Michael D. DeSoto v. Dot Foods, Inc., Sergio Morales, and Does 1 through 20, inclusive

• Court: District Court, E.D. California
• Decided: December 30, 2025
• Docket: 2:24-cv-01140
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 MICHAEL D. DESOTO, an No. 2:24-cv-1140-WBS-CSK individual, 13 Plaintiff, 14 MEMORANDUM AND ORDER RE: v. DEFENDANT’S MOTION FOR 15 SUMMARY JUDGMENT DOT FOODS, INC., an Illinois 16 corporation; SERGIO MORALES, an individual; and DOES 1 through 17 20, inclusive, 18 Defendants. 19 20 ----oo0oo---- 21 Plaintiff Michael DeSoto has brought various state law 22 claims against defendant Dot Foods, Inc., which arise out of 23 defendant’s allegedly discriminatory termination of plaintiff’s 24 employment due to physical disability. (Compl. (Docket No. 1 Ex. 25 A).) Defendant has moved for summary judgment on all claims, 26 (Docket No. 31), which plaintiff opposes (Docket No. 32.). 27 I. Plaintiff’s Employment with Dot Foods, Inc. 28 Plaintiff worked as a Warehouse Order Selector and 1 Material Handler at defendant’s Modesto, California facility from 2 June 14, 2016, to September 25, 2022. (Plaintiff’s Separate 3 Statement of Disputed Facts (“SSDF”) (Docket No. 32-2) ¶ 1.) In 4 this role, plaintiff “handled materials and created pallets of 5 work orders, which involved” manual labor and machine operation 6 “to maneuver products.” (Id. ¶ 2.) 7 Plaintiff’s final two years in defendant’s employ were 8 disrupted by injury, illness, and leaves of absence. In January 9 2020, plaintiff suffered a back injury at work and was assigned 10 temporary light duties for several weeks. (See Declaration of 11 Victoria Salemi (“Salemi Decl.”) (Docket No. 31-3) ¶ 16(a)).) 12 From April 5, 2020, to June 10, 2020, plaintiff was provided 13 unpaid leave of absence related to COVID-19. (Id. ¶ 16(b).) 14 Plaintiff was then placed on leave for a back injury in March 15 2021, a leg injury in May 2021, back pain in August and September 16 2021, a head injury in February 2022, and a shoulder injury in 17 June 2022. (Id. ¶ 16(g)-(j).) 18 Prior to his termination, plaintiff also faced several 19 instances of disciplinary action. (Id. ¶¶ 18-25.) As relevant 20 here, defendant maintains a Progressive Disciplinary Policy, 21 under which violations issue “in four sequential steps of 22 corrective action” that accrue over one-year periods. (Id. ¶ 23 17.) At the fourth step of discipline, employees may be either 24 suspended or terminated. (Id. ¶ 23.) 25 Plaintiff received his first disciplinary step in April 26 2021, for failing to complete a pre-trip inspection for the fifth 27 time that year; his second step in June 2021, for calling out of 28 work without sick or personal time; and his third step in October 1 2021, for again failing to complete a pre-trip inspection, now 2 for the sixth time. (Id. ¶¶ 18-25.) Plaintiff was warned that a 3 further disciplinary step could result in termination. (Docket 4 No. 31-1 at 13.) 5 On September 18, 2022, plaintiff informed his 6 supervisor that he was experiencing rib pain, that he was “in the 7 hospital all day,” that “they did X-rays and they didn’t find 8 anything,” and that he was unable to “twist bend or lift anything 9 without [his] ribs hurting.” (SSDF ¶ 31.) He added that he was 10 “most likely going to leave cause [he] can’t work under these 11 conditions.” (Id.) In response, plaintiff was informed that his 12 unscheduled absence “will fall under the attendance policy.” 13 (Id. ¶ 32.) The following day, plaintiff texted his supervisor a 14 copy of a doctor’s note excusing him from work for four days, 15 permitting a “return to work with no restrictions” thereafter. 16 (Id. ¶ 39.) 17 Owing to this incident, plaintiff received his fourth 18 and final step of disciplinary action for calling out of work 19 without available sick or personal time. (Id. ¶ 21-25.) His 20 employment was terminated on September 25, 2022. (Id. at ¶ 25.) 