Judge: Colin Leis, Case: 21STCV40180, Date: 2023-03-24 Tentative Ruling
Case Number: 21STCV40180 Hearing Date: March 24, 2023 Dept: 74
SUPERIOR COURT OF CALIFORNIA
COUNTY OF LOS ANGELES – CENTRAL DISTRICT
DEPARTMENT 74
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¿¿juan
resendez¿¿,¿ ¿¿Plaintiff¿, vs. ¿¿pepperdine
University¿¿,
et al.,¿ ¿¿Defendants¿. |
Case No.: |
21STCV40180 |
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Hearing Date: |
¿¿March
24, 2023¿ |
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Time: |
¿¿8:30
a.m.¿ |
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[TENTATIVE]
ORDER RE: DEFENDANT
pepperdine university’S motion for summary judgment or, in the alternative,
summary adjudication of issues |
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MOVING PARTY: Defendant Pepperdine University
RESPONDING PARTY: Plaintiff Juan Resendez
Defendant Pepperdine University’s Motion
for Summary Judgment, or, in the Alternative, Summary Adjudication.
The
court considered the moving papers, opposition, and reply papers filed in connection
with this motion.
BACKGROUND
This
action arises out of a termination of employment. Plaintiff Juan Resendez
(Plaintiff) filed this action on November 1, 2021, against Defendant Pepperdine
University (Defendant). Plaintiff asserts nine causes of action: (1) Disability
Discrimination, (2) Failure to Engage in the Interactive Process, (3) Failure
to Accommodate, (4) Retaliation in Violation of Fair Employment and Housing Act
(FEHA), (5) Violation of the California Family Rights Acts (CFRA), (6) Retaliation in Violation of the
CFRA, (7) Failure to Prevent Discrimination or Retaliation, (8) Violation of California Labor Code section 1102.5, and (9)
Wrongful Termination in Violation of Public Policy.
Defendant
now moves for summary judgment or, in the alternative, summary adjudication of
each of the causes of action in the complaint.
EVIDENCE
Plaintiff’s
Objections to Defendant’s Evidence
The
following objections are overruled: 1, 2, 3, 4, 5, 6.
Defendant’s
Objections to Plaintiff’s Evidence
The
following objections are overruled: 1, 2, 3, 5, 6, 9
The
following objections are sustained: 4, 7, 8, 10, 11
Judicial
Notice
Not applicable.
LEGAL STANDARD
“¿[A]
motion for summary judgment shall be granted if all the papers submitted show
that there is no triable issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.¿” (¿¿Code Civ. Proc., §
437c, subd. (c)¿¿.) The moving party bears the initial burden of production to
make a prima facie showing that there are no triable issues of material fact.
(¿¿Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850¿¿.) If
the moving party carries this burden, the burden shifts to the opposing party
to make a prima facie showing that a triable issue of material fact exists. (¿(Ibid.¿¿)
Courts “¿liberally construe the evidence in support of the party opposing
summary judgment and resolve doubts concerning the evidence in favor of that
party.¿” (¿(Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384,
389¿¿.)
DISCUSSION
Disability
Discrimination
There
is a Triable Issue of Material Fact as to Whether Plaintiff Could Perform the Essential Functions of his Position With or
Without a Reasonable Accommodation.
“A qualified individual is someone
who is able to perform the essential functions of his or her job, with or
without reasonable accommodation.” (Nealy v. City of Santa Monica, supra,
234 Cal.App.4th at p. 378.) A reasonable accommodation is any “modification or
adjustment to the workplace that enables the employee to perform the essential functions
of the job held or desired. Reasonable accommodations include job
restructuring, part-time or modified work schedules, reassignment to a vacant
position … and other similar accommodations for individuals with disabilities.”
(Kaur v. Foster Poultry Farms, LLC (2022) 83 Cal.App.5th 320, 345.) Additionally,
in reassignment cases, an employer has a duty to reassign a disabled employee
if an already funded, vacant position at the same level exists. (Spitzer v.
The Good Guys, Inc. (2000) 80 Cal.App.4th 1376, 1390.)
