Opinion
Case No. 2:22-cv-01753-SPG-KS
2023-07-24
Socorro Saenz RUIZ, Plaintiff, v. RSCR CALIFORNIA, INC., a California corporation, and Does 1 through 10, Inclusive, Defendants.
Akop Jacob Nalbandyan, Suren Agadzhanov, Nshan Erzrumyan, Levin and Nalbandyan, LLP, Los Angeles, CA, for Plaintiff. Phil J. Montoya, Jr., Hawkins Parnell and Young LLP, Los Angeles, CA, Ronald G. Polly, Jr., Pro Hac Vice, Hawkins Parnell and Young LLP, Atlanta, GA, for Defendant RSCR California, Inc.
Akop Jacob Nalbandyan, Suren Agadzhanov, Nshan Erzrumyan, Levin and Nalbandyan, LLP, Los Angeles, CA, for Plaintiff. Phil J. Montoya, Jr., Hawkins Parnell and Young LLP, Los Angeles, CA, Ronald G. Polly, Jr., Pro Hac Vice, Hawkins Parnell and Young LLP, Atlanta, GA, for Defendant RSCR California, Inc.
ORDER RE: SUMMARY JUDGMENT AND MOTION TO STRIKE [ECF NOS. 50, 53]
SHERILYN PEACE GARNETT, UNITED STATES DISTRICT JUDGE
Before the Court are Defendant RSCR California, Inc.'s motion for summary judgment ("Defendant's MSJ"), Plaintiff Socorro Saenz Ruiz's motion for partial summary judgment ("Plaintiff's MSJ"), and Plaintiff's motion to strike previously undisclosed exhibits submitted in support of defendant's opposition to Plaintiff's MSJ. (ECF Nos. 50, 53). The Court heard oral argument on July 19, 2023. Having considered the parties' submissions, the relevant law, the record in this case, and the arguments of counsel during the hearing on the motions, the Court GRANTS Plaintiff's MSJ as to claims 1 through 5, DENIES Defendant's MSJ as to claims 1 through 7 and 11, GRANT Defendant's MSJ as to claims 8 through 10, and GRANTS Plaintiff's motion to strike.
I. BACKGROUND
The following summarized facts are uncontroverted, unless otherwise stated. See (ECF No. 50-3-50-5 (Joint Appendix of Evidence ("JAE")); ECF No. 65 (Joint Appendix of Facts ("JAF"))).
When deciding a motion for summary judgment, the Court only considers evidence admissible at trial, though the form may differ at the summary judgment stage. Godinez v. Alta-Dena Certified Dairy LLC, No. CV 15-01652 RSWL, 2016 WL 6915509, at *3 (C.D. Cal. Jan. 29, 2016). The Court has reviewed the entire record, including the parties' JAF, objections, and evidence. The Court discusses only the facts that are relevant to its decision. In those instances where a party has failed to properly address the other party's assertion of fact, as is required by Rule 56(c), the Court considers those facts undisputed for purposes of the motions. See Fed. R. Civ. P. 56(e)(2); L.R. 56-3. In those instances where a party has failed to properly support an asserted fact with evidence, as is required by Rule 56(c)(1), the Court considers those facts disputed for purposes of the motions. Further, it is not the Court's practice to rule on each objection individually, nor is it required to do so. To the extent that the Court relies on evidence that is the subject of an objection, the Court overrules the objection. To the extent the Court does not rely on evidence objected to by the parties, the objections are overruled as moot.
Defendant hired Plaintiff as a Nursing Assistant on June 5, 1997. (JAF 1). During her employment, Plaintiff maintained various patient care responsibilities. (JAF 3). For nearly 24 years, Plaintiff worked out of Defendant's now-closed Edgewood Center location in Azusa, California. (JAF 4). Throughout Plaintiff's employment, and at the time of Plaintiff's resignation, Daniel Soto was the Executive Director of the Edgewood Center, Charlyn Jensen served as the Business Manager, Shirley Hossain was the Human Resources Specialist, Barbara McCabe was the Director of Nursing, and Abigail Gonzalez held the position of Program Manager. (JAF 5). Plaintiff reported to Gonzalez for daily assignments and was occasionally supervised by McCabe. (JAF 6).
On or around January 2021, Plaintiff informed Gonzalez that her brother, who lives in Mexico, was seriously ill. (JAF 35; JAE 294 ¶ 2). Plaintiff asked Gonzalez if she could take leave to visit and take care of her brother from February 17, 2021 through March 10, 2021. (JAF 12, 35). In her deposition, Gonzalez did not deny that Plaintiff informed her about Plaintiff's sick brother in Mexico as early as January 2021. (JAF 36). Gonzalez provided the following testimony in her deposition:
It is unclear whether Plaintiff requested time off from February 19, 2021, to March 8, 2021, or February 17, 2021, to March 10, 2021. See (JAF 12, Compl. ¶ 13). However, the specific dates are not material to the Court's determination.
Q: Isn't it true that in sometime in January of 2021 Ms. Ruiz told you that her brother in Mexico is ill?
A: I don't remember. It could have, it could have not happened. I honestly don't remember.
Q: Okay. But did you know that her brother was ill?
A: Let me think. It's been awhile. I honestly don't remember.
Q: Okay. Do you remember Ms. Ruiz asking you for time off sometime in February of 2021?
A: Yes.
Q: Okay. What was your recollection as to what she asked you for?
A: To go visit her brother.
Q: Okay. Isn't it true that she was telling you that the reason why she was
going to go see her brother is because he's ill?(JAE 8:7-9:12). Because the request was for more than two days, Gonzalez consulted with Soto, who is responsible for considering and approving longer leave requests. (JAF 16). On February 11, 2021, Gonzalez emailed Soto to inform him that Plaintiff was requesting time off from February 17 through March 10, 2021, stating "she will be going to Mexico something to do with her brother." (JAF 46; JAE 195). Less than one hour later, Soto responded, "yeah NO," denying her request. (JAF 48; JAE 195). Soto informed Gonzalez that he could not accommodate Plaintiff's request for time off due to staffing shortages. (JAF 16). When Soto received Gonzalez's email stating that Plaintiff requested "time off" to visit Mexico, "something to do with her brother," Soto did not ask Gonzalez what she meant by "something to do with her brother." (JAF 49).
A: I don't recollect the reason.
Defendant maintains a Human Resources Manual (the "Manual") to assist human resources ("HR") employees with administering Defendant's policies. (JAF 75). If an HR representative needed to determine how to handle an employee's request for leave, he or she would refer to the Manual. (JAF 58). The Manual includes Defendant's policies for family medical leave. (JAF 76; JAE 350-361). The only policy listed in the Manual regarding family medical leave is for the federal Family and Medical Leave Act ("FMLA"). (JAE 329-376). The Manual does not contain a policy specific to the California Family Rights Act ("CFRA"). (JAF 54). For example, the Manual's policy regarding "family medical leave" provides that Defendant will grant unpaid leave for certain enumerated reasons, including "[t]o care for an employee's spouse, child, or parent (but not parent-in-law) who has a serious health condition." (JAE 351). Although the FMLA and CFRA share much in common, the CFRA offers broader protections for family leave to care for additional people, including a "child, parent, grandparent, grandchild, sibling, spouse, domestic partner, or designated person who has a serious health condition." Cal. Gov't Code § 12945.2(b)(5)(B) (emphasis added). Compare id. with 29 C.F.R. § 825.100(a) (providing leave, among other reasons, to care for a "family member (child, spouse, or parent) with a serious health condition").
