Judge: Gail Killefer, Case: 21STCV43704, Date: 2024-01-22 Tentative Ruling
Case Number: 21STCV43704 Hearing Date: January 22, 2024 Dept: 37
HEARING DATE: Monday, January 22, 2024
CASE NUMBER: 21STCV43704
CASE NAME: Joseph R.B. Hanson v. Granite Construction Company
MOVING PARTY: Defendant Granite Construction
Company
OPPOSING PARTY: Plaintiff Joseph R.B. Hanson
TRIAL DATE: 20 March 2024
PROOF OF SERVICE: OK
PROCEEDING: Motion for Summary
Judgment or, in the alternative, Summary Adjudication of Issues
OPPOSITION: 4 January 2024
REPLY: 12
January 2024
TENTATIVE: Defendant’s Motion for Summary Judgment is
denied; Defendant’s Motion for Summary Adjudication as to the First through
Fifth Causes of Action is denied, and is granted as to
Plaintiff’s Request for Punitive Damages.
Background
On November 30, 2023, Joseph
R.B. Hanson (“Plaintiff”) filed a Complaint against Granite Construction
Company (“Defendant”); Teresa Acuna; and Does 1 to 100.
The Complaint alleges five
causes of action: (1) Disability Discrimination in Violation of the Faire Employment
and Housing Act (“FEHA”); (2) Breach of Duty to Prevent Harassment and
Retaliation in Violation of the FEHA; (3) Retaliation in Violation of FEHA; (4) Failure to Accommodate Disability in
Violation of the FEHA; and (5) Failure/Refusal to Engage in the Interactive
Process.
On September 15, 2023, the
Defendant filed a Motion for Summary Judgment or, in the alternative, for Summary
Adjudication. Plaintiff opposes the
Motion. The matter is now before the court.
I. Legal Standard
The purpose of a motion for summary judgment or summary
adjudication “is to provide courts with a mechanism to cut through the parties’
pleadings in order to determine whether, despite their allegations, trial is in
fact necessary to resolve their dispute.”¿(Aguilar v. Atl. 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.) Summary adjudication may be granted as to one or more
causes of action within an action, or one or more claims for damages. (CCP §
437c(f).)¿¿¿¿¿¿¿¿¿¿¿
¿¿¿¿¿¿
A defendant moving for summary judgment bears two burdens:
(1) the burden of production – presenting admissible evidence, through material
facts, sufficient to satisfy a directed verdict standard; and (2) the burden of
persuasion – the material facts presented must persuade the court that the
plaintiff cannot establish one or more elements of a cause of action, or a
complete defense vitiates the cause of action. (CCP § 437c(p)(2);¿Aguilar,¿supra,
25 Cal.4th at p. 850-851.) A defendant may satisfy this burden by showing that
the claim “cannot be established” because of the lack of evidence on some
essential element of the claim.¿¿(Union Bank v. Superior Court (1995) 31
Cal.App.4th 574, 590.)¿¿Once the defendant meets this 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 defense thereto.”¿(Ibid.)¿¿¿¿¿¿¿¿¿¿
¿¿¿¿¿¿
“On ruling on a motion for summary judgment, the court is
to ‘liberally construe the evidence in support of the party opposing summary
judgment and resolve doubts concerning the evidence in favor of that party.’” (Cheal
v. El Camino Hospital¿(2014) 223 Cal.App.4th 736, 760.) On a summary
judgment motion, the court must therefore consider what inferences favoring the
opposing party a factfinder could reasonably draw from the evidence. While
viewing the evidence in this manner, the court must bear in mind that its
primary function is to identify issues rather than to determine issues.
[Citation.]” (Binder v. Aetna Life Ins. Co.¿(1999) 75
Cal.App.4th¿832, 839.)¿¿¿¿¿¿¿
¿¿¿¿¿¿
Defeating summary judgment requires only a single disputed
material fact. (See CCP § 437c(c) [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”] [italics added].) Thus, any disputed material fact means the
court must deny the motion – the court has no discretion to grant summary
judgment. (Zavala v. Arce (1997) 58 Cal.App.4th 915, 925, fn. 8; Saldana
v. Globe-Weis Systems Co. (1991) 233 Cal.App.3d 1505, 1511-1512.)¿¿¿¿¿
II.
