Williams v. Bax Global

Filed 7/25/07 Williams v. Bax Global CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

Levi Williams, Jr. appeals the dismissal of his disability discrimination and fraud claims following a grant of summary judgment in favor of his former employer, Bax Global Inc., and his former supervisor, Curtis Lindquist (collectively, Bax). The trial court determined that Bax had a legitimate, non-discriminatory reason when it terminated Williamss employment, and there was no evidence it was a pretext. The court also rejected appellants fraud claim because there was no evidence Bax made false promises to appellant that it had no intention to fulfill. There is no triable issue of material fact with regard to either cause of action. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Bax is a shipping company that provides worldwide freight and logistics services. Bax hired appellant in March 2001 as a service supervisor [r]esponsible for day to day supervision of domestic customer service and inbound/outbound operations at a Bax local facility. Appellants first annual evaluation was completed in March 2002 and certain areas of his performance required improvement. When his performance did not improve, appellant was instructed by his supervisor and others that he needed to do better. But appellant failed to improve.^[1]

In early August appellant reported to Bax that he had sustained a back injury at work on July 24, 2002. He saw a doctor and was diagnosed with a thoracic and lumbar strain. He was restricted in his job duties. Appellant was cleared for full duty by his doctor at the end of November 2002.

In December 2002 Bax notified appellant that his employment was terminated, due to his history of unsatisfactory performance. Appellant filed suit for disability discrimination and fraud. He alleged that Bax failed to reasonably accommodate his work-related back injury, and terminated his employment due to his disability. His fraud claim alleged that representations made by Bax that he would be treated fairly as an employee, that he would not be subjected to discrimination, and that he would be given an opportunity to progress in his career were false.

The court granted Baxs motion for summary judgment. The court found that appellant established a prima facie case of disability discrimination, but Bax presented a legitimate, non-discriminatory reason for appellants termination, and appellant failed to show that reason was pretextual. The court observed: Noticeably absent from [appellants] case is any evidence that BAX Globals decision to terminate was motivated by his injury as opposed to a simple disagreement between the parties as to [appellants] performance as a supervisor. The court also found appellant presented no evidence that he requested accommodation for his back injury. On appellants fraud claim, the court found there was no evidence that Bax made false promises without an intention to fulfill them. This appeal followed.

DISCUSSION

Summary judgment is properly granted when there is no triable issue as to any material fact and the moving party is entitled to judgment as a matter of law. (Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 805 (Horn).) On appeal after a motion for summary judgment has been granted, we review the record de novo, considering all the evidence set forth in the moving and opposition papers except that to which objections have been made and sustained. [Citation.] Under Californias traditional rules, we determine with respect to each cause of action whether the defendant seeking summary judgment has conclusively negated a necessary element of the plaintiffs case, or has demonstrated that under no hypothesis is there a material issue of fact that requires the process of trial, such that the defendant is entitled to judgment as a matter of law. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334 (Guz).)

A. Appellants Claim for Disability Discrimination

Bax proffered legitimate job performance reasons for appellants termination that were unrelated to his disability. Appellants annual performance evaluation in March 2002 sought his improvement in several specific areas. Appellant received a rating of less than Full Performance in Achiev[ing] 95% outbound service, Communicating, Self Development, [I]nitiative/[I]nnovation, Planning/Organizing, and Executing. The evaluation observed that appellant was excellent in some areas and has effectively carried out core directives of the company. But appellant needed to learn more so he can more effectively guide and direct his department and is able to train and educate new hires. He was advised that [h]e must take the initiative and will need to learn the job of each [operations] person including planeside rep and customer service. Shortly thereafter, appellants supervisor began to verbally instruct him that his performance needed to improve in the areas noted in the report.

Appellants supervisor also prepared an instructional memo before he ever learned of appellants injury that directed appellant to improve his work within 60 days. The areas listed in the memo as those requiring improvement included: Identifying root cause of problems; Failure to Follow up on action items; Failure to respond to emails; and Quantitative analysis. The memo, on a form entitled Coaching: Clarification of Expectations, advised appellant: As a Supervisor at Bax Global your performance is below an acceptable level and must improve and sustain itself. We will work with you to achieve the desired result. If performance is not achieved and maintained by 60 days, further discipline will be issued up to and including termination. Please see attached memo for further clarification.

