Case Number: 21STCV14726    Hearing Date: February 17, 2023    Dept: 40

On April 19, 2021, plaintiff Scot Hickey (“Plaintiff”) filed this employment law action against defendant The RAND Corporation (“RAND”), asserting causes of action for (1) disability discrimination under the Fair Employment and Housing Act (“FEHA”), (2) failure to provide reasonable accommodation – Gov. Code § 12940(m), (3) failure to engage in interactive process – Gov. Code § 12940(n), (4) retaliation under the California Family Rights Act (“CFRA”), (5) retaliation under FEHA, (6) age discrimination under FEHA, (7) failure to prevent discrimination or retaliation – Gov. Code § 12940(k), and (8) retaliation under Labor Code section 1102.5.

On December 1, 2022, RAND filed the instant motion for summary judgment or, in the alternative, summary adjudication of Plaintiff’s Complaint, which Plaintiff opposed on January 31, 2023, and RAND filed a reply on February 9, 2023.

After review, the Court DENIES the Motion because Plaintiff has shown triable issues of one or more material facts exist as to all causes of action and claim of damages challenged in the Motion.

Background Allegations

The Complaint alleges the following.  In or about 1999, RAND hired Plaintiff as a Senior Programmer Analyst.  (Compl., ¶ 8.)  Plaintiff continued to work for the defendant, being promoted several times until he became a Research Programmer, IV.  (Compl., ¶¶ 9-10.)  For the first 18 years of his employment, Plaintiff was not disciplined or placed on a performance improvement plan.  (Compl., ¶ 11.) 

In early 2017, Plaintiff’s mental health took a severe downturn, and he was diagnosed with “DSM 296.53.”  (Compl., ¶ 14.)  According to Plaintiff’s doctor, the estimated date of onset of Plaintiff’s significant symptoms was on or about January 1, 2017, and the estimated date of disability was on or about February 28, 2017.  (Compl., ¶ 14.)  “Psychiatric impairment notes from Plaintiff’s doctor indicate (among other things) that Plaintiff was under ‘crushing despair,’ ‘severely depressed,’ ‘detached,’ experiencing ‘decreased thought flow,’ speaking in ‘monosyllabic replies,’ experiencing ‘suicidal ideation,’ ‘seriously slowed down,’ ‘withdrawn,’ suffering from a ‘poor self-image’ and ‘seriously depressed.’”  (Compl., ¶ 15.)  Plaintiff’s doctor further noted that, as of May 2017, Plaintiff’s ability to remember, comprehend, and carry out instructions on an independent basis was “limited.”  (Compl., ¶ 15.)  “Plaintiff returned to work after an approximate three month leave of absence on or about May 22, 2017.  Following his return to work, Plaintiff continued to regularly treat with medical providers for his ongoing mental health issues, including anxiety and depression.”  (Compl., ¶ 16.)

However, “Defendant did nothing further to accommodate Plaintiff’s disability beyond permitting this leave of absence.”  (Compl., ¶ 17.) 

Instead, “in November 2017, Defendant presented Plaintiff with his first ever performance improvement plan.  The performance improvement plan addressed ‘concerns’ with Plaintiff’s work performance as a Research Programmer, IV, and specifically, Plaintiff’s ‘lack of communication and responsiveness’ with ‘project leaders and RPG management.’”  (Compl., ¶ 18.)  “Plaintiff’s performance appraisal for the period of January 2016 through December 2017 also evidences adverse employment action against Plaintiff because of his disability.  [For example] [a]lthough Plaintiff received positive feedback from reviewer Bart Bennett, the summary score from Barry Wilson was a ‘2’ or ‘meets some expectations’ due to the perception of Plaintiff’s ‘lack of communication with some researchers.’”  (Compl., ¶ 20.)  Thereafter, RAND engaged in various acts, designed to set Plaintiff up to fail and drive him out of the organization, including failing to provide Plaintiff with billable work and then reducing his compensation for lack of work, even though Plaintiff was a salaried employee.  (Compl., ¶¶ 23, 24.)  Defendant also issued Plaintiff two additional performance improvement plans in May 2018 and July 2019 for communication issues due to his disability.  (Compl., ¶ 26.) 

Non-disabled employees were treated more favorably than Plaintiff.  (Compl., ¶ 23.)  Plaintiff witnessed a pattern at RAND where older, more experienced workers were pushed out of the organization in favor of younger workers.  (Compl., ¶ 29.)

“In or about October 2019, Defendant took the position that Plaintiff had voluntarily resigned from his employment, which Plaintiff disputed.”  (Compl., ¶ 27.)  “Ultimately, Defendant provided a revised change of relationship form to Plaintiff indicating that Plaintiff’s termination effective November 8, 2019 was a ‘job elimination/layoff.’”  (Compl., ¶ 28.) 

Plaintiff was approximately 52 years old at the time of his termination.  (Compl., ¶ 31.)

