Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 06CC06965, Gregory H. Lewis, Judge.
Bononi Law Group, Michael J. Bononi, Nicole K. Brooks and Vincent Calderone for Plaintiff and Appellant.
Hodel Briggs Winter LLP, Glenn L. Briggs and Theresa A. Kading for Defendants and Respondents.
OPINION
IKOLA, J.
In plaintiff John Hayes’s employment discrimination action against defendants Home Loan Center, Inc., his former employer (Employer), and Alejandro Haro, an employee of Employer, the court granted summary judgment in favor of defendants. Plaintiff contends the court’s grant of summary judgment was erroneous because there were triable issues of fact as to whether Employer (1) terminated him based on his physical disability or medical condition and (2) failed to reasonably accommodate his disability or medical condition. We disagree and affirm the judgment.
FACTS
Viewing the evidence most favorably to plaintiff(Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar)), we recite facts stated or undisputed by plaintiff in his deposition, declaration, separate statement of material facts and opposition to defendants’ separate statement of material facts. Plaintiff suffers from polycystic kidney disease, a disease “which causes him to develop kidney stones.” Employer hired him as a recruiter, a position requiring him to “locate[] and contact[] potential candidates (over the internet), conduct[] initial interviews (over the phone and in-person), and coordinate[] final interviews between the potential employee and the specific hiring group.”
Plaintiff’s first day of work was July 25, 2005. About seven and a half weeks later, on September 13, plaintiff experienced “‘excruciating’ pain in his abdomen” and did not work the rest of the week. “Over the weekend [he passed] two kidney stones” and “returned to work the following Monday.” But the next day the pain returned and plaintiff could not work the rest of the week. “Despite ‘intense’ and ‘unbearable’ pain and bleeding, [plaintiff] returned to work” the next Monday. By Friday, September 30, plaintiff’s doctor had referred him to a specialist; plaintiff was unable to work that day. Plaintiff “was unable to sit, stand, lie down, drive, talk, sleep, and urinate without experiencing severe pain and discomfort.” On Monday, October 3, upon the discovery of blood in his urine, plaintiff “was rushed to the emergency room.” His doctor signed him “out of work for the rest of the week.” The following Monday, October 10, he was diagnosed with a large kidney stone and was unable to work that week. A CT scan revealed plaintiff had two large kidney stones. Plaintiff and his wife asked his supervisors on at least two occasions “if he could work at home while he recovered,” but the supervisors did not grant him that authority. On October 17, plaintiff’s doctor certified the “probable duration” of plaintiff’s condition would last through October 31. By then, plaintiff had worked no days in October as he could “hardly sit up” and “couldn’t concentrate on anything.”
Unless otherwise stated, all dates refer to the year 2005.
On October 19, plaintiff’s supervisor phoned and advised him “he was being terminated.” On October 20, plaintiff’s supervisor sent him a letter stating: “‘Unfortunately, we are unable to accommodate your request of this additional leave. As such the purpose of this letter is to inform you of the Company’s decision to terminate your employment effective Wednesday, October 19, 2005. The Company is not able to grant you a leave of absence at this time.’” Employer advised plaintiff he could reapply for employment when he was released to return to work.
Plaintiff was originally scheduled for surgery on November 7, but the surgery was postponed due to his atrial fibrillation. He underwent surgery to remove two kidney stones on November 17. “During this . . . October/November time frame,” until his surgery on November 17, plaintiff suffered from “24-hour constant,” “severe,” “excruciating” pain that caused him to “cradle” himself and lose sleep. “Through November” a stent remained inside him. In December he suffered from fibrillation with an “erratic,” “high” heart rate and continued to receive state disability payments. In December plaintiff decided to move to Colorado because of his in-laws’ plan to relocate there and the state’s lower cost of living. His doctor “released [plaintiff] to go back to work on January 2, 2006,” but plaintiff did not notify Employer of his release. Instead, he found a job at a different recruiting company where he worked from January 19, 2006 to February 1, 2006. He left that job when his “wife accepted employment in Colorado.”
In a complaint filed in June 2006 and amended in July 2006, plaintiff sued Employer and Haro for unlawful discrimination based on disability and medical condition, failure to reasonably accommodate physical disability, failure to engage in the interactive process, retaliation and wrongful termination in violation of public policy.
