Opinion
B296560
07-30-2021
LILLIAN GARCIA, Plaintiff and Appellant, v. TIME WARNER CABLE INC., Defendant and Respondent.
Doumanian & Associates, Nancy P. Doumanian; The Arkin Law Firm and Sharon J. Arkin for Plaintiff and Appellant. Hill, Farrer & Burrill, James A. Bowles and Casey L. Morris for Defendant and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Patricia D. Nieto, Judge. Affirmed.
Doumanian & Associates, Nancy P. Doumanian; The Arkin Law Firm and Sharon J. Arkin for Plaintiff and Appellant.
Hill, Farrer & Burrill, James A. Bowles and Casey L. Morris for Defendant and Respondent.
EGERTON, J.
Lillian Garcia appeals from the summary judgment entered in favor of her former employer Time Warner Cable Inc. (TWC). Garcia worked for TWC as a retail sales specialist for almost 15 years. TWC fired her after it found she had knowingly used a discount code-authorized only to retain existing customers-to lower the rates for new internet service customers. TWC asserted Garcia was able to increase her sales metrics, and associated commission, as a result. When Garcia was fired, she was in remission from cancer diagnosed six years earlier. She had returned from a medical leave relating to a second cancer diagnosis about seven months before TWC terminated her employment.
Garcia sued TWC under the Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.) for discrimination based on disability or medical condition, failure to provide reasonable accommodation, and failure to engage in the interactive process; for wrongful termination in violation of public policy; and for other causes of action. The trial court found Garcia failed to present sufficient evidence to demonstrate TWC's decision to fire her was motivated by her medical condition. We agree. The trial court also found the statute of limitations barred Garcia's claims for failure to accommodate and to engage in the interactive process. We agree, and to the extent those claims were based on conduct within the limitations period, Garcia failed to present evidence to raise an issue of material fact for trial. Accordingly, we affirm the judgment.
Statutory references are to the Government Code unless otherwise stated.
Garcia also sued her supervisor Lynn Hall but does not appeal from the judgment entered in Hall's favor. Nor does Garcia challenge the court's summary adjudication of her FEHA-based age discrimination claim in favor of TWC. Garcia does not address the court's summary adjudication of her remaining causes of action for breach of the covenant of good faith and fair dealing and intentional infliction of emotional distress in favor of TWC. She thus has forfeited appellate review of those issues. (Padilla v. Rodas (2008) 160 Cal.App.4th 742, 753, fn. 2.)
FACTS AND PROCEDURAL BACKGROUND
“Because this case comes before us after the trial court granted a motion for summary judgment, we take the facts from the record that was before the trial court when it ruled on that motion.” (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037 (Yanowitz).) In accordance with our standard of review, “[w]e liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Ibid.)
1. Garcia's employment with TWC
TWC is a cable television, high speed internet, telephone, and home security service provider. TWC operates retail stores where customers can come to pay their bills, return or exchange equipment, and receive other forms of customer service. Garcia worked for TWC as a retail sales specialist from September 29, 2000 until TWC terminated her employment, as of April 1, 2015. She provided customer service and sold TWC services to potential customers at its Arcadia store.
At the time of Garcia's termination, Lynn Hall was her direct supervisor; Desiree Chesnutt was TWC's senior director of sales, overseeing all 67 retail stores in Southern California and Southern Arizona; Florentina Wilhelm was the human resources manager for the Arcadia store; and James Shaw was the director of human resources.
2. Garcia's medical leaves and work restrictions
a. Leave and accommodations for breast cancer
In December 2008, Garcia was diagnosed with breast cancer. She took a leave of absence from February 26, 2009 through August 10, 2009 for surgery and chemotherapy. When Garcia returned, she gave Hall a doctor's note releasing her to work 40 hours per week and restricting her from lifting anything over 10 pounds.
Garcia declared Hall told her she had to return by August 10, 2009, or she would lose her job.
Garcia then began 90 days of radiation treatment in the mornings before she went to work. In September 2009, Garcia asked Hall for a temporary four-day-per-week schedule due to fatigue from the treatment. Hall forwarded Garcia's request to human resources and upper management. They granted the four-day schedule for the month of October 2009 only. Garcia had asked for the schedule for the duration of her three-month radiation treatment. After her radiation treatment ended in December 2009, Garcia no longer needed the four-day schedule.
During this time, Garcia also needed a fan to give her relief from the effects of the radiation and earlier chemotherapy. Hall would not let Garcia put the fan on the counter but allowed her to place the fan on the floor. Because the fan did not cool her from the floor, Garcia put it on the counter when Hall was not in the store and took it down if she was told she had to move it.
Garcia testified Hall did not accommodate her 40-hours-per-week work restriction-she “would always make [Garcia] work overtime.” Garcia also testified she was required to lift more than 10 pounds. Hall instituted a buddy system for lifting heavy boxes, but Garcia said she had to lift the boxes by herself when she was alone in the store. She complained to Hall, and Hall told her, “ ‘[D]o what you can do, and then we'll figure it out,' or, ‘Take them one by one, or whatever you need to do.' ” Garcia testified that if she left boxes out, she would get fired for “leaving property out.”
Finally, Garcia testified she wasn't “supposed to travel, ” but Hall made her drive to other TWC stores. Garcia said she was not comfortable going to other stores because she was embarrassed about her wig and being in the car for long periods caused her joint pain. Garcia did not have a medical note; she told Hall she did not want to travel to other stores.
Garcia never spoke to anyone in human resources or complained to anyone about Hall not accommodating her medical condition. Garcia spoke with Wilhelm-a cancer survivor herself-about her diagnosis, treatment, and recovery, but never told Wilhelm she required accommodations or that Hall was not accommodating her medical condition.
b. Other medical leaves
Garcia again took medical leave from September 15, 2012 to January 7, 2013 for knee surgery and post-operative recovery. Garcia's orthopedist cleared her to return to work with no restrictions on January 7, 2013.
Garcia's last medical leave was from June 7, 2014 to August 17, 2014 when she was diagnosed with uterine cancer and had a hysterectomy. TWC's third-party disability administrator notified Hall that Garcia had been released to return to her regular work schedule without restriction. Garcia testified she believed she had some lifting restrictions related to the hysterectomy, but, in any event, her lifting restrictions from her breast cancer treatment remained in effect.
3. TWC's employee handbook and business standards
Garcia acknowledged she received a copy of TWC's employee handbook and it was her responsibility to comply with its policies. She also acknowledged her employment was at-will and TWC could terminate her “at any time, with or without cause or advance notice.”
The handbook includes a section titled, “Employee Conduct and Corrective Action process.” It provides, “Although employment with [TWC] is at-will, the company may use progressive corrective action under this policy at its discretion.” The handbook cautions, “There are certain types of performance problems that justify accelerating [the] corrective action steps, including immediate termination, without going through the usual progressive action process. Thus, depending on the problem, including the number of occurrences, as determined at management's sole discretion, there may be circumstances in which one or more steps are bypassed.”
The handbook continues, “Although it is impossible to list every type of behavior that may be deemed a serious offense, employees can expect to be subject to corrective action, up to and including termination of employment, for violating any of the policies or standards of behavior set forth in this [h]andbook. In addition, behavior that would violate standards of common courtesy, proper workplace conduct, or common sense that is not specifically addressed in the handbook also may lead to corrective action, including termination.”
Employees also were subject to TWC's standards of business conduct, incorporated into the handbook. Garcia acknowledged she received a copy of the standards. The standards “do not catalog every law or policy that applies to” TWC or its employees, but “focus on broad policies and principles that should guide” employees' “personal conduct.”
4. Garcia's pre-termination performance
Garcia received annual merit increases throughout her TWC career. She received her last merit increase on February 20, 2015.
Hall gave Garcia an overall rating of “exceeds expectations” in her February 2014 evaluation of Garcia's 2013 performance. She noted, “[Garcia] will work wherever she's needed without hesitation to meet the needs of the business; however, I would like [her] to consider overtime when the need arises.” Hall also made positive comments about Garcia's customer interactions.
For the 2014 review period, Hall gave Garcia an overall rating of “successfully meets expectations” in her February 27, 2015 evaluation. Hall noted Garcia achieved a “pretty good” disconnect reduction-the percentage of customers she convinced to stay with TWC-of 67 percent.
