor recommended that 27 could heal. And then, then he had quickly changed his mind about that and said, you know what, I'm Plaintiff’s work restrictions still be set 28 at 20 lbs. (Supplemental Declaration of LITTLER MEND ELSO N, P.C. 5. Case No. STK-CV-UWT-2019-0010377 500 Capitol Mall Suite 2000 Sacram ento, CA 95814 DEFENDANT’S OBJECTIONS TO EVIDENCE SUBMITTED BY PLAINTIFF IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT OR ALTERNATIVELY, SUMMARY ADJUDICATION 916.830.7200 1 Material Objected to: Grounds for Objection: going to leave it at 10 pounds, and no, he brought it Nicholas McKinney, ¶ 2, Ex. A 2 down to 10 pounds, and no overhead work. [Deposition of Plaintiff, 123:1-12, Ex. Q. Okay. 11].) Plaintiff does not dispute that he 3 A. Which doesn't seem to make sense, you know, just doesn't seem to make too much sense. stopped reporting at UPS on or around 4 Q. Why do you say that? March 8, 2017 (See Defendant’s A. It just doesn't. I mean, I have erupted tendons in Undisputed Material Fact No. 75.). 5 my shoulder. They're not, they're not providing me with the modification work from the doctor already, 6 and so them just bringing it down 10 more pounds lower doesn't, it just doesn't seem like, you know, 7 something that, with a injury as great as mine should have to, have to keep on enduring, because I 8 endured a lot of scrutiny. 9 12. Declaration of Nazo Koulloukian, Exhibit A Lacks Foundation (Evid. C. § 702); (Pltf’s Depo, 175:14-23): Inadmissible hearsay (Evid. C. § 10 1200); Argumentative and conclusory, Q. At any point did you feel that Vivian was 11 treating you differently because of your injury? and speculative (Code Civ. Proc. § A. Differently? 437c(p)(2)); Lack of Personal 12 Q. Sorry, let me reword that. At any point did you Knowledge (Evid. C. § 702). feel like Vivian was treating you negatively because 13 of your injury? This is inconsistent with Plaintiff’s A. Yes, I do. own testimony that he was moved to 14 Q. How so? Small Sorts Department. (Declaration A. Well, I would show, I showed Vivian and her 15 fulltime team management my, my doctor's slip, of Nicholas McKinney, ¶ 2, Ex. A and she, they never approved my accommodations. [Deposition of Plaintiff 123:14-125:23 16 and 236:14-16].) 13. Declaration of Nazo Koulloukian, Exhibit A Lacks Foundation (Evid. C. § 702); 17 (Pltf’s Depo, 176:4-17): Inadmissible hearsay (Evid. C. § 18 1200); Argumentative and conclusory, Q. At any point did you feel like Vivian was treating you negatively because of your injury? and speculative (Code Civ. Proc. § 19 A. Yes, I do. 437c(p)(2)); Lack of Personal Q. How so? Knowledge as to whether Ms. Joshua 20 THE WITNESS: was “taking [him] serious” (Evid. C. § Well, there is, at one point where I was in her 702). 21 office, and this was the day after my injury, and she told me I should just go home and watch some 22 George Lopez and drink some tea, and that doesn't sound like she was taking me serious. 23 14. Declaration of Nazo Koulloukian, Exhibit A Irrelevant; Lacks Foundation (Evid. C. (Pltf’s Depo, 177:3-178:2): § 702); Inadmissible hearsay (Evid. C. 24 § 1200); Argumentative and A. There was another time when I was supposed to, 25 there, all this time, all along, I was injured, I'm conclusory, and speculative (Code Civ. supposed to be on modified duties. All the Proc. § 437c(p)(2)); Lack of Personal 26 supervisors know. I told the supervisor, I told one Knowledge (Evid. C. § 702). supervisor, one of the fulltime supervisors, his name 27 was Kevin, and I was doing overhead work, with a pole, keeping packages from falling off the 28 LITTLER MEND ELSO N, P.C. 6. Case No. STK-CV-UWT-2019-0010377 500 Capitol Mall Suite 2000 Sacram ento, CA 95814 DEFENDANT’S OBJECTIONS TO EVIDENCE SUBMITTED BY PLAINTIFF IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT OR ALTERNATIVELY, SUMMARY ADJUDICATION 916.830.7200 1 Material