-RC Natisha Hamilton v. Costco Wholesale Corporation et al, No. 2:2010cv06133 - Document 39 (C.D. Cal. 2011)
Court Description: ORDER DENYING in PART DEFENDANTS MOTION FOR SUMMARY JUDGMENT 25 by Judge Otis D Wright, II (lc)
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-RC Natisha Hamilton v. Costco Wholesale Corporation et al Doc. 39 O 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA 8 WESTERN DIVISION 9 10 11 12 13 14 15 16 17 18 CASE NO. CV 10-6133 ODW (RCx) ) ) ) Plaintiff, ) ) ) v. ) ) COSTCO WHOLESALE CORPORATION; ROBERT TAYAN; ) ) JULIE FRAZIER; AND DOES 1 ) THROUGH 100, ) inclusive ) ) Defendants. _______________________________ ) NATISHA HAMILTON, I. ORDER GRANTING in PART and DENYING in PART DEFENDANT’S MOTION FOR SUMMARY JUDGMENT [25] [Filed 06/22/11] INTRODUCTION 19 20 Pending before the Court is Defendant Costco Wholesale Corporation’s 21 (“Defendant”) Motion for Summary Judgment or, in the Alterative for Partial Summary 22 Adjudication. (Dkt. No. 25.) Plaintiff Natisha Hamilton (“Plaintiff”) has since filed an 23 Opposition. (Dkt. Nos. 27, 28.) Having carefully considered all the papers filed both in 24 support of and in opposition to the instant Motion, the Court deems the matter appropriate 25 for decision without oral argument. See Fed. R. Civ. P. 78; L.R. 7-15. For the following 26 reasons, Defendants’ Motion for Summary Judgment, or alternatively Partial Summary 27 Adjudication, is GRANTED in PART and DENIED in PART. 28 1 Dockets.Justia.com II. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 FACTUAL BACKGROUND Defendant hired Plaintiff at its Lancaster retail store in or around May 1998, and by 2006, Plaintiff was employed as a Return Clerk. (SUF No. 1.)1 In connection with Plaintiff’s employment, she received Defendant’s 2004 and 2007 Employee Agreements (“EA”), which provided employees with a maximum of twelve months medical leave; “[f]ailure to return from an authorized leave of absence is a terminable offense.” (Stevenson Decl. ¶ 4; SUF No. 7.) On or about March 22, 2006, Plaintiff fell at work and injured her left leg, lower back, and left heel. (SUF No. 9.) Due to the injury, Plaintiff went on medical disability leave in or around May 2006 and filed a Worker’s Compensation claim. (SUF No. 10.) As part of Plaintiff’s Worker’s Compensation claim, Dr. Gary Brazina examined Plaintiff and her relevant medical records, after which he issued a Qualified Medical Exam Report (“QME Report”) in July, 2008. (SUF No. 11.) During the examination, Plaintiff complained about her daily living but rated her condition permanent and stationary. (Id.) Based upon this information, Dr. Barzina placed Plaintiff on a permanent work restriction of “semi-sedentary” in the QME Report. (SUF No. 12.) In October 2008, Plaintiff wished to return to work and contacted Defendant’s Worker’s Compensation Manager. (SUF No. 16.) Plaintiff was informed she would first need to undergo an evaluation process meant to help returning employees. (SUF Nos. 17, 18.) An Assessment Meeting (the “Meeting”) was scheduled for October 21, 2008, through RWL–an independent company hired by Defendant to evaluate employees who wanted to return to work. (SUF Nos. 18, 19.) Prior to the meeting, Plaintiff met with Dr. Payam Vahedifar, her pain management doctor, and discussed returning to work as a Refund Clerk or Outside Marketer; both jobs she had discovered were available at Defendant’s Lancaster warehouse. (Hamilton Depo. at 30:10-31:18; 128:3-11.) Dr. Vahedifar counseled Plaintiff that her previous Refund Clerk position demanded too 27 28 1 The Court refers to Defendant’s Separate Statement of Uncontroverted Facts (“SUF”). (Dkt. No. 25-2.) Plaintiff submitted a response to Defendant’s SUF (“Pl.’s Resp. to SUF”) (Dkt. No. 29), to which Defendant submitted a reply (Dkt. No 32-2). 2 1 much standing, but that she could work as an Outside Marketer because there was no 2 specific amount of required standing in the job description. (Id.) 3 As set for in the job description for the Outside Marketer, an essential function of 4 the position is to “canvass for new business by signing up individual and business for 5 Costco memberships . . . . This duty of the Outside Marketer requires that he or she spend 6 most of the time outside the warehouse going from business to business selling new 7 Costco memberships and setting up stations at different locations to attract new 8 members.” (SUF No. 39.) During Plaintiff’s career at Defendant’s Lancaster warehouse, 9 she had assisted the Outside Marketers on ten different occasions. (SUF No. 37) On 10 these occasions, she sat in the office and called members to renew their memberships, sat 11 at tables in the warehouse when canvassing for new members, and visited businesses. 