Judge: Malcolm Mackey, Case: 21STCV35947, Date: 2023-08-10 Tentative Ruling
Case Number: 21STCV35947 Hearing Date: August 10, 2023 Dept: 55
MEJIA
v. WELLS FARGO BANK, N.A., 21STCV35947
Hearing Date: 8/10/23,
Dept. 55.
#11:
DEFENDANT WELLS FARGO
& COMPANY’S MOTION FOR SUMMARY JUDGMENT OR, ALTERNATIVELY, SUMMARY
ADJUDICATION OF ISSUES.
DEFENDANT WELLS FARGO
BANK, N.A.’S MOTION FOR SUMMARY JUDGMENT OR, ALTERNATIVELY, SUMMARY
ADJUDICATION OF ISSUES.
Notice: Okay
Opposition
MP:
Defendant WELLS FARGO
& COMPANY.
Defendant WELLS FARGO
BANK, N.A.
RP:
Plaintiff
Summary
On 9/29/21, Plaintiff ARMANDO MEJIA filed a Complaint against
defendants as allegedly his former employers, and further alleging the
following:
15. On or about October
12, 2018, Plaintiff was approved for and went on medical leave due to emotional
distress, mental anguish, and other psychological conditions and injuries he
was experiencing.
16. During Plaintiff’s
medical leave, Plaintiff treated with medical providers including a psychiatrist.
17. After being on
medical leave for approximately two months, Plaintiff still had not
sufficiently recovered from his disability and in turn requested his leave be
changed to an unpaid personal leave with a return to work date of August 13,
2019.
18. Plaintiff’s requests
to change the classification of his leave and for a return date of August 13,
2019, were granted.
19. Defendants
incorrectly categorized Plaintiff’s unpaid leave taken as of December of 2018
as unapproved. Defendants knew of the misclassification of Plaintiff’s leave
since as early as March 11, 2019.
20. On or about July 25,
2019, Plaintiff received an email from Defendants advising him that his
previously approved leave was being considered unapproved as of March 11, 2019.
21. Defendants failed to
maintain accurate records relating to leave requests of employees, including
but not limited to those of Plaintiff.
22. After receiving the
email referenced above, Plaintiff made numerous attempts to contact Defendants’
Leave Operations department to no avail.
23. Defendants willfully
and maliciously ignored Plaintiff’s attempts to contact them relating to his
leave and anticipated return to work.
24. On or about August
13, 2019, Plaintiff was able to reach Defendants’ Leave Operations department
at which point Plaintiff was informed that his employment with Defendants had
been terminated.
(Complaint, pp. 4-5.)
The causes of action are:
1. DISABILITY
DISCRIMINATION IN VIOLATION OF GOV. CODE § 12940(A)
2. FAILURE TO ACCOMMODATE
DISABILITY IN VIOLATION OF GOV. CODE § 12940(M)
3. FAILURE TO ENGAGE IN
AN INTERACTIVE PROCESS IN VIOLATION OF GOV. CODE § 12940(N)
4. FAILURE TO PREVENT
DISCRIMINATION IN VIOLATION OF GOV. CODE § 12940(K)
5. WRONGFUL TERMINATION
IN VIOLATION OF PUBLIC POLICY
6. VIOLATION OF
CALIFORNIA FAMILY RIGHTS ACT.
MP
Positions
Moving parties request an order granting summary
judgment or adjudication, on grounds including the following:
·
Plaintiff admits that he never filed an
administrative charge against co-Defendant WELLS FARGO & COMPANY, and the
charge he filed is silent as to that Defendant.
That’s failure to exhaust FEHA administrative remedies.
·
Plaintiff’s has no evidence that WELLS
FARGO & COMPANY was his employer.
Plaintiff relies primarily on four inadmissible documents (see
evidentiary objections) which do not establish any employment relationship.
Plaintiff also cited to letters Liberty sent to Plaintiff, which similarly do
not establish an employment relationship.
Even if Plaintiff’s documents are admissible, they do not establish an
employment relationship. First, as to the offer letter, it expressly provides
that Plaintiff was an employee of Wells Fargo Bank, N.A. Ariavand Decl., ¶ 6,
Ex. 4. As to the EDD letter, it is a document prepared by the State of
California’s EDD, not defendants. Ariavand
Decl., ¶ 7, Exh. 5. As to the fact that
the name of the Company defendant appears on 401(k) and life insurance
documents of Plaintiff, Plaintiff has provided no authority for the proposition
that is sufficient to establish an employment relationship.