As for prior discipline, Garcia received a verbal warning in February 2008 for a cash overage of $80; a verbal warning in October 2008 for a cash overage of around $65; a verbal warning in November 2011 for failing to meet performance expectations; and a final written warning in February 2013 when she and another employee left the doors to the safe and cash room open. No property was missing.
5. Garcia's termination
Retail specialists earned commission based on monthly recurring revenue (MRR) and primary sales units (PSU). MRR measures the dollar value of new services the employee sold. PSU measures the number of service units-i.e., internet, phone, or cable subscriptions-the employee sold.
At some point between January and March 2015, Chesnutt received a tip that she believed implicated Garcia in wrongdoing. She asked Kevin Herndon, the sales manager who oversaw Garcia, to conduct a random of audit of Garcia's work orders. Herndon delegated the task to Hall and asked her to look for any unusual activity in Garcia's customer transactions in the past 90 days. The audit revealed that, for three of 10 accounts reviewed, Garcia had used a retention discount code on new customer accounts. A retention code is a special discount rate to be used only to retain existing customers.
For those accounts, Garcia had entered an order for new internet service at the in-store promotional rate of $39.99 per month. Later, she went back into the billing system and entered a retention code to discount the customers' internet rate to $34.99 per month. Garcia was required to get supervisor approval to apply a retention code, or if the supervisor-here, Hall-was unavailable, to enter notes in the customer's account to “flag” the use of the retention code. Garcia did neither for the transactions discovered in the audit. In the audit, Hall also found at least one instance where Garcia had opened a new account for an existing customer at a new address-instead of transferring the existing account-so the customer could receive promotions for new customers.
On March 17, 2015, Claudia Huete, an investigator from TWC's security department, and Wilhelm interviewed Garcia about these inconsistencies in her accounts. According to Wilhelm, Garcia explained she used the retention code when new internet service customers told her they wanted to pay the online promotion price of $34.99, instead of the in-store promotion price of $39.99, and said they would go elsewhere if they didn't get the online price. She then entered the new internet service order with a $39.99 charge and went back into the account later to enter the retention code to reduce the charge to $34.99.
Garcia also wrote and signed a voluntary statement. She wrote she did not intend to use the $34.99 price to make more sales. Rather, she only used it “when [a] customer asked for it[, ]... so TWC would gain a customer” instead of having the customer “go to another service.” She also wrote she had made a mistake when she opened a new account for an existing customer, instead of transferring the service, so the customer could receive promotional pricing.
in-store $39.99 rate and, a few days later, went back into their accounts and entered the retention code to lower the rate to the $34.99 online price. At her deposition, Garcia explained that wasn't exactly what she meant. She applied the retention code to new customers who had signed up online for internet service at the $34.99 rate, but whose orders did not appear in the store's billing system when they came in to pick up their equipment. Garcia resubscribed the customers-for new service-at the
In the interview, Garcia also revealed she had been using the retention code for new internet service customers at least twice a month since TWC introduced it about a year earlier. Garcia admitted she knew the retention code was to be used to retain existing customers and she had to notify her supervisor if she wanted to use the code. When asked why she didn't follow department guidelines on the use of the retention code or enter notes in the account to explain the reason for its use, Garcia responded she sometimes was too busy or could not find her supervisor.
Garcia was put on paid administrative leave. Wilhelm determined Garcia had violated the standards. On March 25, 2015, she prepared a report recommending termination. Wilhelm summarized the audit findings and the meeting with Garcia. She stated Garcia's use of the retention codes for new customers and disconnection and reconnection of existing customers “affect[ed] the overall Retail Store monthly incentive commission payout for the [MRR].” Wilhelm noted that, when a retail specialist meets or exceeds the monthly MRR goal, it increases her commission. A failure to meet that goal, in contrast, could result in a lower commission and could lead to a “progressive corrective action process.”
Wilhelm concluded Garcia violated the standards “when she used an unauthorized retention code for new orders she entered into the billing system and chang[ed] the codes only a few days later to existing retention offer promotional codes; therefore, knowingly reducing the new customer's current rates when new customers are not eligible for this promotion.”
Wilhelm sent Garcia a letter dated March 31, 2015, telling her TWC had terminated her employment for “multiple violations” of the standards, effective April 1, 2015. Wilhelm described the audit results and what Garcia had said during the March 17 interview.
As in her report, Wilhelm also referred to TWC's requirement that employees “adhere to all of the policies and procedures outlined” in the handbook, as well as TWC's right to impose “corrective action, up to and including termination of employment” on employees who violated any of the handbook's policies or standards of behavior. Wilhelm quoted the standards' expectation that employees “adhere to the highest standards of personal conduct, integrity, ethical behavior and professionalism.” She identified “[d]ishonesty-related offenses, such as, theft, falsification of Company documents, willful misrepresentation of facts, submitting false or misleading information pertaining to work or any other work[-]related matter, ” as serious offenses that could lead to immediate termination of employment, as set forth in the handbook.
Garcia filed a complaint with TWC's employee relations center seeking reinstatement. She alleged she used the retention code only for customers who had problems with their installations or billings in an effort to prevent them from canceling their service; termination was an excessive punishment for applying a $5.00 discount to three customers' accounts; and she believed her termination was in retaliation for her medical leaves of absence.
Dwayne Adams, an employee relations manager, investigated Garcia's complaint. He interviewed Garcia, Hall, Huete, Wilhelm, Chesnutt, Herndon, and two retail specialists and prepared a report of his findings. Adams noted Huete did not believe Garcia “was using the retention codes to gain unearned commission or to manipulate her performance metrics.” He also noted Hall thought termination was “overly harsh” but understood “it had to be done because [Garcia] had violated department procedures.” Chesnutt told Adams that employees from another location had received final written warnings after misusing retention codes because, at that location, “it was apparent that there was a general misunderstanding on when [employees] could properly use the [r]etention [c]odes.” Chesnutt said Garcia was terminated because she also had failed to “follow the proper transfer procedure, ” resulting in unearned commission.
One of the retail specialists Adams interviewed said leadership sent out a communication two weeks earlier clarifying when certain codes could be used. There was “some confusion on when customers were considered New and when they were considered Current.” The second retail specialist surmised that if a customer returned a few days after setting up services and requested a lower price, the retention code possibly could be used. He would “immediately contact his supervisor for clarification” if he had a question about how to handle the situation.
On May 29, 2015, Adams found no evidence that Garcia had been wrongfully terminated or that her termination was based on her use of approved medical leave. His report concludes, “While Ms. Garcia may not have had intentions of manipulating metrics and earning extra commission, ... her behavior still violated department procedures and resulted in commission that she should not have earned. These repeated violations support the decision to terminate her employment.”
6. Complaints and summary judgment
On January 27, 2016, Garcia filed a complaint of discrimination with the Department of Fair Employment and Housing (DFEH) and received an immediate right-to-sue letter. She filed her lawsuit against TWC and Hall on January 26, 2017.
TWC moved for summary judgment or, alternatively, summary adjudication, on July 20, 2018. Garcia filed an opposition and evidentiary objections on September 20, 2018, and TWC filed its reply and objections to Garcia's declaration on September 28, 2018. TWC's reply included excerpts from defense witness depositions Garcia had taken after TWC filed its motion.
The trial court sustained several of TWC's objections to Garcia's declaration that Garcia challenges on appeal. We have considered the entirety of Garcia's declaration in our analysis of the order granting summary judgment. It is unnecessary for us to consider her challenges to those rulings.
The trial court continued the hearing on TWC's motion three times from October 3, 2018 to November 19, 2018. Garcia filed objections to TWC's reply evidence on the day of the continued hearing. The court took the matter under submission on November 19 and issued its ruling granting TWC's motion on December 6, 2018. The court concluded Garcia failed to present evidence, or to raise a triable issue of material fact, demonstrating TWC's decision to fire her was motivated at least in part by prohibited discrimination; her causes of action for failure to accommodate and failure to engage in the interactive process were time-barred; and her other claims failed for various reasons. Judgment was entered in favor of TWC and Hall on January 2, 2019. Garcia timely appealed.
DISCUSSION
1. Summary judgment and standard of review
We review a grant of summary judgment de novo and independently decide whether the facts not subject to triable dispute warrant judgment for the moving party as a matter of law. (Intel Corp. v. Hamidi (2003) 30 Cal.4th 1342, 1348.) We consider “all the evidence set forth in the moving and opposition papers.” (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334 (Guz).) We do not consider evidence to which objections have been made and properly sustained. (Pipitone v. Williams (2016) 244 Cal.App.4th 1437, 1451-1452; Guz, at p. 334.)
