Opinion
C077515
12-30-2016
DEBBIE STREICH, Plaintiff and Appellant, v. JCM PARTNERS, LLC, Defendant and Respondent.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 34-2012-00132493-CU-WT-GDS)
Jose Gomez worked at home as a part-time leasing agent for JCM Partners, Inc., a property management company (JCM). The position was sedentary and required use of a telephone and a computer. In March 2011, Gomez took a short approved medical leave for surgery. Complications from surgery left him paralyzed and unable to return to work after his leave expired. Over the next two months, neither Gomez nor his wife Debbie Streich responded to JCM's multiple requests for a note from his doctor setting forth his medical condition, his ability to work, and his expected return date. On May 24, 2011, JCM terminated Gomez for job abandonment.
Gomez brought suit against JCM for employment discrimination in violation of the Fair Employment and Housing Act (FEHA), the California Family Rights Act (CFRA), and public policy, contending that he could have returned to work. JCM successfully moved for summary judgment. Gomez appealed.
After Gomez passed away on June 2, 2016, his widow Streich moved to continue his claims as successor in interest pursuant to Code of Civil Procedure section 377.31. This court granted the motion.
On appeal, Gomez contends it was error to grant summary judgment because he submitted evidence sufficient to raise a triable issue of material fact that (1) he was a qualified individual with a disability, that is, he could perform the essential functions of the job with reasonable accommodation; (2) the stated reason for his termination was a pretext for discrimination; (3) JCM failed to engage in the interactive process; (4) JCM failed to provide reasonable accommodation; (5) JCM terminated him while he was on protected medical leave under the CFRA; (6) JCM terminated him due to age discrimination; and (7) his termination was against public policy.
All of Gomez's claims are premised on his assertion that he could have returned to his job with the reasonable accommodations of a finite leave of absence until September 1, 2011 and assistive devices, namely a Bluetooth device and a hand gripper. However, the evidence he submitted to substantiate this assertion is contrary to his deposition testimony, his statements in applications for disability insurance, allegations in his medical malpractice lawsuit, and his answers to interrogatories in that lawsuit. Thus, Gomez fails to raise a triable issue of material fact. Accordingly, we affirm.
FACTS
Gomez's Employment with JCM
Gomez was born in 1944 and was 66 years old when terminated. In 2003, he began working as a leasing agent for JCM and his pay was $9 an hour. In 2009, he took the part-time position of an after-hours leasing specialist, working out of his home. He worked six days a week from 5:00 p.m. to 10:00 p.m. His job was to answer phone calls and e-mails after regular business hours. He answered questions and provided information about properties and set up appointments to tour properties. JCM provided him with a computer with internet access and a telephone. He also needed a printer/scanner /fax machine. Gomez reported to Michael Sloan, the regional manager of rental properties.
Two women had the same job classification as Gomez. They were much younger, having been born in 1966 and 1987. They had been hired in 2007 and 2009.
Gomez's Surgery and Complications
In 2009, Gomez was diagnosed with an abdominal aortic aneurysm. By March 2011, he needed surgery. By that time, Gomez had also been diagnosed with a thoracic aneurysm. He told Sloan he needed a week off work. Sloan granted the leave and did not ask for any medical documentation.
Gomez had surgery March 9, 2011. Complications during surgery left him partially paralyzed. After nine days in intensive care, he was transferred to the Palo Alto Veteran's Administration Rehabilitation Center for intensive physical therapy. He stayed there until June 16, 2011. He was hospitalized again from June 27 until August 15, 2011.
Communications between Gomez and JCM
Streich called Sloan on March 16 and told him that Gomez was partially paralyzed and unable to return to work the next day as planned. Two days later, Streich told Sloan that Gomez wanted to keep his options open regarding returning to work. Elizabeth Dark, JCM's human resource manager, contacted Streich on March 18, March 24, and April 12, each time requesting a note from Gomez's doctor regarding his condition, his inability to work, and his possible return date. On April 14, Dark called Gomez and asked for documentation of his medical condition.
On April 22, Dark sent a letter to Gomez stating that JCM required anyone absent from work for more than three consecutive days to provide a doctor's note. "You have been out of work since 3/6/2011 and we have yet to receive any notification from your doctor." The letter stated Gomez had been placed on family and medical leave effective March 6, 2011, and he was entitled to 12 weeks of leave. Neither Gomez nor Streich ever received or read this letter; it was returned to JCM marked " 'unclaimed.' "
In May, Streich communicated with Sloan about accommodations to the JCM property in which she and Gomez lived. Gomez's work was not discussed.