Plaintiff’s Evidentiary Objections
Plaintiff’s
evidentiary objections to the Declaration of Michael Vincent:
Objection Nos. 1, 2, 4, 6, 8, 14, and
15, are sustained.
Objections Nos. 3, 5, 7, 9, 10, 11,
12, 13, 16, and 17 are overruled.
III. Defendant’s Evidentiary Objections
Defendant submits evidentiary
objections to the declaration of Joseph R.B. Hanson:
Objections Nos. 4,
9, 11, 12, 14, and 16 are overruled.
Objections Nos. 6, 7, 8, 10, 13, 20, 21, 22, 23, 33, 34, 35,
37, 38, 39, 40, 42, 43, 44, and 47 are sustained.
The
court declines to rule on objections nos. 1, 2, 3, 5, 15, 17, 18, 19,
24, 25, 26, 27, 28, 29, 30, 31, 32, 36, 41, 45, and 46, as the objections
are not material to the court’s disposition of this Motion. (CCP §
437c(q).) All objections not ruled upon
are preserved for appeal.
IV. Discussion
A. Statement of Facts
The following facts are undisputed unless
the fact is supported by citation to the evidence.
Plaintiff began working for Defendant in
July 2015 as a concrete worker. (Undisputed Material Fact (“UMF”) 1; Compl. ¶
7.) At the time Plaintiff was hired, he
identified “deafness” as a disability he had but that did not require
accommodation. (UMF 4.) On April 30, 2020, Plaintiff was working on Highway 126
when a semi-truck drove by and an unknown object from the roadway flew up and
hit Plaintiff on the right side of the face. (UMF 6.)
The injury to Plaintiff’s face was
serious enough that first aid was administered.
Defendant’s on-site medical provider, OccuCare, diagnosed Plaintiff over
the phone and told Plaintiff he would be good in three days. (Defendant’s
Compendium of Evidence (“DCOE”) Ex. C [Plaintiff Depo at p. 38:3-22].) OccuCare
told Plaintiff to keep the wound clean, apply Neosporin, administer ice, and
take Ibuprofen for the pain and swelling. (UMF 14.) For the remainder of the
workday, Plaintiff remained sitting in the Granite truck resting. (UMF 15.)
Plaintiff was not hospitalized overnight and was not treated in the emergency
room or urgent care for his injury. (UMF 20.) Plaintiff alleges that although he was not
told he could go to the emergency room to be treated, he was never told he
could not receive medical treatment for the injury or that he needed to report
to work the next day. (DCOE Ex. C [Plaintiff Depo at pp. 48:22- 49:2.].) The
incident was reported to Defendant by Project Engineer Albert Larios. (Vincent
Decl. ¶ 7, Ex. F.)
On Friday, May 1, 2020, Plaintiff took 5
to 10-minute breaks every 30 to 45 minutes to check his injury. (UMF 22.) The
Plaintiff did not see a doctor, and he took the next week off work due to his
injury, but not under orders from a doctor. (DCOE Ex. C [Plaintiff Depo at pp.
79:24-80:7.]; Hanson Decl. ¶ 13.) During the week Plaintiff took off, Andrew
Burk, the construction manager, and Scott McArthur, the Vice President of the
Southern California Division reached out to Plaintiff to inform him he should
take off as much time as he needed to feel better. (Id. Plaintiff Depo
at pp. 82:1-17, 83:6-13.) Plaintiff returned to work the following week; he did
not see a doctor nor obtain a doctor’s note stating he could return to work
without any restrictions. (Id. Plaintiff Depo at pp. 83:23-25.)
Plaintiff therefore returned to work with no restrictions. (Id.) Plaintiff
was able to do his tasks, specifically pouring concrete, but continued to
experience numbness from the injury. (UMF 32.)
At his deposition, Plaintiff states he
experiences numbness, that it “bugs” him, but that it did not impact his
ability to do day-to-day activities. The
pain from his injury did, however:
Q:
Okay. So the numbness does not impact your ability to do day-to-day activities;
correct?
