Judge Thomas D. Long, Case Number: 21STCV44870, Date: 2023-10-24 Tentative Ruling

On December 8, 2021, Plaintiff Reihaneh Nasresfahani filed this action against Defendant Avelo Airlines Inc. The Complaint alleges (1) disability discrimination in violation of the Fair Employment and Housing Act (“FEHA”); (2) retaliation in violation of FEHA; (3) failure to participate in the interactive process; (4) failure to provide a reasonable accommodation; (5) failure to prevent discrimination and harassment; and (6) failure to provide employment records.

On June 2, 2023, Defendant filed a motion for summary judgment, or in the alternative, summary adjudication.

Objections to Defendant’s Response to Additional Material Facts: Overruled. A defendant’s response to a plaintiff’s additional disputed facts is properly included with a Reply. (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 249.) This is not new evidence or new substantive argument. Rather, Defendant contends that some facts are irrelevant, immaterial, unsupported, or insufficient to create a disputed issue of material fact. For some facts, Defendant cites previously submitted evidence to show contradictions.

Objections Nos. 1-2 to Declaration of Michael Yellin: Sustained for lack of foundation and as improper opinion and speculation. Declarant does not have personal knowledge of the feasibility of the devices found via a Google search.

Objections Nos. 1-3 to Declaration of Reihaneh Nasresfahani: Overruled. To the extent that Defendant objects because Plaintiff’s declaration contradicts other evidence, the Court will consider the declaration in accordance with D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1 (D’Amico). (See Harris v. Thomas Dee Engineering Co., Inc. (2021) 68 Cal.App.5th 594, 604 [“Properly understood, D’Amico does not state a rule regarding the admissibility of evidence; instead, the case provides guidance in determining whether a declaration that contradicts prior discovery responses is sufficient to create a triable issue of fact.”].)

On April 5, 2021, Plaintiff was hired as a full-time Customer Service Crewmember (“CSC”) at Defendant’s Los Angeles base at the Hollywood Burbank Airport. (Undisputed Material Facts “UMF” 1.) The CSC position assists Defendant’s customers and facilitates flight check-in, boarding, and baggage management at the airport ticket counter and gate. (UMF 2.) At the airport ticket counter, the CSC is generally responsible for checking in customer bags, which requires the CSC to lift the bag from the scale and place it on the conveyor belt behind the ticket counter. (UMF 3.) At the airplane gate, the CSC is generally responsible for assisting customers with lifting and carrying bags and other items (for example, strollers). (UMF 4.) The CSC job description states that the “Ability to lift/push/pull up to 70 pounds” is a basic requirement of the CSC position. (UMF 5.) Plaintiff’s employment records show that Plaintiff indicated she was able to lift, push, and pull up to 70 pounds when applying for the CSC position. (UMF 6.)

Plaintiff provided a note dates May 21, 2021 that stated, “The above patient has been under my care [and] can only return to work with a lift limitation of < 10 lbs due to back problems.” (UMF 11; Additional Material Facts “AMF” 13.) Plaintiff concedes that Defendant advised her to be careful in her work and to seek help from co-workers in lifting any items over 10 pounds. (UMF 12; AMF 14.)

During Plaintiff’s telephone call with Margaret Plummer on June 7, 2021, Plaintiff reported that her co-workers help her lift bags when they can; however, there are times when co-workers are too busy to help or otherwise unavailable. (UMF 13.) On those occasions, Plaintiff disclosed that she lifted the bags herself. (UMF 13.) Plaintiff informed Ms. Plummer that she continued to lift bags 15 to 20 pounds without asking for assistance, and “often times while working, because everyone was so busy, she was unable to locate a co-worker to help her lift items that violated her restrictions, so she lifted them herself, causing additional pain and injury.” (UMF 14-15.) Ms. Plummer advised Plaintiff that she must comply with her work restrictions and not lift anything over 10 pounds. (UMF 16; AMF 15.) Plaintiff concedes that this call was an “interactive process.” (UMF 17.) Plaintiff acknowledges there were instances when she could not locate a co-worker to aid her when lifting items heavier than 10 pounds after the call. (UMF 26; AMF 19.)

