Judge: Daniel S. Murphy, Case: 22STCV19939, Date: 2023-09-20 Tentative Ruling

Case Number: 22STCV19939    Hearing Date: September 20, 2023    Dept: 32

BACKGROUND

            Plaintiff Joel Solis initiated this employment discrimination action against his defendant employers on June 16, 2022. The operative First Amended Complaint, filed October 18, 2022, asserts (1) disability discrimination; (2) retaliation; (3) failure to prevent; (4) failure to accommodate; (5) failure to engage; (6) wrongful termination; (7) violation of CFRA; (8) interference with CRFA rights; (9) defamation; (10) violation of Labor Code section 1102.5; (11) section 226; and (12) section 98.6.

            Plaintiff alleges that he was wrongfully terminated in December 2020 after requesting leave for a COVID infection. (FAC ¶ 8.) Plaintiff claims that he was criticized for taking leave and was asked to return to work despite informing Defendants that he did not feel well. (Ibid.) Plaintiff’s grandmother also passed away at around the same time, and Plaintiff alleges that despite being granted bereavement leave, Defendants terminated him on pretextual grounds. (Ibid.) Plaintiff alleges that he protested Defendants’ attempt to punish him for taking leave and reminded Defendants that he was still recovering from COVID and was suffering emotional distress from his grandmother’s death. (Id., ¶ 9.) Plaintiff alleges that instead of accommodating him, Defendants terminated him because they did not want to provide more leave in the future. (Ibid.) Plaintiff alleges that Defendants also interfered with his CFRA rights by failing to notify him of his eligibility to use leave. (FAC ¶ 10.) Plaintiff also alleges that Defendants defamed him by falsely claiming that he took more bereavement leave than permitted. (Ibid.) Plaintiff concludes that he was ultimately terminated for using sick leave. (Id., ¶ 13.)

            On July 6, 2023, Defendants filed the instant motion for summary judgment or adjudication in the alternative. Plaintiff filed his opposition on September 6, 2023. Defendants filed their reply on September 15, 2023.

LEGAL STANDARD

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) Code of Civil Procedure section 437c, subdivision (c) “requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) “The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.” (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67, citing FPI Development, Inc. v. Nakashima (1991) 231 Cal. App. 3d 367, 381-382.)

As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (Code Civ. Proc., § 437c, subd. (p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.) Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.) 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.)

EVIDENTIARY OBJECTIONS

Plaintiff’s Objections to Defendants’ Evidence:

• Plaintiff’s objections are overruled.

Defendants’ Objections to Plaintiff’s Evidence:

• The following objections are sustained: 16, 17.
• The following objections are overruled: 1-10, 13, 14, 20.
• The remaining objections are not material to the Court’s ruling. (See Code Civ. Proc., § 437c(q).)

DISCUSSION

I. Disability Discrimination

a. Prima Facie Case

To establish a prima facie case of disability discrimination under the Fair Employment and Housing Act (“FEHA”), Plaintiff must show: (1) he suffers from a disability; (2) he is otherwise qualified to do his job; and (3) he was subjected to an adverse employment action because of his disability. (Faust v. California Portland Cement Co. (2007) 150 Cal.App.4th 864, 886.)

Defendants attack the first element, arguing that COVID is not a qualifying disability. “Disability” does not include “conditions that are mild, which do not limit a major life activity, as determined on a case-by-case basis. These excluded conditions have little or no residual effects, such as the common cold; seasonal or common influenza; minor cuts, sprains, muscle aches, soreness, bruises, or abrasions; non-migraine headaches, and minor and non-chronic gastrointestinal disorders.” (Cal. Code Regs. tit. 2 § 11065(d)(9)(B).)

Defendants rely on Roman v. Hertz Local Edition Corp. (S.D. Cal. May 16, 2022) 2022 WL 1541865, which granted summary judgment against a plaintiff who claimed she suffered from a disability due to COVID. The court in Roman held that “[w]hen it presents with temporary symptoms akin to the common cold or seasonal flu, COVID-19 will fall outside the FEHA definition of ailments considered a disability, pursuant to § 11065(d)(9)(B).” (Id., at *5.) In that case, the court found that “the undisputed evidence is that [the plaintiff’s] symptoms met the regulation's definition of ‘mild.’” (Id., at *6.)

