Judge Randolph M. Hammock, Case Number: 20STCV13057, Date: 2023-11-16 Tentative Ruling

Judge: Randolph M. Hammock, Case: 20STCV13057, Date: 2023-11-16 Tentative Ruling

Plaintiff Ana Rubio alleges she worked for Defendant Ameripride Services, LLC, as a Laundry Production Associate. Plaintiff alleges Defendant terminated her employment, or failed to hire her directly, after Plaintiff took time off to care for her husband after he suffered a heart attack, and, after Plaintiff was injured by falling in the workplace. Plaintiff brings causes of action against Defendant for (1) Disability Discrimination, (2) Associational Disability Discrimination, (3) Failure to Provide Reasonable Accommodations, (4) Failure to Engage in Good Faith Interactive Process, (5) Retaliation, and (6) Wrongful Termination.

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843. In analyzing motions for summary judgment, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent's claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294. Thus, summary judgment is granted when, after the Court’s consideration of the evidence set forth in the papers and all reasonable inferences accordingly, no triable issues of fact exist and the moving party is entitled to judgment as a matter of law. Code Civ. Proc. § 437c(c); Villa v. McFarren (1995) 35 Cal.App.4th 733, 741.

As to each claim as framed by the Complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520. Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” Dore v. Arnold Worldwide, Inc.¿(2006) 39 Cal.4th 384, 389. A defendant has met its burden of showing that a cause of action has no merit if it demonstrates the absence of any single essential element of plaintiff’s case or a complete defense to plaintiff’s action. Code Civ. Proc. § 437c(o)(2); Bacon v. Southern Cal. Edison Co. (1997) 53 Cal.App.4th 854, 858. Once the defendant moving party has met the burden, the burden shifts to the plaintiff to show via specific facts that a triable issue of material facts exists as to a cause of action or a defense thereto. § 437c(o)(2).

Plaintiff alleges she worked for Defendant Ameripride Services from approximately December 27, 2017 until April 13, 2018, as a Laundry Production associate. (Compl. ¶ 10.) In or around March 2018, Plaintiff’s husband suffered a heart attack. (Id. ¶ 12.) Plaintiff immediately took three days off of work to care for her husband. (Id. ¶¶ 12, 13.) In the following weeks, Plaintiff took off three more days to take her husband to various doctors’ appointments. (Id. ¶ 14.)

Plaintiff further alleges that on or around April 4, 2018, she suffered a workplace injury. (Id. ¶ 15.) “While pushing a laundry cart with a co-worker, Guillermina (last name unknown), Ms. Rubio fell, was knocked unconscious for a few minutes, and injured herself. Ms. Rubio suffered from an injured neck, shoulder, leg, and both wrists.” (Id.) Plaintiff reported the injury to her manager, Mr. Sanchez, hours after the injury occurred. (Id. ¶ 16.) Plaintiff took the next day (April 5) off and returned to work on April 6. (Id. ¶ 18.) “Throughout the following week, Ms. Rubio complained to Mr. Sanchez about the pain that she was suffering as a result of the work related injury. However, Mr. Sanchez refused to provide any accommodations and refused to send Ms. Rubio to see a doctor.” (Id.)

On April 13, 2018, Mr. Sanchez informed Plaintiff that Defendant “was not able to hire her ‘directly’ or move forward with her employment.” (Id. ¶ 21.) Mr. Sanchez allegedly told Plaintiff it was not in the company’s interest to have “a person that was going to miss work because of a husband’s illness,” or because of “complaining about injuries.” (Id.)

As an initial matter, Defendant argues it cannot be liable under the FEHA because it was not Plaintiff’s employer. The parties agree the existence of an employment relationship is necessary to support Plaintiff’s claims. (See Vernon v. State of California (2004) 116 Cal. App. 4th 114 [“FEHA predicates potential liability on the status of the defendants as an ‘employer.’”]; Weinbaum v. Goldfarb, Whitman & Cohen (1996) 46 Cal. App. 4th 1310, 1314-15 [“[T]he duty on which the tort [of wrongful termination in violation of public policy] is based is a creature of the employer-employee relationship….”].)

