richard m. pachulski (ca bar no. 90073) jeffrey …the objection is based upon this notice, the...

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Richard M. Pachulski (CA Bar No. 90073)James I. Stang (CA Bar No. 94435) Dean A. Ziehl (CA Bar No. 84529) John W. Lucas (CA Bar No. 271038) PACHULSKI STANG ZIEHL & JONES LLP 10100 Santa Monica Blvd., 13th Floor Los Angeles, California 90067 Telephone: 310/277-6910 Facsimile: 310/201-0760 Email: [email protected]

[email protected] [email protected] [email protected]

Attorneys for PE Creditor Trust

Jeffrey Ranen (CA Bar No. 224285)Rita R. Kanno (CA Bar No. 230679) LEWIS BRISBOIS BISGAARD & SMITH LLP 701 “B” Street, Suite 1900 San Diego, CA 92101 Email: [email protected] Telephone: 619/233.1006 Facsimile: 619/233.8627 Email: [email protected] [email protected]


UNITED STATES BANKRUPTCY COURT CENTRAL DISTRICT OF CALIFORNIA

SANTA ANA DIVISION

In re: American Suzuki Motor Corporation,1

Debtor.

Case No.: 8:12-bk-22808-SC Chapter 11 NOTICE OF AND OBJECTION TO THE GENERAL UNSECURED CLAIM OF MORGAN BROADHEAD (CLAIM NO. 401); MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF MARTHA BARRERA IN SUPPORT THEREOF

Date: November 14, 2013 Time: 1:30 p.m. Place: Courtroom 5C 411 West Fourth Street Santa Ana, CA Judge: Honorable Scott C. Clarkson

1 The last four digits of the Debtor’s federal tax identification number are (8739). The Debtor’s address is: 3251 East Imperial Highway, Brea, CA 92821.

Case 8:12-bk-22808-SC Doc 1863 Filed 10/17/13 Entered 10/17/13 17:08:52 Desc Main Document of 110

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PLEASE TAKE NOTICE that M. Freddie Reiss, in his capacity as trustee (“Trustee”) of

the PE Creditor Trust (the “Trust”), as successor of the bankruptcy estate of American Suzuki Motor

Corporation (the “Debtor”), hereby objects (the “Objection”) to proof of claim 401 (the “Claim”)

filed by Morgan Broadhead

PLEASE TAKE FURTHER NOTICE that pursuant to Local Bankruptcy Rule 9013-1(f),

any responses to the relief requested in this Objection must be filed with the Bankruptcy Court and

served upon counsel for the Trustee at the address noted above so as to be received at least fourteen

(14) days prior to the date of the hearing to be set by the Court. If you or your attorney do not

respond to this Objection by such deadline, the Court may decide that you do not oppose this

Objection and the Court may enter an order granting the relief requested without further notice or

hearing.

PLEASE TAKE FURTHER NOTICE that any response to the Objection must contain at a

minimum the following:

a. The name of the Claimant, the Claim numbers and description of the basis for each

Claim, including, without limitation, the amount thereof;

b. A concise statement setting forth the reasons why such Claims should not be

disallowed for the reasons set forth in the Objection, including, but not limited to, any declarations

or memoranda of law setting forth the specific factual and legal basis upon which the Claimant will

rely in opposing the Objection; and

c. All documentation or other evidence of the Claims, to the extent not included with the

Claims, upon which the Claimant will rely in opposing the Objection at the hearing.

The Objection is based upon this Notice, the attached Memorandum of Points and

Authorities, the declaration of Martha Barrera, all pleadings and records on file in this case, and such

oral or written evidence as may be properly presented to the Court at or before the time of the

hearing. For further information concerning the Objection, you may contact the attorneys for the

Trustee listed at the top of the first page of this Notice.


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PLEASE TAKE FURTHER NOTICE that pursuant to Local Rule 9013-1(g), the Trust

may file a reply to any objection or other response to the Motion no later than seven (7) days prior to

the hearing on the Objection.

WHEREFORE, the Trust respectfully requests that the Court grant the relief requested in

the Objection.

Dated: October 15, 2013 PACHULSKI STANG ZIEHL & JONES LLP

By: /s/ John Lucas Richard M. Pachulski James I. Stang Dean A. Ziehl John W. Lucas -and-

LEWIS BRISBOIS BISGAARD & SMITH LLP Jeffrey Ranen Rita R. Kanno



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Richard M. Pachulski (CA Bar No. 90073)James I. Stang (CA Bar No. 94435) Dean A. Ziehl (CA Bar No. 84529) John W. Lucas (CA Bar No. 271038) PACHULSKI STANG ZIEHL & JONES LLP 10100 Santa Monica Blvd., 13th Floor Los Angeles, California 90067 Telephone: 310/277-6910 Facsimile: 310/201-0760 Email: [email protected]



Jeffrey Ranen (CA Bar No. 224285)Rita R. Kanno (CA Bar No. 230679) LEWIS BRISBOIS BISGAARD & SMITH LLP 701 “B” Street, Suite 1900 San Diego, CA 92101 Email: [email protected] Telephone: 619/233.1006 Facsimile: 619/233.8627 Email: [email protected] [email protected]



SANTA ANA DIVISION

In re: American Suzuki Motor Corporation,1

Debtor.

Case No.: 8:12-bk-22808-SC Chapter 11 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF OBJECTION TO THE GENERAL UNSECURED CLAIM OF MORGAN BROADHEAD (CLAIM NO. 401); MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF MARTHA BARRERA IN SUPPORT THEREOF



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TABLE OF CONTENTS

Page

I. INTRODUCTION ............................................................................................................................ 1

II. PROCEDURAL FACTS ................................................................................................................. 1

III. STATEMENT OF FACTS RELEVANT TO CLAIM .................................................................. 2

IV. DISCUSSION ................................................................................................................................ 9

A. Burden of Proof ............................................................................................................... 9

B. The Court Must Determine the Allowance of a Claim Subject to Objection ................ 10

V. THE CLAIM SHOULD BE DISALLOWED IN ITS ENTIRETY .............................................. 10

A. The Claim Lacks Sufficient Evidence to Set Forth Any of His Claims ........................ 11

1. Disability Discrimination ................................................................................... 11

2. Failure to Accommodate/Failure to Engage in the Interactive Process ............. 12

3. Retaliation .......................................................................................................... 14

4. Failure to Prevent Discrimination or Harassment .............................................. 15

VI. OBJECTION TO CLAIMED DAMAGES ................................................................................. 17

A. Lost Income ................................................................................................................... 17

B. Emotional Distress ......................................................................................................... 19

C. Attorneys Fees ............................................................................................................... 19

VII. RESERVATION OF RIGHTS ................................................................................................... 20

VIII. CONCLUSION ......................................................................................................................... 20


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Cases

Akers v. County of San Diego, 95 Cal. App. 4th 1441 (2002) ...................................................................................................... 14

Anastasio v. Schering Corp. (3rd Cir. 1988) 838 F.2d 701 ................................................................................................................................ 18

Berndt v. Kaiser Aluminum & Chem. Sales, Inc. (3rd Cir. 1986) 789 F.2d 253 ................................................................................................................................ 18

Central Bank v. Cascade Hydraulics & Util. Serv. (In re Cascade Hydraulics & Util. Serv.), 815 F.2d 546 (9th Cir. 1987) ........................................................................................................ 9

Commercial Cotton Co. v. United Calif. Bank (1985) 163 Cal.App.3d 511 ..................................................................................................................... 19

Connecticut Gen. Life Ins. V. Schaumberg Hotel Owner Ltd. P’ship (In re Schaumburg Hotel Owner Ltd. P'ship), 97 B.R. 943 (Bankr. N.D. Ill. 1989) ............................................................................................ 10

Dept. of Fair Employment & Hous. Comm’n v. Smitty’s Coffee Shop Precedent Decision No. 84-25 (FEHC 1984) .............................................................................. 19

Dept. of Fair Employment & Hous.Comm’n v. Centennial Bancorp Precedent Decision No. 87-03 (FEHC 1987) .............................................................................. 18

Donlin v. Philips Lighting N. Amer. Corp. (3rd Cir. 2009) 581 F.3d. 73 ................................................................................................................................. 18

Fisher v. Superior Court (Alpha Therapeutic Corp.), 177 Cal. App. 3d 779 (1986) ....................................................................................................... 13

Goss v. Exxon Office Sys., Co. (3rd Cir. 1984) 747 F.2d 885 ................................................................................................................................ 18

Green v. State of California (2005) 132 Cal.App.4th 97 ...................................................................................................................... 13

Guz v. Bechtel, 24 Cal 4th 317 (2000) .................................................................................................................. 12

Ibarbia v. Regents of University of California, 191 Cal. App. 3d 1318 (1987) ..................................................................................................... 12

In re Beverages Int'l Ltd., 50 B.R. 273 (Bankr. D. Mass. 1985) ........................................................................................... 10

In re Colonial Bakery, Inc., 108 B.R. 13 (Bankr. D.R.I. 1989) ................................................................................................ 10

In re Greene, 71 B.R. 104 (Bankr. S.D.N.Y. 1987) ........................................................................................... 10

In re Hydorn, 94 B.R. 608 (Bankr. W.D. Mo. 1988) ......................................................................................... 10

