Arteaga v. Brink's, Inc.

• Decision Date: 28 May 2008
• Docket Number: No. B194082.,B194082.
• Citation: 163 Cal.App.4th 327,77 Cal. Rptr. 3d 654
• Court: California Court of Appeals Court of Appeals
• Parties: CARLOS ARTEAGA, Plaintiff and Appellant, v. BRINK'S, INCORPORATED, Defendant and Respondent.

163 Cal.App.4th 327

77 Cal. Rptr. 3d 654

CARLOS ARTEAGA, Plaintiff and Appellant, v. BRINK'S, INCORPORATED, Defendant and Respondent.

No. B194082.

Court of Appeals of California, Second District, Division One.

May 28, 2008.

[163 Cal.App.4th 334]

Mancini & Associates, Marcus A. Mancini, Christopher Barnes; Benedon & Serlin, Douglas G. Benedon and Kelly R. Horwitz for Plaintiff and Appellant.

Crowell & Moring, James E. Kellett and Steven P. Rice for Defendant and Respondent.

OPINION

MALLANO, Acting P. J.

An employee at an armored transportation company was the subject of an internal investigation into missing cash and knew he could be terminated depending on the outcome. During the investigation, he notified his employer for the first time that he was suffering from pain and numbness in his arms, fingers, shoulders, and feet; he stated he had been experiencing those symptoms for a year or two; he expressed his belief that they were work related; and he filed claims for workers' compensation. Days later, he was terminated based on the results of the investigation.

The employee then filed this suit, alleging a claim under the California Fair Employment and Housing Act (FEHA or Act) (Gov. Code, § 12900 et seq.) for physical disability discrimination. He also alleged a claim for wrongful termination of employment in violation of public policy, contending he had been terminated in retaliation for filing workers' compensation claims. (See Lab. Code, § 132a.) The trial court granted summary judgment for the employer.

(1) We conclude that the disability discrimination claim fails because the employee's symptoms did not constitute a "physical disability" under the FEHA. Specifically, the employee's pain and numbness did not make it difficult for him to achieve the life activity of working. The employer also had a legitimate, nondiscriminatory reason for the termination—loss of confidence in the employee—as confirmed by the investigation. Similarly, the wrongful termination claim, alleging retaliation, fails because the employer's lack of confidence in the employee constituted a legitimate, nonretaliatory reason for the termination.

For his part, the employee points out that he was terminated within days of disclosing his symptoms and filing his workers' compensation claims, emphasizing the close timing of the events. Although temporal proximity, by itself, may be sufficient to establish a prima facie case of discrimination or retaliation, it does not create a triable fact as to pretext once the employer has offered evidence of a legitimate, nonprohibited reason for its action. This is especially so where the employer raised questions about the employee's performance before he engaged in protected activity, and the subsequent discharge was based on those performance issues. Accordingly, we affirm.

I BACKGROUND

We accept as true the following facts and reasonable inferences supported by the parties' undisputed evidence on the motion for summary judgment. (See Raghavan v. Boeing Co. (2005) 133 Cal.App.4th 1120, 1125 .)

Since 1859, defendant Brink's, Incorporated, has provided secure transportation of customers' valuables, primarily money. Brink's uses armored vehicles, some weighing as much as 13 tons, staffed by three armed, uniformed employees: a driver, a guard, and a messenger.

The driver is responsible for following a predetermined route, which can be varied in a limited manner by the messenger during the run. The driver is stationed in a separate compartment from the messenger and the guard to ensure the safety of the public and the vehicle.

The guard, under the direction and control of the messenger, assists the messenger in carrying items to and from customer locations. The guard also protects against the "accidental mishandling" of valuables, which may result in a loss while "on the street." Brink's operations involve the threat of armed attacks on the crew.

The messenger has the most critical job. He exercises immediate supervision over the vehicle and its crew. The messenger "is responsible for making the actual delivery and pickup at customer locations, maintaining control of all shipments, and issuing and receiving a proper receipt at the delivery or pickup point." He accounts for and controls all valuables placed on the armored vehicle, including significant amounts of money on a daily basis. On "ATM runs," the messenger is responsible for removing "old money" from the ATM (residual cash), replenishing the machine with "new money," and removing deposits. He is responsible for returning residual cash and deposits to the Brink's vault.

