Doutherd v. Montesdeoca

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8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

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11 TYRONE DOUTHERD, No. 2:17-cv-02225-KJM-JDP

12 Plaintiff,

13 v. ORDER

14 DORIS MARIE MONTESDEOCA, The

Estate of LUCILLE J. SMITH, UNITED

15 PARCEL SERVICE, INC., LIBERTY

MUTUAL INSURANCE COMPANY, and

16 HARMONY HOME CARE, INC.,

17 Defendants.

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19 This case arises from a motor vehicle accident plaintiff suffered while at work for

20 his employer, UPS Ground Freight, Inc., and subsequent events related to his employment. Two

21 motions for summary judgment are before the court. Defendant UPS Ground Freight, Inc. (sued

22 as United Parcel Service, Inc., hereafter “UPSF”) moves for summary judgment as to all of

23 plaintiff Tyrone Doutherd’s claims against it. UPSF Mot., ECF Nos. 123, 123-1. Plaintiff

24 opposes the motion. UPSF Opp’n, ECF No. 135. UPSF replied. UPSF Reply, ECF No. 144.

25 Defendant Harmony Home Care, Inc. (“Harmony”) moves for summary judgment as to plaintiff’s

26 claims against it. Harmony Mot., ECF No. 125; Harmony Mem. P&A, ECF No. 125-1. Plaintiff

27 opposes. Doutherd Opp’n, ECF No. 133. Harmony replied. Harmony Reply, ECF No. 140.

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1 The court heard oral argument on the motions by video teleconferencing in

2 consideration of the ongoing coronavirus pandemic on July 10, 2020. Ellen Dove appeared on

3 behalf of plaintiff. Amanda Griffith appeared on behalf of Harmony Home Care. Emily

4 Burkhardt Vicente appeared on behalf of UPSF. Having carefully considered the parties’

5 arguments, the evidence in the record, and the applicable law, the court now GRANTS UPSF’s

6 motion and GRANTS IN PART and DENIES IN PART Harmony’s motion.

7 Before reciting the facts in detail, the court resolves evidentiary objections and

8 notes the effect of the law of the case.

9 I. EVIDENTIARY OBJECTIONS

10 The court focuses on UPSF’s objections and consider Harmony’s objections only

11 when they are material, as many of them are duplicative of USPF’s. To the extent both moving

12 defendants’ objections are merely “boilerplate recitations of evidentiary principles or blanket

13 objections without analysis applied to specific items of evidence,” the court declines to scrutinize

14 them one-by-one. See Ramsey v. Siskiyou Hosp. Inc., No. 2:14-cv-01908-KJM-CMK, 2016 WL

15 3197557, at *1 (E.D. Cal. June 9, 2016) (citations omitted); see also Capitol Records, LLC v.

16 BlueBeat, Inc., 765 F. Supp. 2d 1198, 1200 n.1 (C.D. Cal. 2010) (“In motions for summary

17 judgment with numerous objections, it is often unnecessary and impractical for a court to

18 methodically scrutinize each objection and give a full analysis of each argument raised.” (citation

19 omitted)).

20 A. Self-Serving Declarations

21 Plaintiff relies chiefly on his own declarations to oppose the motions. Pl.’s Resp.

22 UPSF SUF, ECF No. 136; Doutherd UPSF Decl., ECF No. 134; Pl.’s Resp. Harmony SUF, ECF

23 No. 133-1; Doutherd Harmony Decl., ECF No. 133-2. Both Harmony and UPSF object that the

24 declarations are self-serving. UPSF Obj. Pl.’s Decl., ECF No. 143; Harmony Obj. Pl.’s Decl.,

25 ECF No. 142. This is not per se a bar to their consideration:

26 [D]eclarations are often self-serving, and this is properly so because

the party submitting it would use the declaration to support his or

27 her position. Although the source of the evidence may have some

bearing on its credibility and on the weight it may be given by a

28 trier of fact, the district court may not disregard a piece of evidence

1 at the summary judgment stage solely based on its self-serving

nature.

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3 Nigro v. Sears, Roebuck & Co., 784 F.3d 495, 497 (9th Cir. 2015). However, the court is

4 empowered to “disregard a self-serving declaration that states only conclusions and not facts that

5 would be admissible evidence.” Id. (citing Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054,

6 1059 n.5, 1061 (9th Cir. 2002). “A conclusory, self-serving affidavit, lacking detailed facts and

7 any supporting evidence, is insufficient to create a genuine issue of material fact.” F.T.C. v.

8 Publishing Clearing House, Inc., 104 F.3d 1168, 1171 (9th Cir. 1997).

9 The court’s power to disregard conclusory and threadbare self-serving declarations

10 must be weighed against the requirement to draw all reasonable inferences in favor of the

11 nonmoving party at the summary judgment stage. Matsushita Elec. Indus. Co. v. Zenith Radio

12 Corp., 475 U.S. 574, 587-88 (1986).

13 In considering plaintiff’s declarations, the court disregards plaintiff’s conclusions

14 of law unsupported by factual details. Insofar as he asserts facts, however, the court will not

15 disregard them solely for their self-serving nature, as counseled by Nigro, 784 F.3d at 497. It

16 remains plaintiff’s burden in opposing summary judgment to present evidence from which a jury

17 could reasonably render a verdict in the non-moving party’s favor. Anderson v. Liberty Lobby,

18 Inc., 477 U.S. 242, 252 (1986).

19 Plaintiff’s UPSF declaration recounts his story at a high level of generality,

20 omitting key facts. This level of generality is not enough to withstand summary judgment. A

21 reasonable juror would not have a sufficient understanding of the details from such testimony to

22 find for the plaintiff. While, deficiencies in affidavits offered in opposition to summary judgment

23 may be cured to make them “admissible at trial” and thus competent to oppose, Block v. City of

24 L.A., 253 F.3d 410, 418-19 (9th Cir. 2001) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 324

25 (1986)), these basic details would have been in plaintiff’s personal knowledge and possession at

26 the time and could have been included in his declaration. “When a party has relevant evidence in

27 his control which he fails to produce, that failure gives rise to an inference that the evidence is

28 unfavorable to him.” Singh v. Gonzales, 491 F.3d 1019, 1024 (9th Cir. 2007) (quoting Int’l

1 Union, United Auto., Aerospace, and Agric. Implement Workers of Am. (U.A.W.) v. N.L.R.B., 459

2 F.2d 1329, 1336 (D.C. Cir. 1972)). The missing details are not trifles; they are the factual basis

3 for his case. The court has no obligation to comb the record for a basis of admissibility of his

4 threadbare factual assertions “as if [it were] [a] pig[] sniffing for truffles.” In re Oracle Sec.

5 Litigation, 627 F.3d 376, 386 (9th Cir. 2010) (citation omitted).

6 Therefore the court cannot consider sworn statements where plaintiff omits key

7 details of events to which he would have been a percipient witness as competent to oppose. The

8 court does not sustain the objection as to the totality of plaintiff’s declaration. However, the court

9 sustains the objection as to those parts of the declaration that state in a conclusory fashion that

10 events occurred without any detail.

11 B. Sham Declaration

12 UPSF objects that several portions of plaintiff’s declaration are “sham

13 declaration[s]” that contradict his testimony at deposition and should thus be disregarded. UPSF

14 Obj. Pl.’s Decl. at 2–3, 4, 6, 14, 17, 18–20 (objecting to Doutherd UPSF Decl. ¶¶ 5, 7, 10, 11, 12,

15 15, 18, 341, 37, 38; citing Kennedy v. Allied Mut. Ins. Co., 952 F.2d 262, 266 (9th Cir. 1991)).

16 Under Kennedy, a nonmoving party’s declaration does not create a genuine issue of material fact

17 if it is inconsistent with that party’s deposition testimony, when the inconsistency is not based on

18 confusion at the deposition or a lack of material facts at that time. Kennedy, 952 F.2d at 267.

19 The “rule does not automatically dispose of every case in which a contradictory affidavit is

20 introduced to explain portions of earlier deposition testimony.” Id. at 266–67. Instead, the non-

21 moving party “is not precluded from elaborating upon, explaining or clarifying prior testimony

22 elicited by opposing counsel on deposition and minor inconsistencies that result from an honest

23 discrepancy, a mistake, or newly discovered evidence afford no basis for excluding an opposition

24 affidavit.” Van Asdale v. Int’l Game Tech., 577 F.3d 989, 999 (9th Cir. 2009) (citation omitted).

25 Under this rule, the court is required to make a specific factual finding whether the declaration

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1 Plaintiff’s declaration contains two consecutive paragraphs numbered 34, an apparent typo.

28 Doutherd UPSF Decl. at 11. UPSF objects to them both.

1 offered at summary judgment is truly a contradictory “sham,” or whether it is an honest

2 discrepancy based on confusion, mistake or lack of evidence. Id.

3 Plaintiff responds to UPSF’s objections by asserting his testimony at deposition

4 was incomplete because defendant’s attorneys failed to ask the follow-up questions necessary for

5 a full explanation. Pl.’s Resp. Obj. Doutherd UPSF Decl. at 2, ECF No. 147. Furthermore,

6 plaintiff asserts the deposition excerpts are taken out of context. Id. Plaintiff does not point to or

7 attach specific excerpts to clarify his position in this regard. If plaintiff will not put the relevant

8 deposition excerpts in context himself, the court has no obligation to comb the record for him. In

9 re Oracle, 627 F.3d at 386.

10 Having reviewed the deposition transcripts UPSF points to, the court finds the

11 assertions UPSF objects to in paragraphs 5, 7, 10, 11, 12, 15 and 37 of plaintiff’s declaration are

12 directly contradictory to his deposition with no indication of confusion, incomplete context or a

13 lack of knowledge. In particular, the affidavit’s narrative of plaintiff’s communications with his

14 dispatcher after the accident and his course of treatment differs materially from his deposition

15 testimony. At deposition, plaintiff chronologically recounted the events of the day in response to

16 open ended, unambiguous questions, giving him an opportunity to explain the entire situation.

17 See UPSF Supp. Vicente Decl. Ex. B at B07-B11, ECF No. 146-2. Therefore, the court

18 SUSTAINS the “sham declaration” objection to the contradictory portions of these paragraphs of

19 plaintiff’s declaration.

20 On the other hand, the court overrules the objection to both paragraphs numbered

21 34 and paragraph 38. As to the first 34, the question at deposition called for whether plaintiff had

22 trouble attending medical and physical therapy appointments in 2015, not in 2017, as the

23 declaration states. UPSF Supp. Vicente Decl. Ex. B at B19–B20. The second 34 relates to

24 plaintiff’s allegedly unrepaired and dangerous truck. Plaintiff testified at deposition to his

25 perception the bumper to his truck was damaged creating a dangerous condition. UPSF Supp.

