Opinion
Case No. CV 12-7054 JGB (VBKx)
05-13-2013
GLORIA AREVALO, Plaintiff, v. HYATT CORPORATION, Defendant.
ORDER GRANTING HYATT'S
MOTION FOR SUMMARY JUDGMENT
Before the Court is a Motion for Summary Judgment filed by Defendant Hyatt Corporation. ("Motion," Doc. No. 21.) After considering all papers submitted in support of and in opposition to the Motion and the arguments presented at the May 6, 2013 hearing, the Court GRANTS Hyatt's Motion for Summary Judgment.
I. BACKGROUND
A. Procedural Background
On July 9, 2013, Plaintiff Gloria Arevalo ("Plaintiff" or "Arevalo") filed her Complaint against Defendant Hyatt Corporation ("Defendant" or "Hyatt") and fictitious defendants in California Superior Court for the County of Los Angeles. ("Compl.," Not. of Removal, Doc. No. 1, Exh. A.) Hyatt answered on August 10, 2012. (Not. of Removal, Exh. C.)
Hyatt removed the action to this Court on August 15, 2012. (Not. of Removal.) On September 14, 2012, Plaintiff moved to remand the case to state court on the ground that the amount in controversy is less than $75,000. (Doc. No. 7.) The Court (Klausner, J.) denied Plaintiff's motion to remand on November 15, 2012. (Doc. No. 16.)
Hyatt filed its Motion for Summary Judgment on April 5, 2013. ("Motion," Doc. No 21.) Hyatt attached the following documents in support of its Motion: Statement of Undisputed Facts ("SUF"); Declaration of David G. Freedman attaching portions of the depositions of Arevalo ("Arevalo Depo.," Exh. 1) and Dr. Shirzad Abrams ("Abrams Depo.," Exh. 2); Declaration of Sara Aguilar ("Aguilar Decl.," Exh. B) attaching Dr. Abrams' reports and related correspondence; and Declaration of Andrew Jones ("Jones Decl.," Exh. C).
Arevalo opposed the Motion on April 15, 2013. ("Opp'n," Doc. No. 22.) In support of her opposition, Arevalo filed her Statement of Genuine Disputes of Material Fact ("SGI"), Written Objections to Evidence Submitted by Defendant ("Pl.'s Objs."), a Declaration of Roderick C. Stoneburner ("Stoneburner Decl."), a Declaration of Gloria Arevalo ("Arevalo Decl.") attaching three exhibits also included elsewhere, a Declaration of Ramin R. Younessi (Doc. No. 23) attaching seven exhibits, including portions of the deposition of Gloria Arevalo ("Arevalo Depo.," Exh. 1), the deposition of Floridalma Pivaral ("Pivaral Depo.," Exh. 2), the deposition of Sara Aguilar ("Aguilar Depo.," Exh. 3), Dr. Abrams' August 2, 2011 report ("Aug. 2, 2011 Report," Exh. 4), Arevalo's termination letter ("Term. Letter," Exh. 5), Hyatt Century Plaza Hotel's Union Collective Bargaining Agreement effective from December 1, 2006 to November 30, 2009 ("CBA," Exh. 6), and a March 15, 2011 letter from Sara Aguilar to Tamara Hill ("Mar. 15, 2011 Letter," Exh. 7).
On April 22, 2013, Hyatt replied to the Motion. ("Reply," Doc. No. 25.) Hyatt also filed objections to Plaintiff's evidence ("Def's Obj.").
B. Complaint
Arevalo filed her Complaint on July 9, 2012. (Compl.) The Complaint alleges that she was employed as a housekeeper at the Hyatt Regency Century Plaza in Los Angeles, California. (Compl. ¶¶ 4, 14.) On February 6, 2010, Plaintiff fell and injured her left knee which prevented her from returning to work. (Compl. ¶¶ 16, 18.) Plaintiff alleges that on August 2, 2011 she was cleared to return to work with restrictions. (Compl. ¶ 25.) On August 22, 2011, Hyatt terminated Plaintiff because "Hyatt required an employee that can work at 100%." (Compl. ¶ 26.)
Based on these allegations, Plaintiff states four causes of action. Claim one is for breach of covenant of good faith and fair dealing. (Compl. ¶¶ 27-36.) Claim two alleges disability discrimination in violation of the Fair Employment and Housing Act ("FEHA") during the period of August 2 to August 22, 2011. (Compl. ¶¶ 37-47.) Claim three contends that Hyatt failed to provide a reasonable accommodation to Plaintiff from August 2 to August 22, 2011 in violation of FEHA, Cal. Gov. Code § 12940. (Compl. ¶¶ 48-58.) Claim four states a claim for retaliation against Plaintiff for her assertion of her rights under FEHA. (Compl. ¶¶ 59-67.) Finally, Plaintiff's fifth claim is for wrongful termination in violation of public policy. (Compl. ¶¶ 68-76.) As to Plaintiff's second through fifth causes of action, she further alleges that Hyatt acted with malice, oppression, and willful disregard for Plaintiff's rights. (Compl. 46, 57, 66, 75.)
II. LEGAL STANDARD
Unless otherwise noted, all references to "Rule" refer to the Federal Rules of Civil Procedure.
A court shall grant a motion for summary judgment when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The moving party must show that "under the governing law, there can be but one reasonable conclusion as to the verdict." Anderson, 477 U.S. at 250.
Generally, the burden is on the moving party to demonstrate that it is entitled to summary judgment. See Margolis v. Ryan, 140 F.3d 850, 852 (9th Cir. 1998) (citing Anderson, 477 U.S. at 256-57); Retail Clerks Union Local 648 v. Hub Pharmacy, Inc., 707 F.2d 1030, 1033 (9th Cir. 1983). The moving party bears the initial burden of identifying the elements of the claim or defense and evidence that it believes demonstrates the absence of an issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Because summary judgment is a "drastic device" that cuts off a party's right to present its case to a jury, the moving party bears a "heavy burden" of demonstrating the absence of any genuine issue of material fact. See Avalos v. Baca, No. 05-CV-07602-DDP, 2006 WL 2294878 (C.D. Cal. Aug. 7, 2006) (quoting Nationwide Life Ins. Co. v. Bankers Leasing Ass'n, Inc., 182 F.3d 157, 160 (2d Cir. 1999)).