In June 2007, defendants moved for summary judgment, arguing (1) plaintiff could not establish a prima facie case of discrimination because he had not performed his job adequately, (2) there was no evidence Employer’s decision makers knew plaintiff suffered from a qualifying disability, (3) plaintiff was offered reasonable accommodations and “was not a qualified individual because he [could not] perform the essential functions of his position even after reasonable accommodations were granted,” (4) the undisputed facts showed they engaged in the interactive process, and (5) there was no evidence defendant Haro’s actions were retaliatory.
The court granted the summary judgment motion, finding defendants “established a legitimate, non-discriminatory reason for [p]laintiff[’]s termination,” and plaintiff had “not raised an inference of discrimination.”
In a footnote in his reply brief, plaintiff observes that an appellate court must allow the parties to supplementally brief any grounds relied on by a reviewing court to affirm a summary judgment ruling if the trial court did not rely on those grounds. (Civ. Code, § 437c, subd. (m)(2).) But Plaintiff does not specify which issues should be supplementally briefed in this case. The only issues he conceivably mentions in this regard are whether he was unable to perform his essential duties for purposes of his discrimination causes of action and whether Employer failed to reasonably accommodate him. “We do not believe that supplemental briefing is required in this case since [these issues were] raised below and ha[ve] already been briefed on appeal.” (Byars v. SCME Mortgage Bankers, Inc. (2003) 109 Cal.App.4th 1134, 1147.)
DISCUSSION
General Legal Principles Governing Summary Judgment
The purpose of summary judgment is to avoid a trial when factfinding is unnecessary to resolve a dispute. (See Aguilar, supra, 25 Cal.4th at p. 843; Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 162.) The first step of any summary judgment analysis — whether applied by a trial court in ruling on a summary judgment motion or by an appellate court reviewing a lower court’s summary judgment ruling — is to “identify the issues framed by the pleadings.” (Torres v. Reardon (1992) 3 Cal.App.4th 831, 836 .) In the case of a moving defendant, the court must then determine whether the movant has met its “burden of persuasion that ‘one or more elements of’ the ‘cause of action’ in question ‘cannot be established,’ or that ‘there is a complete defense’ thereto.” (Aguilar, supra, 25 Cal.4th at p. 850.) The moving defendant “bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.” (Ibid.) A material fact is “any fact that is necessary under the pleadings and, ultimately, the law.” (Id. at p. 843.) The court must view the evidence and inferences “in the light most favorable to the opposing party” (ibid.), and liberally construe the opposing party’s affidavits while strictly construing those of the moving party. (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 838.) An appellate court reviews “the trial court’s decision de novo” (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476), exercising “its independent judgment as to the legal effect of the undisputed facts disclosed by the parties’ papers.” (Torres v. Reardon, supra, 3 Cal.App.4th at p. 836.)
The Court Properly Granted Defendants’ Summary Judgment Motion on Plaintiff’s Claims for Unlawful Discrimination and Failure to Reasonably Accommodate
We begin by identifying the issues framed by plaintiff’s first, second, and third causes of action. In the first and second causes of action of the complaint, plaintiff alleged Employer unlawfully discriminated against him by terminating him due to his physical disability and medical condition, respectively. In the third cause of action, plaintiff alleged Employer failed to reasonably accommodate his physical disability and medical condition. In all three causes of action, plaintiff alleged Employer’s actions violated Government Code section 12940 et seq. (section 12940).
Under section 12940, subdivision (a), an employer may not discharge an employee because of the employee’s physical disability or medical condition. The statute, however, provides an important exception to this prohibition: An employer may discharge an employee whose physical disability or medical condition causes the employee (1) to be “unable to perform his or her essential duties even with reasonable accommodations,” or (2) to be unable to “perform those duties in a manner that would not endanger the employee’s health . . . even with reasonable accommodations.” (§ 12940, subds. (a)(1) & (2).)