“The various designated tests adopted by the courts to determine the existence of an employer/employee relationship have articulated many of the same or similar governing standards, and have ‘little discernible difference’ between them. [Citations.] The common and prevailing principle espoused in all of the tests directs us to consider the ‘totality of circumstances’ that reflect upon the nature of the work relationship of the parties, with emphasis upon the extent to which the defendant controls the plaintiff's performance of employment duties. [Citations.] ‘There is no magic formula for determining whether an organization is a joint employer. Rather, the court must analyze ‘myriad facts surrounding the employment relationship in question.’ [Citation.] No one factor is decisive. [Citation.]’ [Citations.] ‘[T]he precise contours of an employment relationship can only be established by a careful factual inquiry.’ [Citation.]” (St. Myers v. Dignity Health (2019) 44 Cal. App. 5th 301, 311–12.)

“Factors to be taken into account in assessing the relationship of the parties include payment of salary or other employment benefits and Social Security taxes, the ownership of the equipment necessary to performance of the job, the location where the work is performed, the obligation of the defendant to train the employee, the authority of the defendant to hire, transfer, promote, discipline or discharge the employee, the authority to establish work schedules and assignments, the defendant's discretion to determine the amount of compensation earned by the employee, the skill required of the work performed and the extent to which it is done under the direction of a supervisor, whether the work is part of the defendant's regular business operations, the skill required in the particular occupation, the duration of the relationship of the parties, and the duration of the plaintiff's employment. [Citations.]” (Id.) These factors “cannot be applied mechanically as separate tests; they are intertwined and their weight depends often on particular combinations.” (Vernon v. State of California (2004) 116 Cal.App.4th 114, 124-125). The most important factor is “the defendant's right to control the means and manner of the workers’ performance.” (Id. at 126.)

Defendant argues it was not Plaintiff’s employer because “there was no significant control over hiring, firing, discipline, wages, hours, termination, or any conditions of Plaintiff’s employment.” (Mtn. 8: 14-15.) Instead, Defendant contends third party TalentOne was Plaintiff’s employer. There is no dispute that TalentOne is a staffing agency and AmeriPride is its client.

Defendant presents evidence that TalentOne hired Plaintiff; that Plaintiff’s employment contract provided that Rubio was an employee of TalentOne; that TalentOne set Rubio’s hours of work; that TalentOne set Plaintiff’s rate of pay; that TalentOne maintained her personnel file; and that TalentOne maintained the Policies applicable to Rubio’s employment, including an employee handbook with an applicable attendance policy. Considering this evidence, Defendant has met its initial burden.

This shifts the burden to Plaintiff to establish a triable issue. Plaintiff contends that “[d]uring the period Plaintiff performed work for AmeriPride, TalentOne relinquished all control over Plaintiff’s activities to AmeriPride supervision and management, her schedule, her job duties, her work uniform, and her work-safety equipment,” and “Plaintiff was subject to AmeriPride’s employment policies.” (Opp. 8: 12-15.)

Plaintiff concedes that TalentOne, and not Defendant, paid employees for hours worked. (SSADMF 3.) However, Plaintiff presents evidence that it was Defendant AmeriPride that was solely responsible for tracking hours, complying with all applicable state and federal wage and hour laws, maintaining a safe work environment, managing and supervising, determining work schedules, assigning job duties, providing work uninforms and safety equipment, and notifying TalentOne of injuries. (SSADMF 2.)

Plaintiff presents further evidence that AmeriPride had the power to hire and fire Plaintiff, as evidenced by the fact that Sanchez, an AmeriPride employee, both hired and terminated Plaintiff. (SSAMF 16-19, 91.) Defendant generally supervised and controlled Plaintiff’s day-to-day work schedule and conditions.

Considering the “totality of circumstances,” there is a triable issue regarding the extent to which Defendant “controls the plaintiff's performance of employment duties.” (St. Myers, supra, 44 Cal. App. 5th at 311–12.) In making this conclusion, this court emphasizes that it must “liberally construe the evidence in support of the party opposing summary judgment and resolve any doubts concerning the evidence in favor of that party.” (Medina v. Equilon Enterprises, LLC (2021) 68 Cal. App. 5th 868, 874.) Doing so here, this court finds a triable issue of material fact that precludes summary judgment.