To
defeat Plaintiff’s prima facie case, Defendant submits evidence that Plaintiff
could not perform essential functions in his position as landscaper by March
2020, when his employment was terminated. In 2020, Plaintiff told a physician
that he had difficulty bending, kneeling, squatting, climbing stairs, reaching,
grasping, pulling, and standing or walking for prolonged periods. (Sandhu Decl., ¶ 2; Ex. A, 92:20-93:20.) The physician
informed Plaintiff he would not be able to work for the rest of 2020. (Sandhu Decl., ¶ 2; Ex. A, 91:8-12.) Defendant
further contends that Plaintiff’s medical restrictions prevented him from fulfilling
his responsibilities as a landscaper because the job required lifting, pushing,
operating heavy equipment, and standing and walking for a seven-hour shift. (Sandhu Decl., ¶ 2; Ex. A.) Moreover, Defendant
submits evidence that Plaintiff could not perform essential functions of his job
in 2020 with accommodations. That is, an additional six-months
leave would have ended in September 2020, when Plaintiff was still unable to
work according to a physician. (Sandhu Decl., ¶ 2; Ex. A, 91:8-12.)
Plaintiff,
for his part, contends that he could perform the job, or a modified version
thereof, in the months leading up to his termination in March 2020. On December 19, 2020, Plaintiff’s daughter sent Defendant
an updated work status note from another physician (December Note), which
allegedly reduced Plaintiff’s medical restrictions. (Gunther Decl., ¶12; Ex. 12.)
Moreover, Defendant’s employees testified that the majority of equipment
Plaintiff used for his job weighed less than thirty pounds, which the updated
restrictions in the December Note permitted. (Gunther Decl., ¶ 3, 6; Ex. 2, 115:21-25,
116:9-15, 117:5-10, 117:11-21; Ex. 5, 27:1-13, 27:23-28, 27:14-22, 28:12-29,
44:4-17, 48:14-49.) However, Defendant made no effort to modify
Plaintiff’s position in light of the December Note. (Opp. at p. 11:4-11.)
Plaintiff
also contends that he applied to be Defendant’s custodian in November of 2019. But
Defendant’s effort to assess whether Plaintiff could perform the functions necessitated
by that role were lacking (Gunther Decl., ¶ 3, 7;
Ex. 2, 99:1-7; Ex. 6, 46:4-12, 56:10-17, 55:1-5.) Moreover, Plaintiff provides
an email from November 3 suggesting Defendant had no intention of considering
Plaintiff for the position in the first place (Decl. Gunther, ¶ 6; Ex. 6.) True,
Defendant in turn has submitted evidence that Plaintiff emailed Defendant on
November 20 to cancel his interview for the custodial position because of his
medical limitations. (Decl. Sandhu, ¶ 2; Ex. A, 82:3-83:18.) However, Defendant did not reconsider
Plaintiff for the custodial position after it received the December Note with
Plaintiff’s relaxed health restrictions. (Opp., at 12:5-9.)
Thus,
there is a triable issue of fact as to whether Plaintiff could perform the
essential functions of his job either with or without accommodations.
There is a Triable Issue of
Material Fact as to Whether Defendant Terminated Plaintiff’s Employment
Because of His Disability and Whether Defendant’s Proffered Reason for the
Termination was Pretextual.
For
the prima facie case, Plaintiff must also prove that he was terminated because
of his disability. (Nealy v. City of Santa Monica, supra, Cal.App.4th
359 at 378.) If the plaintiff establishes a prima facie case, the burden shifts
to the employer to produce evidence of a legitimate, nondiscriminatory reason
for the adverse employment action. (Guz v. Bechtel National, Inc., supra, 24
Cal.4th at 354.) If the employer sustains this burden, the plaintiff must then
have the opportunity to attack the employer's proffered reasons as pretexts for
discrimination, or to offer any other evidence of discriminatory motive. (Id.
at p. 356.)
