Judge: Stephen I. Goorvitch, Case: 19STCV46843, Date: 2022-08-30 Tentative Ruling

Case Number: 19STCV46843    Hearing Date: August 30, 2022    Dept: 39

Kathleen Eubank v. Barry & Taft, Inc.

Case No. 19STCV46843

Motion for Summary Judgment

BACKGROUND

            Plaintiff Kathleen Eubank (“Plaintiff”) filed this employment action against Barry & Taft, Inc. (“Defendant”) asserting the following causes of action:

            1.         Discrimination under FEHA

            2.         Retaliation under FEHA

            3.         Failure to Prevent Discrimination and Retaliation under FEHA

            4.         Failure to Provide Reasonable Accommodation under FEHA  

            5.         Failure to Engage in Good Faith Interactive Process

            6.         Retaliation under Government Code section 12945.2

            7.         Declaratory Judgment

            8.         Wrongful Termination in violation of Public Policy

Now, Defendant moves for summary judgment or, in the alternative, summary adjudication, which Plaintiff opposes.  The Court denies summary adjudication of Plaintiff’s claims that she was terminated for taking medical leave.  The Court denies summary adjudication of the second, third, and eighth causes of action.  The Court grants summary adjudication of the remaining claims.   

DISCUSSION

            A.        Plaintiff’s Alleged Disability

            It is first important to ascertain Plaintiff’s alleged disability for purposes of this lawsuit.  Plaintiff defines her alleged disability as follows: “On or about October 19, 2017, Plaintiff began suffering from intestinal issues with chronic diarrhea and urinary tract infections as symptoms.  As a result, Plaintiff informed Defendants of the same.”  (Complaint, ¶ 17.)  In Plaintiff’s declaration, she states: “In October 2017, I was hospitalized again for gastroenteritis, chest pains, hypotension, and anaphylactic shock.”  (Declaration of Kathleen Eubank, ¶ 9.)  Plaintiff’s deposition testimony makes clear that her anaphylactic shock, and not her gastroenteritis, was the reason for the hospitalization: 

            Q:        And did you go into the hospital again in 2017?

            A:        I did.

            Q:        And then would that have been in October of 2017?

            A:        Yes.

            Q:        When did you go into the hospital in October of 2017?

            A:        I went into the hospital at that time for anaphylactic shock, hypo -- hypotension and chest pain. . . .  I developed anaphylactic shock that evening.

            . . .

            Q:        As you sit here today, are you aware of why you went into anaphylactic shock?

            A:        I had a -- I believe I also had an infection.  And with the gastroenteritis -- and I -- other than that, I don’t know why I had the anaphylactic shock.

(Declaration of Catilin Sanders, Exh. #1, pp. 126-127.)  Plaintiff took a medical leave until she returned to work without restrictions on October 20, 2017.  (Id., Exh. #1, pp. 124-127, 136; see also Declaration of Millette Arredondo, ¶ 5; Declaration of Steven Davidson, ¶ 8.)  She worked continuously from December 18 to December 29, 2017.  (Id., Exh. #1, p. 136.)  Plaintiff had requested three days off to attend her son’s wedding: December 29, 2017, and January 2, 2018; and January 3, 2018.  (Plaintiff’s Response to Defendant’s Separate Statement, ¶ 23.)  It is undisputed that Plaintiff did not return to work on January 4, 2018.  (Id., ¶ 26.)  Plaintiff alleges that she “called out from work due to her chronic diarrhea and gastroenteritis.”  (Ibid.)  In her separate statement, Plaintiff defines her disability as follows: “Eubank suffered from chronic diarrhea and gastroenteritis, rendering her unable to work at the office during an episode . . . .”  (Plaintiff’s Separate Statement, ¶ 21.)  Plaintiff testified: “I continue to have chronic diarrhea and mild gastroenteritis.”  (Declaration of Catlin Sanders, Exh. #1, pp. 157-158.)    

            B.        Fourth and Fifth Causes of Action

            Plaintiff’s fourth cause of action is for failure to provide a reasonable accommodation.  The elements of this cause of action are as follows: (1) The employee has a disability covered under FEHA; (2) The employee can perform the essential functions of the position; and (3) Defendant has failed to offer a reasonable accommodation to accommodate her disability.  (Brown v. Los Angeles Unified School District (2021) 60 Cal.App.5th 1092, 1107.) 