Evidentiary Objections

The Court rules on RAND’s objections to Plaintiff’s evidence as follows:

Objection Nos. 2, 4, 5, 6, 15, 25, 29, and 33: SUSTAINED.

Objection Nos. 1, 3, 7, 9, 10, 11, 12, 13, 14, 17, 18, 19, 20, 21, 22, 23, 26, 27, 28, 31, 32, 34, 35, and 36: OVERRULED. (See Frederick v. Federal Life Ins. Co. (1936) 13 Cal.App.2d 585, 590, 57 P.2d 235 [“‘a witness may testify whether he has had a particular disease as a matter of fact known to himself, and not as a matter of opinion’”]; Behr v. Redmond (2011) 193 Cal.App.4th 517, 528 [“lay witnesses are generally competent to testify as to their own knowledge of their diseases, injuries, or physical condition”].)

Objection Nos. 8, 24, and 30:

·         The secondary evidence rule objections are SUSTAINED to the extent Plaintiff is testifying about the contents of the emails.

·         The other objections are OVERRULED to the extent Plaintiff is only testifying about the effect of the short-term projects on his mental health.

Objection No. 16:

·         The objections are SUSTAINED as to Paragraph 7, p. 2:11-12.

·         The objections are OVERRULED as to Paragraph 7, p. 2:12-14.

A party may move for summary adjudication as to one or more causes of action, affirmative defenses, claims for damages, or issues of duty if that party contends that there is no merit to the cause of action, defense, or claim for damages, or if the party contends that there is no duty owed.  (See Code Civ. Proc., §437c, subd. (f)(1).)  Once the defendant has shown that a cause of action has no merit, the burden shifts to the plaintiff to show that a triable issue of material fact exists as to that cause of action.  (See Code Civ. Proc., § 437c(o)(2); Union Bank, supra, 31 Cal.App.4th at 583.)

A.    First Cause of Action for Disability Discrimination

Defendant argues that Plaintiff cannot state a prima facie case of disability discrimination under the FEHA.

The FEHA makes it unlawful for an employer to discriminate against employees in the “terms, conditions, or privileges of employment” because of their mental disability and medical condition.  (Gov. Code § 12940, subd. (a).)

“If the employer presents admissible evidence either that [1] one or more of plaintiff’s prima facie elements is lacking, or [2] … the adverse employment action was based on legitimate, nondiscriminatory factors, the employer will be entitled to summary judgment unless the plaintiff produces admissible evidence which raises a triable issue of fact material to the defendant’s showing.”  (Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 203 [emphasis added].)

Here, RAND argues that (1) Plaintiff’s prima facie case is lacking and (2) any alleged adverse employment action was based on legitimate, nondiscriminatory factors.

1.      Plaintiff’s Prima Facie Case for Disability Discrimination

To establish a prima facie case for discrimination under the FEHA, a plaintiff must generally prove that “(1) he was a member of a protected class; (2) that he was qualified for the position he sought or was performing competently in the position he or she held; (3) that he suffered an adverse employment action, such as termination, demotion, or denial of an available job; and (4) some other circumstance suggesting discriminatory motive.”  (Guz, supra, 24 Cal.4th at p. 355; see also Zamora, supra, 71 Cal.App.5th at pp. 37-38.)

Here, Plaintiff (as RAND concedes) is a member of a protected class.  (See Motion, p. 1:23-24 [“RAND does not dispute Plaintiff’s claim that he suffered from mental health issues (anxiety and depression) during his employment …”]; RAND’s Exhibit List, filed on December 1, 2022 (“RAND’s Exhibits”), Item A – the declaration of Caitlin Sanders (“Sanders Decl.”), Exhibit 1 – transcript from the first volume of Plaintiff’s deposition conducted on June 3, 2022 (“Pl.’s Dep., Vol. I”), p. 67:9-14 [testifying in his deposition that he is claiming a mental disability (i.e., anxiety and depression)].)

However, RAND argues that Plaintiff’s prima face case for disability discrimination is lacking because Plaintiff did not and cannot prove that he suffered any adverse employment action, specifically, termination.  (Motion, p. 9:1-4 [arguing that although the Complaint alleges Plaintiff suffered other adverse employment actions, those actions are not actionable because they are either barred by the FEHA statute of limitations or are too remote in time from Plaintiff’s leave of absence to support a discrimination or retaliation claim].)

To prove that Plaintiff was not terminated but instead resigned from his position, RAND provides the following evidence. 

It is undisputed that Plaintiff worked as a Research Programmer at RAND. (Plaintiff’s Separate Statement of undisputed material facts in response to RAND’s Separate Statement, filed on January 31, 2023 (“Parties’ UMF”), ¶ 1.)  Plaintiff reported directly to Barry Wilson (“Wilson”), Associate Director of Research Programming, and indirectly to his second-level supervisor Jan Hanley (“Hanley”), Director of Research Programming.  (Parties’ UMF, ¶ 3.)