26 Vicente Decl. Ex. C at C08–C09, ECF No. 146-3. His concession that he was not a mechanic is

27 not sufficient to render his percipient observation of the bumper inconsistent with his declaration.

28 Finally, UPSF cites its own undisputed facts for the proposition that paragraph 38 of plaintiff’s

1 declaration, in which he claims to have received write-ups, is a sham. UPSF Obj. Pl.’s Decl. at

2 18-19. The referenced fact, UPSF SUF 32, is irrelevant to write-ups; here as well, the court has

3 no obligation to comb the record to find what counsel truly meant, regardless which party that

4 counsel represents. In re Oracle, 627 F.3d at 386.

5 C. Foundation

6 Plaintiff asserts, only on information and belief, that UPSF did not report the

7 accident to the Department of Transportation or the California Occupational Health and Safety

8 Administration (“CalOSHA”). Doutherd UPSF Decl. ¶ 14. UPSF objects this assertion lacks

9 foundation, as plaintiff had no responsibility for preparing reports to DOT or OSHA. In the

10 absence of any information establishing a basis for this assertion, the objection is SUSTAINED.

11 D. Relevance

12 UPSF objects repeatedly to plaintiff’s declaration on relevance grounds.

13 Relevance objections are generally poorly suited for the summary judgment context because

14 relevance objections are necessarily “duplicative of the summary judgment standard itself … [the

15 court] cannot rely on irrelevant facts, and thus relevance objections are redundant.” Burch v.

16 Regents of Univ. of Cal., 433 F. Supp. 2d 1110, 1119 (E.D. Cal. 2006). The court OVERRULES

17 relevance objections at this stage, without prejudice.

18 E. Hearsay

19 Similarly, hearsay objections are inappropriate at summary judgment; “objections

20 to the form in which the evidence is presented are particularly misguided where, as here, they

21 target the non-moving party’s evidence.” Burch, 433 F. Supp. 2d at 1119 (emphasis in original).

22 Furthermore, many of the hearsay objections to statements made by UPSF employees in the scope

23 of their duties would likely be considered statements by a party opponent. Fed. R. Evid.

24 801(d)(2)(A). The court also will not sustain hearsay objections at this stage; they are

25 OVERRULED without prejudice.

26 F. Improper Medical Testimony

27 The court overrules in part and sustains in part UPSF’s objections that plaintiff

28 attempts to offer improper medical expert testimony through his own declaration and his response

1 to UPSF’s statement of facts. See Doutherd UPSF Decl. ¶¶ 10, 30. Plaintiff testifies throughout

2 that his work restrictions were inaccurate or improper and that he should have been afforded other

3 restrictions. For example, plaintiff argues “[n]o one is a better witness to his pain, no expert is

4 needed or even useful in this area.” Pl.’s Resp. UPSF’S Obj. Doutherd Decl. at 1, ECF No. 147.

5 Plaintiff’s point is well-taken in the most immediate sense of his descriptions of his own bodily

6 perceptions. Similarly, he may also competently describe the sensations he felt when working

7 without restrictions, which may be probative of a need for greater work restrictions,

8 accommodations or damages. Logically, lay individuals experiencing pain when performing

9 certain activities can have a reasonable comprehension of what kind of alteration in behavior can

10 avoid further pain.

11 Expert testimony is not required to demonstrate a medical condition’s effect on a

12 major life activity at summary judgment in ADA and FEHA cases. Head v. Glacier Northwest,

13 Inc., 413 F.3d 1053, 1058–59 (9th Cir. 2005). The court can find no authority that what

14 accommodations are necessitated by a disability can only be shown by an expert. See, e.g.,

15 Donelson v. Providence Health & Servs.-Washington, 823 F. Supp. 2d 1179, 1190 (E.D. Wash.

16 2011) (“In the summary judgment context, a court should weigh the risks and alternatives,

17 including possible hardships on the employer, to determine whether a genuine issue of material

18 fact exists as to the reasonableness of the accommodation.” (citation omitted)). Therefore,

19 defendant’s testimony as to his perceptions of pain and reasonable accommodations need not be

20 excluded on the basis that he is not an expert. Defendant’s objections on this basis are

21 OVERRULED.

22 II. BACKGROUND

23 A. Procedural Background

24 Before this case was reassigned to the undersigned, the prior District Judge

25 decided several issues raised by plaintiff. The court is not necessarily bound by a prior order of

26 another judge of this court in the same case, if the prior order resolved fewer than all claims

27 among all parties. Fed. R. Civ. P. 54(b). However, the law of the case doctrine counsels against

28 reopening or revisiting questions once resolved in ongoing litigation. Pyramid Lake Paiute Tribe

1 of Indians v. Hodel, 882 F.2d 364, 369 n.5 (9th Cir. 1989) (citing 18 Charles Alan Wright &

2 Arthur R. Miller, Federal Practice and Procedure § 4478). Plaintiff states he objects to and

3 contests the prior judge’s orders, but he has not filed a motion for reconsideration and does not

4 state a legal basis for overturning them. This court finds that the prior judge’s rulings

5 circumscribe what the court may now consider in ruling on the pending motions. Specifically,

6 because the previous rulings relate to the claims properly before the court, their effect determines

7 the relevance of certain facts plaintiff claims are at issue, as explained below.

8 1. Liberty Mutual’s Motion to Dismiss

9 The prior judge granted a first motion to dismiss brought by Liberty Mutual

10 Insurance Co. (“Liberty Mutual”), ECF No. 8, for failure to state a claim. Order on Liberty

11 Mutual MTD 1, ECF No. 31. Liberty Mutual was UPSF’S workers’ compensation insurer, and

12 the judge found plaintiff’s claims against it were preempted by the exclusive remedy of the state

13 Workers’ Compensation Act (WCA). Order on Liberty Mutual MTD 1 at 10. The judge granted

14 leave to amend, plaintiff filed his First Amended Complaint (“FAC”), which is not verified,

15 ECF No. 33, and Liberty Mutual again moved to dismiss on the same grounds, Liberty Mutual

16 MTD 2, ECF No. 39. In an order resolving the second motion to dismiss and UPSF’S motion to

17 strike, ECF No. 36, the judge dismissed Liberty Mutual from the case with prejudice, confirming

18 his determination that plaintiff’s claims against Liberty Mutual were preempted by the exclusive

19 jurisdiction of the state Workers’ Compensation Appeals Board. March 22, 2019 Order,

20 ECF No. 96.

21 2. UPSF’s Motion to Strike

22 After plaintiff filed his FAC, UPSF filed a motion to strike portions of the FAC

23 that went beyond the grant of leave to amend in the prior judge’s order on Liberty Mutual’s first

24 motion to dismiss. Mot. to Strike, ECF No. 36. Despite the judge’s limited grant of leave to

25 amend “to assert a cause of action against Liberty Mutual that is not barred by the exclusivity

26 rule,” Order on Liberty Mutual MTD 1 at 10, plaintiff added a total of thirty-three paragraphs

27 comprising three to five additional claims against UPSF. UPSF moved to strike the additional

28 material. Mot. to Strike. At the time, the close of fact discovery was less than thirty days away

1 and UPSF had already taken most of its allotted time for plaintiff’s deposition. Id. at 7. The

2 judge struck the additional thirty-three paragraphs of the FAC. March 22, 2019 Order at 7–9. He

3 ordered plaintiff to either move for leave to amend or obtain a stipulation to incorporate the

4 stricken material. Id. at 9.

5 3. Plaintiff’s Motion for Leave to Amend

6 Plaintiff moved for leave to file a second amended complaint containing

7 substantially the same material that had been stricken. Mot. to Am., ECF No. 101. The prior

8 judge denied the motion, finding plaintiff was not diligent in seeking to amend the complaint.

9 Order on Mot. to Am. at 6, ECF No. 122 (citing Johnson v. Mammoth Recreations, Inc., 975 F.2d

10 604, 609 (9th Cir. 1992) (core inquiry is whether moving party acted diligently prior to filing

11 amendment)). The judge found the proposed amendment, adding new facts relating to UPSF’S

12 alleged retaliation between the time of plaintiff’s last day of work in June 2018 and the close of

13 discovery in December 2018, would prejudice UPSF. Id. at 7. The judge held plaintiff’s

14 proposed amendment “essentially asks the Court to allow him to file a new lawsuit long after

15 discovery has closed.” Id.

16 In light of this procedural background, and seeing no basis in law or equity to

17 depart from the previous decisions of the prior judge, this court will not entertain attempts to

18 litigate issues occurring after June 2018. The above-referenced paragraphs of the FAC remain

19 stricken. Facts relating to allegations of ongoing retaliation are not properly before the court and

20 will be disregarded.

21 B. Factual Background

22 The following narrative is drawn from the undisputed facts. To the extent the

23 court cites to plaintiff’s response to statements of undisputed facts without citing underlying

24 evidence, it is to clarify his arguments rather than for the existence of admissible evidence. In

25 other words, where the court cites only his responses to statements of undisputed facts, it is to

26 clarify his arguments only. As noted, this case arises from a motor vehicle accident that occurred

27 in 2015. Plaintiff was driving a truck in the course of his employment for defendant UPSF when

28 he was hit by a car driven by defendant Doris Montesdeoca. Because UPSF’s motion concerns

1 plaintiff’s employment-related claims against UPSF, the court first reviews the history of his

2 employment.

3 1. Plaintiff Employed by UPSF

4 UPSF hired plaintiff as a Pickup and Delivery (“P&D”) driver in 2005. UPSF

5 SUF 1. As a P&D driver, plaintiff’s responsibilities were to pick up, deliver and load freight on a

6 tractor-trailer. UPSF SUF 3. His employment was governed by a Collective Bargaining

7 Agreement (“CBA”) between UPSF and the International Brotherhood of Teamsters (“IBT”).

8 UPSF SUF 5. The CBA sets out the driver route-bidding process, grievance process and

9 disciplinary processes, prohibits favoritism and harassment and sets wages, among other terms of

10 employment. UPSF SUF 6. Plaintiff has read the CBA and is generally familiar with its

11 provisions. UPSF SUF 8.

12 The delivery route assigned a P&D driver depends on the results of a seniority-

13 based bid system, the procedures for which are set out in the CBA. UPSF SUF 9; Vicente Decl.

14 Ex. E, (Doutherd Depo. Exhibits) No. 3 (CBA), ECF No. 126-9. Delivery routes are put up for

15 bid every six months. UPSF SUF 9. Drivers are given priority in selecting the routes they want

16 based on their position on the seniority list. UPSF SUF 9-10. Seniority is generally determined

17 by hire date. UPSF SUF 11. At plaintiff’s first terminal, SCM,2 his seniority date was the date of

18 his original hire in 2005. UPSF SUF 19.

