Judge Bruce G. Iwasaki, Case Number: 20STCV07214, Date: 2024-01-16 Tentative Ruling

Matter: Motion for Summary Judgment or, in the alternative, Summary Adjudication

Tentative Ruling: The motion for summary judgment is denied. The motion for summary adjudication is granted as to Issues Nos. 1, 3, 5, 11 and denied as to Issues. Nos. 7-10. The motion for summary adjudication is moot as to Issues Nos. 2, 4, and 6.

This is an employment discrimination case brought by Plaintiff Aubrey Pittman against his employer, MV Transportation, Inc. (Defendant or MV). Plaintiff alleges that during his employment as a bus driver he was discriminated against based on a knee injury he suffered while on the job.

On February 20, 2020, Plaintiff filed a Complaint against Defendant alleging claims for: (1.) failure to accommodate a disability; (2) failure to engage in the interactive process; (3) disability discrimination (case no. 20STCV07214).

On April 2, 2021, Defendant MV filed a Motion for Summary Judgment to dispose of all Plaintiff’s disability-related claims. On June 16, 2021, based on the facts known at that time, the Court denied Defendant’s Motion as to all claims except for Plaintiff’s claim for punitive damages.

On May 23, 2022, Plaintiff was terminated from his employment. On December 14, 2022, Plaintiff filed a second lawsuit against Defendant (case no. 22STCV38830), alleging causes of action for (1.) retaliation under FEHA, and (2.) retaliation under Labor Code section 1102.5. The two matters were consolidated on March 13, 2023 with the earlier case, no. 20STCV07214, as the lead case.

Now, Defendant MV moves for summary judgment, or in the alternative, summary adjudication of all the claims in the two consolidated matters. Plaintiff opposes the motion.

The motion for summary judgment is denied. The motion for summary adjudication is granted as to Issues Nos. 1, 3, 5, 11 and denied as to Issues. Nos. 7-10. The motion for summary adjudication is moot as to Issues Nos. 2, 4, and 6.

Plaintiff’s single objection to Defendants’ evidence is overruled; instead of citing evidence, Plaintiff objects to the material facts in the separate statement, which is not evidence.

Plaintiff’s request that the Court take judicial notice of Exhibits 1-5 is granted.

Defendant’s objections to Plaintiff’s evidence is ruled as follows: Nos. 1-17, 22, 24-25, 29-31, 37, 40-42, 46-49, 54-55 are overruled, Nos. 18-21, 23, 26-28, 32-36, 39, 43-45, 50-53, 56-57.

“The party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A triable issue of material fact exists if the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof. (Ibid.)

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal. App. 4th 463, 467; Code Civ. Proc., § 437c, subd. (c).)

“California uses the three-stage burden-shifting test established by the United States Supreme Court for trying claims of discrimination based on a theory of disparate treatment,” known as the McDonnell Douglas test. (Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1004.) Under the McDonnell Douglas test, “the plaintiff [first] has the burden of establishing a prima facie case of discrimination. Second, if the plaintiff meets this burden, the employer must offer a legitimate nondiscriminatory reason for the adverse employment decision. Third, and finally, the plaintiff bears the burden of proving the employer's proffered reason pretextual.” (Knight v. Hayward Unified School Dist. (2005) 132 Cal.App.4th 121, 129.)

” ‘A defendant employer's motion for summary judgment slightly modifies the order of these [McDonnell Douglas] showings.’ “ (Scotch, supra, 173 Cal.App.4th at p. 1005.) To prevail on summary judgment, the defendant employer is “required to show either that (1) plaintiff could not establish one of the [prima facie] elements of the FEHA claim, or (2) there was a legitimate, nondiscriminatory reason for its decision to terminate plaintiff's employment.” (Avila v. Continental Airlines, Inc. (2008) 165 Cal.App.4th 1237, 1247.)

Defendant moves for summary judgment on the grounds that Plaintiff cannot establish all the elements of his claims and there are no triable issues of material fact in dispute.