On February 27, 2017, Plaintiff e-mailed Wilson, Hanley, Human Resources (“HR”) Service Manager Sarah Goodin (“Goodin”), and Associate Director Elizabeth (“Roth”), saying that his mental health was suffering.  (Parties’ UMF, ¶ 16.)  This was the first time that Plaintiff shared information about his anxiety and depression with Hanley, Wilson, and HR.  (Parties’ UMF, ¶ 17.)  In the email on February 27, 2017, Plaintiff said that he “wanted to see what options [he had] before [he] look[ed] for another job.”  (Parties’ UMF, ¶ 18.) 

That same day, Goodin responded to Plaintiff’s e-mail, set up a phone call with him, and during the call, offered Plaintiff medical leave, which Plaintiff accepted.  (Parties’ UMF, ¶ 19.)  Plaintiff was granted and took medical leave starting on February 28, 2017.  (Parties’ UMF, ¶ 20.) 

Plaintiff was scheduled to return to work on May 1, 2017, but later requested extension to May 22, 2017, which RAND granted.  (Parties’ UMF, ¶ 21.)  Plaintiff returned to work on May 22, 2017.  (Parties’ UMF, ¶ 22.)

During his medical leave, Plaintiff had sent Wilson an email explaining that he realized he felt disconnected and frustrated with his short-term work and he was working to adjust his expectations with his counselor.  (Parties’ UMF, ¶ 26.)  Plaintiff also said words to the effect of the was not sure whether he would still work at RAND in the coming years.  (Parties’ UMF, ¶ 26.) 

Subsequently, as Plaintiff testified during his deposition, he sent an email on September 18, 2019 (“September 18 Email”), to RAND’s president Michael Rich, head of HR Allison Elder, and head of operation Eric Peltz, in which he described himself “[a]s a former employee within the research programming group ….”  (RAND’s Exhibits, Sanders Decl., Exhibit 2 – transcript from the second volume of Plaintiff’s deposition conducted on June 6, 2022 (“Pl.’s Dep., Vol. II”), pp. 67:9-14, 12:20-24, 14:4-12 [objection overruled].)

The September 18 email complains about various employment issues, including not treating employees equally and possible retaliation, although it does not reference specifically discrimination based on disability, age, or other factors, or argue that he was personally being retaliated against.  (See RAND’s Exhibits, pages 146-148 – a copy the email.)

On September 25, 2019, Allison wrote to Plaintiff and told him she would like Plaintiff to speak with Nick Bacon (“Bacon”), the Director of HR Services, concerning the September 18 Email.  (RAND’s Exhibits, p. 145.)  Thereafter, Plaintiff and Bacon exchanged emails.  (RAND’s Exhibits, pp. 143-145.)

After a series of emails between Plaintiff and Bacon, on September 28, 2019, Plaintiff responded to Bacon’s email saying, among other things: “It was easier for me to come forward because I’m leaving and don’t have to fear retribution,” and that “[t]he two active RAND employees have a much harder decision to make with regards to coming forward,” because “[t]hey definitely fear retribution.”  (RAND’s Exhibits, p. 143 (or Exhibit 13 of Sanders Decl.), the fourth paragraph [emphasis added].)  He further stated: “Most of us who leave RAND find it very difficult because we believe so strongly in RAND and work done there.” (RAND’s Exhibits, p. 143, the first sentence of the fifth paragraph [emphasis added].)  He concluded his email saying in part: “My contact at RAND will be limited, so I’ll just wait to hear if you need anything else from me,” but “[i]f not, then we will be done and I’ll leave you to do whatever is proper, honest, and fair.”  (RAND’s Exhibits, p. 143, the last two sentences of the fifth paragraph [emphasis added].)  

RAND also submits Wilson’s declaration as evidence.  (RAND’s Exhibits, Item B – the declaration of Barry Wilson (“Wilson Decl.”).)  Wilson testifies that by September 18, 2019 (the same date that Plaintiff sent the email describing himself as a former employee (see above)), Plaintiff started recording “leave without pay” on his timesheets, which was in violation of RAND’s policies, and he did not bill to any billable project work for the rest of his employment.  (Wilson Decl., ¶ 23.) 

Then on October 2, 2019, Plaintiff e-mailed Wilson to officially resign, stating in part: “I have cleaned out my office and have started looking for another job … I’ll be contacting HR to discuss my options to assist that project but otherwise leave RAND.”  (Wilson Decl., ¶ 24; RAND’s Exhibits, p. 159 (Sander’s Decl., last page of Exhibit 16), the email dated October 2, 2019.)  Wilson responded to Plaintiff that he was sorry Plaintiff had decided to leave RAND and asked Plaintiff for a meeting with himself, Hanley, and HR to discuss the next steps.  (Wilson Decl., ¶ 24.)