A defendant moving for summary judgment must show “that one or more elements of the cause of action... cannot be established, or that there is a complete defense to the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2).) The burden then shifts to the plaintiff “to demonstrate, by reference to specific facts, not just allegations in the pleadings, there is a triable issue of material fact as to the cause of action.” (Husman v. Toyota Motor Credit Corp. (2017) 12 Cal.App.5th 1168, 1180 (Husman).) “In performing our de novo review, we must view the evidence in a light favorable to plaintiff as the losing party [citation], liberally construing her evidentiary submission while strictly scrutinizing defendant['s] own showing, and resolving any evidentiary doubts or ambiguities in plaintiff's favor.” (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.) “A triable issue of material fact exists if the evidence and inferences therefrom would allow a reasonable juror to find the underlying fact in favor of the party opposing summary judgment.” (Featherstone v. Southern California Permanente Medical Group (2017) 10 Cal.App.5th 1150, 1158 (Featherstone).)
2. Employment discrimination under the FEHA
The FEHA prohibits discrimination against individuals who have a “physical disability, mental disability, [or] medical condition.” (§ 12920; Cal. Code Regs., tit. 2, § 11065, subd. (d).)
A “medical condition” includes “[a]ny health impairment related to or associated with a diagnosis of cancer or a record or history of cancer.” (§ 12926, subd. (i)(1).) We refer to Garcia's medical condition and physical disability interchangeably.
In cases alleging employment discrimination under the FEHA, California courts apply the three-part test established by the United States Supreme Court in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 802 to analyze federal employment discrimination claims. (See Guz, supra, 24 Cal.4th at p. 354.) Under that test, the employee has the initial burden at trial to establish a prima facie case of discrimination by providing evidence that (1) she was a member of a protected class-here, an individual with a medical condition or physical disability; (2) she was performing competently; (3) she suffered an adverse employment action-here, termination; and (4) “some other circumstance suggests discriminatory motive.” (Id. at pp. 354-355.) If the employee does so, a presumption of discrimination arises. (Id. at p. 355.) The burden then shifts to the employer to articulate a legitimate, nondiscriminatory reason for its action. (Id. at pp. 355-356.) If the employer meets its burden, the presumption disappears and the burden shifts back to the plaintiff to attack the employer's reason as a pretext for discrimination or to offer other evidence of a discriminatory motive. (Id. at p. 356.)
This framework is modified in the context of an employer's motion for summary judgment. (Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 861 (Serri).) As the moving party, the employer “ ‘has the initial burden to present admissible evidence showing either that one or more elements of plaintiff's prima facie case is lacking or that the adverse employment action was based upon legitimate, nondiscriminatory factors.' ” (Ibid.) “[I]f nondiscriminatory, [the employer's] true reasons need not necessarily have been wise or correct. [Citations.] While the objective soundness of an employer's proffered reasons supports their credibility..., the ultimate issue is simply whether the employer acted with a motive to discriminate illegally. Thus, ‘legitimate' reasons [citation] in this context are reasons that are facially unrelated to prohibited bias, and which, if true, would thus preclude a finding of discrimination.” (Guz, supra, 24 Cal.4th at p. 358.)
If the employer meets this burden, “the burden shifts to the employee to ‘demonstrate a triable issue by producing substantial evidence that the employer's stated reasons were untrue or pretextual, or that the employer acted with a discriminatory animus, such that a reasonable trier of fact could conclude that the employer engaged in intentional discrimination or other unlawful action.' ” (Serri, supra, 226 Cal.App.4th at p. 861.)
“[E]ven though we may expect a plaintiff to rely on inferences rather than direct evidence to create a factual dispute on the question of motive, a material triable controversy is not established unless the inference is reasonable. And an inference is reasonable if, and only if, it implies the unlawful motive is more likely than defendant's proffered explanation. [Citation.] If plaintiff fails to produce substantial responsive evidence to demonstrate a material triable controversy, summary judgment is properly granted.” (Cucuzza v. City of Santa Clara (2002) 104 Cal.App.4th 1031, 1038-1039.)
a. TWC met its initial summary judgment burden
For purposes of our review, we presume Garcia met her minimal burden to establish a prima facie case of discrimination. TWC also met its burden to present admissible evidence demonstrating it fired Garcia for a legitimate, nondiscriminatory reason.
TWC provided evidence showing: (1) TWC's retention codes were to be used to retain existing customers and required supervisor approval or a notation in the account if the supervisor were unavailable; (2) TWC discovered Garcia had used a retention code to give new customers a discount on their internet service without authorization or having noted the reasons for using the code; (3) Garcia admitted she used the retention code to give those customers the online-only price for new internet service after she signed them up for new service at the higher, in-store rate; (4) Garcia admitted she had used the retention code on other new internet service accounts twice monthly for about a year; (5) Garcia admitted she made a “mistake” and did not follow the proper procedure for transferring an existing customer's service to a new address; (6) Garcia admitted she had training and meetings about retention codes; (7) TWC believed Garcia's conduct inflated her MRR and correspondingly increased her commissions; and (8) TWC deemed Garcia's conduct to have violated its standards and to constitute a dishonesty-related offense subject to immediate termination.
TWC's firing of Garcia for conduct it considered to be dishonest under its standards was “facially unrelated to prohibited bias.” (Guz, supra, 24 Cal.4th at p. 358, italics omitted.) Thus, in Garcia's words, “[t]he issue in this appeal boils down to pretext.” We therefore focus on whether Garcia presented substantial responsive evidence raising a triable issue of fact showing TWC's stated reasons for terminating her were a pretext for its true, discriminatory reason (Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 224 (Hanson)), or its decision was substantially motivated by a discriminatory animus (Husman, supra, 12 Cal.App.5th at pp. 1182, 1186 [summary judgment not proper “[i]f triable issues of fact exist whether discrimination was a substantial motivating reason” for the adverse action]). As we explain, Garcia did not meet her burden.
b. The evidence does not raise a triable issue of fact as to pretext or discriminatory motive
Garcia contends TWC used her misuse of the retention code as an excuse “to rid itself of an expensive employee who needed too much accommodation.” Generally, an employee can demonstrate pretext through evidence showing the employer's proffered reason for firing her “ ‘had no basis in fact, ... did not actually motivate the discharge, or, ... was insufficient to motivate discharge.' ” (Hanson, supra, 74 Cal.App.4th at p. 224; see also Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1005 (Hersant) [employee may show pretext through “ ‘weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in employer's proffered legitimate reasons for its action' ” so that a reasonable juror could rationally find them “ ‘ “unworthy of credence”' ” and infer employer did not act for those nondiscriminatory reasons].) “ ‘ “Pretext may also be inferred from the timing of the company's termination decision, by the identity of the person making the decision, and by the terminated employee's job performance before [the] termination.”' ” (Soria v. Univision Radio Los Angeles, Inc. (2016) 5 Cal.App.5th 570, 594 (Soria).)
Even where there is evidence showing the employer's asserted reason for firing the employee is “unworthy of credence, ” there “[s]till... must be evidence supporting a rational inference that intentional discrimination... was the true cause of the employer's action[ ].” (Guz, supra, 24 Cal.4th at p. 361, italics omitted.) “[S]imply showing the employer was lying, without some evidence of discriminatory motive, is not enough to infer discriminatory animus. ‘The pertinent [FEHA] statutes do not prohibit lying, they prohibit discrimination.' ” (Soria, supra, 5 Cal.App.5th at p. 594.) Similarly, the employee “ ‘ “cannot simply show that the employer's decision was wrong or mistaken, since the factual dispute at issue is whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent, or competent.”' ” (Serri, supra, 226 Cal.App.4th at p. 863.)
To prevail under the FEHA “there must be a causal link between the employer's consideration of a protected characteristic and the action taken by the employer” and evidence “discrimination was a substantial motivating factor, rather than simply a motivating factor.” (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 215, 232; Husman, supra, 12 Cal.App.5th at p. 1186.) Accordingly, “[i]f triable issues of material fact exist whether discrimination was a substantial motivating reason for the employer's adverse employment action, even if the employer's professed legitimate reason has not been disputed, the FEHA claim is not properly resolved on summary judgment.” (Husman, at p. 1186.)
i. There is no evidence showing TWC's decision to fire Garcia was not based on her actions
Garcia's primary argument in support of her pretext allegation is TWC's basis for firing her-her alleged “fraudulent” use of the retention code to increase her sales, and thus, commissions-itself was false, creating an inference that TWC's real reason for firing her was a discriminatory one.