Objected to: Grounds for Objection: conveyor belt above my head, and I see Kevin, and 2 I show him my job restrictions. And he reads it, he reads my doctor's note, and he said, I'm not 3 supposed to be in this workstation. He told me to follow him up the catwalk, where Vivian was at, 4 and he, he lets Vivian aware of my job, my job modifications, and she didn't even look at the 5 paperwork he was handing her. She only started to get upset and yell at Kevin things like questioning, 6 his, her authority, and that he shouldn't be up there, and she didn't care what that piece of paper said, 7 and that, and that Kevin, and she's yelling, she's arguing with Kevin. Or, not, arguing. It was a one 8 way argument. She's just yelling at Kevin, and she told him that he needed to take me and put me back 9 to the workstation I was at immediately. 15. Declaration of Nazo Koulloukian, Exhibit A Inadmissible hearsay (Evid. C. § 10 (Pltf’s Depo, 182:17-183:3): 1200); Vague and ambiguous as to 11 time; Argumentative and conclusory, Q. After you received this letter, did you contact UPS human resources? and speculative (Code Civ. Proc. § 12 A. There was, I don't know if it was at that time 437c(p)(2)). of that letter, but I did contact human resources, and 13 it was at that trail end of the last days that I worked. Q. And what did you, what did you say to 14 human resources? A. That I was being treated unfairly, and they 15 weren't putting me on the modified restrictions that was requested for me. I was in pain. I was in pain. 16 Q. Okay. And did you contact him before or after you received the 72 hour letter? 17 A. I'm not exactly too sure. I, I don't recall. Q. Okay. 18 A. But, like I, it was somewhere at the, like I said, the trail end of my last days at work, so it 19 could have been before, it could have been after. I'm not -- 20 16. Declaration of Nazo Koulloukian, Exhibit A Inadmissible hearsay (Evid. C. § (Pltf’s Depo, 184:4-20): 1200). 21 Q. Did anybody tell you that you were laid off prior 22 to March 13, 2017? A. Well, that's, that's, kind of difficult to answer. On 23 my last day at work, I told Denise about my work restrictions, and she couldn't accommodate them, 24 and I said, well, what am I to do. She said, you could work. I was like, well, the doctor don't want 25 me to do this work. She was like, well, like I said, like I said time and time again, they say, well, you 26 could either do the work, or you could be laid off. So, I'm going to say yes. 27 Q. And who told you that? A. Denise. 28 LITTLER MEND ELSO N, P.C. 7. Case No. STK-CV-UWT-2019-0010377 500 Capitol Mall Suite 2000 Sacram ento, CA 95814 DEFENDANT’S OBJECTIONS TO EVIDENCE SUBMITTED BY PLAINTIFF IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT OR ALTERNATIVELY, SUMMARY ADJUDICATION 916.830.7200 1 Material Objected to: Grounds for Objection: Q. And when did she say that? 2 A. On my last day at the job. 17. Declaration of Nazo Koulloukian, Exhibit A Lacks Foundation (Evid. C. § 702); 3 (Pltf’s Depo, 202:20-203:1): Lack of Personal Knowledge (Evid. C. 4 § 702); Inadmissible hearsay (Evid. C. Q. And why did you want to go on day shift? A. The volume was lighter. I was just really § 1200); Argumentative and 5 hoping that, at that point, that somebody would take conclusory, and speculative (Code Civ. me serious about my injury. Vivian wasn't listening Proc. § 437c(p)(2)). 6 to me. She didn't seem to care. I was just, you know, searching for, you know, a better Plaintiff fails to establish the day shift 7 opportunity, has a lighter volume and/or any somewhere. evidence to support that he has 8 personal knowledge of this 9 information. Likewise, he has no personal knowledge of Ms. Joshua’s 10 feelings and/or whether she listened to him. 11 18. Declaration of Nazo Koulloukian, Exhibit A Lacks Foundation (Evid. C. § 702); 12 (Pltf’s Depo, 237:3-24): Lack of Personal Knowledge (Evid. C. § 702); Inadmissible hearsay (Evid. C. 13 Q. Okay. Why didn't you ensure that they were less than 20 pounds? § 1200); Argumentative and A. Why didn't I assure they were less than 20 conclusory, and speculative (Code Civ. 14 Proc. § 437c(p)(2)). pounds? 