Appellant met with his supervisor and discussed the issues identified in the memos at or near the time appellant notified Bax he had been injured while at work. The instructional memo is in two parts and dated July 29 and August 1, 2002. Appellant met with his supervisor to discuss his performance on or about August 5, 2002. While appellants declaration states that he told Bax on July 26 that he felt something in [his] back snap as [he] was lifting carpet which weighed 450 - 500 pounds, appellant testified at his deposition that he first notified Bax of his injury on August 2. A party cannot evade summary judgment by submitting a declaration contradicting his own prior deposition testimony. (Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1120, citing, inter alia, DAmico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21-22.) In short, Bax had concerns about appellants job performance before appellant notified Bax of his injury, and those concerns ultimately provided justification for his termination.

Following his report of injury, appellants performance did not improve. In early September, his supervisor and an area manager met with appellant to further discuss his lack of improvement, including his habit of leaving work before his shift was over. Later that month, appellant was transferred to the night shift, and another supervisor noticed that appellant continued to leave work early. In October 2002, appellants supervisor asked him and others to prepare a plan to improve productivity, cut costs, and increase worker morale. Appellant was the only supervisor who failed to submit such a plan. When asked why, appellant told his boss that other supervisors had the same ideas, so he didnt bother. ^[2] That same month, appellant was also counseled by his supervisor after he gave an employee a day off, but failed to timely schedule a replacement worker. Due to the employees absence, a plane did not meet its scheduled departure time, and many overnight shipments were delayed at significant expense to Bax and with a negative impact on important client accounts.

In November 2002, Lindquist was informed by dock workers and other supervisors that despite repeated counseling, appellant continued to leave work early. By the end of that month, appellants doctor returned him to full duty, with no limitations or restrictions.^[3] In December 2002, Bax informed appellant that he was terminated due to his history of unsatisfactory performance.

When an employer charged with unlawful discrimination on the basis of disability proffers legitimate, unrelated reasons to justify its action, the burden of proof shifts, and it is incumbent on the plaintiff employee to attack the employers proffered reasons as pretexts for discrimination, or to offer any other evidence of discriminatory motive. (Guz, supra, 24 Cal.4th at pp. 355-356.) In light of Baxs evidence that appellants termination was supported by legitimate business reasons, due to his poor performance, the burden shifted to appellant to offer substantial evidence that the employers stated nondiscriminatory reason for the adverse action was untrue or pretextual, or evidence the employer acted with a discriminatory animus, or a combination of the two, such that a reasonable trier of fact could conclude the employer engaged in intentional discrimination. [] It is not enough for the employee simply to raise triable issues of fact concerning whether the employers reasons for taking the adverse action were sound. What the employee has brought is not an action for general unfairness but for [statutorily prohibited] discrimination. (Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1004-1005; accord, Horn, supra, 72 Cal.App.4th at pp. 806-807.)

Nor can the employee simply show the employers decision was wrong, mistaken, or unwise. Rather, the employee  must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employers 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.    (Horn, supra, 72 Cal.App.4th at p. 807; see also Guz, supra, 24 Cal.4th at p. 358; Price v. Marathon Cheese Corp. (5th Cir. 1997) 119 F.3d 330, 337 [plaintiff must show that one of the proscribed factors  actually played a role in and had a determinative influence on the employers decision-making process].) [S]ummary judgment for the employer may thus be appropriate where, given the strength of the employers showing of innocent reasons, any countervailing circumstantial evidence of discriminatory motive, even if it may technically constitute a prima facie case, is too weak to raise a rational inference that discrimination occurred. Such is the case here. (Guz, supra, at p. 362.)^[4]

Appellant claims the circumstances show discrimination, but he proffers no evidence that Baxs explanation for its actions was false or concealed an improper motive. Summary judgment on his claims for disability discrimination was proper. (See Guz, supra, 24 Cal.4th at pp. 362, 369-370; Le Bourgeois v. Fireplace Manufacturers, Inc. (1998) 68 Cal.App.4th 1049, 1058 [[a]bsent substantial responsive evidence . . . of the untruth of the employers justification or a pretext, a law and motion judge may summarily resolve the discrimination claim. ].)^[5]

Nor has appellant presented evidence that he requested accommodation for his back injury that would have required Bax to take steps to accommodate appellants limitations. (See Raine v. City of Burbank (2006) 135 Cal.App.4th 1215, 1222.) Appellant asserts that he presented substantial, credible evidence that he was denied reasonable accommodation for his disability, citing generally to an eight-page section of his separate statement of undisputed facts. This reference appears to be to a request that more dockhands were needed to handle the freight of the Bax facility.

