ORDER

Jerry W. Neufeld, Jr. charges his former employer, WinCo Holdings Inc., with employment claims under the California Fair Employment and Housing Act (FEHA). Neufeld was a cashier. WinCo moves for summary judgment and argues among other things that Neufeld could not perform his essential job duties. The court held a hearing on January 15, 2016. Michelle Iarusso appeared for Neufeld and Michael Kopp appeared for WinCo. For the following reasons, the motion is granted. ///// /////

I. UNDISPUTED FACTS AND PROCEDURAL HISTORY

The court has determined the following facts are not subject to genuine dispute. Neufeld suffers from anxiety, which causes him panic attacks and dizziness. Neufeld Dep. 98-99. Sometimes his anxiety arises first thing in the morning when he wakes up, and other times his surroundings cause him anxiety later on in the day. Id. at 120-21. For example, he may experience anxiety when riding in cars or when surrounded by many people. Id. at 340. His condition is unpredictable, id. at 349, and his physician has described his anxiety as "chronic," see Launey Decl. Ex. B, at 122, ECF No. 18-5.

WinCo hired Neufeld as a part-time cashier in March 2012. Reply Stmt. Undisp. Material Facts (UMF) no. 2, ECF No. 20-1. WinCo's job description lists the typical duties and responsibilities of a cashier:

Maintains an atmosphere of enthusiastic customer awareness with an emphasis on fast, friendly customer service.

Operates checkstand equipment such as a cash register, scanner and scale to process customer orders using two aisles to check customers.

Engages in suggestive selling and other sales techniques.

Processes monetary transactions (i.e. giving and receiving change, etc.) including cash, checks, gift certificates, travelers checks, food stamps, processing coupons, and refunds.

Maintains knowledge of current production location, monitors UPC codes and ensures proper pricing.

Maintains clean, neat and properly stocked checkstand and ensures safe and secure work area.

Stocks, prices and rotates merchandise.

Performs other duties as assigned or needed.

Soon after Neufeld began work at WinCo, he began missing work due to his anxiety. See UMF no. 4. He told WinCo about his anxiety, and WinCo offered to excuse his absences if he submitted periodic medical documentation. Id.; Launey Decl. Ex. B, at 47. WinCo also later asked Neufeld to have his treating physician "supply a written narrative explaining that [certain] absences" were due to his anxiety. Launey Decl. Ex. B, at 70; see also id. at 116. Similarly, WinCo requested Neufeld have his physician "supply a narrative affirming the estimated frequencies and duration of [his] intermittent leave" so it could more conveniently accommodate his need for intermittent leave. Id. at 70 (emphasis omitted). At the time, WinCo offered this plan as a reasonable accommodation for Neufeld's anxiety. UMF no. 4.

WinCo and Neufeld went forward with this plan. On dozens of occasions throughout 2012 and 2013, Neufeld submitted medical documentation to justify his absences, and WinCo excused him from work. See UMF nos. 6, 7, 9, 11, 13, 18, 20, 23, 24, 25, 27, 28. On many other occasions over the same period, however, Neufeld was either absent for reasons unrelated to his anxiety or did not send WinCo the particular medical documentation it requested. See UMF nos. 8, 10, 12, 14, 15, 17, 21, 22. Due to these unexcused absences, Neufeld received a verbal warning in October 2012, UMF no. 16, and a written warning in December 2012, UMF no. 19. On April 28, 2013, Neufeld was suspended without pay for excessive unexcused absences between May 8 and 10, 2013, UMF no. 26; Launey Decl. Ex. B, at 202, and his employment was later terminated for excessive unexcused absences in August 2013, UMF no. 30; Launey Decl. Ex. B, at 42.

Neufeld filed this action in Kern County Superior Court in July 2014, asserting five claims: (1) disability discrimination in violation of the FEHA; (2) common law wrongful termination in violation of public policy; (3) failure to provide a reasonable accommodation for his disability under the FEHA; (4) failure to engage in the good-faith interactive process under the FEHA; and (5) failure to prevent discrimination under the FEHA. Not. Removal Ex. A. WinCo removed the action to this court in September 2014 on the basis of this court's diversity jurisdiction. See id. No motion practice occurred before WinCo filed this motion on October 21, 2015. See Mot. Summ. J., ECF No. 18; Mem. P. & A. Summ. J. (Mem.), ECF No. 18-1. Neufeld opposed the motion, ECF No. 19, and WinCo replied, ECF No. 20.