19 In 2009, UPSF reduced the number of delivery routes available at plaintiff’s

20 assigned terminal, SCM. UPSF SUF 12, 19. Plaintiff moved to a different terminal, SAC, in

21 order to “follow the freight.” UPSF SUF 12, 19. Had he not done so, he would have risked being

22 laid off. UPSF SUF 13. When he changed terminals, his seniority date was changed from the

23 date of his hire to the date of the transfer as provided by the CBA and it has remained the later

24 date since. UPSF SUF 14.

25 Three other drivers also “followed the freight” to plaintiff’s new terminal and had

26 their seniority dates changed. UPSF SUF 15. These drivers were 32, 48 and 47 years old when

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2 The names of the SCM and SAC terminals appear to the court to be abbreviations, but the

28 parties do not explain them.

1 their seniority dates were changed. UPSF SUF 16. Plaintiff was born in 1966 and was thus 43

2 years old in 2009 when he transferred to the new facility. UPSF SUF 17. Plaintiff was one of the

3 least senior P&D drivers at the SAC facility.3 UPSF SUF 18. Plaintiff testified that when he was

4 transferred to SAC, “it didn’t matter if they used my new or old seniority date ‘cause I was on the

5 bottom. So it was irrelevant.” UPSF SUF 19. Plaintiff’s age discrimination claim is based on

6 the change in his seniority in 2009. UPSF SUF 46.

7 2. August 27, 2015 Motor Vehicle Accident

8 On August 27, 2015, plaintiff was driving a UPSF Freight-owned truck on his

9 route when defendant Doris Montesdeoca, driving defendant Lucille Smith’s car with Smith in

10 the front passenger seat, collided with his truck. Harmony SUF 1; UPSF SUF 20. Montesdeoca

11 was employed at that time by Harmony as a part-time caregiver to Smith, for at least twenty hours

12 per week. Harmony SUF 5, 6, 9. Plaintiff was driving southbound on Business 80 when he saw

13 Montesdeoca fighting with an unidentified male passenger in the back seat of Smith’s car, with

14 Smith in the front seat as plaintiff passed in a different lane. Doutherd UPSF Decl. ¶ 2. Plaintiff

15 averred

16 [t]hat car caught up with my truck; the passenger in the back seat

of the car pulled the driver’s hair and turned her head around. At

17 this point, the driver suddenly accelerated, spun around and came

toward me head on, driving the wrong way on the freeway. I saw

18 an old woman in the front passenger seat with a look of complete

horror on her face.

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20 Id. The male passenger in the back seat pulled Montesdeoca’s hair immediately prior to the

21 collision. Harmony SUF 3. Plaintiff was unable to avoid hitting Smith’s car. Doutherd UPSF

22 Decl. ¶ 3. Smith’s car came to a stop after hitting plaintiff’s truck. Id. The male assailant in the

23 back seat opened the door and staggered away. Id. His identity remains unknown. Harmony

24 SUF 2. Montesdeoca pled no contest to a DUI charge following the incident. Harmony SUF 4.

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3 The UPSF SUF does not clarify whether plaintiff was one of the least senior drivers at the time

28 of transfer, the time of the accident, or at all relevant times.

1 3. Montesdeoca’s Employment

2 As noted above, at the time of the accident, Montesdeoca was employed by

3 Harmony as a caregiver for Smith, for at least twenty hours per week. Harmony SUF 5. Among

4 Montesdeoca’s duties were driving Smith on local errands. Harmony SUF 6, 9. Smith’s

5 daughter, Debbie Blucher, avers any driving in the course of Montesdeoca’s employment was

6 restricted to the south Sacramento neighborhood of the “Pocket” where Smith lived, “including

7 going to the store, or out to lunch.” Debbie Blucher Decl. ¶ 5, ECF No. 125-5. She states, “I do

8 not know what the purpose of the drive was at the time of the August 27, 2015 accident, but it

9 was further away than their normal outings.” Id. The incident occurred on southbound Business

10 80, as many as twelve miles from Smith’s residence and well outside the “Pocket.”4 Harmony

11 SUF 22.

12 A predecessor-in-interest and home health care company similar to Harmony,

13 Love at Home, had initially hired Montesdeoca. Harmony SUF 8-9. Montesdeoca had worked as

14 a caregiver for Smith for approximately nine months prior to Harmony’s acquisition of Love at

15 Home. Harmony SUF 9. When Harmony acquired Love at Home, its representatives met

16 Smith’s family, who reaffirmed they wanted Montesdeoca as Smith’s caregiver. Harmony SUF

17 10.

18 When Harmony acquired Love at Home, it reviewed Love at Home’s hiring

19 policies to confirm those policies conformed to its own. Harmony SUF 12. Harmony’s practices

20 include a review of an employee’s employment history, criminal background and reference

21 checks. Harmony SUF 11. Harmony reviewed Montesdeoca’s employment file and did not

22 identify any “red flags” in her employment or personal history, including any indication of

23 problematic alcohol use or driving under the influence. Harmony SUF 13. Montesdeoca’s

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4 Harmony’s SUF asserts this is “outside of the geographical area for Montesdeoca’s contracted

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for caregiver services,” but the underlying declaration (Patrick Philbrick Decl. ¶¶ 9–10, ECF No.

26 125-4), does not provide a basis for a firm geographical delineation for Montesdeoca’s services

beyond stating that Montesdeoca’s duties were “caring for Ms. Smith within the guidelines

27 recommended by the family members. Among these included driving Ms. Smith around her

immediate neighborhood only for errands and social purposes, but nothing outside of that.” Id.

28 ¶ 9.

1 employment file showed no negative reports, feedback or disciplinary actions. Harmony SUF 14.

2 Harmony never received any complaints regarding Montesdeoca about prior misconduct, alcohol

3 use or similar incidents. Harmony SUF 16. Montesdeoca did not have a criminal record or other

4 misconduct that would have appeared on a background check at any time until the subject

5 accident occurred. Harmony SUF 17. Smith’s family was unaware of Montesdeoca’s drinking in

6 the presence of Smith, Harmony SUF 15, and there was no alcohol in Smith’s house at the time

7 she was being assisted by Montesdeoca, Id.

8 Harmony had a zero-tolerance policy for employees using alcohol while

9 performing their duties. Harmony SUF 18. Harmony provided this policy verbally and in writing

10 to Montesdeoca during the hiring process. Harmony SUF 20. Upon learning of Montesdeoca’s

11 role in the collision, Harmony terminated her employment. Harmony SUF 23.

12 4. Medical Consequences of the Accident

13 Plaintiff notified his dispatcher immediately after the accident. In response to his

14 dispatcher’s offer to have someone come get him, plaintiff said, “I’m taking Aleve, so right now

15 it’s not critical.” Suppl. Vicente Decl. Ex. B (Suppl. Doutherd Depo. Excerpts) at B11:7-10, ECF

16 No. 146-2.5 Plaintiff took pictures of the damage to the truck’s bumper. UPSF SUF 20. After

17 finishing his shift, plaintiff went to UPSF’S approved workers’ compensation medical provider,

18 U.S. Healthworks, but its offices were closed. Suppl. Doutherd Depo. Excerpts at B11.

19 The following day, plaintiff visited Kaiser’s emergency room. Id. at B13–15.

20 Because he reported his injury as work-related, the emergency room doctor recommended he go

21 to the workers’ compensation doctor, and he was not admitted. Id. Plaintiff “went to Kaiser on

22 [his] own time three different days and filled out paperwork and met with the admissions person

23 that’s in charge of that, and they didn’t have any record of me being there because I didn’t make a

24 co-payment.” Id. at B14:22-B15:2.

25 Plaintiff was suffering from pain in his back, neck, knee and shoulders

26 immediately following the accident. Doutherd UPSF Decl. ¶ 8. He avers he suffered pain “on

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5 Given the court’s evidentiary ruling, this review of the facts disregards plaintiff’s contradictory

28 declaration and relies on his deposition testimony.

1 numerous occasions in the months since the accident. Id. ¶ 11. On September 17, 2015, he went

2 to his first appointment with a medical provider at Sutter Medical Group to begin treatment as

3 part of his workers’ compensation claim. UPSF SUF 21; Suppl. Doutherd Depo. Excerpts at

4 B16. The treating provider, physician’s assistant Rhonda Blankenheim, provided plaintiff with a

5 medical note dated September 17, 2015, specifying a work restriction of “no driving commercial

6 vehicles.” UPSF SUF 21. She also prescribed plaintiff a course of physical therapy. Plaintiff

7 asserts he was given “light duty,” which was in fact quite strenuous, causing him further injury.

8 Doutherd UPSF Decl. ¶ 8. He “was required to perform tough manual labor in the terminal and

9 in the yard.” Pl.’s Resp. UPSF SUF 26. He states “I was in significant pain doing these

10 strenuous [sic] clean up chores and told Jim, Sara, Kurt, Reed, all the dispatchers, I was in

11 significant pain. Jim repeatedly told me just to ‘man up.’” Doutherd UPSF Decl. ¶ 8. Plaintiff

12 provided UPSF with similar medical notes prescribing a sole restriction of “no driving

13 commercial vehicles” on September 23, 2015 and October 22, 2015. UPSF SUF 22. He never

14 provided any note to his employer stating any restriction other than avoiding driving commercial

15 vehicles. UPSF SUF 23. He in fact did not drive commercial vehicles for UPSF between

16 September 17, 2015 and November 5, 2015. UPSF SUF 26.

17 On November 5, 2015, plaintiff provided a medical note to UPSF stating he could

18 return to work without restrictions. UPSF SUF 24. He then returned to work in his prior capacity

19 as a driver. UPSF SUF 25. Thereafter plaintiff avers he

20 asked [his] managers and supervisors, mainly Jim Anderson, to

send me back to the doctor for treatment for the pain in my knee,

21 back, neck and shoulders. […] Rather than allow me to receive

further medical treatment, terminal manager Jim Anderson began a

22 course of harassment and write ups. At no time during this period

was I informed by management of my rights as an injured worker.

23 I was not told the [workers’ compensation] claim was submitted

after the accident or that it was closed in November 2015.

24

25 Doutherd UPSF Decl. ¶ 11. However, plaintiff conceded at his deposition he knew from a

26 workers’ compensation poster in the break room at the terminal he could opt out of treatment by

27 UPSF’S assigned medical providers and see his own doctor. Suppl. Doutherd Depo. Excerpts at

28 B5.

1 Following his provision to UPSF of the medical note stating he could be returned

2 to full duty, plaintiff did not provide UPSF with another medical note indicating a need for work

3 restrictions or accommodations. UPSF SUF 27.6 Plaintiff did not seek treatment for the accident

4 from his own primary care provider. UPSF SUF 28.

5 Plaintiff did not contact UPSF’s workers’ compensation insurer, Liberty Mutual,

6 to request a second opinion on his fitness for return to work. UPSF SUF 31.7 Plaintiff did not

7 request a return to light duty or a restricted work status. UPSF SUF 32. Plaintiff asserts the

8 reason he did not request a return to light duty is that light duty was in fact more strenuous than

9 driving a truck. Pl.’s Resp. UPSF SUF 32.

