Judge: Stephanie M. Bowick, Case: 21STCV16720, Date: 2023-05-15 Tentative Ruling
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Case Number: 21STCV16720 Hearing Date: May 15, 2023 Dept: 19
After full consideration of the papers and evidence filed, inferences reasonably drawn therefrom, and oral argument at the hearing, Defendant Fedex Ground Package System, Inc.’s Motion for Summary Judgment is GRANTED.
The Post-Mediation Status Conference, scheduled for June 23, 2023, the Hearing on Motion to Bifurcate, scheduled for June 27, 2023, the Final Status Conference, scheduled for August 29, 2023, and the Jury Trial, scheduled for September 12, 2023, are advanced to this date and vacated.
The Court sets a Non-Appearance Case Review Re: Entry of Judgment for June 15, 2023 in Department 19 of the Stanley Mosk Courthouse.
[This is an abbreviated version of the Court's full ruling that will be ultimately filed after hearing oral argument and a final decision is made.]
This is an employment dispute case. Plaintiff Brittney Madrid (“Plaintiff”) brings suit against Defendants Fedex Ground Package System (“FGPS”), Steve Wellington, and Saul Navarro (collectively, “Defendants”) alleging the following causes of action:
1. Discrimination Based On Gender/Sex (Pregnancy) In Violation Of Cal. Govt. Code § 12940(A) (FEHA);
2. Discrimination Based On Disability (Pregnancy) In Violation Of Cal. Govt. Code § 12940(A) (FEHA);
3. Failure To Accommodate In Violation Of Cal. Govt. Code §§ 12940, Et Seq. (FEHA);
4. Failure To Engage In The Interactive Process In Violation Of Cal. Govt. Code §§ 12940, Et Seq. (FEHA);
5. Retaliation In Violation Of Cal. Govt. Code §§ 12940, Et Seq. (FEHA);
6. Failure To Prevent Discrimination And Retaliation In Violation Of Cal. Govt. Code §§ 12940, Et Seq. (FEHA);
7. Wrongful Termination In Violation Of Cal. Govt. Code § 12940(A) (FEHA);
8. Violation Of Cal. Labor Code § 1102.5; and
9. Wrongful Termination In Violation Of Public Policy.
The Complaint alleges that she began working for Defendants on or about July 3, 2019 as a Package Handler. (Compl., ¶ 9.) The Complaint alleges that, around May 7, 2020, Plaintiff learned that she was pregnant, with her physician characterizing her pregnancy as “high risk” and, as such, restricting her from performing work requiring her to life objects over 20 pounds. (Id. at ¶ 10.)
Plaintiff alleges that she provided a doctor’s note with her restrictions and that, initially, Defendants granted Plaintiff accommodations and permitted Ms. Madrid to lift and move only packages weighing less than 20lbs. (Id. at ¶ 11.) However, Plaintiff alleges that, as time wore on, Defendants stopped accommodating Plaintiff. (Id. at ¶¶ 12-13.) Plaintiff alleges that she complained about the failure to accommodate, but that she was instructed to continue work as instructed. (Id. at ¶ 14.)
Plaintiff further alleges that she then began experiencing severe morning sickness as a result of her high-risk pregnancy and that, on several occasions during late July and early August of 2020, she asked her supervisor of she could leave work early or come to work late due to her morning sickness, but that she was told that she could not and that any absences would be treated as a no-call no-show, threatening further reprimand and potential termination. (Id. at ¶ 15.)
Plaintiff alleges that, when she had to take time during work to address her morning sickness and related symptoms, she was reprimanded, including receiving a suspension. Plaintiff alleges that ultimately, she was terminated, despite Plaintiff’s requests to be accommodated. (Id. at ¶¶ 16-19.)
Defendant FGPS filed the instant Motion for Summary Judgment, or in the alternative, Summary Adjudication (the “Motion”).
Pursuant to Code of Civil Procedure section 437c, Defendant FGPS moves for summary judgment on the ground that Plaintiff cannot prevail on any of her claims.
In the alternative, pursuant to Code of Civil Procedure section 437c, subdivision (f), Defendant FGPS moves for summary adjudication of the following:
1. First and Second Causes of Action on ground that Plaintiff cannot establish that she was subject to an adverse employment action because of pregnancy or disability;
2. First, Second, and Fifth Causes of Action, and Defendant FGPS’s Thirteenth Affirmative Defense on ground that Plaintiff cannot establish that FGPS’s legitimate non-discriminatory, non-retaliatory reason for the termination of Plaintiff’s employment, specifically Plaintiff’s repeated violations of FGPS’s Package Handler Attendance Policy, was pretextual;
3. Second, Third, and Fourth Causes of Action on the ground that Plaintiff cannot establish that she suffered from a disability nor was perceived as disabled;
4. Second Cause of Action on ground that Plaintiff cannot establish that she was qualified for her position;
5. Third Cause of Action on ground Plaintiff cannot establish that she required or requested an accommodation that was not provided;
6. Fourth Cause of Action on ground that any failure to engage in the interactive process was Plaintiff’s failure;
7. Fifth Cause of Action on ground that Plaintiff cannot establish any causal link between any adverse employment action and any protected activity;
8. Sixth Cause of Action on ground that Defendant FGPS took reasonable steps to prevent and correct discrimination/harassment/retaliation;
9. Sixth Cause of Action on ground that Plaintiff cannot establish that she was subjected to discrimination or retaliation;
10. Sixth Cause of Action on ground that Plaintiff cannot establish that any alleged failure to take reasonable steps to prevent discrimination/harassment/retaliation was a substantial factor in causing the harm she suffered;
11. Seventh Cause of Action on ground that Plaintiff cannot establish that she was subject to an adverse employment action that constituted a violation of the FEHA;
12. Ninth Cause of Action on ground that Plaintiff cannot establish that she was subject to an adverse employment action that constituted a violation of any public policy; and
13. Prayer for Punitive Damages on ground that Plaintiff cannot establish “by clear and convincing evidence” that any officer, director, or managing agent of Defendant FGPS either “authorized or ratified the conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice.