12 (Id.) 13 Prior to the Meeting, Plaintiff also met with Craig Stevenson (“Stevenson”), general 14 manager of the Lancaster warehouse, to inform him that she wanted to return to work, 15 potentially at a different position. (SUF No. 24.) Stevenson replied that the Outside 16 Marketer position was comparable to a Refund Clerk, and he would hold it open for 17 Plaintiff until after the Meeting. (SUF No. 25.) Congruently, Stevenson received an 18 email from Frances Parisi (“Parisi”), a Work Ability Specialist employed by RWL. 19 (Stevenson Decl. ¶ 7; Exh. J.) The email stated Plaintiff could only “work approximately 20 one-half the time in a standing or walking position, with minimum demand of physical 21 effort whether standing, walking or sitting[] ([lifting ten] pounds occasionally, negligible 22 amount frequently),” due to her semi-sedentary work restriction. (Id.) The email also 23 indicated Parisi would determine at the Meeting if Defendant would be able to 24 accommodate Plaintiff’s restrictions on a permanent basis. (Id.) 25 On the appointed day, Plaintiff went to the Meeting at the Lancaster warehouse 26 where she met with Robert Tayan (“Tayan”), the Lancaster Assistant General Manager; 27 also in attendance via telephone were Julie Frazier (“Frazier”)–Defendant’s 28 Accommodation Specialist–and Parisi. (SUF Nos. 18, 28.) The only document that Plaintiff took to the meeting was the QME Report. (SUF No. 29.) Parisi reviewed the 3 1 essential functions for the Refund Clerk and Outside Marketer, and gave Plaintiff an 2 opportunity to suggest accommodations that would enable her to perform the essential 3 functions. (SUF No. 31.) When Plaintiff was asked about the ten pound lifting 4 restriction, she indicated that no such restriction existed. (Pl.’s Resp. to SUF Nos. 23, 5 24.) An issue arose as to whether Plaintiff could perform the essential functions of a 6 Refund Clerk as she “would [be] require[d] to stand/walk [greater than] half time” in 7 violation of her work restriction. (SUF No. 32; Exh. 21.) At the time of the Meeting, 8 neither Plaintiff nor Defendant offered a reasonable accommodation to this essential 9 function; neither party suggested Plaintiff could perform the position on a part time basis. 10 (SUF No. 32, 33.) With respect to the Outside Marketer position, again, neither party 11 suggested a reasonable accommodation that would allow Plaintiff to “potential[ly] 12 stand[]/walk[] [less than] 1/2 time,” when preforming the essential functions of the 13 position; according to the job description, Outside Marketers have the potential of 14 standing/walking for less than half time when preforming their essential job functions. 15 (SUF No. 43; Exh. 21.) Plaintiff signed a document at the conclusion of the Meeting 16 stating that she and the other individuals attended the Meeting and were in agreement 17 with the summary indicating Plaintiff could not perform either job. (SUF No. 34.) 18 After the meeting, Stevenson and Fraizer determined they should terminate 19 Plaintiff if she was unable to find a position at one of Defendant’s warehouses that met 20 her restrictions. (Stevenson Decl. ¶ 12.) Subsequently, Tayan sent Plaintiff an October 21 24, 2008 letter that restated the results of the Meeting, encouraged Plaintiff to apply for 22 other positions–including any openings at the Santa Clarita warehouse–and to contact 23 Defendant by November 1, 2008, or she would be terminated due to her exhaustion of 24 medical leave time under the EA. (SUF No. 47.) Included with the letter was a 25 termination form. (SUF No. 48.) Plaintiff’s only response to the letter was that she 26 called Tayan to let him know she was upset about receiving the termination form, as well 27 as, being asked to have it signed and returned to Defendant. (Pl.’s Resp. to SUF No. 51.) 