Judge: Loren G. Freestone, Case: 37-2022-00034841-CU-OE-CTL, Date: 2024-01-12 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - January 11, 2024

01/12/2024  10:30:00 AM  C-64 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Loren G. Freestone

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Civil - Unlimited  Other employment Summary Judgment / Summary Adjudication (Civil) 37-2022-00034841-CU-OE-CTL VILLANUEVA VS DIAGNOSTIC CONSULTING NETWORK LLC [IMAGED] CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING Defendant Diagnostic Consulting Network LLC's motion for summary judgment, or in the alternative summary adjudication, as to the complaint filed by Plaintiff Maria Villanueva is DENIED.

Preliminary Matters DCN's objection to/request to strike Villanueva's separate statement is overruled/denied.

Villanueva's evidentiary objections are overruled.

Villanueva's request for a continuance under Code of Civil Procedure section 437c, subdivision (h) is denied in light of the court's denial of the motion.

Disability Discrimination To establish a prima facie case of disability discrimination, the plaintiff must prove they: '(1) suffered from a disability, (2) could perform the essential duties of a job with or without reasonable accommodation, and (3) was subjected to an adverse employment action because of the disability.' (Zamora v. Security Industry Specialists, Inc. (2021) 71 Cal.App.5th 1, 37.) '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 [or nonretaliatory] factors. If the employer satisfies its initial burden, it will be entitled to summary adjudication unless the plaintiff produces admissible evidence which raises a triable issue of fact material to the defendant's showing.' (Zamora, supra, 71 Cal.App.5th at p. 32.) 'Whether summary adjudication is appropriate will depend on a number of factors, including the strength of the plaintiff's prima facie case, the strength of the employer's showing of innocent reasons, any countervailing circumstantial evidence of discriminatory motive, the probative value of the proof that the employer's explanation is false, and any other evidence that supports the employer's case.' (Zamora, supra, 71 Cal.App.5th. at pp. 54–55.) 'However, many employment cases present issues of intent and motive, issues not determinable on paper. Such cases are rarely appropriate for disposition on summary judgment, however liberalized summary judgment standards may be.' (Id. at p. 33.) Calendar No.: Event ID:  TENTATIVE RULINGS

3030330  47 CASE NUMBER: CASE TITLE:  VILLANUEVA VS DIAGNOSTIC CONSULTING NETWORK LLC  37-2022-00034841-CU-OE-CTL Disability DCN does not dispute that Villanueva's COVID infection and resulting symptoms constituted a disability.

Ability to Perform the Essential Functions of a Job DCN argues that Villanueva could not perform the essential functions of her job with or without an accommodation.

'Essential functions' means 'the fundamental job duties of the employment position' as opposed to 'the marginal functions of the position.' (Gov. Code, § 12926, subd. (f).) Whether a function is essential turns on a variety of considerations, such as the 'employer's judgment as to which functions are essential,' job descriptions, the 'amount of time spent on the job performing the function,' and the 'consequences of not requiring the incumbent to perform the function.' (See id. at subd. (f)(2).) DCN submits evidence that the Office Assistant position/job description had a variety of duties, many of which could only be performed on-site (e.g., greeting clients and visitors, sorting and distributing mail, and ensuring conference rooms were organized and tidy). DCN argues that Villanueva's work-from-home accommodation did not enable her to perform these purportedly essential functions.

However, Villanueva submits evidence that DCN allowed her to work from home without objection, and DCN did not submit evidence showing that it was concerned at the time about the loss of her on-site duties or how such loss would or did meaningfully impacted its operations. Villanueva also submits evidence that her position evolved over time and no longer coincided with the Office Assistant job description, an updated job description was in the works, that as of January 2022 she was primarily handling purchasing, and that purchasing could be performed from home. DCN's own evidence indicates that the on-site duties were not essential at least as of October 2021 when the company moved to its new facility, and therefore the only function Villanueva was performing that really mattered at the time she was working remote was purchasing. Thus, there is a triable issue as to which functions were essential and whether those functions could be performed with a work-from-home accommodation.

(See Price v. Victor Valley Union High School District (2022) 85 Cal.App.5th 231, 242 ['Because the determination of essential job functions is a highly fact-specific inquiry, it is usually an issue of fact for the jury to decide'].) Moreover, even if the on-site functions were essential and could not be performed from home, there are triable issues the functions could be performed with a reasonable accommodation. Although DCN submits evidence that Villanueva was restricted from coming into the office and that her condition at one point effectively rendered her bedridden, Villanueva's doctor informed DCN in January 2022 that she was 'looking to make a full recovery soon.' Villanueva also testified that she began feeling 'human' again in March 2022 (the month after she was terminated). In the time since she was terminated, she has been performing work both in and out of the house for her new employer, and although 'still not a hundred percent,' she is 'certainly able to function now.' Thus, there is a triable issue as to whether Villanueva could have performed her on-site duties if given an accommodation in the form of a temporary leave of absence to recover. (See Zamora, supra, 71 Cal.App.5th at pp. 41–42 ['A leave of absence also may be a reasonable accommodation if, after the leave, the employee can return to work, with or without further reasonable accommodation, and the leave does not create an undue hardship for the employer']; see also Cal. Code Regs., tit. 2, § 11068, subd. (i) ['In the absence of an individualized assessment, an employer or other covered entity shall not impose a '100 percent healed' or 'fully healed' policy before the employee can return to work'].) Reasons for Termination DCN argues that it had a legitimate, non-discriminatory reason for terminating Villanueva.

