Opinion
B220019
08-01-2011
DENNIS LESINSKY, Plaintiff and Appellant, v. UNITED PARCEL SERVICE, INC. Defendant and Respondent.
Mancini & Associates, Marcus A. Mancini, Christopher Barnes and Timothy J. Gonzales; Benedon & Serlin, Douglas G. Benedon and Kelly R. Horwitz for Plaintiff and Appellant. Paul, Hastings, Janofsky & Walker, George W. Abele, Holly R. Lake and Nicole M. Herter for Defendant and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. BC395091)
APPEAL from a judgment of the Superior Court of Los Angeles County. Ronald M. Sohigian, Judge. Affirmed.
Mancini & Associates, Marcus A. Mancini, Christopher Barnes and Timothy J. Gonzales; Benedon & Serlin, Douglas G. Benedon and Kelly R. Horwitz for Plaintiff and Appellant.
Paul, Hastings, Janofsky & Walker, George W. Abele, Holly R. Lake and Nicole M. Herter for Defendant and Respondent.
Dennis Lesinsky, a former employee, brought action against United Parcel Service, Inc. (UPS), his employer, asserting disability discrimination and retaliation under the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12940 et seq.) and retaliation and wrongful termination in violation of public policy. The trial court granted UPS's motion for summary judgment/summary adjudication and entered judgment in favor of UPS. Lesinsky timely appealed from the judgment. Lesinsky contends he established a prima facie case of disability discrimination and retaliation and evidence that UPS's reasons for his termination were pretextual. We affirm.
Unless otherwise noted, all statutory references are to the Government Code.
FACTUAL AND PROCEDURAL HISTORY
I. Factual Background
Lesinsky's employment with UPS began as a "loader/unloader" of package trucks in June 1989. In 1995, Lesinsky was promoted to utility driver. As a utility driver, Lesinsky picked up and delivered packages, but was not assigned to a permanent route. In January 2006, Lesinsky tore a ligament in his right ankle while on the job, and UPS placed him on light duty for two months. Lesinsky's ankle failed to heal properly, and he required surgery. Lesinsky was on medical leave from March 20, 2006, to March 11, 2007. When he returned, Lesinsky resumed working as a driver.
During his medical leave, Lesinsky asked Roger Flores, his supervisor, to approve payment of his vacation pay while he was out of work due to his disability. When Flores refused to do so, Lesinsky asked Bill McKimmons, Flores's boss, to approve payment. McKimmons also refused to authorize vacation pay. On March 12, 2007, Lesinsky filed a union grievance regarding McKimmons's failure to authorize his vacation pay.
The day after Lesinsky filed his union grievance, Lesinsky returned to work. Pursuant to UPS's practice, Flores accompanied Lesinsky on the first day he drove a truck. The purpose of the ride-along was for Flores to ensure that Lesinsky could safely return to work and to re-train him on how to safely perform his job and avoid further injury. During the ride-along, Lesinsky told Flores that his ankle continued to bother him and it was interfering with his ability to complete his scheduled stops in the time allotted. Flores said he would address Lesinsky's concerns. When Lesinsky continued to ask for help, Flores responded with "„[j]ust get it done.'" However, Lesinsky did not call his doctor that day nor did he report any injury to UPS's workers' compensation carrier. At the time, Lesinsky stated that he thought he only needed a few days of rest.
The week after his ride-along with Flores, Lesinsky had to bid on a route. Utility drivers were not assigned to permanent routes; instead, they had to bid on routes that were available. As of 2007, Lesinsky was one of the most senior utility drivers, and pursuant to seniority guidelines in his collective bargaining agreement, Lesinsky could bid on any route he desired. Lesinsky bid on Route 23-B, the same route he had been driving prior to his leave of absence.
However, between the time when Lesinsky was awarded this route and when he began driving it, UPS added additional stops to the route. Lesinsky asserts that his ankle injury limited his ability to do his work, and therefore he could not complete all of his stops due to the increase in workload. In accordance with routine practice when a driver knows he will be unable to complete his deliveries on time, Lesinsky asked Flores, his supervisor, for help to complete his route on the first day of his route. Lesinsky also made the same request on his second and third days before Flores provided assistance. For three days in a row, other drivers were dispatched to help Lesinsky finish his route. That was the only type of help Lesinsky requested.