10 Plaintiff avers in a conclusory fashion UPSF and Liberty Mutual are conspiring to

11 conceal his medical records and obstruct his ability to receive a recovery from other defendants

12 with regard to his motor vehicle claims. Doutherd UPSF Decl. ¶ 39. His declaration does not

13 state a basis of knowledge for this contention and the court gives it no weight.

14 In his complaint, plaintiff alleges the pain of his injuries constituted a protected

15 disability. FAC ¶¶ 29–31. He supports this contention solely with his own testimony and does

16 not provide any other evidence of record. He asserts he was not accommodated for failure to

17 provide true light duty, a reasonable route, and a pallet jack.8 Id. ¶ 30. He disputes UPSF’s fact,

18 that “[i]f a driver does not have access to their own assigned pallet jack, a driver had access to

19 and can use an available pallet jack or borrow one from a customer.” Pl.’s Resp. UPSF SUF 37.

20 He cites the depositions of James Anderson and the deposition of Sarah Cutshaw for his

21 contention this is not true, but the cited deposition transcripts do not support his position. Id.

22 (citing Dove Decl. Ex. A (Anderson Depo. Excerpts) at 58:1-65:25; Dove Decl. Ex. B (Cutshaw

23 Depo. Excerpts) at 60:2-63:20, ECF No. 137). Plaintiff claims to have been denied an assigned

24 pallet jack before January 21, 2015. UPSF SUF 36. He ultimately purchased his own pallet jack

25 6 The UPSF SUF notes plaintiff did not provide a note during the period at issue in the case,

26 which is prior to June 2018, as reflected in the prior district judge’s March 22, 2019 Order and

Order on Mot. to Amend.

27 7 Plaintiff does not dispute this fact but disputes he knew he could seek a second opinion, without

citing to underlying evidence including a relevant portion of his declaration.

28 8 A pallet jack is an assistive device for lifting pallets.

1 for which he was not reimbursed. Doutherd UPSF Decl. ¶ 32. When he was without it, he

2 experienced increased neck, knee and shoulder pain. Id. UPSF ultimately acquired more pallet

3 jacks and provided him one in March 2017. UPSF SUF 41.

4 Plaintiff asserts his truck was deliberately misloaded in retaliation for reporting

5 ADA and workers’ compensation violations. FAC ¶ 42. His dispatcher, Sarah Cutshaw, avers

6 she was the one responsible for allocating freight to drivers based on the variable demands of

7 routing. Cutshaw Decl. ¶ 4, ECF No. 126-2. Plaintiff does not specify who was responsible for

8 misloading his truck in his declaration.

9 Plaintiff asserts he was subject to racial discrimination, because he was called a

10 “monkey, f**, and ni****” by another driver. Pl.’s Resp. UPSF SUF 46. Plaintiff cites to the

11 deposition of dispatcher Sarah Cutshaw, Cutshaw Depo. Excerpts at 54:23–56:12, for this fact.

12 As discussed below, Cutshaw did not recount this incident, but an incident in which Montoya

13 called a third driver a ni**** within earshot of plaintiff. Plaintiff claims racial discrimination by

14 other drivers was ratified by his supervisor, terminal manager Jim Anderson. Id. Plaintiff asserts

15 he submitted a manifesto to Anderson accusing him of racial discrimination, which is now

16 missing from his personnel file. Id. At his deposition, Anderson conceded he received a

17 complaint of racial discrimination through an anonymous hotline at the beginning of his tenure at

18 the terminal but he “would never know who – who any complaints would have been from.”

19 Anderson Depo. Excerpts at 76:2–13. But Anderson later referenced receiving such a manifesto:

20 “Again, I’ll have to go back to the manifesto that he presented that said, yeah, that I was a racist

21 and a bigot and he thought he was being treated differently.” Id. at 84:4–7.

22 Plaintiff alleges UPSF did not accommodate him because it did not provide him

23 with a route that would allow him to make it to medical and physical therapy appointments. FAC

24 ¶ 34; see also Doutherd UPSF Decl. ¶ 33. But he testified at deposition he did not have trouble

25 making it to medical appointments or physical therapy appointments. Suppl. Doutherd Depo.

26 Excerpts at B19–B20.

27 Plaintiff claims that, as an act of retaliation, his truck was not properly repaired,

28 forcing him to drive it with its front bumper dangling dangerously, putting him and the public at

1 risk. FAC ¶ 38; Doutherd UPSF Decl. ¶ 18. UPSF asserts the truck had “mere scratches,”

2 Doutherd Depo. Ex. 15 (photos of truck after accident showing scratches but no detachment of

3 bumper), although it may be the bumper detached only later, after the accident.

4 Plaintiff asserts he complained of the failure to repair the bumper, as well as

5 nonpayment of morning prep time wages, failures to adhere to company policy, and failures to

6 provide a half-hour safety check before shifts to “regulatory bodies” and thus believes he has

7 attained whistleblower status. Doutherd UPSF Decl. ¶ 15. His declaration does not identify

8 when or to whom he complained, and at his deposition he testified he reported these issues to his

9 supervisor and his Union, but not to any governmental agency. As discussed above, UPSF’s

10 objection that the declaration is self-serving is sustained as to this conclusory statement. Plaintiff

11 did file a charge with the California Department of Fair Employment and Housing (“DFEH”) on

12 April 3, 2017, alleging discrimination and retaliation. Id. ¶ 16. He filed a second charge with

13 DFEH dated March 28, 2018. UPSF SUF 45.

14 Plaintiff had a second accident on the job on June 7, 2018. Doutherd Decl. ¶ 35.

15 As discussed above, this fact is irrelevant to the claims at issue in this suit.

16 III. LEGAL STANDARD

17 A court will grant summary judgment “if . . . there is no genuine dispute as to any

18 material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

19 The “threshold inquiry” is whether “there are any genuine factual issues that properly can be

20 resolved only by a finder of fact because they may reasonably be resolved in favor of either

21 party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).

22 The moving party bears the initial burden of showing the district court “that there

23 is an absence of evidence to support the nonmoving party’s case.” Celotex Corp. v. Catrett,

24 477 U.S. 317, 325 (1986). The burden then shifts to the nonmoving party, which “must establish

25 that there is a genuine issue of material fact . . . .” Matsushita Elec. Indus. Co. v. Zenith Radio

26 Corp., 475 U.S. 574, 585 (1986). In carrying their burdens, both parties must “cit[e] to particular

27 parts of materials in the record . . .; or show [] that the materials cited do not establish the absence

28 or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to

1 support the fact.” Fed. R. Civ. P. 56(c)(1); see also Matsushita, 475 U.S. at 586 (“[the

2 nonmoving party] must do more than simply show that there is some metaphysical doubt as to the

3 material facts”). Moreover, “the requirement is that there be no genuine issue of material fact

4 . . . . Only disputes over facts that might affect the outcome of the suit under the governing law

5 will properly preclude the entry of summary judgment.” Anderson, 477 U.S. at 247-48 (emphasis

6 in original).

7 In deciding a motion for summary judgment, the court draws all inferences and

8 views all evidence in the light most favorable to the nonmoving party. Matsushita, 475 U.S. at

9 587-88; Whitman v. Mineta, 541 F.3d 929, 931 (9th Cir. 2008). “Where the record taken as a

10 whole could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine

11 issue for trial.’” Matsushita, 475 U.S. at 587 (quoting First Nat’l Bank of Arizona v. Cities Serv.

12 Co., 391 U.S. 253, 289 (1968)).

13 A court may consider evidence as long as it is “admissible at trial.” Fraser v.

14 Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003). “Admissibility at trial” depends not on the

15 evidence’s form, but on its content. Block v. City of L.A., 253 F.3d 410, 418-19 (9th Cir. 2001)

16 (citing Celotex Corp., 477 U.S. at 324). The party seeking admission of evidence “bears the

17 burden of proof of admissibility.” Pfingston v. Ronan Eng’g Co., 284 F.3d 999, 1004 (9th Cir.

18 2002). If the opposing party objects to the proposed evidence, the party seeking admission must

19 direct the district court to “authenticating documents, deposition testimony bearing on attribution,

20 hearsay exceptions and exemptions, or other evidentiary principles under which the evidence in

21 question could be deemed admissible . . . .” In re Oracle, 627 F.3d at 385-86. However, courts

22 are sometimes “much more lenient” with the affidavits and documents of the party opposing

23 summary judgment. Scharf v. U.S. Atty. Gen., 597 F.2d 1240, 1243 (9th Cir. 1979).

24 The Supreme Court has taken care to note that district courts should act “with

25 caution in granting summary judgment,” and have authority to “deny summary judgment in a case

26 where there is reason to believe the better course would be to proceed to a full trial.” Anderson,

27 477 U.S. at 255. A trial may be necessary “if the judge has doubt as to the wisdom of terminating

28 the case before trial.” Gen. Signal Corp. v. MCI Telecommunications Corp., 66 F.3d 1500, 1507

1 (9th Cir. 1995) (quoting Black v. J.I. Case Co., 22 F.3d 568, 572 (5th Cir. 1994)). This may be

2 the case “even in the absence of a factual dispute.” Rheumatology Diagnostics Lab., Inc v. Aetna,

3 Inc., No. 12-05847, 2015 WL 3826713, at *4 (N.D. Cal. June 19, 2015) (quoting Black, 22 F.3d

4 at 572); accord Lind v. United Parcel Serv., Inc., 254 F.3d 1281, 1285 (11th Cir. 2001).

5 IV. HARMONY’S MOTION

6 Plaintiff’s claim against Harmony is consolidated in a single cause of action styled

7 “Motor Vehicle.” FAC ¶¶ 24-25. However, the language of the allegations against Harmony

8 evince reliance on two entirely separate legal theories: negligent hiring and supervision, and

9 vicarious liability. See id. ¶ 25 (“While driving Ms. Smith, Montesdeoca was acting within the

10 course and scope of her employment with Harmony Home Care, Inc., who is liable for negligent

11 hiring, negligent monitoring and failure to vet or supervise its employee/contractee properly.”).

12 While these separate theories are conflated in the operative complaint, the parties agree both

13 theories are at issue, as clarified at hearing.

14 A. Negligent Hiring and Supervision

15 Under California law, an employer who is negligent in the hiring, training,

16 supervising or retaining of an unfit employee who causes harm to another may be held directly

17 liable for the harm caused by the employee. Delfino v. Agilent Technologies, Inc., 145 Cal. App.

18 4th 790, 815 (2006). Liability can only be imposed on an employer for the acts of an employee

19 under a negligent hiring or supervision theory if the employer “knew or should have known that

20 hiring the employee created a particular risk or hazard and that particular harm materializes.”

