Judge Teresa A. Beaudet, Case 19STCV31443 2022-10-27 Tentative Ruling

KRISTINE WEST, Plaintiff, vs. GREYHOUND LINES, INC., et al., Defendants.	Case No.:	19STCV31443
	Hearing Date:	October 27, 2022
	Hearing Time:	2:00 p.m.
	[TENTATIVE] ORDER RE: DEFENDANT GREYHOUND LINES, INC.’S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION

Plaintiff Kristine West (“West”) filed this action against Defendants Greyhound Lines, Inc. (“Greyhound”) and Jorge Ochoa (“Ochoa”) on September 4, 2019. The Complaint asserts causes of action for (1) discrimination in violation of FEHA, (2) harassment in violation of FEHA, (3) retaliation in violation of FEHA, (4) failure to prevent discrimination, harassment, and retaliation in violation of FEHA, (5) failure to accommodate disability in violation of FEHA, (6) failure to engage in the interactive process in violation of FEHA, (7) violation of the California Family Rights Act, (8) retaliation in violation of Labor Code section 1102.5, and (9) wrongful termination in violation of public policy.

Greyhound now moves for summary adjudication of the first, third, fifth, sixth, seventh, eighth, and ninth causes of action of the Complaint.[1] West opposes.

The Court rules on West and Greyhound’s “Evidentiary Objections Concerning Defendant Greyhound’s Motion for Summary Adjudication” as follows:

“[A] 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.” ((Code Civ. Proc., § 437c, subd. (c).) “A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, 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 Civ. Proc., § 437c(f)(1).) “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Ibid.)

The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. ((Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) If the moving party carries this burden, the burden shifts to the opposing party to make a prima facie showing that a triable issue of material fact exists. ((Ibid. .) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” ((Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

When a defendant seeks summary judgment or summary adjudication, he/she must show either (1) that one or more elements of the cause of action cannot be established; or (2) that there is a complete defense to that cause of action. (Code Civ. Proc., § 437c(p)(2).) “If the defendant fails to make this initial showing, it is unnecessary to examine the plaintiff’s opposing evidence, and the motion must be denied.” ((Powell v. Kleinman (2007) 151 Cal.App.4th 112, 121.)

Lead Ticket Agent. (Compl., ¶ 8.) West was assigned to the Los Angeles Terminal (the “LA Terminal”) in or around 2000. (Compl., ¶ 9.) Jorge Ochoa (“Ochoa”) became the city manager for the LA Terminal in or around 2012, and he directly supervised West. (Compl., ¶¶ 4, 10.) Ever since Ochoa’s arrival at the LA Terminal, West and other African American employees were subjected to racist comments and conduct. (Compl., ¶¶ 11, 12.)

As a result of the increasingly toxic and hostile work environment against African Americans, West and other African American employees suffered from severe emotional distress, and on two separate occasions, jointly filed workers’ compensations claims against Greyhound. (Compl., ¶ 13.) However, Greyhound continued to employ Ochoa in his same capacity as the City Manager of the LA Terminal, and when West and her co-claimants returned to work, they were placed back under his direct supervision. (Compl., ¶ 13.)

In or around the spring of 2017, West tried to apply for a Driver Supervisor position that would entail less interaction and involvement with Ochoa. (Compl., ¶ 14.) Ochoa had to approve who would be selected for that position, and West was told that the reason she did not get selected for the position was because she did not speak Spanish. (Compl., ¶ 14.)

West took a leave of absence on or about April 11, 2018. (Compl., ¶ 15.) Due to the severity of her emotional distress and the significant exacerbation that was caused each time West returned to work, West’s medical providers extended her leave on several occasions. (Compl., ¶ 15.) On or about July 7, 2018, West requested the first extension of her leave, pursuant to her doctors’ directive. (Compl., ¶ 16.) Greyhound responded by notifying West of her demotion back to a Ticket Agent. (Compl., ¶ 16.) In addition, while West requested an extension of 3 months (until October 2018), Greyhound denied this request and granted the extension for only a month. (Compl., ¶ 16.)