Where the non-moving party has the burden at trial, however, the moving party need not produce evidence negating or disproving every essential element of the non-moving party's case. Celotex, 477 U.S. at 325. Instead, the moving party's burden is met by pointing out that there is an absence of evidence supporting the non-moving party's case. Id.; Horphag Research Ltd. v. Garcia, 475 F.3d 1029, 1035 (9th Cir. 2007). "[A] summary judgment motion may properly be made in reliance solely on the 'pleadings, depositions, answers to interrogatories, and admissions on file.'" Celotex, 477 U.S. at 324 (quoting Fed. R. Civ. P. 56(c)).
The burden then shifts to the non-moving party to show that there is a genuine issue of material fact that must be resolved at trial. Fed. R. Civ. P. 56(c); Celotex, 477 U.S. at 324; Anderson, 477 U.S. at 256. The non-moving party must make an affirmative showing on all matters placed in issue by the motion as to which it has the burden of proof at trial. Celotex, 477 U.S. at 322; Anderson, 477 U.S. at 252. See also William W. Schwarzer, A. Wallace Tashima & James M. Wagstaffe, Federal Civil Procedure Before Trial § 14:144. A genuine issue of material fact will exist "if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson, 477 U.S. at 248.
In ruling on a motion for summary judgment, a court construes the evidence in the light most favorable to the non-moving party. Scott v. Harris, 550 U.S. 372, 378, 380 (2007); Barlow v. Ground, 943 F.2d 1132, 1135 (9th Cir. 1991); T.W. Elec. Serv. Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630-31 (9th Cir. 1987).
If the Court is unable to render summary judgment upon an entire case, it shall, if practicable, grant summary adjudication for any issues as to which, standing alone, summary judgment would be appropriate. See Fed. R. Civ. P. 56(a); California v. Campbell, 138 F.3d 772, 780-81 (9th Cir. 1998). Thus, summary adjudication is a mechanism through which the Court deems certain issues established before trial. Lies v. Farrell Lines, Inc., 641 F.2d 765, 769 n.3 (9th Cir. 1981) (internal quotation omitted). The standard that applies to a motion for summary adjudication is the same as that which applies to a motion for summary judgment. See Fed. R. Civ. P. 56(a); Mora v. ChemTronics, 16 F. Supp. 2d. 1192, 1200 (S.D. Cal. 1998).
III. DISCUSSION
A. Evidentiary Objections
Defendant proffered 75 facts in support of its Motion. Plaintiff objects to 74 of Defendant's 75 facts, each on multiple grounds. For instance, in objection to Defendant's fact number 34, Plaintiff objects on the grounds that the evidence is "Hearsay, Fed. R. Evid. 801, 802; Lack of Foundation, Misleading, Vague and Ambiguous, Fed. R. Evid. 402, 403; Best Evidence Rule, Fed R. Evid. 1002; Lay Opinion, Fed. Rule Evid. 701(b)." (Pl's Obj. at 9.) Moreover, as to nearly every proffered fact, Plaintiff makes identical objections on the grounds that the evidence lacks foundation, is misleading, vague, ambiguous, conclusory, speculative, conjecture, compound, irrelevant, or argumentative.
The Court OVERRULES all of Plaintiff's objections as frivolous. The Court need not consider "boilerplate recitations" and "blanket objections [submitted] without analysis applied to specific items of evidence." Doe v. Starbucks, Inc., No. 08-0582, 2009 WL 5183773, at *1 (C.D. Cal. Dec. 18, 2009). Further, Plaintiff's repeated "objections to evidence on the ground that it is irrelevant, speculative, and/or argumentative, or that it constitutes an improper legal conclusion are all duplicative of the summary judgment standard itself" and are thus "redundant" and unnecessary to consider here. Burch v. Regents of Univ. of California, 433 F. Supp. 2d 1110, 1119 (E.D. Cal. 2006); see Anderson, 477 U.S. at 248. Thus, the Court does not consider any of Plaintiff's objections on the grounds that the evidence lacks foundation, is misleading, vague, ambiguous, conclusory, speculative, conjecture, compound, irrelevant or argumentative. These objections are challenges to Defendant's characterization of the evidence and are improper on a motion for summary judgment.
Once these objections are excluded, Plaintiff's remaining objections are for hearsay, the best evidence rule, and improper lay opinion testimony. (See e.g., Pl's Obj. ¶ 34.) Almost all of Plaintiff's hearsay objections involve portions of Plaintiff's deposition testimony which are corroborated by testimony from the declarant. (See e.g., Pl's Obj. ¶ 13 (objecting to Arevalo's deposition testimony where she states Dr. Abrams told her that she could not return to work in any capacity between April and December 2010, but ignoring the supporting testimony from Dr. Abrams corroborating this statement).) Since the declarant's testimony is available and supports the objected-to statement, there is no indicia of unreliability to support exclusion. In addition, most of these statements are wholly excepted from the rule against hearsay under Fed. R. Evid. 803(4) as statements made for medical diagnosis or treatment or excluded from hearsay as statements offered against Plaintiff that she adopted or believed to be true under Fed. R. Evid. 801(d)(2)(B). Thus, Plaintiff's hearsay objections are OVERRULED.
Plaintiff's best evidence rule objections are similarly OVERRULED, as none of the objected-to evidence is introduced to prove the content of a writing and in many cases Defendant nonetheless provided the underlying documentation. See Fed. R. Evid. 1002. (See e.g., Pl's Obj. ¶ 33 (objecting on best evidence grounds to an email from Tamara Hill to Sara Aguilar, which Defendant attached as exhibit 8 to Aguilar's deposition).)
Plaintiff's final objections are for lay opinion testimony under Federal Rule of Evidence 701(b). Plaintiff objects to portions of her own testimony and that of the Assistant Direct of Human Resources, Sara Aguilar, which characterize Plaintiff's injury and her work restrictions. (See e.g., Pl's Obj. ¶¶ 50, 56.) Lay testimony in the form of opinions or inferences is proper when "(a) rationally based on the perception of the witness, (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge . . . ." Fed. R. Evid. 701. All of the objected to evidence clearly fits within the definition of proper lay opinion, and Plaintiff's objections on this ground are OVERRULED. In sum, all of Plaintiff's evidentiary objections are without merit, fail to survive a basic review of the evidentiary rules and are thus OVERRULED.
