Judge Jill Feeney, Case Number: 20STCV38683, Date: 2023-10-10 Tentative Ruling

This is an action for disability discrimination, failure to provide reasonable accommodations, failure to engage in the interactive process, retaliation, intentional infliction of emotional distress, wrongful termination, violation of Labor Code, section 1102.5, unfair business practices, and negligent supervision.

Plaintiff Thomas Weeks alleges that we was employed by Defendant California Institute of Technology (“CalTech”) between 1983 and 1990 and again between 2000 and 2020. Plaintiff was an engineer working on the Voyager spacecraft when he began reporting problems with the project and with colleagues.

As a result of his reports, coworkers began bullying Plaintiff by implying he was a homosexual, a crybaby, a criminal, a drug addict, and a child molester. Plaintiff suffered from depression and anxiety, culminating in a trip to the emergency room in 2005. Doctors determined he had anxiety and prescribed medication. Plaintiff’s coworkers continued to harass him until he went on medical leave in May 2018. During medical leave, Plaintiff’s medical providers provided Defendant’s human resources department with notes stating he could return to work with the sole restriction that he be placed to work away from the individuals who harassed him. Defendant rejected the accommodation, accused him of doctor shopping, and suggested that he continue to collect disability. After Defendant denied six accommodations requests, Defendant began representing to Plaintiff’s life insurance provider that he had been terminated.

On January 22, 2019, Katie Weber, a Caltech employee, informed Plaintiff by email that Caltech was unable to substantiate his allegations of harassment or a hostile work environment. Weber also indicated that Caltech would review any additional evidence provided by Plaintiff. (Exh. 45.)

The letter stated that Dr. Santana had been treating Plaintiff since June 19, 2018 for stress and anxiety related to the work place. The letter further stated that as of January 17, 2019 Plaintiff may return to work in his usual position with the following restrictions: “He is to avoid undue stress, which would require him not to work in the same physical location as the Voyager team. In other words, it is strongly recommended that he be placed on an off-site location where he can be provided a non-hostile and safe work environment.” (Exh. 46.)

On March 5, 2019, Caltech sent an email to Plaintiff offering for him to work from home two days a week for the next 6 to 8 weeks as Plaintiff transitions back to work.(Exhibit 49) In that same email, Caltech rejected other accommodations requested by Plaintiff, such as the presence of a mediator/psychologist at Plaintiff’s initial return meeting with management.

In this letter, Dr. Santana repeated her prior recommended accommodation as set forth in her letter of January 17, 2019. The letter further stated that Plaintiff could work in a cubicle in a building where he is not exposed to co-workers and supervisors who took part in his harassment and that meetings with these particular individuals may occur via phone/video etc. where other individuals are present to observe the communication. (Exh. 54.)

On June 28, 2019, Caltech sent Plaintiff an email indicating that the accommodation requested could not be given. The email noted that an alternative accommodation would be working on a different team. The email included an offer to email to Plaintiff a listing of open positions for Plaintiff to assess. (Exh. 57.)

The letter stated that the accommodation requested was the ability to work from a location that was physically apart from his prior co-workers, but not from home which would be detrimental to Plaintiff’s conditions. It is requested that Plaintiff be allowed to work from another Caltech job site where his former co-workers were not located.

The note indicated that Plaintiff must work physically apart from the four prior co-workers that Plaintiff alleges harassed him, but not at home. The letter further stated that Plaintiff’s restrictions require the ability to be allowed to communicate with these four former co-workers in some remote way as opposed to in person.

This letter changed the accommodation request. It stated that Plaintiff should be allowed to work remotely from home during the pandemic or in his separate closed door office during the pandemic. Once the pandemic stay at home laws are lifted, he should be allowed to work from a separate office, while being allowed to keep his door closed. Plaintiff also should be allowed to remove himself temporarily from his work environment should his disability symptoms exacerbate.

Caltech sent Plaintiff emails asking for further information about Plaintiff’s door being closed and also asking for an explanation of the discrepancy between the May 27, 2020 note and other submitted notes and statements made by Plaintiff. (Exh.75.) Caltech also requested that Plaintiff meet with a medical examiner to confirm the need for an accommodation and the nature of any such accommodation. Caltech stated that it would pay for the examination. (Exh. 77.)

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 the cause of action or a defense thereto.” (Ibid.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Med. Ctr. (2008) 159 Cal.App.4th 463, 467.)

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

Defendant moves for summary judgment or adjudication as to Plaintiff’s cause of action for disability discrimination under the FEHA on the grounds that (1) Plaintiff cannot establish he has a disability as defined by the FEHA, (2) Plaintiff cannot establish that he could perform the functions of his role with or without reasonable accommodation, (3) Plaintiff cannot establish that he suffered an adverse employment action, (4) Plaintiff has no evidence to show a causal link between his purported disability and any purported adverse employment action, (5) any purported adverse employment action was taken for legitimate, non-retaliatory reasons and Plaintiff has no evidence of pretext, and (6) Plaintiff has no evidence to suggest a discriminatory motive for any purported adverse employment action.