After West requested another extension in April 2019, Greyhound sent her a letter demanding that she return to work by April 18, 2019 or face termination. (Compl., ¶ 18.) West responded that she was still unable to return to work and requested a transfer from her position because she could not work directly with Ochoa. (Compl., ¶ 18.) In response, Greyhound offered three alternative positions – two positions at the LA Terminal as a service worker and station attendant, and as a part-time baggage agent at the San Bernardino terminal. (Compl., ¶ 18.) Greyhound demanded that West apply for one of the three positions presented on or before May 9, 2019. (Compl., ¶ 19.) West requested and submitted a special report from her doctors which stated that “[Greyhound’s] written letter of demotion and a demand to return to work or be terminated as of 4/8/19 … has all led to a worsening of her emotional condition with worsened anxiety with panic attacks.” (Compl., ¶ 19.) Greyhound disregarded this and terminated West’s employment on May 10, 2019. (Compl., ¶ 19.)

Causes of Action for Discrimination, Failure to Accommodate Disability, and Failure to Engage in the Interactive Process

“[I]n order to establish that a defendant employer has discriminated on the basis of disability in violation of the FEHA, the plaintiff employee bears the burden of proving he or she was able to do the job, with or without reasonable accommodation.” ((Green v. State of California (2007) 42 Cal.4th 254, 262.) A “reasonable accommodation” is a “modification or adjustment to the workplace that enables an employee to perform the essential functions of the position held or desired…” ((Nadaf-Rahrov v. Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th 952, 983.)

In addition, it is an unlawful employment practice “[f]or an employer . . . to fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee.” ((Gov. Code, § 12940, subd. (m)(1).) The elements of a reasonable accommodation cause of action are (1) the employee suffered a disability, (2) the employee could perform the essential functions of the job with reasonable accommodation, and (3) the employer failed to reasonably accommodate the employee’s disability. ((Wilson v. County of Orange (2009) 169 Cal.App.4th 1185, 1192.)

It is also an unlawful employment practice “[f]or an employer . . . to fail to engage in a timely, good faith, interactive process with the employee or applicant to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition.” ((Gov. Code, § 12940, subd. (n).)

First, Greyhound argues that it is entitled to summary adjudication of West’s first cause of action for disability discrimination[2], fifth cause of action for failure to accommodate disability, and sixth cause of action for failure to engage in the interactive process because West did not identify a reasonable accommodation that would enable her to perform the essential functions of her position.

In the Complaint, West alleges that her disabilities include but are not limited to severe anxiety, depression, and posttraumatic stress disorder, which limited her ability to work. (Compl., ¶ 70.) West alleges that she was willing and able to perform the essential job duties of her position with reasonable accommodations, but that Greyhound refused to provide those accommodations. (Compl., ¶ 71.) Specifically, West alleges that Greyhound refused to accommodate West with an extension of her medical leave, demoted her, offered her three non-feasible alternative positions which West could not accept, and terminated her employment while West remained on leave. (Compl., ¶ 83.)

Greyhound indicates that from in or around July 2018 through in or around April 2019, West submitted notes from her health care provider placing West off of work, and that Greyhound accommodated each of West’s requests. (Arnwine Decl., ¶ 8, Ex. D.) On or about April 2, 2019, West submitted an additional doctor’s note, placing West off of work through August 24, 2019. (Arnwine Decl., ¶ 9.) In response, on or about April 5, 2018, Greyhound informed West that it could no longer accommodate additional leave and requested that West either return to work with a medical release, or contact Greyhound to discuss a reasonable accommodation. (Arnwine Decl., ¶ 10.) In response, on or about April 17, 2019, West submitted a “Special Report On Continued Inability To Return To Work,” which indicates, “[b]ecause of the employer’s decision not to provide an alternate position for Ms. West not to work under or with Mr. Jorge Ochoa, she has remained unable to return to work there.” (Arnwine Decl. ¶ 11, Ex. G.) On or about April 18, 2019 and on or about April 22, 2019, Greyhound attempted to contact West in order to discuss her request. (Arnwine Decl. ¶ 12.) In addition, on or about April 25, 2019, Greyhound sent West a list of three open positions in California, and asked West to apply to one of the positions by May 6, 2019. (Arnwine Decl. ¶ 12, Ex. H.) On May 2, 2019, West sent an email to Greyhound indicating that she was on medical leave until June 8, 2019, and stating that she was “unable to apply for any position at this time due to still being disabled because of the horrendous conduct I was subjected to with no remedy.” (Arnwine Decl. ¶ 12, Ex. I.)