Defendant makes one evidentiary objection to a declaration submitted in support of Plaintiff's opposition. Hyatt argues that Roderick C. Stoneburner's conclusion that, "Arevalo could have performed all of the duties of her position without formal modification" on August 8, 2011 is improper expert testimony under Federal Rule of Evidence 702. (Def's Obj. ¶ 34.) To qualify as an expert, a declarant must "provide[] adequate foundational information about what training-whether in the classroom or on the job-gave rise to their ability to" come to a stated conclusion. Plush Lounge Las Vegas LLC v. Hotspur Resorts Nevada Inc., 371 F. App'x 719, 720 (9th Cir. 2010). In his declaration, Stoneburner conclusorily states that he is a "Qualified Vocational Expert" based on his 35 years of experience. (Stoneburner Decl. ¶ 1.) He does not describe his field of his experience or its relevant here, nor does he provide any underlying factual support. See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 590 (1993) (stating that purported experts cannot rely on "unsupported speculation"). In addition, Stoneburner does not provide any explanation of the methodology he used to arrive at his legal conclusion that Arevalo could have performed her duties without modification on August 8, 2011. Instead, Stoneburner merely recites a list of documents he reviewed. See Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 151 (1999). Given these deficiencies, the Court finds that Stoneburner's declaration falls short of the reliability and relevancy requirements for the admissibility of expert testimony under Rule 702. See id. at 152. The Court SUSTAINS Hyatt's objection to the Stoneburner declaration and the Court will not consider Stoneburner's evidence on this Motion.
To the extent facts submitted by the parties are not recited in this Order, the Court finds them immaterial and does not rely on them in resolving the motions and thus does not resolve any evidentiary disputes regarding their supporting evidence.
B. Undisputed Facts
Except as noted, the following material facts are sufficiently supported by admissible evidence and are uncontroverted. They are "admitted to exist without controversy" for purposes of the MSJ. L.R. 56-3 (facts not "controverted by declaration or other written evidence" are assumed to exist without controversy); Fed. R. Civ. P. 56(e)(2) (stating that where a party fails to address another party's assertion of fact properly, the court may "consider the fact undisputed for purposes of the motion").
1. The Injury
Gloria Arevalo began working as a room attendant at the Century Plaza Hotel in 1982. (Arevalo Depo. 8:9-11.) Arevalo continued in that position when Hyatt began operating the hotel in 2005. (SUF ¶ 1; SGI ¶ 1.) As a room attendant, Arevalo cleaned guest rooms in the hotel, including cleaning bathtubs, showers, toilets, sinks, walls, mirrors, counters, and floors, changing sheets and towels, making beds, dusting furniture, wiping windows, vacuuming and sweeping. (SUF ¶ 3; SGI ¶ 3.) Room attendants work for eight-hour shifts and may take two, ten-minute breaks and one thirty minute lunch break. (SUF ¶ 5; SGI ¶ 5.) A room attendant stands or walks the entire time she is performing her duties and generally is expected to clean about fourteen rooms per shift. (SUF ¶¶ 6-8; SGI ¶¶ 6-8; Arevalo Depo. 12:11-15.)
On February 6, 2010, Arevalo fell and injured her left knee. (SUF ¶ 9; SGI ¶ 9.) Immediately after the injury, Arevalo did not return to work and Hyatt placed her on a leave of absence because her knee was swollen and she had to walk with crutches. (SUF ¶ 10; SGI ¶ 10; Aguilar Decl. ¶8.) On April 29, 2010, Dr. Shirzad Abrams performed surgery on Arevalo's left knee. (SUF ¶ 11; SGI ¶ 11.) Between April 29, 2010 and December 7, 2010, Dr. Abrams provided Arevalo with work status reports that stated she could not return to work in any capacity. (SUF ¶ 13; SGI ¶ 14; Aguilar Decl., Exhs. 3-4.) During this time, Hyatt continued to keep Arevalo on leave of absense. (SUF ¶ 14; SGI ¶ 14.)
2. Light Duty
On December 7, 2010, Dr. Abrams released Arevalo to return to work with the restrictions of no prolonged standing or walking and limited squatting. (Aguilar Decl., Exh. 5.) Dr. Abrams considered the restriction to mean Arevalo should not stand or walk more than 15 to 20 minutes in an hour. (SUF ¶ 16; SGI ¶ 16.) Hyatt's Assistant Director of Human Resources, Sara Aguilar, reviewed Dr. Abrams work status report and restrictions on December 10, 2010 and determined that she could not perform the duties of a room attendant. (SUF ¶ 18; SGI ¶ 18.) Arevalo agreed that she was not able to perform the duties of a housekeeper at that time. (Arevalo Depo. 22:23-23:5.) Instead, Hyatt offered Arevalo temporary modified duty on December 30, 2010, also known as "light duty," which she began on January 4, 2011. (SUF ¶ 19; SGI ¶ 19; Aguilar Decl. ¶ 13, Exh. 6.) Per Hyatt's policy, light duty is not a permanent position; it is a modified temporary assignment for a maximum period of three months for employees who have work restrictions and require accommodations. (Aguilar Depo. 30:17-31:2.) While on light duty, Arevalo's duties consisted of answering phones, folding ice bucket liners and laundry bags, stocking amenities, and checking guest rooms for cleanliness. (Aguilar Decl. ¶ 17; Arevalo Decl. ¶ 20.) Some of Arevalo's duties while on light duty were against her work restrictions, including making some beds, taking out dirty linens, and checking rooms, all of which required her to walk for long periods and caused her knee pain and swelling. (Arevalo Depo. 25:10-27:10.) Arevalo did not tell anyone in Human Resources about her pain. (Arevalo Depo. 27:19-22.)
Plaintiff cites to a collective bargaining agreement between Hyatt and UniteHere Local 11 for the proposition that employees were limited to 12-weeks of light duty. (SGI ¶ 19; Younessi Decl., Exh. 6.) However, the cited collective bargaining agreement was only in effect from December 1, 2006 to November 30, 2009, which is not the relevant time period at issue here as Plaintiff was not injured until February 2010. (Younessi Decl., Exh. 6.) Moreover, the provided provisions of the collective bargaining agreement do not make any mention of light or modified duty. The Court therefore does not consider Plaintiff's arguments or evidence regarding the collective bargaining agreement.
On February 9, 2011, Dr. Abrams completed another work status report which continued to limit Arevalo to fifteen to twenty minutes of walking or standing every hour and found that it was unreasonable for her to return to her room attendant duties. (Aguilar Decl., Exh. 7; Abrams Depo. 29:10-24.) Based on these restrictions, Aguilar determined on March 15, 2011 that Arevalo could not return to her position as a room attendant when her light duty expired. (Aguilar Decl. ¶ 18.)