EVIDENTIARY OBJECTIONS
The Court will rule on all of the evidentiary objections.
DISCUSSION
I. PRELIMINARY CONSIDERATIONS
A. Defendant FGPS’s Objection to Plaintiff’s Response to Defendant FGPS’s Separate Statement of Material Facts
In its “Objections To Plaintiff’s Response To Fedex’s Separate Statement Of Material Facts,” filed on March 29, 2023, Defendant FGPS moves to strike a number of Plaintiff’s responses to Defendant FGPS’s separate statement on the ground that they fail to comply with California Rules of Court, rule 3.1350, subdivision (f).
California Rules of Court, rule 3.1350, subdivision (f) provides as follows:
The Separate Statement in Opposition to Motion must be in the two-column format specified in (h).
(1) Each material fact claimed by the moving party to be undisputed must be set out verbatim on the left side of the page, below which must be set out the evidence said by the moving party to establish that fact, complete with the moving party's references to exhibits.
(2) On the right side of the page, directly opposite the recitation of the moving party's statement of material facts and supporting evidence, the response must unequivocally state whether that fact is "disputed" or "undisputed." An opposing party who contends that a fact is disputed must state, on the right side of the page directly opposite the fact in dispute, the nature of the dispute and describe the evidence that supports the position that the fact is controverted. Citation to the evidence in support of the position that a fact is controverted must include reference to the exhibit, title, page, and line numbers.
(3) If the opposing party contends that additional material facts are pertinent to the disposition of the motion, those facts must be set forth in the separate statement. The separate statement should include only material facts and not any facts that are not pertinent to the disposition of the motion. Each fact must be followed by the evidence that establishes the fact. Citation to the evidence in support of each material fact must include reference to the exhibit, title, page, and line numbers.
(Cal. R. Ct., 3.1350(f).)
The Court finds that Plaintiff’s responses substantially comply with California Rules of Court, rule 3.1350, subdivision (f), and that Defendant FGPS’s “objections” are to the evidence itself cited by Plaintiff in her responses. In determining if a triable issue of fact exists, the Court will only look to the evidence and will not consider any argument or commentary stated in the responses. The Court will only consider the arguments of the parties as stated in the briefing.
Accordingly, the Court DENIES Defendant FGPS’s requests to strike the responses.
B. Defendant FGPS’s “Objections To Plaintiff’s Response To Fedex’s Separate Statement Of Material Facts In Dispute”
Also on March 29, 2023, Defendant FGPS filed a document entitled “Objections To Plaintiff’s Response To Fedex’s Separate Statement Of Material Facts In Dispute” where Defendant requests that the Court grant the Motion on the ground that Plaintiff’s Separate Statement of Additional Undisputed Material Facts in Opposition to the Motion fails “to comply with the statutes governing summary judgment/adjudication….”
However, Defendant FGPS fails to explain how Plaintiff’s Separate Statement of Additional Undisputed Material Facts (the “SSAMF”) fails “to comply with the statutes governing summary judgment/adjudication.” The Court does not find that Plaintiff’s SSAMF violates California Rules of Court, rule 3.1350, subdivision (f)(3).
The Court notes that all written objections to evidence must be served and filed separately from the other papers, (Cal R. Ct., 3.1354(a)), and Defendant FGPS’s “Objections To Plaintiff’s Response To Fedex’s Separate Statement Of Material Facts In Dispute” appears to be Defendant FGPS’s responses to Plaintiff’ SSAMF.
The Court does not grant the Motion on the ground that Plaintiff’s SSAMF fails “to comply with the statutes governing summary judgment/adjudication.”
II. PROCEDURAL REQUIREMENTS
The Code of Civil Procedure requires that the notice of motion and supporting paper be served on all other parties at least 75 days prior to the hearing date, and that the motion be heard no later than 30 days prior to trial. (Code Civ. Proc., §§ 437c(a)(2), 437c(a)(3).)
Further, the Code of Civil Procedure prescribes that:
The supporting papers shall include a separate statement setting forth plainly and concisely all material facts which the moving party contends are undisputed. Each of the material facts stated shall be followed by a reference to the supporting evidence. The failure to comply with this requirement of a separate statement may in the court's discretion constitute a sufficient ground for denial of the motion.
(Code Civil Proc., § 437c(b)(1); see also Cal. R. Ct., 3.1350(c)(2) & (d).)
Here, Defendant FGPS provided the required separate statement. The Motion was timely filed and served more than 75 days before the hearing date and will be heard more than 30 days prior to trial. The Court finds the Motion timely and properly filed.
III. LEGAL STANDARDS
Code of Civil Procedure section 437c, subdivision (c) provides that:
The motion for summary judgment shall be granted 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 a judgment as a matter of law. In determining if the papers show that there is no triable issue as to any material fact, the court shall consider all of the evidence set forth in the papers, except the evidence to which objections have been made and sustained by the court, and all inferences reasonably deducible from the evidence, except summary judgment shall not be granted by the court based on inferences reasonably deducible from the evidence if contradicted by other inferences or evidence that raise a triable issue as to any material fact.
(Code Civ. Proc., § 437c(c).)
Further, pursuant to Code of Civil Procedure section 437c, subdivision (f)(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 that party contends that the cause of action has no merit or that there is no affirmative defense thereto, or that there is no merit to an affirmative defense as to any cause of action, or both, or 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.”
(Code Civil Proc., § 437c(f)(1).)
The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties' pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) In analyzing motions for summary adjudication, 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.) Pursuant to Code of Civil Procedure section 437c, subdivision (p)(2):
A defendant or cross-defendant has met his or her burden of showing that a cause of action has no merit if the 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 the cause of action. Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The plaintiff or cross-complainant shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.
(Code Civ. Proc., § 437c(p)(2).)
