Judge Michael Shultz, Case Number: 21CMCV00161, Date: 2023-09-26 Tentative Ruling

[TENTATIVE] ORDER DENYING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND GRANTING IN PART AND DENYING IN PART DEFENDANTS’ ALTERNATIVE MOTION FOR SUMMARY ADJUDICATION OF ISSUES

The complaint alleges that Defendants employed Plaintiff, Gerardo Ramirez, as an electrician in 2014. Plaintiff suffered a work-related injury on January 9, 2017. Plaintiff contends that Defendants retaliated against Plaintiff for exercising his right to receive workers’ compensation benefits and medical care. Plaintiff alleges 10 causes of action for discrimination, retaliation and related violations of the Fair Employment and Housing Act, as well as wage and hour claims under the Labor Code. On August 26, 2021, Plaintiff dismissed the eighth cause of action for failure to provide a workplace free from discrimination, the ninth cause of action for denied continuation of employer-paid health coverage, and the 11^th cause of action for loss of consortium.

Defendants, Aegion Energy Services, Inc. (“Aegion”), Brinderson LLC (“BLLC”) (erroneously sued as Brinderson LP (“BLP”) and Brinderson CA (“BCA”); and Schultz Industrial Services, Inc. (“Schultz”) (collectively, “Defendants”) move for summary judgment or adjudication of the first through seventh causes of action (employment-related claims) and the 10^th cause of action for waiting time penalties in violation of the Labor Code. Defendants argue that they never terminated Plaintiff, and therefore, Plaintiff has not suffered an adverse employment action to support the claims for age and disability discrimination, wrongful or constructive termination, retaliation, and failure to reasonably accommodate. He remains on medical leave. Because he was not terminated, he is not entitled to accrued vacation or waiting time penalties under the Labor Code.

In opposition, Plaintiff argues that the motion cannot be granted because the material facts are disputed by Plaintiff’s evidence relating to whether Plaintiff suffered an adverse employment action. Plaintiff has documentary evidence that Defendants’ agent, Infinisource Benefit Services (“Infinisource”), terminated Plaintiff’s employment on July 31, 2020.

In reply, Defendants argue that Plaintiff’s entire lawsuit is based on a mistaken and unreasonable belief that Plaintiff had been terminated. There is no evidence that Infinisource was Defendants’ agent. Plaintiff’s evidence does not dispute any of Defendants’ material facts. Defendants object to Plaintiff’s declaration, which is inadmissible as evidence.

Summary judgment is proper “if all the papers submitted 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.” (Code Civ. Proc., § 437c(c).) As the moving party, Plaintiff’s burden is to produce admissible evidence on each element of a cause of action entitling him or her to judgment. (§437c(p)(1).) If that threshold burden is established, the burden shifts to the opposing party to show a triable issue of one or more material facts. (Code Civ. Proc., §437c(p)(1).)

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 no 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, [or] that there is no merit to a claim for [punitive] damages.” (Code Civ. Proc., § 437c subd. (f)(1).) A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty. (Code Civ. Proc., § 437c. subd.(f)(1).)

The court applies the three-step analysis to motions for summary judgment or adjudication: (1) identify the issues framed by the pleading, (2) determine whether the moving party established facts which negate the opponents’ claim, (3) if the moving party meets its threshold burden of persuasion and the burden shifts, determine whether the opposing party has controverted those facts with admissible evidence. (Torres v. Reardon (1992) 3 Cal.App.4th 831, 836.)

Plaintiff sustained a work-related injury on January 9, 2017, at the Valero Refinery Asphalt (UF 1.)[1] Plaintiff burned his right hand and injured his face, eye, right and upper-mid and lower back.” (UF 22.) Specifically, Plaintiff sustained burn injuries from an arc blast of at least 480 volts of electricity. (Defendant’s Ex. E, .pdf p. 7:15-23.) Plaintiff was hired by Defendant BLLC as an electrician at the Valero location in Wilmington on May 13, 2016[2] (UF 7.) Defendants BLP, BCA, BLLC, and Schultz are subsidiaries of Aegion. (UF 5, 6) Plaintiff claims he was terminated from his employment with Defendants on July 31, 2020, after receiving an August 20, 2020, “Notice of Continuation of Coverage” from Infinisource), Defendants’ third-party benefits coordinator, stating that Plaintiff was “involuntary terminated” from employment effective July 31, 2020 (UF 26.)

