Judge Upinder S. Kalra, Case 21STCV08886 2023-04-17 Tentative Ruling

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MOVING PARTY: Defendant Rose Plumbing and General Contracting, Inc., dba Larry & Joe’s Plumbing Supplies

1. An order granting Summary Judgment, or in the alternative, Summary Adjudication as to Causes of Action 1-9

1. Motion for Summary Adjudication is DENIED, as to the 1^st through 7^th Causes of Action.

2. Motion for Summary Adjudication is GRANTED, as to the 8^th and 9^th Causes of Action.

On March 5, 2021, Plaintiff Carlos Garcia (“Plaintiff”) filed a complaint against Defendant Rose Plumbing and General Contracting, Inc., dba Larry & Joe’s Plumbing Supplies (“Defendant”). The complaint alleged 9 causes of action based on discrimination and retaliation in violation of FEHA. The complaint alleges that while working for Defendant, he sustained injuries to his back, neck, and head after falling off a ladder. Plaintiff requested a short medical leave; however, Defendant contacted Plaintiff about his intent to resign, which Plaintiff denies. After informing Defendant that he was not resigning and wanted to return to work, Defendant terminated Plaintiff.

On February 1, 2023, Defendant Rose Plumbing and General Contracting, Inc., filed a Motion for Summary Judgement, or in the alternative, Summary Adjudication. Plaintiff’s Opposition was filed on April 3, 2023.

The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” (Scalf v. D.B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant or cross-defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2).) “Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2).) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.) “When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” (Id. at p. 467; Code Civ. Proc., § 437c, subd. (c).)

Government Code §12940 provides that it is unlawful for an employer to refuse to hire or employ a person or to discharge a person from employment, or to discriminate against the person in compensation or in terms, conditions, or privileges of employment on the basis of disability. (Gov. Code § 12940(a).) To establish a claim for discrimination in violation of FEHA, the plaintiff must generally prove that (1) he or she was a member of a protected class; (2) that he or she was qualified for the position he or she sought or was performing competently in the position he or she held; (3) that he or she suffered an adverse employment action, such as termination, demotion, or denial of an available job; and (4) some other circumstance suggesting discriminatory motive. (See Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 355.)

“If the plaintiff establishes a prima facie case, then a presumption of discrimination arises, and the burden shifts to the employer to rebut the presumption by producing admissible evidence sufficient to raise a genuine issue of material fact the employer took its actions for a legitimate, nondiscriminatory reason.” (Scotch v. Art Institute of California-Orange County, Inc. (2009) 173 Cal.App.4th 986, 1004). “If the employer meets that burden, the presumption of discrimination disappears, and the plaintiff must challenge the employer's proffered reasons as pretexts for discrimination or offer other evidence of a discriminatory motive.” (Id.) The employer meets its burden by presenting evidence which would permit a trier of fact to find it more likely than not that the stated business reasons were the basis for the adverse employment action. (Id. at 1006).

Once the employer meets its burden of showing a legitimate business reason for the adverse employment action, the employee is required to present sufficient evidence to raise a triable issue that would permit the trier of fact to find “the employers’ stated reason is either false or pretextual, or evidence that the employer acted with discriminatory animus, or evidence of each which would permit a reasonable trier of fact to conclude the employer intentionally discriminated.” (Faust v. California Portland Cement Co. (2007) 150 Cal.App.4th 864, 886). It is not enough to merely show the decision was wrong or mistaken because the issue is whether discriminatory animus motivated the employer, not whether the decision was proper, and the employee “must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder¿could¿rationally find them unworthy of credence and hence infer that the employer did not act for the asserted non-discriminatory reasons.” (Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1005 (emphasis in original)). While evidence that the proffered reason is unpersuasive or contrived does not necessarily establish the employee’s explanation of intentional discrimination is correct, evidence of pretext “is significant” and the prima facie case combined with the evidence that the employer’s asserted justification is false can permit the trier of fact to conclude there was unlawful discrimination. (Arteaga 163 Cal.App.4th 327, 343).