28 On November 13, 2008, Stevenson sent Plaintiff another letter that restated the results of the Meeting, informed Plaintiff of alternative employment opportunities at the Santa 4 1 Clarita warehouse, and stated: “Because you have exhausted the leave of absence 2 available under the [EA] [], and cannot return to work with or without accommodation, 3 it is appropriate to separate your employment.” (Stevenson Decl. ¶¶ 14, 15; Exh. L.) 4 As a result of the foregoing events, on June 25, 2010, Plaintiff filed a Complaint 5 in the Superior Court of California against Defendant, alleging the following nine claims: 6 (1)breach of contract; (2) disability discrimination in violation of the California Fair 7 Employment and Housing Act (“FEHA”), California Government Code section 12940; 8 (3) harassment in violation of FEHA; (4) retaliation in violation of FEHA; (5) failure to 9 accommodate in violation of FEHA; (6) failure to engage in the interactive work process 10 in violation of FEHA; (7) failure to prevent discrimination in violation of FEHA; (8) 11 wrongful termination in violation of FEHA; and (9) wrongful termination in violation of 12 public policy. (Dkt. No. 1.) Plaintiff’s claim for harassment was subsequently dismissed. 13 (Dkt. No. 11.) On August 17, 2010, Defendant removed this action to federal court, 14 invoking diversity jurisdiction under 28 U.S.C. § 1332. (Id.) Defendant now brings the 15 instant Motion for Summary Judgment. 16 III. LEGAL STANDARD 17 18 Summary judgment is appropriate when the evidence, viewed in the light most 19 favorable to the nonmoving party, shows that there is no genuine issue as to any material 20 fact, and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 21 56(c). The moving party bears the initial burden of establishing the absence of a genuine 22 issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). That 23 burden may be met by “‘showing’– that is, pointing out to the district court–that there is 24 an absence of evidence to support the nonmoving party’s case.” Id. at 325. Once the 25 moving party has met this burden, the nonmoving party must go beyond the pleadings 26 and identify specific facts that show a genuine issue for trial. Id. at 323-34; Anderson v. 27 Liberty Lobby, Inc., 477 U.S. 242, 248 (1968). Summary judgment is appropriate if a 28 party, after adequate time for discovery, “fails to make a showing sufficient to establish 5 1 the existence of an element essential to that party’s case, and on which that party will bear 2 the burden of proof at trial.” Celotex Corp., 477 U.S. at 322. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Only genuine disputes over facts that might affect the outcome of the suit will properly preclude the entry of summary judgment. Anderson, 477 U.S. at 248; see also Aprin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 919 (9th Cir. 2001) (the nonmoving party must present specific evidence from which a reasonable jury could return a verdict in its favor). “A scintilla of evidence or evidence that is merely colorable or not significantly probative does not present a genuine issue of material fact.” Addisu v. Fred Meyer, 198 F.3d 1130, 1134 (9th Cir. 2000). Moreover, it is not the task of the district court “to scour the record in search of a genuine issue of triable fact. [Courts] rely on the nonmoving party to identify with reasonable particularity the evidence that precludes summary judgment.” Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996); see also Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. 2001) (“The district court need not examine the entire file for evidence establishing a genuine issue of fact, where the evidence is not set forth in the opposing papers with adequate references so that it could conveniently be found.”). When ruling on a motion for summary judgment, the Court may consider evidence including the pleadings, discovery and disclosure materials, and any affidavits on file. Fed. R. Civ. P. 56(c)(2). The evidence presented by the parties must be admissible. Fed. R. Civ. P. 56(e). Conclusory or speculative testimony in affidavits and moving papers is insufficient to raise genuine issues of fact and defeat summary judgment. Thornhill Publ’g Co. v. GTE Corp., 594 F.2d 730, 738 (9th Cir. 1979). Conversely, a genuine dispute over a material fact exists if there is sufficient evidence supporting the claimed factual dispute, requiring a judge or jury to resolve the differing versions of the truth. Anderson, 477 U.S. at 253. IV. DISCUSSION Defendant brings the instant Motion seeking summary judgment or, in the alternative, summary adjudication as to Plaintiff’s claims for breach of contract; disability discrimination and retaliation; failure to engage in the interactive work process; 6 1 failure to accommodate; failure to prevent discrimination; and wrongful termination. 