Judge Gregory Keosian, Case Number: 22STCV01484, Date: 2024-03-12 Tentative Ruling

Judge: Gregory Keosian, Case: 22STCV01484, Date: 2024-03-12 Tentative Ruling

Case Number: 22STCV01484 Hearing Date: March 12, 2024 Dept: 61

Defendant Visual Edge’s Motion for Summary Judgment or Adjudication.is GRANTED as to the second, third, and ninth causes of action for failure to accommodate, failure to engage in the interactive process, and wrongful termination. The motion is otherwise DENIED.

I. OBJECTIONS

Plaintiff objects to portions of the declaration of Marion Cronin. Objection No. 2 is SUSTAINED, as Cronin offers no basis for her personal knowledge of what Defendant instructed Plaintiff after receiving her work status report, particularly when in her deposition she denied speaking to Plaintiff after receiving the report. (Opposition Exh. 3 at pp. 57–58.) Plaintiff’s remaining objections are OVERRULED.

II. SUMMARY JUDGMENT

A party may move for summary judgment “if it is contended that the action has no merit or that there is no defense to the action or proceeding.” (Code Civ. Proc. § 437c, subd. (a).) “[I]f 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,” the moving party will be entitled to summary judgment. (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment. (Code Civ. Proc. § 437c, subd. (f)(2).)

The moving party bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact, and if he does so, the burden shifts to the opposing party to make a prima facie showing of the existence of a triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850; accord Code Civ. Proc. § 437c, subd. (p)(2).)

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. (Aguilar, supra, 25 Cal.4th at 850.) The plaintiff may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto. (Ibid.) 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.)

Defendant Visual Edge (Defendant) moves for summary judgment or adjudication of all of Plaintiff Victoria Nellie Olivier Tulsidas’ (Plaintiff) claims for discrimination and retaliation on the grounds that Plaintiff cannot establish a prima facie case for any of her claims. Specifically, Defendant argues that Plaintiff requested to be laid off while on maternity leave in April 2020 to accommodate personal concerns over childcare and other matters. (Motion at pp. 4–5.)

Marion Cronin, the HR Business Partner with whom Plaintiff discussed her layoff in April 2020, states that she called Plaintiff in response to an email from her inquiring about layoffs. (Cronin Decl. ¶ 13.) Plaintiff told her that she was “concerned about childcare for her children, including her newborn twins and three school-age children. She was also concerned about her or her school -age children contracting COVID-19 and transmitting it to an elderly relative who was living with her.” (Cronin Decl. ¶ 13.) Cronin states that Plaintiff “asked if she could be laid off so that she could collect unemployment.” (Ibid.) Cronin asked if Plaintiff was asking to be laid off, and Plaintiff answered “Yes.” (Ibid.) Cronin denies promising that Plaintiff could return to work. (Ibid.)

Plaintiff in opposition contends she was induced to accept her layoff on the assurance that she would be recalled to work. Plaintiff testified at deposition that her coworker called her while she was on leave to discuss the COVID pandemic and the company’s layoffs, and mentioned that some people were voluntarily taking layoffs. (Motion Exh. 2 at p. 74.) Plaintiff spoke to Cronin about the layoffs, outlining her concerns about her children and her parents, and stating, approximately, “If you guys are offering that, I don’t mind taking it, as long as I’ll get my job back.” (Motion Exh. 2 at p. 75.) Cronin at her deposition stated that she informed Plaintiff that the layoffs were for business necessity and that Defendant would “bring back” laid off employees “as soon as the business would allow.” (Opposition Exh. 3 at p. 62.) Cronin emailed her later that day, stating, “What we would like to do is temporarily lay you off, due to the COVID19 reduction. You would be able to apply for unemployment (and the extra stimulus) and we will be doing recalls as soon as the business allows it.” (Opposition Exh. 7.)

After receiving her final check, Plaintiff was not contacted by Defendant for more than a year thereafter, and vice versa. But Plaintiff at some point spied a post on the Linkedin website advertising account executive positions for Defendant in California. (Plaintiff Decl. ¶ 3, Exh. A.) Plaintiff also saw a posting for an account executive position in Defendant’s Los Angeles office, where Plaintiff used to work, on Ziprecruiter in January 2022. (Plaintiff Decl. ¶ 4, Exh. B.) Plaintiff concluded from these ads that Defendant was trying to replace her. (Plaintiff Decl. ¶ 5.)

Cronin states in her declaration that the COVID pandemic essentially “shut down” Defendant’s sales department, where Plaintiff worked. (Cronin Decl. ¶ 10.) Whatever remained of Plaintiff’s duties after she took leave were transferred to her coworker, Amanda Makary. (Cronin Decl. ¶ 17.) Defendant laid off 63 employees between March and June 2020, and has since recalled 27, all of whom were technical support or support for technical employees. (Cronin Decl. ¶ 18.) Defendant reached out to sales employees about recalls in June 2022 — after Plaintiff filed this lawsuit in January 2022. (Cronin Decl. 18.)