21 Doe v. Capital Cities, 50 Cal. App. 4th 1038, 1054 (1996). “Liability results … not because of

22 the relation of the parties, but because the employer antecedently had reason to believe that an

23 undue risk of harm would exist because of the employment…” Phillips v. TLC Plumbing, Inc.,

24 172 Cal. App. 4th 1133, 1140 (2009) (quoting Restatement (Third) of Agency § 213, cmt. d, p.

25 459–460).

26 Here, Harmony introduced evidence showing Montesdeoca’s background and

27 personnel file transferred to it by Love at Home disclosed nothing suggesting a propensity to

28 drink on the job or engage in other dangerous activity. In fact, the file did not contain even a

1 single complaint about Montesdeoca or any prior criminal history. Harmony’s own investigator

2 conducted an independent background check on Montesdeoca in connection with this case. See

3 Kevin Dente Decl. Ex. A, ECF No. 125-3. His investigation yielded nothing, save the incident

4 itself, tending to show a similar investigation, had it been conducted by Harmony at the time

5 Montesdeoca was rehired after the Love at Home acquisition, would not have put Harmony on

6 notice of a risk.

7 In response, plaintiff relies on his own declaration to raise questions about the

8 possibility Montesdeoca’s personnel file was somehow incomplete, or that the background checks

9 at the time of her hiring or rehiring could have been more exhaustive. Pl.’s Harmony SUF, ECF

10 No. 133-1; Doutherd Harmony Decl. ¶ 15, ECF No. 133-2. This declaration is essentially

11 speculative: “For instance, no liquor in Mrs. Smith’s house does not mean she and Doris did not

12 go somewhere that liquor is served or sold. If it is true no prior complaint about misconduct or

13 alcohol was produced, that does not a [sic] guarantee they did not exist.” Doutherd Harmony

14 Decl. ¶ 15. The other portions of the declaration are of a piece with this rank speculation.

15 Plaintiff advances no competent evidence tending to show Harmony was aware of the risk

16 Montesdeoca would drink or drive recklessly on the job.

17 Plaintiff’s declaration does not raise a genuine issue of material fact as to

18 Harmony’s knowledge. It is precisely the kind of raising “metaphysical doubt” the Supreme

19 Court disallowed in Matsushita, 475 U.S. at 586. More is needed here to survive summary

20 judgment.

21 Plaintiff also raises the issue of whether Harmony failed to comply with its own

22 policy of requiring Montesdeoca to carry an insurance policy that would have covered her when

23 driving Smith’s car. Pl.’s Opp’n to Harmony MSJ at 1. This argument is irrelevant to the

24 question of negligent hiring or supervision. Montesdeoca’s possible failure to carry insurance

25 was not the cause, actual or proximate, of the collision on August 27, 2015, and in any event no

26 party has advanced any competent evidence either way. Even if Harmony were negligent in

27 failing to confirm her insurance coverage, the risk engendered by that negligence was not the

28 /////

1 “particular risk or hazard … that materializ[ed],” as required for direct supervisory liability.

2 Capital Cities, 50 Cal. App. 4th at 1054.

3 Because plaintiff has not met his burden of opposing summary judgment on this

4 claim with any competent evidence, no reasonable factfinder could find Harmony knew or should

5 have known Montesdeoca would consume alcohol while driving her client’s car, causing the

6 accident at issue. Harmony’s motion is GRANTED as to plaintiff’s theory of direct liability for

7 Harmony’s negligence.

8 B. Vicarious Liability

9 The more difficult question is whether, under California law, Montesdeoca was

10 acting in the scope of her employment at the time of the crash, making Harmony vicariously

11 liable. If she was, Harmony is responsible for her negligence under the theory of respondeat

12 superior, regardless of whether Harmony itself negligent. Baptist v. Robinson, 143 Cal. App. 4th

13 151, 160 (2006); see also Cal. Civ. Code § 2338. This doctrine imposes liability on an employer

14 for the realization of risks “that may be regarded as typical of or broadly incidental to the

15 enterprise undertaken by the employer.” Farmers Ins. Group v. Cty. of Santa Clara, 11 Cal.4th

16 992, 1009 (1995) (internal quotation marks and citation omitted).

17 Where an employee has substantially deviated from the duties of employment, the

18 employer will not be held liable, as the doctrine is not intended to impose strict liability on

19 employers for all torts of an employee during the working day. Baptist, 143 Cal. App. 4th at 161

20 (citing Farmers¸ 11 Cal. 4th at 1004). However, where “the employee is combining his own

21 business with that of his employer, or attending to both at substantially the same time, no nice

22 inquiry will be made as to which business he was actually engaged in at the time of the injury,

23 unless it clearly appears that neither directly nor indirectly could he have been serving his

24 employer.” Farmers, 11 Cal. 4th at 1004 (citations omitted). “The question of scope of

25 employment is ordinarily one of fact for the jury to determine.” Mary M. v. City of Los Angeles,

26 54 Cal.3d 202, 221 (1991).

27 /////

28 /////

1 Here, Harmony offers the declaration of Smith’s daughter, Debbie Blucher, who

2 testifies:

Ms. Montesdeoca would take my mother out for drives, including

3 going to the store, or out to lunch. However, this driving was

restricted to the “Pocket” area of Sacramento – this was close to my

4 mother’s home, and they never traveled very far. They traveled to

nearby places that my mother knew because it made her happy. I

5 do not know what the purpose of the drive was at the time of the

August 27, 2015 accident, but it was further away than their normal

6 outings.

7

8 Debbie Blucher Decl. ¶ 5. Montesdeoca’s supervisor’s testimony accords with this: “[H]er job

9 duties were caring for Ms. Smith within the guidelines recommended by family members.

10 Among these included driving Ms. Smith around her immediate neighborhood only for errands

11 and social purposes, but nothing outside of that.” Philbrick Decl. ¶ 9.

12 Plaintiff contends the fact Montesdeoca was driving Smith’s car, with Smith in the

13 passenger seat, is sufficient to create a genuine dispute of fact for the jury. Here the court agrees.

14 An employer is not liable for travel to and from the work environment, because “the employee is

15 not ordinarily rendering services to the employer while traveling.” Baptist, 143 Cal. App. 4th at

16 162. But this “coming and going rule” does not apply when the employee is engaged in a “special

17 errand” for the benefit of the employer. Jeewarat v. Warner Bros. Enter., Inc., 177 Cal. App. 4th

18 427, 436 (2009) (citations omitted). In Jeewarat, for instance, employee was engaged in a special

19 errand when he was driving home from the airport in his own car after attending a work-related

20 conference. Id. at 432. The employer is “liable for torts committed by its employee while

21 traveling to accomplish a special errand because the errand benefits the employer.” Tognazzini v.

22 San Luis Coastal Unif. School Dist., 86 Cal. App. 4th 1053, 1057 (2001) (citation omitted).

23 Harmony’s declarations establish the ordinary geographical scope of

24 Montesdeoca’s driving duties. But they do not foreclose the possibility that Smith herself had

25 authority to direct Montesdeoca to undertake a “special errand” outside her normal range. Smith

26 was in the car. And nothing in the record indicates Montesdeoca would have had access to the car

27 for her own purposes outside the scope of Harmony’s business. Because Montesdeoca was

28 driving her client as a passenger in the passenger’s own car, a situation no party asserts would

1 have arisen outside of Montesdeoca’s duties, a reasonable jury could find Montesdeoca was

2 within the scope of her employment at the time of the incident.

3 For these reasons, the court finds there is a genuine issue of material fact as to

4 Harmony’s vicarious liability for its employee Montesdeoca. Harmony’s motion is thus DENIED

5 with respect to this theory incorporated into plaintiff’s claim against Harmony.

6 V. UPSF’S MOTION

7 A. Claim Two: Fraud

8 The gravamen of plaintiff’s second cause of action, brought against UPSF for

9 fraud, is that UPSF fraudulently withheld information from plaintiff about his right to treatment

10 as an injured worker, failed to disclose how it processed workers compensation claims and

11 misrepresented the status of his workers’ compensation claim. FAC ¶¶ 26–28.

12 To succeed on a claim for fraud under California law, plaintiff must prove 1) a

13 misrepresentation (a false representation, concealment, or nondisclosure); 2) defendant’s

14 knowledge of the falsity of the representation; 3) intent to induce reliance; 4) justifiable reliance;

15 and 5) damages. Lazar v. Sup. Ct., 12 Cal. 4th 631, 638 (1996) (citing 5 Witkin, Summary of

16 Cal. Law Torts § 676 (9th ed. 1988)).

17 UPSF asserts all such claims are preempted by the exclusive remedy of the

18 California workers’ compensation system. UPSF Mot. at 6–7. As discussed above, the

19 previously-assigned district judge held that Liberty Mutual’s role in the alleged plot to defraud

20 plaintiff by undermining his right to workers’ compensation was preempted by the WCA. March

21 22, 2019 Order. Plaintiff’s only response to this argument is the assertion that “the pre-emption

22 assertion is a cop out as everyone knows the WCAB [Worker’s Compensation Appeals Board]

23 does not handle or review any type of fraud allegation.” Pl.’s UPSF Opp’n at 2, ECF No. 135.

24 This unsupported assertion is not the law.

25 California’s workers’ compensation benefits system provides an exclusive remedy

26 for workers injured in the course of their employment. Cal. Lab. Code § 3602(a). A suit for the

27 “recovery of compensation, or concerning any right or liability arising out of or incidental thereto

28 . . . shall be instituted before the [Worker’s Compensation Appeals Board (“WCAB”)] and not

1 elsewhere . . . ” Cal. Lab. Code § 5300(a). In determining whether a given claim is barred by

2 exclusivity, courts “initially determine whether the alleged injury falls within the scope of the

3 exclusive remedy provisions. Where the alleged injury is ‘collateral to or derivative of’ an injury

4 compensable by the exclusive remedies of the WCA, a cause of action predicated on that injury

5 may be subject to the exclusivity bar.” Charles J. Vacanti, M.D., Inc. v. State Comp. Ins. Fund.,

6 24 Cal. 4th 800, 811 (2001).

7 Here, plaintiff’s fraud claim is derivative of plaintiff’s collision with Montesdeoca

8 while on the job; the allegations going to the elements of fraud are essentially concerned with the

9 handling of his workers’ compensation claim. No party disputes the workers’ compensation

10 claim arose from an injury at work, therefore any dispute about its handling is derivative. Where

11 a claim is collateral to or derivative of a compensable injury, “then courts consider whether the

12 alleged acts or motives that establish the elements of the cause of action fall outside the risks

13 encompassed within the compensation bargain.” Id. at 811-12.

14 The exception to the WCAB’s jurisdiction is when the actor, by his or her alleged

15 acts or motives, was “no longer acting as an ‘employer’” Id. at 820 (emphasis in original).

