Filed 5/25/16 Darrington v. United Parcel Service CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
DIALLO DARRINGTON, D067595
Plaintiff and Appellant,
v. (Super. Ct. No. 37-2013-00029354-CU-OE-CTL) UNITED PARCEL SERVICE,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of San Diego County, Katherine
A. Bacal, Judge. Affirmed.
Bellatrix and Alicia Irene Dearn, Ross Matthew Poole, Melissa N. Engle for
Plaintiff and Appellant.
Wilson Turner Kosmo and Claudette G. Wilson, Michael S. Kalt, Daniel Gunning
for Defendant and Respondent.
Diallo Darrington appeals a summary judgment in favor of his former employer
United Parcel Service (UPS) on his complaint for violation of Labor Code section
1102.5, wrongful termination in violation of public policy, disability discrimination, failure to accommodate his disability, racial discrimination, retaliation, and hostile work
environment harassment. On appeal, Darrington challenges the court's ruling on all
causes of action except his Labor Code section 1102.5 and hostile work environment
harassment claims. He argues he raised triable issues of fact, including as to whether he
had a disability, whether he suffered discrimination based on his disability and race,
whether UPS failed to provide him with a disability accommodation, whether UPS's
proffered reason for his termination was merely a pretext, whether UPS terminated him in
retaliation for requesting and enforcing his right to an accommodation, and whether UPS
wrongfully terminated his employment. We conclude Darrington has not raised triable
issues of fact sufficient to defeat summary judgment and, accordingly, affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In 2004, UPS hired Darrington as a preloader responsible for loading packages
onto trucks for delivery. Starting in 2006, Darrington also occasionally worked as a
"cover driver," which meant that he would fill in as a package car driver when there were
not enough drivers available or there was an overflow of volume. On Friday of each
week, UPS posted a list of employees selected to serve as cover drivers, based on
seniority, for the following week. If Darrington was selected as a cover driver, he would
perform those duties instead of his preload duties and his preload supervisor would be
notified of his absence. If he was not identified as a cover driver, Darrington was
required to report to his normal preload duties.
In July 2011, while working his preload duties, Darrington injured his back and
wrist when boxes fell on him. UPS's safety director, Paul Baker, informed Darrington
2 that James Kenny, a preload supervisor, would attempt to convince Darrington to not see
a doctor. Kenny later told Darrington to go home and rest and if Darrington did not feel
better the next day, Kenny would take him to the doctor.
The next day, Darrington reported to work and informed Kenny that he was still in
pain and needed to see a doctor. At that point, Kenny tried to convince Darrington not to
go to the doctor because it would cost UPS $12,000 if he did so. Darrington went home.
After a weekend, Darrington again returned to work and requested to see a doctor. This
time, Kenny stated, "UPS is going to come after you if you do this." Kenny ultimately
took Darrington to see a doctor. The doctor examined Darrington and released him to
return to full duty without restrictions that day.
When Darrington returned to work, he informed his supervisor that he was still in
pain and was having difficulty grabbing boxes. The supervisor had other preloaders help
Darrington so that he could keep pace. Darrington pushed to become a "small sorter,"
which he had signed up for approximately one year earlier. The small sorter position,
which required scanning and sorting small packages, was awarded based on seniority and
Darrington was next on the list to receive it. Approximately two months after his injury,
Darrington moved from a preload to a small sort position. Darrington worked in a small
sort position without needing assistance. He also continued to work occasionally as a
cover driver.
During the week of March 19, 2012, Darrington was scheduled to work in his
regular small sort position. However, on March 19, Darrington did not report for his
small sort shift and did not notify his supervisor of his absence, resulting in a "no call/no
3 show." On March 20, Darrington again did not show up for his small sort duties,
resulting in a second "no call/no show." This time, Darrington sent his small sort
supervisor, Gerald Flores, a text message, stating: "This is [Darrington]. I drove
yesterday and today the same. I will be in tomorrow and the rest of the week for small
sort." When reviewing timecards, Flores noticed that Darrington did not have any time
entries for March 19 and 20. Accordingly, Flores contacted driver manager Frank
Lococco to inquire as to whether Darrington had driven either day. Lococco replied that
Darrington had not driven on either day and had not been scheduled as a cover driver on
any day that week. Darrington did not report to work the rest of the week.