Defendants assert that from May 13, 2016, to the present, Plaintiff was not employed by Aegion’s subsidiaries, BLP, BCA, and Schultz (Fact 8, which Plaintiff disputes, contending he was employed by Aegion and its subsidiaries). BLLC hired Plaintiff on May 13, 2016 (UF 8.) Plaintiff maintains he was employed by Aegion and all of the Brinderson entity subsidiaries and Schultz. (See evidence in response to Fact 8.)

Nos. 1, 2. SUSTAIN. Plaintiff lacks foundation or personal knowledge as to the employment relationship, which is also a legal conclusion, or the relationship of Aegion and its subsidiaries.

Nos. 4, 5. SUSTAIN. The circumstances of the incident are irrelevant, and what Plaintiff was told about the condition of electricity before or after the accident is hearsay.

No. 8. SUSTAINED. The causes for Plaintiff’s injuries lacks foundation. Regardless, the issue of damage is irrelevant.

No. 12. SUSTAINED. Plaintiff does not have foundation to establish the agency relationship between Infinisource and Defendants.

No. 22 SUSTAINED. Whether discrimination, retaliation, or wrongful termination occurred is a legal conclusion. Lacks foundation.

C. Adjudication of the first cause of action for wrongful or constructive termination in violation of public policy is DENIED.

Wrongful or constructive termination requires proof of the following elements: "(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. (Haney v. Aramark Uniform Services, Inc. (2004) 121 Cal.App.4th 623, 641, 17 Cal.Rptr.3d 336 (Haney ).)" (Yau v. Santa Margarita Ford, Inc. (2014) 229 Cal.App.4th 144, 154.) Defendants contend it never terminated Plaintiff, but rather a third-party, Infinisource, sent Plaintiff a termination letter although Infinisource was not authorized to terminate Brinderson employees, nor was Infinisource acting in its scope of authority relating to Plaintiff’s separation from employment.

As a preliminary matter, Defendants attempt to claim an employment relationship between Plaintiff and BLLC only. Defendants, however, do not argue or establish with undisputed facts the absence of an employment relationship between Aegion and its subsidiaries, BLP, BCA, and Schultz, on the one hand, and Plaintiff on the other. That issue is not expressly identified as an issue to be adjudicated, nor do the moving papers discuss the applicable authority and supporting facts to establish the existence or non-existence of an employment relationship as distinguished from an independent-contractor relationship, which is a multi-faceted test. (Ayala v. Antelope Valley Newspapers, Inc. (2014) 59 Cal.4th 522, 531.)[3] To establish the employment relationship with BLLC only, Defendants rely solely on the declaration of Jessica Perez-Okuno, BLLC’s human resources manager. (Perez-Okuno declaration, ¶ 2-3 .) There is no basis for the conclusion that Plaintiff was not employed by the other Brinderson entities and Schultz. (Id. at ¶ 8.)

Perez-Okuno’s declaration that Plaintiff was never terminated is a conclusion without any factual support as is the assertion that Plaintiff was on a medical leave of absence since January 12, 2017. (Perez-Okuno declaration, ¶ 11-12, 15.) Defendant contends that Infinisource lacked authorization to terminate BLLC employees or that Infinisource made an error in sending the document to Plaintiff declared by Perez-Okuno is conclusory and unsupported by any documentary evidence. (Perez-Okuno decl., ¶ 16.)

Declarations must be based on personal knowledge. (Code Civ. Proc., § 437c(d)) All the documents Perez-Okuno relies upon are based on information and belief. (Perez-Okuno decl., ¶ 1.) The court has discretion to deny the motion where the only proof of a material fact offered in support of the motion is a declaration by an individual who was the sole witness to that fact, or the fact is an individual’s state of mind, or lack thereof. (Code Civ. Proc., § 437(e).) Therefore, Facts 8, 24, 32 are unsupported by Perez-Okuno’s sole declaration.

Defendants attempt to establish that Plaintiff was on medical leave because he testified at his deposition that this was his belief. (Defendants Ex. B, Vol. I, 240:245-241:1.) Defendants then contend that Plaintiff was on “a leave of absence.” (DP 54.)[4] There is insufficient documentary evidence to establish that Defendants placed him on leave in the first instance, medical or otherwise, except for the sole Perez-Okuno declaration. Whether he was on leave “to the present” is controverted by the letter of termination sent by Infinisource on August 20, 2020. Fact 55 is disputed.