Lesinsky believed the geographic area he was assigned as part of his route was not safe because of past incidents of violence that had occurred in the area. Lesinsky did not believe he was in immediate danger, but he wanted the dangerous areas removed from his route. On March 19, Lesinsky called the UPS complaint hotline to complain that Flores repeatedly ignored his concerns about Route 23-B. The compliance report for the March 19 call only refers to Lesinsky's concerns with the past incidents of violence; the report does not mention any injury or discrimination.
On March 21, Flores and Curtis Perry, the co-chair of UPS's safety committee, conducted surveillance on Lesinsky and two other drivers while they worked on their routes. Each of these employees were on UPS's "RIP RAP" list. The "RIP RAP" list is comprised of drivers who have had prior injuries. The purpose of this list is for UPS to observe every driver on the list to ensure that each driver performs safely following an injury.
Perry and Flores first observed another employee. At the conclusion of that observation, they began to observe Lesinsky. At the first stop, Flores believed Lesinsky was taking what "seemed like a long time" but did not write down the time for that particular stop. As a result, Flores decided to record the time for Lesinsky's next stop at 4500 Dunham Street at around 4:03 p.m. Then, at approximately 4:22 p.m., about 19 minutes later, Flores and Perry decided to go into the building to see what Lesinsky was doing.
Lesinsky asserts the record is inconsistent on the issue of timing. In one document, Flores indicated that Lesinsky was at 4500 Dunham for 25 minutes, instead of 19 minutes. Perry recalled Lesinsky was in the building sometime between 3:00 to 4:00 p.m., but he could have been wrong. Lesinsky claims he arrived at 4500 Dunham at approximately 3:50 p.m. and took his permitted 15-minute break. Lesinsky states that he left around 4:05 p.m. UPS's records showed Lesinsky took his break from 3:50 to 4:00 or 4:02.
UPS states that when Flores entered the 4500 Dunham building, Flores saw Lesinsky sitting in a chair with one leg propped up in a relaxed position and inputting information into his DIAD, a handheld device that drivers use to scan and track packages. Lesinsky asserts that Flores's version of the facts is contradicted by the record. Perry stated he entered the shop and also saw Lesinsky sitting in a chair, but did not notice whether Lesinsky was holding a DIAD because he "walked in, [] turned around and went back out."
At this point, Flores asked Lesinsky to step outside and speak to him. During this encounter, Lesinsky told Flores that he was taking his permitted 15-minute break and speaking with the receptionist. Flores admonished Lesinsky for parking his truck incorrectly and for being inside a customer's business without picking up a package. Flores also asked Lesinsky how long he had been inside the building. Lesinsky responded by stating it was "'no big deal'" that his truck was parked on the wrong side of the road and by asking why Flores was harassing him. Flores then told Lesinsky to finish his stops and said they would discuss it later.
When Flores returned to the UPS center, he spoke with center manager McKimmons and reported what he had witnessed. As a result of the incident, McKimmons examined Lesinsky's time records for that day. Flores told McKimmons that he had observed Lesinsky at 4500 Dunham from 4:00 to 4:30 p.m. Lesinsky had not recorded any breaks between 4:00 and 4:30 p.m. After reviewing Lesinsky's records, McKimmons believed Lesinsky had recorded pick-ups during that timeframe in intervals to make it appear as if he had been traveling to each stop. Lesinsky's deliver records reflected deliveries at 4:07, 4:10, and 4:14 during the time in which Flores noted Lesinsky was inside the office at 4500 Dunham. Based on his review of the records, McKimmons believed Lesinsky had been dishonest and falsified records. Therefore, McKimmons recommended Lesinsky's termination to the package division manager Charlie Brooks. Brooks then independently reviewed the records and decided to terminate Lesinsky.