Defendant assigned Plaintiff duties that did not require lifting. (UMF 18.) Defendant determined there were insufficient alternative duties to comprise a full-time CSC position that is not required to work the ticket counter and gate, where lifting is required. (UMF 19.) Defendant considered reassigning all of Plaintiff’s lifting duties to other CSCs to accommodate her work restrictions but determined such an option would not be workable or effective. (UMF 20.)

Defendant contacted Plaintiff via email dated June 26, 2021, which addressed Plaintiff’s work restrictions and stated Defendant’s desire to explore possible accommodations for those work restrictions with Plaintiff. (UMF 22.) Although the email requested Plaintiff to respond by July 6, 2021, Plaintiff did not provide a response to Ms. Plummer by that date. (UMF 23.)

In a July 7, 2021 email, Ms. Plummer contacted Plaintiff again to schedule a time to discuss the issues noted in the June 26, 2021. (UMF 24.) Plaintiff responded that she had another health care provider appointment on July 22, 2021. (UMF 25.) On July 12, 2021, Defendant advised Plaintiff that she would be placed on a leave of absence effective July 13, 2021. (UMF 27.)

By email to Margaret Plummer dated July 22, 2021, Plaintiff provided a new doctor’s note stating, “She has a medical condition which prevents her from lifting heavy amount of weight, especially in a repetitive fashion. I expect her condition to improve and the limitations will likely be temporary. I expect her condition to improve within 3 to 6 months. We will continue to monitor her progress. We recommend modified work duty with the following restrictions starting on 07/22/2021 and ending on 01/22/2022: -no lifting over 25 lbs; -no pushing or pulling over 25 lbs.” (UMF 28.) Because of these restrictions, Plaintiff’s leave of absence continued. (UMF 29.)

On July 27, 2021, Defendant offered Plaintiff a part-time position assisting with the busy morning customer check in process which would not require any lifting. (UMF 30.) This position was created specifically for Plaintiff to allow her to return to work, even if on a part-time basis only. (UMF 31.) Plaintiff declined the position. (UMF 32.) Plaintiff remained on a leave of absence pending a change in her temporary work restrictions, which were set to expire on January 22, 2022. (UMF 33.)

Defendant is unaware of Plaintiff ever advising it that she is resigning from or quitting her employment. (UMF 35.) Plaintiff has not provided Defendant with updated information regarding her work restrictions since her July 22, 2021 note from Synovation Medical Group. (UMF 36.)

Plaintiff’s counsel sent a demand for records to Defendant on or about August 18, 2021, via certified mail to the address listed on Plaintiff’s paystub. (Response to UMF 40.) During a telephone call on January 27, 2022, Ms. Plummer advised Plaintiff’s counsel that she was unaware of any request for a copy of records. (UMF 40.) On February 8, 2022, Defendant provided a copy of Plaintiff’s personnel and payroll records to Plaintiff’s counsel. (UMF 42.)

For each claim in the complaint, the defendant moving for adjudication must satisfy the initial burden of proof by showing that one or more elements of a cause of action cannot be established or that there is a complete defense to a cause of action. (Code Civ. Proc., § 437c, subd. (p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520 (Scalf).) Then the burden shifts to the plaintiff to show that a triable issue of material fact exists as to that cause of action or a defense. (Code Civ. Proc., § 437c, subd. (p)(2); Scalf, supra, 128 Cal.App.4th at p. 1520.) To establish a triable issue of material fact, the party opposing the motion must produce “substantial responsive evidence.” (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 162-163 (Sangster).)

Defendant argues that Plaintiff cannot establish a disability under FEHA. (Motion at p. 9.) Under FEHA, a “physical disability” includes, but it not limited to, having a condition that affects the musculoskeletal system and limits a major life activity. (Gov. Code, § 12926, subd. (m).) Plaintiff described her disability as “suffer[ing] severe back pain, and foot pain. Upon information and belief, Plaintiff suffered a ‘bulging disc’ in back that caused severe pain, and made it painful to walk, stand, and lift heavy items.” (UMF 37.) Whether this condition was severe enough to limit a major life activity is a triable issue of fact.[1]

B. Defendant Has Proven a Legitimate and Non-Discriminatory Reason For the Alleged Discrimination and Retaliation (First and Second Causes of Action).