In accordance with the terms of a collective bargaining agreement, Flores issued
Darrington a 72-hour notice to return to work by March 27, 2012, or he would be
terminated. Darrington returned to work on March 26. However, based on Darrington's
text message, timecards, and information from the driver manager, Flores requested that
Jim Kenny, who had become a security manager, investigate the matter as a potential
case of dishonesty.
As part of his investigation, Kenny interviewed Darrington. According to Kenny,
Darrington admitted to not working the entire week as a small sorter, despite his text
message stating he would return to his small sort duties during the latter part of the week.
Darrington advised Kenny that although he had not been scheduled as a cover driver, the
driver manager had asked him to drive last minute and placed him on "stand by," but he
was not ultimately used as a driver.
4 According to Darrington, he reported to work as a cover driver every day during
the week of March 19, 2012. He stated that on March 19 and 20, he showed up to drive,
but no routes were available for him. Instead, driver manager Chuck Hanks sent him
home and asked him to deliver packages in his personal vehicle on the way. Darrington
did not report to small sort because Hanks stated he needed Darrington to drive the whole
week.
In order to verify Darrington's version of events, Kenny interviewed Lococco,
reviewed the cover driver schedule and Darrington's timecards, and received a statement
from the small sort supervisor. Lococco stated he had not spoken to Darrington about
cover driving on March 19 or 20, and Darrington was not scheduled those days. The
small sort supervisor informed Kenny that he had not been contacted by anyone within
UPS intending to use Darrington as a cover driver on an unscheduled basis. On March
28, 2012, UPS terminated Darrington's employment for dishonesty. When Kenny
escorted Darrington out of the UPS premises, Darrington stopped to use the restroom
because he felt sick and had to throw up. Kenny told Darrington to hurry up, shook his
head, and said, "it's always something with you people."
Darrington filed a grievance report with his union. Darrington and the union did
not dispute the merits of Darrington's termination, stating there were no excuses for his
behavior. Instead, Darrington and the union asked for Darrington to get a second chance.
In April 2012, a labor panel heard Darrington's grievance and upheld his termination for
proven dishonesty.
5 In January 2013, Darrington filed a complaint against UPS for violation of Labor
Code section 1102.5, wrongful termination in violation of public policy, disability
discrimination, failure to accommodate his disability, racial discrimination, retaliation,
and hostile work environment harassment. UPS moved for summary judgment and
alternatively summary adjudication of the issues. UPS argued Darrington could not state
a prima facie case of discrimination on any of his stated grounds because he was not
disabled, did not require an accommodation, and could not identify racially-motivated
conduct on the part of UPS. UPS also maintained that it terminated Darrington's
employment for a legitimate business reason, namely his dishonesty. According to UPS,
the absence of a causal connection between Darrington's alleged disability and his
termination, combined with the fact of the legitimate nondiscriminatory termination
decision, defeated Darrington's disability discrimination claim. UPS also argued
Darrington's failure to accommodate claim failed because it provided him every
requested accommodation. UPS further contended Darrington's racial discrimination
lacked merit because it employed Darrington for eight years and continued to employ
other African-American workers, and Darrington's claim was based solely on an
ambiguous comment that did not implicate race. On Darrington's retaliation claim, UPS
argued he did not engage in protected activity and there was no causal connection
between his injury in July 2011 and his termination eight months later. Lastly, UPS
argued Darrington's wrongful termination claim failed because it was derivative of his
other claims.
6 After hearing arguments on the matter, the trial court granted UPS summary
judgment. The court found Darrington had not established a prima facie case of
disability discrimination because he was not disabled at the time he was terminated and,
even assuming he was, he did not present evidence that would permit a reasonable trier of
fact to conclude UPS intentionally discriminated against him based on his alleged
disability. Further, UPS had a legitimate nondiscriminatory reason for terminating
Darrington and he did not demonstrate that reason was merely a pretext. The court
concluded Darrington's failure to accommodate claim failed because he never requested
an accommodation. In regard to Darrington's racial discrimination claim, the court found
he did not identify racially-motivated conduct on the part of UPS. On the retaliation
claim, the court determined that Darrington failed to demonstrate that he engaged in
protected activity and that his termination was connected to any protected activity. The
court concluded Darrington's wrongful termination claim also failed because it was
premised on his other nonmeritorious causes of action.
