Smith v. United Parcel Service, Inc.

Background

Venton Smith alleged that he worked for United Parcel Service, Inc. (UPS) and experienced harassment, intimidation, and discriminatory comments from supervisors after he provided documentation of a visual disability and refused to participate in harassment of another employee. He alleged that supervisors threatened him, interfered with his work, and discussed using his visual impairment to create an accident that could lead to his termination.

Smith went on medical leave in April 2017 after reporting alleged workplace-safety concerns, including weapons allegedly being brought into the facility and an unsecured rooftop entrance. He later requested an accommodation reducing his workweek from 40 hours to 35 hours. UPS denied that request and did not allow him to return to work under the requested accommodation. Smith alleged that UPS used the accommodation process to effectively terminate him in retaliation for reporting safety concerns.

The order addressed UPS’s motion to dismiss Smith’s PAGA claims, his Cal/OSHA workplace-safety claim, and his claim for wrongful termination in violation of California’s Fair Employment and Housing Act (FEHA). PAGA is California’s law allowing an employee to seek civil penalties on behalf of the state for certain Labor Code violations. The order also addressed PAGA portions of other causes of action.

PAGA claims and limitations period

Smith filed his PAGA notice with the Labor and Workforce Development Agency on June 29, 2020. The notice described harassment, retaliation, refusal to accommodate, and effective termination occurring in 2017. The court held that the PAGA claims were time-barred because the alleged conduct had ended more than one year before the notice was filed.

The court rejected Smith’s reliance on unsuccessful attempts to contact UPS in 2019 because those contacts were not included in his PAGA notice. The notice therefore did not give UPS or the state agency notice of alleged violations continuing into 2019. The court concluded that the notice described completed acts rather than ongoing violations and dismissed the PAGA claims with prejudice.

Cal/OSHA claim

Smith’s eighth cause of action sought PAGA penalties based on California workplace-safety provisions. The court explained that these claims require specified notices to Cal/OSHA, the employer, and, in some circumstances, the Labor and Workforce Development Agency, as well as an opportunity for the employer to cure the alleged violation.

UPS argued that Smith had not served the required notices. Smith responded that his electronic filing with the Labor and Workforce Development Agency was also filed with Cal/OSHA. The court assumed, for purposes of the motion, that the first notice had been filed with Cal/OSHA, but found it undisputed that Smith had not sent the required second notice to the agency and UPS after Cal/OSHA failed to investigate. The court held that Smith failed to exhaust the required statutory procedures and dismissed the eighth cause of action with prejudice.

FEHA wrongful-termination claim

Smith received a right-to-sue notice from the California Department of Fair Employment and Housing on July 7, 2017. The court held that his FEHA wrongful-termination claim was subject to a one-year filing period and was untimely because he did not file the civil action within one year after the notice.

The court also rejected Smith’s argument that the continuing-violation doctrine preserved the claim. It reasoned that Smith had not worked for UPS since 2017 and had alleged that UPS effectively terminated him when it made further accommodation efforts futile. The court treated the alleged violations as completed rather than continuing.

Leave to amend

At the motion hearing, Smith’s counsel requested permission to add a claim for wrongful termination in violation of public policy, commonly called a Tameny claim. The court granted leave to amend because Smith alleged adverse consequences for reporting unsafe working conditions.

Disposition

The court granted Defendants’ motion to dismiss Smith’s PAGA and Cal/OSHA claims with prejudice for failure to comply with the limitations period and statutory prerequisites. The order specifically states that the eighth, ninth, and thirteenth causes of action, as well as the PAGA portions of the seventh cause of action, were dismissed with prejudice in the provided text.

The court also granted UPS’s motion to dismiss the fourteenth cause of action for wrongful termination in violation of FEHA without prejudice. It granted Smith leave to amend to allege a Tameny claim for wrongful termination in violation of public policy. The order disposed of Docket No. 18.