16 “[O]nly conduct so extreme and outrageous that the defendant in effect stepped out of its role as

17 an insurer precludes the application of workers’ compensation exclusivity.” Id. (quoting Marsh

18 & McLennan, Inc. v. Sup. Ct., 49 Cal. 3d 1, 11 (1989)) (internal quotation marks omitted). “The

19 compensation bargain cannot encompass conduct, such as sexual and racial discrimination

20 obnoxious to the interests of the state and contrary to public policy and sound morality.”

21 Piscitelli v. Friedenberg, 87 Cal. App. 4th 953, 987 (2001) (internal quotation marks and citation

22 omitted). At the same time, “California courts have invariably barred statutory and tort claims

23 alleging that an insurer unreasonably avoided or delayed payment of benefits even though the

24 insurer committed fraud and other misdeeds in the course of doing so.” Vacanti¸ 24 Cal. 4th at

25 821. “In adjudicating whether a claim falls within the workers’ compensation system, all doubt

26 should be resolved in favor of finding jurisdiction within the workers’ compensation system.”

27 Mitchell v. Scott Wetzel Servs., Inc., 227 Cal. App. 3d 1474, 1480 (1991).

28 /////

1 Here, plaintiff’s allegations under the heading of fraud cut directly to the ordinary

2 process of claims handling with no reference to discrimination. See FAC ¶¶ 26–28. To the extent

3 plaintiff’s facts opposing summary judgment could be construed to show racial or other

4 discrimination as a moving force behind the allegedly deficient handling of his claim, those facts

5 are scant. There is no competent evidence plaintiff was in fact called racial epithets. Pl.’s Resp.

6 UPS SUF 46 (asserting he was called a “ni****” by a fellow driver, but citing only to a

7 deposition transcript recounting an incident in which he overheard the epithet used by one driver

8 against a third.). While plaintiff asserts he took pictures of “monkey, f**, and ni****” written on

9 the windshield of his truck and sent them to Kurt Lauer, a supervisor, his citation to the record

10 reads only as follows: “See Doutherd deposition in this regard”; he does not attach any relevant

11 deposition excerpts or exhibits. Id. He cites to his supervisor James Anderson’s admission at

12 Anderson’s deposition that he received plaintiff’s manifesto claiming discrimination and racism,

13 but this also is not proof of the truth of plaintiff’s allegations. Id. In short, while defendants have

14 put forward no information to negate plaintiff’s assertions, the standard at summary judgment is

15 the existence of evidence sufficient to obtain a judgment from the factfinder.

16 Although a reasonable factfinder could have doubts that plaintiff received

17 adequate treatment for his injury itself in the workers’ compensation system, nothing in the facts

18 before the court would support a finding that UPSF “stepped out of its role” as plaintiff’s

19 employer in handling his workers’ compensation claim. One of the risks of the compensation

20 bargain is the risk of pretextual or skewed evaluation by compensation evaluators and providers;

21 but it is not for the court to second guess the compensation bargain itself if the conduct alleged

22 falls within it. Because there is insufficient evidence to support the alleged fraud violated

23 California’s fundamental policies against discrimination, the fraud claim does not fall outside the

24 exclusive jurisdiction of the WCAB.

25 For all these reasons, the exclusivity of California’s workers’ compensation

26 remedy bars plaintiff’s fraud claim. UPSF’s motion for summary judgment is GRANTED on this

27 claim.

28 /////

1 B. Claim Three: Failure to Accommodate

2 Plaintiff’s third cause of action is for UPSF’s alleged failure to accommodate his

3 disability. See FAC ¶¶ 29-36. He asserts UPSF failed to provide the reasonable accommodations

4 of light duty, a reasonable route and a pallet jack after the accident. Id. ¶ 30. Plaintiff cites both

5 the Americans with Disabilities Act of 1990 (“ADA”) and California’s Fair Employment and

6 Housing Act (“FEHA”), but his complaint identifies only the ADA as the operative theory. See

7 id. ¶ 32 (“Defendant employer’s failure to make reasonable accommodation to Plaintiff

8 constitutes a violation of Section 102(b)(5)(A) of the ADA, 42 U.S.C. § 12112(b)(5)(A).”). That

9 said, California courts have relied on federal interpretations of Title VII to interpret analogous

10 provisions of FEHA, which prohibits unlawful discrimination. Bradley v. Harcourt, Brace &

11 Co., 104 F.3d 267, 270 (9th Cir. 1996) (citing Clark v. Claremont Univ. Ctr. & Graduate Sch., 6

12 Cal. App. 4th 639, 662 (1992)). Insofar as plaintiff’s complaint could be construed to make

13 claims under FEHA, the analysis under FEHA is relevant to his ADA claim as well.

14 Furthermore, California precedent analyzing the FEHA claim is persuasive here.

15 To prove his case for failure to accommodate under the ADA, plaintiff must show

16 “(1) he is disabled within the meaning of the ADA; (2) he is a qualified individual able to perform

17 the essential functions of the job with reasonable accommodation; and (3) he suffered an adverse

18 employment action because of his disability.” Allen v. Pac. Bell, 348 F.3d 1113, 1114 (9th Cir.

19 2003).

20 FEHA defines disability more broadly than the ADA. See Jensen v. Wells Fargo

21 Bank, 85 Cal. App. 4th 245, 257–58 (2000). Because of this, a condition which does not rise to

22 the level of a disability under FEHA will not suffice for the ADA. Cf. Cripe v. City of San Jose,

23 261 F. 3d 877, 895 (9th Cir. 2001) (noting definition of disability is broader under FEHA such

24 that failure to meet FEHA standard is a fortiori a failure to meet ADA standard). A physical

25 disability under FEHA must limit a major life activity. Arteaga v. Brink’s, Inc., 163 Cal. App.

26 4th 327, 345 (2008).

27 An employer cannot be liable for failure to accommodate a disability of which it

28 had no knowledge. Ludovico v. Kaiser Permanente, 57 F. Supp. 3d 1176, 1198–99 (N.D. Cal.

1 2014) (citing Prilliman v. United Air Lines, Inc., 53 Cal. App. 4th 935, 954 (1997)). “While

2 knowledge of the disability can be inferred from the circumstances, knowledge will only be

3 imputed to the employer when the fact of disability is the only reasonable interpretation of the

4 known facts. Vague or conclusory statements revealing an unspecified incapacity are not

5 sufficient to put an employer on notice of its obligations” under FEHA and the ADA. Avila v.

6 Continental Airlines, Inc., 165 Cal. App. 4th 1237, 1248 (2008) (citation omitted).

7 Plaintiff asserts he was not accommodated because “light duty” in fact did not

8 exist. Doutherd UPSF Decl. ¶¶ 8-9. He does not dispute he provided a medical note to UPSF on

9 September 17, 2015, which restricted him only from driving commercial vehicles. Pl.’s Resp.

10 UPSF SUF 23. UPSF accommodated that restriction by keeping him from driving commercial

11 vehicles during that time. Id. ¶ 26. Plaintiff asserts what he understood would be “light duty”

12 was in fact strenuous cleaning labor in the terminal and he told “Jim [Anderson], Sara [Cutshaw],

13 Reed [sic, Reid Roy], all the dispatcher [sic]” he was in significant pain. Doutherd UPSF Decl. ¶

14 8. He asserts Jim Anderson, his supervisor, told him to “man up.” Id. Plaintiff asserts he “asked

15 his managers and supervisors, mainly Jim Anderson, to send me back to the doctor for treatment

16 for the pain in my knee, back, neck and shoulders.” Id. ¶ 11. Plaintiff has not identified any

17 specific instance in which anyone at USPF told him his accommodation was “light duty.”

18 “An employee cannot demand clairvoyance of his employer.” King v. United

19 Parcel Service, Inc., 152 Cal. App. 4th 426, 443 (2007). Employers provided medical

20 information stating the employee is fit to work without restrictions are entitled to rely on that

21 information. Arteaga, 163 Cal. App. 4th at 347. From September to November of 2015, UPSF

22 accommodated the work restriction listed in the medical documentation plaintiff provided.

23 Plaintiff requested to be sent back to workers’ compensation medical providers, but he offers no

24 evidence he asked for greater restriction in his duties. It appears from the record UPSF fully

25 accommodated plaintiff between September to November of 2015.

26 On November 5, 2015, plaintiff provided another medical note to UPSF indicating

27 he could return to work without restrictions. UPSF SUF 24. He then began performing his

28 ordinary job as a truck driver. UPSF SUF 25. At hearing, plaintiff asserted his request for a

1 pallet jack was a request for accommodation. Nothing in the record shows that he ever

2 communicated the pallet jack’s purpose of accommodating his claimed disability to his employer.

3 Furthermore, he agrees his contention is that he was denied an assigned pallet jack before January

4 21, 2015. See Pl.’s Resp. UPSF SUF 36 (“Undisputed, as they had been discriminating against

5 him for a long time.”).

6 Defendant says plaintiff did not provide a medical note to his supervisors

7 indicating a need for an accommodation or work restriction after November 2015. UPSF SUF 27.

8 Plaintiff purports to dispute this fact, citing his own declaration, and saying only: “Disputed, as he

9 could not obtain a medical note, but he needed one.” Pl.’s Resp. UPSF SUF 27. Despite

10 claiming “[h]e had been told and believed he could only obtain treatment for those injuries from

11 [UPSF’s workers’ comp provider],” id. 28, plaintiff conceded at his deposition he knew he could

12 seek treatment outside the workers’ compensation system from a poster in the break room at the

13 terminal. Suppl. Doutherd Depo. Excerpts at B05. No evidence shows he raised shoulder, knee

14 or neck pain with his own doctor, that he sought further treatment from Sutter Medical Group or

15 contacted Liberty Mutual for a second opinion on his fitness to return to work. Pl.’s Resp. UPSF

16 SUF 29-31.

17 Under FEHA, pain alone may constitute a disability, but only if it “interfere[s]

18 with the performance of the job.” Arteaga, 163 Cal. App. at 347; see also Leatherby v. C & H

19 Sugar Co., Inc., 911 F. Supp. 2d 872, 880 (N.D. Cal. 2012) (“Although pain can be a disability

20 under FEHA, it must actually limit the employee’s ability to work”). In a few cases, plaintiffs

21 who experienced pain but were still able to discharge the functions of their job have been held to

22 be disabled. See Huck v. Kone, Inc., No. 10-1845, 2011 WL 6294466, at *5 (N.D. Cal. Dec. 15,

23 2011) (physician provided note asserting unspecified pain and reduced arm mobility were work-

24 related); see also Glow v. Union Pac. R.R. Co., 652 F. Supp. 2d 1135, 1146 (E.D. Cal. 2009)

25 (plaintiff tendered declaration and evaluation of his treating physician). In those cases, in contrast

26 to this one, plaintiffs submitted declarations and evaluations from their doctors specifically

27 advising them to stop working into evidence.