DISCUSSION
I. Appellate Record
As part of the appellate record, UPS and Darrington submitted a joint notice of
lodgment of exhibits, which included the exhibits the parties had submitted to the trial
court. UPS argues Darrington added several pages to the joint notice of lodgment that
were not included in support of his opposition to UPS's summary judgment motion in the
trial court. Darrington does not dispute this assertion.
7 Based on our review of the appellate record, there are five pages within an exhibit
containing excerpts from Kenny's deposition that are not consecutively numbered in the
joint notice of lodgment. On appeal, Darrington relies on testimony contained within
those pages, but does not provide accurate record citations. Instead, Darrington cites to
the pages surrounding the nonnumerated pages. Given that Darrington does not dispute
UPS's argument, he provides inaccurate record citations, and there is no indication that
the nonnumerated pages were before the trial court, we disregard that evidence as beyond
the scope of appellate review. (Pulver v. Avco Financial Services (1986) 182 Cal.App.3d
622, 632; Reserve Ins. Co. v. Pisciotta (1982) 30 Cal.3d 800, 813.) Having said that, we
are also compelled to note that in many instances throughout his brief, Darrington does
not provide accurate record citations. It is not our burden to comb through the record for
support for Darrington's arguments. (Schmidlin v. City of Palo Alto (2007) 157
Cal.App.4th 728, 738.)
II. Employment Discrimination Claims
A. Standard of Review and Summary Judgment Burdens on Cause of Action for
Employment Discrimination
California's Fair Employment and Housing Act (the FEHA) prohibits an employer
from terminating or otherwise discriminating against any employee on enumerated
grounds, including race or physical disability. (Gov. Code, § 12940, subd. (a).)
"Disparate treatment," the form of discrimination at issue here, "is intentional
discrimination against one or more persons on prohibited grounds." (Guz v. Bechtel
National, Inc. (2000) 24 Cal.4th 317, 354, fn. 20 (Guz).) Because direct evidence of
8 discriminatory motive is ordinarily unavailable, California courts have adopted a "three-
stage burden-shifting test established by the United States Supreme Court for trying
claims of discrimination . . . based on a theory of disparate treatment." (Id. at p. 354,
citing McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792.) Under the McDonnell
Douglas test, (1) the plaintiff/employee must set forth sufficient evidence to establish a
prima facie case of discrimination; (2) the defendant/employer must then articulate a
legitimate, nondiscriminatory reason for the adverse employment action; and (3) the
employee then has the opportunity to show the employer's articulated reason is
pretextual. (Guz, supra, at pp. 354-356.)
Notwithstanding the McDonnell Douglas test, "like all other defendants, the
employer who seeks to resolve the matter by summary judgment must bear the initial
burden of showing the action has no merit." (Le Bourgeois v. Fireplace Manufacturers,
Inc. (1998) 68 Cal.App.4th 1049, 1058; Slatkin v. University of Redlands (2001) 88
Cal.App.4th 1147, 1156.) A defendant satisfies this burden by showing one or more of
plaintiff's prima facie elements is lacking, that the adverse employment action was based
on legitimate, nondiscriminatory factors, or that there is a complete defense to the cause
of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850; Caldwell v.
Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 203, citing Texas Dept. of
Community Affairs v. Burdine (1981) 450 U.S. 248, 255, fn. 8.) " 'Once the defendant . . .
has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of
one or more material facts exists as to that cause of action or a defense thereto.' "
(Aguilar, supra, at p. 849.)
9 On appeal from a summary judgment, "[w]e review the trial court's decision de
novo, considering all of the evidence the parties offered in connection with the motion
. . . and the uncontradicted inferences the evidence reasonably supports." (Merrill v.
Navegar, Inc. (2001) 26 Cal.4th 465, 476.) The evidence must be viewed in favor of the
plaintiff as the losing party, construing the submissions of the plaintiff liberally and those
of the defendant strictly. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.)
B. Darrington Failed to Rebut UPS's Evidence of a Legitimate Nondiscriminatory
Reason for His Discharge
In seeking summary judgment, UPS sought to demonstrate the existence of a
legitimate, nondiscriminatory reason for Darrington's termination, namely that he was
dishonest regarding his absences from work. UPS presented evidence that pursuant to its
"Honesty in Employment" policy and collective bargaining agreement with Darrington's
union, dishonesty was grounds for immediate termination. UPS presented evidence that
it investigated Darrington's claim that on March 19 and 20, 2012, he was working as a
cover driver. A driver manager stated that he had not spoken to Darrington about cover
driving on March 19 or 20, and Darrington was not scheduled to drive either day. The
cover driver schedule for the week in question did not identify Darrington as a cover
driver. Further, Darrington's time card for that week did not include any time entries.