The elements of the first cause of action, disability discrimination in violation of Government Code Section 12940(a), are as follows: (1) Defendant was an employer; (2) Plaintiff was an employee; (3) Defendant subjected Plaintiff to an adverse employment action; (4) Plaintiff’s protected status was a substantial motivating reason for the adverse employment action; (5) Plaintiff was harmed; and (6) Defendant’s conduct was a substantial factor in causing Plaintiff’s harm.(CACI No. 2500.)

(1) Having any mental or psychological disorder or condition, such as intellectual disability, organic brain syndrome, emotional or mental illness, or specific learning disabilities, that limits a major life activity. For purposes of this section: (A) “Limits” shall be determined without regard to mitigating measures, such as medications, assistive devices, or reasonable accommodations, unless the mitigating measure itself limits a major life activity. (B) A mental or psychological disorder or condition limits a major life activity if it makes the achievement of the major life activity difficult. (C) “Major life activities” shall be broadly construed and shall include physical, mental and social activities and working… (4) Being regarded or treated by the employer or other entity covered by this part as having, or having had, any mental condition that makes achievement of a major life activity difficult. (5) Being regarded or treated by the employer or other entity covered by this part as having, or having had, a mental or psychological disorder or condition that has no present disabling effect, but that may become a mental disability…

Defendant contends that because Plaintiff’s accommodation requests for his depression and anxiety involved his ability to interact with four particular coworkers, Plaintiff has not established that the alleged disability has limited the major life activity of working.

Defendant relies on Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 253 (“Jensen”), Higgins-Williams v. Sutter Med. Found (2015) 237 Cal.App.4th 78, 80 (“Higgins”), and Weiler v. Household Fin. Corp. (7th Cir. 1996) 101 F.3d 519, 526-527 (“Weiler”) in support of this argument.

Putting aside whether Defendant has met its burden on this point, Plaintiff has met his burden. He attests that he has been diagnosed with chronic anxiety and severe depression since 2005. (Decl. ¶1.) Defendant reports experiences such as crying at work and picking at skin lesions due to stress. (Decl. ¶35). Additionally, Dr. Tran’s letter of November 12, 2019 states the he has been treating Plaintiff since 2005 for a variety of ADA protected conditions (depression, anxiety and PTSD) and that these conditions substantially limit Plaintiff’s major life activities. (Defendant’s Exh. 64.)

Between January 2019 and May 2020, Plaintiff submitted medical notes showing his medical provider had released him to work under restrictions including that Plaintiff not work alongside prior team members, have a third party present during his interactions with the subject employees, and that he be placed in another building, another cubicle, or other physical location.. (Price Decl., ¶36-38.) Veronica Jarquin, Leaves of Absence and Accommodations (“LOA”) Representative, met with Voyager’s project manager, Suzy Dodd, to review the essential functions of Plaintiff’s position to determine what accommodations Defendant could offer. (Id., ¶36.) After internal discussion, the LOA unit determined that regular, impromptu communications, collaborations, and interactions with all team members was an essential function of Plaintiff’s position. (Id.) Additionally, the Voyager team is co-located to facilitate efficient work and it would be difficult to have a third-party be present for all of Plaintiff’s interactions with other team members. (Id.) There was also a need for ad hoc discussions to solve immediate issues that were critical to the success of the work and the team. (Id.)

The LOA unit offered Plaintiff to work two days per week for 6 to 8 weeks with the exception that Plaintiff would interact with all team members as necessary for scheduled and impromptu meetings. (Price Decl., ¶37.) After Plaintiff rejected this request, Defendant offered to transfer Plaintiff to a different project or team (Id., ¶38.) After Plaintiff rejected this offer, Plaintiff remained on leave as an accommodation to allow Plaintiff and Defendant to continue accommodation discussions. (Id., ¶41.) Defendant then proposed that Plaintiff return to work in his prior workspace in a private, closed-door office. (Id., ¶45.) Plaintiff rejected this proposal. (Id.) Plaintiff also rejected Defendant’s requests to sit for a second opinion medical examination to determine any necessary work restrictions. (Id., ¶54.)

By the time Plaintiff submitted his most recent medical note, his doctor opined that he could work in a closed-door office and that he would be willing and able to communicate with all his coworkers. (Weeks Depo, Exh. 74.) Because Plaintiff’s most recent medical note states he is able to communicate with his coworkers as required for his position, Defendant fails to meet its burden of showing there are no triable issues of material fact over whether Plaintiff can perform the functions of his role with and without accommodation. The burden does not shift to Plaintiff.

