Opinion
For Michael Lehane, Plaintiff: Pavithra Menon, LEAD ATTORNEY, Geoffrey C Lyon, Jessica Shiffman, Lyon Law PC, Long Beach, CA.
For Boeing Company, The, Defendant: Andrew Keith Haeffele, Daniel F Fears, Payne and Fears LLP, Irvine, CA.
ORDER Re: PENDING MOTION
Fernando M. Olguin, United States District Judge.
Having reviewed and considered all the briefing papers filed with respect to defendant The Boeing Co.'s (" Boeing" or " defendant") Motion for Summary Judgment (" Joint Br." or " Motion"), the court concludes that oral argument is not necessary and orders as follows. See Fed.R.Civ.P. 78; Willis v. Pac. Mar. Ass'n, 244 F.3d 675, 684 n. 2 (9th Cir. 2001).
INTRODUCTION
On August 21, 2012, plaintiff Michael Lehane (" Lehane" or " plaintiff") filed a Complaint in Los Angeles County Superior Court against defendant asserting six employment-related claims under the California Fair Employment and Housing Act (" FEHA"), Cal. Govt. Code § § 12900, et seq., and one state law tort claim for wrongful termination in violation of public policy. (See Notice of Removal (" NOR"), Exhibit (" Exh.") A (" Complaint") at ¶ ¶ 28-60). Defendant removed the action to this court on September 21, 2012. (See NOR).
Unless otherwise indicated, all section references are to the California Government Code.
SUMMARY OF FACTS
Unless otherwise noted, the following facts are undisputed:
To the extent this Order relies on parts of plaintiff's deposition testimony to which plaintiff objects, (see Joint Br. at 28-29), those objections are overruled.
Plaintiff was employed as a mechanic by Boeing or its predecessor from September 1979 until July 31, 2012. (See Complaint at ¶ 10). Like all employees at Boeing, (see Defendant's and Plaintiff's Exhibits in Support of the Parties' Joint Motion for Summary Judgment or, in the Alternative, Partial Summary Judgment (" Evid. App."), Exh. C, Declaration of Nancy Miller in Support of Defendant The Boeing Company's Motion for Summary Judgment, or in the Alternative, Partial Summary Judgment (" Miller Decl.") at 13), plaintiff was required to abide by Boeing's policies pertaining to taking a leave of absence. (See id. at 13-25 (" Leave of Absence Policy")). Boeing's Leave of Absence Policy allowed employees to use intermittent absences or reduce their regular work hours for treatment provided by a health care provider. (See Leave of Absence Policy at 24).
From 2006 to 2010 plaintiff requested, and received without incident, intermittent medical leave allowing him to leave a half hour early twice a week for medical appointments. (See Evid. App., Exh. G, Declaration of David F. Fears, Esq. in Support of Defendant The Boeing Company's Motion for Summary Judgment, or in the Alternative, Partial Summary Judgment (" Fears Decl.") at 404-05 & 409). Beginning in 2010, plaintiff was required to provide updated paperwork to continue to take his leave. (See Lehane Depo. at 529) (Q: " [A]t some point in 2010 you were advised that in order to continue to take a half-hour to an hour off each week to go make your appointments, you had to provide updated paperwork to authorize that; correct?" A: " Yes."). After being advised of the missing documentation, plaintiff submitted the necessary paperwork and his leave was approved. (See id. at 409-10) (Q: " So she[, Human Resources (" HR") representative, Sharon Glass, ] indicated that she didn't have anything . . . on file regarding the FMLA intermittent leave that you were taking of that half-hour or hour per week; correct?" A: " Right." Q: " Did you refile FMLA paperwork indicating that you were going to be taking that half-hour or hour per week?" A: " I did." . . . Q: " [D]id your need or request for half-hour or an hour per week to visit your doctor or therapist, did that get okayed?" A: " Yes, it was approved.").
Pages 393 through 446 of the Fears Decl. and pages 503 through 595 of the Declaration of Pavithra Menon in Support of Plaintiff's Opposition to Defendant's Motion for Summary Judgment or Adjudication (" Menon Decl.") are excerpts of plaintiff's deposition and will be referred to as the " Lehane Depo." (See Evid. App. at Exh. N).
As defendant points out, the record does not support that plaintiff requested " additional" medical leave. Rather, the record indicates that plaintiff had an informal agreement with his previous manager in which plaintiff was allowed to clock out early to attend his weekly medical appointments. (See Reply at 4 n. 3; see also Lehane Depo. at 529) (" I was informed in 2010 that [the medical leave] had to be renewed; and so basically that had become a new routine for me.").
In early 2012, plaintiff's request for leave was denied. (See Evid. App., Exh. O, Declaration of Michael Lehane (With Supporting Exhibits) in Support of Plaintiff's Opposition to Defendant's Motion for Summary Judgment (" Lehane Decl.") at 724). Dan Arnold (" Arnold"), plaintiff's direct supervisor, approached plaintiff regarding certain unapproved absences. (See Lehane Depo. at 416). Arnold had received notifications of plaintiff's attendance discrepancies from Boeing's automated attendance program. (See Evid. App., Exh. A, Declaration of Daniel Arnold in Support of Defendant The Boeing Company's Motion for Summary Judgment, or in the Alternative, Partial Summary Judgment at ¶ ¶ 7-10). Arnold told plaintiff that Boeing's records indicated that plaintiff's leave approval had expired without being renewed. (See Lehane Depo. at 414) (" I believe [Arnold] made mention that my FMLA that I had submitted in late December had not been approved, and that was probably about . . . early/mid January[.]"); (see also id. at 530-31) (Q: " How did [the attendance issue] come to your attention? . . . A: " [H]e [Arnold] basically came up and just started yacking at me about how my attendance was compromised."). Plaintiff indicated that he would reach out to Aetna (" Aetna"), defendant's third-party leave administrator, (see Joint Br. at 4), to inquire about the problem. (See Lehane Depo. at 416). When plaintiff spoke with Aetna, the Aetna representative told plaintiff that his request for leave had been denied due to non-receipt of medical certification. (See Lehane Decl. at 726; see, e.g., Lehane Depo. at 536) (Q: " [A]t the time that [Arnold] approached you about the FMLA leave, it sounds like your approval had either lapsed or not yet been granted for the new period; correct?" A: " I believe that may have been what happened, yes.").
Defendant utilized an " Attendance Management System" to track and manage employee attendance. (See Miller Decl. at ¶ 11). The system flagged unusual attendance patterns related to failing to clock out, arriving late, leaving early, and unexcused absences. (See id.). If any employee is flagged for an unusual attendance pattern, the system automatically sends an email notification to the employee's direct supervisor who is required to issue a written attendance warning. (See id. at ¶ 12).
Plaintiff did not seek review of the January 2012 denial of leave through Boeing's administrative grievance process due to his " abject laziness[.]" (Lehane Depo. at 549; see id. at 548-49). In either May or June of 2012, plaintiff sought assistance directly from defendant's HR department. (See id. at 419-20). The HR representatives, who plaintiff considered to have been " very, very helpful, " (id. at 419), communicated directly with Aetna to help resolve the issues with plaintiff's leave approval. (See id. at 419-20). Plaintiff's request for leave was approved but the approval did not retroactively adjust for the time plaintiff took off before his leave request was approved and, therefore, plaintiff's attendance record reflected the unapproved time as half-day absences. (See id. at 552-53). Plaintiff did not take any steps to have those half-day absences credited back to his attendance record. (See id. at 554) (Q: " Did you ever file a grievance or take any steps to see if those dates could be restored because they had been or should have been approved by Aetna?" . . . A: " I did not.").
