Barrera v. Albertsons CA2/1

Filed 9/27/21 Barrera v. Albertsons CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

CRISTIAN DELGADO B308657
BARRERA,
(Los Angeles County
Plaintiff and Appellant, Super. Ct. No. 18STCV05222)

v.

ALBERTSONS LLC.,

Defendant and Respondent.

APPEAL from an order of the Superior Court of Los
Angeles County, Richard Burdge, Jr., Judge. Affirmed.
Law Offices of Robert Samuel Scuderi and Robert Samuel
Scuderi for Plaintiff and Appellant.
CDF Labor Law and Leigh A. White for Defendant and
Respondent.

________________________
 In this employment disability discrimination case under
the California Fair Employment and Housing Act (FEHA; Gov.
Code, § 12900 et seq.), Cristian Delgado Barrera appeals from a
judgment entered in favor of Albertsons LLC (Albertsons)
following its motion for summary judgment.
Barrera sprained his ankle far along into his 90-day term of
probationary employment and was provided with 37 days of
medical leave as an accommodation, even though his
probationary performance up to the point of his disability had
been subpar. All parties agreed Barrera could not have
performed the strenuous functions of the Albertsons job while he
needed to use an ankle boot and cane.
Eventually Albertsons terminated Barrera on the basis
that his pre-leave performance had consistently been graded
below expectations. The trial court found that Albertsons was
entitled to do so, that its reason for termination was based on his
substandard performance, and that its stated reason was not a
pretext hiding some discriminatory animus.
On appeal, Barrera argues the FEHA entitled him to an
additional period of time to improve his performance once he
returned from medical leave and that Albertsons failed to engage
in a sufficient good faith interactive process prior to terminating
him. He also claims the trial court erred in failing to exclude
from evidence a portion of a declaration of an Albertsons
employee that referenced certain evidence.
We have been provided with scant authority for the
proposition that an employer must provide a poorly-performing
employee, who is placed on a medical leave eight weeks into his
12-week probationary period, with more time to elevate his
performance upon return from that leave. The trial court

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properly dismissed Barrera’s cause of action for failure to
accommodate under the FEHA.
Barrera fails to support his argument regarding the
insufficiency of the interactive process with appropriate citations
to the record and legal authority. This argument is forfeited.
Before seeking to exclude evidence referred to in an
Albertsons declaration, Barrera was required to engage in efforts
to obtain that evidence. Albertsons’ mere refusal to provide
documents in response to a discovery request does not support
the drastic order of exclusion of evidence. The trial court did not
abuse its discretion in refusing to do so.
Accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Barrera’s Employment with Albertsons
On March 12, 2018, Albertsons hired Barrera for the
position of order selector at the Brea, California distribution
center. Barrera was hired for the night shift because he was
already employed during the day at Garcoa, Inc.
The job of an order selector is strenuous, requiring both
strength and flexibility: one must identify appropriate items in
the warehouse, and then retrieve and stack them on a pallet,
with the aid of motorized equipment. Applicants were
specifically advised that the job was “physically demanding [and]
requir[ed] frequent bending and lifting.”
Barrera was hired as a probationary employee. According
to the “Brea Distribution Center Hourly Associate Reference
Guide,” presented to Barrera during his orientation, Albertsons

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places new order selectors into a probationary role for 90 days.
During this period, a new hire can be terminated for any reason.1
The job performance of order selectors is measured by an
algorithm that compares the amount of time an employee
actually takes to perform certain work as compared to the
“standard” time the work should take at a normal pace. The
“standard” time is called the engineered workplace expectancy, or
“EWE.” At the Brea distribution center, all of the order selectors
are required to “pull” orders at a pace of 100 percent of the EWE.
All newly-hired order selectors are given a ramp-up period
of at least one month after training to learn the job and increase
their pace to 100 percent EWE, measured on a weekly basis. For
probationary order selectors, failure to successfully ramp-up to
100 percent during the one-month ramp-up period can lead to
immediate termination. Probationary order selectors must
demonstrate improved EWE performance on a weekly basis. For
example, by week three, a probationary order selector is expected
to reach 55 percent of EWE; by week four, 75 percent of EWE; by
week five, 90 percent of EWE; and by week six and thereafter,
100 percent of EWE.
Barrera’s EWE numbers consistently fell below Albertsons’
expectations. By week five, Barrera should have reached 90
percent of EWE, but was barely above 60 percent. By week six,
Barrera had not exceeded 65 percent of EWE, although he had
been expected to have reached 100 percent by that date.