In support of the motion for summary adjudication, Defendant argues that the claim fails because (1.) Plaintiff cannot prove he was a qualified individual who could perform his job with or without reasonable accommodations and he did not suffer an adverse employment action because of his disability (Issue No. 1), and (2.) Defendant had legitimate, nondiscriminatory business reasons for all decisions made regarding Plaintiff’s employment and Plaintiff cannot prove that Defendant’s proffered reasons for the alleged adverse employment actions are pretext for any discrimination (Issue No. 2).

The 20STCV07214 Complaint alleges “Plaintiff was released [to work] on July 30, 2019 following the knee surgery with restrictions to work in a sedentary only position.” (Compl., ¶ 10.) Thereafter, Defendant informed Plaintiff that that “they could not accommodate him and for him to stay at home.” (Compl., ¶ 10.) “Plaintiff was expecting to be accommodated by being assigned to the call center.” (Compl., ¶ 10.) When “Plaintiff was released on December 20, 2019, without restrictions” he “was expecting to start driving.” (Compl., ¶ 11.) “By refusing to allow Plaintiff to return to work following his medical leave of absence caused by his knee surgery due to an injury that occurred at work as described herein, Defendants have violated California Government Code §12940.” (Compl., ¶ 32.)

With respect to Issue No. 1, Defendant argues that Plaintiff cannot establish a prima facie case because he was not qualified to perform the essential functions of his job with or without accommodation.

In the context of disability discrimination, the plaintiff can meet this burden to establish a prima facie case of discrimination by presenting evidence that demonstrates, even circumstantially or by inference, that he (1) suffered from a disability, or was regarded as suffering from a disability; (2) could perform the essential duties of the job with or without reasonable accommodations, and (3) was subjected to an adverse employment action because of the disability or perceived disability. (Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 254.)

Here, Defendant submits evidence that Plaintiff was not qualified to perform the essential function of his job—commercial driving – based on Department of Transportation (DOT) regulations and his knee injury.

Drivers of commercial motor vehicles, like Plaintiff, are required to demonstrate they are physically qualified to drive per the Department of Transportation (DOT) regulations by submitting to a physical examination with a certified DOT medical examiner. (DSS 3-4.) If the medical examiner determines that a driver is not physically qualified to drive, then the driver cannot legally drive. (DSS 5.)

Pursuant to 49 C.F.R. section 391.41, Appendix A to Part 391.415, subdivision (b)(5)(1), a person is physically qualified to drive a commercial motor vehicle if that person has no established medical history or clinical diagnosis of a respiratory dysfunction likely to interfere with ability to control and drive a commercial motor vehicle safely. (49 C.F.R. § 391.41, Appendix A to Part 391.415, subd. (b)(5)(1).) A diagnosis of Obstructive Sleep Apnea (OSA or sleep apnea) is considered a respiratory dysfunction likely to interfere with ability to control and drive a commercial motor vehicle safely. (DSS 79.)

In this case, Defendant’s evidence shows that Plaintiff was diagnosed with OSA in February 2016 and prescribed a CPAP machine. (DSS 78.) To establish that he was physically qualified to operate a commercial motor vehicle while suffering from this medical condition, Plaintiff had to provide the DOT Medical Examiner evidence of his CPAP use compliance. (DSS 80-81.)

It is undisputed that to comply with DOT regulations on CPAP usage in order to maintain his commercial driver's license, Plaintiff was required to continuously use the CPAP machine for four hours or greater for 70% of the time throughout the year. (DSS 81.)[1]

Here, the evidence shows that, during a deposition in May 2022, Plaintiff testified he used his CPAP machine “[j]ust for the requirements to pass the CPAP test, which is 30 to 90 days out of the year.” (DSS 80-81.) Thus, Defendant contends Plaintiff was not in compliance with his CPAP usage and his OSA was not controlled.

Based on this noncompliance with DOT regulations, Defendant contends that Plaintiff was not qualified to work as a commercial driver.

In opposition, Plaintiff submits his declaration stating that he misunderstood the defense counsel’s question and “focused” his testimony “on what [he] needed to show the DOT medical examiner to be compliant, not how often [he used his] CPAP machine throughout the year.” (PSS 80 [Pittman Decl., ¶ 26].) He states that he used his CPAP machine “at least four hours per night for at least 70% of the nights.” (PSS 80 [Pittman Decl., ¶¶ 27, 31].)