2 Additionally, Defendant seeks summary judgment as to Plaintiff’s claim for punitive 3 damages. The Court will address each claim in turn. 4 A. 5 “A cause of action for breach of contract requires proof of the following elements: 6 (1) existence of the contract; (2) plaintiff’s performance or excuse for nonperformance; 7 (3) defendant’s breach; and (4) damages to plaintiff as a result of the breach.” CDF 8 Firefighters v. Maldonado, 158 Cal. App. 4th 1226, 1239 (Ct. App. 2008). BREACH OF CONTRACT 9 Plaintiff contends Defendant breached the EA “by dismissing [Plaintiff] while she 10 was on approved medical disability leave, or, in the alternative, by failing to notify her 11 that taking more than [twelve] months of medical leave was cause for dismissal.” (SUF 12 No. 60.) While the EA protected Plaintiff from termination without good cause, it also 13 stipulated a maximum of twelve months medical leave, after which Plaintiff would be 14 terminated if she failed to return to work. Additionally, Plaintiff signed a document 15 indicating she was responsible for reading the EA and complying with its policies. (SUF 16 No. 7.) At the time Defendant allegedly breached the EA by terminating Plaintiff, she 17 had been on medical leave for twenty-nine months; seventeen months beyond the 18 contractual limit set by the EA. (SUF No. 24.) Thus, Plaintiff was in material breach of 19 the EA by not performing her duties under the contract antecedent to her termination, i.e. 20 returning to work after the twelve months of medical leave expired. Consequently, 21 Plaintiff fails to fulfill element two of her breach of contract cause of action and 22 Defendant’s Motion is GRANTED as to this claim. 23 B. DISABILITY DISCRIMINATION AND RETALIATION 24 Under the FEHA, it is unlawful for an employer “to bar or to discharge [a] person 25 from employment” because of a physical disability. Cal. Gov’t Code § 12940(a). 26 However, the FEHA specifically limits the reach of the mandate: “This part does not 27 prohibit an employer from . . . discharging an employee who, because of the employee’s 28 medical condition, is unable to perform his or her essential duties even with reasonable accommodations . . . .” Cal. Gov’t Code § 12940(a)(2). 7 1 For assessing claims of disability discrimination and retaliation, California courts 2 have adopted a three stage burden-shifting test known as the McDonnell Douglas test. 3 Zhang v. Walgreen Co., No. 09-05921, 2010 WL 4922650, at *4 (N.D. Cal. 2010); Guz 4 v. Bechtel Nat'l, Inc., 24 Cal. 4th 317, 354 (2000); see also McDonnell Douglas Corp. v. 5 Green, 411 U.S. 792 (1973). First, the plaintiff bears the initial burden of proving a 6 prima facie case of discrimination or retaliation. Guz, 24 Cal. 4th at 354. Second, if the 7 first threshold is met, the burden shifts to the defendant “to articulate a legitimate 8 non-discriminatory reason for its employment decision. Third, in order to prevail, the 9 plaintiff must demonstrate that the employer’s alleged reason for the adverse employment 10 decision is a pretext for another motive which is discriminatory.” Wallis v. J.R. Simplot 11 Co., 26 F.3d 885, 889 (9th Cir. 1994) (citations omitted); Scotch v. Art Institute of Cal., 12 173 Cal. App. 4th 986, 1020 (Ct. App. 2009). 13 1. Disability Discrimination 14 For Plaintiff to establish a prima facie case for disability discrimination, she must 15 provide evidence that: “(1) [s]he suffers from a disability, (2) [s]he is a qualified 16 individual capable of performing the essential functions of the job with or without a 17 reasonable accommodation, and (3) [s]he was subject to an adverse employment action 18 because of the disability.” Jackson v. Simon Property Group, Inc., No. 10–2521, 2011 19 WL 2446299, at *9 (N.D. Cal. June 17, 2011) (citing Brundage v. Hahn, 57 Cal. App. 4th 20 228, 236 (Ct. App. 1997)). In “disability discrimination actions, the plaintiff has 21 not shown the defendant has done anything wrong until the plaintiff can show he or she 22 was able to do the job with or without reasonable accommodation.” Green v. State of 23 Cal., 42 Cal. 4th 254, 265 (2007). 24 With regard to the second element, essential functions are defined as “the 25 fundamental job duties of the employment position the individual with a disability holds 26 or desires.” Cal. Gov’t Code § 12926(f). Evidence of essential functions may include: 27 “([1]) [t]he employer’s judgment as to which functions are essential; ([2]) [w]ritten job 28 descriptions prepared before advertising or interviewing applicants for the job; or ([3]) [t]he amount of time spent on the job performing the function.” Cal. Gov’t Code § 8 1 12926(f)(2)(A-C). 