To establish a discrimination claim under FEHA, an employee must prove the following elements: “(1) he was a member of a protected class, (2) he was qualified for the position he sought or was performing competently in the position he held, (3) he suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests discriminatory motive.” (Dinslage v. City and County of San Francisco (2016) 5 Cal.App.5th 368, 378.) If the employer offers evidence of a legitimate, nondiscriminatory reason for the action, “the plaintiff bears the burden of proving the employer's proffered reason was pretextual.” (Brundage v. Hahn (1997) 57 Cal.App.4^th 228, 236.)

Here, there are no triable issues as to whether Plaintiff was laid off for discriminatory animus. The undisputed evidence shows that Plaintiff in April 2020 learned that layoffs were in the pipeline at Defendant, and based on her own concerns related to the COVID pandemic, offered to be laid off on the assurance that the layoff was temporary. Plaintiff acknowledges as much in her opposition. The adverse employment action that Plaintiff complains of, therefore, is not the decision to lay her off in April 2020, but Defendant’s failure to recall her in the subsequent months. (See FAC ¶ 14.)

On this matter, triable issues of fact prevent adjudication of Plaintiff’s prima facie case on this latter point. “The burden of proving a prima facie case of disparate treatment is not onerous.” (Heard v. Lockheed Missiles & Space Co. (1996) 44 Cal.App.4th 1735, 1751.) Here, Plaintiff has presented evidence that she was voluntarily laid off based on assurances that she would be recalled when business improved. This layoff occurred while she was on maternity leave. Plaintiff presents evidence that Defendant did not contact her, however, but specifically advertised her old position on the Ziprecruiter website as early as January 2022. (Plaintiff Decl. ¶ 4.) This is not much different from the prima facie case held sufficient in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, where the court held that a racial discrimination plaintiff could make a prima facie case for failure to hire “by showing (i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications.” (Id. at p. 802.) If the claim is re-framed as one for failure to recall a temporarily laid-off employee, Plaintiff has made the showing based on Defendant’s posting ads for her old position before attempting to reach out to her. The fact that Defendant ultimately did reach out to Plaintiff does little to rebut this showing, as no such outreach was made until Plaintiff filed this action.

The same facts warrant the same outcome on Plaintiff’s retaliation claims under FEHA, the California Family Rights Act (CFRA), and the Pregnancy Disability Leave Law (PDLL)“In order to establish a prima facie case of retaliation under this section, a plaintiff must show (1) he or 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.” (Moore v. Regents of University of California (2016) 248 Cal.App.4th 216, 244, internal quotation marks omitted; see also Faust v. California Portland Cement Co. (2007) 150 Cal.App.4th 864, 885 [laying out CFRA retaliation elements].) Although Defendant argues that Plaintiff never complained of discrimination (Motion at pp. 15–16.) But Defendant neglects that seeking accommodation for a disability is also protected activity under the FEHA, which Plaintiff engaged in. (See Gov. Code § 12940, subd. (m)(2); Cronin Decl. ¶ 8 [Plaintiff was given pregnancy-related medical leave]; Sanchez v. Swissport, Inc. (2013) 213 Cal.App.4th 1331, 1340 [“Being unable to work during pregnancy is a disability for the purposes of section 12940.”].) Thus triable issues exist as to Plaintiff’s retaliation claims as well.

However, Defendant is entitled to summary adjudication of Plaintiff’s claims for the claims for failure to accommodate and failure to engage in the interactive process. “The elements of a failure to accommodate claim are (1) the plaintiff has a disability under the FEHA, (2) the plaintiff is qualified to perform the essential functions of the position, and (3) the employer failed to reasonably accommodate the plaintiff's disability.” (Swanson v. Morongo Unified School Dist. (2014) 232 Cal.App.4th 954, 969, internal quotation marks omitted.) “Under FEHA, an employer must engage in a good faith interactive process with the disabled employee to explore the alternatives to accommodate the disability.” (Nealy v. City of Santa Monica (2015) 234 Cal.App.4th 359, 379.) “To prevail on a claim for failure to engage in the interactive process, the employee must identify a reasonable accommodation that would have been available at the time the interactive process occurred. (Ibid.) Here, it is undisputed that Plaintiff was granted all accommodations she requested, in the form of medical and pregnancy leave, and that such leave was terminated at her request. Although Plaintiff argues that Defendant failed to discuss her on-the-job pregnancy restrictions with her prior to her taking of leave (Opposition at pp. 9–10), Plaintiff presents no evidence or argument that any such on-the-job accommodation was necessary. Plaintiff presented Cronin with work restrictions related to standing, sitting, and lifting, which Cronin felt did not warrant further action because Plaintiff’s job already complied with the restrictions. Plaintiff argues that Cronin should have followed up with Plaintiff, but does not contend that Cronin was mistaken. (Opposition at p. 10.) Thus summary adjudication is proper as to the second and third causes of action.

Summary adjudication is also proper for the ninth cause of action for wrongful termination. This is because, as discussed above, Plaintiff’s claims do not arise from her layoff in April 2020, but from the failure to recall her at some later point. A claim for wrongful discharge requires as an element that the employer “discharged” the employee for a wrongful reason. (Haney v. Aramark Uniform Services, Inc. (2004) 121 Cal.App.4th 623, 641.) Here, it is undisputed that Defendant discharged Plaintiff during the COVID pandemic per her request. Accordingly the motion is GRANTED as to the ninth cause of action.