1Albertsons full-time employees, on the other hand, are
guaranteed a four-step disciplinary process prior to being
terminated, by virtue of a collective bargaining agreement.

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 Thaddeus Byrne, a superintendent responsible for Barrera
during his ramp-up period, noted on Barrera’s tracking sheet
that, despite being given additional training at week five,
Barrera had achieved “[n]o real improvement.” Byrne observed
Barrera was not returning from breaks and lunch in a timely
manner, so he counseled Barrera in an effort to help him increase
his EWE numbers.
On April 22, 2018—during week eight—Barrera claimed he
sprained his ankle as a result of a workplace accident. Barrera
explained that one of the foreman (whose name he could not
recall) backed a forklift into him, hitting his ankle. He did not
immediately report this workplace injury to his supervisor (as
required by Albertsons policy), but instead went back to work for
about an hour-and-a-half.
On April 24, 2018, Barrera called Albertsons to report he
would not be coming to work that day because he had sustained a
workplace injury. Thereafter, he went to an urgent care clinic
and obtained a note excusing him from work for the period
between April 24 and April 29, 2018.2
Surprised by Barrera’s failure to notify a supervisor
immediately following his injury, an Albertsons supervisor called
Barrera to find out what had happened. Barrera was advised he
needed to come in to fill out paperwork, and to be seen at a clinic
that handled worker’s compensation injuries sustained at the
Brea distribution center.

2Barrera worked the remainder of this week at his Garcoa
job and continued working at Garcoa during much of the time he
was on worker’s compensation leave of absence from Albertsons.

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 The physician at the clinic told Barrera that his ankle was
sprained, that he was going to be taken off work, that he could
not do any work requiring him to stand for long periods of time,
and that an electronic note would be sent directly to Albertsons
from the clinic excusing him from work from April 24 to April 29,
2018. After considering this development, Albertsons concluded
that Barrera’s work restrictions could not be accommodated as an
order selector. Barrera was told he was being placed on total
temporary disability leave as an accommodation through May 2,
2018.
While off work on temporary disability, and due to the
physically-demanding nature of all of the entry level jobs at the
Brea distribution center, Barrera also agreed that there was not
any position at Albertsons he thought he could perform given his
injury and restrictions. Barrera continued to speak with the
doctor about when he could return to work, but was told he
needed to remain off the Albertsons job.
On May 11, 2018, Barrera’s disability leave was extended
for approximately another month through June 3, 2018, because,
although he could now tolerate more weight on his injured ankle,
Barrera was nonetheless required to wear an ankle boot and use
a cane. As Albertsons explained, order selectors must ascend and
descend forklifts, and doing so while wearing an ankle boot
presented a safety hazard.
Barrera did not return to work by the stated deadline.
However, one day later—on May 31, 2018—he returned to the
clinic whereupon he was told that he no longer needed an ankle
boot and was cleared to return to work at full duty without
restrictions. Yet, he still did not return to his Albertsons
employment.