The first cause of action alleges disability discrimination by terminating Plaintiff’s employment. (Complaint ¶ 17.) The second cause of action alleges retaliation in response to Plaintiff taking a disability leave of absence, requesting accommodations, complaining about discrimination, and complaining about lack of accommodation. (Complaint ¶ 26.)

An employee’s prima facie claim of discrimination requires “(1) the employee’s membership in a classification protected by the statute; (2) discriminatory animus on the part of the employer toward members of that classification; (3) an action by the employer adverse to the employee’s interests; (4) a causal link between the discriminatory animus and the adverse action; (5) damage to the employee; and (6) a causal link between the adverse action and the damage.” (Mamou v. Trendwest Resorts, Inc. (2008) 165 Cal.App.4th 686, 713.) If an employee makes a prima facie showing, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for the adverse action. (Id. at p. 714.) “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.)

“In an employment discrimination case, an employer may move for summary judgment against a discrimination cause of action with evidence of a legitimate, nondiscriminatory reason for the adverse employment action. [Citation.] A legitimate, nondiscriminatory reason is one that is unrelated to prohibited bias and that, if true, would preclude a finding of discrimination. [Citation.] The employer’s evidence must be sufficient to allow the trier of fact to conclude that it is more likely than not that on or more legitimate, nondiscriminatory reasons were the sole basis for the adverse employment action.” (Featherstone v. Southern California Permanente Medical Group (2017) 10 Cal.App.5th 1150, 1158 (Featherstone).) Then the burden shifts to the employee “to present evidence that the employer’s decision was motivated at least in part by prohibited discrimination.” (Id. at pp. 1158-1159.) “The plaintiff’s evidence must be sufficient to support a reasonable inference that discrimination was a substantial motivating factor in the decision. [Citation.] The stronger the employer’s showing of a legitimate, nondiscriminatory reason, the stronger the plaintiff’s evidence must be in order to create a reasonable inference of a discriminatory motive.” (Id. at p. 1159.)

“The employee’s ‘subjective beliefs in an employment discrimination case do not create a genuine issue of fact; nor do uncorroborated and self-serving declarations.’ [Citation.] (Featherstone, supra, 10 Cal.App.5th at p. 1159.) “To show that an employer’s reason for termination is 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.” ’ [Citation.] To meet his or her burden, 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 ‘ “the employer did not act for [the asserted] nondiscriminatory reasons.” ’ [Citations.]” (Ibid.)

Similarly, to establish a prima facie case of retaliation under 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. [Citations.] Once an employee establishes a prima facie case, the employer is required to offer a legitimate, nonretaliatory reason for the adverse employment action. [Citation.] If the employer produces 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 prove intentional retaliation. [Citation.]” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.)

“An employer is not liable for discharging an employee with a disability unless the employee was able to perform the essential functions of his or her job with or without accommodation.” (Nadaf-Rahrov v. Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th 952, 975; see Gov. Code, § 12940, subd. (a)(2).)

Defendant argues that Plaintiff could not perform the essential function of lifting. (Motion at pp. 10-11.) It is undisputed that the CSC job description states that the “Ability to lift/push/pull up to 70 pounds” is a basic requirement of the CSC position. (UMF 5.) Plaintiff’s work restrictions limited her to lifting under ten pounds, and later limited to lifting under twenty-five pounds. (UMF 11, 28.) Defendant advised Plaintiff to be careful and seek help from coworkers for lifting items over ten pounds. (UMF 12.) Plaintiff admitted that there were times when a coworker was not available to help, and Plaintiff continued to lift fifteen to twenty pounds without asking for assistance, further injuring herself. (UMF 13-15, 26.) Defendant considered reassigning all of Plaintiff’s lifting duties to other CSCs to accommodate her work restrictions but determined such an option would not be workable or effective. (UMF 20.) Defendant therefore placed Plaintiff on a leave of absence. (UMF 27, 29.)