Defendants contend that Plaintiff was under a “mistaken belief that he was terminated.” (Fact 39.) Defendants’ characterization of Plaintiff’s belief as “mistaken” is a conclusion not based on documentary evidence demonstrating Plaintiff’s belief was unreasonable. (Perez-Okuna decl., ¶ 16.) An agency relationship is ostensible “when the principal intentionally, or by want of ordinary care, causes a third person to believe another to be his agent who is not really employed by him.” (Civ. Code, § 2300.) Moreover, the existence of an agency “is a factual question within the province of the trier of fact whose determination may not be disturbed on appeal if supported by substantial evidence. [Citation.] [Citation.] Inferences drawn from conflicting evidence by the trier of fact are generally upheld. [Citation.]. (Michelson v. Hamada (1994) 29 Cal.App.4th 1566, 1576.) ‘Only when the essential facts are not in conflict will an agency determination be made as a matter of law.’” (Secci v. United Independant Taxi Drivers, Inc. (2017) 8 Cal.App.5th 846, 854.) Even if Defendants had established with evidence that Plaintiff’s belief was unreasonable, the Infinisource letter controverts that issue.

The facts supported by Plaintiff’s evidence as a whole are sufficient to infer that Defendants’ conduct was wrongful and in violation of public policy. There is no dispute that Plaintiff provided BLLC with a disability certificate on February 19, 2019 (UF 59.) There is no evidence Defendants placed Plaintiff on medical leave. Defendants admit that Plaintiff’s worker's compensation claims are currently pending. (UF 51.)

Plaintiff’s evidence demonstrates that on December 16, 2020, Plaintiff’s counsel filed a claim with the Department of Fair Employment and Housing (“DFEH”) based on the same facts alleged in the complaint. (Plaintiff’s Decl., ¶ 13.) Ms. Okuno-Perez declares that LeAnne Romesburg reached out to Plaintiff to inform him he was not actually terminated but was on medical leave. This occurred on December 23, 2020, one week after Plaintiff filed the FEHA claim. (Admitted by Plaintiff in response to requests for admission). These facts support the inference that Defendants did not place Plaintiff on medical leave, but terminated Plaintiff while he had a worker’s compensation claim pending and was unable to work. (UF 51, 55.)

D. Adjudication of the second cause of action for wrongful or constructive termination in violation of an implied employment agreement is GRANTED.

Plaintiff alleges that he had an implied contract with Defendants that they would not terminate him for other than good cause and that he would be able to continue his employment with Defendants if he carried out his duties in a proper and competent manner. Plaintiff alleges that the implied contract was grounded in the employee handbook and/or manual and Code of Ethics brochure. (UF 13.)

Defendants assert that the employment relationship was at-will, and that the handbook is not a contract of employment, nor a legal document. (Fact 16.) Plaintiff’s objection that Ms. Perez-Okuno’s declarations thereto are legal conclusions is meritorious. Defendants also rely on the employee handbook and background check acknowledgment, which Perez-Okuna declares on information and belief that the documents have “been created and/or maintained by the Brinderson.” (Perez-Okuna decl, ¶ 1.) Fact 16 is not supported by the evidence.

However, the material facts not disputed by Plaintiff warrant a different result. The Labor Code provides that an employment relationship of unspecified duration may be terminated at the will of either party. (Lab. Code, § 2922.) The statute "establishes a presumption of at-will employment. This presumption may be overcome by evidence of an implied agreement that the employment would continue indefinitely, pending the occurrence of some event such as the employer's dissatisfaction with the employee's services or the existence of a cause for termination.” (Starzynski v. Capital Public Radio, Inc. (2001) 88 Cal.App.4th 33, 37–38.) The burden is on the employee to prove the employment was not at will by evidence of a contract, express or implied, for a fixed term or to terminate only for cause. (Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654, 678 ["a contract for permanent employment, for life employment, for so long as the employee chooses, or for other terms indicating permanent employment, is interpreted as a contract for an indefinite period terminable at the will of either party...."].)