3. Leave of Absence
On March 15, 2011, Aguilar, Arevalo and Houskeeping Director, Andrew Jones, met to discuss how Hyatt could accommodate Arevalo's work restrictions. (SUF ¶ 37; SGI ¶ 37.) At this meeting, Aguilar notified Arevalo that her light duty assignment had expired. (Aguilar Decl. ¶ 18.) If it were not for the expiration of her light duty period, Arevalo and Aguilar both believed that Arevalo would have been able to continue doing the modified assignments. (Arevalo Decl ¶ 23; Aguilar Depo. 29:23-29:1.) Aguilar also told Arevalo that she could not return to her position as a room attendant because of her work restrictions. (SUF ¶ 38; SGI ¶ 38.) Finally, Aguilar and Arevalo reviewed a list of job openings at the hotel, but Plaintiff did not see any open jobs for which she was qualified. (SUF ¶¶ 39-42; SGI ¶¶ 39-42.) Aguilar also showed Arevalo how to check for job openings on the hotels website. (SUF ¶ 46; SGI ¶ 46.) Aguilar placed Arevalo back on leave of absence, as she had four months of industrial injury leave remaining. (Aguilar Decl. ¶ 21.) Aguilar notified Arevalo that if she remained unable to perform the duties of a room attendant or another available position at the end of her four months of leave, she would be terminated. (Aguilar Decl. ¶ 21.)
Plaintiff notes that on March 15, 2012, Arevalo had only used ten of the allotted twelve weeks of her light duty assignment. (SGI ¶ 20.)
Plaintiff insinuates that Aguilar "falsely testified, under oath," that Arevalo exhausted her allotted modified duty. (SGI ¶ 21.) Plaintiff further implies that Aguilar committed perjury in her deposition and declaration. (SGI ¶¶ 2728.) The Court does not take lightly Plaintiff's accusations of perjury, and cautions Plaintiff that she should be wary of making such serious accusations without evidentiary or legal support. See United States v. Dunnigan, 507 U.S. 87, 94 (1993) (A witness commits perjury if she "gives false testimony concerning a material matter with the willful intent to provide false testimony, rather than as a result of confusion, mistake, or faulty memory.").
The parties agree that Arevalo understands very little English, and therefore Arevalo is not qualified for positions which require English fluency. (SUF ¶¶ 40-41; SGI ¶¶ 40-41.)
During Arevalo's medical leave, she continued to see Dr. Abrams who provided reports to Aguilar on Arevalo's work restrictions. (Aguilar Decl. ¶ 22.) Dr. Abrams' March 29, April 26, May 31, and July 5, 2011 reports all stated that Arevalo was "unable to return to work" in any capacity. (Aguilar Decl., Exh. 9.)
4. Termination
On August 2, 2011, Dr. Abrams provided an updated work status report which stated that Arevalo could return to work with the following restrictions, "no kneeling on left knee, no running, no jumping." (Aug. 2, 2011 Report, Aguilar Decl., Exh. 10.) Arevalo further understood that her restrictions as of August 2, 2011 were that she could not climb, bend her knees, jump run, kneel, or walk for long periods of time. (Arevalo Depo. 45:22-46:5.) She believed that she could perform her job as a room attendant with these restrictions. (Arevalo Depo. 47:13-16.)
Aguilar received Dr. Abrams' August 2, 2011 report and determined that Arevalo could not return to work as a room attendant. (Agular Decl. ¶ 24.) Aguilar and Arevalo met on August 8, 2011 and Aguilar informed her that her work restrictions prevented her from returning to work as a room attendant. (Aguilar Decl. ¶ 27.) They reviewed a list of vacant positions at the hotel, but Arevalo did not qualify for any available jobs. (SUF ¶ 59; SGI ¶ 59.) Aguilar notified Arevalo that there were no jobs at the hotel that she was able to perform with her restrictions. (SUF ¶ 58; SGI ¶ 58.) Arevalo also recalls asking Aguilar to give her an opportunity and Aguilar responded by saying that Hyatt requires "100 percent of my body to be able to work" as a room attendant. (Arevalo Depo. 49:21-25.) On August 8, 2011, Hyatt terminated Arevalo. (Younessi Decl., Exh. 5.)
Plaintiff states that Aguilar only provided Arevalo with a list of hotel positions "in housekeeping," not all open positions at the hotel for which she may have been qualified. (SGI ¶¶ 57-59.)
5. Additional Medical Care
At the time of her termination, Arevalo was required to use a cane to walk. (SUF ¶ 62; SGI ¶ 62.) From the date of the accident in February 2010 until at least June 2012, if Arevalo did not use a cane she would lose her balance and fall because her knee was weak and would give out underneath her. (SUF ¶¶ 63-65; SGI ¶¶ 63-65.)
On August 30, 2011, Dr. Abrams' opinion was that Arevalo was "unable to perform any activities that involve prolonged standing, prolonged walking, climbing, kneeling, or squatting." (Abrams Depo. 36:21-37:5.) Abrams also opined that on a long term basis, if Arevalo continued to keep doing physical activities such as prolonged standing and walking, she would experience increased pain and swelling. (Abrams Depo. 38:5-12.) In September 2011, Arevalo's knee continued to cause her pain and would get swollen after fifteen minutes of walking. (Arevalo Depo. 53:5-24.) Since Arevalo left Hyatt, at least three doctors have told her that she could not perform work which required her to bend her knee, walk for extended periods, jump, or lift more than twenty or twenty-five pounds. (Arevalo Depo. 63:1-16.) Arevalo received physical therapy on her knee from approximately January 2012 to January 2013 during which time she had to refrain from bending her knee, running, walking or standing for long periods. (Arevalo Depo 70:9-71:8.)
Before her termination in July 2011, Arevalo also began seeing a doctor for back and neck pain resulting from her February 2010 fall. (Arevalo Depo. 50:20-22.) For most of 2012, Arevalo could not lift her left hand or arm, which prevented her from doing housework, changing her clothes, or bathing herself. (SUF ¶¶ 72-73; SGI ¶¶ 72-73.)
Arevalo understands that she needs to have her knee replaced because it is very damaged. (Arevalo Depo. 76:7-23.)
C. FEHA Claims: Qualified Individual
To establish Plaintiff's second and third claims for violations of FEHA, Plaintiff must introduce evidence demonstrating that she is a "qualified individual" within the meaning of the statute. Green v. State, 42 Cal. 4th 254, 262 (2007); Nadaf-Rahrov v. Neiman Marcus Grp., Inc., 166 Cal. App. 4th 952, 971 (2008). In order to establish she is a "qualified individual," Plaintiff "bears the burden of proving [she is] an employee . . . able to perform the essential functions of a job with or without reasonable accommodation." Nadaf-Rahrov, 166 Cal. App. 4th at 976 (citing Green, 42 Cal. 4th at 257).