Defendant has met its initial burden of showing that Plaintiff could not perform an essential function of the job and that it had a legitimate and nondiscriminatory reason for Plaintiff’s leave of absence. (Motion at pp. 9-11, 13-17.) The burden now shifts to Plaintiff to show pretext and intentional retaliation.

Plaintiff argues that lifting is not an essential function. (Opposition at pp. 5-8.) However, she does not provide substantial contrary evidence. Plaintiff admitted that, even with Defendant’s accommodation of asking coworkers for help, she still had to lift items above her weight restrictions because coworkers were not available. (UMF 13-15, 26.)

Defendant also argues that Plaintiff did not suffer an adverse employment action because it did not terminate her employment, and Plaintiff never formally resigned. (Motion at pp. 14-15, 17.) Plaintiff argues that her unpaid leave was an adverse employment action. (Opposition at p. 12.) The Court does not reach this argument because even if the leave of absence were an adverse employment action, Defendant showed that Plaintiff could not perform an essential function of the job and that it had a legitimate and nondiscriminatory reason for the leave of absence.

C. Defendant Has Proven That It Reasonably Accommodated Plaintiff and Engaged in the Interactive Process (Third and Fourth Causes of Action).

The third and fourth causes of action allege that Defendant did not accommodate Plaintiff’s disability, and it terminated her employment without engaging in the interactive process. (Complaint ¶¶ 38-40, 47.)

“The essential elements of a failure to accommodate claim are: (1) the plaintiff has a disability covered by the FEHA; (2) the plaintiff is a qualified individual (i.e., he or she can perform the essential functions of the position); and (3) the employer failed to reasonably accommodate the plaintiff's disability. [Citation]” (Cuiellette v. City of Los Angeles (2011) 194 Cal.App.4th 757, 766.) “Two principles underlie a cause of action for failure to provide a reasonable accommodation. First, the employee must request an accommodation. [Citation.] Second, the parties must engage in an interactive process regarding the requested accommodation and, if the process fails, responsibility for the failure rests with the party who failed to participate in good faith. [Citation.] While a claim of failure to accommodate is independent of a cause of action for failure to engage in an interactive dialogue, each necessarily implicates the other. [Citation.]” (Moore v. Regents of University of California (2016) 248 Cal.App.4th 216, 242.) An employer is liable for failing to accommodate when it is the one responsible for the breakdown in the interactive process; an employer may prevail where the employer does everything in its power to engage but the employee does not engage in further discussions in good faith. (See Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 263.)

Defendant argues that it provided a reasonable accommodation. (Motion at pp. 11-13.) Defendant initially advised Plaintiff to be careful in her work and to seek help from coworkers in lifting any items over ten pounds. (UMF 12.) During a phone call, Margaret Plummer advised Plaintiff that she must comply with her work restrictions and not lift anything over ten pounds. (UMF 17.) It is undisputed that Plaintiff perceived that phone call as an interactive process. (UMF 17.) Plaintiff’s final doctor’s note indicated that Plaintiff’s condition may improve and restrictions may be lifted on January 22, 2022. (UMF 28, 33.) Plaintiff never provided updated information after that. (UMF 36.) Defendant determined that there were insufficient alternative duties to comprise a full-time CSC position that was not required to work the ticket counter and gate, where lifting is required, and it was not feasible to reassign all lifting duties to other CSCs. (UMF 19-20.)

Plaintiff declined Defendant’s offer of a specially created part-time position that would not require any lifting, so she remained on a leave of absence until her restrictions changed. (UMF 30-33.) “Holding a job open for a disabled employee who needs time to recuperate or heal is in itself a form of reasonable accommodation and may be all that is required where it appears likely that the employee will be able to return to an existing position at some time in the foreseeable future.” (Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 263.)

Defendant has met its initial burden of showing that it accommodated Plaintiff and engaged in an interactive process.