The California Supreme Court in Aguilar, supra, laid down the requisite burden for the party moving for summary judgment:
From commencement to conclusion, the moving party bears the burden of persuasion that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law. There is a genuine issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof. Initially, the moving party bears a burden of production to make a prima facie showing of the nonexistence of any genuine issue of material fact. If he carries his burden of production, he causes a shift: 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 genuine issue of material fact. How each party may carry his burden of persuasion and/or production depends on which would bear what burden of proof at trial. Thus, if a plaintiff who would bear the burden of proof by a preponderance of evidence at trial moves for summary judgment, he must present evidence that would require a reasonable trier of fact to find any underlying material fact more likely than not.
(Aguilar, supra, 25 Cal.4th at 857.)
The court must “view the evidence in the light most favorable to the opposing party and accept all inferences reasonably drawn therefrom.” (Hinesley, supra, 135 Cal.App.4th at 294; Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389 (Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.”).) A motion for summary adjudication must be denied where the moving party's evidence does not prove all material facts, even in the absence of any opposition, (Leyva v. Sup. Ct. (1985) 164 Cal.App.3d 462, 475), or where the opposition is weak. (Salasguevara v. Wyeth Labs., Inc. (1990) 222 Cal.App.3d 379, 384, 387.)
It is the “Golden Rule” of summary judgment and summary adjudication that “‘if it is not set forth in the separate statement, it does not exist.’” (Zimmerman, Rosenfeld, Gersh & Leeds LLP v. Larson (2005) 131 Cal.App.4th 1466, 1477 (quoting United Community Church v. Garcin (1991) 231 Cal.App.3d 327, 337 (superseded by statute on other grounds as stated in City of Pasadena v. Sup. Ct. (2014) 228 Cal.App.4th 1228).) The court may in its discretion look to evidence outside the separate statement, but “only if the evidence presented warrants it.” (Id. at 1478.)
A moving defendant has two means by which to shift the burden of proof to the plaintiff to produce evidence creating a triable issue of fact. (Brantley v. Pisaro (1996) 42 Cal.App.4th 1591, 1598.) “The defendant may rely upon factually insufficient discovery responses by the plaintiff to show that the plaintiff cannot establish an essential element of the cause of action sued upon.” (Id. (citing Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 590).) “Alternatively, the defendant may utilize the tried and true technique of negating (‘disproving’) an essential element of the plaintiff's cause of action.” (Id. (citing Chevron U.S.A., Inc. v. Superior Court (1992) 4 Cal.App.4th 544, 552-553, disapproved of on other grounds by Camargo v. Tjaarda Dairy (2001) 25 Cal.4th 1235); see Code Civ. Proc., § 437c(p)(2).)
However, to shift the burden based on factually insufficient discovery responses, the moving defendant must show that plaintiff cannot reasonably obtain evidence to prove a cause of action, which is more than simply arguing that there is an absence of evidence. (Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891.)
IV. ANALYSIS
A. First and Second Causes of Action: Disability and Gender Discrimination
Pursuant to the First and Second Causes of Action, Plaintiff alleges that Defendant FGPS discriminated against her in violation of the Fair Employment and Housing Act (“FEHA”) on the basis of disability and gender by discriminating against her on the basis of her pregnancy. (See Compl. at ¶¶ 9-20, 28.)
In ruling on a motion for summary judgment or summary adjudication on a claim for discrimination or retaliation under FEHA, California trial courts apply the three-step burden shifting test for discrimination claims set forth in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792. (Moore v. Regents of University of California (2016) 248 Cal.App.4th 216, 234, 244.)
First, the initial burden is on the plaintiff to establish a prima facie case. (Id. at 234.)
If the plaintiff meets his burden establishing a prima facie case, then a presumption of discrimination arises. (Id. (citing Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 355).) In other words, “the McDonnell Douglas test places on the plaintiff the initial burden to establish a prima facie case of discrimination” which requires a plaintiff to “show actions taken by the employer from which one can infer, if such actions remain unexplained, that it is more likely than not that such actions were based on a [prohibited] discriminatory criterion….” (Id. (quoting Reid v. Google, Inc. (2010) 50 Cal.4th 512, 520, fn. 2) (internal quotations omitted).)
Second, “the burden shifts to the 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.” (Id. (quoting Guz, supra, 24 Cal.4th at 355-356).) “‘If the employer sustains this burden [to demonstrate a genuine issue of fact that the action was for a legitimate, nondiscriminatory reason], the presumption of discrimination disappears.’” (Ibid.)
Third and finally, “[t]he plaintiff must then have the opportunity to attack the employer's proffered reasons as pretexts for discrimination, or to offer any other evidence of discriminatory motive. In an appropriate case, evidence of dishonest reasons, considered together with the elements of the prima facie case, may permit a finding of prohibited bias.” (Ibid.) As explained by the Court of Appeal in Moore:
In demonstrating that an employer's proffered nondiscriminatory reason is false or pretextual, ‘[an employee] cannot simply show that the employer's decision was wrong or mistaken, since the factual dispute at issue is whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent, or competent.... Rather, the [employee] must demonstrate such 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.’
(Id. at 235-236 (internal quotations and citations omitted).)
As the California Supreme Court in Guz v. Bechtel Nat. Inc. explains:
If, at trial, the plaintiff establishes a prima facie case, a presumption of discrimination arises. This presumption, though “rebuttable,” is “legally mandatory.” Thus, in a trial, “[i]f the trier of fact believes the plaintiff's evidence, and if the employer is silent in the face of the presumption, the court must enter judgment for the plaintiff because no issue of fact remains in the case
Accordingly, at this trial stage, the burden shifts to the 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.
If the employer sustains this burden, the presumption of discrimination disappears. The plaintiff must then have the opportunity to attack the employer's proffered reasons as pretexts for discrimination, or to offer any other evidence of discriminatory motive. In an appropriate case, evidence of dishonest reasons, considered together with the elements of the prima facie case, may permit a finding of prohibited bias. The ultimate burden of persuasion on the issue of actual discrimination remains with the plaintiff.
(Guz, supra, 24 Cal.4th at 355-356 (internal citations omitted).)