Jensen, who has approximately 20 years of HR experience with Defendant and was familiar with Defendant's policies surrounding family medical leave, testified that, aside from the Manual's FMLA policy, Defendant does not maintain any other policy for family medical leave. (JAE 160:12-161:20). Jensen provided the following deposition testimony:
Q: [The FMLA policy in the Human Resources Policy Manual] is the policy that the company has in place in terms of what needs to be done and what the company offered in terms of family leave to care for a sick family member, right?(JAE 160:12-161:20, 165:1-3). Hossain, Defendant's HR specialist, testified similarly. In her deposition, Hossain testified that she was not aware that Defendant maintained a policy providing for family medical leave other than the FMLA policy described in the Manual. (JAF 57; JAE 223:7-225:8). At the time of Plaintiff's termination, her HR inquiries would have gone to Hossain. (JAF 64). According to Hossain, Defendant did not have a policy that would offer any form of protected medical leave for a family member, such as a sibling, other than those listed in the FMLA. (JAF 60, 61; JAE 226:13-19). Hossain therefore testified that she believed the reason Defendant never presented Plaintiff with any family leave paperwork was because her request said "brother." (JAF 62; JAE 232:17-21).
A: Yes.
Q: Okay. To your knowledge is there any other policy that the company maintains aside from this one?
A: For family medical leave, I don't think so.
. . .
Q: So whenever human resources wants to - you know, go to a written policy or reference something in terms of what needs to be done or, you know, what the company's policy is for providing family medical leave, this would be the policy that they would refer to, right?
A: For family medical leave, yes.
Q: Okay. So this is the only policy that the company has that is offered to their employees, right?
A: That I'm aware of.
On February 17, 2021, Plaintiff submitted a handwritten resignation note to Gonzalez, effective immediately. (JAF 21, 50). The letter stated: "To whom it may concern: I present my resignation since they could no[t] accept my days to go se[e] my brother, who is in very serious health." (JAE 111). Although the resignation letter did not specifically state that Plaintiff required leave to provide care for her brother, the letter stated that the reason Plaintiff resigned was because Defendant would not provide her days off "to go see [her] brother[, w]ho is in very serious health." (JAF 26, 50; JAE 111). When Plaintiff presented her handwritten resignation to Gonzalez, neither Gonzalez nor anyone else who worked for Defendant inquired about what Plaintiff meant that her brother is in "very serious health." (JAF 52). That same day, on February 17, Plaintiff went to McCabe's office to tell her she would be resigning. (JAF 22; JAE 156). According to McCabe, Plaintiff told her that she was going to Mexico because her brother "was ill and she wanted to spend some time with him in case something happened to him." (JAF 53; JAE 156).
Plaintiff booked her trip to Mexico on February 17, the same day she resigned. (JAF 27). She then traveled to Mexico and was there with her brother until March 7, 2021. (JAF 28). When she returned, Plaintiff reapplied for her same position within one month after she resigned. (JAF 32). Defendant denied Plaintiff's application for rehire because she violated Defendant's resignation policy by not providing sufficient notice. (JAF 33). Defendant's Employment Separation policy requires all employees to submit a two-week notice when they resign or otherwise end their employment. (JAF 24). Plaintiff was aware of Defendant's policy, yet resigned anyway to see her seriously ill brother in Mexico. (JAF 25).
Plaintiff commenced this case on February 2, 2022. (ECF No. 1). Plaintiff brings eleven claims of CFRA violations, California Fair Employment and Housing Act ("FEHA") violations, and a common law wrongful termination claim. On June 19, 2023, the parties filed a joint motion for summary judgment. (ECF No. 50 ("MSJ")). Plaintiff moves for partial summary judgment as to her first five claims, and Defendant moves for summary judgment as to each of Plaintiff's claims. On June 21, 2023, Plaintiff filed a motion to strike previously undisclosed exhibits that Defendant submitted in support of its opposition to Plaintiff's motion for partial summary judgment under Federal Rule of Civil Procedure 37. (ECF No. 53). The Court heard oral argument on this matter on July 19, 2023.
II. MOTION TO STRIKE
As a preliminary matter, Plaintiff moves to strike Defendant's exhibits not produced during discovery, as well as Defendant's reference to those previously undisclosed exhibits in its opposition to Plaintiff's MSJ. (ECF No. 53). Specifically, Plaintiff moves under Federal Rule of Civil Procedure 37 to strike Exhibit C (JAE 378-380) and page 1 of Exhibit D (JAE 382) to Charlyn Jensen's declaration dated June 15, 2023 (the "Jensen Declaration"), paragraphs 9-12 in the Jensen Declaration (JAE 327), and portions from Defendant's opposition to Plaintiff's MSJ located at 32:25-28 and 35:9-36:20.
For ease of reference, the Court refers to the consecutively paginated ECF numbers.
The scheduling order in this case set February 10, 2023, as the deadline for fact discovery. (ECF No. 20). On May 9, 2022, Defendant served Plaintiff with its Rule 26 initial disclosures, indicating that it would produce Defendant's "relevant policies and procedures relating to the claims asserted in this lawsuit." (ECF No. 53-1 ("Agadzhanov Decl.") ¶ 2, Ex. A). Defendant never produced any document containing a CFRA policy. (Id. ¶ 5). The only document produced regarding any medical leave policies was Defendant's HR Manual, which did not mention a CFRA policy. (Id.) Defendant's witnesses with HR experience, including Jensen, testified that they were unaware of a policy other than Defendant's FMLA policy to provide employees with family leave. (JAE 160:12-161:20, 165:1-3, 223:7-225:8).
The parties exchanged their joint motion for summary judgment on June 19, 2023. (ECF No. 50). Plaintiff asserted, among other arguments, that summary judgment should be granted in her favor as to Claims 1 through 5 because RSCR cannot satisfy its threshold burden of placing Plaintiff on notice of her CFRA rights. Then, in its opposition, RSCR submitted the Jensen Declaration attaching two exhibits that were never produced in discovery. (JAE 325-328; Agadzhanov Decl. ¶ 8). The first is exhibit C, which is a previously undisclosed photograph of a poster dated 2023, which Jensen declares is a poster placed on breakroom bulletin boards throughout Defendant's facilities. See (Jensen Decl. ¶ 9; JAE 378-80). However, Jensen does not specify the location where that specific poster was displayed, who took the photo of the poster, or any other facts authenticating the photograph. See (Jensen Decl. ¶ 9). The second is the first page to Exhibit D, which is a previously undisclosed photograph of a Sedgwick poster Jensen alleges is "posted in facility break rooms." (Id. ¶ 12). Jensen does not provide any information regarding when and where this photograph was taken; nor does she identify who took the photograph. In addition, Jensen writes in her declaration that these exhibits were available in Spanish and English and that Plaintiff allegedly had access to them. (Id. ¶¶ 9-12). Defendant relied on Jensen's Declaration and these exhibits in its opposition to Plaintiff's MSJ. See (MSJ at 32:25-28 and 35:9-36:20).