Plaintiff argues that she “worked for nearly two months as a CSC under the accommodation provided – that she should seek the aid of her co-workers to lift baggage exceeding her restrictions.” (Opposition at p. 10.) However, Plaintiff also admitted that there were times when coworkers were busy or unavailable to help. (UMF 13, 15.) Accordingly, this accommodation was not a permanent solution.

Plaintiff also suggests alternative accommodations. (Opposition at p. 10.) Plaintiff provides no evidence showing that these options were feasible. Plaintiff cites only her own deposition testimony about suggesting other options to Ms. Plummer. (See AMF 37-39.) Additionally, according to Plaintiff’s testimony, Defendant had CSCs stationed exclusively at the gate “on some occasions.” (See AMF 52.) There is no evidence that this was a feasible alternative full-time position. To the extent that Plaintiff argues that she could have issued tickets and boarding passes or taken payments (see AMF 58-59), it is undisputed that Defendant did offer a similar alternative to Plaintiff, which she declined (UMF 30, 32; see AMF 60).

Plaintiff argues that Defendant is responsible for the breakdown in the interactive process. (Opposition at p. 14.) However, Plaintiff admits that Ms. Plummer “told Plaintiff that she could return to work once she had no lifting restrictions and that Defendant would contact her when they determined an available accommodation other than a leave of absence.” (Ibid.) Plaintiff never provided updated information after her July 22, 2021 doctor’s note and never returned to work. (UMF 35-36.)

D. Because Defendant Prevails on the Underlying Claims, It Cannot Be Liable For Failure to Prevent (Fifth Cause of Action).

The fifth cause of action alleges failure to prevent discrimination and harassment. Plaintiff does not allege any severe and pervasive harassment.

Defendant argues that because there was no discrimination, it also cannot be liable for failing to prevent discrimination. (Motion at p. 18.) “[C]ourts have required a finding of actual discrimination or harassment under FEHA before a plaintiff may prevail under [Government Code] section 12940, subdivision (k).” (Carter v. California Dept. of Veterans Affairs (2006) 38 Cal.4th 914, 925, fn. 4.)

For the reasons discussed above, summary adjudication of the fifth cause of action is also granted. (See Glynn v. Superior Court (2019) 42 Cal.App.5th 47, 56.)

E. Defendant Has Shown That It Timely Produced Employment Records After Receiving Plaintiff’s Request (Sixth Cause of Action).

The sixth cause of action alleges failure to timely provide employment documents after Plaintiff’s August 18, 2021 request.

“An employer who receives a written or oral request to inspect or receive a copy of records pursuant to subdivision (b) pertaining to a current or former employee shall comply with the request as soon as practicable, but no later than 21 calendar days from the date of the request.” (Lab. Code, § 226, subd. (c).)

Defendant argues that it never actually received a request from Plaintiff. Defendant’s Director of Crewmember Experience is not aware of any request for Plaintiff’s personnel and payroll records, and she conducted a reasonable and diligent search. (Plummer Decl. ¶ 16.) Defendant was first made aware of Plaintiff’s request during a January 27, 2022 phone call with Plaintiff’s counsel, and it provided Plaintiff’s records on February 8, 2022. (Plummer Decl. ¶ 16 & Ex. L.)

Plaintiff provides a copy of the letter that her counsel purported to send to Defendant on August 18, 2021. (Yellin Decl., Ex. D.) Counsel declares that he sent the letter on August 18, 2021, but Plaintiff provides no contrary evidence showing that Defendant in fact received the letter, despite it being sent via certified mail. (Yellin Decl. ¶¶ 3-4.)

Because Defendant timely produced Plaintiff’s employment records after the January 27, 2022 phone call, summary adjudication of the sixth cause of action is granted.

The motion for summary judgment is GRANTED. Defendant is ordered to submit a proposed judgment within five days.

A Non-Appearance Case Review Re: Submission of Proposed Judgment is scheduled for November 22, 2023 at 9:00 a.m.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. If all parties in the case submit on the tentative ruling, no appearances before the Court are required unless a companion hearing (for example, a Case Management Conference) is also on calendar.

Hon. Thomas D. Long

Judge of the Superior Court

[1] The Court will consider the remaining arguments under the assumption that Plaintiff does have a qualifying disability.