15 Q. Yes. A. Okay, like, say, for instance, a 20-pound box 16 came across, went into the bag, and I have a, I have a bag with just one box, the supervisors and UPS 17 are going to be like, what's going on, you can't do that. 18 Q. Okay, but, knowing that, knowing that you had a 20-pound weight restriction, was there anything 19 preventing you from doing that? A. The supervisors. 20 Q. What did the supervisors say? A. That this is pretty much the position we have for 21 you, and if you can't do it, you could, you could, we can lay you off. 22 Q. But did any supervisor tell you that you had to fill a bag more than 20 pounds? 23 A. They, you know, I don't recall that. I don't recall that. 24 DEPOSITION OF LUIS PINEDO 25 19. Declaration of Nazo Koulloukian, Exhibit B Inadmissible hearsay (Evid. C. § 26 (Transcript of Luis Pinedo Deposition [“Pinedo’s 1200); Vague and ambiguous as to Depo”], 56:10-22): time and the term “they”; 27 Argumentative and conclusory, and Q. Okay. Did anyone ever tell you if you didn't lift a 28 package, you would be laid off? LITTLER MEND ELSO N, P.C. 8. Case No. STK-CV-UWT-2019-0010377 500 Capitol Mall Suite 2000 Sacram ento, CA 95814 DEFENDANT’S OBJECTIONS TO EVIDENCE SUBMITTED BY PLAINTIFF IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT OR ALTERNATIVELY, SUMMARY ADJUDICATION 916.830.7200 1 Material Objected to: Grounds for Objection: A. I wouldn't say those exact words, but we were speculative (Code Civ. Proc. § 2 pretty much forced to, you know, say if Vivian 437c(p)(2)). wanted to keep us load packages and yeah, there 3 was a term for it. It's not called disobedience, but it's along those lines. It's, um -- they used to use it a 4 lot. It's kind of a military term. I don't remember what it was called. If you don't follow orders then, 5 yeah, you are pretty much -- they have the right to fire you right there. 6 20. Declaration of Nazo Koulloukian, Exhibit B Irrelevant; Lacks Foundation (Evid. C. 7 (Pinedo’s Depo, 74:14-75:25): § 702); Inadmissible hearsay (Evid. C. 8 § 1200); Argumentative and Q. And can they -- do they determine when the bag is full? conclusory, and speculative (Code Civ. 9 A. Yes. Yeah, the machine will not stop. It will Proc. § 437c(p)(2)). continuously, you know, put packages up until a 10 sensor tells them it is jammed. There is so many In direct contradiction to Mr. Pinedo’s packages, you can't zip it up, you have to put those testimony that he was not a Small 11 on the ground. It's a mess. They determine when it's Sorts supervisor and had limited full. It's correct. experience in Small Sorts. 12 Q. So if an employee or if someone was bagging and they wanted a lighter bag, could they stop, like, (Supplemental Declaration of Nicholas 13 the bag when it was halfway full and then stick -- McKinney, ¶ 3, Ex. B [Deposition of put the sticker on it and move it over? Luis Pinedo, 64:2-14; 69:8-72:16].) 14 A. So, could they have done it? Yes. But, would that be allowed? 15 No. We ran out of bags frequently, and, you know, my – the full-time supervisors or load supervisors 16 would tell them these bags are half full, we got to keep them in there until there, you know, until the 17 point you can zip and there's barely room to zip it, because, you know, you want to 18 maximize how many packages you're loading per bag. You don't just want to put it halfway. 19 Q. Okay. If someone was in that position because of a weight restriction, could they 20 fill it halfway or -- A. Like I said, they probably wouldn't be allowed. 