28 /////

1 In other cases, plaintiffs who suffered pain but were able to perform their duties

2 were not disabled. See, e.g., Keshe v. CVS Pharmacy Inc., No. 14-08418, 2016 WL 1367702, at

3 *9 (C.D. Cal. April 5, 2016) (citing Arteaga, 163 Cal. App.4th at 345; Leatherby, 911 F. Supp. 2d

4 at 880; and Boudreaux v. J.B. Hunt Transp., Inc., No. 14-00720, 2015 WL 4730340, at *2 (E.D.

5 Cal. Aug. 10, 2015)). In these cases, plaintiffs were able to perform their job duties and put

6 forward no evidence of a medical recommendation to alter those duties.

7 This case is analogous to the latter strain of cases noted in Keshe. Plaintiff asserts

8 he was disabled on an ongoing basis, yet he does not contest he was able to complete the work

9 required during both the September to November 2015 period and the subsequent period. Nor

10 does he advance any medical evidence whatsoever to support his allegation that his treating

11 medical providers got his diagnosis wrong. As discussed above, he relies on his own declaration

12 in this regard. While the declaration is admissible as discussed above, his own testimony is

13 insufficient to create a triable issue of whether pain that did not appear to the employer to

14 interfere with his job duties could constitute a disability. The absence of any medical expert

15 testimony, medical records or any other such evidence is notable. “Reliance on medical opinion

16 and an individualized assessment is especially important when the symptoms are subjective and

17 the disease is of a type that varies widely between people.” Leatherby, 911 F. Supp. 2d at 880

18 (citation omitted). This makes this case more similar to Keshe than Huck. Because there is no

19 evidence beyond plaintiff’s conclusory say-so that he should have been afforded greater

20 restrictions, there is no evidence plaintiff was disabled after November 2015.

21 For the foregoing reasons, the court GRANTS defendant’s motion as to plaintiff’s

22 claim for failure to accommodate.

23 C. Claim Four: Discrimination, Harassment and Retaliation

24 Plaintiff’s fourth cause of action against UPSF is styled “Employment

25 Discrimination by UPSF Freight/Harassment and Retaliation.” FAC ¶¶ 37–42. Plaintiff alleges

26 UPSF retaliated against him “based on race, whistleblower activities, and making a civil rights

27 claim. He suffered retaliation for exercising his rights, reporting a workplace injury, making a

28 Worker’s [sic] Compensation claim and for having had an accident in a company vehicle.” Id.

1 ¶ 38. Plaintiff cites the ADA, FEHA and 42 U.S.C. § 2000e. Id. UPSF moves for summary

2 judgment on the retaliation claims, harassment claims, and disability discrimination claim, but has

3 not moved for summary judgment on any race discrimination claim. See UPSF Mot. 15–23.

4 Discrimination, harassment and retaliation are discrete causes of action. Race

5 discrimination, retaliation and harassment claims may arise under Title VII (42 U.S.C. § 2000e)

6 or FEHA. Disability discrimination, retaliation and harassment claims may arise under either

7 FEHA or the ADA.

8 1. Disability Discrimination

9 Under FEHA, plaintiff must first establish a prima facie case by showing (1) he

10 was disabled; (2) he was qualified to do the essential functions of his job with or without

11 reasonable accommodations; and (3) he suffered an adverse employment action because of the

12 disability or perceived disability. Wills v. Sup. Ct., 195 Cal. App. 4th 143, 159–60 (2011). The

13 elements are substantially similar under the ADA. Hutton v. Elf Atochem N. Am., Inc., 273 F.3d

14 884, 891 (9th Cir. 2001). Circumstantial evidence is sufficient to show a discriminatory motive.

15 Harris v. City of Santa Monica, 56 Cal. 4th 203, 232 (2013).

16 As discussed above, plaintiff has only advanced evidence of a disability between

17 September and November 2015. Following that time, he vociferously requested to be sent back

18 to a doctor to no avail. All the while, he continued to discharge his duties without seeking any

19 independent medical evaluation. While the court assigns some weight to his testimony of pain, it

20 does not, alone, suffice to prove he had a disability at the critical times. Plaintiff has failed to

21 meet his burden and the court GRANTS the motion as to this claim.

22 2. Retaliation

23 a. Disability Retaliation

24 Also as discussed above, plaintiff was accommodated as prescribed by the medical

25 note he provided between September and November 2015, and following that time, there is no

26 evidence he was disabled. However, under the ADA, an employee’s request for accommodation

27 may constitute a protected activity if the employee had a good faith belief he or she was

28 “disabled” and therefore entitled to accommodation. Coons v. Sec. of the U.S. Dept. of Treas.,

1 383 F.3d 879, 887 (9th Cir. 2004). Requests for disability accommodation are also protected

2 from retaliation under FEHA. Moore v. Regents of University of California, 248 Cal. App. 4th

3 216, 245–46 (2016) (citing Cal. Gov’t Code § 12940(m)(2)). Disability retaliation claims under

4 the ADA are analyzed using the same burden-shifting framework as employed in racial retaliation

5 claims. Brown v. City of Tuscon, 336 F.3d 1181, 1186 (9th Cir. 2003) (approving use of Title VII

6 burden-shifting framework articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792

7 (1973) for ADA claims). Under both, the employee must first establish a prima facie case of

8 retaliation by showing (1) he engaged in an activity protected by statute; (2) he suffered an

9 adverse employment action; and (3) there was a causal link between the two. Pardi v. Kaiser

10 Found. Hosps., 389 F.3d 840, 849 (9th Cir. 2004). If the employee can make a prima facie case

11 that his protected activity was the basis of an adverse employment decision, the burden shifts to

12 the employer to present legitimate reasons for the adverse employment action. Coons, 383 F.3d

13 at 887 (citations omitted). If the employer carries this burden, the plaintiff must demonstrate a

14 genuine issue of material fact as to whether the reason advanced by the employer is a pretext to

15 advance beyond the summary judgment stage. Id. (citation omitted).

16 When plaintiff furnished his supervisors with medical notes restricting his ability

17 to drive commercial vehicles, he engaged in a protected act under at least the ADA. While

18 disputed, plaintiff’s assertion he is not currently employed by UPSF is supported by his testimony

19 that he is “not paid a salary and ha[s] not received any pay or back pay at all,” but cannot receive

20 unemployment because, to the Employment Development Department, he appears to be

21 employed by UPSF. Doutherd UPSF Decl. ¶ 20.

22 Plaintiff has failed to show any evidence, circumstantial or direct, however, to

23 meet his burden that his requests for accommodation were the cause of any adverse action. Even

24 assuming he requested accommodation for his pain, which as discussed above is not a legally

25 protected disability in his case, there is no evidence of a causal connection. The court GRANTS

26 the motion as to disability retaliation claims.

27 /////

28 /////

1 b. Racial Retaliation

2 Employers may not retaliate against employees who have “opposed any practice

3 made an unlawful employment practice” by Title VII. 42 U.S.C. § 2000e–3(a). “The elements of

4 a prima facie case of retaliation [under Title VII] are, (1) the employee engaged in a protected

5 activity, (2) she suffered an adverse employment action, and (3) there was a causal link between

6 the protected activity and the adverse employment action.” Davis v. Team Elec. Co., 520 F.3d

7 1080, 1093–94 (9th Cir. 2008) (citation omitted). The employer’s retaliatory motive must be a

8 “but-for” cause of the adverse employment action, not just a motivating factor. Univ. of Tex. Sw.

9 Med. Ctr. v. Nassar, 570 U.S. 338, 360 (2013).

10 Here, there is insufficient evidence of causation to find a retaliatory motive was a

11 “but-for” cause. An employee need only reasonably believe that the employer has engaged in an

12 unlawful employment practice when reporting it in order to claim protection from retaliation

13 under Title VII. EEOC v. Crown Zellerbach Corp., 720 F.2d 1008, 1013 (9th Cir. 1983) (letter

14 protesting unspecified racism and discrimination in employer’s practices is protected opposition

15 activity). Although a close reading of the deposition of Jim Anderson reveals he did in fact

16 receive a “manifesto” in which he was accused of race discrimination, it is entirely vague as to

17 time and unclear to what events the manifesto referred. Anderson Depo. Excerpts at 83–84. In

18 plaintiff’s FEHA charges, he neither mentions his race nor any incident of racial discrimination

19 against another. Doutherd Depo. Exs. 17–20, ECF No. 126–9.

20 Even assuming plaintiff engaged in protected reporting of an unlawful practice

21 under Title VII, there is little evidence of adverse action that remains at issue in the suit, as

22 discussed above, and plaintiff himself contends the retaliation was the result of his reporting ADA

23 and workers’ compensation violations. See FAC ¶ 42. Therefore, there is no evidence that

24 reporting or complaining of any racial discrimination from which a reasonable jury could find a

25 “but-for” cause of any adverse action. On this record, the motion must be GRANTED as to this

26 theory.

27 /////

28 /////

1 c. Harassment

2 i. Racial Harassment

3 It is unlawful under Title VII to create or maintain a racially hostile work

4 environment. Reynaga v. Roseburg Forest Prods., 847 F.3d 678, 686 (9th Cir. 2017). To

5 establish a prima facie case of a racially hostile work environment, plaintiff must show (1) he was

6 subjected to verbal or physical conduct because of his race, (2) the conduct was unwelcome, and

7 (3) the conduct was sufficiently severe or pervasive to alter the conditions of his employment and

8 create a an abusive working environment. Manatt v. Bank of Am., N.A., 339 F.3d 792, 798 (9th

9 Cir. 2003). “When the workplace is permeated with discriminatory intimidation, ridicule, and

10 insult, that is sufficiently severe or pervasive to alter the conditions of the victim’s employment

11 and create an abusive working environment, Title VII is violated.” Harris v. Forklift Sys., Inc.

12 510 U.S. 17, 21 (1993). Causing the employee to take offense based on an isolated comment is

13 not sufficient to create actionable harassment under Title VII. Id. at 22. However, if the hostile

14 conduct “pollutes the victim’s workplace, making it more difficult for [him] to do [his] job, to

15 take pride in [his] work, and to desire to stay on in [his] position,” it is sufficiently severe to be

16 actionable. Steiner v. Showboat Operating Co., 25 F.3d 1459, 1463 (9th Cir. 1994).

17 Courts make this determination taking account of the totality of the circumstances.

18 Nichols v. Azteca Rest. Enterprises, 256 F.3d 864, 872 (9th Cir. 2001). Discriminatory conduct

19 must be both subjectively and objectively hostile. Id. In evaluating whether conduct is

20 objectively hostile, the factors to be considered include the “frequency of discriminatory conduct;

21 its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and

22 whether it unreasonably interferes with an employee’s work performance.” Id. (citation omitted).