2 “‘Reasonable accommodation’ may include either of the following: (1) [m]aking 3 existing facilities used by employees readily accessible to, and usable by, individuals with 4 disabilities[;] [or] (2) [j]ob restructuring, part-time or modified work schedules, 5 reassignment to a vacant position . . . and other similar accommodations for individuals 6 with disabilities.” Cal. Gov’t Code § 12926(n)(1-2). An employer’s “obligation to 7 reassign a disabled employee who cannot otherwise be accommodated does ‘not require 8 creating a new job, moving another employee, promoting the disabled employee, or 9 violating another employee’s rights . . . . ” Hastings v. Department of Corr., 110 Cal. 10 App. 4th 963, 972-73 (Ct. App. 2003) (citations omitted); see also Raine v. City of 11 Burbank, 135 Cal. App. 4th 1215, 1224 (Ct. App. 2006) (“[A]n employer has no duty . 12 . . to accommodate a disabled employee by making a temporary accommodation 13 permanent if doing so would require the employer to create a new position just for the 14 employee.”). Moreover, “[r]easonable accommodation does not require the employer to 15 wait indefinitely for an employee’s medical condition to be corrected.” Hanson v. Lucky 2 16 Stores, Inc., 74 Cal. App. 4th 215, 226-27 (Ct. App. 1999). 17 It is uncontested that Plaintiff suffers from an ankle and back disability that led to 18 a work restriction rating of semi-sedentary; which limited Plaintiff to working 19 approximately one-half the time in a standing or walking position, with a minimum 3 20 demand of physical effort whether standing, walking or sitting. Assuming Plaintiff was 21 legitimately terminated because she had over extended her medical leave beyond the 22 maximum time prescribed by the EA, a question of material fact still remains as to the 23 second element. In particular, it is disputed whether or not Plaintiff would have been able 24 to perform the essential job functions of an Outside Marketer due to her standing and 25 26 27 28 2 Within the context of a motion for summary judgment, a “reasonable accommodation is ordinarily a question of fact” unless “the undisputed evidence leads to only one conclusion as to the reasonableness of the accommodation sought, summary judgment is proper.” Raine, 135 Cal. App. 4th at 1227 n.11 (citations omitted). In this case however, the question is not whether an accommodation was reasonable, but if one was ever given. See id. 3 At this junction, the Court will not address the contested ten pound lifting restriction as it is not relevant to the Court’s finding of a disputed genuine fact. 9 1 walking restriction. 2 As set forth in Defendant’s job description for the position, an essential job 3 function for the Outside Marketer is to canvass for new memberships by going from 4 business to business and setting up stations at different locations. Defendant interprets 5 this to mean the position requires standing in front of potential members for most of the 6 time. Plaintiff’s work restriction, however, limited her to work approximately one-half 7 the time in a standing or walking position. Thus, Defendant contends Plaintiff’s work 8 restriction prohibits her from performing this essential function and that there is no way 9 to accommodate the restriction; the lack of an ability to accommodate being evidenced 10 in the assessment meeting report. Therefore, Defendant argues it was justified in 11 terminating Plaintiff’s employment. 12 Plaintiff admits that the position requires standing, but contends that it does not 13 require standing for eight hours straight. From Plaintiff’s own experience with the 14 Outside Marketers, which the Court may use pursuant to California Government Code 15 section 12926(f)(2)(C), she argues that the Outside Marketers are rotated which allows 16 Marketers to spend half their time in the office, as well as, remain seated often while 17 canvassing for business. (Hamilton Depo. 134:3-17, 136:18-25.) Additionally, the 18 assessment meeting report indicates that the position of an Outside Marketer includes the 19 potential of standing/walking for more than half of the time as part of its essential 20 functions. It does not state that the employee would be required to stand/walk more than 21 half the time; unlike the Refund Cashier assessment. Moreover, Dr. Vahedifar told 22 Plaintiff before the assessment meeting that she could work as an Outside Marketer 23 because the job description did not specify an amount Plaintiff would be required to 24 stand. For those reasons, the Court finds a genuine issue of material fact as to whether 25 Plaintiff is a qualified individual, able to perform the essential function of an Outside 26 Marketer with or without a reasonable accommodation. Defendant’s motion is DENIED 27 as to this claim. 