Shawn Parker v. Trader Joe’s Company, et al

Case Number

22CV03213

Case Type

Hearing Date / Time

Wed, 05/29/2024 - 10:00

Nature of Proceedings

Motion For Summary Judgment Or, In the Alternative, Summary Adjudication

Tentative Ruling

For Plaintiff Shawn Parker: Brant K. Berglund, Adam T. Carralejo, Thyne Taylor Fox Howard, LLP

For Defendants Trader Joe’s Company and Zeb Albert: Brandie N. Charles, Nicole Vongchanglor, Littler Mendelson, P.C.

RULING

For all reasons discussed herein, the Court will continue the hearing on the motion of defendants for summary judgment or, in the alternative, summary adjudication to August 14, 2024. Plaintiff and defendants are each authorized to file, respectively, a restated opposition and reply in accordance with this ruling. Any restated opposition or reply that may be filed as provided and authorized herein must be timely filed under Code of Civil Procedure section 436c, subdivision (b)(2) & (4). No party shall file any additional papers supporting or opposing the motion of defendants except as provided herein. The parties shall appear at the hearing on the present motion for summary judgment and be prepared to discuss the new trial date and timelines.

The Date of the Summary Judgment Motion is 8/14/24 at 10am; the restated Opposition is due 7/31/24; the restated Reply is due 8/9/24.

The TCC is continued from 6/26/24 to 9/25/24 at 11:30am. All trial related cut-off dates are set against the new trial date.

Background

On August 18, 2022, plaintiff Shawn Parker (plaintiff) filed his original complaint in this matter against defendants Trader Joe’s Company (Trader Joe’s) and Zeb Albert (Albert). Trader Joe’s filed its answer to the original complaint of plaintiff on November 23, 2022, generally denying its allegations and asserting forty-seven affirmative defenses. On February 23, 2023, plaintiff filed a request for dismissal of this action, without prejudice, as to Albert.

On October 12, 2023, with leave of court, plaintiff filed a verified first amended complaint (the FAC) again naming Albert and adding defendant Caroline Neufeld (Neufeld), and alleging ten causes of action: (1) discrimination in violation Government Code section 12900 et seq. (the California Fair Employment and Housing Act or FEHA) (disability) (against Trader Joe’s only); (2) discrimination in violation of FEHA (race) (against Trader Joe’s only); (3) harassment in violation of FEHA (hostile work environment) (against Trader Joe’s, Albert, and Neufeld); (4) retaliation in violation of FEHA (against Trader Joe’s only); (5) failure to accommodate disability (against Trader Joe’s only); (6) failure to engage in good faith interactive exchange re: accommodation of disability (against Trader Joe’s only); (7) failure to prevent harassment, retaliation or discrimination in violation of FEHA (against Trader Joe’s only); (8) violation of rights under the California Family Rights Act (CFRA) (against Trader Joe’s only); (9) wrongful termination in violation of public policy (against Trader Joe’s only); and (10) intentional infliction of emotional distress (against Trader Joe’s, Albert, and Neufeld). As alleged in the FAC:

Plaintiff was employed by Trader Joe’s as a crew member stocker/loader from July 1, 2006, until his termination on August 11, 2021. (FAC, ¶¶ 2, 16.) Plaintiff performed his job functions and duties in Trader Joe’s retail store located in the County of Santa Barbara, and in a satisfactory manner as acknowledged by Trader Joe’s. (Id. at ¶¶ 17, 18.) In February 2020, plaintiff received a very positive performance evaluation. (Id. at ¶ 23.)

During his employment with Trader Joe’s, plaintiff sustained multiple injuries from July 1, 2006, to September 27, 2015, including on July 31, 2011 and January 15, 2015. (FAC, ¶ 19.) Trader Joe’s provided health treatment and benefits to plaintiff through its workers’ compensation carrier. (Id. at ¶ 20.) As a result of plaintiff’s medical condition, plaintiff required reasonable accommodations which included lost time, surgery, and work limitations which were acknowledged by Trader Joe’s. (Id. at ¶ 21.) Trader Joe’s generally allowed plaintiff limited time away from work to receive treatment for his injuries and conditions. (Id. at ¶ 24.)

In August 2020, Albert became plaintiff’s manager. (FAC, ¶ 25.) After becoming plaintiff’s manager, Albert “commenced a systematic pattern of harassment, hostility, singling out, mistreatment and disparate treatment toward plaintiff, subjecting plaintiff to ridicule, criticism that was unjustified, and other adverse actions that negatively impacted plaintiff’s ability to perform his job functions. The mistreatment included cutting plaintiff’s work hours without justification, which resulted in a loss of medical insurance benefits to Plaintiff’s great detriment.” (Id. at ¶ 26.) Albert’s actions toward plaintiff were motivated by plaintiff’s race (African American) and disability due to the workplace injuries occurring from 2006 through 2015. (Id. at ¶ 27.)

