Maharaj v. California Bank & Trust, No. 2:2011cv00315 - Document 74 (E.D. Cal. 2012)
Court Description: ORDER granting in part and denying in part 45 Motion for Summary Judgment signed by Judge Garland E. Burrell, Jr on 11/14/12. (Matson, R)
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Maharaj v. California Bank & Trust Doc. 74 1 2 3 4 IN THE UNITED STATES DISTRICT COURT 5 FOR THE EASTERN DISTRICT OF CALIFORNIA 6 7 SUJLA MAHARAJ, Plaintiff, 8 v. 9 10 CALIFORNIA BANK & TRUST, 11 Defendant. ________________________________ ) ) ) ) ) ) ) ) ) ) 2:11-cv-00315-GEB-EFB ORDER GRANTING AND DENYING IN PART DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 12 13 Defendant moves for summary judgment, or in the alternative, 14 partial summary judgment on each of Plaintiff’s claims. Plaintiff 15 alleges in her Complaint federal and state employment claims under the 16 Americans with Disabilities Act (“ADA”), California’s Fair Employment 17 and Housing Act (“FEHA”), the Family and Medical Leave Act (“FMLA”), the 18 California Family Rights Act (“CFRA”), and wrongful termination in 19 violation of public policy. For the reasons stated below, Defendant’s 20 motion will be granted and denied in part. I. 21 LEGAL STANDARD 22 A party seeking summary judgment bears the initial burden of 23 demonstrating the absence of a genuine issue of material fact for trial. 24 Celotex 25 ‘material’ when, under the governing substantive law, it could affect 26 the outcome of the case.” Thrifty Oil Co. v. Bank of Am. Nat. Trust and 27 Sav. Ass’n, 322 F.3d 1039, 1046 (9th Cir. 2003) (quoting Anderson v. 28 Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). Corp. v. Catrett, 477 U.S. 317, 323 (1986). “A fact is An issue of material 1 Dockets.Justia.com 1 fact is “genuine” when “the evidence is such that a reasonable jury 2 could return a verdict for the nonmoving party.” 3 4 5 6 7 8 9 10 Id. When the defendant is the moving party and is seeking summary judgment on one or more of a plaintiff’s claims, [The defendant] has both the initial burden of production and the ultimate burden of persuasion on [the motion]. In order to carry its burden of production, the [defendant] must either produce evidence negating an essential element of the [plaintiff’s claim] or show that the [plaintiff] does not have enough evidence of an essential element to carry its ultimate burden of persuasion at trial. In order to carry its ultimate burden of persuasion on the motion, the [defendant] must persuade the court that there is no genuine issue of material fact. 11 12 Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Cos., Inc., 210 F.3d 1099, 13 1102 (9th Cir. 2000)(citations omitted). 14 If the movant satisfies its initial burden, “the non-moving 15 party must set forth, by affidavit or as otherwise provided in [Federal] 16 Rule [of Civil Procedure] 56, specific facts showing that there is a 17 genuine issue for trial.” 18 Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987) (citation and 19 internal quotation marks omitted). 20 upon the mere allegations or denials of the adverse party’s pleading but 21 must instead produce evidence that sets forth specific facts showing 22 that there is a genuine issue for trial.” Estate of Tucker ex rel. 23 Tucker v. Interscope Records, Inc., 515 F.3d 1019, 1030 (9th Cir. 2008) 24 (citation and internal quotation marks omitted). T.W. Elec. Serv., Inc. v. Pacific Elec. The “non-moving [party] cannot rest 25 Further, Local Rule 260(b) requires: 26 Any party opposing a motion for summary judgment or summary adjudication [must] reproduce the itemized facts in the [moving party’s] Statement of Undisputed Facts and admit those facts that are undisputed and deny those that are disputed, including with each denial a citation to the 27 28 2 1 particular portions of any pleading, affidavit, deposition, interrogatory answer, admission, or other document relied upon in support of that denial. 2 3 4 If 5 supported] facts identified in the [movant’s] statement of undisputed 6 facts,” the nonmovant “is deemed to have admitted the validity of the 7 facts contained in the [movant’s] statement.” 8 521, 527 (2006). the 9 nonmovant does not “specifically . . . [controvert duly Beard v. Banks, 548 U.S. Because a district court has no independent duty to scour the record in search of a genuine issue of triable fact, and may rely on the nonmoving party to identify with reasonable particularity the evidence that precludes summary judgment, . . . the district court . . . [is] under no obligation to undertake a cumbersome review of the record on the [nonmoving party’s] behalf. 10 11 12 13 14 Simmons v. Navajo Cnty., Arizona, 609 F.3d 1011, 1017 (9th Cir. 2010) 15 (citation and internal quotation marks omitted). 