Plaintiff does not dispute his testimony that at the time he was hired, there was no specified length of employment, and no one discussed with him any length of employment. He assumed that the job would last until the project ended or “they don’t need you anymore.” (UF 18.) Plaintiff conceded that he had no idea how long the project would last, and that in the 15 years he worked as an electrician, he was repeatedly hired and laid off based on availability of work. (UF 18-19.) These undisputed material facts establish that Plaintiff’s employment with Defendants was at-will.

Plaintiff alleges he was 44 years old at the time of termination and that it is “highly probable” that he would have continued his employment as a journeyman electrician and soon-to-be licensed electrician (Complaint, 46-47.) FEHA prohibits discrimination on account of a person’s protected status (ie. age, medical condition, or disability). An employer may not “otherwise discriminate against the person in compensation or in terms, conditions, or privileges of employment." (Mixon v. Fair Employment & Housing Com. (1987) 192 Cal.App.3d 1306, 1316; Gov. Code, § 12940.) Plaintiff alleges that Defendants discriminated against him by terminating him from employment. (Complaint, ¶¶ 46-48.)

To establish a prima facie case for discrimination, Plaintiff must show "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.” (Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 355.) If proved, Plaintiff will have established a presumption.

At trial, the burden then shifts to defendant employer to rebut the presumption by producing admissible evidence, sufficient to “raise [ ] a genuine issue of fact and to justify a judgment for the [employer], that its action was taken for a legitimate, nondiscriminatory reason.” (Guz at 355–356.) If proof is sustained, the burden shifts back to the plaintiff to establish that the employer’s proffered reasons were pretexts for discrimination. (Guz at 356). This three-step, shifting burden of proof is articulated in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792.

In the context of a motion for summary judgment/adjudication, the McDonnell Douglas test is modified. The employer moving for summary judgment “proceed[s] to the second step of the McDonnell Douglas formula and [must] ‘set forth competent, admissible evidence [citations] of its reasons, unrelated to age bias, why it eliminated [the employee’s] work unit ... and thereafter chose persons other than [the employee] for vacant positions in the unit ....’” (Arnold v. Dignity Health (2020) 53 Cal.App.5th 412, 425.)

Defendants argue first that Plaintiff was not terminated, and assuming he was terminated, Plaintiff cannot establish discriminatory animus based on age as the motive for termination. Defendants cite Plaintiff’s deposition testimony wherein Plaintiff testified that he does not believe anyone discriminated against him because of age or said anything that he believed to be derogatory or demeaning because of his age. (UF 74-78.) This evidence is sufficient to sustain Defendants’ burden of production as the evidence “would require a reasonable trier of fact not to find any underlying material fact more likely than not"’ ie., there is an absence of evidence. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 851.)

Plaintiff has not proffered any evidence to support discriminatory animus based on age.

F. Adjudication of the fourth cause of action for disability discrimination is DENIED.

California law prohibits discrimination by “any employer” against “any employee” who incurs work-related injuries, and the statute has been interpreted to require an employer to provide leaves of absence to an occupationally injured employee. (Lab. Code, § 132a (a)(1).) Nor can an employer discharge or discriminate against any employee because he or she has filed a claim for compensation with his employer. (Id.) Additionally, the FEHA prohibits an employer from barring or discharging an employee or to discriminate against the person because of a physical disability or medical condition (among other grounds). (Gov. Code, § 12940(a)(1).)

Whether Plaintiff was terminated or placed on leave as Defendants contend is a triable issue of fact. Complete termination of employment “based on a mere likelihood of permanent disability” is precluded where the worker's injuries are not yet “permanent and stable.” (Barns v. Workers' Comp. Appeals Bd. (1989) 216 Cal.App.3d 524, 533.)

Whether Defendants terminated Plaintiff in the first instance or placed on medical leave is a triable issue of fact. (DF 24, 32, 38, 39, 42, 43, 44, 45, 46). Plaintiff’s evidence establishes that his worker's compensation case was still pending at the time of his termination. (Decl. of Gerardo Ramirez.) Defendants admit that since the date of the incident, Plaintiff has been under Defendants’ worker's compensation insurance. (UF 51.) This suggests that Plaintiff’s injuries have not been determined to be “permanent and stable.” (Barns at 533). Given these disputed issues of fact, adjudication of this issue is DENIED.