Brooks approved Lesinsky's termination based on Flores's report and the DIAD records, concluding that Lesinsky had been dishonest and falsified records. The DIAD records indicated Lesinsky was completing stops on his route when Lesinsky was purportedly lounging at 4500 Dunham. Brooks conducted no further investigation beyond receiving Flores's report and reviewing Lesinsky's DIAD records.
On March 26, UPS told Lesinsky to leave and said that he would be granted a paid sick day. The next day, when Lesinsky reported to work, he was called into a meeting with McKimmons, Flores, union representatives, and a security supervisor. At that time, Lesinsky received a written warning for parking his truck incorrectly. The other drivers on the RIP RAP list did not receive a written warning or formal discipline even though they committed more egregious safety violations. Flores stated that the reason for this difference was because the other drivers acknowledged the safety violations. In contrast, Lesinsky did not acknowledge his safety violations, and, instead complained that Flores was harassing him.
At the March 26 meeting, McKimmons also told Lesinsky that he was being discharged for "dishonesty."
Lesinsky stated he entered his stop at 4422 Dunham on his DIAD without actually being at that location. Lesinsky claims that his action of inputting information into his DIAD is not necessarily improper conduct. For example, if a customer informs a UPS driver that there will be no packages for delivery that day, the driver must mark the stop as "complete" even though he did not physically stop there. A driver cannot sign out at the end of the day without having all stops marked as complete in his DIAD.
After his termination, Lesinsky filed a union grievance. His termination was upheld and he appealed at arbitration. The arbitrator upheld Lesinsky's termination.
II. Procedural Background
At the time of the summary judgment motion, the operative complaint, the second amended complaint, asserted causes of action for physical disability discrimination and retaliation in violation of FEHA, violation of the Family Rights Act (§ 12945.2 et seq.), and wrongful termination in violation of public policy. The trial court entered judgment in favor of UPS and against Lesinsky on all causes of action.
Lesinsky does not challenge the court's ruling on the Family Rights Act cause of action.
Regarding the FEHA disability discrimination cause of action, the court found Lesinsky failed to establish a prima facie case. Specifically, the court found Lesinsky did not have any evidence that he was "disabled" or regarded as disabled at the time of termination. Lesinsky's admission of misconduct "rendered him not qualified to perform his job." UPS "terminated him for legitimate, non-discriminatory reasons: it believed Lesinsky was dishonest and that he falsified business records." Additionally, Lesinsky did not have any evidence of pretext.
Regarding the FEHA retaliation cause of action, the court found Lesinsky could not establish a prima facie case. Specifically, Lesinsky did not have evidence that he engaged in conduct protected by FEHA. Nor did Lesinsky have evidence that there was any causal connection between any purported protected conduct and his termination. The court granted summary adjudication on several issues, including Lesinsky's claims for punitive damages and wage-related damages.
DISCUSSION
I. Summary Judgment Standard
On appeal from a grant of summary judgment, this court examines the record de novo to determine whether triable issues of material fact exist. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 767.) Where a case involves allegations of intentional discrimination, retaliation or a claim of wrongful termination in violation of public policy, this court utilizes a three-step analysis known as the McDonnell Douglas test. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354.) First, the plaintiff must establish a prima facie case of discrimination. (Id. at p. 354.) Once the prima facie burden is met, a presumption of discrimination arises. (Id. at p. 355.) Then, the burden shifts to the defendant to produce admissible evidence that its action was taken for a legitimate, nondiscriminatory reason. (Id. at pp. 355-356.) Finally, once the employer has done so, the plaintiff must offer evidence that the employer's stated reason is either false or pretextual, or evidence that the employer acted with discriminatory animus, or evidence of each which would permit a reasonable trier of fact to conclude the employer intentionally discriminated. (Id. at p. 356.)