28 10 1 2. Retaliation 2 To establish a prima facie case for unlawful retaliation, Plaintiff must demonstrate 3 that: (1) she engaged in a protected activity; (2) Defendant thereafter subjected her to an 4 adverse employment action; and (3) there was a causal connection between the protected 5 activity and the adverse employment action. See Yanowitz v. L’Oreal USA, Inc., 36 Cal. 6 4th 1028, 1042 (2005). 7 Plaintiff alleges that Defendant engaged in unlawful retaliation when she informed 8 Defendant of her disability and asked for work accommodations, Defendant failed to 9 assign her to an open position, and subsequently terminated her employment. (Compl. 10 ¶¶ 51-52.) Assuming arguendo that Plaintiff engaged in protected activity and was 11 subjected to an adverse employment action, Defendant argues that the claim fails because 12 there is no evidence to establish a causal link between the protected activity and any 13 alleged adverse employment action. (Mot. at 16.) 14 Plaintiff avers that she fulfilled the first element of this cause of action by 15 informing Defendant that she suffered from Reflex Sympathetic Dystophy on or around 16 March 22, 2006. (Compl. ¶ 51.) However, Defendant immediately permitted Plaintiff to 17 go on medical disability, which lasted for more than two years prior to the alleged adverse 18 actions forming the substance of this cause of action. Furthermore, Plaintiff remained 19 employed by Defendant while on medical leave for twenty-nine months and did not file 20 a claim for retaliatory discrimination within the statuary mandated period of one year; nor 21 did she file any complaint until this lawsuit, eighteen months after her termination. See 22 Cal. Gov’t Code § 12960(d). Plaintiff’s case does not meet the qualifications for a 23 ninety-day filing exception under Section 12960(d)(1-4). Plaintiff does not qualify for 24 equitable tolling because she alleges no excusable delay for failing to file a claim for 25 retaliatory discrimination immediately after the alleged adverse action; nor did Defendant 26 fraudulently conceal its action of terminating Plaintiff to qualify for equitable estoppel. 27 In light of the following, the causal connection between Plaintiff informing Defendant of 28 her disability and the alleged adverse termination is left wanting. See, e.g., Rice v. Ralphs 11 1 Foods, No. 09–02650, 2010 WL 5017118, at *4 (N.D. Cal. Dec. 03, 2010) (not 2 reported). Defendant’s Motion is GRANTED as to this claim. 3 C. FAILURE TO ENGAGE IN THE INTERACTIVE PROCESS 4 It is the employer’s responsibility under the FEHA “to engage in a timely, good 5 faith, interactive process with the employee or applicant to determine effective reasonable 6 accommodations, if any, in response to a request for reasonable accommodation by an 7 employee or applicant with a known physical [] [] disability or known medical condition.” 8 Cal. Gov’t Code § 12940(n). “I[t] is the employee’s initial request for an accommodation 9 which triggers the employer’s obligation to participate in the interactive process of 10 determining one.” Spitzer v. Good Guys, Inc., 80 Cal. App. 4th 1376, 1384 (Ct. App. 11 2000) (internal quotation marks omitted). 12 After the interactive process has begun, both sides “must participate in good faith, 13 undertake reasonable efforts to communicate [their] concerns, and make available to the 14 other information which is available, or more accessible, to one party.” Gelfo v. Lockheed 15 Martin Corp., 140 Cal.App. 4th 34, 62 n. 22 (Ct. App. 2006); Humphrey v. Memorial 16 Hosp. Ass’n, 239 F.3d 1128, 1137 (9th Cir. 2001) (“The interactive process requires 17 communication and good-faith exploration of possible accommodations between 18 employers and individual employees, and neither side can delay or obstruct the process.”). 19 “[I]f the process fails, responsibility for the failure rests with the party who failed to 20 participate in good faith.” Avila v. Continental Airlines, Inc., 165 Cal. App. 4th 1237, 21 1252 (Ct. App. 2008). 