On October 25, 2019, Wilson informed Plaintiff that, as a follow up to Plaintiff’s email on October 2, 2019, Plaintiff’s last day of work would be Friday, November 8, 2019. (Wilson Decl., ¶ 25; RAND’s Exhibits, p. 332 [Wilson Decl., Exhibit U].)  In the email, Wilson explained that he was giving Plaintiff 80 hours of coverage, from October 28 to November 8, 2019, for Plaintiff to use to complete his transition tasks.  (Wilson’s Decl., Exhibit U.)  Plaintiff responded: “Ok, I’m being terminated on November 8th.  Got it.”  (Wilson Decl., ¶ 25; Exhibit U.)

Although Wilson interpreted Plaintiff’s “I’m being terminated on November 8th” response as suggesting that he was not voluntarily resigning, given Plaintiff’s prior conduct – recording “leave without pay” and telling Wilson and HR that he was looking for another job – Wilson still considered him to have resigned.  (Wilson’s Decl., ¶ 26.) 

It is undisputed that Plaintiff’s last day of employment was November 8, 2019.  (Parties’ UMF, ¶ 62; Wilson Decl., ¶ 27.)

Termination is the only adverse employment action Plaintiff specified under his first cause of action for disability discrimination (Compl., ¶ 37 [“Plaintiff’s disability, perceived disability, or related potential accommodations was a substantial motivating reason for Defendant’s adverse employment action against Plaintiff, including the termination of his employment” (emphasis added)].)

The Court finds that RAND has met its burden of showing that Plaintiff’s first cause of action for disability discrimination under FEHA has no merit by showing that at least one element of that cause of action (i.e., adverse employment action) cannot be established.  (Code of Civ. Proc., § 437c, subd. (p)(2).) 

Therefore, the burden shifts to the Plaintiff “to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.”  (Code of Civ. Proc., § 437c, subd. (p)(2).) 

a.      Whether A Triable Issue of Material Fact Exists as to Whether Plaintiff was Terminated or Resigned

As stated above, Wilson testifies that by September 18, 2019, Plaintiff started recording “leave without pay” on his timesheets and did not bill any billable project work for the rest of his employment.  (Wilson Decl., ¶ 23.) 

In opposition, Plaintiff testifies that the reason he started taking “leave without pay” was because “Hanley removed [him] from a billable long-term project in or about mid-September 2019.”  (Plaintiff’s Evidence, filed on January 31, 2023, declaration of Scot Hickey (“Hickey Decl.”), ¶ 26.)  “[Plaintiff] had been introduced to [that] project from [sic] another research programmer, Mark Totten, who knew [he] was looking for longer-term work. [He] was forced to take leave without pay in or around this timeframe because Jan Hanley removed [him] from that long-term project and did nothing to provide me with replacement billable project work.”  (Hickey Decl., ¶ 26.)  However, “even while [he] was not being paid by RAND (or on ‘leave without pay’) in the timeframe of late September 2019 - October 2019, [he] was still performing work for RAND.  [He] was still staffed on another project at [that] time but did not have any programming work to do that [he] was permitted to bill to a project.  ([He] believe[s] [this is because they] … were still waiting for data).”  (Hickey Decl., ¶ 27.)  He also attended project meetings after September 18, 2019.  (Hickey Decl., ¶ 27.) 

As stated above, Wilson claims that he “understood” Plaintiff’s email sent on October 2, 2019, to mean that Plaintiff was resigning because Plaintiff stated (among other things) that he had “cleaned out [his] office and [had] started looking for another job.”  (Wilson Decl., ¶ 24)

However, Plaintiff argues Wilson recommended Plaintiff for a long-term project on or about October 15, 2019, that would take up at least half of the research programmer’s time for several months.  (Opposition, p. 21:21-23.)

Indeed, the Court notes that in a deposition exhibit Plaintiff has produced as evidence, RAND’s Director for Engineering and Applied Sciences Department, Christopher G. Pernin, Ph.D. (“Pernin”), emailed Hanley on October 15, 2019, stating:

We need a programmer with excel/VBA/macro experience for a funded Arroyo project. We are building something for an army client, so need something built for releasing to them. Some basic data analysis and graphing; some reading in of outside materials; pull down menus; design knowledge; etc.

            Can you recommend someone with about 30+ days available over the next 3          months?

(Plaintiff’s Evidence, pp. 222 [Laba Decl., Exhibit B, Deposition Exhibit No. 25] [emphasis added].) After Pernin realized that Hanley was out of town, he forwarded the same email to Wilson and others asking for help with his request, to which Wilson responded: “This could be something for Scot.”  (Plaintiff’s Evidence, pp. 221 [Laba Decl., Exhibit B, Deposition Exhibit No. 25].)

In addition, Wilson testified during his deposition that he didn’t “know” what Plaintiff’s “employment status was” on October 15, 2019, and that his “assumption was that he was a current employee” on that date.  (Plantiff’s Evidence, p. 179-180 [Wilson’s Deposition, pp. 250:25-251:17].)   This is inconsistent with the argument that Wilson “understood” Plaintiff to have resigned on October 2, 2019.

RAND emphasizes the fact that Hickey applied and interviewed for other jobs with other companies prior to his resignation lends credence to its argument that Hickey voluntarily resigned from his position.  (Reply, p. 5:27-28.)  This does not justify summary adjudication however, but underscores that there is a triable issue that must be resolved by a fact-finder.

