Desoto v. Dot Foods, Inc. et al

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
----oo0oo----
MICHAEL D. DESOTO, an
individual,
Plaintiff,
v.
DOT FOODS, INC., an Illinois
corporation; SERGIO MORALES, an
individual; and DOES 1 through
20, inclusive,
Defendants.
No. 2:24-cv-1140-WBS-CSK
MEMORANDUM AND ORDER RE:
DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT
----oo0oo----
Plaintiff Michael DeSoto has brought various state law
claims against defendant Dot Foods, Inc., which arise out of
defendant’s allegedly discriminatory termination of plaintiff’s
employment due to physical disability. (Compl. (Docket No. 1 Ex.
A).) Defendant has moved for summary judgment on all claims,
(Docket No. 31), which plaintiff opposes (Docket No. 32.).
I. Plaintiff’s Employment with Dot Foods, Inc.
Plaintiff worked as a Warehouse Order Selector and
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Material Handler at defendant’s Modesto, California facility from
June 14, 2016, to September 25, 2022. (Plaintiff’s Separate
Statement of Disputed Facts (“SSDF”) (Docket No. 32-2) ¶ 1.) In
this role, plaintiff “handled materials and created pallets of
work orders, which involved” manual labor and machine operation
“to maneuver products.” (Id. ¶ 2.)
Plaintiff’s final two years in defendant’s employ were
disrupted by injury, illness, and leaves of absence. In January
2020, plaintiff suffered a back injury at work and was assigned
temporary light duties for several weeks. (See Declaration of
Victoria Salemi (“Salemi Decl.”) (Docket No. 31-3) ¶ 16(a)).)
From April 5, 2020, to June 10, 2020, plaintiff was provided
unpaid leave of absence related to COVID-19. (Id. ¶ 16(b).)
Plaintiff was then placed on leave for a back injury in March
2021, a leg injury in May 2021, back pain in August and September
2021, a head injury in February 2022, and a shoulder injury in
June 2022. (Id. ¶ 16(g)-(j).)
Prior to his termination, plaintiff also faced several
instances of disciplinary action. (Id. ¶¶ 18-25.) As relevant
here, defendant maintains a Progressive Disciplinary Policy,
under which violations issue “in four sequential steps of
corrective action” that accrue over one-year periods. (Id. ¶
17.) At the fourth step of discipline, employees may be either
suspended or terminated. (Id. ¶ 23.)
Plaintiff received his first disciplinary step in April
2021, for failing to complete a pre-trip inspection for the fifth
time that year; his second step in June 2021, for calling out of
work without sick or personal time; and his third step in October
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2021, for again failing to complete a pre-trip inspection, now
for the sixth time. (Id. ¶¶ 18-25.) Plaintiff was warned that a
further disciplinary step could result in termination. (Docket
No. 31-1 at 13.)
On September 18, 2022, plaintiff informed his
supervisor that he was experiencing rib pain, that he was “in the
hospital all day,” that “they did X-rays and they didn’t find
anything,” and that he was unable to “twist bend or lift anything
without [his] ribs hurting.” (SSDF ¶ 31.) He added that he was
“most likely going to leave cause [he] can’t work under these
conditions.” (Id.) In response, plaintiff was informed that his
unscheduled absence “will fall under the attendance policy.”
(Id. ¶ 32.) The following day, plaintiff texted his supervisor a
copy of a doctor’s note excusing him from work for four days,
permitting a “return to work with no restrictions” thereafter.
(Id. ¶ 39.)
Owing to this incident, plaintiff received his fourth
and final step of disciplinary action for calling out of work
without available sick or personal time. (Id. ¶ 21-25.) His
employment was terminated on September 25, 2022. (Id. at ¶ 25.)
II. Disability Discrimination Claims Under FEHA
Plaintiff brings his first four claims under
California’s Fair Housing and Employment Act (“FEHA”) on the
grounds “that his termination was substantially motivated by
unlawful disability discrimination.” (Docket No. 32 at 10.) The
first claim is for Physical Disability Discrimination in
violation of Section 12940(a), which “prohibits employers from
discharging an employee because of a physical disability.”
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Nadaf-Rahrov v. Neiman Marcus Group, Inc., 166 Cal. App. 4th 952,
962 (2008).