In re Khan, 114 B.R. 40 (Bankr. S.D.N.Y. 1990) ........................................................................................... 10

In re Ousley, 92 B.R. 278 (Bankr. S.D. Ohio 1988) ......................................................................................... 10

In re Pacific Arts Publishing, Inc., 198 B.R. 319 (Bankr. C.D. Cal. 1996) ......................................................................................... 10


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In re Vernon Sand & Gravel, Inc. 93 B.R. 580 (Bankr. N.D. Ohio 1988) ......................................................................................... 10

Jensen v. Wells Fargo Bank, 85 Cal. App. 4th 245 (2000) ........................................................................................................ 13

McDonnell Douglas Corp. v. Greene, 411 U.S. 792 (1973) ..................................................................................................................... 15

Morgan v. Regents of University of California, 88 Cal.App.4th 52, 68 (2000) ...................................................................................................... 11

Naton v. Bank of Cal. (9th Cir. 1981) 649 F. 2d 691 ............................................................................................................................... 17

Peyton v. DiMaria (D.C. Cir. 2002) 287 F.3d 1121 .............................................................................................................................. 18

Pollard V. E.I. Du Pont de Nemours & Co., supra, 532 U.S. ....................................................................................................................................... 18

Rodgers v. Fisher Body Div., General Motors Corp. (6th Cir. 1984) 739 F.2d 1102 .............................................................................................................................. 18

Sargent v. Litton Systems, Inc., 841 F. Supp. 956 (N.D. Cal. 1994) .............................................................................................. 13

Silva v. Lucky Stores, 65 Cal. App. 4th 256 (1998) ........................................................................................................ 16

Soldinger v. Northwest Airlines, Inc., 51 Cal. App. 4th 345 (1996) ........................................................................................................ 13

Spencer v. Pugh (In re Pugh), 157 B.R. 898 (B.A.P. 9th Cir. 1993) ........................................................................................... 10

Sposato v. Elec. Data Systems, Corp. (9th Cir., April 22, 1997) ..................................................... 17

Suggs v. ServiceMaster Ed. Food Mgmt. (6th Cir. 1996) 72 F.3d 1228 ................................................................................................................................ 18

Trujillo v. North Co. Transit Dist., 63 Cal. App. 4th 280 (1998) ........................................................................................................ 16

Whittlesey v. Union Carbide Corp. (2d Cir. 1984) 742 F.2d 724 ................................................................................................................................ 18

Wright v. Holm (In re Holm), 931 F.2d 620 (9th Cir. 1991) ....................................................................................................... 10

Statutes

28 U.S.C. §§ 157 ................................................................................................................................ 1

CAL. GOVT. CODE § 12926 .............................................................................................................. 15

CAL. GOVT. CODE § 12940 .............................................................................................................. 14

CAL. GOVT. CODE, § 12940 ....................................................................................................... 16, 18

Gov. Code § 12940 .......................................................................................................................... 15

Gov. Code, § 12965 ......................................................................................................................... 22


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I.

INTRODUCTION

M. Freddie Reiss (the “Trustee”), in his capacity as trustee of the PE Creditor Trust (the

“Trust”) formed by the Debtor’s Fifth Amended Plan of Liquidation Under Chapter 11 of the

Bankruptcy Code [Docket No. 1260] (the “Plan”), hereby files this Objection to the General

Unsecured Claim of Morgan Broadhead (Claim No. 401) (the “Objection”), pursuant to section 502

of title 11 of the United States Code (the “Bankruptcy Code”), Rule 3007 of the Federal Rules of

Bankruptcy Procedure (the “Bankruptcy Rules”), and Rule 3007-1 of the Local Bankruptcy Rules of

the United States Bankruptcy Court for the Central District of California (the “Local Rules”).

This Objection is based on the arguments set forth below, the Declaration of Martha Barrera

(the “Barrera Declaration”) and exhibits thereto, and any and all subsequent pleadings filed by the

Trust relating to the Objection, any oral or documentary evidence presented at or prior to the time of

the hearing, and the record in this case. A copy of the Barrera Declaration is annexed hereto as

Exhibit 1 and incorporated herein in its entirety. The Court has jurisdiction over this matter

pursuant to 28 U.S.C. §§ 157 and 1334.

By this Objection, the Trustee seeks disallowance of proof of claim number 401 (the

“Claim”) filed by Morgan Broadhead (“Claimant”) in its entirety. As an at-will employee, Claimant

seeks payment of the sum total of $1,627,500 for alleged wrongful termination damages associated

with the following proposed claims: (a) disability discrimination; (b) failure to accommodate a

disability; (c) failure to adequately investigate and correct discrimination; (d) retaliation; (e) failure

to take all steps to prevent discrimination and harassment; and (f) failure to identify the need for

accommodation. The Claimant, however, has failed to provide any evidence to support his Claim.

Accordingly, the Claim should be disallowed in its entirety.

II.

PROCEDURAL FACTS

On November 5, 2012 (the “Petition Date”), the Debtor filed a voluntary petition for relief

under chapter 11 of the Bankruptcy Code. No trustee or examiner was appointed in this chapter 11

case. Through the effective date of the Plan (March 31, 2013), the Debtor continued to operate and


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manage its affairs as a debtor in possession pursuant to sections 1107(a) and 1108 of the Bankruptcy

Code.

On December 6, 2012, the Court entered the Order (a) Establishing the Procedures and

Deadlines for Filing (I) Proofs of Claim and Interests and (II) Requests for Payment of

Administrative Expense Pursuant to 11 U.S.C. § 503(B)(9); (b) Approving Form and Manner of

Notice of Bar Dates; and (c) Granting Related Relief (the “Bar Date Order”). The Bar Date Order

set January 7, 2013 as the last day for filing proofs of claims in the case for claims against the Trust

arising on or prior to the Petition Date (the “Claims Bar Date”).

On or about January 7, 2013, the Claimant filed the Claim seeking damages associated with

his alleged wrongful termination claim. A true and correct copy of the Claim is attached to the

Barrera Declaration as Exhibit A. The Claim, however, lacks any supporting evidence.

III.

STATEMENT OF FACTS RELEVANT TO CLAIM

Claimant pursues the Claim against his former employer, American Suzuki Motor

Corporation (the “Debtor”), alleging he was subjected to discrimination based on his disability and

that his termination was related thereto. Claimant submitted his employment application to the

Debtor on or about January 28, 2011 and again on March 18, 2011. He signed the application noting

that employment with the Debtor would be at-will. Importantly, he failed to indicate anywhere on

the application any need for accommodations by the Debtor. (See Exhibit B attached to the Barrera

Declaration.)

On or about March 28, 2011, Claimant first worked for the Debtor as an Accessory

Development Specialist in the Accessory Development Department of the Debtor, as indicated in his

offer letter of March 18, 2011. Like all newly hired employees, Claimant participated in the

orientation process for new employees. The Debtor’s policies and procedures regarding its

employment practices were presented to and discussed with Claimant during the orientation. At that

time, Claimant was on notice of the Debtor’s policies regarding equal employment opportunities,

accommodations for disabilities, and anti-discrimination and anti-harassment policies. At the

orientation, Claimant signed an acknowledgement that indicates he was in receipt of the Debtor’s


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equal employment opportunities, accommodations for disabilities, and anti-discrimination and anti-

harassment policies, complaint procedure policy, and training session. (See Exhibit C and Exhibit

D attached to the Barrera Declaration.) Claimant also signed the Employee Guidebook

Acknowledgement and Acknowledgement of Receipt of Company Booklets & Policies on March

29, 2011, agreeing that he had received and reviewed the Guidebook regarding the Debtor’s policies

and procedures and that he understood his employment was at-will. (See Exhibit E and Exhibit F

attached to the Barrera Declaration.) He also signed Employee Guidebook Acknowledgements on

May 15, 2011 and January 25, 2012, pertaining to the revised Guidebooks. (See Exhibit G and

Exhibit H attached to the Barrera Declaration.)

The policies and procedures referenced above outline the Debtor’s anti-harassment and anti-

discrimination policies. They also describe the Debtor’s policies regarding employment / work-

place accommodations and the complaint process to address any such issues. (See the Barrera

Declaration, 2:19-26) If an employee believes he is being treated unfairly or has any complaint the

employee shall contact his supervisor or the Human Resources Department as directed in the Anti-

Harassment Policy.

As demonstrated herein and by the exhibits annexed to the declaration in support of this

Objection, Claimant never raised any of the issues asserted in his Claim and never followed the

Debtor’s procedures for filing a complaint regarding the Debtor’s alleged failure to accommodate his

disability. (See the Barrera Declaration, 2:27-28 and 3:1.)

In September 2011, the Debtor eliminated the Accessory Development Department resulting

in the lay-off of a majority of the employees in this department. Claimant was one of the few

employees that was offered the opportunity to transition to a new position within the Debtor’s Parts

Department as a Senior Accessory Administrator, which he accepted. (See the Barrera Declaration,

3:2-9.)

