Shahram Keshe v. Cvs Pharmacy
711 F. App'x 396
| 9th Cir. | 2017Background
- Keshe, a CVS employee, was terminated after a physical altercation in which he grabbed a suspected shoplifter; CVS relied on surveillance video and an internal investigation concluding he was not acting in self-defense.
- Keshe sued CVS asserting multiple claims under California law: FEHA discrimination and retaliation, failure to accommodate and failure to engage in the interactive process (CFRA/ADA-related), wrongful termination in violation of public policy (Cal. Lab. Code § 132a), self-defense, and related CFRA claims.
- The district court granted summary judgment for CVS on all claims; Keshe appealed.
- The Ninth Circuit reviewed the summary judgment de novo and applied McDonnell Douglas burden-shifting for the discrimination/retaliation/public-policy claims.
- The court found CVS offered a legitimate, non-discriminatory reason for termination (the altercation) and Keshe failed to show pretext; Keshe’s emotional distress was attributable to the firing, not an accommodation failure.
- The court also held CFRA did not apply because Keshe could perform his job after returning from paid sick leave, and there was no actionable failure-to-prevent-discrimination absent actual discrimination.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether CVS unlawfully discriminated/retaliated under FEHA/CFRA/§132a | Keshe argued termination was discriminatory/retaliatory and pretextual | CVS argued termination was for legitimate reason: physical altercation shown on video | Court: Affirmed for CVS; no evidence of pretext |
| Whether CVS failed to accommodate or engage in interactive process | Keshe said CVS refused accommodation/interactive process after his injury | CVS said any failure did not cause compensable injury; Keshe returned and worked until firing | Court: Affirmed for CVS; no compensable injury attributable to accommodation failure |
| Whether termination violated public policy or right to self-defense | Keshe claimed he acted in self-defense and was wrongfully terminated for it | CVS relied on investigation concluding he was not acting in self-defense | Court: Affirmed for CVS; evidence at best shows wrong conclusion, not that CVS punished lawful self-defense |
| Whether CFRA leave applied after return from sick leave | Keshe contended his back injury warranted CFRA leave | CVS maintained Keshe could perform essential functions upon return and was not eligible | Court: Affirmed for CVS; Keshe able to perform job so CFRA not applicable |
Key Cases Cited
- McDonnell Douglas Corp. v. Green, 411 U.S. 792 (established burden-shifting framework for discrimination claims)
- Berezovsky v. Moniz, 869 F.3d 923 (review standard for summary judgment in Ninth Circuit)
- Travelers Prop. Cas. Co. of Am. v. ConocoPhillips Co., 546 F.3d 1142 (may affirm summary judgment for any record-supported reason)
- Yanowitz v. L'Oreal USA, Inc., 116 P.3d 1123 (retaliation standard under California law)
- Guz v. Bechtel Nat'l, Inc., 8 P.3d 1089 (discrimination burden and analysis under California law)
- Turner v. Anheuser-Busch, Inc., 876 P.2d 1022 (self-defense/employee conduct and employer discipline analysis under California law)