Aside from the first page, Defendant had previously produced the rest of Exhibit D in discovery. (ECF No. 63-1 ¶ 7, Ex. F).
During the July 19, 2023, hearing on the motions, counsel for Defendant confirmed that neither exhibit had been previously disclosed during discovery.
Federal Rule of Civil Procedure 37(c) provides in part that, "[i]f a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at trial, unless the failure was substantially justified or is harmless." Fed. R. Civ. P. 37(c)(1); see R & R Sails, Inc. v. Ins. Co. of Penn., 673 F.3d 1240, 1247 (9th Cir. 2012) ("We recognize that, in the ordinary case, violations of Rule 26 may warrant evidence preclusion."). The party facing sanctions bears the burden of demonstrating the late disclosure was substantially justified or is harmless. See id. at 1246. The Ninth Circuit gives "particularly wide latitude" to the district's court decision to impose sanctions under Rule 37(c)(1). Id. at 1245.
Here, Defendant raises three arguments in opposition to Plaintiff's motion to strike. See (ECF No. 63). First, citing to Federal Rule of Civil Procedure 12(f), Defendant claims that the Court lacks authority to strike a declaration. Second, Defendant argues its late disclosure is substantially justified because Defendant did not violate the discovery rules. Third, Defendant states that Jensen's declaration is proper because she has personal knowledge of the facts stated therein. The Court examines each argument in turn.
First, although Defendant's opposition to Plaintiff's motion to strike relies on Rule 12(f) to argue that the Court lacks authority to strike a declaration, the basis for Plaintiff's motion is Rule 37(c), which provides teeth to Rule 26's disclosure requirements by allowing the court to exclude evidence that was not properly disclosed during discovery. See Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 2001); Chisolm v. 7-Eleven, Inc., 383 F. Supp. 3d 1032, 1045 (S.D. Cal. 2019) (excluding untimely produced emails from a motion for summary judgment after finding that plaintiff's late disclosure was neither substantially justified nor harmless), aff'd, 814 F. App'x 194 (9th Cir. 2020). Therefore, this Court has authority to strike a declaration and exhibits attached thereto, provided it meets the requirements under Rule 37.
Rule 12(f) provides that the Court may "strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Fed. R. Civ. P. 12(f).
Second, Defendant's argument that it did not violate the discovery rules because the CFRA poster was neither relevant nor responsive to any of Plaintiff's discovery requests is similarly unavailing. According to Defendant, it was substantially justified in withholding the evidence during discovery because the issue of whether Defendant failed to notify Plaintiff of her rights under the CFRA is irrelevant to her claims of CFRA interference. For reasons explained more fully below, the Court disagrees. Plaintiff brings multiple claims of CFRA interference, including failure to grant, denial of, interference with, and restraint on CFRA leave, as well as failure to reinstate. (ECF No. 1). Employers subject to the CFRA must provide notice to their employees of their right to request CFRA leave. See Moore v. Regents of Univ. of Cal., 248 Cal. App. 4th 216, 252, 206 Cal.Rptr.3d 841 (2016). Failure to do so "precludes an employer from taking any adverse action against the employee, including denying CFRA leave, for failing to furnish the employer with advance notice of a need to take CFRA leave." Bareno v. San Diego Comm. Coll. Dist., 7 Cal. App. 5th 546, 559, 212 Cal. Rptr.3d 682 (2017) (citation omitted). Therefore, information related to Defendant's notice to its employees—or lack thereof—about its policy under the CFRA is essential to Plaintiff's claims in this case. Nevertheless, Defendant argues there is not one allegation in Plaintiff's complaint regarding Defendant's failure to notify Plaintiff of her CFRA rights. However, Plaintiff brings multiple claims for CFRA interference. (ECF No. 1 ¶¶ 56-67). Under California law, "a failure to notify an employee of his rights under FMLA and thus CFRA can constitute interference if it affects the employee's rights under the statute." See Moore, 248 Cal. App. 4th at 252, 206 Cal.Rptr.3d 841 (citation and alterations omitted). Contrary to Defendant's assertion, reasonable minds could not differ as to the appropriateness of withholding these documents. Cf. QS Wholesale, Inc. v. Rox Volleyball, Inc., No. SACV 13-0512 AG (JPRx), 2014 WL 12577091, at *1 (C.D. Cal. Nov. 17, 2014) (declining to impose sanctions "under the applicable standard if reasonable people could differ as to the appropriateness of the contested discovery conduct"). Indeed, Defendant's current reliance on the documents is evidence of their importance, and by extension, Defendant's violation of Rule 26 in failing to disclose them at an earlier date.
Further, it is not disputed that Plaintiff requested information about Defendant's policies and procedures related to any medical and/or personal leaves in its interrogatories and requests for document production. Plaintiff also requested that Defendant produce "ALL DOCUMENTS RELATED TO Plaintiff's request for FMLA and/or CFRA in 2021." (Agadzhanov Decl., Ex. 3). Defendant responded that it "does not possess any documents responsive to this request because Plaintiff did not request or take FMLA or CFRA leave in 2021." (Id.). Defendant may not use its legal argument regarding the sufficiency of Plaintiff's request for CFRA leave to stonewall its discovery obligations to produce documents "relevant to any party's claim or defense and proportional to the needs of the case." Fed. R. Civ. P. 26(b)(1). Evidence that Defendant allegedly displayed posters identifying its CFRA policy and procedures to request family medical leave that Defendant claims Plaintiff purportedly would have seen during her employment is highly responsive to Plaintiff's discovery requests. Moreover, Defendant's statement in its initial disclosures that it would produce its "relevant policies and procedures related to the claims asserted in this lawsuit" should have resulted in the production of its documents demonstrating notice of CFRA rights to its employees. Accordingly, Defendant has failed to meet its burden to show it was substantially justified in withholding these challenged documents during discovery.