Roman is not binding authority, and in any case acknowledges that “FEHA requires that COVID-19 infections be analyzed on a fact-based determination to decide whether they qualify as a disability.” (Roman, supra, 2022 WL 1541865, at *6.) The Code of Regulations that Defendants rely on also dictates that the mildness of a condition is “determined on a case-by-case basis.” (See Cal. Code Regs. tit. 2 § 11065(d)(9)(B).) “[T]he court must construe the FEHA broadly, not … restrictively.” (Soria v. Univision Radio Los Angeles, Inc. (2016) 5 Cal.App.5th 570, 583.) Therefore, the trier of fact should determine whether Plaintiff’s COVID in this particular case constitutes a disability.

b. Legitimate Justification

Defendants argue they had a valid reason for terminating Plaintiff. Specifically, Plaintiff had received multiple progressive disciplines for excessively calling off from work. (UF 4-9, 52.) This culminated in Plaintiff failing to report for scheduled shifts on December 26-27, 2020 under the erroneous assumption that he had been granted bereavement leave for those days. (UF 43-51.)

On the other hand, Plaintiff testified that supervisor Mimi Mangune agreed to his bereavement leave request for December 26 and 27, 2020. (Plntf.’s Resp. to UF 46.) Ms. Mangune denies making this approval, but that is a factual issue. A reasonable trier of fact may find that Defendants approved Plaintiff’s bereavement leave and then used Plaintiff’s absence as an excuse to terminate him, which demonstrates pretext. Although Plaintiff does not deny receiving progressive discipline in the past, Defendants did not terminate Plaintiff until the bereavement issue from December 26-27, 2020. A reasonable trier of fact may find that the prior disciplines, by themselves, were insufficient to warrant termination.

In sum, there is a triable issue over the discrimination claim.

II. FEHA Retaliation   

            To establish a prima facie case of retaliation under the FEHA, a plaintiff must show: (1) she engaged in a protected activity; (2) the employer subjected the employee to an adverse employment action; and (3) a causal link existed between the protected activity and the employer’s action. (Yanowitz v. L’Oreal USA, Inc. (2007) 36 Cal.4th 1028, 1042.)

            Defendants first reiterate that Plaintiff did not have a qualifying disability and therefore conclude that Plaintiff necessarily did not engage in protected activity by requesting accommodation for COVID. However, as discussed above, there is a triable issue over whether Plaintiff suffered a qualifying disability. Furthermore, not only did Plaintiff request leave for COVID, Plaintiff avers that he also requested 14 days of quarantine after Defendants attempted to make him return earlier. (Solis Decl. ¶ 5.) A reasonable trier of fact may find that Plaintiff engaged in protected activity.

            Defendants argue that Plaintiff cannot prove he was terminated “because of” his request for accommodation even if it constitutes protected activity. Specifically, Defendants contend that the decisionmakers were unaware of Plaintiff’s protected activity because at the end of the quarantine period, Plaintiff himself reported he had no more symptoms and was ready to return to work. (UF 38-40.) However, the protected activity at issue here is requesting the COVID accommodation in the first place. That Defendants granted Plaintiff’s leave request, and Plaintiff was ready to return to work afterwards, does not foreclose the possibility that Defendants retaliated against Plaintiff for requesting the leave. The temporal proximity between Plaintiff requesting COVID leave and his termination raises a reasonable inference of retaliation. (See Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 615.)   

            Lastly, Defendants incorporate their prior arguments regarding legitimate justification. As discussed above, there is a triable issue over Defendants’ proffered justification.

            Therefore, there is a triable issue over the retaliation claim.

III. Failure to Engage/Accommodate

            The prima facie elements of a failure to accommodate cause of action are: (1) the plaintiff suffers from a disability covered by the FEHA; (2) the plaintiff can perform the essential functions of the position if the requested accommodation(s) are granted; and (3) the defendant has failed to reasonably accommodate plaintiff’s disability. An employer, however, is not liable for failing to accommodate a disability of which it had no knowledge. (Prillman v. United Air Lines Inc. (1997) 53 Cal.App.4th 935, 954.) The FEHA also makes it an unlawful employment practice for an employer to fail to engage in a timely, good-faith interactive process to determine a reasonable accommodation for the employee’s known disability. (Gov. Code, § 12940(n).)

            Here, Plaintiff was indisputably granted leave for COVID and did not inform Defendants of any other condition or request any other accommodation. (UF 73.) At the end of the quarantine period, Plaintiff told Ms. Mangune that he was no longer experiencing symptoms and that he was ready to return to work. (UF 38-40.) Plaintiff also does not dispute that he was granted leave for prior unrelated injuries. (See, e.g., UF 10.) In any case, Plaintiff never alleged these prior leave requests as the basis of his claims. Based on these facts, no reasonable jury would find that Defendants failed to engage or accommodate Plaintiff.