In sum, in applying the McDonnell Douglas test for the purposes of ruling on a motion for summary judgment or summary adjudication of a claim under Government Code section 12940:
…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 either that one or more of plaintiff's prima facie elements is lacking, or 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. In short, by applying [McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792]’s shifting burdens of production in the context of a motion for summary judgment, ‘the judge [will] determine whether the litigants have created an issue of fact to be decided by the jury.’ ” ... Thus, “ ‘[a]lthough the burden of proof in a [discrimination] action claiming an unjustifiable [termination] ultimately rests with the plaintiff ..., in the case of a motion for summary judgment or summary issue adjudication, the burden rests with the moving party to negate the plaintiff's right to prevail on a particular issue.... In other words, the burden is reversed in the case of a summary issue adjudication or summary judgment motion....’ ” ’
(Id. at 236 (quoting Arteaga v. Brink's, Inc. (2008) 163 Cal.App.4th 327, 343–344).)
Furthermore, “[w]hether judgment as a matter of law is appropriate in any particular case will depend on a number of factors” including “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....” (Id. (internal quotations and citations omitted).) “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. (quoting Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 286).)
“FEHA proscribes two types of disability discrimination: (1) discrimination arising from an employer's intentionally discriminatory act against an employee because of his or her disability (disparate treatment discrimination), and (2) discrimination resulting from an employer's facially neutral practice or policy that has a disproportionate effect on employees suffering from a disability (disparate impact discrimination).” (Id. at 232.)
Here, Plaintiff’s discrimination claims are premised upon alleged disparate treatment discrimination. (See Compl. at ¶¶ ¶¶ 9-20, 28.)
1. Plaintiff’s Initial Burden
The specific elements of a prima facie case of discrimination in violation of the FEHA “vary depending on the particular facts.” (Guz, supra, 24 Cal.4th at 379 (citing Texas Dept. of Community Affairs v. Burdine (1981) 450 U.S. 248, 253, fn. 6).) “Generally, 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.” (Id.)
“The prima facie burden is light; the evidence necessary to sustain the burden is minimal.” (Moore, supra, 248 Cal.App.4th at 235 (citing Heard v. Lockheed Missiles & Space Co. (1996) 44 Cal.App.4th 1735, 1751).) “Generally, an employee need offer only sufficient circumstantial evidence to give rise to a reasonable inference of discrimination.” (Id. (citing Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1002).)
Defendant FGPS contends that Plaintiff cannot establish a prima facie case of discrimination, reasoning that she cannot establish (1) that she was qualified for her position, and (2) that she suffered an adverse employment action due to her pregnancy and disability. (Motion at pp. 14-16.)
Here, the Court finds that Plaintiff meets her initial burden establishing a prima facie case of discrimination.
i. Member of a Protected Class
There is no dispute that Plaintiff learned she was pregnant in early May 2020, (Plaintiff’s response to Defendant’s SSUMF No. 25), and therefore there is no dispute that Plaintiff was a member of a protected class by early May 2020.
ii. Qualified For Position
Defendant FGPS contends that “Plaintiff’s habitual failure to attend her scheduled shifts in violation of FedEx’s attendance policy precludes her from demonstrating she was qualified for her position, which required her to attend all of her scheduled shifts.” (Motion at p. 15; see id. at pp. 3-6 (citing Defendant’s SSUMF Nos. 43, 45-47, 50-51, 112, 116).)
To establish that an employer has discriminated on the basis of a disability in violation of FEHA, the plaintiff employee has the burden of proving he or she could perform ‘the essential functions of the job with or without reasonable accommodation.’” (Atkins v. City of Los Angeles (2017) 8 Cal.App.5th 696, 716 (quoting Green v. State of California (2007) 42 Cal.4th 254, 260).)
“FEHA defines ‘essential functions’ as the ‘fundamental job duties of the employment position the individual with a disability holds or desires.’” (Id. (quoting Govt. Code, § 12926(f)).) “In connection with a discrimination claim under section 12940, subdivision (a), the court considers whether a plaintiff could perform the essential functions of the job held—or for job applicants, the job desired—with or without reasonable accommodation.” (Id. at 717.)
Government Code section 12926, subdivision (f) provides that:
(1) A job function may be considered essential for any of several reasons, including, but not limited to, any one or more of the following:
(A) The function may be essential because the reason the position exists is to perform that function.
(B) The function may be essential because of the limited number of employees available among whom the performance of that job function can be distributed.
(C) The function may be highly specialized, so that the incumbent in the position is hired based on expertise or the ability to perform a particular function.
(2) Evidence of whether a particular function is essential includes, but is not limited to, the following:
(A) The employer’s judgment as to which functions are essential.
(B) Written job descriptions prepared before advertising or interviewing applicants for the job.
(C) The amount of time spent on the job performing the function.
(D) The consequences of not requiring the incumbent to perform the function.
(E) The terms of a collective bargaining agreement.
(F) The work experiences of past incumbents in the job.
(G) The current work experience of incumbents in similar jobs.
(Govt. Code, § 12926(f).)
As explained by the Court of Appeal in Atkins:
Under FEHA, “reasonable accommodation” means “ ‘a modification or adjustment to the workplace that enables the employee to perform the essential functions of the job held or desired.’ ” ([Furtado v. State Personnel Board (2013) 212 Cal.App.4th 729, 745]… italics omitted; see Nadaf–Rahrov v. Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th 952, 974….) While the reasonableness of an accommodation is ordinarily a question of fact ([Nealy v. City of Santa Monica (2015) 234 Cal.App.4th 359, 374]…, FEHA does not require employers to eliminate essential functions of a job to accommodate a disabled employee. (See Nealy, at p. 375… [“elimination of an essential function is not a reasonable accommodation”]; Furtado, at p. 753… [waiving an essential requirement would mean that the plaintiff “would not have to demonstrate that he is a ‘qualified individual’ ” under FEHA]; [Lui v. City and County of San Francisco (2012) 211 Cal.App.4th 962, 985]… [“FEHA did not obligate defendant to accommodate plaintiff by excusing him from the performance of essential functions”]; Cal. Code Regs., tit. 2, § 11068, subd. (b) [“[w]here a quality or quantity standard is an essential job function, an employer ... is not required to lower such a standard as an accommodation”].) As the court in Nealy explained, requiring employers to eliminate an essential function of a job to accommodate a disabled employee “would be at odds with the definition of the employee's prima facie case” under FEHA. (Nealy, at p. 375….) The employee's burden includes “showing he or she can perform the essential functions of the job with accommodation, not that an essential function can be eliminated altogether to suit his or her restrictions.” (Ibid.)