In her declaration, Wilhelm described Garcia as having “intentionally manipulated customer work orders in order [to] artificially increase” her MRR that in turn “wrongfully inflated her commission payouts.” She declared she “determined that Garcia had violated TWC's [standards] by fraudulently manipulating work orders and using unauthorized retention codes to gain MRR that she was not entitled to receive, ” and that, “[b]ecause Garcia admitted to receiving the proper training on when to use the retention code, ” she believed Garcia's actions warranted termination.
Chesnutt's declaration was similar.
Wilhelm's report does not describe Garcia's conduct as “fraudulent.” Her report and letter, however, refer to both the standards and the handbook's description of dishonesty-related offenses. She thus implies Garcia violated the standards' expectation that employees “adhere to the highest standards of” “integrity” and “ethical behavior, ” because Garcia's use of an “unauthorized retention code, ” without following department procedures, was a “dishonesty-related offense.”
At her deposition, Wilhelm testified she believed Garcia's conduct was a dishonesty-related offense because Garcia did not inform her supervisor she was using the retention code as required, and she entered the discount retention code a few days after having entered the new customer rate, instead of “at the time that the order was taken.”
Garcia argues a reasonable juror could rationally infer TWC's reason for firing her “ ‘was not genuinely felt' ” and “ ‘mask[ed]' ” TWC's true, discriminatory motive because (1) the evidence showed Garcia acted without, not with, fraudulent intent-Garcia told TWC she used the retention code to provide customer service, not to increase her sales; and (2) TWC had no evidence Garcia actually profited from the transactions-Hall testified she did not (and was not asked to) calculate how much commission Garcia received, Wilhelm did not know if Garcia was paid commission, and Chesnutt did not know how much commission Garcia gained. (See Mamou v. Trendwest Resorts, Inc. (2008) 165 Cal.App.4th 686, 715 (Mamou) [factfinder “can take account of manifest weaknesses in the cited reasons in considering whether those reasons constituted the real motive for the employer's actions, or have instead been asserted to mask a more sinister reality”].)
Drawing all reasonable inferences from this evidence, a jury could find that, when TWC fired Garcia, it did not have evidence she committed actionable fraud, and thus its representation she intentionally used the retention code to increase her MRR and commission payments was false. Nevertheless, we cannot conclude-based on the uncontroverted facts-this purported mischaracterization of Garcia's conduct in turn raises a rational inference that TWC used Garcia's unauthorized application of the retention code as an excuse to fire her for reasons related to her medical condition.
Garcia contends a jury must determine if her conduct was fraudulent. But, whether Garcia actually committed fraud is not the issue. “Unless at-will employers are to be held to a good-cause standard for termination, no inference of discrimination can reasonably be drawn from the mere lack of conclusive evidence of misconduct by the employee.” (McGrory v. Applied Signal Technology, Inc. (2013) 212 Cal.App.4th 1510, 1533.)
First, Garcia fails to recognize Wilhelm based her termination recommendation entirely on unauthorized transactions to which Garcia admitted during the investigation interview. Moreover, Garcia admitted her conduct was intentional: she purposefully applied the retention code after having signed up the customers for new service so she could lower their rates and admitted she had done so at least twice a month for about a year. Wilhelm's report and letter to Garcia detailed several other admissions Garcia made that led her to recommend termination. Garcia presented no evidence that she did not make the statements or admissions Wilhelm attributed to her, did not deny making the statements, and affirmatively testified at her deposition that she made those statements when asked. Nor did Wilhelm attempt to hide Garcia's statement denying fraudulent intent; she included it in her report.
In her declaration, Garcia purports to raise a triable issue of fact as to the adequacy of her training. We are not persuaded. During Garcia's deposition, TWC's attorney read from Wilhelm's letter, “As you are aware through the meetings and trainings you received, this retention code is only used by [retail specialists] to retain and prevent an existing customer from disconnecting their internet services with TWC.” Counsel then asked Garcia, “Had you had trainings and meetings about using retention codes?” Garcia responded, “Yes.” Moreover, any evidence that TWC's training was inadequate speaks to whether its decision was wrong, not whether it fired Garcia because she had a disability.
On this record, no reasonable factfinder could conclude Wilhelm recommended firing Garcia for reasons other than her misuse of the retention code-even if Wilhelm falsely stated Garcia's conduct was fraudulent.
Second, it is undisputed Garcia's commissions were based both on the number of new services she sold and on their dollar value. Wilhelm's report noted that meeting the monthly MRR goal “positively impacts... commission payout.” Hall and Chesnutt both testified TWC's commission structure was tiered so if an employee reached a certain total MRR or number of PSUs, she would be paid commission at a higher rate.
Based on this structure, Garcia would have received credit for selling a new service-and thus increased her MRR-when she initially signed up the customer for new internet service at the $39.99 in-store rate. As MRR is based on new services, Garcia conversely would not have increased her MRR if she had used the retention code for an existing customer. TWC thus had a basis for presuming Garcia had gained financially by virtue of its commission structure alone.
Garcia attempts to raise a triable issue of fact by noting Hall testified Garcia did not earn commission on transactions involving retention rates. What Hall actually said was Garcia would not have received commission on the reduced rate she entered after the fact because she already would have been paid on the initial sale. Hall simply confirmed Garcia would not “get a commission on the retention rate offered” to an existing or new customer. This testimony does not raise a triable issue as to pretext.
Garcia nevertheless contends TWC's inability to establish she profited from her use of the retention code causes its motion to “falter[ ] at the starting gate.” But whether Garcia in fact was paid additional commission is beside the point. Garcia's claim is not that TWC wrongly accused her of fraud, but that it fired her because of her medical condition. Even if a jury were to determine Garcia received no additional MRR and neither increased her commission payout-nor intended to-the uncontroverted evidence does not reasonably support an inference TWC merely said she did, to hide a discriminatory motive for firing her.
Garcia cites to various other facts and purported inconsistencies in TWC's witnesses' testimony that she contends cumulatively raise a triable issue of fact as to pretext, such as: testimony assessing Garcia's conduct; the fact neither the handbook nor standards discuss the unauthorized use of retention codes; Garcia's “exemplary” record and lack of recent discipline; TWC's progressive discipline policy and its resort to immediate termination here; other employees' confusion about retention codes; and the investigation itself.
We have reviewed the evidence, drawing all reasonable inferences in Garcia's favor, and considered Garcia's arguments. To demonstrate pretext, Garcia's evidence “must relate to the motivation of the decision makers to prove, by nonspeculative evidence, an actual causal link between prohibited motivation and termination.” (King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 433-434 (King).) Garcia has failed to demonstrate how the evidence shows TWC fired her not for her misuse of the retention code but because of her medical condition.
We need not address all of Garcia's contentions here. We first note some of the purported inconsistencies in the evidence Garcia raises are based on incomplete or mischaracterized testimony. Moreover, most of the issues she raises relate to the correctness or fairness of TWC's decision-whether a jury could find Garcia's action in fact violated a specific TWC policy or that her actions justified her termination.
For example, Garcia asserts Wilhelm denied Garcia admitted to any wrongdoing, a mischaracterization of the cited testimony. Wilhelm simply agreed Garcia's voluntary statement did not include certain admissions Wilhelm's report and letter attributed to her. Garcia also notes Hall and Shaw gave conflicting testimony about how many accounts involved misconduct. Garcia takes Shaw's statement out of context. He said Garcia potentially adjusted 24 accounts, referring to her admission that she had been using the retention code about twice a month for a year. And, whether Hall remembered finding two or ten problem accounts does not raise a triable issue of material fact; Garcia admitted she used the retention code in the accounts discovered in the audit, as well as in other accounts.
The FEHA, however, does not “ ‘take away an employer's right to interpret its rules as it chooses, and to make determinations as it sees fit under those rules.' ” (Arteaga v. Brink's, Inc. (2008) 163 Cal.App.4th 327, 344 (Arteaga).) It is not “ ‘ “a shield against harsh treatment at the workplace.”... Nor does the statute require the employer to have good cause for its decisions. The employer may fire an employee for a good reason, a bad reason, a reason based on erroneous facts, or for no reason at all, as long as its action is not for a discriminatory reason.' ” (Ibid.)