It is important to keep in mind that the McDonnell Douglas test was originally developed for use at trial, not in summary judgment proceedings. (Sada v. Robert F. Kennedy Medical Center (1997) 56 Cal.App.4th 138, 150.) By applying McDonnell Douglas's shifting burdens of production in the context of a motion for summary judgment, "'"the judge [will] determine whether the litigants have created an issue of fact to be decided by the jury."'" (Ibid.) Thus, although the burden of proof in a discrimination action claiming an unjustifiable termination ultimately rests with the plaintiff, in the case of a motion for summary judgment or summary issue adjudication, the burden rests with the moving party to negate the plaintiff's right to prevail on a particular issue. (Arteaga v. Brink's, Inc. (2008) 163 Cal.App.4th 327, 343-344.)
"There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) In making this determination, the moving party's affidavits are strictly construed, while the opposing affidavits are liberally construed. (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107.) All doubt must be resolved in favor of the party opposing summary judgment. (McDonald v. Antelope Valley Community College Dist. (2008) 45 Cal.4th 88, 96-97.)
In its motion for summary judgment, UPS made two arguments. First, UPS argued Lesinsky could not establish a prima facie case of disability discrimination or retaliation because he was not disabled, had not engaged in protected conduct, and could not show a causal link between his status or conduct and his termination. In the alternative, UPS asserted even if Lesinsky established a prima facie case of discrimination or retaliation, his claims failed because UPS had a legitimate non-discriminatory reason for firing him.
II. Disability Discrimination
A. Prima Facie Case
The FEHA makes it an unlawful employment practice to discriminate against any person because of a physical or mental disability. (§ 12940, subd. (a).) "A prima facie case for discrimination 'on grounds of physical disability under the FEHA requires plaintiff to show: (1) he suffers from a disability; (2) he is otherwise qualified to do his job; and, (3) he was subjected to adverse employment action because of his disability.'" (Faust v. California Portland Cement Co. (2007) 150 Cal.App.4th 864, 886.) Lesinsky contends he suffered an adverse employment action, i.e., termination (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1054), when UPS discriminated against him based on his physical disability, an ankle injury, even though he was qualified to do his job. Basically, Lesinsky's claim he was disabled is based on the fact he continued to have ankle pain when he returned to work.
B. Physical disability
The statutory definition of "physical disability" includes "[h]aving a record or history of a disease, disorder, condition, cosmetic disfigurement, anatomical loss, or health impairment . . . which is known to the employer." (§ 12926, subd. (k)(3).) Importantly, the physiological condition or impairment must be such that it "limits a major life activity," meaning it "makes the achievement of the major life activity difficult." (§ 12926, subd. (k)(1)(B)(ii).)
To come within the FEHA definition of physical disability, plaintiff need only show that his condition limits participation in a major life activity, not that it substantially limits such participation as required under the Americans with Disabilities Act. (Colmenares v. Braemar Country Club, Inc. (2003) 29 Cal.4th 1019, 1030-1031.) By statute, "physical disabilities" include, but are not limited to, chronic or episodic conditions such as HIV/AIDS, hepatitis, epilepsy, heart disease and multiple sclerosis. (§ 12926.1, subd. (c).) Generally, an ankle injury is not analogous to those chronic or episodic conditions.
In addition, courts have found several other impairments to be "physical disabilities" under FEHA. Under the FEHA, an impairment may be considered something that interferes with a major life activity. (§ 12926, subd. (k)(1)(B).) "Working" is a major life activity regardless of whether the employee cannot perform "a particular employment or a class or broad range of employments." (Italics added.) (§ 12926.1, subd. (c).) However, pain alone does not by itself constitute a disability; rather, the issue centers on how the pain specifically affects the employee. (Arteaga v. Brink's, Inc., supra, 163 Cal.App.4th at p. 348.)
For example, in Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 220, plaintiff worked at the store as a meat cutter and injured his wrist. Pursuant to his collective bargaining agreement, plaintiff was on multiple leaves of absence; plaintiff's doctor issued a return to work order stating the plaintiff was not to engage in "'heavy lifting, pulling, and pushing.'" (Ibid.) The court recognized the plaintiff's injury constituted a "physical disability" under FEHA and noted, "'"A disability is considered permanent after the employee has reached maximum improvement or his condition has been stationary for a reasonable period of time."'" (Id. at p. 220 fn. 2.)