(Atkins, supra, 8 Cal.App.5th at 719-720.)
Here, the Court rejects Defendant FGPS’s arguments, and finds that Plaintiff makes a prima facie showing that she was qualified for the position with or without reasonable accommodations. (Philip Horlacher Decl., ¶ 5, Ex. 3 at pp. 84-86, 88-89, 94, 98, 102-103, 105.) Defendant FGPS’s Elaine Ortega, who was a senior employee in Human Resources, concedes that they could accommodate a pregnant employee with a greater than five pound weight restriction, and concedes that they would have accommodated Plaintiff by permitting Plaintiff to leave work early if Plaintiff’s supervisor, Saul Navarro, followed procedures. (Ibid.; see Defendant’s Response to Plaintiff’s SSAMF Nos. 52, 54.)
Plaintiff also provides deposition testimony of Saul Navarro, Plaintiff’s supervisor, who testified that they accommodate employees who are disabled due to pregnancy, including by giving time off an excused absence. (Horlacher Decl. at ¶ 4, Ex. 2 at pp. 21-23.) Further, Defendant FGPS concedes that forgiving the absences could be a potential accommodation. (See Defendant’s Response to Plaintiff’s SSAMF Nos. 52-55.)
The Court agrees with Plaintiff that Defendant FGPS fails to show that Plaintiff could not have performed the essential functions of her job with or without reasonable accommodations, including permitting Plaintiff to leave early, not requiring to lift more than twenty (20) pounds, and forgiving absences when proper reasons and/or documentation is provided.
iii. Suffered Adverse Employment Action
There is no dispute that Plaintiff suffered an adverse employment action, and the Court finds that Plaintiff meets her prima facie burden demonstrating that she suffered an adverse employment action, such as termination, demotion, or denial of an available job. (Defendant’s Response to Plaintiff’s SSAMF No. 66; see Defendant’s SSUMF No. 67.)
iv. Some Other Circumstance Suggests Discriminatory Motive
Contrary to Defendant FGPS’s suggestion, Plaintiff does not need to prove a causal connection between the adverse employment action and her pregnancy for purposes of her prima facie burden. (See Motion at p. 15.) Rather, Plaintiff merely needs to present evidence that show circumstances suggesting a discriminatory motive. Defendant FGPS’s arguments are properly addressed in the second step of the McDonnell Douglas burden shifting test.
The Court finds that Plaintiff satisfies her “light burden” establishing circumstances suggesting discriminatory motive. (See, e.g., Plaintiff’s SSAMF Nos. 24, 44-46, 62-66, 77, 102, 122-123 (citing Plaintiff’s Ex. 1 at pp. 186, 204-205; Plaintiff’s Ex. 2 at pp. 30, 62, 78-79, 82-83, 89-92, 95-96, 120-121, 128-130, 138, 178-179, 187; Plaintiff’s Ex. 3 at pp. 52-53, 78, 122; Plaintiff’s Ex. 4 at p. 107; Plaintiff’s Ex. 8; Plaintiff’s Ex. 9 [Declaration of Steve Lennington], ¶ 13).)
Accordingly, a presumption of discrimination arises and the burden shifts to Defendant FGPS to rebut the presumption by producing admissible evidence, sufficient to raise a genuine issue of fact and to justify a judgment for Defendant FGPS that its termination of Plaintiff was taken for a legitimate, nondiscriminatory reason.
2. Defendant FGPS’s Burden to Rebut Presumption
Defendant FGPS contends that it had legitimate, nondiscriminatory reason for terminating Plaintiff, namely, that Plaintiff “habitually” violated its attendance policy with repeated no call/no show absences, and that Plaintiff’s failure to call in for her absences was the sole reason for Plaintiff’s termination. (Motion at pp. 1, 3-7 (citing Defendant’s SSUMF Nos. 43, 45-47, 50-51, 94-96, 98-105, 112, 116).)
Defendant FGPS provides evidence that the “Attendance Policy” for Plaintiff’s position, found in the Employee Handbook, provided as follows:
Attendance is an essential function of the package handler position. Every employee is expected to contact their manager with as much notice as possible if they are unable to report to work at the start of their scheduled work time. Any employee who habitually misses work due to unscheduled absences, tardiness, no call no show, or job abandonment, may be subject to disciplinary action, up to and including termination, unless covered by law.
(Defendant’s Ex. W [Declaration of Karen Wharton], ¶ 6, Ex. B at p. 12.)
The Court finds that the evidence cited by Defendant FGPS’s is sufficient to sustain Defendant FGPS’s burden, pursuant to the second step of the McDonnell Douglas burden shifting test, that Plaintiff’s termination was solely because Plaintiff failed to call in for her absences and thus “habitually” violated the foregoing “Attendance Policy” with repeated no call/no show absences.
The Court considers the testimony of Mr. Navarro that, before August 6, 2020, he forgave between three and five unexcused “no show, no call” absences because Plaintiff said they were pregnancy related, but that, on August 13, 2020, he decided to request Plaintiff’s termination due to three more “no call, no show” unexcused absences by Plaintiff on August 6, 2020, August 10, 2020, and August 13, 2020 where Mr. Navarro had called Plaintiff but Plaintiff failed to pick up or otherwise call to explain why she was not at work or to request leave to not go to work to deal with her pregnancy. (01/18/2023 Amberly A. Morgan Decl. [Defendant’s Ex. B], ¶ 5, Ex. D at pp. 117-118, 120-121, 127-130, 138-139, 146-147, 165-167, 178-179, 182, 188.) Mr. Navarro testified that he had a discussion with Plaintiff explaining to Plaintiff that she has to make sure she calls in every time she is not going to show up for work, and that her failure to show up for work would be forgiven as an accommodation where Plaintiff has a doctor’s note explaining her absence. (Id. at pp. 80-81, 83-84, 93, 98-100, 115-118, 120-121.)