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 On Monday, June 4, 2018, Albertsons management
exchanged emails indicating that, despite being cleared to return
to work, Barrera neither appeared nor otherwise contacted
Albertsons. A manager called Barrera that day, and Barrera
indicated he would return the following day.
On June 5, 2018, Albertsons management decided that
they would initiate the termination process for Barrera “[b]ased
on his [EWE] production numbers,” achieved prior to his leave of
absence. On June 6, Barrera arrived late to work. Albertsons
terminated his employment the following day for failure to meet
his production expectations.
B. Complaint
On November 14, 2018, Barrera filed the operative
complaint against Albertsons, alleging the following causes of
action under the FEHA: (1) disability discrimination; (2) failure
to accommodate a physical disability; (3) failure to engage in the
interactive process; (4) wrongful discharge for exercise of FEHA
rights and retaliation; and (5) wrongful termination in violation
of public policy.
C. Trial Court’s Ruling on Albertsons’ Motion for
Summary Judgment
On July 2, 2020, Albertsons moved for summary judgment.
On August 31, 2020, Barrera conceded the motion as to
causes of action one, four, and five, but opposed summary
judgment on the second and third causes of action. He also
objected to portions of a declaration submitted by Byrne.
Citing Barrera’s concessions, the trial court granted
summary judgment as to the first, fourth, and fifth causes of
action.

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 With respect to the second cause of action for failure to
accommodate, the trial court granted the motion, finding Barrera
could not have performed the essential functions of the job while
he had the work restrictions of using an ankle boot and cane, and
that Barrera had not proposed any reasonable accommodation
other than extending his probationary time following his return
to work in order to reach the required EWE performance
standards, which the court found Albertsons was not required to
do.
With respect to the third cause of action for failure to
engage in the interactive process, the trial court granted the
motion, finding Barrera had been given his leave as an
accommodation, that he was not capable of performing his job
“with a reasonable accommodation” while he was on leave, and
that there was no other request for accommodation during the
time period Barrera was injured.
The trial court overruled Barrera’s objections to a
declaration submitted by Byrne, explaining that the basis
Barrera cited for its objection—failure to cooperate during
discovery—“is not a proper evidentiary objection.”
Barrera timely appealed.
DISCUSSION
A. Standard of Review and Governing Law
A “ ‘motion for summary judgment should be granted if all
the papers submitted show that there is no triable issue as to any
material fact and that the moving party is entitled to a judgment
as a matter of law.’ ” (Brundage v. Hahn (1997) 57 Cal.App.4th
228, 234.) A defendant “meets [its] burden upon a motion for
summary judgment or summary adjudication if that party has
proved ‘one or more elements of the cause of action . . . cannot be

8
established, or that there is a complete defense to that cause of
action.’ ” (Ibid., quoting Code Civ. Proc., § 437c, former subd.
(o)(2).)
Appellate courts review appeals from judgments entered
after summary judgment de novo. (Avila v. Continental Airlines,
Inc. (2008) 165 Cal.App.4th 1237, 1245.)
B. The Second Cause of Action Was Properly Dismissed
1. Applicable Law
A person’s right to hold employment without discrimination
based on a physical disability is protected by the FEHA. (Chavez
v. City of Los Angeles (2010) 47 Cal.4th 970, 984.) Government
Code section 12940 sets forth a number of unlawful employment
activities. Subdivision (m)(1) of that section makes it unlawful
“[f]or an employer . . . to fail to make reasonable accommodation
for the known physical or mental disability of an . . . employee.”
The elements of a cause of action for failure to
accommodate a disability under the FEHA are (1) the plaintiff
has a disability under the FEHA or was regarded as having a
disability, (2) the plaintiff is qualified to perform the essential
functions of the job with or without reasonable accommodation,
and (3) the employer failed to reasonably accommodate the
plaintiff’s disability. (Scotch v. Art Institute of California (2009)
173 Cal.App.4th 986, 1009-1010.)3,4

3 Although probationary employees can ordinarily be
terminated without good cause, notice or a hearing, their
probationary status does deprive them of all their FEHA
protections. (Atkins v. City of Los Angeles (2017) 8 Cal.App.5th
696, 719, 724, 728, 732.)
4For the purposes of the FEHA, “ ‘Essential functions’
means the fundamental job duties of the employment position the