Hyatt argues that Plaintiff was not a qualified individual because she could not perform the essential functions of a room attendant with or without an accommodation during the period of August 2, 2011 to August 22, 2011. (Motion at 10.) California Government Code Section 12926(f) defines "essential functions" as "the fundamental job duties of the employment position the individual with a disability holds or desires." Cal. Gov. Code § 12926(f). In determining which functions are essential, relevant evidence includes, but is not limited to, the employer's judgment as to which functions are essential, written job descriptions prepared before advertising or interviewing applicants for the job, the amount of time spent on the job performing the function, the consequences of not requiring the incumbent to perform the function, and the past and current work experience of incumbents on the job. Cal. Gov't Code § 12926(f)(2); 29 C.F.R. § 1630.2(n). There is substantial evidence to show that the essential functions of a room attendant are to clean bathtubs, showers, toilets, sinks, walls, mirrors, counters, and floors, remove dirty linens, change sheets and towels, make beds, dust furniture, wipe windows, vacuum and sweep. (Jones Decl. ¶ 7; Aguilar Decl. ¶ 5; Arevalo Depo. 14:2-21; Arevalo Decl. ¶ 10.)
As defined in her Complaint, Plaintiff's second and third causes of action for disability discrimination and failure to provide a reasonable accommodation under FEHA are limited to the time period between August 2 and August 22, 2011. (Compl. ¶¶ 41, 52.) The Court therefore limits its review of Hyatt's actions to this time period.
Plaintiff argues that the duties of room attendants are not uniform and can vary based on the type of room assigned to the employee. (Opp'n at 11.) However, Plaintiff provides no contrary evidence to demonstrate which duties of a room attendant are essential and which are non-essential. Plaintiff's conclusory statement that the duties vary is not sufficient to controvert Defendant's evidence of the position's essential duties. Moreover, evidence of whether a particular function is essential includes "[t]he employer's judgment as to which functions are essential" and "the past and current work experience of incumbents on the job." Cal. Gov. Code § 12929(f)(2); 29 C.F.R. § 1630.2(n). The Court therefore finds that multiple declarations from Hyatt employees delineating the essential duties of a room attendant and Arevalo's deposition and declaration testimony acknowledging her completion of these duties during her twenty-nine-year experience as a room attendant are sufficient evidence to find that the duties listed above are essential to the room attendant position.
1. Without a Reasonable Accommodation
The Court next turns to whether Arevalo could perform these essential duties without a reasonable accommodation. Plaintiff's undisputed physical limitations are instructive here. There is undisputed evidence to show that during August 2011 Arevalo required the use of a cane to walk at all times, and without such support her knee could give out causing her to fall. (SUF ¶¶ 63-65; SGI ¶¶ 63-65.) Moreover, undisputed evidence demonstrates that to perform the essential tasks of a room attendant, an employee must be able to engage in prolonged walking and standing. (SUF ¶¶ 6-8; SGI ¶¶ 6-8.) The Court finds as a matter of law that Arevalo, who required the use of a cane at all times, could not have performed the essential duties of a room attendant, most of which required consistent unaided walking or standing, such as cleaning bathtubs, changing sheets, and sweeping. See Perez v. Linear Tech. Corp., 4 F. App'x 527, 528 (9th Cir. 2001) (holding that plaintiff was not a "qualified individual" where she could not peform an essential function of her job to "visually inspect specific written directions" where "[e]pisodes of blurry vision . . .periodically interfered with her ability to read those instructions and a series of workplace errors ensued"); Hastings v. Dep't of Corr., 110 Cal. App. 4th 963, 971, 2 Cal. Rptr. 3d 329, 334 (2003) (finding plaintiff was not a qualified individual where his knee injuries made him unable to walk more than a few yards without a cane and made it impossible for him to perform the essential functions a correctional officer including walking and ascending or descending stairs while carrying various items).
Plaintiff's primary contention is that based on her own deposition testimony, she was able to perform the essential functions of her job in August 2011. Arevalo testified that she would have been able to do her job as a housekeeper while she was using a cane. (Arevalo Depo. 60:1-13.) When asked how this would be possible, Arevalo responded that "I could because I didn't have to walk around like - you know, running." (Arevalo Depo. 60:7-8.) However, the undisputed facts show that the essential duties of Arevalo's position required substantial walking, and that if she attempted to walk she would lose her balance and fall. Although "specific testimony by a single declarant can create a triable issue of fact . . . [the Court] need not find a genuine issue of fact if, in its determination, the particular declaration was uncorroborated and self-serving." F.T.C. v. Neovi, Inc., 604 F.3d 1150, 1159 (9th Cir. 2010) (quotation omitted). The Court finds that Plaintiff's testimony that she could perform the essential duties of her position with a cane is a "bald, uncorroborated, and conclusory assertion[] rather than evidence," and the Court finds that it does not create a triable issue of material fact that requires consideration by the jury. Id.; see also Rivera v. Nat'l R.R. Passenger Corp., 331 F.3d 1074, 1079 amended, 340 F.3d 767 (9th Cir. 2003). Without specific facts to support her conclusion, Plaintiff's bald assertion of an "ultimate fact" is insufficient to defeat a motion for summary judgment. Weston v. FedEx Office & Print Servs., Inc., 707 F. Supp. 2d 1074, 1076 (S.D. Cal. 2010) (citing Schneider v. TRW, Inc., 938 F.2d 986, 990-91 (9th Cir. 1991)).
Plaintiff also argues that Hyatt cannot argue that Arevalo could not perform the essential functions of a room attendant because Defendant never gave her an opportunity to show she could perform those functions. (Opp'n at 10-11.) However, Plaintiff has the burden to prove that she could perform the essential functions of the position. See Nadaf-Rahrov, 166 Cal. App. 4th at 976. Defendant's failure to offer Plaintiff an opportunity to work as a room attendant does not demonstrate that Plaintiff was qualified to perform the essential function of that position. By contrast, the medical evidence supplied by Plaintiff's doctor in this case supports the conclusion that Arevalo was not able to perform the essential functions of a room attendant in August 2011. Dr. Abrams testified that in August 2011, Arevalo was unable to perform any activity that involved prolonged standing, walking, climbing, kneeling or squatting. (Abrams Depo. 36:21-25.) It is undisputed that the essential duties of the room attendant position require prolonged standing and walking for the majority of an eight-hour shift. Thus, Plaintiff was not a qualified individual under FEHA in August 2011.