A:
Correct.
Q:
How about the pain? Does the pain impact your ability to do day-to-day
activities?
A:
Yeah. Because the pain gets a little extreme. It's like all the time at about a
5, 6. And then I get sharp pains through my right ear and then shooting up
where the actual impact was up towards the top of my head. And that was just --
it's -- it's beyond belief. So it stops you. You can't think. You can't work.
Sometimes my eye goes a little fuzzy when it does the pain. So, you know, it's
-- you just don't do very well working like that. I've got to stop.
Q
And how often does that happen?
A:
Well, I mean, it's painful. It's always in pain, but probably once a week I get
a shot of pain like that that's just crazy.
(Plaintiff’s Depo. at
pp. 86:20 - 87:12)
Plaintiff testified that the injury
healed “but the pain wasn’t going away, and the numbness ain’t gone away.”
(Plaintiff’s Depo. at p. 93:1-7.) Plaintiff also testified that he experienced
jaw pain that impacted his major life activities and prevented him from working
because it required him to not go to work or take breaks. (Plaintiff’s Depo. at
p 90:18-91:14.) Plaintiff also stated he experienced sinus issues, but it did
not impact his ability to carry out his job duties. (Plaintiff’s Depo. at p
89:1-23.) Plaintiff was never told he could not take breaks, he could lift 25
pounds on his own, and he was able to complete his job duties and assigned
tasks in his foreman capacity. (UMF 35-38, 43 45, 47.)
After the injury, three separate safety
employees periodically checked in on the Plaintiff, including Mark McKane (“McKane”).
(Plaintiff’s Depo. at p. 92:1725.) Sometime in
March 2021, Defendant filed a workers’ compensation claim on behalf of
Plaintiff after Plaintiff told McKane that his injury was not getting better,
and he needed to go to a doctor. (UMF 52, 56.) McKane scheduled a doctor’s
appointment and took Plaintiff to see Dr. Steven Greene. (UMF 53.)
Plaintiff asserts he received substandard
care from Dr. Greene because although he received a CT scan that found no
evidence of a present fracture, no X-rays, MRI, or other neurological tests or
treatments were performed. (Plaintiff’s Undisputed Material Facts (“PUMF”) 20,
21.) Dr. Greene also referred Plaintiff to a neurologist, Jay Jurkowitz, who
did not perform an MRI and did no further neurological testing, but instead
prescribed Gabapentin. Plaintiff was
unable to pick up the prescription because Dr. Jurkowitz put the wrong name on
the prescription. (UMF 55; PUMF 22.) Neither Dr. Greene nor Dr. Jurkowitz
provided Plaintiff with any work restrictions. (Plaintiff’s Depo. at pp.
120:22-121:4; 121:22-122:6; 122:22-12:1.) Plaintiff did not see any other
neurologist referred by CNA, Defendant’s worker’s compensation insurer. (UMF
63.) Plaintiff also admitted that between April 30, 2020, to November 2, 2021, he
was not diagnosed with a disability. (Plaintiff’s Depo. at p. 124:10-10.) Plaintiff
did not request a reasonable accommodation for the facial injury until November
2, 2021, when he asked Michael Vincent if he could step down as foreman. (UMF
30.)
At his deposition, Plaintiff testified
that he called Michael Vincent to “inform[] him I was stepping down. I would
like to step down.” (Plaintiff’s Depo. at p. 142:21-22.)
A: I told him that I
would like to step down as – from being foreman, so I can deal with what was
going on here. And he got extremely mad, kind of raised his voice and then said
fine. Turn in your truck [sic]. Thanks. And hung up the phone on me.
(Plaintiff’s
Depo. at p. 143:3-8.) Plaintiff stated that he did not call Vincent back to explain
he wanted to be “the actual carpenter” rather than have foreman duties. When Vincent called him back about the work
truck, he informed Plaintiff that Plaintiff did not have a job. (Plaintiff’s Depo. at p. 145:6-146:8.)
According to Vincent, Plaintiff
called him on November 2, 2021, to state that he did not want to accept sawcutting
duties: “Mr. Hanson told me something along the lines of, ‘I’m not a sawcutter.