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 “In analyzing an employee’s claim for unlawful
discrimination under the FEHA, California courts have adopted
the three-stage, burden-shifting test the United States Supreme
Court established in McDonnell Douglas Corp. v. Green (1973)
411 U.S. 792 . . . .” (Swanson v. Morongo Unified School Dist.
(2014) 232 Cal.App.4th 954, 964.)
“The burdens and order of proof . . . shift under the
McDonnell Douglas test when an employer defendant seeks
summary judgment. [Citations.] An employer defendant may
meet its initial burden on summary judgment, and require the
employee plaintiff to present evidence establishing a triable issue
of material fact, by presenting evidence that either negates an
element of the employee’s prima facie case, or establishes a
legitimate nondiscriminatory reason for taking the adverse
employment action against the employee.” (Swanson v. Morongo
Unified School Dist., supra, 232 Cal.App.4th at p. 966, italics
deleted and added.) “ ‘[T]o avoid summary judgment [on the
second of these two grounds], an employee claiming
discrimination must offer substantial evidence that the
employer’s stated nondiscriminatory reason for the adverse
action was untrue or pretextual, or evidence the employer acted
with a discriminatory animus, or a combination of the two, such
that a reasonable trier of fact could conclude the employer
engaged in intentional discrimination.’ [Citations.]” (Ibid.,
italics added.)

individual with a disability holds or desires. . . .” (Gov. Code,
§ 12926, subd. (f).)

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 2. Analysis
Albertsons does not dispute either that Barrera had a
disability protected by the FEHA or that he is a qualified
individual. Rather, the disputed issue is whether Albertsons
failed to reasonably accommodate Barrera’s disability. In this
regard, Barrera does not claim a failure to accommodate during
the time his ankle was actually injured. Instead, he posits that,
once he had fully recovered and returned to work, “a further
accommodation [should have been] given,” namely, to “extend[ ]
the probationary period by the time off work because of the
disability.”
Barrera relies exclusively on Hernandez v. Rancho
Santiago Community College Dist. (2018) 22 Cal.App.5th 1187
(Hernandez) to support his theory that he was entitled to a period
of additional accommodation to improve his performance once he
returned from leave. Hernandez involved a probationary
community college employee whose performance was required to
be evaluated by the district at intervals of three months, seven
months, and eleven months. (Id. at p. 1189.) After successfully
completing 12 months of probation, the plaintiff was to be
considered a permanent employee under section 88013,
subdivision (a), of the Education Code. (Hernandez, supra, at
p. 1189.)
The college district failed to review the plaintiff’s
performance at either the three-month interval or the seven-
month mark. At the eight-month mark, the plaintiff took an
approved leave of absence for surgery to repair a work-related
injury, which required a three-to-four-month recovery period.
(Hernandez, supra, 22 Cal.App.5th at pp. 1190-1191.)

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 Notwithstanding the college district’s approval of the
plaintiff’s leave request, immediately prior to the 12-month
mark—and while she was still on approved leave—the district
terminated her employment. (Hernandez, supra, 22 Cal.App.5th
at pp. 1189, 1191.) When the plaintiff contacted human
resources, she was told she should have known better than to
take a leave while on probation. (Ibid.)
The trial court rejected the district’s argument that the
plaintiff’s requested accommodation of additional probationary
time was an undue burden that excused its obligation to
accommodate the plaintiff under the FEHA because it would
necessarily result in plaintiff becoming a permanent employee
under the Education Code. (Hernandez, supra, 22 Cal.App.5th at
p. 1192.) Instead, the trial court concluded that the district “ ‘had
the option to deduct the time she was not able to work from her
one-year probationary period or extend the probationary period
by the number of days [the plaintiff] was off work’ ” as a
reasonable accommodation. (Id. at pp. 1191-1192.)
Rightfully concerned over termination of the plaintiff’s
employment while she was still on leave, was still disabled, and
had no prior performance complaints, the Court of Appeal
observed that “a finite leave is not a reasonable accommodation
when the leave leads directly to termination of employment
because the employee’s performance could not be evaluated while
she was on the leave.” (Hernandez, supra, 22 Cal.App.5th at
p. 1194.) In affirming the lower court judgment, the Court of
Appeal held that both the Education Code and the applicable
collective bargaining agreement allowed the district to deduct the
plaintiff’s leave time from the probationary period. (Hernandez,
supra, at pp. 1195-1196.)

