Williams v. Ralphs Grocery Co.

TROY WILLIAMS, Plaintiff and Appellant, v. RALPHS GROCERY COMPANY, Defendant and Appellant.

B282156

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SEVEN

October 8, 2019

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. BC495977)

APPEAL from a judgment of the Superior Court of Los Angeles County, Debre Katz Weintraub and J. Stephen Czuleger, Judges. Affirmed in part; reversed in part.

Burkhalter Kessler Clement & George, Daniel J. Kessler and Joshua A. Waldman for Defendant and Appellant.

Livingston Bakhtiar and Ebby S. Bakhtiar for Plaintiff and Appellant.

____________________ Ralphs Grocery Company (Ralphs) appeals from a judgment entered after a jury trial in favor of plaintiff Troy Williams. Williams, who worked for Ralphs for over 27 years, filed this action after Ralphs terminated his employment because it concluded he stole a case of lemonade. The jury found Ralphs defamed Williams by publishing statements that Williams was terminated for stealing or dishonesty, and it awarded economic and noneconomic damages. On appeal, Ralphs contends the special verdict form was fatally defective because it omitted questions on Ralphs's affirmative defense of the common interest privilege. Ralphs also argues the jury's award of economic damages is not supported by substantial evidence. We agree the special verdict form was defective and reverse.

Williams cross-appeals from the trial court's grant of summary adjudication in favor of Ralphs on Williams's claims of race, disability, and age discrimination, failure to accommodate, and failure to engage in a good faith interactive process. At the time of his termination, Williams was a 43-year-old African-American with a shoulder injury he sustained while stacking pallets. We affirm the grant of summary adjudication as to Williams's causes of action for race, age, and disability discrimination because Williams failed to present evidence raising a triable issue of material fact showing the reason for his termination was pretextual. However, the trial court erred in concluding Williams had not raised a triable issue of fact on his claims for failure to accommodate and failure to engage in a good faith interactive process. We affirm in part, reverse in part, and remand.

FACTUAL AND PROCEDURAL BACKGROUND

A. Williams's Employment with Ralphs¹

Williams worked at a Ralphs's store in Torrance, known internally as store No. 88 (the store). Williams began working for Ralphs's predecessor Alpha Beta Company as a courtesy clerk in 1983. From 1997 until his termination in December 2010, Williams worked as a receiver for Ralphs. His duties included receiving products from vendors, ensuring vendors provided timely deliveries, reconciling receipts, and overseeing organization of the store's backroom. Starting in 2009 Keven Fisher served as the store manager for the store, and assistant store manager Cynthia Wong acted as Williams's immediate day-to-day supervisor. Prior to the alleged theft, Williams had a good work record and was well-liked by fellow employees and management.

1. Williams's shoulder injury

In late 2009, while stacking pallets, Williams heard a "pop" in his right shoulder, accompanied by pain. Williams did not seek medical attention for the injury. Williams informed Wong of the injury when he next saw her, as early as the next day. Wong told Williams to return to work.

Williams testified that after his injury he experienced almost daily pain, declaring, ". . . I experienced pain and limitations with my right shoulder as it related to lifting, pulling,pushing activities on a near daily basis, but I did the best I could." Sometimes the pain "became unbearable" and required Williams to ask for help from his coworker and helper Mario, "but help was not always available." Williams did not inform Wong he was relying on Mario for help.

Williams told Wong around 20 times about his shoulder pain, including when he had to perform heavy lifting, including stacking pallets, and when Wong gave him tasks she expected him to perform immediately. Williams "let[] her know [his] shoulder . . . was becoming a problem" in case she wanted him to do "strenuous activities." Wong would "shrug off" Williams's complaints and tell him he was fine, to "quit complaining," he "can get it done," and to "stop acting like a baby." Williams did not complain to any other supervisor about his injury. Williams could endure the pain caused by his injury while at work. He "just worked through the pain," and "if it got too unbearable, [he got Mario] to help, but it was often. . . . When [he] did a lot of excessive lifting and stuff, [he] would let her know." Williams "didn't have a[n] issue working," but needed "to slow down a little bit and be more efficient" to deal with the pain. Williams's injury did not affect his daily life outside of work.