Specifically, Albert changed store policy by decreeing that only shifts of 4 or 7 and half-hours were permitted. (FAC, ¶ 28.) Plaintiff had worked a 6 hour shift, 5 days per week, for an extended period. (Ibid.) Albert knew plaintiff could not work a full 7 and a half-hour shift due to plaintiff’s ongoing injuries and health issues. (Ibid.) As a result, in December 2020, plaintiff was notified that he would lose his health care benefits due to not meeting the minimum hours requirement. (Id. at ¶ 29.) Plaintiff was deprived of all medical and health insurance through July 2021. (Id. at ¶ 30.)

In January 2021, plaintiff contacted Vivian Wong (Wong) and Neufeld, who are, respectively, the Human Resources Manager and Region Manager for Trader Joe’s, regarding the adverse action and advised Wong and Neufeld that he had pre-existing medical conditions and provided medical insurance for his son. (FAC, ¶ 30.) On January 18, 2021, Trader Joe’s acknowledge plaintiff’s opposition to the mistreatment. (Id. at ¶ 31.)

On February 23, 2021, Albert gave plaintiff a negative performance evaluation. (FAC, ¶ 32.) Plaintiff provided a written response to the negative performance evaluation in which plaintiff opposed what he perceived to be discriminatory and improper treatment. (Id. at ¶ 33.)

Neufeld came to Trader Joe’s store, unannounced, to meet with plaintiff regarding his written response to Albert’s evaluation and to discuss plaintiff’s review. (FAC, ¶ 34.) During this meeting, Neufeld brought up an attendance issue without prior notice and absent any prior violation. (Id. at ¶ 35.) Plaintiff objected to the negative performance evaluation and requested documentation of the alleged issue which Neufeld did not offer because, according to Neufeld, non was required. (Id. at ¶¶ 35, 36.) Plaintiff indicated his belief that Trader Joe’s policies required proper notice to an employee of performance issues and a chance to correct same. (Id. at ¶ 35.) Albert continued to engage in adverse actions against plaintiff. (Id. at ¶¶ 38-41.)

On August 2, 2021, Trader Joe’s conducted a “crew review” to assess plaintiff’s job performance and stated that plaintiff was meeting expectations “in every category” and describing plaintiff as “exhibiting considerable improvement, as solid, versatile, valuable, integral, that he does an excellent job, and provides a WOW customer experience.” (FAC, ¶ 42.) On the same date, plaintiff notified Albert and Trader Joe’s manager that he needed to take time off for hand surgery starting on September 3, 2021. (Id. at ¶ 43.) On August 11, 2021, without any warning or justification, Trader Joe’s and Albert terminated plaintiff employment because, according to an incident report, on August 5, 2021, plaintiff entered the Trader Joe’s store without a face covering to pick up his paycheck. (Id. at ¶ 44.) Defendants’ termination of plaintiff was inconsistent with any health mandates or policies regarding Covid procedures in effect on the date of the alleged misconduct including any requirement that employees or customers wear masks. (Id. at ¶ 47.)

On December 19, 2023, Trader Joe’s, Albert, and Neufeld filed a demurrer to the third and tenth causes of action alleged in the FAC which was opposed by plaintiff. On January 1, 2024, the Court issued its Minute Order sustaining the demurrer to the third cause of action as to Neufeld, with leave to amend, and sustaining the demurrer to the tenth cause of action as to Trader Joe’s, Albert, and Neufeld without leave to amend. (Jan. 1, 2024, Minute Order.) Noting that plaintiff had elected not to file a second amended complaint, the Court ordered Trader Joe’s and Albert to file and serve their answer to the FAC on or before February 24, 2024. (Ibid.)

Court records reflect that on February 15, 2024, attorney Jonathan McKee of the McKee Law Firm (McKee) filed an ex parte application to be relieved as counsel for plaintiff (the McKee application), citing a conflict between himself and plaintiff. (See Feb. 15, 2024, McKee Decl.) In response, on February 16, 2024, plaintiff filed a declaration requesting that the court deny the McKee application which plaintiff characterized as an effort to “abandon” plaintiff with trial only a few months away because plaintiff was not aware of any conflict and had no desire to retain new or different counsel. (Feb. 16, 2024, Parker Decl., ¶¶ 3 & 5-6.) McKee filed a subsequent motion to be relieved as plaintiff’s counsel on February 20, 2024.

On February 20, 2024, the Court issued its order granting the McKee application and stating its expectation that plaintiff would appear at a Case Management Conference scheduled in this action on March 6, 2024, either with new counsel or with an explanation as to whether plaintiff intended to represent himself. (Feb. 20, 2024, Order After Hearing.)

Trader Joe’s and Albert (collectively, “defendants”) filed their verified answer to the operative FAC on February 23, 2024.