Third, Defendant's argument that, even if the Court strikes Exhibit C and the first page of Exhibit D, it should not strike Jensen's reference to the information contained in those exhibits or Defendant's arguments referencing the Jensen Declaration is not well-founded. (ECF No. 63 at 9). Defendant argues the Jensen Declaration is admissible because it is based on her personal knowledge and Defendant's reliance on the declaration is harmless because Plaintiff has already responded to Defendant's MSJ and raised her evidentiary objections in her papers. The Court again disagrees. As Plaintiff points out, Defendant waited until June 15, 2023, to offer the evidence at issue in Plaintiff's motion to strike. To allow Defendant to rely on this evidence at this stage in the proceedings would unduly prejudice Plaintiff because she would be wholly deprived of an opportunity to probe the veracity of this belatedly disclosed evidence. For example, Plaintiff cannot question how Jensen came to learn that Plaintiff should have been aware of Defendant's policies regarding CFRA. In her declaration, Jensen does not indicate how she has obtained this personal knowledge. Nor does Jensen provide an explanation for why her declaration directly contradicts her prior testimony in this matter that, aside from Defendant's Manual's FMLA policy, Defendant has not maintained any other policy for family medical leave. See (JAE 160:12-161:20). Further, the evidence that Jensen submits as Exhibit C regarding Defendant's purported CFRA policy is dated 2023. Yet Jensen does not explain how she has personal knowledge that a similar poster would have been posted in 2021, the time period when the facts giving rise to this dispute occurred, or that the poster would have been posted in the Edgewood Center, where Plaintiff worked. Therefore, in addition to Defendant not being justified in producing the evidence at this stage in the proceedings, Defendant has not shown that its late disclosure is harmless. See Algaier v. Bank of Am., N.A., No. 2:13-CV-0380-TOR, 2015 WL 5944177, at *5 (E.D. Wash. Oct. 13, 2015) (excluding five exhibits submitted in support of the plaintiff's opposition to summary judgment because the exhibits were not produced in discovery in violation of Rule 37, and the disclosure was neither harmless nor substantially justified), aff'd, 691 F. App'x 497 (9th Cir. 2017).
For these reasons, the Court GRANTS Plaintiff's request to strike Exhibit C (JAE 378-380) and page 1 of Exhibit D (JAE 382) to the Jensen Declaration, as well as paragraphs 9 through 12 in her declaration (JAE 327), and portions from Defendant's opposition to Plaintiff's MSJ, located at 32:25-28 and 35:9-36:20.
III. MOTIONS FOR SUMMARY JUDGMENT
A. Legal Standard
Summary judgment is appropriate when the moving party demonstrates there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The "mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is "material" if the substantive law identifies the fact as critical such that the resolution of the fact under governing law might affect the outcome of the case, and a dispute about a material fact is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987).
"[T]o carry its burden of production, the moving party must produce either evidence negating an essential element of the nonmoving party's claim or defense or show that the nonmoving party does not have enough evidence of an essential element to carry its ultimate burden of persuasion at trial." Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000) (citing High Tech Gays v. Def. Indus. Sec. Clearance Off., 895 F.2d 563, 574 (9th Cir. 1990)). If the moving party satisfies its initial burden, the burden then shifts to the opposing party, who "must set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 256, 106 S.Ct. 2505. A genuine issue requires evidence, not speculation or guesswork. Guidroz-Brault v. Mo. Pac. R.R. Co., 254 F.3d 825, 829 (9th Cir. 2001). The opposing party may not simply rely upon the allegations or denials in its pleadings. See Celotex Corp. v. Catrett, 477 U.S. 317, 321 n.3, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Nor can it rely on testimony that is conclusory, speculative, or "uncorroborated and self-serving" to raise genuine issues of fact and defeat summary judgment. Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002) (citations and internal quotations omitted). Instead, the opposing party, by citing to documents, depositions, declarations, admissions, interrogatory answers, or other material, must make an affirmative showing on all matters placed in issue by the motion as to which it has the burden of proof at trial. See Fed. R. Civ. P. 56(c); Celotex, 477 U.S. at 322, 106 S.Ct. 2548; Anderson, 477 U.S. at 252, 106 S.Ct. 2505. "This burden is not a light one. The non-moving party must show more than the mere existence of a scintilla of evidence." In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010) (citing Anderson, 477 U.S. at 252, 106 S.Ct. 2505).
In resolving a summary judgment motion, the court does not weigh the evidence, determine the truth, or make credibility determinations. See Anderson, 477 U.S. at 255, 106 S.Ct. 2505. The court construes the evidence and draws reasonable inferences in the light most favorable to the opposing party. Scott v. Harris, 550 U.S. 372, 378, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (citations omitted). Thus, summary judgment for the moving party is proper when a "rational trier of fact" would not be able to find for the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
B. CFRA Interference (Claims 1-5)
The CFRA "is intended to give employees an opportunity to take leave from work for certain personal or family medical reasons without jeopardizing job security." Bareno, 7 Cal. App. 5th at 558, 212 Cal.Rptr.3d 682. The CFRA prohibits employers from denying a qualifying employee's request "to take up to a total of 12 workweeks in any 12-month period for family care and medical leave." Cal. Gov't Code § 12945.2(a). "Family care and medical leave" includes "[l]eave to care for a child, parent, grandparent, grandchild, sibling, spouse, domestic partner, or designated person who has a serious health condition." Id. § 12945.2(b)(5)(B). The CFRA makes it unlawful for an employer "to interfere with, restrain, or deny the exercise of, or the attempt to exercise, any right" provided by the CFRA. Id. § 12945.2(q). The law also makes it unlawful for an employer to discriminate against any individual because of his or her "exercise of the right to family care and medical leave." Id. § 12945.2(k). "Violations of the CFRA generally fall into two types of claims: (1) 'interference' claims in which an employee alleges that an employer denied or interfered with her substantive rights to protected medical leave, and (2) 'retaliation' claims in which an employee alleges that she suffered an adverse employment action for exercising her right to CFRA leave." Rogers v. Cnty. of Los Angeles, 198 Cal. App. 4th 480, 487-88, 130 Cal.Rptr.3d 350 (2011); see also Quesada v. Albertson's LLC, No. SACV 20-1407 PSG (DFMx), 2022 WL 2176512, at *5 (C.D. Cal. Feb. 1, 2022).
Plaintiff's first five claims fall under the first category of CFRA "interference" claims. See id. (considering the same five CFRA claims together as "interference" claims). To prove interference with, restraint of, or denial of CFRA rights, a plaintiff must show that the defendant interfered with his or her substantive CFRA rights, which include (1) the right to take up to 12 weeks of leave for a qualifying purpose, and (2) the right to reinstatement to the same or comparable position "upon the termination of the leave." Cal. Gov't Code § 12945.2(a). The plaintiff must show (1) that he or she was entitled to CFRA leave rights, and (2) that the employer interfered with or denied those rights. Moore, 248 Cal. App. 4th at 250, 206 Cal.Rptr.3d 841. Plaintiff and Defendant have cross-moved for summary judgment as to Claims 1 through 5. "[W]hen parties submit cross-motions for summary judgment, each motion must be considered on its merits." Fair Hous. Council of Riverside Cnty., Inc. v. Riverside Two, 249 F.3d 1132, 1136 (9th Cir. 2001) (internal citations and quotation marks omitted). Further, "when simultaneous cross-motions for summary judgment on the same claim are before the court, the court must consider the appropriate evidentiary material identified and submitted in support of both motions, and in opposition to both motions, before ruling on each of them." Id. at 1134.