Next, Defendant argues Plaintiff’s disability discrimination claim fails because Plaintiff cannot establish her prima facie case. Generally, to make prima facie case for FEHA discrimination, “the plaintiff must 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.” (Guz v. Bechtel Nat. Inc. (2000) 24 Cal. 4th 317, 355.)

“[T]he 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 factors.” (Galvan v. Dameron Hosp. Assn. (2019) 37 Cal. App. 5th 549, 559.)

First, Defendant contends Plaintiff cannot establish that she was a member of protected class. As framed by the Complaint, Plaintiff alleges she was a “member of a protected class, in that she suffered from an actual or perceived disability” allegedly “suffered from an injured neck, shoulder, leg, and both wrists.” (Compl. ¶ 27.)

Physical disability under FEHA includes “[h]aving any physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss that” both affects one or more of the body's major systems and “[l]imits a major life activity.” (§ 12926, subd. (m)(1).) Major life activity is “broadly construed” and includes working. (Id. subd. (m)(1)(B)(iii).) FEHA protects individuals not only from discrimination based on an existing physical disability, but also from discrimination based on a potential disability or the employer's perception that the individual has an existing or potential disability. (§§ 12926, subd. (m)(4), (5), 12926.1, subd. (b).)

Defendant presents evidence that Plaintiff testified at her deposition that her injuries caused little more than discomfort. Defendant presents further evidence that Plaintiff contends to have been diagnosed with deviated vertebrae, however, Plaintiff no longer possesses the records documents to corroborate. Defendant also presents evidence that Plaintiff did not see a doctor to treat her alleged injuries until after her employment with AmeriPride ended. Nonetheless, even assuming Plaintiff suffered these injuries, Defendant argues Plaintiff did not limit one or more major life activities.

Defendant next argues it was unaware of Plaintiff’s disability, and therefore did not perceive Plaintiff as disabled. Defendant presents evidence that Plaintiff did not inform Plaintiff that she had a disability. Rather, Plaintiff merely informed Mr. Sanchez that she had fallen on the job earlier in the day on April 3, 2018, but stated she had not been hurt and was only reporting it because it was company policy to do so. Plaintiff never discussed the injury again with Sanchez or any other supervisor.

In opposition, Plaintiff presents evidence that supervisors Sanchez, Becerra, and Feeney were award of Plaintiff’s injury. (SSADMF 69, 70.) While working her shift on April 4, 2018, Plaintiff asked Becerra to work from home the next day due to pain she was experiencing from her injury. (SSADMF 72.) Therefore, there is a triable issue on this element.

Second, Defendant argues Plaintiff cannot meet the second element of her prima facie case for discrimination because she was not performing competently in her role. Defendant presents evidence that Plaintiff was absent or left work early at least ten days during her sixteen-week tenure. Absenteeism is the only point raised by Defendant.

However, as noted in opposition, it appears that many of the days missed were due to medical issues of Plaintiff’s husband, or, Plaintiff herself. These are the very allegations that form the basis of the discrimination claims. A jury could reasonably conclude that any “attendance issues” were due to Defendant’s failure to accommodate Plaintiff’s disability. Thus, there is a triable issue on this element.

When ruling on a motion for summary adjudication in the context of a discrimination claim, “the trial court will be called upon to decide if the plaintiff has met his or her burden of establishing a prima facie case of unlawful discrimination. If the employer presents admissible evidence…that the adverse employment action was based on legitimate, nondiscriminatory factors, the employer will be entitled to summary judgment unless the plaintiff produces admissible evidence which raises a triable issue of fact material to the defendant's showing. (Moore v. Regents of Univ. of California (2016) 248 Cal. App. 4th 216, 236 [emphasis in original].) “Whether judgment as a matter of law is appropriate in any particular case will depend on a number of factors. These include the strength of the plaintiff's prima facie case, the probative value of the proof that the employer's explanation is false, and any other evidence that supports the employer's case....[Citation.] However, ‘many employment cases present issues of intent, ... motive, and hostile working environment, issues not determinable on paper. Such cases ... are rarely appropriate for disposition on summary judgment, however liberalized [summary judgment standards may] be.” (Id. [emphasis in original].)