16 Evidence must be “view[ed] . . . in the light most favorable 17 to the non-moving party[,]” and “all reasonable inferences” that can be 18 drawn from the evidence must be drawn “in favor of [the non-moving] 19 party.” Nunez v. Duncan, 591 F.3d 1217, 1222-23 (9th Cir. 2010) (quoting 20 Bank of N.Y.C. v. Fremont Gen. Corp., 523 F.3d 902, 909 (9th Cir. 21 2008)). 22 II. UNCONTROVERTED FACTS 23 Based upon the respective undisputed facts and supporting 24 evidence submitted by each party under Local Rule 260(b), the following 25 facts are uncontroverted in the summary judgment record: 26 Plaintiff Sujla Maharaj (“Plaintiff”) began working for 27 Defendant California Bank & Trust (“CBT”) as a teller at its Millbrae, 28 California branch on January 16, 1990. (Pl.’s Separate Statement of 3 1 Disputed Facts (“DF”) #1.) In approximately December 2002, Plaintiff 2 transferred to a Customer Service Representative (“CSR”) position1 in 3 Defendant’s Sacramento main branch. Id. Plaintiff subsequently obtained 4 promotions 5 Defendant’s Sacramento main branch from 2002 until she was terminated in 6 2010. (Def.’s Separate Statement of Undisputed Facts (“UF”) #1.) up to a CSR III position. Id. Plaintiff remained in 7 Plaintiff took a medical leave of absence from May 15, 2009 8 until July 27, 2009 (“first leave of absence”). Id. #2. This leave of 9 absence lasted ten weeks and one day. (Decl. of Regina Parker (“Parker 10 Decl.”) ¶9, ECF No. 45-4.) Plaintiff was hospitalized on multiple 11 occasions during the first leave of absence and was diagnosed with 12 Rheumatoid Arthritis. (Dep. of Sujla Maharaj (“Pl.’s Dep.”) 121:19- 13 124:9, Ex. 1 to the Decl. of Alan Adelman (“Adelman Decl.”), ECF No. 57- 14 5; Report of Lloyd Ito, M.D. (“Ito Report”), as Ex. 8 to Adelman Decl., 15 ECF No. 57-12.) Plaintiff submitted eleven signed doctor’s notes to 16 Defendant in connection with the first leave of absence, which state 17 Plaintiff was “ill and unable to attend work” or “unable to attend work” 18 during the pendency of her leave. (Parker Decl. ¶6, Exs. B1-B11.) 19 Plaintiff began a second medical leave of absence (“second 20 leave of absence”) on December 28, 2009. (UF #5.) Reports prepared by 21 Plaintiff’s health care providers indicate she was hospitalized from 22 December 26, 2009 through January 11, 2012 for diagnoses including a 23 kidney infection. See generally, Report of Anvarali Velji, M.D. (“Velji 24 Report”), Ex. 7 to Adelman Decl., ECF 57-11; 25 with the second leave of absence, Plaintiff submitted five doctor’s 26 notes to Defendant, which state Plaintiff was “ill[,]” “ill and unable Ito Report.) In connection 27 28 1 “Customer Service Representative” is Defendant’s term for a bank teller. (Decl. of Regina Parker (“Parker Decl.”) ¶4, ECF No. 45-4.) 4 1 to attend work[,]” or “unable to attend work” through March 31, 2010. 2 (UF #7, Parker Decl. ¶11, Exs. E1-E5.) Plaintiff was released to return 3 to work without restrictions on April 1, 2010. (Parker Decl. ¶11, Ex. 4 E5.) 5 As of February 2, 2010, Plaintiff had taken more that twelve 6 workweeks of medical leave in the twelve-month period prior to February 7 2, 2010. (Parker Decl. ¶13.) On February 4, 2010, Defendant sent a 8 letter to Plaintiff, which states in part, “due to our business needs 9 and the expiration of the FMLA Job Protection leave of 12 weeks reached 10 on February 2, 2010, the Sacramento Branch needs to begin the process of 11 filling your Customer Service Representative position to meet the 12 ongoing demands within the Branch.” (Parker Decl. ¶15, Ex. G.) 13 On or about February 25, 2012, Defendant posted on its 14 internal and external job posting websites a full-time teller position 15 at the Sacramento main branch with the title CSR II (“CSR II position”). 16 (UF #15.) On or about March 10, 2010, Defendant offered, and a candidate 17 accepted, the CSR II position. (UF #16.) When Defendant offered the 18 candidate the CSR II position, Defendant was aware that Plaintiff had 19 been released to return to work on April 1, 2010. (Dep. of Regina Parker 20 (“Parker Dep.”) 176:15-25, Ex. 3 to Adelman Decl., ECF No. 57-7.) When 21 the candidate accepted the position, Defendant knew she would be unable 22 to start working until April 5, 2010. (Dep. of Deborah Fredrickson 23 (“Fredrickson Dep.”) 118:10-119:20, Ex. 4 to Adelman Decl., ECF No. 57- 24 8) And due to new employment orientation and training, the candidate 25 would not be able to work independently until at least April 20, 2010. 26 Id. at 119:23-121:16. 27 28 Plaintiff applied for a CSR I position at Defendant’s Sacramento Arden branch on March 18, 2010. Id. at 147:3-148:5. The 5 1 Sacramento Arden branch CSR I position was filled on April 19, 2010. 2 Id. at 147:23-24, 154:20-22. Plaintiff applied for a CSR III position in 3 Defendant’s Gardena, California branch on March 21, 2010. 