Smith v. United Parcel Serv.

VENTON SMITH, Plaintiff, v. UNITED PARCEL SERVICE, INC., et al., Defendants.

Case No. 20-cv-09460-EMC

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

May 6, 2021

ORDER GRANTING DEFENDANTS' MOTION TO DISMISS

Docket No. 18

Plaintiff was a car wash employee at United Parcel Service, Inc. ("UPS") who alleges that he suffered discriminatory and harassing treatment from his UPS supervisors. He took medical leave in 2017 and never returned to work, and he alleges that UPS effectively terminated him in retaliatory fashion for reporting unsafe working conditions. Plaintiff filed a complaint in San Francisco County Superior Court, naming UPS, United Parcel Service General Services Co., United Parcel Service Co., Donald Embers, Gregory Price, and Does 1-20 as Defendants, and the case was removed to federal court.

UPS has filed a Motion to Dismiss Plaintiff's PAGA claims, Cal/OSHA claims, and the claim for wrongful termination in violation of the Fair Employment and Housing Act ("FEHA"). Docket No. 18.

I. BACKGROUND

In the complaint, Plaintiff alleges as follows.

Plaintiff was hired and began his employment at UPS on or around September 26, 2016. Compl. ¶ 17. Plaintiff is legally blind in his right eye. Id. ¶ 24. He alleges that he observed a violent and unsafe work environment that was created by his supervisors, Donald Embers and Gregory Price. Id. ¶ 18. Embers and Price directed their violent conduct toward a car wash employee named "AP" who filed grievances against them. Id. Embers openly encouraged other car wash employees to harass and retaliate against AP for the past grievances he had filed with UPS's human resources department and the local union. Id. ¶ 20. For instance, employees were instructed to block AP's personal vehicle with a locked UPS vehicle. Id. ¶ 23.

When Plaintiff provided his supervisors with documentation of his physical disability, he was met with derogatory comments (e.g., "UPS only hires the handicap" and "You really are blind, I could punch you in your blind eye and you wouldn't feel a thing"). Id. ¶ 24. And when Plaintiff refused to participate in the harassment of AP, Price and Embers refocused the bullying, harassment, and intimidation on him. Id. ¶ 26. Price threatened Plaintiff with bodily harm and Plaintiff experienced some of the same harassment that AP did. Id. ¶ 28. Namely, car wash employees blocked Plaintiff's personal vehicle with a locked UPS truck and moved service vehicles to create more work for him. Id. On April 12, 2017, Embers and Price verbally confronted Plaintiff in Embers' office, which led several members of UPS senior management to intervene. Id. ¶¶ 30-31. Plaintiff subsequently filed grievances with the human resources department at UPS and the local union, alleging a hostile work environment. Id. ¶¶ 32-34. Plaintiff claims that his grievances went unresolved and his supervisors continued their harassment and intimidation in April 2017, discussing ways to use his visual impairment to create a vehicular accident that would lead to his termination. Id. ¶ 36.

Plaintiff left on medical leave in April 2017. Id. ¶ 37. Before doing so, he informed UPS management that UPS employees were carrying weapons into the facility, and of an unsecured rooftop entrance. Id. Throughout May 2017, Plaintiff unsuccessfully attempted to contact Sheila O'Mahony, of UPS human resources, regarding his prior grievances. Id. ¶¶ 38-40. On June 17, 2017, while on medical leave, Plaintiff filed an ADA accommodation application for a reduction in his work week from 40 hours to 35 hours due to visual impairments resulting from straining in his left eye. Id. ¶ 42. Thereafter, Plaintiff filed a complaint with the Equal Employment Opportunity Commission, detailing his concerns about discrimination, retaliation, and unsafe working conditions. Id. ¶ 44. Plaintiff also filed a complaint with the Department of FairEmployment & Housing ("DFEH"), containing the same allegations, and DFEH issued a right to sue notice on July 7, 2017. RJN, Ex. A (Docket No. 20).

In August 2017, Plaintiff sought permission to return to work, and Ms. O'Mahony denied the request because UPS could not meet Plaintiff's ADA accommodations. Id. ¶ 45. UPS's ADA panel denied Plaintiff's reduced workload request in November 2017 and informed Plaintiff that it did not have any alternative jobs for him. Id. ¶ 46.

On November 1, 2019, Plaintiff contacted Ms. O'Mahony and asked for a return to work at 40 hours a week without any accommodations, but he did not receive a response. Id. ¶ 52. Plaintiff reached out to Ms. O'Mahony on two subsequent occasions in 2019, asking for a return to work without any accommodations, but did not hear back. Id. ¶¶ 53-54. Plaintiff filed his PAGA notice with the LWDA on June 29, 2020. RJN, Ex. D (Docket No. 20) (hereinafter "LWDA Notice"). Plaintiff stated his intent to seek a civil action against UPS based upon California Labor Code §§ 98.7, 230, 1102.5, 6310, 6400, and 6401. Id. at 1.