Greyhound asserts that West’s disability accordingly prevented her from both returning to her previous position under Ochoa, and from selecting an alternative position that did not report to Ochoa; such that West did not identify, nor did there exist, a reasonable accommodation that would have allowed her to perform the essential functions of her position. Greyhound also asserts that it was not obligated to provide West with indefinite leave, noting that “[r]easonable accommodation does not require the employer to wait indefinitely for an employee’s medical condition to be corrected.” ((Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 226-227.)

West counters that holding a job for an employee on a leave of absence or extending a leave may be a reasonable accommodation. West cites to California Code of Regulations, title 2, section 11068, which provides, “[w]hen the employee cannot presently perform the essential functions of the job, or otherwise needs time away from the job for treatment and recovery, holding a job open for an employee on a leave of absence or extending a leave provided by the CFRA, the FMLA, other leave laws, or an employer’s leave plan may be a reasonable accommodation provided that the leave is likely to be effective in allowing the employee to return to work at the end of the leave, with or without further reasonable accommodation, and does not create an undue hardship for the employer. When an employee can work with a reasonable accommodation other than a leave of absence, an employer may not require that the employee take a leave of absence. An employer, however, is not required to provide an indefinite leave of absence as a reasonable accommodation.”

West indicates that the additional leave she requested prior to her termination would have allowed her to return to work. (West Decl., ¶ 19.) West also notes that the Court in Hanson v. Lucky Stores, Inc. found that “the seven extra months of leave beyond the CBA [collective bargaining agreement] period that Lucky granted Hanson for the purpose of recuperation constitute[d] a reasonable accommodation,” and that “Hanson was entitled under the CBA to nine months of leave.” ((Hanson v. Lucky Stores, Inc., supra, 74 Cal.App.4th at pp. 226-227.)

West indicates that similarly here, she was a union member of the Amalgamated Transit Union, Local 1700 (the “Union”), and that the Collective Bargaining Agreement between Greyhound and the Union noted that “[a]bsences due to illness will be unlimited up to one year.” (West Decl., ¶ 9, Ex. B.) As set forth above, Greyhound indicates that from around July 2018 through around April 2019, West submitted notes from her health care provider placing West off of work. (Arnwine Decl., ¶ 8.) West indicates that on April 2, 2019, she submitted a doctor’s note indicating that she requires a medical leave of absence from March 8, 2019 to June 8, 2019. (West Decl., ¶ 13, Ex. D.) West thus asserts that she was requesting an additional three month leave with a clear return date beyond the twelve-month protection afforded by her collective bargaining agreement, which was less total time than was deemed a reasonable accommodation in Hanson. West also notes that “[u]nder the FEHA, a disabled employee is entitled to a reasonable accommodation—which may include leave of no statutorily fixed duration—provided that such accommodation does not impose an undue hardship on the employer.” ((Sanchez v. Swissport, Inc. (2013) 213 Cal.App.4th 1331, 1338.)

Next, Greyhound asserts that West’s disability discrimination, failure to accommodate, and failure to engage in the interactive process causes of action must fail because “an accommodation in the form of a transfer to a supervisor other than her own is per se unreasonable.” (Mot. at p. 17:22-23.) The Court notes that Greyhound cites to nonbinding federal authority in support of this assertion.