·
The gravamen of Plaintiff’s lawsuit is
that Wells Fargo terminated his employment because of his alleged stress
disability, but Plaintiff has offered zero evidence of a discriminatory animus.
·
Plaintiff has no admissible evidence of
pretext, and he cannot rely on direct contradictions in his deposition testimony
or his frequent answers of “I don’t recall.”
·
Plaintiff’s attempts to establish pretext
with his unsupported assertion that he was on an approved personal leave fail
because: (1) he has no evidence beyond his current self-serving statement that
he was on an approved personal leave of absence at the time of his termination;
and (2) even if he was, he has not provided evidence that anyone at Wells
Fargo, including his supervisor (Roy Rico) and the decision-maker (Starr Ivey),
had any knowledge that Plaintiff was on any approved leave of absence at the
time of his termination.
·
The last doctor’s note in Wells Fargo’s
possession indicated that Plaintiff only needed a leave through March 10, 2019,
which was granted. Plaintiff never requested a further accommodation, nor could
he have because he was no longer seeing a doctor. Response to UMF, Issue 5, No.
19.
·
Plaintiff received three communications
expressly stating that it was Wells Fargo’s belief that his leave was
unapproved. Despite that, Plaintiff chose not to respond, until after August 6,
2019. UMF & Response to UMF, Issue 4, No. 10, 16, 17, 20, 22.8. Plaintiff did not tell anyone at Wells Fargo
in those alleged responses that he was “on an approved personal leave.” UMF
& Response to UMF, Issue 4, No. 319; Ivey Depo., 116:18-118:18.
·
By the time Ivey contacted Plaintiff,
Liberty had sent Plaintiff and Dr. Avakyan five letters and called Plaintiff
three times regarding the fact that his medical leave ended, his continued
leave was unapproved, and that he could be terminated, but Plaintiff never
responded to Liberty, nor did he contact Roy Rico. UMF, Issue 4, No. 9-18.
Further, Ivey reviewed Liberty’s correspondence, which repeatedly established
that Plaintiff was on an unapproved leave of absence since March 2019. She also
contacted Rico, who confirmed that Plaintiff had not responded to him and not
returned to work. Ivey Decl., ¶ 4; UMF, Issue 2, No.
1-18. Ivey then sent Plaintiff an email requesting that he take immediate
action and submit the required medical certification to justify his absences by
August 1, 2019, but Plaintiff failed to. Ivey Decl., ¶ 5-6. Regarding Plaintiff
finally responded to Ivey by leaving voicemails, Plaintiff has no evidence that
he said anything about a “personal leave,” or his alleged “stress” or anything
else that would cause Ivey to doubt that he was on an unapproved leave of
absence. Depo. 189:6-190:19, 205:22-206:7, 381:15-382:23; Ivey Depo,
116:18-118:18.
·
Wells Fargo had no knowledge of
Plaintiff’s alleged continued stress, so it could not have terminated him
because of that alleged continued stress. Furthermore, Plaintiff repeatedly
testified that he requested a personal leave of absence to care for his mother,
not because of his stress. Depo., 72:14-21, 75:2-17, 168:5-169:10.
·
Plaintiff could not possibly have been on
a protected personal leave of absence at the time of his August 2019
termination because it is undisputed that such a personal leave is limited to
six months, and therefore would have expired in June 2019. UMF & Response
to UMF, Issue 4, No. 32.
·
Plaintiff’s claim for disability
discrimination (and his derivative claims for failure to prevent discrimination
and wrongful termination) suffer from a
flaw – namely, Plaintiff’s admission that he was not terminated because
of his disability.
·
Plaintiff’s admissions that the only
accommodation he needed was a leave of absence and that he was granted every
leave of absence he requested for his alleged disability, are fatal to his
claims for Failure to Accommodate and Failure to Engage in the Interactive
Process.
