Judge Stephen I. Goorvitch, Case Number: 22STCV07354, Date: 2024-01-29 Tentative Ruling

Judge: Stephen I. Goorvitch, Case: 22STCV07354, Date: 2024-01-29 Tentative Ruling

Case Number: 22STCV07354 Hearing Date: February 20, 2024 Dept: 39

Ricky Montes v. State Farm Mutual Automobile Insurance Company, et al.

Case No. 22STCV07354

Motion for Summary Judgment

INTRODUCTION

Plaintiff Ricky Montes (“Plaintiff”) filed this action against State Farm Mutual Automobile Insurance Company (“State Farm”) and Nicole Barker (“Barker”) (collectively, “Defendants”) asserting the following causes of action under the Fair Employment and Housing Act (“FEHA”), the California Family Rights Act (“CFRA”), and the Labor Code:

1. Disability discrimination under FEHA

2. Violation of CFRA

3. Harassment based upon disability under FEHA

4. Failure to accommodate a disability under FEHA

5. Failure to engage in the interactive process under FEHA

6. Failure to prevent discrimination and harassment under FEHA

7. Retaliation under FEHA

8. Retaliation under Labor Code section 1102.5

9. Wrongful termination in violation of public policy

Now, Defendants move for summary judgment, or in the alternative, summary adjudication. The Court grants summary adjudication of the second, third, and fifth causes of action, as well as the sixth cause of action to the extent it is based on harassment. The Court denies summary adjudication of the remaining causes of action. The case will proceed to trial on the following claims:

First COA – Disability discrimination under FEHA

Fourth COA – Failure to accommodate a disability under FEHA

Sixth COA – Failure to prevent discrimination under FEHA

Seventh COA – Retaliation under FEHA

Eighth COA – Retaliation under Labor Code section 1102.5

Ninth COA – Wrongful termination in violation of public policy

Claim for Punitive Damages

Although there are triable issues on these points, based upon the issues raised by Defendants’ motion, the Court provides notice that it may ask the jury to determine whether Plaintiff’s lawsuit was unreasonable, frivolous, meritless, or vexatious for purposes of deciding whether to award attorneys’ fees to Defendants.

FACTUAL BACKGROUND

Plaintiff worked for State Farm. (Plaintiff’s Response to Defendant’s Separate Statement, ¶ 1.) Plaintiff’s job required him to inspect an insured’s damaged car to determine whether the damage was insured and to estimate the amount the insured was entitled to recover. (Ibid.) Baker was Plaintiff's supervisor. (Id., ¶ 4.) However, all of his supervisors rated his performance either a “2” or a “3” on a scale of “1” to “5.” (Id., ¶ 5.) On or about March 3, 2020, Plaintiff received Baker’s written interim review of his work, identifying a number of areas of improvement, with a rating of “2.” (Id., ¶ 6.) The evaluation is dated March 3, 2020, but there is no time stamp. (See Plaintiff’s Evidence, Exh. #1.) Plaintiff disagreed with this assessment. (Id., ¶ 7.)

On March 3, 2020, Plaintiff requested time off work. (See id., Exh. #2.) It is unclear when the request was submitted or whether the request was submitted after Plaintiff learned of his negative evaluation. (See ibid.) However, Barker denied the request on March 3, 2020, at 7:59 a.m., based upon staffing needs. (Ibid.) Barker’s email states: “Please talk with your supervisor if you believe the time requested may be covered by the Family and Medical Leave Act.” (Ibid.) The next day, March 4, 2020, Plaintiff went to the emergency room complaining of back pain. (See Plaintiff’s Response to Defendant’s Separate Statement, ¶ 8.) Plaintiff “did not show up for work the following day and never returned; he was away continuously for nearly 16 months.” (See id., ¶ 9.)

Plaintiff did not have a conversation with Barker about his need for accommodation. (See Plaintiff’s Evidence, Exh. #96, p. 21:1-16.) However, Plaintiff filed a claim for short-term disability with State Farm in or about March 2020. (See Declaration of Jennifer A. Goldberg, Exh. A, p. 67:2-15.) Plaintiff filed a request for leave under the Family Medical Leave Act and the California Family Rights Act in or about March 2020. (Ibid.) Plaintiff also filed a workers’ compensation claim. (See Plaintiff’s Response to Defendant’s Separate Statement, ¶ 10.) State Farm granted Plaintiff a medical leave. (Id., ¶ 11.) In November 2020, the third-party administrator of State Farm’s workers’ compensation program informed State Farm that Plaintiff’s work limitations precluded him from standing, walking, sitting, crawling, or driving for more than four to six hours a day. (See Plaintiff’s Response to Defendant’s Separate Statement, ¶ 16.)