II. LEGAL STANDARD

A court must grant a motion for summary judgment "if the movant shows there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A motion for summary judgment calls for a "threshold inquiry" into whether a trial is necessary at all, that is, whether "any genuine factual issues . . . properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). The court does not weigh evidence or assess the credibility of witnesses; rather, it determines which facts the parties do not dispute, then draws all inferences and views all evidence in the light most favorable to the nonmoving party. See id. at 255; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986). "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no 'genuine issue for trial.'" Matsushita, 475 U.S. at 587 (quoting First Nat'l Bank of Arizona v. Cities Serv. Co., 391 U.S. 253, 289 (1968)).

The moving party bears the initial burden of "informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If, as here, the party opposing summary judgment bears the burden of proof at trial, the moving party need only illustrate the "absence of evidence to support the non-moving party's case." In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010). The burden then shifts to the nonmoving party to "go beyond the pleadings" and "designate specific facts showing that there is a genuine issue for trial." Celotex, 477 U.S. at 324 (quotation marks omitted). The non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586. "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 247-48.

III. DISCUSSION

A. Claim 1: Disability Discrimination

An employer may not discriminate against an employee on the basis of his or her disability. See Cal. Gov't Code § 12940(a). But the law does prohibit an employer from discharging a disabled employee who is unable to perform his or her essential duties because of that disability. See id. § 12940(a)(1); Green v. State, 42 Cal. 4th 254, 257 (2007). For this reason, to prevail on a claim for disability discrimination under the FEHA, a plaintiff employee must prove he or she was able to do the essential functions of his or her job with or without a reasonable accommodation. Green, 42 Cal. 4th at 262. For the reasons described below, no disputed question of fact requires a trial on (1) Neufeld's ability to attend work, or (2) whether he could have performed his essential duties with or without a reasonable accommodation. The evidence before the court allows only the conclusion that he could not.

1. Essential Functions

California law defines "essential functions" as "the fundamental job duties of the employment position." Cal. Gov't Code § 12926(f). Essential functions do not include "marginal functions." Id. "Marginal functions of an employment position are those that, if not performed, would not eliminate the need for the job or that could be readily performed by another employee or that could be performed in an alternative way." Nealy v. City of Santa Monica, 234 Cal. App. 4th 359, 373 (2015) (quoting Cal. Code Regs., tit. 2, § 11065(e)(3)). On the other hand, a duty may be essential for any number of reasons, including because "the reason the position exists is to perform that function." See Cal. Gov't Code § 12926(f)(1). /////

Here, there can be no dispute that Neufeld's duties as a cashier required his physical presence at the checkstand. No evidence suggests Neufeld could have remotely operated a grocery store cash register, scanner, or scale, remotely accepted and received cash payments, or remotely maintained a clean, neat and properly stocked checkstand. See Launey Decl. Ex. B, at 40. Each of these duties was one of Neufeld's typical duties and responsibilities. Id. There is likewise no dispute WinCo hires cashiers to process in-person grocery sales. Regular, physical attendance was an essential function of Neufeld's position.

Neufeld may not avoid this conclusion by arguing the job description imposed no express requirement of regular and predictable attendance. See Opp'n at 6-7. No rational trier of fact could conclude, in light of the job descriptions both parties cite, that WinCo cashiers were free to attend work only sporadically and unpredictably. See Samper v. Providence St. Vincent Med. Ctr., 675 F.3d 1233, 1237 (9th Cir. 2012) (listing decisions applying the Americans with Disabilities Act (ADA) and finding "where performance requires attendance at the job, irregular attendance compromises essential job functions"); Lang v. Astrue, No. 09-1083, 2011 WL 2149914, at *5 (S.D. Cal. Jun. 1, 2011) (finding in an ADA case that "some degree of regular, predictable attendance is fundamental to most jobs," and that the plaintiff was not "excepted from this general principle" because his written job description indicated his work was to be performed in the office, among other reasons (citations and quotation marks omitted)). The importance of regular and predictable attendance is underscored by WinCo's requests for a narrative from Neufeld's physician regarding how frequently or for how long he would require intermittent leave. WinCo also reinforced the importance of regular and predictable attendance by giving Neufeld verbal and written warnings about his absences. /////

Moreover, an employee may not create a dispute of material fact by claiming the employer could have shifted others into the plaintiff's position to perform the essential functions temporarily. "Although it is true that an employer may demonstrate that a function is 'essential because of the limited number of employees available among whom the performance of that job function can be distributed,' . . . an employer may also demonstrate that a function is 'essential because the reason the position exists is to perform that function.'" Pratt v. Delta Air Lines, Inc., No. 1-00815, 2015 WL 2153397, at *7 (C.D. Cal. May 4, 2015) (quoting Cal. Gov't Code § 12926(f)(1)(A), (B)); accord Lang, 2011 WL 2149914, at *5. In other words, Neufeld cannot show the in-person aspects of his cashier position were not essential by showing WinCo was able to cope with his absence by reassigning other employees to fulfill them. Regardless of WinCo's ability to reassign work, it reasonably relies on cashiers' ability to regularly and predictably attend to the duties their positions were created to fulfill.