Gomez's Termination
On April 14, Dark reported to her manager Roberta Sinkey that she was "getting nowhere" with Streich. On May 10, she inquired of Sinkey and Sloan about terminating Gomez. Sloan instructed her to contact Gomez one more time. On May 24, Dark called both Gomez and Streich but received no answer. That same day, Dark sent Gomez a termination letter. The letter stated that he had been advised of the need for a doctor's note. Since JCM had not received such note, Gomez was terminated for job abandonment. The letter closed by inviting Gomez to call if he had questions. JCM received no response to the termination letter.
Disability Insurance
Streich helped Gomez submit the paperwork for disability insurance. The first form was submitted just after the surgery. The doctor's certificate accompanying the form indicated the doctor did not anticipate releasing Gomez to his regular and customary work until 2020. To continue his benefits, Gomez verified he was still disabled and unable to work on June 24, September 17, and December 5, 2011. In a December 2011 request for medical information, Gomez's doctor (Gilbert Carter, M.D.) stated that Gomez was diagnosed with quadriplegia and would never be able to return to his regular and customary work. Gomez continued to receive disability benefits through March 2012. In May 2011, the Veterans Administration categorized Gomez as "catastrophically disabled."
Lawsuits
In March 2012, Gomez filed a medical malpractice suit against the Regents of the University of California, alleging he suffered paraplegia as a result of negligence. The record does not reveal the result of the lawsuit. In a later deposition, Gomez said the lawsuit was "not happening."
In October 2011, Gomez received a right to sue letter from the Department of Fair Employment and Housing. Gomez filed suit against JCM in September 2012. His first amended complaint set forth four causes of action: (1) disability discrimination, including failure to engage in the interactive process and failure to accommodate; (2) age discrimination; (3) family medical leave discrimination; and (4) wrongful termination in violation of public policy.
JCM's Motion for Summary Judgment
JCM moved for summary judgment or adjudication. It asserted the undisputed facts showed that Gomez was not a qualified individual; he was incapable of performing the work from March 9, 2011, until at least March 2012. Further, JCM had a legitimate nondiscriminatory reason to terminate Gomez as he never returned to work after his one-week leave and never provided JCM with any documentation as to his disability, his physical condition and limitations, his need for additional leave, or his ability to return to work.
In support of the motion, JCM provided the declaration of Dr. Carter, who had treated Gomez in 2011, declarations of Dark, Sloan, and Sinkey, e-mails between JCM and Streich, excerpts of Gomez's deposition, and the medical malpractice suit and Gomez's answers to interrogatories in that suit.
Gomez opposed the motion, contending there were triable issues as to JCM's motive in terminating him and whether he could perform the job with reasonable accommodations. In support he provided excerpts from his own deposition, as well as that of Streich and various JCM employees; and his own declaration, as well as that of Streich; a vocational expert; and the amended declaration of Dr. Carter. Details of both supporting and opposing evidence are set forth in the Discussion section post.
The trial court granted the motion for summary judgment. The court found that at the time of Gomez's termination, JCM knew only that Gomez was unable to return to work and might never return. An indefinite medical leave was not required.
Gomez's motion for a new trial (reconsideration on the granting of summary judgment) was denied.
DISCUSSION
I
Claims Based on Disability
A. Disability Discrimination
1. The Law
It is an unlawful employment practice to discharge an employee based on physical disability, unless based upon a bona fide occupational qualification. (Gov. Code, § 12940, subd. (a).) An employer is not prohibited from discharging an employee with a physical disability where the employee, because of the physical disability, is unable to perform the essential functions of the job even with reasonable accommodations. (Id., subd. (a)(1).)
"Because of the similarity between state and federal employment discrimination laws, California courts look to pertinent federal precedent when applying our own statutes. [Citation.] In particular, California has adopted the three-stage burden-shifting test established by the United States Supreme Court for trying claims of discrimination." (Guz v. Bechtel National Inc. (2000) 24 Cal.4th 317, 354 (Guz).) At trial, this so-called McDonnell Douglas test "places on the plaintiff the initial burden to establish a prima facie case of discrimination. This step is designed to eliminate at the outset the most patently meritless claims, as where the plaintiff is not a member of the protected class or was clearly unqualified, or where the job he sought was withdrawn and never filled." (Ibid.)