Claimant began his new role on September 16, 2011. (See Exhibit I attached to the Barrera

Declaration.) Shortly after transferring to this new position, it was discovered that Claimant could

not adequately perform the essential duties required to satisfactorily perform his job. As a Senior

Accessory Administrator in the Parts Department, Claimant’s job duties included administering and


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analyzing accessory orders, issuing purchase orders to suppliers, coordinating with the sales staff on

the implementation of new accessory items and on accessory promotions, processing export

accessory sales orders, maintaining all part master accessory part numbers, and assisting with

investigation of dealer inquiries regarding accessory issues. (See the Barrera Declaration, 3:2-9.)

As part of his training while transitioning into his new position as a Senior Accessory Administrator,

Claimant was provided step-by-step written instructions on how to perform the basic duties of his

job. Specifically, on October 4, 2011, Claimant was provided the following written instruction:

“Please set up PM order…The attached e-mail from Mike Clark shows how to set up PM as DROP

SHIP. Also, please confirm RGC with Ed…” (See Exhibit J, page 1, attached to the Barrera

Declaration.) On October 5, 2011, Claimant participated in a conference call or webinar to “Discuss

how to maintain the inventory of …items in the system,” which was an essential part of Claimant’s

role as a Senior Accessory Administrator. (See Exhibit J, page 3, attached to the Barrera

Declaration.) On October 6, 2011, Claimant was provided specific instructions to “place a PO to

vendors as follows…” The correspondence to Claimant describes with specificity the deadline for

placing the order, the shipping location for the order, and additional instructions for the sales order.

(See Exhibit J, page 5.) On October 6, 2011, Claimant also received the following instruction via e-

mail: “Morgan – Please order 50 of 990A0-19071 to 1E.” (See Exhibit J, page 7.) Furthermore, on

October 6, 2011, Claimant sent an e-mail to a vendor asking if the purchase order Claimant

submitted was performed correctly, because his supervisor, Mike Clark, had advised Claimant to

double check his work with the vendors for accuracy. (See Exhibit J, page 8.)

Despite all of the written instruction and other resources provided to Claimant, he continued

to fail in his position. For example, Claimant had difficulty entering the data into the system from

the purchase orders he was given by the Parts Department analysts. He duplicated tasks

unnecessarily and frequently miscommunicated purchase orders to vendors. Claimant also had

difficulty completing his various tasks within the specified timeframe. (See Exhibits L, O, & P,

attached to the Barrera Declaration.)

On October 14, 2011, Tom Hosner (General Manager of the Parts Department) and Hitoshi

Murakami (Inventory Control Manager of Parts Department, direct supervisor of Claimant) met to


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discuss Claimant’s performance issues. Thereafter, Mr. Murakami met with Claimant and advised

him that purchase orders for a few specific vendors would be transferred to other employees to

reduce Claimant’s workload and provide him the opportunity to succeed in the position. (See the

Barrera Declaration, ¶ 9.) Claimant’s supervisors also provided him with written instructions for all

of his duties and assignments via electronic correspondence or written notes. (See Exhibits J & O

attached to the Barrera Declaration.) During this time, the Debtor also enabled Claimant to

participate in training on desktop applications to provide him with the skills necessary to succeed in

this new position. (See the Barrera Declaration, ¶ 10 and Exhibit J, page 3.) If Claimant was ever

confused about any of his job responsibilities he had access to the necessary reference materials that

provided him with the instructions of his duties and other assignments. (See Exhibit J attached to

the Barrera Declaration.) If Claimant believed that these materials were not sufficient he could have

asked Mr. Hosner or Mr. Murakami for guidance or clarification regarding his job responsibilities.

However, Claimant never asked for any guidance or clarifications. (See the Barrera Declaration,

3:10-28 and 4:1-18.)

Debtor continued to accommodate Claimant by continuing to provide him with written

instructions on how to perform basic duties. For example, on January 2, 2012, Claimant was

instructed as follows: “Please process orders for oil for both MC and Marine using attached.

Remember enter the CASE qty, not the pallet qty.” (See Exhibit J, page 11, attached to the Barrera

Declaration.) Thus it is clear, Claimant was given thorough step-by-step instructions and guidance

on how to succeed in the position. He had multiple resources to turn to in ensuring his success with

the Debtor.

In addition to receiving written instructions and guidance as demonstrated by the small

sample noted above, Claimant was also trained to set up Outlook calendar reminders to perform the

basic tasks of his job. On October 10, 2011, Claimant acknowledged he had his Outlook reminder

set up so that he would not forget to schedule purchase orders because in the past he had forgot to

timely schedule such orders. (See Exhibit J, page 9, attached to the Barrera Declaration.) Also on

October 10, 2011, Claimant acknowledged he needed to set up Outlook reminders in order to meet

the Debtor’s expectations. (See Exhibit J, page 10, attached to the Barrera Declaration.)


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On November 29, 2011, Claimant was given a formal written warning regarding his ongoing

performance issues. An inter-office memorandum (the “Nov. 29 Memo”) signed by Claimant

informed him of the various job performance issues discussed herein: “This letter is to inform you

that your job performance has not progressed to a satisfactory level since you were assigned to the

Sr. Parts Administrator position on September 16, 2011.” (See Exhibit L attached to Barrera

Declaration.) Specific job performance issues were noted in the Nov. 29 Memo as follows: “Errors

on purchase orders; Ineffective communications with suppliers; Inaccurate part number

maintenance; Poor organizational skills; Inefficient processing of the order checklist; and Inability to

effectively complete the basic duties of position without supervision intervention.” (See Exhibit L

attached to Barrera Declaration.) The Nov. 29 Memo further describes examples of each of

Claimant’s job-performance deficiencies which were reviewed with Claimant as they were

discovered. Claimant signed this job performance memorandum without providing any comments

or objections. (See Exhibit L attached to the Barrera Declaration.)

It was only after Claimant was provided written warning by the Nov. 29 Memo that he

submitted a doctor’s note to the Debtor. (See Exhibit M attached to the Barrera Declaration.) In

this note, Claimant’s physician states that “Appropriate and reasonable accommodations are

warranted.” The Debtor’s human resource department believed the doctor’s communication was too

vague to inform the Debtor what additional accommodations might enable Claimant to perform his

various job responsibilities satisfactorily beyond those the Debtor had already provided. As a result,

the Debtor’s Human Resources Director asked Claimant to provide the Debtor with additional

information if he believed the current accommodations were not sufficient. In an e-mail dated

December 6, 2011, the Debtor’s Human Resources Director writes:

I got a copy of November 29th memo from Hitoshi to you about some performance concerns. Additionally, he sent me a copy of an email documenting a further discussion that the two of you had yesterday where some additional strategies were explored to help you in your daily activities. Let me know if there is anyway I can assist you as well. If you come up with some additional ideas of ways you might need assistance, don’t hesitate to let me or Hitoshi know.


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(See Exhibit N attached to Barrera Declaration.) Claimant never responded to this request. As a

result, the Debtor reasonably believed that there was nothing else necessary to do by way of

additional accommodations regarding his day-to-day job responsibilities. Even after certain of his

original duties were reassigned on account of his performance, the Debtor continued to provide

Claimant with guidance by instructing him to (a) continue calendaring and tracking purchase orders,

(b) take notes regarding his assignments, and (c) inviting him to ask for further assistance if needed.

(See Exhibit N, Exhibit O, and Exhibit P attached to Barrera Declaration..)

On December 5, 2011, Mr. Murakami met with Claimant to discuss ways to further

accommodate Claimant. At this time, Claimant was disappointed for receiving the poor

performance evaluation in the Nov. 29 Memo but “realized he needs to work harder to meet

company’s expectations.” (See Exhibit O, attached to the Barrera Declaration.) According to

Claimant, he provided the Nov 29 Memo “to the doctor to make sure if it was okay to share the info

about his condition with us, and his doctor told him ok to do so…Therefore, the discussion Morgan

and I had yesterday, 12/5/11, was focusing on what we can address together, in order to be able for

him to perform good enough to meet company’s expectation.” (See Exhibit O attached to the

Barrera Declaration.) In response, the Debtor and Claimant agreed to further address his

performance issues by: (a) utilizing a work book where he could keep his notes, screenshots,

instructions and e-mails as a reference whenever he had a question and (b) utilize an Outlook

Calendar for creating reminders to help ensure that his various job responsibilities would be

completed in a timely manner. (See Exhibit O attached to the Barrera Declaration.)

Even with these adjustments to his position, Claimant continued to make basic errors in his

position. For example, on December 8, 2011, and December 9, 2011, he made purchase order

errors. (See Exhibit P, attached to the Barrera Declaration.) On December 13, 2011, Claimant

failed to complete a vendor checklist on time. On December 15, 2011, he submitted a purchase

order twice causing the vendor to process the same order twice. That same day he also entered the

wrong purchase order for an account. On December 19, 2011, Claimant failed to complete a

purchase order for more than ten (10) vendors from the prior week’s checklist. Claimant continued

to make similar errors. (See Exhibit P, attached to the Barrera Declaration.)