Lastly, Greyhound asserts that West’s disability discrimination, failure to accommodate, and failure to engage in the interactive process causes of action must fail because West did not plan to return to work. Greyhound cites to Nadaf-Rahrov v. Neiman Marcus Group, Inc., supra, 166 Cal.App.4th at page 974, where the Court of Appeal concluded that “‘reasonable accommodation’ in the FEHA means (as relevant here) a modification or adjustment to the workplace that enables the employee to perform the essential functions of the job held or desired.” Greyhound provides evidence that in or around November 2018, West started going through a Workforce Innovation and Opportunity Act (“WIOA”) program, and in or around January 2019, West started applying to get her Medical Billing and Coding credential. (Eddings Decl., ¶ 9, Ex. F [No. 210.4].) Greyhound also indicates that in the documents produced by West in response to Greyhound’s Request for Production of Documents (Set One), was a set of handwritten notes which states: “Wait till terminated. First get a note Dr. Curtis. Under pressure circumstances. Should not return to work at Greyhound when treatment ends. Seek different employer when I receive termination letter . . .” (Eddings Decl. ¶ 8, Ex. E.) Greyhound asserts that the evidence thus shows that West never intended to return to Greyhound such that she did not request a legally cognizable reasonable accommodation. West counters that while she did start the process of seeking vocational training for a potential career change, she did so to protect herself as after her demotion and her filing of an EEOC complaint because she was concerned Ochoa may try to fire her. (West Decl., ¶ 19.)

Based on the foregoing, the Court finds that West has raised a triable issue of material fact regarding whether she identified a legally cognizable reasonable accommodation.

Next, Greyhound argues that West’s sixth cause of action for failure to engage in the interactive process fails because West must be assigned responsibility for the breakdown in the interactive process. Greyhound cites to Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 261, where the Court of Appeal noted that “[w]hen a claim is brought for failure to reasonably accommodate the claimant’s disability, the trial court’s ultimate obligation is to isolate the cause of the breakdown . . . and then assign responsibility so that [l]iability for failure to provide reasonable accommodations ensues only where the employer bears responsibility for the breakdown…an employer cannot prevail at the summary judgment stage if there is a genuine dispute as to whether the employer engaged in good faith in the interactive process.” (Internal quotations and citations omitted.)

Greyhound asserts that the evidence (discussed above) demonstrates that West must be assigned the responsibility for the breakdown in communication, such that her cause of action for failure to engage in the interactive process must fail. West counters that there are triable issues as to who was responsible for any breakdown in the interactive process prior to West’s termination. West provides evidence that on July 13, 2018, Ochoa sent West a letter rejecting West’s July 7, 2018 request to extend her leave, indicating that, “[p]er the collective bargaining agreement, we will accommodate you by granting you an extension of 30 days for your leave of absence.” (Waizman Decl., ¶ 3, Ex. A(2).) Ochoa’s July 13, 2018 letter also notified West that “business needs require that the Company fill the CSA Lead position” and that West’s title would revert to “CSA-Ticket Agent.” (Ibid.) West indicates that neither Ochoa, nor anyone else on behalf of Greyhound, reached out to West prior to sending such letter to discuss whether an alternative accommodation was available that would have allowed West to remain in her Lead position. (West Decl., ¶ 8.) West also testified that she told Greyhound employees that she would prefer to speak through email, but Greyhound indicated, “No. You either speak on the phone or all conversations will be ceased.” (Waizman Decl. ¶ 7, Ex. E (West Depo.) p. 140:21-141:14.) West indicates that she was not comfortable communicating with Greyhound over the phone because of the stress the situation had caused her, along with her concern that everything be in writing to ensure there was no miscommunication or misunderstanding. (West Decl., ¶ 14.)

Based on the foregoing, the Court finds that West has raised a triable issue of material fact as to whether she bears the responsibility for the breakdown in the interactive process.

“It is an unlawful employment practice . . . (a) [f]or an employer, because of the . . . race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or veteran or military status of any person, to refuse to hire or employ the person . . . or to bar or to discharge the person from employment . . . or to discriminate against the person in compensation or in terms, conditions, or privileges of employment.” (Gov. Code, § 12940, subd. (a).)