21 II. Disability Discrimination Claims Under FEHA 22 Plaintiff brings his first four claims under 23 California’s Fair Housing and Employment Act (“FEHA”) on the 24 grounds “that his termination was substantially motivated by 25 unlawful disability discrimination.” (Docket No. 32 at 10.) The 26 first claim is for Physical Disability Discrimination in 27 violation of Section 12940(a), which “prohibits employers from 28 discharging an employee because of a physical disability.” 1 Nadaf-Rahrov v. Neiman Marcus Group, Inc., 166 Cal. App. 4th 952, 2 962 (2008). 3 A physical disability is defined as “any anatomical 4 loss, cosmetic disfigurement, physiological disease, disorder, or 5 condition” that “limits a major life activity.” Cenis v. WinCo 6 Holdings, Inc., No. 117-cv-00863-DAD-JLT, 2018 WL 2412324, at *5 7 (E.D. Cal. May 29, 2019) (citing Cal. Gov't Code § 12926(k)). As 8 relevant to this case, the definition of a physical disability 9 does not include “conditions that are mild . . . [which] have 10 little or no residual effects, such as . . . minor cuts, sprains, 11 muscle aches, soreness, bruises, or abrasions.” Cal. Code Regs. 12 tit. 2, § 11065. These conditions are not considered 13 disabilities because they do not meaningfully “limit a major life 14 activity,” such as working. Id. Thus, if plaintiff cannot 15 demonstrate that he was suffering from more than a mild 16 condition, his first FEHA claim must fail. 17 Plaintiff’s second claim is for Failure to Accommodate 18 Physical Disability and to Engage in an Interactive Process in 19 violation of Section 12940(m) and (n), provisions which require 20 an employer to “provide reasonable accommodation to an employee 21 with a physical disability,” and “to engage in a timely, good 22 faith, and interactive process to accommodate a known disabled 23 employee.” (Docket No. 1 at 23.) As with claims under Section 24 12940(a), claims under Sections 12940(m) and (n) also require a 25 plaintiff to show that “he or she has a known physical or mental 26 disability.” Jacobson-Gentry v. County of Santa Clara, No. 23- 27 cv-04096-NC, 2025 WL 2522373 (N.D. Cal. Sept. 2, 2025); Watts- 28 Lynch v. Delta Air Lines, Inc., No. CV-159476-MWF-RAOX, 2017 WL 1 11707442 (C.D. Cal. May 9, 2017) (“The requirements for a claim 2 under section 12940(m) mirror those of section 12940(a)[.]”). 3 Accordingly, if plaintiff cannot show he suffered from a 4 qualifying disability under FEHA, his second claim must also 5 fail. 6 Plaintiff’s third claim is for Failure to Take All 7 Reasonable and Necessary steps to Prevent Discrimination in 8 violation of Section 12900, et seq., which “require [defendant] 9 to take all reasonable steps necessary to prevent acts of 10 discrimination.” (Docket No. 1 at 24.) “Courts have interpreted 11 a failure to prevent discrimination claim [to be] essentially 12 derivative of a discrimination claim.” Harlow v. Chaffey 13 Community College District, No. CV-181583-DSF-SHKX, 2021 WL 14 2384702, at *11 (C.D. Cal. Mar. 15, 2021) (citing Trujillo v. N. 15 Cnty. Transit Dist., 63 Cal. App. 4th, 280, 289 (1998). The only 16 discrimination claim brought by plaintiff is discrimination based 17 on a physical disability. Consequently, as with the first two 18 claims, plaintiff’s third claim is also subject to the 19 requirement that plaintiff demonstrate he suffered from a 20 qualifying physical disability under FEHA. 21 Plaintiff’s fourth claim is for Wrongful Termination 22 in Violation of Public Policy. (Docket No. 1 at 16.) The only 23 public policy conceivably referenced in plaintiff’s complaint, 24 articulated in FEHA, is California’s fundamental policy against 25 physical disability discrimination in employment. See Cal. Gov’t 26 Code § 12920 (“It is hereby declared as the public policy of this 27 state that it is necessary to protect and safeguard the right . . 