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Moving into 2012, the Claimant’s performance issues continued. On January 4, 2012,

Claimant had a conference call with his supervisors to discuss his mistakes on purchase orders. (See

Exhibit K, page 1, attached to Barrera Declaration.) On January 5, 2012, Claimant acknowledged

he placed duplicate purchase orders and there was “no reason for the duplicate PO’s to be created

and I am uncertain exactly why they were created. It appears I put the PO’s in twice…To prevent

this from happening again after entering a PO and printing out a copy of the PO data I will begin

marking the reorder check list as entered.” (See Exhibit K, page 2, attached to the Barrera

Declaration.) In an e-mail dated January 9, 2012, Claimant again acknowledged he failed to

complete an assignment as instructed and that there was “No reason” why he failed to complete the

task. (See Exhibit K, page 4-5.) On January 12, 2012, he writes “I am in big trouble for not doing

my job correctly.” (See Exhibit K, page 6.) It is compelling to note that not once in any of the e-

mails attached in Exhibit K did Claimant ever blame his mistakes on a disability or on the Debtor’s

alleged failure to provide reasonable accommodations. (See Exhibit K attached to Barrera

Declaration.)

It is clear the Debtor made every effort legally required and beyond to work with Claimant to

help him succeed at his job. Claimant was invited to engage in the interactive process and provide

the Debtor with additional ways to accommodate his disability but he failed to participate. (See the

Barrera Declaration, 4:19-27.) The Debtor also invited Mr. Broadhead to review the listing of open

positions to see if he felt there was one that was better suited to his abilities. Mr. Broadhead

informed Human Resources that there were no positions for which he wished to apply. (See the

Barrera Declaration, 4:4-7.) Ultimately, Claimant admitted he did not have the required skill-set to

perform his duties in the Parts Department as a Senior Accessory Administrator.

(i) I enjoy sales and marketing and use effective analysis as the basis for making solid business decisions. Developing strong social relationships are very important when dealing with vendors in Accessory Development. In Parts, vendor relationship skills are only called upon if a problem develops with an item. It is a great position for an Analyst. It is not a direction I would focus my career path by choice. I have always enjoyed the challenge of developing effective relationships with customers and clients. My new position as a Sr. Parts Administrator is the position of an Analyst.


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(See Exhibit Q attached to the Barrera Declaration) (emphasis added) Notably, Claimant never

once mentioned his disability as a reason for his failure in his own letter of resignation.

Claimant’s employment with the Debtor ended on April 3, 2012, because he failed to meet

acceptable performance standards of a Senior Accessory Administrator on multiple occasions. In

addition, Claimant never adequately engaged in the interactive process to address performance

issues nor did he ever request an alternative position. (See the Barrera Declaration, 5:19-28 and 6:1-

2 and Exhibit R attached to Barrera Declaration.)

In his Claim, Claimant complains the Debtor failed to accommodate his disability and

wrongfully terminated him as a result of his disability. Merely claiming that he has a disability and

that he was terminated as a result of such disability is not sufficient to give rise to a discrimination

claim or any of the other associated claims. As reflected herein, his Claim lacks any evidentiary

support.

IV.

DISCUSSION

A. Burden of Proof

Bankruptcy Rule 3001 provides in pertinent part:

(iii) (a) Form and Content: A proof of claim is a written statement setting forth a creditor’s claim. A proof of claim shall conform substantially to the appropriate Official Form.

(iv) (c) Claim Based on a Writing. When a claim, or an interest in property of the Debtor securing the claim, is based on a writing, the original or a duplicate shall be filed with the proof of claim. If the writing has been lost or destroyed, a statement of the circumstances of the loss or destruction shall be filed with the claim.

Claimant has the ultimate burden of proof regarding allowance of the Claim. Pursuant to

section 502(a) of the Bankruptcy Code, a claim or interest is deemed allowed unless a party in

interest objects. Pursuant to Bankruptcy Rule 3001(f), a properly executed and filed proof of claim

is endowed with prima facie evidentiary effect. Filing a proof of claim constitutes prima facie

evidence of the amount and validity of the claim. See also, Central Bank v. Cascade Hydraulics &

Util. Serv. (In re Cascade Hydraulics & Util. Serv.), 815 F.2d 546 (9th Cir. 1987). The Debtor bears

the initial burden of proof to overcome the presumed validity and amount of the claim; however, that


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burden is easily satisfied. Connecticut Gen. Life Ins. V. Schaumberg Hotel Owner Ltd. P’ship (In re

Schaumburg Hotel Owner Ltd. P'ship), 97 B.R. 943 (Bankr. N.D. Ill. 1989).

The objecting party is not required to disprove the claim. In re Khan, 114 B.R. 40 (Bankr.

S.D.N.Y. 1990). The objecting party only has the initial burden of producing facts sufficient to

demonstrate that an actual dispute regarding the validity or amount of the claim exists. In re

Hydorn, 94 B.R. 608 (Bankr. W.D. Mo. 1988). Once the objecting party has met the initial burden

of overcoming the prima facie validity of the claim, the claimant then must prove the claim. In re

Beverages Int'l Ltd., 50 B.R. 273 (Bankr. D. Mass. 1985); In re Greene, 71 B.R. 104 (Bankr.

S.D.N.Y. 1987); In re Ousley, 92 B.R. 278 (Bankr. S.D. Ohio 1988); In re Colonial Bakery, Inc.,

108 B.R. 13 (Bankr. D.R.I. 1989). The ultimate burden remains on the creditor to prove the validity

of its claim by a preponderance of the evidence. In re Pacific Arts Publishing, Inc., 198 B.R. 319,

321 (Bankr. C.D. Cal. 1996). See also, Spencer v. Pugh (In re Pugh), 157 B.R. 898, 901 (B.A.P. 9th

Cir. 1993). The burden of persuasion is always on the claimant to establish its entitlement to the

claim. Wright v. Holm (In re Holm), 931 F.2d 620, 623 (9th Cir. 1991); In re Vernon Sand &

Gravel, Inc. 93 B.R. 580 (Bankr. N.D. Ohio 1988).

B. The Court Must Determine the Allowance of a Claim Subject to Objection

The Claimant asserts entitlement for payment of monies in connection with a wrongful

termination claim in the sum total of $1,627,500. The Claimant, however, has failed to provide any

evidence of wrongful termination, specifically that the debtor terminated Claimant in violation of

public policy (i.e., that the termination was related to a discriminatory intent.) Accordingly, the

Claimant has failed to carry its burden under Bankruptcy Rule 3001(a) and, thus, is not entitled to

the presumption of validity under Bankruptcy Rule 3001(f).

V.

THE CLAIM SHOULD BE DISALLOWED IN ITS ENTIRETY

The Trustee objects to the Claim pursuant to section 502(b)(1) of the Bankruptcy Code,

which provides in pertinent part:

(b) . . . [I]f such objection to a claim is made, the court, after notice and a

hearing, shall determine the amount of such claim in lawful currency of the


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United States as of the date of the filing of the petition, and shall allow such

claim in such amount, except to the extent that —

(1) such claim is unenforceable against the debtor and property of the

debtor, under any agreement or applicable law for a reason other than because

such claim is contingent or unmatured;

The Claim is predicated upon the allegations made by Claimant in the summary of claims

for: (a) disability discrimination; (b) failure to accommodate a disability; (c) failure to adequately

investigate and correct discrimination; (d) retaliation; (e) failure to take all steps to prevent

discrimination and harassment; and (f) failure to identify the need for accommodation.

However, contrary to the allegations made in the summary of the Claim (a) Claimant failed

to perform the essential duties of his job, including, but not limited to, committing errors on

purchase orders, ineffective communications with suppliers, inaccurate part number maintenance,

poor organizational skills, inefficient processing of the order checklist, and inability to effectively

complete basic duties of the position with supervision intervention (“Claimant’s Performance

Issues”); (b) there was no causal connection between the alleged termination and Claimant’s alleged

disability; (c) the Debtor did everything it was obligated to do under the color of law in terms of

accommodating Claimant’s disability; (d) Claimant failed to participate in the interactive process; (e)

the Debtor has specific policies and procedures it follows regarding equal employment opportunities,

anti-harassment/discrimination, accommodating disabilities, and the complaint process and Claimant

never complained of any violations; and (f) at all times the Debtor acted in good faith when dealing

with Claimant’s performance issues. (See Barrera Declaration.) The Trustee therefore seeks the

entry of an order disallowing the Claim.

A. The Claim Lacks Sufficient Evidence to Set Forth Any of His Claims

1. Disability Discrimination

To prove a discrimination claim, Claimant must establish (a) a prima facie case of

discrimination; (b) the burden then shifts to the Debtor to offer a legitimate reason for its actions;

(c) the burden then returns to Claimant to show that the Debtor’s reason was a pretext to mask an

illegal motive. Morgan v. Regents of University of California, 88 Cal.App.4th 52, 68 (2000)


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(internal citations omitted). “Circumstantial evidence of “ ‘pretense’ must be ‘specific’ and

‘substantial’ in order to create a triable issue with respect to whether the employer intended to

discriminate’ on an improper basis.” Morgan, 88 Cal. App. 4th at 69 (internal citations omitted).

A prima facie case of discrimination is established when Claimant shows: (a) he was a

member of a protected class; (b) he was performing competently in his position; (c) he suffered an

adverse employment action; and (d) some other circumstance suggests discriminatory motive, such

as being dismissed and then replaced by a person outside his protected class. Guz v. Bechtel, 24 Cal

4th 317, 354 (2000).

While the Claimant’s prima facie burden is not onerous, he must at least show that if the

Debtor’s actions remain unexplained, it is more likely than not that such actions were based on a

prohibited discriminatory criteria. Ibarbia v. Regents of University of California, 191 Cal. App. 3d

1318, 1327-1328 (1987) (abrogated on other grounds). Claimant has failed to sustain such claim.