This is all bullshit. If this is all you have for me, I’m just going to park my
truck.’ “ (Vincent Decl. ¶ 10.) Vincent
states that in the industry “park my truck” means to resign and turn in the
company vehicle. (Ibid.) Vincent
took Plaintiff’s alleged words to mean Plaintiff voluntarily resigned. (Ibid.)
Plaintiff failed to pick up his final check, so it was sent to him via FedEx.
(Plaintiff’s Depo. at pp. 148:24-149:14.) According to Defendant’s HR
documents, the reason for Plaintiff’s job separation is “job abandoned” with
the category of the separation labeled as “voluntary” rather than “involuntary.” (DCOE Shepard Decl. ¶ 8, Shepard Depo. at p.
76:13-77:1.) Plaintiff’s Compendium of Evidence (“PCOE”) Ex. I.)
On November 5, 2021, CNA Claim
Specialist Jeffrey Sentino mailed a letter explaining that because CNA had not
received any recent medical reports or bills in reference to his injury, Plaintiff
should contact CNA if he needed further medical care resulting from his injury
or else his claim file would close. (Plaintiff Depo. at p. 135:20 to 137:22,
DCOE Ex. 14.) Plaintiff did not respond to the letter. (UMF 69.) Plaintiff does
not dispute that he never complained to Defendant’s Human Resources Department
or a supervisor about any wrongful conduct by a supervisor or colleague. (UMF
72.)
Defendant now moves for summary
judgment, or summary adjudication, on the basis that Plaintiff did not have a
qualifying disability warranting an accommodation, Plaintiff never requested an
accommodation, and there is no evidence Plaintiff was denied an accommodation.
B. First Cause of Action – Disability Discrimination
in Violation of the FEHA
“In
cases alleging employment discrimination, we analyze the trial court's decision
on a motion for summary judgment using a three-step process that is based on
the burden-shifting test that was established by the United States Supreme
Court for trials of employment discrimination claims in McDonnell Douglas
Corp. v. Green (1973) 411 U.S. 792, 93 S.Ct. 1817.” (Serri v. Santa
Clara University (2014) 226 Cal.App.4th 830, 860 (Serri).)
“The McDonnell-Douglas
framework is modified in the summary judgment context. In a summary judgment
motion in ‘an employment discrimination case, the employer, as the moving
party, has the initial burden to present admissible evidence showing either
that one or more elements of plaintiff's prima facie case is lacking or that
the adverse employment action was based upon legitimate, nondiscriminatory
factors.’ (Citation.)” (Serri, supra, 226 Cal.App.4th at p. 861.)
“If the employer meets its initial burden, the burden shifts to the employee to
‘demonstrate a triable issue by producing substantial evidence that the
employer's stated reasons were untrue or pretextual, or that the employer acted
with a discriminatory animus, such that a reasonable trier of fact could
conclude that the employer engaged in intentional discrimination or other
unlawful action.’” (Ibid. citing Cucuzza v. City of Santa Clara
(2002) 104 Cal.App.4th 1031, 1038 [italics original].)¿
FEHA prohibits discrimination due to membership in a
protected class. (Gov. Code § 12940(a). The provision extends to terminating a
person’s employment or discriminating against the person in compensation or in
terms, conditions, or privileges of employment. (Ibid.)¿A prima facie
case for disability requires the plaintiff to prove that “he or she (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[.]” (Sandell v. Taylor-Listug, Inc.¿(2010)
188 Cal.App.4th 297, 310.)
i. Defendant
Fails to Show that Plaintiff Did Not Suffer from a Disability
Defendant asserts that Plaintiff failed to provide evidence
that he had a disability under the FEHA because Plaintiff was never given work
restrictions by a doctor nor formally diagnosed with having a disability that
required an accommodation.
Gov. Code § 12926(m) defines “Physical disability” as
including but not limited to the following:
(1) Having any physiological disease,
disorder, condition, cosmetic disfigurement, or anatomical loss that does both
of the following:
(A) Affects one or more of the following
body systems: neurological, immunological, musculoskeletal, special sense
organs, respiratory, including speech organs, cardiovascular, reproductive,
digestive, genitourinary, hemic and lymphatic, skin, and endocrine.