Plaintiff’s fifth cause of action is for failure to engage in the good faith interactive process.  The elements of this cause of action are as follows: (1) Plaintiff was a qualified individual; (2) Plaintiff requested an accommodation for a disability or medical condition; (3) Plaintiff was willing to engage in an interactive process to determine effective reasonable accommodations; (4) Defendant failed to engage in a timely, good-faith interactive process, and (5) A reasonable accommodation was available.  (See Nealy v. City of Santa Monica (2015) 234 Cal.App.4th 359, 379.) 

Plaintiff testified that during her bouts of diarrhea and intestinal distress, “[she] believed that [she] was unable to perform [her] job duties at the office.”  (Declaration of Caitlin Sanders, Exh. #1, pp. 26-27.)  Plaintiff testified that she asked her supervisor, Christine Ihn, for an accommodation.  Plaintiff requested time off for her alleged disability, and the request was granted:

Q:        Did [Defendant] provide you with all of the time off that you requested in connection with your illnesses?

A:        When I called in sick because of my disability, they usually -- they granted that time off.

Q:        Was there any time off in connection with any of your illnesses that you requested that you weren’t granted by [Defendant]?

A:        Not that I recall at this time.

(Id., Exh. #1, pp. 146-147.)  Plaintiff testified: “[T]here were other accommodations that I requested for my disability,” making clear that she was “referring to [her] chronic diarrhea, frequent gastroenteritis.”  (Id., Exh. #1, p. 147.)  Specifically, Plaintiff “requested the ability to work from home, to do the paperwork that [she] was doing, to do it from home.”  (Declaration of Sylvia V. Panosian, Exh. #6, pp. 147-148.)  This is the basis for her lawsuit:

            [Plaintiff] suffered from chronic diarrhea and gastroenteritis, rendering her unable to work at the office during an episode; she informed Defendant of the same on several occasions, including in late 2017, wherein she requested to work from home on those days.  Her requests were rejected, an Ihn specifically told [her] that Barry Berger (President) did not approve.

(Plaintiff’s Separate Statement, ¶ 21.)  Although Plaintiff testified that she requested a transfer to the Pasadena office as an accommodation, she does not predicate her lawsuit on that request.  (See Declaration of Sylvia V. Panosian, Exh. #6, p. 148.)    

            Even assuming that diarrhea and gastroenteritis are disabilities, the record demonstrates that Defendant engaged in a good-faith interactive process and that Defendant did not unreasonably withhold a requested accommodation.  The basis of Plaintiff’s claims is her contention that Defendant rejected her request to work at home.  The Court cannot conclude that decision was made in bad faith.  An employer is not required to accept an employee’s subjective belief that she is disabled and may rely on medical information in that respect.  (See, e.g., Arteaga v. Brink’s, Inc. (2008) 163 Cal.App.4th 327, 347.)  This is especially true concerning conditions that are not necessarily disabilities, like diarrhea and intestinal issues.  “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.”  (Doe v. Department of Corrections & Rehabilitation (2019) 43 Cal.App.5th 721, 739, citations omitted.)  Thus, “[w]hen a disability is not obvious, the employee must submit ‘reasonable medical documentation confirm[ing] [its] existence.”  (Kao v. University of San Francisco (2014) 229 Cal.App.4th 437, 450; see also King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 444.)  

            In this case, Plaintiff represented that she had diarrhea and gastroenteritis and asked for time off to address her health issues, and to work at home.  There is no dispute that Defendant gave Plaintiff time off, per her request.  However, Plaintiff provides nothing other than her testimony stating that, in fact, she suffers from these conditions; that these conditions rise to the level of a “disability;” and that these conditions require the accommodation of working at home.  Plaintiff’s medical notes to Defendant merely state that she needed to be out of work (which Defendant accommodated) and that she would be returning “without restriction” on December 18, 2017.  (See Declaration of Sylvia V. Panosian, Exh. #19.) 

            Plaintiff also suggests that Defendant did not engage in the interactive process in good faith because it did not inform her of the availability of the Family Medical Leave Act (the “FMLA”) or the Moore-Brown-Roberti Family Rights Act (the “CFRA”).  Again, there is no dispute that Defendant gave Plaintiff time off whenever she needed it to address her medical issues.  There is no dispute that Plaintiff presented a doctor’s note returning her to work “without restriction.”  There is no dispute that Plaintiff never requested FMLA or CFRA leave, which may be conditioned of a certification by a healthcare provider (which Plaintiff did not have).  Millette Arredondo testified that she did not have a discussion with Plaintiff about FMLA or CFRA leave because Plaintiff did not request this leave, and Arredondo did not think it necessary based upon Plaintiff’s note suggesting that she had made a full recovery.  (Declaration of Sylvia V. Panosian, Exh. #3, pp. 85-87.) 