Accordingly, that a jury could conclude from the evidence that Wilhelm (or any of the other witnesses) wrongly assessed Garcia's conduct-e.g., that it was not in fact a “dishonesty-related” offense, did not violate a specific standard, or could not be considered fraudulent-does not create a material controversy, on this record, as to whether TWC used that conduct as a pretext to fire Garcia. (Arteaga, supra, 163 Cal.App.4th at p. 344 [“ ‘ “While an employer's judgment or course of action may seem poor or erroneous to outsiders, the relevant question is... whether the given reason was a pretext for illegal discrimination. The employer's stated legitimate reason... does not have to be a reason that the judge or jurors would act on or approve.”' ”].)
Nor did TWC's decision to terminate Garcia have to be fair. (Hersant, supra, 57 Cal.App.4th at p. 1005 [employee's claim is not for “general unfairness but for... discrimination” so that triable issue about appropriateness of adverse action alone is insufficient to avoid summary judgment].) We thus reject Garcia's contention that TWC's decision to fire her immediately, rather than follow its progressive discipline policy-in light of Garcia's “exemplary” record-could lead a jury to conclude Garcia's misuse of the retention code was a pretext.
Because the trial court discussed it, we specifically address Garcia's argument a jury could infer TWC “wanted to railroad Garcia out of the company, ” based on Shaw's “admi[ssion] there is no policy that allows skipping steps to immediate termination” within TWC's progressive discipline policy, and his “admi[ssion] he [did] not know if an employee accused of, ” or admitting to, “using retention codes on new customer accounts” would be subject to immediate termination.
As the trial court noted, Garcia's description of Shaw's testimony is incomplete, if not misstated. Shaw actually testified TWC has “a discipline policy and it may be progressive, but we may also skip steps... depending on the severity of the violation, the type of violation, the number of violations.... [I]t does not have to be progressive.” He testified that whether an employee would be fired for using retention codes on a new customer account “would depend on the full circumstance and the results of the investigation.” A reasonable juror could not interpret Shaw's testimony as somehow confirming TWC's policy did not permit it to fire an employee in the first instance.
Shaw merely stated, “I can't think of where it is in writing, ” when asked if there was something “spelled out in writing.” In fact, the handbook states progressive discipline steps may be bypassed “at management's sole discretion.”
That TWC may have treated Garcia unreasonably by immediately firing her does not raise a triable issue of material fact as to whether its reasons for doing so were a pretext for discrimination. “It is not enough for [Garcia] simply to raise triable issues of fact concerning whether [TWC's] reasons for [firing her] were sound.” (Hersant, supra, 57 Cal.App.4th at p. 1005.) Based on the evidence as a whole, a reasonable juror could not find TWC fired Garcia-as opposed to administering some lesser form of discipline-because it wanted to “get[ ] rid of [a] disabled employee.”
After liberally construing the totality of the evidence in the light most favorable to Garcia, we cannot conclude it would lead a reasonable jury to infer TWC used Garcia's misuse of the retention code as an excuse to get rid of her for reasons related to her medical condition. While Garcia may have shown that a jury could find TWC treated her unfairly, did not apply its policies properly, or even lied about believing her actions warranted termination, to survive summary judgment Garcia had to present some evidence that TWC's real reasons for firing her related to her medical condition. (Soria, supra, 5 Cal.App.5th at p. 594; see also Guz, supra, 24 Cal.4th at p. 361.) She did not do so.
ii. Garcia presented no evidence to raise an inference of discriminatory motive or animus
Even if TWC's reason for firing Garcia were not entirely pretextual, she could demonstrate discrimination under FEHA by showing a causal link between TWC's decision to fire her and her medical condition, and producing evidence to demonstrate “discrimination was a substantial motivating factor” for TWC's decision. (Harris, supra, 56 Cal.4th at pp. 215, 232; Husman, supra, 12 Cal.App.5th at p. 1186.) She did not.
Garcia contends triable issues of fact surround Chesnutt's initiation of the audit into Garcia's accounts from which “the only reasonable inference” that can be drawn is that TWC was motivated to get rid of her because of her medical condition. As the trial court discussed, this dispute over Chesnutt's reason for initiating the audit is immaterial.
Chesnutt and Jennifer Zamorano provide different accounts of their conversation that caused Chesnutt to launch the audit of Garcia's accounts. Zamorano testified she told Chesnutt in March 2015, “the gossip mill had said that [Garcia] was going around saying that snitches get promoted, and [Garcia] felt that is why I got promoted to supervisor.” Zamorano did not personally hear Garcia say that. Chesnutt, on the other hand, recalled Zamorano telling her she heard Garcia say “whistleblowers get promoted.” (Garcia denies she said that.)
Garcia contends this disputed fact alone precludes summary judgment. But what Zamorano actually told Chesnutt -and whether Garcia said it-is not material to the question of pretext or TWC's discriminatory motive. As the trial court noted, what is important about the conversation is that whatever Zamorano told Chesnutt, it caused her to order the audit of Garcia's accounts. It is undisputed (1) Chesnutt instigated the audit, (2) she ordered it after hearing Zamorano's comment, and (3) she interpreted the comment as implicating Garcia in wrongdoing. In any event, Garcia admitted to the conduct the audit revealed.
Garcia's contention that Chesnutt's instigation of the audit based on Zamorano's “ambiguous” statement is suspicious and raises an inference of pretext also is baseless. There is no evidence Chesnutt even knew of Garcia's medical condition.
Nor is there a close temporal proximity between the time Garcia returned from her last leave and her termination-more than seven months later-to support an inference TWC fired her for having taken leave or other reasons related to her medical condition. (Cf. Le Mere v. Los Angeles Unified School Dist. (2019) 35 Cal.App.5th 237, 243 [noting several federal cases have held “intervals of more than a few months [between protected activity and retaliatory conduct] were too long to support” an inference of causation between retaliatory animus and the adverse action, and citing Cornwell v. Electra Cent. Credit Union (9th Cir. 2006) 439 F.3d 1018, 1036 where seven months was too long a gap to support causation].)
In her declaration, Garcia vaguely states that, after she returned from her leave in August 2014 until her termination, she “sensed increasing hostility” from Hall and Wilhelm. She then conclusorily proclaims Hall's “indirect behavior... was continuing to create a hostile work environment, ” followed by general assertions that her work demands increased and her restrictions were not accommodated. TWC successfully objected to the paragraph. Garcia provides no facts on which she based that feeling about Wilhelm, and as we discuss, there is no evidence Hall influenced the decisions to audit or fire Garcia. Thus, even when we consider the paragraph, it does not raise a triable issue of material fact. (King, supra, 152 Cal.App.4th at p. 433 [subjective beliefs and self-serving declarations do not create a genuine issue of fact].)
Moreover, the uncontroverted facts belie finding a causal link between Garcia's medical condition and the decision to investigate and fire her:
• Chesnutt, who initiated the audit and approved Wilhelm's recommendation, was not aware Garcia had a medical condition or had taken any leaves of absence.
• Hall performed the audit of Garcia's accounts after Chesnutt directed Hall's manager to do so, and he in turn delegated the task to Hall.
• Wilhelm and Huete-not Hall-questioned Garcia about the audit findings.
• Garcia admitted using the retention code in the accounts discovered in Hall's audit, as well as in other accounts.
• Garcia never told Wilhelm that she needed an accommodation for her medical condition or that Hall was not providing her with the accommodations she had requested.
• Shaw, who also approved Wilhelm's recommendation, had no knowledge of Garcia's medical condition.
In addition, Garcia presented no evidence that Hall-the only person Garcia testified had denied her accommodations-influenced Chesnutt's decision to audit Garcia. In support of her opposition, Garcia declared Hall “would sigh, huff, roll her eyes, [and] shrug her shoulders to non-verbally express her displeasure” with Garcia's accommodation requests. That evidence does not demonstrate a causal link between Hall's purported discriminatory animus against Garcia, and TWC's decision to fire her, as the trial court essentially found. The uncontroverted evidence established Hall's only real role in Garcia's termination was to perform the audit.
The trial court sustained TWC's objection to this statement in Garcia's declaration (repeated in several paragraphs) on the ground it contradicted Garcia's earlier deposition testimony, citing Whitmire v. Ingersoll-Rand Co. (2010) 184 Cal.App.4th 1078, 1087, citing D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21 (trial court may disregard declaration that “clearly contradicts the declarant's earlier deposition testimony”). Nevertheless, the court considered the statement. We need not address its ruling.