The January 2012 denial was the only time plaintiff's request for leave for his medical appointments was not honored by defendant. (See Lehane Depo. at 422). Throughout this time, from January 2012 through the spring of 2012, Arnold and members of Boeing's HR department contacted Aetna to help resolve issues with plaintiff's leave approval. (See Lehane Decl. at 717 & 725-31).
Also around this time, plaintiff had various unrelated confrontations with his supervisors and colleagues related to interpersonal issues. (See, e.g., Lehane Decl. at 712, 715 & 764). As a result of these interpersonal problems in the workplace and the attendance variations, plaintiff was given a number of corrective action memos, formal written warnings, (see Joint Br. at 3-4), and required to meet with Boeing's HR department. (See, e.g., Evid. App., Exh. E, Declaration of Andrew K. Haeffele, Esq. in Support of Defendant The Boeing Company's Motion for Summary Judgment, or in the Alternative, Partial Summary Judgment (" Haeffele Decl.") at 178; Fears Decl. at 362; Evid. App., Exh. D, Declaration of Barbara Krubski in Support of Defendant The Boeing Company's Motion for Summary Judgment, or in the Alternative, Partial Summary Judgment (" Krubski Decl.") at 35-38). During at least two of plaintiff's meetings with HR, HR personnel requested that security be present. (See Fears Decl. at 363; Menon Decl. at 628).
On May 29, 2012, Dr. Mark Andre Bock (" Dr. Bock"), plaintiff's personal psychologist, sent a letter to defendant, (see Haeffele Decl. at 177) (the " May 29th Letter"), which " advised [defendant] that Mr. Mike Lehane [was] under [his] care for a psychological condition and has been directed to remove himself physically from any and all unsafe and/or highly stressful situations." (Id.). After receiving this letter, Boeing asked plaintiff to meet with a doctor from its Health Services clinic. (See Evid. App., Exh. F, Declaration of Dr. David Socol in Support of Defendant The Boeing Company's Motion for Summary Judgment, or in the Alternative, Partial Summary Judgment (" Socol Decl.") at 215).
On June 6, 2012, plaintiff met with Dr. David Socol (" Dr. Socol"), a physician contracted by Boeing's Health Services. (See Socol Decl. at ¶ ¶ 1 & 3; id. at 215). Dr. Socol " asked [plaintiff] to broach the subject matter behind the May 29th letter, which [plaintiff] initially declined to do." (Id. at 215). Plaintiff eventually told Dr. Socol that he had " a series of disciplinary interviews where 'no failure of work or actions' was at the core of the discussion, but 'for reasons of vanity and unbridled arrogance, ' he was being chided for his interpersonal skills." (Id.). Plaintiff also told Dr. Socol that " 'sarcasm is [plaintiff's] weapon of choice, which makes [him] appear condescending with a lack of respect for some people, '" (id. at 215-16), and that his refusal to " 'snivel, grovel or heel[, ]'" (id. at 216), causes him problems with management. (See id.). Plaintiff revealed during this meeting that he has anger management issues and post-traumatic stress disorder (" PTSD"). (See id.).
Prior to his conversation with plaintiff, Dr. Socol contacted plaintiff's personal physician, Dr. Bock, to discuss the May 29th Letter. (See Socol Decl. at ¶ ¶ 8-10; id. at 216). " The purpose of the discussion with Dr. Bock was to understand how to move forward with [plaintiff], " (Fears Decl., 265, at 37:15-17) " to translate [the May 29th Letter] into a context that [could] be put into practice or advocated for through the reasonable accommodation" process. (Id. at 54:9-11). During this conversation, however, Dr. Bock refused to even acknowledge he had any sort of clinical relationship with plaintiff. (See Socol Decl. at 216). Given " this particular situation, [Dr. Socol] didn't have a practical set of instructions" to form " a platform for human resources for the reasonable accommodation focal to communicate with the senior manager and the manager on the floor in terms of what [was] being requested[.]" (Socol Depo. at 37:2-6).
Pages 229 to 342 of the Fears Decl. and pages 596 through 618 of the Menlo Decl. are excerpts of Dr. Socol's deposition and will be referred to as " Socol Depo."
After meeting with plaintiff and speaking with Dr. Bock, Dr. Socol concluded that it was necessary to place plaintiff on non-occupational leave until Dr. Socol could get clarification on Dr. Bock's suggested accommodation for plaintiff. (See Fears Decl. at 449). In Dr. Socol's opinion, the ambiguity in Dr. Bock's recommendation in the May 29th Letter and defendant's " general inability to exclude [plaintiff] from 'highly stressful situations, ' which at [that] time seem[ed] to be any interaction with management and/or superiors[, ]" (id.), were at odds and required further discussion. (See id.).
Subsequently, Dr. Socol arranged to meet telephonically with both Dr. Bock and plaintiff. (See Socol Decl. at 216 & 219). On June 11, 2012, before the telephonic meeting could take place, plaintiff cautioned Dr. Socol that Dr. Bock was only authorized " 'to advise [Dr. Socol] that [plaintiff was] being treated for stress. If [defendant] want[ed] to know more, ' [defendant] essentially ha[d] to subpoena that record." (Id. at ¶ 14; id. at 219). Dr. Socol indicated that he needed clarification with respect to the May 29th Letter. (See id. at 219). Plaintiff stated that he " 'believe[d] [he was] intelligent enough to explain that letter. That letter simply tells [defendant] due to being treated for stress, if [plaintiff is] entering into a stressful situation, with constant harassment and intimidation from management and their representatives, [plaintiff] can excuse [him]self.'" (Id.). Dr. Socol concluded his meeting with plaintiff, advising him " that the requests underpinning [plaintiff's] letter [could] not be implemented in the workplace[, ]" (id.), and consequently plaintiff would be put on non-occupational leave in the care of Dr. Bock until such time as a workable solution could be discussed. (See id. at 220).
On July 25, 2012 -- while plaintiff was on approved leave for another medical issue -- plaintiff submitted paperwork to retire from Boeing. (See Socol Decl. at 223-24; Joint Br. at 24). Plaintiff's retirement was effectuated in August 2012. (See Joint Br. at 28).
LEGAL STANDARD
Rule 56(a) of the Federal Rules of Civil Procedure authorizes the granting of summary judgment " if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." The standard for granting a motion for summary judgment is essentially the same as for granting a directed verdict. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). Judgment must be entered " if, under the governing law, there can be but one reasonable conclusion as to the verdict." Id.
The moving party has the initial burden of identifying relevant portions of the record that demonstrate the absence of a fact or facts necessary for one or more essential elements of each cause of action upon which the moving party seeks judgment. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). If the moving party fails to carry its initial burden of production, " the nonmoving party has no obligation to produce anything." Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Cos., Inc., 210 F.3d 1099, 1102-03 (9th Cir. 2000).