Calendar No.: Event ID:  TENTATIVE RULINGS

3030330  47 CASE NUMBER: CASE TITLE:  VILLANUEVA VS DIAGNOSTIC CONSULTING NETWORK LLC  37-2022-00034841-CU-OE-CTL DCN submits evidence that it acquired two companies in June 2021 and needed a new leader to take charge of its expanded operations. As a result, it hired an educated and experienced supply chain manager (Stephen Crandall) to lead a new supply chain business unit, which handled Villanueva's purchasing duties. DCN also submits evidence that Villanueva's other office duties were essentially obviated when the company moved locations in October 2021. DCN argues these two changes essentially eliminated the need for Villanueva's position altogether.

Elimination of a position can be a legitimate reason for terminating an employee. However, there is sufficient evidence raising a triable issue as to whether that was the true reason Villanueva was terminated, and whether DCN was instead motivated by her disability.

First, there is the timing of the adverse employment action. Villanueva submits evidence that DCN was working to update her job description even after the June 2021 acquisition and October 2021 move, and that there were no discussions about terminating her before she got sick. It was not until two months after she got sick that DCN suddenly decided to eliminate her position. (See Moore v. Regents of University of California (2016) 248 Cal.App.4th 216, 239 [discriminatory animus could be inferred where decision to eliminate position was made two months after employee informed employer she would need time off].) Second, there are the comments made by the employer in connection with the adverse employment action. Villanueva submits evidence that DCN expressed displeasure with her work-from-home accommodation. For example, DCN's VP of Finance sent an email questioning how Villanueva was working full-time from home, whether the company was 'setting a precedence' by allowing Villanueva to work remote, and whether the company could have a doctor of its choice evaluate her. DCN's HR Director also sent an email stating that Villanueva working from home was 'not optimal,' and in a later part of the same email chain, communicated the company's decision to eliminate her position and hire Crandall. (See Moore, supra, 248 Cal.App.4th at pp. 240–241 [comments about employees 'adverse health issues' and how to handle the employee 'as a liability to the department' were evidence of discriminatory animus].) Third, there is the differential treatment in connection with the termination. Villanueva submits evidence that Crandall was not the only employee that has performed purchasing tasks at DCN, and that there were other DCN employees that became part of the new supply chain unit under him and/or began performing purchasing work. She also submits evidence that DCN never considered having her work under Crandall. DCN did not explain in its motion why those other employees were able to keep their job and work under Crandall, whereas Villanueva was the only employee to be let go. (See Zamora, supra, 71 Cal.App.5th at pp. 57–59 [employer failed to meet initial burden by not explaining why disabled employee was terminated as part of restructuring while non-disabled employees were retained].) Taken as a whole, there are triable issues as to the cause of action for disability discrimination. The motion for summary adjudication as to this cause of action is therefore denied.

Failure to Accommodate and Failure to Engage in the Interactive Process An employer is required 'to make reasonable accommodation for the known physical or mental disability of an applicant or employee.' (Gov. Code, § 12940, subd. (m)(1).) An employer is also required '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.' (Id. at subd. (n).) DCN submits evidence that upon learning that Villanueva had contracted COVID, it granted her request to work from home. DCN also submits evidence that Villanueva never asked for another accommodation. DCN therefore argues it satisfied its obligations to accommodate and engage in the interactive process by giving Villanueva 'the only accommodation she asked for.' Calendar No.: Event ID:  TENTATIVE RULINGS

3030330  47 CASE NUMBER: CASE TITLE:  VILLANUEVA VS DIAGNOSTIC CONSULTING NETWORK LLC  37-2022-00034841-CU-OE-CTL However, 'it is not necessarily sufficient for an employer merely to grant the employee each accommodation she requests. The employer's obligation to engage in the interactive process extends beyond the first attempt at accommodation and continues when the employee asks for a different accommodation or where the employer is aware that the initial accommodation is failing and further accommodation is needed. Put differently, while an employer need not read an employee's mind or provide accommodations of which it is unaware, when an employer is aware of a further reasonable accommodation that is needed, the employer has a duty to consider that accommodation even if the employee does not explicitly request it.' (Lin v. Kaiser Foundation Hospitals (2023) 88 Cal.App.5th 712, 728, emphasis in original.) Here, although DCN granted her request to work from home, Villanueva submits evidence that the company believed that accommodation was failing and that she may have required a different accommodation. As set forth above, emails from DCN's VP of Finance questioned how Villanueva was working from home full-time, and DCN's HR Directed stated that her working from home was 'not optimal.' Villanueva also submits evidence the company internally considered whether a temporary leave of absence was appropriate. As set forth above, there is evidence that accommodation would have been reasonable. However, Villanueva submits evidence that option was not discussed with her nor offered to her. Rather, as set forth above, there is evidence that DCN simply opted to terminate her based on her disability. (See Moore, supra, 248 Cal.App.4th at p. 244 ['a pretextual termination of a [] disabled employee's employment in lieu of providing reasonable accommodation or engaging in the interactive process does not provide an employer a reprieve from claims for failure to accommodate and failure to engage in the interactive process'].) For the reasons set forth above, there are triable issues as to the causes of action for failure to accommodate and failure to engage in the interactive process. The motion for summary adjudication as to these causes of action is therefore denied.