Garcia does not dispute that the only reason Hall audited Garcia's accounts was because her manager asked her to do so at Chesnutt's direction. Hall reviewed the accounts and reported her findings to Herndon as instructed. Garcia presented no evidence to suggest Hall fabricated the results of the audit. Nor could she-Garcia admitted she used the retention code.
Nor is there any evidence that Hall recommended Garcia's termination to Herndon, Wilhelm, or anyone else. Hall testified that, sometime after she gave the results of the audit to her manager, Wilhelm asked Hall to confirm that the recommendation she prepared accurately reflected the results of the audit. Hall is listed on the report as one of the people who reviewed and approved the termination. Even if she officially approved Garcia's termination after reading Wilhelm's report, there is no evidence she influenced Wilhelm's recommendation to fire Garcia or proposed Garcia's termination at any time. Nor is there any evidence Hall showed hostility toward Garcia's requests for accommodations in front of Chesnutt or Wilhelm.
Wilhelm testified she sent the termination report to those individuals by email. She discussed her conclusion that Garcia had violated the standards with Shaw and he agreed. Shaw and Chesnutt approved Wilhelm's termination recommendation.
Accordingly, neither Chesnutt-when she instigated the audit-nor Wilhelm-when she recommended Garcia's termination-could be the “cat's paw” for Hall's purported discriminatory animus against Garcia, as Garcia argues for the first time in her reply brief. Because Garcia admitted she engaged in the transactions revealed by the audit, the end result of the investigation would have been the same no matter who performed it. Garcia also contends a jury could infer Wilhelm bore a discriminatory animus against her. Her contention is unfounded.
The “cat's paw” doctrine refers to a situation where a supervisor, who holds a discriminatory animus, but does not make the actual adverse employment decision, “makes another [corporate actor] a tool for carrying out” the discriminatory action-the supervisor's discriminatory purpose is imputed to the “tool” or “ ‘cat's paw,' ” and, ultimately, to the employer. (Reeves v. Safeway Stores, Inc. (2004) 121 Cal.App.4th 95, 100-103, 114, 117-118.)
We reject Garcia's apparent contention that Chesnutt was the cat's paw of Wilhelm's purported discriminatory animus, implying Wilhelm told Chesnutt that Garcia had admitted to fraud. Garcia is splitting hairs. TWC does not contend Garcia admitted what she did was fraud. Any statement Wilhelm made to Chesnutt about Garcia having admitted to “wrongfully” using the retention code could only be interpreted as reflecting Garcia's admission to having used the code on new customer accounts-conduct Wilhelm concluded was “wrongful.” Moreover, Wilhelm's report, that she provided to Chesnutt and Shaw, includes Garcia's statement that she did not use the retention code to increase her sales.
We have considered Garcia's other evidence that she contends raises an inference of discriminatory motive. In the trial court's words, it is based on “nothing more than her subject[ive] beliefs and speculation.” It certainly is not “ ‘specific' ” or “ ‘substantial' ” enough to create a triable issue “ ‘with respect to whether [TWC] intended to discriminate' ” against Garcia based on her medical condition. (Batarse v. Service Employees Internat. Union, Local 1000 (2012) 209 Cal.App.4th 820, 834.) Garcia simply believed TWC wanted to get rid of her for taking medical leaves and asking for accommodations but presented no evidence from which a jury could infer TWC's decision to fire her was substantially motivated by that asserted discriminatory animus. (McRae v. Department of Corrections & Rehabilitation (2006) 142 Cal.App.4th 377, 396 [“[plaintiff's] personal beliefs or concerns are not evidence”].)
Garcia's deposition testimony epitomizes the speculative nature of her evidence. When TWC's counsel asked whether she had any reason to believe Hall or Herndon had “any ill-will” toward her or a discriminatory motive, Garcia responded, “Yes. [¶]... I feel like they... didn't like me taking the time off because of my cancer diagnoses..., the surgeries that I had to go through, ... making the accommodations.” TWC's counsel asked Garcia for the basis of her belief, and Garcia responded, “I think that they were just tired of me.” (Italics added.) TWC's counsel then asked, “And therefore it must have been because you had taken time off?” Garcia responded, “Because of my diagnosis, and they were tired of me taking time off and accommodating me.”
We affirm the trial court's grant of summary adjudication on Garcia's first cause of action for disability discrimination and fifth cause of action for wrongful termination in violation of public policy, the challenged portion of which is grounded on her disability discrimination claim.
3. Failure to provide reasonable accommodation and engage in interactive process claims
a. FEHA's requirements
FEHA requires employers “to make reasonable accommodation for the known physical or mental disability of an... employee” unless doing so would produce undue hardship to the employer. (§ 12940, subd. (m).) A “physical disability” includes a disease or condition that limits a major life activity- including working-by making the “achievement of the major life activity difficult.” (§ 12926, subd. (m)(1)(B)(ii)-(iii).) Whether a plaintiff's impairment makes working difficult is determined as compared to the plaintiff without the impairment or to the average unimpaired person. (E.E.O.C. v. United Parcel Service, Inc. (9th Cir. 2005) 424 F.3d 1060, 1071; see Chin et al., Cal. Practice Guide: Employment Litigation (The Rutter Group 2020) ¶ 9:2180.2.)
“A reasonable accommodation is a modification or adjustment to the work environment that enables the employee to perform the essential functions of the job he or she holds or desires.” (Nealy v. City of Santa Monica (2015) 234 Cal.App.4th 359, 373 (Nealy), citing Nadaf-Rahrov v. Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th 952, 974 (Nadaf-Rahrov).) Accordingly, if an employee's disability does not prevent her from performing the essential functions of her job, the FEHA does not require her employer to offer an accommodation. (See Brumfield v. City of Chicago (7th Cir. 2013) 735 F.3d 619, 632-634 [employer's duty to accommodate under the ADA “is triggered only in situations where an individual who is qualified [for the job] on paper requires an accommodation in order to be able to perform the essential functions of the job”]; see also Green v. State of California (2007) 42 Cal.4th 254, 264 [“FEHA and the ADA both limit their protective scope to those employees with a disability who can perform the essential duties of the employment position with reasonable accommodation”]; Nadaf-Rahrov, supra, 166 Cal.App.4th at p. 974 [“California Legislature has modeled the reasonable accommodation requirements of section 12940(m) and section 12940(n) on the parallel federal requirements”].)
The statute also requires employers 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.” (§ 12940, subd. (n).)
Thus, “[t]wo principles underlie a cause of action for failure to provide a reasonable accommodation”: “[f]irst, the employee must request an accommodation”; and “[s]econd, the parties must engage in an interactive process regarding the requested accommodation.” (Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 54.) If the interactive process fails, “responsibility for the failure rests with the party who failed to participate in good faith.” (Ibid.) “While a claim for failure to accommodate is independent of a cause of action for failure to engage in an interactive dialogue, each necessarily implicates the other.” (Ibid.)
b. The continuous violation doctrine
At the time of TWC's alleged conduct, “the FEHA limitations period for filing an administrative complaint with the DFEH [was] one year from the date on which the alleged unlawful practice occurred.” (Nealy, supra, 234 Cal.App.4th at p. 371; former § 12960, subd. (d)(1), amended by Stats. 2019, ch. 709, § 1.) Garcia filed her DFEH complaint and obtained a right-to-sue notice on January 27, 2016. Accordingly, any alleged unlawful conduct that occurred before January 27, 2015, falls outside of the statute of limitations period unless the continuing violation doctrine applies.
The continuing violation doctrine allows a plaintiff to impose liability under the FEHA for “unlawful employer conduct occurring outside the statute of limitations if it is sufficiently connected to unlawful conduct within the limitations period.” (Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, 802 (Richards), italics added; see also Blue Fountain Pools & Spas Inc. v. Superior Court (2020) 53 Cal.App.5th 239, 250 (Blue Fountain) [employee may “establish[ ] liability for later abusive acts that occurred within the limitations period” even if there is no continuing violation as to earlier abuse].)