Lastly, Darrington's small sort supervisor had not been contacted by anyone within UPS
about using Darrington as a cover driver on an unscheduled basis. Based on its
investigation, UPS terminated Darrington's employment for dishonesty in violation of
UPS's Honesty in Employment Policy.
10 This evidence satisfied UPS's initial burden of showing a legitimate,
nondiscriminatory reason for terminating Darrington's employment, that is, a reason that
is facially unrelated to prohibited bias. (Code Civ. Proc., § 437c, subd. (p)(2); Guz,
supra, 24 Cal.4th at pp. 354-355, 358; Martin v. Lockheed Missiles & Space Co. (1994)
29 Cal.App.4th 1718, 1732-1733.) Thus, the burden shifted to Darrington to " 'produce
"substantial responsive evidence" that [UPS's] showing was untrue or pretextual.' "
(Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 807 (Horn).)
" 'To avoid summary judgment, [plaintiff] "must do more than establish a prima facie
case and deny the credibility of the [defendant's] witnesses." [Citation.] . . . [Citation.]'
. . . [A]n issue of fact can only be created by a conflict of evidence. It is not created by
speculation or conjecture." (Ibid.) Nor is it sufficient to show the employer's decision
was wrong or mistaken, since the factual dispute at issue is whether the discriminatory
animus motivated the employer, not whether the employer is wise, shrewd, prudent, or
competent. (Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1005
(Hersant).) Rather the employee must produce evidence of " 'such weaknesses,
implausibilities, inconsistencies, incoherencies or contradictions in the employer's
proffered legitimate reasons for its action that a reasonable factfinder could rationally
find them "unworthy of credence," [citation], and hence infer "that the employer did not
act for [the asserted] non-discriminatory reasons." ' " (Ibid.)
As evidence of pretext, Darrington contradicts UPS's grounds for termination. He
points to his testimony that a driver manager asked him to work as a cover driver during
the week of March 19, 2012. He further relies on his testimony that he did not clock in
11 on his timecard because he was not assigned a cover driver shift and instead the driver
manager had asked him to deliver packages in his personal vehicle. Darrington suggests
that his supervisor approved of cashing out a vacation week for Darrington in order to
compensate him for his week as a cover driver. We note that this assertion is not
supported by the evidence. While Darrington may have cashed out a vacation week,
there is no evidence that the payment was to compensate Darrington for cover driving off
the clock.
Regardless, whether or not Darrington actually worked as a cover driver during
the week of March 19, 2012, is immaterial. "It is the employer's honest belief in the
stated reasons for firing an employee and not the objective truth or falsity of the
underlying facts that is at issue in a discrimination case." (King v. United Parcel Service,
Inc. (2007) 152 Cal.App.4th 426, 436 (King).) Moreover, Darrington's "uncorroborated
and self-serving" testimony does not create a genuine issue of material fact. (Id. at p.
433.) Darrington must show a causal link between his race or alleged disability and his
termination. (Id. at p. 434.) He has not done so.
Darrington asks us to infer a discriminatory motive based on what he calls UPS's
"sham" investigation. He asserts that the investigation was improper because it was
conducted by Kenny, who had previously denied him access to medical care and
threatened termination if Darrington pursued treatment, and Kenny did not interview
Hanks, the supervisor who had approved of Darrington's vacation week in March 2012.
It is unreasonable to infer that Kenny's participation in the investigation shows a
discriminatory motive because it is undisputed that it was not Kenny who initiated the
12 investigation; rather, he conducted the investigation based on a request from Darrington's
small sort supervisor. The small sort supervisor initiated the investigation after receiving
Darrington's text message, reviewing his time cards, and speaking with the driver
manager. Further, Kenny became UPS's security manager in November 2011, and, in
that role, was responsible for investigating incidents of potential dishonesty. The fact
that Kenny did not interview the supervisor who had approved a vacation week for
Darrington also does not suggest discrimination as Kenny interviewed Darrington,
Darrington's small sort supervisor, and driver manager Lococco, and reviewed relevant
documents, such as the cover driver schedule and Darrington's timecards. Darrington's
proffered evidence falls short of raising a reasonable inference that Kenny performed the
investigation based on Darrington's race or workplace injury, which had occurred eight
months earlier.