Plaintiff claims that UPS has used the ADA process to effectively terminate him for the complaints he made about safety concerns. Id. ¶ 56. Plaintiff alleges the same in his LWDA notice: "O'Mahony and UPS used the ADA process to effectively terminate [Plaintiff] for reporting his safety concerns." LWDA Notice at 4. Plaintiff brings this suit on behalf of similarly situated employees that (1) must continue working in an unsafe environment, (2) are retaliated against when they raise concerns about the unsafe work environment, and (3) are retaliated against for bringing workplace violence complaints. Compl. ¶ 59.

Based on the foregoing, Plaintiff brings the following causes of action: (1) unlawful discrimination based on disability in violation of the Fair Employment and Housing Act ("FEHA"), Cal. Gov. Code § 12900, et seq.; (2) failure to accommodate disability in violation of FEHA; (3) failure to engage in the interactive disability accommodation process in violation FEHA; (5) retaliation for the exercise of legally protected rights in violation of Government Code § 12940(h); (6) failure to prevent and investigate discrimination and retaliation in violation of Government Code § 12940(k); (7) violation of California Labor Code § 6310 for discriminating against an employee who files a complaint or otherwise exercises their rights; (8) violation ofCalifornia Labor Code §§ 6400 and 6401 for failure to provide a safe working environment; (9) violation of California Labor Code § 232.5 for retaliation against an employee who discloses information about an employer's working conditions; (10) violation of California Labor Code §§ 1102.5(a)-(c) for adopting policies that prevented Plaintiff from disclosing information to a government agency about unlawful conduct; (13) civil penalties under PAGA; and (14) wrongful termination in violation of FEHA.

Plaintiff asserts claims as a PAGA representative in his seventh, eighth, ninth, and tenth causes of action, in addition to the standalone claim for PAGA penalties in his thirteenth cause of action. See Compl. ¶¶ 141, 158, 168, 187. Plaintiff agreed to dismiss the fourth, eleventh, and twelfth causes of action, and to dismiss United Parcel Service General Services, Co., United Parcel Service Co., Donald Embers, and Gregory Price as Defendants. Opp. to MTD at 16; Reply at 1. At issue before the Court are Plaintiff's eighth (unsafe work environment), ninth (retaliation), thirteenth (PAGA penalties), and fourteenth (wrongful termination) causes of action against the sole remaining Defendant (United Parcel Service, Inc.), along with UPS's motion to strike the PAGA claims from Plaintiff's seventh (discrimination for exercise of rights) and tenth (disclosure to government) causes of action.

II. DISCUSSION

A. PAGA Claims

The Court first analyzes the PAGA claims in Plaintiff's complaint. Plaintiff brings his seventh cause of action (Cal/OSHA retaliation) and tenth cause of action (whistleblower retaliation) as both individual claims and on behalf of aggrieved employees as PAGA claims. Plaintiff asserts his eighth cause of action (Cal/OSHA workplace safety) and ninth cause of action (right to disclose working conditions) solely as PAGA claims, and he seeks PAGA civil penalties in his thirteenth cause of action. UPS moves to dismiss the PAGA portions of the seventh and tenth causes of action (but not the individual claims), and it moves to dismiss the eighth, ninth, and thirteenth causes of action in their entirety.

1. PAGA Statute of Limitations

When an aggrieved employee files a notice with the LWDA seeking PAGA penalties, theymust identify "the specific provisions of [the Labor Code] alleged to have been violated, including the facts and theories to support the alleged violation." Cal. Lab. Code § 2699.3(a)(1)(A). The statute of limitations on filing a PAGA Notice with the LWDA is one year. See Cal. Civ. Proc. Code § 340(a). The one-year statute of limitations period begins when the alleged labor violations cease. Brown v. Ralphs Grocery Co., 28 Cal. App. 5th 824, 839, 239 Cal. Rptr. 3d 519, 530 (2018).

An employee's PAGA claim may accrue (and the statute may begin to run) on the date of termination, but it may accrue earlier if the allegedly unlawful conduct ceased before termination. See Esparza v. Safeway, Inc., 36 Cal. App. 5th 42, 63 n.11, 247 Cal. Rptr. 3d 875, 893 (2019) (holding that "[c]ourts ... may use the end of employment as shorthand for the most recent time at which a cause of action may have accrued" but no authority suggests that "a PAGA cause of action accrues because of the end of employment") (emphasis added). In Esparza, for instance, the end "of [Plantiff's] employment [was] irrelevant to the timeliness of her claim premised on violations occurring years before her employment ended." Id. at 63 (emphasis added).

Here, Plaintiff's PAGA Notice to the LWDA was filed on June 29, 2020. LWDA Notice at 1. It describes a pattern of retaliatory and harassing conduct which began...