28 . [to] hold employment without discrimination.”) Once again, 1 plaintiff cannot demonstrate physical disability discrimination 2 without first showing that he suffered from a physical 3 disability. See Fragada v. United Airlines, Inc., No. CV-163914- 4 MWF-JPRX, 2017 WL 4586933, at *8 (C.D. Cal. June 13, 2017) (“A 5 prerequisite to Plaintiff’s public policy claim is a qualifying 6 disability.”). 7 In short, necessary to all of plaintiff’s FEHA claims 8 is a prima facie showing that plaintiff had a qualifying 9 disability. See Solis v. Randstad North America, Inc., No. 5:24- 10 cv-00145-JWH-SP, 2024 WL 4468030, at *4 (C.D. Cal. Aug. 16, 2024) 11 (dismissing analogous FEHA claims because plaintiff “failed to 12 show any physical disability); Estes v. AlliedSignal, Inc., No. 13 C-97-1810 MHP, 1998 WL 814693, at *9 (N.D. Cal. Nov. 12, 1998) 14 (“[P]laintiff cannot prove he was disabled under the ADA and 15 FEHA, and therefore, cannot make out a prima facie case under 16 those statutes.”). Because plaintiff has not made this showing, 17 his FEHA claims must fail. 18 Moreover, even if plaintiff had shown that he suffered 19 from a disability, to establish a prima facie case for disability 20 discrimination, plaintiff must also demonstrate that his employer 21 either had knowledge of his disability or perceived him as having 22 a disability. See Winarto v. Toshiba Am. Elecs. Components, 23 Inc., 274 F. 3d 1276, 1291 (9th Cir. 2001) (denying disability 24 discrimination claim where employee “introduced no evidence in 25 the record to establish that her managers perceived her to be 26 disabled”); Espindola v. Wismettac Asian Foods, Inc., No. 21- 27 55534, 2022 WL 2287437 (9th Cir. June 24, 2022) (noting that 28 discrimination claim may turn on whether “the company was on 1 notice that [the employee] was disabled”). 2 Plaintiff has not made this showing because he has not 3 shown that defendant had knowledge of any disability. Plaintiff 4 merely informed his supervisor of generalized pain, before 5 providing a doctor’s note that “did not specify a reason for the 6 absence or specify any physical restrictions.” (Id. at 18.) The 7 information in the doctor’s note conveyed only a temporary 8 ailment rather than a qualifying disability, and defendant thus 9 had no notice plaintiff suffered from a disability when it 10 terminated him. 11 In his opposition, plaintiff confirms that he told his 12 supervisor about his rib pain and his hospital visit before 13 relaying a doctor’s note that contained no diagnostic information 14 the following day. (Docket No. 32. at 7.) He then adds that his 15 doctor provided him with an After Visit Summary “reflect[ing] 16 imaging orders for rib contusion and pleurisy,” which “impaired 17 [his] ability to perform the physical demands of his job.” (Id.) 18 Defendant’s statement of facts indicates that, aside 19 from the doctor’s note, “Plaintiff did not provide any further 20 information to Dot Foods concerning his medical condition, 21 including any diagnosis.” (Docket No. 31-2 ¶ 40.) Plaintiff 22 agrees that the only document provided to defendant was the 23 doctor’s note, but insists the note was “documentation . . . 24 [that] constituted sufficient medical substantiation of 25 plaintiff’s condition.” (SSDF ¶ 40.) Plaintiff therefore 26 concedes that the only documentation provided to corroborate his 27 condition was his doctor’s note. Viewing the record in light of 28 the above, there is no evidence that defendant had knowledge of a 1 FEHA-protected disability when it took disciplinary action. 