            In sum, if the Court were to deny summary judgment, it effectively would mean that an employer is required to accept an employee’s word that a seemingly ordinary health condition rises to the level of a disability; that an employer is required to offer any accommodation requested by the employee; and that an employer is required to offer FMLA leave sua sponte when there is no indication that it is necessary or appropriate given the employee’s situation.  That is not the law.  Plaintiff advances insufficient evidence to give rise to a triable issue because she gave her employer no medical documentation demonstrating that her diarrhea and intestinal distress rose to the level of a disability, and that she could not work at the office and had to work at home as a reasonable accommodation.  Therefore, the Court grants summary adjudication of the fourth and fifth causes of action.   

C.        First Cause of Action

Plaintiff’s first cause of action is for discrimination based upon age and disability.  The Court grants summary adjudication.  Defendant articulates non-age-related and non-disability-related reasons for terminating Plaintiff.  Plaintiff advances no evidence of age discrimination in this case.  As discussed, Plaintiff advances insufficient evidence that her diarrhea and intestinal distress qualifies as a “disability” under the law.  In the alternative, any such discrimination claim would be duplicative of the second cause of action, because the alleged disability arose on or about October 19, 2017; Plaintiff returned to work on December 18, 2017, and she was terminated after missing work on January 4, 2018.  Therefore, the Court grants summary adjudication of the first cause of action.

D.        Second Cause of Action

Plaintiff’s second cause of action is for retaliation based upon Defendant having terminated Plaintiff after she took medical leave.  When deciding issues of adverse employment actions, such as discrimination and retaliation, the court applies the McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 shifting burdens test.  (Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 203; Loggins v. Kaiser Permanente Intern. (2007) 151 Cal.App.4th 1102, 1108–09.)  Under the three-part test developed in McDonnell, if the employee successfully shows a prima facie case exists, the burden shifts to the employer to provide evidence that there was a legitimate, nonretaliatory reason for the adverse employment action.  (Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 68.)  If the employer produces evidence showing a legitimate reason for the adverse employment action, the presumption of retaliation drops out of the picture and the burden shifts back to the employee to provide “substantial responsive evidence” that the employer’s proffered reasons were untrue or pretextual.  (Loggins v. Kaiser Permanente Internat. (2007) 151 Cal.App.4th 1102, 1109.)

It is undisputed that Plaintiff was hospitalized on October 19, 2017, and she returned to work without restrictions on December 29, 2017.  She was terminated after she missed work on January 4, 2018.  This satisfies Plaintiff’s prima facie burden, shifting the burden to Defendant to articulate non-discriminatory reasons for terminating Plaintiff.

Defendant cites Plaintiff’s excessive tardiness and poor work.  On November 16, 2016, and March 1, 2017, Plaintiff was issued written warnings concerning her work performance.  On November 16, 2016, Plaintiff received a warning that stated: “Over the past several months, the frequency in which you’ve report [sic] late to work has become excessive.  In addition to arriving 30 minutes (or more) past your scheduled arrival time, you’ve repeatedly taken the liberty to compensate for the lost time by staying past your scheduled time.”  (Declaration of Caitlin Sanders, Exh. #4.)  On March 1, 2017, Plaintiff received another reprimand.  (Id., Exh. #5.)  The report cited the following issues: (1) Low productivity of reports; (2) Poor quality of reports, e.g., wrong SOC dates, missing consent, inappropriate OASIS responses, wrong frequency, missing POC completion, inappropriate SOC summary; Wrong DX; and (3) Lack of staff education and communication with superior, among other things.  (Ibid.)  This report was based on specific examples from August 8, 2016, to February 6, 2017, and it was presented to Plaintiff on March 1, 2017.  (Ibid.)  At the time, Plaintiff attributed tardiness to having to take public transportation.  (Plaintiff’s Response to Defendant’s Separate Statement, ¶ 9; see also Declaration of Steven Davidson, ¶ 7; Declaration of Catlin Sanders, Exh. #1, p. 113.)  Plaintiff also attributed her tardiness on one day to oversleeping.  (Id., Exh. #6.)  Plaintiff continued to experience performance issues until she began having medical problems.  Then, Plaintiff failed to return to work on January 4, 2018, so she was terminated.  (Defendant’s Separate Statement, ¶ 30.)  This is sufficient to satisfy Defendant’s burden, shifting the burden back to Plaintiff to establish that these reasons are untrue or pretextual.