Plaintiff’s declaration conflicts with his earlier deposition testimony. Although Plaintiff attempts to explain his statement as result of a confusing defense question, the Court disagrees.

“Q So you were diagnosed with sleep apnea and never told that you no longer had sleep apnea; is that correct?

A Yes. It's a requirement that you must wear a CPAP machine to be a commercial driver.

A Just for requirements to pass the CPAP test, which is 30 to 90 days out of the year.

Q So you have to wear that sleep apnea mask only for 30 to 90 days before your Department of Transportation medical evaluation?

Q Is that because you want your results on that Department of Transportation medical evaluation to be positive so you could drive?

There was nothing confusing or misleading about the defense counsel’s question. Based on the questions asked by defense counsel, Plaintiff volunteered this information regarding the 30-90 day usage when asked specifically how often he wears his CPAP machine at night.

Thus, Plaintiff’s declaration evidence does not create a triable issue of material fact in dispute. It “is well-established in California that a declaration must be disregarded if in conflict with deposition testimony.” (See D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1; Jacobs v. Fire Ins. Exchange (1995) 36 Cal.App.4th 1258, 1270 [“A court may disregard a declaration, prepared for purposes of a summary judgment motion, which conflicts with deposition testimony of the declarant. [Citations.]”]; see also Schiff v. Prados (2001) 92 Cal.App.4th 692, 705 [in reviewing the trial court's grant of motion for summary judgment, appellate court disregarded nonparty expert's declaration that conflicted with his deposition testimony].)

Thus, Defendant’s evidence on CPAP usage is undisputed. Accordingly, the undisputed evidence shows Plaintiff was not qualified to perform the essential functions of his job because he failed to comply with DOT regulations.[2]

Pursuant to 49 C.F.R section 391.46, subdivision (a), an individual with diabetes mellitus treated with insulin for control is physically qualified to operate a commercial motor vehicle provided: “ . . . “(2) The individual has the evaluation required by paragraph (b) and the medical examination required by paragraph (c) of this section.” (49 C.F.R § 391.46, subd. (a).) Prior to a DOT medical examination, an individual with diabetes mellitus must be evaluated by his treating clinician, during which the treating clinician must complete the Insulin-Treated Diabetes Mellitus Assessment Form, MCSA-5870 (Form). (49 C.F.R. § 391.46(b)(1).) No later than 45 days after the treating clinician signs and dates this Form, an individual with diabetes mellitus treated with insulin for control must be medically examined and certified by a DOT medical examiner as physically qualified in accordance with Section 391.43 as free of complications from diabetes mellitus that might impair his ability to operate a commercial motor vehicle safely. (49 C.F.R. § 391.46, subd. (c)(2).)

An individual is “not physically qualified to operate a commercial motor vehicle if he or she is not maintaining a stable insulin regimen and not properly controlling his or her diabetes mellitus.” (49 C.F.R. § 391.46, subd. (c)(2)(i).) Further, the individual is not physically qualified to operate a commercial motor vehicle up to the maximum 12- month period under Section 391.45(e) “until he or she provides the treating clinician with at least the preceding 3 months of electronic blood glucose self-monitoring records while being treated with insulin. The individual who does not provide the treating clinician with at least the preceding 3 months of electronic blood glucose self-monitoring records while being treated with insulin . . . . is not physically qualified to operate a commercial motor vehicle for more than 3 months.” (49 C.F.R. § 391.46, subd. (c)(2)(iii)-(iv).)

Defendant presents evidence showing that Plaintiff did not take insulin to treat his diabetes mellitus. (DSS 85.) Based on this noncompliance with DOT regulations, Defendant contends Plaintiff was not qualified to work as a commercial driver.

In opposition, Plaintiff asserts that he was not prescribed insulin; instead, he states that he lost weight and began taking Metformin to control his diabetes. (PSS 85 [Pittman Decl., ¶ 34; see also ¶ 35, Ex. 25].) Citing 49 C.F.R. § 391.41(b)(3), Plaintiff notes that the regulation states that “[a] person is physically qualified to drive a commercial motor vehicle if that person has no established medical history or clinical diagnosis of diabetes mellitus currently treated with insulin for control . . ..”