Although UPS had placed Lesinsky on light duty due to his ankle injury and then on a year-long medical leave to address the injury, Lesinsky did not have any work restrictions when he came back to work. At times, an employee released from a physician's care without work restrictions can still invoke the FEHA's protections. (See Angell v. Peterson Tractor, Inc. (1994) 21 Cal.App.4th 981, 987 [employee who returned to work after a heart attack]; Raytheon Co. v. Fair Employment & Housing Com. (1989) 212 Cal.App.3d 1242, 1245, 1248-1250 [employee released to work with no restrictions after AIDS diagnosis].) An ankle injury is not similar to a heart attack or AIDS which by itself would put an employer on notice of a disability.
Lesinsky claims that problems with his injury began to appear after he began working his route and that he told Flores his ankle was bothering him. Specifically, Lesinsky told Flores that his injured ankle would prohibit him from completing his routes.
However, when Lesinsky returned to work, he believed he could do his job and told UPS he had been cleared by his doctor to do his job. Lesinsky did not ask for any accomodation other than some help in completing his route. On the day Flores observed him, Lesinksy did not call his doctor nor did he report any injury to UPS's workers' compensation carrier. At the time, Lesinsky stated that he thought he only needed a few days of rest. Lesinsky testified that the only limitations he had as a result of his ankle injury were that he could not snowboard and could not be as engaged and aggressive in coaching his sons' sports teams as prior to his injury and that he was somewhat slower in performing his deliveries, but could perform his job. Thus, Lesinsky's difficulties were temporary, not permanent, and not a disability.
Additionally, "'[a]n adverse employment decision cannot be made "because of" a disability when the disability is not known to the employer.'" (Avila v. Continental Airlines, Inc. (2008) 165 Cal.App.4th 1237, 1247.) For example, in Avila, forms submitted by the plaintiff's health care provider showed he had been hospitalized for three days but did not contain sufficient information to put the employer on notice that the plaintiff suffered from a disability. (Id. at pp. 1247-1248.) UPS knew Lesinsky was coming back from an injury since he was on their "RIP RAP" list. Lesinsky states he alerted Flores that his ankle injury hampered his ability to do his job. However, that is evidence that UPS knew he had been injured, but not that it knew he was disabled. (See Winarto v. Toshiba America Electronics Components (9th Cir. 2001) 274 F.3d 1276, 1291 [The court affirmed the district court's reversal of a jury verdict for disability discrimination under FEHA due to insufficient evidence the plaintiff was perceived as disabled, as the plaintiff's injuries (which included an ankle injury) and work restrictions were temporary.].)
Lesinsky admitted he was not sure who at UPS believed he was disabled. "While knowledge of [a] disability can be inferred from the circumstances, knowledge will only be imputed to the employer when the fact of disability is the only reasonable interpretation of the known facts." (Brundage v. Hahn (1997) 57 Cal.App.4th 228, 237.) UPS could reasonably infer any problems Lesinsky was having were temporary.
Thus, Lesinksy did not establish a prima facie case of disability discrimination as he did not adduce proof that he was disabled or that UPS regarded him as disabled.
C. Pretext
Pursuant to UPS's employment standards, Lesinsky signed UPS's honesty in employment policy, which emphasized the importance of honesty. The collective bargaining agreement governing Lesinsky's employment included procedures for discipline and discharge. Certain transgressions were identified as so serious as to result in immediate termination; one such transgression was "[p]roven dishonesty."
Flores filed a report that Lesinsky was fraudulently entering stops into his DIAD when he was not dropping off or picking up packages. UPS reviewed Flores's report and Lesinsky's DIAD records. Once UPS noticed there was a discrepancy, they fired Lesinsky for fraud. Dishonesty in the workplace is a legitimate non-retaliatory reason for termination. (See Gosvener v. Coastal Corp. (1996) 51 Cal.App.4th 805, 812 disapproved on another point in Colmenares v. Braemar Country Club, Inc., supra, 29 Cal.4th at p. 1031, fn. 6.)