Defendant argues that this cause of action fails for various reasons: Plaintiff cannot demonstrate he suffered from a disability when he was terminated and Defendant terminated Plaintiff for a legitimate reason. First, the evidence, including the Ambulance Report, the Emergency Department report, and Plaintiff’s treating physician, all indicate that Plaintiff did not suffer a traumatic injury on September 17, 2020. (UF 1, 7, 12, 20, 22, 29, 31, 37.) Moreover, Defendant argues that Plaintiff cannot demonstrate he was subjected to an adverse action because Defendant was unaware of any injury or any need for accommodations. (UF 69-74.) Lastly, Plaintiff was terminated because he failed to show up for 3 shifts without notification, he violated Defendant’s drug-free policy, and did not provide an update about any medical condition or doctor’s notes. (UF 84-117.) The individuals who decided to terminate Plaintiff, Forne and Woillard, were unaware of Plaintiff’s alleged disability. (UF 113, 115.)

Plaintiff argues that there are sufficient facts to determine that he was disabled at the time of termination. Specifically, the doctor’s note from Kaiser required Plaintiff to be on restrictive work. (PUMF 88.) Additionally, there is evidence that Defendants were aware or at least perceived Plaintiff to be disabled. Plaintiff was found on the ground at work and had to be transported to the hospital, notified Mr. Forne various times that he was going to the doctor, and provided Defendants with information about his restrictions when performing work. (PUMF 18, 54, 59, 67.)

The court finds that Defendant has not met its burden of showing that the first cause of action for disability discrimination because Defendant has not shown that Plaintiff suffered a disability cannot be established. “[A]lthough the burden of proof in a [discrimination] action claiming an unjustifiable [termination] ultimately rests with the plaintiff ..., in the case of a motion for summary judgment or summary issue adjudication, the burden rests with the moving party to negate the plaintiff's right to prevail on a particular issue.... In other words, the burden is reversed in the case of a summary issue adjudication or summary judgment motion....’” (Sandell v. Taylor-Listug, Inc. (2010) 188 Cal.App.4th 297, 309.)

“The prima facie burden is light; the evidence necessary to sustain the burden is minimal…while the elements of a plaintiff's prima facie case can vary considerably, generally an employee need only offer sufficient circumstantial evidence to give rise to a reasonable inference of discrimination.” (Id. at 310.) “Under FEHA, a person is “physically disabled” when he or she has a physiological condition that “limits a major life activity…[A] qualifying disease or condition ‘limits a major life activity if it makes the achievement’ of the activity ‘difficult.’” (Id. at 311.) “Major life activities” shall be broadly construed and shall include physical, mental, and social activities and working.” (CA LEGIS 482 (2022), 2022 Cal. Legis. Serv. Ch. 482 (A.B. 1766) (WEST).)

Here, there is evidence that Plaintiff met the necessary elements for disability discrimination. Plaintiff was at work and suffered a fall, and was injured as a result. (PUMF 5, 6, 14-18.) As a result of that injury, Dr. Halpern indicated that Plaintiff could not return to work without seeing a physician. (PUMF 49.) Once Plaintiff has established the prima facie case of discrimination, Defendant must establish a nondiscriminatory reason for employment action. Defendant argues that the nondiscriminatory reason for Plaintiff’s termination was based on failure to report in for 3 days, suspected marijuana use, and did not provide doctor excuses. (Exhibit F, Plaintiff’s Exhibit List.) This would be considered a sufficient reason for terminating an employee. Thus, the burden shifts back to Plaintiff to show whether that reason is pretextual or that triable issues still remain. Here, Plaintiff presents evidence that despite the stated marijuana policy, which as Exhibit I of Defendant’s evidence states that any employee who is found to be using drugs before or during work would be terminated, there were other employees who actively smelled of marijuana, were told to go home, and yet still remained employed by Defendant. (PUMF 78.) Additionally, there is evidence that Plaintiff tried to inform Defendant, specifically Forne, that Plaintiff was unable to come back to work, but Defendant ignored those attempts. Additionally, as evidenced in their depositions, Woillard and Forne both indicated that if a doctor’s note had been provided, Plaintiff would not have been terminated. (PUMF 73.) Thus, when Plaintiff’s mother provided Defendant with Dr. Halpern’s First Occupational Report on September 18, 2020, Defendant was on notice about Plaintiff’s injuries. Lastly, both Woillard and Forne indicated that it is Defendant’s policy to obtain a written two weeks’ notice from employees. However, as the text messages indicate, Plaintiff’s alleged oral notice never occurred. (PUMF 61-63.) The initial instance of Plaintiff’s alleged oral two week’s notice occurred 3 days after Plaintiff’s fall. Thus, a reasonable trier of fact could determine that this alleged oral statement did not take place, as it was only brought up after the fall, and no other evidence is present to indicate why Defendant, whose policy it is to have written two weeks’ notice, would allow for an oral notice. Moreover, it is reasonable that a trier of fact could see that Defendant’s policies, like the drug and two weeks’ notice policy, were not equally enforced and therefore, the firing was pre-textual.