Defendant submits evidence that it
did not terminate Plaintiff because of his disability. Rather, Defendant simply adhered to its leave policy, which
provides medical leave pursuant to the Family Medical Leave Act (FMLA) and
California Family Rights Act (CFRA). (Phillips Decl., ¶¶ 4-6; Ex. D, E.) Once FMLA/CFRA leave has expired,
Defendant’s policy provides employees with up to six months of supplemental
sick leave. (Phillips Decl., ¶¶ 6-7; Ex. E.) Further, if an employee is unable to return
to work at his original position by the end of the supplemental sick leave, he
will be deemed to have voluntarily resigned. (Phillips Decl., ¶¶ 6-8; Ex. E.) But
if an employee is unable to return to his original position, he will be
considered for any available alternative position for which he has applied.
(Phillips Decl., ¶¶ 6-8; Ex. E.) According to
Defendant, Plaintiff was terminated in March of 2020 because he had exhausted
his supplemental sick leave, he could not return to his former position due to
his medical limitations, and he allegedly did not apply for another available
position. (Phillips Decl., ¶¶
6-8; Ex. E.; Sandhu Decl., ¶ 2; Ex. A., 77:12-78:8.)
Plaintiff in turn submits evidence supporting its
contention that Defendant used its leave policy as a pretext for terminating
Plaintiff based on his disability. (Opp. at 14:15-18.) Defendant’s
employees acknowledge that its accommodation policy requires interactive
discussion with disabled employees if they provide an updated doctor’s note
with new work restrictions. (Gunther Decl., ¶ 4; Ex.1, 50:8-19; Ex. 3, 41:18-42:3;
Ex. 6, 93:24-94:10.) However,
Plaintiff’s evidence suggests Defendant’s employees failed
to initiate follow-up discussions with Plaintiff regarding the December Note in
2019 in the months leading up to his termination in March 2020. (Undisputed
Material Facts (UMF), 142, 144, 211, 215, 216, 217.) The trier of
fact could infer that Defendant used the leave policy as a pretext for
terminating Plaintiff because it did not wish to further accommodate him. Plaintiff
goes on to speculate that Defendant’s leave policy is designed to “weed out
employees with disabilities who need accommodations.” (Opp. at 14: 15-18.) However,
the evidence behind this claim is lacking.
Even
so, a triable issue of fact exists as to whether Defendant terminated Plaintiff
because of his disability and whether Defendant’s leave policy was pretext for
doing so.
Accordingly,
the court denies Defendant’s motion for summary adjudication as to Plaintiff’s
cause of action for disability discrimination.
Failure
to Provide a Reasonable Accommodation
To
establish a failure to accommodate claim, the plaintiff must show: (1) the
plaintiff has a disability covered by the FEHA and (2) the defendant has failed
to reasonably accommodate plaintiff’s disability. (Jensen v. Wells Fargo
Bank (2000) 85 Cal.App.4th 245, 256.)
There
is a Triable Issue of Material Fact as to Whether Defendant Provided Defendant
Reasonable Accommodations.
An employer is liable under the Fair
Employment and Housing Act section 12940, subdivision (m), for failing to
accommodate and employee only if the work environment could have been modified
or adjusted in a manner that would have enabled the employee to perform the
essential functions of the job. (Nadaf-Rahrov v. Neiman Marcus Group, Inc.
(2008) 166 Cal.App.4th 952, 975.)
Defendant
submits evidence that it provided Plaintiff with a reasonable
accommodation—namely, twenty-five weeks of leave, followed by an additional six
months of supplemental sick leave. (UMF 31, 38, 41, 47, 51.) Defendant notes
that “reasonable accommodation does not require the employer to wait
indefinitely for an employee’s medical condition to be corrected.” (Hanson
v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 226-227.) In the case of
Plaintiff, an additional six-months leave would have ended in September of
2020, when he still would have been unable to work according to one physician’s
opinion (Sandhu Decl., ¶ 2; Ex. A, 91:8-12.)