            Plaintiff attempts to raise a triable issue by arguing that he was terminated for his absences even though he had valid medical reasons each time. This describes retaliation, not a failure to accommodate. Plaintiff offers no legal support for his theory that “[p]urporting to grant leave, and then taking it away, demonstrates that a reasonable accommodation was purportedly offered, but taken away after the fact, using pretext.” (See Opp. 17:24-27.) Defendants did not “purportedly offer” to grant leave; they actually granted leave, and Plaintiff took the leave. Plaintiff does not explain how medical leave can be taken away after it has already been provided and used. Defendants may have later decided to retaliate against Plaintiff for requesting an accommodation, but that does not affect whether the accommodation itself was provided.   

            Therefore, as a matter of law, Defendants did not fail to accommodate or engage with Plaintiff under FEHA.  

IV. CFRA Interference

            CFRA makes it unlawful for an employer “to interfere with, restrain, or deny the exercise of, or the attempt to exercise, any right” provided by CFRA. (Gov. Code, § 12945.2(q).) “A CFRA interference claim consists of the following elements: (1) the employee's entitlement to CFRA leave rights; and (2) the employer's interference with or denial of those rights.” (Moore v. Regents of University of California (2016) 248 Cal.App.4th 216, 250.) “Any violation of CFRA or these implementing regulations constitutes interfering with, restraining, or denying the exercise of rights provided by CFRA.” (Cal. Code Regs., tit. 2, § 11094(a).)

            a. Serious Health Condition

            A “‘[s]erious health condition’ means an illness, injury, impairment, or physical or mental condition that involves either of the following: (A) Inpatient care in a hospital, hospice, or residential health care facility. (B) Continuing treatment or continuing supervision by a health care provider.” (Gov. Code, § 12945.2(b)(13).) Defendants argue that because Plaintiff did not stay in a hospital or receive continuing treatment, Plaintiff did not suffer from a “serious health condition” under CFRA.

However, whether an employee actually sought medical treatment is not dispositive in determining whether the employee had a serious medical condition. (See Soria v. Univision Radio Los Angeles, Inc. (2016) 5 Cal.App.5th 570, 601-02 [finding triable issue despite the fact that employee had not decided whether to obtain surgery, and therefore did not receive inpatient care, at the time of her termination].) “[A]s the moving party [Defendant], not [Plaintiff], ha[s] the burden to present undisputed facts that [Plaintiff’s] condition did not need “‘continuing treatment.’” (Id. at p. 602.) Therefore, there is a triable issue over whether Plaintiff had a serious medical condition.

b. Notice Requirement

 “Employers subject to the CFRA are required to provide notice to their employees of the right to request CFRA leave.” (Moore, supra, 248 Cal.App.4th at p. 252; Cal. Code Regs., tit. 2, § 11095(a).) Defendants contend that they satisfied this notice requirement by providing an employee handbook outlining CFRA leave. (UF 2.)

However, upon “verbal notice sufficient to make the employer aware that the employee needs CFRA leave,” an employer is also required to “inquire further of the employee if necessary to determine whether the employee is requesting CFRA leave and to obtain necessary information concerning the leave (i.e., commencement date, expected duration, and other permissible information).” (Cal. Code Regs., tit. 2, § 11091(a)(1).) “Under all circumstances, it is the employer's responsibility to designate leave, paid or unpaid, as CFRA or CFRA/FMLA qualifying, based on information provided by the employee or the employee's spokesperson, and to give notice of the designation to the employee.” (Id., § 11091(a)(1)(A).) “The record here, at the very least, creates a triable issue of fact as to whether [Plaintiff’s] statements concerning time off for [COVID] were sufficient to trigger [Defendants’] obligation to inquire further into the details of [Plaintiff’s] request.” (See Soria, supra, 5 Cal.App.5th at p. 603.)

A reasonable trier of fact may find that Plaintiff sufficiently placed Defendants on notice of a serious health condition qualifying for CFRA leave and that Defendants failed to discharge their obligation to inquire further or notify Plaintiff of the designation. (See Soria, supra, 5 Cal.App.5th at p. 603 [“Whether notice is sufficient under CFRA is a question of fact”].)

