Judge: Michael J. Strickroth, Case: 2021-01206614, Date: 2023-05-15 Tentative Ruling
Motion for Summary Judgment and/or Adjudication
Defendant Walt Disney Parks & Resort, U.S., Inc.’s Motion for Summary Judgment is DENIED. Defendant Walt Disney Parks & Resort, U.S., Inc.’s Motion for Summary Adjudication is DENIED in part and GRANTED in part.
Defendant’s Objections (Nos. 1-4) to Plaintiff’s Declaration are OVERRULED. Defendant’s Objection to Plaintiff’s Worker’s Compensation Deposition (No. 5) is SUSTAINED based on hearsay. Defendant’s Objections to Plaintiff’s Deposition are OVERRULED.
Code of Civil Procedure section 437c, subdivision (p)(2) provides, “A defendant . . . has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action. 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.” Code of Civil Procedure section 437c, subdivision (f)(1), provides, in part, “A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has not merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim of damages, or an issue of duty.” Code of Civil Procedure section 437c, subdivision (q), states, in part, “In granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to its disposition to the motion.”
Aguilar v. Atlantic Richfield Co. (Aguilar) (2001) 25 Cal.4th 826, 850-851 (fns. 13 and 14 omitted), states, “Second, and generally, the party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact. Although not expressly, the 1992 and 1993 amendments impliedly provide in this regard for a burden of production as opposed to a burden of persuasion. A burden of production entails only the presentation of ‘evidence.’ (Evid. Code, § 110.) A burden of persuasion, however, entails the ‘establish[ment]’ through such evidence of a ‘requisite degree of belief.’ (Id., § 115.) It would make little, if any, sense to allow for the shifting of a burden of persuasion. For if the moving party carries a burden of persuasion, the opposing party can do nothing other than concede. Further, although not expressly, the 1992 and 1993 amendments impliedly provide for a burden of production to make a prima facie showing. A prima facie showing is one that is sufficient to support the position of the party in question. [Citation.]” (Italics in original.) “Summary judgment law in this state, however, continues to require a defendant moving for summary judgment to present evidence, and not simply point out that the plaintiff does not possess, and cannot reasonably obtain, needed evidence. In this particular at least, it still diverges from federal law. For the defendant must ‘support[]’ the ‘motion’ with evidence including ‘affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice’ must or may ‘be taken.’ (Code Civ. Proc., § 437c, subd. (b).) The defendant may, but need not, present evidence that conclusively negates an element of the plaintiff's cause of action. The defendant may also present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence-as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing.” Id., at 854-855; Footnotes 23 and 24 omitted; Italics in Aguilar.
Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 838 (Binder) states, “Although summary judgment might no longer be considered a ‘disfavored’ procedure, [citation], the rule continues that the moving party's evidence must be strictly construed, while the opposing party's evidence must be liberally construed.” “On a summary judgment motion, the court must therefore consider what inferences favoring the opposing party a factfinder could reasonably draw from the evidence. While viewing the evidence in this manner, the court must bear in mind that its primary function is to identify issues rather than to determine issues. [Citation.]” Id., at 839.
Cole v. Town of Los Gatos (2012) 205 Cal.App.4th 749, 756-757, provides, “The plaintiff can defeat a defense motion for summary judgment by showing either that the defense evidence itself permits conflicting inferences as to the existence of the specified fact, or by presenting additional evidence of its existence. [Citation.] The dispositive question in all cases is whether the evidence before the court, viewed as a whole, permits only a finding favorable to the defendant with respect to one or more necessary elements of the plaintiff's claims—that is, whether it negates an element of the claim ‘as a matter of law.’ [Citation.]”
“[M]any employment cases present issues of intent, and motive, and hostile working environment, issues not determinable on paper”; such cases are “rarely appropriate for disposition on summary judgment.” Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 286 (Nazir)
Nazir further states, “We offer two observations about this footnote. The first is that it ignores the advice from the leading practice treatise: ‘PRACTICE POINTER: [¶] ... [¶] Include only those facts which are truly material to the claims or defenses involved because the separate statement effectively concedes the materiality of whatever facts are included. Thus, if a triable issue is raised as to any of the facts in your separate statement, the motion must be denied!’ [Citation.]” Id. at 252.
Defendants filed a Reply Separate Statement, which is improper. Nazir, Id., at 252. The Court does not consider this filing.