2 Courts in this circuit have consistently recognized 3 that a short-lived condition, supported only by a brief and 4 unspecific doctor’s note, followed by an unrestricted return to 5 work, does not constitute a qualifying disability under FEHA. 6 See, e.g., Foshee v. MasTec Network Solutions, Inc., No. 1:20-cv- 7 00890 AWI SAB, 2022 WL 446675 (E.D. Cal. Feb. 14, 2022) (finding 8 that plaintiff could not claim disability based on a temporary 9 infection despite a doctor’s note instructing an absence from 10 work of several days); Winarto, 274 F. 3d, at 1291 (noting that a 11 vague doctor’s note was not sufficient to “prove that [the 12 employer] perceived Winarto to be disabled”); Cenis v. Winco 13 Holdings, 787 Fed. App’x. 947, 948 (9th Cir. 2019) (no disability 14 found where “symptoms subsided two days later, at which point 15 [the employee] returned to work”); Ellis v. City of Reedley, No. 16 cv-F05-01474 AWI SMS, 2007 WL 1098571, at *11 (E.D. Cal. Apr. 12, 17 2007) (“The term disability may incorporate a condition of only 18 temporary duration, but that condition must . . . [be] sufficient 19 to constitute an actual limitation of a major life activity, as 20 opposed to simply the need to take a day off.”). 21 The record before the court mirrors these cases. 22 Plaintiff suffered from transient rib pain that, by his own 23 doctor’s representation, would resolve within days and permit a 24 return to full duty without limitation. Nothing in the 25 information communicated to defendant suggested an impairment 26 that would plausibly trigger FEHA obligations. Defendant could 27 not therefore have discriminated against plaintiff on the basis 28 of a protected disability because, from its perspective, no such 1 disability existed. 2 To the contrary, the record strongly suggests a lack of 3 discriminatory motive or pretext on defendant’s part. Defendant 4 had a legitimate, nondiscriminatory reason for firing plaintiff: 5 repeated violations of “established disciplinary and attendance 6 policies.” (Docket No. 31-1 at 6.) Plaintiff was aware of these 7 policies (SSDF ¶ 24) and had run afoul of them three times; on 8 one occasion, defendant even had reliable information suggesting 9 plaintiff had lied about an injury when attempting to call out of 10 work. (Id. at 10-11.) Defendant consistently applied its 11 disciplinary policy to these prior violations, and it 12 accommodated plaintiff’s injuries and illnesses on numerous other 13 occasions when plaintiff properly notified his employer or had 14 accrued time off. (Salemi Decl. ¶ 16-17.)1 15 Plaintiff also argues that the closeness in time 16 between his conduct and termination suggests the firing was 17 pretextual. (Docket No. 32 at 8.) But without evidence of 18 discriminatory intent, “temporal proximity is ordinarily 19 insufficient to satisfy the burden to provide evidence of 20 1 At oral argument, plaintiff’s counsel insisted that 21 plaintiff had cleared defendant’s disciplinary program, because 22 more than one year had elapsed between his first and final violations. However, defendant’s disciplinary policy states that 23 “[i]f an employee receives multiple disciplinary steps within a 12-month period, all disciplinary steps remain until a year after 24 the most recent disciplinary step.” (Docket No. 31-3 at 8.) Plaintiff’s third step of discipline occurred on October 3, 2021, 25 which meant that he would be subject to the policy until October 3, 2022. (Docket No. 31-4 at 42.) As his fourth violation 26 occurred on September 18, 2022, plaintiff had not yet cleared his 27 violations and was thus subject to a fourth and final disciplinary step. 28 1 pretext.” Hooker v. Parker Hannifin Corp., 548 Fed. App’x. 368, 2 370-71 (9th Cir. 2013). “This is especially so where the 3 employer raised questions about the employee’s performance before 4 he disclosed his symptoms, and the subsequent termination was 5 based on those performance issues.” Arteaga v. Brink’s, Inc., 6 163 Cal. App. 4th 327, 334-335 (2008) (emphasis in original). As 7 the record does not bear out discriminatory intent on defendant’s 8 part, and defendant had repeatedly raised concerns about 9 plaintiff’s performance, temporal proximity is insufficient to 10 establish pretext. 11 Thus, summary judgment must be granted in favor of 12 defendant on plaintiff’s FEHA claims for the additional reasons 13 that plaintiff has not shown that his employer had notice of a 14 FEHA-protected disability and there is no evidence in the record 15 indicating discriminatory motive. 