Plaintiff final argument is that the sole basis of determining whether Plaintiff could perform the essential functions of a room attendant should be Dr. Abrams' August 2, 2011 work status report which only limited Plaintiff from kneeling, running, and jumping. (Opp'n at 12.) While Plaintiff's August 2011 work restrictions are a relevant starting point, they are not controlling on the issue of whether Plaintiff was able to perform room attendant duties. Arevalo's testimony regarding her own limitations demonstrates that in addition to the restrictions in the work status report, Arevalo also could not put weight on her knee, as it could cause it to give out, to swell, or to be painful. Moreover, Arevalo testified that in August 2011 Dr. Abrams provided her with additional restrictions outside of the work status report including refraining from bending her knees and walking for long periods of time. (Arevalo Depo. 45:22-46:5.) Finally, focusing on Dr. Abrams' single August 2011 status report in isolation ignores the totality of evidence before and after this date in which Arevalo was unable to return to work in any capacity. (Aguilar Decl., Exh. 9; Arevalo Depo. 69:11-19.) Viewed as a whole, these physical limitations prevented Arevalo from performing the standing and walking undisputably necessary to fulfill the obligations of a room attendant. The Court therefore finds the undisputed evidence cannot support a finding that Arevalo was capable of performing the essential functions of a room attendant without an accommodation in August 2011.
2. With A Reasonable Accommodation
Plaintiff may also satisfy her burden of establishing she is a "qualified individual" by presenting evidence to show she could perform the essential duties of a position with a reasonable accommodation. Green, 42 Cal.4th at 262. Under FEHA, "reasonable accommodation" means "a modification or adjustment to the workplace that enables the employee to perform the essential functions of the job held or desired." Cuiellette v. City of Los Angeles, 194 Cal. App. 4th 757, 766 (2011) (citation omitted). A "reasonable accommodation" includes "[j]ob restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities." Cal. Gov. Code § 12926(n)(2); Cal. Code Regs. tit. 2, § 7293.9(a)(2). Plaintiff argues that Hyatt had a duty to accommodate Plaintiff in one of two ways: by reassigning her to a vacant position or by extending her leave of absence.
a. Reassignment
"When an employee seeks accommodation by being reassigned to a vacant position in the company, the employee satisfies the 'qualified individual with a disability' requirement by showing he or she can perform the essential functions of the vacant position with or without accommodation." Nadaf-Rahrov, 166 Cal. App. 4th at 963. "A reassignment, however, is not required if there is no vacant position for which the employee is qualified." Cuiellette, 194 Cal. App. 4th at 766-67 (internal citation and quotation omitted). An employer is required "to reassign a disabled employee if an already funded, vacant position at the same level exists." Id. An employer can prevail on summary judgment if it establishes through undisputed facts that "there simply was no vacant position within the employer's organization for which the disabled employee was qualified and which the disabled employee was capable of performing with or without accommodation." Jensen v. Wells Fargo Bank, 85 Cal.App.4th 245, 263 (2000).
Plaintiff does not identify any specific position for which she was qualified. Instead, she argues that Hyatt failed to do a thorough investigation into vacant positions in order to determine if Arevalo was qualified. (Opp'n at 7.) Hyatt has met its initial burden of demonstrating that reassignment was not required because there was no vacant position for which Arevalo was qualified. Aguilar reviewed all vacant positions with Arevalo in March 2011, but Arevalo admits there were no open positions for which she was qualified. (SUF ¶¶ 39-42; SGI ¶¶ 39-42.) Aguilar also showed Arevalo how to check for open positions on Hyatt's website and instructed her to continue to look for positions while she was on leave. (SUF ¶ 46; SGI ¶ 46.) Arevalo admits she did not do so. (Arevalo Depo. 39:4-23.) Aguilar and Arevalo again reviewed vacant positions prior to her termination in August 2011. (SUF ¶ 59; SGI ¶ 59.) The sole evidence Plaintiff offers is that in August 2011 Aguilar provided Arevalo with only a list of hotel positions "in housekeeping," not a list of all vacant positions at the hotel. (SGI ¶¶ 57-59.) However, the uncontroverted evidence demonstrates that Plaintiff had access to all open positions via Hyatt's website and that Aguilar reviewed all "the available positions at the hotel" and determined that Arevalo was not qualified for any based on her work restrictions, lack of prior experience, lack of educational background, and lack of fluency in English. (Aguilar Decl. ¶ 26.) Plaintiff has not presented any evidence to show that there is or was any vacant position at the hotel for which she was qualified. Plaintiff cannot defeat summary judgment simply by raising a question, without any evidence, as to the thoroughness of Hyatt's investigation and thus has not carried her burden to show that a triable issue of material facts exists. The Court finds that Hyatt has "established through undisputed facts that . . . there simply was no vacant position within the employer's organization for which the disabled employee was qualified and which the disabled employee was capable of performing with or without accommodation[.]" Jensen, 85 Cal. App. 4th at 263. See Grantz v. State Farm Mut. Auto. Ins. Co., 420 F. App'x 692, 694 (9th Cir. 2011) ("Grantz has not proffered evidence that a vacant field position existed between October 2007 and his termination in July 2008. His claim that State Farm did not reasonably accommodate his disability by transferring him to a field position during this period therefore fails."). Plaintiff has failed to demonstrate a triable issue of fact as to whether she was qualified to perform the essential functions of a vacant position at the hotel.
b. Extension of Leave
Plaintiff's primary argument is that Hyatt was obligated to accommodate Arevalo by extending her leave. (Opp'n at 8.) "[W]here a leave of absence would reasonably accommodate an employee's disability and permit h[er], upon h[er] return, to perform the essential functions of the job, that employee is otherwise qualified . . . ." Humphrey v. Mem'l Hospitals Ass'n, 239 F.3d 1128, 1135-36 (9th Cir. 2001).
As of August 2011, Arevalo had been on medical leave or modified light duty for a total of eighteen months. For over fifteen of these months, Arevalo was on a leave of absence. An additional leave of absence would only be required if "it is likely that following the leave the employee would be able to perform his or her duties." Hanson v. Lucky Stores, Inc., 74 Cal. App. 4th 215 (1999). Hyatt had no indication from Arevalo or Dr. Abrams when or if Plaintiff would be able to return to her housekeeping duties. In her termination meeting, Plaintiff did not provide any information which could reasonably have led Hyatt to believe her condition was improving. Plaintiff testified that from February 2010 until January 2013, she was not able to bend at the knees, run, or walk or stand for long periods of time. (Arevalo Depo. 71:22-72:3.) Plaintiff also testified that she used a cane from the time of her fall through June 2012. (SUF ¶¶ 63-65; SGI ¶¶ 63-65.) The evidence does not show that Plaintiff's condition was improving such that an additional leave would have made it likely that Plaintiff could return to work. "Reasonable accommodation does not require the employer to wait indefinitely for an employee's medical condition to be corrected." Hanson, 74 Cal. App. 4th at 226-27.