1. Issue No. 1: Wright’s first cause of action for disability discrimination fails as a matter of law because Disneyland terminated Wright’s employment for a legitimate, non-discriminatory reason and there is insufficient evidence to raise a triable issue as to pretext or discriminatory motive.
The Fair Employment and Housing Act (FEHA) makes it an unlawful employment practice to discharge a person from employment or discriminate against the person in the terms, conditions, or privileges of employment, based on “race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation.” Government Code § 12940(a).)
To establish a prima facie case of discrimination, a plaintiff “must generally provide evidence that: (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 & County of San Francisco (2016) 5 Cal.App.5th 368, 378.
In FEHA discrimination claims, courts must apply the McDonnell Douglas burden-shifting framework. Under this framework, the plaintiff must prove a prima facie case; the employer must then articulate a legitimate, nonretaliatory reason for the action; and the plaintiff must then prove the employer’s reason is a pretext. Cornell v. Berkeley Tennis Club (2017) 18 Cal.App.5th 908, 942; Flait v. North American Watch Corp. (1992) 3 Cal.App.4th 467, 475-476.
A defendant’s summary judgment motion “slightly modifies the order of these [McDonnell Douglas] showings.” Wills v. Superior Court (2011) 195 Cal.App.4th 143, 160. “Consequently, [Defendant has] the initial burden to either (1) negate an essential element of [Plaintiff’s] prima facie case [] or (2) establish a legitimate, non[retaliatory] reason for terminating [Plaintiff].” Id..
“[T]o avoid summary judgment [once the employer makes the foregoing showing], 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 that the employer acted with a discriminatory animus, or a combination of the two, such that a reasonable trier of fact could conclude the employer engaged in intentional discrimination.” (Id.). Both direct and circumstantial evidence can be used to show an employer's intent to discriminate. Circumstantial evidence typically relates to such factors as the plaintiff's job performance, the timing of events, and how the plaintiff was treated in comparison to other workers. Colarossi v. Coty US Inc., (2002) 97 Cal.App.4th, 1142, 1153.
Pretext can be established by demonstrating “weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them ‘unworthy of credence,’...and hence infer ‘that the employer did not act for...the asserted non-discriminatory reasons.’” Johnson v. United Cerebral Palsy/Spastic Children's Found. of Los Angeles & Ventura Counties. (2009) 173 Cal.App.4th 740, 755.
Here, Defendant meets its initial burden by establishing facts supporting a legitimate and non-discriminatory reason for termination. Defendant establishes its sole reason for termination was Plaintiff violation of the “Last Chance Agreement.” This is sufficient to shift the burden to Plaintiff to establish evidence of pretext and/or evidence of discriminatory intent.
Plaintiff meets his burden of establishing a triable issue regarding pretext and discriminatory animus.
Mark Patterson, Plaintiff’s supervisor, testified that when he took the poll of whether Plaintiff’s co-workers felt safe, he was asking a broader question about whether Plaintiff’s disability was problematic. This is circumstantial evidence of animus.
Additionally, Plaintiff raises an issue with Defendant placing him back in the machinist role, from which he was previously transferred as an accommodation to his disability. A jury could also infer animus in placing Plaintiff back in a role his disability previously precluded him from performing. Defendant states he was placed in this role “to give Wright the highest chance of success” (UMF 44) but Plaintiff had already transferred out of the machinist role as an accommodation. Thus, this would not seem to give Plaintiff a high chance of success.
Moreover, it was only after Defendant’s medical evaluator deemed Plaintiff unfit for the machinist job that Defendant had Plaintiff sign the Last Chance Agreement.
Additionally, Plaintiff requested an accommodation in February 2019 not to teach the MAXIMO class because he was unable to see the student screens. On 4-1-19, Patterson stated in an email to Ivan Diaz:
Last week Rick asked Roy to take the lead on delivering our 'Maximo 1' class. Roy objected and got a bit upset. Eventually the two of them ended up in my office to discuss it. Essential issues:
--The class required the instructor to stand behind the student while they are seated at the computer and observe their efforts to access and manipulate the Maximo software.
--Roy states that he cannot see the student's screen from this perspective and therefore should not be asked to teach the class.
--Rick and I explained that there is no 'vision' restriction for Roy and therefore he is expected to perform the same Trainer role & activities that are required of our other Trainers.