(B) Limits a major life activity. For
purposes of this section:
(i) “Limits” shall be determined without
regard to mitigating measures such as medications, assistive devices,
prosthetics, or reasonable accommodations, unless the mitigating measure itself
limits a major life activity.
“Major life activity
is ‘broadly construed’ and includes working. [Citation.] FEHA protects
individuals not only from discrimination based on an existing physical
disability, but also from discrimination based on a potential disability or the
employer's perception that the individual has an existing or potential
disability.” (Soria v. Univision Radio Los Angeles, Inc. (2016) 5
Cal.App.5th 570, 584 (Soria).)
Defendant fails to cite evidence to
support the proposition that for Plaintiff to have a disability, he must have a
formal diagnosis of a disability by a physician. Plaintiff’s deposition
testimony established he suffered from chronic pain and that this impacted his
ability to work because Plaintiff needed to take breaks, take days off, and
take medication to manage the pain. (Plaintiff’s Depo. at pp. 86:20 - 87:12; 90:18-91:14.) “A physical condition will be considered
a limitation on a major life activity
‘if it makes the achievement of the major life activity
more difficult.’ ” (Soria, supra, 5 Cal.App.5th at p. 588 citing
Gov. Code § 12926(m)(1)(B)(ii); see also Cal. Code Regs., tit. 2, § 1065(l)(3).)
The fact that to complete his job duties, Plaintiff was required to take
breaks, supports the finding that his pain made the ability to complete his job
more difficult.
Accordingly, Defendant failed to show
that Plaintiff did not have a disability under the FEHA.
“[I]f a defendant employer's motion for
summary judgment ‘relies in whole or in part on a showing of nondiscriminatory
reasons for the [adverse employment action], the employer satisfies its burden
as moving party if it presents evidence of such nondiscriminatory reasons that
would permit a trier of fact to find, more likely than not, that they were the
basis for the [adverse action].’ ” (Soria, supra, 5 Cal.App.5th
at p. 592.)
Here, Defendant points to Plaintiff’s deposition testimony,
wherein Plaintiff asked to “step down” as foreman, rather than asking to be
reassigned to a different position. (Plaintiff’s Depo. at p.
143:3-8.) Defendant construed Plaintiff’s statement as him quitting his job and
labeled his termination as “voluntary.” (DCOE Shepard Decl. ¶ 8, Shepard Depo.
at p. 76:13-77:1.) Plaintiff’s Compendium of Evidence (“PCOE”) Ex. I.) The
court finds triable issues as to whether Plaintiff was requesting an accommodation
or whether he was resigning, and as to whether the termination of Plaintiff’s employment
was an adverse employment action.
As Plaintiff has shown triable
issues of material fact exists, summary adjudication is denied as to the first
cause of action for disability discrimination.
C. Third Cause of Action – Retaliation in
Violation of the FEHA
To establish a prima facie case of retaliation, a plaintiff
must show the following: 1) the plaintiff engaged in a protected activity; 2)
the plaintiff was thereafter subjected to adverse employment action by his
employer, and 3) there was a causal link between the two. (Addy v. Bliss
& Glennon (1996) 44 Cal. App. 4th 205, 217 [affirming summary judgment
on a retaliation claim because the plaintiff did not rebut the defendant’s
evidence that it had legitimate, nondiscriminatory business reasons and thus,
there was no causal link between the defendant’s adverse employment actions and
the plaintiff’s filing of a discrimination charge].)
Defendant argues that Plaintiff
never asked for an accommodation for his disability, thus he did not engage in
a protected activity. Plaintiff admitted that he did not request any
accommodation after the incident. (Plaintiff’s Depo. at p. 134:15-18.) Defendant
also argues that Plaintiff cannot show that a causal link exists between his
injury and Plaintiff’s termination. The burden shifts to Plaintiff to show that
triable issues of material fact exist.
In response to the Separate
State of UMF 30, Plaintiff alleges that in November 2021 he asked for an
accommodation by asking Michael Vincent if he could step down as foreman.