If the moving party has sustained its burden, the burden then shifts to the nonmovant to identify specific facts, drawn from materials in the file, that demonstrate that there is a dispute as to material facts on the elements that the moving party has contested. See Celotex, 477 U.S. at 324, 106 S.Ct. at 2553; Anderson, 477 U.S. at 256, 106 S.Ct. at 2514 (A party opposing a properly supported motion for summary judgment " must set forth specific facts showing that there is a genuine issue for trial."). A factual dispute is material only if it affects the outcome of the litigation and requires a trial to resolve the parties' differing versions of the truth. See SEC v. Seaboard Corp., 677 F.2d 1301, 1305-06 (9th Cir. 1982). Summary judgment must be granted for the moving party if the nonmoving party " fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322, 106 S.Ct. at 2552; see also Anderson, 477 U.S. at 252, 106 S.Ct. at 2512 (parties bear the same substantive burden of proof as would apply at a trial on the merits).
" In determining any motion for summary judgment, the Court will assume that the material facts as claimed and adequately supported by the moving party are admitted to exist without controversy except to the extent that such material facts are (a) included in the 'Statement of Genuine Issues' and (b) controverted by declaration or other written evidence filed in opposition to the motion." Local Rule 56-3.
In determining whether a triable issue of material fact exists, the evidence must be considered in the light most favorable to the nonmoving party. See Barlow v. Ground, 943 F.2d 1132, 1134 (9th Cir. 1991), cert. denied, 505 U.S. 1206, 112 S.Ct. 2995, 120 L.Ed.2d 872 (1992). However, summary judgment cannot be avoided by relying solely on " conclusory allegations [in] an affidavit." Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888, 110 S.Ct. 3177, 3188, 111 L.Ed.2d 695 (1990); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986) (more than a " metaphysical doubt" is required to establish a genuine issue of material fact). " The mere existence of a scintilla of evidence in support of the plaintiff's position" is insufficient to survive summary judgment; " there must be evidence on which the [fact finder] could reasonably find for the plaintiff." Anderson, 477 U.S. at 252, 106 S.Ct. at 2512.
With this standard in mind, the court now turns to the arguments raised by defendant's Motion.
DISCUSSION
I. DISABILITY DISCRIMINATION (FIRST CAUSE OF ACTION) AND MEDICAL LEAVE DISCRIMINATION (FOURTH CAUSE OF ACTION)
FEHA makes it an unlawful employment practice " [f]or an employer, because of the . . . physical disability [or] mental disability . . . of any person, . . . to bar or to discharge the person from employment . . . or to discriminate against the person in compensation or in terms, conditions, or privileges of employment." Cal. Gov. Code § 12940(a).
" Because of the similarity between state and federal employment discrimination laws, California courts look to pertinent federal precedent when applying [California's] statutes." Guz v. Bechtel Nat'l, Inc. 24 Cal.4th 317, 354, 100 Cal.Rptr.2d 352, 8 P.3d 1089 (2000).
To establish a prima facie case of disability discrimination under FEHA, a plaintiff must establish that: (1) he is disabled within the statutory definition; (2) he was otherwise qualified to perform the essential job functions; and (3) he was subjected to an adverse employment action because of his disability. See Guz, 24 Cal.4th at 355; Faust v. California Portland Cement Co., 150 Cal.App.4th 864, 886, 58 Cal.Rptr.3d 729 (2007); Furtado v. State Personnel Board, 212 Cal.App.4th 729, 744, 151 Cal.Rptr.3d 292 (2013). Similarly, to establish a prima facie case for medical leave discrimination, a plaintiff must put forth evidence that shows that: (1) he is eligible to take leave; (2) exercised his right to take leave; and (3) suffered an adverse employment action because of his exercise of the right to take leave. See Dudley, 90 Cal.App.4th at 261.
The second prong requires a plaintiff to show he could perform the " essential job duties" of the employment position with or without accommodation. See Cal. Gov. Code § 12940(a)(1) (" [FEHA] does not prohibit an employer from refusing to hire or discharging an employee with a physical or mental 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."); Green v. State of Cal., 42 Cal.4th 254, 262, 64 Cal.Rptr.3d 390, 165 P.3d 118 (2007) (" [I]n order to establish that a defendant employer has discriminated on the basis of disability in violation of the FEHA, the plaintiff employee bears the burden of proving he or she was able to do the job, with or without reasonable accommodation.").
Because the third prong of the prima facie case for medical leave discrimination and disability discrimination require the existence of an adverse action, compare Dudley v. Dept. of Transp., 90 Cal.App.4th 255, 261, 108 Cal.Rptr.2d 739 (2001) with Guz, 24 Cal.4th at 355, the absence of an adverse action -- as is the case here -- defeats both claims.
Once the plaintiff establishes a prima facie case for discrimination, " the burden shifts to the defendant to [articulate a] legitimate nondiscriminatory reason for its employment decision. . . . This [ ] is not an onerous burden and is generally met by presenting admissible evidence showing the defendant's reason for its employment decision[.]" Wills v. Superior Court, 195 Cal.App.4th 143, 160, 125 Cal.Rptr.3d 1 (2011) (internal quotation marks and citations omitted); see Mills v. Lynwood Unified Sch. Dist., 2009 WL 2460789, *3 (C.D. Cal. 2009) (" The plaintiff's prima facie burden is not onerous, but the plaintiff must at least show actions taken by the employer from which one can infer, if such actions remain unexplained, that it is more likely than not that such actions were based on [discriminatory intent.]") (internal quotation marks omitted). " Finally, if the defendant presents evidence showing a legitimate, nondiscriminatory reason, the burden again shifts to the plaintiff to establish the defendant intentionally discriminated against him or her. The plaintiff may satisfy this burden by proving the legitimate reasons offered by the defendant were false, creating an inference that those reasons served as a pretext for discrimination." Wills, 195 Cal.App.4th at 160 (citation omitted); see Knight v. Hayward Unified Sch. Dist., 132 Cal.App.4th 121, 129, 33 Cal.Rptr.3d 287 (2005).
" [A] plaintiff cannot defeat summary judgment simply by making out a prima facie case." Wallis v. J.R. Simplot Co., 26 F.3d 885, 890 (9th Cir.1994) (internal quotation marks omitted). Rather, the plaintiff must produce " specific, substantial evidence of pretext." Id. (internal quotation marks omitted). Further, " in those cases where the prima facie case consists of no more than the minimum necessary to create a presumption of discrimination under McDonnell Douglas, plaintiff has failed to raise a triable issue of fact." Id.
Defendant's Motion does not challenge whether plaintiff Is disabled or whether he could perform the essential job duties of his position. (See, generally, Joint Br.). Instead, defendant challenges plaintiff's contention that he was eligible for medical leave (the first prong of the prima facie case for medical leave discrimination), ( see id. at 15-18), and that he suffered adverse employment actions to substantiate either of plaintiff's causes of action for disability or medical leave discrimination (the third prong of both prima facie tests). ( See id. ).
A. Whether Plaintiff Was Eligible For Medical Leave.
Though plaintiff claims that he was unlawfully denied approved intermittent medical leave, (see Joint Br. at 18), the overwhelming evidence -- and plaintiff's own testimony -- leaves no doubt that was not the case.