A physical disability is defined as “any anatomical
loss, cosmetic disfigurement, physiological disease, disorder, or
condition” that “limits a major life activity.” Cenis v. WinCo
Holdings, Inc., No. 117-cv-00863-DAD-JLT, 2018 WL 2412324, at *5
(E.D. Cal. May 29, 2019) (citing Cal. Gov't Code § 12926(k)). As
relevant to this case, the definition of a physical disability
does not include “conditions that are mild . . . [which] have
little or no residual effects, such as . . . minor cuts, sprains,
muscle aches, soreness, bruises, or abrasions.” Cal. Code Regs.
tit. 2, § 11065. These conditions are not considered
disabilities because they do not meaningfully “limit a major life
activity,” such as working. Id. Thus, if plaintiff cannot
demonstrate that he was suffering from more than a mild
condition, his first FEHA claim must fail.
Plaintiff’s second claim is for Failure to Accommodate
Physical Disability and to Engage in an Interactive Process in
violation of Section 12940(m) and (n), provisions which require
an employer to “provide reasonable accommodation to an employee
with a physical disability,” and “to engage in a timely, good
faith, and interactive process to accommodate a known disabled
employee.” (Docket No. 1 at 23.) As with claims under Section
12940(a), claims under Sections 12940(m) and (n) also require a
plaintiff to show that “he or she has a known physical or mental
disability.” Jacobson-Gentry v. County of Santa Clara, No. 23-
cv-04096-NC, 2025 WL 2522373 (N.D. Cal. Sept. 2, 2025); Watts-
Lynch v. Delta Air Lines, Inc., No. CV-159476-MWF-RAOX, 2017 WL
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11707442 (C.D. Cal. May 9, 2017) (“The requirements for a claim
under section 12940(m) mirror those of section 12940(a)[.]”).
Accordingly, if plaintiff cannot show he suffered from a
qualifying disability under FEHA, his second claim must also
fail.
Plaintiff’s third claim is for Failure to Take All
Reasonable and Necessary steps to Prevent Discrimination in
violation of Section 12900, et seq., which “require [defendant]
to take all reasonable steps necessary to prevent acts of
discrimination.” (Docket No. 1 at 24.) “Courts have interpreted
a failure to prevent discrimination claim [to be] essentially
derivative of a discrimination claim.” Harlow v. Chaffey
Community College District, No. CV-181583-DSF-SHKX, 2021 WL
2384702, at *11 (C.D. Cal. Mar. 15, 2021) (citing Trujillo v. N.
Cnty. Transit Dist., 63 Cal. App. 4th, 280, 289 (1998). The only
discrimination claim brought by plaintiff is discrimination based
on a physical disability. Consequently, as with the first two
claims, plaintiff’s third claim is also subject to the
requirement that plaintiff demonstrate he suffered from a
qualifying physical disability under FEHA.
Plaintiff’s fourth claim is for Wrongful Termination
in Violation of Public Policy. (Docket No. 1 at 16.) The only
public policy conceivably referenced in plaintiff’s complaint,
articulated in FEHA, is California’s fundamental policy against
physical disability discrimination in employment. See Cal. Gov’t
Code § 12920 (“It is hereby declared as the public policy of this
state that it is necessary to protect and safeguard the right . .
. [to] hold employment without discrimination.”) Once again,
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plaintiff cannot demonstrate physical disability discrimination
without first showing that he suffered from a physical
disability. See Fragada v. United Airlines, Inc., No. CV-163914-
MWF-JPRX, 2017 WL 4586933, at *8 (C.D. Cal. June 13, 2017) (“A
prerequisite to Plaintiff’s public policy claim is a qualifying
disability.”).
In short, necessary to all of plaintiff’s FEHA claims
is a prima facie showing that plaintiff had a qualifying
disability. See Solis v. Randstad North America, Inc., No. 5:24-
cv-00145-JWH-SP, 2024 WL 4468030, at *4 (C.D. Cal. Aug. 16, 2024)
(dismissing analogous FEHA claims because plaintiff “failed to
show any physical disability); Estes v. AlliedSignal, Inc., No.
C-97-1810 MHP, 1998 WL 814693, at *9 (N.D. Cal. Nov. 12, 1998)
(“[P]laintiff cannot prove he was disabled under the ADA and
FEHA, and therefore, cannot make out a prima facie case under
those statutes.”). Because plaintiff has not made this showing,
his FEHA claims must fail.
Moreover, even if plaintiff had shown that he suffered
from a disability, to establish a prima facie case for disability
discrimination, plaintiff must also demonstrate that his employer
either had knowledge of his disability or perceived him as having
a disability. See Winarto v. Toshiba Am. Elecs. Components,
Inc., 274 F. 3d 1276, 1291 (9th Cir. 2001) (denying disability
discrimination claim where employee “introduced no evidence in
the record to establish that her managers perceived her to be
disabled”); Espindola v. Wismettac Asian Foods, Inc., No. 21-
55534, 2022 WL 2287437 (9th Cir. June 24, 2022) (noting that
discrimination claim may turn on whether “the company was on
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notice that [the employee] was disabled”).