Darrington also asserts the investigation was a pretext because Kenny did not
consider whether Darrington was granted paid time off and admitted that such
information would have been relevant to his investigation; Kenny admitted that it was
possible Darrington showed up to cover drive, but was sent home; Kenny admitted there
was incentive for the driver manager to lie about Darrington; Kenny had not investigated
the driver manager's prior UPS policy violation of asking Darrington to cover drive
without seniority; and Kenny was unaware that Darrington was a valued cover driver due
to his knowledge of the routes. In making these assertions, Darrington either relies on
portions of Kenny's deposition testimony that were not submitted to the trial court or
provides this Court with inaccurate record citations. As we previously stated, we do not
13 have a duty to search the record for Darrington and will disregard evidence not presented
in the trial court (ante, pt. I).
Having reviewed Darrington's evidence and arguments, we conclude that a trier of
fact could not reasonably conclude that UPS's stated reasons for terminating Darrington
"were implausible, or inconsistent or baseless." (Hersant, supra, 57 Cal.App.4th at
p. 1009.) We therefore hold that Darrington has not met his burden of producing
substantial evidence that UPS's reason for terminating him were pretextual and used
merely to veil an unlawful act of discrimination. (Ibid.)
C. Darrington Failed to Raise a Triable Issue of Fact as to Whether He Has a Disability
Even if Darrington had shown UPS's reason for terminating him was a pretext, his
disability discrimination claim fails because he failed to raise a triable issue of fact as to
whether he suffered from a disability for purposes of the FEHA.
" 'A prima facie case for discrimination "on grounds of physical disability under
the FEHA requires plaintiff to show: (1) he suffers from a disability; (2) he is otherwise
qualified to do his job; and, (3) he was subjected to adverse employment action because
of his disability." ' " (Arteaga v. Brink's, Inc. (2008) 163 Cal.App.4th 327, 344-345
(Arteaga).)
"Under the FEHA, 'physical disability' includes having a physiological disease,
disorder, or condition that, by affecting the neurological or musculoskeletal body
systems, special sense organs or skin, 'limits' a 'major life activity.' [Citation.] 'Limits' is
synonymous with making the achievement of a major life activity 'difficult.' [Citation.]
'Major life activity' is construed broadly and includes physical, mental, and social
14 activities, and working. [Citation.] ' "[W]orking" is a major life activity, regardless of
whether the actual or perceived working limitation implicates a particular employment or
a class or broad range of employments.' [Citation.] Whether a major life activity is
limited 'shall be determined without regard to mitigating measures such as medications,
assistive devices, prosthetics, or reasonable accommodations, unless the mitigating
measure itself limits a major life activity.' " (Arteaga, supra, 163 Cal.App.4th at p. 345.)
" 'In deciding whether [the employees'] limitations . . . make them "disabled" under
FEHA, the proper comparative baseline is either the individual without the impairment in
question or the average unimpaired person.' " (Ibid.)
Darrington's alleged disability was based on the back and wrist injury he suffered
in July 2011. He argues the injury made major life activities of walking, bending, lifting,
grabbing, and performing manual tasks more difficult. However, the evidence that he
points to either does not support his claim or was limited to the time immediately
following his injury.
Darrington did not present evidence that his pain and limitations were anything
more than temporary. Further, he acknowledged that the doctor who examined him after
his injury immediately released him for work without limitations and he did not need any
assistance after he moved to a small sort position approximately two months after his
injury. This evidence belies Darrington's claim that he continued to suffer from a
physical disability. Even if Darrington continued to suffer some pain, that "alone does
not always constitute or establish a disability. [Citations.] An assessment must be made
to determine how, if at all, the pain affects the specific employee." (Arteaga, supra, 163
15 Cal.App.4th at p. 348.) In this case, Darrington did not show that his pain and limitations
persisted beyond his injury such that he had a disability within the meaning of FEHA.
To support his disability claim, Darrington also relies in part on a neurosurgical
consultation report from a neurologist who examined him more than one year after his
injury in connection with workers' compensation proceedings. The neurologist diagnosed
Darrington as having "lumbar strain/sprain with radiculitis." UPS objected to the use of
this document in the trial court on grounds that it was not properly authenticated, it
constituted hearsay, and was irrelevant. The trial court sustained UPS's objections, but
did not specify which of the asserted bases it relied upon.