--Roy objected, stating that we know of his vision restriction and should therefore allow for that restriction with what training activities we ask him to do.
--I asked Roy to review all options for how he might be able to lead this class, suggesting at least three options. And then he and Rick report back to me on his ability to lead the class
…….Always teach the class with another instructor. Split up the duties such that the other instructor performs the student observation role.
…….Stand behind the student and have the student describe what they see on the screen - much like a Help Desk IT person does prior to logging in to the callers system.
…….Modify the training content to have a series of exercises that are shown step-by-step by the instructor on the Room's monitor while the student performs these at their computer.
This situation suggests that we might be better off not asking him to teach this class.
A second situation will be arising soon. Roy is coming due on his AWP Classification Performance Assessment qualifications. These have a 2 year refresh and requires Roy to operate a lift to demonstrate his competency on those classifications. Since he is not allowed to operate company owned vehicles, he will not be able to perform these assessments. If his qualifications expire, he will no longer be able to qualify others on AWP refresh training. This will be another training activity he will not be able to perform.
My question to Linda Pelly was: Do we have to accommodate Roy's vision limitations without an 'official' accommodation on file? She deferred to having a quick meeting with Megan.
Make sense?
Mark (Declaration of Darius Gleason, Ex. D, WDPR RW 003762)
This evidences Patterson requested Wright take the lead in the class which Plaintiff had already indicated he did not want to teach. This is circumstantial evidence of animus.
Additionally, Patterson raised another position/function which Wright would not be able to perform recognizing the need for a future accommodation. From the email, Patterson also wants to know if they need to accommodate Wright without an “official” accommodation on file. Again, a jury can infer Patterson does not want to accommodate Wright.
On 5-30-19, Patterson emailed himself notes regarding a meeting with Wright which state:
Roy exhausted all meaningful efforts to be able to teach the Maximo 1 class. He came to this meeting to humbly say "I am not able to teach this class".
--Notably, he did not specifically ask for an accommodation due to his vision limitations, however, in effect, this is a request for accommodation.
--Why? Is he not able to teach the class? The details of the information on the teachers computer screen, and on the student's computer screen, preclude him from being able to effectively present or train the material.
With prompting from Rick, he also indicated that he is not able to teach the Handheld Training class. For the same reasons.
I said - 'I don't know what this means in terms of your job, however I will find out thorough conversation with Ivan.' I also intend to talk with the Accommodations Team - Linda Pelly. And, with Labor Relations - Barbara Kay. (Declaration of Darius Gleason, Ex. D, WDPR RW 003807)
From this email a jury could infer Patterson is threatening Wright’s job due to his request to not teach Maximo and the Handheld Training.
On 6-4-19, Patterson wrote an email to Ivan Diaz stating he spoke with “Megan Lawlor, Linda Pelly, and Shannon Peters (all 3 are on the Accommodations Team)”. The conversation regarding accommodating Wright turned to a new accusation against Wright and the start of an investigation. Patterson stated: “We all agreed that if there is any merit to this new complaint, then my issue noted below need not be considered.” (Declaration of Darius Gleason, Ex. D, WDPR RW 003807) From this a jury could infer Patterson would prefer to terminate Wright rather than continue the accommodation process.
Here, when viewed in the aggregate, there is sufficient circumstantial evidence to establish a triable issue as to discriminatory intent.
Plaintiff also raises a triable issue as to pretext. For example, Defendant’s representation of the May 2019 complaint against Plaintiff is inaccurate. The trainee did not complain Plaintiff referred to the Resort Enhancement Department as a “great group of girls and other faaaabulous people”. (Gleason Decl. Exh. D WDPR_RW_ 00111, 00116) Additionally, Mr. Schwalm did not corroborate the statements made by the trainee. (Gleason Decl. Exh. D WDPR_RW_ 00114, 00116, 00118-00122) There is also a triable issue as to whether the treatment of Fred Turner (i.e. that he was not terminated or disciplined) and whether this supports Plaintiff’s argument that the reason was pretextual.
Lastly, at a minimum, there is a triable issue as to whether there was a mixed-motive for termination.
Based on the foregoing, Plaintiff raises a triable issue of material fact as to discriminatory animus. Therefore, the Motion is DENIED as to the First Cause of Action for Disability Discrimination (Issue No. 1.)