22 Defendant argues that it engaged in the interactive process when it allowed Plaintiff 23 to remain on medical disability leave for over two years, immediately scheduled and 24 performed an assessment meeting to determine her ability to return to work once put on 25 notice of her desire to return, attempted to communicate with her about alternative 26 employment opportunities at other warehouses, and asked to be kept informed of any 27 changes in her medical condition. (Mot. at 18-19.) Defendant also contends Plaintiff was 28 ultimately responsible for the failure of the interactive process due to her lack of 12 1 communication with Defendant after the assessment meeting; “[Plaintiff] responded to 2 none of [Defendant]’s communications, except to complain that she received blank 3 termination forms”. (Id.) 4 Plaintiff, on the other hand, avers Defendant failed to engage in a good faith 5 interactive process. (Opp’n at 15-16.) Specifically, Plaintiff alleges Defendant ignored 6 her precise limitations during the Meeting, failed to work with her to create reasonable 7 accommodations or alternative employment, and sent a letter to Plaintiff that both 8 encouraged her to apply for other positions and included a termination form. (Pl.’s Resp. 9 to SUF Nos. 44, 46.) Because the occurrence or failure of the interactive process is so 10 dependant upon the good faith efforts of the parties in this case, the Court cannot–as a 11 matter of law–determine whether or not Plaintiff and Defendant engaged in the interactive 12 process. Defendant’s Motion is DENIED as to this claim. 13 D. FAILURE TO ACCOMMODATE 14 Even if Defendant engaged in the interactive process as described above, it still may 15 be liable to Plaintiff for failure to accommodate. “The essential elements of a failure to 16 accommodate claim are: (1) the plaintiff has a disability covered by the FEHA; (2) the 17 plaintiff is a qualified individual (i.e., he or she can perform the essential functions of the 18 position); and (3) the employer failed to reasonably accommodate the plaintiff's 19 disability.” Cuiellette v. City of L.A., 194 Cal. App. 4th 757, 766 (Ct. App. 2011). 20 While it is uncontested that Plaintiff has a disability covered by the FEHA, the 21 Court has already established that, in this case, whether or not Plaintiff was a qualified 22 individual to perform the essential functions of an Outside Marketer is a matter of fact to 23 be determined by a jury. Therefore, Defendant’s Motion is DENIED as to this claim and 24 the Court does not find it necessary to address whether or not Defendant failed to 25 reasonably accommodate Plaintiff’s disability. 26 E. FAILURE TO PREVENT DISCRIMINATION 27 “A failure to prevent discrimination . . . claim must be supported by a specific 28 factual finding that discrimination . . . actually occurred at plaintiff’s workplace.” Hoey 13 1 v. New York Life Ins. Co., Inc., No. 09–02116, 2011 WL 2681232, at *10 (E.D. Cal., July 2 08, 2011); Trujullo v. North Cnty. Transit Dist., 63 Cal. App. 4th 280, 288–89 (Ct. App. 3 1998). Because this cause of action is predicated upon a factual finding of discrimination 4 and Plaintiff’s claim for disability discrimination remains, the Court cannot enter 5 judgment for Defendant on this claim. Defendant’s Motion is DENIED as to this claim. 6 F. 7 It is unlawful for an employer to terminate an employee because of a physical WRONGFUL TERMINATION 8 disability unless it can be proven that the employee could not perform the essential 9 functions of his or her job with or without reasonable accommodations. See Cal. Gov’t 10 Code § 12940(a). In addition, an employer may be liable “for discharging an employee 11 for performing an act that public policy encourages, or refusing to perform an act that 12 public policy would condemn.” Scott v. Phoenix Schs., Inc., 175 Cal. App. 4th 702, 708 13 (Ct. App. 2009). To establish a claim for wrongful termination in violation of public 14 policy, Plaintiff must show: (1) an employer-employee relationship; (2) that the 15 termination of plaintiff’s employment was violation of public policy; (3) that the 16 termination of employment was a legal cause of Plaintiff’s damages; and (4) the nature 17 and the extent of Plaintiff’s damages. See Holmes v. Gen. Dynamics, Corp., 17 Cal. App. 18 4th 1418, 1427 n.8 (Ct. App. 1993). 19 Within the context of the FEHA, “a plaintiff asserting a claim for wrongful 20 termination [can] assert; (1) a tort claim for wrongful termination not related to any 21 statutory claim, (2) a hybrid claim for wrongful termination against the public policy set 22 forth in FEHA, and (3) a FEHA claim for wrongful termination.” Roquemore v. 23 California Dept. of Forestry & Fire Prot., No. CIV-F-1944 AWI DLB, 2009 WL 24 1391522, at *4 (E.D. Cal. May 14, 2009) (citing Williams v. Housing Auth., 121 Cal. App. 25 4th 708, 714 (Ct. App. 2004)). In like manner, Plaintiff has filed a claim for wrongful 26 termination against the public policy set forth in FEHA in addition to a FEHA claim for 27 wrongful termination. 