1. Employer's Notice to Employee
"Employers subject to the CFRA are required to provide notice to their employees of the right to request CFRA leave." Moore, 248 Cal. App. 4th at 252, 206 Cal.Rptr.3d 841. "Employers are also required to include a description of CFRA leave in their employee handbooks, and are encouraged to give a copy of the notice to current and new employees." Choochagi v. Barracuda Networks, Inc., 60 Cal. App. 5th 444, 456, 274 Cal.Rptr.3d 753 (2020) (citation omitted). When an employee raises a CFRA interference claim, "there is a 'threshold issue of an employer's obligations under section 12945.2 and the implementing regulations,' and whether the employer met those obligations." Moore, 248 Cal. App. 4th at 252, 206 Cal. Rptr.3d 841 (citing Faust v. Cal. Portland Cement Co., 150 Cal. App. 4th 864, 881, 58 Cal.Rptr.3d 729 (2007)). "Failure of the employer to give or post the required notice regarding an employee's right to request CFRA leave precludes an employer from taking any adverse action against the employee, including denying CFRA leave, for failing to furnish the employer with advance notice of a need to take CFRA leave." Bareno, 7 Cal. App. 5th at 559, 212 Cal.Rptr.3d 682 (citation omitted). This is because "a failure to notify an employee of his rights under FMLA and thus CFRA can constitute interference if it affects the employee's rights under the statute." Moore, 248 Cal. App. 4th at 252, 206 Cal. Rptr.3d 841 (citing Alcala v. Best Buy Stores, LP, No. EDCV 11-00798-JVS, 2012 WL 6138332, at *13 (C.D. Cal., Nov. 7, 2012)) (alterations omitted). Therefore, an employer cannot prevail on a CFRA claim based on the employee's failure to provide notice of the need for CFRA leave if the record does not establish "that the employer satisfied a threshold requirement of its obligations to an employee under CFRA." Id. at 252-53, 206 Cal.Rptr.3d 841.
For example, in Faust, an employee brought claims under the CFRA for wrongful termination after being fired for taking medical leave. 150 Cal. App. 4th at 869-73, 58 Cal.Rptr.3d 729. The record showed that the employer had not given notice to the plaintiff of his rights under the CFRA. Id. at 881, 58 Cal.Rptr.3d 729. The human resources manager admitted she never informed the plaintiff of any right he may have to medical leave under the CFRA. Id. The court also found that the plaintiff had provided sufficient notice of his need for CFRA qualifying leave. Similarly, in Moore, there was no evidence that the defendant "either posted notice or specifically provided notice to [plaintiff] of her leave rights under CFRA, as specifically required by CFRA." 248 Cal. App. 4th at 253-54, 206 Cal.Rptr.3d 841. In each case, the California Courts of Appeal held that "certain legal consequences flow from the fact that an employer did not give notice to its employee of the employee's right to leave under CFRA." Id. (citing Faust, 150 Cal. App. 4th at 868-69, 58 Cal.Rptr.3d 729) (alterations and quotation marks omitted).
Here, like in Faust and Moore, there is no competent evidence in the record that Defendant maintained any CFRA policy during the time of Plaintiff's employment, whether in a handbook, poster, or otherwise. Cf. Choochagi, 60 Cal. App. 5th at 456, 274 Cal.Rptr.3d 753 (finding that the employer discharged its duty to provide notice to the employee of his right to request CFRA leave based on evidence of the employer's employee handbook describing CFRA leave). The only policy listed in Defendant's Manual regarding family medical leave is for the FMLA. (JAF 76; JAE 350-361). The Manual does not contain a policy specific to the CFRA. (JAF 54). Defendant also has not provided evidence of any posters around its facilities during the time Plaintiff worked there informing the employees of their CFRA rights. In addition, there is no evidence that any of Defendant's employees ever notified Plaintiff of her rights under the CFRA. Cf. Sanchez v. Master Prot., LP, No. 2:20-cv-08472-VAP-(RAOx), 2021 WL 5994523, at *8 (C.D. Cal. Sept. 29, 2021) (finding a genuine dispute where the employer-defendant's HR manager declared that the employer notified employees of their rights under the CFRA when they asked about their rights or options under the CFRA). To the contrary, Defendant's longtime HR employees testified that, as far as they were aware, Defendant did not have any family leave policy other than the FMLA. See (JAE 160:12-161:20, 165:1-3, 223:7-225:8). Therefore, the undisputed evidence shows that Defendant did not notify Plaintiff of her rights under the CFRA.
Having found that Defendant failed to notify Plaintiff of her right to request CFRA leave, the Court DENIES Defendant's MSJ as to Plaintiff's CFRA interference Claims 1 through 5. However, before deciding Plaintiff's MSJ as to these claims, the Court must first determine whether Plaintiff notified Defendant of her intent to take CFRA qualifying leave.
2. Employee's Notice to Employer
"To request CFRA leave an employee shall provide at least verbal notice sufficient to make the employer aware that the employee needs CFRA leave, and the anticipated timing and duration of the leave." Choochagi, 60 Cal. App. 5th at 454, 274 Cal.Rptr.3d 753 (internal quotation marks and alteration omitted). "The employee need not expressly assert rights under CFRA." Id.; see also Avila v. Cont'l Airlines, Inc., 165 Cal. App. 4th 1237, 1256, 82 Cal.Rptr.3d 440 (2008) ("The employee need not expressly assert rights under CFRA or FMLA, or even mention CFRA or FMLA, to meet the notice requirement"). However, "the employee must state the reason the leave is needed." Id. In analyzing whether the employee sufficiently requested leave, courts ask "whether the employer was on notice of the employee's intent to take CFRA leave rather than whether the employee satisfied the elements enumerated in the regulations." See King v. C&K Mkt., Inc., No. 2:16-cv-00559-TLN-DMC, 2021 WL 4480939, at *4 (E.D. Cal. Sept. 30, 2021) (citing Alejandro v. ST Micro Electronics, Inc., 178 F. Supp. 3d 850, 865 (N.D. Cal. 2016)). Once the employee provides notice, the employer is expected to "inquire further of the employee if necessary to determine whether the employee is requesting CFRA leave and to obtain necessary information concerning the leave (i.e., commencement date, expected duration, and other permissible information)." Id. (citation omitted). Whether the employee's notice is sufficient is a question of fact that depends on the circumstances. See King, 2021 WL 4480939, at *4; see also Avila, 165 Cal. App. 4th at 1256, 82 Cal.Rptr.3d 440.
Defendant argues that Plaintiff's notice was insufficient because it was untimely and did not specify that she sought leave to take care of her brother. Defendant claims that Plaintiff failed to provide at least 30-days' notice to Defendant of her need to take leave in violation of Defendant's policy. (MSJ at 22). The CFRA provides that when an employee's need for leave is "foreseeable, the employee shall provide the employer with reasonable advance notice of the need for the leave." Bareno, 7 Cal. App. 5th at 562, 212 Cal. Rptr.3d 682. The regulation permits employers to "require that employees provide at least 30 days' advance notice before CFRA leave is to begin if the need for the leave is foreseeable based on an expected birth, placement for adoption or foster care, or planned medical treatment for a serious health condition of the employee or a family member." Cal. Gov't Code § 11091(a)(2). However, the regulations indicate that this 30-day general rule does not apply when the need for medical leave is not foreseeable. Id. Further, the CFRA prohibits an employer from denying CFRA leave, regardless of whether the need is an emergency or foreseeable, "on the basis that the employee did not provide advance notice of the need for the leave, so long as the employee provided notice to the employer as soon as practicable." Id. § 11091(a)(4).