Claimant cannot establish a prima facie case of discrimination because the undisputed

evidence demonstrates that Claimant was not performing competently at the time of his termination.

(See the Barrera Declaration, 3:10-28, 4, 5:1-15, and Exhibits J-R.) Claimant was placed on a

performance improvement plan on November 29, 2011 after being advised that he was not

appropriately performing his duties even with assistance and accommodations previously provided

by the Debtor. The decision to terminate Claimant’s employment was solely based upon his

continued performance problems after the Debtor attempted to accommodate his unsatisfactory

performance numerous times and even requested further guidance from him and his physician. There

is no evidence to suggest otherwise. Claimant is therefore required to establish pretext, which he

cannot. In fact, Claimant acknowledges the reason for his failure in the position was because he did

not have the required skill-set to perform the essential duties of the job. (See Exhibit Q attached to

Barrera Declaration.)

2. Failure to Accommodate/Failure to Engage in the Interactive Process

The prima facie elements of a failure to accommodate cause of action are: (a) Claimant

suffers from a covered disability; (b) Claimant can perform the essential functions of the position if

the requested accommodation is granted; and (c) Respondent has failed to reasonably accommodate


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the disability. Under the Fair Employment & Housing Act (“FEHA”) it is an unlawful employment

practice for an employer to fail to make reasonable accommodation for the known physical or

mental disability of an applicant or employee. The FEHA requires employers to make reasonable

accommodation for the known disabilities of employees to enable them to perform a position’s

essential functions, unless doing so would produce undue hardship to the employer’s operations.

CAL. GOVT. CODE § 12940(m); Fisher v. Superior Court (Alpha Therapeutic Corp.), 177 Cal. App.

3d 779, 783 (1986). As noted by the Court of Appeal in Soldinger v. Northwest Airlines, Inc., 51

Cal. App. 4th 345, 371 (1996), a requested accommodation causes undue hardship to an employer

when it results in no more than a de minimis cost to the employer. More importantly, the employer

need not choose the “best” accommodation or the accommodation the employee seeks. The

employer shall only provide a “reasonable” accommodation.

A “reasonable accommodation” imposes an affirmative duty on an employer to

accommodate disabled workers. See Sargent v. Litton Systems, Inc., 841 F. Supp. 956, 962 (N.D.

Cal. 1994). An interactive process is contemplated whereby the disabled employee requests an

accommodation and the employer communicates with the employee in selecting an appropriate

accommodation. CAL. GOVT. CODE § 12926.1(e).

The employer must engage in a “timely, good faith interactive process . . . in response to a

request for reasonable accommodation by an employee or applicant with a known physical or mental

disability or known medical condition.” Gov. Code § 12940(n); see Green v. State of California

(2005) 132 Cal.App.4th 97, 118. The employee has the responsibility to understand his or her

own physical or mental condition well enough to present the employer at the earliest

opportunity with a concise list of restrictions that must be met to accommodate the employee.

Jensen v. Wells Fargo Bank, 85 Cal. App. 4th 245, 266 (2000).

It is clear from the attached evidence the Debtor engaged in the interactive process by

meeting with Claimant to discuss his deficiencies and offering him a lighter workload, providing

written instructions, and granting him access to a calendaring system. The Debtor further engaged in

the interactive process by continuing to meet with Claimant and inquire into other ways the company

could help Claimant succeed in the position. (See Exhibit N attached to the Barrera Declaration.)


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The Debtor asked Claimant to review the current list of open positions and to report back to Debtor

each position for which he was capable of performing. Claimant advised his employer that there

were no positions that were suited for him at that time. (See the Barrera Declaration, 3:20-28 and

4:1-7.) Additionally, the Debtor recommended that Claimant go out on a job secured medical leave

in the hopes that a better suited position would become available upon Claimant’s return. Claimant

also ignored this suggestion. (See the Barrera Declaration, 5:12-15.) Unfortunately, there were no

other options for reasonably accommodating Claimant’s disability. He merely could not perform the

essential duties of his job with or without reasonable accommodations.

Furthermore, Claimant himself never engaged in the interactive process. He failed to provide

the Debtor further instruction on how he may possibly succeed in his position after the Debtor

expressly asked him for such guidance. By Claimant’s own admission, he did not have the skill-set

to perform in the Parts Department, which reflects that his sub-standard performance had nothing to

do with his claimed disability. (See Exhibit Q attached to the Barrera Declaration.) Unfortunately,

he could not perform the essential duties of the position in the Parts Department with or without

reasonable accommodations provided by the Debtor. (See the Barrera Declaration, 4:8-28, 5, and

6:1-2; Exhibit R attached to the Barrera Declaration.)

Nevertheless, Claimant tries to obscure the record by making boilerplate assertions that he

requested help and was not provided further training. He claims he just needed more time to learn

the position because of his disability. These assertions are not accurate. It is undisputed that at least

as of April 3, 2012, Claimant was not qualified to perform the essential duties of his job with or

without reasonable accommodations following months of guidance and training from his various

supervisors.

3. Retaliation

To prevail on a statutory retaliation cause of action, Claimant must make a prima facie

showing that: (a) he engaged in a FEHA-based protected activity; (b) the Debtor then subjected him

to an adverse employment action; and (c) a causal link exists between the protected activity and the

adverse employment action. Akers v. County of San Diego, 95 Cal. App. 4th 1441, 1453 (2002);

CAL. GOVT. CODE, § 12940, subd. (h). Specifically, Cal. Gov’t Code section 12940, subdivision (h),


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prohibits any employer from retaliating “against any person because the person has opposed any

practices forbidden under this part or because the person has filed a complaint, testified, or assisted

in any proceeding under this part.” Thus, the requisite protected activity under the FEHA

exclusively consists of: (a) opposing a practice the statutes prohibit (i.e., discrimination or

harassment based on a FEHA protected class); (b) filing a FEHA-based complaint; or (c) testifying

or assisting a FEHA-based proceeding. If Claimant satisfies a prima facie claim, the burden of

producing evidence then shifts to the Debtor to present legitimate, non-retaliatory, reasons for the

adverse employment action. The burden then shifts back to Claimant to establish that said reason

was a pretext for unlawful retaliation. McDonnell Douglas Corp. v. Greene, 411 U.S. 792 (1973).

Claimant argues he was punished or retaliated against after he complained that his

supervisor, Mr. Murakami, was too hard on him or too demanding of the position and that Claimant

was not provided adequate training.

First, the evidence establishes Claimant was provided ample opportunity to succeed in the

position and that the Debtor wanted Claimant to succeed. (See Statement of Facts Relevant to Claim

noted above, and Exhibit J through Exhibit O attached to the Barrera Declaration.) Claimant met

with his supervisors and the Debtor’s Human Resources Director on several occasions to help him

succeed in his position, even after he allegedly voiced complaints. He met with Mr. Murakami each

time a performance issue arose, including, but not limited to the following dates: October 10, 2011,

October 14, 2011, November 29, 2011, December 5, 2011, December 6, 2011, December 15, 2011,

January 16, 2012, February 8, 2012, and March 6, 2012. (See the Barrera Declaration, 3:10-28, 4,

and 5:1-11 and Exhibit N, Exhibit O, and Exhibit P attached to Barrera Declaration.)

Second, the evidence establishes Claimant’s duties were reduced and accommodations were

made to help him perform his various job duties. (See Exhibit L attached to Barrera Declaration.)

Finally, the evidence establishes Claimant was separated from his employment with the Debtor

because he did not have the skill-set to perform the essential functions of his job. (See the Barrera

Declaration, 5:12-28 and 6:1-2 and Exhibit Q and Exhibit R attached to Barrera Declaration.)

Claimant cannot establish the causal connection necessary to proceed on a retaliation claim.

4. Failure to Prevent Discrimination or Harassment


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California Government Code section 12940 (k) provides that it is an unlawful employment

practice for an employer, labor organization, employment agency, apprenticeship training program,

or any training program leading to employment, to fail to take all reasonable steps necessary to

prevent discrimination and harassment from occurring. This section creates a tort action with the

usual tort elements (duty of care to plaintiff, breach of duty, causation and damages). Trujillo v.

North Co. Transit Dist., 63 Cal. App. 4th 280, 286 (1998).

No action lies for failure to take necessary steps to prevent discrimination or harassment if no

such conduct in fact occurs: “There’s no logic that says an employee who has not been discriminated

against can sue an employer for not preventing discrimination that didn’t happen, for not having a

policy to prevent discrimination when no discrimination occurred.” Trujillo, 63 Cal. App. 4th at

289.

Since this claim is necessarily tied to Claimant proving that he was discriminated against and

the Debtor failed to prevent it, this cause of action fails. Claimant will be unable to prove his

discrimination claims because he admitted in his letter to the Debtor that he was just not cut out to

perform the job regardless of his disability. (See Exhibit Q attached to Barrera Declaration.)

Furthermore, the Debtor maintained specific policies against harassment, discrimination and

retaliation that were clearly communicated to Claimant and all of its employees. The Debtor

distributed these policies to Claimant and its other employees upon their hiring and notified them of

modifications thereto and retrained its employees on these policies annually. (See Exhibit D

through Exhibit H attached to Barrera Declaration.) Claimant reviewed these policies during his

orientation and after when they were amended.