2. Issue No. 2: Wright’s second cause of action for age discrimination fails as a matter of law because Disneyland terminated Wright’s employment for a legitimate, non-discriminatory reason, and there is insufficient evidence to raise a triable issue as to pretext or discriminatory motive.
Similar to Issue No. 1, Defendant meets its initial burden by establishing facts supporting a legitimate and non-discriminatory reason for termination. Defendant establishes its sole reason for termination was Plaintiff violation of the “Last Chance Agreement.” Plaintiff does not raise any evidence that Defendant had a discriminatory motive due to his age.
Therefore, the Motion is GRANTED as to the Second Cause of Action for Age Discrimination (Issue No. 2.)
3. Issue No. 3: Wright’s third cause of action for hostile work environment harassment based upon disability and age fails because there is insufficient evidence to raise a triable issue as to harassment based on age or disability: (1) the conduct about which Wright complains was not based on age or disability and was not severe or pervasive; and (2) the managerial personnel decisions of which he complains cannot serve as the basis for a harassment claim.
“To establish a prima facie case of a hostile work environment, [the plaintiff] must show that (1) [plaintiff] is a member of a protected class; (2) [plaintiff] was subjected to unwelcome harassment; (3) the harassment was based on [plaintiff’s] protected status; (4) the harassment unreasonably interfered with [plaintiff’s] work performance by creating an intimidating, hostile, or offensive work environment; and (5) defendants are liable for the harassment.” Ortiz v. Dameron Hospital Assn. (2019) 37 Cal.App.5th 568, 581, citing Thompson v. City of Monrovia (2010) 186 Cal.App.4th 860, 876, 112 Cal.Rptr.3d 377.
Whether Plaintiff has made a prima facie case of severe and pervasive conduct, must be determined by "looking at all the circumstances. These may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.” Miller v. Department of Corrections (2005) 36 Cal.4th 446, 462, quoting Harris v. Forklift Systems, Inc. (1993) 510 U.S. 17, 23. "[A]n employee generally cannot recover for harassment that is occasional, isolated, sporadic, or trivial; rather, the employee must show a concerted pattern of harassment of a repeated, routine, or a generalized nature. That is, when the harassing conduct is not severe in the extreme, more than a few isolated incidents must have occurred to prove a claim based on working conditions.” Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 277. "[T]he issue of whether an employee was subjected to a hostile environment is ordinarily one of fact." Nazir, supra, at 264. See also Sen. Bill No. 1300 (2017-2018 Reg. Sess.) § 1 (“Harassment cases are rarely appropriate for disposition on summary judgment . . .”).
Roby v. McKesson Corp., (2009) 47 Cal. 4th 686, 706, as modified (Feb. 10, 2010) (Roby) provides: “harassment focuses on situations in which the social environment of the workplace becomes intolerable because the harassment (whether verbal, physical, or visual) communicates an offensive message to the harassed employee.”
“[A]cts of discrimination can provide evidentiary support for a harassment claim by establishing discriminatory animus on the part of the manager responsible for the discrimination, thereby permitting the inference that rude comments or behavior by that same manager were similarly motivated by discriminatory animus.” Roby. at 707.
“Here, Roby's discrimination claim sought compensation for official employment actions that were motivated by improper bias. These discriminatory actions included not only the termination itself but also official employment actions that preceded the termination, such as the progressive disciplinary warnings and the decision to assign Roby to answer the office telephones during office parties. Roby's harassment claim, by contrast, sought compensation for hostile social interactions in the workplace that affected the workplace environment because of the offensive message they conveyed to Roby. These harassing actions included Schoener's demeaning comments to Roby about her body odor10 and arm sores, Schoener's refusal to respond to Roby's greetings, Schoener's demeaning facial expressions and gestures toward Roby, and Schoener's disparate treatment of Roby in handing out small gifts. None of these events can fairly be characterized as an official employment action. ¶ None involved Schoener's exercising the authority that McKesson had delegated to her so as to cause McKesson, in its corporate capacity, to take some action with respect to Roby. Rather, these were events that were unrelated to Schoener's managerial role, engaged in for her own purposes.” Id. at 708-709.