An adverse employment action is generally an action that materially affects the terms, conditions, or privileges of employment. (See Featherstone v. Southern California Permanente Medical Group (2017) 10 Cal.App.5th 1150, 1161.) “The protections against discrimination in the workplace . . . are ‘not limited to adverse employment actions that impose an economic detriment or inflict a tangible psychological injury upon an employee.’” (Id. at 1162 (quoting Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1052).) “FEHA ‘protects an employee against unlawful discrimination with respect . . . to . . . the entire spectrum of employment actions that are reasonably likely to adversely and materially affect an employee’s job performance or opportunity for advancement in his or her career.’” (Id. (quoting Yanowitz, supra, 36 Cal.4th at 1053-54).)

“[A]lthough an adverse employment action must materially affect the terms, conditions, or privileges of employment to be actionable, the determination of whether a particular action or course of conduct rises to the level of actionable conduct should take into account the unique circumstances of the affected employee as well as the workplace context of the claim.” (Yanowitz, supra, 36 Cal.4th at 1052.)

Defendant provides the declaration of Jackie Clennan Price, an Employee Relations Manager for Caltech and JPL. (Price Decl., ¶1.) Price testifies that Plaintiff has been on approved leave since May 2018 and that leave has continued to the present. (Id., ¶16.) Plaintiff has not applied for any promotions and has not been denied promotions. (Id.)

Defendant’s evidence shows that Plaintiff is on approved, voluntary medical leave and continues to receive the same rate of pay. Defendant meets its burden of showing Plaintiff has not suffered an adverse employment action as a result of not being returned to his position.

The burden shifts to Plaintiff. Plaintiff provides his own declaration, testifying that his life insurance and health insurance benefits have been terminated. (Weeks Decl., ¶25.) Additionally, Plaintiff has not received a salary since 2018, Plaintiff ‘s annual pay has decreased, he has not received a cost-of-living increase, he has not been able to add to his retirement plan and receive a matched contribution by Caltech, and he lost his and his family’s benefits. (Id., ¶26.)

Plaintiff’s assertion that he has lost wages and has not received a salary since May 2018 contradicts his deposition testimony. However, Plaintiff’s testimony that he has lost cost of living increases, the ability to contribute to his retirement plan and receive a matching contribution, and health insurance and life insurance benefits for himself and his family is consistent with FAC. These items constitute privileges of employment. Plaintiff thus meets his burden of showing triable issues of material fact remain over whether he suffered an adverse employment action as a result of Defendant’s failure to approve Plaintiff’s various requested accommodations for returning from medical leave (which Plaintiff initiated himself) to his work position.

Defendant next argues that there is no causal link/proof of discriminatory motive between Plaintiff’s alleged disability and an adverse employment action. Defendant argues that it continues to engage in an interactive accommodation process with Plaintiff.

To set the framework for the discussion here, the adverse employment action which is alleged to have occurred due to discrimination on the basis of Defendant’s depression and anxiety is Defendant’s failure to return Plaintiff from medical leave (which Plaintiff initiated) to his original position with Plaintiff’s requested accommodations.

To successfully assert a claim for discrimination, Plaintiff must satisfy the requirements of the three-step McDonnell Douglas test. (See Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 354-55.) Generally, a prima facie case requires showing that (1) plaintiff was a member of a protected class; (2) plaintiff was qualified for the position plaintiff sought or was performing competently in the position plaintiff held; (3) plaintiff suffered an adverse employment action, such as termination, demotion, or denial of an available job; and (4) some other circumstance suggests discriminatory motive. (Id. at 355.)

Once a plaintiff has established a prima facie case, there is a “rebuttable” but “legally mandatory” presumption of discrimination. (Id. at 355.) The burden then shifts to the defendant to rebut the presumption by producing admissible evidence that the defendant’s “action was taken for a legitimate, nondiscriminatory reason.” (Id. at 355-356.)

Finally, if the defendant meets its burden, “the presumption of discrimination disappears.” (Id. at 356.) The plaintiff must then show that the defendant’s legitimate reason is merely pretext. (Id.) “Pretext may be inferred from the timing of the discharge decision, the identity of the decision-maker, or by the discharged employee's job performance before termination.” (Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 224.) “Pretext may [also] be demonstrated by showing that the proffered reason had no basis in fact, the proffered reason did not actually motivate the discharge, or the proffered reason was insufficient to motivate discharge.” (Id.)

On a motion for summary judgment, the moving party must initially show that under the undisputed material facts, (1) one or more elements of plaintiff’s discrimination claim is without merit, or that (2) defendant’s action was based on legitimate, non-discriminatory factors. (Arteaga v. Brink’s, Inc. (2008) 163 Cal.App.4th 327, 344.) In other words, the initial burden on summary judgment remains with the moving party at all stages of the McDonnell Douglas analysis. (McGrory v. Applied Signal Tech., Inc. (2013) 212 Cal.App.4th 1510, 1523; see also Sandell v. Taylor-Listug, Inc. (2010) 188 Cal.App.4th 297, 309; King v. United Parcel Serv., Inc. (2007) 152 Cal.App.4th 426, 432.)