California applies the burden-shifting formula set forth in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 802,[3] under which a plaintiff must first establish a prima facie case of discrimination by showing that: (1) he or she was a member of a protected class, (2) that he or she was qualified for and performing competently in the position she held, (3) he or she suffered an adverse employment action, and (4) conduct by the employer suggesting that it is more likely than not that the adverse employment action was due to a discriminatory motive. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 355.) If the plaintiff establishes a prima facie case, the burden shifts to the employer to rebut the presumption of discrimination by offering a legitimate nondiscriminatory reason for the adverse employment action. (Ibid. .) If the employer meets this burden, the presumption of discrimination disappears, and the burden shifts back to the plaintiff to produce evidence that the employer’s reasons for the adverse employment action were a mere pretext for discrimination. (Id. at p. 356.)

Greyhound argues that West was not subjected to an adverse employment action because of her race or disability and thus cannot state a prima facie case of discrimination under FEHA.

West alleges that “Greyhound discriminated against Plaintiff on the basis of her race and disability in violation of the FEHA through numerous illegal acts, including, without limitation, condoning and ratifying the racial discrimination and harassment, despite numerous complaints by Plaintiff and her colleagues about such conduct, as well as failing to adequately and promptly investigate and address her complaints. Further, after Plaintiff became disabled, due to the hostile work environment Greyhound neglected to rectify, and as a result needed to go on medical leaves and request accommodations, Greyhound unilaterally demoted Plaintiff and terminated her employment.” (Compl., ¶ 27.) Greyhound argues that this allegation fails to specify what particular adverse employment action West alleges was caused because of what protected category. Greyhound asserts that “at no point does Plaintiff actually allege any facts supporting the claim that she was terminated because of her race – merely that she was terminated because of the disability caused by harassment based upon her race.” (Mot. at p. 22:6-8.)

West counters that in Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1036, the California Supreme Court concluded that “the proper standard for defining an adverse employment action is the ‘materiality’ test, a standard that requires an employer’s adverse action to materially affect the terms and conditions of employment.” West asserts that Greyhound subjected her to numerous adverse actions that materially affected the terms and conditions of her employment. West indicates that under Ochoa’s leadership, African American employees were physically separated from each other, unjustifiably yelled at, unfairly scrutinized for their work performance (as compared to their Hispanic counterparts), and selectively issued discipline. (West Decl., ¶ 2.) Ochoa would also take a long time responding to West’s leave requests, and conducted important meetings in Spanish despite knowing that West and others did not understand Spanish. (West Decl., ¶ 2.) The Yanowitz Court found that Government Code section 12940, subdivision (a) “protects an employee against unlawful discrimination with respect not only to so-called ultimate employment actions such as termination or demotion, but also the entire spectrum of employment actions that are reasonably likely to adversely and materially affect an employee’s job performance or opportunity for advancement in his or her career.” (Yanowitz v. L'Oreal USA, Inc., supra, 36 Cal.4th at pp. 1053-1054.) West took her first medical leave of absence in or around 2014 due to the racially hostile work environment involving Ochoa. (West Decl., ¶ 7.)

Next, Greyhound asserts that West cannot establish a prima facie case for race discrimination because Greyhound offered a position to which West allegedly applied to a similarly situated individual of the same race. West alleges in the Complaint that in or around the spring of 2017, she tried to apply for a Driver Supervisor position that would entail less interaction and involvement with Ochoa, but West was told that the reason why she did not get selected was because she did not speak Spanish. (Compl., ¶ 14.) Greyhound cites to Mixon v. Fair Employment & Hous. Com (1987) 192 Cal.App.3d 1306, 1318, which provides that a prima facie case for discriminatory discharge can be stated as follows: “(1) complainant belongs to a protected class; (2) his job performance was satisfactory; (3) he was discharged; and (4) others not in the protected class were retained in similar jobs, and/or his job was filled by an individual of comparable qualifications not in the protected class.” Greyhound provides evidence that in or around September 2017, Greyhound interviewed applicants for the position of Driver Operation and Safety, and that on October 12, 2017, Greyhound offered the position to an African-American female candidate. (Ochoa Decl., ¶ 5.) This is disputed by West, who indicates that a Hispanic woman was given the driver supervisor position West applied for. (West Decl., ¶ 3.)