"[T]o avoid summary judgment, an employee claiming discrimination must offer substantial evidence that the employer's stated nondiscriminatory reason for the adverse action was untrue or pretextual, . . ." (Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1004-1005.)
Lesinsky argues the key details of when he arrived at 4500 Dunham, how long he stayed and whether he was inputting information into his DIAD are disputed. According to Lesinsky UPS's finding he was dishonest rests on Flores's claim he was at 4500 Dunham from 4:03 to 4:22 p.m. Lesinsky argues his testimony shows he took his break from 3:50 to 4:00 p.m. when Flores entered the building and insisted on speaking with him, he stepped outside, spoke with Flores, and continued on his way at 4:05 p.m. to complete his stops. Lesinsky argues Perry's recollection that Lesinsky arrived prior to 4:00 p.m. and Perry did not see Lesinsky inputting information into his DIAD supported Lesinsky's testimony as did his official time sheets from that day.
In King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 433, the trial court found UPS fired King for violating its integrity policy by either personally falsifying a driver's timecard or directing the driver to do so. The appellate court reasoned: "Good cause, in the context of implied employment contracts, means 'fair and honest reasons, regulated by good faith on the part of the employer, that are not trivial, arbitrary or capricious, unrelated to business needs or goals, or pretextual.' The question critical to UPS's liability is not whether plaintiff in fact violated the integrity policy by encouraging a subordinate to falsify his timecard, but whether UPS, acting in good faith following an appropriate investigation, had reasonable grounds for believing plaintiff had done so." (Id. at p. 438.) The court observed, "The Supreme Court is unwilling to compel employers to undertake a precise type of investigation as long as the process is inherently fair." (Id. at p. 439.)
The crux of Lesinsky's argument is that Flores's account was not worthy of credence, and, if Flores's version is not credible, then UPS's claim it terminated him for dishonesty is also not credible. McKimmons and Brooks conducted independent investigations by examining Lesinsky's time records and considering Flores's claim. Obviously it would have been better if Brooks or McKimmons had questioned Lesinsky about the charge. However, at his deposition, Lesinsky stated his action of inputting information into his DIAD was not necessarily improper conduct as, for example, if a customer informs a driver there are no packages for delivery that day, the driver must mark the stop as "complete" even though he did not physically stop there and a driver cannot sign out at the end of the day without having all stops marked as complete. However, Lesinsky presented no evidence that was an acceptable practice nor of any discriminatory animus on the part of Flores.
In addition, Lesinsky argues Brooks's failure to conduct an independent investigation into Flores's account tainted the process. In Kariotis v. Navistar Intern. Transp. Corp. (7th Cir. 1997) 131 F.3d 672, 674-675 the employer hired a company to videotape an employee who was claiming disability benefits, but did not speak to the employee or her doctor about its suspicions her claims were false before it fired her. The court reasoned, "Objectively speaking, [the company's] investigation left something to be desired, " but concluded, the employer was still entitled to summary judgment despite poor fact finding "if the company honestly believed in those reasons, the plaintiff loses even if the reasons are foolish or trivial or baseless." (Id. at pp. 675-676.) "[T]he question is not whether the employer's reasons for a decision are 'right but whether the employer's description of its reasons is honest.'" (Italics deleted.) (Id. at p. 677.)
In Gill v. Reorganized Sch. Dist. R-6 Festus, Mo. (8th Cir. 1994) 32 F.3d. 376, 378-379 a school district discharged a substitute teacher because the superintendent believed the teacher had called a student an offensive racial name, but did not meet with the teacher prior to the discharge. The court affirmed the district court's grant of summary judgment in favor of the district, reasoning: "Incorrect thinking on the superintendent's part does not prove the school district's explanation is a pretext. We are not permitted to second guess the superintendent or to correct an unwise decision if the superintendent gave an honest, nondiscriminatory explanation for his behavior." (Citation omitted.) (Id. at p. 379.)