However,
Plaintiff submits evidence suggesting he could have performed a modified
version of his position before the expiration of his supplemental sick leave in
March of 2020. Plaintiff’s daughter sent Defendant the December Note, in which
another physician allegedly relaxed Plaintiff’s work restrictions. (Gunther
Decl., ¶12; Ex. 12.) Defendant’s employees testified that the equipment
Plaintiff used for his job weighed less than thirty pounds, which was below the
limit allegedly imposed on Plaintiff by the updated restrictions in the
December Note. (Gunther Decl., ¶ 3, 6; Ex. 2,
115:21-25, 116:9-15, 117:5-10, 117:11-21; Ex. 5, 27, 28:12-29, 44:4-17,
48:14-49.) A trier of fact could reasonably infer that Plaintiff could have
performed a modified version of his job before the expiration of his
supplemental sick leave.
Thus,
there is a triable issue of fact as to whether Defendant provided Plaintiff a reasonable
accommodation.
Accordingly,
the court denies Defendant’s motion for summary adjudication as to Plaintiff’s
cause of action for Failure to Accommodate.
There is a Triable Issue of
Material Fact as to Whether There Were Any Reasonable Accommodations That Would
Have Allowed Plaintiff to Perform the
Essential Functions of his Position.
Reasonable accommodation may include “reassignment to a
vacant position.” (Gov’t. Code, § 12926.) For summary judgment purposes, the
employer must show the employee is unable to perform the essential functions of
both the former job and any available vacant position to which the employee
might be reassigned as a reasonable accommodation. (Nadaf-Rahrov v. Neiman Marcus Group, Inc.,
supra, 166 Cal.App.4th at pp. 965-966.)
Defendant
submits evidence that, outside supplemental sick leave, there were no
reasonable accommodations for Plaintiff. To begin, Plaintiff’s
injuries prevented him from performing his original position. (Sandhu Decl., ¶
2; Ex. A, 91:8-12, 92:20-93:20.) Moreover, Plaintiff could not perform a
modified version of his position according to one physician, who advised him he
could not work for the rest of 2020. (Sandhu Decl., ¶ 2; Ex. A, 91:8-12.) As
for reassignment to a vacant position, Plaintiff only proposed working in the
cafeteria or as a custodian. (Sandhu Decl., ¶ 2, Ex. A., 104:16-24.) However,
Defendant claims that it does not employ cafeteria workers. (UMF, 70-71.)
Second, Defendant points out that Plaintiff declined to interview for the
custodian position due to his medical restrictions as of November 20, 2019. (Decl. Sandhu, ¶
2; Ex. A, 82:3-83:18.) Third, Defendant cites Plaintiff’s testimony
in which he claims to have no experience, skills, or training outside
landscaping. (UMF, 69.) Additionally, Plaintiff testified that he lacks office
skills, cannot speak English, and only has a sixth-grade education. (UMF 69.) From
this, Defendant infers there were not other reasonable accommodations for
Plaintiff.
As discussed above, Plaintiff contends that his original
position should have been modified in light of the December note’s new
requirements provided by a new physician. (Opp., at 11: 4-7.) Defendant’s
employees testified that many of the original job’s requirements would not run
afoul of the medical restrictions imposed in the note. (Gunther Decl., ¶ 3, 6;
Ex. 2, 115:21-25, 116:9-15, 117:5-10, 117: 11-21; Ex. 5, 27:1-13, 27:23-28,
27:14-22, 28:12-29, 44:4-17, 48:14-49.) True, Defendant did cancel his interview for the
custodial position due to his medical restrictions as of November 20, 2019.
(Decl. Sandhu, ¶ 2; Ex. A, 82:3-83:18.) However, the trier of fact could infer that Plaintiff’s relaxed
restrictions in the December Note would have allowed him to perform the
essential functions of the custodial role.
Thus, a
triable issue of fact exists whether there were any reasonable accommodations for
Plaintiff aside from supplemental sick leave.
Failure
to Engage in the Interactive Process.
It
is unlawful for an employer to “fail to engage in a timely, good faith
interactive process” with a disabled employee to determine effective reasonable
accommodations. (Gov’t. Code, § 12940, subd. (n).)