During Plaintiff’s 16-month leave of absence, State Farm repeatedly contacted Plaintiff concerning his status. Barker testified that she had “less formal” conversations with Plaintiff asking questions like:

- “What can we do to help you come back to work?”

- “What’s going on?”

- “How can we help you here?”

(Declaration of Jennifer A. Goldberg, Exh. B, pp. 52:19-24; 72:24-73:1.) Barker testified that she initiated all of the conversations. (Id., Exh. B, p. 72:22-23.) Barker testified that Plaintiff would not respond substantively to these inquiries and did not expressly request any accommodation. (Id., Exh. B, pp. 51:4-8, 73:1-20.) Barker testified that Plaintiff never explained what would be necessary in order for him to return to work. (Id., Exh. B, pp. 52:19-24; 72:24-73:1.) It is undisputed that Plaintiff referred Barker to his attorneys. (Id., Exh. B, p. 73:2-9; see also Plaintiff’s Response to Defendant’s Separate Statement, ¶ 15.)

Plaintiff does not dispute Barker’s testimony on these points. (See Plaintiff’s Response to Defendant’s Separate Statement, ¶ 14.) Plaintiff also admits that he could have been accommodated. Plaintiff admits that he “could perform the essential job duties of his auto estimatics appraiser (“AEA”) position with his work restrictions in the November 2020 through January 2021 time frame with work-place accommodations, including working in a virtual environment.” (Plaintiff’s Response to Defendant’s Separate Statement, ¶ 19.) Plaintiff also admits that “[a]uto estimatics appraisers were performing their work virtually through the time of Plaintiff’s termination on June 24, 2021.” (See Plaintiff’s Separate Statement, ¶ 52.)

Nevertheless, Plaintiff did not ask to return to work. Rather, the record is clear that Plaintiff told Barker that he does not know when he will be able to return to work. (See ibid.) For example, in response to one inquiry, Plaintiff told Barker that he would not return to work until he was medically cleared. (Plaintiff’s Exhibits, Exh. #79.) As of June 4, 2021, after approximately 15 months of leave, Plaintiff stated: “Per your request! You need a return date from me! At this time I have no answer when I will return.” (See Plaintiff’s Exhibits, Exhs. #80 & #81.)

There is no evidence in the record that Plaintiff requested any accommodation other than medical leave. Plaintiff was terminated on June 24, 2021.

LEGAL STANDARD

“[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law[.] There is a triable 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.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) “[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.” (Ibid.)

DISCUSSION

A. Second Cause of Action – GRANTED

Plaintiff’s second cause of action asserts a violation of the California Family Rights Act, Government Code section 12945.2 (“CFRA”). The CFRA permits an employee to take up to 12 work weeks of leave per year. Defendant complied with this statute, having given Plaintiff approximately 16 months of leave. Therefore, the Court grants summary adjudication of the second cause of action.

B. Fifth Cause of Action – GRANTED

Plaintiff’s fifth cause of action is for failure to engage in the 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, supra, 234 Cal.App.4th at 379.) The Court grants summary adjudication of the fifth cause of action. As an initial matter, it is not clear that the interactive process was triggered. In order to trigger the employer’s duty, the employee must provide notice of a disability and a need for accommodation. (See, e.g., Doe v. Department of Corrections & Rehabilitation (2019) 43 Cal.App.5th 721, 738-740; Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 261.)

As discussed, Barker testified that she attempted to engage in the interactive process to determine what Plaintiff would require in order to return to work. It is undisputed that Plaintiff did not respond to those inquiries, referring Barker to his attorney or stating that he could not return to work until medically cleared, notwithstanding his admissions that he could have been accommodated long before the end of his 16-month leave of absence. Plaintiff advances no evidence suggesting that he was willing to engage in the interactive process in good faith. Therefore, the Court grants summary adjudication of the fifth cause of action.

C. Third Cause of Action – GRANTED

Plaintiff’s third cause of action is for harassment under FEHA against both State Farm and Barker. Plaintiff alleges that Barker created a hostile work environment based upon his disability. In order to assert a claim, Plaintiff must allege that Defendants engaged in severe or pervasive harassment that unreasonably interfered with Plaintiff’s work performance. (See Thompson v. City Of Monrovia (2010) 186 Cal.App.4th 860, 877.) Plaintiff’s claim relies exclusively on Barker’s communications with Plaintiff after he went out on medical leave. As discussed, these communications related to when Plaintiff would return to work and what accommodations were necessary. These communications relating to reasonable accommodation and the interactive process cannot form the basis of a hostile workplace claim (especially when Plaintiff no longer was reporting to work at that point). Therefore, the Court grants summary adjudication of the third cause of action.