The plaintiff employee in a section 12940 action bears “the burden of proving he or she was able to do the job, with or without reasonable accommodation.” (Green v. State of California (2007) 42 Cal.4th 254, 262.) But as Aguilar explained, a defendant who moves for summary judgment or adjudication on this underlying material fact bears the “initial burden of production to make a prima facie showing” that the plaintiff cannot establish he or she had the requisite ability to do the job. (Aguilar, supra, 25 Cal.4th at p. 850.) If the defendant does so, the burden of production shifts to the plaintiff to make a prima facie showing he or she had the necessary ability. (Id. at p. 851.) Ultimately, the defendant, to succeed on the motion with respect to this underlying material fact, “must present evidence that would require a reasonable trier of fact not to find” the plaintiff was able to do the job, with or without reasonable accommodation. (Ibid.)
In their summary judgment motion, defendants essentially argued plaintiff failed to perform his essential duties even with reasonable accommodation and therefore could not prevail in his section 12940 action. Specifically, defendants contended plaintiff could not establish a prima facie case of discrimination because he could not “prove he was performing his job adequately.” Plaintiff phrases this a different way and argues Employer fired him “because he was not ‘medically capable’ of working . . . .”
On appeal defendants employ a different nomenclature for this same concept, using a phrase derived from the federal disability statute and arguing plaintiff was not a “‘qualified individual with a disability . . . .’” (Green v. State of California, supra, 42 Cal.4th at p. 261.) Focusing on semantics, plaintiff contends defendants cannot raise the “‘qualified individual’” issue for the first time on appeal. But, as our Supreme Court has explained, a “‘qualified individual’” is an employee who “‘can perform the essential functions’” of the job “‘with or without reasonable accommodation.’” (Ibid.) Thus, defendants’ failure to use the phrase “‘qualified individual’” in their summary judgment motion with respect to counts one and two is of no moment. Defendants did expressly use that terminology in their summary judgment motion with respect to plaintiff’s third count regarding reasonable accommodation and also in oral argument on the motion. Plaintiff himself was well aware of this issue as he argued in his opposition to the motion that he “was qualified to perform his job with an accommodation.”
Thus, the issue framed by the first through third causes of action was whether plaintiff could perform his essential job duties with or without reasonable accommodation. On this issue, we conclude (1) defendants made a prima facie showing plaintiff was unable to perform his essential duties even with reasonable accommodation, and (2) in response, plaintiff failed to demonstrate a triable issue of material fact. A fair reading of the evidence offered in support of defendants’ separate statement of undisputed facts, and plaintiff’s evidence offered in response, shows the following undisputed facts: Plaintiff was hired as a recruiter in order to address a backlog in open positions. Employer believed plaintiff would be able to play a significant role in reducing the backlog of positions. In July plaintiff filled no positions; in August he filled five positions while two other employees filled 30 and 16 positions, respectively; in September he filled one position while two other employees filled 29 and 15 positions, respectively; in October he did not work at all and filled no positions. Starting on September 13, although plaintiff was still in his probationary period, Employer accommodated his absences from work on September 13 through 16, September 20 through 25, September 30, and October 3 through 17 and also allowed him to attend doctor’s appointments during business hours. On October 17, 2005, Employer received a report from plaintiff’s doctor indicating that plaintiff would be unable to work until at least October 31. Employer terminated plaintiff’s employment because it did not believe it could accommodate a further leave of absence, but informed him he could apply for employment at Employer as soon as he was released to work. Employer was “concerned about the burden being placed on [plaintiff’s] teammates.”
Collectively, these undisputed facts show Employer terminated plaintiff because he was unable to perform his essential duties even though Employer had reasonably accommodated him.
But plaintiff contends “there is overwhelming evidence [he] would have been able to perform the essential functions of his job had he been given an accommodation of a finite medical leave of absence until he recovered from his kidney surgery.” His argument here is twofold. First, he argues he testified “he could have returned to work towards the end of October 2005.” But the undisputed evidence shows plaintiff could not have returned to work on October 31 due to severe chronic pain. And Employer, after granting plaintiff four leaves of absence, was not obliged to allow a fifth leave based on his doctor’s statement the “probable duration” of his condition would last through October 31, where there was no basis to believe his condition would improve by then. “‘Reasonable accommodation does not require the employer to wait indefinitely for an employee’s medical condition to be corrected. . . .’” (Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 226-227.)