The Debtor did everything it was legally obligated to do; i.e., it had express policies

preventing harassment, discrimination and retaliation, had an established complaint and investigation

procedure and required its supervisors to participate in anti-harassment prevention training as

required by law. CAL. GOVT. CODE, § 12940, subd. (j); Silva v. Lucky Stores, 65 Cal. App. 4th 256,

272-73 (1998). Thus Claimant’s proposed claims for failure to prevent discrimination and

harassment and failure to provide adequate training to prevent harassment fail.


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VI.

OBJECTION TO CLAIMED DAMAGES

The Debtor has not engaged in any discriminatory conduct toward Claimant under FEHA.

Thus, Claimant is not entitled to any damages. Assuming arguendo the court determines liability,

Claimant’s damages are too speculative to permit recovery.

Nonetheless, if it is determined that Claimant is so entitled, his damages are nominal at best

because he is currently working and earning wages.

A. Lost Income

Claimant is not entitled to any form of lost income, either in back pay or front pay, because

his failure to continue working for the Debtor or to secure comparable employment was not

occasioned by any act or omission on the part of the Debtor.

Furthermore, there exists a duty to mitigate damages and Claimant is obligated to secure

employment at a comparable pay. This included a sincere effort to obtain comparable work (as

opposed to merely setting up the basis for litigation).

In the event that Claimant’s is awarded damages, his wages from his employment since April

3, 2012, must be used to offset his claim for back pay. It is simply untrue that Claimant has lost the

benefit of all wages since April 3, 2012. He is currently employed and earning wages. Courts

uniformly reduce back pay awards by the amount of any wages, including paid vacations, sick pay,

and other fringe benefits, when claimant obtains on a new job. (Naton v. Bank of Cal. (9th Cir.

1981) 649 F. 2d 691, 700.)

Likewise, courts limit the time period for which back pay may be sought. “Courts will take a

long and careful look at some reasonable time limit on an employer’s exposure to back pay. An

unlimited, open ended liability from discharge to eternity will soon put a speedy end to employer

enthusiasm for providing life insurance to their labor force.” (Sposato v. Elec. Data Systems, Corp.

(9th Cir., April 22, 1997) 1997 U.S. App. LEXIS 8559 at * 8.).

As with his claim for back pay, Claimant’s claim for front pay is grossly overreaching and

speculative. Front pay is intended to be a transitional remedy that is temporary in nature and

measured by the employee’s projected earnings and benefits over the period of time until he or she is


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likely to become re-employed. (Anastasio v. Schering Corp. (3rd Cir. 1988) 838 F.2d 701, 709-710

[holding that purpose is not to guarantee every plaintiff “an annuity to age 70;” Suggs v.

ServiceMaster Ed. Food Mgmt. (6th Cir. 1996) 72 F.3d 1228, 1234 [front pay not meant to be a

“windfall”]) “An award of front pay does not contemplate that a plaintiff will sit idly by and be

compensated for doing nothing, because the duty to mitigate damages by seeking employment

elsewhere significantly limits the amount of front pay available.” (Whittlesey v. Union Carbide

Corp. (2d Cir. 1984) 742 F.2d 724, 728.) The U.S. Supreme Court has cited with approval lower

court cases upholding front pay awards “equal to the estimated present value of lost earnings that are

reasonably likely to occur between the date of the judgment and the time when the employee can

assume his new position. (Pollard V. E.I. Du Pont de Nemours & Co., supra, 532 U.S. at p. 850.) In

addition, expert testimony is usually required to support a front pay award. Claimant’s own

testimony will not suffice unless he has the specialized knowledge or training to perform “forward-

looking speculation” as to annual pay raises or pension benefits, or to calculate “present-value

discounting,” or to interpret “life expectancy charts.” (See Donlin v. Philips Lighting N. Amer.

Corp. (3rd Cir. 2009) 581 F.3d. 73, 83.)

Front pay awards for lengthy time periods may be challenged as being inherently speculative.

“The longer a proposed front pay period the more speculative the damages become.” (Peyton v.

DiMaria (D.C. Cir. 2002) 287 F.3d 1121, 1128.) Front pay is generally limited to the period of time

reasonably necessary for a plaintiff to secure alternative comparable employment. (Goss v. Exxon

Office Sys., Co. (3rd Cir. 1984) 747 F.2d 885, 889-891 [upholding front pay award of four months to

cover expected period of job loss; Berndt v. Kaiser Aluminum & Chem. Sales, Inc. (3rd Cir. 1986)

789 F.2d 253, 255, 261 [ upholding front pay award of 6 months]; Rodgers v. Fisher Body Div.,

General Motors Corp. (6th Cir. 1984) 739 F.2d 1102, 1106-1107 [front pay award that included

projected income for 13 years reversed as “extremely speculative”].)

Similarly, decisions of the California Fair Employment and Housing Commission limit

damages for purported future pay losses. (See Dept. of Fair Employment & Hous.Comm’n v.

Centennial Bancorp (FEHC (1987) Precedent Decision No. 87-03 [rejecting claim for 20 years of

projected compensation losses in favor of 2-year front pay award and stating “at best, a front pay


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award of one to two years could be justified”]; Dept. of Fair Employment & Hous. Comm’n v.

Smitty’s Coffee Shop Precedent Decision No. 84-25 (FEHC 1984) [expressly adopting federal court

view that front pay should be limited and recommending fixed period, such as a year or two].)

Here, Claimant’s attempt to recover damages for such an extensive period of time (10 years)

is especially overreaching and speculative

B. Emotional Distress

Even if Claimant were able to establish his employment discrimination/wrongful termination

claims, the alleged emotional distress must be severe, i.e., substantial or enduring as distinguished

from trivial or transitory. (Commercial Cotton Co. v. United Calif. Bank (1985) 163 Cal.App.3d 511,

517.) Claimant will be unable to establish any emotional distress damages.

In order to recover damages for alleged emotional distress allegedly occasioned by the

Debtor’s alleged acts or omissions to act, the same must be substantial or enduring as distinguished

from trivial or transitory. (Commercial Cotton Co. v. United Calif. Bank (1985) 163 Cal.App.3d 511,

517.) The Debtor presumes Claimant will attempt to put forth evidence establishing he is treating

with a psychiatrist for his alleged distress or depression and taking medication related thereto.

However, Claimant will be unable to establish that his ongoing treatment is due to the alleged

conduct of the Debtor as opposed to his preexisting condition. To the extent that Claimant is

believed to be actually suffering from any actual emotional upset, the same is not due to any alleged

discrimination or failure to accommodate or failure to engage in the interactive process as

complained of in this action. Claimant was treating with a psychologist, Dr. Jeffrey Katz, prior to his

separation from employment with the Debtor. (See Exhibit M, attached to the Barrera Declaration.)

Claimant has adduced no evidence to support such a speculative emotional distress damages award.

C. Attorneys Fees

Reasonable attorney’s fees, if applicable, shall be awarded to the prevailing party. (Cal. Gov.

Code, § 12965, subd. (b).) Assuming arguendo Claimant was the prevailing party in this matter, his

attorney has not spent anywhere near $500,000 on this Claim. In fact, from the Debtor’s

perspective, Claimant’s counsel has only performed the following tasks related to this matter: 1)

prepared a letter to the Debtor requesting Claimant’s personnel file; 2) filed the pending Claim; 3)


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engaged in brief telephone conferences with the Debtor’s counsel; and 4) prepared his client in

presenting the present Claim. In order to be awarded “reasonable” attorney’s fees, counsel must

present actual evidence supporting the same.

///

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VII.

RESERVATION OF RIGHTS

The Trustee has not attempted to raise in this Objection each defense, counterclaim, or setoff

that may apply to the Claim. The Trustee reserves the right to amend and supplement this Objection

or file additional objections to assert any defenses, counterclaims, and/or setoffs against the Claim.

In all instances, the Trustee reserves the right to file future objections or to supplement this

Objection as to the validity, amount, or status of the Claim upon different grounds than set forth

herein or otherwise.

VIII.

CONCLUSION

For the reasons set forth herein, the Trustee respectfully requests that the Court enter an

order: (a) granting the Motion; (b) disallowing the Claim; and (c) granting the Trustee such other and

further relief as may be appropriate under the circumstances. Dated: October 15, 2013 PACHULSKI STANG ZIEHL & JONES LLP

By: /s/ John W. Lucas Richard M. Pachulski James I. Stang Dean A. Ziehl John W. Lucas -and-

LEWIS BRISBOIS BISGAARD & SMITH LLP Jeffrey Ranen Rita R. Kanno


DOCS_SF:84057.7 12832/003

EXHIBIT 1

(Barrera Declaration)


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4829-5860-1494.1 1DECLARATION OF MARTHA BARRERA

DOCS_SF:84079.3 12832/003

Richard M. Pachulski (CA Bar No. 90073) James I. Stang (CA Bar No. 94435) Dean A. Ziehl (CA Bar No. 84529) John W. Lucas (CA Bar No. 271038) PACHULSKI STANG ZIEHL & JONES LLP 10100 Santa Monica Blvd., 13th Floor Los Angeles, California 90067 Telephone: 310/277-6910 Facsimile: 310/201-0760 Email: [email protected]



Jeffrey Ranen (CA Bar No. 224285) Rita R. Kanno (CA Bar No. 230679) LEWIS BRISBOIS BISGAARD & SMITH LLP 701 “B” Street, Suite 1900 San Diego, CA 92101 Email: [email protected] Telephone: 619/233.1006 Facsimile: 619/233.8627 Email: [email protected] [email protected]



SANTA ANA DIVISION

In re: American Suzuki Motor Corporation,1 Debtor.