Fisher testified Wong was required to inform Fisher upon learning of an employee's disability and need for accommodation. Wong denied Williams ever informed her he had pain in his shoulder when he lifted objects or performed other work duties.

Williams filed a workers' compensation claim after his termination. He did not file for workers' compensation earlier because he did not feel the pain was bad enough to stop him from working and because he did not want to make less money. Williams reported his pain to Wong with the hope she wouldmake an adjustment to his work that would alleviate the pain. But he never specifically told her he could not do the job, and he never requested an accommodation.

2. Wong's racial comments and treatment of Williams

On six or seven occasions, Wong asked Williams questions such as "'why do you guys' color coordinate your clothes and tennis shoes"; "'why do you guys' like listening to [rap] music . . . so loud"; and "'why are you guys' always so argumentative." (Italics omitted.) Williams considered Wong's comments about "you guys" to be generalizations about African-Americans. Williams never reported Wong's statements to a supervisor.

Third-party vendor representative Gerald Wells, who is also African-American, once overheard Wong refer to Black people as "nigg--s" at another Ralphs store. After realizing Wells overheard her, Wong apologized to him and noted she had "black friends." Kelly Anne Eason, a Ralphs employee who had worked with Wong at the store, witnessed Wong make offensive "racial jokes" and refer to another person as a "negro." Wong denied ever making racial comments to Williams or making racial jokes while at Ralphs.

According to Williams, Wong "talk[ed] down" to him. She also assigned Williams extra work, especially when he was overwhelmed with other assignments and while he was taking his lunch break. When Williams had to work through lunch and failed to clock out for his lunch break, Ralphs bookkeeper Laurie Brown asked Williams to fill out a form to record his time as if he had taken a lunch break. Although Williams protested to Wong, Wong required Williams to fill out the form. Williams was aware Brown and Wong were good friends.

Williams also had a conflict with Brown over his duties with respect to the Kroger Accounting System (KAS). In the summer of 2010, Brown's duties with respect to the KAS program were supposed to be transferred from Brown to Williams, but Williams refused to assume Brown's duties because she was four months behind. Wong told Williams he had to take over the program, but Williams complained to Fisher, who required Brown to address the backlog before transferring her duties to Williams. Williams never formally complained about Wong's or Brown's behavior.

3. The lemonade incident

On November 12, 2010, at the end of Williams's shift, Williams brought two cases of lemonade bottles in a shopping cart to one of the store's checkout lanes. Earlier in the week Williams had asked another employee to order him two cases of the lemonade for his son's football practice because the lemonade was on sale. The cases contained six bottles of lemonade each, totaling 12 bottles. Williams placed flattened cardboard boxes over the top of the cart, which partially obstructed view of the cart's contents. Williams planned to bring the cardboard boxes home to place under his car to catch leaking oil. Before entering the checkout lane, Williams attempted to balance the flattened boxes on the floor, but they would not stay upright, so he returned them to the top of his cart.

Williams entered the checkout lane of cashier Tiffany Connor. Williams adjusted the cardboard on top of his cart, so the cart would fit in the lane. Williams handed Connor one bottle of lemonade. Connor scanned the single bottle six times. During the transaction, Williams was distracted by a coworker and amanager, who handed him his paycheck. Williams did not review his receipt after paying or subsequently notice anything wrong with the transaction.² Williams exited the store with 12 bottles of lemonade, having paid for only six.

Brown witnessed Williams's transaction from the store's front desk, directly behind Connor's checkout lane.³ She observed Williams's cart was partially covered by flattened cardboard boxes. At the conclusion of Williams's transaction, Williams pushed his cart to the end of the aisle near the front desk and left it there for about a minute. Brown observed the cart contained two shrink-wrapped cases of large bottles of lemonade, with a label on each case stating the case contained six bottles.⁴ Brown found the transaction unusual because of the flattened cardboard and that the cases of lemonade were still shrink-wrapped, so she checked the Ralphs accounting system and learned...