4 17, 164:4-164:19. The Gardena CSR III position was filed on April 1, 5 2010. Id. at 164:23-24. Plaintiff applied for a CSR II position in 6 Defendant’s San Mateo, California branch on April 12, 2010. Id. at 7 97:21-98:9, 156:25-157:18. The San Mateo CSR II position was filed on 8 May 3, 2010. Id. at 157:7-15. Plaintiff indicated her willingness to 9 relocate on both the San Mateo and Gardena job applications. Id. at 10 94:14-25, 158:8-13, 165:3-6. 11 12 Id. at 97:7- III. DISCUSSION A. Disability Discrimination under the ADA and the FEHA 13 Defendant seeks summary judgment on Plaintiff’s disability 14 discrimination claims under the ADA and the FEHA arguing Plaintiff 15 cannot satisfy her initial burden of establishing a prima facie case of 16 discrimination. (Def.’s Mem. of P.&A. in Supp. of Mot. for Summ. J. 17 (“Mot.”) 1:28-2:2.) 18 could establish a prima facie case, . . . [Defendant] ha[d] legitimate, 19 nondiscriminatory reasons for its employment decisions, and Plaintiff 20 cannot meet her burden of establishing specific, substantial evidence of 21 pretext for [Defendant’s] employment decisions.” Id. at 2:5-8. Defendant further argues that “[e]ven if Plaintiff 22 When considering motions for summary judgment in employment 23 discrimination cases under federal and state law, federal courts apply 24 the McDonnell Douglas burden-shifting scheme as a federal procedural 25 rule. Dawson v. Entek Intern., 630 F.3d 928, 934-36 (2011)(stating the 26 McDonnell 27 discrimination claims “regardless of th source of the federal court’s Douglas burden-shifting 28 6 framework applies to state 1 subject matter jurisdiction over [the state] claim[s,]” i.e. diversity 2 or supplemental). 3 The burden-shifting analysis of McDonnell Douglas Corp. v. 4 Green, 411 U.S. 792 (1973) has three steps. Davis v. Team Elec. Co., 520 5 F.3d 1080, 1089 (9th Cir. 2008). “The employee must first establish a 6 prima facie case of discrimination.” Id. 7 case of disability discrimination under both the ADA and the FEHA, 8 Plaintiff must show: “(1) [she] is a disabled person within the meaning 9 of the statute; (2) [she] is a qualified individual with a disability; 10 and (3) [she] suffered an adverse employment action because of [her] 11 disability.” 12 Cir. 2001); Faust v. Cal. Portland Cement Co., 150 Cal. App. 4th 864, 13 886 (2007) (requiring a Plaintiff establish the following for a FEHA 14 claim: “(1) [she] suffers from a disability; (2) [she] is otherwise 15 qualified to do [her] job; and, (3) [she] was subjected to adverse 16 employment action because of [her] disability”). 17 To establish a prima facie Hutton v. Elf Atochem N. Am., Inc., 273 F.3d 884, 892 (9th An individual is “qualified” under both the ADA and the FEHA 18 if 19 employment position that he or she holds or desires with or without 20 reasonable accommodation. Samper v. Providence St. Vincent Medical Ctr., 21 675 F.3d 1233, 1237 (9th Cir. 2012)(discussing the meaning of “qualified 22 individual” under the ADA); Green v. State, 42 Cal. 4th 254, 264 (2007) 23 (stating “the FEHA and the ADA both limit their prospective scope to 24 those employees with a disability who can perform the essential duties 25 of the employment position with reasonable accommodation”). 26 he or she is able to perform the essential functions of the “If the plaintiff establishes a prima facie case, the burden 27 of 28 articulate some legitimate, nondiscriminatory reason for the challenged production-but not persuasion-then 7 shifts to the employer to 1 action.” Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1062 (9th 2 Cir. 2002). 3 “Finally, if the employer satisfies this burden, the employee 4 must show that the ‘reason is pretextual either directly by persuading 5 the court 6 employer 7 explanation is unworthy of credence.’” Davis, 520 F.3d at 1089 (quoting 8 Chuang v. Univ. of Cal. Davis, 225 F.3d 1115, 1123-24 (9th Cir.2000)). 9 that or 1) a discriminatory indirectly by reason showing that more likely the motivated the employer's proffered Prima Facie Case of Discrimination 10 Defendant does not challenge Plaintiff’s ability to satisfy 11 the first element of her prima facie case for disability discrimination, 12 i.e. whether she was “disabled” when Defendant decided to fill her 13 position on February 4, 2010. Therefore, the issues to be decided are 14 whether Plaintiff was a “qualified individual” at that time, and whether 15 Defendant filled the position “because of” her disability. 16 Defendant contends Plaintiff “was not a ‘qualified individual 17 with a disability’ . . . because at the time that [Defendant] posted and 18 filled the teller position . . . , Plaintiff was . . . ill and unable to 19 work at all . . . .”