Flores observed that Lesinsky remained longer than he should have at two locations. Perry's testimony Lesinsky entered 4500 Dunham between 3:00 and 4:00 p.m. did not conflict with Flores's testimony, Perry was simply more inexact. Also, Perry did not see Lesinsky inputting information because he walked in, turned around and left, i.e., he was not paying attention; Perry's testimony did not corroborate that of Lesinsky. Moreover, Lesinsky's time records were based on his entries into his DIAD. Thus, which version to believe was a credibility determination and the cases cited by Lesinsky in which the court concluded an investigation was not independent because it was based on a biased account are inapposite. There is no reasonable inference that the reason given by UPS for terminating Lesinsky was not honest.
Accordingly, UPS established it had a legitimate, non-discriminatory reason for terminating Lesinsky's employment and Lesinsky did not adduce evidence that reason was a pretext. Thus, the court properly granted summary judgment on the claim of disability discrimination.
III. Retaliation
To establish a prima facie case for retaliation in violation of FEHA, a plaintiff must demonstrate (1) he engaged in protected activity, (2) his employer was aware of the activity protected by FEHA, and (3) there is a causal link between the protected activity and the employer's action. (See Flait v. North American Watch Corp., supra, 3 Cal.App.4th at p. 476.) Specifically, Lesinsky failed to provide evidence that he participated in protected activity.
Lesinsky's purported protected conduct was the filing of two formal complaints against his supervisors through UPS's internal grievance processes. The first was when he lodged a grievance over McKimmons's failure to authorize vacation pay for when Lesinsky was out on medical leave for disability. The second was when Lesinsky called UPS's hotline to complain about the safety of his route. The evidence on the record demonstrates that neither of these activities had a relationship to an employment practice proscribed by the FEHA such that the substance of the complaint related to prohibited conduct.
Section 12940, subdivision (h) provides that retaliation claims can be based on "oppos[ing] any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part." In order to be considered protected conduct under the FEHA, the employee must oppose activity that is expressly forbidden by FEHA including discrimination, harassment, or retaliation on the basis of a protected characteristic. (§ 12940, subd. (a); Villanueva v. City of Colton (2008) 160 Cal.App.4th 1188, 1198-1999 [finding no protected conduct where the substance of the employee's grievances was not conduct that had anything at all to do with discrimination protected under FEHA].)
In Villanueva v. City of Colton, supra, 160 Cal.App.4th at page 1199, the plaintiff argued that he engaged in protected conduct under the FEHA because he filed two grievances, which he claimed contained complaints about race discrimination. The grievances, however, did not contain any complaints about race discrimination, and the plaintiff admitted that at the time he filed his grievances, one of which challenged the matter in which overtime was allocated, he did not believe the grievance was based on race. (Ibid.) The court concluded that Villaneuva's retaliation claim failed because there was no evidence he ever had engaged in a protected activity related to an employment practice proscribed by the FEHA. (Id. at p. 1198.) The controlling fact in concluding that the conduct was not protected by the FEHA was the "fact that the substance of his grievances was not conduct which had anything at all to do with discrimination [prohibited by the FEHA]." (Original italics.) (Id. at p. 1199.)
Lesinsky's reliance on Yanowitz v. L'Oreal USA, Inc., supra, 36 Cal.4th at page 1043 is misguided. Lesinsky cites Yanowitz for the proposition that it does not matter if the challenged conduct is ultimately found to violate FEHA. Rather, an employee's conduct is protected by FEHA if he has a reasonable and good faith belief that the conduct is discriminatory. (Ibid.) However, the record demonstrates that his grievances were not about discrimination because of his disability. Hence, the court correctly determined Lesinsky could not establish a prima facie case for retaliation and properly granted summary judgment on that claim.
IV. Public Policy
As both parties agree, Lesinsky's claim for wrongful termination in violation of public policy is derivative of his FEHA claims, and, therefore, rises or falls with those claims. (See Hanson v. Lucky Stores, Inc., supra, 74 Cal.App.4th at p. 229.) Accordingly, the court properly granted summary judgment on all causes of action.
DISPOSITION
The judgment is affirmed. UPS to recover costs on appeal.
WOODS , Acting P. J.
We concur:
ZELON, J.
JACKSON, J.