“Discriminatory intent is a necessary element of a discrimination claim. [Citations.] In addition, ‘there must be a causal link between the employer’s consideration of a protected characteristic and the action taken by the employer.’ To ‘more effectively ensure…that liability will not be imposed based on evidence of mere thoughts or passing statements unrelated to the disputed employment decision,’ a plaintiff must demonstrate ‘discrimination was a substantial motivating factor, rather than simply a motivating factor.’” (Soria v. Univision Radio Los Angeles, Inc. (2016) 5 Cal.App.5th 570, 590.) A “substantial motivating reason” is “a reason that actually contributed to the [adverse employment action]. It must be more than a remote or trivial reason.” (CACI 2507.)

An employer is entitled to summary judgment if, considering the employer's innocent explanation for its actions, the evidence as a whole is insufficient to permit a rational inference that the employer's actual motive was discriminatory. (Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 361.) If the motion for summary judgment relies in whole or in part on a showing of nondiscriminatory reasons for the discharge, 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 termination. (Kelly v. Stamps.com Inc. (2005) 135 Cal.App.4th 1088, 1097–1098.)

An employer may establish on summary judgment a legitimate, nondiscriminatory reason for the adverse employment action. (Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1004.) To avoid summary judgment, an employee claiming discrimination must offer substantial evidence that the employer’s stated nondiscriminatory reason for the adverse action was untrue or pretextual, or evidence the employer acted with substantial discriminatory animus, or a combination of the two, such that a reasonable trier of fact could conclude the employer engaged in intentional discrimination. (Wills v. Superior Court (2011) 195 Cal.App.4th 143, 160.) The employee cannot simply show that the employer’s decision was wrong or mistaken. (Id.)

Defendant references portions of Plaintiff’s deposition in support of its argument. Defendant points to the part of the deposition transcript showing Plaintiff did not know why the decision was made to offer partial work from home options. (Weeks Depo., 542:6-12.) Additionally, Plaintiff does not know why Defendant made a decision to accommodate Plaintiff by allowing a full leave of absence. (Id., 568:9-14.) Defendant then references excerpts that similarly state Plaintiff does not know why Defendant made decisions about his accommodation requests thus far. (Id., 625:5-626:12, Ex. 68, 634:23-635:4, 700:25-701:3.)

Defendant’s evidence regarding Plaintiff’s lack of knowledge as to the reasons for the decisions Defendant made about his accommodations requests fails to show that Plaintiff can offer no evidence of a discriminatory motive behind the alleged adverse employment action.

In the context of this disability discrimination claim based upon the rejection of requests for accommodation, Defendant must provide evidence that these requests were denied because the requested accommodations were not reasonable as they would not have allowed plaintiff to perform his essential job functions or that the requested accommodations were reasonable, but would cause undue hardship to Defendant.

Here, according to Defendant, with respect to Plaintiff’s role as a Systems Engineer, it is an essential function of the role to interact effectively and work collaboratively with his coworkers. Defendant contends that its nondiscriminatory purpose in refusing to permit Plaintiff to return to work with the requested accommodations is that it was essential for Plaintiff to be able to freely communicate with his coworkers. Thus, On January 6, 2020, Caltech informed Plaintiff via email that it believed that Plaintiff’s return to his prior position and workspace, which is a private, closed door office, was sufficient for him to conduct his work. (Exh. 65.)

Defendant next moves for summary judgment as to Plaintiff’s second cause of action for failure to accommodate on the grounds that (1) Plaintiff cannot establish that he has a disability as defined under the FEHA, (2) Plaintiff cannot establish that he could perform the functions of his role with or without reasonable accommodation, and (3) Plaintiff was provided with reasonable accommodation.

“The essential elements of a failure to accommodate claim are: 1) the plaintiff has a disability covered by the FEHA; 2) the plaintiff is a qualified individual (i.e., he or she can perform the essential functions of the position); and 3) the employer failed to reasonably accommodate the plaintiff’s disability. (Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 256.) “[T]he employer cannot prevail on summary judgment on a claim of failure to reasonably accommodate unless it establishes through undisputed facts that ‘1) reasonable accommodation was offered and refused, 2) there simply was no vacant position within the employer’s organization for which the disabled employee was qualified and which disabled employee was capable of performing with or without accommodation, or (3) the employer did everything in its power to find a reasonable accommodation, but the informal interactive process broke down because the employee failed to engage in discussions in good faith.’ [Citation.]” (King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 442.)

Defendant argues that Plaintiff’s medical notes do not demonstrate that he was and/or is able to complete the essential functions of the position. Defendant uses the same arguments as those used to argue Plaintiff could not competently perform the functions of his role under the previous cause of action. For the same reasons as the previous cause of action, Defendant’s motion is denied on this ground. The motion

Defendant argues that it consistently attempted to accommodate Plaintiff’s purported disability despite Plaintiff’s unreasonable requests. Defendant alleges that Plaintiff’s requests initially involved eliminating an essential function of Plaintiff’s job. Additionally, Defendant maintains that Plaintiff remains on leave, which is a reasonable accommodation under Cal. Code of Regulations, tit. 2, section 11069(d)(5)(c).