(Plaintiff’s Depo. at p. 145:6-146:8.) Assuming that Plaintiff’s request to step
down as foreman can be construed as a request for an accommodation by
requesting reassignment to the position of regular concrete worker, a trier of
fact could find that Plaintiff engaged in a protected activity.
Assuming the trier of fact
finds Plaintiff engaged in a protected activity, there is also a triable issue
as to whether the decision to terminate him was an adverse employment action.
Based on the above,
summary adjudication is denied as to the third cause of action for retaliation.
D. Second Cause of Action – Breach of the Duty to Prevent
Retaliation in Violation of the FEHA
The FEHA makes it unlawful employment practice “[f]or an
employer ... to fail to take all reasonable steps necessary to prevent
discrimination and harassment from occurring.” (Gov. Code, §
12940(k).) Since Plaintiff’s discrimination and retaliation claim will
proceed, so must Plaintiff’s second
cause of action. “[B]ecause the statute does not create a stand-alone tort, the
employee has no cause of action for a failure to investigate unlawful
harassment or retaliation, unless actionable misconduct occurred.” (Thompson
v. City of Monrovia¿(2010) 186 Cal.App.4th 860, 880; see
also Dickson v. Burke Williams, Inc.¿(2015) 234 Cal.App.4th 1307, 1316; Scotch
v. Art Institute of California (2009) 173 Cal.App.4th 986, 1021; Trujillo
v. North County Transit Dist. (1998) 63 Cal.App.4th 280, 288.)
Therefore, summary adjudication
is denied as to the second cause of action.
E. Fourth Cause of Action – Failure to Accommodate a Disability
in Violation of the FEHA
The elements of a claim
for failure to provide reasonable accommodation of a disability are (1) the
plaintiff had a disability within the meaning of the Fair Employment and
Housing Act (FEHA), (2) the plaintiff is
qualified to perform the essential functions of the positions, and (3) the
employer failed to reasonably accommodate the plaintiff’s disability.¿(Hernandez
v. Rancho Santiago Community College District (2018) 22 Cal.App.5th 1187,
1193-1194; see also Gov. Code, § 12940(m)(1).) The FEHA makes it unlawful
“[f]or an employer ... to fail to engage in a timely, good faith, interactive
process with the employee ... to determine effective reasonable accommodations,
if any, in response to a request for reasonable accommodation by an employee
... with a known physical or mental disability or known medical condition.”
(Gov. Code, § 12940(n).)¿
Defendant
argues that Plaintiff admitted he did not make any requests for accommodation
after suffering a face injury. (Plaintiff’s Depo. at p. 134:15-18.) Defendant
also dispels knowledge that it knew Plaintiff had a disability because after
seeing Dr. Greene and Dr. Jurkowitz, Plaintiff was allowed to return to work
with no restrictions. (Plaintiff’s Depo. at pp. 116:20-117:2, 118:16-119:3;
119:10-120:5, 120:12-121:4, 121:8-24, 128:7-11.) DCOE Ex. 10, 11, 14.) “While
knowledge of the disability can be inferred from the circumstances, knowledge
will only be imputed to the employer when the fact of disability is the only
reasonable interpretation of the known facts. ‘Vague or conclusory statements
revealing an unspecified incapacity are not sufficient to put an employer on
notice of its obligations[.]’ [Citation.]” Brundage v. Hahn (1997)
57 Cal.App.4th 228, 237.)
The
burden shifts to Plaintiff to show that Defendant had knowledge that Plaintiff
had a disability and that Plaintiff made a request for a reasonable
accommodation that was denied.
Here, there is sufficient evidence to
find that Plaintiff suffered from chronic pain and this impacted a major life
activity, the ability to do his job with taking pain killers, breaks, or time
off. (Plaintiff’s Depo. at p 90:18-91:14.)
Mark McKane, Albert Lario, and Michael Vincent knew Plaintiff suffered
serious chronic pain and injures that affected his ability to perform his
duties. These individuals had notice that Plaintiff suffered a facial injury, and
Mark McKane knew that Plaintiff continued to suffer from chronic pain despite
the wound on his face healing. (Plaintiff’s Depo. at p. 92:1725.)