(Mot. 12:13-19.) Defendant argues, “[a] person who 20 is not able to work at all is not a qualified individual with a 21 disability under the ADA and/or the FEHA.” Id. at 12:20-22. Defendant 22 further argues that Plaintiff’s disability discrimination claims should 23 be dismissed in their entirety “for the additional reason that Plaintiff 24 cannot 25 Plaintiff’s alleged disability” when it filled her position. Id. at 26 14:7-9. Defendant contends: “[u]nless Plaintiff can raise a genuine 27 issue of material fact regarding [Defendant’s] knowledge of Plaintiff’s 28 alleged raise a genuine disability at issue the of time material it 8 fact undertook that the CBT alleged knew of adverse 1 employment decisions, [Defendant] cannot be liable to Plaintiff for ADA 2 and/or FEHA disability discrimination.” Id. at 14:9-12. 3 Plaintiff counters that she was a “qualified individual,” 4 because she could perform the essential functions of her position with 5 the reasonable accommodation of a finite leave of absence until April 1, 6 2010. (PL.’s Mem. of P.&A. in Opp’n to Def.’s Mot. (“Opp’n”) 11:14-21, 7 12:2, ECF No. 57.) Plaintiff also argues that she was a “qualified 8 individual” because she could “perform the essential functions of . . . 9 other vacant job[s] within the company[,]” and “reasonable 10 accommodation[s] include transfer to a vacant position for which the 11 employee is qualified, absent undue burden to the employer.” Id. at 12 12:3-14. 13 management fully informed regarding [her] health status[,]” “Defendant 14 never asked for more information or documentation than Plaintiff was 15 providing, and Defendant had all the certainty that Defendant needed 16 regarding Plaintiff’s ability to work.” Id. at 2:19, 3:3-4. Plaintiff further rejoins, “Plaintiff kept Defendant’s 17 A genuine issue of material fact exists concerning whether 18 Plaintiff is a “qualified individual” under both the ADA and the FEHA. 19 Although Plaintiff’s doctor’s notes indicate she was unable to work at 20 the time Defendant decided to fill her position, she was released to 21 work without restriction on April 1, 2010, and 22 25 [n]umerous courts have held that “[h]olding 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.” 26 Kranson v. Fed. Exp. Corp., No. 11-cv-05826-YGR, 2012 WL 4715337, at *8 27 (N.D. Cal. Oct. 1, 2012)(quoting Jensen v. Wells Fargo Bank, 74 Cal. 28 App. 4th 245, 263 (1999)). “[W]here a leave of absence would reasonably 23 24 9 1 accommodate an employee's disability and permit [her], upon [her] 2 return, to perform the essential functions of the job, that employee is 3 otherwise qualified under the ADA.” Humphrey v. Mem’l Hosps. Ass’n, 239 4 F.3d 1128, 1135 (9th Cir. 2001)(citing Nunes v. Wal-Mart Stores, Inc., 5 164 F.3d 1243, 1247 (9th Cir. 1999)). Further, Plaintiff has presented 6 evidence that she applied for vacancies after she learned that she was 7 released to work as of April 1, 2010, and reassignment to a vacant 8 position 9 recognized reasonable accommodations. See Dark v. Curry Cnty. 451 F.3d 10 1078, 1089 (9th Cir. 2006)(discussing reassignment to vacant positions 11 under the ADA); Hanson v. Lucky Stores, Inc., 74 Cal. App. 4th 215, 227 12 (stating “FEHA lists as reasonable accommodation reassignment to a 13 vacant position”). 14 for which the disabled employee is qualified are also A genuine issue of material fact also exists on the issue 15 whether 16 Defendant contends it was unaware of Plaintiff’s disabilities when it 17 elected to fill her position, Plaintiff has presented contrary evidence. 18 Plaintiff testified that in May 2009, she told her direct supervisor, 19 Doolee Kim, and the branch customer service manager, Susan Tamai, that 20 she suffered from arthritis. (Pl.’s Dep. 43:16-44:11; 46:7-13.) Tamai 21 testified that when Plaintiff was on medical leave, she knew Plaintiff’s 22 health 23 hospitalization.” (Tamai Dep. 53:13-54:8.) Tamai also testified that 24 although she could not recall any specifics concerning Plaintiff’s 25 health condition at the time of her deposition, she previously knew what 26 her “underlying health conditions” were. Id. at 55:8-21. Defendant’s 27 Human Resources Generalist, Regina Parker, testified that she was “aware 28 that [Plaintiff] had been hospitalized on multiple occasions[,]” and was Defendant was “quite was aware serious,” of Plaintiff’s and that 10 disabilities. Plaintiff had a Although “prolonged 1 told that she had “kidney issues” in or around January of 2010. (Parker 2 Dep. 49:1-50:9.) Plaintiff’s husband’s deposition testimony on this 3 subject is as follows: 4 Q. And you don’t recall what you had told Susan Tamai? A. What I have told? Q. Correct. A. Well most of them, I told them what was her condition and the doctor’s note was given and when she would be okay to come back to work. Q. And what did you, when you talked to Susan Tamai or Doole Kim, what did you tell them about Sujla’s condition? A. Condition, I would tell them, yes. Q. And what specifically did you tell them? A. Whatever the doctors told us, I tell them. 5 6 7 8 9 10 11 12 13 14 15 (Dushyant Maharaj Dep. 62:19-64:16, attached as Ex. 6 to Adelman Decl., 16 ECF No. 57-10.) 