On appeal, Darrington argues only that the trial court should not have found the
neurosurgical consultation report was hearsay and does not address UPS's other grounds
for objecting to the report. We review the trial court's evidentiary rulings for abuse of
discretion. (Kincaid v. Kincaid (2011) 197 Cal.App.4th 75, 82-83.) Darrington does not
explain how the court abused its discretion in regard to each basis for UPS's objection or
how he was prejudiced as a result. "One cannot simply say the court erred, and leave it
up to the appellate court to figure out why." (Niko v. Foreman (2006) 144 Cal.App.4th
344, 368; Habitat Trust for Wildlife, Inc. v. City of Rancho Cucamonga (2009) 175
Cal.App.4th 1306, 1338 (Habitat) [where the trial court does not state the grounds for
sustaining objections, it is presumed that they were sustained on all grounds stated].)
"This court is not inclined to act as counsel for [Darrington] or any appellant and furnish
a legal argument as to how the trial court's rulings in this regard constituted an abuse of
discretion." (In re Marriage of Schroeder (1987) 192 Cal.App.3d 1154, 1164.) Where,
16 as here, there are independent, unchallenged grounds for the trial court's order, we
conclude the trial court properly sustained UPS's objections on these grounds. (Habitat,
at pp. 1338-1339.)
D. Darrington Failed to Raise a Triable Issue of Fact as to Race Discrimination
Like his disability discrimination claim, even if Darrington had made a showing of
pretext, his racial discrimination claim still fails. A prima facie case of race
discrimination generally means the plaintiff must provide evidence that (1) the plaintiff
was a member of a protected class, (2) the plaintiff was qualified for the position he or
she sought or was performing competently in the position held, (3) the plaintiff suffered
an adverse employment action, such as termination, demotion, or denial of an available
job, and (4) some other circumstance suggests discriminatory motive. (Guz, supra, 24
Cal.4th at p. 355.) There is no dispute that as an African-American, Darrington was a
member of a protected class. Our focus here is on the fourth element, that is, whether
there is admissible evidence to raise a triable issue of fact suggesting UPS harbored a
discriminatory animus toward African-Americans.
Darrington argues Kenny's remark of "there's always something with you people,"
combined with Kenny's comments to dissuade Darrington from seeking medical
treatment and the "sham" investigation, show racial animus. There is nothing in Kenny's
comments or the investigation implicating race. While Kenny referenced "you people,"
there is nothing in the record from which a reasonable trier of fact could infer racial
animus from that ambiguous comment. Instead, the undisputed evidence established that
UPS employed Darrington, an African-American, for eight years. According to
17 Darrington, UPS also employed a significant number of other African-Americans. Prior
to his termination, Darrington had never heard Kenny make a racist remark. Darrington's
subjective belief alone is not sufficient to create a genuine issue of fact. (King, supra,
152 Cal.App.4th at p. 433.)
III. Failure to Accommodate Claim
The FEHA makes it unlawful for an employer to fail to reasonably accommodate
an employee's known physical or mental disability, unless the accommodation would
produce a demonstrable undue hardship. (Gov. Code, §12940, subd. (m).) " 'The
elements of a failure to accommodate claim are (1) the plaintiff has a disability under the
FEHA, (2) the plaintiff is qualified to perform the essential functions of the position, and
(3) the employer failed to reasonably accommodate the plaintiff's disability.' " (Lui v.
City and County of San Francisco (2012) 211 Cal.App.4th 962, 971.)
" '[T]he interactive process of fashioning an appropriate accommodation lies
primarily with the employee.' [Citation.] . . . ' "[T]he employee can't expect the
employer to read his mind and know he secretly wanted a particular accommodation and
sue the employer for not providing it. Nor is an employer ordinarily liable for failing to
accommodate a disability of which it had no knowledge." ' " (King, supra, 152
Cal.App.4th at p. 443.)