"If 30 days' notice is not practicable, such as because of a lack of knowledge of approximately when leave will be required to begin, a change in circumstances, or a medical emergency, notice must be given as soon as practicable." Cal. Gov't Code § 11091(a)(3).
Here, the undisputed evidence shows that, throughout Plaintiff's employment, Defendant did not maintain a CFRA policy or otherwise notify Plaintiff of her rights and obligations under the CFRA, so Plaintiff could not have known she needed to provide notice. Pursuant to the CFRA, Defendant cannot enforce any temporal notice requirement because it never notified Plaintiff of her CFRA rights. See Gov't Code § 11091(a)(5). Thus, the fact that Plaintiff requested leave without 30-days' notice is irrelevant. Nevertheless, even if the timing of Plaintiff's notice had a bearing on the outcome here, Plaintiff testified that she told Gonzalez in January 2021 that her brother in Mexico was seriously ill and made her initial request for time to be with him. (JAF 35; JAE 294 ¶ 2). Defendant disputes that Plaintiff told Gonzalez that her brother was seriously ill and that she requested time off to take care of him. See (JAF 35, Defendant's Response). Plaintiff submitted a declaration in which she stated that she so informed Gonzalez in January 2021. (JAE 294 ¶ 2). The only evidence Defendant offers to dispute Plaintiff's version of the facts is Gonzalez's testimony. See (JAF 35, Defendant's Response). Gonzalez, however, testified that she did not remember anything to the contrary. (JAF 36). Thus, the evidence Defendant submitted is insufficient to create a genuine dispute. See, e.g., Moore v. Chase, Inc., No. 1:14-CV-01178-SKO, 2016 WL 866121, at *5 (E.D. Cal. Mar. 7, 2016) (finding testimony that a witness "did not remember seeing Plaintiff personally on those dates is not sufficiently probative to discredit Plaintiff's testimony nor to dispute the fact that Plaintiff was actually there").
Defendant next argues that, even if Plaintiff's leave request was timely, the content of Plaintiff's request was insufficient to place Defendant on notice of Plaintiff's intention to take leave covered by the CFRA. (MSJ at 20-22). Defendant claims that Plaintiff never told Defendant why she needed to visit Mexico. (MSJ at 20). Defendant relies on Plaintiff's resignation letter, which did not specifically state she would be leaving to provide any care for her brother but rather merely "to go see" him, as evidence that Defendant did not know Plaintiff requested CFRA leave. (JAF 26). According to Defendant, Plaintiff merely requested for vacation, and Defendant did not learn that Plaintiff's brother was ill until the Complaint was filed in this case. Plaintiff responds that she told Gonzalez and McCabe that her brother was seriously ill and that she needed to take leave to take care of him. Further, even if Plaintiff had not told them, she argues that her handwritten resignation on February 17 made clear that she was requesting leave because of her seriously ill brother. (MSJ at 31).
The Court agrees with Plaintiff and finds that she had sufficiently requested CFRA leave. Even if Plaintiff did not explicitly assert her rights under the CFRA, "[t]he mere mention of 'vacation,' other paid time off, or resignation does not render the notice insufficient, provided the underlying reason for the request is CFRA-qualifying, and the employee communicates that reason to the employer." Moore, 248 Cal. App. 4th at 249, 206 Cal. Rptr.3d 841 (emphasis in original). The evidence shows that multiple people working for Defendant were aware of Plaintiff's ill brother, and that Plaintiff wanted to take leave to take care of him. See Mora v. Chem-Tronics, 16 F. Supp. 2d 1192 (S.D. Cal. 1998) (finding that notice "may be sufficient when employees call employers to tell them that they or their children are sick and they will be absent from work"). Moreover, "the regulations are explicit in imposing on the employer a duty to inquire as to details of the employee's request when necessary." Soria v. Univision Radio L.A., Inc., 5 Cal. App. 5th 570, 603-04, 210 Cal.Rptr.3d 59 (2016); see also Moore, 248 Cal. App. 4th at 249, 206 Cal.Rptr.3d 841 (holding that "an employer bears a burden, under CFRA, to inquire further if an employee presents the employer with a CFRA-qualifying reason for requesting leave"). Here, after being notified by Plaintiff, Soto failed to make the requisite inquiry. Specifically, Gonzalez informed Soto that Plaintiff was requesting time off, stating "she will be going to Mexico something to do with her brother." (JAF 46; JAE 195). Less than one hour later, Soto responded, "yeah NO," denying her request. (JAF 48; JAE 195). Soto never asked Gonzalez or Plaintiff what was meant by "something to do with her brother." (JAF 49). Moreover, when Plaintiff presented her handwritten resignation to Gonzalez, neither Gonzalez nor anyone else who worked for Defendant inquired what Plaintiff meant when Plaintiff represented that her brother is in "very serious health." (JAF 52). In fact, even if Plaintiff had expressly asserted her rights under the CFRA, Defendant likely would have rejected her request, given that its HR Manual did not provide for CFRA leave to take care of a seriously ill sibling.
Accordingly, the Court finds there is no genuine dispute as to the fact that Defendant interfered with, restrained, denied, and failed to grant Plaintiff's CFRA qualifying leave. It is also undisputed that Plaintiff reapplied for the same position when she returned from Mexico one month after she resigned, and that Defendant denied her application and failed to reinstate her in violation of the CFRA. See Rogers, 198 Cal. App. 4th at 488, 130 Cal. Rptr.3d 350 ("CFRA's reinstatement right only applies when an employee returns to work on or before the expiration of the 12-week protected leave"). The Court therefore GRANTS Plaintiff's MSJ as to Claims 1 through 5.
C. CFRA Discrimination and Retaliation (Claims 6 & 7)
It is unlawful "for an employer to refuse to hire, or to discharge, fine, suspend, expel, or discriminate against" any individual for exercising his or her right to leave under CFRA. Cal. Gov't Code § 12945.2(k). Claims for retaliation or discrimination under CFRA "prevent employers from terminating or otherwise taking action against employees because they exercise th[eir CFRA] rights." Richey v. AutoNation, Inc., 60 Cal. 4th 909, 920, 182 Cal.Rptr.3d 644, 341 P.3d 438 (2015).
On a motion for summary judgment based on discrimination and retaliation claims, the Court applies the burden-shifting scheme articulated by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Quesada, 2022 WL 2176512, at *6; Moore, 248 Cal. App. 4th at 248, 206 Cal.Rptr.3d 841 ("[T]he McDonnell Douglas burden shifting analysis applies to retaliation claims under CFRA."). First, the plaintiff has the "initial burden of establishing a prima facie case of discrimination [or retaliation]." Dep't of Fair Emp. & Hous. v. Lucent Techs., Inc., 642 F.3d 728, 745 (9th Cir. 2011) (quoting Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1220 (9th Cir. 1998)). Second, the burden shifts to the defendant to show either that a plaintiff cannot establish an element of the claim or that there was a "legitimate, nondiscriminatory [or nonretaliatory] reason for its decision to terminate plaintiff's employment." Id. (quoting Avila, 165 Cal. App. 4th at 1247, 82 Cal.Rptr.3d 440). Third, the burden shifts back to the plaintiff to show that "the employer's showing was untrue or pretextual." Id. at 746 (quoting Hanson v. Lucky Stores, Inc., 74 Cal. App. 4th 215, 225, 87 Cal.Rptr.2d 487 (1999)).