It is unclear why plaintiff references " CFRA" and " FMLA" in discussing plaintiff's leave. (See, e.g. Joint Br. at 18). Plaintiff asserts claims for disability discrimination and denial of medical leave under FEHA; the operative complaint does not set forth a claim under either the CFRA or FMLA. (See, generally, Complaint at ¶ ¶ 28-60). In any event, the court will simply refer to denial of leave throughout the Order.
Boeing's procedures governing leaves of absence, (see Leave of Absence Policy at 13-25), specifically require employees to " provide a signed medical certification form if leave is needed[.]" (Id. at 24; see Fears Decl. at 459) (" The Boeing Company requires you [the employee] to provide medical certification for your excused absences."). The medical certification requires periodic renewal. (See Lehane Depo. at 528-29).
Plaintiff's testimony reveals that the one-time denial of approved leave was the result of an improperly filed or insufficient medical certification. (See Lehane Depo. at 422) (Q: " Other than this period of time from January of 2012 through March [] of 2012, . . . was there ever any time in which your request to be accommodated to make medical appointments was not honored by The Boeing Company?" A: " No."); (id. at 536) (Q: " [A]t the time that [Arnold] approached you about the FMLA leave, it sounds like your approval had either lapsed or not yet been granted for the new period; correct?" A: " I believe that may have been what happened, yes."). Aetna's records regarding plaintiff's January 2012 claim for leave state that plaintiff's claim lacked proper medical certification and was untimely. (See Lehane Decl. at 725; see also Lehane Depo. at 418) (Q: " Did they say what the problem was with the medical certification?" A: " They just told me it was invalid."). Plaintiff does not point to any evidence in the record that rebuts defendant's claim that plaintiff had not been approved for leave for this period, (see, generally, Joint Br. at 18-19), nor any evidence that plaintiff was denied leave despite proper medical certification. (See, generally, id.). On the contrary, the undisputed evidence shows that when plaintiff called Aetna about the January 2012, denial of leave, plaintiff was told that the denial was a result of the deficiencies in his leave request. (See Lehane Decl. at 725).
Further, the record reveals that plaintiff neglected -- due to his " abject laziness" -- to pursue his denied leave request claim, even after he learned of the deficiencies in his leave request. (See Lehane Depo. at 549; see also id. at 554) (when asked if he attempted to inquire about or reclaim vacation days potentially lost as a result of the leave denial, plaintiff stated that he " thought about it" but ultimately never did). Meanwhile, both plaintiff's direct supervisor, Arnold, and Boeing's HR department, reached out to Aetna in early 2012 seeking to resolve -- on plaintiff's behalf -- the denial of plaintiff's leave request. (See id. at 419-20; Lehane Decl. at 727 & 729-30). Instead of evincing maleficent intent, the evidence makes clear that Arnold and Boeing's HR department were concerned that the denial could cause plaintiff to receive a corrective action memo. (See Lehane Decl. at 717 & 718) (" Please let [HR] know . . . if there is anything that you can do to help [ ] since corrective action is being considered.").
The problems with plaintiff's request for medical leave were eventually remedied when defendant's HR department interceded on plaintiff's behalf. (See Lehane Depo. at 419-20). Plaintiff does not cite to any evidence contradicting the record that plaintiff failed to properly request medical leave and that he was thus ineligible for leave or that defendant continued to deny him leave after the deficiencies were corrected. (See, generally, Joint Br. at 18-19).
B. Whether Plaintiff Suffered Any Adverse Employment Actions.
The Ninth Circuit " take[s] an expansive view of the types of actions that can be considered adverse employment actions" such that " a wide array of disadvantageous changes in the workplace [can] constitute adverse employment actions." Ray v. Henderson, 217 F.3d 1234, 1240-41 (9th Cir. 2000). Adverse employment actions are not necessarily limited to ultimate decisions, e.g., hiring, firing, or promotion, but may also include intermediate retaliatory actions. See Akers v. Cnty. of San Diego, 95 Cal.App.4th 1441, 1455, 116 Cal.Rptr.2d 602 (2002). It is ultimately whether the employee's " terms, conditions, or privileges of employment[, ]" Yanowitz v. L'Oreal USA, Inc., 36 Cal.4th 1028, 1054-55, 32 Cal.Rptr.3d 436, 116 P.3d 1123 (2005), were affected which determines whether the employee suffered an adverse employment action.
Plaintiff asserts -- in an attempt to raise a genuine issue of material with respect to the third prong of his claims for disability and medical leave discrimination -- that he was denied accommodations for his condition, (see Joint Br. at 18-19), suffered undeserved criticism, ( see id. ), and was constructively terminated. ( See id. at 25-28). None of plaintiff's assertions are sufficient to raise a genuine issue of material fact..
1. Denial of Accommodations .
Plaintiff claims that he was unlawfully denied accommodations for his mental and physical disabilities. (See Joint Br. at 19). Specifically, plaintiff alleges that his disabilities required " reduced stress, reduced confrontation, and reduced work hours." (Id.).
As discussed above, see supra at § I.A., plaintiff was not eligible for reduced work hours since he did not properly request medical leave. Similarly, plaintiff's request for accommodations in the form of " reduced stress [and] reduced confrontation, " (Joint Br. at 19), was untenable and did not constitute an adverse employment action. See infra at § III.
2. Undeserved Criticism .
Plaintiff next contends that Arnold's attendance warnings and reminders of plaintiff's expiring medical certification as well as criticisms of plaintiff's behavior were undeserved criticisms amounting to adverse employment actions. (See Joint Br. 21-23).
Although " an undeserved negative performance review can constitute an adverse employment decision[, ]" Brooks v. City of San Mateo, 229 F.3d 917, 929 (9th Cir. 2000), a " bruised [ ] ego" is not enough. See Flaherty v. Gas Research Inst., 31 F.3d 451, 457 (7th Cir. 1994). " [A]n employer's action [must] rise to the level of tangible harm [in order to] separate[ ] significant from trivial harms." Ramadan v. City of Napa, 2007 WL 1655624, *4 (N.D. Cal. 2007).
The evidence proffered by both parties leaves no doubt that the criticisms plaintiff received were neither undeserved, nor did they negatively impact the terms, conditions, or privileges of plaintiff's employment. See Yanowitz, 36 Cal.4th at 1054-55. To begin with, many of the criticisms plaintiff takes issue with pertain to the attendance discrepancies resulting from plaintiff's failure to submit adequate documentation for his requested medical leave request. (See Joint Br. at 19-23; Lehane Depo. at 530-31) (Q: " How did [the attendance issue] come to your attention? . . . A: " [Arnold] basically came up and just started yacking at me about how my attendance was compromised."); (see also Lehane Depo. at 558) (" [T]here's a lot more to this harassment than just attendance. However, primarily, the attendance and discrimination for taking time off is my primary purpose."). Although plaintiff states that " [c]riticism of [plaintiff] regarding his attendance and attitude escalated when Lehane required additional medical leave[, ]" plaintiff does not put forth any evidence to support his contention. (See, generally, Joint Br. at 21-23; Evid. App.). In fact, none of plaintiff's cited evidence even infers that the criticisms were undeserved or caused by something other than plaintiff's inconsistent attendance. (See, generally, Joint Br. at 21-23); see Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. 2001) (The court " need not examine the entire file for evidence establishing a genuine issue of fact, where the evidence is not set forth in the opposing papers with adequate references so that it could conveniently be found."). Plaintiff even acknowledges that " if [Arnold] had a legitimate reason to check on [plaintiff's attendance], because the computer information he was getting suggested that [plaintiff's] leave wasn't approved, then [plaintiff] wouldn't regard that as harassing or badgering[.]" (Lehane Depo. at 425-26). The evidence, including plaintiff's testimony, makes clear that the criticisms plaintiff received regarding his attendance did not rise to the level of becoming an adverse employment action. See Delacruz v. Tripler Army Med., 507 F.Supp.2d 1117, 1124 (D. Haw. 2007) (refusing to find an adverse employment action where " [p]laintiff admitted to making the mistakes that led to several of the verbal or written counselings"); (see also Lehane Depo. at 427) (Q: " You wouldn't blame them [defendant] for asking you about [taking unapproved time off], would you?" A: " No, I wouldn't.").