As we explained, Darrington failed to raise a triable issue of fact as to whether he
has a disability within the meaning of the FEHA. (Ante, pt. II.C.) Even if he had made
that showing, he failed to raise a triable issue of a fact as to whether UPS failed to
accommodate his alleged disability. It is undisputed that Darrington worked in a small
18 sort position without needing assistance. Darrington does not argue that UPS failed to
provide him with a requested accommodation. Rather, relying on Cuiellette v. City of
Los Angeles (2011) 194 Cal.App.4th 757 (Cuiellette), he contends UPS is liable for
failure to accommodate because it withdrew his accommodation of working as a small
sorter based on pretext.
In Cuiellette, the Los Angeles Police Department (LAPD) appealed from a
judgment in favor of a disabled police officer on his FEHA claims. (Cuiellette, supra,
194 Cal.App.4th at p. 760.) The LAPD had placed the officer in a court desk position
based on a doctor's note limiting the officer to administrative work. (Id. at p. 761.) The
LAPD later informed the officer that it could not allow him to work because he was 100
percent disabled pursuant to a workers' compensation proceeding. (Id. at p. 762.) The
LAPD argued that the trial court had erred in finding liability because the officer was
unable to show he could perform all duties, not only desk duties, of a police officer
without a reasonable accommodation. (Id. at p. 768.) The court held that because the
officer was qualified to perform the duties of the court desk position and placed there
based on LAPD's accommodation policy, his removal from that position violated the
accommodation provisions of subdivision (m) of Government Code section 12940. (Id.
at p. 772.)
Cuillette is inapplicable in this case because Darrington did not show and UPS did
not contend that it terminated him based on his inability to perform his job duties.
Rather, UPS terminated him based on dishonesty in violation of UPS's policy. As we
previously explained, Darrington failed to rebut UPS's showing of a legitimate,
19 nondiscriminatory reason for his termination with evidence raising an inference of
intentional discrimination. Nothing in Cuillette suggests that an employer cannot
terminate a disabled employee for a legitimate, nondiscriminatory reason. As the King
court aptly noted, "a disabled employee has no greater prerogative to compromise
integrity than any other employee." (King, supra, 152 Cal.App.4th at p. 436.)
In sum, Darrington failed to raise a triable issue of fact on his failure to
accommodate cause of action.
IV. Retaliation Claim
To make a prima facie case of retaliation, the plaintiff must establish "(1) he or she
engaged in a protected activity; (2) the employer subjected the employee to an adverse
employment action; and (3) a causal link between the protected activity and the
employer's action." (Akers v. County of San Diego (2002) 95 Cal.App.4th 1441, 1457.)
Darrington argues his protected activity was seeking and enforcing his right to an
accommodation. However, "a mere request—or even repeated requests—for an
accommodation, without more, [does not] constitute[] a protected activity sufficient to
support a claim for retaliation in violation of FEHA. On the contrary, case law and
FEHA's implementing regulations are uniformly premised on the principle that the nature
of activities protected by [Government Code] section 12940, subdivision (h) demonstrate
some degree of opposition to or protest of the employer's conduct or practices based on
the employee's reasonable belief that the employer's action or practice is unlawful."
(Rope v. Auto-Chlor System of Washington, Inc. (2013) 220 Cal.App.4th 635, 651.)
Similarly, initiating the interactive process and exercise of the right to receive an
20 accommodation does not constitute a protected activity. (Nealy v. City of Santa Monica
(2015) 234 Cal.App.4th 359, 381.)
We recognize that in 2015, the California Legislature passed Assembly Bill No.
987, which provides protection against retaliation when an individual requests an
accommodation under the FEHA. (Assem. Bill No. 987 (2015-2016 Reg. Sess.) § 2.)
However, the amendment took effect on January 1, 2016, and applies only prospectively.
(Ibid.; see McClung v. Employment Development Dept. (2004) 34 Cal.4th 467, 475-477
[concluding amendment to the FEHA regarding individual liability for harassment
applied only prospectively].)
Based on the foregoing, the trial court correctly granted summary judgment on
Darrington's retaliation claim.
V. Wrongful Termination Claim
Darrington concedes that his wrongful termination claim is based on his disability
discrimination, failure to accommodate, retaliation, and racial discrimination claims. We
found no triable issues of fact on those underlying causes of action. Thus, Darrington's
wrongful termination claim fails for the same reasons.
21 DISPOSITION
The judgment is affirmed. United Parcel Service is entitled to costs on appeal.
O'ROURKE, J.
WE CONCUR:
HUFFMAN, Acting P. J.
NARES, J.