17 2) 18 Defendant argues, “[a]ssuming, arguendo, that Plaintiff could 19 establish a prima facie case of disability discrimination . . . [t]here 20 are 21 actions.” (Mot. 16:20-24.) Specifically, Defendant argues that it “had 22 a 23 representative at the Sacramento Main Branch” because as of February 4, 24 2010, “[Defendant] did not have sufficient staff to meet the needs of 25 the [Sacramento main] branch.” Id. 16:26-28. Defendant further contends 26 that Plaintiff cannot establish . . . that [this business need] w[as] a 27 pretext for discrimination” in light of the uncertainty of whether and 28 when Plaintiff was returning . . . .” Id. 17:28-18:6. Pretext legitimate, legitimate nondiscriminatory business need for 11 reasons a for the full-time alleged customer adverse service 1 Plaintiff has presented evidence which raises a triable issue 2 of 3 Plaintiff’s position be filled in February of 2010. Defendant did not 4 post the job opening for Plaintiff’s position until February 25, 2010, 5 three weeks after it notified Plaintiff it had decided to fill her 6 position. And, Defendant ultimately offered the position to a candidate 7 who was unable to start until April 5, 2010, four days after Plaintiff 8 was released to return to work without restrictions. Further, Regina 9 Parker gave deposition testimony that around the time Defendant filled 10 Plaintiff’s position, another teller resigned, and Defendant “decided to 11 replace [only] one [of the teller] position[s] and not replace both.” 12 (Parker Dep. 138:8-139:15.) Parker testified concerning the Sacramento 13 main branch’s business needs as follows: 14 fact regarding whether Defendant’s staffing needs necessitated Q. Was there anything different in business conditions between May of ‘09 and January, February ‘010 other than this other teller or customer service rep leaving at some point in ‘010. 17 A. Not that I’m aware of. 18 Q. And do you know how that position was filled? 19 A. Which position? 20 Q. The other customer service position in [Plaintiff’s] branch that came open? A. I believe they only decided to replace one position and not replace both. 23 Q. Why not? Why? 24 A. Just staffing, model, business decision, I’m not – Q. So business was such that the bank, [Plaintiff’s] branch, determined they didn’t even need three customer service reps, they could operate with only two? A. Yeah, but I believe they had more than that. I think they had four at one time, they had two 15 16 21 22 25 26 27 28 12 1 gone, now they only had two, so they needed three. 2 Q. Okay. A. Also someone reduced their hours, went to part time, so that’s why they decided to go ahead and post it. Q. Do you know what led to [Plaintiff’s] branch in ‘010 needing one less teller or customer service rep than they had previously? A. I would say business, the way business was going. 9 Q. Slowed down? 10 A. Somewhat. I think there was an evaluation of the branch itself, and did we need five people, probably not. You know, so there was some of that because we did let go one of the [customer service managers] because we had . . . two . . . so there was a branch review. Q. So you let go of a branch supervisor? A. Uh-huh. Q. When was that? A. 2011. 3 4 5 6 7 8 11 12 13 14 15 16 17 (Parker Dep. 138:8-139:19.) Susan Tamai also testified regarding the 18 Sacramento main branch’s decision to reduce its Customer Service 19 Managers from two to one. (Tamai Dep. 156:22-159:3.) Defendant did not 20 “add anyone to the branch to help perform the duties [the second 21 Customer Service Manager] was performing[,]” and Defendant did not “do 22 anything to take away certain tasks and responsibilities from [the] 23 branch to make up for the fact that [it removed] one of [the] managerial 24 [positions].” Id. at 158:12-14, 159:4-12. Although this change occurred 25 in 2011, not in February of 2010 when Defendant decided to fill 26 Plaintiff’s position, Tamai testified that nothing “significant 27 change[d]” in the Sacramento main branch’s workload between January of 28 2010 and January of 2011. Id. at 159:20-160:1. 13 1 “These are specific and substantial facts from which a 2 reasonable jury could find that Plaintiff’s disability was a motivating 3 factor in [Defendant’s] decision to [fill] h[er] position.” Kranson, 4 2012 WL 4715337, *9. 5 For the stated reasons, Defendant’s motion for summary 6 judgment on Plaintiff’s disability discrimination claims alleged under 7 the ADA and the FEHA is denied. 