"To establish a prima facie case under the FEHA on grounds of physical disability, [plaintiff] had to present evidence showing he suffered a physical disability within the meaning of the FEHA, he was otherwise qualified for his job, and he suffered an adverse employment action because of the physical disability. [Citations.]" (Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1006.)
While Gomez had the burden at trial to prove disability discrimination, on summary judgment JCM, as the moving party, had to establish that there were no material factual issues and that it was entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) A defendant shows a cause of action has no merit if it shows one or more elements of that cause of action cannot be established. Once defendant meets that burden, the burden shifts to the plaintiff to show triable issues of material fact exist as to that cause of action. (Code Civ. Proc., § 437c, subd. (p)(2).)
2. JCM's Showing
JCM sought to show that Gomez was not, in federal parlance, "a qualified person with a disability" or under California law, that he could not perform the essential functions of the job with or without reasonable accommodations. (Gov. Code, § 12940, subd. (a)(1).) JCM moved for summary adjudication of the disability discrimination claims on the basis that Gomez was incapable of performing any work when he was terminated on May 24, 2011, and that he was incapable of performing any work until at least March 2012.
JCM presented Dr. Carter's declaration as evidence; he had provided medical services to Gomez for a month in November and December of 2011 and declared that as of December 15, 2011, Gomez was incapable of performing his regular work and would never be able to resume his regular and customary work due to his quadriplegia.
JCM also submitted portions of Gomez's deposition in which he testified about the disability insurance forms from the Employment Development Department (EDD) that he completed. On these forms he had declared that he was incapable of regular work on June 24, September 17, and December 5, 2011. He received disability benefits through March 2012. He testified the doctor said he was incapable of working in September 2011. At his deposition in July 2013, Gomez was unable to say when he had been able to return to work. He thought he could return to work at JCM "[p]robably after I started feeling better," "[m]aybe after the turn of the year." Thus, the earliest date Gomez could identify for a return to work was in early 2012.
Finally, JCM presented Gomez's medical malpractice case against the Regents of the University of California. In that lawsuit Gomez alleged the injury he suffered due to defendants' negligence prevented him from attending to his usual activities and would in the future. In answers to interrogatories filed June 28, 2012, Gomes described his injury: "permanent quadriplegia as a result of which plaintiff is confined to bed or a wheelchair; Loss of bowel and bladder function. Plaintiff can no longer work. He is completely dependent on his spouse for all functions of daily living: plaintiff requires assistance with dressing, undressing and transfers as well as assistance with eating, bathing and personal hygiene. Plaintiff has some difficulty breathing due to sporadic spasms that happen mostly at night and regularly disrupt his sleep. He suffers from frequent severe pain in head, neck, shoulder, back, arm, bowel and rectum and he also has excessive sweating, particularly in his hands that requires medication; The couple's relationship is no longer that of husband and wife but that of patient/caretaker. They are no longer able to engage in sexual activity, to travel, to share hobbies (including hiking and photography) and day to day chores such as shopping and work around the home; plaintiff must now consider moving to a more accessible, barrier-free location at significant financial cost and to sell his truck that he can no longer drive, but must still maintain and store. Plaintiff cries daily and suffers from extreme depression and emotional distress." In answer to a question about lost future income, Gomez stated he "will never be able to work again."
JCM met its burden to show that at the time of his termination and for many months thereafter Gomez could not perform the essential functions of the job with or without reasonable accommodations. (Gov. Code, § 12940, subd. (a)(1).)
3. Gomez's Showing
In opposition, Gomez contended that he could perform the essential functions of the job with the reasonable accommodations of assistive devices and a finite leave of absence until September 1, 2011. He offered three declarations to raise a triable issue of material fact as to whether he could perform the job as of September 2011.
As Gomez recognizes, an indefinite leave is not a reasonable accommodation as FEHA " 'does not require the employer to wait indefinitely for an employee's medical condition to be corrected. . . .' [Citation.]" (Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 226-227 (Hanson).) Gomez is inconsistent as to the length of leave he would have required. In opposition to JCM's motion for summary judgment, Gomez contended a six-month leave was required, while on appeal he asserts he needed only two months leave. We construe Gomez's position to be that he required a leave of absence ending September 1, 2011, as he claimed he could have resumed working as of that date in both his opposition to summary judgment and on appeal.
The first declaration did not address Gomez's capabilities as of September 1, 2011, but his possible capabilities three and a half months later. In an amended declaration, Dr. Carter declared that while quadriplegia renders most people completely disabled, after learning the precise duties of Gomez's job, he could no longer state that Gomez's disability was 100 percent. He stated: "Gomez may very well have been capable of performing the essential functions of the after-hours leasing specialist as of December 15, 2011."