Mr. Navarro testified that, in determining whether to terminate Plaintiff, he relied only on her attendance record, and that, had Plaintiff called back when he called and requested to take leave as he had previously discussed with Plaintiff, then he would not have proceeded with the termination. (Id. at pp. 124, 127-130, 165-167, 169-171, 177, 188, 194.) Mr. Navarro testified that he felt like he did as much as possible to accommodate Plaintiff, including by forgiving three to five “no show, no call” unexcused absences because Plaintiff said they were pregnancy related, but that he felt like he had to proceed with the termination when Plaintiff continued to not show up for work, without calling in after it was explained to Plaintiff that she needed to at least call in. (Id. at pp. 80-81, 83-84, 93, 117-118, 120-121, 138-139, 146-147, 165-167, 178-179, 182, 188.)
The Court finds this evidence sufficient to raise a genuine issue of fact and to justify a judgment for Defendant that it terminated Plaintiff not because Plaintiff’s absences may have been related to her pregnancy, but because Plaintiff repeatedly violated Defendant FGPS’s “Attendance Policy” by failing to “call in.”
Specifically, the Court finds the testimony of Mr. Navarro sufficient to establish, for purposes of the second step of the McDonnell Douglas burden shifting test, that Plaintiff’s termination was not because Plaintiff’s absences may have been related to her pregnancy, but because Plaintiff continued to fail to “call in” and therefore “habitually” violated Defendant FGPS’s “Attendance Policy” with repeated no call/no show absences, and that, had Plaintiff called in on August 6, 2020, August 10, 2020, and August 13, 2020 to explain that she was not going to come in because she had to deal with pregnancy-related issues, as Mr. Navarro previously told Plaintiff she needed to do so that the absences could be excused, she would not have been terminated.
Thus, the burden shifts to Plaintiff to attack Defendant FGPS’s proffered reasons as pretexts for discrimination, or to offer any other evidence of discriminatory motive.
3. Plaintiff’s Burden Showing Discriminatory Motive and Pretext
The Court finds that Plaintiff fails to meet her burden showing that the proffered nondiscriminatory reasons for her termination, that is, Plaintiff’s failure to “call in” as required, were merely pretexts for discrimination.
None of the evidence cited by Plaintiff is sufficient to establish for purposes of the third step of the McDonnell Douglas burden shifting test that Defendant FGPS’s proffered reason for terminating her, i.e., for her failure to call in as required, is merely a pretext for discrimination, or that Defendant FGPS’s motivation for terminating Plaintiff was discriminatory.
In her deposition testimony, Plaintiff testified that she did not know if she called anyone to let them know that she was going to be absent on April 2, 2020 and April 3, 2020, only stating that she recalls speaking to some people in the office after her shift, reasoning that she was too sick to call before her shift. (Horlacher Decl. at ¶ 3, Ex. 1 at pp. 165-168.) She testified that she was not written up for being absent on May 7, 2020 because she had given the doctor’s note to Rudy Lewis. (Id. at p. 169.) Plaintiff testified that she was absent on July 18, 2020 because it was her birthday, and that she does not recall calling someone to let them know she would be absent. (Id. at p. 175.) Plaintiff testified that she could not recall if she called in for her absences on August 1, 2020, August 6, 2020, August 10, 2020 or whether she talked to anyone on that day. (Id. at pp. 177-180, 186.)
With respect to August 13, 2020, Plaintiff testified that she did show up for work, but that she was told she was suspended for using too much PTO and told to clock out. (Id. at pp. 180-182.) However, Plaintiff’s attests in her declaration that she was absent on August 13, 2020 because she was sick. (Brittany Madrid Decl., ¶ 5.) According to the deposition excerpts provided by Plaintiff in Opposition to the Motion, Plaintiff testified that she did not recall if she called back after received a voice message or if she let anyone know that she had to leave because she was sick. (Horlacher Decl. at ¶ 3, Ex. 1 at pp. 202.)
Although Plaintiff testified that she asked her fiancé to call, Plaintiff testified she could not remember what dates. (Id. at pp. 241-242.) According to the deposition excerpts provided by Plaintiff in Opposition to the Motion, Plaintiff appears to concede that she did not “call in” but that such failure should have been excused due to her sickness. (Id. at pp. 282-283.) The Court notes that Plaintiff does not provide the transcript of her answer to the question “Did you think that you didn't need to call in and let anybody know when you were absent because you were sick?” (Id.at p. 283.)
The Court finds that Plaintiff’s deposition excerpts that were provided by Plaintiff are insufficient to establish for purposes of the instant Motion that the stated reason for Plaintiff’s termination, i.e., Plaintiff’s failure to “call in” for her August absences, was merely a pretext for discrimination. Although Plaintiff testified that “Steve Lenington” said negative things about Plaintiff’s pregnancy, (Id. at pp. 204-205), this does not establish that Plaintiff followed the requirements of Defendant FGPS’s “Attendance Policy” and “called in” when she was absent so as to establish for purposes of the instant Motion that Mr. Navarro’s stated reason for terminating Plaintiff, i.e., Plaintiff’s failure to “call in,” was merely a pretext for discrimination.
Plaintiff’s evidence suggesting that Defendant FGPS knew that Plaintiff was pregnant is insufficient to establish that Defendant FGPS’s proffered reasons for Plaintiff’s termination were mere pretext for discrimination, especially in light of the undisputed facts that Defendant FGPS excused previous absences when Plaintiff provided documentation of her pregnancy and needs for accommodation.