D. Fourth Cause of Action – DENIED

Plaintiff’s fourth cause of action is failure to accommodate his disability under FEHA. The elements of this cause of action are as follows: (1) Plaintiff had a disability; (2) Defendant knew that Plaintiff suffered from a disability; (3) Plaintiff was able to perform the essential job duties with reasonable accommodation; (4) Defendant failed to provide a reasonable accommodation; (5) Plaintiff was harmed; and (6) Defendant’s failure to provide a reasonable accommodation was a substantial factor in causing that harm. (Shirvanyan v. Los Angeles Community College District (2020) 59 Cal.App.5th 82, 95.) A “reasonable accommodation” is one necessitated by a person’s disability that enables the person to perform the essential job functions of the position. (Nealy v. City of Santa Monica (2015) 234 Cal.App.4th 359, 373.)

There is evidence in the record that Defendant was aware of Plaintiff’s disability and limitations. This is sufficient to give rise to a triable issue whether Defendant was required to accommodate his disability. When the employer is on notice of the employee’s disability and limitations in sufficient detail, the employee need not request a specific accommodation before the employer has a duty to investigate the accommodation. (See, e.g., Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935, 954-955.) An employer’s duty to accommodate arises when the employer knows that the employee has a disability and requires accommodation. (See, e.g., Doe v. Department of Corrections and Rehabilitation (2019) 43 Cal.App.5th 721, 738; Cornell v. Berkeley Tennis Club (2017) 18 Cal.App.5th 908, 938-939.) There is a triable issue whether Plaintiff provided sufficient notice, given that Defendant received notice of his limitations through the workers’ compensation process. (See Defendant’s Separate Statement, ¶ 16.)

There is a triable issue whether Plaintiff could have been accommodated. In November 2020, Defendant was informed that Plaintiff could not stand, walk, sit, crawl, or drive for more than four to six hours a day. (See ibid.) Defendant’s PMQ testified that remote options were available. Defendant’s PMQ testified that “in March of 2020, we pivoted towards virtual inspection for auto estimatics proximity appraisers.” (Plaintiff’s Exhibits, Exh. #97, p. 32:13-16.) Specifically, the testimony was as follows:

Q: Was it your understanding as of April 2020 that State Farm was continuing to use virtual estimating options when appropriate in California?

A: Yes.

Q: And was it your understanding that the virtual estimating options were being used within the Auto Estimatics Department in California?

A: Yes.

Q: And do you see here, john, where it says “Should circumstances arise where virtual options are not recommended,” which is the highlighted part?

A: Yes.

Q: Do you have any recollection of any circumstances in this April 2020 time frame when virtual options were not recommended?

A: No.

(Id., Exh. #97, p. 34:19-35:11.) Based upon the foregoing, there is a triable issue whether Plaintiff could have been accommodated by doing some work remotely and “standing, walking, sitting, crawling, or driving” only when necessary, i.e., less than four hours a day. Therefore, the Court denies summary adjudication of the fourth cause of action.

E. First Cause of Action – DENIED

Plaintiff’s first cause of action is for disability discrimination under FEHA. 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.) The Court denies summary adjudication of the first cause of action for the reasons stated in the context of the fourth cause of action.

F. Sixth Cause of Action – GRANTED IN PART; DENIED IN PART

Plaintiff’s sixth cause of action is for failure to prevent discrimination and harassment 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.) Therefore, the Court grants summary adjudication of the sixth cause of action to the extent it is based upon harassment. The Court denies summary adjudication of the sixth cause of action to the extent it is based upon discrimination.

G. Seventh Cause of Action – DENIED

Plaintiff’s seventh cause of action is for retaliation under FEHA. The Court denies summary adjudication because this claim, which is based upon Plaintiff’s termination, for the same reasons it denies summary adjudication of Plaintiff’s fourth and fifth causes of action.

H. Eighth Cause of Action – DENIED

Plaintiff’s eighth cause of action is for retaliation under Labor Code section 1102.5. This section states:

An employer . . . shall not retaliate against an employee for disclosing information . . . to a person with authority over the employee . . . if the employee has reasonable cause to believe that the information discloses . . . a violation of or noncompliance with a local, state, or federal rule or regulation . . . .