“FEHA requires an informal process with the employee to attempt to identify reasonable accommodations ….” (Nealy v.City of Santa Monica (2015) 234 Cal.App.4th 359, 379.) “The point of the interactive process is to find reasonable accommodation for a disabled employee, or an employee regarded as disabled by the employer, in order to avoid the employee’s termination.” (Moore, supra, 248 Cal.App.4th at pp. 243-244, original italics.) “While a claim of failure to accommodate is independent of a cause of action for failure to engage in an interactive dialogue, each necessarily implicates the other.” (Id. at p. 242.)

“Generally, ‘(t)he employee bears the burden of giving the employer notice of the disability…This notice then triggers the employer’s burden to take ‘positive steps’ to accommodate the employee’s limitations…The employee, of course, retains a duty to cooperate with the employer’s efforts by explaining (his or her) disability and qualifications…Reasonable accommodation thus envisions an exchange between employer and employee where each seeks and shares information to achieve the best match between the employer's capabilities and available positions.’” (Raine v. City of Burbank (2006) 135 Cal.App.4th 1215, 1222 .)

An employee is not required to specifically invoke the protections of FEHA or speak any “magic words” in order to effectively request an accommodation under the statute. (Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935, 954; see Avila v. Continental Airlines, Inc., supra, 165 Cal.App.4th at p. 1252 (“no particular form of request is required”).) However, the employee must engage in the interactive process and “‘can't expect the employer to read his mind and know he secretly wanted a particular accommodation and sue the employer for not providing it.”’ (Id. at pp. 1252–1253.)

“When a claim is brought for failure to reasonably accommodate the claimant's disability, the trial court's ultimate obligation is to ‘isolate the cause of the breakdown … and then assign responsibility” so that “(l)iability for failure to provide reasonable accommodations ensues only where the employer bears responsibility for the breakdown.’ (Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 261 (102 Cal. Rptr. 2d 55).) Thus, “the employer cannot prevail on summary judgment on a claim of failure to reasonably accommodate unless it establishes through undisputed facts that … the employer did everything in its power to find a reasonable accommodation, but the informal interactive process broke down because the employee failed to engage in discussions in good faith.” (Id. at p. 263.) (Soria v. Univision Radio Los Angeles, Inc. (2016) 5 Cal.App.5th 570, 597-600.)

Defendant has not presented any evidence that its request for a medical examination (which was made in response to Plaintiff’s acceptance of Defendant’s previous solution to accommodate his disability, which was that the closed door office that he already had was sufficient) was appropriate under the circumstances.

An employer is permitted to conduct a limited medical examination that is job-related and consistent with business necessity to determine the functional limitations that require reasonable accommodation. (Cal. Code Regs., tit. 2, section 11069(d)(7).) Here, Defendant has offered no evidence addressing the business necessity for a medical examination in these circumstances where Plaintiff accepted Defendant’s suggested solution to the problem identified.

Moreover, an employer may require an employee to go to a health care provider only if the employee’s documentation is insufficient and the employer has previously explained why the documentation is insufficient. (Cal. Code Regs., tit. 2, section 11069(d)(5)(c).) Defendant’s separate statement cites to no evidence in this regard. Defendant simply states that Defendant’s doctor did not complete a required form. Defendant does not provide evidence in its separate statement that this form required information that Plaintiff and his doctors had not already provided nor does Defendant provide evidence in its separate statement that it explained what the deficiencies were.

Defendant contends that its accommodation of leave was a reasonable. However,, when an employee can work with a reasonable accommodation other than a leave of absence, an employer may not require that the employee take a leave of absence. (Cal. Code Regs., tit.2, section 11068(c).)

Defendant argues that Plaintiff’s third cause of action for failure to engage in an interactive process fails because (1) Plaintiff cannot establish that he has a disability under the FEHA, (2) Defendant engaged in a good faith interactive process, (3) Defendant provided Plaintiff with a reasonable accommodation, and (4) Plaintiff unilaterally broke down the interactive process.

Government Code section 12940(n) provides that it is an unlawful employment practice “[f]or an employer . . . to fail to engage in a timely, good faith, interactive process with the employee or applicant to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition.” (Govt. Code, section 12940(n).)

“FEHA requires an informal process with the employee to attempt to identify reasonable accommodations ….” (Nealy v.City of Santa Monica (2015) 234 Cal.App.4th 359, 379.) “The point of the interactive process is to find reasonable accommodation for a disabled employee, or an employee regarded as disabled by the employer, in order to avoid the employee’s termination.” (Moore v. Regents of University of California (2016) 248 Cal.App.4th 216, 243.) “While a claim of failure to accommodate is independent of a cause of action for failure to engage in an interactive dialogue, each necessarily implicates the other.” (Id. at p. 242.)