There
is a Triable Issue of Material Fact as to Whether Defendant Engaged in
a Good Faith Interactive Process.
Once
the interactive process is set in motion, the employer has a continuous obligation to engage in that process in good
faith. (Swanson v. Morongo Unified School Dist. (2014) 232 Cal.App.4th
954, 971.) An employer is not absolved of liability if it took some steps
to work with an employee to identify reasonable accommodations. (Nadaf-Rahrov,
supra, 166 Cal.App.4th at p. 985.) If the employer is responsible for a
later breakdown in the process, it may be held liable. (Ibid.)
Defendant submits evidence that it
engaged in a good faith interactive process with Plaintiff. First, Defendant met
with Plaintiff to review his medical restrictions as of March 2019 and granted
him time off. (Sandhu Decl., ¶ 2; Ex. A., 67:5-68:19,
69:7-14.) Second, Defendant provided Plaintiff supplemental medical leave. (Sandhu
Decl., ¶ 2; Ex. A., 79.) Third, Defendant offered Plaintiff an interview for a
vacant custodial position. (Sandhu Decl., ¶ 2; Ex. A., 80:12-15, 81:11-14.) Fourth,
Defendant met with Plaintiff in November of 2019 to discuss his medical
restrictions and ability to return to his original position. (Sandhu Decl., ¶
2; Ex. A., 84:2-85:16.)
However,
Plaintiff alleges Defendant was responsible for a later breakdown in the interactive
process. That is, Plaintiff’s evidence suggests Defendant failed to initiate
follow-up discussions with Plaintiff regarding his updated medical restrictions
in the December Note. (UMF 142, 144, 211, 215, 216, 217.)
Such inaction runs afoul of Defendant’s own policy. According to Defendant’s
employees, their accommodation policy requires interactive discussion with
disabled employees if they provide an updated doctor’s note with new work
restrictions. (Gunther Decl., ¶¶ 2, 4, 7; Ex.1, 50:8-19; Ex. 3, 41:18-42:3; Ex.
6, 93:24-94:10.) Moreover, Defendant had a continuous obligation to engage in
the interactive process in good faith. (Swanson v. Morongo Unified School
Dist, supra, 232 Cal.App.4th 954, 971.)
Thus,
there is a triable issue of fact whether Defendant engaged in a good faith
interactive process.
There is a Triable Issue of Material
Fact as to Whether There Was Any Reasonable Accommodation that Would
Have Allowed Plaintiff to Perform the
Essential Functions of His Position.
Failure to engage in the good faith
interactive process is unlawful only if a reasonable accommodation was
possible, and this is a matter on which the employee bears the burden of proof.
(Swanson, supra, 232 Cal.App.4th at 971 at pp. 981-982.)
Defendant
claims Plaintiff cannot identify a reasonable accommodation that would have
been available at the time of his termination in March of 2020. As noted above,
Defendant submits evidence that Plaintiff’s injuries prevented him from performing
his original position or a modified version thereof according to one physician.
(Sandhu Decl., ¶ 2; Ex. A, 91:8-12, 92:20-93:20.) Moreover, the custodial
position was not available because Plaintiff himself declined it due to his
medical limitations as of November 20, 2019. (Decl. Sandhu, ¶ 2; Ex. A,
82:3-83:18.) And Plaintiff only had experience as a landscaper, which
foreclosed the possibility of other alternative positions. (UMF 69.)
As
discussed above, Plaintiff contends that his original position should have been
modified in light of the December note’s relaxed restrictions. (Opp., at 11:
4-7.) Indeed, Defendant’s employees testified that many of the job’s
requirements would not violate those relaxed restrictions. (Gunther Decl., ¶ 3,
6; Ex. 2, 115:21-25, 116:9-15, 117:5-10, 117:11-21; Ex. 5, 27, 28:12-29,
44:4-17, 48:14-49.) The Parties did not expressly discuss a modified version of
the original job in light of the December Note because Defendant did not
fulfill its obligations under FEHA (Opp. at 11:4-7; Swanson, supra, 232
Cal.App.4th at 971 [holding that employer has continuous obligation to engage
in the interactive process in good faith]; UMF 142, 144, 211, 215, 216, 217.)