It is undisputed that Plaintiff was on a medical leave from October 19, 2017, to December 29, 2017, and that she was terminated upon her return for “excessive absences.”  The record is unclear whether Defendant based its termination decision on valid medical absences.  For example, Millette Arredondo testified that “[Plaintiff’s] reason for terminating had to do with all her absences and the fact that she didn’t return to work . . . .”  (Declaration of Sylvia V. Panosian, Exh. #3, p. 110.)  Similarly, in Defendant’s termination memoranda, Steven Davidson wrote: “In 2017, there were 11 weeks wherein you did not work any hours at all.  Since you returned to work on December 18 (following your latest prolonged absence), you have since missed work 6 out of 19 days.  The decision has been made to terminate your employment with Accredited, effective immediately.”  (Declaration of Sylva V. Panosian, Exh. #15.)  This evidence suggests that Defendant terminated Plaintiff for taking medically-necessary leave.  Moreover, Defendant claims that Plaintiff did not inform anyone of her absence on January 4, 2018, but Plaintiff testified that she spoke to LaJoye Mallory.  (Plaintiff’s Response to Defendant’s Separate Statement, ¶ 26.)  Plaintiff also may have left a voicemail for her supervisor, Christine Ihn.  (Ibid.)  Therefore, the Court denies summary adjudication of the second cause of action. 

E.         Third Cause of Action

Plaintiff’s third cause of action is failure to prevent discrimination and retaliation under FEHA.  Code of Civil Procedure section 437c(f) precludes the Court from granting summary adjudication unless it resolves an entire cause of action.  However, where separate causes of action are comingled into one, the court may grant summary adjudication of the individual claims.  (See Dominguez v. Washington Mutual Bank (2008) 168 Cal.App.4th 714, 727, citing Lilienthal & Fowler v. Superior Court (1993) 12 Cal.App.4th 1848, 1854-1855.)  In this case, Plaintiff has asserted several distinct wrongful acts under the same cause of action, which permits a motion for summary adjudication.  The Court grants summary adjudication to the extent this claim is based on discrimination.  The Court denies summary adjudication to the extent this claim is based on retaliation.

F.         Sixth Cause of Action

Plaintiff’s sixth cause of action is for retaliation under Government Code section 12945.2.  This section prohibits an employer for retaliating against an employee for taking CRFA leave.  The elements are: (1) The defendant was an employer covered by the CFRA; (2) The plaintiff was an employee eligible to take CFRA leave; (3) The plaintiff exercised her right to take leave for a qualifying CFRA purpose; and (4) The plaintiff suffered an adverse employment action.  (Dudley v. Department of Transportation (2001) 90 Cal.App.4th 255, 261.)  The Court grants summary adjudication because, as discussed, there is no evidence that Plaintiff was eligible to take CFRA leave.  She presents insufficient evidence that her diarrhea and intestinal issues entitled her to CFRA leave, especially in light of the absence of medical documentation.  Further, Plaintiff never exercised her right to take CFRA leave.  Therefore, the Court grants summary adjudication of the sixth cause of action.

G.        Seventh Cause of Action  

Plaintiff seeks a declaratory judgment from the Court pursuant to Code of Civil Procedure section 1060.  This is improper:

            The declaratory relief statute should not be used for the purpose of anticipating and determining an issue which can be determined in the main action.  The object of the statute is to afford a new form of relief where needed and not to furnish a litigant with a second cause of action for the determination of identical issues.

(General of America Ins. Co. v. Lilly (1968) 258 Cal.App.2d 465, 470.)  Plaintiff is not entitled to a duplicative cause of action to be determined by the Court if the jury decides her substantive causes of action in favor of Defendant.  Therefore, the Court grants summary adjudication of the seventh cause of action.

            H.        Eighth Cause of Action

            Plaintiff’s eighth cause of action is for termination in violation of public policy.  The Court denies summary adjudication for the same reasons as it denies summary adjudication of Plaintiff’s second cause of action.

CONCLUSION AND ORDER

            Plaintiff presents sufficient evidence to give rise to a triable issue whether she was terminated in violation of FEHA and public policy.  Therefore, the Court denies summary adjudication of Plaintiff’s second and eighth causes of action, as well as the third cause of action to the extent it relies on retaliation.  The Court grants summary adjudication of all remaining causes of action.  The Court sets the following dates:

            Final Status Conference:

            Trial:

Fact discovery shall remain closed.  Expert designations and expert discovery shall be based on the new trial date.  Defendant’s counsel shall provide notice and file proof of such with the Court.