Defendant argues that the fourth cause of action for retaliation fails because (1) Plaintiff cannot establish he suffered an adverse employment action, (2) there is no causal link between any purported protected activity and any purported adverse employment action, and (3) any purported adverse employment action was taken for legitimate, non-retaliatory reasons and Plaintiff has no evidence of pretext.

To state a claim for retaliation under FEHA a plaintiff must show that (1) the plaintiff engaged in a FEHA-protected activity, (2) the plaintiff was subject to an adverse employment action, and (3) there is a causal link between the protected activity and the adverse employment action. (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.) The protected activity may be established by the fact the plaintiff threatened to file a discrimination charge, that the plaintiff reasonably and sincerely believed he or she was opposing discrimination, or that the employer knew the employee was opposing the employer at the time of the retaliation. (Id. at 1046-48; see also Iwekaogwu v. City of Los Angeles (1999) 75 Cal.App.4th 803, 814-15; Flait v. North American Watch Corp. (1992) 3 Cal.App.4th 467, 477.) But mere temporal proximity does not create triable issues as to pretext when an employer offers evidence of a non-retaliatory reason for termination. (Arteaga v. Brink’s, Inc. (2008) 163 Cal.App.4th 327, 357.)

Defendant argues that there is no causal nexus between the alleged adverse employment action and any purportedly protected conduct and Defendant’s decision to offer him leave as accommodation. Although Defendant references Plaintiff’s report of FEHA violations and misuse of government funds as the alleged protected activity, Plaintiff’s FAC only alleges that Defendant retaliated against him for exercising his personal medical leave.

“The cause link may be established by an inference derived from circumstantial evidence, such as the employer’s knowledge that the [employee] engaged in protected activities and proximity in time between the protected action and allegedly retaliatory employment decisions.” (Morgan v. Regents of Univ. of Cal. (2000) 88 Cal.App.4th 52, 69, internal citations omitted.) On summary judgment, the Court follows the same burden shifting practice as for discrimination claims. (Flait, supra, 3 Cal.App.4th at p. 476.)

For the reasons discussed under the other causes of action, Defendant has not met its burden of demonstrating that no triable issues of material fact remain over whether there is a causal connection between Plaintiff’s decision to take leave and Defendant’s decision to deny Plaintiff’s accommodations requests.

Defendant argues the fifth cause of action for Intentional Infliction of Emotional Distress (“IIED”) fails because (1) it is preempted by the exclusive remedy of worker’s compensation laws, (2) Plaintiff has no evidence of extreme and outrageous conduct, and (3) Plaintiff has no evidence that anyone intended to cause him harm.

A cause of action for intentional infliction of emotional distress exists when there is: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct. (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050.) A defendant’s conduct is “outrageous” when it is so extreme as to exceed all bounds of that usually tolerated in a civilized community. (Id. at pp. 1050-1051.) The defendant must either intend his or her conduct to inflict injury or engage in it with the realization that injury will result. (Id. at p. 1051.) Liability for intentional infliction of emotional distress does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. (Ibid.) “[T]he plaintiff must allege with great specificity the acts which he or she believes are so extreme as to exceed all bounds of that usually tolerated in civilized community.” (Vasquez v. Franklin Management Real Estate Fund, Inc. (2013) 222 Cal.App.4th 819, 832.)

“[R]espondeat superior liability attaches if the activities that cause[d] the employee to become an instrumentality of danger to others’ were undertaken with the employer’s permission and were of some benefit to the employer or, in the absence of proof of benefit, the activities constituted a customary incident of employment.” (Purton v. Marriott International., Inc. (2013) 218 Cal.App.4th 499,509. Because it can be difficult to demonstrate “that a corporation is directly liable for the actions of its employees or agents,” respondeat superior “can allow a plaintiff to proceed against a corporation that could have been liable under a burdensome direct liability theory.” (Presbyterian Camp & Conference Centers, Inc. v. Superior Court (2021) 12 Cal.5th 493, 515) “‘Employee[s]’ include most persons ‘in the service of an employer under any ... contract of hire’ ..., but do not include independent contractors.” (S. G. Borello & Sons, Inc. v. Dept. of Indus. Rel. (1989) 48 Cal.3d 341, 349, 256 (Borello).)

Defendant argues that none of Defendant’s actions rose to the level of actionable conduct. Defendant cites 36 pages of Plaintiff’s deposition, beginning on page 275. Plaintiff’s testimony shows that he and his coworkers had disagreements over the Voyager project, including over Plaintiff’s reports (p. 275-277), hardware issues (p.278), speculation that another employee was hired to prove Plaintiff wrong (p.280-281), Plaintiff not receiving credit for his work (p. 283-284), management telling him to get over his grievances (p.285-286), other team members refusing to read Plaintiff’s work (p. 286-287), members of staff spreading rumors that Plaintiff used drugs (p. 289-290), gossip about other team members’ conflicts (p. 291-295), homophobic comments about Plaintiff’s sexual orientation (p. 296-299), and other team members screaming at Plaintiff (p.307-311.) Plaintiff repeatedly states that some of these conflicts arose from his own speculation.