To establish a prime facie case of CFRA retaliation or discrimination, a plaintiff must show that: "(1) the defendant was an employer covered by CFRA; (2) the plaintiff was an employee eligible to take CFRA leave; (3) the plaintiff exercised her right to take leave for a qualifying CFRA purpose; and (4) the plaintiff suffered an adverse employment action, such as termination, fine, or suspension, because of her exercise of her right to CFRA leave." Faust, 150 Cal. App. 4th at 886, 58 Cal.Rptr.3d 729 (quoting Dudley v. Dep't of Transp., 90 Cal. App. 4th 255, 261, 108 Cal.Rptr.2d 739 (2001)).
The parties do not dispute either of the first two elements: Defendant was an employer covered by CFRA because it employs five or more persons to perform services for a wage or salary and Plaintiff was eligible to take CFRA leave. See Cal. Gov't Code § 12945.2(b)(4). The Court already found that Plaintiff sufficiently exercised her right to request CFRA leave, which satisfies the third element. As for the fourth element, the parties dispute whether Plaintiff suffered an adverse employment action. Defendant argues that it did not take any adverse employment action against Plaintiff because she voluntarily resigned. Defendant further argues that its subsequent decision to process her resignation was unrelated to Plaintiff's exercise of her right to take CFRA leave. Plaintiff argues that she was effectively forced to resign because Defendant denied her CFRA leave.
In Quesada v. Albertson's LLC, the defendant made the same argument that plaintiff's voluntary resignation could not constitute an adverse employment action. 2022 WL 2176512, at *6-7. The plaintiff sent a resignation email after his employer denied plaintiff's request for CFRA leave to take care of his mother. Id. The court found that, for purposes of summary judgment, a reasonable jury could conclude that plaintiff was terminated when the defendant processed what it construed to be plaintiff's resignation. Id. at *7 (citing Leidenheimer v. O'Reilly Auto. Stores, Inc., No. CV 13-09568 DDP (VBKx), 2015 WL 12912323, at *3, *7 (C.D. Cal. Oct. 7, 2015) (finding a genuine dispute of material fact as to whether plaintiff suffered an adverse employment action, where defendants argued that plaintiff voluntarily quit but plaintiff contended he was terminated); Tipton v. Airport Terminal Servs., Inc., No. CV 18-09503-AB (JEMx), 2020 WL 3980127, at *4 n.2 (C.D. Cal. Mar. 31, 2020) (assuming for purposes of summary judgment that plaintiff was terminated where parties disputed whether she voluntarily resigned or was terminated)). The court also found that the temporal proximity between plaintiff's leave and defendant's decision to process his termination sufficiently established a prima facie case that plaintiff was terminated because he exercised his right to CFRA leave. Id.
Here, drawing all reasonable inferences in Plaintiff's favor as the nonmoving party, the Court finds that a jury could conclude that Plaintiff suffered an adverse employment action. The Court assumes that Plaintiff did not voluntarily resign; instead, she was forced to do so when Defendant denied her request for CFRA leave to take care of her brother in Mexico. Like in Quesada, Plaintiff was effectively terminated when Defendant processed her resignation letter and refused to reinstate Plaintiff when she returned from Mexico. Thus, Plaintiff has established a prima facie case of retaliation.
The burden now shifts to Defendant to provide a "legitimate, nondiscriminatory reason for its decision to terminate plaintiff's employment." Lucent Techs., 642 F.3d at 745. Defendant argues that it had a legitimate reason to deny Plaintiff's leave request. Namely, Soto testified that he denied Plaintiff's request because Defendant's Edgewood facility, where Plaintiff worked, was experiencing staff shortages. (JAE 72:14-21). However, the pertinent question is not whether Defendant had a legitimate, nondiscriminatory reason to deny Plaintiff's leave request. The adverse employment action Plaintiff complains of is her wrongful termination. See (MSJ at 42). Thus, Defendant must demonstrate a legitimate, nondiscriminatory reason for terminating Plaintiff's employment. Defendant has failed to make such a showing. It cannot be a legitimate reason to terminate Plaintiff due to short staffing because such a termination would only exacerbate the problem by eliminating an additional staff member. Of course, if Plaintiff was terminated because she requested CFRA leave, such a reason is plainly discriminatory. Therefore, having failed to offer a legitimate, nondiscriminatory reason for terminating Plaintiff's employment, the Court DENIES Defendant's MSJ as to Plaintiff's Claims 6 and 7.
The Court notes that, even if Defendant had a legitimate, nondiscriminatory reason, Plaintiff has met her burden to show that Defendant's "showing was untrue or pretextual." Lucent Techs., 642 F.3d at 746.
D. FEHA Claims
Defendant moves for summary judgment as to each of Plaintiff's three claims brought under the FEHA for (1) associational disability discrimination, (2) retaliation, and (3) failure to prevent discrimination and retaliation. The Court considers each in turn.
1. Associational Disability Discrimination (Claim 8)
Under the FEHA, it is unlawful for an employer, because of a person's physical or mental disability, "to discharge the person from employment . . . or to discriminate against the person in compensation or in terms, conditions, or privileges of employment." Cal. Gov't Code § 12940(a). Discrimination based physical or mental disability "includes a perception that the person . . . is associated with a person who has, or is perceived to have," such a disability. Id. § 12926(o). "Accordingly, when FEHA forbids discrimination based on a disability, it also forbids discrimination based on a person's association with another who has a disability." Castro-Ramirez v. Dependable Highway Express, 2 Cal. App. 5th 1028, 1036, 207 Cal.Rptr.3d 120 (2016). To establish a prima facie case of associational disability discrimination, a plaintiff must show: (1) that he or she is associated with a disabled person, (2) that "the plaintiff was otherwise qualified to do his or her job, with or without reasonable accommodation," and (3) that the plaintiff was subjected to an adverse employment action because of his or her association with a disabled person. Id. at 1037, 207 Cal.Rptr.3d 120. Under the third element, "the disability must be a substantial factor motivating the employer's adverse employment action." Id. (citing Cal. Gov't Code § 11009(c)).
In, Castro-Ramirez, the seminal case addressing associational discrimination, the California Court of Appeal held that there may be discrimination based on associational disability where the employer denied plaintiff's scheduling modification requests despite informing the employer that he was the only person who could administer his son's kidney dialysis, thereby limiting his available work hours. 2 Cal. App. 5th at 1042-43, 207 Cal.Rptr.3d 120. The court held it was reasonable to infer that the employer "wanted to avoid the inconvenience and distraction plaintiff's need to care for his disabled son posed to" the employer. Id. at 1043, 207 Cal.Rptr.3d 120.