The Court in Roby stated in fn. 10: “The Court of Appeal suggested that supervisor Schoener's demeaning comments about Roby's body odor were necessary personnel management actions, not acts of harassment, because Schoener needed to take action in response to the complaints of other employees. (See Hannoon v. Fawn Eng'g Corp. (8th Cir.2003) 324 F.3d 1041, 1047 [Title VII case].) Here, however, the evidence supports the jury's conclusion that Schoener handled the matter in a way that was unnecessarily demeaning, including reprimanding Roby in front of coworkers and telling Roby “to take more showers.” It was the demeaning manner in which Schoener addressed this issue that constituted the harassment.”
Roby further states: “[S]ome official employment actions done in furtherance of a supervisor's managerial role can also have a secondary effect of communicating a hostile message. This occurs when the actions establish a widespread pattern of bias. (Miller, supra, 36 Cal.4th at p. 466, 30 Cal.Rptr.3d 797, 115 P.3d 77.) Here, some actions that Schoener took with respect to Roby are best characterized as official employment actions rather than hostile social interactions in the workplace, but they may have contributed to the hostile message that Schoener was expressing to Roby in other, more explicit ways. ¶ These would include Schoener's shunning of Roby during staff meetings, Schoener's belittling of Roby's job, and Schoener's reprimands of Roby in front of Roby's coworkers. Moreover, acts of discrimination can provide evidentiary support for a harassment claim by establishing discriminatory animus on the part of the manager responsible for the discrimination, thereby permitting the inference that rude comments or behavior by that same manager was similarly motivated by discriminatory animus.”(Id. at 709.
Here, Defendant establishes that none of Wright’s supervisors made any negative or derogatory comments about his age or disability. Thus, Defendant meets its initial burden that there was no severe or pervasive conduct.
The burden then shifts to Plaintiff. Plaintiff fails to provide evidence of any conduct that would rise to the level of severe or pervasive. Patterson taking a poll of who felt unsafe driving with Wright is not severe and pervasive. Plaintiff does not raise additional incidents of any demeaning conduct that he suffered at the hands of his supervisors.
Plaintiff argues adverse employment actions can constitute harassment and cites Roby. However, Roby states that adverse employment actions or acts of discrimination can support a harassment claim by establishing a discriminatory animus to attribute to rude conduct or behavior. Here, unlike Roby, there is no rude conduct or behavior to attribute any discriminatory animus.
Therefore, the Motion is GRANTED as to the Third Cause of Action for Harassment (Issue No. 3.)
4. Issue No. 4: Wright’s fourth cause of action for retaliation for engaging in protected activity fails because Disneyland terminated Wright’s employment for a legitimate, non-retaliatory reason, and there is insufficient evidence to raise a triable issue as to pretext or retaliatory motive.
In order to recover on a FEHA retaliation claim, Plaintiff must show: (i) he engaged in protected activity; (ii) Defendant took adverse employment action against him; and (iii) the protected activity was a “substantial motivating reason” for the adverse action. (CACI 2025.) “A ‘substantial motivating reason’ is a reason that actually contributed to the [specify adverse employment action]. It must be more than a remote or trivial reason. It does not have to be the only reason motivating the [adverse employment action].” (CACI 2507.)
Pursuant to Government Code § 12940(h), it is unlawful to retaliate against a person “because the person has opposed any practices forbidden under [FEHA] or because the person has filed a complaint, testified, or assisted in any proceeding under [FEHA].” It is also unlawful to retaliate against a person for requesting an accommodation for religious practice or disability, regardless of whether the request is granted. Govt. Code § 12940(l), (m)(2).)
“Actions for retaliation are ‘inherently fact-driven’; it is the jury, not the court, that is charged with determining the facts.” McCoy v. Pacific Maritime Assn. (2013) 216 Cal.App.4th 283, 299.
Similar to Issue No. 1, Here, Defendant meets its initial burden by establishing facts supporting a legitimate and non-discriminatory reason for termination. Defendant establishes that its sole reason for termination was Plaintiff violation of the “Last Chance Agreement.” Plaintiff raises the similar triable issues as discrimination. Plaintiff requested accommodations in February 2019 to not teach the Maximo class. Then Patterson requested Plaintiff take the lead in the Maximo class, which upset Plaintiff and he requested the accommodation again. Plaintiff did not receive the accommodation because he was terminated and from the emails, as discussed above, a retaliatory animus can be inferred. Thus, there is a triable issue as to whether Defendant’s decision to terminate Plaintiff was motivated by his request for accommodation.