Plaintiff’s deposition testimony alone is insufficient to show that Plaintiff can produce no evidence of extreme and outrageous conduct carried out by Defendant’s employees. Plaintiff’s own lack of knowledge or evidence is insufficient that no evidence of such conduct could not be found through discovery. Even if Defendant did meet its burden, Plaintiff testifies in his declaration and the FAC that he received a death threat from Enrique Medina. (Weeks Decl., ¶33; FAC ¶26.) If true, this conduct would likely rise to the level of extreme and outrageous conduct. Defendant fails to meet its burden of proving no issues of material fact exist over whether Defendant’s employees engaged in extreme and outrageous conduct.

Defendant also relies on Plaintiff’s deposition to argue that Plaintiff cannot show that Defendant’s employees acted with an intent to harm. Defendant again relies on Plaintiff’s deposition testimony. Plaintiff’s lack of knowledge at deposition is not sufficient to show that Plaintiff can produce no evidence that Defendant’s employees acted with an intent to harm Plaintiff. Defendant fails to meet its burden of proof of showing no triable issues remain over whether its employees acted with an intent to harm Plaintiff. The burden does not shift to Plaintiff.

To state a claim for wrongful termination in violation of public policy, a plaintiff must be able to show that (1) the plaintiff was employed by the defendant, (2) the defendant discharged the plaintiff, (3) the violation of public policy was a substantial motivating reason for the plaintiff’s discharge, and (4) the discharge caused the plaintiff harm. (Haney v. Aramark Uniform Services, Inc. (2004) 121 Cal.App.4th 623, 641; CACI 2430.) There are four requirements that a policy must meet in order to support a wrongful discharge claim: (1) the policy is supported by either constitutional or statutory provisions; (2) the policy is “public” in that it “inures to the benefit of the public” and not merely the interests of the individual; (3) the policy was articulated at the time of the discharge; and (4) the policy is “fundamental” and “substantial.” (Franklin v. Monadnock Co. (2007) 151 Cal.App.4th 252, 258.)

Here, Plaintiff admitted during his deposition testimony that he is still employed by Defendant. Additionally, Price’s declaration states Plaintiff is still an employee. Therefore, Defendant meets its burden of showing that no triable issues of material fact remain over whether Plaintiff was discharged by Defendant. Plaintiff does not dispute that he is still employed by Defendant. Plaintiff fails to meet his burden of showing that triable issues of material fact remain over whether Plaintiff was discharged.

Defendant argues that the seventh cause of action for violation of Labor Code, section 1102.5 fails because (1) Plaintiff cannot establish that he suffered an adverse employment action, (2) Plaintiff cannot show that his protected activity was a contributing factor to the adverse employment action, (3) it would have taken the same action for legitimate, independent reasons even if Plaintiff had not engaged in the alleged protected activity.

Labor Code, section 1102.5, subdivision (b) provides that “[a]n employer . . . shall not retaliate against an employee for disclosing information . . . to a government or law enforcement agency, to a person with authority over the employee or another employee who has the authority to investigate, discover, or correct the violation or noncompliance . . . if the employee has reasonable cause to believe that the information discloses a violation of” federal, state, or local law.

Based on this language, the Court discerns four elements to a section 1102.5(b) claim: (1) the employee is in possession of information that the employee reasonably believes indicates a violation of law; (2) the employee discloses this information to a government or law enforcement agency; (3) the employer takes an adverse employment action against the employee; and (4) there is a causal connection between (2) and (3). (See Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 287-288.)

Defendant contends that the fact that it had a reason for failing to accommodate Plaintiff means that Plaintiff cannot prevail. However, there are genuine issues of material fact regarding the reasons for Defendant’s failure to accommodate, as set forth above.

To set forth a claim for a violation of Business and Professions Code section 17200 (“UCL”), Plaintiff must establish Defendant was engaged in an “unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising” and certain specific acts. (Bus. & Prof. Code, section 17200.) A cause of action for unfair competition “is not an all-purpose substitute for a tort or contract action.” (Cortez v. Purolator Air Filtration Products Co. (2000) 23 Cal.4th 163, 173.)

“To bring a UCL claim, a plaintiff must show either an (1) unlawful, unfair, or fraudulent business practice, or (2) unfair, deceptive, untrue or misleading advertising.” (Adhav v. Midway Rent A Car, Inc. (2019) 37 Cal.App.5th 954, 970 (internal quotations omitted).)