Defendant argues that Plaintiff cannot establish a discriminatory motive. Defendant presents evidence that Plaintiff could not identify any comments from a supervisor suggesting Defendant had a discriminatory motive for her termination. Defendant likewise asserts there are no circumstances suggesting a discriminatory motive.

Along the same lines, Defendant argues that even if Plaintiff could establish a prima facie case, Defendant nonetheless had legitimate, nondiscriminatory reasons for not hiring her. Defendant contends Plaintiff had “well-documented employment issues.” (Mtn. 13: 4.) Jose Sanchez, who “managed the facility where Ms. Rubio was assigned,” submits a declaration in support of the motion. (D’s Index of Evidence, Exh. 3.) Sanchez attests that Plaintiff “would frequently leave early or not show up to work,” which led Sanchez to believe Plaintiff was not “a reliable employee.” (Id. ¶ 3.)

This shifts the burden to Plaintiff to “offer substantial evidence that the employer's stated nondiscriminatory reason for the adverse action was untrue or pretextual, or evidence 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.” (Foroudi v. Aerospace Corp. (2020) 57 Cal. App. 5th 992, 1007.) “Although an employee's evidence submitted in opposition to an employer's motion for summary judgment is construed liberally, it ‘remains subject to careful scrutiny.’” [Citation.] (Id. [emphasis added].) Moreover, the “stronger the employer's showing of a legitimate, nondiscriminatory reason, the stronger the plaintiff's evidence must be in order to create a reasonable inference of a discriminatory motive.” (Id. at 1008.)

Other than her attendance issues—which could be largely attributed to Plaintiff’s injuries—AmeriPride has not identified any issues with Plaintiff’s job performance. Plaintiff’s injury occurred on April 3, 2018. She informed Sanchez that she had “slipped and fell” that same day. (Sanchez Decl. ¶ 6.) Three days later, on April 6, 2018, Sanchez emailed Mary Apodaca, who was the Customer Administrator Manager and Human Resources representative at the facility, “summarizing [his] concerns with Ms. Rubio’s attendance.” (Id. ¶ 3.) Sanchez raised and documented Plaintiff’s “attendance issues” only three day after Plaintiff slip and fell at work. Indeed, it appears these attendance issues were due in part to her injuries. This creates an inference of a discriminatory animus.

Thus, by construing Plaintiff’s evidence liberally and resolving all evidentiary doubts in her favor, this court concludes that Plaintiff has carried her burden to demonstrate a dispute of triable fact. (Foroudi, 57 Cal. App. 5th at 1007; Horn v. Cushman & Wakefield Western (1999) 72 Cal.App.4th 798, 807 [court must identify “weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that a reason able factfinder could rationally find them unworthy of credence.”].)

In the associational discrimination context, “the ‘disability’ from which the plaintiff suffers is his or her association with a disabled person.” (Castro-Ramirez v. Dependable Highway Express, Inc. (2016) 2 Cal. App. 5th 1028, 1037.) “[T]he disability must be a substantial factor motivating the employer's adverse employment action.” (Id.)

Plaintiff presents evidence, however, that a portion of the time she missed work was to care for her husband. Indeed, Plaintiff presents evidence that Sanchez informed her at her termination meeting that he was “not interested in people who miss time over family matters.” (SSADMF 92.) Thus, Plaintiff has established a triable issue on her associational discrimination claim.

Defendant next argues that Plaintiff’s cause of action for failure to provide reasonable accommodations fails because it did not know of her disability. Defendant also argues that Plaintiff cannot articulate what changes to her job she needed. Relatedly, as to Plaintiff’s claim for failure to engage in a good faith interactive process, Defendant argues that Plaintiff never requested any accommodations.

The elements of a failure to accommodate claim are “(1) the plaintiff has a disability under the FEHA, (2) the plaintiff is qualified to perform the essential functions of the position, and (3) the employer failed to reasonably accommodate the plaintiff's disability.” (Scotch v. Art Inst. of California (2009) 173 Cal. App. 4th 986, 1009–10.)

