Ducksworth v. Tri-Modal Distribution Servs.

• Decision Date: 07 April 2020
• Docket Number: B294872
• Citation: 261 Cal.Rptr.3d 108,47 Cal.App.5th 532
• Court: California Court of Appeals Court of Appeals
• Parties: Bonnie DUCKSWORTH et al., Plaintiffs and Appellants, v. TRI-MODAL DISTRIBUTION SERVICES et al., Defendants and Respondents.

47 Cal.App.5th 532

261 Cal.Rptr.3d 108

Bonnie DUCKSWORTH et al., Plaintiffs and Appellants,

v.TRI-MODAL DISTRIBUTION SERVICES et al., Defendants and Respondents.

B294872

Court of Appeal, Second District, Division 8, California.

Filed April 7, 2020

Lipeles Law Group, Kevin A. Lipeles, Thomas H. Schelly, El Segundo, and Julian Bellenghi, Newport Beach, for Plaintiffs and Appellants.

Larson & Gaston, Daniel K. Gaston, and Gloria G. Medel, Pasadena, for Defendants and Respondents Scotts Labor Leasing Company, Inc. and Pacific Leasing, Inc.

Lewis Brisbois Bisgaard & Smith, Jack E. Jimenez, Los Angeles, Lann G. McIntyre, and Tracy D. Forbath, San Diego, for Defendant and Respondent Mike Kelso.

WILEY, J.

Bonnie Ducksworth and Pamela Pollock are customer service representatives at Tri-Modal Distribution Services. Tri-Modal promoted others but, for decades, never promoted them. Ducksworth and Pollock believed this was due to discrimination against African-Americans. They sued.

In addition to her discrimination claim, Pollock also sued about sexual harassment. Tri-Modal’s executive vice president Mike Kelso began "a dating relationship" with Pollock. Pollock refused Kelso’s request to make the relationship more sexual. Pollock ultimately ended the relationship. After she dumped him, Kelso blocked her promotions at Tri-Modal, Pollock alleged.

These contentions implicated employer Tri-Modal, but it is not involved in this appeal. Rather three different defendants are our sole concern, as follows.

Two of these other defendants are two staffing agencies called Scotts Labor Leasing Company, Inc., and Pacific Leasing, Inc. Scotts and Pacific supplied employees, including Ducksworth and Pollock, to Tri-Modal. The trial court granted summary judgment for Scotts and Pacific because they were uninvolved in Tri-Modal’s decisionmaking about whom to promote. We affirm this ruling for the staffing agencies.

The third defendant is Kelso. The trial court granted a separate summary judgment for Kelso because the statute of limitations barred Pollock’s claim against him. Pollock appeals this ruling on two grounds. First, she says the court erred at summary judgment in overruling her hearsay objection to a key part of Kelso’s evidence. Second, she argues the court miscalculated the statute of limitations by running the clock from the date the employer offered a competitor the promotion and the competitor accepted the promotion rather than the later date when the competitor began working at the new position. We affirm this summary judgment ruling for Kelso.

I

Five of the key actors are Ducksworth, Pollock, Tri-Modal, Scotts, and Pacific. (The appellate briefs and record do not spell Pollock’s name consistently. We use the spelling that is more common in the papers.)

In the first cause of action, Ducksworth and Pollock sued Scotts, Pacific, and Tri-Modal for racial discrimination under subdivision (a) of Government Code section 12940, which is part of California’s Fair Employment and Housing Act. Some call this statute FEHA. We refer to it as the Act.

Ducksworth’s and Pollock’s theory was racial discrimination explained why they have never been promoted.

What is Tri-Modal? It describes itself as a transportation logistics, warehousing, and distribution services company, while Ducksworth and Pollock call it simply a trucking company. Gregory Owen owns Tri-Modal. Kelso has been its executive vice president since 2009.

Scotts and Pacific are companies engaged in what the parties call "labor leasing." These two companies provide Tri-Modal, and only Tri-Modal, with staffing and administrative services for leased employees, including Ducksworth and Pollock.

The parties do not use the same terminology to refer to Scotts and Pacific. These companies describe themselves as "professional employer organizations i.e. employment leasing/staffing companies." Ducksworth and Pollock disputed this description and instead, in their pleading, called them "staffing agencies." No party explains to us what difference labeling might make, so we use the shorter "staffing agencies." (Cf. Jimenez v. U.S. Continental Marketing, Inc. (2019) 41 Cal.App.5th 189, 192, fn. 2, 254 Cal.Rptr.3d 66 [nomenclature about temporary staffing entities varies in case law].)

Ducksworth applied through Scotts for an open position with Tri-Modal in 1996. Scotts hired her that year and leased her to Tri-Modal from 1996 to 2006.

Similarly, the following year, in 1997, Pollock applied for a position with Tri-Modal through Scotts. Scotts hired her and leased her to Tri-Modal from 1997 to 2006.