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 The facts here stand in stark contrast to Hernandez.
Barrera had a consistently-poor track record of weekly Albertsons
performance evaluations accrued before his disability occurred.
Indeed, all of his evaluations showed that his EWE performance
fell below acceptable standards for probationary order selectors.
Moreover, after being cleared to return to work, Barrera did not
even timely report to work.
Under these circumstances, Albertsons was not required to
offer an additional accommodation that was likely to be futile
“ ‘because, even with the accommodation, the employee could not
. . . efficiently perform the essential functions of the job.’ ”
(Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 226,
citing Schmidt v. Safeway Inc. (D.Or. 1994) 864 F.Supp. 991,
996.)
Hernandez, the only case cited for Barrera’s claim of error,
does not hold that when an under-performing employee returns
from leave, an employer is obligated under the FEHA to provide
that employee with more time to improve his performance.
Accordingly, the trial court correctly found no triable issue of
material fact existed as to whether Albertsons’ accommodation
was pretextual or motivated by discriminatory animus.
C. The Third Cause of Action Was Properly Dismissed
1. Applicable Law
Government Code section 12940, subdivision (n), requires
employers to engage in a good faith interactive process “ ‘to
determine effective reasonable accommodations, if any, in
response to a request for reasonable accommodation by an
employee . . . with a known physical or mental disability . . . .’ ”
(Raine v. City of Burbank (2006) 135 Cal.App.4th 1215, 1219.)
“Generally, ‘ “[t]he employee bears the burden of giving the

13
employer notice of the disability.” ’ ” (Id. at p. 1222.) “To prevail
on a claim under section 12940, subdivision (n) [of the
Government Code] for failure to engage in the interactive process,
an employee must identify a reasonable accommodation that
would have been available at the time the interactive process
should have occurred.” (Scotch v. Art Institute of California,
supra, 173 Cal.App.4th at p. 1018.)
2. Analysis
Barrera’s complaint is that Albertsons management was
working “behind the scenes” on ways to terminate him while he
was out on disability. Yet, Barrera provides no authority for the
proposition that an employer cannot begin to consider
termination of a probationary employee who had already
accumulated multiple performance warnings. The only legal
authority offered by Barrera to demonstrate error is a single,
general reference to Hernandez—without so much as a pinpoint
citation.
California Rules of Court, rule 8.204(a)(1)(B) requires each
point in a brief to be supported “by argument and, if possible, by
citation of authority.” Rule 8.204(a) is based on fairness and
efficiency. It is fair because the respondent is entitled to its
opportunity to answer the appellant’s arguments. (People v.
Roscoe (2008) 169 Cal.App.4th 829, 840.) It is efficient because
we cannot “act as counsel” for either party to appeal and search
the record to discover errors not identified by the briefs. (Fox v.
Erickson (1950) 99 Cal.App.2d 740, 742.) Moreover, failure to
substantiate argument with legal authority can make it
impossible for an appellant to “affirmatively demonstrate error
on the record before the court.” (In re Marriage of Falcone &
Fyke (2008) 164 Cal.App.4th 814, 822.)