In a footnote, plaintiff contends his doctors unanimously testified “he could have returned to work on or before November 1.” Not so. His surgeon testified he (the surgeon) never evaluated whether plaintiff could return to work, and in any event, he would have left the decision up to plaintiff’s judgment depending on his pain symptoms. The doctor who treated plaintiff for atrial fibrillation testified whether plaintiff could engage in physical activity “would depend on his pain level at the time.” Finally, plaintiff’s treating doctor certified the probable duration of plaintiff’s medical condition would last through October 31, but this certification followed previous medical releases for plaintiff to resume work on two separate dates in September.
Alternatively, plaintiff stresses he was released to return to work on January 2, 2006. He contends an issue of fact exists as to whether a four month leave of absence is a reasonable accommodation. But plaintiff does not contend he ever requested medical leave extending past October 31, nor do we find any such evidence in the record. Accordingly, our analysis is limited to information in the possession of Employer at the time it made its decision to terminate plaintiff. At that time, even plaintiff did not “have an answer . . . how long [he] was going to be out.” Only with 20-20 hindsight can plaintiff claim he needed a four month leave of absence, as opposed to an indefinite one.
Plaintiff acknowledges he did not qualify for medical leave under the Family Medical Leave Act (29 U.S.C. § 2601 et seq.) or the California Family Rights Act (Gov. Code § 12945.2 et seq.), which both require a qualified employee to have worked for an employer for at least 12 months and, during the previous year, at least 1,250 hours of service. (29 U.S.C. § 2611, subd. (2)(A); Gov. Code § 12945.2, subd. (a).)
In sum, plaintiff was unable to meet his burden of proof under section 12940 to establish he was able to do the job, with or without reasonable accommodation. (Green v. State of California, supra, 42 Cal.4th at p. 260.) As a result, had the case proceeded to trial with this evidence, Employer would have been entitled to a nonsuit on plaintiff’s first through third causes of action. (Code Civ. Proc., § 581c; Mejia v. Community Hospital of San Bernardino (2002) 99 Cal.App.4th 1448, 1458.) Accordingly, the court properly granted summary judgment in Employer’s favor on plaintiff’s unlawful discrimination and failure to accommodate causes of action.
Subdivision (m) of section 12940 requires an employer “to make reasonable accommodation for the known physical . . . disability of an . . . employee.” But subdivision (m) contains a qualifier: “Nothing in this subdivision or in paragraph (1) or (2) of subdivision (a) shall be construed to require an accommodation that is demonstrated by the employer . . . to produce undue hardship to its operation.” Plaintiff argues Employer never alleged undue hardship as an affirmative defense, “nor submitted any evidence that providing the requested [leave] would have imposed an ‘undue hardship’ on [Employer.]” In fact, Employer did submit evidence of undue hardship. The declarations of Employer’s recruiting manager and its recruiting supervisor state Employer “could not keep [plaintiff’s] position open any longer” because (1) Employer “had a high deficit in its hiring needs”; (2) “the inability to fill positions . . . could have a negative impact on [Employer’s] business”; (3) a “burden [was] being placed on [his] teammates”; and (4) these teammates might consider “quitting because of the burden being placed on them.” In any case, section 12940, subdivision (m) does not require an employer to show undue hardship in order to prove it reasonably accommodated an employee’s disability, but rather permits an employer to demonstrate an undue burden if applicable. The cases cited by plaintiff do not state otherwise.
The Court Properly Granted Defendants’ Summary Judgment Motion on Plaintiff’s Claim for Failure to Engage in the Interactive Process
Plaintiff contends Employer violated section 12940, subdivision (n), which requires an employer to “engage in a timely, good faith, interactive process with the employee . . . to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee . . . with a known physical . . . disability or known medical condition.” (Italics added.) Plaintiff notes Employer terminated him on October 19 without communicating with him “except to tell him he was being fired.” But plaintiff ignores Employer’s previous engagements in the interactive process when it granted his earlier requests for accommodations. And even on October 19, Employer advised plaintiff he was eligible for rehire. As discussed above, plaintiff’s October 17 request for an indefinite leave of absence was unreasonable. Subdivision (n) of section 12940 requires an employer to engage in the interactive process only “in response to a request for reasonable accommodation by an employee . . . .”