Thus,
there is a triable issue of fact as to whether there were any reasonable
accommodations that would have allowed Plaintiff to perform his job.
Accordingly,
the court denies Defendant’s motion for summary adjudication as to Plaintiff’s
cause of action for failure to engage in the interactive process.
Retaliation
in Violation of Fair Employment and Housing Act (FEHA)
To
establish a prima facie cause for retaliation under FEHA, Plaintiff must show
that (1) he engaged in a protected activity, (2) the employer subjected the
employee to an adverse employment action, and (3) there was a causal link
between the protected activity and the employer’s action. (Gov’t. Code, §
12940, subd. (h); Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.App.4th
1028, 1042.)
There is a Triable Issue of Material
Fact as to Whether a Causal Connection Exists Between Plaintiff’s
Protected Activity and an Adverse Employment Action.
The causal link may be established
by an inference derived from circumstantial evidence such as the proximity in
time between the protected action and allegedly retaliatory employment decision.
(Morgan v. Regents of Univ. of Calif. (2000) 88 Cal.App.4th 52, 69.) An
inference of causation will not arise unless the adverse action occurred within
a relatively short time of the protected activity. (Fisher v. San Pedro (1989)
214 Cal.App.3d 590, 615.)
Defendant
claims there is no temporal proximity between Plaintiff’s protected activity
and the alleged adverse employment action. To that end, Defendant appears to
submit evidence that Plaintiff engaged in the protected activity in February of
2019 when he first requested accommodations and went on leave. (UMF 31.)
Moreover, Defendant appears to argue that the alleged adverse employment action
occurred when Defendant terminated Plaintiff’s employment in March of 2020.
(Reply, at p. 11:14-17.) If so, over one year elapsed between Plaintiff’s
protected activity and the adverse employment action.
Without
citing evidence, Plaintiff appears to argue that he engaged in protected
activities by requesting accommodations from October of 2019 through December
of 2019. (Opp., at 18:2-4.) Plaintiff appears to further argue that he suffered
an adverse employment action when Defendant would not let him return to work during
his supplemental sick leave in October of 2019. (Opp., at p. 17:25-27.) If so,
either days or no time at all elapsed between Plaintiff’s protected activity
and the adverse employment action. In the alternative, Plaintiff appears to
argue that he suffered an adverse employment action when Defendant terminated
his employment in March 2020. If so, the time separating Plaintiff’s protected
activity and the adverse employment action would be anywhere from three to six
months.
Thus,
there is a triable issue of fact as to how much time elapsed between
Plaintiff’s protected activity and the adverse employment action. Consequently,
the court cannot address whether temporal proximity may lead to an inference of
causation for the purposes of Plaintiff’s cause of action for retaliation under
FEHA.
There is a Triable Issue of
Material Fact as to Whether There Was a Legitimate, Non-Retaliatory Reason
for the Termination of Plaintiff’s Employment.
If the employee can prove his prima
facie case for retaliation, the employer must then articulate a legitimate,
nonretaliatory reason for the action taken, and Plaintiff must then prove the
employer’s reason is pretext. (Flait v. North America Watch Corp. (1992)
3 Cal.App.4th 467, 475-476.)
Defendant
submits evidence of a nonretaliatory reason for the termination of Plaintiff’s
employment. As discussed above, Defendant claims that it merely followed its
leave policy, under which an employee’s employment is terminated once his
supplemental sick leave expires and he is unable to perform his former position
or fill a vacant alternative position. (Phillips Decl., ¶¶ 6-8; Ex. E.; Sandhu
Decl., ¶ 2; Ex. A., 77:12-78:8.)
In
his Opposition, Plaintiff fails to address the issue of pretext in the context
of FEHA retaliation. However, Plaintiff does address the issue in the context
of disability discrimination. As discussed above, Plaintiff claims Defendant
used its leave policy as a pretext for terminating Plaintiff based on his
disability. (Opp. at 14:15-18.) Plaintiff has submitted evidence that
Defendant’s employees had a professional obligation to initiate interactive
discussions with disabled employees upon receipt of an updated doctor’s note.