8 B. 9 FEHA Claims for Failure to Provide a Reasonable Accommodation and Failure to Engage in the Interactive Process 10 Defendant also seeks summary judgment on Plaintiff’s FEHA 11 claims in which Plaintiff alleges Defendant failed to engage in the 12 interactive 13 proscribed by California Government Code section 12940, subsections (m) 14 and (n). Defendant argues “Plaintiff’s inability to establish a claim 15 for disability discrimination . . . is fatal to [these] claims . . . .” 16 (Mot. 18:9-11.) Defendant further argues, “[e]ven if Plaintiff were able 17 to 18 discrimination . . . , Plaintiff cannot establish a triable issue of 19 fact regarding her claims for alleged failure to provide reasonable 20 accommodation and/or to engage in an interactive process” because “[t]he 21 duty of an employer to reasonably accommodate an employee’s disability 22 does not arise until the employee gives the employer notice of [her] 23 disability and physical limitations[,]” and “Plaintiff never provided 24 [Defendant] with medical documentation or information identifying her 25 alleged disability and any resulting limitations.” Id. 18:14-17, 18:28- 26 19:2, 19:22-26. However, a genuine issue of material fact exists on the 27 issue 28 limitations. Therefore, this portion of Defendant’s motion is denied. process establish whether a and triable Defendant failed issue was to of aware 14 reasonably fact of accommodate regarding Plaintiff’s her her, as disability disability and 1 C. FMLA & CFRA Claims 2 Defendant also moves for summary judgment on Plaintiff’s fifth 3 and sixth claims alleged under the CFRA and the FMLA, respectively, 4 arguing “an employee’s right to reinstatement under the FMLA and CFRA 5 applies only when the employee returns to work and/or is able to perform 6 his or her job duties after the expiration of 12 workweeks of protected 7 leave[,]” and Plaintiff was not released to return to work at the 8 expiration of her twelve week leave period. (Mot. 7:2-6, 7:19-22, 9:1- 9 9.) Defendant further argues that Plaintiff cannot establish a prima 10 facie case of retaliation under the FMLA or CFRA because the “eight and 11 one-half months” time delay between “Plaintiff’s termination and her 12 exercise of protected CFRA/FMLA leave . . . coupled with the absence of 13 any direct evidence of discrimination by [Defendant] are fatal to 14 Plaintiff’s claim that her termination somehow connected to her exercise 15 of protected leave.”2 Id. at 10:14-21. 16 Plaintiff opposes Defendant’s motion on her CFRA/FMLA claims 17 on three separate grounds. Plaintiff argues Defendant violated her 18 rights under the CFRA and the FMLA by 1) terminating her employment 19 while 20 designate her medical leave as CFRA/FMLA qualifying and/or failing to 21 notify her regarding her right to reinstatement under CFRA/FMLA, and 3) 22 “refusing to re-hire Plaintiff upon [her] being released to return to 23 work” in retaliation for taking CFRA/FMLA protected leave. (Opp’n 18:4- 24 8, 18:16-20, 19:7-12, 19:17-19, 19:24-25, 20:13-15.) she was taking a CFRA/FMLA protected leave, 2) failing to 25 26 27 28 2 Defendant contends Plaintiff’s employment was “formally terminated” effective December 29, 2010, not when it notified her on February 4, 2010, that it was going to begin the process of filling her position. (Parker Decl. ¶ 21, Ex. H; see also Def.’s Reply 3:22-23.) 15 1 Concerning Plaintiff’s second theory of CFRA/FMLA liability, 2 Defendant replies: 3 Plaintiff’s exercise of [her] CFRA/FMLA rights.” (Def.’s Reply 3:8-10, 4 ECF No. 59.) Defendant argues, “[u]nlike an employee who is able to work 5 part time or who is caring for a sick relative, here, the undisputed 6 facts establish that Plaintiff was unable to work at all during the 7 [f]irst or second Leave of Absence . . . [or] at the conclusion of her 8 FMLA/CFRA leave[, t]herefore, any lack of notice regarding Plaintiff’s 9 CFRA/FMLA rights does not create any CFRA/FMLA liability . . . .” Id. at 10 “any lack of notice could not have had any effect on 3:5-10. 11 Both the CFRA and the FMLA “entitle[] eligible employees to 12 take up to 12 unpaid workweeks in a 12-month period” for a “serious 13 health condition.” Rogers v. Cnty. of Los Angeles, 198 Cal. App. 4th 14 480, 487 (2011)(discussing the CFRA and the FMLA)(citing CAL . GOV ’T CODE 15 § 12945.2(a) and 29 U.S.C. § 2612(a)(1)(D)). Further, an employee who 16 takes leave under CFRA/FMLA has a “right to return to his or her job or 17 an equivalent job after using protected leave.” Bachelder v. Am. West 18 Airlines, 19 reinstatement rights under the FMLA)(citing 29 U.S.C. §2614(a)); see 20 also Rogers, 198 Cal. App. 4th at 355 (citing 12945.2(a)). However, “an 21 employer does not violate the FMLA [or the CFRA] when it [terminates] an 22 employee who is indisputably unable to return to work at the conclusion 23 of the 12-week period of statutory leave.” Edgar v. JAC Products, Inc., 24 443 F.3d 501, 506-07 (6th Cir. 2006)(discussing FMLA); see also Rogers, 25 198 Cal. App. 4th at 488 (“CFRA’s reinstatement right only applies when 26 an employee returns to work on or before the expiration of the 12-week 27 protected leave . . . .”). Inc., 259 F.3d 1112, 1122 28 16 (9th Cir. 2001)(discussing 1 Further, the CFRA and the FMLA “plainly prohibit[] the use of 2 [statutory]-protected leave as a negative factor in an employment 3 decision.” Bachelder, 259 F.3d at 1125; see also Rogers, 198 Cal. App. 4 4th at 490-91 (“The CFRA provides that ‘[i]t shall be an unlawful 5 employment practice for an employer to . . . discriminate against . . . 