Therefore, the Motion is DENIED as to the Fourth Cause of Action for Retaliation (Issue No. 4.)
5. Issue No. 5: Wright’s fifth cause of action for failure to prevent discrimination and retaliation fails because (1) Disneyland took and continues to take reasonable steps to prevent discrimination, including the implementation of workplace policies and practices designed to prevent discrimination in the workplace; and, in any event (2) Wright did not experience discrimination or retaliation.
It is also unlawful for an employer to “to fail to take all reasonable steps necessary to prevent discrimination…from occurring.” Govt. Code § 12940(k). However, a finding of actual discrimination, harassment, or retaliation under FEHA is required before a plaintiff may prevail on a claim for failure to prevent discrimination, harassment, or retaliation. Dickson v. Burke Williams, Inc. (2015) 234 Cal.App.4th 1307, 1314.
Here, Plaintiff’s discrimination and retaliation causes of action survive. Therefore, the Motion is DENIED as to the Fifth Cause of Action for Retaliation (Issue No. 5.)
6. Issue No. 6: Wright’s sixth cause of action for failure to engage in the interactive process fails because the undisputed facts show that Wright was at all relevant times reasonably accommodated and Disneyland reasonably and in good faith engaged with Wright in the interactive process.
To establish his claim that Defendant failed to engage in the interactive process, Plaintiff must prove: (1) he was employed by Defendant; (2) he had a disability known to Defendant; (3) he requested a reasonable accommodation so that he could perform the essential job requirements; (4) he was willing to participate in the interactive process; (5) Defendant failed to engage in the interactive process; and (6) resulting harm. (CACI No. 2546.) If the interactive process fails, liability "for the failure rests with the party who failed to participate in good faith." Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34 54.
Here, Defendant contends it provided Wright with all of the reasonable accommodations he requested. (UMF No. 101.) Defendant also contends Wright did not provide any documentation after December 2016 identifying any further medical restrictions or accommodation requests and instead submitted documentation in October 2018 that he did not require any additional accommodations other than those he already received. (UMF 102).
Plaintiff correctly contends that Defendant’s UMF 101 does not account for Plaintiff’s request to not teach the Maximo course. This accommodation was not provided prior to Plaintiff’s termination. Thus, Defendant’s evidence does not support its material fact and Defendant fails to meet its initial burden.
Even if Defendant did meet its initial burden there is a triable issue as to whether Defendant engaged in the interactive process to determine an accommodation for Plaintiff regarding the Maximo course. In Ex. 40 to the Declaration of Patterson, Patterson stated in his 4-4-19 email to himself: “I also shared with Roy that I was not able to give him any exception to teaching a class that is required of our Department to present. I explained that there is nothing in his file which offers his vision as a limitation and, for which, we needed to make an accommodation. And, if he wanted an accommodation based on his vision, he needed to initiate the accommodation process. Roy expressed his belief that we (the Company) are fully aware of his vision limitations due to the exam that was done by Harvard Eye Institute as part of the review of his ability to perform work at Bldg 500. I explained that the exam was one of the items used to form a conclusion about Roy's ability to work at Bldg 500, not a response to a formal Roy request for accommodation due to vision limitations. Also, that the other work done with the Goodwill Co. was a means to an end - i.e. an assessment used to determine what equipment we could purchase to help Roy perform his role as a Trainer. That equipment was an accommodation to vision that resulted in the Company providing equipment.” (Patterson Decl. Ex. 40; WDPR- RW- 003806.)
Patterson seems to be claiming Defendant does not need to accommodate Plaintiff’s request to teach the Maximo class unless he “initiat[ed] the accommodation process.” But the request for accommodation does initiate the process regardless of whether it is a formal request. “Although it is the employee's burden to initiate the process, no magic words are necessary, and the obligation arises once the employer becomes aware of the need to consider an accommodation.” Gelfo, Id. at 62, fn. 22.
Therefore, there is a triable issue of fact as to whether Defendant’s response to Plaintiff’s request was failing to engage in the interactive process.
Furthermore, any attempt to engage with Plaintiff was put on-hold after the May 2019 complaint. Plaintiff was terminated before receiving the accommodation, which indicates the interactive process was cut off. This also raises a triable issue whether Plaintiff’s termination, instead of continuing to attempt to accommodate Plaintiff, was a failure to engage in the interactive process.