When asked about this request at his deposition, appellant said only: I told [Lindquist] that we needed more help on the dock, because I personally was having to do the work and I had other things to do that he was requiring me to do also. When asked whether he ever told Lindquist he needed more dockhands to accommodate his back injury, appellant replied: I dont recall if I said it in those exact words or not. When asked, Isnt it true that you never asked for the extra dock help as a reasonable accommodation for your back injury? appellant replied, I dont recall which phraseof the way I put the wording, but I did ask for more dock help. Despite multiple questions on this issue during his deposition, appellant never stated that he linked his request for more dockhands to his back injury, nor did he have any documentation of making such a request. Lindquist stated that appellant never requested any accommodations because of his injury. Chuck Paterson, Baxs area director for Northern California, concurred, as did Cindy Fong, the document control person in charge of such records. In late July, before his back injury, appellant requested authority to hire additional dockhands, but he did not provide supporting data when asked to do so.

The evidence shows that appellant requested extra dockhands both before and after he was injured, and that he never sought such assistance as an accommodation for his injury. Summary judgment was properly granted against appellant on his claim that Bax failed to accommodate his disability.

B. Fraud and Deceit Claim

Appellants cause of action for fraud and deceit is premised on general statements in the Bax employee handbook to the effect that employees would be treated fairly, would not be subjected to unlawful discriminatory practices, and would be provided an opportunity to progress in their careers. Appellant also claimed Bax representatives made similar statements when appellant applied for the position, and during the course of his employment. Appellant claims those representations were proven fraudulent, because he was later subject to discriminatory treatment by Bax. But Bax was properly granted summary judgment on appellants disability discrimination claims, and appellant presented no evidence that Bax made the statements with no intention to fulfill their promise.^[6] Summary judgment was properly granted in favor of Bax on appellants fraud claim.^[7]

DISPOSITION

The judgment is affirmed.

_________________________

Siggins, J.

We concur:

_________________________

Parrilli, Acting P.J.

_________________________

Pollak, J.

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^[1] Further details regarding appellants work performance are included in our discussion of his disability discrimination claim.

^[2] Appellants declaration states that he did not respond to Lindquists request because he concluded he was no longer a supervisor after his transfer to the night shift, when he began reporting to another supervisor, although his pay and benefits did not change, and Lindquist told him he was not being demoted. The night shift supervisor said he and appellant were co-supervisors who reported directly to Lindquist.

^[3] Appellant was restricted from lifting items that weighed more than 15 pounds, and from reaching, bending, squatting, or using his arms or hands above his head. According to Baxs personnel specialist [t]here was no need to provide [appellant] with an accommodation related to his work restrictions because his position as Service Supervisor did not require physical labor. [Appellant] never talked to [her] about the need for any work accommodations, nor did [appellant] ever complain about his ability to do his job as a result of his injury.

^[4] Because Bax presented competent evidence of legitimate business reasons for its conduct, we need not consider whether the burdens are reversed on a defense motion for summary judgment against a claim of employment discrimination. (See Guz, supra, 24 Cal.4th at pp. 356-357.) Nor do we address Baxs argument that appellant failed to establish a prima facie case.

^[5] Appellants opening brief is conclusory, repetitive, and almost entirely unsupported by relevant legal authority. Not a single case is cited in appellants opening brief, and the brief statutory references simply identify the basis for appellants discrimination claim and the statute governing summary judgment. The lack of appropriately detailed citations to the record has also unnecessarily complicated this courts review of the case.

^[6] In response to Baxs undisputed material fact on this issue, appellant only stated, since BAX in fact failed to perform said promises, it must be presumed that there was no intent to perform such promises.

^[7] We therefore do not address Baxs argument that the fraud claim represented an impermissible attempt to obtain tort damages for a contract claim.