“[A]n employer's persistent failure to reasonably accommodate a disability... is a continuing violation if the employer's unlawful actions are (1) sufficiently similar in kind...; (2) have occurred with reasonable frequency; (3) and have not acquired a degree of permanence.” (Richards, supra, 26 Cal.4th at p. 823.) “ ‘[P]ermanence' in the context of an ongoing process of accommodation of disability... should properly be understood to mean the following: that an employer's statements and actions make clear to a reasonable employee that any further efforts at informal conciliation to obtain reasonable accommodation... will be futile.” (Id. at p. 824.)
Thus, “[w]hen ‘the hope that conditions will improve or that informal conciliation may succeed' [citation] is unreasonable, as when an employer makes clear that it will not further accommodate an employee, justification for delay in taking formal legal action no longer exists. If the employer has made clear in word and deed that the employee's attempted further reasonable accommodation is futile, then the employee is on notice that litigation, not informal conciliation, is the only alternative for the vindication of his or her rights.... [A]t that point[, ] the statute of limitations for the violation begins to run.” (Richards, supra, 26 Cal.4th at p. 823.)
c. Garcia's requested accommodations
The trial court concluded the statute of limitations barred Garcia's claims for TWC's failure to accommodate and failure to engage in the interactive process because “TWC's constant failure to accommodate her would have made it clear to a reasonable employee that any further efforts to obtain reasonable accommodation on a consistent basis would be futile.” The court does not appear to have considered, however, if a triable issue of fact existed as to whether TWC failed to accommodate Garcia during the limitations period between January 27, 2015 and April 1, 2015, when her employment ended.
Garcia agrees the only accommodations she requested from TWC were “(1) the 4 day per week schedule in 2009 during her 3 months of radiation treatments; (2) not to work overtime pursuant to her 2009 doctor's note; (3) not to lift over 10 pounds pursuant to her 2009 doctor's note; (4) not to drive to other stores in 2009; and (5) to use a fan in 2009.” We consider whether Garcia presented triable issues as to whether the continuing violation doctrine applied to these requests, and as to whether TWC failed to accommodate these requests after January 27, 2015.
i. The continuing violation doctrine does not apply
A. Accommodations limited to 2009
We separately address Garcia's requests for a four-day work week during her radiation treatment from September to December 2009 and to use a fan during that period because Garcia no longer needed those accommodations after her radiation treatment ended in 2009. In any event, they are not part of the ongoing accommodations Garcia contends she required until her termination in March 2015.
As to the four-day work week, Garcia testified TWC accommodated her for the month of October 2009 only. She also testified she no longer needed that accommodation after her radiation treatment ended in December 2009. At a minimum, therefore, TWC's denial of that request ended in December 2009.
Similarly, Garcia testified she asked Hall for a fan in 2009 because the effects of the radiation and her earlier chemotherapy made her feel “very warm, ” and she needed to “cool down.” Garcia was permitted to use a fan, but not on the counter where it would best cool her. Garcia testified Hall was not in the office much, so Garcia put the fan on the counter when Hall was away. There is no evidence Garcia continued to need or to ask for that accommodation after 2009.
In other words, there was no continuing refusal to accommodate or engage in the interactive process based on these two requests. Accordingly, to the extent her claims are based on these accommodations, they are barred.
B. Other requests for accommodation
TWC argues Hall's purported refusal to accommodate Garcia's other requests had reached a state of permanence before 2015. We agree.
Garcia contends TWC, through Hall, continuously failed to accommodate her oncologist's restrictions-implemented in August 2009-that she work 40 hours per week and lift nothing over 10 pounds (and Garcia's own request not to drive) until her termination in March 2015. Garcia declared that she told Hall her oncologist's restrictions were permanent. She asserts Hall honored her accommodations “off and on.” Garcia avers that, from August 2009 until her March 2015 termination, Hall sometimes accommodated her medical condition and sometimes made her work overtime, do heavy lifting, and drive between stores.
The paragraph of Garcia's declaration containing that assertion does not state when she made it. The paragraph falls between other paragraphs discussing Garcia's return to work and radiation treatment in 2009. Construing the declaration liberally, a factfinder could only conclude Garcia told Hall her restrictions were permanent in 2009.
As to her overtime restriction, in particular, Garcia testified Hall required her to work overtime “[a] lot.” She testified there were weekly issues with store coverage, and Hall “would always make me work overtime.” She told Hall, “ ‘I don't like working overtime, and I can't work overtime.' ” Garcia testified this went on from 2009 until her termination.
Yet, it is undisputed Garcia never complained to anyone at TWC-besides Hall herself-that Hall was not accommodating her work restrictions. Although Garcia spoke to Wilhelm-a fellow cancer survivor-about her medical condition, it is undisputed she did not discuss her accommodation needs with Wilhelm or tell her Hall was not granting them. Garcia believed Hall, as her supervisor, was the only one at TWC who could help her. She never complained to anyone other than Hall, however, because she was afraid that she would lose her job.
As the trial court noted, a reasonable person in Garcia's shoes would understand that Hall's constant demand that Garcia work overtime, lift items more than 10 pounds (Garcia testified a cable box weighed 12 pounds), and drive to stores, over several years, was a sign that Hall was never going to accommodate Garcia consistently. Moreover, in Garcia's 2013 performance evaluation dated February 26, 2014, Hall stated, “I would like [Garcia] to consider overtime when the need arises.” That alone should have put Garcia on notice that Hall did not intend to accommodate Garcia's ongoing 40-hour work week restriction. Based on the undisputed facts, a reasonable factfinder could conclude only that any further efforts by Garcia to obtain these accommodations she'd been seeking from Hall since 2009 would have been futile well before January 2015.
Garcia contends that, because Hall sometimes honored her restrictions, there was no “definitive rejection” of her accommodation requests and the continuing violation doctrine applies. Citing Blue Fountain, supra, 53 Cal.App.5th at p. 253, Garcia argues that, in contrast to her situation, in cases where courts have held discriminatory conduct reached a state of permanence, the employees had pursued formal grievance procedures and been denied relief. Garcia only ever complained to Hall, however. She never made a formal or informal complaint to human resources, Hall's boss, or anyone else, to seek relief from Hall's refusal to accommodate her. Indeed, Garcia testified she “felt like nobody really wanted to help [her], ” but agreed that she didn't ask anybody else for help.
Garcia cannot sit on her hands for over five years and then complain she was not accommodated. That is precisely why the statute of limitations period begins to run once “ ‘the hope that conditions will improve or that informal conciliation may succeed' [citation] is unreasonable.” (Richards, supra, 26 Cal.4th at pp. 822-823.) Accordingly, Garcia cannot recover on her claims for failure to accommodate and to engage in the interactive process for conduct before January 27, 2015. We thus consider whether Garcia raised a triable issue of fact as to those claims based on conduct between January 27, 2015 and April 1, 2015.
ii. Garcia did not present evidence TWC otherwise failed to accommodate or engage in the interactive process with her
“The elements of a reasonable accommodation cause of action are (1) the employee suffered a disability, (2) the employee could perform the essential functions of the job with reasonable accommodation, and (3) the employer failed to reasonably accommodate the employee's disability.” (Nealy, supra, 234 Cal.App.4th at p. 373 .) To prevail on a claim for an employer's failure to engage in the interactive process, “the employee must identify a reasonable accommodation that would have been available at the time the interactive process occurred.” (Id. at p. 379.)
“ ‘ “ ‘[T]he duty of an employer reasonably to accommodate an employee's handicap does not arise until the employer is “aware of respondent's disability and physical limitations.”' ”' ” (Doe v. Department of Corrections & Rehabilitation (2019) 43 Cal.App.5th 721, 738 (Doe), italics added; § 12940, subd. (m) [employer has duty to accommodate “known” disability].) Thus, the employee bears the burden of giving the employer notice. (Doe, at p. 738.) “ ‘ “This notice then triggers the employer's burden to take ‘positive steps' to accommodate the employee's limitations.... [¶]... The employee, of course, retains a duty to cooperate with the employer's efforts by explaining [his or] her disability and qualifications. [Citation.] Reasonable accommodation thus envisions an exchange between employer and employee where each seeks and shares information to achieve the best match between the employer's capabilities and available positions.”' ” (Raine v. City of Burbank (2006) 135 Cal.App.4th 1215, 1222.) “ ‘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.]”' ” (Nadaf-Rahrov, supra, 166 Cal.App.4th at p. 985.)