As another court in the Central District recently observed, "[b]ecause case law in this area is very limited, the nature and extent of the type of associational disability that gives rise to FEHA's protections is not very clear." Wentzo v. Signavio, Inc., No. CV 21-09968 TJH, 2022 WL 16858834, at *7-8 (C.D. Cal. Sept. 26, 2022) (dismissing associational discrimination case where the plaintiff had not alleged that his wife "required care that only he could provide, such that his ability to work" was impaired). In Quesada, the court observed that the only published California court cases addressing FEHA associational discrimination claims turned on whether the adverse employment decisions "were made to avoid future costs or inconveniences related to the disability." 2022 WL 2176512, at *11 (emphasis in original). Although the plaintiff in Quesada abandoned his claim for associational discrimination, the court noted that his claim would have failed nevertheless because the plaintiff had not shown how the defendant's decision to terminate him indicated an attempt to avoid any future cost stemming from the plaintiff's association with his disabled mother. Id.
Here, like in Quesada, Plaintiff has not shown that Defendant's decision to terminate her employment was motivated in any way by a desire to avoid future costs or inconveniences. Plaintiff only requested a modest three weeks of leave. (JAF 12). Plaintiff gave no indication to Defendant that she would need to continue providing care for her brother in Mexico beyond those three weeks. Accordingly, there was no reason for Defendant to have thought that it could avoid future costs or inconveniences by terminating Plaintiff based on her association with her seriously ill brother. Thus, the Court GRANTS Defendant's MSJ as to Claim 8.
2. Retaliation (Claim 9)
The FEHA makes it unlawful for an employer "to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part." Cal. Gov't Code § 12940(h). The McDonnell Douglas burden-shifting framework applies to a claim for retaliation under FEHA. See Moore, 248 Cal. App. 4th at 244, 206 Cal.Rptr.3d 841. To establish a prima facie case of retaliation under the FEHA, "a plaintiff must show (1) he or she engaged in a 'protected activity,' (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer's action." Yanowitz v. L'Oreal USA, Inc., 36 Cal. 4th 1028, 1042, 32 Cal.Rptr.3d 436, 116 P.3d 1123 (2005).
Defendant argues that Plaintiff did not engage in a "protected activity" because she did not protest Defendant's denial of her leave request. (MSJ at 48). Plaintiff argues that she did not need to oppose Defendant's unlawful conduct for Defendant to have retaliated against her. (MSJ at 49-50). Plaintiff is right that it is not necessary for an employee to explicitly inform his or her employer that the employee opposes conduct that he or she reasonably believes is unlawful; instead, "the circumstances surrounding the employee's conduct" can be sufficient to establish that the employer knew an employee's engaging in protected activity "was based on the employee's reasonable belief" that the employer's conduct is discriminatory. See Yanowitz, 36 Cal. 4th at 1046, 32 Cal.Rptr.3d 436, 116 P.3d 1123. Nevertheless, to qualify as "protective activity," Plaintiff must have done more than simply make a request for family leave. Whereas a request for CFRA leave "can qualify as 'protected activity' for purposes of a FEHA retaliation claim in some instances, a mere request—or even repeated requests—for an accommodation, without more, does not constitute a protected activity sufficient to support a claim for retaliation in violation of FEHA." Quesada, 2022 WL 2176512, at *14 (internal quotation marks and alterations omitted); see also Castorela v. James R. Glidewell, Dental Ceramics, Inc., No. SACV 14-02039-CJC(JCGx), 2016 WL 11760590, at *8 (C.D. Cal. Jan. 25, 2016) (collecting cases concluding that "a plaintiff who is denied CFRA/FMLA leave or analogous accommodations—even if that denial leads to the employee's termination—has not engaged in 'protected activity' under the meaning of § 12940(h)"). Because Plaintiff concedes that she did not oppose Defendant's denial of her requested accommodation, the Court finds that Plaintiff did not engage in a protected activity. Thus, the Court GRANTS Defendant's MSJ as to Claim 9.
3. Failure to Prevent Discrimination and Retaliation (Claim 10)
Under the FEHA, it is an unlawful employment practice for an employer "to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring." Cal. Gov't Code § 12940(k). "The employer's duty to prevent harassment and discrimination is affirmative and mandatory." Nazir v. United Airlines, Inc., 178 Cal. App. 4th 243, 288, 100 Cal.Rptr.3d 296 (2009) (quoting Northrop Grumman Corp. v. Workers' Comp. Appeals Bd., 103 Cal. App. 4th 1021, 1035, 127 Cal.Rptr.2d 285 (2002)). To prevail on a claim for failure to prevent discrimination, "a plaintiff must establish three elements: '1) plaintiff was subjected to discrimination, harassment or retaliation; 2) defendant failed to take all reasonable steps to prevent discrimination, harassment or retaliation; and 3) this failure caused plaintiff to suffer injury, damage, loss or harm.' " Marshall v. Boeing Co., No. CV 16-8630-DMG (MRWx), 2019 WL 4391112, at *4 (C.D. Cal. June 10, 2019) (quoting Lelaind v. City & Cnty. of S.F., 576 F. Supp. 2d 1079, 1103 (N.D. Cal. 2008)). However, a plaintiff cannot sustain a claim for failure to take all reasonable steps to prevent discrimination "absent a finding of actual discrimination or harassment." Abdul-Haqq v. Kaiser Found. Hosps., No. C 14-4140 PJH, 2015 WL 335863, at *2 (N.D. Cal. Jan. 23, 2015); see also Trujillo v. N. Cnty. Transit Dist., 63 Cal. App. 4th 280, 289, 73 Cal.Rptr.2d 596 (1998) ("[T]here's no logic that says an employee who has not been discriminated against can sue an employer for not preventing discrimination that didn't happen.").
Here, for the reasons stated above, the Court finds that the record supports neither Plaintiff's claim for associational disability discrimination nor her claim for retaliation, and so it concludes that her claim for failure to prevent discrimination and retaliation necessarily fails, too. See Lucent Techs., 642 F.3d at 748 (affirming grant of summary judgment on FEHA failure to prevent discrimination claim given lack of viable claim for discrimination). Therefore, the Court GRANTS Defendant's MSJ as to Claim 10.
E. Wrongful Termination (Claim 11)
Plaintiff's final claim is for wrongful termination in violation of public policy. In California, a violation of the CFRA may form the basis of a common law wrongful discharge claim. "Discharge in violation of the CFRA has been held, as a matter of law, to constitute wrongful discharge in violation of public policy." Xin Liu v. Amway Corp., 347 F.3d 1125, 1137-38 (9th Cir. 2003) (citing Nelson v. United Techs., 74 Cal. App. 4th 597, 607, 88 Cal.Rptr.2d 239 (1999) ("[A] claim for tortious wrongful discharge based upon the CFRA . . . may be stated under California law.")). Having awarded summary judgment in Plaintiff's favor as to her claims of CFRA interference, Plaintiff may therefore state a claim for wrongful termination. Thus, the Court DENIES Defendant's MSJ as to Claim 11.
IV. CONCLUSION
For the foregoing reasons, Plaintiff's motion to strike is GRANTED; Plaintiff's MSJ is GRANTED as to Claims 1 through 5; and Defendant's MSJ is DENIED as to Claims 1 through 7 and 11, and GRANTED as to Claims 8 through 10.
IT IS SO ORDERED.