In his declaration, Gomez tried to explain why his statements about his inability to work, made in both applications for disability benefits and in his medical malpractice case, were not inconsistent with his current position that he could have returned to work in September 2011. Gomez declared that when he completed various forms from the EDD in order to secure temporary disability, stating he was unable to perform his regular and customary work, "I did not mean that I could not perform my regular or customary work with reasonable accommodation or that I would never be able to work again with reasonable accommodation." Rather, he believed he could return to work with a finite leave of absence and certain assistive devices. In his verified responses to interrogatories, he stated he "was unable to work and would never be able to work again." Gomez explained, "My responses to these interrogatories did not state that I could not and never would be able to perform any job so long as I was provided with reasonable accommodations, such as assistive devices for use of the phone and computer. In verifying these interrogatories, I did not understand my statements that I was unable to work or would never be able to work as being inconsistent with a statement that I could work with reasonable accommodations."
a. The Cleveland Case
In Cleveland v. Policy Mgmt. Sys. Corp. (1999) 526 U.S. 795 (Cleveland), the United States Supreme Court considered whether an employee who applied for and received Social Security Disability Insurance (SSDI) from the Social Security Administration (SSA) was estopped from pursuing a claim of disability discrimination under the Americans with Disabilities Act (ADA). The court held the plaintiff was not precluded from pursuing a disability discrimination claim, nor "does the law erect a strong presumption against the recipient's success under the ADA." (Id. at pp. 797-798 [143 L.Ed.2d at pp. 971-972].) The court explained that a claim of disability for SSDI benefits does not necessarily conflict with a claim that the employee could work. "[W]hen the SSA determines whether an individual is disabled for SSDI purposes, it does not take the possibility of 'reasonable accommodation' into account, nor need an applicant refer to the possibility of reasonable accommodation when she applies for SSDI." (Id. at p. 803 .) The court also stressed the need for a simplified process, "eliminating consideration of many differences potentially relevant to an individual's ability to perform a particular job," due to the large number of SSDI claims. (Id. at p. 804 .)
The court made a distinction between a factual assertion and a legal one, noting that "[a]n SSA representation of total disability differs from a purely factual statement in that it often implies a context-related legal conclusion, namely, 'I am disabled for purposes of the Social Security Act.' " (Cleveland, supra, 526 U.S. at p. 802 [ 143 L.Ed.2d at p. 974].) The court concluded that some SSDI claims may genuinely conflict with an ADA claim, such as where the plaintiff swears in her application that she is " 'unable to work.' " (Id. at pp. 805, 806 .) "[A]n ADA plaintiff cannot simply ignore her SSDI contention that she was too disabled to work. To survive a defendant's motion for summary judgment, she must explain why that SSDI contention is consistent with her ADA claim that she could 'perform the essential functions' of her previous job, at least with 'reasonable accommodation.' " (Id. at p. 798 .) "To defeat summary judgment, that explanation must be sufficient to warrant a reasonable juror's concluding that, assuming the truth of, or the plaintiff's good faith belief in, the earlier statement, the plaintiff could nonetheless 'perform the essential functions' of her job, with or without 'reasonable accommodation.' " (Id. at p. 807 .)
The Cleveland court found the plaintiff provided a sufficient explanation of the discrepancy to survive summary judgment. (Cleveland, supra, 526 U.S. at p. 807 .) First, she explained her statements that she was " 'totally disabled' " " 'were made in a forum which does not consider the effect that reasonable workplace accommodations would have on the ability to work.' " (Ibid.) Second, she claimed the statements were " 'accurate statements' " if examined " 'in the time period in which they were made,' " suggesting her condition changed to some degree during the applicable time periods. (Ibid.) "And the nature of an individual's disability may change over time, so that a statement about that disability at the time of an individual's application for SSDI benefits may not reflect an individual's capacities at the time of the relevant employment decision." (Id. at p. 805 .)
Because of the similarity between state and federal employment discrimination laws, California courts look to federal court interpretation of the ADA for guidance in interpreting FEHA. (Guz, supra, 24 Cal.4th at p. 354; Hanson, supra, 74 Cal.App.4th at p. 224, fn. 7.) Accordingly, we adopt the reasoning of Cleveland.
b. Sufficiency of Explanation of Discrepancy
We next consider what explanation is sufficient "to warrant a reasonable juror's concluding that, assuming the truth of, or the plaintiff's good faith belief in, the earlier statement, the plaintiff could nonetheless 'perform the essential functions' of her job, with or without 'reasonable accommodation.' " (Cleveland, supra, 526 U.S. at p. 807 .)