Therefore, Defendant’s Motion for Summary Adjudication as to the First Cause of Action is DENIED.

Gov. Code § 12940, subdivision (m) makes it unlawful for “an employer . . . to fail to make reasonable accommodation for the known . . . disability of an . . . employee.”

“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. (Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 256.) “[T]he employer cannot prevail on summary judgment on a claim of failure to reasonably accommodate unless it establishes through undisputed facts that “1) reasonable accommodation was offered and refused, 2) there simply was no vacant position within the employer’s organization for which the disabled employee was qualified and which disabled employee was capable of performing with or without accommodation, or (3) the employer did everything in its power to find a reasonable accommodation, but the informal interactive process broke down because the employee failed to engage in discussions in good faith. [Citation.]” (King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 442.)

Defendant argues that Plaintiff cannot demonstrate he suffered from a qualifying disability and even if Plaintiff could establish that, Defendant was unaware of the alleged disability when he was discharged. (PUF 61-83.)

Plaintiff argues that he was a disabled employee, and could perform essential functions of his position. Once Plaintiff was injured and informed Defendant on September 18, 2020, via his mother, and later texted message with the doctor’s note, Defendant was on notice of the disability. Plaintiff then requested time off, but refused to provide Plaintiff with time off.

As stated above, the Court has found that Plaintiff adequately alleged a disability. As for the second and third elements of this cause of action, the Court finds that there are triable issues of one or more material facts exists as to whether these elements were satisfied. That is, whether Plaintiff requested time off and Defendant failed to grant that request. “Two principles underline a cause of action for failure to provide a reasonable accommodation. First, the employee must request an accommodation. 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” (Doe v. Department of Corrections & Rehabilitation (2019) 43 Cal.App.5th 721, 738.) Here, there is no evidence presented that Defendant tried to accommodate Plaintiff’s request for time off, even with the presentation of a doctor’s note.

Therefore, Defendant’s Motion for Summary Adjudication as to the Second Cause of Action is DENIED.

In order to establish a claim that an employer failed to engage in the interactive process, a plaintiff must show that (1) the plaintiff requested the employer make a reasonable accommodation; (2) the plaintiff was willing to participate in an interactive process to determine whether a reasonable accommodation could be made; and (3) the employer failed to participate in a timely and good-faith interactive process with the plaintiff to determine whether a reasonable accommodation could be made. Govt. Code § 12940(n); CACI No. 2546. But if an employee does not need or request an accommodation, there can be no violation of the duty to engage in the interactive process or to accommodate. (Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935, 954.)

Defendant makes similar arguments, essentially that Plaintiff cannot demonstrate he was disabled, that Defendant was informed of this disability, or that Plaintiff requested an accommodation. Plaintiff argues that there is evidence that Plaintiff informed Defendant of his injury, via his mother dropping off the doctor’s note and calls to Mr. Forne (PUMF 67-75.)

Once again, there are triable issues of one or more material facts. As stated above, Plaintiff has presented evidence of a disability and presented evidence that Plaintiff requested time to recover and provided a doctor’s note. Despite this evidence, Defendant failed to engage in this process, not taking calls and eventually terminating Plaintiff. (PUMF 67-75.) “Two principles underline a cause of action for failure to provide a reasonable accommodation. First, the employee must request an accommodation. 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” (Doe v. Department of Corrections & Rehabilitation (2019) 43 Cal.App.5th 721, 738.) Here, there is no evidence presented that Defendant engaged in the interactive process with Plaintiff.

Therefore, Defendant’s Motion for Summary Adjudication as to the Third Cause of Action is DENIED.

To state a claim for retaliation under FEHA a plaintiff establishes a prima facie case by establishing that (1) the plaintiff engaged in a FEHA-protected activity, (2) the plaintiff was subject to an adverse employment action, and (3) there is a causal link between the protected activity and the adverse employment action. (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042). The protected activity may be established by the fact the plaintiff threatened to file a discrimination charge, that the plaintiff reasonably and sincerely believed he or she was opposing discrimination, or that the employer knew the employee was opposing the employer at the time of the retaliation. (Id. at 1046-48; see also Iwekaogwu v. City of Los Angeles (1999) 75 Cal.App.4th 803, 814-15; Flait v. North American Watch Corp. (1992) 3 Cal.App.4th 467, 477).