Moreover, "[a]n employer is not required to offer an accommodation that is likely to be futile because, even with accommodation, the employee could not safely and efficiently perform the essential functions of the job. Thus an employer would not be required to provide repeated leaves of absence (or perhaps even a single leave of absence) for an [] employee with a poor prognosis for recovery." Hanson, 74 Cal. App. 4th at 226 (internal quotation and citation omitted). Here, the undisputed evidence demonstrates that an addition leave of absence would have been futile. Plaintiff continued to use a cane to support her weight through June 2012. (SUF ¶¶ 63-65; SGI ¶¶ 63-65.) Dr. Abrams' August 30, 2011 report also stated that as of that date Arevalo was unable to walk or stand for long periods. (Abrams Depo. 36:21-37:5.) Three additional doctors reiterated this restriction subsequent to Arevalo's termination. (Arevalo Depo. 63:1-16.) In fact, the undisputed evidence shows that Arevalo's condition worsened after her termination, such that a leave would not have made it likely Plaintiff would have been able to return to work. Beginning in July 2011, Arevalo began to experience back and neck pain resulting in her inability to lift her left hand or arm for most of 2012. (SUF ¶¶ 72-73; SGI ¶¶ 72-73.) As a matter of law, the undisputed evidence cannot support a finding that Arevalo would have been able to perform the essential functions of a room attendant with the accommodation of an additional leave of absence beyond the fifteen months already provided. See Dep't of Fair Employment & Hous. v. Lucent Technologies, Inc., 642 F.3d 728, 744 (9th Cir. 2011) ("[Defendant] repeatedly considered whether [Plaintiff] could perform the tasks of an installer given his physical restrictions or alternatively be placed in another position, but it determined that he could not. Lucent was not required to do more under California law, such as modifying the installer position or extending the disability period indefinitely."). As such, the Court finds that Plaintiff was not a "qualified individual" for the purposes of the FEHA.
D. Claim Two: FEHA Disability Discrimination
Plaintiff brings her second claim for disability discrimination under Section 12940(a) of FEHA. To prevail on summary judgment for a disability discrimination claim under FEHA, an employer is required to show either that (1) plaintiff could not establish one of the elements of the FEHA claim or (2) there was a legitimate, nondiscriminatory reason for its decision to terminate plaintiff's employment. Dep't of Fair Employment & Hous. v. Lucent Technologies, Inc., 642 F.3d 728, 745 (9th Cir. 2011). Hyatt prevails on both accounts.
To establish a prima facie case for discrimination under the FEHA on grounds of physical disability, Plaintiff has to present evidence showing (1) she suffered from a physical disability within the meaning of the FEHA, (2) she was qualified to perform the essential functions of her position, and (3) she suffered an adverse employment action because of the physical disability. Scotch v. Art Inst. of California-Orange Cnty., Inc., 173 Cal. App. 4th 986, 1006 (2009). The parties agree that Plaintiff suffered from a physical disability due to her knee injury and that she suffered an adverse employment action, namely termination, as a result of her disability. However, as described above, the undisputed facts demonstrate that no reasonable juror could find she was a qualified to perform the essential functions of her position with or without accommodation. As such, Plaintiff has failed to establish one of the necessary elements for her FEHA claim and the Court therefore GRANTS summary judgment as to Plaintiff's second claim for disability discrimination under FEHA.
Even if Plaintiff could prove that she is a "qualified individual" for the purposes of FEHA, Defendant has provided a legitimate, nondiscriminatory reason for her discharge. When Defendant's motion for summary judgment relies on a showing of nondiscriminatory reasons for the discharge,
"the employer satisfies its burden as moving party if it presents evidence of such nondiscriminatory reasons that would permit a trier of fact to find, more likely than not, that they were the basis for the termination. To defeat the motion, the employee then must adduce or point to evidence raising a triable issue, that would permit a trier of fact to find by a preponderance that intentional discrimination occurred."Scotch, 173 Cal. App. 4th 986 at 1005 (internal citation and quotation omitted).
Hyatt has presented evidence of a nondiscriminatory reason for terminating Plaintiff's employment that would permit a trier of fact to find it more likely that the proffered reason was the basis for her discharge. Subsection 12940(a)(1) of FEHA states that an employer has not engaged in disability discrimination if it discharges an employee with a physical disability "where the employee, because of his or her physical or mental disability, is unable to perform his or her essential duties even with reasonable accommodations, or cannot perform those duties in a manner that would not endanger his or her health or safety or the health or safety of others even with reasonable accommodations." Cal. Gov. Code § 12940(a)(1). As described above, Plaintiff is unable to perform her essential duties with or without an accommodation. Hyatt has introduced substantial evidence to show that it is more likely than not that Arevalo's inability to perform her duties was the reason Hyatt discharged her, (see Aguilar Decl. ¶¶ 25, 25), and has thus identified a legitimate non-discriminatory reason for its actions.
The burden shifts to Plaintiff to present evidence that "the employer's 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." Scotch, 173 Cal. App. 4th at 1007 (quotation omitted). "If a plaintiff uses circumstantial evidence to satisfy this burden, such evidence must be specific and substantial." Lucent Technologies, 642 F.3d 728 at 746 (quotation omitted). Plaintiff argues that Hyatt acted with a discriminatory motive because it terminated Plaintiff as part of a "strict adherence to a finite disability leave policy" which mandated termination after fifteen months of leave. (Opp'n at 15.) Plaintiff does not provide specific or substantial evidence of the alleged fixed and rigid leave policy. Plaintiff points to the collective bargaining agreement which, as discussed above, was not in force at the time of Plaintiff's termination. In addition, Plaintiff was terminated after almost sixteen months, not fifteen, which contradicts Plaintiff's argument that Hyatt adhered to a strict fifteen month leave policy. Even if Hyatt did have a policy which entitled employees to a maximum of 15 months of injury leave, such a policy is not per se discrimination, as Plaintiff argues. See Eshaya v. Boeing Co., 118 F. App'x 159, 161 (9th Cir. 2004) (finding that automatic termination resulting from the expiration of medical leave in complaince with the collective bargaining agreement was not necessarily an adverse employment action); cf. Spaziano v. Lucky Stores, Inc., 69 Cal. App. 4th 106, 109 (1999) (holding that a collective bargaining agreement that gives a one-year leave of absence to employees who are disabled by occupational injury and a six-month leave of absence to employees who are disabled by non-occupational was not per se discriminatory). The mere fact that Plaintiff may have a fifteen-month leave policy is insufficient to raise an inference that discriminatory animus prompted Plaintiff's discharge, especially where the undisputed evidence demonstrate Hyatt made an individual assessment of Plaintiff's ability to work at the time of termination. See King v. United Parcel Serv., Inc., 152 Cal. App. 4th 426, 436 (2007). "Rather, 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." Lucent Technologies, Inc., 642 F.3d 728 at 746. Plaintiff has failed to do so.