Plaintiff has not made this showing because he has not
shown that defendant had knowledge of any disability. Plaintiff
merely informed his supervisor of generalized pain, before
providing a doctor’s note that “did not specify a reason for the
absence or specify any physical restrictions.” (Id. at 18.) The
information in the doctor’s note conveyed only a temporary
ailment rather than a qualifying disability, and defendant thus
had no notice plaintiff suffered from a disability when it
terminated him.
In his opposition, plaintiff confirms that he told his
supervisor about his rib pain and his hospital visit before
relaying a doctor’s note that contained no diagnostic information
the following day. (Docket No. 32. at 7.) He then adds that his
doctor provided him with an After Visit Summary “reflect[ing]
imaging orders for rib contusion and pleurisy,” which “impaired
[his] ability to perform the physical demands of his job.” (Id.)
Defendant’s statement of facts indicates that, aside
from the doctor’s note, “Plaintiff did not provide any further
information to Dot Foods concerning his medical condition,
including any diagnosis.” (Docket No. 31-2 ¶ 40.) Plaintiff
agrees that the only document provided to defendant was the
doctor’s note, but insists the note was “documentation . . .
[that] constituted sufficient medical substantiation of
plaintiff’s condition.” (SSDF ¶ 40.) Plaintiff therefore
concedes that the only documentation provided to corroborate his
condition was his doctor’s note. Viewing the record in light of
the above, there is no evidence that defendant had knowledge of a
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FEHA-protected disability when it took disciplinary action.
Courts in this circuit have consistently recognized
that a short-lived condition, supported only by a brief and
unspecific doctor’s note, followed by an unrestricted return to
work, does not constitute a qualifying disability under FEHA.
See, e.g., Foshee v. MasTec Network Solutions, Inc., No. 1:20-cv-
00890 AWI SAB, 2022 WL 446675 (E.D. Cal. Feb. 14, 2022) (finding
that plaintiff could not claim disability based on a temporary
infection despite a doctor’s note instructing an absence from
work of several days); Winarto, 274 F. 3d, at 1291 (noting that a
vague doctor’s note was not sufficient to “prove that [the
employer] perceived Winarto to be disabled”); Cenis v. Winco
Holdings, 787 Fed. App’x. 947, 948 (9th Cir. 2019) (no disability
found where “symptoms subsided two days later, at which point
[the employee] returned to work”); Ellis v. City of Reedley, No.
cv-F05-01474 AWI SMS, 2007 WL 1098571, at *11 (E.D. Cal. Apr. 12,
2007) (“The term disability may incorporate a condition of only
temporary duration, but that condition must . . . [be] sufficient
to constitute an actual limitation of a major life activity, as
opposed to simply the need to take a day off.”).
The record before the court mirrors these cases.
Plaintiff suffered from transient rib pain that, by his own
doctor’s representation, would resolve within days and permit a
return to full duty without limitation. Nothing in the
information communicated to defendant suggested an impairment
that would plausibly trigger FEHA obligations. Defendant could
not therefore have discriminated against plaintiff on the basis
of a protected disability because, from its perspective, no such
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disability existed.
To the contrary, the record strongly suggests a lack of
discriminatory motive or pretext on defendant’s part. Defendant
had a legitimate, nondiscriminatory reason for firing plaintiff:
repeated violations of “established disciplinary and attendance
policies.” (Docket No. 31-1 at 6.) Plaintiff was aware of these
policies (SSDF ¶ 24) and had run afoul of them three times; on
one occasion, defendant even had reliable information suggesting
plaintiff had lied about an injury when attempting to call out of
work. (Id. at 10-11.) Defendant consistently applied its
disciplinary policy to these prior violations, and it
accommodated plaintiff’s injuries and illnesses on numerous other
occasions when plaintiff properly notified his employer or had
accrued time off. (Salemi Decl. ¶ 16-17.)1
Plaintiff also argues that the closeness in time
between his conduct and termination suggests the firing was
pretextual. (Docket No. 32 at 8.) But without evidence of
discriminatory intent, “temporal proximity is ordinarily
insufficient to satisfy the burden to provide evidence of
1 At oral argument, plaintiff’s counsel insisted that
plaintiff had cleared defendant’s disciplinary program, because
more than one year had elapsed between his first and final
violations. However, defendant’s disciplinary policy states that
“[i]f an employee receives multiple disciplinary steps within a
12-month period, all disciplinary steps remain until a year after
the most recent disciplinary step.” (Docket No. 31-3 at 8.)