Lastly, Greyhound argues that even if West could state a prima facie case for discrimination, Greyhound had legitimate, nondiscriminatory reasons for each adverse employment action. First, Greyhound asserts that it offered the position to which West alleges she applied to a qualified individual of West’s same race. As set forth above, West raises a triable issue of fact on this point.

Second, Greyhound asserts that it reverted West’s position from “Lead” CSA back to CSA-Ticket Agent while she remained on extended medical leave due to business needs. (Ochoa Decl., ¶ 7, Ex. B [July 13, 2018 letter].) West counters that Ochoa testified that Greyhound did not fill West’s Lead position (or another open “CSA lead” position) at any time between July 2018 and possibly January 2020. (Waizman Decl. ¶ 3, Ex. A (Ochoa Depo.) p. 32:16-17, 112:8-113:9.) West also indicates that Greyhound did not produce any records reflecting any job postings, applications, interviews, job offers, or any other documentary evidence of any search to fill West’s Lead position at any time between her demotion and the time of her termination. (Waizman Decl., ¶ 2.) West argues that if business needs actually necessitated West’s demotion, then Greyhound would have undertaken to fill the open Lead CSA position prior to demoting West. The Court finds that West has raised a triable issue of material fact as to whether Greyhound had a legitimate, nondiscriminatory reason for reverting Greyhound’s position from “Lead” CSA back to CSA.

Third, Greyhound asserts that West’s failure to engage in the interactive process is a legitimate, nondiscriminatory reason justifying termination. As set forth above, the Court finds that West has raised a triable issue of material fact as to whether she bears the responsibility for the breakdown in the interactive process.

Based on the foregoing, the Court finds that West has raised a triable issue of material fact as to whether she was subjected to an adverse employment action, and as to whether Greyhound had legitimate, nondiscriminatory reasons for alleged adverse employment actions.

Causes of Action for Retaliation in Violation of FEHA, Retaliation in Violation of Labor Code Section 1102.5, and Violation of the California Family Rights Act

“[I]n order to establish a prima facie case of retaliation under the FEHA, a plaintiff must show (1) he or she engaged in a ‘protected activity,’ (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer’s action.” (Yanowitz v. L'Oreal USA, Inc., supra, 36 Cal.4th at p. 1042.) “The causal link may be established by an inference derived from circumstantial evidence, ‘such as the employer’s knowledge that the [employee] engaged in protected activities and the proximity in time between the protected action and allegedly retaliatory employment decision.’” (Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 69.) Protected activity includes opposing “any practices forbidden” under FEHA or filing a complaint, testifying, or assisting in any proceeding under FEHA. (Gov. Code, § 12940, subd. (h).)¿¿

In addition, Labor Code section 1102.5, subdivision (b) provides that an “[a]n employer, or any person acting on behalf of the employer, shall not retaliate against an employee for disclosing information, or because the employer believes that the employee disclosed or may disclose information, to a government or law enforcement agency, to a person with authority over the employee or another employee who has the authority to investigate, discover, or correct the violation or noncompliance, or for providing information to, or testifying before, any public body conducting an investigation, hearing, or inquiry, if the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation, regardless of whether disclosing the information is part of the employee’s job duties.”

“The elements of a cause of action for retaliation in violation of CFRA are (1) the defendant was an employer covered by CFRA; (2) the plaintiff was an employee eligible to take CRFA [leave]; (3) the plaintiff exercised her right to take [leave] for a qualifying CFRA purpose; and (4) the plaintiff suffered an adverse employment action, such as termination, fine, or suspension, because of her exercise of her right to CFRA [leave].” (Moore v. Regents of University of California (2016) 248 Cal.App.4th 216, 248 (internal quotations omitted; brackets in original).)

Here, West alleges that she repeatedly complained about and opposed unlawful discrimination, harassment, and retaliation prohibited by the FEHA to Greyhound’s management and HR. (Compl., ¶ 49.) West alleges she filed workers’ compensation claims on two different

instances for the injuries she suffered as a result of the discrimination and harassment. (Compl., ¶ 49.) West alleges that Greyhound retaliated against her for engaging in these protected activities by, among other things, unilaterally demoting West and then terminating West’s employment. (Compl., ¶ 50.) West further alleges that Greyhound terminated her employment in violation of Labor Code section 1102.5, subdivision (b) in part because West disclosed information about what she had reasonable cause to believe violated various state and/or federal laws pertaining to discrimination, harassment, and retaliation. (Compl., ¶ 106.) In support of the seventh cause of action for violation of the CFRA, West alleges that Greyhound retaliated against her because she exercised her right to take CFRA leave. (Compl., ¶ 96.)