For the reasons set forth above, the Court finds that Plaintiff has met his burden of showing that a triable issue of one or more material facts exists as to whether he resigned or was terminated. 

b.      Other Alleged Adverse Employment Actions

Plaintiff also argues that despite RAND’s focus on Plaintiff’s alleged “resignation,” his lawsuit encompasses multiple other adverse employment actions in addition to the termination of Plaintiff’s employment.  (Opposition, filed on January 31, 2023, p. 14:10-13.)  The other adverse employment actions Plaintiff suffered include the (1) November 2017 performance improvement plan (“PIP”), (2) performance appraisal for the period ending in December 2017, (3) May 2018 extension of the PIP, (4) final performance warning of July 2019, (5) removal of a long-term billable project in September 2019, and (6) forced “leave without pay” in September-October 2019.  (Opposition, p. 14:16-20.)  Plaintiff then argues that a motion for summary adjudication shall be granted only if it completely disposes of a cause of action, affirmative defense, damages, or an issue of duty.  (Opposition, p. 14:20-23.)

However, in its moving papers, RAND argued in a footnote that Plaintiff’s (1) November 2017 PIP, (2) December 2017 performance review, and (3) May 2018 PIP (i.e., the first three alleged adverse employment actions mentioned above) are time-barred because Plaintiff did not file his Department of Fair Housing and Employment (“DFEH”) charge until May 28, 2020.  (Motion, p. 9:1-3, fn. 4 [arguing that under Government Code section 12960, subdivision (d), prior to pursuing a claim under FEHA, an employee must first exhaust administrative remedies by filing a charge with the DFEH within one year of the date of the alleged unlawful employment practice].)

Plaintiff makes two arguments in response to this statute of limitations argument. 

First, the deadline to file a DFEH charge was extended to three years effective January 1, 2020.  (Opposition, p. 22:20-21, citing Gov. Code, § 12960, subds. (e)(5), (6).) 

Second, even if the extension did not apply here, RAND would still be liable for the earlier adverse employment actions under the continuing violations doctrine, because the actions following Plaintiff’s return from leave of absence in 2017, were sufficiently similar in kind, occurred with reasonable frequency, and had not yet acquired a degree of permanence.  (Opposition, pp. 22:23-23:2.)

The Court agrees that the statute of limitations here would bar the alleged adverse actions.

(See Pollock v. Tri-Modal Distribution Services, Inc. (2021) 11 Cal.5th 918, 931.)  As RAND argues, the November 2017 PIP, December 2017 performance review, and May 2018 PIP, occurred when the former one-year statute of limitations for filing DFEH complaints applied. 

Therefore, since Plaintiff filed her DFEH complaint on May 28, 2020, more than one year after those alleged unlawful actions occurred, those actions are time-barred.

However, Plaintiff argues that those alleged adverse actions are still actionable under the “continuing violations doctrine.”  The continuing violations doctrine is a tolling exception to the one-year statute of limitations of filing a DFEH complaint.  (Dominguez v. Washington Mutual Bank (2008) 168 Cal.App.4th at 720-721 (“Dominguez”).)  Under the continuing violations doctrine, “a FEHA complaint is timely if discriminatory practices occurring outside the limitations period continued into that period.”  (Id. at p. 721.) 

“A continuing violation exists if: (1) the conduct occurring within the limitations period is similar in kind to the conduct that falls outside the period; (2) the conduct was reasonably frequent; and (3) it had not yet acquired a degree of permanence.”  (Ibid.) 

Here, the Court finds that a triable issue of material fact exists as to whether the doctrine would apply in this instance. 

First, the “similar in kind” element would be satisfied because the only alleged adverse actions that fell outside the limitations period were PIPs or reviews and Plaintiff alleges that RAND issued him another adverse PIP or review in July 2019 (which fell within the statute of limitations).  (Compl., ¶ 26.)

Second, “[a]llegations of a pattern of reasonably frequent and similar acts may, in a given case, justify treating the acts as an indivisible course of conduct actionable in its entirety.”  (Brome v. California Highway Patrol (2020) 44 Cal.App.5th 786, 799.) 

Here, Plaintiff testifies that immediately upon his return from leave in 2017, Hanley and Wilson assigned him “several additional communication tasks to be performed daily or weekly that were never required of [him] for the prior (approximate) 17-18 years before [his] leave of absence.  These additional demands on [his] communication were especially difficult for [him] given the symptoms of [his] mental disability as outlined in the Psychiatric Impairment Questionnaire.”  (Plaintiff’s Evidence, p. 408 [Hickey Decl., ¶ 14].)

Then on November 20, 2017, Plaintiff received the first PIP, which “was the first discipline [he] ever received at RAND since [his] date of hire in 1999.”  (Hickey Decl., ¶ 25.)