Similarly, the evidence surrounding critiques of plaintiff's behavior -- again including plaintiff's testimony -- does not indicate that the criticisms were related to plaintiff taking protected leave. (See, e.g., Lehane Decl. at 712 & 715). Plaintiff had a history of disruptive behavior and contentious relations with his supervisors. (See, e.g., Krubski Decl. at 35-38) (corrective action memos issued to plaintiff for, among other things, " using an inappropriate term[, ]" and failing " to comply with the request[s] of management to cease [his] disre[s]pectful outbursts"). In his meeting with Dr. Socol, plaintiff stated that " 'sarcasm is [plaintiff's] weapon of choice, which makes [plaintiff] appear condescending with a lack of respect for some people[.]'" (Socol Decl. at 215-16; see also Haeffele Decl. at 70) (Arnold deposition testimony) (" The altercations that would occur with Mr. Lehane was [sic] on a regular weekly basis. He had a problem with, in my opinion, authority, as he was very aggressive and disruptive, rude, disrespectful, any time that a person with authority came to question him, talk to him or challenge him. . . . he would be . . . making snide remarks, disruptive, rude, by using inappropriate language[.]").
Nevertheless, whether pertaining to plaintiff's attendance or his behavior, the corrective action memos or " reprimands did not affect the terms or conditions of plaintiff's employment[, ]" Helgeson v. Am. Int'l Grp., Inc., 44 F.Supp.2d 1091, 1099 (S.D. Cal. 1999), and plaintiff has not put forth any evidence that they did. (See, generally, Joint Br. at 21-23). Indeed, plaintiff was unaware if there had been any consequences as a result of the corrective action memos. (See Lehane Depo. at 413) (Q: " To the best of your recollection, did that write-up get reversed or stayed or cause any negative ramification for you?" A: " I don't remember what happened to it."); (id.) (Q: " [D]o you know one way or another whether or not [the write-up] ever counted as discipline for you?" A: " I don't know."). Such criticisms, without more, cannot be said to have been either undeserved or have affected the terms, conditions, or privileges of plaintiff's employment. See Yanowitz, 36 Cal.4th at 1054-55.
3. Constructive Discharge .
Next, plaintiff claims that defendant forced him to retire by virtue of its harassment and intimidation. (See Joint Br. at 25-28; Lehane Depo. at 428). Constructive discharge, if proven, can constitute an adverse employment action. See Jordan v. Clark, 847 F.2d 1368, 1377 n. 10 (9th Cir. 1988), cert. denied, 488 U.S. 1006, 109 S.Ct. 786, 102 L.Ed.2d 778. " Constructive discharge occurs when the working conditions deteriorate, as a result of discrimination, to the point that they become sufficiently extraordinary and egregious to overcome the normal motivation of a competent, diligent, and reasonable employee to remain on the job to earn a livelihood and to serve his or her employer." Killingsworth v. State Farm Mut. Auto. Ins. Co., 2005 WL 2450109, *13 (D. Ariz. 2005), aff'd, 254 F.App'x 634 (9th Cir. 2007) (internal quotation marks omitted). " Unfair and intolerable employer conduct is thus the touchstone to constructive discharge[.]" Id. at *14. An employee must show that his conditions of employment were objectively intolerable, not that his employer intended to force him to resign. See Lawson v. Washington, 296 F.3d 799, 805 (9th Cir. 2002). Thus, constructive discharge hinges on whether " looking at the totality of circumstances, a reasonable person in the employee's position would have felt that he was forced to quit because of intolerable and discriminatory working conditions." Watson v. Nationwide Ins. Co., 823 F.2d 360, 361 (9th Cir. 1987) (internal quotation marks and alterations omitted). This " determination [of] whether conditions were so intolerable and discriminatory as to justify a reasonable employee's decision to resign is normally a factual question left to the trier of fact." Id. at 361.
In attempting to establish his constructive discharge claim, plaintiff points to the incident surrounding Dr. Bock's May 29th Letter " [i]n combination with the pattern of discrimination Lehane had already experienced, " as worsening " his anxiety and PTSD . . . to the point [where plaintiff] was forced to quit[.]" (Joint Br. at 28). The " pattern of discrimination" upon which plaintiff bases his constructive termination claim are the attendance warnings he received. (See id. at 25-28). Defendant, however, has put forth undisputed evidence that the warnings about plaintiff's attendance discrepancies were within the standard policy and practice of the company. (See Leave of Absence Policy at 23). Further, plaintiff concedes that such warnings did not amount to harassment or badgering. (See Lehane Depo. at 426-27; see also id. at 527) (" Well, maybe 'threat' is possibly a strong word. [Sharon Glass] did intimate that there could be disciplinary action if I didn't get the [attendance] problem solved[.]"). In short, defendant's " inherently reasonable investigation and action in response to repeated . . . [attendance notifications] cannot support a finding that plaintiff was 'forced to quit.'" Killingsworth, 2005 WL 2450109, at *14 (citing Schnidrig v. Columbia Machine, Inc., 80 F.3d 1406, 1411 (9th Cir.1996)).
Plaintiff also asserts that " [i]n an effort to force [him] to quit, management brought in armed security guards when meeting with [plaintiff, ]" which defendant " anticipated" would " aggravate [plaintiff's] PTSD symptoms[.]" (Joint Br. at 22). As a result of the escalating stress caused by defendant's actions, plaintiff claims that he had a " mental breakdown." (See id. at 27). None of plaintiff's cited evidence, however, supports these allegations. (See, e.g., Menon Decl. at 610 & 666-69; see, generally, Joint Br.); see Carmen, 237 F.3d at 1031. The evidence is undisputed that defendant was unaware of plaintiff's alleged PTSD before Dr. Socol met with plaintiff in June 2012. (See Socol Decl. at ¶ ¶ 12-13). Additionally, there is no evidence that indicates that plaintiff felt threatened or unnerved by the presence of security guards. (See, generally, Joint Br.). In fact, during a confrontation with one of his supervisors plaintiff warned the supervisor that he (the supervisor) would need security if he wanted to take plaintiff to HR. (See Declaration of Dave C. Marendino in Support of Defendant The Boeing Company's Motion for Summary Judgment, or in the Alternative, Partial Summary Judgment at 465).
Boeing is a Department of Defense contractor. (See Defendant The Boeing Company's Reply in Support of Motion for Summary Judgment or, in the Alternative, Partial Summary Judgment (" Reply") at 6 n. 5). It is a secured facility used to build military aircraft and is protected by armed guards. (See id.). Given plaintiff's decades of service at Boeing, he would have been exposed to security personnel on a daily basis throughout his employment. (See id.).