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 Under the circumstances present here, Barrera’s claim of
error with respect to the third cause of action has been forfeited.
(See Guthrey v. State of California (1998) 63 Cal.App.4th 1108,
1115 [“If no citation ‘is furnished on a particular point, the court
may treat it as waived’ ”].)5
D. The Trial Court Did Not Abuse its Discretion in
Overruling Barrera’s Objections to the Byrne
Declaration
Appellate courts review a trial court’s evidentiary rulings
on a motion for summary judgment for abuse of discretion. (Serri
v. Santa Clara University (2014) 226 Cal.App.4th 830, 852.)
In opposing Albertsons’ motion for summary judgment
below, Barrera objected to several portions of a declaration
submitted by Byrne on the basis that Albertsons “refused
discovery of order selector probationary employee EWE
percentages who passes [sic] and failed for the years 2016, 2017

5 Barrera’s challenge also fails on its merits. Barrera
conceded there was no reasonable accommodation that would
have permitted him to perform the essential functions of the
order selector job during the time period he was disabled and on
leave. It is undisputed that the essential functions of Barrera’s
job required him to be able to stand and walk, which Barrera
could not have done with his medical limitations. Barrera did not
believe he could have performed any jobs at the Brea distribution
center given his particular restrictions or that he could have
safely performed his job duties as an order selector with an ankle
boot and cane while his ankle was sprained. Because there was
no accommodation that would have permitted Barrera to perform
the essential functions of his job while he was disabled, the third
cause of action was properly dismissed.

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and 2018.” The trial court ruled that such an objection “is not a
proper evidentiary objection.” We agree.
During discovery, Barrera requested that Albertsons
produce “all documents, papers, books, accounts, letters,
photographs, objects and tangible things” that were “related to”
all order selectors at the Brea distribution center who failed
probation from 2016 through 2018. Albertsons objected on the
grounds that the request was overly broad, unduly burdensome,
harassing, included within its scope irrelevant documents, and
sought private employment documents pertaining to third
parties. Barrera did not challenge Albertsons refusal to provide
these documents by seeking an order compelling discovery.
Instead, Barrera waited until opposing Albertsons’ motion for
summary judgment.
Barrera argues the trial court erred in overruling its
objection because “[l]itigants cannot, on the one hand resist
discovery by asserting a privilege, and then seek to introduce
selective favorable evidence on the same subject for which they
asserted a privilege.” Albertsons responds that the trial court
properly overruled Barrera’s objection because, in order to
exclude evidence on the grounds that it was not produced in
discovery, the party seeking to exclude such evidence must show
that there was an order compelling the discovery or some other
deceptive practice that warrants exclusion.
Barrera’s own authorities do not support his claim of error.
For example, in Thoren v. Johnston & Washer (1972) 29
Cal.App.3d 270 the trial court excluded a witness from testifying
whose name was not disclosed during discovery and mentioned
only during the plaintiff’s opening statement. The trial court
concluded that the plaintiff’s failure to disclose was an act of

16
intentional deception, which exclusion was upheld on appeal. (Id.
at pp. 274-275.)
In Deeter v. Angus (1986) 179 Cal.App.3d 241, the plaintiff
sought to introduce a voice recording at trial despite having failed
to produce the recording during discovery. The appellate court
held the trial court properly excluded the recording because the
plaintiff had purposefully concealed the tape. (Id. at p. 254 &
fn. 5.)
In Castaline v. City of Los Angeles (1975) 47 Cal.App.3d
580, the plaintiffs sought to introduce an undisclosed physician’s
testimony regarding his examination of the plaintiff three days
before trial, despite representing in their answers to
interrogatories that the plaintiff had fully recovered from their
injuries. (Id. at pp. 591-592.) The appellate court held the trial
court properly excluded the testimony because the plaintiffs had
misled defendants during discovery. (Ibid.)
Barrera’s own cases therefore establish that the party
seeking to exclude evidence must show a demonstrable failure to
cooperate during discovery in the production of that evidence, or
some deceptive practice warranting exclusion. Barrera points to
no such evidence. The mere refusal to provide documents in the
first instance, standing alone, does not support the drastic order
of exclusion of evidence.
The trial court therefore did not abuse its discretion in
overruling Barrera’s objection to Byrne’s declaration.

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 DISPOSITION
The order is affirmed. Albertsons shall recover its costs on
appeal.
NOT TO BE PUBLISHED

CRANDALL, J.*

We concur:

ROTHSCHILD, P. J.

CHANEY, J.

*Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.

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