The Court notes that it is possible that the same or a similar collective bargaining agreement was in effect at the time of Plaintiff's termination. However, the Court cannot assume, and Plaintiff has provided no evidence to show, what the terms of the agreement were during the relevant time period.
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Similarly, Plaintiff argues that Hyatt had a "policy requiring employees' bodies be 100% able to work, and that Plaintiff was terminated because 9% of her body was not working." (Opp'n at 11.) Plaintiff fails to point to specific and substantial information substantiating the existence of this policy. Moreover, any evidence of a requirement that employees be 100 percent able to work does not establish pretext because the undisputed facts demonstrate that Hyatt continually individually assessed Arevalo's ability to perform the essential functions of her position by reviewing her work status reports, the requirements of the room attendant position, and potential reassignment to another position. See Lucent Technologies, 642 F.3d 728 at 747 (rejecting plaintiffs' argument that defendant "has a one-hundred percent healed policy and that this raises a genuine issue of material fact as to pretext . . . because here the undisputed facts demonstrate that Lucent attempted to accommodate him by continually assessing him on an individual basis").
For the aforementioned reasons, Plaintiff has failed to raise a genuine issue of material fact as to pretext or discriminatory animus to overcome Hyatt's showing that it terminated Plaintiff for a non-discriminatory, legitimate reason. Accordingly, the Court GRANTS summary judgment on Plaintiff's second claim for relief on this basis.
E. Claim Three: FEHA Reasonable Accommodation
In her third cause of action, Plaintiff alleges Hyatt breached its duty to provide her a reasonable accommodation in violation of Section 12940(m) of FEHA. The elements of a failure to accommodate claim are (1) the plaintiff has a disability under the FEHA, (2) the plaintiff is qualified to perform the essential functions of the position, and (3) the employer failed to reasonably accommodate the plaintiff's disability. Scotch, 173 Cal. App. 4th at 1009-10.
As discussed above, Plaintiff has failed to raise a triable issue of fact as to whether she could perform a room attendant's essential functions. Hyatt has carried its burden of demonstrating that there is an absence of evidence to support as essential element of Plaintiff's reasonable accommodation claims, and the Court GRANTS summary judgment as to Plaintiff's third claim for relief.
F. Claim Four: FEHA Retaliation
Under Sectin 12940(h), an employer may not discriminate against any person because "the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part." Cal. Gov. Code § 12940(h). "To establish a prima facie case of retaliation under the FEHA, a plaintiff must show (1) he or she engaged in a protected activity, (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer's action." Scotch, 173 Cal. App. 4th at 1020 (internal quotation omitted).
Plaintiff provides no evidence to support any of the elements of her claim for retaliation. She conclusorily states that at the time of her termination, she "was engaged in the protected activity of seeking return to her former position and returning from disability leave." (Opp'n at 17.) Assuming this is a protected activity, Plaintiff has produced no evidence to establish the third element of the claim - that there is a causal link between her termination and her attempt to return from medical leave. "To show the requisite causal link, the plaintiff must present evidence sufficient to raise the inference that her protected activity was the likely reason for the adverse action." Washington v. California City Correction Ctr., 871 F. Supp. 2d 1010, 1028 (E.D. Cal. 2012) (quotation omitted). Defendant has sufficiently shown that Plaintiff does not have enough evidence of a causal link between her alleged protected activity and her subsequent termination to carry her ultimate burden of persuasion at trial. Accordingly, the Court GRANTS summary judgment on the fourth claim for retaliation.
G. Claim Five: Wrongful Termination in Violation of Public Policy
The fifth claim for relief alleges Hyatt terminated Arevalo in violation of public policy. In California, an "employer may not discharge an at will employee for a reason that violates fundamental public policy. This exception is enforced through tort law by permitting the discharged employee to assert against the employer a cause of action for wrongful discharge in violation of fundamental public policy." Stevenson v. Superior Court, 16 Cal.4th 880, 887 (1997). FEHA's prohibition against disability discrimination may form the basis of a wrongful discharge in violation of public policy claim. See City of Moorpark v. Superior Court, 18 Cal.4th 1143, 1159-61 (1998). However, where a plaintiff's FEHA claim fails, a claim of wrongful discharge in violation of the public policy expressed in FEHA also fails. De Horney v. Bank of America Nat'l Trust & Sav. Assoc., 879 F.2d 459, 465 (9th Cir. 1989); Esberg v. Union Oil Co., 28 Cal.4th 262, 272 (2002). Here, because Plaintiff's FEHA discrimination claim has failed, her claim for wrongful discharge in violation of public policy also necessarily fails. Defendant is entitled to summary judgment on this claim. See Holtzclaw v. Certainteed Corp., 795 F. Supp. 2d 996, 1021 (E.D. Cal. 2011).
H. Claim One: Breach of an Covenant of Good Faith and Fair Dealing
It appears from Plaintiff's opposition to the Motion that she has abandoned her first claim for relief. She presents no argument or facts supporting the existence of any element of a breach of a covenant of good faith and fair dealing in her opposition. See Shakur v. Schriro, 514 F.3d 878, 892 (9th Cir. 2008) (citing Jenkins v. Cnty. of Riverside, 398 F.3d 1093, 1095 n.4 (9th Cir. 2005) (finding that plaintiff abandoned "two claims by not raising them in opposition to the County's motion for summary judgment"). The failure of Plaintiff to offer any argument or evidence in opposition to Hyatt's Motion on this claim constitutes abandonment of the claim, and summary judgment is properly entered in Hyatt's favor with respect to Plaintiff's first claim for relief. See Deirmenjian v. Deutsche Bank, A.G., CV 06-00774, 2010 WL 3034060, at *7 (C.D. Cal. July 30, 2010).
IV. CONCLUSION
For the foregoing reasons, the Court GRANTS Defendant's motion for summary judgment on all five of Plaintiff's claims for relief.
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Jesus G. Bernal
United States District Judge