In some cases, the specificity of the assertions made in the application for disability benefits precludes a plaintiff from explaining how they are not inconsistent with a later claim of disability discrimination. For example, in Reed v. Petroleum Helicopters, Inc. (5th Cir. 2000) 218 F.3d 477, plaintiff was a helicopter pilot whose employment was terminated following an off-the-job injury. In her application for SSDI benefits, she stated she could not sit for long periods of time and her back was so unstable she was " 'totally unpredictable.' " (Id. at p. 479.) The court found these specific factual statements were inconsistent with the claim in her ADA lawsuit that she could fly a helicopter. (Id. at p. 480; see also McClaren v. Morrison Mgmt. Specialists, Inc. (5th Cir. 2005) 420 F.3d 457, 466 [estoppel applies "where the plaintiff's factual descriptions supporting disability preclude the possibility of qualification as of a certain date"].)
Here, Gomez's sworn statements on the EDD forms were simply affirmative responses to the question "ARE YOU STILL DISABLED AND INCAPABLE OF DOING YOUR REGULAR WORK?" He provided no specific factual assertions as to what he could or could not do. His explanation to resolve the apparent discrepancy between his earlier claim of disability and his later claim of that he could perform the job at JCM was that he "did not mean that [he] could not perform my regular or customary work with reasonable accommodation or that [he] would never be able to work again with reasonable accommodation." Apparently, although unstated, Gomez was relying on the contextual differences between being disabled such that he was eligible to receive disability benefits, and disabled yet able to work with reasonable accommodations.
In Motley v. New Jersey State Police (3d Cir. 1999) 196 F.3d 160, the Third Circuit found that simply pointing out the differences between disability benefits and a claim of disability discrimination alone is insufficient. "[I]f this argument alone allowed ADA plaintiffs who had previously applied for SSDI-type benefits to survive summary judgment, summary judgment could never be granted. Because the Supreme Court indicated that summary judgment would indeed be appropriate in some cases, an ADA plaintiff must, in certain circumstances, provide some additional rationale to explain the plaintiff's apparent about-face concerning the extent of the injuries. Considering the different contexts in which the two statutory regimes operate could, of course, be crucial to understanding how an ADA plaintiff's particular claims may be reconciled. The additional justification presented by the plaintiff could, in theory, go into detail regarding the facts of his or her case, demonstrating how the differing statutory contexts makes their statements made under one scheme reconcilable with their claims under the other." (Id. at p. 165.)
Gomez's attempt to reconcile his earlier claim of being too disabled to work with his later claim that he could work relied only on the distinction between the statutory schemes for disability benefits and that for disability discrimination. Reliance on this explanation was found insufficient in Motley. We need not rely on Motley alone, however, because Gomez's statements in EDD forms that he was disabled were not made in a vacuum. JCM provided additional evidence as to his condition in the year after he became paralyzed. This evidence establishes JCM's asserted undisputed fact that during that period Gomez could not work at all.
The medical evidence indicated that Gomez could not work. The initial doctor's certificate supporting a claim for disability benefits indicated Gomez would be released to return to work on January 1, 2020. In December 2011, Dr. Carter stated Gomez would never be able to return to work, and he confirmed that Gomez would never be able to resume his regular and customary work again in a later declaration. Gomez testified in his deposition that the doctor said he was incapable of working in September 2011. "To rule in favor of plaintiff on this point would be to hold that the employer should have returned plaintiff to work when the professional medical judgment was that he was physically incapacitated." (Swonke v. Sprint Inc. (N.D.Cal. 2004) 327 F.Supp.2d 1128, 1133.)
In his medical malpractice case, filed almost a year after he became paralyzed, Gomez alleged he was unable to attend to his usual activities. In answers to interrogatories in that case, he claimed he could "no longer work" and "will never be able to work again." Significantly, in the context of a medical malpractice action, where the plaintiff must establish damages, any ability to work with reasonable accommodations would be relevant as a form of mitigation of damages, unlike in the context of a claim for disability benefits where reasonable accommodation is not considered.