Greyhound argues that West cannot state a prima facie case for retaliation because she cannot show a causal link between any alleged protected activity and any adverse employment action – here, demoting and terminating West’s employment. Specifically, Greyhound asserts that the timeline indicates that it decided to demote West after its business needs required her “Lead” position to be filled, and similarly terminated West after one month of continuous attempts to engage her in the interactive process.

As set forth above, the Court finds that West has raised a triable issue of of material fact as to whether Greyhound had a legitimate, nondiscriminatory reason for reverting Greyhound’s position from “Lead” CSA back to CSA, as well as whether West must be assigned responsibility for the breakdown in the interactive process. West also provides evidence that in February/March 2018, West complained to Greyhound employee Kirstyn Arnwine about racist statements made by Ochoa. (Waizman Decl. ¶ 7, Ex. E (West Depo.) p. 83:9-84:25.) West notes that a few months later, Ochoa sent her the July 13, 2018 letter notifying West that business needs required that Greyhound fill the CSA Lead position and that West’s title would revert to “CSA-Ticket Agent.” (Waizman Decl., ¶ 3, Ex. A(2).) In addition, on January 31, 2019, West filed an EEOC charge against Greyhound and Ochoa alleging harassment, discrimination, and retaliation. (West Decl., ¶ 11, Ex. C.) A few months later, Greyhound terminated West’s employment effective May 10, 2019. (West Decl., ¶ 17.) West cites to Flait v. North American Watch Corp. (1992) 3 Cal.App.4th 467, 478, where the Court of Appeal noted that “[t]he evidence also showed that Flait was terminated only a few months after he last confronted Pistner, though he had worked for the company for four years. This evidence is sufficient to withstand summary judgment on the issue of NAWC’s retaliatory motives.”

Greyhound also asserts that the evidence shows that West never intended to return to Greyhound, but instead was simply waiting for Greyhound to terminate her employment. As set forth above, West indicates that she started the process of seeking vocational training for a potential career change to protect herself after her demotion and her filing of an EEOC complaint because she was concerned Ochoa may try to fire her. (West Decl., ¶ 19.)

Based on the foregoing, the Court finds that West has raised a triable issue of material fact regarding a causal link between the asserted protected activity and Greyhound’s demotion of West and termination of West’s employment.

“To prevail on a claim for wrongful termination in violation of public policy, a plaintiff must show that (1) the plaintiff was employed by the defendant, (2) the defendant discharged the plaintiff, (3) a violation of public policy was a motivating reason for the discharge, and (4) the discharge harmed the plaintiff.” (Ferrick v. Santa Clara University (2014) 231 Cal.App.4th 1337, 1343.) Here, West alleges that “Greyhound wrongfully terminated Plaintiff’s employment in violation of important and well-established public policies, as set forth in various state statutes and other provisions including, but not limited to, the FEHA, the CFRA, and Labor Code section

Greyhound asserts that West’s wrongful termination in violation of public policy cause of action must fail because West’s claims for violations of state law fail. As discussed above, the Court denies Greyhound’s motion for summary adjudication as to all of the other challenged causes of action. Accordingly, the Court denies summary adjudication of the ninth cause of action for wrongful termination in violation of public policy.

[1]The Court notes that the caption page of Greyhound’s notice of motion incorrectly indicates that the instant motion is a motion for summary judgment, or in the alternative, summary adjudication.

[2]The Court notes that West’s first cause of action is for discrimination based upon race and disability in violation of FEHA.

[3]((See Reid v. Google, Inc. (2010) 50 Cal.4th 512, 520, fn. 2.)

Superior Court of California

County of Los Angeles

Department 50