Plaintiff subsequently received a RAND Performance Appraisal for the review period between January 1, 2016 through December 31, 2017 (the December 2017 PIP), in which Wilson gave Plaintiff only a “2 Meets Some Expectations” rating under the communications section, explaining that Plaintiff “did not consistently keep his projects informed of his work progress and did not respond to emails from management during several periods of time, significantly impacting several projects.”  (Plaintiff’s Evidence, p. 203 [Wilson’s Deposition, Exhibit No. 62, the December 2017 PIP].)

On July 25, 2019, Wilson issued Plaintiff a “Final Performance Warning” (the July 2019 PIP) which states in relevant part the following:

On November 20, 2017, you received a written Performance Improvement Plan and Warning to address concerns with your work performance as a Research Programmer IV, specifically your lack of communication and responsiveness with your project leaders and RPG management.  These issues continue to be a problem, and have been addressed in forms of performance feedback such as email, one-on-one meetings, and in the extension of your Performance Improvement Plan and Warning on May 2, 2018 [May 2018 PIP].  I have added my assessment below to the areas of your Performance Improvement Plan in which you are continuing to not meet expectations, and described how you are continuing to not meet these expectations.

(Plaintiff’s Evidence, p. 219 [Wilson’s Deposition, Exhibit No. 66, the July 2019 PIP].)

Therefore, there is evidence that the PIPs were reasonably frequent and an indivisible course of conduct because (1) they were issued after Plaintiff’s return from his medical leave, (2) they were issued consecutively (with one building upon the previous ones until a “final” one in July 2019), and (3) they all addressed (as Wilson admits in the July 2019 PI above) Plaintiff’s communications issues. 

“‘[P]ermanence’ in the context of an ongoing process of accommodation of disability, or ongoing disability harassment, should properly be understood to mean the following: that an employer’s statements and actions make clear to a reasonable employee that any further efforts at informal conciliation to obtain reasonable accommodation or end harassment will be futile.”  (Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, 823.)

Here, as shown above, there is no evidence that the November 2017, December 2017, and May 2018 PIPs reached a degree of permanence because they were not meant to be final reprimands but feedback on Plaintiff’s performance.  The PIPs arguably reached permanence on July 2019, when Plaintiff was issued the “final” PIP, but the July 2019 PIP fell within the statute of limitations period. 

Accordingly, for the reasons set forth above, the Court finds that Plaintiff has met his burden of establishing that a triable issue of one or more material facts exists as to whether (1) the continuing violations doctrine apply to his November 2017, December 2017, and May 2018 PIPs and (2) those PIPs constitute adverse employment actions.  (Code of Civ. Proc., § 437c, subd. (p)(2).) 

2.      Whether the Alleged Adverse Employment Actions Were Based on Legitimate, Nondiscriminatory Reasons

RAND can still be entitled to summary adjudication if it shows that any alleged “adverse employment action was based on legitimate, nondiscriminatory factors unless the plaintiff produces admissible evidence which raises a triable issue of fact material to the defendant’s showing.”  (Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 203 [emphasis added].)

Here, RAND argues that Plaintiff’s alleged termination was based on legitimate, non-discriminatory reasons because he stopped working, was recording “Leave Without Pay” on his timesheet, and was applying and interviewing for other jobs during the workweek.  (Motion, p. 13:21-23.)

However, as stated above, Plaintiff has shown there are triable issues of material fact concerning why he stopped working and was recording leave without pay.  The fact that an employee is applying and interviewing for other jobs during the workweek does not prove that the employee did not face discrimination.

RAND argues that Plaintiff cannot show that RAND discriminated against him based on the 2017 and 2018 PIPs.  Specifically, it argues, the PIPS were not issued because simply because Plaintiff had communication issues but were provided to him as instructions for work expectations.  (Reply, pp. 7:31-8:3.)  RAND further argues that there is no evidence that Plaintiff’s failure to communicate with project leaders regarding the status of his work was a symptom of his disability.  (Reply, p. 8:4-5.)

However, there is a triable issue of fact as to whether Plaintiff’s failure to communicate was a symptom of his disability. 

In the Psychiatric Impairment Questionnaire Plaintiff produced, the doctor wrote that Plaintiff had poor planning and abstract reasoning.  (Plaintiff’s Evidence, p. 327 [Laba Decl., Exhibit F, Question 5 in the Questionnaire].)  Moreover, he noted that Plaintiff had “severe loss of work capacity,” and “problem solving concentration.”  (Id. at Question 7.)  He also wrote that Plaintiff was severely depressed, detached, had poor relatedness compared to baseline, and seriously slowed down.  (Id. at Questions 3 and 4.)

A reasonable juror could conclude that Plaintiff’s symptoms as described in the Questionnaire would make communication difficult. 

In any event, “[a] motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.”  (Code Civ. Proc., §437c(f)(1).)

Here, RAND cannot dispose of Plaintiff’s disability discrimination cause of action without proving that Plaintiff’s alleged termination was not based on legitimate, non-discriminatory reasons.