JCM contends Gomez is judicially estopped from contradicting his factual assertions in the medical malpractice case. Judicial estoppel applies when: "(1) the same party has taken two positions; (2) the positions were taken in judicial or quasi-judicial administrative proceedings; (3) the party was successful in asserting the first position (i.e., the tribunal adopted the position or accepted it as true); (4) the two positions are totally inconsistent; and (5) the first position was not taken as a result of ignorance, fraud, or mistake." (Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 183.) There is no evidence in the record that Gomez was successful in his medical malpractice case; in his deposition he said the case was "not happening." Since the third requirement was not met, judicial estoppel does not apply. (See Cleveland, supra, 526 U.S. at p. 805 ["if an individual has merely applied for, but has not been awarded, SSDI benefits, any inconsistency in the theory of the claims is of the sort normally tolerated by our legal system"].) We consider his factual assertions in the medical malpractice case not as binding admissions, but rather as part of the context in which his earlier statements of disability were made to EDD to determine whether his subsequent attempt to reconcile his two positions could have been accepted by a reasonable jury, as required by Cleveland.
Finally, in his deposition for this case, Gomez could not identify a date by which he would have been able to return to his job at JCM. At best, he suggested it might have been in 2012 "after I started feeling better."
Viewed in the context of all the evidence submitted, Gomez's attempt to explain the discrepancy between his differing statements about his ability to work was insufficient "to warrant a reasonable juror's concluding that, assuming the truth of, or the plaintiff's good faith belief in, the earlier statement, [that] the plaintiff could nonetheless 'perform the essential functions' of her job, with or without 'reasonable accommodation.' " (Cleveland, supra, 526 U.S. at p. 807 .)
c. Stauber's Declaration
Gomez attempted to create a triable issue of fact as to whether he could have returned to work at JCM with reasonable accommodations in September 2011 with the declaration of Howard Stauber, a vocational expert. Stauber reviewed Gomez's deposition and medical records, and interviewed and examined Gomez on April 30 and May 23, 2014. He asked Gomez to demonstrate the use of a telephone and computer. In recognition of the fact that performing the job required more than simply the ability to use these two devices, Stauber observed Gomez's ability to sit in a wheelchair for four hours while remaining focused, articulate, and competent. Gomez said the condition of his hands and arms had improved slightly since mid-August 2011. In Stauber's opinion, Gomez was able to perform the essential functions of his job at JCM with reasonable accommodations--an ergonomic wheelchair, a Bluetooth device, and a hand gripper--on and after September 1, 2011.
Since Stauber's observations occurred three years after the relevant time period, he necessarily relied in large part on Gomez's deposition testimony that he could use both a telephone and a computer as of mid-August 2011. While in the deposition Gomez did testify he could use both a telephone and computer when he was released in mid-August from his second hospitalization, he could not state definitively when he could have returned to work. The earliest date he suggested was in 2012 "after I started feeling better." This statement indicates that Gomez could not return to work in September 2011, despite his ability to use a telephone and computer then, because he did not feel well enough to work. Stauber did not address this statement by Gomez in his declaration. Gomez's stated inability to return to work in 2011 is corroborated by his interrogatory responses in the medical malpractice case where, in June 2012, he complained of "frequent severe pain," and claimed he "cries daily and suffers from extreme depression and emotional distress."
"Admissions or concessions made during the course of discovery govern and control over contrary declarations lodged at a hearing on a motion for summary judgment." (Visueta v. General Motors Corp. (1991) 234 Cal.App.3d 1609, 1613.) Just as one cannot contradict one's own deposition testimony with a self-serving declaration, Gomez cannot create a triable issue of fact by proffering an expert declaration to contradict his own deposition testimony. (See Benavidez v. San Jose Police Dept. (1999) 71 Cal.App.4th 853, 864 [rejecting expert declaration that was based on plaintiff's declaration that contradicted earlier deposition testimony].) "[T]he credibility of the admissions are valued so highly that the controverting affidavits may be disregarded as irrelevant, inadmissible or evasive." (Leasman v. Beech Aircraft Corp. (1975) 48 Cal.App.3d 376, 382.)
B. Failure to Engage in Interactive Process Claim
1. The Law
Under FEHA it is an unlawful employment practice for an employer "to fail to engage in a timely, good faith, interactive process with the employee or applicant to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition." (Gov. Code, § 12940, subd. (n).) Government Code section 12940, subdivision (n) provides an independent basis for liability. (Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 61.)