28 14 1 The Court finds that questions of fact exist regarding Plaintiff’s claims for wrongful 2 termination. First, it is undisputed that Plaintiff and Defendant have an 3 employer-employee relationship. Second, as discussed above, questions of fact exist as 4 to whether Plaintiff was constructively terminated. Third, questions of fact exist as to 5 whether Plaintiff’s alleged constructive termination was in violation of FEHA, i.e. she was 6 discriminently terminated because of her disability when she could have performed the 7 essential functions of an Outside Marketer with reasonable accommodations. See City of 8 Moorpark v. Superior Ct., 18 Cal. 4th 1143, 1161 (1998) (“We conclude that disability 9 discrimination [under FEHA] can form the basis of a common law wrongful discharge 10 claim.”). Defendant’s motion is DENIED as to these claims. 11 G. PUNITIVE DAMAGES 12 Punitive damages may be recoverable against an employer “where it is proven by 13 clear and convincing evidence” that an officer, director, or managing agent of the 14 corporation “authorized or ratified the wrongful conduct for which the damages are 15 awarded or was personally guilty of oppression, fraud, or malice.” Cal. Civ. Code §§ 16 3294(a), (b). “‘Managing agents’ are employees who ‘exercise [] substantial discretionary 17 authority over decisions that ultimately determine corporate policy.’” Cruz v. HomeBase, 18 83 Cal. App. 4th 160, 167 (Ct. App. 2000). “Whether an employee is a managing agent” 19 is a factual question for a jury and “must be made on a case-by-case basis. . . . However, 20 where insufficient evidence supports a verdict in the plaintiff’s favor, no factual issue 21 remains for the jury to decide.” Gelfo v. Lockheed Martin Corp., 140 Cal. App. 4th 34, 22 63 (Ct. App. 2006) (citation omitted). 23 Here, Plaintiff alleges Defendant “had in place policies and procedures that 24 specifically prohibited and required [] [Defendant’s] managers, officers, and agents to 25 prevent discrimination, [and] retaliation . . . . Defendants Tayan and Frazier chose to 26 consciously and willfully ignore said polices and procedures.” (Compl. ¶ 57, 64, 71, 80, 27 87, 92.) Moreover, Plaintiff alleges “Tayan and Frazier were managers, officers, and/or 28 agents of [D]efendant [] and were aware of Defendant[‘s] [] policies and procedures . . . .” (Id.) Plaintiff does not alleged Tayan and Frazier were directors. 15 1 As indicated by Defendant, however, Tayan and Frazier are not managing agents 2 because they have no ability to set corporate policy for Defendant. At the time of the 3 alleged adverse action, Tayan was the Lancaster Assistant General Manager and Frazier 4 was an Accommodation Specialist. As an assistant general manger at a single warehouse, 5 Tayan would not have final say in setting forth policies at the Lancaster warehouse, let 6 alone exercise substantial discretionary authority over decisions that ultimately determine 7 corporate policy. The same is true for an accommodation specialist. Furthermore, Frazier 8 declares, “Senior management employees in [Defendant]’s national headquarters in 9 Washington are in overall charge of business operations and set company-wide business 10 policies and guidelines. I have never had authority to establish or change [Defendant]’s 11 corporate policies. I am neither a corporate officer nor director of [Defendant].” (Frazier 12 Decl. ¶ 2.) Plaintiff fails to proffer any evidence to the contrary. Thus, Plaintiff fails to 13 show that a managing agent, officer, or director of Defendant authorized, ratified, or 14 personally engaged in oppressive, fraudulent, or malicious conduct. Defendant’s Motion 15 is GRANTED as to this cause of action. 16 V. 17 18 19 20 21 CONCLUSION Disputed issues of material fact exist as to Plaintiff’s claims for disability discrimination, failure to engage in the interactive process, failure to accommodate, failure to prevent discrimination, and wrongful termination in violation of FEHA and public policy. Defendant’s motion is thus GRANTED in PART and DENIED in PART. 22 23 24 IT IS SO ORDERED. August 24, 2011 25 26 27 28 _________________________________ HON. OTIS D. WRIGHT, II UNITED STATES DISTRICT JUDGE 16
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