“The ‘interactive process' required by the FEHA is an informal process with the employee or the employee's representative, to attempt to identify a reasonable accommodation that will enable the employee to perform the job effectively. [Citation.] Ritualized discussions are not necessarily required.” (Scotch v. Art Inst. of California (2009) 173 Cal. App. 4th 986, 1013.) Where a Defendant knows the offered accommodations are insufficient—even though the employer has offered all of those requested by the employee—it may still trigger [an employer’s] duties to engage in the interactive process and to consider any and all reasonable accommodations.” (Lin v. Kaiser Found. Hosps. (2023) 88 Cal. App. 5th 712, 729.)

As discussed already, there is at least a triable issue as to whether Defendant knew of Plaintiff’s disability. Moreover, considering the evidence as discussed for the preceding disability discrimination claim, Plaintiff has presented evidence of a triable issue of fact as to whether Defendant offered reasonable accommodations and engaged in the interactive process.

Based on the timing of Plaintiff’s termination just after her injury, a reasonable factfinder could conclude that Plaintiff’s termination demonstrates Defendant’s failure to offer reasonable accommodations or engage in a good faith interactive process. In so finding, this court also notes that “ ‘[b]ecause the FEHA is remedial legislation,” the court “must construe the FEHA broadly, not ... restrictively.” (Vernon v. State of California (2004) 116 Cal. App. 4th 114, 123.)

As framed by the Complaint, Plaintiff alleges that rather than offering reasonable accommodation so that she could care for her husband or take time off for her injuries, Defendant terminated or failed to hire her. (Compl. ¶ 69.) She also alleges that Defendants discriminated against her “on the account of Plaintiff’s exercising or her right to use sick leave in order to attend to her sick husband, or discrimination on the basis of Plaintiff’s actual or perceived disability. (Id. ¶ 78.)

Defendant’s argument in support of its motion for summary judgment or adjudication for these causes of action is the same as its argument for the discrimination claim. Defendant argues “[b]ecause AmeriPride had a legitimate basis for not hiring [Plaintiff] as an AmeriPride employee, her wrongful termination and retaliation claims will also fail.” (Mtn. 13: 22-23.)

“[T]o establish a prima facie case of retaliation under the FEHA, a plaintiff must show (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 existed between the protected activity and the employer's action.” (Cornell v. Berkeley Tennis Club (2017) 18 Cal. App. 5th 908, 942.)

A claim for wrongful discharge in violation of public policy requires the employee to prove (1) he or she was employed by the employer, (2) the employer discharged the employee, (3) the alleged violation of public policy was a motivating reason for the discharge, and (4) the discharge caused the employee harm. (Haney v. Aramark Unif. Servs. Inc. (2004) 121 Cal. App. 4th 623.)

As discussed with the discrimination claim, Plaintiff has established the existence of a triable issue of material fact as to whether Defendants took adverse actions against her based on absences taken to care for herself or her husband. Therefore, there is a triable issue on her retaliation and wrongful termination claims.

Finally, Defendant moves to summarily adjudicate Plaintiff’s request for punitive damages. “It is settled…that a claim for punitive damages is one of the substantive areas which is properly the subject of a motion for summary adjudication.” (Catalano v. Superior Ct. (2000) 82 Cal. App. 4th 91, 92; CCP § 437c(f)(1).)

Defendant argues that Plaintiff cannot recover punitive damages because there is no evidence of misconduct by a managing agent. Civil Code section 3294, subdivision (a) permits an award of punitive damages “for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice.” Civil Code section 3294, subdivision (b), provides that a corporate employer is not liable for punitive damages based upon the acts of its employees unless the acts were committed, authorized, or ratified by a corporate officer, director, or managing agent. (Powerhouse Motorsports Grp., Inc. v. Yamaha Motor Corp., U.S.A. (2013) 221 Cal. App. 4th 867, 885.)

Plaintiff fails to dispute that Sanchez was not a managing agent of Defendant. Instead, she attempts to rely on the federal case of Swinton v. Potomac Corp. (9th Cir. 2001) 270 F.3d 794 to argue that punitive damages may be imposed for action taken by even low-level supervisors.

This court is unaware of any California authority adopting the rule from Swinton. Rather, true to the statute’s text, California continues to recognize that punitive damages may only be imposed against a corporate employer for acts committed, authorized, or ratified by a corporate officer, director, or managing agent. (Civil Code section 3294, subdivision (b)) Therefore, Plaintiff’s request for punitive damages fails.