Although Plaintiff state that he was “was never treated with insulin,” this evidence is contradicted by Plaintiff’s deposition testimony. During his deposition, he first states – in response to how he was controlling his diabetes – that he was not “under any medication.” (Ex. B [Pittman Depo. 432:1-15].) This testimony contradicts his declaration that he was taking Metformin.

Plaintiff testified that insulin was prescribed to him, but he did not take it. (DSS 85 [Gjedsted Decl., Ex. B [Pittman Depo. 435:1-15]].) He also stated that at some point he began treating his diabetes mellitus with Metformin. (DSS 85 [Gjedsted Decl., Ex. B [Pittman Depo. 432:16-20; see also 453:4-16]].) Thus, Plaintiff’s own deposition testimony indicates he was prescribed insulin to control his diabetes at some point and did not take it.

In opposition, Plaintiff also submits a letter from Dr. Assaad, MD., dated December 22, 2023, regarding Plaintiffs diabetes and treatment. (PSS 85 [Koron Decl., Ex. 25].) The letter states that Plaintiff was under Dr. Assaad’s care and Dr. Assaad never prescribed insulin. (PSS 85 [Pittman Decl., Ex. 25].) As noted above, Defendant’s objection to this unsworn letter is well taken. (Defendant’s objections nos. 56 and 57.)

Based on this additional basis for noncompliance with DOT regulations, Plaintiff was not qualified to work as a commercial driver.

Lastly, Defendant argues that Plaintiff cannot show he was able to perform the essential functions of his job as result of an injury to his right knee.

In support, Defendant submits evidence that, in August 2019, Plaintiff’s workers compensation (WC) doctor determined that Plaintiff had reached permanent and stationary status and issued restrictions, including no prolonged walking/standing and no repetitive ladder and stair climbing. (DSS 40.) Defendant argues that Plaintiff’s job required him to repeatedly climb stairs in order to board/deboard a bus and that the walking/standing involved driving a bus also prevent Plaintiff from physically performing his duties as a bus driver. (DSS 44.)

In July 2020, Plaintiff was fully released to return to work by his WC doctor. (DSS 73, 75.) However, it is undisputed that Plaintiff went back on leave in July 2021 because his knee injury was exacerbated by driving. (DSS 76.)

Plaintiff was on leave until February 2022 when he again returned to full duty. (PSS 31.)

While Defendant may take issue with whether Plaintiff could continue to remain on full duty, the evidence shows he was returned to full duty with and without restrictions during various periods after February 2019 knee surgery, including in February 2022 when he returned to full duty without restriction. Thus, there is a triable issue of material fact with respect to whether Plaintiff’s knee injury rendered Plaintiff unable to perform his essential duties with or without reasonable accommodation during the periods of the 20STCV07214 Complaint.

While summary adjudication of Issue No. 1 cannot be granted based on Plaintiff’s knee injury, Plaintiff fails to establish a prima facie case that he was qualified to perform his job based on his failure to use the CPAP machine and to take insulin as prescribed.

Issue No. 2 concerns whether Defendant’s adverse employment decision was due to Plaintiff’s disability or for a legitimate non-discriminatory reason. But the Court need not reach that point because Plaintiff has failed to prove a prima facie case that he was eligible to work as a commercial driver. Accordingly, Issue No. 2 is moot.

Defendant’s motion for summary adjudication is granted as to Issue No. 1, which renders Issue No. 2 moot.

In support of the motion for summary adjudication, Defendant argues that this claim fails because (1.) the undisputed material facts establish that Plaintiff cannot prove that at the time he claims Defendant failed to accommodate him, he was a qualified individual with a disability who could perform the essential functions of his position, with or without a reasonable accommodation (Issue No. 3.), and (2.) Defendant reasonably accommodated Plaintiff for all known disabilities (Issue No. 4.)

To establish a failure to accommodate claim, a plaintiff must show (1) he has a disability covered by FEHA; (2) he can perform the essential functions of the position; and (3) his employer failed reasonably to accommodate his disability. (Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 256–257.)

For the reasons discussed in Issue No. 1 of the disability discrimination cause of action, Plaintiff cannot prove that – at the time he claims Defendant failed to accommodate him – he was a qualified individual with a disability who could perform the essential functions of his position, with or without a reasonable accommodation.