G. Adjudication of the fifth cause of action for denial of reasonable accommodation is DENIED.

Plaintiff alleges that Defendants “failed to do everything possible to assist his return to work, whether full duty, light duty or with restrictions and hindered or interfered with the process and continues to do so until the present time.” (Complaint ¶ 73.) Construed liberally, the complaint alleges a failure to reasonably accommodate Plaintiff’s disability/medical condition. This claim involves a separate duty imposing liability on an employer who “fail(s) 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." (Gov. Code, § 12940(n).) The statute also independently imposes liability on an employer who “fail[s] to make reasonable accommodation for the known physical or mental disability of an applicant or employee." Gov. Code, § 12940(m).)

The burden in moving for summary judgment on a claim for failure to reasonably accommodate or engage in the interactive process falls on the employer. (Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 260.) The employer has a “mandatory” obligation to engage in the “interactive process [which] requires communication and good faith exploration of possible accommodations between employers and individual employees’ with the goal of ‘identify[ing] an accommodation that allows the employee to perform the job effectively.’" (Jensen at 261.) The employer cannot prevail at summary judgment on this cause of action "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 the 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." (Jensen at 263.)

BLLC contends it accommodated Plaintiff by providing Plaintiff with medical leave. This is not supported by Perez-Okuno’s declaration as previously discussed, which is conclusory. (Fact 88 is not proved.) Regardless, that is not the type of “accommodation” contemplated by statute. There is no dispute that Plaintiff provided BLLC with a disability certificate from his doctor with modified restrictions (UF 59.) Perez-Okuno declares that BLLC evaluated other potential jobs available at the time that would satisfy Plaintiff’s restrictions, but did not have any open available positions available, and therefore, Plaintiff was “admittedly unable to perform the essential job functions of an electrician” or in any capacity. (Perez-Okuno ¶ 14.) There is no evidence establishing what efforts Defendants made to engage with Plaintiff to determine whether his medical condition could be reasonably accommodated. The declaration concludes ultimate facts without supporting evidence. Nor is there evidence that Defendants did “everything in its power” to find a reasonable accommodation or that the process broke down because of Plaintiff as Jensen requires.

Instead, Defendants place the burden on Plaintiff for failing to apply for work in any capacity or looking for another position. (UF 67-69.) These facts do not establish that Defendants engaged in a good faith communicative process and exploration with the goal of “identify[ing] an accommodation that allows the employee to perform the job effectively.’" (Jensen at 261.)

Defendants contend that Plaintiff did not request a return to full duty work. (Fact 66.) This assertion misstates Defendants’ obligation to engage, make efforts, and accommodate. The evidence proffered by Plaintiff infers that Defendants failed to respond to Plaintiff’s attempts to inquire about his employment status, his insurance status, and refused to cooperate in his medical care to permit him to return to work. (Decl of Plaintiff, ¶¶ 7-10.) As Defendants have not established that they complied with their mandatory obligations under this statute, or that Plaintiff failed to engage in the process, adjudication of this issue is DENIED.

H. Adjudication of the sixth cause of action for retaliation for engaging in protected activity pursuant to Gov. Code § 12940(h) is DENIED.

The complaint alleges that Defendants retaliated against Plaintiff when he presented his work restrictions to Defendants and pursued his remedies under the Worker's Compensation Act and/or use of the FMLA leave. (Complaint, ¶ 81).

A prima facie case of retaliation under FEHA requires plaintiff to show that “(1) he or she engaged in a protected activity; (2) the employer subjected the employee to an adverse employment action; and (3) a causal link between the protected activity and the employer's action.” (Akers v. County of San Diego (2002) 95 Cal.App.4th 1441, 1453.)

(Price v. Victor Valley Union High School District (2022) 85 Cal.App.5th 231, 249.) The retaliatory motive underlying retaliation claims “is ‘proved by showing that plaintiff engaged in protected activities, that [their] employer was aware of the protected activities, and that the adverse action followed within a relatively short time thereafter.’ (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 615, 262 Cal.Rptr. 842, italics added.) In other words, [employee] must show that the [employer] took an adverse employment action against her because she engaged in protected activity. (Price at 249-250.)

Defendants argue that Plaintiff did not suffer an adverse employment action because he was never terminated. As previously explained, this is a triable issue of fact. (DP 24, 38, 39, 46, 70.) Defendants next contend that Plaintiff cannot prove causation because the time between the industrial accident on January 9, 2017, and the time he was placed “on FMLA leave” is too attenuated to infer causation. (Mot. 27: 14-17.) Whether Plaintiff was on leave or terminated is a triable issue of fact.