(Lab. Code, § 1102.5.) Section 1102.6 of the Labor Code states:

In a civil action or administrative proceeding brought pursuant to Section 1102.5, once it has been demonstrated by a preponderance of the evidence that an activity proscribed by Section 1102.5 was a contributing factor in the alleged prohibited action against the employee, the employer shall have the burden of proof to demonstrate by clear and convincing evidence that the alleged action would have occurred for legitimate, independent reasons even if the employee had not engaged in activities protected by Section 1102.5.

(Lab. Code, § 1102.6.) This standard—rather than the McDonnell-Douglas test—applies to retaliation claims under section 1102.6. (See Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703, 710-711.)

Plaintiff’s cause of action for retaliation is predicated upon him having complained about his own alleged harassment, discrimination, and retaliation. In other words, Plaintiff’s retaliation claim under section 1102.5 is identical to his retaliation claim under FEHA. Plaintiff cannot circumvent the McDonnell-Douglas test—in favor of the more favorable standard under section 1102.6—by characterizing complaints about his own alleged retaliation/harassment/discrimination to supervisors as “whistleblowing.” There is a presumption against interpreting one statute as limiting or modifying a prior statute in the absence of specific language to that effect. (See People v. Forester (2022) 78 Cal.App.5th 447, 456.) In enacting section 1102.6, the Legislature did not intend to create a more deferential standard for retaliation claims under the California Fair Employment and Housing Act of 1959, which had long been analyzed under the McDonnell-Douglas test. Rather, the Legislature intended sections 1102.5 and 1102.6 to encompass claims not cognizable under FEHA, i.e., reports that employers are “violating laws enacted for the protection of corporate shareholders, investors, employees, and the general public.” (Diego v. Pilgrim United Church of Christ (2014) 231 Cal.App.4th 913, 923.) In other words, section 1102.5 was intended to cover non-FEHA retaliation claims, e.g., retaliation based upon reports that an employer is dumping toxic waste, introducing dangerous or non-compliant products into the stream of commerce, misrepresenting the financial condition of a public company in SEC filings, etc. At heart, Plaintiff raises a purely personal claim under FEHA, and not a claim of whistleblowing covered by section 1102.5.

Nevertheless, State Farm does not raise this issue in its motion for summary judgment. Therefore, the Court denies summary adjudication of this claim for the reasons it denies summary adjudication of the seventh cause of action. This order is without prejudice to Defendant filing a new motion for summary adjudication before trial, moving for nonsuit or a directed verdict during trial, or moving for a judgment notwithstanding the verdict after trial.

I. Ninth Cause of Action – DENIED

Plaintiff’s ninth cause of action is for wrongful termination in violation of public policy. California law provides “a tort remedy when an employer's discharge of an employee contravenes the dictates of public policy.” (Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167, 177.) The Court denies summary adjudication of the ninth cause of action for the reasons it denies summary adjudication of the fourth and fifth causes of action.

J. Claim for Punitive Damages

Defendant also moves for summary judgment on Plaintiff’s claim for punitive damages. As Plaintiff advances evidence that Defendants “concoct[ed] a reason for termination” after terminating Plaintiff based on his medical condition, Plaintiff has raised triable issues as to her claim for punitive damages. (Colucci v. T-Mobile USA, Inc. (2020) 48 Cal.App.5th 442, 455.)

CONCLUSION AND ORDER

Based upon the foregoing, the Court orders as follows:

1. The Court grants summary adjudication of the second, third, and fifth causes of action, as well as the sixth cause of action to the extent it is based on harassment.

2. Because she is named only in the third cause of action, the Court grants summary judgment to Defendant Nicole Barker.

3. The Court denies summary adjudication of the remaining claims. The following claims will proceed to trial against State Farm:

First COA – Disability discrimination under FEHA

Fourth COA – Failure to accommodate a disability under FEHA

Sixth COA – Failure to prevent discrimination under FEHA

Seventh COA – Retaliation under FEHA

Eighth COA – Retaliation under Labor Code section 1102.5

Ninth COA – Wrongful termination in violation of public policy

Claim for Punitive Damages

4. Although there are triable issues on these points, based upon the issues raised by Defendants’ motion, the Court provides notice that it may ask the jury to determine whether Plaintiff’s lawsuit was unreasonable, frivolous, meritless, or vexatious for purposes of deciding whether to award attorneys’ fees to Defendants.

5. Defendants’ counsel shall provide notice and file proof of such with the Court.