If an employee establishes the prima facie case, the employer must offer a legitimate and non-retaliatory reason for the adverse employment action. (Morgan v. Regents of University of Cal. (2000) 88 Cal.App.4th 52, 68). The employer must come forward with additional evidence, but it does not take on a burden of persuasion. (Id.) Once the employer “produces substantial evidence of a legitimate, non-discriminatory [or non-retaliatory] reason for the adverse employment action, the presumption of discrimination [or retaliation] created by the prima facie case ‘simply drops out of the picture.’” (Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 807 quoting St. Mary’s Honor Center v. Hicks (1993) 509 U.S. 502, 511).

If the employer establishes a legitimate reason for the adverse employment action, the burden shifts back to the employee to prove retaliation. (Morgan 88 Cal.App.4th at 68). An employee can establish pretext “either directly by persuading the court that a [retaliatory] reason more likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence.” (Id.). “The retaliatory motive is proved by showing that plaintiff engaged in protected activities, that his employer was aware of the protected activities, and that the adverse action followed within a relatively short time thereafter.” (Morgan 88 Cal.App.4th at 69). “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.” (Id.). “Essential to a causal link is evidence that the employer was aware that the plaintiff had engaged in the protected activity.” (Id.). Circumstantial evidence must be “specific” and “substantial” to create a triable issue with respect to whether an employer intended to retaliate, while direct evidence of pretext does not need to be “substantial” to create a triable issue as to the actual motivation of the employer. (Id.).

Defendant argues that Plaintiff has failed to establish that he engaged in a protected activity prior to termination. The doctor’s note provided by his mother did not list any disability and Plaintiff did not request time off. (UMF 131-141.) Even if Plaintiff did engage in a protected activity, Plaintiff cannot demonstrate it was a motivating reason for his termination as Defendant provided three other reasons: failure to show up, violation of Defendant’s drug free policy, and failure to provide an update. (UMF 144-150.)

Plaintiff argues that the same evidence used to establish the disability discrimination claim works to establish this cause of action for retaliation. Here, Plaintiff engaged in a protected activity, i.e., after being injured at work, informing Defendant and requesting time off but was terminated.

Like the disability discrimination cause of action, the Court finds that Plaintiff has sufficiently presented evidence that there are triable issues of one or more material facts exists as to whether the termination was pre-textual. First, Plaintiff’s alleged marijuana use in violation of company policy was not initiated on other employees. Second, Plaintiff’s mother informed Defendant via a doctor’s note that Plaintiff was injured and thus Defendant was on notice. Lastly, both Woillard and Forne indicated that Defendant’s policy is to accept two week’s notice in writing and only texted Plaintiff of his alleged oral notice (which Plaintiff denied doing) after Plaintiff was injured, after Plaintiff’s mother provided a doctor’s note, and after Plaintiff spoke with Forne. Thus, a reasonable trier of fact could determine that Defendant was retaliated against for requesting time off after being injured at work.

Therefore, Defendant’s Motion for Summary Adjudication as to the Fifth Cause of Action is DENIED.

Fourth Cause of Action: Failure to Maintain a Workplace Free From Discrimination and Retaliation

Government Code § 12940(k) states that “For an employer, labor organization, employment agency, apprenticeship training program, or any training program leading to employment, to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.”

Defendant argues that this claim also fails since there is no actionable discrimination and applies since there is no claim for retaliation (which is argued in the fifth cause of action.) Plaintiff cannot demonstrate that he suffered a disability and cannot demonstrate that he was subjected to retaliation.

Plaintiff argues that because Plaintiff has a viable claim for disability discrimination, as well as retaliation, this claim also stands.

Because the Court finds that Plaintiff has evidence supporting both disability discrimination and retaliation, this cause of action stands.

Therefore, Defendant’s Motion for Summary Adjudication as to the Fourth Cause of Action is DENIED.