·
While Plaintiff alleges that Wells Fargo
“did nothing to undo the termination” (PMF 36), Plaintiff’s admits that he
never contested his termination (Depo., 189:16-192:8; 193:16-18; 193:23-194:21;
202:10-16).
·
Plaintiff did not oppose as to the Sixth
Cause of Action for Violation of the CFRA, and his claim for punitive damages.
See Motion, 25:6-26:15; Response to UMF, Issue 10, No. 1-2; Issue 12, No. 1-3.
RP
Positions
Opposing party advocates denying, for reasons
including the following:
·
Plaintiff Mr. Mejia requested that the
leave be changed from medical leave, to a personal leave of absence, which
Defendants approved and granted. Defendants then terminated Mr. Mejia due to
him being on an alleged unapproved leave of absence.
·
Defendants failed to maintain accurate
records relating to leave requests of its employees.
·
Defendants failed to maintain policies to
ensure reliable channels of communication between Defendants and its employees.
·
Defendants failed to maintain policies and
provide training to prevent discrimination.
·
After learning that Mr. Mejia should not
have been terminated, Defendants left took no steps to attempt to remedy the
situation and left the termination in effect.
·
Tentative
Ruling
Both motions are granted.
Burdens of Proof
Defendants have filed evidence showing no adverse
actions as to any protected activity.
However, Plaintiff’s material evidence consists of unreasonable
inferences, equivocality, and insubstantiality.
For example, Plaintiff’s deposition testimony shows extensive lack of
recollection as to the time period involving unpaid leave and repeated
communications from the employer questioning leave, and Plaintiff’s evidence
shows a lack of documentation or computer entries about personal leave by
either Plaintiff or defendants.
Plaintiffs must produce substantial, responsive
evidence that the employer's showing was untrue or pretextual. Addy v.
Bliss & Glennon (1996) 44 Cal.App.4th 205, 215. Summary judgment is properly granted where a
plaintiff fails to establish a prima facie case of employment
discrimination. Levy v. Regents of Univ. of Cal. (1988) 199
Cal.App.3d 1334, 1348. “If plaintiff
produces no evidence from which a reasonable fact finder could infer
that the employer's true reason was discriminatory, the employer is entitled to
summary judgment.” Hicks v. KNTV
Television, Inc. (2008) 160 Cal.App.4th 994, 1003. “[S]ummary judgment may be appropriate even
if there are disputed factual issues; if the defendant's showing negates an
essential element of the plaintiff's case, no amount of factual conflict upon
other aspects of the case will preclude summary judgment.” Shively v. Dye Creek Cattle Co. (1994)
29 Cal. App. 4th 1620, 1627. "The
presence of a factual dispute will not defeat a motion for summary judgment
unless the fact in dispute is a material one." Saldana v.
Globe-Weis Systems Co. (1991)
233 Cal.App.3d 1505, 1518.
Assuming that unpaid leave is sufficiently in
evidence, all the proof shows, at most, is the employer’s erroneous termination
of employment during unpaid leave, which is not illegal here. To show pretext, employees must address
whether a discriminatory animus motivated employers, and not whether the
employers’ decisions were wrong, mistaken, wise, shrewd, prudent, or
competent. Arteaga v. Brink's, Inc.
(2008) 163 Cal.App.4th 327, 343.
Additionally, the employer’s failure to rehire is not
shown to be illegal, where Plaintiff’s deposition testimony shows that he
believed it would be likely futile, long and complicated to request, to try and
reverse the employment termination, meaning that it was not the employer’s choice
of inaction.
Employer
Moving parties’ declaration of Lauren MacNeil,
paragraph 2, evidences that Liberty “is the leave administrator for Wells Fargo
Bank, N.A. In response, Plaintiff’s evidence of benefits-related and other documents
from companies and the state are equivocal, because they do not competently address
factors for determining an employer for purposes of FEHA. An example of ambiguity is that commonly another
company can function as a benefits agent for the employer, without being a
joint employer. “Courts in FEHA cases
have emphasized ‘the control exercised by the employer over the employee's
performance of employment duties.’… This standard requires ‘a comprehensive and
immediate level of “day-to-day” authority’ over matters such as hiring, firing,
direction, supervision, and discipline of the employee.” Patterson v. Domino's Pizza, LLC
(2014) 60 Cal.4th 474, 499. See also Vernon v. State of
California (2004) 116 Cal.App.4th 114, 127
(in evaluating a demurrer, stating:
“We find none of the indicia of an employment relationship … in
the allegations of the first amended complaint.”)) [Emphasis added]; Lab. C. § 3351; Unemp. Ins. C. §§
606.5 and 621 (re codified independent
contractor tests).