As
noted above, the court finds a triable issue of material fact as to whether Plaintiff’s
conversation with Vincent on November 2, 2021, was a request for reassignment to
another position rather than resigning his employment. Accordingly, there is a
triable issue as to whether Defendant’s obligation to engage in the interactive
process was triggered when Plaintiff called Vincent on November 2, 2021.
Summary adjudication is denied as to the
fourth cause of action for failure to provide reasonable accommodation.
F. Fifth
Cause of Action –Failure to Engage in the Interactive Process
“Although the interactive process is an
informal process designed to identify a reasonable accommodation that will
enable the employee to perform his or her job effectively (Citation), an
employer's failure to properly engage in the process is separate from the
failure to reasonably accommodate an employee's disability and gives rise to an
independent cause of action.” (Swanson v. Morongo Unified School Dist.¿(2014)
232 Cal.App.4th 954, 971.) “The employee
must initiate the process unless his or her disability and the resulting
limitations are obvious. Once initiated, the employer has a continuous
obligation to engage in the interactive process in good faith.¿(Citation.)”
(Id.)
Defendant argues that Plaintiff’s fifth
cause of action fails because Plaintiff never provided any documentation from a
doctor establishing a need for accommodation because he did not have a
disability requiring an accommodation. As discussed above, there is sufficient
evidence to find that Plaintiff suffered from chronic pain and this impacted a
major life activity, the ability to do his job with taking pain killers,
breaks, or time off. (Plaintiff’s Depo. at p 90:18-91:14.)
Nevertheless, the obligation to trigger the interactive process is on
Plaintiff. “Typically,
an applicant or employee triggers the employer's obligation to participate in
the interactive process by requesting an accommodation. (§ 12940, subd. (n).)
Although it is the employee's burden to initiate the process, no magic words
are necessary, and the obligation arises once the employer becomes aware of the
need to consider an accommodation.”(Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 62, fn. 22 (Gelfo).)
Defendant presented evidence that no
doctor required Plaintiff to work with a restriction or diagnosed Plaintiff
with a specific disability that would have put Defendant on notice that
Plaintiff had a disability that required an accommodation. Thus, the burden
shifts to Plaintiff to show that Defendant knew Plaintiff had a disability that
required an accommodation.
In opposition, Plaintiff argues that Mark
McKane, Albert Lario, and Michael Vincent knew Plaintiff suffered serious
chronic pain and injures that affected his ability to perform his duties.
These individuals had notice that
Plaintiff suffered a facial injury, and Mark McKane knew that Plaintiff
continued to suffer from chronic pain despite the wound on his face healing.
(Plaintiff’s Depo. at p. 92:1725.)
There is a triable issue of material fact
as to whether when Plaintiff called Michael Vincent about “stepping down,” Vincent
knew or should have known that Plaintiff was requesting an accommodation that
triggered Defendant’s obligation to engage in the interactive process.
Based on the above, the court finds a triable
issue as to whether Defendant knew Plaintiff had a disability that required an accommodation,
and that Plaintiff triggered the interactive process. Therefore, summary
adjudication is denied as to the fifth cause of action for failure to engage in
the interactive process.
G.
Plaintiff’s Request for Punitive Damages
For an employee to recover punitive
damages, Civil Code § 3294(b) requires that the employee show by clear and
convincing evidence that “an officer, director, or managing agent of the
corporation” engaged in malice, oppression, and/or fraud or authorized such
conduct. (White v. Ultramar, Inc.
(1999) 21 Cal.4th 563, 569.)
Plaintiff argues that Vincent was a
managing agent of Granite but presents no evidence of conduct that rises to the
level of malice, oppression, or fraud warranting the imposition of punitive
damages. The court finds summary
adjudication on this issue is appropriate.
Conclusion
Defendant’s
Motion for Summary Judgment is denied; Defendant’s Motion for Summary
Adjudication
as to the First through Fifth Causes of Action is denied, and is granted as to
Plaintiff’s
Request for Punitive Damages.