Therefore, the Motion is DENIED as to the Sixth Cause of Action for Failure to Engage in the Interactive Process (Issue No. 7.)
7. Issue No. 7: Wright’s seventh cause of action for failure to accommodate disability fails because Wright was at all relevant times reasonably accommodated.
To prove his claim of failure to accommodate, Plaintiff must prove: (1) he was employed by Defendant; (2) he had a disability; (3) Defendant knew of the disability; (4) Plaintiff could perform the essential duties of his position with a reasonable accommodation; (5) Defendant failed to provide reasonable accommodation; and (6) resulting harm. CACI 2541. The purpose of the interactive process is to determine what reasonable accommodation is required. Once a reasonable accommodation request has been granted, the employer has a duty to provide it; the employee has no continuing duty to ask again that it be provided. A.M. v. Albertsons, LLC (2009) 178 Cal.App.4th 455, 463-464.
As discussed in connection with Issue No. 6, there is a triable issue as to whether Defendant failed to accommodate Plaintiff’s request for accommodation regarding the Maximo course.
Therefore, the Motion is DENIED as to the Seventh Cause of Action for Failure to Accommodate (Issue No. 7.)
8. Issue No. 8: Wright’s eighth cause of action for wrongful termination in violation of the Fair Employment Housing Act (“FEHA”) fails because it is completely derivative of his baseless discrimination, harassment, and retaliation claims.
The California Supreme Court has held that an employer is liable for terminating an employee, even an at-will employee, for a reason which violates a fundamental public policy based in statute or the Constitution. Turner v. Anheuser-Busch, Inc., (1994) 7 Cal.4th 1238, 1252; Tameny v. Atlantic Richfield Co., (1980) 27 Cal.3d 167, 178. The elements of a claim for wrongful discharge in violation of public policy are (1) an employer-employee relationship, (2) the employer terminated the plaintiff's employment, (3) the termination was substantially motivated by a violation of public policy, and (4) the discharge caused the plaintiff harm. (Yau v. Santa Margarita Ford, Inc. (2014) 229 Cal.App.4th 144, 154.)
Here, Plaintiff’s discrimination and retaliation causes of action survive. Thus, he has a cause of action for wrongful termination. Therefore, the Motion is DENIED as to the Eighth Cause of Action for Wrongful Termination in Violation of Public Policy (Issue No. 8.)
9. Issue No. 9: Wright’s ninth cause of action for wrongful termination in violation of public policy fails because it is completely derivative of his baseless discrimination, harassment, and retaliation claims. Further, there is no competent evidence that Disneyland discharged Wright in violation of public policy.
Here, Plaintiff’s discrimination and retaliation causes of action survive. Thus, he has a cause of action for wrongful termination. Therefore, the Motion is DENIED as to the Ninth Cause of Action for Wrongful Termination in Violation of Public Policy (Issue No. 9.)
10. Issue No. 10: Wright’s twelfth cause of action for violation of Business & Professions Code Section 17200 et seq. fails as a matter of law because Plaintiff cannot establish a violation of FEHA or any other violations.
Here, Plaintiff’s discrimination and retaliation causes of action survive. Thus, he has a case of action for violation of Business & Professions Code Section 17200 et seq. Therefore, the Motion is DENIED as to the Tenth Cause of Action for Violation of Business & Professions Code Section 17200 et seq. (Issue No. 10.)
11. Issue No. 11: Wright’s thirteenth cause of action for intentional infliction of emotional distress (IIED) fails because (1) Wright was not subjected to “extreme or outrageous” conduct; and (2) the managerial personnel decisions Wright alleges cannot serve as the basis for an IIED claim.
“Managing personnel is not outrageous conduct beyond the bounds of human decency, but rather conduct essential to the welfare and prosperity of society. A simple pleading of personnel management activity is insufficient to support a claim of intentional infliction of emotional distress, even if improper motivation is alleged. If personnel management decisions are improperly motivated, the remedy is a suit against the employer for discrimination.” Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 80.
Here, Plaintiff depends on the same evidence provided in support of his harassment claim and the evidence surrounding his termination. This is not sufficient to show extreme and outrageous conduct. Moreover, the conduct complained of by Plaintiff were managerial personnel decisions that can support Plaintiff’s claim for discrimination but not a claim for Intentional Infliction of Emotional Distress.