Plaintiff’s evidence is sufficient to controvert the issue of whether his termination was retaliatory. Defendants contend that the protected activity occurred on January 9, 2017, however, that was the date of the accident. There is no dispute that Plaintiff presented Defendants with a disability certificate on February 19, 2019. (UF 59.) In the interim, Plaintiff was receiving worker's compensation benefits until his date of termination on July 31, 2020. (DF 70.) Additionally, Plaintiff alleges he filed an administrative claim with DFEH and received his “right to sue” notice on December 16, 2020. (Complaint, ¶ 7.)

This is material to the causation issue, although Defendants did not present it as a material fact. One week later on December 23, 2020, after Plaintiff’s termination, after he had been cut off from medical insurance, and after Plaintiff filed his DFEH claim, Defendants “reached out” to Plaintiff to state he was not in fact terminated, but had been placed on medical leave, although these material facts are not supported by any evidence documenting notification of medical leave and controverts the termination letter delivered in August in any event. (DF 39.)

Claims for unlawful discrimination and retaliation are “inherently fact driven,” and it is for the jury to determine the facts. (Nejadian v. County of Los Angeles (2019) 40 Cal.App.5th 703, 726 [Plaintiff meets the burden of proving retaliation was intentional with “competent evidence, that the employer's proffered justification is mere pretext; i.e., that the presumptively valid reason for the employer's action was in fact a coverup."].) Accordingly, adjudication of this issue is DENIED.

I. Adjudication of the seventh cause of action for failure to take necessary steps to prevent discrimination and retaliation is DENIED.

It is unlawful for an employer to fail to take reasonable steps necessary to prevent discrimination and harassment from occurring. (Gov. Code, § 12940(k).) The statute “creates a separate actionable tort enforceable upon the establishment of the usual tort elements of duty of care, breach of duty (a negligent act or omission), causation, and damages. " (Dickson v. Burke Williams, Inc. (2015) 234 Cal.App.4th 1307, 1313.)

Defendants argue that since no viable cause of action exists for discrimination, there was no duty for Defendants to act. (Mot., 28:2-6.) As previously discussed, disability discrimination remains a viable claim. While there is no dispute that BLLC has written, non-discrimination policies and procedures in place to prohibit any form of discrimination, this is insufficient to establish that Defendants did not violate their duty under Government Code, section 12940(k) by terminating Plaintiff while he had a worker's compensation claim pending. Plaintiff’s evidence controverts the inference of discrimination.

J. Adjudication of the 10th cause of action for waiting time penalties is DENIED.

If an employer discharges an employee, the wages earned and unpaid are due and payable immediately. (Lab. Code, § 201(a).) Defendants contend that they did not terminate Plaintiff. This remains disputed for the reasons previously articulated. Defendants contend that Plaintiff admitted in response to request for admission No. 49 that vacation time is available when Plaintiff returns to work. (DF 73.) This material fact does not dispose of the cause of action because the issue of his termination remains controverted.

Based on the foregoing, Defendants’ motion for summary judgment is DENIED. Defendants’ alternative motion for summary adjudication is GRANTED as to the second cause of action for termination for violation of an implied employment agreement and the third cause of action for age discrimination.

The alternative motion for summary adjudication is DENIED as to the first cause of action for wrongful termination, the fourth through seventh causes of action for violations of FEHA, and the 10^th cause of action for waiting time penalties under the Labor Code.

[1] “UF” refers to “undisputed facts.”

[2] Defendants refer to “Brinderson” in their papers to mean “Brinderson LLC”. See UF 2. The Court will use BLLC to differentiate from other Brinderson entities.

[3] The existence of an employment relationship involves the following factors: [“(a) whether the one performing services is engaged in a distinct occupation or business; (b) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the principal or by a specialist without supervision; (c) the skill required in the particular occupation; (d) whether the principal or the worker supplies the instrumentalities, tools, and the place of work for the person doing the work; (e) the length of time for which the services are to be performed; (f) the method of payment, whether by the time or by the job; (g) whether or not the work is a part of the regular business of the principal; and (h) whether or not the parties believe they are creating the relationship of employer-employee.” Ayala v. Antelope Valley Newspapers, Inc. (2014) 59 Cal.4th 522, 532.

[4] “DP” refers to “disputed facts.”