Defendant’s motion for summary adjudication of Issue No. 3 is granted, and Issue No. 4 is moot.

In support of the motion for summary adjudication, Defendant argues that this claim fails because (1.) the undisputed material facts establish that Plaintiff cannot prove that at the time he claims Defendant failed to engage in the interactive process with him, he was a qualified individual with a disability who could perform the essential functions of his position, with or without a reasonable accommodation (Issue No. 5.), and (2.) the undisputed material facts establish that Defendant interacted with Plaintiff to the full extent required under the law (Issue. No. 6).

Under FEHA, it is an unlawful practice for an employer to fail to engage in a good faith interactive process with the employee to determine an effective reasonable accommodation if an employee with a known physical disability requests one. (Gov. Code § 12940, subd. (n); see § 12926.1, subd. (e); A.M. v. Albertsons, LLC (2009) 178 Cal.App.4th 455, 463.)

In Nadaf-Rahrov v. Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th 952, 963, the court of appeal held that a cause of action for either failure to accommodate (§ 12940, subd. (m)) or failure to engage in the interactive process (§ 12940, subd. (n)) requires a showing by the employee that he or she was a “qualified individual with a disability” in that he or she was able with reasonable accommodation to perform the essential functions of the job held or desired. (Id. at pp. 963, 975–976.)

For the reasons discussed in Issue No. 1 of the disability discrimination cause of action, Plaintiff cannot prove that – at the time he claims Defendant failed to adequately engage in the interactive process with him – he was a qualified individual with a disability who could perform the essential functions of his position, with or without a reasonable accommodation.

Defendant’s motion for summary adjudication of Issue No. 5 is granted, and Issue No. 6 is moot.

Retaliation in Violation of the California Fair Employment and Housing Act Cause of Action:

In support of the motion for summary adjudication, Defendant argues that this claim fails because (1.) Plaintiff cannot establish a prima facie case as the undisputed material facts fail to establish any causal connection between any protected activity and any adverse employment action (Issue. No. 7), and (2.) Defendant had legitimate, non-retaliatory business reasons for all actions taken against Plaintiff and Plaintiff cannot prove that Defendant’s proffered reasons for the alleged adverse employment actions are pretext for any retaliation (Issue No. 8.)

To state a claim for retaliation under FEHA, a plaintiff must show: (i) he engaged in protected activity, (ii) defendants subjected him to an adverse employment action, and (iii) there was a causal link between the protected activity and the adverse employment action. (Patten v. Grant Joint Union High School Dist. (2005) 134 Cal.App.4th 1378, 1384.)

Here, the Complaint in 22STCV38830 states in relevant part: “In retaliation for requesting an accommodation for his work restrictions, requesting and taking a medical leave of absence, and/or reporting Defendant's FEHA violations, Plaintiff was terminated by Defendant.” (Compl., ¶ 13.)

Defendant argues that there is no evidence to support causal connection between Plaintiff’s requests for accommodation for his right knee injury, which occurred in 2018 and for which he took a leave from February 2019 to August 2020, and his termination two years later in May 2022. (DSS 30-94.) Further, Plaintiff never complained about any employee conduct towards him based on any retaliation, including when he was terminated. (DSS 107.)

In opposition, without restating the litany of facts at issue in this case, Plaintiff relies on the timing of events and Defendant’s conduct during Plaintiff’s return to work to demonstrate retaliation. (PAF 12-63.) Specifically, he argues that the evidence shows he was kept out of work for a year despite being cleared to return to work, and then terminated shortly after returning from his protected leave. (PAF 12-63.)

Plaintiff’s evidence to support retaliation is limited. However, unlike in the other claims, the evidence here turns on Defendant’s purported unlawful intent – not Plaintiff’s qualification to work. Here, the long history of various leaves of absence and Defendant’s purported reasons from preventing Plaintiff’s return to work and then Plaintiff’s subsequent termination are sufficient to create an inference of a causal relationship between the protected activities and the adverse employment decision.

Defendant’s motion for summary adjudication of Issues Nos. 7 and 8 are denied.