(Gunther Decl., ¶¶ 2, 4, 7; Ex.1, 50:8-19; Ex. 3,
41:18-42:3; Ex. 6, 93:24-94:10.) However, Plaintiff failed to do so after
Plaintiff’s daughter sent his updated doctor’s note on his behalf in December
of 2019. (UMF 142, 144, 211, 215, 216, 217.) The trier of fact could reasonably
infer that Defendant used the leave policy as a pretext for terminating
Plaintiff because it did not wish to further accommodate him in light of the
December Note.
Thus,
there is a triable issue of fact as to whether there was a nonretaliatory
reason for Plaintiff’s termination.
Accordingly,
the court denies Defendant’s motion for summary adjudication as to Plaintiff’s
cause of action for retaliation in violation of FEHA.
CFRA
Causes of Action
Any issues pertaining to the CFRA
are now moot because Plaintiff voluntarily dismissed those claims.
Failure
to Prevent Discrimination and Retaliation
Since
there is a triable issue of fact as to Plaintiff’s underlying causes of action
for discrimination and retaliation, there is also a triable issue of fact for
Plaintiff’s failure to prevent Discrimination and Retaliation claims.
Accordingly,
the court denies Defendant’s motion for summary adjudication as to Plaintiff’s
cause of action for failure to prevent discrimination and retaliation.
Violation
of Labor Code section 1102.5
Labor
Code section 1102.5 “forbids retaliation if the employee disclosed, or the
employer believes he/she disclosed or may disclose, information to certain
government agencies, to those with authority over the employee or authority to
investigate, discover, or correct the employer's violation or noncompliance, or
for providing information to, or testifying before, any public body conducting
an investigation, hearing, or inquiry, if the employee has reasonable cause to
believe that the information discloses a violation of state or federal statute,
or a violation of or noncompliance with a local, state, or federal rule or
regulation, regardless of whether disclosing the information is part of the
employee's job duties.” (Lab. Code, § 1102.5, subd. (b).)
The whistleblower statute also forbids retaliation “against an employee for refusing to participate in
an activity that would result in a violation of state or federal statute, or a
violation of or noncompliance with a local, state, or federal rule or regulation.”
(Lab. Code, § 1102.5,
subd. (c).)
Defendant
submits evidence that Plaintiff never reported a violation of a statute or
regulation to anyone. (UMF 80.) However, Plaintiff claims that he refused to participate
in an activity that would have resulted in a violation of FEHA. (Opp., at
19:1-3.) That is, Plaintiff allegedly refused to return to work because
Defendant had failed to discuss possible accommodations in light of the
December Note. (UMF 142, 144, 211, 215, 216, 217.) If Plaintiff had returned to
work in December 2019, then, there would have been potential FEHA violations
due to Defendant’s failure to engage in the interactive process and provide a
reasonable accommodation.
Thus,
there is a triable issue of fact whether Defendant violated Labor Code section
1102.5, subdivision (c).
The
court denies Defendant’s motion for summary adjudication as to Plaintiff’s
cause of action for violation of California Labor Code section 1102.5.
Wrongful
Termination in Violation of Public Policy
Since there is a triable issue of
fact as to Plaintiff’s underlying FEHA claims, there is a triable issue of fact
as to this claim as well.
The
court denies Defendant’s motion for summary adjudication as to Plaintiff’s
cause of action for wrongful termination in violation of public policy.
Punitive
Damages
Punitive damages may be awarded in
civil actions for FEHA violations. (Commodore Home Systems, Inc. v. Sup. Ct.
(Brown) (1982) 32 Cal.3d 211, 221.) Such awards are based on the standards
set forth in Civil Code section 3294. (Weeks v. Baker & McKenzie (1998)
63 Cal.App.4th 1128, 1147-1148.) The plaintiff must prove by clear and
conniving evidence that the defendant has been guilty of oppression, fraud, or
malice. (Civ. Code, § 3294).