V. CFRA Retaliation

            CFRA also makes it unlawful to retaliate or discriminate against an employee for exercising their rights under CFRA. (Gov. Code, § 12945.2(k).) Defendants incorporate their prior arguments regarding “serious health condition,” causation, and legitimate justification. As discussed above, there are factual disputes regarding those issues. Therefore, summary adjudication is not warranted on the CFRA retaliation claim.

VI. Wrongful Termination

            Defendants argue that because Plaintiff’s FEHA claims fail, his derivative wrongful termination claim fails as well. However, as discussed above, Plaintiff’s FEHA claims survive. Therefore, so does the wrongful termination claim.

VII. Failure to Prevent

            Defendants argue that because Plaintiff’s FEHA claims fail, his derivative failure to prevent claim fails as well. However, as discussed above, Plaintiff’s FEHA claims survive. Therefore, so does the failure to prevent claim.  

VIII. Defamation

            Plaintiff alleges that Ms. Mangune defamed him by calling him unreliable and making statements about his unavailability and missing scheduled work dates. (UF 87.) Defamation is subject to a one-year statute of limitations. (Code Civ. Proc., § 340(c).) At the latest, Plaintiff was aware by February 2021 that Ms. Mangune had made statements about his unavailability and absences. (UF 89.) However, Plaintiff did not file this lawsuit until June 2022, more than one year later. Therefore, the claim is time-barred as a matter of law.

IX. Labor Code Section 226

            “An action upon a statute for a penalty or forfeiture” is subject to a one-year statute of limitations. (Code Civ. Proc., § 340(a).) Plaintiff seeks penalties under Labor Code section 226 for failure to provide accurate wage statements. (FAC ¶¶ 97, 102.) However, Plaintiff does not dispute that the conduct giving rise to the violation occurred more than one year prior to his filing of the complaint. Plaintiff was terminated and received his final paycheck in December 2020. (UF 54.) Plaintiff filed this lawsuit in June 2022. Therefore, the claim is time-barred as a matter of law.

X. Labor Code Section 1102.5

            Labor Code section 1102.5, subdivision (b) makes it unlawful for an employer to retaliate against an employee for reporting a perceived violation of a local, state, or federal statute or regulation. “[O]nce it has been demonstrated by a preponderance of the evidence that an activity proscribed by Section 1102.5 was a contributing factor in the alleged prohibited action against the employee, the employer shall have the burden of proof to demonstrate by clear and convincing evidence that the alleged action would have occurred for legitimate, independent reasons even if the employee had not engaged in activities protected by Section 1102.5.” (Id., § 1102.6.) The traditional McDonnell-Douglas framework does not apply, and the plaintiff is not required to rebut with evidence of pretext. (Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703, 712.)

            As discussed above, there are triable issues over Plaintiff’s FEHA and CFRA retaliation claims, which results in a triable issue over the derivative Labor Code whistleblower claim.

XI. Labor Code section 98.6

            Labor Code section 98.6 prohibits retaliation against an employee who has “engaged in any conduct delineated in this chapter.” (Lab. Code, § 98.6(a).) Defendants argue that Plaintiff did not engage in protected activity under Section 98.6 because he did not initiate a claim before the Labor Commissioner. However, that is only one of the protected activities covered under Section 98.6. Section 98.6 also covers “any conduct delineated in this chapter, including the conduct described in . . . Chapter 5 (commencing with Section 1101) of Part 3 of Division 2 . . . .” (Ibid.) Chapter 5 includes Section 1102.5, which is a valid claim as discussed above. Therefore, Plaintiff has a valid claim under Section 98.6 as well.  

XII. Punitive Damages

            To obtain punitive damages against a corporate employer, a plaintiff must prove that an officer, director, or managing agent of the corporation either (i) personally engaged in oppression, fraud, or malice, or (ii) ratified such an act. (Civ. Code, § 3294(b).)

            Defendants simply declare without citing evidence that no officer, director, or managing agent ratified or engaged in malicious conduct. Defendants have not foreclosed a triable issue over whether the decisionmakers behind Plaintiff’s termination were officers, directors, or managing agents. The initial burden on summary judgment lies with Defendants, not Plaintiff. Therefore, a triable issue remains as to punitive damages.

CONCLUSION

            Defendants’ motion for summary judgment is DENIED. Defendants’ alternative motion for summary adjudication is GRANTED as to the ninth and eleventh causes of action and DENIED in all other respects.