Whatever " distress . . . [and] subjective personal discomfort [plaintiff might have experienced] . . . was most likely not the product of any action by [defendant.]" Killingsworth, 2005 WL 2450109, at *14 (citation omitted). Plaintiff has failed to put forth any evidence of " sufficiently extraordinary and egregious [working conditions as] to overcome the normal motivation of a competent, diligent, and reasonable employee to remain on the job to earn a livelihood and to serve his or her employer." Borges v. U.S. Bank, 2014 WL 530283, *10 (E.D. Cal. 2014) (internal quotation marks omitted). Although " a single isolated incident is insufficient as a matter of law to support a finding of constructive discharge[, ]" Schnidrig, 80 F.3d at 1411, plaintiff was unable to identify even one such incident. (See, generally, Joint Br.; see Lehane Depo. at 430-31) (Q: " [A]re you aware of any specific action that Mr. Arnold took to allegedly try to force you to retire?" A: " I don't know of any exactly.") (Q: " Can you think of any specific acts that you view as harassment and intimidation, designed to force you to retire?" A: " I can't recall."). In fact, plaintiff stated that he " [did not] remember anything designed to force [him] to retire." (Lehane Depo. at 433; see id. at 434) (" I have no proof, either written or verbal" " to believe anyone at the company was trying to terminate [my] employment[.]"). In short, even " perceiving the evidence in the light most favorable to the plaintiff[, ] the court cannot see how a reasonable trier of fact could find that [plaintiff] was driven from the workplace[.]" Killingsworth, 2005 WL 2450109, at *13 (internal quotation marks omitted).
C. Legitimate Non-Discriminatory Reasons.
" Because Plaintiff did not establish a prima facie case of discrimination, the burden does not shift to Defendant to articulate a legitimate non-discriminatory reason for its employment decision." Lewallen v. Home Depot USA, Inc., 2013 WL 1729006, *5 (D. Ariz. 2013). However, even assuming, arguendo, that plaintiff had put forth evidence to raise a genuine issue of material fact with respect to the adverse employment action prong of the prima facie case, defendant has met its burden to provide a legitimate, non-discriminatory reason for its adverse employment action.
In response to plaintiff's allegations, defendant has offered several non-discriminatory reasons for each alleged act of discrimination. (See Joint Br. at 29-30). " To survive summary judgment, [plaintiff] must adduce evidence that defendants acted with discriminatory animus, or that their proffered explanation is unworthy of credence." Medina v. Multaler, Inc., 547 F.Supp.2d 1099, 1130 (C.D. Cal. 2007) (internal quotation marks omitted). Plaintiff does not really attempt to dispute defendant's legitimate, non-discriminatory reasons but instead puts forth an abbreviated version of the argument he asserts with respect to pretext. (Compare Joint Br. at 30-31 with id. at 31-33). Because plaintiff's meager and unsupported recitation of the facts failed to establish a prima facie case of either medical leave or disability discrimination, see supra at § § I.A. & B., the court will not engage in a prolonged analysis of defendant's non-discriminatory justifications for each of plaintiff's alleged adverse employment actions.
1. Denial of Accommodations .
As part of their medical leave and attendance policy, all Boeing employees were required to submit certification paperwork from their healthcare providers every six months to Aetna, a third party administrator. (See Leave of Absence Policy at 23; Fears Decl., at ¶ 10 & 459). An employee would receive a notice from Aetna that their certification was about to expire and that new certification paperwork was required towards the end of the six month time period. (See Menon Decl. at 670; Fears Decl. at ¶ 10 & 459). As discussed below, see infra at § III., plaintiff's broad and undefined request to be removed from stressful situations or confrontations, (see Joint Br. at 18-19), was unreasonable, and defendant did not fail to accommodate plaintiff's request to accommodate his disability where the accommodation request was ambiguous and plaintiff did not participate in the interactive process in a good faith effort to ascertain the necessary and possible accommodations. See infra at § III.
2. Attendance Warnings .
When an employee submitted a request for leave or when there were any changes to the employee's medical leave status, Aetna would inform the employee's immediate supervisor. (See Menon Decl. at 670). The supervisor would then advise the employee of the status. (See id. at 662). Plaintiff has conceded that such warnings pertaining to attendance and denial of benefits were a legitimate part of a supervisor's role. (See Lehane Depo. at 426-27); see also supra at § I.A.
D. Pretext.
Plaintiff's burden to counter defendant's explanations " is not high. He must only show that a rational trier of fact could, on all the evidence, find that [defendant]'s explanation was pretextual and that therefore its action was taken for impermissibly discriminatory reasons. If he does so, then summary judgment for [defendant] is inappropriate." Pottenger v. Potlatch Corp., 329 F.3d 740, 746 (9th Cir. 2003). However, " when evidence to refute the defendant's legitimate explanation is totally lacking, summary judgment is appropriate even though [the] plaintiff may have established a minimal prima facie case[.]" Wallis, 26 F.3d at 890-91.
A plaintiff can rebut a defendant's proffered non-discriminatory justification in two ways: " (1) indirectly, by showing that the employer's proffered explanation is unworthy of credence because it is internally inconsistent or otherwise not believable, or (2) directly, by showing that unlawful discrimination more likely motivated the employer." Lindsey v. SLT Los Angeles, LLC, 447 F.3d 1138, 1148 (9th Cir. 2006) (internal quotation marks omitted).
Here, not only has plaintiff failed to establish a prima facie case of either disability or medical leave discrimination, see supra at § § I.A. & B., but plaintiff has failed to put forth evidence to refute defendant's stated justifications. (See, generally, Joint Br. 31-33; Evid. App.). Instead, plaintiff perfunctorily states that " [t]he fact that [defendant] has systemized employment warnings for those taking medical leave is a pretext for discrimination[, ]" (Joint Br. at 32), without elaborating as to how or why systematized employment warnings might be pretextual. (See, generally, id. at 31-33). Nor does plaintiff support his assertion that the attendance warnings were beyond what was allowed by Boeing's Leave of Absence Policy or that the warnings constituted discrimination of any kind. ( See, generally, id.; see also Leave of Absence Policy at 23) (" In the event that the absences are not excused as FMLA, the employee's organization may take corrective action for unexcused absences, up to and including discharge[.]"). In short, plaintiff has not put forth any tenable argument to refute defendant's stated non-discriminatory justifications.
In deciding whether such evidence exists, courts have looked to a number of factors such as temporal proximity of the protected activity to the adverse employment action, see Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1065 (9th Cir. 2002), the identity of the person making the decision, see Flait v. N. Am. Watch Corp., 3 Cal.App.4th 467, 479, 4 Cal.Rptr.2d 522 (1992) (finding that the plaintiff had raised a triable issue regarding pretext where he was fired four months after protesting employer's offensive sexual remarks and that employer was the sole person charged with terminating employment), the terminated employee's job performance before termination, see id., and how the plaintiff was treated in comparison to other workers. See Colarossi v. Coty U.S. Inc., 97 Cal.App.4th 1142, 1153, 119 Cal.Rptr.2d 131 (2002) (finding pretext where plaintiff, despite wrongdoing, was terminated " on the heels" of plaintiff's participation in a protected activity and where other wrongdoing employees had received probation for misconduct instead of termination).