23 An employer may be held liable either for creating a hostile work environment vicariously

24 through the acts of a supervisory employee, or through negligently failing to correct or prevent

25 discriminatory conduct by an employee. McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1119 (9th

26 Cir. 2004).

27 As with plaintiff’s fraud claim as discussed above, plaintiff’s assertions of racist

28 behavior in the workplace do not match the evidentiary record. In his response to UPSF’s

1 statement of undisputed facts, plaintiff describes a situation in which a fellow employee, Sam

2 Montoya “use[d] the N word to and about [plaintiff] and others in [plaintiff]’s presence” and

3 performed acts “such as writing ‘monkey, f** and N….r’ on [plaintiff’s] assigned tractor

4 windshield, and banana peels on his access step.” Pl.’s Resp. UPSF SUF 46. But his citation to

5 evidence for these occurrences consists of dispatcher Sarah Cutshaw’s recounting an incident in

6 which managerial employees, including Jim Anderson, had to discipline Montoya for calling a

7 third employee, James Franklin, a “ni****” in plaintiff’s presence. See Cutshaw Depo. Excerpts

8 at 54:23–57:17. This testimony does not serve as evidence plaintiff himself was called the

9 epithet. While a racially hostile work environment may arise from the use of slurs in the

10 workplace even if plaintiff was not targeted, McGinest, 360 F.3d at 1117, there is no competent

11 evidence in the record here beyond this deposition transcript. Despite plaintiff’s claim he took

12 pictures of racially insulting graffiti on his truck and sent them to Kurt Lauer, a supervisory

13 employee, UPSF SUF 70; Pl.’s Resp. UPSF SUF 46, there is no evidence of the photos in the

14 record. As noted above, Jim Anderson did concede in his deposition that he had received a

15 “manifesto” from plaintiff accusing him of discrimination, but the contents of the manifesto and

16 evidence going to their truth also are missing from the record.

17 Critically, despite plaintiff’s arguments in his papers, his sworn declaration is

18 nearly devoid of these allegations. Legal memoranda and argument are not evidence that can be

19 assigned any weight in support of plaintiff’s position. Fed R. Civ. P. 56(c)(1); see also British

20 Airways Bd. v. Boeing Co., 585 F.2d 946, 952 (9th Cir. 1978). Because plaintiff is necessarily a

21 percipient witness to these alleged acts of discrimination, his own testimony would be competent

22 to raise an issue of fact here, but it is notably absent. See Singh, 491 F.3d at 1024 (discussing

23 presumption of unfavorability arising from party’s withholding probative evidence in his

24 possession and control).

25 Plaintiff appears to assert his employment file, which would have contained his

26 report of harassment including photos of his vandalized truck, has been tampered with or altered,

27 in representing, “No manager at UPSF admitted to knowing what happened to plaintiff’s reports

28 of racial harassment.” Pl.’s Resp. UPSF SUF 46. But to the extent the court could possibly

1 interpret this as a claim UPSF engaged in evidence spoliation, it must fail, as plaintiff has the

2 burden of proving the elements of spoliation, and he advances no further argument, let alone

3 evidence, on that point. Reinsdorf v. Skechers U.S.A., Inc., 296 F.R.D. 604, 626 (C.D. Cal. 2013).

4 ii. Disability Harassment

5 The Ninth Circuit has not expressly held hostile work environment claims are

6 actionable under the ADA, but also has not foreclosed the possibility. See Wynes v. Kaiser

7 Permanente Hosps., 936 F. Supp. 2d 1171, 1185 (E.D. Cal. 2013) (discussing Brown v. City of

8 Tuscon, 336 F.3d 1181, 1190 (9th Cir. 2003)). In Wynes, another judge of this court assumed for

9 purposes of a motion for summary judgment that such a claim is cognizable and analyzed the

10 claim under the elements of the Title VII hostile work environment standard articulated by the

11 Third Circuit. Id. (citing Walton v. v. Mental Health Ass’n, 168 F.3d 661, 667 (3d Cir. 1999)).

12 This court does the same. The elements of an ADA harassment claim require plaintiff to

13 demonstrate (1) he is a qualified individual with a disability; (2) he suffered from unwelcome

14 harassment; (3) the harassment was based on his disability or a request for accommodations;

15 (4) the harassment was sufficiently severe or pervasive to alter the conditions of his employment

16 and to create an abusive working environment; and (5) defendants knew or should have known of

17 the harassment and failed to take prompt remedial action. Id.

18 As discussed above, plaintiff has not advanced any evidence beyond his own

19 assertion he suffered pain that he was disabled after November of 2015. Something more is

20 needed to demonstrate he was a qualified individual with a disability. Because one would need to

21 be disabled to be discriminated against as such, the court GRANTS UPSF’s motion as to this

22 claim.

23 3. Claim Five: Violation of ADEA

24 Plaintiff bases his claim for a violation of the Age Discrimination in Employment

25 Act (“ADEA”) on “being denied the benefits of seniority in his position.” See FAC ¶ 44. The

26 ADEA requires a person alleging discrimination on the basis of age to file a charge with the

27 Equal Employment Opportunity Commission (“EEOC”) within 180 days of the allegedly

28 discriminatory act, 29 U.S.C. § 626(d), or if the state in which the discrimination has occurred has

1 its own age discrimination law and enforcement agency, as does California, the claimant must file

2 the charge within 300 days of the allegedly discriminatory act. Sanchez v. Pac. Powder Co., 147

3 F.3d 1097, 1099 (9th Cir. 1998); Josephs v. Pac. Bell, 443 F.3d 1050, 1054 (9th Cir. 2006). The

4 timely filing of a charge of discrimination with the EEOC is not jurisdictional, but is a

5 requirement like a statute of limitations that is subject to doctrines including waiver, estoppel and

6 equitable tolling. Zipes v. TransWorld Airlines, Inc., 455 U.S. 385, 393 (1982). Plaintiff makes

7 no argument and advances no facts supporting the application of these equitable doctrines.

8 Plaintiff’s seniority status changed in 2009. UPSF SUF 46. He filed his EEOC

9 charge alleging age discrimination on March 30, 2017. UPSF SUF 44. Plaintiff claims the

10 change in seniority was part of a continuing violation because he is “presently and currently being

11 discriminated against because of his race, age, whistleblower status, having made a complaint

12 and/or his disability.” UPSF Opp’n at 3. In responding to UPSF’s fact that his age

13 discrimination claim is based on the change in his seniority in 2009, plaintiff responds

14 “Undisputed that was a part of his age discrimination claim, but disputed the employer has

15 responded to the racial discrimination claim, leaving that complaint at issue.” Pl.’s Resp. UPSF

16 SUF 46 (emphases in original). Plaintiff may not invoke the continuing violations doctrine by

17 simply conflating all events that followed his change in seniority. Unlike Title VII, ADEA

18 discrimination claims require that the plaintiff’s age is the “but for” cause of the adverse

19 employment action complained of; the ADEA does not authorize “mixed motive” claims, which

20 are possible as discrimination claims under Title VII. Gross v. FBL Fin. Servs., Inc., 557 U.S.

21 167, 175 (2009). Again, plaintiff alleges only his change in seniority was motivated by age alone.

22 FAC ¶ 44. To the extent plaintiff alleges events that followed were motivated by factors other

23 than age such as race, they would not be actionable as an ADEA violation in the first place. The

24 change in seniority is the only discrete discriminatory act of age discrimination at issue.

25 “[D]iscrete discriminatory acts are not actionable if time barred, even when they

26 are related to acts alleged in timely filed charges. Each discrete discriminatory act starts a new

27 clock for filing charges alleging that act.” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101,

28 113 (2002). Because plaintiff’s change in seniority was the sole discrete act he alleges was age-

1 motivated, it is untimely, as the clock began to run in 2009. This puts the EEOC filing in 2017

2 far beyond the 300 days during which a filing with the EEOC was required. See Sanchez, 147

3 F.3d at 1099.

4 UPSF’s motion is GRANTED as to plaintiff’s ADEA cause of action.

5 4. Claim Seven: “Violation of State Statutes by UPS Freight”

6 Plaintiff’s seventh claim is styled “Violation of State Statutes by UPS Freight.”

7 The majority of this claim previously has been struck. March 22, 2019 Order at 7–9. The

8 remaining portion consists of a portion of a paragraph alleging wage and hour violations, and a

9 claim based on OSHA.

10 a. Wage and Hour

11 In what remains of plaintiff’s pleading, he alleges UPSF harmed plaintiff “by its

12 violation of the California Labor Code and Wage and Hour laws by overtime assignments

13 unfairly scheduled; overtime forced upon him when he is injured; requiring him to work while

14 injured, and forcing his return to full duty before he was healed[.]” FAC ¶ 77. The California

15 wage and hour statements, and their implementing Industrial Welfare Commission regulations,

16 known as “wage orders,” specify a range of possible violations, each with discrete elements.

17 Here, the pleading is so uncertain the court is unable to determine what legal theory plaintiff is

18 relying on. “Simply put, summary judgment is not a procedural second chance to flesh out

19 inadequate pleadings.” Wasco Prods., Inc. v. Southwall Technologies, Inc., 435 F.3d 989, 992

20 (9th Cir. 2006) (citation omitted). The court has no obligation to do plaintiff’s work for him. To

21 the extent plaintiff alleges a violation stemming from overtime, plaintiff’s concession that he was

22 always paid 1.5 times his regular rate for any overtime is fatal. UPSF SUF 42–43. Defendant’s

23 motion is GRANTED as to any wage and hour claim.

24 b. OSHA

25 “Plaintiff alleges his employer has harmed him by its violation of OSHA

26 regulations and put him at risk for injury.” FAC ¶ 78. There is no private right of action for

27 OSHA violations. 29 U.S.C. § 653(b)(4) (“[n]othing in this chapter shall be construed to …

28 enlarge or diminish or affect in any other manner the common law or statutory rights, duties, or

1 liabilities of employers and employees.”); see also Crane v. Conoco, Inc., 41 F.3d 547, 553 (9th

2 Cir. 1994) (noting no private right of action under OSHA). Plaintiff’s purported private claim for

3 OSHA violations is barred as a matter of law.

4 VI. CONCLUSION

5 For the foregoing reasons, the court GRANTS Harmony Home Health Care’s

6 motion as to supervisory liability and DENIES it as to vicarious liability. The court GRANTS

7 UPSF’s motion in full. Because UPSF did not move for summary judgment on a Title VII race

8 discrimination claim, that claim survives.

9 The court sets a final pretrial conference for December 11, 2020 at 10:00 a.m.,

10 with a joint pretrial statement in compliance with E.D. Local Rule 281 due three weeks prior. If

11 the parties jointly agree to referral to a court-convened settlement conference with another judge

12 of the court before the pretrial conference, they may request it now, or as soon as possible after

13 receiving this order.

14 IT IS SO ORDERED

15 DATED: October 13, 2020.

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