"FEHA requires an informal process with the employee to attempt to identify reasonable accommodations, not necessarily ritualized discussions." (Nealy v. City of Santa Monica (2015) 234 Cal.App.4th 359, 379.) For the interactive process to work " '[b]oth sides must communicate directly, exchange essential information and neither side can delay or obstruct the process.' [Citation.] 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 "[l]iability for failure to provide reasonable accommodations ensues only where the employer bears responsibility for the breakdown." [Citation.]' [Citation.]" (Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 261.) "It is an employee's responsibility to understand his or her own physical or mental condition well enough to present the employer at the earliest opportunity with a concise list of restrictions which must be met to accommodate the employee. . . . [I]t is the responsibility of both sides to keep communications open and neither side has a right to obstruct the process." (Id. at p. 266.)
Missing information is sometimes the cause of the breakdown of the interactive process. "Where the missing information is of the type that can only be provided by one of the parties, failure to provide the information may be the cause of the breakdown and the party withholding the information may be found to have obstructed the process. The determination must be made in light of the circumstances surrounding a given case." (Beck v. University of Wis. Bd. of Regents (7th Cir. 1996) 75 F.3d 1130, 1135-1136.)
2. Analysis
Gomez contends JCM failed to engage in the interactive process because neither Dark nor Sinkley discussed potential accommodations with him. Gomez, however, failed to provide any information about his medical condition or physical limitations, a necessary prerequisite to such discussions.
On March 16, Streich informed JCM that Gomez was partially paralyzed, would undergo rehabilitation, and could not return to work the next day. Two days later, Streich contacted Sloan and told him that Gomez was at the Palo Alto VA Rehabilitation Center in intensive physical therapy and he wanted to keep his options open for returning to work. Sloan told Streich that Dark would contact him. That same day, Dark e-mailed Streich and told her a doctor's note indicating that Gomez was unable to work and his approximate return was needed, and that she would send paperwork for a leave. On March 24, Dark again contacted Streich, requesting a doctor's note evidencing Gomez's medical condition.
On April 12, Dark again contacted Streich about the necessary doctor's note or declaration. She offered to contact the doctor herself if Streich would provide the contact information. Streich said she would try to get the information that week. Two days later, Dark spoke with Gomez and asked him for documentation as to his medical condition. Gomez said he would get a note from his physical therapist. On May 24, Dark called both Streich and Gomez, but received no answer from either. After JCM terminated Gomez, he did not contact anyone at the company about returning to work.
Gomez faults JCM for failing to clarify that he would be terminated unless he provided the doctor's note and for sending the April 22 letter to his residence although JCM knew neither he nor Streich were then staying there. Although perhaps JCM could have communicated more effectively, it is undisputed that neither Gomez nor Streich, despite numerous requests for information about Gomez's condition, ever provided any such information before JCM terminated Gomez. Given this two-month silence, it was reasonable for JCM to believe that Gomez did not intend to return to work and therefore did not want any accommodation. Indeed, the only existing medical certification by a doctor, which accompanied Gomez's original request for disability benefits in March 2011, indicated Gomez could not return to work until 2020.
In her deposition, Streich claimed she was asked only to ask a doctor for a note, which she did, not to get a doctor's note. The e-mail exchange refutes this assertion.
C. Failure to Provide Reasonable Accommodation
"Under section 12940, it is an unlawful employment practice 'to fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee' unless the employer demonstrates doing so would impose an undue hardship. (§ 12940, subd. (m).) The essential elements of a failure to accommodate claim are: (1) the plaintiff has a disability covered by the FEHA; (2) the plaintiff is a qualified individual (i.e., he or she can perform the essential functions of the position); and (3) the employer failed to reasonably accommodate the plaintiff's disability." (Wilson v. County of Orange (2009) 169 Cal.App.4th 1185, 1192.)
As explained above, Gomez failed to carry his burden to raise a triable issue of fact that he was a qualified individual able to perform the essential functions of the job, one of the elements of a failure to accommodate claim. Accordingly, it was proper to grant summary adjudication of the cause of action for disability discrimination and related claims.
II
CFRA Claim
The amended complaint alleged that Gomez was subject to and went on protected medical leave March 6 through May 29, 2011. This was the period of family and medical leave set forth in the never-received letter of April 22, 2011, from Dark to Gomez. The complaint further alleged that Gomez was terminated while on this leave, and that JCM terminated Gomez "in substantial part because he took protected medical leave."