16 III. Intentional Infliction of Emotional Distress 17 Plaintiff’s fifth claim is for intentional infliction 18 of emotional distress (“IIED”), alleging “extreme and outrageous 19 conduct” in terminating him and plaintiff’s resulting “anxiety, 20 humiliation, and disruption to his family life.” (Id. at 2-3.) 21 “Under California law, ‘[a] cause of action for intentional 22 infliction of emotional distress exists when there is (1) extreme 23 and outrageous conduct by the defendant with the intention of 24 causing, or reckless disregard of the probability of causing, 25 emotional distress; (2) the plaintiff’s suffering severe or 26 extreme emotional distress; and (3) actual and proximate 27 causation of the emotional distress by the defendant’s outrageous 28 conduct.’” Ravel v. Hewlett-Packard Enterprise, Inc., 228 F. 1 Supp. 3d 1086, 1099 (E.D. Cal 2017) (Shubb, J.) (citation 2 omitted). 3 Plaintiff argues that defendant’s conduct surrounding 4 the “abrupt termination of [his] employment” constituted “extreme 5 and outrageous conduct that exceeded all bounds of decency.” 6 (Docket No. 32 at 12.) Defendant argues that because no 7 disability discrimination occurred, its conduct amounts to 8 “simple personnel management activities” which do not support a 9 claim for IIED. (Docket No. 31-1 at 25.) 10 The court agrees with defendant. Where the employer 11 has no awareness of a protected disability, discrimination claims 12 are not cognizable. Defendant’s conduct thus amounted to a 13 simple termination, and “terminating an employee is not alone 14 sufficient to satisfy the standard for extreme and outrageous 15 conduct.” See Onelum v. Best Buy Stores, 948 F. Supp. 2d 1048, 16 1053 (C.D. Cal. 2013); Galarpe v. United Airlines, Inc., No. 17- 17 cv-06514 EMC, 2018 WL 348161 (N.D. Cal. Jan. 10, 2018) 18 (dismissing IIED claim in FEHA context because “[p]laintiff has 19 not adequately pled discriminatory conduct”). 20 Moreover, plaintiff has not even demonstrated that he 21 suffered emotional distress. He states that his termination made 22 him feel like a “lesser person,” which subsequently caused 23 “significant emotional distress.” (SSDF ¶ 48.) When asked in 24 his deposition about this feeling, plaintiff was unable to 25 identify when his distress began, how he experienced it, what his 26 symptoms were and how frequently they appeared, whether anyone 27 else noticed his distress, how long it lasted, and how it 28 impacted his life. (Docket No. 31-4 at 34-37.) en nen eee nn nnn enn ene nn nn nn nee I OO

1 Plaintiff’s nondescript allegations of the duration and 2 severity of his distress do not satisfy the standard of an IIED 3 claim, which requires “emotional distress of such substantial 4 quality or enduring quality that no reasonable [person] in 5 Civilized society should be expected to endure it.” Lawler v. 6 Montblanc North America LLC, 704 F. 3d 1235, 1245-46 (9th Cir. 7 2013) (citation omitted). There is nothing in the record to 8 indicate plaintiff suffered from anything other than typical 9 | psychological effects following termination. See Magnuson v. 10 Burlington Northern Inc., 576 F. 2d 1367, 1369 (9th Cir. 1978) 11 (“Every employee who believes he has a legitimate grievance will 12 doubtless have some emotional anguish occasioned by his belief 13 that he has been wronged.”) 14 Plaintiff has not demonstrated that defendant engaged 15 in discrimination based on a physical disability, nor that he 16 suffered emotional distress as a result of defendant’s extreme 17 and outrageous conduct. Accordingly, all his claims must fail. 18 IT IS THEREFORE ORDERED that defendant’s motion for 19 summary judgment (Docket No. 31) be, and the same hereby is, 20 GRANTED. Judgment shall be entered in favor of defendant DOT 21 Foods, Inc. and against plaintiff Michael D. Desoto on all claims 22 of the Complaint. - a bean, (hi. 23 | Dated: December 29, 2025 Pi he Vi (eh 24 UNITED STATES DISTRICT JUDGE 25 26 27 28 12