“[T]he ‘practice’ requirement envisions something more than a single transaction . . . ; it contemplates a ‘pattern of conduct’ [citation], ‘on-going . . . conduct’, ‘a pattern of behavior’ [citation], or ‘a course of conduct’ . . . .” (Hewlett v. Squaw Valley Ski Corp. (1997) 54 Cal.App.4th 499, 519 (quoting State of California ex rel. Van de Kamp v. Texaco, Inc. (1988) 46 Cal.3d 1147, 1169-70).)

Here, Plaintiff’s FAC alleges that Defendant’s conduct violated the UCL because Defendant discriminated against him on the basis that Defendant violated the FEHA by discriminating against Plaintiff and retaliating against him. This cause of action is based entirely off the other causes of action for violations of the FEHA and the Labor Code.

Defendant argues that the ninth cause of action for negligent supervision fails because (1) Plaintiff has no evidence that Defendant’s employees were not competent to perform the work they were hired for, (2) Plaintiff has no evidence that Defendant’s employees created a risk to Plaintiff or others, and (3) Defendant was not aware and could not have been made aware that any of its employees were unfit or incompetent to perform the work they were hired for.

“[A]n employer can be liable to a third person for negligently hiring, supervising, or retaining an unfit employee.” (Doe v. Capital Cities (1996) 50 Cal.App.4th 1038, 1054.) To establish a cause of action for negligent hiring, retention, or supervision, a plaintiff must show that the employer knew or should have known that hiring the employee created a particular risk or hazard and that particular harm occurs. (See Z.V. v. County of Riverside (2015) 238 Cal.App.4th 889, 902; see also Doe, supra, 50 Cal.App.4th at p. 1054.) To be liable for negligent supervision and hiring, there must be a connection between the employment and injury. (Mendoza v. City of Los Angeles (1998) 66 Cal.App.4th 1333, 1341.) “Liability for negligent hiring and supervision is based upon the reasoning that if an enterprise hires individuals with characteristics which might pose a danger to customers or other employees, the enterprise should bear the loss caused by the wrongdoing of its incompetent or unfit employees. (Id. at 1339.) “The tort has development in California in factual settings where the plaintiff’s injury occurred in the workplace, or the contact between the plaintiff and the employee was generated by the employment relationship.” (Id. at pp. 1339-1340.)

Here, Defendant argues that Plaintiff cannot establish that Lisman, Ludwig, Medina, Hall, or Peralta acted outside of the scope of their employment. Defendant again relies solely on Plaintiff’s deposition transcript, which states Plaintiff had never heard of any complaints about Lisman’s work or supervision. (Weeks Depo., 700:3-701:3.) However, this evidence does not show what the scope of the employees’ employment was or whether they acted outside of the scope of their employment.

Defendant also argues that there is no evidence that the four employees presented a risk of harm to any employees, citing the same section from Plaintiff’s deposition. Again, this is insufficient to prove whether the four employees presented a risk of harm to any other employees.

Defendant finally argues that it was not aware and could not have been made aware that any of its employees were unfit or incompetent to perform the work they were hired for. Defendant cites to Plaintiff’s deposition to an excerpt which states that Plaintiff had made a report to the Office of Inspector General. (Weeks Depo., 145:19-146:11.) This excerpt does not provide any information about whether Defendant would have known its employees were unfit or incompetent to perform their work.

Defendant fails to meet its burden of proving no triable issues of material fact remain over whether (1) the four employees who allegedly harassed Plaintiff had characteristics which might pose a danger to other employees, (2) the four employees acted outside the scope of their employment, or (3) the four employees presented a risk of harm to any other employees. The burden does not shift to Plaintiff.

Finally, Defendant argues that the demand for punitive damages must fail because (1) no individual involved in the challenged actions was an officer, director, or managing agent of Defendant and (2) Plaintiff does not have clear and convincing evidence of malice, fraud, or oppression committed by an officer, director, or managing agent.

“A claim for punitive damages is one of the substantive areas which is a proper subject of a motion for summary adjudication.” (Catalano v. Superior Court (2000) 82 Cal.App.4th 91, 92.) To defeat summary adjudication, the burden is on the plaintiff to produce “clear and convincing evidence” that defendant engaged in “oppression, fraud or malice” in the commission of a tort. (Basich v. Allstate Ins. Co. (2001) 87 Cal.App.4th 1112, 1121.) For a corporation to be liable for punitive damages a plaintiff must plead by clear and convincing evidence that an officer, director, or managing agent acted with oppression, fraud, or malice toward the plaintiff or ratified or approved such actions directed toward the plaintiff. (Civil Code, section 3294; Barton v. Alexander Hamilton Life Ins. Co. of America (2003) 110 Cal.App.4th 1640.)

Here, no individual named in the FAC or involved in any of the actions described was an officer, director or managing agent of Defendant. No personnel with management authority was involved in any of Plaintiff’s communications with the Employee Relations Unit. Therefore, Defendant meets its burden of showing no triable issue of material fact remains over whether an officer, director, or managing agent acted with malice, fraud, or oppression toward Plaintiff.