Retaliation in Violation of the California Labor Code Section 1102.5 Cause of Action:

In support of the motion for summary adjudication, Defendant argues that this claim fails because (1.) Plaintiff cannot establish a prima facie case as the undisputed facts show Defendant did not subject Plaintiff to any adverse employment action due to any alleged whistleblower complaint under Labor Code Section 1102.5 (Issue No. 9), and (2.) Defendant would have taken the action in question for legitimate, independent reasons even had Plaintiff not engaged in protected activity and Plaintiff cannot demonstrate pretext (Issue No. 10).

In contrast to the FEHA cause of action, Labor Code section 1102.6 provides the framework for adjudicating a Labor Code section 1102.5 claim – not the McDonnell Douglas burden shifting standard. Under this standard, the plaintiff bears the burden of establishing, “by a preponderance of the evidence, that retaliation for an employee's protected activities was a contributing factor in a contested employment action.” (Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703, 718.) Second, “[o]nce the plaintiff has made the required showing, the burden shifts to the employer to demonstrate, by clear and convincing evidence, that it would have taken the action in question for legitimate, independent reasons even had the plaintiff not engaged in protected activity.” (Ibid.)

That is, under Labor Code section 1102.5, a plaintiff need only “demonstrate[] by a preponderance of the evidence” that the employee’s protected whistleblowing was a "contributing factor" to an adverse employment action. (Lab. Code § 1102.6.)

Thus, for the reasons discussed in Issue No. 7 of the retaliation based on FEHA claim, Defendant’s motion for summary adjudication of Issues Nos. 9 and 10 are denied.

In seeking summary adjudication of this issue, Defendant argues Plaintiff cannot prevail on his request for punitive damages because the undisputed material facts establish that no officer, director, or managing agent of Defendant acted with malice, oppression, or fraud towards Plaintiff, acted with advanced knowledge and disregard for Plaintiff’s rights or safety, or authorized or ratified any fraudulent, oppressive, or malicious conduct towards Plaintiff.

In opposition, Plaintiff states it is not opposing Defendant's motion as it relates to his punitive damages claim.

The motion for summary judgment is denied. The motion for summary adjudication is granted as to Issues Nos. 1, 3, 5, and 11, and denied as to Issues. Nos. 7-10. The motion for summary adjudication of Issues Nos. 2, 4, and 6 are moot.

[1] For reference, 70% of the year is approximately 8.4 months out of the year or approximately 255 days.

[2] In reviewing the evidence and arguments made by Defendant on the motion for summary adjudication of this issue, Defendant relies on evidence discovered after the filing of this Complaint of disability discrimination. Nonetheless, the Court can consider this evidence on this issue of whether Plaintiff was qualified to perform the essential functions of his job. (See e.g., Anthony v. Trax International Corporation (9th Cir. 2020) 955 F.3d 1123, 1126.)

In Anthony v. Trax International Corporation, the employer in that case discovered during litigation, long after any alleged discrimination, that the employee lacked a required degree for his position, so he was indisputably unqualified. (Id. at p. 1126-1128.) The issue on appeal was therefore whether such after-acquired evidence that an employee does not satisfy the prerequisites for the position, including educational background, renders the employee ineligible for relief. (Ibid.)

In Anthony, the Ninth Circuit held that the McKennon rule, which prohibits after-acquired evidence as a defense to discriminatory motive, does not apply to the “qualified individual” element of an ADA claim. (Id. at 1134.) The plaintiff and the amicus EEOC argued plaintiff's lack of a bachelor's degree, which was a prerequisite for her position as a “technical writer,” was irrelevant to the decision to terminate her employment because the defendant learned of this information after the adverse employment action occurred. (Id. at 1128.) The Court disagreed. (Ibid.) Although plaintiff's lack of a bachelor's degree had no relevance to discriminatory intent, the evidence was probative of whether plaintiff was qualified at the time of her termination from employment, regardless of when the employer learned of the information. (Id. at 1129.) Because “an employee must show she was qualified at the time of the of the adverse employment action, rather than some earlier or later time,” the qualification determination is not limited to “facts known to the employer at the time of challenged employment action.” (Id.) The Court explained that “an employer's subjective knowledge has no bearing on the skill, experience, education and other job-related qualifications that a person in fact possesses.” (Id.)