Exhaustion
The Plaintiff’s FEHA charge failed to name the Company
Defendant. FEHA charges must encompass
Complaint allegations. Okoli v.
Lockheed Technical Operations Co. (1995) 36 Cal.App.4th 1607, 1617
(retaliation occurring after filing of charge not encompassed in charge
specifically alleging discrimination occurring before a given date). For example, marking the form complaint box
for discrimination based on “denial of family/medical leave” did not
constitution administrative exhaustion as to claims for harassment, retaliation
for complaining, and failure to accommodate a disability. Wills v. Sup. Ct. (2011) 195 Cal.App.4th 143, 153-55.
Protected
Activity
Employer adverse actions in relation to unpaid or
unapproved leave are not against the law, when there is no protected activity involved
under FEHA or CFRA.
Although Plaintiff has evidence of having earlier
taken medical leave for stress, the period of time between known medical leave,
and employment termination, was too long to reasonably infer discrimination or
retaliation. To infer retaliation based
upon timing, plaintiffs must show a relatively short time passed between the
protected activity and the adverse employment action. Loggins v. Kaiser Permanente Intern. (2007) 151 Cal.App.4th 1102, 1110 n. 6 (nine
months too long to infer retaliation). Generally,
a long period between an adverse action and the employee's protected activity
may show the lack of causation. Wysinger
v. Auto. Club of So. Cal. (2007) 157 Cal.App.4th 413, 421. Additionally, Plaintiff alleges that he was
on requested personal, unpaid leave, and not protected CFRA leave.
Failure to Accommodate
and Failure to Engage in the Interactive Process.
Plaintiff’s evidence including his deposition
testimony shows that he obtained all leave for disability accommodation
requested, before he requested unprotected, unpaid leave, not disability leave. A claim for failure to accommodate requires
showing a failure to accommodate disabilities.
E.g., Wilson v. County of
Orange (2009) 169 Cal.App.4th 1185, 1193.
Further, Plaintiff’s evidence is only equivocal as to
whether the employer knew that Plaintiff’s stress condition had continued
beyond medical leave, into extended unpaid leave that involved no medical
documentation. To show
disparate-treatment discrimination, plaintiffs must evidence that employers
were aware of the protected disability. Avila
v. Continental Airlines, Inc. (2008) 165 Cal.App.4th 1237, 1248. Employers and employees are required to
engage in communications in good faith towards exploring reasonable
accommodations as to a known disability. Claudio v. Regents of Univ. of Cal.
(2005) 134 Cal.App.4th 224, 249. As to
claims of failure to engage in the interactive process, employees “must
identify a reasonable accommodation that was available at the time the
interactive process should have occurred.”
Scotch v. Art Institute of California-Orange County, Inc. (2009)
173 Cal.App.4th 986, 994-95.
Failure
to Prevent Discrimination
The claim Failure to Prevent Discrimination fails with
the underlying claims. The requirement
is that employers take reasonable steps to prevent actual
discrimination, not to prevent theoretical discrimination that might
occur someday. See Thompson v. City Of Monrovia (2010)
186 Cal.App.4th 860, 880 (employees have
no cause of action for a failure to investigate unlawful harassment or
retaliation and to take corrective action, unless actionable misconduct has
occurred); Carter v. California Dept.
of Veterans Affairs (2006) 38 Cal.4th 914, 925 n.4 (“courts have required a
finding of actual discrimination or harassment under FEHA before a plaintiff
may prevail under section 12940, subdivision (k).”); Kelley v. Conco Companies (2011) 196
Cal.App.4th 191, 208 (courts have
required actual discrimination or harassment in order to support claims for
failure to prevent discrimination or harassment).
Evidentiary
Objections
The Court has considered the evidentiary objections in
making its ruling. As to summary
judgment or adjudication motions, judges need only rule on evidentiary
objections deemed material to the disposition.
CCP §437c(Q).