Accordingly, summary adjudication for the first cause of action for disability discrimination is DENIED.

B.     Second Cause of Action for Failure to Provide Reasonable Accommodation

“The elements of a failure to accommodate claim are (1) the plaintiff has a disability under the FEHA, (2) the plaintiff is qualified to perform the essential functions of the position, 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 (“Scotch”).)

Here, the Complaint alleges that RAND denied Plaintiff’s reasonable accommodation but fails to specify what kind of accommodation was denied.  (Compl., ¶¶ 36, 42, 43, 49, 50, 51.)

RAND argues that it reasonably accommodated Plaintiff’s disability by granting Plaintiff’s requests for medical leave.  (Motion, p. 16:26-27)  Indeed, the Court notes that it is undisputed that Plaintiff was granted and took medical leave starting on February 28, 2017.  (Parties’ UMF, ¶ 20.)  Moreover, even though Plaintiff was scheduled to return to work on May 1, 2017, Plaintiff later requested his leave to be extended to May 22, 2017, and RAND granted the request.  (Parties’ UMF, ¶ 21.) 

RAND further argues that because “Plaintiff acknowledges, short-term work was an essential function of his position [citing Parties’ UMF, ¶ 9], RAND was not required to remove such work as a reasonable accommodation.”  (Motion, p. 17:17-18.)  In addition, Plaintiff had no right to demand that RAND limit his short-term work in favor of more long-term because Plaintiff’s doctor never recommended less short-term or more long-term work.  (Motion, p. 17:19-20.)

The Court finds that RAND has met its burden of showing that Plaintiff’s second cause of action for failure to provide reasonable accommodation under FEHA has no merit by showing that at least one element of that cause of action (i.e., defendant failed to accommodate Plaintiff’s accommodation) cannot be established.  (Code of Civ. Proc., § 437c, subd. (p)(2).) 

Therefore, the burden shifts to the Plaintiff to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.  (Code of Civ. Proc., § 437c, subd. (p)(2).) 

In opposition, Plaintiff argues that short-term work was not an essential job function for his position and correctly points out that the evidence RAND cited to make that point does not state that.  (Opposition, p. 16:20-23.) 

In addition, Plaintiff argues, that his preference for longer-term work was tied to his mental disability because “the stress of continually being under (multiple and possibly conflicting) deadlines and on the verge of being short of coverage, along with a general sense of disconnection, were adverse consequences to me from working primarily on short-term projects.”  (Plaintiff’s Evidence, p. 406 [Hickey Decl., ¶ 4].)

Although RAND has objected to Plaintiff’s declaration, Plaintiff gave the same testimony in his deposition, to which the defendant has not objected.  When asked whether he asked RAND to make any changes to his work or how he did his job after he returned to work in late May 2017, Plaintiff answered that he “continued to ask for longer-term work instead of getting nothing but short-term firefighting tasks.”  (Plaintiff’s Evidence, pp. 19-20 [Hickey Depo., pp. 102:23-103:4].)  Plaintiff told Wilson and Hanley that it was “too stressful to juggle that kind of workload,” meaning “ten or 15 projects in a two-week period.”  (Id. at p. 21 [Hickey Depo., p. 104:3-18].) 

Plaintiff also testified that he sent emails to Hanley and Wilson about the PIPs to “let[] them know that this was tied to [his] mental health and that [he was] working with [his] mental health providers ….”  (Id. at pp. 23-24 [Hickey Depo., pp. 107:11-108:13].)

Plaintiff further testified that he asked Hanley to relax her requirement for requiring researchers like Plaintiff to find their own work, and instead assist Plaintiff to get some work as she does for younger programmers.  (Id. at pp. 25-26 [Hickey Depo., pp. 114:3-115:5].)

RAND does not dispute that Plaintiff requested assisting finding long-term work or that it denied that request.  Instead, it insists that “RAND does not ‘find’ Research Programmers like Hickey project work, and, therefore, RAND could not have taken away or failed to provide him with billable project work such that he was ‘forced’ to resign.”  (Reply, p. 2:26-29.)  RAND also argues that there is no evidence that Hickey required an accommodation in the form of RAND finding and offering him only long-term project work.  (Reply, pp. 2:29-3:1.)

However, the term “reasonable accommodation” can include “job restructuring, part-time or modified work schedules, . . . [and] adjustment or modifications of . . . policies . . . for individuals with disabilities.”  (Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1010.)

Therefore, RAND has failed to establish why it could not modify its policy to find Plaintiff long-term projects as a reasonable accommodation.

RAND argues in a footnote that Plaintiff’s claim that RAND should have given him fewer short-term projects is “disingenuous” given that he began asking for that as far back as in 2012, five years before he disclosed his disability.  (Motion, p. 18, fn. 7)

However, the Court cannot decide issues of credibility on summary judgment.  (American Airlines, Inc. v. Sheppard, Mullin, Richter & Hampton (2002) 96 Cal.App.4th 1017, 1049.)