Both Ducksworth and Pollock worked continuously at Tri-Modal from their start dates through the time of summary judgment, which was in late 2018. In 2006, however, after a two-week interlude by a third staffing company not involved here, Pacific took over the role Scotts formerly performed regarding Ducksworth and Pollock. Pacific provides the same services to Tri-Modal as did Scotts.

For Ducksworth and Pollock and similar employees leased to Tri-Modal, Scotts and Pacific tracked and processed payroll, health insurance, workers compensation, vacation, holiday, sick pay, tax, and social security payments. The name on these employees’ paychecks was either Scotts or Pacific.

Tom Scott formed Scotts in 1996 when he closed down another company called Marine Glass Company, was unemployed, and then spoke with Greg Owen, whom Scott knew. Scott formed Pacific in 1997.

Scotts and Pacific provide their services only to Tri-Modal and not for any other company. Tom and Sheri (or Cheri—we thus refer to her as Ms. Scott) Scott are married and are the sole owners of Scotts and Pacific. Ms. Scott works at Tri-Modal one and a half to two hours a week. Her work is to pay truck drivers.

At the time of Tom Scott’s deposition, 44 people worked at Scotts and nine worked at Pacific. All were leased to Tri-Modal. Up to and ending in 2006, Scotts leased Ducksworth and Pollock to Tri-Modal. At the time of Scott’s deposition, it was Pacific that leased Pollock and Ducksworth to Tri-Modal. Tom Scott considered both Pollock and Ducksworth to be employees of Pacific because "our name is on their paycheck." In addition to these people, Tom Scott himself (but not Ms. Scott) is an employee of Scotts.

Tom Scott testified that he is not employed by Tri-Modal, but that Scotts leases him, Tom Scott, to Tri-Modal, where he has been compliance safety director continuously since 1998. This compliance safety work involves running background checks on drivers, orienting and training drivers, maintaining their qualification files, and such. Tom Scott supervises no one. Tom Scott’s paycheck comes from Scotts Labor Leasing.

Tom Scott, Scotts, and Pacific were not involved with the day-to-day supervision of Ducksworth and Pollock at Tri-Modal. Tom Scott knew Pollock "is a clerk of some type" at Tri-Modal, and he knew Ducksworth is "in the customer service department" there. But Tri-Modal rather than Scotts or Pacific set work schedules for Ducksworth and Pollock. Pollock would go to Tri-Modal, not Scotts or Pacific, for work assignments or if she were running late or asking for a day off.

The decision to give a raise to any employee leased by Scotts or Pacific to Tri-Modal was made solely by Tri-Modal, with no input from Scotts or Pacific.

Ducksworth and Pollock rarely interacted with Scotts and Pacific. Pollock did not interact with Tom Scott on a daily basis and did not see him on a monthly or weekly basis. Ducksworth would not see Tom Scott during the course of a week, except perhaps to say "hi" if they did happen to see each other. If Pollock had any interaction with Tom Scott, it would be about insurance or benefits.

Pollock never went to Scotts about a work related complaint, but instead would take it to Tri-Modal. Pollock never discussed raises or promotions with Tom Scott. Similarly, Ducksworth never went to Scotts to request a raise or promotion. Scotts had no input about raises or promotions at Tri-Modal.

Tom Scott never disciplined Pollock or Ducksworth during their employment. Scotts never supervised or trained Pollock or Ducksworth.

Scotts and Pacific moved for summary judgment.

The following quotation is from Fact 16 in the separate statement for this summary judgment motion.

"The decision to promote an employee leased to by [sic ] Scotts or Pacific to Tri-Modal is made solely by Tri-Modal. Scotts or Pacific do not provide any input, have any authority or make any decision regarding the promotion of any employees leased to Tri-Modal."

Ducksworth and Pollock told the trial court they did not dispute Fact 16.

On December 6, 2018, the trial court found the undisputed Fact 16 entitled the staffing agencies to summary judgment.

We now recount some facts about Pollock and Kelso in particular.

Kelso began dating Pollock in 2014. The relationship involved passionate kissing. Kelso wanted sexual intercourse but Pollock did not, according to Pollock. Pollock ended the relationship in 2016. In the second cause of action, Pollock and not Ducksworth sued Kelso and Tri-Modal for quid pro quo sexual harassment in violation of subdivisions (j)(1) and (j)(3) of Government Code section 12940, which is part of the Act.

On November 20, 2018, the trial court granted summary judgment for Kelso based on the statute of limitations.

Ducksworth and Pollock appealed the summary judgments in favor of Scotts, Pacific, and Kelso.

II

In this section, we review the summary judgment in favor of the staffing agencies.

The trial court ruled undisputed Fact 16 exonerated the staffing agencies according to the governing precedent of Bradley v. Dept. of Corrections & Rehabilitation (2008) 158 Cal.App.4th 1612, 1628–1629, 71 Cal.Rptr.3d 222 ( Bradley ). The trial court was right. Scotts and Pacific basically were innocent bystanders in this case of alleged discrimination by Tri-Modal. We affirm because Scotts and Pacific were not involved with the promotions Ducksworth and Pollock attack. A company...