Failure to Reimburse Business Expenses The elements of a reimbursement claim under Labor Code section 2802 are: '(1) the employee made expenditures or incurred losses; (2) the expenditures or losses were incurred in direct consequence of the employee's discharge of his or her duties, or obedience to the directions of the employer; and (3) the expenditures or losses were necessary.' (Thai v. International Business Machines Corp. (2023) 93 Cal.App.5th 364, 370.) '[B]efore an employer's duty to reimburse is triggered, it must either know or have reason to know that the employee has incurred an expense. Once the employer has such knowledge, then it has the duty to exercise due diligence and take any and all reasonable steps to ensure that the employee is paid for the expense.' (Wilson v. La Jolla Group (2021) 61 Cal.App.5th 897, 919.) Expenditures DCN submits evidence that Villanueva did not incur any added expenses when she started working from home. For example, DCN submits evidence that Villanueva simply used her existing internet plan to work remotely. DCN therefore argues she did not incur any reimbursable 'expenditures.' A similar argument was rejected in Cochran v. Schwan's Home Service, Inc. (2014) 228 Cal.App.4th 1137. In that case, the question presented was: 'Does an employer always have to reimburse an employee for the reasonable expense of the mandatory use of a personal cell phone, or is the reimbursement obligation limited to the situation in which the employee incurred an extra expense that he or she would not have otherwise incurred absent the job?' (Id. at p. 1144.) The court held that 'reimbursement is always required.' The court explained that if 'an employee is required to make work-related calls on a personal cell phone, then he or she is incurring an expense for purposes of section 2802' and that it is 'irrelevant whether the employee changed plans to accommodate work-related cell phone usage.' (Id. at pp. 1144–1145.) Calendar No.: Event ID:  TENTATIVE RULINGS

3030330  47 CASE NUMBER: CASE TITLE:  VILLANUEVA VS DIAGNOSTIC CONSULTING NETWORK LLC  37-2022-00034841-CU-OE-CTL So too, here. Villanueva submits evidence that she used her computer and internet to access DCN's network for work, and that she used her cell phone and cellular plan to discuss work-related matters.

The fact she did not need to buy additional equipment or upgrade to a more expensive plan is irrelevant to whether she incurred an expense for purposes of section 2802.

Incurred in Direct Consequence of the Employee's Discharge of His or Her Duties DCN does not dispute that the expenses Villanueva incurred working from home as a result of her COVID-related disability were actually due to performance of her duties. (See generally Thai, supra, 93 Cal.App.5th 364.) Necessity DCN submits evidence that Villanueva had a company phone and company computer that she could use at the office, and that it would have given her a laptop if she had requested one. Thus, DCN argues that any expenditures incurred working from home were not necessary.

However, Villanueva submits evidence that she was unable to utilize any employer-provided hardware.

She submits evidence that when she first started feeling sick, DCN sent her home. Despite setting her up with remote access, there is no evidence that DCN offered a laptop during the time Villanueva was required to be home, or informed her that one would be provided upon request. Even if she could have obtained a laptop, she would not have been able to access the network without internet access. There is also no evidence that DCN ever offered Villanueva a cell phone. Thus, there are triable issues as to whether, at the beginning, working from home and incurring at least some of the claimed expenses were 'employer-mandated' and not 'entirely voluntary.' (See USS-Posco Industries v. Case (2016) 244 Cal.App.4th 197, 206.) Even after Villanueva began working from home as an accommodation for her disability, the need to incur these expenses did not entirely diminish. In light of her physical condition and medical restriction, a jury could reasonably conclude that working from home and incurring these expenses was a reasonable choice. (See Cochran, supra, 228 Cal.App.4th at p. 1144 [whether an expense is necessary 'depends on the reasonableness of the employee's choices'].) Knowledge DCN submits evidence that Villanueva never submitted any reimbursement requests for her cellphone, computer, or internet.

However, DCN's reimbursement policy does not explain how to seek reimbursement and does not address non-travel related expenses. Villanueva also submits evidence that DCN enabled her to use the company's network with an internet connection and called her cell phone to discuss work-related matters. Thus, there is evidence that DCN knew or had reason to know she was incurring the expenses at issue.

For the reasons set forth above, there are triable issues as to the cause of action for failure to reimburse business expenses. The motion for summary adjudication as to this cause of action is therefore denied.

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