Plaintiff’s third step of discipline occurred on October 3, 2021,
which meant that he would be subject to the policy until October
3, 2022. (Docket No. 31-4 at 42.) As his fourth violation
occurred on September 18, 2022, plaintiff had not yet cleared his
violations and was thus subject to a fourth and final
disciplinary step.
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pretext.” Hooker v. Parker Hannifin Corp., 548 Fed. App’x. 368,
370-71 (9th Cir. 2013). “This is especially so where the
employer raised questions about the employee’s performance before
he disclosed his symptoms, and the subsequent termination was
based on those performance issues.” Arteaga v. Brink’s, Inc.,
163 Cal. App. 4th 327, 334-335 (2008) (emphasis in original). As
the record does not bear out discriminatory intent on defendant’s
part, and defendant had repeatedly raised concerns about
plaintiff’s performance, temporal proximity is insufficient to
establish pretext.
Thus, summary judgment must be granted in favor of
defendant on plaintiff’s FEHA claims for the additional reasons
that plaintiff has not shown that his employer had notice of a
FEHA-protected disability and there is no evidence in the record
indicating discriminatory motive.
III. Intentional Infliction of Emotional Distress
Plaintiff’s fifth claim is for intentional infliction
of emotional distress (“IIED”), alleging “extreme and outrageous
conduct” in terminating him and plaintiff’s resulting “anxiety,
humiliation, and disruption to his family life.” (Id. at 2-3.)
“Under California law, ‘[a] cause of action for intentional
infliction of emotional distress exists when there is (1) extreme
and outrageous conduct by the defendant with the intention of
causing, or reckless disregard of the probability of causing,
emotional distress; (2) the plaintiff’s suffering severe or
extreme emotional distress; and (3) actual and proximate
causation of the emotional distress by the defendant’s outrageous
conduct.’” Ravel v. Hewlett-Packard Enterprise, Inc., 228 F.
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Supp. 3d 1086, 1099 (E.D. Cal 2017) (Shubb, J.) (citation
omitted).
Plaintiff argues that defendant’s conduct surrounding
the “abrupt termination of [his] employment” constituted “extreme
and outrageous conduct that exceeded all bounds of decency.”
(Docket No. 32 at 12.) Defendant argues that because no
disability discrimination occurred, its conduct amounts to
“simple personnel management activities” which do not support a
claim for IIED. (Docket No. 31-1 at 25.)
The court agrees with defendant. Where the employer
has no awareness of a protected disability, discrimination claims
are not cognizable. Defendant’s conduct thus amounted to a
simple termination, and “terminating an employee is not alone
sufficient to satisfy the standard for extreme and outrageous
conduct.” See Onelum v. Best Buy Stores, 948 F. Supp. 2d 1048,
1053 (C.D. Cal. 2013); Galarpe v. United Airlines, Inc., No. 17-
cv-06514 EMC, 2018 WL 348161 (N.D. Cal. Jan. 10, 2018)
(dismissing IIED claim in FEHA context because “[p]laintiff has
not adequately pled discriminatory conduct”).
Moreover, plaintiff has not even demonstrated that he
suffered emotional distress. He states that his termination made
him feel like a “lesser person,” which subsequently caused
“significant emotional distress.” (SSDF ¶ 48.) When asked in
his deposition about this feeling, plaintiff was unable to
identify when his distress began, how he experienced it, what his
symptoms were and how frequently they appeared, whether anyone
else noticed his distress, how long it lasted, and how it
impacted his life. (Docket No. 31-4 at 34-37.)
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Plaintiff’s nondescript allegations of the duration and
severity of his distress do not satisfy the standard of an IIED
claim, which requires “emotional distress of such substantial
quality or enduring quality that no reasonable [person] in
civilized society should be expected to endure it.” Lawler v.
Montblanc North America LLC, 704 F. 3d 1235, 1245-46 (9th Cir.
2013) (citation omitted). There is nothing in the record to
indicate plaintiff suffered from anything other than typical
psychological effects following termination. See Magnuson v.
Burlington Northern Inc., 576 F. 2d 1367, 1369 (9th Cir. 1978)
(“Every employee who believes he has a legitimate grievance will
doubtless have some emotional anguish occasioned by his belief
that he has been wronged.”)
Plaintiff has not demonstrated that defendant engaged
in discrimination based on a physical disability, nor that he
suffered emotional distress as a result of defendant’s extreme
and outrageous conduct. Accordingly, all his claims must fail.
IT IS THEREFORE ORDERED that defendant’s motion for
summary judgment (Docket No. 31) be, and the same hereby is,
GRANTED. Judgment shall be entered in favor of defendant DOT
Foods, Inc. and against plaintiff Michael D. Desoto on all claims
of the Complaint.
Dated: December 29, 2025
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