2. Reasonable Accommodations

As noted above, an employee can prevail in a disability discrimination case by proving he or she could have performed the essential functions of the job with a reasonable accommodation. A reasonable accommodation is "a modification or adjustment to the workplace that enables the employee to perform the essential functions of the job held or desired." Nadaf-Rahrov v. Neiman Marcus Grp., Inc., 166 Cal. App. 4th 952, 974 (2008). This definition is modeled on the definition of the same term under the ADA. See id. "To avoid summary judgment, a plaintiff must 'show that an accommodation seems reasonable on its face, i.e., ordinarily or in the run of cases.'" Pratt, 2015 WL 2153397, at *8 (quoting Dark v. Curry Cnty., 451 F.3d 1078, 1088 (9th Cir. 2006)).

Here, Neufeld proposes three accommodations: allowing him a leave of absence of undefined length, granting him intermittent leave as his health necessitated, and assignment to "go-backs" duty. He has not carried his burden to show these accommodations were reasonable. In general, each of these options would simply exempt him from one or more of the essential functions of his job: regular attendance and in-person management of a checkstand. The "FEHA does not obligate the employer to accommodate the employee by excusing him or her from the performance of essential functions." Nealy, 234 Cal. App. 4th at 375.

More specifically, a leave of absence of undefined length is not a reasonable accommodation. See id. at 377-78; see also Lara v. DNC Parks & Resorts at Tenaya, Inc., No. 14-000103, 2015 WL 4394618, at *14 (E.D. Cal. July 16, 2015) ("[I]f the employer does not know when the employee will be able to return to duty, the employer is not required to grant an indefinite and lengthy leave." (quoting Norris v. Allied-Sysco Food Servs., Inc., 948 F. Supp. 1418, 1439 (N.D. Cal. 1996), aff'd. 191 F.3d 1043 (9th Cir. 1999))). Neufeld has presented no evidence to show that any leave of absence would have enabled him to regularly attend to his essential duties as a cashier. See Pratt, 2015 WL 2153397, at *8-10 (rejecting leave of absence as reasonable accommodation under FEHA because plaintiff did not show "when and under what conditions he could return to work at all" (quoting Dark, 451 F.3d at 1090)).

Neither must an employer permit its employees to work intermittently as their health necessitates if attendance is one of their essential job duties. See, e.g., Samper, 675 F.3d at 1239-40 (rejecting intermittent, needs-based leave as a reasonable accommodation because attendance was an essential job function); Pratt, 2015 WL 2153397, at *10-11 (same); Lang, 2011 WL 2149914, at *6 ("Where regular and predictable attendance is an essential function of the job, as is the case here, an accommodation requesting that an individual be permitted to work whenever able is not reasonable under the circumstances."). To permit such an accommodation would "eviscerate any attendance policy" and cause "the essential functions and reasonable accommodation analyses to run together." Samper, 675 F.3d at 1240. Neufeld cannot create a triable issue of fact on this question by showing WinCo at one time made certain exceptions to its mandatory attendance policy. WinCo's willingness to make a temporary exception does not create a disputed question of fact as to the essential functions of Neufeld's job. See Rincon v. Am. Fed'n of State, Cty., & Mun. Emps., No. 12-4158, 2013 WL 4389460, at *11 (N.D. Cal. 2013) (interpreting the ADA; collecting authority to show an employer does not concede a function is non-essential by going above and beyond what the law requires). To the extent Neufeld argues or implies he should be assigned to a job that requires him to fulfill only go-back duty, as a matter of law, this is an unreasonable accommodation because it would exempt him completely from many of his essential cashier-related duties. See, e.g., Nealy, 234 Cal. App. 4th at 375 (an accommodation that removes essential job duties is not reasonable).

Finally, were WinCo obligated to assign Neufeld to "go-backs" duty as a reasonable accommodation, it would be required to exempt him from many of the essential duties of a cashier. See Launey Decl. Ex. B, at 40 (cashiers must operate equipment, process money transactions, and engage in "suggestive selling and other sales techniques," among other responsibilities). As noted above, WinCo is not obligated to exempt its employees from their essential duties as a reasonable accommodation. See Nealy, 234 Cal. App. 4th at 375.