Case No.: 8:12-bk-22808-SC Chapter 11 DECLARATION OF MARTHA BARRERA IN SUPPORT OF DEBTOR’S OBJECTION TO THE GENERAL UNSECURED CLAIM OF MORGAN BROADHEAD (CLAIM NO. 401) IMAGED FILE

Date: November 14, 2013 Time: 1:30 p.m. Place: Courtroom 5C 411 West Fourth Street Santa Ana, CA

Judge: Honorable Scott C. Clarkson

I, Martha Barrera, declare as follows:

I am over 18 years of age, I am a resident of the State of California, and I am currently the

Human Resources Department Manager at Suzuki Motor of America, Inc. (“SMAI.”) and I am



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providing this declaration (the “Declaration”) pursuant to the terms of that Transition Service

Agreement [Docket No. 1079] (the “TSA”) between the PE Creditor Trust (the “Trust”) and

SMAI. For all times relevant to the prior action, I was employed as the Human Resources

Director of American Suzuki Motor Corporation (the “Debtor”).

I have personal knowledge of the facts contained in this Declaration, and if called upon as

a witness to testify to them, I could and would competently do so under oath.

As the former Human Resources Director for the Debtor and per the terms of the TSA, I

have access to Morgan Broadhead’s personnel file. I have authority, pursuant to California

Evidence Code section 1561, to certify the personnel records of Morgan Broadhead and

employment related documents from Debtor.

Exhibit B through Exhibit I, Exhibit L through Exhibit P, and Exhibit R, each annexed

hereto, are true and correct copies of records contained within Morgan Broadhead’s personnel file.

These records were prepared and maintained in the ordinary course of business of the Debtor.

These records are business records prepared by authorized personnel of Debtor in connection with

employment related matters regarding Mr. Broadhead and were prepared at or near the time of the

recorded acts, conditions, or events reflected in the records.

As the Human Resources Director of the Debtor, my essential duties and responsibilities

involved the asserted claims of Mr. Broadhead and Debtor’s objections thereto.

I was involved in the decision to hire Mr. Broadhead in March 2011. Mr. Broadhead

rehired by the Debtor on March 28, 2011, as an Accessory Development Specialist in the

Accessory Development Department of the Debtor. Previously, he was employed by the Debtor

as an On Road Specialist on February 4, 2002. He was promoted to Sr. On Road Specialist on

April 1, 2004, and resigned from the Debtor on December 1, 2006. Mr. Broadhead was treated like

all new hires and went through the new employee orientation process. He was also provided with

the Debtor’s Guidebook and policies and procedures manual (collectively, the “Employment

Policies and Procedures”). During the orientation process Mr. Broadhead was provided

information regarding the Debtor’s Employment Policies and Procedures, which described the

Debtor’s anti-harassment/discrimination policies and the complaint process. If an employee


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believes he is being treated unfairly or has any complaint, the employee contacts his or her

supervisor or the Human Resources Department.

In September, 2011, the Debtor went through an internal reorganization process and

eliminated the Accessory Development Department. As a result, four employees were laid-off in

that department, but Mr. Broadhead was offered the opportunity to transfer to Senior Accessory

Administrator position in the Parts Department. This position entailed administering and

analyzing accessory orders, issuing purchase orders to suppliers, coordinating with the sales staff

on the implementation of new accessory items and on accessory promotions, processing export

accessory sales orders, maintaining all part master accessory part numbers, and assisting with

investigation of dealer inquiries regarding accessory issues.

After Mr. Broadhead’s transition to a Senior Accessory Administrator in the Parts

Department, Mr. Broadhead’s performance issues were brought to my attention by Tom Hosner

and Hitoshi Murakami approximately one month after Mr. Broadhead’s transfer to the Parts

Department. Mr. Broadhead was failing to perform the basic duties and tasks of his job as a

Senior Accessory Administrator position, which included data entry and submitting accurate

orders to vendors. Mr. Hosner and Mr. Murakami met with Mr. Broadhead on October 14, 2011,

to discuss these performance issues. At that time, it was decided (with input from Mr. Broadhead)

that purchase orders for certain vendors would be transferred to other employees to reduce Mr.

Broadhead’s workload with the understanding that a reduced workload would provide him the

opportunity to improve as a Senior Accessory Administrator and ultimately succeed in that role.

Mr. Broadhead continued to have performance issues and on November 29, 2011, he was

presented with a formal written warning (the “Nov. 29 Memo”). As the Human Resources

Director of the Debtor, I met with Mr. Broadhead to discuss the issues raised in the Nov. 29 Memo

and to discuss ways to help Mr. Broadhead improve and succeed in the position as a Senior

Accessory Administrator. At that meeting, we discussed whether Mr. Broadhead believed he had

received adequate training for his position and that he also had several other employees, in

addition to his supervisor, who could assist him if he had questions about carrying out the duties

and task of his job. In addition, we determined that Mr. Broadhead would also continue to receive


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instructions in writing regarding his various responsibilities. Plus, he would have access to

additional training on desktop applications that he could use as much as necessary. I instructed

Mr. Broadhead to contact his supervisors with any questions or concerns regarding his job duties

and tasks. Mr. Broadhead never complained about his job duties or the inability to perform until

he was presented with the Nov. 29 Memo.

As aforementioned, the first time Mr. Broadhead mentioned having a disability that

affected his performance was when I met with him regarding the Nov. 29 Memo. At that meeting,

Mr. Broadhead told me that he was involved in a motorcycle injury years ago, which impacted his

memory and his ability to perform the essential duties of his job as a Senior Accessory

Administrator. In response to this, I worked with Mr. Broadhead and his supervisors to provide

Mr. Broadhead with additional assistance in performing his job. In part, it was decided that

certain of Mr. Broadhead’s duties were to be assigned to other employees. I, along with Mr.

Broadhead’s supervisor, Mr. Hosner, and Mr. Broadhead also determined that keeping a work

book and using Outlook to set reminders for tasks would help accommodate Mr. Broadhead’s

memory issues. A few days later, Mr. Broadhead was also given some visual training aids that he

could refer to that outlined the order scheduled and tasks he needed to perform as an

accommodation to his memory issue as well.

Following this meeting, on or about December 6, 2011, Mr. Broadhead provided me with a

note from his doctor, Jeffrey Katz, MD. The note stated that Mr. Broadhead had a disability that

prevented him from performing the essential duties of his position. The note also discussed

providing Mr. Broadhead with accommodations; however, Dr. Katz did not provide any specific

information regarding restrictions or what further could be done to accommodate Mr. Broadhead.

In response, I specifically asked Mr. Broadhead to provide Dr. Katz a copy of his job description

to determine whether his memory limitations would prevent him from performing the basic duties

of his job. I am unaware of whether Mr. Broadhead complied with this request and I never

received a response from Mr. Broadhead or Dr. Katz regarding my questions.

On December 6, 2011, I sent Mr. Broadhead an e-mail specifically asking him to provide

me further information on how we could further accommodate his condition. Mr. Broadhead


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indicated that he was working with his doctor and was receiving occupational therapy to assist in

his rehabilitation following his accident. I asked him to share his performance issues with the

doctor to see if there were any additional therapies or accommodations his doctor might suggest

helping him. Mr. Broadhead did not ask for further assistance from me or the Debtor regarding

his job in response to this email or conversation. Nevertheless, I continued to follow-up with Mr.

Broadhead to determine whether there was any improvement with his job performance. We also

discussed in one of those later conversations that Mr. Broadhead could review the Debtor’s listing

of open positions to determine if there was a different position available that was better suited to

his abilities. Mr. Broadhead later informed me that he was not interested in any of the other

positions.

Since Mr. Broadhead continued to make errors when carrying out simple tasks of his job,

even with the accommodations the Debtor provided to him, it was determined that there was

nothing further the Debtor could do to reasonably accommodate Mr. Broadhead. Plus, we never

heard back from Mr. Broadhead or his doctor regarding any further accommodations after making

my request.

As a result of Mr. Broadhead’s ongoing performance issues, I provided him the following

options: (a) termination due to performance issues; (b) taking a discretionary personal leave to see

if he would improve with therapy; or (c) being laid off and accepting severance.

Initially Mr. Broadhead agreed to the severance. However, he failed to return a signed

severance agreement to the Debtor. Ultimately, Mr. Broadhead’s employment with the Debtor

was severed on April 3, 2012.

The Debtor never had any discriminatory animus towards Mr. Broadhead. In fact, the

Debtor made every attempt to ensure Mr. Broadhead’s success in his job as a Senior Accessory

Administrator. Unfortunately, based on the extent of Mr. Broadhead’s inability to perform the

basic tasks of his job, there was nothing further the Debtor could do to reasonably accommodate

him. In the end, I believe that Mr. Broadhead could not perform the essential duties of the

position with or without reasonable accommodations.