Brink's personnel handbook states that the messenger is in charge of the crew and that his "primary duty ... is to ... employ the facilities provided for the safekeeping and security of shipments."

In August 1999, Brink's hired plaintiff Carlos Arteaga as an armored vehicle driver at its Los Angeles branch. Later, he became a guard and eventually a messenger. Thereafter, he spent most of his time as a messenger.

In his first two years, Arteaga was "written up" for missing a training class and being involved in two driving accidents. He was informed in writing that the failure to adhere to the requirements of his position would subject him to discipline, up to and including termination.

In early 2003, Arteaga was questioned about a $12,000 shortage that occurred on a run while he was acting as a trainer for a new employee. Raul Ruiz, the manager of Brink's Los Angeles branch, questioned Arteaga repeatedly about the missing money. After two months, Arteaga was told to forget about it.

In August 2003, Arteaga had a medical examination to maintain his driver certification for Brink's. The examination report showed that he was in good health. Arteaga completed part of the report, indicating he did not have any of several listed illnesses or health problems. In particular, he checked the "no" box beside (1) "[a]ny illness or injury in last 5 years"; (2) "[m]issing or impaired hand, arm, foot, leg, finger, toe"; and (3) "muscular disease."

In November 2003, Arteaga was suspended for one day without pay because he failed to deliver a $20,000 shipment to a bank and instead left it in the armored vehicle overnight. By written memo dated November 19, 2003, Brink's reminded Arteaga that he was responsible for the shipments assigned to him. The memo concluded: "Any further violations of Brink's policies, procedures or infractions of Brink's standards will result in further disciplinary action, up to and including termination of your employment."

The amount of money that Brink's collects from ATM's does not always match the bank's records as to what should have been collected. Brink's does not learn immediately about bank deposit shortages or overages—both of which are called variances—because it takes time for individual bank customers to receive notice of their deposits and to notify the bank of an error. A variance may involve, for example, a "missing deposit." The bank must first investigate whether the error occurred through an ATM to determine whether it should be referred to Brink's for investigation. This process can sometimes take months.

On March 1, 2004, a shortage of $4,540 was discovered in the cash that Arteaga had removed from an ATM in his capacity as a messenger. Ruiz looked into the matter. He learned that in July and August 2003, there had been eight shortages, totaling nearly $6,500, on runs where Arteaga had been the guard or messenger. All of the shortages were due to missing deposits. Ruiz became suspicious of Arteaga.

Ruiz also reviewed a "variance tracking" report covering October and November 2003. Eight more shortages, totaling approximately $6,800, appeared on runs where Arteaga had been the messenger. According to Ruiz, "I took a look at the report. I started to sort of dissect it, come up with a common denominator, and ... Mr. Arteaga's name was associated with numerous shortages .... Different guards, different drivers, and as the crew mixed, Arteaga continually was somebody that was on [the] route with the shortage or variance." After reviewing the report, Ruiz began a more formal investigation into the March 1, 2004 shortage.

The investigation included going to the ATM from which the funds were missing, counting deposits, verifying the sequence numbers of missing deposits, and talking to the crew. Ruiz also spoke to Arteaga, letting him know that there was an ongoing investigation into the March 1, 2004 variance. Arteaga could not explain the incident. Ultimately, the investigation did not determine the cause of the shortage, although it was learned that the ATM in question had "numerous problems" requiring that the machine be serviced.

On March 17, 2004, during the investigation, Arteaga informed Brink's for the first time that he was feeling a combination of "pain" and "numbness" in his arms, fingers, shoulders, and feet. He also disclosed for the first time that he was undergoing "a lot of stress." Arteaga completed a "Personal Injury—Employee Statement Form," indicating that "[i]n the year 2003, I was doing [a particular run] every single day. I was lifting at least one hundred boxes of coins on a light day with different weight each day. I started to feel some kind of pain in my arms and fingers, when waking up. I can't move and bend my fingers." Arteaga explained, "I never reported [this] because I thought the pain [was] going away but it didn't. Today, in the morning, 3/17/04, I was unloading coins and ... I started to feel the pain in my arms and fingers again." Arteaga never exhibited any signs of his "medical problems" at work. Nor did his supervisors ever see him "suffering from any medical condition."

At his deposition, Arteaga said he began experiencing these symptoms "[p]robably a year before, two years before" he reported them. He did not report them at first because Brink's had a policy of terminating employees for...