3. Summary

Neufeld has not responded to WinCo's motion with evidence to show he was qualified to perform the essential functions of his position with or without a reasonable accommodation. Summary judgment is therefore granted for WinCo on his claim for disability discrimination under the FEHA.

B. Claim 2: Wrongful Termination in Violation of Public Policy

When an employer discharges an employee in violation of "fundamental principles of public policy, the discharged employee may maintain a tort action and recover damages traditionally available in such actions." Tameny v. Atl. Richfield Co., 27 Cal. 3d 167, 170 (1980). Here, Neufeld's claim for termination in violation of public policy rests on the same allegations as his statutory discrimination claims. See Compl. ¶ 25 (incorporating earlier allegations); id. ¶ 27 ("WinCo . . . terminated Mr. Neufeld in violation of the fundamental public policy against disability discrimination . . . ."). A common law claim for wrongful termination in violation of public policy cannot survive if it is entirely derivative of terminated statutory claims. See, e.g., McCarthy v. R.J. Reynolds Tobacco Co., 819 F. Supp. 2d 923, 937 (E.D. Cal. 2011); Jennings v. Marralle, 8 Cal. 4th 121, 136 (1994). Because summary judgment is granted as to Neufeld's statutory disability discrimination claims, summary judgment is likewise granted as to this claim.

C. Claim 3: Failure to Reasonably Accommodate

The FEHA imposes liability separately on employers should they fail to make a reasonable accommodation for an employee's known disability. Cal. Gov't Code § 12940(m); Nealy, 234 Cal. App. 4th at 371. "The elements of a reasonable accommodation cause of action are (1) the employee suffered a disability, (2) the employee could perform the essential functions of the job with reasonable accommodation, and (3) the employer failed to reasonably accommodate the employee's disability." Nealy, 234 Cal. App. 4th at 373. The showing required of plaintiff with respect to the second element above is identical to that imposed with respect to his first claim for discrimination under § 12940(a), discussed above. Id. at 378. For the reasons described in the section analyzing the first claim, summary judgment is granted as to this claim.

D. Claim 4: Failure to Engage in the Interactive Process

The FEHA also imposes liability on employers should they fail to "engage in a timely, good faith, interactive process" in response to a request for a reasonable accommodation by an employee with a known disability. Cal. Gov't Code § 12940(n). This section imposes liability only if a reasonable accommodation was possible. Nadaf-Rahrov, 166 Cal. App. 4th at 980-81. That is, the ability to perform the essential functions of a job—with or without a reasonable accommodation—is an element of a claim under section 12940(n). Id. at 981-83 (distinguishing Claudio v. Regents of Univ. of Cal., 134 Cal. App. 4th 224, 228 (2005), and Wysinger v. Automobile Club of S. Cal., 157 Cal. App. 4th 413, 425 (2007)). "[T]he employee who brings a section 12940(n) claim bears the burden of proving a reasonable accommodation was available before the employer can be held liable under the statute." Id. at 984; see also Scotch v. Art Inst. of Cal.-Orange Cty., Inc., 173 Cal. App. 4th 986, 995 (2009) (under section 12940(n), an employee must identify an available reasonable accommodation, even if after the advent of litigation). Here, for the reasons described above with respect to the first claim for disability discrimination, Neufeld has not cited portions of the record that create a triable question of fact with respect to whether a reasonable accommodation was possible; no evidence shows he was qualified to perform the essential functions of a cashier position with or without a reasonable accommodation. Summary judgment is granted as to this claim.

E. Claim 5: Failure to Prevent Discrimination

An employer must "take all reasonable steps necessary to prevent discrimination and harassment from occurring." Cal. Gov't Code § 12940(k). Because Neufeld has presented no case of discrimination, he cannot prevail on a FEHA claim for failure to prevent discrimination. See, e.g., Dep't of Fair Emp't & Hous. v. Lucent Techs., Inc., 642 F.3d 728, 748 (9th Cir. 2011) (citing Trujillo v. N. Cty. Transit Dist., 63 Cal. App. 4th 280, 289 (1998)). Summary judgment is granted as to this claim.

IV. CONCLUSION

The motion for summary judgment is GRANTED. This order resolves ECF No. 18.

CASE CLOSED.

IT IS SO ORDERED. DATED: March 1, 2016.

/s/_________

UNITED STATES DISTRICT JUDGE