For the reasons set forth above, the Court finds that Plaintiff has met his burden of establishing that a triable issue of one or more material facts exists as to his failure to provide reasonable accommodation claim.  (Code of Civ. Proc., § 437c, subd. (p)(2).) 

Accordingly, summary adjudication for the second cause of action for failure to provide reasonable accommodation is DENIED.

C.    Third Cause of Action for failure to engage in interactive process

“Failure to accommodate and failure to engage in the interactive process are separate, independent claims involving different proof of facts.  The purpose of the interactive process is to determine what accommodations is required.” (Brown v. Los Angeles Unified School Dist., supra, 60 Cal.App.5th at p. 1109.)

Here, RAND grouped its arguments for the second and third cause of action together.  (Motion, pp. 16:12-18:4.)  It did not advance new arguments with regards to the third cause of action.

Accordingly, summary adjudication of the third cause of action for failure to engage in interactive process is DENIED.

D.    Fourth, Fifth, and Sixth Cause of Action

In addition to his disability discrimination claim, Plaintiff brings the fourth cause of action for retaliation under the CFRA, fifth cause of action for retaliation under FEHA, and sixth cause of action for age discrimination under FEHA against RAND.

RAND argues that it is entitled to summary adjudication for those claims for the same reasons it was entitled for the first cause of action for disability discrimination; specifically, that it did not subject Plaintiff to an adverse employment action (i.e., termination) and any alleged adverse employment action was based on legitimate, nondiscriminatory factors.  (Motion, pp. 9:1-16:10.)

Here, as stated above, (1) Plaintiff has met his burden of establishing there is a triable issue of material fact whether the November 2017, December 2017, and May 2018 PIPs were adverse employment actions and whether he was terminated or resigned, and (2) summary adjudication shall be granted only if it completely disposes of a cause of action.  RAND cannot dispose of the fourth, fifth, and sixth causes of action without establishing that the aforementioned PIPs were not adverse employment actions.

Accordingly, summary adjudication of the fourth cause of action for retaliation under the CFRA, fifth cause of action for retaliation under FEHA, and sixth cause of action for age discrimination under FEHA is DENIED. 

E.     Seventh Cause of Action for Failure to Prevent Discrimination or Retaliation

RAND only argues it is entitled to judgment as to Plaintiff’s seventh cause of action because “Plaintiff cannot establish a predicate violation of FEHA ….”  (Motion, p. 18:7-12.) 

However, the Court has found that Plaintiff has shown triable issues of one or more material fact as to his discrimination or retaliation causes of action.

Accordingly, summary adjudication as to the seventh cause of action for failure to prevent discrimination or retaliation is DENIED.

F.     Punitive Damages Claim

“Under Civil Code section 3294, punitive damages may be recovered “where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice ....” (§ 3294, subd. (a).)”  (American Airlines, supra, 96 Cal.App.4th at p. 1048.)

“For corporate punitive damages liability, section 3294, subdivision (b), requires that the wrongful act giving rise to the exemplary damages be committed by an ‘officer, director, or managing agent.’”  (White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 572 (“White”).)  “The managing agent must be someone who exercises substantial discretionary authority over decisions that ultimately determine corporate policy.  Thus, by selecting the term ‘managing agent,’ and placing it in the same category as ‘officer’ and ‘director,’ the Legislature intended to limit the class of employees whose exercise of discretion could result in a corporate employer’s liability for punitive damages.”  (Id. at p. 573.)

Here, to prove that Wilson and Hickey were not officers, directors, or managing agents, RAND submits their declarations.  In their declarations, Wilson and Hickey testify that during Plaintiff’s “employment (and currently), [he] did not have the authority to make decisions that could change, dictate, or affect RAND’s corporate policies, or engage in any type of policymaking for RAND.  I also did not have the authority to unilaterally hire or fire employee.”  (RAND’s Exhibits, pp. 191 (Wilson Decl., ¶ 30); 336 (Hanley Decl., ¶ 30).)

However, as Plaintiff argues in his reply, “[s]imply restating the applicable legal standard

for the determination of whether an employee is a managing agent does not satisfy RAND’s initial burden of production.”  (Opposition, p. 25:8-10, citing Davis v. Kiewit Pacific Co. (2013) 220 Cal.App.4th 358,369 (“Davis”).)

Indeed, in Davis, the defendant produced a declaration from its employee saying: “‘As a Kiewit employee, I have never drafted corporate policy or had substantial discretionary authority over decisions that ultimately determine Kiewit’s corporate policy.  The only role that I play with respect to Kiewit's anti-harassment and EEO policies is to ensure that they are followed on the job.’  [Citation.]”  “However,” the Court of Appeal stated, “the language italicized above states a legal conclusion by simply parroting the White standard.”  (Davis, supra, 220 Cal.App.4th at p. 369 [italics in original].)

Accordingly, summary adjudication of the punitive damages claim is DENIED.

Conclusion

The RAND Corporation’s Motion for Summary Judgment, or in the Alternative, Summary Adjudication is DENIED.