6 any individual because of . . . (1) [that] individual[’s] exercise of 7 the right to . . . medical leave provided by’ the CFRA.”)(quoting CAL . 8 GOV’T CODE 12945.2(l)). Plaintiff is required to establish a “causal 9 connection” between her taking statutory-protected medical leave and the 10 employment decision at issue to succeed under this type of CFRA/FMLA 11 claim. 12 “retaliation” claim); See also Bachelder, 259 F.3d at 1125 (stating a 13 plaintiff 14 FMLA-protected leave constituted a negative factor in the decision to” 15 take 16 circumstantial evidence, or both”). Rogers, an can 198 Cal. satisfy adverse her App. 4th burden employment of action at 359-60 proving “by (discussing that using the CFRA “taking either direct of or 17 It is undisputed that Plaintiff was provided twelve weeks of 18 medical leave, and that the twelve weeks of leave expired on February 2, 19 2010. It is also undisputed that Plaintiff was unable to return to work 20 as of February 2, 2010. Plaintiff’s doctor’s notes “are sufficient to 21 establish that Plaintiff was not able to engage in the essential 22 functions of [her] job.” Jackson v. Simon Property Group, 795 F. Supp. 23 2d 949, 964 (N.D. Cal. 2011). Therefore, Defendant is entitled to 24 summary judgment on Plaintiff’s CFRA and FMLA claims to the extent they 25 are premised 26 Defendant 27 absence. See Edgar, 443 F.3d at 506-07; see also Rogers, 198 Cal. App. 28 4th at 488. on Plaintiff’s “terminated” her first theory employment 17 of during liability, her second i.e. that leave of 1 Defendant is also entitled to summary judgment on Plaintiff’s 2 CFRA and FMLA claims, to the extent they are premised on Plaintiff’s 3 second theory of liability, i.e. that Defendant violated these acts by 4 failing to properly designate Plaintiff’s leaves of absence as CFRA/FMLA 5 qualifying leaves and/or failing to adequately notify Plaintiff of her 6 right to reinstatement under CFRA/FMLA. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Accepting as true . . . that Defendant failed to inform Plaintiff that the leave it was providing h[er] was designated [CFRA/FMLA leave,] . . . no rational finder of fact could conclude that Plaintiff's exercise or attempted exercise of h[er] [CFRA/FMLA] rights was in any way affected by Defendant's failure to inform h[er] that the Act[s] entitled h[er] to a leave of up to 12 work weeks . . . . “Assuming arguendo that Plaintiff should have been given more explicit notice than was given . . . Plaintiff's right to reinstatement could not have been impeded or affected by the lack of notice because h[er] leave was caused by a serious health condition that made h[er] unable to perform the functions of h[er] position, . . . and it is undisputed that that inability continued for [approximately] two months after the end of h[er] 12–week [statutory] leave period. Any lack of notice of the statutory 12–week limitation on [CFRA/FMLA] leave could not rationally be found to have impeded Plaintiff's return to work. . . . [T]o the extent that [P]laintiff contends that the assumed right to notice stands as an independent right . . . , and that an employee may sue the employer for failure to give notice even if that failure in no way affected the employee’s leave, benefits, or reinstatement, we reject that contention.” 21 22 Jackson, 795 F. Supp. 2d at 965 (quoting Sarno v. Douglas Elliman- 23 Gibbons & Ives, Inc., 183 F.3d 155, 161-62 (2nd Cir. 1999))(internal 24 brackets and quotation marks omitted). 25 However, Plaintiff has presented evidence which creates a 26 genuine issue of material fact preventing summary judgment in favor of 27 Defendant on Plaintiff’s third theory of CFRA/FMLA liability, i.e. that 28 Defendant refused to re-hire Plaintiff after she was released to return 18 1 to work in retaliation for taking CFRA/FMLA protected leave. Plaintiff 2 applied for a vacant teller position in Defendant’s San Mateo office 3 after 4 (Fredrickson 5 Defendant’s 6 Plaintiff 7 considered for the position because “she lived in Sacramento . . . and 8 applied for a position in San Mateo.” Id. at 157:16-22. However, 9 Plaintiff’s application for the San Mateo opening indicated that she was 10 willing to relocate, and Fredrickson testified that she called Plaintiff 11 concerning her application for the San Mateo position, and Plaintiff 12 responded 13 . . . .” Id. at 70:12-71:14, 94:14-25, 158:4-10. Fredrickson also 14 testified that if an applicant is qualified for a position and is 15 willing to relocate, the fact that they do not live in the city where 16 the position is held is not “a basis to reject their application.” Id. 17 at 158:11-17. Fredrickson’s testimony belies Defendant’s contention that 18 it had a legitimate, non-discriminatory reason to reject Plaintiff’s 19 application for the San Mateo position. she was released Dep. human was that to return to 156:25-157:15.) resources qualified “she was staff, for open the Deborah gave San to work without Fredrickson, deposition Mateo restrictions. testimony position, opportunities one but in other was of that not locations 20 Plaintiff also presented deposition testimony from two of 21 Defendant’s employees, from which a reasonable inference could be drawn 22 that Defendant refused to rehire Plaintiff because she took protected 23 medical leave. Regina Parker testified that when she spoke to the 24 Sacramento main branch about filling Plaintiff’s position in early 25 February 2010, branch staff had an ongoing concern that Plaintiff would 26 be unable to return to work “even when the doctor notes reflected she’d 27 be able to return in the very near future.” (Parker Dep. 61:4-63:16.) 28 And Susan Tamai testified regarding Plaintiff’s absences as follows: 19 1 Q. What was [Plaintiff’s] attendance like? 2 A. Oh, that was – I know she had to take off a lot, I know, for doctor’s appointments. She did get sick, other than these leaves, I’m talking about. Q. Did you see that as a negative attribute of her as an employee having to take time off? A. Yeah, she seemed to take off more than a usual employee. Q. Due to medical issues? A. Yes. Q. Did that concern you? A. It concerned me to - well, of course it affected the work but she seemed to have a lot of different health issues which I know at one point maybe we discussed how - we were talking to her about, “How come the doctor’s can’t find out what was wrong with you,” because she had certain ailments that seemed to go on and on and on. 3 4 5 6 7 8 9 10 11 12 13 14 15 And she’d go to the doctor and they would give her some medicine or either send her home. Then she’d get those symptoms again, and I remember we would tell her, “You really got to talk to your doctors and find out what’s wrong.” 16 17 18 19 (Tamai Dep. 114:18-115:14.) 20 The referenced evidence “suggests that [Defendant’s rejection 21 of Plaintiff for the San Mateo position] may have been tainted with 22 [its] attitude towards her leave.” Liu v. Amway Corp., 347 F.3d 1125, 23 1137 24 [Plaintiff’s] leave and [her rejection for the San Mateo position] also 25 provides supporting evidence of a connection between the two events.” 26 Id. (9th Cir. 2003). Further, “the proximity in time between 27 For the stated reasons, Defendant’s summary judgment motion on 28 Plaintiff’s CFRA/FMLA claims is granted, except to the extent it is 20 1 premised upon 2 released to return to work. 3 D. Defendant’s failure to reinstate her after she was Wrongful Termination in Violation of Public Policy 4 Defendant also seeks summary judgment on Plaintiff’s wrongful 5 termination in violation of public policy claim. In support of this 6 portion of its motion, Defendant only argues as follows: “Because 7 Plaintiff cannot raise a genuine issue of material fact with respect to 8 any of the claims in her complaint, Plaintiff’s claim for violation of 9 public policy likewise fails and should be dismissed.” (Mot. 20:3-5.) 10 Since Plaintiff’s disability discrimination claims, FEHA 11 failure to accommodate/failure to engage in the interactive process 12 claims and a portion of her FMLA/CFRA claims survive the motion, this 13 portion of Defendant’s motion is denied. 14 15 16 17 IV. CONCLUSION For the foregoing reasons, Defendant’s summary judgment motion is granted and denied in part as follows: 1. Defendant’s motion on Plaintiff’s first and second claims 18 alleging disability discrimination under the FEHA and the 19 ADA is DENIED; 20 2. Defendant’s motion on Plaintiff’s third and fourth claims 21 alleging failure to accommodate and failure to engage in 22 the interactive process under the FEHA is DENIED; 23 3. Defendant’s motion on Plaintiff’s fifth and sixth claims 24 alleging violation of the CFRA and the FMLA is GRANTED 25 except to the extent those claims are premised upon 26 Defendant’s failure to rehire Plaintiff for the position 27 to which she applied after she was released to return to 28 work; and 21 1 4. 2 3 Defendant’s motion on Plaintiff’s wrongful termination claim in violation of public policy is DENIED. Dated: November 14, 2012 4 5 6 GARLAND E. BURRELL, JR. Senior United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 22
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