None of the other evidence cited by Plaintiff establishes that Plaintiff’s termination was for a discriminatory purpose rather than because she failed to “call in” as required by the “Attendance Policy.” Plaintiff provides no evidence sufficient for purposes of the third step of the McDonnell Douglas burden shifting test that she did not violate the “Attendance Policy” by failing to call in or that her failure to comply with the “Attendance Policy” was merely a pretext for discrimination. Mr. Navarro testified that, given Plaintiff’s pregnancy, they showed leeway for many “no call, no show” absences since they knew she was pregnant, but that he began suspecting that perhaps Plaintiff was “taking advantage” of her pregnancy when Plaintiff’s “no call, no show” absences were becoming a trend and Plaintiff stopped explaining her absences or providing medical documentation to excuse absences. (See Defendant’s Ex. D at pp. 80-81, 83-84, 93, 98, 115-118, 120-121.) Indeed, Plaintiff concedes that she was absent on July 18, 2020 not because she was pregnant but because it was her birthday, and that she does not recall calling someone to let them know she would be absent that day. (Horlacher Decl. at ¶ 3, Ex. 1 at p. 175.)
In sum, the Court finds, based on the asserted facts and evidence cited by Plaintiff, that Plaintiff fails to meet her burden showing that the proffered nondiscriminatory reasons for her termination, that is, Plaintiff’s failure to “call in” as required, were merely pretexts for discrimination, especially in light of the evidence that, before August 6, 2020, Mr. Navarro forgave between three and five unexcused “no show, no call” absences because Plaintiff said they were pregnancy related, but that termination was appropriate after Plaintiff continuously and repeatedly failed to “call in” after being told by Mr. Navarro that she needed to do so.
For all the foregoing reasons, the Court finds that Defendant FGPS satisfies its burden for purposes of summary adjudication that Plaintiff was terminated not due to her disability/pregnancy, but due to her repeated failure to comply with the “Attendance Policy” by failing to “call in” if she was absent. Plaintiff provides no legal authority to conclude that, as a matter of law, FEHA requires employers to exempt pregnant employees from an employer requirement that employees “call in” and explain why they are not appearing for a scheduled shift especially where, as here, the evidence suggests that Defendant FGPS worked to accommodate Plaintiff’s pregnancy by granting time off and providing leeway with respect to compliance with the employer’s attendance policy.
For these reasons, the Court GRANTS Defendant FGPS’s motion for summary adjudication of the First and Second Causes of Action.
B. Third and Fourth Causes of Action: Failure to Accommodate and Failure to Engage in Interactive Process
“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.’” (Swanson v. Morongo Unified School Dist. (2014) 232 Cal.App.4th 954, 969 (quoting Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1010).) “A reasonable accommodation is any ‘modification or adjustment to the workplace that enables the employee to perform the essential functions of the job held or desired.’” (Id. at 968-969 (quoting Scotch, supra, 173 Cal.App.4th at 1010).)
“As with a FEHA discrimination claim, the plaintiff bears the burden of proving that he or she had the ‘ability to perform the essential functions of a job with accommodation.’” (Lui v. City and County of San Francisco (2012) 211 Cal.App.4th 962, 971 (quoting Nadaf-Rahrov v. Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th 952, 977).) Thus, a plaintiff is required “to show that he was able to perform the essential functions of the administrative positions he sought with or without reasonable accommodation.” (Id.)
Furthermore, “‘[a]n employee cannot demand clairvoyance of his employer.’” (Doe v. Department of Corrections & Rehabilitation (2019) 43 Cal.App.5th 721, 738 (quoting King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 443).) “‘Where the disability, resulting limitations, and necessary reasonable accommodations, are not open, obvious, and apparent to the employer,’ ... the employee bears the burden ‘to specifically identify the disability and resulting limitations, and to suggest the reasonable accommodations.’” (Id. at 738-739 (quoting Scotch, supra, 173 Cal.App.4th at 1013).) “Additionally, ‘[a]n employer does not have to accept an employee's subjective belief that he is disabled and may rely on medical information in that respect.’” (Id. at 739 (quoting Artega v. Brink’s, Inc. (2008) 163 Cal.App.4th 327, 347[finding the employee's description of pain and numbness were subjective and the employer was entitled to rely on the fact that the physician returned the employee to work without any restrictions]).) “‘Reliance on medical opinion and an individualized assessment is especially important when the symptoms are subjective and the disease is of a type that varies widely between people.’” (Id. (quoting Leatherbury v. C&H Sugar Co., Inc. (N.D.Cal. 2012) 911 F.Supp.2d 872, 880; citing Artega, supra, 163 Cal.App.4th at 349 [“An individualized assessment of the effect of an impairment is particularly necessary when the impairment is one whose symptoms vary widely from person to person”]).)
Similarly, employer must engage in “timely, good faith interactive process . . . in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition.” (Govt. Code §12940(n); see 2 CCR §11069(a).)
As discussed above, the Court finds that Plaintiff shows that she was pregnant and was able to perform the essential functions of her job with or without reasonable accommodation. Thus, the issue is whether there is a triable issue of fact concerning whether Defendant FGPS failed to reasonably accommodate Plaintiff.
The Court finds that Defendant FGPS satisfies its burden, for purposes of summary adjudication, that Defendant FGPS reasonably accommodated Plaintiff. As discussed above, Defendant FGPS provides evidence that they provided leeway to Plaintiff with respect to the requirements in the “Attendance Policy” if she communicated that she was absent due to pregnancy-related issue, including being sick with morning sickness. (See Defendant’s Ex. D at pp. 80-85, 93, 99-100, 115-118.) Defendant FGPS’s evidence also sufficiently establishes that they accommodated her by not requiring that she lift anything over 20 pounds. (Id. at pp. 98-99.)
The Court finds that Plaintiff fails to establish he existence of a triable issue of fact. Although Plaintiff contends that Defendant FGPS stopped accommodating her after one week by ordering her to haul and sort packages exceeding 20 pounds, (see Opposition at pp. 3, 16 (citing Plaintiff’s SSAMF Nos. 18-22)), Plaintiff testified during her deposition that no one told her to lift more than 20 pounds. (Horlacher Decl. at ¶ 3, Ex. 1 at pp. 84-90.)