TWC initially contends it was not required to accommodate Garcia because she admitted she was able to perform the essential functions of her job “despite the lack of accommodation.” Garcia testified she was able to perform “all of [her] job functions” from 2009 until her termination, despite TWC's lack of accommodation. If Garcia's physical impairments arising from her cancer diagnosis did not affect her ability to perform the essential functions of her job, then Garcia was not entitled to an accommodation for her disability. (Nealy, supra, 234 Cal.App.4th at p. 373; Brumfield, supra, 735 F.3d at p. 632.)
Garcia, however, testified that although she was able, and did, lift more than 10 pounds, work overtime, and drive to other stores, she “pushed through it.” She testified her ability to do her job “doesn't mean that I wasn't in pain, or that I, you know, was [not] hurting or that I had, you know, my back pain or my joint pain or any of that.” She also testified the cancer-preventative medication she took, and was still taking at the time of her deposition, caused side effects, such as memory loss, joint pain, and bone pain, that made working overtime and driving more difficult. And, lifting was more difficult for her because her arms were prone to swell due to the removal of her lymph nodes. For purposes of summary judgment, she presented sufficient evidence to demonstrate her need of accommodation. (See Cal. Code Regs, tit. 2, § 11065, subd. (l)(3).)
TWC also contends, however, Garcia no longer required any accommodations when she was released to return to work without restrictions in January 2013-after her leave from knee surgery-and in August 2014-after her leave from a hysterectomy following her uterine cancer diagnosis.
Garcia declared and testified that her oncologist's original 2009 restrictions remained in effect and were never rescinded. She declared she told Hall in 2009 that those restrictions were “permanent.” Considering the evidence in the light most favorable to Garcia, we presume TWC could not reasonably conclude Garcia's return from knee surgery without restriction affected any earlier accommodations Garcia required as a result of cancer treatment and recovery. That is not the case with her return to work without restrictions following her hysterectomy, which also involved a cancer diagnosis. We cannot conclude a reasonable juror could find it obvious to Hall that Garcia's oncologist's restrictions from August 2009 relating to her breast cancer were still in effect despite her having been released to work without restrictions five years later following her uterine cancer diagnosis and hysterectomy. (Doe, supra, 43 Cal.App.5th at pp. 738-739 [employee bears burden to identify disability, resulting limitations, and needed accommodations if they “ ‘ “are not open, obvious, and apparent to the employer”' ”].)
On August 18, 2014, TWC's third-party disability administrator informed Hall by e-mail that Garcia had “been released to return to... her regular work schedule without restriction” as of that date.
Nor is there evidence Garcia apprised Hall that her 2009 restrictions remained in effect when she returned to work from her leave in 2014. (Raine, supra, 135 Cal.App.4th at p. 1222 [employee “retains a duty to cooperate with the employer's efforts [to accommodate her limitations] by explaining... her disability and qualifications”].) Rather, Garcia's declaration simply repeats, “[m]y oncologist's restrictions were still in place.” In her deposition, when asked if she ever brought another note “or anything” stating she still had the lifting and overtime restrictions, Garcia responded, “I would let them know every once in a while.” When asked about her lifting restriction following her return in August 2014, Garcia said, “Ms. Hall knew... [b]ecause she got the original note.” TWC's counsel noted Hall had been told Garcia had no restrictions when she returned, but Garcia simply said, “Yeah, but this is for my hysterectomy. That still doesn't count for my surgery - my cancer.” Garcia did not say she told Hall that, however.
A reasonable juror could not conclude Garcia's continued need for accommodations arising from her 2009 cancer diagnosis was still apparent when she returned to work with no restrictions following her medical leave for a second cancer diagnosis. As there is no evidence Garcia affirmatively notified TWC that her 2009 limitations were still relevant, despite her lack of work restrictions, TWC did not have a duty to accommodate Garcia. (Doe, supra, 43 Cal.App.5th at p. 738; Raine, supra, 135 Cal.App.4th at p. 1222.) Similarly, having been told Garcia had no work restrictions, TWC had no reason to engage Garcia in the interactive process.
As for Garcia's request that she not have to drive to other stores after January 27, 2015, Garcia vaguely declares she had to “work[ ] at different stores” between August 18, 2014 and March 31, 2015. Nevertheless, difficulty driving was not an obvious limitation arising from surgery and treatment for breast cancer. Driving long distances was not listed as a restriction in Garcia's 2009 doctor's note. Accordingly, it was incumbent on Garcia to “ ‘ “specifically identify”' ” that difficulty driving long distances was a “ ‘ “resulting limitation[ ]”' ” from her cancer treatment. (Doe, supra, 43 Cal.App.5th at pp. 738-739.) Garcia did not present evidence that she did.
During her deposition, when asked if she told Hall she was medically restricted from traveling to other stores, Garcia responded, “She knew. [¶] I told her that... I didn't want to go to the stores.” TWC's counsel asked Garcia again, and she said Hall had received her doctor's note. After TWC's counsel mentioned the note did not restrict Garcia from traveling to other stores, Garcia said she was “not supposed to be going to other stores, ” because her joint pain from her treatment made her “uncomfortable.” She never testified she told Hall that, though. She agreed with counsel's statement, “So[, ] you would tell Ms. Hall that you would rather not?”
Based on Garcia's testimony, a reasonable jury could find only that Garcia told Hall she did not want to drive to other stores, not that driving was difficult due to her joint pain stemming from her cancer treatment. Accordingly, TWC established Garcia failed to meet her burden to notify it that she required this accommodation because of her medical condition.
Summary adjudication of Garcia's claims for TWC's failure to accommodate and failure to engage in the interactive process also was proper as to alleged conduct occurring within the limitations period.
4. TWC's reply evidence
Garcia argues the trial court improperly considered new evidence TWC submitted with its reply-testimony from its witnesses' depositions. Garcia's counsel took the depositions after TWC filed its motion. She presented portions of the deposition testimony as evidence in opposition to TWC's motion. Garcia contends the trial court improperly resolved disputes in the testimony and denied her “due process right to address the new evidence.” We review the decision to consider “evidence not referenced in the moving party's separate statement” for abuse of discretion. (San Diego Watercrafts, Inc. v. Wells Fargo Bank (2002) 102 Cal.App.4th 308, 316 (San Diego).)
First, we do not agree the trial court resolved any factual dispute when it considered what appear to be a few pages of testimony from the defense witnesses' depositions included with TWC's reply, but not cited in Garcia's opposition. Garcia's citation to portions of some witnesses' testimony was incomplete. TWC supplied the omitted portions of testimony with its reply; that is what the court appears to have considered for the most part.
It seems the trial court considered a couple of pages from Shaw's testimony about progressive discipline, and a few pages from Wilhelm's testimony about Garcia's admission of her “misconduct, ” a fact confirmed elsewhere in the record. In our review of the evidence, we have considered testimony submitted with TWC's reply to fill in those portions of testimony Garcia omitted where needed to clear up a mischaracterization or incomplete statement of what a witness said-for example, Shaw's testimony the trial court referenced, and Zamorano's testimony about her conversation with Chesnutt.
Unlike a declaration asserting new facts, Garcia-whose counsel took the depositions-presumably already had the transcript pages TWC submitted in reply. Accordingly, TWC didn't really attach “new” evidence. Moreover, Garcia has suffered no due process violation. (See San Diego, supra, 102 Cal.App.4th 308, 312, 316 [court's consideration of declaration submitted with reply that asserted new facts violated opposing party's due process rights].) A court may consider reply evidence, “so long as the party opposing the motion for summary judgment has notice and an opportunity to respond to the new material.” (Plenger v. Alza Corp. (1992) 11 Cal.App.4th 349, 362, fn. 8.) Here, Garcia had plenty of notice-TWC filed its reply on September 28, 2018, and the hearing ultimately was continued to November 19, 2018. Garcia waited until the day of the hearing to object. Had she been concerned about the newly submitted deposition testimony, she could have sought permission to respond to it. Even now, Garcia does not suggest how she might have responded if given the opportunity. The court did not abuse its discretion in considering the reply deposition evidence.
DISPOSITION
The judgment in favor of TWC is affirmed. The parties are to bear their own costs on appeal.
See Pollock v. Tri-Modal Distribution Services, Inc. (July 26, 2021, S262699) __ Cal.5th __ (holding appellate courts may not award costs on appeal to a prevailing FEHA defendant “without first determining that the plaintiff's action was frivolous, unreasonable, or groundless when brought, or that the plaintiff continued to litigate after it clearly became so”).
We concur: EDMON, P.J. KALRA, J. [*]
[*] Judge of the Los Angeles County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.