Under the CFRA, it is an unlawful employment practice to discharge an employee because of his "exercise of the right to family care and medical leave provided by subdivision (a)." (Gov. Code, § 12945.2, subd. (l)(1).) "[T]he elements of a cause of action for retaliation in violation of CFRA under the circumstances of this case are as follows: (1) the defendant was an employer covered by CFRA; (2) the plaintiff was an employee eligible to take CFRA leave; (3) the plaintiff exercised [his] 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 [his] exercise of [his] right to CFRA leave." (Dudley v. Department of Transportation (2001) 90 Cal.App.4th 255, 261.)
In the motion for summary judgment, JCM argued it was entitled to judgment on this claim because Gomez failed to exhaust his administrative remedies by failing to include this claim in his complaint to the Department of Fair Employment and Housing, Gomez was not entitled to protected leave, and Gomez could not have returned at the end of the 12-week leave.
To be eligible for protected leave under the CFRA, an employee must work 1250 hours in the preceding 12 months. (Gov. Code, § 12945.2, subd. (a).) This requirement was set forth in the JCM employee handbook. Gomez was not eligible for the leave because he had worked only 1211 hours in the preceding 12 months.
Gomez contends JCM is estopped from claiming he is ineligible for protected leave. He contends JCM led him to believe he was eligible and entitled to such leave and he relied on these statements. He identifies those statements as JCM's policy regarding medical leave, the grant of his initial medical leave for surgery, the March 18 e-mail advising that Gomez was eligible for medical leave, and the April 22 letter stating Gomez had been placed on medical leave effective March 6 and was entitled to 12 weeks leave.
"The doctrine of equitable estoppel may be applied upon establishing the following four elements: (1) the party to be estopped must be apprised of the facts and (2) must intend that his or her conduct shall be acted upon, or must act in such a way that the party asserting the estoppel had a right to believe it was so intended; additionally, (3) the party advancing the estoppel must be ignorant of the true state of facts and (4) must rely on the conduct to his or her injury." (Olofsson v. Mission Linen Supply (2012) 211 Cal.App.4th 1236, 1245.)
"The essence of an estoppel is that the party to be estopped has by false language or conduct 'led another to do that which he would not otherwise have done and as a result thereof that he has suffered injury.' [Citation.]" (State Compensation Ins. Fund v. Workers' Comp. Appeals Bd. (1985) 40 Cal.3d 5, 16.) "The detrimental reliance must be reasonable." (Schafer v. City of Los Angeles (2015) 237 Cal.App.4th 1250, 1261.)
JCM contends Gomez could not have reasonably relied to his detriment on statements that he was eligible for and had been granted leave under the CFRA. We agree. He cannot rely on the April 22 letter that stated he had been placed on leave effective March 6, because it was undisputed that neither he nor Streich ever saw the letter. Even if, based on his prior leave for surgery, JCM's policy, and the March 18 e-mail, Gomez could have believed medical leave was possible despite his failure to work 1250 hours, it was not reasonable for him to rely on these facts to believe he was both eligible for and had been granted medical leave. This is because he failed to complete the necessary paperwork or provide the necessary documentation to secure medical leave, despite JCM's repeated requests.
V
Age Discrimination Claim
To make a prima facie case of age discrimination an employee must show: "(1) at the time of the adverse action he or she was 40 years of age or older, (2) an adverse employment action was taken against the employee, (3) at the time of the adverse action the employee was satisfactorily performing his or her job and (4) the employee was replaced in his position by a significantly younger person." (Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1003, fns. omitted.)
JCM moved for summary adjudication on this cause of action on the basis that Gomez was incapable of performing the job when he was terminated, JCM had a legitimate reason for terminating him, and Gomez has no evidence of pretext.
It was undisputed that Gomez was not working or capable of working on May 24, 2011; he was still hospitalized. Gomez contends his condition on that date was irrelevant; he could perform the job on September 1, 2011, with accommodations. This argument fails. As explained ante, Gomez failed to raise a triable issue of fact that he could perform the essential functions of the job, with or without accommodations, as of September 1, 2011.
VI
Termination in Violation of Public Policy
The cause of action for wrongful termination in violation of public policy was based on the alleged violations of FEHA and CFRA. Since we have found no triable issue of material fact as to those claims, this cause of action fails as well.
Because Gomez failed to raise a triable issue of fact as to any cause of action, the trial court did not err in granting JCM summary judgment.
DISPOSITION
The judgment is affirmed. JCM is awarded costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1).)
/s/_________
Duarte, J. We concur: /s/_________
Raye, P. J. /s/_________
Nicholson, J.