Additionally, at the time of his termination, there were no other positions available that Mr.


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Broadhead could have performed based on his skills, abilities, and limitations, and Mr. Broadhead

did not want to transfer to another position. As a result, Mr. Broadhead was ultimately terminated

for his ongoing performance issues. I believe there was nothing more the Debtor could have done

to reasonably accommodate Mr. Broadhead. Mr. Broadhead acknowledged he could not perform

his job with or without reasonable accommodations.

Attached hereto as Exhibit A is a true and correct copy of the Bankruptcy Claim.

Attached hereto as Exhibit B is a true and correct copy of the Employment Application

signed on March 18, 2011.

Attached hereto as Exhibit C is a true and correct copy of the Offer of Employment Letter

dated March 18, 2011.

Attached hereto as Exhibit D is a true and correct copy of the Anti-Harassment and

Complaint Procedure Policy and Training Session signed on March 29, 2011.

Attached hereto as Exhibit E is a true and correct copy of the Employee Guidebook

Acknowledgement signed on March 29, 2011.

Attached hereto as Exhibit F is a true and correct copy of the Acknowledgement of

Receipt of Company Booklets & Policies signed on March 29, 2011.

Attached hereto as Exhibit G is a true and correct copy of the Employee Guidebook

Acknowledgement signed on May 13, 2011.

Attached hereto as Exhibit H is a true and correct copy of the Employee Guidebook

Acknowledgement signed on January 25, 2012.

Attached hereto as Exhibit I is a true and correct copy of the Employee Change of Status

Form dated September 15, 2011.

Attached hereto as Exhibit J is a true and correct copy of relevant email printouts

evidencing the fact Claimant was provided written instructions to accommodate his disability.

Attached hereto as Exhibit K is a true and correct copy of relevant email printouts

evidencing the fact Claimant acknowledged he made numerous mistakes in his position without

reference to his disability.

Attached hereto as Exhibit L is a true and correct copy of the Nov. 29 Memo, regarding


This form is mandatory. It has been approved for use by the United States Bankruptcy Court for the Central District of California. June 2012 F 9013-3.1.PROOF.SERVICE DOCS_LA:272282.1 12832/003

PROOF OF SERVICE OF DOCUMENT I am over the age of 18 and not a party to this bankruptcy case or adversary proceeding. My business address is: 10100 Santa Monica Blvd., 13th Floor, Los Angeles, CA 90067 A true and correct copy of the foregoing documents entitled (specify): NOTICE OF AND OBJECTION TO THE GENERAL UNSECURED CLAIM OF MORGAN BROADHEAD (CLAIM NO. 401); MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF MARTHA BARRERA IN SUPPORT THEREOF will be served or was served (a) on the judge in chambers in the form and manner required by LBR 5005-2(d); and (b) in the manner stated below: 1. TO BE SERVED BY THE COURT VIA NOTICE OF ELECTRONIC FILING (NEF):

Pursuant to controlling General Orders and LBR, the foregoing document was served by the court via NEF and hyperlink to the document. On (date) October 15, 2013, I checked the CM/ECF docket for this bankruptcy case or adversary proceeding and determined that the following persons are on the Electronic Mail Notice List to receive NEF transmission at the email addresses stated below:

Service information continued on attached page 2. SERVED BY UNITED STATES MAIL:

On (date) _______, I served the following persons and/or entities at the last known addresses in this bankruptcy case or adversary proceeding by placing a true and correct copy thereof in a sealed envelope in the United States mail, first class, postage prepaid, and addressed as follows. Listing the judge here constitutes a declaration that mailing to the judge will be completed no later than 24 hours after the document is filed.

Service information continued on attached page 3. SERVED BY PERSONAL DELIVERY, OVERNIGHT MAIL, FACSIMILE TRANSMISSION OR

EMAIL (state method for each person or entity served): Pursuant to F.R.Civ.P. 5 and/or controlling LBR, on (date) October 15, 2013, I served the following persons and/or entities by personal delivery, overnight mail service, or (for those who consented in writing to such service method), by facsimile transmission and/or email as follows. Listing the judge here constitutes a declaration that personal delivery on, or overnight mail to, the judge will be completed no later than 24 hours after the document is filed.

Via Overnight Mail The Honorable Scott C. Clarkson U.S. Bankruptcy Court 411 West Fourth Street, Courtroom 5C Santa Ana, CA 92701-4593 Service information continued on attached page I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct. October 15, 2013 Patricia Jeffries /s/ Patricia Jeffries Date Printed Name Signature



1. SERVED BY THE COURT VIA NOTICE OF ELECTRONIC FILING (NEF) Allison R Axenrod [email protected] Jason W Bank [email protected] Martin R Barash [email protected], [email protected] Yelena Bederman [email protected] Andrew S Bisom [email protected] Michael J Bujold [email protected] Frank Cadigan [email protected] Charles Canter [email protected] Linda F Cantor [email protected], [email protected] Linda F Cantor [email protected], [email protected] George B Cauthen [email protected], [email protected];[email protected];[email protected];[email protected] Wendy Chang [email protected] Shirley Cho [email protected] Shawn M Christianson [email protected] Adam C Clanton [email protected] Kristen Corbett [email protected] Donald H Cram [email protected], [email protected] Joseph A Eisenberg [email protected], [email protected];[email protected];[email protected];[email protected] Andrew S Elliott [email protected] Scott Ewing [email protected], [email protected];[email protected] Scott Ewing [email protected], [email protected];[email protected] William A Frazell [email protected] Donald L Gaffney [email protected] Amir Gamliel [email protected], [email protected] Duane M Geck [email protected] Michael I Goldberg [email protected] Richard H Golubow [email protected], [email protected];[email protected] Leon B Gordon [email protected] Debra I Grassgreen [email protected] Michael J Hauser [email protected] Eric M Heller [email protected] Matthew Heyn [email protected] Desmond J Hinds [email protected], [email protected] Harry D. Hochman [email protected], [email protected] John J Immordino [email protected], [email protected] Steven J Kahn [email protected] Teddy M Kapur [email protected] Samuel M Kidder [email protected] Jonathan J Kim [email protected], [email protected]

Andy Kong [email protected] David S Kupetz [email protected], [email protected] Kristin R Lamar [email protected], [email protected] Kenneth T Law [email protected] Kenneth T Law [email protected] Elizabeth A Lossing [email protected] John W Lucas [email protected], [email protected] John W Lucas [email protected], [email protected] Kerri A Lyman [email protected] Kerri A Lyman [email protected] Gabriel R Macconaill [email protected] Kathleen P March [email protected], [email protected] Michael P McMahon [email protected], [email protected] Laura A Meyerson [email protected] Christopher Minier [email protected] Mike D Neue [email protected], [email protected];[email protected] Valerie B Peo [email protected], [email protected] David M Poitras [email protected], [email protected] Robert S Prince [email protected], [email protected] Jeffrey M. Reisner [email protected] Jeffrey M. Reisner [email protected] James S Riley [email protected] Jason H Rosell [email protected], [email protected] Susan K Seflin [email protected], [email protected] Esperanza Segarra [email protected], [email protected] Alan D Smith [email protected] James Stang [email protected] Howard Steinberg [email protected], [email protected];[email protected] Barry Sullivan [email protected] Jessica Taran [email protected] Charles M Tatelbaum [email protected], [email protected] United States Trustee (SA) [email protected] William J Wall [email protected], [email protected] Andy C Warshaw [email protected], [email protected] William J Wall [email protected], [email protected] Jonathan M Weiss [email protected] Elizabeth Weller [email protected] Judith A Whitehouse [email protected], [email protected];[email protected] Dean A Ziehl [email protected],



2. SERVED BY OVERNIGHT MAIL

Employment Development Dept. Bankruptcy Group MIC 92E PO Box 826880 Sacramento, CA 94280-0001

Internal Revenue Service PO Box 7346 Philadelphia, PA 19101

Securities & Exchange Commission 5670 Wilshire Blvd., 11th Floor Los Angeles, CA 90036

State Board of Equalization Attn: Special Procedures Section PO Box 942879, 450 N. St. Sacramento, CA 95814

US Attorney General US Dept. of Justice Ben Franklin Station PO Box 683 Washington, DC 20044

Franchise Tax Board CA Bankruptcy Section, MS: A-340 PO Box 2952 Sacramento, CA 95812-2952

Michael G. Wilson One Energy Plaza Jackson, MI 49201

Missouri Dept. of Revenue Bankruptcy Unit Attn: Steven A. Ginther P.O. Box 475 Jefferson City, MO 65105-0475

Tennessee Department of Revenue c/o Tennessee Attorney General’s Office, Bankruptcy Division PO Box 20207 Nashville, TN 37202-0207

RICOH Americas Corporation Recovery & Bankruptcy Group 3920 Arkwright Road, Suite 400 Macon, GA 31210

Morgan Broadhead 2670 Andover Ave., #B Fullerton, CA 92831

Frank Pray 5160 Campus Dr. Newport Beach, CA 92660

William J. Wall The Wall Law Office 9900 Research Drive Irvine, CA 92618

3. SERVED BY EMAIL

[email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected]

[email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected]


richard m. pachulski (ca bar no. 90073) jeffrey …the objection is based upon this notice, the...

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