To state a claim for wrongful termination in violation of public policy, a plaintiff must be able to show that (1) the plaintiff was employed by the defendant, (2) the defendant discharged the plaintiff, (3) the violation of public policy was a substantial motivating reason for the plaintiff’s discharge, and (4) the discharge caused the plaintiff harm. (Haney v. Aramark Uniform Services, Inc. (2004) 121 Cal.App.4th 623, 641; CACI 2430). There are four requirements that a policy must meet in order to support a wrongful discharge claim: (1) the policy is supported by either constitutional or statutory provisions; (2) the policy is “public” in that it “inures to the benefit of the public” and not merely the interests of the individual; (3) the policy was articulated at the time of the discharge; and (4) the policy is “fundamental” and “substantial.” (Franklin v. Monadnock Co. (2007) 151 Cal.App.4th 252, 258). When the plaintiff cannot establish a violation of the statutory scheme, the claim for wrongful termination in violation of public policy must fail. (Sequoia Insurance v. Superior Court (1993) 13 Cal.App.4th 1472, 1475).

Defendant argues that because neither of Plaintiff’s causes of action for disability discrimination or retaliation have been established, the derivative actions for wrongful termination fail.

However, the court finds that Defendant has failed to establish that this cause of action fails. “FEHA's provisions prohibiting discrimination may provide the policy basis for a claim for wrongful discharge in violation of public policy.” (Phillips v. St. Mary Regional Medical Center (2002) 96 Cal.App.4th 218, 227.) As stated above, triable issues of fact exist as to Plaintiff’s first cause of action for discrimination as well as Plaintiff’s fifth cause of action for retaliation. Thus, Plaintiff has established that there was a violation of public policy based on disability discrimination. Additionally, the other elements have been satisfied: Plaintiff worked for Defendant, Plaintiff was terminated by Defendant, and Plaintiff was harmed by this as he lost his job. As Phillips further states, FEHA establishes “a civil right to be free from job discrimination based on certain classifications,” which includes discrimination based on disability. (Phillips, supra, 96 Cal.App.4th at 227.)

Thus, Plaintiff has successfully established a cause of action for wrongful termination in violation of public policy.

Therefore, Defendant’s Motion for Summary Adjudication as to the Sixth Cause of Action is DENIED.

Seventh Cause of Action: Failure to Re-Hire in Violation of Government Code § 12940 et seq.

For an employer, because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, reproductive health decision making, 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 refuse to select the person for a training program leading to employment, or to bar or to discharge the person from employment or from a training program leading to employment, or to discriminate against the person in compensation or in terms, conditions, or privileges of employment.

Defendant argues that Plaintiff cannot demonstrate that there was an obligation to rehire him. Specifically, the facts indicate that after Plaintiff was terminated, Plaintiff then texted Forne with the doctor’s note and did not provide an explanation as to why Plaintiff did not inform anyone about the missed work days on the 18^th, 19^th, and 20^th. Even still, Plaintiff was terminated for three other reasons. Lastly, Plaintiff cannot demonstrate that he reapplied to work for Defendant.

Plaintiff argues that the request “please let me know what is going on and will be waiting your decision” is a request to get his job back. Moreover, Plaintiff argues that both Forne and Woillard testified that had Plaintiff texted before the termination on September 23^rd, “it would have saved his job.” Thus, as Plaintiff argues, this statement indicates that “none of its three rationales justifying its termination of Plaintiff would have mattered if Plaintiff had provided his work restrictions some mere four hours before the time he did.” (Opp. 21: 18-19.)

The Court finds that there is evidence that a trier of fact could find that Defendant’s termination and subsequent refusal to re-hire violated Government Code § 12940. Specifically, the evidence demonstrates that both Forne and Woillard indicated that had notice been provided prior to the termination, Plaintiff would still have a job. Thus, even though Plaintiff’s mother provided a doctor’s note on the 18^th and Forne admitted to receiving calls from Plaintiff, Defendant still terminated Plaintiff. However, if Plaintiff had texted Forne a few hours earlier, according to Forne and Woillard, his job would have been saved. Thus, a trier of fact could surmise that the reasons stated in the termination letter for Plaintiff’s firing were not the true reasons.

Therefore, Defendant’s Motion for Summary Adjudication as to the Seventh Cause of Action is DENIED

Motion for Summary Adjudication is DENIED, as to the 1^st through 7^th causes of action.

Motion for Summary Adjudication is GRANTED, as to the 8^th and 9^th causes of action.

[1] The Fourth Cause of Action is presented after the Fifth cause of action, as it is a claim for “Failure to Maintain a Workplace Free from Discrimination and Retaliation,” and the Fifth Cause of Action is a claim for Retaliation under FEHA.