Malice
means conduct which is intended by the defendant to cause injury to the
plaintiff or despicable conduct which is carried on by the defendant with a
willful and conscious disregard of the rights or safety of others. (Ibid.)
Oppression means despicable conduct that subjects a person to cruel and unjust
hardship in conscious disregard of that person's rights. (Ibid.) Fraud
means an intentional misrepresentation, deceit, or concealment of a material
fact known to the defendant with the intention on the part of the defendant of
thereby depriving a person of property or legal rights or otherwise causing
injury. (Ibid.)
There
is No Triable Issue of Fact as to Whether Mendal Ide and Carly Mischke Are Managing Agents for Punitive Damages
Purposes.
Punitive damages may be imposed on a
private employer for acts of an employee or agent if a managing agent was
personally guilty of oppression, fraud or malice toward the plaintiff. (Flores
v. Autozone West, Inc. (2008) 161 Cal.App.4th 373, 386.) Managing agent includes
only those corporate employees vested with substantial discretionary authority
over decisions that ultimately determine corporate policy regarding the matter
as to which punitive damages are sought. (White v. Ultramar, Inc. (1999)
21 Cal.App.4th 563, 566-567.) “[D]iscretionary
authority over . . . corporate policy [refers to] . . . formal policies that affect a substantial
portion of the company and that are the type likely to come to the attention of
corporate leadership. It is this sort of broad authority that justifies
punishing an entire company for an otherwise isolated act of oppression, fraud,
or malice.” (Roby v. McKesson Corp. (2009) 47 Cal.App.4th 686, 714.)
Defendant
demonstrates that Plaintiff’s evidence is lacking. Specifically, Defendant
points to Plaintiff’s evidence that Defendant’s employee Carly Mischke
(Mischke) is “responsible for supervising the custodian department.” (Gunther Decl., ¶ 7, Ex. 6, 46:4-12.) Defendant also
zeroes in on Plaintiff’s evidence that Defendant’s employee Mendal Ide (Ide) “was
the one responsible for engaging in the interactive process with Plaintiff.” (Gunther
Decl., ¶ 3; Ex. 2, 17:5-10; 21:18-23; 38:4-8.) Lastly,
Defendant addresses evidence that Defendant’s Human Resources Department relies
on Ide and Mischke to evaluate employee accommodation requests. (Gunther Decl.,
¶ 3; Ex. 2., 42:9-43:4; 47:19-48:23.) The foregoing evidence does not suggest
that Ide and Mischke shape Defendant’s corporate policy. Rather, it merely shows
that Ide and Mischke implement Defendant’s policies. The rest of the evidence
Plaintiff submits in support of its contention that Ide and Mischke are
managing agents for punitive damages purposes falls short for the same reasons.
(UMF, 118, 119, 195-196, 234.)
Thus,
Defendant has met its burden of proving that there is no triable issue of fact
as to whether Ide and Mischke are managing agents for punitive damages
purposes.
Whether
Defendant’s Employees Acted with Oppression, Fraud, or Malice.
The court need not address this
issue because Defendant has already met its burden of demonstrating that
Plaintiff cannot obtain punitive damages because there is not triable issue of
material fact as to whether Ide and Mischke were managing agents.
Accordingly,
the court grant summary adjudication with respect to the punitive damages
issue.
CONCLUSION
Based
on the foregoing, the court grants Defendant’s motion for summary adjudication as
to the punitive damages issue. The court denies Defendant’s motion for summary
adjudication as to Plaintiff’s causes of action for disability discrimination, failure
to engage in the interactive process, failure to accommodate, retaliation in
violation of FEHA, failure to prevent discrimination or retaliation, violation
of Labor Code section 1102.5, and wrongful termination in violation of public
policy. The court notes that Plaintiff voluntarily dismissed its causes of
action for violation of the CFRA and retaliation in violation of the CFRA.
Plaintiff
is ordered to give notice of this ruling.
IT
IS SO ORDERED.
DATED: ¿March 24, 2023
_____________________________
Colin P. Leis
Judge of the Superior Court