Plaintiff also contends that Defendant FGPS failed to accommodate and failed to engage in a good faith interactive process when Mr. Navarro failed to “loop in” HR into the discussion about Plaintiff’s absences before August 6, 2020, and that Defendant FGPS needed to do more to accommodate Plaintiff’s absences, including by forgiving the “no call, no show” absences since it knew Plaintiff was pregnant and “engaging” with Plaintiff more on August 14, 2020 after she was suspended and a decision was made to terminate Plaintiff. (Opposition at pp. 4, 17-18.)
However, as discussed above, Defendant FGPS establishes for purposes of the instant Motion that they accommodated Plaintiff’s pregnancy by excusing absences when Plaintiff complied with the “Attendance Policy” by “calling in,” and would excuse absences upon Plaintiff providing medical documentation for her absence. Plaintiff provides no legal authority to conclude that Defendant FGPS was obligated, pursuant to its obligations to reasonably accommodate Plaintiff and engage in a good faith interactive process, to assume that every time Plaintiff did not show up to work without “calling in,” it was because of Plaintiff’s pregnancy, and to forgive every “no call, no show” absence merely because it knew that Plaintiff was pregnant.
The Court notes that Plaintiff does not present any evidence that she was unable, due to her pregnancy, to comply with the requirement in the “Attendance Policy” that she call in when not showing up to her scheduled shifts, or that she requested that Defendant FGPS accommodate her by excusing her from the requirement that she “call in.” (See Department of Corrections, supra, 43 Cal.App.5th at 738-739 (quoting Scotch, supra, 173 Cal.App.4th at 1013) [“‘Where the disability, resulting limitations, and necessary reasonable accommodations, are not open, obvious, and apparent to the employer,’ ... the employee bears the burden ‘to specifically identify the disability and resulting limitations, and to suggest the reasonable accommodations.’”]; id. at 739 (quoting Artega v. Brink’s, Inc. (2008) 163 Cal.App.4th 327, 347) [“Additionally, ‘[a]n employer does not have to accept an employee's subjective belief that he is disabled and may rely on medical information in that respect.’”].)
For these reasons, the Court GRANTS Defendant FGPS’s motion for summary adjudication of the Third and Fourth Cause of Action.
C. Fifth Cause of Action: Retaliation in Violation of FEHA
The Complaint alleges that Defendant FGPS retaliated against Plaintiff for requesting accommodations, complaining that she was being ordered to perform work which violated her work restrictions, and for resisting discrimination. (Compl. at ¶ 56.)
Defendant FGPS moves for summary adjudication of the Fifth Cause of Action on the same grounds it moves for summary adjudication of the First and Second Causes of Action. (See Motion at pp. 10-14.)
Plaintiff opposes Defendant FGPS’s motion for summary adjudication of the Fifth Cause of Action for the same reasons she opposes Defendant FGPS’s motion for summary adjudication of the First and Second Causes of Action. (Opposition at pp. 19-20.)
As such, the Court GRANTS Defendant FGPS’s motion for summary adjudication of the Fifth Cause of Action for the same reasons its grants Defendant FGPS’s motion for summary adjudication of the First and Second Causes of Action.
D. Sixth Cause of Action: Failure To Prevent Discrimination And Retaliation
Defendant FGPS moves for summary adjudication of the Sixth Cause of Action on the ground that it must fail since Plaintiff’s discrimination and retaliation claims fail. (Motion at pp. 18-19.)
Since the Court finds that Defendant FGPS is entitled to summary adjudication as to Plaintiff’s claims for discrimination and retaliation, the Court agrees with Defendant FGPS that it is also entitled to summary adjudication of the Sixth Cause of Action, and the Court GRANTS Defendant FGPS’s motion for summary adjudication of the Sixth Cause of Action.
E. Seventh and Ninth Causes of Action: Wrongful Termination Claims
Defendant FGPS moves for summary adjudication of the Seventh and Ninth Causes of Action on the ground that Plaintiff’s claims for discrimination and retaliation claims fail. (Motion at p. 19.)
The Court agrees with Defendant FGPS that, since it is entitled to summary adjudication on Plaintiff’s FEHA claims, it is entitled to summary adjudication of Plaintiff’s wrongful termination claims. (See Featherstone v. Southern California Permanente Medical Group (2017) 10 Cal.App.5th 1150, 1169–1170 (citing Esberg v. Union Oil Co. (2002) 28 Cal.4th 262, 272–273, superseded by statute on another point as stated in Alch v. Superior Court (2004) 122 Cal.App.4th 339, 396–397) [“Under California law, if an employer did not violate FEHA, the employee's claim for wrongful termination in violation of public policy necessarily fails.”].)
Accordingly, the Court GRANTS Defendant FGPS’s motion for summary adjudication of Plaintiff’s Seventh and Ninth Causes of Action.
F. Prayer For Punitive Damages
The Court rejects Defendant FGPS’s assertion that “[t]here is no evidence anyone involved with Plaintiff’s termination was an officer, director or managing agent of FedEx.” (Motion at p. 20.) Mr. Navarro testified that he got approval for Plaintiff’s terminations from HR, and as correctly asserted by Plaintiff, this constitutes evidence that Defendant FGPS was aware and ratified Mr. Navarro’s request and basis for Plaintiff’s termination. (Defendant’s Ex. D at pp. 127, 129-130, 138-139, 146, 165-167, 169-171, 182, 191.)
Defendant FGPS does not cite to any facts or legal authority to conclude for purposes of summary adjudication that the individuals at human resources that Mr. Navarro talked to could not constitute a “managing agent” for purposes of punitive damages.
However, given that the Court grants Defendant FGPS’s motion for summary adjudication as to each and every of Plaintiff’s claims, Plaintiff’s Prayer for Punitive Damages necessarily fails as a matter of law as well.
Given that the Court finds that Defendant FGPS is entitled to summary adjudication as to all of Plaintiff’s claims, the Court GRANTS Defendant FGPS’s Motion for Summary Judgment