Also, it is worth noting that the individuals plaintiff identifies as having discriminated against him, Arnold and Susan Glass, (see Lehane Depo. at 422), did not have authority to approve or deny medical leave. (See Haeffele Decl. at 66-67 & 197).
Where " [defendant]'s showing of reasons was made by competent and admissible evidence . . . [and] the reasons advanced were legally sufficient to establish that [plaintiff]'s . . . cause[s] of action ha[ve] no merit [ ] because they [are] manifestly unrelated to intentional [disability] bias against [plaintiff, ]" Guz, 24 Cal.4th at 360 (internal citations omitted), conclusory assertions to refute such evidence are insufficient to defeat summary judgment. See Holtzclaw v. Certainteed Corp., 795 F.Supp.2d 996, 1014 (E.D. Cal. 2011) (" Plaintiff fails to meet his burden because he has not produced substantial, specific evidence of pretext. Defendant's explanation is in fact worthy of credence."). Under the circumstances, the court finds that defendant has satisfied its burden and put forth legitimate non-discriminatory reasons for the alleged adverse employment actions, and plaintiff has failed to offer any basis for believing defendant's reasons were a pretext for discrimination or retaliation. See infra at § IV.
II. IMPROPER INQUIRY INTO DISABILITY (THIRD CAUSE OF ACTION).
Plaintiff next contends that " [d]efendant made medical or psychological inquiries" that were " despicable and not to be tolerated by civilized society[.]" (See Complaint at ¶ ¶ 40 & 42). Section 12940(f)(1) prohibits an employer from making any medical or psychological inquiry of an employee as to whether an employee has a mental disability, physical disability, or medical condition, or from making any inquiry regarding the nature or severity of a physical, mental, or medical disability. See Cal. Gov't Code § 12940(f)(1). This protection is not limitless. FEHA does allow an employer to require any examination or make any inquiry that the employer can show to be job related and consistent with business necessity. See id. at § 12940(f)(2).
Whether an inquiry can properly be construed as a business necessity is typically a factual inquiry. See Fredenburg v. Contra Costa Cty. Dept. of Health Servs, 172 F.3d 1176, 1182 (9th Cir. 1999) (finding that whether inquiry was " job-related[ ] [or a] business necessity, . . . are both factual determinations[.]"). The employer must show that " the examination or inquiry genuinely serves the asserted business necessity and that the request is no broader or more intrusive than necessary." Conroy v. New York State Dept. of Correctional Servs., 333 F.3d 88, 98 (2d Cir. 2003) (cited favorably in Brownfield v. City of Yakima, 612 F.3d 1140, 1146 (9th Cir. 2010)).
Despite plaintiff's contentions, plaintiff does not identify a single question by Dr. Socol that plaintiff believes rose to the level of an improper inquiry. (See, generally, Joint Br.; see id. at 35). Nor does plaintiff provide any legal support as to why defendant's inquiries violated § 12940(f). (See, generally, id. at 35). Even generously construed, plaintiff's only argument seems to be that defendant could have taken alternative actions. ( See id. ) (" Instead of simply asking [plaintiff] to have Dr. Bock clarify the 'work restriction, ' [defendant] immediately ordered Lehane to its own doctor[.]"). However, an " employer need not show that the examination or inquiry is the only way of achieving a business necessity, but [that] the examination or inquiry must be a reasonably effective method of achieving the employer's goal." Conroy, 333 F.3d at 98.
Arguing that Dr. Socol's inquiries were " reasonably effective method[s] of achieving [defendant's] goal[, ]" Conroy, 333 F.3d at 98, defendant states that the " sole purpose for the inquiry was to understand the meaning of [Dr. Bock's] letter -- and was focused on understanding the restrictions and attempting to accommodate them." (Joint Br. at 34) (emphasis omitted). Defendant points to plaintiff's own admission that an inquiry to obtain " more information from Dr. Bock regarding the nature of [the] restriction . . . [is] [n]ot generally unreasonable[.]" (Id.). There is nothing in the record to support the contention that Dr. Socol's inquiries were for the purpose of acquiring information about plaintiff's disability or that his inquiries went beyond that which was required to develop appropriate accommodations for plaintiff's condition. ( See, generally, id.; see also U.S. E.E.O.C. v. Dillard's Inc., 2012 WL 440887, *9-10 (S.D. Cal. 2012) (finding an attendance policy " requir[ing] an employee to disclose the nature of the absence (such as migraine, high blood pressure, etc. . . .) and the condition being treated" to be an impermissible disability-related inquiry under federal law) (emphasis added) (internal quotation marks omitted).
Even assuming Dr. Socol's inquiries were impermissible disability-related inquiries -- which they were not -- defendant's need to resolve plaintiff's unapproved attendance variations could nevertheless have justified such inquiries. See Scott v. Napolitano, 717 F.Supp.2d 1071, 1083 (S.D. Cal. 2010) (finding otherwise impermissible disability-related inquiries legally permissible where " [b]usiness necessities . . . [to] curb[ ] egregious absenteeism" were shown).
III. REASONABLE ACCOMMODATION (SECOND CAUSE OF ACTION).
Plaintiff also claims that defendant failed to accommodate plaintiff's medical leave requests and request to remove himself from all stressful situations. (See Joint Br. 38-40). FEHA imposes on an employer the obligation to make reasonable accommodations for an employee's disability. See Cal. Gov't Code § § 12940; 12940(m) (" It is an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations . . . [f]or an employer . . . to fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee."). The question of reasonable accommodation is ordinarily a question of fact. See Wong v. Regents of the Univ. of Cal., 192 F.3d 807, 818 (9th Cir. 1999) (" Because the issue of reasonableness depends on the individual circumstances of each case, this determination requires a fact-specific, individualized analysis of the disabled individual's circumstances[.]"). " When a claim is brought for failure to reasonably accommodate the claimant's disability, the trial court's ultimate obligation is to isolate the cause of the breakdown . . . and then assign responsibility so that liability for failure to provide reasonable accommodations ensues only where the employer bears responsibility for the breakdown." Yeager v. Corr. Corp. of Am., 944 F.Supp.2d 913, 919 (E.D. Cal. 2013) (internal quotation marks omitted).
In constructing a reasonable accommodation, the parties must engage in an interactive process. See Cal. Gov't Code § 12940(n). " [T]he interactive process is a mandatory rather than a permissive obligation on the part of the employers[.]" Barnett v. U.S. Air, Inc., 228 F.3d 1105, 1114 (9th Cir. 2000) (en banc), vacated on other grounds by U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 122 S.Ct. 1516, 152 L.Ed.2d 589 (2002) (evaluating employers' responsibilities under the ADA). In order to fulfill this requirement, the process must have (1) direct communication between the employer and employee to explore in good faith the possible accommodations; (2) consideration of the employee's requested accommodation; and (3) proposal of an accommodation that is reasonable and effective. See Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1089 (9th Cir. 2002). " Liability for failure to provide reasonable accommodations ensues only where the employer bears responsibility for the breakdown in the interactive process." Id. (internal quotation marks omitted).