As reflected in the Court’s March 6, 2024, Minute Order, plaintiff appeared at the March 6, 2024, Case Management Conference in a self-represented capacity and informed the Court that he had retained new counsel. Plaintiff requested a continuance to allow new counsel to review the case and make an appearance. (Mar. 6, 2024, Minute Order.) At the same conference, defendants informed the court that they would file a motion for summary judgment by March 8, 2024. (Ibid.)

On March 8, 2024, defendants filed the present motion for summary judgment or, alternatively, summary adjudication of each cause of action alleged in the FAC (the motion or present motion).

On March 11, 2024, defendants filed an ex parte application for an order either shortening the thirty day notice period for the hearing on the motion or continuing the trial date to June 28, 2024. The Court has no record of plaintiff having filed an opposition to the March 11, 2024, ex parte application of defendants which was granted on March 12, 2024. In its March 12, 2024, Order After Hearing, the Court ordered that the motion for summary judgment of defendants be heard on May 29, 2024.

On April 9, 2024, plaintiff filed a substitution of attorney substituting attorney Brant K. Berglund as plaintiff’s counsel in this matter.

On May 8, 2024, plaintiff filed an opposition to the motion and concurrent ex parte application to continue the hearing on the motion on the grounds that defendants had unreasonably delayed the taking of depositions necessary to establish evidentiary issues in this matter with respect to a purported racially charged statement made by Albert. Defendants opposed the May 8, 2024, ex parte application of plaintiff.

On May 13, 2024, the Court issued an order noting that the deposition of Albert was set for May 20, 2024. The Court authorized the filing of a sur-reply to the motion by plaintiff no later than noon on May 24, 2024, following the deposition of Albert, noting that a sur-reply should afford plaintiff an opportunity to address evidentiary issues. (See May 13, 2024, Order After Hearing.) The Court did not permit the filing of a response to the sur-reply to be filed by plaintiff but noted that defendants would be permitted to assert further argument with respect to the issues presented by plaintiff in the sur-reply at the hearing on the motion. (Ibid.)

Analysis

Based on information appearing in the proof of service filed concurrently with the present motion of defendants, defendants served the motion on plaintiff, while plaintiff was a self-represented party, by emailing to plaintiff a link to the papers filed in support of the motion. There exist questions regarding the validity or effectiveness of electronic service of the present motion on plaintiff while he was a self-represented party, including whether plaintiff affirmatively consented to electronic service of the present motion. (Cal. Rules of Court, rule 2.251(c)(3)(B).)

Notwithstanding whether service of the present motion on plaintiff by electronic means was effective, the procedural history relating to the filing of the present motion as further discussed above reflects that the Court, in the interests of efficiently determining the applications for relief brought by the parties on an ex parte basis as further detailed above, considered issues relating to the present motion in a piecemeal manner without the benefit of full briefing. The piecemeal and expedited manner in which various procedural and other issues were raised in connection with the present motion did not afford the Court with a meaningful opportunity to view these matters as a whole or in context also considering the self-represented status of plaintiff during relevant times.  

Upon further reflection and considering the expedited and fragmentary manner in which procedural and other matters were determined in connection with the motion and that plaintiff did not have the benefit of legal representation throughout, the resulting present structure within which the court must address and dispose of the motion presents obstacles to the efficient and orderly determination of the parties’ respective evidentiary presentations and legal arguments and implicates due process concerns. Considering these due process and other concerns, and in the interests of justice, the court will continue the hearing on the present motion.

In addition, it can be reasonably inferred from the totality of the circumstances present here that plaintiff’s self-represented status may have impacted his ability to understand the law and court procedures relating to the present motion, to prepare and complete adequate filings, and to conduct or complete discovery necessary to effectively oppose the present motion. For these reasons, the Court will authorize the filing and service of a restated opposition by plaintiff. Any restated opposition that may be filed by plaintiff shall replace the opposition filed prior to this ruling and must include all evidence and arguments that plaintiff intends to offer. The restated opposition must have evidentiary support and include an opposing separate statement that fully complies with California Rules of Court, rule 3.1350(f).

In addition, the Court will authorize the filing of a procedurally and substantively appropriate restated reply by defendants in response to any restated opposition that may be filed by plaintiff. Apart from the restated reply authorized herein, defendants shall not file any additional papers in support of the present motion.

Nothing herein shall be construed to prevent plaintiff from conducting discovery necessary to oppose the present motion or from filing any future timely and procedurally appropriate discovery motions including, if necessary, any motion for an order compelling answers to deposition questions under Code of Civil Procedure section 2025.480, notwithstanding the Court’s May 20, 2024, Order After Hearing. The Court expects that the parties will cooperate in good faith to complete any necessary discovery sufficiently prior to the continued hearing on the present motion.

The court will continue the trial confirmation conference presently scheduled for June 26, 2024. The court will further order the parties to appear at the hearing on the present motion to discuss a trial date to follow the continued hearing on the motion and the dates when their respective pleadings are due.