The Court Properly Granted Defendants’ Summary Judgment Motion on Plaintiff’s Retaliation Claim
Plaintiff contends the court improperly granted summary judgment against him on his retaliation claim against Employer and Haro. Under section 12940, subdivision (h), it is unlawful for an employer to discharge a 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.” “To establish a prima facie case of retaliation, the plaintiff must show he or she engaged in a ‘protected activity,’ the employer subjected the employee to an adverse employment action, and a causal link existed between the protected activity and the employer’s action.” (McRae v. Department of Corrections and Rehabilitation (2006) 142 Cal.App.4th 377, 386.) “The elements of a [section 12940, subdivision (h) claim] require that (1) the plaintiff establish a prima facie case of retaliation, (2) the defendant articulate a legitimate nonretaliatory explanation for its acts, and (3) the plaintiff show that the defendant’s proffered explanation is merely a pretext for the illegal termination.” (Flait v. North American Watch Corp. (1992) 3 Cal.App.4th 467, 476.)
In their summary judgment motion, defendants argued plaintiff’s retaliation claim failed as a matter of law because defendants “had a nondiscriminatory reason for terminating” his employment. Defendants submitted evidence regarding its backlog in requisitions, the medical leaves plaintiff was granted, the resulting burden on his teammates, and the absence of discriminatory animus, and argued plaintiff could not meet his burden of showing this business reason was a pretext. Thus, defendants met their burden to “articulate a legitimate nonretaliatory explanation for [their] acts,” shifting the burden to plaintiff to show this proffered explanation was a pretext. (Flait v. North American Watch Corp., supra, 3 Cal.App.4th at p. 476.) But in his opposition below to defendants’ summary judgment motion, plaintiff did not argue or submit any evidence that defendants’ proffered explanation was a mere pretext. Nor does he argue on appeal that defendants’ stated reason was pretextual, even though defendants discuss and plaintiff recognizes the burden-shifting analysis applicable to a retaliation claim under Flait v. North American Watch Corp., supra, 3 Cal.App.4th 467 and McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 802-805. The ball was in plaintiff’s court, but he failed to meet his burden, both here and below, to demonstrate that defendants’ legitimate, nonretaliatory reason was a mere pretext. The court properly granted summary judgment in defendants’ favor on plaintiff’s retaliation claim.
Because we conclude summary judgment in favor of both defendants was proper on this cause of action, we need not consider defendants’ contention Haro cannot be held individually liable for retaliation.
The Court Properly Granted Defendants’ Summary Judgment Motion on Plaintiff’s Claim for Wrongful Termination in Violation of Public Policy
Plaintiff’s sixth and final cause of action was for wrongful termination in violation of the public policy expressed in section 12940. As explained above, defendants did not violate section 12940. Therefore the court properly granted summary judgment in defendants’ favor on plaintiff’s public policy claim.
The Court Did Not Abuse Its Discretion by Considering Evidence Outside Defendants’ Separate Statement of Undisputed Facts
Relying on the “Golden Rule of Summary Adjudication” (that facts not set forth in the separate statement “do not exist”), plaintiff contends the court abused its discretion by considering “facts not referenced in the Separate Statement.” At the hearing on defendants’ summary judgment motion, the court stated it had exercised its discretion under San Diego Watercrafts, Inc. v. Wells Fargo Bank (2002)102 Cal.App.4th 308 to consider plaintiff’s treating doctor’s reports attached to the motion. In San Diego Watercrafts, a different panel of this court held that “[w]hether to consider evidence not referenced in the moving party’s separate statement rests with the sound discretion of the trial court.” (Id. at p. 316.) Here, the court based its ruling predominantly on facts referenced in the separate statement. It did not abuse its discretion.
DISPOSITION
The judgment is affirmed. Defendants shall recover their costs on appeal.
WE CONCUR: RYLAARSDAM, ACTING P. J., ARONSON, J.
Although plaintiff refers to his requests to work at home, he does not raise this as an issue supported by argument and authority. We therefore treat it as waived. (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785.)