Defendant has put forth evidence that it engaged in the requisite interactive process with respect to plaintiff's requests for accommodation. As discussed above, plaintiff did not properly request medical leave accommodation, and once plaintiff did seek such an accommodation through defendant's interactive process, his request was accommodated. See supra at § I.A.1. Consequently, plaintiff's claim that defendant failed to accommodate his medical leave request fails.
With respect to plaintiff's failure to accommodate claim, plaintiff contends that defendant " jumped at the opportunity to terminate communications with [plaintiff] and his doctor, and remove [plaintiff] from the workplace[, ]" (Joint Br. at 40-41), and that it was defendant who failed to engage in an interactive process. ( See id. ). There is no evidence to support any of plaintiff's contentions.
Crucial to the reasonable accommodation determination is an interactive process by which both the employer and the employee must make reasonable efforts and exercise good faith. See Barnett, 228 F.3d at 1114. Upon receiving the May 29th Letter, defendant met with plaintiff, (see Socol Decl. at 215), sought but was denied clarifying information from plaintiff's medical provider as to how to implement the stated accommodation. ( See id. at 216) Defendant told plaintiff its concern that because " [s]tress is a subjective matter[, ] . . .an effort to preclude [plaintiff] from any and all highly stressful situations . . . means that potentially management can't engage him. If there's a performance issue, [plaintiff] can dismiss himself from a discussion . . . if he regards it as highly stressful[, ]" (Socol Depo. 54:20-55:2; see Lehane Depo. at 244:19-24), and that such a scenario was unworkable. (See Socol Depo. 54:20-44:3). Indeed, plaintiff understood " that [the] vagueness that [would] allow[ ] [plaintiff] the ability to step away under any circumstance that [plaintiff] view[ed] as stressful, might be inconsistent with [his] job obligations[.]" (Lehane Depo. at 436). Consequently, defendant attempted to engage with plaintiff's physician " to translate [the May 29th Letter] into a context that [could] be put into practice or advocated for through the reasonable accommodation" process. (Socol Depo. 54:8-11). However, plaintiff and his physician failed to provide any information that might give defendant some clarification as to the types of accommodations plaintiff required. (See Socol Decl. at 219). Indeed, plaintiff prohibited Dr. Bock from specifying anything beyond a confirmation that Dr. Bock was treating plaintiff for stress, (see id.), and stated to defendant that he would not provide defendant any additional information unless subpoenaed. (See id.).
The availability of a reasonable accommodation is necessary to a claim under § 12940(n). See Nadaf-Rahrov v. Neiman Marcus Group, Inc., 166 Cal.App.4th 952, 983, 83 Cal.Rptr.3d 190 (2008). " [T[he employee bears the burden of proving the existence of specific reasonable accommodations that the employer failed to provide." Zivkovic, 302 F.3d at 1088. Here, plaintiff contends that defendant " was aware that [plaintiff]'s mental and physical disabilities required various accommodations such as reduced stress, reduced confrontation, and reduced work hours[, ]" (see Joint Br. at 19), and that defendant " was aware that [plaintiff]'s mental disability affected his mood or personality[.]" (See id.).
A " party must participate in good faith, undertake reasonable efforts to communicate its concerns, and make available to the other information which is available, or more accessible, to one party." Gelfo v. Lockheed Martin Corp., 140 Cal.App.4th 34, 62 n. 22, 43 Cal.Rptr.3d 874 (2006). Ultimately, the " responsibility for the failure rests with the party who failed to participate in good faith, " Avila v. Cont'l Airlines, Inc., 165 Cal.App.4th 1237, 1252, 82 Cal.Rptr.3d 440 (2008) (internal quotation marks omitted), and here the evidence is undisputed that plaintiff failed to participate in good faith in the interactive process.
IV. RETALIATION (FOURTH AND FIFTH CAUSES OF ACTION).
In order to prove retaliation, a plaintiff must " establish a prima facie case by showing that: 1) he engaged in a protected activity; 2) he suffered an adverse employment decision; and 3) there was a causal link between the protected activity and the adverse employment decision[.]" Villiarimo, 281 F.3d at 1064 (citing Yartzoff v. Thomas, 809 F.2d 1371, 1375 (9th Cir.1987)). Because plaintiff has failed to put forth any evidence that he experienced an adverse employment action, see supra at § I.B., his retaliation claim fails as well. See Lewis v. United Parcel Serv., Inc., 2005 WL 2596448, *6 n. 4 (N.D. Cal. 2005), aff'd, 252 F.App'x 806 (9th Cir. 2007) (noting that in a controlling case " the holding that [plaintiff] had suffered no adverse employment action was determinative of his [ ] retaliation claim.").
V. FAILURE TO PREVENT HARASSMENT AND DISCRIMINATION (SIXTH CAUSE OF ACTION).
An employer must " take all reasonable steps necessary to prevent discrimination and harassment from occurring." Cal. Gov't Code § 12940(k). In order to prove a violation under this section, a plaintiff must show that (1) he was subjected to discrimination, harassment, or retaliation; (2) defendant failed to take all reasonable steps to prevent such unlawful conduct; and (3) this failure caused plaintiff to suffer injury, damage, loss or harm. See Lelaind v. City & County of San Francisco, 576 F.Supp.2d 1079, 1103 (N.D. Cal. 2008).
As previously discussed, see supra § § I.A.-C. & IV, plaintiff has failed to put forth sufficient evidence to make a colorable claim that he was subjected to discrimination, harassment, or retaliation. Plaintiff's sixth cause of action under § 12940(k) thus falls on the first prong of the analysis.
VI. WRONGFUL CONSTRUCTIVE TERMINATION IN VIOLATION OF PUBLIC POLICY (SEVENTH CAUSE OF ACTION).
" [A]n employee cannot simply quit and sue, claiming he or she was constructively discharged." Turner v. Anheuser-Busch, Inc., 7 Cal.4th 1238, 1246, 32 Cal.Rptr.2d 223, 876 P.2d 1022 (1994), overruled in part, in Romano v. Rockwell Int'l, Inc., 14 Cal.4th 479, 59 Cal.Rptr.2d 20, 926 P.2d 1114 (1996) (internal quotation marks omitted); see Vasquez v. Franklin Management Real Estate Fund, Inc., 222 Cal.App.4th 819, 827, 166 Cal.Rptr.3d 242 (2103) (same). As discussed above, see supra at § I.B.3., plaintiff failed to establish an indicia of " intolerable" working conditions that would have given him " no reasonable alternative except to quit." Turner, 7 Cal.4th at 1248 (internal quotation marks omitted). As such, plaintiff's claim for wrongful constructive termination in violation of public policies fails.
CONCLUSION
Taking the facts in the light most favorable to the non-moving party, as the court must on defendant's motion for summary judgment, see Barlow, 943 F.2d at 1134, there are no genuine issues of material fact. Based on the facts presented, a reasonable juror could not find that plaintiff's rights were violated. Therefore, the court grants defendant's motion for summary judgment on all of plaintiff's causes of action.
This Order is not intended for publication. Nor is it intended to be included in or submitted to any online service such as Westlaw or Lexis.
Based on the foregoing, IT IS ORDERED THAT defendant's Motion for Summary Judgment (Document No. 40) is granted. Judgment shall be entered accordingly.
JUDGMENT
Pursuant to the Court's Order Re: Pending Motion, IT IS ADJUDGED that the above captioned case is dismissed with prejudice.