21 It's a waste of a bag. 21. Declaration of Nazo Koulloukian, Exhibit B Lacks Foundation (Evid. C. § 702); 22 (Pinedo’s Depo, 82:11-84:14): Inadmissible hearsay (Evid. C. § 23 1200); Argumentative and conclusory, Q. Okay. And during this presort meeting did you ever discuss Mr. Medina and speculative (Code Civ. Proc. § 24 specifically? 437c(p)(2)). A. Did I discuss? 25 Q. Did Mr. Medina come up at all during that -- during a presort meeting? 26 A. Yeah. Q. And when was that? 27 A. Um, it was when -- um, I think I said it actually in my declaration. It was when, you know, Vivian 28 LITTLER MEND ELSO N, P.C. 9. Case No. STK-CV-UWT-2019-0010377 500 Capitol Mall Suite 2000 Sacram ento, CA 95814 DEFENDANT’S OBJECTIONS TO EVIDENCE SUBMITTED BY PLAINTIFF IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT OR ALTERNATIVELY, SUMMARY ADJUDICATION 916.830.7200 1 Material Objected to: Grounds for Objection: said something about his shoulder hurting and she 2 kind of, like, you know, made a gesture and kind of like mimicking him, I do remember that. That's 3 actually sort of like when I learned that, you know, the injury was actually like a real thing, it wasn't 4 just him saying his shoulder hurt. He actually got hurt. When she said that, I was, like, oh. 5 Q. So this meeting would have been the first time that you learned it was, like, officially an injury? 6 A. Correct. Yeah. Q. As opposed to being like a soreness or 7 something? A. Yeah. I mean, I know -- I knew something, like, 8 was something wrong with shoulder. This is the first time, like, I knew 9 he had a documented injury. Q. Okay. What specifically did Vivian say during 10 this meeting? A. So, the exact words are fuzzy. 11 The only thing I do remember is her making a gesture and sort of mimicking him, his injury saying 12 that he was injured. I just remember feeling kind of offended by it. 13 Q. Okay. A. That's all I remember about it. 14 Q. You don't remember specifically what the gesture was? 15 A. It was -- I remember the gesture. She was making, like, as if you know if you hurt your 16 shoulder at the gym, you're going to try to stretch it out. She made this gesture like that. 17 Q. Okay. And do you remember specifically the words that she said? I guess what 18 was said that offended you? A. It was just the way, you know, the facial 19 expressions she made, the whole, I guess the tone, like it was sort of, like, like, a schoolyard tease is 20 what I felt. I felt it was childish is how I would describe it, I guess. I don't know. 21 22. Declaration of Nazo Koulloukian, Exhibit B Irrelevant; Lacks Foundation (Evid. C. 22 (Pinedo’s Depo, 90:12-91:20): § 702); Inadmissible hearsay (Evid. C. § 1200); Argumentative and 23 Q. Okay. In paragraph 8, you said "At the time of conclusory, and speculative (Code Civ. Mr. Medina's injury, there were other positions Proc. § 437c(p)(2)). 24 available specifically created for injured Mr. Pinedo lacks the requisite employees." How do you know that? knowledge to testify as to these facts. 25 A. So, I would like to say that "specifically created" He testified that he was not involved in sounds formal. These weren't formal positions. You determining whether positions met 26 know, in, as you accommodation restrictions and/or have your loader, unloader, sorter, metro unloader, making a list of potential positions that 27 small sorter, these were positions we generally put were available to injured workers. He people who were injured there. I remember some also testified that he did not know 28 LITTLER MEND ELSO N, P.C. 10. Case No. STK-CV-UWT-2019-0010377 500 Capitol Mall Suite 2000 Sacram ento, CA 95814 DEFENDANT’S OBJECTIONS TO EVIDENCE SUBMITTED BY PLAINTIFF IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT OR ALTERNATIVELY, SUMMARY ADJUDICATION 916.830.7200 1 Material Objected to: Grounds for Objection: girl, for example, injured her leg, she couldn't -- she whether any positions identified in 2 couldn't walk. So what they did was they bro