Based on the foregoing, the Motion is GRANTED as to the Thirteenth Cause of Action for Intentional Infliction of Emotional Distress (Issue No. 11.)
12. Issue No. 12: Wright’s claim for punitive damages fails because (1) his underlying claims fail, and (2) he cannot demonstrate that an officer, director, or managing agent of Disneyland engaged in oppression, fraud, or malice against him.
In tort actions, where defendant is shown “by clear and convincing evidence” to have acted with “oppression, fraud or malice,” plaintiff may recover, in addition to compensatory damages, “damages for the sake of example and by way of punishment.” Civil Code section 3294(a).
“Malice” is defined as conduct which is intended by the defendant to cause injury to the plaintiff or “despicable conduct” which is carried on by the defendant with a “willful and conscious disregard of the rights” or safety of others. Civil Code section 3294(c)(1).
“Oppression” is defined as despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights. Civil Code section 3294(c)(2).
“Fraud” is defined as an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury. Civil Code section 3294(c)(3).
Cruz v. HomeBase, (2000) 83 Cal. App. 4th 160, 167–68, provides: “ ‘Managing agents’ are employees who “exercise[] substantial discretionary authority over decisions that ultimately determine corporate policy.” (White v. Ultramar, Inc., supra, 21 Cal.4th at p. 573, italics added.) ‘Corporate policy’ is not defined by statute, nor in the case law relating to punitive damages. Dictionary definitions of ‘policy’ include the following: ‘The general principles by which a government is guided in its management of public affairs.’ (Black's Law Dict. (7th ed. 1999) p. 1178); ‘A principle, plan or course of action as pursued by a government, organization, individual etc.’ (Webster's New World Dict. (3d college ed. 1991) p. 1045.) The Supreme Court has defined ‘official policy’ (in a case considering municipal liability for a sheriff's torts) as ‘formal rules or understandings—often but not always committed to writing—that are intended to, and do, establish fixed plans of action to be followed under similar circumstances consistently and over time.’ (Pembaur v. Cincinnati (1986) 475 U.S. 469, 480-481 [106 S.Ct. 1292, 1299, 89 L.Ed.2d 452].) ¶ By analogy to these definitions, ‘corporate policy’ is the general principles which guide a corporation, or rules intended to be followed consistently over time in corporate operations. A ‘managing agent’ is one with substantial authority over decisions that set these general principles and rules. White illustrates this. The court there found that a regional director of eight stores, who supervised 65 employees, and had ‘most if not all’ responsibility for running the eight stores, had sufficient authority over corporate policy to be a “managing agent.” There was a strong inference that a manager with these powers had authority to set corporate policies.”
Defendants contend Plaintiff cannot show Patterson was a managing agent. In support of this claim, Defendants offer the following paragraph in the Patterson Decl.:
“I have never been an officer, director, or managing agent of WDPR. I have never set company policy at WDPR, nor have I ever had any discretionary authority over decisions that ultimately determine WDPR’s corporate policy.”
That bare legal conclusion is insufficient to meet Defendants’ burden. Davis v. Kiewit (2013) 220 Cal.App.4th 358, 369 (Defendant “cannot satisfy its initial burden of production of evidence by making a conclusory statement of law, whether directly or through a declaration of one of its employees . . . [The defendant] had the initial burden to produce sufficient evidence to make a prima facie showing that there was no triable issue regarding whether [the employee] was a managing agent of [the defendant]. We conclude [the defendant], by simply restating the applicable legal standard under White for the determination of whether [the employee] was its managing agent, did not satisfy its initial burden of production.”)
Defendant also correctly contends Plaintiff has failed to establish evidence of malice. Defendant meets its initial burden of establishing that there is no despicable conduct. Plaintiff fails to provide any evidence of conduct that would rise to the level of malice.
Based on the foregoing, the Motion is GRANTED as to Plaintiff’s claim for Punitive Damages (Issue No. 12.)
Based on the foregoing, Defendant Walt Disney Parks & Resort, U.S., Inc.’s Motion for Summary Judgment is DENIED. Defendant Walt Disney Parks & Resort, U.S., Inc.’s Motion for Summary Adjudication is DENIED in part and GRANTED in part.
Defendant to give notice.